R v Derrick - [2010] SADC 31

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DERRICK
Criminal Trial by Judge Alone
[2010] SADC 31
Reasons for the Verdicts of His Honour Judge Lovell
18 March 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone - accused charged with seven sexual offences involving one complainant (three counts of indecent assault, two counts of unlawful sexual assault, one count of gross indecency and one count of inciting a child to expose her body) heard together - accused found mentally unfit to stand trial - investigation into whether objective elements of offences charged have been established.
Held: Objective elements of Counts 1, 2, 3, 4, 6 and 7 as charged found to have been established and the objective element of the common law alternative to Count 5 has been established - accused declared liable to supervision.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56, s 58, s 58a(1)(b), s 269M, s 269MB, s 269MB(2), s 269MB(3), referred to.
CSR Ltd v Della Maddalena (2006) 224 ALR 1, discussed.

R v DERRICK
[2010] SADC 31
Background

From the age of four, the complainant E attended the Athelstone Primary School. As both of her parents worked full-time she generally attended before and after-school care. The accused was a staff member of the “Out of School Hours Care” (OSHC) programme. E alleged that the accused sexually abused her from late 1992 until she left the school towards the end of 1998.
The accused is currently 79 years of age. Psychiatric and psychological opinion obtained prior to trial demonstrates that he now has a “primary dementing illness”. His cognition has deteriorated over the last few years. It is conceded by the Crown that the accused’s short-term memory functioning has deteriorated to the extent that he is no longer fit to stand trial. Pursuant to s 269M of the Criminal Law Consolidation Act I record a finding that the accused is mentally unfit to stand trial. Accordingly the matter has proceeded pursuant to s 269MB purely on the objective elements of the offences.
Assessment of the Complainant
The main witness for the prosecution was the complainant. Her mother was called as was the detective in charge of the investigation. In addition the director of the after-school care programme was called; the current assistant principal of the Athelstone primary school also gave evidence. It was conceded by the prosecution that there was no corroborative evidence of the complainant's account.
I have carefully considered the evidence of the complainant. I have borne in mind the directions I must give myself in this matter. I must be satisfied of each objective element of the offences beyond reasonable doubt and I am to bear in mind the danger (as discussed later) of relying on the evidence of the complainant alone. Despite those matters I am satisfied that the complainant was honest, truthful and reliable. In short she was an excellent witness. She was skilfully cross-examined by Mr Stewart and he emphasised what could be described as some errors in her evidence during his address. I have not overlooked those matters and I will deal with them later in these reasons. The matters that he put to me in his final address do not shake my confidence in the reliability and truthfulness of her evidence.
Reliance on the demeanour of a witness has been subject to judicial criticism in recent times.[1] Less emphasis has been given to the “advantage” a trial judge has in assessing witnesses. I bear those criticisms in mind.
[1] See CSR Ltd v Della Maddalena (2006) 224 ALR 1.
I have had regard to the demeanour of the complainant in coming to my assessment; I have done so as one part of my overall assessment of her evidence. When looking at her evidence in its entirety there was a quality and coherence to it that was compelling. That is not to say her evidence did not contain errors; on occasions she was mistaken in her recollections. However there was a cogency about her evidence that carried with it reliability and truthfulness.
Directions
I remind myself that the accused comes to this court with the presumption of innocence in his favour. The law regards him as innocent of all charges unless and until each objective element of each offence is proved beyond a reasonable doubt. Given that it is conceded that the accused is not mentally fit to stand trial it is not a question of a finding of guilt or innocence. My task is to determine whether or not the objective elements of each offence charged are established beyond a reasonable doubt. If I am so satisfied I am to record a finding to that effect. I remind myself that each offence must be considered separately and I must consider only the evidence that relates to each specific count.
The allegations in this matter arise from conduct between 1993 and 1998. There was no relevant complaint from the alleged victim. I appreciate that the failure to make a complaint does not necessarily mean the allegation is false. There may be reasons for the failure to complain.
However there are a number of issues that arise due to the lack of complaint.
First, the overall delay has resulted in the trial occurring when the accused has advanced significantly in age and has developed dementia thus rendering him unable to give evidence or proper instructions. Due to his illness he was unable to give evidence in his defence. No adverse inference can be drawn against an accused who exercises his right to silence at a trial. This situation is slightly different as I am aware that even the ability to exercise that right has been denied to the accused.
There is no special direction available to take into account this situation. It is a matter to be taken into account when considering the warning I must give myself that it would be dangerous to act upon the evidence of the complainant unless bearing those matters in mind I am satisfied beyond a reasonable doubt of it’s accuracy and truth.
Secondly, the delay in making the complaint in itself may cast some doubt about the reliability of the evidence of the complainant.
Thirdly, from the accused’s perspective, the lack of prompt complaint, or no complaint, has occasioned a forensic disadvantage to the accused. The accused may, depending upon the issues on individual counts, have been able to have someone vouch for his movements, or provide an alibi, or find forensic evidence which may have been available or not found (which can be equally important). He may have been able to attend to those matters before his dementing illness intervened. I have taken those and other disadvantages into account.
I must be satisfied beyond reasonable doubt of the truth and accuracy of evidence of the complainant in order to be satisfied of the objective elements of each count. I must scrutinise the complainant’s evidence with great care. The complainant was very young when the alleged conduct occurred. I remind myself, as I would warn a jury, that it would be dangerous to act upon that evidence, unless, bearing that in mind I am satisfied beyond a reasonable doubt of its truth and accuracy.
Uncharged Acts
In addition to the charged acts, the prosecution has adduced evidence from the complainant about other conduct not the subject of any charge.
The prosecution led this evidence to show a pattern of behaviour and a tendency toward grooming of the complainant.
Potential use of Uncharged Acts
The first uncharged act relied upon is similar to the conduct alleged in Count 1.
The complainant alleged that on numerous occasions she was in the office of the Arts Centre with the accused whilst he sat at the desk. The accused would move E’s underwear to the side and use his fingers to spread open the lips of her vagina and rub his finger between the lips.[2]
[2] T 19.
An additional uncharged act relied upon is similar to the conduct alleged in Count 2.
The complainant alleged being piggybacked either just before or just after playing on stilts.
The complainant alleged the accused picked her up and put her on his back, and backed up against a wall. Whilst backed up against the wall the complainant alleged that the accused was touching her on her vagina over the top of her pants.[3]
[3] T 17.
It was further alleged that the accused showed the complainant pornographic material.[4]
[4] T 28.
The conduct alleged in Count 6 was said to have occurred more than once without any further specificity.
The whole alleged course of events provides a context in which it is said the charged incidents occurred. In that way it can be said that the whole sequence of events throws light on the nature of the relationship between the complainant and the accused.
The evidence of the uncharged acts along with the evidence going directly to the charges can be used by me in determining what, if any, weight I am prepared to place on the complainant’s evidence. The evidence may assist me in concluding that the complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency, unreliability or inherent improbability in the evidence, thereby raising doubt about the charges.
The evidence of the uncharged acts could be used to assist in explaining the background against which the offences came about and could be used to help explain why the complainant might be unclear about precise dates of the offences charged.
I will only use the evidence of the uncharged acts where I am satisfied beyond a reasonable doubt that the act occurred.
I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged.
Ultimately it is upon the evidence in relation to the charges themselves which I must render my decision.
Good character
There was evidence of the “good character” of the accused given as part of the prosecution case. It is not clear how the evidence is to be used given the requirement of s 269MB(3) of the Criminal Law Consolidation Act. To avoid doubt I have taken into account the “good character” evidence in this case as if it were a trial rather than an investigation pursuant to Part 8A.
I bear in mind the accused’s previous good character when considering whether I am prepared to draw from evidence the conclusion that the objective elements of the offences have been proved beyond a reasonable doubt.
Complainant’s evidence
E is now 22 years of age. She was born on 10 October 1987. She attended the Athelstone Primary School beginning in term 4 in 1992 in “reception”. Halfway through year 5, in 1998, she left the school to attend the Unley Primary School. At that time she was approximately 11 years old. As both of her parents worked she was a regular user of the OSHC facility. Often she would be there at around 8.00am until school began and then after school until 5.30 to 6.00pm. E stated that she remembered four regular carers and occasional extras. She remembered the accused Peter Derrick, Jenny who ran the business and her daughter Chris. E was unable to remember the name of the other regular carer.
E stated that the accused generally “looked after us” including taking the children outside to play games; she also thought that one of the jobs of the accused was to “lock up the school”. She thought that there could be up to 30 children on occasions at the after school care facility. E also attended on occasions during the school holidays.
E explained that the OSHC operated from the Arts Centre building and the building was open plan except for two rooms at the end of the building; one of which was an office and the other a store room.[5] A sketch of the area was eventually tendered as was a plan of the school.[6]
[5] T 14.
[6] Exhibits P2 and P3.
The office as described by E contained a desk, chairs, filing cabinet and a computer. E explained that the office was an area used for disciplining children, but was also an area in which one could use the computer; a special privilege at OSHC.
E gave evidence relating to the allegations. I deal with that evidence later in these reasons.
Other witnesses
Ms Bais, a qualified teacher, gave evidence that she ran the OSHC programme until 1996. She was the supervisor of the accused at that time. Ms Bais explained the accused’s duties as “preparing the afternoon tea and to collect children from the junior primary on occasions so we would share that role, to supervise the children inside and out and generally that would be as an unqualified child care worker”.[7] She did not recall that the accused or any of her staff were responsible for “locking up the primary school building from time to time”. However she stated that the accused would have had keys to the school.[8] It is hard to understand why the accused would have keys to the school unless it meant he would to some extent have had obligations to open or close at least some of the areas. Ms Bais was really unable to recollect one way or the other and where her evidence conflicts with the complainant on this topic I prefer the evidence of the complainant.
[7] T 100.
[8] T 126.
Whilst she could remember the complainant, Ms Bais was unable to recall any specific interaction between her and the accused. She did not notice that the accused had a particular interest in the complainant.[9] Her recollection was that a couple of the boys sought the accused out to play “pool”. Before she left in 1996 there were no computers in the area.
[9] T 120.
Ms Bais stated that she had spoken to the accused of the need to be aware of “inappropriate type behaviour”[10] and how difficult it was for a male to work in the childcare area. The staff-student ratio was about one adult to eleven children. Generally she and the accused were left at the end of the day. She thought the accused would be alone as the last staff member about “once a week, once a fortnight maybe”.[11] Sometimes she was left alone.
[10] T 116.
[11] T 119.
The complainant, she said, was one of the last children collected although there were other children who were generally collected later.
Ms Bais gave a general description of the building in which the OSHC operated. Her evidence in relation to the construction of the doors and windows in the toilet block was a little confusing, and as it later transpired, incorrect. I do not intend any criticism of Ms Bais for that evidence as she was being asked to recall matters that occurred some 14 years ago. The construction of the doors and windows of the toilet block was relevant to Count 7 on the information. I prefer the evidence of the complainant and Ms Butler in relation to this topic.
Whilst piggybacks with the children were not encouraged Ms Bais was not able to say it did not happen. She gave evidence about the character of the accused. She told me that she believed that he was an honest person who she could trust: he was considered to be a “grandfather figure”.[12]
[12] T 126.
I have no doubt that Ms Bais attempted to give truthful evidence. However she was in a difficult position trying to remember events relating to only one of the children for whom she had responsibility approximately 14 years ago. She was, understandably, somewhat defensive about the accused and the allegations of sexual misconduct. I have no doubt that had she been aware of anything untoward she would have reported the matter. However, how vigilant she was, given her duties, back in the 1990s, remains unclear. Her recollection of some matters was poor. On many issues I prefer the evidence of the complainant and her mother Ms M.
Ms Butler, the current assistant principal at the Athelstone Primary School gave evidence about the buildings of the school. Apart from a year off for accouchement leave she has worked at the school since 1996. Part of her duties included safety audits of the buildings. This included the toilet areas. Photographs were taken of the toilet area by Detective Kelsey and tendered; they were taken during the trial.[13] Ms Butler confirmed that, leaving aside painting, the toilet area and doors were the same in 1996 as they are now.[14]
[13] Exhibit P4.
[14] T 148.
The complainant’s mother, Ms M also gave evidence. She was an excellent witness. She gave her evidence in an unbiased manner and was clearly careful not to reconstruct events with the knowledge she now has that allegations of a sexual nature have been made.
Ms M gave evidence about collecting E from after school care. She said that she or her husband picked up E. If they picked her up between 5 and 5.30 there would be 15 children or so. As it got closer to 6 o’clock there would be less children and between 6 and quarter past 6, E was often the only child left. There was usually only one carer left in those circumstances and that was often the accused.[15]
[15] T 77.
The evidence of Ms Bais was slightly different. I prefer the evidence of Ms M on this topic.
Ms M also gave evidence that when she picked up E the accused always seemed to know where E was.[16] To the extent that such evidence differs from Ms Bais I prefer the evidence of Ms M.
[16] T 79.
Criticisms of the Complainant’s evidence
A number of criticisms were made of the complainant’s evidence. First it was suggested that her credibility was damaged by her assertion that the accused had not been circumcised. It was an agreed fact that he had been circumcised.
The age of the complainant at the time of the alleged conduct militates against this “error” of having too much weight. At the time of the alleged offending she was young and had no sexual experience. Had she been older and more sexually experienced the submission would have more force. Indeed her opportunity to make any such observation was not great. I have considered this criticism carefully but in its proper context it does not shake my confidence in the evidence of the complainant.
It was also suggested that the “mistake” the complainant made about there being a computer in the office of Ms Bais threw doubt over all of her evidence. I do not agree.
Ms Bais left the school in 1996. The alleged conduct continued until 1998. There is no evidence as to whether there was or was not a computer in that area after Ms Bais left.
I accept Ms Bais’ evidence that there was no computer in the office when she left. The complainant gave evidence that she was in the office with Ms Bais and assisting with the computer tasks. I accept that she must be mistaken about that.
Further, even if I were to accept that the complainant was mistaken about that for the whole of the period of the alleged offending I do not accept that such a mistake would lead to doubt being created about the “whole of her evidence”. There is in my view an obvious difference about the reliability of evidence on a peripheral matter such as that, as opposed to reliability about an allegation of sexual misconduct. Whilst errors on peripheral matters may lead to doubt about the evidence of a witness this was not such an error.
It was also suggested that I should reject the evidence of the complainant (or at least have a reasonable doubt about it) as the allegations were of “brazen” conduct by the accused. The conduct was so brazen that it was suggested that it was inherently unlikely to have occurred.
Again I reject that suggestion.
A number of points need to be made. First the evidence established that there was opportunity, on more than a few occasions for the accused to be alone with the complainant or at the very least being the only adult left looking after only a few children. As mentioned earlier I accept the evidence of Ms M about the opportunity the accused had to be alone with E.

The complainant explained that the accused would take her to “lock up” parts of the school grounds. That would have given him the opportunity to be alone with E. Whilst Ms Bais gave evidence that she could not recall it being a requirement of the accused’s employment that he had to perform such a task, she was not convincing in that answer. She was simply unable to recall despite the fact she thought the accused had keys to the buildings. However, as mentioned, I prefer the evidence of the complainant in that regard. Viewed against that factual background the conduct may not have been that brazen.
Secondly, the first incident and the piggyback “incidents” were done in ways that were surreptitious rather than brazen. Whilst there was of course a risk of detection, in those incidents that risk was not great.
The evidence, which I accept, that the attention given by the accused to the complainant made her feel special indicates that the accused was grooming the complainant: this made her less likely to complain about the conduct.
It was also suggested that the evidence of Ms Bais contradicted the complainant. I reject that submission. The complainant’s evidence about the construction of the toilet block was more accurate than Ms Bais’ evidence. I do not intend criticism of Ms Bais for that as she did not have the benefit of photographs and she was being asked about matters that occurred over 14 years before.
Ms Bais also gave evidence that she did not observe the accused taking an interest in the complainant. I prefer the evidence as discussed earlier of Ms M. Her evidence suggests that the accused took an interest in the complainant. I accept that to an extent that was his job. Even if I had accepted the evidence of Ms Bais that does not necessarily contradict E. Ms Bais was clearly very busy looking after a large number of children and carers. E gave very clear evidence that the accused favoured her with lollies and attention. I prefer her evidence.
The complainant had mentioned she had been shown pornographic photography by the accused; he had produced them from the glove-box of his car. There was also mention of a video (pornographic) he wished to show the complainant.
It was also suggested that the fact that when the police searched the house of the accused no photographs or videos were located was particularly relevant. Given the length of time from the offending to the search being conducted little weight can be given to that matter.
None of the matters raised by Mr Stewart in isolation or taken together make me doubt the truthfulness and reliability of the complainant’s evidence.
Law
Elements of Indecent Assault
The offence of indecent assault consists of three essential elements, each of which must be proved by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first element is that the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient.
The application of force or violence must be unlawful, that is, without lawful justification or excuse.
The second element is that the assault must be accompanied by, or occur in, circumstances of indecency. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
The prosecution must prove that the complainant was under the age of 12 at the time of the offence.
The Crown must prove each of these elements beyond reasonable doubt in relation to each charge of indecent assault separately. I do not intend to repeat the elements each time I consider a charge of indecent assault.
Elements of Unlawful Sexual Intercourse with a person under 12
The offence of unlawful sexual intercourse is committed when a person has sexual intercourse with a person under the age of 12 years.
The definition of unlawful sexual intercourse can be broken down into two elements:
·First, that the accused had sexual intercourse with the complainant; sexual intercourse includes cunnilingus and fellatio.
·Secondly, that at the time the complainant was under the age of 12 years.
The Crown must prove each element of the charge beyond reasonable doubt in relation to each count of unlawful sexual intercourse separately. I do not intend to repeat the elements of the offence when discussing each charge of unlawful sexual intercourse.
Elements of Gross Indecency
The offence of gross indecency is committed when a person who, in public, or private, commits an act of gross indecency with a person under the age of 16 years.
The definition of gross indecency can be broken down into four elements:
·First, the act was done with, or in the presence of, X. The complainant’s consent or absence of consent is immaterial.
·Secondly, the complainant was under the age of 16 years. It is immaterial whether the accused was aware of that.
·Thirdly, the act was indecent. I must apply the standards of right thinking members of the community in assessing the question of whether the assault was in circumstances of indecency.
·Fourthly, the indecency must be gross. The indecency must be “gross” in that it must be something more than minor or trivial indecency. The indecency must be gross by reasonable contemporary standards. I must apply the standards of right thinking members of the community in assessing the question of whether the indecency was gross.
Elements of Inducing a Child to Expose her Body
There are two elements to the offence.
First, the conduct must be performed with a view to gratifying a prurient interest (whether of that person or some other person).
In assessing whether an act is for a prurient purpose I must be satisfied that the conduct was performed by the accused with the intention of satisfying his own desire for sexual arousal or gratification or of providing sexual arousal or gratification for someone else.
Secondly, the child must be caused or induced to expose any part of his or her body.
Count 1 – Indecent Assault
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1993 at Athelstone, indecently assaulted E, a person under the age of 12 years.
Whilst attending the OSHC program at Athelstone Primary School E alleged that she was sitting on the accused’s knee watching a movie when the accused started softly touching E’s legs and continued touching until he reached E’s crotch, where he placed one hand on the outside of E’s underwear.
As mentioned I accept that E was a reliable and truthful witness. Taking into account the warnings I am prepared to accept her evidence of this event beyond a reasonable doubt.
I am satisfied beyond reasonable doubt that there was a touching in circumstances of indecency. The complainant was under the age of 12 years at the relevant time.
Accordingly I am satisfied that the prosecution has proved the objective elements of this offence beyond reasonable doubt.
Count 2 – Indecent Assault
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, indecently assaulted E, a person under the age of 12 years.
E alleged whilst the accused was piggybacking her in the playground at OSHC he held her bottom and backed her up against a wall against the Arts Centre building near the basketball courts and put his hands under her dress. At this time E said that the accused moved her underwear aside and touched her on the outside of her vagina, moving his hand up and down.
As mentioned I accept that E was a reliable and truthful witness. Taking into account the warnings I am prepared to accept her evidence of this event beyond a reasonable doubt.
There is no doubt here that there was an assault in the circumstances of indecency. The complainant was under the age of 12 years at the relevant time.
I am satisfied that the Crown has proved each objective element of the charge of indecent assault beyond reasonable doubt.
Count 3 – Unlawful Sexual Intercourse with a person under 12
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, had sexual intercourse with E, a person under the age of 12 years, by performing cunnilingus upon her.
E alleged, whilst locking up the school, the accused took her to an alcove area where he performed an act of cunnilingus upon her. E explained that the accused asked her first to remove her underwear, thereafter she sat with her bottom on the desk and her legs over the edge of the desk. The accused pushed apart her legs with his hands, knelt on the ground and put his tongue in her vagina moving it up and down.
I have indicated that I accept E as a witness who was reliable and truthful.
Cunnilingus as described amounts to sexual intercourse. The complainant was under the age of 12 years at the relevant time.
I am satisfied that the Crown has proved each objective element of the charge of indecent assault beyond reasonable doubt.
Count 4 – Gross Indecency
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, committed an act of gross indecency by exposing his penis in the presence of E, a person under the age of 16 years.
E said when locking up the school with the accused he took her to the staff room and made E pull down his pants where he exposed his erect penis. E explained that the accused then asked E to put his penis in her mouth, but that E refused as she had seen photographs of children who had performed fellatio and had ejaculation upon their faces and was scared this would happen to her.
I have indicated that I accept E as a witness who was reliable and truthful.
I am satisfied beyond a reasonable doubt that the act was indecent, done in the presence of the complainant and that she was at the relevant time under the age of 16 years.
I am satisfied that the Crown has proved each objective element of the charge of gross indecency beyond reasonable doubt.
Count 5 –Unlawful Sexual Intercourse with a person under 12
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, had sexual intercourse with E, a person under the age of 12 years, by causing her to perform an act of fellatio upon him.
E said that the accused asked her to put his penis in her mouth on another occasion. E again refused and was told that if she did not, her special privileges would cease.[17]
[17] T 27.
E explained that she did not put the accused’s penis in her mouth but gave his penis a closed-lip kiss on the side so her special privileges would continue.[18]
[18] T 27.
The Crown conceded that on the evidence given by E they could not prove that “sexual intercourse” had taken place. It was conceded that there was no case to answer with respect to Count 5. The prosecution relied on the common law alternative of indecent assault in relation to this count.
As mentioned earlier I am satisfied beyond reasonable doubt of the truthfulness and reliability of E. Whilst sexual intercourse could not be proved, her evidence establishes that there was a touching in circumstances of indecency.
I am satisfied of the objective elements of this offence beyond reasonable doubt.
Count 6 – Indecent Assault
It was alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, indecently assaulted E, a person under the age of 12 years.
E said that whilst she was in the office of the Arts Centre the accused touched her breasts, placing them in his hand, and said “nearly a handful”.
I have indicated that I accept E as a reliable and truthful witness.
I am satisfied beyond reasonable doubt that there was a touching in circumstances of indecency and that the complainant was under the age of 12 years at the relevant time.
I am satisfied that the Crown has proved each objective element of the charge of indecent assault beyond reasonable doubt.
Count 7 – Inducing a Child to Expose her Body
It is alleged that the accused between the 1^st day of January 1993 and the 31^st day of December 1998 at Athelstone, with a view to gratifying a prurient interest, induced E, a person under the age of 12 years, to expose her body.
E said on one occasion the accused asked E to go to the entrance area to the toilets and pull down her pants and lift up her top so he could look at her.[19]
[19] T 25.
E explained that there was an outer door with a rectangle glass panel so you could observe if a person was leaving the toilets. When E pulled down her pants and lifted up her top she observed the accused looking at her through the clear glass panel.
E further said that whilst this act was occurring she observed her mother walking around the corner to pick her up, she quickly pulled up her pants and pulled down her top and left the toilet area without saying anything to her mother.
I have indicated that I accept E as a witness of truth.
I am satisfied beyond reasonable doubt that the accused in order to satisfy his own prurient interest caused or induced the complainant to expose parts of her body and in particular, in relation to this charge, her chest.
I am satisfied that the Crown has proved each objective element of the charge of inducing a child to expose her body beyond reasonable doubt.
Conclusion
I am satisfied that the Crown has proved, beyond reasonable doubt, each objective element of Counts 1, 2, 3, 4, 6 and 7 on the information as charged and I am satisfied that the Crown has proved, beyond reasonable doubt, each objective element of the common law alternative to Count 5 namely indecent assault.
I make those findings pursuant to s 269MB(2). I declare the defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act.