R v CN (No 5)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v CN (No 5)
Citation:	[2020] ACTSC 261
Hearing Dates:	24-28 August 2020
DecisionDate:	6 October 2020
Before:	Burns J
Decision:	See [172]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – six counts of sexual intercourse with a person under 16 years – consideration of the evidence
Legislation Cited:	Crimes Act 1900 (ACT) s 55(2) Supreme Court Act 1933 (ACT) s 68B
Parties:	The Queen (Crown) CN (Accused)
Representation:	Counsel S Naidu (Crown) S McLaughlin (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Numbers:	SCC 211 of 2018; SCC 215 of 2018

BURNS J:

On 24 August 2020, the accused was arraigned before me on an indictment dated 24 February 2020 containing the following six counts:

· Count 1: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

· Count 2: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

· Count 3: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

· Count 4: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

· Count 5: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

· Count 6: that between 7 November 2017 and 5 January 2018 the accused engaged in sexual intercourse with TH being a person under the age of 16 years.

Each count is contrary to s 55(2) of the Crimes Act 1900 (ACT). The accused pleaded not guilty to each count. The accused had previously elected to be tried by judge alone pursuant to s 68B of the Supreme Court Act 1933 (ACT). In such a trial, I may make any finding that could have been made by a jury as to the guilt of the accused and such a finding has, for all purposes, the same effect as a verdict of a jury. My judgment in such a trial must include the principles of law applied by me and the findings of fact on which I rely. If a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceeding, I must take the warning, direction or comment into account in considering my verdict.

General principles to be applied

The Crown holds the onus of proving the accused guilty with respect to each of the charges to the standard of beyond reasonable doubt. The Crown must prove each element of the offences charged to this standard. If the Crown fails to do so, the accused must be acquitted.

The accused is presumed to be innocent of any charge until such time as the Crown establishes his guilt beyond reasonable doubt. The accused is not required to give evidence and bears no onus of proof in this trial.

I may only draw an inference against the accused if it is the only inference that may rationally and reasonably be drawn from the circumstances.

I must assess the reliability of each witness. I must consider the evidence dispassionately and rationally. I may also apply my common sense. I must bring an open and unbiased mind to the evidence in making findings of fact. It is for me to determine what evidence is truthful and reliable. I may accept some of the evidence of a particular witness but also reject other aspects of the evidence of the same witness.

Specific principles to be applied

Expert evidence

Expert evidence was led by the Crown. Unlike other witnesses, a witness with such a specialised knowledge may express an opinion on matters within his or her particular area of expertise. I must have regard to the reliability and accuracy of the material which the expert used to reach his or her opinion, and the skill and experience the expert brought to bear in formulating the opinion given.

Pre-recorded evidence

The evidence-in-chief of the complainant, TH, was primarily given by way of recorded evidence-in-chief interviews between the complainant and police. This is a standard practice permitted by the laws of this Territory. I must not draw any inference against the accused because the evidence was given in this way. I must not give the evidence any greater or lesser weight because it was given in this way. I should assess the evidence in the same way as I would assess the evidence given by any other witness.

Audiovisual link evidence

Several witnesses gave evidence by way of audiovisual link, including the complainant. This is also a standard practice permitted by the laws of this Territory. I must not draw any inference against the accused because the evidence was given in this way. I must not give the evidence any greater or lesser weight because it was given in this way. I should assess the evidence in the same way as I would assess the evidence of any other witness.

Presence of support person

During the second evidence-in-chief interview with the complainant, a support person was present in the interview room with the complainant whilst the interview took place. Cross-examination of the complainant was by audiovisual link and was pre-recorded. A support person was also present with the complainant in the remote witness room during cross-examination. This is a standard practice permitted by the laws of this Territory. I must not draw any inference against the accused because of the presence of this support person. I must not give the evidence any greater or lesser weight because of the presence of this support person. I should assess the evidence in the same way as I would assess the evidence of any other witness.

Consciousness of guilt

The Crown alleged that the accused told a number of lies in an interview in which he participated with police. The Crown also asserts that the accused told lies in the course of the evidence which he gave during the trial. The Crown asserts that a number of these lies evidence a consciousness of guilt on the part of the accused. I direct myself that in order for a statement made by the accused to be a lie, I must be satisfied not only that the statement was untrue but also that the accused knew that it was untrue when he made it. In addition, in order to use a lie by the accused as some evidence of his guilt, I must be satisfied that the statement which amounts to a lie relates to an issue that is relevant to an offence which the Crown alleges the accused committed. It must relate to some significant circumstance or event connected with that alleged offence. Secondly, I must be satisfied that the reason the accused told the lie is because he feared that telling the truth might reveal his guilt in respect of one or more of the charges he now faces.

I remind myself that people do not always act rationally and that conduct of this sort, that is, telling a lie, may sometimes be explained in other ways. A person may have a reason for lying quite apart from trying to conceal their guilt. For example, a lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence unrelated to the offence.

If I am satisfied that the accused told a lie for some reason other than to avoid being implicated in the commission of an offence for which he is now on trial, then it cannot be used as evidence of his guilt. I may, however, take such a lie into account in determining the accused’s credibility regarding the statements that he made during his interview with the police and in his evidence during the trial.

Tendency

The Crown alleged that the accused had a tendency to have a sexual interest in TH, and a tendency to act on the sexual interest by engaging in sexual activity with TH. The Crown based its case regarding tendency on the evidence led with respect to each of the counts on the indictment. If I were to be satisfied that the accused engaged in the conduct alleged with regard to one or more of the charges against him, I would need to consider on the basis of this evidence whether the accused had one or more of the tendencies alleged by the Crown. If I were satisfied that he had one or more of these tendencies, I can take that fact into account in determining whether the other charges have been proved. If I am not satisfied that the accused had one or more of the tendencies alleged, then I must disregard these tendencies. I direct myself that evidence that the accused committed one or more of the offences with which he is charged can only be used as tendency evidence and cannot be used in any other way in reasoning that the accused is guilty of other charges.

Importance of the complainant’s evidence

The Crown case largely depends upon the evidence of TH. I direct myself that I must exercise caution before I convict the accused because the Crown case depends largely upon me accepting the reliability of the evidence of a single witness. Unless I am satisfied beyond reasonable doubt that TH is both an honest and accurate witness in the account that she has given, I cannot find the accused guilty. I must examine the evidence given by TH very carefully in order to satisfy myself that I can safely act upon that evidence to the high standard required in a criminal trial. If I have a doubt about the complainant’s credibility on one charge, I must consider that doubt when I come to consider the remainder of the charges.

The evidence of the accused

Although the accused was not required to give evidence in answer to the Crown case, he did in fact give evidence in this trial. If I accept his evidence, then I must acquit the accused. Even if I am not positively satisfied that the account given by the accused is reliable, I must still acquit him unless I can be satisfied that there is no reasonable possibility that his evidence is true. By giving evidence the accused did not assume any onus of proof in this trial. The onus of proof remains throughout on the Crown. I also remind myself that my task is not to determine which account of events I prefer, or even consider to be probable. I cannot convict the accused of any charge unless I am satisfied beyond reasonable doubt of his guilt of that charge.

The accused participated in a taped record of interview with police. He was not obliged to do so. The statements that he made to police in the course of that interview were not on oath and were largely self-serving. Taking those matters into account, I am entitled to give the statements made by the accused to police such weight as I think they should bear.

Evidence of good character

During the trial, evidence was given directed towards establishing that the accused is a person of good character who would not commit sexual offences against children. It is for me to determine whether the accused is a person of good character. If I am satisfied that he is a person of good character, I may take this fact into account in two ways. First, I may take it into account in determining the likelihood of the accused having committed the offences with which he is charged. Secondly, I may take it into account in determining what weight I give to his evidence.

Complaint evidence

The Crown relied upon statements made by TH to others shortly after the alleged events as complaint evidence. If I am satisfied that a complaint was made by TH to another in terms consistent with the allegation that she made in her evidence, I may use evidence of what she said as some evidence, independent of that given by the complainant, that such an assault did occur. I may also use such a complaint as supporting the complainant’s credibility in the evidence that she gave. I remind myself that any delay by the complainant in making a complaint about these alleged events does not necessarily indicate that the allegation is false. There may be good reasons why a complainant does not raise the allegation immediately following an alleged assault. In this case, the Crown says that the complainant was a child who had a strong relationship with the accused as her step-grandfather, and she did not want to see him get into trouble. I remind myself that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on more than one occasion. I also note that complaint evidence is by its nature hearsay evidence and I warn myself of the danger that this evidence may be unreliable.

The trial

The Crown opening

The Crown prosecutor gave an opening in which she explained that the accused is the father of SN who is the deceased stepfather of the complainant. The complainant’s biological mother is LF, and she has a son by her relationship with SN named C. SN died in November 2017 in Canberra. The accused is married to WN and they have another son UN. The opening by the Crown asserted:

[S]ince [TH] was very young her family would [live] between Canberra and the Gold Coast and whilst they were staying in Canberra they would often stay with the accused and with grandma [WN]. In 2017 [TH] and her family had been living with the accused in Canberra. Later in that same year they moved to the Gold Coast.
[LF] and [SN] went through some relationship issues which saw [SN] move to Canberra alone during the second half of 2017. A few days after moving to Canberra, [SN] passed away in November 2017. [TH], her mother [LF] and her brother, [C] all flew from the Gold Coast to Canberra for the funeral. They stayed with the accused and grandma [WN] when they were in Canberra for the funeral.
The following month in December 2017 [TH], [LF] and [C] were in Canberra to spend Christmas with the accused and grandma [WN]. In early January 2018 [TH], [LF] and [C] all flew back to the Gold Coast. Between November 2017 and early January 2018 when [TH] was in Canberra staying with the accused and grandma [WN], the accused would often take [TH] to work with him. The accused, at that time, worked as a building manager at [an apartment complex in Barton, ACT (the complex)].
The [complex] is made up of six buildings, but for the present purposes it is buildings 45 and 47 along [redacted] which are the most relevant. The accused would often take [TH] alone with him to work at the complex. The accused’s office at the complex was located in the gym room. The gym is located near the rear of buildings 45 and 47. Underneath both buildings 45 and 47 is a large shared underground car park space.
When [TH] went to work with the accused she would spend time in his office, but apart from his office the Crown says the accused would also take [TH] to other places around the apartment complex including taking her into a private resident’s apartment, taking her down to the underground car park and taking her into the storerooms in the underground car park.
The accused had key access to all the underground storerooms including exclusive access to some of the storerooms. It was in the underground storerooms where the accused is alleged to have engaged in [inappropriate] sexual activities with [TH] which makes up the first three counts on the indictment.
Apart from the underground storerooms, the accused is also alleged to have engaged in inappropriate sexual activities with [TH] in a private resident’s apartment, [QL’s] apartment, and these make up the last three counts on the indictment. When [QL] was away, the accused had access to her apartment to look after it as the building manager.

The Crown prosecutor then went on to describe the allegations with regard to each of the counts on the indictment:

Count [1] on the indictment charges the accused with having sexual intercourse with [TH] on a day between November 2017 and early January 2018. The accused is said to have taken [TH] to his work at the apartment complex. He took her into a locked underground storeroom. They were alone together. The accused got [TH] to stand on some paint tins which were inside the storeroom. He removed [TH’s] underwear and he licked her vagina, performing cunnilingus on her.
Charge 2 on the indictment charges the accused with having sexual intercourse with [TH] on another occasion between November 2017 and early January 2018. Here, the accused is said to have taken [TH] into a locked underground storeroom. They were alone together. He sat on the ground whilst he got [TH] to stand in front of him. He removed [TH’s] underwear and he licked her vagina, performing cunnilingus on her. Afterwards, they both went Christmas shopping where the accused bought [TH] some toys.
Count 3 charges the accused with having sexual intercourse with [TH] by taking her into a locked underground storeroom. Again, they were alone together. He unzipped his pants, he took out his penis and he asked [TH] to suck his penis and she performed fellatio on him. [TH] sucked the accused’s penis for a short time but then she stopped because it was hurting her mouth. She saw paint tins inside the storeroom and some of her old clothes were also stored there.
………
Count 4 charges the accused with having sexual intercourse with [TH] when he took [TH] into [QL’s] apartment when [QL] was away. The accused and [TH] were both alone in the apartment. In the lounge room, the accused took [TH’s] clothes off and he licked her vagina.
Count 5 is another occasion where the accused is charged with having sexual intercourse with [TH] inside [QL’s] apartment when [QL] was away. Again, they were alone together inside the apartment. The accused took [TH] into the main bathroom and he got [TH] to suck his penis until he ejaculated. [TH] described seeing, feeling and tasting white stuff coming out of the accused’s penis, which she said was disgusting and it made her feel like vomiting.
The final count, count 6, is another occasion that the accused is charged with having sexual intercourse with [TH] when he took her into [QL’s] unit whilst [QL] was away. They were both alone. They both laid down on the couch and the accused licked [TH’s] vagina. The accused then used a camera to try to record what they were doing. Afterwards, the accused went to [QL’s] fridge and took some chocolate.

The evidence

(i) TH’s first evidence-in-chief interview

TH participated in an interview with the Queensland police on 25 January 2018. At that time she was 11 years old. When asked what she had come to speak to police about that day, TH said:

Um.. my grandad is doing unappropriate (sic) things to me and he’s.. he licks my private and he did it all on video on my dads camera and he um.. he like.. he wanted me to do things to him too.. to suck his private and he did it at [QL] [and] at work.. at [the complex] and sometimes in the storeroom and that’s all.

The police interviewer asked TH about the last time that “something happened”. TH said in response “[u]m.. last day that we were at Canberra.. we left on the aeroplane”. TH said that she thought that this was “a month ago or two”. She was asked to tell police everything that happened and she said “[h]e.. he used to lick my private.. and he like… he wanted me to suck his private too”. The police interviewer told TH that if there were “separate times” they would talk about each of them separately. He then asked TH, with regard to her last answer, “[d]id all that happen on the last time[?]” TH responded, “[t]he day before the last time”. The interviewer then said “[o]k, so tell me everything about the very last time and then we’ll talk about the day before after that one…”. TH responded, “[u]m so my grandad was at work and he picked us up and brang (sic) us to the airport…we got our luggage out and walked to the plane”. The interviewer then asked TH whether anything “inappropriate” happened that day, and she replied no.

The interviewer then said to TH that she had mentioned that something had happened the day before she went on the plane, and he asked her to tell him what had happened the day before. The following conversation then occurred:

[TH]: The inappropriate.
[Police interviewer]: Yep.
[TH]: Um so he used to lick my private.
[Police interviewer]: Mm.
[TH]: And he likes me sucking his thing.. and then we came out and went home.
[Police interviewer]: Ok so whereabouts was this.. where did this happen[?]
[TH]: Um at a friends that he was looking after and um storeroom..
[Police interviewer]: Mm so
[TH]: To go get things from the shop.

TH was then asked to tell everything that she could remember about the day before she returned on the plane and she responded, “[u]m so I was with grandad and I went to work with him he’s a manager.. and he.. he was a very.. sometimes he was very angry he used to grab poles and like almost broke it.. he um.. I.. I used to wait in the office for him to come back when.. he came back.. when he came back he went again and he’d been drinking and mum asked him to stop but he hasn’t stopped”. TH went on to say that she was usually bored in the office but sometimes she would go out to the gardens and have a look at the gardens, and she did not know where “grandad goes”. When asked what else happened the day when she was at her grandad’s work, TH responded, “[u]m.. he was usually out of the office”. She then went on to say “[b]ut after he used to take me to the storeroom so I could pick something and um.. then we went and got lunch and came back then went home”.

The police interviewer then asked TH whether anything inappropriate had happened that day, to which TH replied “[y]es”. TH was asked about what had happened and she said “[u]m when we went in the storeroom he used to um asked me.. and he did it.. he um licked my private in the storeroom”. She went on to say “[h]e.. he um.. he didn’t ask me but he just did it.. he used to make me stand on the paints … [a]nd then he pulled my pants down … [a]nd started to lick it”. The police interviewer then asked TH “how long he was licking it”, to which she replied “[s]ometimes an hour”. The police interviewer was clearly concerned to ensure that TH was speaking about the particular occasion when something inappropriate had happened, said to have been the day before TH flew back to Queensland. The police interviewer asked her how long it had gone on for on that occasion, and TH responded “[u]m about one hour”. TH said that after this occurred “we got our stuff and went home”.

TH said that on this last occasion they went to the complex when it was light, and stayed for the whole day. She said that she went to the storeroom in the basement in the afternoon. She said that the door to the storeroom was locked and that the accused had a key and unlocked the door. She said that the storeroom had “loads of junk in it”, “like broken DVD’s” and “my old clothes because this was his storeroom”. TH said that she was wearing a skirt that day. The police interviewer reminded TH that TH had earlier said that the accused had pulled down her pants. The interviewer then asked TH what the accused actually pulled down, and TH responded “[m]y skirt and my knickers”. She said that these were taken down completely onto the ground. TH said that the other word for her “private” was vagina. She said that the accused licked it with his tongue “near the hole”. When asked what the accused was doing while this was happening, TH said that his hands were moving her legs. In clarification of that answer, she said “on a different step of paint”. The police interviewer asked TH what happened when this finished and she said that she grabbed her pants and “put them on and then we went back out of the storeroom and his moustache usually goes up and then he locks the storeroom and we go back to the office”. When asked what she meant by saying “his moustache usually goes up”, TH responded “[a]fter he licks my vagina… [i]t goes up”.

The police interviewer then asked TH to describe another time that TH remembered when something inappropriate happened. TH initially responded “[u]m…I forgot”. After some further questioning, TH said “[t]he week before last time um.. we went to work.. not to work.. he.. he went.. we just went to the storeroom and he pulled my pants down and um.. started licking my vagina”. TH said that the accused was not working that day and that this occurred in the morning. She said that this occurred about 1:00 am in the morning. When TH was asked “how come that early”, she responded “cause he didn’t want anyone spotting us”. TH said that they travelled in the accused’s car and went to the storeroom. After they got out of the storeroom, they went to the mall. She said that in the storeroom the accused licked her vagina “for about a second (unintelligible) 8 seconds and then I put my stuff back on”. She said that the accused took off her dress and knickers. The police interviewer asked what she was doing when the accused was “doing that” and TH responded “doing really weird faces”. On further questioning TH said that she was standing up, but on this occasion she was not standing on anything. She said that the accused was sitting on the ground. When asked if there was any reason why the accused “stopped after 8 seconds” TH responded “because he had something that he needed to do”. TH said that he did not tell her what he needed to do. TH said that after this occurred, they went to a shopping centre and bought Christmas presents for her and C.

TH was then asked whether she could recall another occasion when something inappropriate happened and she answered “no”. TH was then reminded that she had said at the beginning of the interview that the accused wanted her to suck his privates. She was asked whether there was a time when this happened and she responded “yes”. She was then asked what day this happened, and responded “Thursday”. She was then asked how she knew that it was a Thursday and she responded “I don’t know.. not really good at that”. She said that this event occurred shortly before the Christmas shopping event she had previously described. She said that she had gone to work with the accused that day and the event occurred when it was almost time to go home. The following then occurred:

[Police interviewer]: Ok so.. tell me what happened.
[TH]: Um.. what do you mean?
[Police interviewer]: Ok so you went to work with him um.. and you said something happened was almost time to go home.. what were you doing the rest of the day?”
[TH]: Um.. sucking his private.

The police interviewer asked TH to describe everything that happened from when she first went to work with the accused that “Thursday”. TH said that it was at the same building and agreed in answer to a leading question that it was in the morning that she went there. She was then asked to again tell the police interviewer everything that happened that day at work and TH responded “[u]m… I don’t know”. TH was then asked to tell the police interviewer about what inappropriate thing happened that day and she responded “[u]m I was sucking his private”. She said that this occurred “in the storeroom”. TH said that when they went to the storeroom the accused unlocked it, turned the lights on and locked the door. He then laid down before TH began “sucking his private”. TH said that the accused asked her “can you please suck my doodle[?]” TH said that she said “yes”. She said that his “doodle” was big and very long and “he has big balls”. She said that his doodle did not change shape at any stage. When asked what shape the accused’s “doodle” was when he first pulled down his pants, TH responded “a bit blocky”. TH said that another name for a “doodle” is penis. She said that the accused’s penis was in her mouth for about one second and then they left the storeroom and went to the office. She said that they stopped because she asked if they could stop. TH said that she had asked the accused if she could stop because it was hurting her mouth. They then returned to the accused’s office and he did some work on his computer before they went home.

TH was then asked whether anything else happened anywhere beside the storeroom, and she responded “no”. She was then asked again whether inappropriate things had happened anywhere else and she again responded “no”. She was asked whether she could recall another time when something happened, and she again responded “no”. TH told the police interviewer that she had told her cousins about what had happened and had also told her best friend N.

(ii) TH’s second evidence-in-chief interview

TH participated in a second interview with members of the Australian Federal Police (AFP) in Canberra on 4 March 2019. At that time she was 12 years old. On this occasion the police interviewer asked her if she could remember the first time that the accused had done something inappropriate. TH responded “At [QL’s]”. TH went on to say that the accused “licked …my thing.” The police interviewer then asked TH to tell him as much as she could about that day at QL’s, and TH responded “[w]ell, he did it pretty much every day. He went into the room, did what he did, video recorded it and, um – not much else to say”. TH said that sometimes she would stay in QL’s room and watch TV while the accused “goes off and does his thing”. The police interviewer attempted to draw TH back to the first occasion on which it was alleged that something inappropriate had happened in QL’s room, and asked TH where she was on the first occasion that it occurred. TH responded “[l]aying on the couch”. TH was asked what happened when she and the accused entered the room and she responded “[h]e would take my clothes off”. TH said that this occurred in the lounge room at QL’s apartment. TH said that when the accused took her clothes off, she did not say anything because she was too scared to. She said that after this occurred he licked her “thing”, after which she would get her clothes back on and then go to the office. She said that by “thing” she meant her vagina. TH said that the accused stopped because she told him to, and that she was “allowed to tell him when I wanted to stop”. She said sometimes she was too scared to and other times she was not. When she told him to stop he said “[o]h sure. Sure”. She then put her clothes back on and they left. Afterwards they went to get lunch together. Later they went home, and she played with her brother. She did not tell anybody what happened that day because she was too scared to and thought the accused would hurt her. She said that she thought this because the accused told her not to tell anyone. She had, however, told her cousins and her best friend N.

TH said that to get to QL’s apartment you have to go up in the elevator. She said that they would catch the elevator from the underground carpark when they went to QL’s apartment. On this first occasion that TH was describing, she said that she was on the couch laying down and the accused was also laying down. She said that she thought that the couch was “one of those ones that go out … like a bed”. She went on to say “[s]ometimes I would be laying on the ground here and he would be laying on the ground too”. TH said that the accused did not use a camera that day, but on the last day. TH was then asked to tell the police interviewer “[e]verything about that last day”. She responded “[t]his is – oh. This is when – before we left, like, to go back to Queensland… He took a video of us doing it. And then he – um, it’s not much. I was just there. He took a video and saved it. He’s probably hid the camera”. TH then went on to suggest that the accused was hiding the camera in a cupboard in his office.

The police interviewer asked TH to tell him everything that she had done “that last day” before they went to QL’s room. To that, TH responded “[d]o you want me to draw a picture of his office?” After having done so, TH agreed with the leading question put to her by the police interviewer that she had been in the accused’s office that day. She said that she was playing in the office whilst the accused did his job. She said that the accused “let me – he lets me leave the office. Sometimes I want to go see the gardens… And then sometimes he would let me in the gym”. TH said that after being in the accused’s office they went to QL’s apartment and then back to the office. She said that “I would watch people. I was really creepy. There – because there’s cameras around the place and he would let me watch them”. With regard to the accused, TH said “[h]e would let me play with my toys. He let me go out. He wouldn’t let me go too far. He wouldn’t let me go to the car and – and to the gym”. TH said that the incident which happened in QL’s room happened in the afternoon. She said “[a]nd I laid down on the couch and he lay down on the couch. And we did what we did. And we stopped because I didn’t want to do any – I didn’t like it. And I told him to stop. Then he opened the fridge or took some chocolate”. She said that she believed that the chocolate “had wine in it”.

When asked by the police interviewer why she thought they were going to QL’s room, TH responded “[b]ecause he – he had nowhere else to do it, so - - - we went to [QL’s] room”. When asked how she knew what they were going to do in QL’s room, TH said “[b]ecause he asked me pretty much. I said, ‘Whatever.’ I didn’t really care, but I was scared too to not go”. TH said that the accused asked her “[d]o you want to go to [QL’s] room?” And she said “[y]eah”. She said that she was “‘thinking about calling the cops’, then I thought ‘No, I would rather tell someone than - - -’”. The police interviewer asked TH to tell him about “the last time” when the accused used a camera, and TH said “[t]he last time I saw him… We left to go back to Queensland because the funeral was over and we felt like going back home”.

When TH was asked what happened with the camera, she responded “[h]e took a video of it. Um, he did it because when I left he would miss me and he would kind of lick the camera. I thought it was weird. And then I’m fine with it. And so I was young. I didn’t know what was right or wrong. Yeah, I did, but I didn’t know very well what he was doing”. TH went on to say that the accused “only licked the camera when I left to go to Queensland”. When asked how she knew that, TH said “[b]ecause he – he – I was with him most of the time, so I know if he was or not. And then when I left, I think he was doing it because he – I don’t know. I’m trying to protect my cousins because they’re little and if they grow up and he starts doing that to them, I’m going to be angry because they’re my favourite cousins. They’re not my real cousins, but I love them”. The police interviewer asked TH again how she knew that the accused was licking the camera and asked whether she had seen him do it, to which she said “[n]o”. TH went on to say that she didn’t know if the accused was licking the camera, but she knew he was “because I had a feeling that he was … [a]nd been having bad dreams about them too that I don’t like”.

TH said that the inappropriate behaviour continued for an hour, before the accused needed to go downstairs.

TH was asked whether anything else inappropriate happened apart from the other two occasions. TH said that the accused told her to “suck his dick” and she did that in the bathroom at QL’s house. She said that “this white stuff came out … Quite disgusting … I was pretty much vomiting that day”. TH said that she told the accused that she wanted to go now, and they went back down to his office. She said that that was the only occasion that the accused made her suck his penis.

TH said that the accused “wanted a different relationship” with her. She went on to say that the accused “started all this stuff and I didn’t like it. And he wanted to start a different relationship with me. Because he said he would break up with my grandma to come to me. And I said, ‘[w]hy would you do that? She’s been your wife for years’”.

TH said that the accused would take her shopping and buy her whatever she wanted. TH said that whilst the accused would buy things for her brother C, he bought her much more. She said that the accused bought her those things because he wanted her to be quiet about what had happened because he would get in trouble and would go to gaol.

TH told the police interviewer that she had continued to communicate with the accused while she was in Queensland, just to talk about how she was at school and how much she missed him. TH said she texted the accused and would say to him “[h]i. I love you”, and he would respond “I love you too”. TH went on to say “[h]e said he would leave – he would marry – well, he would have me as his girlfriend - - -instead of grandma. That made me upset because if we didn’t have grandma, it would be drama for me. Like, because she bought me clothes and I loved her. But she decided to go with him and go through court with him”.

The police interviewer said to TH that TH had previously said that the accused “did it pretty much every day”, and asked her what she meant by that. The following then occurred:

[TH]: Um, he didn’t video me every day. He only videoed me once.
[Police interviewer]: Yeah.
[TH]: Um, I don’t know what else to really tell.
[Police interviewer]: So on the days you went to work with your grandad - - -
[TH]: Yeah.
[Police interviewer]: - - - did he - - -
[TH]: The same place.
[Police interviewer]: Sorry?
[TH]: He did it at the same place.
[Police interviewer]: Did it at the same place? Every time you went to work with him, did he lick your thing?
[TH]: Not every. There’s one day that he didn’t.
[Police interviewer]: Okay.
[TH]: Because – I don’t know why. But I just didn’t. And he didn’t want to either.
[Police interviewer]: So on [sic] day he didn’t. Tell me about the other days. What happened?
[TH]: He did the same thing and in the same place in [QL’s] room.
…
[Police interviewer]: So just to clarify, did your grandad lick your thing when you went to work with him except on the one day?
[TH]: Yeah.

The police interviewer asked TH whether she had ever had a shower in QL’s place and TH responded “[y]es…once because I peed myself”. TH told the interviewer that her hair was dyed at the time of the interview, but she could not remember whether she had coloured hair when she came to Canberra for Christmas.

(iii) Further examination-in-chief of TH

Before TH was cross-examined by counsel then appearing for the accused, she was asked some further questions in evidence-in-chief by the Crown prosecutor. TH was asked what she had meant by “inappropriate things” being done to her by the accused when she spoke to the police. She responded “[h]e licked my vagina”. She denied that he did anything else. She was then asked where these inappropriate things had happened and she said “[i]n his store locker”. She denied that it happened anywhere else at the accused’s workplace. After being asked by the prosecutor whether she knew a person by the name of QL, TH said that inappropriate things would also happen at QL’s house. TH was asked “[t]hat time you were visiting Canberra at Christmas would you go to your grandad’s job?” TH responded “[n]o. It’s when we lived down there.”

TH said that she would sometimes make videos on the phone that had been given to her by the accused. She also had conversations with the accused. She said that the first person that she had told about these alleged events was her friend N, and then she told her cousins T and W. She denied having told her auntie NB about these events.

(iv) Cross-examination of TH

TH was taken to her first evidence-in-chief interview with the police in Queensland. She said that she remembered that interview. She agreed that she had said that the inappropriate things only happened to her in the storeroom. She said that that was true, and she had no doubt about it. TH said that she was unable to recall the second evidence-in-chief interview with the police in Canberra. TH said that she had been diagnosed with ADHD and had a learning difficulty. This affected her memory.

TH agreed that while she was living in Canberra she did not get on well with her grandmother. She did not like her grandmother and did not want to do what her grandmother asked her to do. TH said that she could not remember regularly talking about matters to do with sex at that time. She also said that she could not remember having said on a regular basis to the accused, SN and UN things like “[d]o you want to have sex with me?” She also could not remember regularly pulling down her underwear in front of other people. TH subsequently denied the suggestion that since about six years of age she had been constantly talking about matters to do with sex. TH denied that she had been lying when she told her cousins about what had happened with her grandfather. She also denied the suggestion that the accused had not engaged in any of the sexual acts that she had described in her evidence-in-chief interviews.

(v) The evidence of LF

LF is the mother of TH. LF met SN on the Gold Coast in Queensland, and a few months later they moved to Canberra with TH and lived with the accused and his wife WN. In November 2012 a child, C, was born of that relationship. LF described the accused as very loving towards TH and said that he would take her with him when he went to work and he would take her out shopping. LF, SN, TH and C moved back Queensland about one or two months after C was born.

Sometime after they returned to the Gold Coast, the accused and WN came to live with them at the Gold Coast. Sometime after that, WN left to return to Canberra and the accused remained with LF, SN and their family at the Gold Coast. Subsequently, the accused left and returned to Canberra.

LF, SN, TH and C then moved back to Canberra and lived with the accused and WN in a two-bedroom unit for three to six months. LF said that the accused’s relationship with TH at this time was the same as it was before. LF and her family then moved into a bigger house in Melba, ACT. They remained there for about six months before LF, TH and C returned to the Gold Coast. SN remained in Canberra. After a while, SN moved back to the Gold Coast. At that time, he had a drug problem and LF convinced him to return to Canberra. SN died on 8 November 2017, a few days after he returned to Canberra. LF, TH and C flew to Canberra and stayed with the accused and WN while waiting for SN’s funeral. After the funeral, they flew back to the Gold Coast.

On 9 December 2017, LF, TH and C flew to the ACT for Christmas with the accused and his family. They returned to Queensland on 4 January 2018. While in Canberra they stayed with the accused and WN in a two-bedroom residence. The accused and WN occupied one-bedroom, and LF and the children occupied the other bedroom. During the time they were in Canberra on this occasion, LF said that she saw TH sit on the accused’s lap and them kissing on the lips. LF said “[TH] used to always try and sit on his lap and he wouldn’t allow it, and they would kiss on the lips and I would tell them that ‘It just looks wrong, don’t do it’”. LF said that the accused was a property manager at an apartment complex. She said that TH used to go to work with the accused both on the occasion that they were in Canberra for Christmas 2017 and on the earlier occasion when they were in Canberra for SN’s funeral. She said that TH would go to work with the accused about 80 to 90 per cent of the time that he went to work.

LF said that after they returned to Queensland in January 2018, TH was “acting out” and she would text the accused which would “kind of calm her down”. LF said that when the accused stopped corresponding with TH it really upset TH and she tried to kill herself. She said that TH was not listening to her, was running away and was trying to hurt herself. In addition, she was pretending that her teddies were having sex.

LF said that she became aware of the allegations against the accused through TH’s cousins and their mother NB. NB is the niece of WN and was a good friend of LF. LF said that when she became aware of these allegations, a few weeks after she returned to Queensland, she questioned TH about whether it was true, and TH told her that the accused would “lick my thing”, pointing down to her private. LF immediately confiscated the phone that had been given to TH by the accused and read the text messages on the phone.

LF then took TH to a beach on 18 April 2018 and asked her questions about what had happened. She recorded this on her mobile phone. She said that she had recorded it because she did not want TH to have to go through reciting what had happened on multiple occasions and she thought that by recording what TH had said it may have removed the necessity for TH to recite the events to police. LF said that TH’s demeanour during that conversation was “okay”. LF said that she did nothing for a few days, but then spoke to LN, the wife of UN. Subsequently the police called LF.

After TH was initially interviewed by police in Queensland, LF asked her if there was anything else that it happened. LF said that TH said “he would make her suck on his thing and white stuff would come out”.

In cross-examination, LF accepted that the first occasion she, SN and TH moved to Canberra would have been about 2011, and that they would have stayed with the accused and WN for about seven months. In total they would have stayed in Canberra on this occasion for about 18 or 19 months. At that time, TH was about four years old.

After they moved back to the Gold Coast, there were behavioural issues with TH, and in the light of those problems and financial difficulties, LF asked the accused and WN to look after TH. LF accepted that TH came to Canberra to be cared for by the accused and WN, but was unsure of the duration of that arrangement. This was before the accused and WN moved to the Gold Coast to live with LF, SN, TH and C. LF denied the suggestion that the reason WN left the Gold Coast and returned to Canberra alone was because she had had an argument with LF. LF said that WN was having troubles with the accused. LF accepted that the accused continued to reside with her and her family for about another year after WN left.

LF agreed that she appreciated the accused taking TH to work with him because it gave her some breathing space and she was still dealing with SN’s death. She further agreed that TH kept asking to be allowed to go to work with the accused. LF denied the suggestion that TH had been given the phone at Christmas by the accused on the basis that LF would pay for the continuing credit on the phone. LF said that the accused said that he would keep buying credit for TH.

LF accepted that when SN returned to Canberra shortly before his death he had taken some of his paperwork with him, including paperwork about his finances and superannuation. LF accepted that this paperwork was something that she was keen to take possession of when she was in Canberra and that she was not pleased when she was not provided with that paperwork. She felt that she was in a difficult financial position because it was evident to her that the financial support that had once been offered by SN’s family was drying up. It was suggested to LF that she was angry with the accused because of this when she left Canberra in early 2018. LF said that she was angry with the accused, but because of his failure to pay for her flight back to Queensland as he had promised. LF accepted that the accused did in fact pay for her return flight to Queensland on 4 January 2018.

LF agreed that C was also acting out around the time that they returned to Queensland, saying “[t]hey’d just lost their dad”. LF agreed that TH had been known to tell lies in the past, “like any other child would”. She agreed that she asked TH on multiple occasions during the recorded conversation with TH whether TH was telling the truth, but said “I did what any other mother would”. It was suggested to LF that she had known TH to make serious false accusations against people in the past, and she responded “[n]ot serious”. She then accepted that TH had once alleged that she, LF, and SN had beaten up TH, and TH told people that they had done so in the past. LF said “[b]ut there is [sic] a lot of kids that do that”. LF denied the suggestion that TH had displayed sexualised behaviour from when she was four years old. LF agreed that she and SN had argued towards the end of their relationship, and that some of those arguments were about whether LF was engaging in sex work. She said that those arguments did not occur in front of TH.

LF accepted that she had told the prosecutor in evidence-in-chief that her conversation with TH at the beach, which she had recorded, took place on 18 April 2018. It was suggested to her that her expressed motive for recording the conversation, being that TH would not have to speak to the police, made no sense because TH had already been interviewed by the Queensland police about three months earlier. In response, LF said “[d]oesn’t – I don’t think I waited that long. But it – honestly, it was hard to wrap my head around that my daughter trusted someone and then I trusted someone and they did that. Plus we had the father passed away too. I’m sorry, but I had a lot on my plate”. LF denied that she had coached TH to make her allegations against the accused.

(v) The recorded conversation between LF and TH

The recording was played at the accused’s trial, and a transcription of the recording was provided as an aide memoire. After some prompting from LF about what had happened, TH said “I – he licked it a lot. I do not like saying this in public”. After again being asked what the accused did, TH said “[h]e licked it and that’s all he did. He used to put his thing on my thing”. LF continued to press TH about what had happened, and asked “[w]hat’d it feel like?” TH responded “[i]t felt nice. But his moustache really hurt. Oh, when are you gonna take me to the doctors?” LF then pressed TH about whether the accused would kiss TH “at the same time”. TH responded “[o]n the lips?... Yeah”. LF said to TH “[y]ou know that it’s not right?” and TH responded “[y]eah, I know. He used to take me in the storeroom sometimes”. LF then asked TH “[a]nd where else?” TH responded “[u]m, just the storeroom and [QL’s] house”. TH then said “[t]hat’s all the evidence I could tell you”.

(vi) The evidence of NB

NB is the niece of WN and the cousin of SN. She has identical twin daughters named T and W. At the time that NB gave evidence in 2019, her daughters were 11 years old. Her daughters told her something about TH and her grandfather, as a result of which she had a conversation with TH while LF was present. NB thought that this conversation occurred in late January or early February 2018. NB said that she had been told that TH was saying that she had had sex with her grandfather. NB gave the following evidence about this conversation:

I said, “Is this true, what the girls have said”. She said, “Yes it is” because at first she was saying – denying it. She later said that she was denying it to her mum because she – she said that she didn’t want her grandfather to get in trouble and that – yes, that it was a secret. So I asked [TH], I said, “Can you tell me” – I said – I said, “This is really serious”. I said, “Can you please tell Auntie [NB] what exactly has happened” and so she came forward and said that her grandfather had been doing inappropriate things to her. He’d – [TH] had actually just spent three weeks down in Canberra for which time she said that she – she would pretty much go to work with [the accused] every – most days but all of these events that have happened were actually at his work or in an apartment – I think it was, you know, a work colleague’s apartment that [TH] was taken to or in the storeroom at the work.

NB asked TH what the accused had done to her and TH said that the accused would lick her vagina and “that she would also perform the same act to him”. NB said that TH appeared anxious about discussing the matter, and that LF was very distraught.

In cross-examination, NB agreed that when the matter was first raised with TH, TH denied it. NB agreed that LF said, “I don’t know if it’s true or not”.

(vii) The evidence of Dr Catherine Sansum

Dr Sansum is the medical director of the Child at Risk Health Unit at The Canberra Hospital. She has a lengthy experience working with children and young people who have been the subject of sexual abuse. Dr Sansum did not interview or examine TH, but provided evidence relating to behaviours commonly found in children who have been subject to sexual abuse. Dr Sansum used the term sexual abuse as meaning any sexual activity imposed upon a child by another, including exposure to pornography. Dr Sansum said that the common pattern for disclosure of sexual abuse of children is one of delayed disclosure. There may be many reasons for that. The usual pattern tends to be disclosure over time, with some information being provided initially and further information being provided depending upon the reaction to the initial disclosure. One of the reasons a child may not immediately disclose sexual abuse is to protect the perpetrator where that person is a close family member.

Dr Sansum stated that all children engage in sexualised behaviour. Problematic sexualised behaviour occurs when this behaviour can be coercive or harmful in its nature or behaviours that are not socially acceptable. Sexual abuse is a well‑recognised cause of problematic sexualised behaviour.

In cross-examination, Dr Sansum agreed that exposure to pornography falls under the umbrella of sexual abuse. She also agreed that exposure to pornography can normalise sexual behaviour for children. Such a child may think that the behaviour shown in the pornography is normal for people in relationships. Dr Sansum also agreed that one of the reasons behind sexualised behaviour in children was exposure to pornography. Such sexualised behaviour would include talking about sex.

(viii) The evidence of Nicholas Fallon

Mr Fallon is a crime scene investigator with the AFP. On 1 May 2018 he attended the complex in Barton and conducted an examination of QL’s apartment. A number of fingerprints were located around the light switch in the main bathroom. A number of hairs were also found in the shower in the main bathroom. No semen was detected in the apartment.

(ix) The evidence of Renee Wilson

Ms Wilson is a fingerprint expert for the AFP. She examined the fingerprints that were located by Mr Fallon around the light switch of the main bathroom in QL’s apartment and determined that two of those fingerprints were from TH.

In cross-examination, Ms Wilson agreed that the finding of TH’s fingerprints indicated that her finger had come into contact with the surface on which the fingerprint was deposited, but said nothing about what was occurring at that time.

(x) The evidence of Adine Boehme

Ms Boehme is a forensic biologist employed by the AFP. She conducted a forensic examination of the hairs located by Mr Fallon in the shower of the main bathroom of QL’s apartment. There were three strands of hair in total. One was suitable for comparison, but the other two were “colourless so they were not suitable for comparison”. With regard to the hair that was suitable for comparison, there was evidence of colour treatment. Ms Boehme conducted a comparison between the hair located in the shower and a sample of TH’s hair. There was evidence of colour treatment in the sample of hair provided from TH. The comparison could not exclude TH as being the source of the hair found in the shower.

(xi) The evidence of Richard Rapson

Mr Rapson is a facilities manager employed by Raine and Horne strata management. During 2017 and 2018, he assisted to manage the complex in Barton. At that time, the accused was employed as the building manager for that complex. Buildings 45 and 47 form part of the complex. These buildings have a combined basement carpark. In the basement carpark, there are four or five storerooms, which each have locks installed. The accused had key access to all those locked storerooms. In about March 2018, Mr Rapson became aware that the locks on two of these doors had been replaced. Mr Rapson said that the accused had not sought permission to change the locks. He was not sure how long before March 2018 the locks had been changed.

Mr Rapson said that the accused would require prior permission if he wanted to store any of his personal items in these storerooms. Mr Rapson said that he had never given a direction to that effect to the accused and “there had been several cases where there was other people’s property stored under there with permission, so he would have taken over those storerooms with stuff already in them from other people. So he may have taken it as it was something that you’re allowed to do, but he didn’t ask permission, no”.

On 18 March 2018, after he had been contacted by police, Mr Rapson became aware that the accused had stored some furniture in one of the storerooms. He said that the material included a bed, a television, shelves and some memorabilia. This material was stored in a storeroom which had been “rekeyed”.

Mr Rapson said that the accused had key access to the private mailboxes in front of buildings 45 and 47. Mr Rapson had also seen the accused’s granddaughter at the apartment complex on several occasions. He said that “she came into work and sat in the manager’s office for at least a good week”. She also came to the executive committee Christmas party at one of the committee member’s apartment. The accused’s office was located in the gym area, and other than at the Christmas party, Mr Rapson never saw her outside of the gymnasium. Sometimes he saw her by herself in the accused’s office, and sometimes the accused was with her in the office.

In his evidence-in-chief, Mr Rapson said that he attended the complex virtually every day, but that he would not necessarily check in with the accused when he visited. In cross-examination, Mr Rapson expanded on this evidence by saying that sometimes he visited the complex several times a day. He accepted that on average he would spend 8 to 10 hours a week at the complex. Mr Rapson had phone contact with the accused, and the accused would always answer his phone immediately. Whenever Mr Rapson saw the accused he was always working and he considered the accused to be his best employee. The accused had previously been a plumber and would use his skills to assist residents in the complex. The accused cleaned out the storerooms in the basement of the complex when he took over the position. That was something Mr Rapson appreciated. Mr Rapson was aware that the accused had sought permission from the executive committee of the complex to bring TH with him to his workplace. This was in the context of the death of his son and TH’s stepfather, SN.

Prior to the accused commencing employment at the complex, the four basement storerooms were all accessible by a master key. Mr Rapson said that the locks had been changed on two of those storerooms. At the time that the accused commenced employment, a number of people had key access to those storerooms, including the cleaners. Mr Rapson said that he was aware that some things had gone missing from the storerooms. After Mr Rapson discovered that the storerooms had been rekeyed, the accused told him “he had placed his plumbing gear in those rooms and rekeyed it because he was afraid of who else had the general master key and I accepted that, yes, those – other people would have had access to those rooms with the general master key”. Mr Rapson agreed that it was possible that the accused had approached him prior to having the lock rekeyed, but he did not recall it.

The room in which Mr Rapson saw the accused’s furniture and other items was a room within one of the storerooms in the basement. A push bolt with a padlock on it had been placed on the door of this internal room. Mr Rapson agreed that each of the storerooms in the basement area would latch as soon as they were closed, requiring a key to again gain access. He said that the locks were such that a person could not be locked in one of the storerooms, but someone who is inside the storerooms could not block other people out.

In re-examination, Mr Rapson said that the accused did not work weekends, but he would often work outside of his rostered hours of 7:30 am to 3:30 pm.

(xii) The evidence of Clinton Phillips

Mr Phillips was employed as a full-time cleaner at the complex in the second half of 2017 and the first half of 2018 when the accused was working there as the building manager. Mr Phillips had commenced working as a cleaner at the complex in January 2011. His standard working hours were Monday to Friday from 7:30 am to 3:30 pm. He did not work weekends, but would occasionally come in on public holidays. He did not work on Christmas Day. His normal work routine would require him to go to the basement beneath buildings 45 and 47 on Monday, Wednesday and Friday mornings. On Mondays, he would be in the basement between 7:30 am to 9:30 am or 10 am and on the other days from 7:30 am to about 8:30 am or 9 am.

Mr Phillips stated that buildings 47 and 45 had a joint basement carpark area which also had a number of storerooms. The largest of the storerooms had a roller door entrance. During 2017, Mr Phillips had access to that storeroom and the other two rooms within that storeroom. Within the storeroom with the roller door entrance, there was a separate storeroom constructed of plywood which had filing cabinets and other office equipment inside. In January or February 2018, Mr Phillips no longer had access to this separate plywood storeroom because it was padlocked. Apart from the storeroom with the roller door entrance, Mr Phillips said that there was another storeroom in the basement to which he had access before Christmas, but on which the lock was changed after Christmas.

Mr Phillips was aware that the accused had a young granddaughter, and he had seen her at the apartment complex. He could recall her attending the apartment complex with the accused for about two weeks prior to Christmas in 2017. Sometimes she was alone in the gym while the accused was doing his rounds, but most of the time she was with the accused in the office, or they would be walking around the grounds at the apartments. Sometimes they would go up the lifts together and go into one of the floors to do something.

When asked whether he had seen the accused and his granddaughter in the basement area, Mr Phillips said:

Every time I used to see her with [the accused] in the basement was either they were going to hop in the car around 9.30 or so, 10 o’clock, around morning tea time, to go for a drive down Kingston to get KFC takeaway, and occasionally – a few times when Pete and I was in the storeroom – we used to go in there to get a few things to do with cleaning. Sometimes me and Peter was in there for a few minutes getting some things out of there, like a ladder to fix something, and [the accused] used to come around the corner with his daughter (sic) just to get some plumbing supplies or a tool or something to fix something.

Mr Phillips said that he only saw the accused and his granddaughter in the storeroom with the roller door entrance. He said that he was aware that the accused would sometimes work outside his rostered hours, including coming in at 4 am on occasion when he could not sleep. He said that the accused had never asked him to look after his granddaughter.

In cross-examination, Mr Phillips confirmed that he had frequently seen the accused’s granddaughter at the complex for a period of two weeks prior to Christmas in 2017. After Christmas Eve in 2017, he had not seen her at that complex. He said that he had only seen the accused with his granddaughter in the storeroom with the roller door on one or two occasions, but accepted that it may have only been one occasion. On that occasion, he had been in the storeroom with the other cleaner, Peter Whiting, collecting some cleaning supplies. The roller door was open. They talked for a few minutes before leaving the storeroom. That was the only occasion on which he saw the accused’s granddaughter in a storeroom or leaving a storeroom.

Mr Phillips said that the padlock was placed on the internal plywood storeroom well after he last saw TH at the complex. He believed that the lock was placed on the door in February 2018, and before that date he had access to that room. Before the room was locked, it contained only office equipment. He had last been in the internal plywood storeroom in January 2018.

Mr Phillips agreed that when the accused started work at the complex he cleaned out the storerooms. He then started storing other people’s furniture in there. Mr Phillips agreed that the other storeroom to which he lost access in early 2018 was one that shared a common wall with the caretaker’s unit. He also agreed that prior to losing access to those storerooms, he was aware of reports of theft occurring in the basement carpark, including from the storerooms. He was also aware that the accused kept some of his plumbing supplies at the complex.

Mr Phillips said that the times when he would have needed to go to the basement to collect cleaning supplies would have been “fairly unpredictable”. He also from time to time returned the cleaning trolley to the storeroom. One of the tasks undertaken by the accused at the complex was to paint some common areas. In particular, he painted some areas in and around the lifts. It was suggested to Mr Phillips that the accused commenced this work in December 2017, but Mr Phillips was unsure.

Mr Phillips said that his observations of the interaction between the accused and TH was “[j]ust the normal average thing between the grandfather and the granddaughter”. He said that TH always seemed happy and had a smile on her face. He described the accused as a “nice, kind man”.

(xiii) The evidence of Peter Whiting

Mr Whiting was also employed as a cleaner at the complex in the second half of 2017 and the first half of 2018. He also worked Monday to Friday from 7:30 am to 3:30 pm. He believed that only one lock was changed to a basement storeroom by the accused. He described this storeroom as one in building 47 next to the bin room. Mr Whiting said that the accused told him that he was getting the lock changed so that residents could put material in there.

Mr Whiting said that in the basement area there was a storeroom with a roller door. Inside that roller door and to the right was a separate internal room which initially had no lock on it, only a latch. This subsequently changed when the accused put a padlock on that room. Mr Whiting said that the accused told him that he was setting up a bedroom so he could stay there overnight because his sister-in-law was in town and they did not get on very well together. In cross-examination, it was suggested to Mr Whiting that this had been said in a joking fashion, and he responded “[n]o, he just told me that”.

Mr Whiting said that he had seen TH at the apartment complex, usually with the accused but sometimes in the office on her own. He had seen her walking around the complex with the accused, but never without him. He said that the accused had never asked him to look after TH.

In cross-examination, Mr Whiting agreed that prior to the padlock being placed on the internal storeroom he had access to that room. He said that continued to be the situation until about February 2018.

With regard to the other storeroom described by Mr Whiting as having its lock changed by the accused, there was some confusion in his evidence about that room. To the best of my understanding, Mr Whiting ultimately agreed that this was the storeroom that had a common wall with the caretaker’s room. He agreed that this was where the accused stored his plumbing gear.

Mr Whiting confirmed that he had not seen TH wandering around the complex on her own, although sometimes he had seen her in the accused’s office on her own. From his observation, their relationship appeared to be a granddaughter/grandfather type relationship. He said that TH always appeared to be happy.

(xiv) The evidence of Daniel Craig

In May 2018, Mr Craig was a resident of a unit at [redacted] in Barton, being part of the complex. On 8 May 2018, his partner showed him a letter that had been in their letterbox that day from the AFP requesting assistance for an incident that occurred in the building at about that time. The following morning, 9 May 2018, Mr Craig and his partner were leaving the building when they saw the accused going through a number of the letterboxes at the front of the building and removing items. He recognised a number of those items as letters from the AFP similar to that which he had received the day before.

(xv) The evidence of Detective Senior Constable Sarah Harman

In March 2018, Detective Harman was attached to the sexual assault and child abuse team. On 28 March 2018 at about 1:35 pm, she attended the apartment complex in Barton in order to execute a search warrant. She was with a number of other police, and her role was that of the property officer. In the accused’s office, there was a mobile phone on the desk which was identified as the accused’s phone. Detective Senior Constable Gary French had the pin number for the phone, and used that pin number to access it. Once it was ascertained that the pin number unlocked the phone, Detective Harman then seized it. At that time, there were 50 unread messages on the phone. Some were multiple message threads that were unread. There was a message thread between the accused and TH, but this was not unread. Detective Harman later accessed the phone using specialised equipment and downloaded the message thread between the accused and TH. A copy of this message thread was tendered as an exhibit.

In cross-examination, Detective Harman agreed that if a message thread extended over multiple screens on a mobile telephone, upon opening the message thread the user of the phone would be taken to the most recent message that had been sent. If there were a large number of messages, the earlier messages may not be shown on the screen. In such a case, where the final message in the thread was read the phone would record all of the thread as having been read. In other words, the fact that the phone indicated that none of the messages were unread did not necessarily mean that all previous messages in the thread had been read.

(xvi) The evidence of Detective Acting Sergeant Gary French

During 2018 and 2019, Detective French was attached to the AFP sexual assault and child abuse team. He became the informant in a referral from Queensland police. As part of that referral, he received the evidence-in-chief interview conducted by Queensland police with TH on 25 January 2018. He subsequently obtained search warrants for the accused, his car, his house and his office at the complex. On 28 March 2018, he attended the complex to execute the search warrants. On arrival, they met Mr Rapson. He escorted them to the accused’s office. The accused was in the office when police arrived. The accused went with police to the basement area and provided them access to the basement area. The accused’s car was parked in QL’s car parking space.

Detective French was provided with a plan of the basement carpark below buildings 45 and 47. He identified three storerooms on that plan. The first, storeroom 1, was the storeroom located next to the caretaker’s unit. Detective French entered that storeroom using keys provided by the accused. The lock on the storeroom would automatically lock upon the door closing, and the door had a self-closing mechanism. Detective French said that within the storeroom there were a number of tools that were sitting on top of a cardboard box and also a number of plastic containers and boxes at the rear of the room which were found to have children’s clothes in them.

The storeroom identified as storeroom 2 by Detective French was directly across the carpark from storeroom 1. Photographs of the interior of that storeroom show a number of boxes, a bicycle, an exercise bike, a chair, metal storage shelves and a number of paint tins apparently stacked at the rear of the room.

The storeroom identified as storeroom 3 by Detective French was the large storeroom with the roller door entry, inside which was the smaller internal storeroom. The smaller internal storeroom “had been fitted out to replicate basically a bedroom”. To the left of the roller door, there was a doorway leading into another part of the storeroom in which items were stored including paint tins. The main part of storeroom 3 contained a trailer, multiple cleaning items, paint tins and other objects.

Detective French said that the accused provided him with the pin number for his mobile phone. He also recollected that LF provided him with a recording of a conversation that LF had with TH at the beach. Detective French said that LF told him that the conversation was recorded before they spoke to Queensland police.

On 27 April 2018, Detective French attended QL’s apartment and met QL. At that time QL had no hair as a result of undergoing cancer treatment. QL informed Detective French that the main bathroom had not been used since she purchased the apartment in 2006 and it had not been cleaned since that time.

On 8 May 2018, Detective French again attended the complex and delivered a number of letters from the AFP into private mailboxes. The letters sought the assistance of any persons who may have witnessed anything in the carpark basement or had dash cam footage for the period from 11 December 2017 to 4 January 2018. On 9 May 2018, he received a call from Daniel Craig, and the same night he executed a further search warrant and found a number of the letters that were delivered on 8 May 2018 in a bin in the bin room at the complex.

In cross-examination, Detective French agreed that the only letters which had been removed from the private mailboxes by the accused were those delivered to building 45. The letters that were delivered to building 47 were not touched by the accused.

Detective French agreed that storeroom 1 had children’s clothing but no paint tins. He agreed that when he first entered that storeroom the children’s clothing was not immediately visible because they were sealed in containers at the end of the room. With regard to storeroom 2, there were no clothes found in that room. Similarly, no clothes were found in storeroom 3. In storeroom 3, police located a container of Waxsol in a bedside drawer and Detective French agreed that this was earwax medication the accused referred to in his interview with police. Beside that container, there was a tube of medication, but Detective French was unable to recall the nature of that substance. No camera was found in storeroom 3, but there was a whisky bottle or flask shaped like a camera. Detective French agreed that the contents of the accused’s work computer had been searched, together with the accused’s mobile phone and WN’s laptop and that no photograph or video of the accused and TH engaging in any sexual act had been located. Detective French also agreed that a quantity of CCTV footage from the complex for the period from 1 January 2018 to 4 January 2018 had been obtained by police and nothing of relevance had been located. One of the CCTV cameras captured the area directly between the fire escape doors that lead to the gym and storeroom 3. There was no footage of the accused and TH walking through that area.

In cross-examination, Detective French agreed that the accused has no history of sexual offending or any history of dishonesty offences. He had prior convictions for drink-driving, one of which he inflicted some harm upon himself.

(xvii) Previous representations of QL

By the time the present charges came before me for trial, QL was deceased. The parties very sensibly agreed on the tender of a document setting out representations made by QL to Detective French on 27 April 2018. Those representations were:

(a)She had been away from her apartment from 17 October 2016 until 7 December 2017. She went away again on 10 December 2017 and returned 24 April 2018.
(b)While she was away from her apartment, she would always have her apartment looked after and the keys have always been down in the office since she bought the apartment.
(c)On an occasion when she returned to Canberra, the accused said to her “look, I went into your apartment, so I’ve aired everything, opened up everything”.
(d)The accused offered to repair the hot water service because he said he was a plumber and a gas fitter. He did this and didn’t charge her. She became aware that her hot water system wasn’t working because the accused told her.
(e)She returned from Melbourne to her apartment in Canberra late in the afternoon on Tuesday, 24 April 2018. She described that she came into her apartment. The showers didn’t appear to have been used at all. The door to the laundry part was open and she always closed everything. The toilets and the whole place was spotless when she left. She said “I always do because it means you just – well, that’s me, you know. It was absolutely spotless and everything. All the toilet lids were down, the place was – because I always – nice – it’s always nice to come home to a clean house.”
(f)She started looking around for a bit more and the red couch had obviously been again used and that had been used the very first time she came back when the accused had taken over. This was, she thinks, last year some time because things had been taken off the couch and the cushions had been moved.
(g)In December when she was speaking with the accused about the gas water service been broken he said to her “Oh look, my daughter – my granddaughter from Darwin comes down and she is really lovely and she loves your place and she just sits. I told her she mustn’t touch anything but she just sits here and she – and she watches television”.
(h)The couch and the things had been used before but the couch, this time in April, had been definitely used because everything was off. The boxes she had on the couch were taken off and there was a lot of dandruff on one of the cushions and the other couch had obviously been used as well. Her video player, she didn’t realise, was on as well. She normally turned everything off. She could tell the couch had been sat on “Because I have – because I have these bags as they are now on, they have been taken off and the cushions are – which I have always arranged like I have at the moment – have all slipped off – slipped down just – you know, obviously it had been sat on.”
(i)When asked if she had met or seen the accused granddaughter she stated “No”.
(j)On one occasion when the accused rang in January 2018 the accused put her onto his phone. “He goes ‘Just a moment, I’m keen. I need – I would like you to speak to my little granddaughter’, I said ‘Oh okay’. I just said ‘Oh hello.’ That’s about it. Said, ‘Hello’. ‘Oh hello’”
(k)The sunglasses had been used. They are normally always here like that and there were over there.
(l)She had to leave back to Melbourne and she left the accused with the keys and he offered to keep checking on the apartment. She assumed that the accused would flush the toilets because the accused knew the toilets dried out if they didn’t get flushed. This was in December last year.

(xviii) The text messages

The Crown tendered an 11 page document setting out part of the message thread for text messages between TH and the accused. It is fair to say that the vast majority of messages sent by both TH and the accused are affectionate but not overtly sexual. The most significant messages are those sent by TH to the accused on 11 January 2018 between 22.12.01 GMT (Greenwich Mean Time) and 22.14.02 GMT. The difference between GMT and Australian Eastern Daylight Savings Time (AEDST) is, as I understand it, plus 11 hours, meaning that these messages were sent between 9.12 am and 9.14 am AEDST on 12 January 2018. The Crown also tendered a call history showing outgoing calls from the accused’s phone. As I read the documents, the relevant chronology is set out below:

· 9.12.01 AEDST message from TH to the accused: Ring me now please

· 9.12.25 AEDST message from TH to the accused consisting of numerous smiley face emojis

· 9.13.23 AEDST message from TH to the accused: You’re my baby

· 9.13.31 AEDST message from TH to the accused: What you like my vagina

· 9.14.02 AEDST message from TH to the accused: And I would suck your dick

· 9.23.13 AEDST phone call from the accused’s phone to TH’s phone for 9 seconds

· 9.25.21 AEDST phone call from the accused’s phone to TH’s phone for 3 minutes 12 seconds

· 12.04.30 AEDST phone call from the accused’s phone to TH’s phone for 1 minute 47 seconds.

Between the texts sent by TH above and the first call from the accused’s phone to TH’s phone, three other text messages were sent by TH to the accused including one consisting of multiple emojis. Between the first and second calls made from the accused’s phone to TH’s phone, as set out in the previous paragraph, and the third call, TH sent another two messages, one of which consisted entirely of multiple apparently meaningless emojis. Further messages followed, mostly from TH but some from the accused. At 7.53.37 AEDST on 13 January 2018, TH sent the accused a text saying that she was having a rough time and asking to speak to the accused. The accused responded about ten minutes later, saying “I would be happy to talk to you about anything. Just be careful not to make up stories darling please”. At 8.27.27 AEDST, the accused texted TH saying “[d]on’t call I am working call u later”. This was the second last text message from the accused to TH, although TH continued to text the accused. At 15.14.36 AEDST on 13 January 2018, after TH had earlier sent the accused messages that she was at the beach, the accused sent his last text to TH saying “I hope you had fun at the beach and played with your brother. I love both of you and wish you were closer”.

(xix) The execution of the search warrants at the complex and at the home of the accused

The accused accompanied police during the execution of the search warrant at the complex. The first storeroom they visited was described in the recording as the storeroom of building 47. From the description of the items located in that storeroom, this appears to have been storeroom 1 as described by Detective French. The accused told police that only he had access to that room. There were four sets of keys for the room, one being in the possession of the accused and the other for being stored in his office. The accused said that TH had never been in that room, and she had no reason to enter it.

The next storeroom police entered appears to have been storeroom 2 as identified in the evidence of Detective French. The accused told police that TH would never have been in that room.

The next storeroom police entered appears to have been storeroom 3 as identified in the evidence of Detective French. In particular, police entered the internal storeroom within storeroom 3. The accused said that he was the only person who had a key to the padlock on that room. The accused told police that he set up the interior of that internal storeroom after Christmas 2017, probably at the end of January 2018. A bed was set up inside the internal storeroom which the accused said he intended to use if he had a headache or if he needed to put medication in his ear to deal with earwax. The accused said that when he used that medication he had to lie on his side for half an hour.

During the execution of the search warrant at the complex, the accused engaged in conversation with the police about his relationship with TH. He was asked about a text message that he prepared, but was not delivered to TH. This was a message which he prepared on 13 January 2018 in which he said to TH to be “careful what stories you tell people”. He then sent a follow up message in which he told TH to be “careful not to make up stories”. The following questions and answers were then recorded:

[Police]: And what stories was she making up then?
[Accused]: Oh, when she came down she – we’d be in the office and she’d pull her knickers down. I’d say “[TH], what are you doing?” And she’d pull them back up again. And then ten minutes later I’d say “What was all that about?” And then she’d say “Oh, nothing, grandad.” I’d say, “Okay, well, you know, that’s a bit odd.” Then she’d come out with this dialogue, and I’d say, “Where did you learn that?” Now, apparently there are two twins, two twin girls in Queensland that she is friends with.
[Police]: Okay
[Accused]: And all they do is watch porno movies. And I could tell because the dialogue that she was spouting was like some cheesy freaking porno film. You know, and it’s – don’t say that. It was real rubbish, it was real shit and I was really pissed. And she used to come to work with me, and then I said, “Right, you’re not coming to work with me. You continue along with that, you don’t come to work,” and I’d leave her at home. And her mum – and [LF] would tell me, “Why you left her at home?” And I said, “Well, I’m just leaving her at home today.”

Subsequently the accused accompanied police to his residence where they executed search warrants. His wife, WN, was present. WN told police that her deceased son, SN, had owned a camera which was at their house after his death. The accused said that LF had taken that camera. The following conversation occurred:

[Police]: That – on what happened that day that she said, oh, that was my – that was her camera or she was taking the camera, what can you remember?
[WN]: She – she went through – she went through the stuff when I was at work. She went through stuff to get, um, ah – she’s looking for superannuation, she’s wanting money. And so she went through these things and she got his death certificate which was only an interim one, it wasn’t the – because that doesn’t come till the coroner, you know. And so she cracked up, um, she cracked it and said, “You’ve got his death certificate here, you’ve been holding it from me.” And I said, “No it’s not, it’s an interim one,” and she put all this stuff on Facebook back to her mum and she cracked it. She is actually – LF is, um, mental health. Do you realise that?

(xix) The evidence of the accused

The accused gave evidence that he is the biological father of SN and UN. SN passed away on 8 November 2017. The accused has been married to WN for 39 years. The accused and WN have three biological grandchildren from the marriage of UN and LN. C is also their biological grandchild from the relationship of SN and LF. TH is the biological daughter of LF, and was the stepdaughter of SN.

The accused confirmed that SN, LF and TH had lived with himself and his wife for a period before the birth of C. After C’s birth, SN and the others moved back to Queensland. For a time, the accused and WN moved to Queensland and lived with SN and his family. WN later returned to Canberra by herself, with the accused following some time later. Subsequently SN and his family moved back to Canberra and lived for a time with the accused and WN, before ultimately returning to Queensland again. SN then came back to Canberra in November 2017 and died about two days later.

The accused said that during the periods that he had resided with SN and his family, or when they had resided with him, he observed the relationship between SN and LF to be “[a]ll over the place, very rocky, argumentative, oftentimes drug induced on both sides, not just one”. The accused said that these arguments were prolonged and very loud. The arguments often focused on monetary problems, because money was being spent on drugs. The accused said that SN worked as a security guard, but that LF had never worked and was receiving about $1700 a fortnight from “mental health” and was also doing some “private sex work”. The accused said that he had also heard loud and prolonged arguments between SN and LF about LF engaging in sex work. Both TH and C, the accused said, were present during these arguments.

The accused said that he attempted to give TH love and attention like a normal grandfather.

The accused said that he and his son UN paid for LF, TH and C to fly from Queensland to Canberra for SN’s funeral and to then return to Queensland. During the time that LF, TH and C were in Canberra for SN’s funeral, the accused continued to work at the complex. The accused stated that LF subsequently telephoned them and told them that LF’s parents were going away for Christmas. The accused said that he could hear C screaming in the background. LF told him “[t]he kids have gone ballistic and I can’t handle them”. The accused said that he and UN paid for LF and the children to again fly to Canberra, this time to have Christmas with the accused and his family. They arrived on 9 December 2017 and returned to Queensland very early in January 2018.

The accused testified that as part of his role as building manager at the complex he came to know many of the residents quite well. In particular, he had a special affinity for building 45, which during the execution of the search warrant he referred to as “my building”. When he commenced work at the complex, he cleared out the basement carpark storerooms. He also undertook maintenance work, including some painting around the lift foyers. He believed that he commenced that work prior to 1 January 2018.

The accused estimated that TH attended the complex with him about 11 or 12 times. He obtained the permission of the executive committee to bring her with him. When TH attended the complex, she would spend her time in the accused’s office, but may have also accompanied him around the grounds if he was unable to find someone to look after her in the office. The accused said that he was asked by QL to look after her apartment while she was away, including checking her mail. The maintenance the accused undertook in QL’s apartment included running the showers in the bathrooms in order to ensure that the gully traps did not empty allowing sewerage smells to enter the apartment. The accused said that he had previously been employed as a plumber and a gas fitter. The accused stated that he would go through QL’s mail in the apartment. He also said that TH had accompanied him to QL’s apartment on, he believed, two occasions, during which she sat on the couch and watched television. The accused also said, “obviously at one stage or another she had to use the toilet, so”. He stated that they remained in QL’s apartment for no more than ten minutes each time.

When asked whether TH went to other areas of the complex with him, the accused said “[o]nly en route to either [QL’s] apartment or sometimes I take her up to the mailboxes if she was – some days she would be constantly pesty, and say – I’d say, ‘I’m going to the mailboxes,’ and she’d say, ‘can I come, can I come, can I come’”. The accused said that he did not recall the occasion described by Mr Phillips on which Mr Phillips saw the accused and TH in the roller door storeroom (storeroom 3). He accepted that he may have gone there to pick up some plumbing tools or for some other reason.

Regarding the internal storeroom within storeroom 3, the accused said that he had only put a padlock on the door of that room in March 2018. He agreed that he had also put a slide bolt mechanism on the inside of the door for the purpose of ensuring privacy when he treated his earwax condition and also when he applied ointment to haemorrhoids. The bed which was erected in that room was only moved into the room in February 2018, having previously been stored at the accused’s home. The bed belonged to UN.

The accused agreed that during the execution of the search warrant at the complex, he told police that TH did not accompany him on his rounds of the complex. The accused said that most of the time he would get someone to look after TH while he did his rounds, but on some occasions he had to take her with him. He said it was not a matter that he had considered to be important, and it must have slipped his mind when speaking to police.

The accused testified that he purchased a mobile phone for TH as a Christmas present in 2017. He purchased a $30 voucher for the phone, but told her that after that was exhausted she would have to fund the use of the phone. The accused was taken to the messages where TH had texted him saying “[w]hat you like my vagina?” and “[a]nd I would suck your dick” and said that he could not remember reading those text messages, and if he had it would have been “a long time after”.

The accused was taken to his text message to TH where he exhorted TH “not to make up stories” and was asked what he was referring to. He said that he was unsure, but he accepted that by early January 2018 he had been made aware that TH was making allegations against him.

Regarding him taking the AFP letters from the letterboxes in front of building 45, the accused said that at that time he was still recovering from his son’s death and he had “good days and… bad days”. He accepted that what he did was stupid, but insisted that there was nothing sinister in his intent. He said he did not want the residents to question him about the content of the letter, and he also felt that his job was on the line.

The accused denied having engaged in any of the sexual activities described by TH. He further denied having had any sexual contact with her.

In cross-examination, the accused stated that he was not concerned when he heard that TH was making allegations against him because she had been prone to making up stories about sex previously, so he just ignored it. The accused said “[TH] used to say all sorts of things and we were used to that. We were hardened to that type of discussion from [TH] so we really didn’t pay it much credence”.

The accused denied having lied to police when he told them that TH had never been in the storerooms in the basement of the complex. He said that it was only after he heard Mr Phillips give evidence that it occurred to him that he may well have taken TH into one of the storerooms to collect some equipment. He also denied having lied to police when he told them that he did not take TH with him when he was doing his rounds at the complex. He said that normally he would leave her in his office, but occasionally he was obliged to take her with him. He did not think that was important when speaking to police. The accused said that most of the time that he left TH in his office there were other people in the gymnasium, such as the cleaners, who could keep an eye on her. Alternatively, TH had his phone number and she could call him from the office if there was a problem.

The accused agreed that he had taken TH to QL’s apartment. It was suggested to him that he had taken her on more than two occasions, but the accused said that he believed it was only two, but he could not be certain. He said that if TH needed to use the toilet, she used the toilet in the main bathroom. He said that he did not ask TH to wait to use a toilet outside of that apartment, because “the distance to the nearest toilet after that is quite some time”.

Regarding the removal of the AFP letters from the letterboxes in front of building 45, the accused denied that he had done so in order to protect himself. He said that he simply did not want the residents approaching him about the letters. He denied having removed the letters because of potential embarrassment.

The accused said that he and TH shared a close grandfather/granddaughter relationship. He said that he would not allow TH to sit on his lap because of injuries that he had sustained in a bad car accident which resulted in him being unable to tolerate external pressure on his legs. He was aware from the one or two occasions that TH had attempted to sit on his lap that LF did not like this to happen. The accused said that he would often go to kiss TH on the head or cheek, but she would move to kiss him on the lips. He agreed that there was video footage of him kissing TH on the lips on TH’s phone but denied that there was anything sinister in that action. He said that that was a rare occurrence. The accused denied treating TH differently to his biological grandchildren. The accused also denied telling TH not to tell anyone about his sexual activities with her because he would get into trouble.

The accused said that he would not always check his phone for messages. When he was busy he may not check his phone, and normally people would just ring until they got him. He denied being in the habit of checking the messages that TH sent him. He agreed that when TH sent him a text message at 12.03.56 AEDST on 12 January 2018 saying “[a]t that doctors”, he telephoned TH about one minute later and the call lasted for about 1 minute 47 seconds. The accused said that he must have seen the message and telephoned because he was worried whether TH or C were ill.

(xx) The evidence of WN

WN gave evidence that she has been married to the accused for nearly 40 years. They have two children, UN and the deceased SN. UN has three daughters aged six, four and three. They also have a grandson, C, through SN’s relationship with LF. TH is LF’s daughter from an earlier relationship.

WN said that TH was about four years old when she first met her. At various times since then, she has lived with TH and the other members of her family. When TH was about six years old, LF sent her to live with WN and the accused because LF could not control TH. When asked about her observations of TH’s behaviour at that time, WN said “[w]hen she – well, she’s always been a very difficult child. She didn’t understand directions. She’d be yelling and screaming, and you couldn’t even get her into the – in to, you know, shower her, or anything. She couldn’t cope with anything like that. And just always telling lies, yes”. When asked what type of lies TH would tell, WN said “[w]ell, just untruths, like, you’d say, you know did – things that happened at school. She never had any friends, and so she would make up stories about them, and you know, just continual, you know, you know, all that sort of stuff”. WN went on to say “[s]he started saying, propositioning my husband, my son [UN], ‘do you want to have sex with me, do you want to give head, do you want head?’ It’s just – we, you know, rang up, but this is what we have always had off [TH]. We don’t know any different, you know”.

WN said that when TH spoke to the accused in this way, he would respond “[o]h for Christ’s sake [TH], you don’t even know what you’re talking about, don’t talk like that”.

WN said that LF and her son SN would frequently have loud arguments about money and about TH. After SN died, LF, TH and C came to Canberra for the funeral and stayed with WN and the accused in a two-bedroom house. WN and the accused shared one bedroom, and LF and the children slept in the other bedroom. The same sleeping arrangements applied when LF and the children returned to Canberra for Christmas in 2017. WN confirmed that a quantity of clothing and furniture had been taken from their house for storage at the complex.

WN agreed that TH went to work with the accused. She said that came about because LF asked the accused to take TH to work with him. However if TH misbehaved she would be kept at home. WN said that after the death of SN, the accused would get up about 5 am and be at work by about 6 am. The latest he ever came home was “in the afternoon”. WN said that she had never been aware of the accused attending his work in the middle of the night. She said that she is a very light sleeper and she would have been aware if the accused got out of bed. WN had never seen the accused acting in a sexually inappropriate way towards TH. She confirmed that TH had been given a mobile phone at Christmas in 2017, and that the accused gave her a $30 voucher for calls. She said that the accused told TH that it was then up to her to get more credit.

In cross-examination, WN agreed that the accused and TH shared a very close bond and that they would often do things together. They would go shopping together and she would often see the accused and TH holding hands. She had sometimes seen TH sitting on her husband’s lap, and had sometimes seen them kiss. When asked whether they would kiss on the lips, she responded “[n]o, not really… [s]ometimes she might try to, yes, like kids do, yes”. She said sometimes when TH was sitting on the accused’s lap, he would tell her to “go and sit over there” if it was uncomfortable. But sometimes he allowed it to happen.

WN agreed that she did not get on very well with LF. She said “[LF] has got a lot of faces… [w]hat you see is not what you get”. When it was suggested to WN that she did not like TH either, she said “I looked after her for eight years, so I didn’t – she was – she was a hard little person to get along with, but I didn’t dislike her, no. I did look after her for eight years, yes”. WN said that she may have described TH to her husband as a “dirty, evil little bitch”. WN said “[s]ometimes I probably get cranky at her, at other times I did think she was an evil little girl, yes”.

WN agreed that in early January 2018 she heard something about what TH was saying about the accused. WN assumed that this was just “the usual” from TH, and that nothing would come of it.

(xxi) The evidence of UN

UN is the son of the accused and WN and the brother of SN. He has three daughters. He first met TH when she was about two years old. He then had contact with her sporadically over the next seven years approximately. He described TH as “a very odd little girl”. He went on to say that “[a]fter having three daughters and seeing normal mannerisms and behaviours and things like that, I was aware of [TH] having very strange tendencies”. UN then described those tendencies: “[a] lot of sexual innuendos, constantly watching porn on her mother’s phone, just odd sexual advances from a minor, things of that description”.

UN said that he had observed TH watching pornographic movies on LF’s phone from when she was about seven or eight years old. He also described an occasion on which TH had asked him for sex when she was about six or seven years old. He said that there were other occasions when this occurred, and that he was aware that she had also propositioned the accused and SN for sex. UN said that he had never seen the accused act in a sexually inappropriate manner towards TH. He had also never seen the accused act in a sexually inappropriate way towards his daughters.

In cross-examination, UN said that the accused definitely did not have a closer attachment to TH than to UN’s children. He said that he had not seen TH sitting on the lap of the accused and had not seen the accused kissing TH on the lips.

In early January 2018, UN said that he became aware through his wife that LF was thinking of making some accusations against either the accused or himself. He had no idea what those accusations were. It was suggested to UN that he did not have a very good relationship with LF, and he responded “[LF] is a very, very cunning, evil person”.

Consideration

There can be no doubt that TH is a critical witness in the Crown case. There is evidence that supports her evidence that she had been in one or more of the basement storerooms and in QL’s apartment at the complex where these offences are alleged to have occurred, but TH provides the only evidence of any alleged sexual activity on the part of the accused. I must therefore scrutinise her evidence carefully.

In assessing whether I can convict the accused based on TH’s evidence, I take into account that TH has been known to make false accusations in the past. LF gave evidence that TH had previously made fake accusations that she and SN had assaulted TH. There was also evidence from WN that TH had a habit of telling lies. It would not be unusual for a young child to lie, but I do consider it unusual that she would lie about being assaulted by her mother and stepfather.

It was suggested that TH may have been coached in her accusations by her mother, LF. The Crown made lengthy submissions why I should be satisfied this had not occurred. The issue is one of whether TH had a motive to lie, in this case the motive being to please her mother who had a motive to dislike the accused and WN based on LF’s belief that the accused and WN were attempting to frustrate LF’s attempts to benefit from any insurance or superannuation held by SN at the time of his death. While I cannot be positively satisfied that TH had such a motive, nor can I dismiss it entirely. The accused does not have to establish that TH had a motive to tell lies about him. If there is a possible, albeit unlikely motive, it is a matter to be taken into account.

The complainant’s version of events in the first evidence-in-chief interview was difficult to follow, in part because the police interview chose to start with the last event that the complainant could recall and then work backwards. Some of the answers to questions put to the complainant were apparently unconnected to the question posed. In addition, the complainant frequently answered questions about specific events in a manner that suggested that she was referring to conduct the accused usually engaged in, for example see the statements made by TH at [26] above. This may be simply a manner of speech adopted by TH, but it may reveal an inability on the part of TH to provide detail regarding particular alleged events consistent with her evidence being made up. I accept that the complainant was only 11 years old at the time of the first interview, but in fairness to the accused these matters cannot simply be ignored.

In the first evidence-in-chief interview, TH said that the last time the accused did anything inappropriate to her was the day before she flew back to the Gold Coast from Canberra. In the context of statements made by TH in the course of that interview, this must be a reference to the occasion when she returned to the Gold Coast in January 2018. The evidence is that she flew to the Gold Coast on 4 January 2018, so the event which TH was describing as “the last time”, must have occurred on 3 January 2018. TH said that the accused made her stand on paint tins in a storeroom and licked her vagina for about an hour. The chronology of events of which TH spoke in her second evidence-in-chief interview is unclear. In that interview she appears to refer to three events that occurred in QL’s apartment, but it is not clear whether she is referring to events that allegedly occurred when she was in Canberra for SN’s funeral or for Christmas 2017. At Q.264 of the second interview, TH appears to suggest that the occasion when the accused allegedly videoed himself sexually assaulting TH was the last time that TH saw the accused. This would suggest that she was speaking of January 2018. If that were the case, her statement about the incident does not sit well with her statements in the first interview. In the first interview, TH said that the events occurred in a storeroom, while in the second she said they occurred in QL’s apartment.

In her second evidence-in-chief interview, TH said that the accused took her to QL’s room to assault her because “he had nowhere else to do it…”. This statement does not sit well with TH’s other evidence that the accused was also assaulting her at about the same time in a storeroom or storerooms in the basement carpark. Indeed, when one considers that the accused had unrestricted access to QL’s apartment, it would seem improbable that he would have assaulted TH as she said in the storerooms. The evidence establishes that during the periods that TH was in Canberra, a number of people, including the cleaners, had access to the storerooms. It was not until after TH returned to Queensland on the last occasion in January 2018 that the accused changed the locks on the storerooms. The accused had sole access to QL’s apartment, meaning that there was little if any risk of the accused being discovered while assaulting TH. On the other hand, the risk of the accused being discovered assaulting TH in a storeroom, while not large, was certainly greater.

The accused is charged with two offences involving TH performing fellatio on him, being Counts 3 and 5 on the indictment. In her second evidence-in-chief interview, however, TH stated that this only occurred once.

In addition, during examination-in-chief on 17 July 2019, TH was asked what she meant when she said that the accused “did inappropriate things”, and she replied, “[h]e licked my vagina”. She was then asked “[d]id he do anything else?” and she replied “[n]o”.

I also note that the recording made by LF of the conversation with TH at the beach includes no allegation by TH that she performed fellatio on the accused. In fact, TH said “[h]e licked it and that’s all he did. He used to put his thing on my thing”. Not only is there no allegation of fellatio, the allegation that the accused put his “thing” (presumably his penis) on TH’s thing (presumably her vagina) is not made in either evidence-in-chief interview and is not reflected in any charge against the accused.

Some aspects of the evidence given by TH were strange, perhaps even bizarre. For example, the evidence she gave about the accused licking the camera (see [36] above) simply made no rational sense.

As will be apparent from the above, the two evidence-in-chief interviews allege offending in two quite separate locations. In the first interview, TH makes allegations that she was assaulted in a storeroom or storerooms at the complex. In the first interview, TH is specifically asked on two occasions whether “anything else” or “any inappropriate things” happened anywhere else and she responded “[n]o” to each such question. This does not sit well with the context of the second interview in which she describes in some detail offending said to have occurred at about the same time in QL’s apartment.

In the second interview, TH went so far as to allege that the accused performed cunnilingus on her on every day that she accompanied him to work, except one. She said that this always occurred in QL’s apartment. This would mean, of necessity, that some of the offences alleged to have occurred in a storeroom occurred on the same day that the accused engaged in similar conduct towards TH in QL’s apartment. One may well ask why the accused would have run the risk of exposure by assaulting TH in a storeroom when he not only could, but on TH’s evidence did, engage in the same conduct on the same day in QL’s apartment.

Another unusual aspect of TH’s evidence concerned her description of the events underpinning Count 2 in the first interview. TH was asked what she was doing while she alleged the accused performed cunnilingus on her, and she responded “[u]m…doing really weird faces”. I agree with the submission by the accused that it is unlikely that TH would have focused on what she was doing with her face at that time, and draws into question whether she was describing something she had seen watching pornography.

The evidence of UN was very clear that he had seen TH watching pornographic movies on LF’s phone from quite a young age. Sometimes the ability of a child to describe sexual conduct that they would not ordinarily be expected to know of or witness may help to support an allegation that he or she has been subject to sexual abuse. This inference cannot be easily drawn where there is evidence which cannot be discounted that the child has been exposed to pornographic material. Such exposure may well explain what would otherwise appear to be inexplicable sexual precocity.

One of the most unusual aspects of TH’s evidence was her assertion that the conduct underpinning Count 2 occurred at approximately 1:00 am before she and the accused then went shopping. The assertion of TH that the reason they went to the complex at 1:00 am was because the accused “didn’t want anyone spotting us” makes little sense when it is recollected that she alleged that the accused sexually assaulted her virtually every day at that complex during working hours. If anything, such a change in routine would be likely to attract attention from LF at least. In light of the sleeping arrangements which existed at the time, it is improbable that the accused could have taken TH out at such an early hour without the knowledge of LF. LF gave no evidence of the accused taking TH out shopping at such an early hour during the time they were in Canberra. The description of this event by TH is also problematic. On her evidence, the accused drove TH all the way to the apartment complex at 1:00 am, took her into a storeroom (when he had QL’s apartment available) and licked her vagina for a matter of seconds before stopping and taking her to the mall to go shopping.

Turning to the evidence of the accused, there were aspects of his evidence that I found unconvincing. For example, his evidence in cross-examination that he had removed the AFP letters from the residents’ private letterboxes in front of building 45 for no reason than because he did not want the residents bothering him was improbable. His evidence-in-chief on that issue, that he felt his job was on the line, was much more probable. In any event, I am satisfied that his actions in removing the letters from the mailboxes of the building 45 do not demonstrate a consciousness of guilt with regard to the present offences. An inference that post-offence conduct evidences a consciousness of guilt on the part of an accused can only be drawn where it is the only rational or reasonable inference that can be drawn from the conduct. If the accused had by reason of a consciousness of his guilt of the present offences, removed the letters from the building 45 letterboxes, it is inexplicable why he did not do likewise in building 47. It is much more likely that the accused was embarrassed about the context of the letters and felt that he may lose his employment.

The Crown asserted that the accused lied when he told police that TH had not been into the storerooms. I am not prepared to find that these responses by the accused were deliberate lies. It is entirely possible that rare and fleeting visits may have escaped the accused’s memory; after all, if his version is correct, he had little reason to mark these events.

The presence of TH’s fingerprints in the main bathroom of QL’s apartment does not significantly advance the Crown case. The fingerprints were located near the light switch, and their position and presence is entirely consistent with the accused’s evidence that TH may have used that bathroom during one of their visits to the apartment. The fingerprints establish that TH was in the bathroom at some point in time, but they say nothing of the circumstances in which she was in the bathroom, or what occurred in that room.

Similarly, the evidence of Ms Boehme does not greatly advance the Crown case. Of the three hairs retrieved from the main bathroom in QL’s apartment, only one was suitable for analysis. The most that could be said from a comparison between that hair and a sample of TH’s hair is that TH could not be excluded as the person from whom the hair originated. This is of limited use because it tells us nothing of the likelihood of it being TH’s hair as opposed to someone else. No DNA analysis was undertaken, which may have been able to provide a likelihood ratio. In any event, even if the hair was that of TH’s, how it came to be in the shower and what relevance its presence may have for establishing the Crown case is moot. It is not in dispute that TH was in QL’s apartment in December 2017. It has also been accepted that TH may have used that bathroom. The hair could have found its way into the shower by transference or simply by reason of TH’s presence in the bathroom. I also observe that in her second evidence-in-chief interview, TH told police that she had once had a shower in the bathroom “because I peed on myself”. This answer was never followed up in the interview, or in TH’s subsequent evidence, so there is no evidence that this use of the bathroom was associated with any sexual assault allegedly perpetrated by the accused on TH.

The extent to which the overtly sexual text messages supports the Crown case is based on two propositions. First, that the accused read the messages. The second proposition is that the nature of those messages was such, coming from a 10 year old child, that one would have expected a shocked or repudiatory response from the accused. The content of the messages does not refer to any event with which the accused is charged, so that the messages are not evidence that the accused committed those offences. The Crown’s case must be that the accused did not respond in the way in which it may be expected that an innocent adult would because he had been engaging in similar sexual activity with TH and, as such, the content of the messages did not surprise him.

Bearing in mind the number and nature of the text messages sent to the accused by TH on 12 January 2018, and the time they were sent, I cannot be sure that the accused did see those text messages at that time. In any event, the second proposition would cease to have the probative effect suggested by the Crown if there is a possibility that TH had been exposed to pornography and was in the habit of making sexual propositions as stated by the accused and UN. I am not in a position to reject their evidence on that issue.

My task in the final analysis resolves to one question: can I be satisfied of the guilt of the accused to the standard of beyond reasonable doubt based on the evidence of TH? I continue to hold a doubt as to the accused’s guilt, and he is entitled to the benefit of that doubt.

I enter a verdict of not guilty on each of the charges (CC 2018/4512; CC 2018/4513; CC 2018/4514; SCCAN 2019/128; SCCAN 2019/129 and SCCAN 2019/130).

I note that there was a transfer charge of obstructing or hindering an investigation (CC 2018/6298). This was not mentioned by the Crown in its opening, and as such I have not dealt with it.

I certify that the preceding one hundred and seventy-three [173] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date:

[2020] ACTSC 261

6 October 2020