R v EDMONDS - [2011] SADC 5

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v EDMONDS
Criminal Trial by Judge Alone
[2011] SADC 5
Reasons for the Verdicts of His Honour Judge Lovell
4 February 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused charged with seven sexual offences involving one complainant (three counts of indecent assault and four counts of unlawful sexual intercourse).
Verdicts: Not Guilty of all charges delivered on 21 December 2010.
Criminal Law Consolidation Act 1935 s 49(3), s 56, referred to.

R v EDMONDS
[2011] SADC 5

The complainant K met the accused when she was 12 years of age. The accused was club president and coach of her netball side. K alleged that a close friendship developed as the accused was friendly towards her and assisted her with a number of personal problems that she had at that time. K alleged that eventually the relationship developed into a sexual one; at that time she was only 14 years of age. The accused was about 45 years of age.
The sexual offending alleged included acts of indecent assault, acts of fellatio, an act of cunnilingus and digital penetration of K.
The accused did not give evidence at the trial. However, in discussions with K’s father and also with investigators from the Teachers Board, he admitted to a friendly but unusual relationship with K; he denied it progressed to a sexual relationship.
Assessment of witnesses
Main witness for the prosecution was K. In many respects K was a reasonable witness. There were parts of her evidence that caused concern.
K was cross-examined about many matters. There were a number of “inconsistencies” put to her. Of course not all inconsistencies, even if proved, lead to an adverse credit finding. Indeed, a witness who gives evidence in a manner that contains no inconsistencies may be subject to the criticism of having rehearsed the evidence.
However there are some inconsistencies or prevarications during a witness’s evidence that are of such importance that they may lead a finder of fact to doubt the evidence of the witness generally. That is what has happened in this matter.
I do not intend to dissect the excellent and thorough cross-examination undertaken by counsel for the accused, Mr Abbott. It is sufficient for me in these reasons to simply indicate those matters that taken together, have affected the credibility of K to the extent that I am unable to accept her evidence on the specific allegations beyond a reasonable doubt.
When assessing K’s credibility I have not overlooked that, at the time of these events, she was only 14-15 years old. Her initial teenage years were obviously difficult for her. This was the case before the accused became involved with her.
That the accused entered into an entirely inappropriate relationship with K cannot be disputed. Given his training as a teacher and his experience, to enter into the relationship that he so obviously did, was both foolhardy and totally unprofessional. I have had to take into account when assessing K’s evidence that she was subject to the influence of the accused simply by the nature and depth of the relationship. Some of K’s actions, without proper context, may seem unusual. However, I have no doubt that at times she felt she was in love with the accused whilst simultaneously being confused and bewildered by the relationship and the attention he was paying her. Given her age that is understandable. I have no doubt that the accused expressed his feelings for K in similar terms ie in “love” with her.
However it is also clear that K was having “troubles” before the accused became involved with her. Mr Abbott demonstrated quite clearly that K could be on occasions deceitful and manipulative when dealing with others, particularly adults.
As mentioned I found that generally K was a reasonable witness. However on occasions, which I will discuss later, I do not believe she told me the truth. That has led to me being unable to be satisfied beyond a reasonable doubt of the allegations of a sexual nature in relation to all counts charged. That does not mean that I have rejected wholesale her accounts. Indeed, as discussed later, I accept her evidence of the general nature of the relationship and the amount of contact she says she had with the accused. Indeed that was supported by the amount of email and SMS traffic that past between her and the accused. I have no doubt that their relationship progressed to the stage of beginnings of a sexual relationship in the sense that there was “kissing and cuddling”. Whilst not conceding the point, Mr Abbott who appeared for the accused really did not take issue with that position. I am suspicious that other sexual acts may have occurred, but at the end of her evidence I could not be satisfied beyond reasonable doubt of the specific allegations made by K. Accordingly the accused is entitled to the benefit of that doubt. I will deal with some of the problems in K’s evidence later in these reasons.
K’s parents gave evidence. They were honest and reliable witnesses and generally I accept their evidence. They were clearly misled by K and the accused. Their evidence supports the fact that K was in a very “close” relationship with the accused. Given his occupation and age the accused clearly should have approached K’s parents about the fact that he was “counselling” K. The accused, when confronted by K’s father, did not disclose the amount of contact he was having with K. K’s parents deserved better treatment from the accused. Even after they discovered the fact of a relationship the accused continued to see their daughter “behind their back”. It may be that K continued to make contact. However the accused ought to have told her parents rather than simply mentioning it to the Teachers Board investigator.
Detective Rankin gave evidence. She was the investigating officer. Detective Rankin was a diligent officer who was very professional in her approach to the case. She was an honest and reliable witness and I accept her evidence.
A number of other witnesses gave evidence before me. Their evidence was relevant to differing degrees. Substantially their evidence was not challenged in cross-examination and I generally accept their evidence. I do not intend to go through all the evidence of those witnesses but will concentrate on those matters which concern me the most.
Background
The background in relation to this matter is quite complex but was generally not in dispute. It will be necessary to set out the history in some detail.
K was born in 1991. The accused was the coach of a netball club and a teacher at a nearby school. In 2004 K began playing in the netball team of which the accused was the coach. This was for the summer season. K also played netball in the winter season but in a different competition. Cheryl Taylor was her coach.
In January 2005 she commenced playing her second season for the club at which the accused was the president but not the coach of this particular team.
On 17 February 2005, K sent a text message to the accused. The message was sent as a joke and it appears that the accused treated it as a joke as well.
She was 14 years of age at this time. It was common ground that around this time K had a number of problems at school and with her parents. K and the accused, either by text or by telephone, discussed a number of her problems and the accused was of some assistance in attempting to sort out these problems.
K’s parents had given her two mobile phones, one of which was used to contact them, the other to contact her friends.
The communications and the relationship between K and the accused grew and the text messaging became more frequent. During this period K was messaging the accused so often that she ran out of credit on her phone and she had a friend, Rachel, obtain a prepaid $30 SIM card that she used to message the accused. The SIM card was in Rachel’s name. Thus the amount of contact that K had with the accused was hidden from her parents.
K alleges that from around May 2005 the relationship with the accused became more physical. I will deal with the specific allegations later in these reasons. The relationship was hidden from K’s parents.
In early 2006 K confided in a school friend about the fact that she had a relationship “of sorts”, with the accused. That led to a rumour spreading at the school that K was in a relationship with her netball coach. In some sense the rumour accurately reflected the actual position.
As a result of the rumour, K spoke to the principal of her school Ms Cameron. K wanted the rumour to stop. K denied to the principal that she had a relationship with the accused. That was not true. Gradually more and more information was given by K to Ms Cameron. K eventually indicated to Ms Cameron that she had been in a sexual relationship with the accused. Ms Cameron had an obligation as a mandatory reporter “to bring the matter to the attention of the police” and she did so.
A report to the police was made and the accused was charged in the Holden Hill Magistrates Court with three counts of indecent assault and three counts of unlawful sexual intercourse. Just before the charges were laid, K’s father had confronted the accused at his house and the accused admitted to “kisses and cuddles” with K but nothing of a sexual nature. He did not disclose the extent of the “contact” he had been having with K.
After the charges were laid, K became unsure about whether she wanted to proceed with the matter. At this stage she had been referred to and was undertaking counselling with a psychologist, Ms Sally Bowden.
K decided, after discussion with officers from the Director of Public Prosecutions Office, that she did not want to proceed with the charges. Accordingly no evidence was tendered and the charges were dismissed on 7 December 2006.
Around the time that the charges were withdrawn in the Holden Hill Magistrates Court, K alleges that she had further contact with the accused. This occurred whilst she was working at Tea Tree Plaza. K alleged that further sexual offences were committed in November/December of 2006.
A short time later the accused left on an overseas trip and communication continued with K by means of what was known as “e-cards”.
Eventually K decided that she did want to proceed with the charges and they were re-laid in court and this time her declaration included allegations of a sexual contact in November/December 2006. This became Count 7 on the information.
Telephone records of contact between the accused and K
There was substantial telephone, SMS, email and e-card contact over the period of the relationship between the accused and K.
K had two phones but three SIM cards and therefore three different numbers. As mentioned her friend Rachel had purchased a SIM card from Optus for her.
The accused’s phone number ended in the numbers 757. K’s Optus numbers ended in 078 (the “secret” card) and 475. Her other phone was used for communication with her immediate family and has no relevance to the case.
Detective Rankin perused the telephone records that had been seized. From those records she calculated, as far as the records would allow, the number of contacts between various phones owned by the accused and by K. She was able to make a number of calculations.
After making adjustments for SMSs that may have only been of one to three seconds duration, between 13 July 2005 and 1 June 2006 there were 6,484 contacts from the accused’s service to K’s “secret” SIM card. That is reflected in Appendix 1 of Exhibit P41. Including SMSs and/or phone calls there were 8,079 contacts from K to the accused between 30 June 2005 to 31 March 2006. That number can be determined from Appendix 2 to Exhibit P41. The total number of calls made or texts sent, including to the accused, was over 13,500 for that period of time.
From the records of K’s other Optus account for the date range 31 March 2005 to 7 May 2006 there were 157 contacts with the accused. That can be seen in Appendix 3.
Detective Rankin, in Appendix 4, collated by month the accused’s mobile phone contact with K. From Appendix 4 the following calls were made by the accused to K:-
March 05             59
                  April 05             423
                  May 05              483
                  June 05              559
                  July 05               451
                  August 05            64
                  September 05        4
                  October 05          25
                  November 05     12
                  December 05         1
There was some overlap however with another number belonging to K that showed the following:-
July 05                   7
                  August 05          280
                  September 05    162
                  October 05          97
                  November 05     326
                  December 05     116
                  January 06                  101
                  February 06      131
                  March 06             97
                  April 06               95
Appendix 4 demonstrates that for the period from March 05 through to April 06 the accused made approximately 4,350 telephone calls or SMSs of which approximately 3,500 were to K. Appendix 1 and Appendix 4 related to the same information but were presented in a different format.
The amount of contact between the complainant and the accused over the various periods of time shows clearly a very unusual relationship. Indeed it could be said that the telephone contact between the two, given the age difference, bordered on the extraordinary. In addition there were other forms of contact for example email, MSN etc.
Detailed assessment of K’s evidence
It was against the background just discussed that K alleged the relationship changed from being a friendly and emotionally supportive one to that of a sexual nature.
K stated that communications with the accused began around February 2005.[1] At that time she had problems at school and with friends and had changed social groups. She said there was “a bit of drama going on with that”. The method of communication changed from texting to phone calls. K said that the accused had free time on his mobile phone to call her network and he would do so after school. The contact eventually also changed to “face-to-face” contact. She met him at a park around the corner from her house.
[1] T 450.
K stated that at this time the accused was attempting to help her with her issues at school. The texting, as confirmed by the records, became more frequent.
K said that the telephone calls began after the face-to-face meeting with the accused at the park. The calls were made usually at night.[2] The contact was concealed from her parents.
[2] T 453.
Due to the number of messages that K was sending she ran out of credit on her phone. This was the phone given to her by her parents. As she did not wish her parents to know about the contact, she had a friend, Rachel, purchase a SIM card from Optus and Rachel registered it under her name. This was a prepaid SIM card that when she ran out of credit, she would “top up”. K said that the prepaid card that Rachel had purchased for her was used for contacting the accused. She thought this occurred in around March or April 2005. K then had two “SIM cards” for the one phone. She hid the fact of the extra SIM card from her parents.
K related an incident that occurred when she had gone to Canberra to visit relatives around January 2005. She became sick while there and had a dream; it was of her being sexually assaulted in a toilet block at a park. The dream reoccurred. She thought that dream ceased a couple of months after the family returned from Canberra. K talked to the accused about the dream.
K described the friendship as “talking a lot” but that changed she believed around mid to early 2005. She said that they had been talking on the phone when “we both said that we both had feelings for each other that were stronger than just a friendship”.[3]
[3] T 459.
The relationship changed when K was home on her own one weekend. It was arranged for the accused to come around whilst her parents were not there. It was at this stage that the “hugging and kissing commenced”.[4] She thought this occurred around June 2005. After this incident the contact between the accused and K became even more frequent. I accept this occurred.
[4] T 460.
A similar incident occurred a few weeks later. It was on this second occasion when K alleged that the accused, after they had commenced hugging and kissing touched her on the breasts outside of her clothing. K said that he did not do that for very long.
K said that she purchased a gym membership from the Body Workshop at Fairview Park in around July 2005. She would use the gym after school on week nights and occasionally on weekends. It was walking distance from her home. K said that she would spend about an hour and a quarter at the gym.
K said that although the accused was not a member of the gym she used to see him there. He would meet her outside the gym and they would go for a walk around the back streets of Fairview Park. Initially it was “once or twice a week” but increased to three to four times a week. The meetings were prearranged.
About a month after they began meeting at the gym the accused suggested they go back to his house instead of walking around. K agreed and said she would get into his car at the gym and they would drive to his house, spend about 40 minutes there and then he would drive her back to the gym.[5] She drew a plan of the accused’s residence.[6] It was not disputed that it was a reasonably accurate plan although it transpired that K and her family had been to the accused’s house for a barbecue.
[5] T 464.
[6] Exhibit P2.
K said that, starting from about August 2005, she would go to the accused’s place two or three times a week for a few months.[7] The meetings would be arranged by text message.
[7] T 468.
K described an incident when she met the accused at the gym, got into his car and drove back to his place. They went inside and went straight into the bedroom. She lay next to him on the bed and they were kissing and cuddling. At some stage he undid his pants and gently pushed her head down towards his penis and she put her mouth over his penis and performed an act of oral sex for a couple of minutes. She had remained fully clothed during this act.
K described another incident when he took her home after meeting her at the gym. Again they went straight to the bedroom and on this occasion he unzipped his pants. K put her hand down his underwear and on to his penis. The accused had his hand on her hand guiding it up and down and that went on for a few minutes “until he ejaculated”.[8] The accused allegedly then cleaned himself up and they were kissing and hugging again and on this occasion he put his hand down her pants and underneath her underwear. He put his finger inside her vagina for a while “not very long”[9] and then took it out.
[8] T 471.
[9] T 471.
When asked, “Were there any other incidents of sexual touching at Mr Edmond’s house” K replied, “Basically every time I went there, there was, yes.”[10] She said that there was always fondling of each other’s genitals in different ways and it occurred basically every week. K said that generally the events occurred in his bedroom.
[10] T 472.
K related a time when they had gone back to the accused’s place after they had met at the gymnasium where in the bedroom the accused pulled her pants down to around her knees and put his mouth on her vagina for a short moment. He licked her on the vagina. This occurred for about five to 10 seconds.[11]
[11] T 474.

K described some gifts that had been given to her by the accused and also that the accused attended at her house whilst her parents were home on a few occasions. This was confirmed by K’s mother and father when they gave evidence. There was also a time towards the end of 2005 when K’s family including her sister and the accused attended their River Murray shack. She thought that this occurred towards the end of 2005.
The relationship between K and the accused “came to light” in April 2006. K had been making a number of nuisance calls to Ms Pitcher, a colleague of the accused, and Ms Pitcher complained to Optus. As the SIM card that was used to make the calls was in Rachel’s name, Optus contacted her. This was done by a letter dated 28 March 2006. Rachel’s mother became aware of the letter and contacted K’s parents. For the first time K’s parents became aware of significant contact between K and the accused. Her parents took her phones and SIM cards away. K had cut up the SIM card that was in Rachel’s name as she didn’t want anything on it from the accused to be seen by anybody else.[12]
[12] T 496.
Due to not having access to a mobile phone K used to contact the accused by dialling 1800 REVERSE in order to contact the accused. There was still contact at the gym as well.
It was around this time that K’s father became aware of the fact that K was leaving notes for the accused at the gym.
K agreed that when asked by her parents about the nature of the relationship with the accused that she did not disclose to them that it was a sexual relationship. Nor did she disclose that to her parents’ friend Mr Gillert. Her reason for that was she didn’t want anyone to find out and she did not want the police knowing at that time.[13] She was aware that the accused would not have told her father as she knew that he would not want people to know. She had previously discussed with him that prospect and he said that “if anyone found out, he would kill himself”.[14] That was in late 2005.
[13] T 647.
[14] T 648.
K also said she spoke to the school chaplain, Ms Dight.[15] She told Ms Dight that she was upset that she had lost someone who was providing her with emotional support.
[15] T 649.
K agreed that at some stage she thought that the accused had told the Teachers Board investigator (Oggi) about the fact there had been some ongoing contact after April 2006. She perceived that as a breach of her relationship of trust. She was angry with him about that.
K agreed that it was likely that she did not tell Ms Dight about the true sexual nature of the relationship. Ms Dight confirmed that she was not told of any sexual relationship. The first person K told was Ms Cameron, the head mistress.
She also spoke to a Ms Beverley Harman who was a school counsellor.
Oggi Stojanovich was an investigator from the Department of Education. She spoke to K for the first time on 1 June 2006. Ms Cameron was also present. K agreed that on that occasion she told Ms Stojanovich that the relationship with the accused did not involve any sexual contact.[16]
[16] T 663.
She told me that she lied to Ms Stojanovich.
K remembered a meeting on 20 June 2006 in Ms Cameron’s office where she met Detective Rankin. Prior to the meeting, K had drawn a “time line chart” showing when the sexual contact allegedly occurred. She didn’t actually talk to Detective Rankin on that day but rather pointed to the chart.[17] She felt uncomfortable talking to the police. It was after that that she attended the Holden Hill Police Station and began typing her own statement on the computer. She said that she was too embarrassed to talk about the allegations.
[17] T 668.
K denied that she was put under pressure to make the allegations against the accused.[18]
[18] T 671.
K said that she obtained some part-time employment from Big W at Tea Tree Plaza “prior to Christmas of 2006”.[19] She thought it might have been around September. K said that while she was still attending school she did night shifts and during school holidays she worked during the day starting at all different times. K said that towards the end of that year she saw the accused at Big W around five times.[20]
[19] T 506.
[20] T 507.
The meetings with the accused would be pre-arranged by email. K was aware of the accused’s email address from when she used to chat with him on MSN prior to March or April 2006. The 00fun site was also being used. That is a greeting card website on the internet used to send a card over the internet to someone’s email address.
K said that during her lunch break she arranged and met the accused outside Big W. They went to the Myer store and got into the lifts. There they hugged and kissed and said “Hello”. They then walked around the floor of the Myer building for a while before she went back to work. A second meeting was arranged by the 00fun site. The second meeting occurred very much in the same way as the first. On the third occasion they met, the accused suggested that as the Tea Tree Plaza was too crowded and too public that they should meet outside of Dick Smith Electronics located across the road.
On that occasion they met outside of Dick Smith Electronics and walked down into a creek area behind Dick Smith’s. K followed the accused who helped her down into the creek bed. They kissed and hugged and then talked for a bit before she went back to work.[21]
[21] T 510.
K said that there were two further occasions when she met the accused outside of Dick Smith Electronics and they went walking down by the creek bed. The meetings were arranged by the 00fun email method.
On the third occasion when they met down at the creek, K said that the accused was already down in the creek bed when she got there from her lunch break. The accused helped her down and he had already laid a towel out in the area. They hugged and kissed and, “We then went back a bit further from the creek”.[22] She said the accused was lying on the towel and they were talking for a bit when she got on top of him. At some stage he put his hand around the side of her and down the front of her work pants and her underwear. She said initially she wasn’t comfortable and moved his hand away but he then moved his hand back there and put his finger inside her vagina for about four to five minutes before stopping. She said she needed to get back to work but the accused did not want her to leave and was hinting that he wanted her to perform oral sex on him.[23] However, she did not do that and she went back to work. There were no further meetings in the creek bed area.
[22] T 512.
[23] T 513.
Disclosure after April 2006
K said that apart from talking to her mother and father about the accused, she spoke to the school principal Ms Cameron. She said she spoke to Detective Rankin, she believed, around July 2006.
In about November 2006 she was in contact with the accused, as discussed, despite the fact that the charges had not by that time been withdrawn. As mentioned, contact was made by emails using the 00fun site. The accused went overseas around the start of 2007. K believed he went to Africa. She kept in touch with the accused whilst he was in Africa using the 00fun email facility. She kept some of these emails on the computer.
In relation to the question of the keeping of the emails, K agreed that she deleted some as she didn’t want her parents seeing them. Around the end of 2006 and the beginning of 2007, K agreed that she had two email addresses, one “kxx_click” and the other “kxx_91” both at “Hotmail”.
Around early to mid 2007, K spoke to a police officer called Rita about having the charges re-laid. At that time she printed copies of some of the emails from the 00fun site and also from her personal email address and she handed them to Rita. She also handed to Rita emails that had been forwarded to her counsellor Ms Bowden. The emails were printed from her printer attached to her home computer.
Around April 2007, K said that she stopped accessing her kxx_click account. She did that by logging into the account whilst using her counsellor’s computer. Ms Bowden apparently changed the password whilst K turned around so she did not know the new password. From that time K said she was unable to access her kxx_click account. This was the subject of evidence which is discussed later.
Copies of a number of emails were tendered.[24]
[24] Exhibit P11.
Evidence had been given on a voir dire hearing in relation to the provenance and the setting out of the emails. That was given by Detective Senior Sergeant Blundell and his evidence from the voir dire was tendered as part of the prosecution case at trial without objection from Mr Abbott.
The emails formed a significant part of the defence attack on K’s credibility and I will deal with them in some detail later in these reasons.
Cross-examination
I do not intend to cover all the topics raised in the cross-examination of K. I will deal with the matters that caused me concern.
K agreed in cross-examination that the accused helped her with her problems which included problems at school, with her parents and in relation to sport. She agreed she trusted him with her deepest secrets then, that he offered solutions to her to make her a more positive person.
Prior to the extra SIM card being discovered by her parents which occurred in about end of March early April 2006, K agreed that she had had trouble at school. A rumour had spread that she had spoken to one of her friends about her relationship with the accused. Whilst she did not tell this person of the sexual nature of the relationship she had told her friend that she had kissed the netball coach. Apparently a rumour then went around the school that she was in a sexual relationship with the netball coach. As a result of the rumours, K became quite upset and went to see Ms Cameron, her headmistress about the rumours. At that stage she said that the rumour was not true. Her evidence now was that she was, at that time, lying to Ms Cameron.[25]
[25] T 530.
K agreed that in early 2005 she had problems with her friends and was “self-mutilating” by cutting her wrists.[26] She agreed that the accused became aware of these problems by a friend of hers telling him. She agreed she told the accused about the dream that she had had whilst in Canberra. She denied ever telling the accused that she had engaged in cutting herself.[27]
[26] T 534.
[27] T 539.
There was also a rumour that started to spread around the school that she had cut her wrists with her compass and she believed that rumour was untrue. This rumour occurred in early 2005.[28]
[28] T 545.
It was suggested that from 29 May 2005 until March 2006 she sent in the vicinity of 400 text messages and telephone calls to her netball coach Cheryl Taylor. K agreed that she sent a lot of messages.[29] She agreed that she was talking with Cheryl and that Cheryl was offering to help her but she hadn’t asked for it. She agreed that she was talking about the problems at school with her friends.
[29] T 554.
It was suggested to her that she initially contacted Ms Taylor by sending her a text saying, “I need help, please help me.”[30] She did not specifically remember that.
[30] T 555.
She also agreed that she sent at the start of 2006 a number of text messages to one of her friend’s mother, a Mrs Skinner. Ms Skinner gave evidence confirming that fact. It was suggested to K that she had sent 79 text messages from the period 17, 18 and 19 February 2006. She was unable to recall sending that many text messages.[31] Mrs Skinner confirmed, and I accept, that a large number of text messages and calls were made.
[31] T 557.
K was cross-examined about also contacting Ms Kirsten Pitcher. She was a teacher who worked with the accused. K accepted making prank calls to Ms Pitcher. At the time she thought the accused had feelings for Ms Pitcher and she wasn’t “happy with that”.[32] She would ring up until Ms Pitcher answered and then hang up. She obtained Ms Pitcher’s number from the accused’s phone without his knowledge. She agreed she was jealous of Ms Pitcher.
[32] T 565.
Ms Pitcher gave evidence. She was a good witness and I accept her evidence.
In relation to this matter I find that it was these prank calls that caused Ms Pitcher to report the matter to Optus who contacted Rachel’s family. The prank calls and SMSs to Ms Pitcher were from 10 March 2006 through to 30 March 2006.
The behaviour of K at this time was puzzling. She contacted a number of adults seeking “assistance”. While that of itself is perhaps not unusual it was the way she went about it that was concerning. There could be little doubt that she was “attention seeking” in part at least. The way she made contact, often not identifying herself for some time, and the number of contacts confirm that at the time she was very troubled. There was no suggestion that she mentioned to any of these people that she was in a sexual relationship with the accused. She was in constant contact with the accused as well.
K said that the sexual contact whilst starting in 2005 continued in the early part of 2006 until her parents found out when the extra SIM card was discovered. When questioned about the fact that it continued into the first half of 2006 she said that she had told Detective Rankin about that. She suggested that sexual contact with the accused continued in January, February and March of 2006.[33] This was contrary to her signed declarations. Her police declarations do not mention any allegations of a sexual nature after December 2005 other than later allegations in November/December 2006. Detective Rankin did not agree that K had told her of allegations in January-March 2006. I accept Detective Rankin’s evidence about that.
[33] T 583.
K agreed[34] that she told Detective Rankin when she gave her initial witness statement on 21 June 2006 that she had, “Only sucked on the accused’s penis twice”. Her explanation was that she was embarrassed to tell any more. It was later put to her that when she gave a later declaration she increased the number of times that oral sex had occurred to around 10. This was in a statement of 20 September 2006 where she said, “The oral sex between the (accused) and myself happened on several occasions, 10 at most”.[35]
[34] T 597.
[35] T 598.
The point made by Mr Abbott was that if it occurred as often as she said in evidence now, namely three to four times a week for at least a six month or so period, then her evidence was inconsistent with her declarations as it would amount to significantly more than 10 occasions.
Her explanation was that she did not count the number of times and that she was only guessing.[36] I found her explanation about that unconvincing.[37] I do not accept that she told Detective Rankine about the conduct occurring in January-March 2006.
[36] T 599.
[37] T 600-603.
K said that when she gave her statement to the police she typed most of it out herself. She typed it out whilst she was at the police station with Detective Rankin present.
It is difficult to rationalise K’s evidence about these matters. In particular her failure to mention in her declarations allegations of sexual acts in January/February/March 2006 is most concerning.
K agreed that by about July 2006 she wanted the charges dropped. She denied that the reason for wanting the charges dropped was that the allegations were false. She agreed that they were eventually dropped on 7 December 2006. Her reason for wanting not to proceed with the charges was that she still had feelings for the accused and didn’t want to proceed.[38]
[38] T 674.
After 22 June 2006, the date of her first statement to the police, K initiated contact with the accused by sending him a greeting card using 00fun.com. It was a greeting card with no text; the greeting card showed a glass being half empty or half full.
The 00fun.com website is a site where arrangements can be made to send somebody a greeting card. Whilst the recipient address has to be entered and accurate, the sender’s address does not have to be accurate. K put the accused’s email address as both the sender and the recipient in order to disguise the fact that it had come from her.
Later the system was used by both K and the accused and the accused would send her material using this site by putting in her email address as both the sender and the recipient to disguise the fact that it had come from him.
K said that the accused responded to her 00fun.com emails in about October or so a few months before the charges were actually dropped. In other words by the time that she began to meet him at the Tea Tree Plaza there had been communication between the two of them using the 00fun website.
She also used her hotmail account which was the account that started kxx_click.
Court view and Count 7
In relation to the allegations underpinning Count 7, K gave a description of the conduct as occurring on five occasions in November 2006 and during her lunch breaks which were between midday and 3pm.[39]
[39] T 683.
On the last occasion when she met with the accused in the creek area behind Dick Smith’s she agreed that the accused had a towel with him. He laid the towel down and she sat next to him. She said it was flat enough so that she and the accused were able to lie comfortably on the towel.[40] She agreed that this was the last time that she had any physical meeting with the accused. She stated that the sorts of meetings with the accused occurred around the same time that the charges were dropped namely in November/December.
[40] T 687.
It was suggested to K[41] that, in the creek area that she had described, there was no place to lie down that is flat contrary to her description. She disagreed. It was put to her that she was not working over lunch periods for the time in November 2006. It was suggested to her that when she was working at Big W in November 2006 she generally worked between 5 and 7pm. She disagreed.
[41] T 705.
The court viewed the creek area behind Dick Smith’s. Facts about the terrain were agreed. K had not been back to the area before she initially gave evidence.
I do not accept her evidence about how the act of unlawful sexual intercourse is alleged to have occurred in the creek bed area. The terrain would quite simply make it almost impossible for it to have occurred as she alleged. I understand that the alleged act occurred some four years ago and the creek bed possibly could have changed over time. That is unlikely but possible. However the onus of proof is on the DPP not the accused. Whilst I accept K’s evidence that she met the accused in the creek bed, I cannot be satisfied beyond reasonable doubt that any sexual act occurred there. In addition, the work records from her employer cast serious doubt on the timing of events during this period.[42]
[42] Exhibit P55.
K agreed that she did not tell her counsellor at the time, Ms Bowden, that the accused had placed his finger in her vagina in the meeting in the creek bed near Dick Smith’s.
K agreed that when she had a meeting at the DPP on 9 November 2007 regarding the relaying of these charges, she didn’t tell anyone about the incident in November or December 2006 when the accused allegedly committed an act of unlawful sexual intercourse by placing his finger in her vagina. Detective Rankin was present at that meeting as well.
Those matters combined affected K’s credibility in relation to the allegations around and including Count 7.
Emails
Part of Exhibit P11 were a number of emails with the MSN and hotmail logos dated around 10 April 2007. K printed them for the purpose of providing them to the police[43] as she was thinking about asking the police to reopen the investigation. It was put to her that she had written to the accused to change the method of communication from 00fun to straight hotmail correspondence. She agreed that she asked him to do that as she was having “problems with 00fun”.[44] She denied any suggestion that she was asking the accused to change to the hotmail address as she wanted to get him into trouble by saying things in his emails.[45] However, she was shown an email from her to Karen Rankin on 8 December 2007. This was another email from a group of emails that went back and forth between K and Detective Rankin attaching different drafts of the statements. In relation to this draft statement attached to this email at page 6, it contained the following part:
I did this not because I wasn’t receiving emails from 00fun but because I wanted to get him to say things in his emails that would get him into trouble because of the way we were using I knew it looked like I was sending the emails to myself so I wanted things to be sent coming directly from his email address.
[43] T 713.
[44] T 714.
[45] T 714.

She agreed she wrote that. She was unable to explain her statement that she only changed to hotmail because of problems with the 00fun website. She denied that was a lie but was unable to explain the inconsistency.[46] The emails themselves in my view establish clearly that K was attempting to induce the accused to say something incriminating in the emails. I have little doubt that what she initially wrote in her draft statement was the correct position. Her denial in evidence that such had been her motive was untruthful. The fact that she was prepared to tell a lie even, when confronted with direct proof of the lie and then maintain it, reflects poorly on her credit.[47]
[46] Exhibits D23 and D24.
[47] Also see T 717 and T 718.
Evidence was given on the voir dire by Detective Senior Sergeant Barry Blundell. It was tendered at the trial as part of the prosecution case. He gave evidence as an expert. He obtained a Bachelor of Business, majoring in Information Systems and has been involved in the production of “electronic” evidence for the past 12 years. He currently lectures at the University of South Australia in the Masters of Information Assurance in the area of Electronic Crime Discovery and Forensic Readings. For the purpose of the voir dire, his declaration of 8 January 2009 was tendered and attached to that declaration was an Analysis Report.
Detective Senior Sergeant Blundell was an excellent witness. I accept his evidence.
He examined two computers, one from the accused and one from the complainant that had been seized.
Detective Senior Sergeant Blundell’s examination of the computer of the accused is contained within his Analysis Report which was also tendered as part of Exhibit P49. The relevant contents are to be found at pages 8 to 15.
The examination of the complainant’s computer and analysis is contained at pages 19 through to 24.
At the request of Detective Rankin, Senior Sergeant Blundell did some work on the “headers” on some of the emails provided by the complainant. The purpose of the inquiry was to see if the “headers” could be traced to a computer operated by the accused. In the end little turned on that. However, it was the timing on the “headers” that became important.
During the course of his evidence on the voir dire, a bundle of emails that had been referred to before, were tendered and marked Exhibit VDP1.
The importance of the Senior Sergeant’s evidence became clear during the cross-examination by Mr Abbott. The complainant had received an e-card from the accused and then forwarded it on to her counsellor Ms Bowden. What was clear from the cross-examination by Mr Abbott is that the text of some of the emails had clearly been altered.
I will take for example two groups of emails. At first glance when one looks at the “headers” they appear to be different dates. However the timing of the sending of the email is identical. There is an email dated 8 March 2007 13:18:57 -0500 (EST) as the heading. There is another email dated Friday, 9 March 2007 5:18:57.
I find proved beyond doubt that an e-card was sent by the accused to the complainant on 9 March 2007 at 5:18:57. At that stage the accused was in Africa. When the complainant went to forward that email to her counsellor the date changed to Thursday 8 March 2007 at 13:18:57. That is the same time as just mentioned minus Greenwich Mean Time. Thus the text of the emails should be identical. However they are not.
The text has been changed and could only be changed by the person who had received and then “sent on” the email. This was the complainant. There can be no other inference than the fact that the complainant changed part of the text of the email before she forwarded it to Sally Bowden. The complainant denied altering the text of the emails. She did not tell me the truth about that. The same can be said for the two emails dated 9 March 2007 and 10 March 2007 that contain the same timing with allowance made for Greenwich Mean Time. Again the text has been changed.
Whilst the changes in the text perhaps are not of great significance they do tend to remove from the emails what could be described as the “chattier” part.
Why K changed the text remains a mystery.
The fact that the complainant changed the text of the emails and then has told lies in court about it reflects very poorly on her.
On the topic of the email address of [email protected] she said she was not able to access that account after 17 April 2007 which was the date upon which Sally Bowden changed the password. She was unable to explain one of the emails in Exhibit P11 that she had printed out from the kxx_click email address which was dated 26 April 2007 and printed on 28 April 2007 that is some 11 days after she had handed over the password. K was unable to give any satisfactory explanation for this.
Having said that about the emails, what the undisputed emails disclose clearly is an inappropriate relationship between the accused and the complainant.
Conclusion
I have set out a number of matters that have concerned me about the complainant’s evidence. In summary they are the inconsistencies in her evidence in the sexual allegations particularly January/February/March 2006, the unlikely aspects of her evidence in relation to the sexual allegations of Count 7, and as discussed her demonstrated lies in court.
The accused did not give evidence. No adverse inference can be drawn from the exercise of his legal right. I must look at the prosecution case to see whether they have proved each element of each charge beyond reasonable doubt. In light of these matters I am unable to accept K’s evidence as to the specific allegations of sexual acts beyond reasonable doubt. As previously stated that does not mean I reject K’s evidence totally. I accept a lot of her evidence about the relationship she had with the accused. There was clearly an inappropriate relationship. Indeed I am suspicious that the accused may well have involved himself in some sexual activities with K. However, I am not persuaded beyond reasonable doubt that he performed the specific acts alleged. The accused is entitled to the benefit of that doubt.
I acquit him of Counts 1, 2, 3, 4, 5, 6 and 7.