R v F, RC - [2011] SADC 99

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F, RC
Criminal Trial by Judge Alone
[2011] SADC 99
Reasons for the Verdicts of His Honour Judge Rice
7 July 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge without jury - six allegations of a sexual nature by a child (under 17) who was babysitting in the accused's home - one count the subject of a successful "no case" submission.
Verdicts: Counts 1 and 2 guilty as charged, Count 3 guilty of unlawful sexual intercourse, Count 4 not guilty, Counts 5 and 6 guilty.
Roach v The Queen [2011] HCA 12, judgment delivered 4/5/2011, paras 49, 66., discussed.

R v F, RC
[2011] SADC 99
Introduction

The accused is charged with two counts of indecent assault, two counts of digital unlawful sexual intercourse with a person under 12 years and two counts of penile unlawful sexual intercourse.
The accused elected for a trial without the jury. I note that in respect of Count 4 (an allegation of digital unlawful sexual intercourse) the prosecution concedes, and I agree, that there is no case to answer. I find the accused not guilty on that count. The reasons and findings below relate to the remainder of the counts.
In essence, the complainant alleges that the accused committed sexual offences against her whilst she was babysitting the daughter of the accused and his partner. The accused denied any such offending to both the police and to me in his evidence. To the police and in evidence the accused ascribed a motive to her in what he said were these false allegations. Obviously, if I was to convict the accused on any count, I would need to be satisfied beyond reasonable doubt on that count but, in a practical sense, the issue between the parties is whether any of these alleged events occurred at all.
Background and allegations
The accused lived at an address in Salisbury East with his partner and young daughter. The accused is now about 66 years of age and at the time of the alleged offending he was between about 59 and 63 years. The accused’s daughter, whose age and activities are very much linked to the allegations, was aged between about four and eight years.
The complainant, C, (I use that initial for convenience and it is not the first letter of any of her names) lived next door with her mother. At the times of the alleged offences, C was aged between about 11 and 15 years and was attending school. C’s father lived in Melbourne and she would visit him in every school holidays. C described the accused as being like a father-figure to her mother and like a grandfather to her.
There is no doubt that, at some stage, C commenced babysitting the accused’s daughter. One of the issues raised during the course of the trial is when that babysitting started. C said it was not long after her 11th birthday (T13). C’s mother said much the same thing (T55). The accused said it was when his daughter was about five, five and a half, years old (T103). His partner said C was about 12, 12 and a half, years old when babysitting started (T186).
The prosecution use the commencement of the babysitting as a marker for the first of the charges, an indecent assault. The prosecution alleges that babysitting became a regular fixture on a Thursday evening so that the accused’s partner (the child’s mother) could go to bingo. The accused’s partner would leave for bingo at about 5.30 p.m. and the accused would leave home at about 6.00 p.m. to go to work as a truck driver (both local and interstate). Much of the alleged offending is said to have occurred between the time the accused’s partner left for bingo and the accused leaving for work. (There were also uncharged acts which are referred to below.) In other words, the opportunity for some of the offending was during the time gap between each of them leaving.
The time when C commenced babysitting, in a formal sense, is blurred by the fact that she spent much of the time at the accused’s house playing with his daughter. As the accused’s partner and her niece said, C and their daughter had the run of the house for years before babysitting started (T173, 194). C would be playing at the house three to four times a week from when C was seven or eight.
There also seems to be no dispute that the accused had a number of operations that prevented him from working, certainly for any extended period of time. He had three shoulder reconstructions and two right knee replacements according to his evidence. Documentary evidence produced as part of the defence case shows the accused to have been in receipt of income maintenance for the period 23 January 2004 to 22 June 2006 (Exhibit D7), after which time there was a redemption.
It seems from that evidence that the babysitting, in any formal sense, did not commence until about mid-2006, at which time C was aged about 13 years. I regard that as an approximate timeframe because C may well have been looking after the accused’s daughter before that, before babysitting formally started (C was born on 6 May 1993 – see Exhibit P6). I do not regard this finding as diminishing C’s credibility (or that of her mother), rather it is a reflection on their reliability about the early events.
Allegations – Counts 1 to 5
Turning to the individual counts, Count 1, an indecent assault, was alleged to have been committed on the occasion of the first babysitting, after the accused’s partner left for bingo. It is alleged that the accused called C into his room, she sat next to him on the bed, he put one hand on her shoulders, admiring her top and then “dropped towards my boob” (T16). At the same time, he had his other hand rubbing her leg “towards my inner thigh” (T16).
A submission of no case to answer was made on this count. In my view, there is a case to answer. There is an alleged touching, the real question being whether there were circumstances of indecency. In my view, having regard to the overall circumstances, right-thinking members of the community would regard that touching, if proved, as sexually indecent. It should be remembered that this conduct occurred in the accused’s bedroom, and there was a vast age difference, the accused being about 61 years and C about 13 years. The type of touching, in those circumstances, if proved beyond reasonable doubt, amounts to an indecent assault.
Count 2, also an indecent assault, is alleged to have occurred on the very next occasion when C was babysitting after the accused’s partner went to bingo. C said she was again called by the accused into his room and was asked to sit on his bed. C said one of his hands was on her shoulder under her bra strap a few centimetres from her breast, and the other hand touched her leg and moved up to rubbing her vagina on the outside of her knickers (T17-18). C said that the accused was telling her not to call mobile telephones from the house telephone.
C also said that there were other occasions like Count 2 but she was unable to say how many times. I propose to treat those occasions as uncharged acts.
Count 3, an alleged unlawful sexual intercourse with a person under 12 years, is said to have occurred about six weeks after Count 2. On this occasion, C said she had been to hockey training and was late for babysitting. She said the accused’s conduct was much the same as it was for Count 2 but that, on this occasion, he put a finger two to three centimetres inside her vagina (T20).
As mentioned previously, it was common ground that there was no evidence relating to Count 4. The evidence that was attempted to be elicited for this count was too vague and uncertain to be used for any purpose, hence I have ignored it (T23).
C also identified another occasion, Count 5, of an unlawful sexual intercourse (this time penile) when the accused’s daughter needed to be picked up from taekwondo training. C attended at the accused’s house to babysit. She then learned that his daughter was at taekwondo training and needed to be picked up by the accused in about 30 minutes time. C wanted to go home and come back, but the accused asked her to stay because they would be leaving shortly. She said (T21-22):
It was a night that we went to pick up [the accused’s daughter] from taekwondo. He had said that it would be about half an hour until we had to go pick her up. I asked to go home in the meantime. He said he won’t be long, we would leave soon. He asked me to sit down on the bed. This time he had stood in front of me, I was wearing shorts and a T‑shirt, and he pushed me back on the bed, so I was laying down, and he then prepared to take my pants off with my knickers and he pulled them towards his knees, where he was standing right in front of me. He then left the bedroom and I went to go get up. As he was coming back in he closed the door and he pulled my pants down again as I pulled them back up. This time he had pulled his pants down as well, and he put a – he had a condom in his hand, and he had put it on inside of his pants and then dropped the wrapper on the floor. After this he said he wanted to put the tip in and I said ‘no’, multiple times and he said it wouldn’t hurt. So, I continued to say ‘no’, but he still did it and I had – tears rolling down my cheeks because it did hurt. He put it in a few times and then it stopped and I wanted to go home but we had to go pick up [the accused’s daughter].
She said she did not know how much penile penetration there was. She said they then picked up his daughter and C babysat. The accused is said to have put $50 under her bra strap before he left for work. It should be noted that her account includes the feature that the accused left the bedroom to obtain a condom. I also note that, on the accused’s account, he kept (her) condoms in the back room (T134).
The accused and his partner said there was no such occasion because their daughter was not going to taekwondo at that time (T157).
Count 6 – the last occasion
Count 6, the last occasion, an unlawful sexual intercourse said to involve penile penetration, requires detailed consideration because in the prosecution’s submission there is independent support for C, even though some of the evidence comes from C’s mother. Some of it also comes from the accused’s partner. Whatever the finding on this count, it has significant ramifications across all counts.
Again C was at the accused’s house to babysit his daughter, but this time it was a Friday night, not a Thursday night. In addition to that, C’s mother was also going to go, along with a friend. The accused was not home at the time and was driving locally. According to C, the accused was not meant to be home until the following night. An important fact is that C’s mother inadvertently locked her house keys inside her own house. C had to retrieve them, as her mother was leaving, necessitating C’s mother to go to the accused’s house to collect C and the keys at the end of the evening.
There is no doubt that the accused was made aware that his partner was going to bingo and that C was going to babysit. The time at which bingo was due to finish, according to C, was about 10 o’clockish, with her mother and the accused’s partner getting home at about 10.30 p.m. (T24). The accused said that he expected his partner would be home at 10.10 p.m., 10.15 p.m. (T120). The accused said he arrived home at about 10.08 p.m. (T120). The accused’s partner said she expected to be home at 10.10 p.m. (T194). C’s mother said the bingo finished at 9.55 p.m. this night (T57).
There is also no doubt that the accused knew of his partner’s plan to go to bingo that night because she rang him and told him. Further, the accused spoke by mobile phone with C during the course of the evening. There was evidence from the accused that he had trouble with the truck at McLaren Vale and that repairs were needed to it when he was in Adelaide. He said it was originally planned that he would unload at Wolf Blass in the Barossa (the cargo was wine) and then be sent (he thought) interstate. He planned that, at some stage, he would go home and have dinner and a shower before going to unload at Wolf Blass. He certainly parked his truck on Main North Road, after the repairs had been effected, about 10 minutes walk from his house. (The truck, a Kenworth B‑double tanker, was too big to drive in the narrow streets close to where he lived.)
I turn to what C said about the events leading up to the accused’s return home and Count 6. C said she went to the accused’s house and the group left to go to bingo at about 5.30 p.m. The date is known to be Friday, 15 February 2008. C said the accused called, as he usually would, to see that all was going well. She said that about 10 o’clockish she received another telephone call from the accused saying that he was coming home. C said she thought the others would be home from bingo at about 10.30 p.m. C gave this evidence (T24-25):
A.….he asked me, sorry, to go down the park and meet him and leave [the accused’s daughter] at home by herself and I said ‘No’ and then he called me again and tried to ask me to meet him at the front of his house. I again said ‘No’ so he came through the back door and – he told [the accused’s daughter] to stay in the lounge room and he had asked me to go into the bedroom, after he had already walked up there. I went into the bedroom, I stood at the doorway and he said ‘Come in’, so I went and sat on the end of the bed this time – I was wearing school pants and a top. And he was wearing his work shirt and jeans. On this occasion he had pulled down my school pants and he had unzipped his pants. He had put his condom on inside of his jeans and then dropped the wrapper on my chest. Then he put his penis inside of my vagina for a few minutes and then suddenly said to get my clothes and go. Because he had locked the door behind him it was hard for me to get out. I had put my underwear on and was still holding my pants in my hand. I got the door unlocked and ran over to the toilet and as I was running over to the toilet my mum was standing in the hallway.
Q.What happened when you saw your mum standing in the hallway.
A.Mum obviously freaked out. She asked me what happened. And I went into the toilet and locked the door. She then ran into the bedroom where [the accused] was and started yelling saying ‘What have you done?’ I then opened the door and mum – as I was getting changed in the toilet, I then opened the door and mum said ‘We are leaving’. We went home and we called the police.
Mobile telephone records that formed part of the Agreed Facts (Exhibit P5) show the accused to have telephoned C’s mobile phone a number of times that evening, particularly five calls between 9.54 p.m. and 10.05 p.m. Obviously those records say nothing about the content of those calls and I refer below to the accused’s quite different account of what was said.
So far as the events surrounding Count 6 are concerned, C said the accused stopped sexual intercourse because he heard a car pull into the driveway. The proximity of his bedroom to the driveway would allow the accused to hear and see the lights of a car in the driveway.
The police arrived at about 11.00 p.m. C complained to Senior Constable Edwards that the accused had raped her that evening and that there had been an earlier indecent assault, about which she gave no details (T79).
As is referred to below, the accused said that “nothing” had happened with C. After C’s mother and the accused’s partner saw the accused in his bedroom, he said nothing about being set-up by C for the reasons he later told the investigating police officers. He said nothing to C’s mother or his partner about her “playing with herself” just before the adults returned from bingo (T176-180, 206). Somewhat remarkably, the accused, knowing the situation that confronted the others when they returned to his house and that the police were being called, had a shower and went back to work (although he went to the police station later when he had delivered the wine and returned in his own car).
The accused was interviewed in the early hours of Saturday, 16 February 2008. He was interviewed about two counts of rape and two counts of unlawful sexual intercourse with C. One rape and one unlawful sexual intercourse were alleged to have occurred the previous evening at about 10.10 p.m.
In his interview, the accused said he was going home for a shower and tea. He said he thought his partner was going to return from bingo “…at half past ten, quarter past ten.” He said prior to arriving home he spoke by mobile phone with C. As I understand the recorded interview, they argued about C “wagging school” and the accused was threatening to tell C’s mother about it. In response, C is alleged to have said that she (C) would tell her mother that the accused helped her wag school on a couple of occasions and gave her alcohol (both of which the accused now acknowledges are correct). Further, the accused said that C threatened to tell her mother that the accused had sex with her and her mother would believe C and not the accused. The accused said that C then took her pants off, lay on the bed and started “playing with herself”. The accused said C then heard her mother come in (to get the keys), that C pushed the accused off the bed, that she then gathered her clothes and went out into the hall and said that the accused had had sex with her. No witness says that C said that the accused had sex with her.
As best I can understand the interview with the accused, he was saying that C was demanding more money for babysitting and her phone. When he refused, she was threatening him (C had a hold over him because of things he had done for her) that she would tell her mother the accused had sex with her. C asserted, according to the accused, that C’s mother would believe her and not him. The defence case is that the threat to make a false allegation of rape and then making that allegation was designed to prevent any conversation between the accused and C’s mother about C’s conduct. No onus rests on an accused but, in this case, the accused puts forward a positive motive in C to lie. The prosecution must disprove that suggestion beyond reasonable doubt before any conviction could follow. Even if I reject such a motive, I would need to be satisfied there was no other motive and further, most importantly, I would need to be satisfied about the honesty, accuracy and reliability of C.
Additional facts are dealt with below.
One further matter to mention at this stage is that a stain was found on the quilt seized from the accused’s bedroom at about 1.20 a.m. on Saturday, 16 February 2008. It could not be said that the stain is human blood. The DNA profile for the blood-like stain on the quilt matched the profile for C. DNA technology does not enable it to be said that the stain came from C. However, the DNA profile obtained from the blood-like stain is about one billion times more likely to match the DNA profile of C if she left the DNA than if it was left by another, unrelated female (Exhibit P5, Agreed Facts, para 2).
I do not think much reliance, if any, can be placed upon this evidence. There is no way of knowing when the stain came to be deposited there and therefore how old it is. The presence of the stain says nothing about the circumstances that led to the deposit. C does not suggest anything about the alleged offence on the bed that may account for it. In a similar vein, the medical evidence is not able to assist as to whether sexual intercourse took place with the accused.
Defence case

I have already touched upon the defence case. The accused gave an account to the police denying any offending and specifically making the assertion that he had been set-up by C. He said to the police that there had been, over time, increasing demands by C for money. He was tiring of her demands. He said they spoke over the telephone a number of times that evening whereby he eventually said that he was going to speak to her mother about the ways he had been assisting her. C responded by saying that she would tell her mother that the accused was having sex with her. This was said to be designed to stop the accused saying anything to C’s mother. The defence case is that on that night, and now in court, she followed through with that false allegation.
The accused gave a more detailed account in court, but the substance of his account remained. He denies any wrongdoing. He also called his partner and her niece.
The defence case includes a reference to a series of telephone calls between the accused and his wife. The defence also rely upon a text message from C which reads as follows:
Come through the front door. I told [the accused’s daughter] before you had to talk to me.
The accused said that, although the time of receipt of that text is shown as 10.34 p.m., it could be half an hour to an hour late (T119, 131). It is submitted that that text is consistent with the sequence and nature of the contact with C that the accused asserts relative to that evening.
It is accepted that the accused and his partner bought C a mobile phone and its cost was being offset by her babysitting.
Legal directions as to the ingredients of the alleged offences
Indecent assault
An indecent assault is the unlawful application of force in circumstances of indecency. It consists of two essential elements, each of which must be proved beyond reasonable doubt before an accused person can be found guilty of the offence. If otherwise proved in this case, consent is no defence given the age of the C. As mentioned previously, C was born on 6 May 1993.
Further, an assault must be in circumstances of indecency. In the situation of a trial by Judge alone, it is for the Judge to assess whether right-thinking members of the community would consider the conduct indecent. A consideration of the circumstances which are relevant in that assessment are not limited to physical acts. Talk of a sexual nature, in conjunction with physical touching that is not necessarily a sexual touching, still may be an indecent assault. It is trite to say that it all depends on the circumstances as proved.
So the first element, of course, is an assault. An assault is the intentional, deliberate and unlawful application of force by one person to another. The application of force need not be great. Any touching or handling would be enough. The application of force does not need to cause any injury. The application of force must be intentional, so that a purely unintended accidental touching, for example, would not be sufficient. By way of example, brushing against someone on the bus or the tram or in the street or in a public place, brushing against a person in that way, is not an assault. The application of force must be unlawful, that is, without lawful justification or excuse. No-one has suggested that there is any lawful justification or excuse here for any of the alleged conduct. The conduct is denied.
The second element is that the assault must occur in circumstances of indecency. The word “indecency” is a word that is well-known. Obviously, there are many kinds of conduct about which people might differ as to what is and what is not indecent. Some things may be a matter of taste, but, putting those things to one side, there are other kinds of conduct which, by any reasonable contemporary standards, can only be described as indecent.
Unlawful sexual intercourse with a person under 12
The offence of unlawful sexual intercourse with a person under 12 is committed when a person has sexual intercourse with another person when that person is less than 12 years of age. There are two elements of this charge which the prosecution must prove beyond reasonable doubt. First, that the accused had sexual intercourse with C and, secondly, that at the time C was under the age of 12 years.
Parliament has provided an extended meaning of what is involved in sexual intercourse. For the purposes of this case, sexual intercourse includes the penetration of the labia majora or outer lips of the female genitalia using a finger or fingers. As stated, in this case C alleges that the accused put a finger in her vagina.
Any degree of penetration is sufficient, but there must be some penetration. Also, penetration for the slightest period of time is sufficient.
Consent on the part of C is no defence and is irrelevant. The charge is proved if the two elements are proved regardless of whether C consented, as the law merely concerns itself with the act of sexual intercourse, however it came about.
The second element of the charge to be proved beyond reasonable doubt is that C was under the age of 12 years at the time the sexual intercourse occurred. Given her date of birth of 6 May 1993, and my earlier finding, she was about 13 at the time of the alleged offending in Count 3. There is insufficient proof that she was 12 years or younger.
Although on my factual findings relating to age Count 3 could not be proved, at common law it would still be open to me to convict of unlawful sexual intercourse provided I was satisfied it occurred on this occasion (after hockey training).
Unlawful sexual intercourse
As to Counts 5 and 6, the same matters need to be proved in the sense that an act of sexual intercourse must be proved beyond reasonable doubt. Such an act is unlawful if C was less than 17 years of age, here it being alleged she was 14 years old. If these allegations are proved, C was certainly less than 17 years.
General directions
Burden of proof
The burden of proof rests on the prosecution from beginning to end. The accused does not have to prove or show anything. The accused was not obliged to speak to Detective Brevet Sergeant Schuurmans but he chose to do so. The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered alongside the other evidence in the case. I give him credit for adopting a course he was not obliged to adopt.
Even if I disbelieved the accused’s evidence and that of his partner and witness, I would still need to be satisfied, beyond reasonable doubt, about each count before I could convict.
I make it plain that I have scrutinised C’s evidence with special care and could not act upon it unless satisfied about its honesty, accuracy and reliability.
I am all too conscious of the need to avoid a perceptible risk of miscarriage of justice and hence warn myself against the dangers of relying on C’s evidence, particularly having regard to the matters raised by Ms O’Connor in her final address.
Degree of proof
The prosecution must prove guilt beyond reasonable doubt before a conviction on any count could be entered. That degree of proof extends to each of the individual elements of each charge. Nothing short of proof beyond reasonable doubt will do. If, upon a consideration of an individual count, I am unable to say where the truth lies (to the extent that that is the purpose of the trial on each count), then the verdict must be one of “not guilty”. Where I indicate that I am satisfied about a particular fact or event, or I find a fact or event proved, I mean satisfied or proved beyond reasonable doubt.
Presumption of innocence
The accused has come into this court with the presumption of innocence operating in his favour on each count. The law regards him as innocent on any and all counts unless and until his guilt has been proved beyond reasonable doubt.
Separate consideration of counts
Consistently with what I have said above, each count will be given separate consideration because the facts of those counts are quite distinct. The general background situation is one about which there seems no dispute, that is, that the accused and his partner lived next door to C and her mother and that there was friendship and mutual assistance between the households. There is no doubt that C played with the accused’s daughter for some years and that eventually C began to undertake formal (as I have put it) babysitting, that is, for which she was paid.
Joinder
There was no application for separate trials as to the counts. In any event, I considered they should be heard together.
Quite apart from those considerations, the Information was filed on 3 August 2009 and is therefore captured by the operation of s 278(2a) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
The joinder is amply justified on the usual bases and no question of propensity arises. However, in any event, I make it plain that I have approached the case on the basis that propensity reasoning has not been applied. That is, even if it is shown that the accused committed an offence, any conviction is not on the basis that he is the sort of person who would commit that offence or that he is more likely to do so.
Uncharged acts
Quite apart from the charged acts, the prosecution led evidence of other alleged sexual acts between C and the accused. Some of the uncharged acts lacked any real particularity and were, therefore, inadmissible in support of charged acts. As mentioned, for that reason, I have excluded some of them from my consideration of the charges.
I also make it plain that I do not use an uncharged act upon which I can potentially rely unless I am satisfied it occurred. Such a degree of proof is demanded because it is only an exercise of the prosecutorial discretion whereby certain acts are charged and certain acts are relied upon as uncharged acts. In that situation, in my view, charged and uncharged acts need to be proved to the criminal standard. I have not used any proved uncharged acts to bolster any charged acts that do not otherwise meet the criminal standard. (The debate about the standard of proof for uncharged acts continues: Roach v The Queen[1].)
[1] [2011] HCA 12, judgment delivered 4/5/11, paras 49, 66.
Use of proved uncharged acts
It is not helpful to talk of proved uncharged acts simply as providing a background or context against which the charged acts were allegedly committed. Their purpose needs to be specifically identified in terms of relevance to the issues.
The uncharged acts (after the acts said to support Count 1) go to explain why C did not immediately, or within a reasonable time, complain to someone about the accused’s conduct. Further it may show the charged conduct was not without precedent or did not “come out of the blue” and the accused could, therefore, be confident about her silence. On the prosecution case, there was a progression of the alleged seriousness of the accused’s actions whereby he grew more confident, bold and more prepared to take risks.
Obviously uncharged acts need to be considered along with the rest of the evidence. The charged and uncharged acts need to be considered in the light of the evidence from C and the acknowledged evidence from the accused about his assistance to her. I find this evidence to be in the nature of grooming of C by the accused to gain her favour and silence.
I make these findings. The accused supplied C with cigarettes on an occasion; on one or two occasions the accused (and his partner) allowed C to take alcohol from their refrigerator when she went out with her boyfriend (T166, 181, 190); the accused even bought her condoms for her to give to her boyfriend (hiding them in a golf bag in a back room of his home) (T134). In addition to that, I find the accused condoned her being truant and in fact took her to her boyfriend’s place on at least one occasion when she should have been at school (T133-134, 138-140).
Evidence of complaint
It is a principle of our law that, in general, the only evidence of the existence of facts or the occurrence of events which is permitted in our courts is evidence given on oath or affirmation in the witness box and subject to cross‑examination. That is an important safeguard in our criminal justice procedures. What a person says outside the court or other than in evidence in court, is not evidence of what occurred. If proved, it cannot be used to prove the truth of what is asserted.
It follows that what C said to her mother and the police officers is not evidence of what occurred and I must not use it for that. For that I must rely on the evidence given in court at this trial. It is evidence of consistency of conduct and is therefore relevant to her credibility. It is evidence of consistency because, if the events occurred as C said, I would expect her to complain to someone at the first reasonable opportunity. On the prosecution case, that is what she did in relation to the last occasion. Here, however, the evidence of complaint counts against C’s credibility because she said it only happened on two occasions during the preceding month.
Additional factual consideration of the last occasion
More needs to be said about what occurred on the Friday evening when those who had been at bingo arrived home and what happened thereafter. These are some of the main points.
As quoted above, C was in the main bedroom with the accused. She says that, at that stage, the light was off because the accused turned it off when she walked in. She said the act of sexual intercourse took place and the accused desisted as he heard a car pull into the driveway. C said that when she left the room she had put her underwear on but was holding her pants in her hand.
C’s mother was first into the house; she describes that as being via the front door (T57). The accused’s daughter answered the door and C’s mother moved quickly inside looking for her daughter. The hallway onto which the bedrooms opened was in darkness. C’s mother heard the action of a door handle and saw C cross the hallway from the bedroom of the accused and his partner, to the toilet (see plan, Exhibit P1). C’s mother pushed the toilet door open to see her daughter standing with her knickers and school pants in her hand. (She was apparently scared but that is equivocal and I disregard it in the circumstances.)
C’s mother said she then went to the accused’s bedroom, flicked on the light and the accused was sitting on the other side of the bed, on the floor, facing the wall. She wanted to know what was going on and the accused replied “nothing”. C then packed her school bag and left with her mother.
The accused in his interview with the police said she had been “playing with herself” in the circumstances he described. She is said to have pushed him off the bed and she ran or walked out with her pants in her hand. He said that, before that, C had her pants and underwear off.
The accused in evidence said C was lying on his bed with her pants off, he did not know about her underwear but she was rubbing “down near the vagina” (T127-128, 150-151, 163-165).
The accused’s partner said that when she went inside (after C’s mother), she was wondering where everyone was. As she looked down the passageway she says she saw a “flash of [C] going past into my toilet”. She said “She was carrying something and her legs were exposed”. C’s mother was pounding on the toilet door asking what was wrong. C said “nothing” (T200).
The accused’s partner said C’s mother then went to the bedroom and flicked the light and the accused was seen by her (his partner) to be sitting on the floor, dressed in shorts and T-shirt, ugg-boots off. The accused’s partner marked photograph 2 (of Exhibit P2) to show the accused in a different position than others had described, including the accused (T201-206).
Assessment of witnesses
In the main, I found C to be a reliable historian, although I was uncertain about her age when formalised babysitting commenced. This aspect of the case has been dealt with above. I find her to be honest, accurate and reliable as to the substance of the sexual allegations made by her. She was an impressive and clear witness, making appropriate concessions.
Not surprisingly, a great deal of the evidence concentrated upon the last occasion. I find that the accused was working (driving) that day and into that evening. He intended, at some stage, to return to his house to shower, change clothes and have dinner. He did not intend to be at home for particularly long. He would then continue his driving, possibly needing to go interstate.
The accused learned that, on that evening, his partner and C’s mother and a friend were going to bingo at about the normal time of 5.30 p.m. The accused learned of this during the afternoon when his partner rang him. He knew C was going to be babysitting. It was a Friday night but he anticipated the timetable for bingo would be about the same as it would be for the normal Thursday night.
The accused rang C a number of times during the evening. As normal he would enquire whether his daughter was okay and that there were no problems. On one of the calls he indicated that he was returning home and this he did at about 10.00 p.m. He could anticipate that his partner would not be home for a short while. He called C into his room. I accept the substance of her account of what happened in that room.
The accused was having sexual intercourse with C (using a condom) when he heard his partner returning. Upon hearing that, he desisted and told her to put her clothes on and leave the room.
I find that when C left the accused’s bedroom she was either naked from the waist down or had her underwear on and was carrying her pants. She (C) then scurried across the hallway to the toilet in the hope that she was not seen by her mother or the accused’s partner. However, as events transpired, C was seen by both of them in some state of undress.
I reject the accused’s account that when she was in the bedroom they were arguing. I reject any suggestion that C took off some or all of her underclothing and was touching herself in the way the accused described.
If this was “set-up”, why did C leave the room? Why not remain, unclothed, for C’s mother and his partner to see?
Looked at another way, if C was going to “set-up” the accused with a false allegation, why the need to remove any clothing? Why not simply make the allegation verbally without the removal of any clothing?
I add that, apart from the accused saying it, there was no evidence from C’s mother or the accused’s partner that C made any false allegation of a sexual nature immediately upon emerging from the bedroom or toilet. In fact, C was initially saying that nothing happened.
Dealing with those aspects of the evidence in that fashion is not to suggest that any onus rests on an accused person, let alone to prove a motive to lie. I have not reversed the onus of proof and remain conscious of it at all stages.
Necessarily involved in these findings is a rejection of the evidence of the accused on matters of substance where it differs from that of C or her mother. Even the evidence of the accused’s partner supports that part of the prosecution case concerning C’s undress upon leaving the bedroom.
In making my findings, I have not lost sight of the argument put on the accused’s behalf that to indulge in sexual intercourse as alleged when the accused’s partner could be home at any moment, was so risky as to throw doubt on C’s account. I accept that there was clearly some risk, but there was sufficient time and the accused has been shown by the evidence to have taken risks.
There are some features of the accused’s evidence that were particularly important in reaching my conclusion about him. I make these comments bearing in mind the manner of his delivery on some occasions and his recent stroke.
I have already referred to the fallacies, as I see them to be, in his continued assertion that C was “setting him up”. It does not reflect well on the accused that there was an occasion when he supplied cigarettes; that there were one or two occasions when alcohol was supplied to C and her boyfriend; that he helped her to be truant on at least one occasion; and that, bearing in mind her age of 14-15 years, he supplied condoms to C. The fact that the accused’s partner knew about these matters indicates it was not an arrangement about which only the accused and C knew but, at the same time, does not reflect well on her also.

In the same sense, it does not reflect well on C either, but she was only a child and the other two adults. These were the benefits of her relationship with the accused which supports the view (which I have reached), that they were part of the accused’s hold over her and goes to help explain her silence about other sexual acts.
On the topic of the condoms, the accused gave quite extraordinary evidence. He acknowledged that he obtained condoms for C for her boyfriend (T134). The accused then appeared to say that he thought the condoms were for C’s boyfriend to use with another girl because C was not sexually active (T137). At the very least, I thought that the accused was being evasive in that evidence.
Conclusions
I find the complainant to have been impressive, honest, accurate and reliable both as to allegations in the charges and as to the history of their relationship and uncharged acts. I reject the evidence of the accused and those of his witnesses where they differ in substance from C. Rejection of the accused and his witnesses does not prove anything and I still need to be satisfied about the remaining charges. I am so satisfied.
I record verdicts on Counts 1 and 2 of guilty as charged; as to Count 3, I record a verdict of guilty of the alternative offence of unlawful sexual intercourse; as to Count 4, I record a finding of “not guilty”; as to Counts 5 and 6, I record verdicts of guilty.