R v F, MN - [2016] SADC 86

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, MN
Criminal Trial by Judge Alone
[2016] SADC 86
Reasons for the Verdict of His Honour Judge Slattery
27 July 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Accused charged with two counts of Aggravated Indecent Assault.
Verdict:
Not guilty on both counts.
Criminal Law Consolidation Act 1935 s 56; Juries Act 1927 s 7(1), referred to.
R v C, M [2014] SASCFC 116 (Court of Criminal Appeal), considered.

R v F, MN
[2016] SADC 86
JUDGE SLATTERY
VERDICT

MNF was charged on Information for arraignment on 27 June 2016 with four counts. He pleaded not guilty to two of the counts on the Information. A nolle prosequi was entered in relation to the other two counts.
The counts to which MNF pleaded not guilty and which are the subject of this judgment were as follows:-
Second Count
Statement of Offence
Aggravated Indecent Assault (section 56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
MNF on the 15^th day of March 2015 at Royal Park, indecently assaulted [the complainant] by touching her vagina.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
Fourth Count
Statement of Offence
Aggravated Indecent Assault (section 56 of the Criminal Law Consolidation Act 1935).
Particulars of Offence
MNF on the 15^th day of March 2015 at Royal Park, indecently assaulted [the complainant] by touching her anus.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
The accused pleaded not guilty to these two charges. He elected to be tried by a Judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
Counts two and four: aggravated indecent assault
The elements of the offences of aggravated indecent assault with which the accused has been charged are as follows:-
1.   An assault by the accused person on the complainant. An assault is any application of force. Touching is sufficient. It need not have caused injury.
2.   The touching was intentional as distinct from accidental.
3.   The touching was without lawful excuse.
4.   The touching was in circumstances of indecency – that is, conduct that is unbecoming or offensive to common propriety and that the circumstances have a sexual connotation.
5.   An assault which is aggravated, namely that the accused is alleged to have committed the offence knowing that the complainant was a child under the age of 14 years.
At this juncture it is necessary to identify the issue of indecency mentioned in the fourth integer above. In R v C, M,[1] the Court of Criminal Appeal gave consideration to the question of indecency and the proper directions required when considering that topic. It is necessary for the prosecution to prove beyond reasonable doubt that the circumstances of indecency have a sexual connotation.
[1] [2014] SASCFC 116 (Court of Criminal Appeal).
Notwithstanding recent decisions of the Court of Criminal Appeal about matters that need to be stated by a Judge sitting without a jury and accepting that it is not necessary for me to set out every obvious and basic direction which might be given to a jury, it remains necessary to record those directions about which I should remind myself. They are as follows:-
1.   An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2.   The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3.   The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4.   It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of that charge.
5.   Each of the counts on the Information concerns a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6.   The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7.   I have reminded myself of the usual directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact.
8.   In this case, the accused elected not to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy me of all of the ingredients of the charge. No inference or conclusion may be drawn because the accused elected not to give evidence as was his right. He was entitled to remain silent and it was for the prosecution to prove its case against him beyond unreasonable doubt.
9.   Finally, I remind myself that the sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lay in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
The alleged victim was aged 3 years at the time of the alleged offending and the issue of aggravation has not required further consideration here.
Summary and result
The offending is alleged to have occurred on the afternoon of 14 March 2015 at the home of the complainant’s mother. The allegations made against the accused are that he attended at the home of the complainant’s mother (TMB) and on that day consumed alcohol with her, stayed overnight and slept in the lounge room on a couch. At that time, the complainant also slept in the lounge room having been left there by her mother who had gone to bed in a heavily inebriated state. The complainant’s mother said that she left the complainant sleeping in a lounge chair. I have a real doubt about whether this evidence is correct.
It is alleged that the complainant’s brother TCB, who was then aged 10 was awake and watching a movie some time after 2.00am when he heard the complainant crying. He then saw the complainant and the accused in the toilet of the home and that she was holding her hand over her crotch area. TCB made observations of the accused and the complainant in the toilet area together. He said after they had both used the toilet, he was then threatened by the accused who said he would punch TCB if he told his mother what he had seen. He said that the accused told him that the complainant had passed some blood.
The accused remained at the complainant’s home until about 11.30am to about 12.00 noon on the following day. After he left, the complainant’s mother took the complainant to the shower and removed her clothes at which time the complainant told her mother that she should slap the accused because he had been naughty by putting his finger in her bottom and her rude bits.
The prosecution relies largely upon a circumstantial evidence case. It heavily relies upon DNA evidence which revealed the presence of the accused’s DNA on the outside and inside of underwear worn by the complainant. The complainant’s DNA was also found to be present on swabs taken of some of the fingernails from the accused’s left and right hands.
For the reasons which I set out hereunder, I find that the prosecution case is visited with sufficient doubt to constitute a reasonable doubt of the guilt of the accused. I would find the accused not guilty of the offences charged. My reasons for that verdict are set out hereunder.
The circumstances of the alleged offending
The home in which the alleged offences occurred was occupied by the complainant’s mother (TMB), the complainant and the complainant’s brother TCB. The house comprised three bedrooms, a lounge, a kitchen and meals area, a bathroom and a separate laundry and toilet. The house runs in a general east-west direction and its front faces to the west. The laundry and toilet area is at the rear of the house adjacent to an internal landing and an external verandah. The lounge which was described as bedroom 2 on Exhibit P2 was furnished with a three seater lounge and two one-seater lounge chairs, a television, a computer monitor and some minor furniture. The bedroom of the complainant’s brother TCB was situate at the eastern end of the house, at the rear. The door of TCB’s bedroom obtained a view across the landing through the laundry door and to the door of the toilet. It was not possible to see the toilet cistern and bowl from the doorway of TCB’s bedroom. Notwithstanding the evidence given by Police witnesses, I find that TCB’s bed was adjacent to the northern wall of that bedroom. This is obvious from the photographs in Exhibit P1.
On the southern wall of TCB’s bedroom was a wardrobe/cupboard. TCB gave evidence that on the western wall adjacent to his bed was a computer however the photographs in Exhibit P1 do not bear out that evidence. I find that any computer in TCB’s bedroom was situate in the wardrobe/cupboard that stood against the southern wall of TCB’s bedroom.
At the front of the home or at the western end, there are two bedrooms which on the plan Exhibit P2 are described as the lounge and bedroom 1. The complainant’s mother TMB occupied the bedroom described as bedroom 1. Also using that room as a bedroom was TMB’s youngest son “B” and sometimes the complainant. The complainant slept in either the room designated on Exhibit P2 as a lounge (but was a bedroom) or with her mother in bedroom 1.
In the photographs of the premises in Exhibit P1, photograph 1 is a view of the front of the house; photograph 2 is a view of the hallway; photographs 3, 4, 5, 6 and 7 are the photographs of the lounge area; photographs 9, 10, 11, 12 and 13 are photographs of the bathroom which TMB told Police was the place where she identified the clothing of interest worn by the complainant. Photograph 14 is a photograph of the landing; photograph 15 is a photograph through the laundry door; photograph 17 is a photograph of the laundry area that shows clothes that are placed on the laundry floor and photograph 16 is a photograph of the toilet. Photograph 18 is a photograph of the view facing south from the doorway of TCB’s bedroom. Photograph 19 is a photograph taken from adjacent to the northern wall of TCB’s bedroom across the bedroom looking towards the doorway of the bedroom, across the landing and to the laundry. Photographs 14, 15 and 17 are photographs of the laundry area. Photographs 14 and 15 shows the clothes upon the laundry floor.
These photographs were taken by Brevet Sergeant Darren Fechner on 15 March 2015. Photograph 12 of Exhibit P1 shows a pair of red polka dot shorts on the bathroom floor. The photograph shows a Police Exhibit Reference (PER) tab next to it carrying the number 53649-051-6. Photograph 13 also shows the clothes on the floor of the bathroom. It shows the red polka dot shorts, a pair of pink underwear and a white T-shirt top. The PER for the white T-shirt is 53649-052-5. Photograph 11 is a third photograph of the clothes on the bathroom floor. It shows the PER for the pink underwear carrying the number 53649-050-7.
Brevet Sergeant Fechner gave evidence that he was a crime scene examiner. He described the photographs he had taken which comprised Exhibit P1. He said that TMB showed him some items of clothing that became of interest namely the red and black polka dot shorts, the pink underpants and the white T-shirt. He said that they were in the bathroom[2] which is described in photographs 8-13 inclusive of Exhibit P1. Brevet Sergeant Fechner gave evidence that the red polka dot shorts, the white T-shirt and the pink underwear had all been marked with PERs and were seized by Police. These were then swabbed. Inferentially at least, TMB did not tell him of any other clothing of interest. All that he was shown was the clothing on the bathroom floor on that day and at the time of his visit. This was the clothing of interest.
[2][2] T14.29.
Later he undertook a forensic examination relating to the fingernails of the accused.
Brevet Sergeant Fechner agreed in cross examination that the items of clothing that were seized and which were marked with PERs were those items of clothing that had been indicated by TMB as the clothes that the complainant had been wearing on the day before, namely 14 March 2015. Brevet Sergeant Fechner did not examine the underwear to ascertain whether there was any blood on the underwear or on the shorts. Inferentially at least nothing was said to him at the time that would lead him to make such an investigation. The only adult occupant of the home who was present at the time of his investigation was TMB.
The investigating officer in the matter was Detective Andrew Murdock. He gave evidence that he had received a report from TMB about an incident that was alleged to have occurred at the home and that information had been received through Crisis Care. TMB, as the mother of the complainant, had made a report to Crisis Care. Following the information provided by TMB and after the investigations were made by the Police, the accused was then arrested and charged.
The complainant’s mother TMB then gave evidence. She was familiar with the accused and had known him for about 7 years. She always called him “Mick”. She lived in the same group of units as the accused for a period of time and met him through a mutual friend. She moved away from that area but later stayed with him for a few months while she was moving house. She maintained contact with the accused on Facebook and other social media after she moved to the house depicted in Exhibit P1 and Exhibit P2.
She gave evidence that the social meeting on 14 March 2015 came about because the accused had earlier messaged her and they arranged to catch up. He came to the house by car and arrived at about 3.00pm. Present in the house were TMB, the three children of TMB including the complainant and the children’s cousin who was aged 6 or 7. TMB recalls that on the day, they sat outside and watched the children playing. She had made up some platters of food and they sat outside drinking beer and some Canadian Club whisky that the accused had brought with him. She thought the children were all outside playing but she also knew her son TCB was playing on the computer with his cousin. She thought she had three beers whilst she sat outside as well as the Canadian Club. She said when they ran out of alcohol the accused went and purchased another bottle of Canadian Club and two bottles of cola. That was at a BWS liquor store around the corner and she was quite certain she did not go with him to purchase that further alcohol. She said later in the evening she cooked some sausages for the children and gave them sausages on bread with sauce.
Later in the night they all went into the lounge room. By that time she had put her infant son down to sleep and later in the evening her children’s cousin was picked up by his mother, her sister.
Whilst they were in the lounge room, TMB and the accused continued to drink alcohol and she said she was badly affected by alcohol by the end of the evening. She described herself as being fairly intoxicated. The accused was intoxicated but not as bad as she was. She did not put the complainant to bed but recalls the complainant falling to sleep on a chair in the lounge room at about 11.00 or 12.00pm. At that time, the complainant was wearing her pyjamas which comprised a white T-shirt which had a ladybug on the front and her shorts which had red and black polka dots on them.
TMB gave evidence that at the time she left the complainant sleeping on the couch, she was wearing underwear beneath her red and black polka dot shorts. She said she was wearing white underwear with butterflies on them. She then said that in the morning the complainant had different underwear on. It was clear to me from all of the evidence led at trial that this was the first time that TMB had said that in her recollection, the complainant was wearing different underwear from the time she last saw her when she went to bed compared to the time she saw her when she woke up the next morning. This was not mentioned in any deposition made or in evidence given by Brevet Sergeant Fechner or Detective Murdock. It was not contained within any statement or deposition signed by TMB.
TMB said she sat up drinking and talking with the accused during the night and then went to bed. She said she left the complainant in the lounge room which is where the accused was to sleep. He had asked to stay the night because of his level of intoxication. When TMB went to bed, the accused and the complainant were left in the lounge room. As far as she could recall, the complainant was laying on a single recliner and the accused was to sleep on the three-seater couch. At the time she went to bed, as far as she could recall, the complainant was asleep but the accused was still awake.
TMB could recall feeding her infant son before she went to bed and she thinks that was about 1.00am or 2.00am in the morning. She agreed that the complainant would normally sleep in bed with her or in her own bed in her own room.
TMB said she woke at about 6.00-6.30am the following morning, she went straight to the lounge room and found the complainant sitting on the accused’s lap. The complainant did not have her pyjama shorts on but she was wearing underwear. That was not necessarily unusual. The complainant was unresponsive and did not give her “cuddles”.
TMB says she then found some clothes near the toilet. These were the pants with red and black polka dots. That is not completely consistent with the evidence given by Detective Fechner on the contents of Exhibit P1. The relevant photos were taken of the complainant’s clothes said by TMB to have been in the bathroom of the home. It is unclear whether anything turns on this.
TMB said that she specifically recalls that the complainant did not have breakfast on the morning. She was emphatic about that and she says she recalls taking the complainant to the toilet at some stage during the morning and the complainant said there was stinging sensation during micturition. She said her bottom stung as well.
TMB said the accused left her home at about lunchtime and after that she showered the complainant. During the time that she was undressing the complainant before the shower, the complainant said to her that “Mick was naughty and that [she] needed to slap him because he stuck his finger into [her] bum and [her] rude bits, it stung and that it hurt”. It was understood that her “rude bits” meant her vagina.
TMB examined the complainant and found that she had a very red anus and vagina. She then made a phone call to the hospital, took the complainant to the Women’s and Children’s Hospital and had her examined by doctors.

TMB said that when the Police came to her house the following day, she showed the Police officer the clothes that the complainant was wearing during the course of the time that these alleged events had occurred. She was specifically asked whether the complainant was wearing the clothes that previous evening which were now being shown to the Police. TMB said “yeah”. She was then taken to photograph 10 of Exhibit P1 and identified that the clothes in that photograph were those clothes she had pointed out to the Police officers. She then said those were not the clothes that the complainant wore when she went to bed; they were the clothes she was wearing when she saw her in the morning. TMB had not told any investigating Police officer of these allegations. No opportunity was taken to search for any other clothes at the house.
In cross examination, TMB confirmed that there had been other conversations leading up to the meeting on Saturday 14 March 2015. She confirmed she had great difficulty that week with her son TCB; she had sent messages to the accused saying she did not know what to do with TCB; late on the evening of 12 March 2015 at 10.25pm she had sent a text message to the accused saying TCB had lost it, sworn at his teacher, left school and then came back after school finished to collect his bag and then went home. TCB told her he did not want to be there anymore and that he wanted to die. He had sworn at his teacher using profane language. She recalled that TCB threatened that when he turned 11 he would kill himself unless by that time he had seen his father. It was after that exchange that the accused sent her a text message saying he was going to be in the area because he was looking for a new car and he would drop in.
In cross examination, TMB was asked about the events of the afternoon and in particular that they sat outside for some period and then sat inside for a period from about 5.30 to 6.00pm. The proposition was put to TMB that the complainant was running in and out of the lounge room at that time and was sitting on the accused’s lap. At first TMB said she did not know about that but she did later confirm the complainant was going through the pockets of the accused and getting out his phone. She must have been sitting on his lap when she did this. She recalls there was a discussion with the accused about old times and this occurred at about the time that dinner was being cooked. She said that she might have had a discussion with the accused about her sister and the fact that her sister looked down upon her; that on occasions they both went outside for a cigarette and there was at one stage a competition to see who could run up to the top of the post in the front yard. She recalled she joined in on the game.
In cross examination, TMB denied she had gone to the BWS store to purchase more alcohol. She said she was not aware the complainant received a piggyback ride from the accused on the way back from BWS. Having denied she went to the BWS, she agreed that the accused paid for the whisky and she paid for the cola. Her denial is inconsistent with the content of her statement to Police of 19 March 2015. She also agreed that after her sister arrived to collect her own child, there was some discussion about the way her sister treated her and after that they remained in the lounge room drinking. She agreed that the complainant was jumping all over the accused and at some stage the accused fell asleep. In later questioning she disclaimed the assertion that the accused fell asleep. She cannot now understand or explain why she did not put the complainant in her bed. In the end she thought she was just too drunk to know quite what she was doing and she just went to bed and fell asleep.
She also agreed that her son TCB asked the accused to play a game called Grand Theft Auto with him and she confirmed in cross examination that the complainant had no breakfast that morning. She denied that the complainant had vegemite on toast. She also disagreed that the complainant was put into the shower before the accused left the home and she could also not recall telling the complainant to leave the accused alone during the previous evening. She also remembers someone knocked at the door about 9.00am on the Sunday morning to tell her she had left her laptop outside in the front yard. She agrees that the complainant may have been next to her when the accused left at about 11.30 midday.
In relation to the clothes that were worn by the complainant on the previous evening, TMB said in evidence that it was some time later that she examined the underwear that the complainant was wearing on the next morning compared to the evening of 14 March 2015. She confirmed again that the complainant did not go to sleep in that underwear. It was not until she did a load of washing and pulled out the other underwear that she noticed blood stains on them. She said it was too late to do anything with this underwear because apparently she would have washed away all of the evidence and there was nothing the Police could do with it. It was suggested to her that she then handed this underwear over to the Police. She said that she did hand the underwear to Police. She said she asked them about it and they said there was nothing they could do because it had been washed and there was nothing on them. She said she had this conversation with Detective Murdock. She was then asked to confirm that she had found the underwear, washed it but then handed it over to the Police. She then said she did not give it to the Police. She said she had a phone call with Detective Murdock, told him what she had found and he said because they had been washed, there was nothing they could do with them.
No evidence to this effect was given by Detective Murdock and, he having given evidence prior to TMB, no opportunity was taken to recall Detective Murdock on this point. I raised a query with the Prosecution about what I was to do with the fact that there was no evidence on this topic apart from that given by TMB. I was told that there was to be no other evidence on the point.
TMB was then asked to look at the photographs in Exhibit P1 again. She said she was not able to identify the underwear the complainant had been wearing on the previous evening. She said somebody, she did not know who, put them in the washing machine. She recalled that at the time the machine was full. That load had been washed on several occasions; it had not been emptied and needed to be rewashed because it had not been emptied. This was due to her laziness.
TMB was then further cross examined about what she told the Police. She was referred to the photographs in Exhibit P1 and in particular photographs 11, 12 and 13. She confirmed she told the Police the clothes displayed in those photographs, namely the shorts, the underwear and the white T-shirt, were the clothes the complainant had been wearing on the previous day. She confirmed that when the Police came to her home, they asked her to get out the clothes that the complainant had been wearing on the previous day so they could be photographed and they are the clothes shown on photographs 11, 12 and 13. She maintained again that she rang Detective Murdock some days after she discovered the other underwear in the washing machine. She confirmed again that he did not come to collect the underwear but she could see stains on the underwear even after she washed them.
I have serious doubts about the credibility and reliability of the evidence of TMB. I consider that Brevet Sergeant Fechner and Detective Murdock were witnesses who accurately informed me of the events of 15 March 2015 as they were informed of them by TMB. I accept their evidence as being truthful and reliable. There is no evidence that they were informed about any other clothes being discovered by TMB; that TMB had described to them the state of the clothes; and that they had not come to collect the clothes because of an opinion formed by Detective Murdock that nothing could be achieved by collecting the clothes because they had been washed too often. I am satisfied that there is no support for these assertions by TMB. I am satisfied that the evidence of TMB on these topics is not reliable nor is it credible. It is not accepted by me generally. I have consequently formed an adverse view of the evidence of TMB and except where it is otherwise corroborated by other acceptable evidence, I would not accept the evidence of TMB.
I also do not accept the evidence of TMB, for example, that the area of the complainant’s anus and vagina was very red. I would rely upon the evidence of Dr Jacqueline Schutz who examined the complainant and observed that there were no abnormalities of the complainant’s chest or abdomen, that she examined the complainant’s external genitalia and found no swelling, bruising or abrasions of the area. There was a mild increase pink colour of the area of the vagina and the anus but no discharge. She was not able to draw any conclusions about what may have caused any of that increased pink colour and she decided that there was no treatment necessary. She also confirmed that there was no bruising, swelling or other redness about the face of the complainant. There was nothing out of the ordinary about the face of the complainant.
The evidence of Dr Schutz is in my opinion quite important when considering one important aspect of the evidence of TMB’s son, TCB. TCB gave evidence that he was present when the accused came to the home and sat out the back with his mother. He played some tennis out there and recalled that the accused and his mother were drinking and talking. TCB says that after a while, he went to the local bottle shop with his mother and the accused. The whole family went including the complainant, his infant brother and his cousin. He thought they went to the bottle shop about three times that day. He recalled that TMB purchased beer at the bottle shop and does not recall the accused purchasing anything.
He said during the afternoon his mother was drunk and this was while they were outside. Later in the day, they all went into the lounge room including the accused. The complainant was also in the lounge room. He recalled his mother going to bed. This was late. He was in his bedroom at the time and at that time he knew the accused was on a chair in the lounge room. He recalled he went down the hallway and looked into the lounge room. He then saw that the complainant was on top of the accused on a chair in the lounge room. She was asleep. TCB thought that the accused was asleep when his mother went to bed. He recalls when he looked into the lounge room, he could see the accused sitting down with his sister, the complainant, sitting on top of him and facing him.
He knew the television was on in the lounge room but he knew it also turned off automatically so he did nothing about it.
He then went back to his bedroom and watched a movie on the computer screen. Whilst watching the movie he could recall hearing the complainant crying. He recalled looking out of his bedroom door and seeing the complainant at the toilet with the accused. The accused went to the toilet first. He micturated. At that time, the complainant was waiting at the door for him to finish and she was holding onto her crotch area. TCB recalls his sister telling the accused that she needed to go to the toilet now and he could recall her smacking the accused on the upper leg or waist when he was standing at the toilet. TCB recalled that the accused then smacked her back across the face which caused her to start crying. She then went to the toilet. From what I could ascertain from the evidence of TCB, the accused used some force when he slapped the complainant. I am not prepared to accept that evidence. There are many reasons. It is impossible to accept that a fully grown man slapping a female child of 3 years of age at that time of the morning would not have produced a more dramatic reaction. The evidence of Dr Schutz was that she thoroughly checked the face and head of the complainant the next day and she could not detect any sign such as swelling that would be expected as a sequelae of such a slap.
Even if I am wrong about the severity of the slap and the physical sequelae I would not change my views on this evidence. This is because of the lack of reaction by a three year old child to being slapped by an adult male at that time of the morning in those circumstances.
TCB said that after these events, the accused spoke to him and said “don’t tell your mother that (the complainant) is weeing out blood” and that he would punch him if he told anybody. He recalled that the accused then took his sister back out into the lounge room. A little later TCB went back to the lounge room. He saw the accused laying down but sitting on the lounge chair and the complainant sitting on top of him asleep. He recalls the accused saying to him that he should go back to his bed and go to sleep.
In cross examination, when he was asked about what had happened earlier in the day, he agreed that it might have been before the accused arrived that his mother went to get some alcohol from the bottle shop on her own. He does specifically recall that on one occasion going to the bottle shop when everyone went.
TCB was asked about the arrangements in his room. He confirmed that contrary to the map produced that was marked by Brevet Sergeant Fechner, (see Exhibit P2), his bed is closer to the northern wall and the computer is on the southern wall of his bedroom. If he was sitting at his computer, he confirmed he would not be able to see into the toilet area. He then said, inconsistently, that the computer was on the left hand side of the door way as you entered into the room whilst facing north. I am satisfied that the evidence I have seen in Exhibit P1 indicates that there was no computer at that point. TCB confirmed that at the time, when he saw his sister going to the toilet, he recalled her saying that she wanted to go to the toilet and he said when the accused slapped his sister across the face, the accused was standing facing the toilet cistern. He could also recall seeing the accused remove the underwear of the complainant to allow her to go to the toilet. He saw the accused pull down the complainant’s shorts and underwear and then sat her on the toilet. When she went to the toilet, the accused was standing outside of the door.
When she finished, the accused pulled her pants up and redressed her. After looking again into the lounge room, TCB went back to his bed and fell asleep. He woke in the morning about 10.00am and recalls that during the morning, he was aware that the complainant ate vegemite on toast for breakfast.
Finally, the prosecution called evidence from Louise Ann Harkin about the investigations into the DNA samples taken from the clothes of the complainant which are photographed in Exhibit P1. However, according to the evidence of TMB the underwear disclosed on photographs 11, 12 and 13 of Exhibit P1 was not the underwear worn by the complainant on the night of 14-15 March 2015. Ms Harkin gave evidence of the DNA assessment of a tape lift of the outer waistband, the inner waistband and the crotch area of the pink underwear. On the tape lift of the outer waistband, a mixed DNA profile was found of four contributors including the accused. The accused was a contributor and Ms Harkin said the probability of obtaining the evidence of the accused as a contributor compared to the hypothesis that the accused was not a contributor discloses that it is greater than 100 billion times more likely for the DNA to have come from the accused, the complainant and two unknown contributors as opposed to coming from the complainant and three unknown individuals. This is extremely strong support for the proposition that the accused is a contributor to the profile. On the tape lift of the inner waistband, again there were four contributors and the same likelihood of it being 100 billion times in favour of the accused being a contributor to the profile that was found.
In relation to the tape lift of the inner crotch, there was a mixed DNA profile of two contributors including the complainant. The other contributor was the accused. The DNA profile obtained from this tape lift is that it is greater than 100 billion times more likely to have come from the accused and from the complainant than from any other person. This is extremely strong support for the proposition that the accused is a contributor.
Then in relation to the swabs of the left hand fingernail of the accused MNF, there was found a DNA profile of three contributors including the complainant and the accused. It was found to be 5.2 million times more likely in favour of the hypothesis that the complainant was a contributor to the DNA found on the fingernail of the left hand of the accused. This is strong support for the proposition that the complainant was a contributor to that DNA profile. In relation to the right hand fingernail, there was a mixed DNA profile found with three contributors including the complainant and the accused. The hypothesis that the complainant is a contributor was 100 billion times more likely that the complainant was a contributor which is again very strong support.
Ms Harkin was then asked about contact DNA and she informed the Court that a person does inevitably deposit DNA by simply touching something. A person can touch something and leave a non-detectable amount of DNA or a person can deposit quite an amount of DNA. There is also a concept known in the science of DNA as secondary transfer. Primary transfer is where a person either by touching or handling an item deposits DNA or cells containing DNA onto the item directly. It is a single transfer step. Secondary DNA is where there are two steps involved in the transfer: there is the initial primary transfer onto an item and then there is the transference of that DNA from that item onto a second item so that there is a secondary transfer step. In cross examination, Ms Harkin agreed with the proposition that if a person is touching an item such as clothing, then there can be a transfer of the DNA to the clothing. It is possible to have a secondary transfer where for example a person touches the hand of another person and then goes and picks up or touches something else, then there can be a transfer of DNA. The strength or weakness of that proposition is dependent upon the source of the DNA in the first place and how much is transferred.
The accused elected not to give evidence
As was his right, the accused elected not to give any evidence. I remind myself that the accused was entitled to remain silent in the face of these charges and no conclusion or inference one way or the other is to be drawn from such an election. The onus is upon the prosecution to prove its case beyond reasonable doubt.
The basis upon which the prosecution puts its case
This is an inference and circumstantial evidence case. In order to succeed it is necessary for the prosecution to prove beyond reasonable doubt that not only is the guilt of the accused a rational inference, it must be the only rational inference available on the evidence before me.
The prosecution bears the onus of proof to prove each of the elements beyond reasonable doubt.
The prosecution case is a circumstantial evidence case. It was described by the prosecution as a strand as opposed to a chain case. This means that I am required to look at all of the pieces of circumstantial evidence collectively, giving each piece the weight that I think is appropriate and then to consider the combined force of all of the circumstances taken collectively in coming to my decision about whether the prosecution has proved its case beyond reasonable doubt.
As I have already stated, the correct test is that I am required to be satisfied beyond reasonable doubt that the prosecution has established that the only rational inference to be drawn from the whole of the evidence collectively considered is that the accused indecently assaulted the complainant. The alternative proposition is whether the prosecution has excluded all rationale hypotheses consistent with innocence.

The prosecution urged upon me that it would be an incorrect approach to look at each of the items of circumstantial evidence in isolation to consider whether any of them taken individually proved the case of the prosecution. I have not done that and it has not been my approach. The prosecution also urged upon me that it would not be a correct approach to merely discard a particular item of circumstantial evidence because of the probability of an innocent explanation for the evidence. It is necessary for me to assess the collective weight of all of the circumstances that I find proved and then take into account the collective weight of all of those circumstances in deciding whether I am satisfied that the prosecution has proved its case beyond reasonable doubt.
In this case, in proof of the case beyond reasonable doubt the prosecution relies upon the complainant’s consistency of conduct concerning a complaint that was allegedly made to her mother. This was said to be consistent with her having been sexually abused. Secondly, the prosecution points to the possibility or opportunity for the accused to have sexually abused the complainant and also points to the presence of the inflammation around the vagina and anus of the complainant. There is then the allegedly unusual behaviour of the accused in the toilet as witnessed by TCB. The prosecution also relies upon the DNA evidence.
The prosecution points to the complainant’s consistency of conduct as she made a complaint to her mother after the accused had left her home on 15 March 2015. This complaint is said to be consistent with her having been sexually abused. It also explains how the offending came to light. This evidence in turn relies upon the credibility of the evidence given by the complainant’s mother TMB. I have significant misgivings about the credibility of any evidence given by TMB; I have a real doubt about the credibility and reliability of her evidence. I have already set out above my reasons for so concluding about the evidence of TMB. I will not repeat these matters here. I do not accept her evidence when she says that the genitalia and anus area of the complainant was very red at the time of her examination because this is not consistent with the evidence given by Dr Schutz. It is also not completely consistent with the statement that she gave to Police on 19 March 2015. As well, there was no evidence of any form of injury to that area upon medical examination.
The prosecution points to the opportunity that the accused had to sexually abuse the complainant. I am not able to place any significant weight upon this evidence. TMB went to bed and left the complainant and the accused in the lounge room together. At that time, she thought that the complainant was asleep on the couch. I do not accept that evidence. At that time, TMB was heavily inebriated. The evidence of TCB was that he saw the complainant sleeping on the accused who was still awake. I gain no assistance from the evidence of TCB concerning the observations of TMB about where she left the complainant and the accused on the relevant evening. I accept the evidence of TCB that the complainant and the accused were together in the lounge room. However, that evidence does not take the matter any further. I am satisfied from the evidence that TMB was heavily intoxicated and could not necessarily accurately recall everything that was going on that evening. For that reason I am left in real doubt about what the position in the lounge room was at the time TMB left to go to bed. It is quite difficult to understand the fact that, as her mother, TMB would leave the complainant to sleep in a lounge chair. The complainant’s bedroom was adjacent to TMB’s and would have required little effort to put her in her bed. I consider that TMB, in the end, could not be bothered doing that for the complainant. Possibly she was so unaware of what she was doing that this possibility just did not occur to her.
The prosecution also relies on the evidence of TCB. The evidence of TCB is important and relevant in a number of respects. He observed the state of inebriation of TMB earlier at about dinner time. He thought that she was drunk. I think that this is an inference available to me on the whole of the evidence. The evidence is that TMB and the accused continued drinking alcohol inside the house in the lounge room. This was after the children were fed.
TCB apparently did not go to bed and to sleep at any time during the evening before about 2-3am. My impression of his evidence is that he appeared to think that this was something of a “badge of honour”.[3] He gave evidence of what he saw in the toilet and assessed objectively, the evidence suggests that the complainant, wanted to use the toilet. She could not do so as she was waiting on the accused. She apparently needed to use the toilet urgently. TCB observed the removal of her pyjama bottom and underwear by the accused and the redressing of her. This involved removal and redressing of her underwear. I consider that in such a process there is a reasonable possibility (and an explanation) that the accused’s hands made contact with the inside areas of the complainant’s underwear. This in turn is a reasonable explanation for the deposit of the accused’s DNA in that underwear, including on the crotch area. This is because the event occurred at between 2-3am and the accused had very likely been asleep after a heavy bout of drinking before he brought the complainant to the toilet. Some allowance must be made for the fact that at that time, his level of coordination may not have been as acute as normal.
[3] TCB is now a 12 year old boy and at the time of these events was 10 years of age. The evidence discloses that he slept for about 7-8 hours. He said that he always went to bed late. I do not think that this evidence was an embellishment on his part. Papers published by PubMed Health on 11 June 2014 within the National Centre for Biotechnology US National Library of Medicine, the world’s largest medical library, disclose that unless a child of 10 years regularly achieves 10-12 hours sleep a night that child is likely to be sleep deficient. Children who are sleep deficient are generally found to have social problems, feel angry, impulsive, have mood swings, feel sad or depressed and lack motivation. Sleep deprivation in children leads to an underdevelopment of the brain (compared to children who are not sleep deprived) and is linked to the development of Attention Deficit Hyperactivity Disorder (ADHD).
TCB did not give any evidence that the underwear of the complainant was changed. Inferentially at least, the underwear that he saw worn by the complainant at that time was the same underwear that is disclosed in Exhibit P1 but which TMB did not inform the Police was (allegedly) not worn by the complainant when last seen by TMB.
TCB gave evidence that the accused then spoke to him and said something about the complainant passing blood. He allegedly threatened TCB not to tell his mother (TMB) or he would be punched. On the following day, the complainant told her mother of what the accused allegedly did to her on the previous evening and TMB then examined the external genitalia and anus of the complainant. A doubt which arose about this evidence is that it relies in turn upon the credibility of TMB; I have already expressed serious doubts about the credibility and reliability of her evidence. The evidence given by TCB about the alleged passing of blood by the complainant is similarly not corroborated by evidence from the clothing worn by the complainant. The only evidence on that topic comes from TMB and I am not prepared to accept the credibility or reliability of that evidence.
Finally the prosecution relies on the DNA evidence. No doubt has been cast upon the technical findings of the DNA expert. The evidence has been accepted without challenge but the question here is the use to which that evidence can be put. The evidence of TCB provides a reasonable explanation of how at least some of the DNA of the accused was found on the underwear worn by the complainant. It would be difficult to perceive a situation where the actions of the accused in toileting the complainant would not have left traces of DNA upon the underwear. And it is to be recalled that according to TMB, this was not the underwear worn earlier in the night by the complainant. The evidence also is that the complainant was actively jumping upon and playing with the accused throughout the day. This activity is sufficient for both a primary and possibly a secondary transfer of DNA. Although I do not have to finally decide the question of secondary transfer, I consider that this evidence raises a reasonable possibility that at least part of the DNA transfer occurred during what may be described as good natured frolicking between the accused and the complainant during that day and evening. It certainly cannot be excluded as a reasonable possibility. I therefore find that the effect of the DNA evidence is equivocal and is not as strong a link in the chain of evidence as submitted by the prosecution.
On the separate question of the credibility and reliability of the evidence given by TCB, I have found that there is sufficient doubt attendant upon the evidence of TCB that I consider that there is also real doubts about the proof of the matters about which he gave evidence. He said that the accused slapped the complainant on the face but there was no medical evidence of this having occurred. Leaving that issue to one side, there was no reaction that may have been expected from a three year old girl to being slapped by an adult male who was really a stranger. I have great difficulty accepting this evidence. I am unable to place any weight upon it. And the alleged statement and threat by the accused to TCB must be assessed in the background that it was between 2am and 3am and TCB, a 10 year old child, was still awake. The question of his reliability in these circumstances looms large in my reckoning even though there is no evidence of how long he had been awake. Irrespective of that, my doubts remain.
In accordance with the submissions of the prosecution I am required to consider the separate strength of each strand of evidence and to then consider the combined effect of all of the evidence that I find proved. Then I am required to consider whether the prosecution has proved its case beyond reasonable doubt.
I have undertaken the tasks required of me. Because I have not accepted the evidence of TMB except where it is corroborated by other evidence, a number of the strands of evidence (or links in the evidence chain) have not been proved to any satisfaction. I have made findings on the other evidence led by the prosecution which have created significant doubts in my mind. I am not satisfied that the prosecution have proved the guilt of the accused to my satisfaction beyond reasonable doubt.
I find the accused not guilty of the charges upon the Information.