R v Gill - [2017] SADC 22

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILL
Criminal Trial by Judge Alone
[2017] SADC 22
Reasons for the Verdict of Her Honour Judge S David
14 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with the offence of aggravated indecent assault - trial by judge alone - accused a childcare worker alleged to have indecently touched 5 year old boy at childcare centre - charged offence allegedly witnessed by another childcare worker - prosecution sought to lead statements by child to family members as evidence of uncharged acts - child did not give evidence - child did not disclose alleged offending in recorded interview with Child Protection Services. Elements of charge proved.
Held: Verdict of Guilty.
Evidence Act 1929 s 34LA, s34KB; Criminal Law Consolidation Act 1935 s 56, referred to.

R v GILL
[2017] SADC 22

The accused was arraigned before me on the following Information:
Peter John Gill is charged with the following offence:
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter John Gill on the 16^th day of December 2014 at Newton, indecently assaulted [the complainant] by touching his genital area.
It is further alleged that [the complainant] was under the age of 14 years at the time of the offence.
It is further alleged that Peter John Gill abused a position of authority, or a position of trust, in relation to [the complainant] in committing the offence.
The plea
The accused pleaded not guilty to the charge. At his election I heard the trial without a jury. I now publish reasons for the verdict I am about to deliver.
Overview of the prosecution case
The prosecution alleged that on 16 December 2014 the accused fondled JH’s genitals over his shorts at a childcare centre at Campbelltown (‘the centre’) which JH attended and at which the accused was employed. JH was aged 5. Another childcare worker, Ms Young witnessed the touching. She reported her observations to the director of the centre on 18 December 2014, who reported the allegations to police on 20 December 2014. JH’s parents were not advised by any person at the centre of Ms Young’s purported observations of the accused touching JH’s genital area.
On the evening of 18 December 2014, JH disclosed to his father and mother that the accused had previously asked JH to show the accused his penis. The disclosures occurred in the following way. On that evening, JH’s father saw JH playing with his penis, and questioned JH about his behaviour. JH told him that Peter (the accused) had been looking at his penis. JH then repeated the disclosure in similar terms to his mother.
Earlier in 2014, JH had also told his grandmother that Peter (the accused) put his hand inside his shorts when he was seated on the accused’s lap coming down the slide at the centre.
On 19 December 2014, JH’s parents informed the director of the centre and the police of the disclosures, at which time JH’s parents were unaware of Ms Young’s observations of the accused purportedly touching JH’s genitals on 16 December 2014.
JH was interviewed by Child Protection Services on 6 February 2015. JH made no disclosures during that interview and in fact denied that the accused had asked him, JH to show his penis or that the accused touched him, JH on or around the genital area. After the interview, JH’s mother asked JH if any person had touched him and JH said ‘yes, Peter (the accused) on the slide’.
The prosecution sought to lead the disclosures by JH to his family for a testimonial purpose pursuant to s 34LA of the Evidence Act 1929, as evidence of uncharged acts.
On 2 April 2015, police attended at the accused’s home and he was reported for the offence of Aggravated Indecent Assault.
JH was not called to give evidence.
The accused did not give evidence at trial nor did he call any evidence. The defence case, as put to Ms Young was that she had been confused and mistaken about what she saw take place between the accused and the child on 16 December 2014. Furthermore, while there was no challenge to the admissibility of JH’s disclosures to members of his family, it was said that I could not rely on the truthfulness and accuracy of the facts asserted in those statements as evidence of uncharged acts.
Standard directions
I have given myself a number of directions; some of them standard and some particular to this case. I deal now with the standard directions and later in these reasons with particular directions.
The accused is presumed innocent until and unless his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before I could convict the accused of the charged count, I must be satisfied that the prosecution has proved beyond reasonable doubt the elements of the charge.
The accused elected not to give evidence as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. Nor have I speculated on the many reasons why he may have chosen not to give evidence.
Elements of the offence
I have directed myself about the elements of the relevant offence, aggravated indecent assault. An indecent assault is an assault accompanied by or committed in circumstances of indecency. An assault is the intentional and unlawful application of force to another person. The force does not have to be great. A simple touching will suffice. The relevant touching must be deliberate. An accidental touching is not sufficient. In this matter, the touching said to constitute the assault is the accused touching and grabbing JH on the groin on top of his clothing outside the lockers at the centre, as witnessed by Ms Young.
Secondly, the prosecution must prove that the assault was accompanied by or committed in circumstances of indecency. There must be a sexual connotation to the circumstances of indecency. Whether or not an alleged touching is indecent is for me to determine by reference to pervading community standards of what is considered indecent. Whether or not the complainant consented to the alleged touching is irrelevant.
Thirdly, the prosecution must prove an element of aggravation, which is either that JH was under the age of 14 years at the time of the offence, or that the accused abused a position of authority or a position of trust, in relation to JH in committing the offence. There has been no dispute in this trial that JH was under 14 at the time of the alleged offence, and that the accused was in a position of authority or trust in respect of JH at the time of the alleged offence.
Evidence of Ms J Young
I begin with the evidence of Ms Young. She had been working at the centre since October of 2011, after emigrating from the Philippines. She has a Certificate in Child Care Services with Advanced Training. She was at the relevant time a ‘mandated reporter’ and was required to report any suspicion of child abuse to the relevant authorities as soon as practicable.
In 2014, Ms Young worked in an area of the centre referred to as the Koala Room which housed children aged between 3 and 5 years old. Typically, there were 35 to 40 children a day in that room. Ms Young worked 40 hours a week from Monday to Friday.
I received photographs[1] of the centre along with a plan[2] and a document which set out the childcare pre-school routine[3] as of December 2014, along with a staff roster[4].
[1] P 3.
[2] P 4.
[3] P 5.
[4] P 6.
Ms Young gave evidence that during 2014, JH was attending the centre and was cared for in the Koala Room. JH’s primary carer was Ms Emily Zerella. JH attended the Koala Room five days a week. Ms Young said that during 2014, the accused had chosen JH as his ‘focus child’ as part of the accused’s training. I received a series agreed facts about how JH came to be the accused’s focus child. It was agreed that the accused enrolled for a Diploma in Children’s Services on 20 February 2013, and his student induction meeting took place on 26 February 2013.[5] As part of the Diploma the accused was required to complete a subject described as ‘Child Observations-Skills and Knowledge’.[6] The subject involved choosing one ‘focus’ child, completing a series of observations of the child and implementing strategies to extend their learning/experience. The subject assesses the student’s ability to develop individual children’s experiences and development whilst undertaking all other required work tasks. It provides an opportunity for the student to understand the role of team leader who would undertake these observations on a daily basis.[7] It would be expected that these observations would take approximately two weeks to do so that developmental experiences could be implemented and observed.[8] The accused was assessed as having achieved competency in the subject of ‘child observations skills and knowledge’ on 18 August 2014.[9]
[5] P 16, AF 3.
[6] P 16, AF 4.
[7] P 16, AF 5.
[8] P 16, AF 6.
[9] P 16, AF 7.
The learning is extended into the subject ‘Programming Overview Skills and Knowledge Questions’. This subject requires students to choose five ‘focus’ children. It extends the student’s experience so that they can perform and understand the role of a team leader within a centre, and includes programming to enhance children’s learning and development. This subject requires two observations of each ‘focus’ child (10 observations in total), and for the student to then focus experience or cluster experiences for each of their five ‘focus’ children to extend their interests, thinking and knowledge.[10] Again, it would be expected that these observations would be completed over a short period of time (approximately two weeks) to enable a programme to be implemented and observed.[11] The accused was assessed as having achieved competency in the subject of ‘Programming Overview Skills and Knowledge Questions’ on 2 December 2014.[12]
[10] P 16, AF 8.
[11] P 16, AF 9.
[12] P 16, AF 10.
Ms Young said that the accused treated JH differently from the other children, both before and after JH becoming the accused’s ‘focus child’, by routinely including JH in activities organised by the accused to the exclusion of other children. She said it was unusual for one child to be continually involved with one childcare worker’s activities. Ms Young also said that the accused spent more time with JH than with his other focus children. Ms Young gave evidence that when the accused was not able to spend time with JH he appeared distressed and this often happened.
Ms Young also gave evidence that she heard the accused calling JH by the name ‘J-J’ and that the accused asked JH to call him, the accused, ‘Uncle Peter’. Ms Young said that she told the accused that he should not do this, and the accused responded by saying that she was just jealous.
Ms Young also gave evidence that on one occasion the accused told her that he was going to check JH because JH had hurt his private area around his genitals. Ms Young said she told the accused to wait for someone to go with him because it is policy for two childcare workers to be present when checking a child’s genital area. Ms Young said the accused looked upset and responded by saying ‘oh policies’.
Ms Young gave evidence about an incident on 10 December when she saw the accused cleaning the bathroom with the assistance of JH. They were alone together. She said she heard the accused say ‘thank you ‘J-J’, you’re a good helper’. Ms Young gave evidence that the accused, in allowing JH to assist him in cleaning the bathroom, was acting against the centre’s policy as it was considered unsafe for children to be in the bathroom while cleaning is in process. Ms Young took a photograph of the accused and JH in the bathroom on 10 December 2014, to provide to her team leader as she was intending to report the breach of policy.[13]
[13] P 7.
Ms Young also gave evidence that she saw the accused alone with JH at particular places at the centre including inside the cubby house and on the slide. She said she saw the accused alone with JH in the cubby house on one occasion. Ms Young said she saw the accused alone with JH on the slide on about three occasions, at which time JH was sitting on the accused’s lap. She said that she has never seen another child sitting on the accused’s lap on the slide.
Ms Young also gave evidence that during group time she saw the accused sit behind JH, pick him up and put him on his lap. She said this occurred a couple of times. She also saw the accused pick up JH and put him on his shoulders on one occasion. Ms Young gave evidence that she saw the accused hugging JH in the morning when the accused started his shift and when saying goodbye to JH at the end of the day. Ms Young said that there was no reason for the accused to be hugging JH. She said she never saw the accused hugging any other children at the centre.
The charged act
Ms Young next gave evidence of the events of 16 December 2014.
Ms Young said that at about 2.30 pm she was inside the Koala Room. All the children at the centre were inside their respective rooms, having recently woken from sleep or they were still sleeping. A child approached her and told her that he had left his shoes outside, so she went to retrieve the shoes. Ms Young said that she walked from the Koala Room, through the enclosed verandah area and towards the sand pit. She collected the shoes which were adjacent to the sandpit and then, intending to return to the Koala Room, walked towards the enclosed verandah. She said she it was then she saw the accused and JH standing adjacent to the lockers, facing each other. They were positioned side on to her. She was two to three metres away and nothing was obstructing her line of vision. She said the accused was kneeling on one knee, with JH in front of him. Ms Young said that she saw the accused touching JH in the crutch or groin area. She said the accused was using his right hand, with his palm up, and in a grabbing motion touching JH on the groin. Ms Young said this was occurring for about three to four seconds, during which time, JH was not moving at all.
Ms Young gave evidence that she kicked a wooden chair to get their attention, and the accused’s right hand flung into the air in a sudden movement. She said the accused then turned to her and said ‘hi Janice, I’m just helping JH put pictures in his bag’. Ms Young said that JH’s bag was in his locker and she had not seen the accused have any contact with JH’s bag in the locker. Ms Young said that she said ‘OK’ and then continued on into the Koala room.
Ms Young gave evidence that you could not see the position at which the accused and JH were standing from within the koala room.
Ms Young said that later that day, while JH was climbing on the playground equipment, she inspected his shorts to see if there was a zip, because she wanted to ensure that what she had observed earlier at the lockers was not the accused fixing JH’s zip. She said JH was wearing drawstring shorts. Ms Young also gave evidence that later that day she checked if JH had pictures in his bag in the locker. She said there were only two pictures in JH’s bag which she considered somewhat unusual as JH had been the accused’s ‘focus child’ and it was the end of term, so she was expecting a greater number of pictures to be in his bag.
Ms Young gave evidence that she did not speak to anybody that afternoon, or indeed the following day, about what she says she observed, as she was, in her words, ‘too scared and shocked and I have this string of hope that what I have seen is not happening or it’s not true’.[14] She said in evidence ‘I had the string of hope it is not true. It was right under my nose. I saw it but it is replaying, it is replaying, it is replaying in my mind.’[15]
[14] T 125.
[15] T 125.
Ms Young gave evidence that on the morning of 18 December 2014, the accused said that he needed to go into the vegetable garden with a child, that child not being JH. She said that she next saw the accused near the vegetable garden path alone with JH. She also saw the accused later that day alone in the cubby house with JH. Ms Young said she spoke with Ms Emily Zerella (another childcare worker) and Ms Zerella asked JH to come inside with her. Ms Young said she next saw the accused beckoning to JH to come to him, and she then saw the accused and JH on the slide. She saw the accused sitting on the slide with JH on his lap. The accused had a camera and declared ‘selfie-time’. Ms Young said she then took photographs of the accused with JH on his lap, which I received in evidence.[16] Ms Young gave evidence that she was now ‘alarmed’ about the accused’s behaviour towards JH, and she realised she must immediately report her earlier observations of the accused touching JH on the groin, which she did, first, to her team leader Ms Leonard, and then to Ms Siciliano, the acting director of the centre, who at the time was with Ms Tonani the acting assistant director.
[16] P 9.
Ms Young gave evidence that she did not report her observations of the accused touching JH earlier because, while she always intended to report her observations, she was saying to herself ‘I’ll do it later, I’ll do it later’.[17] Ms Young said however, she felt she couldn’t delay any longer.
[17] T 133.
Cross-examination
Defence counsel suggested to Ms Young that she disliked the accused in 2014. Ms Young was referred to a letter she wrote to her team leader in April 2014.[18] In the letter, Ms Young described the accused as ‘rude, mean and disrespectful and a very bossy man’. In the letter, she also raised the issue of the unfairness of the accused not having to work a late shift, and the accused being rough with the children. She told Ms Leonard in the letter that she felt scared and threatened by the accused, and she said the accused avoided having to change children’s nappies. Ms Young agreed to having written the letter.
[18] P 8.
However, Ms Young disagreed with the suggestion that in April 2014 she hated the accused or that she wrote the letter as a way of getting the accused into trouble. Furthermore, Ms Young said that by December 2014, she was no longer concerned about the issues raised in her April letter as she and the accused had spoken, and the accused had apologised to her. However, Ms Young accepted that as of December 2014, she had remaining concerns about the accused’s professionalism.
Ms Young agreed that at the time of her purported observations, she was a mandated notifier, and as such she was legally required to report any suspected child abuse as soon as practicable, and furthermore, she was aware of her legal obligation to do so. It was suggested to Ms Young that she delayed in reporting the matter for two days because she was uncertain about what she had in fact observed between the accused and JH at the lockers. She disagreed with that suggestion. Ms Young said she was scared and shocked because she worked with Peter and that, in her words, ‘you kind of want it to be a bad dream and snap out of it but it’s just there’.[19]
[19] T 146.
Ms Young agreed that in her statement to police on 3 March 2015 she said by way of explanation for her delay: ‘I wanted to convince myself I didn’t see him doing that to JH’, and she agreed in evidence that was her state of mind at the time. Defence counsel asked ‘why on earth given what you have told the court you saw on 16 December did you need to convince yourself that you didn’t see my client fondling JH’s genitals’. Ms Young responded:
Because as I have said it is something that you don’t want to happen. As I’ve said these things you read from the paper you see it from the news but it is just right under your nose and this is my colleague and if it happened directly from someone that you work with you have that fear. I was shocked personally. I’m hoping it’s not true. I’m hoping it’s not true of what I saw but I can’t lie to myself of what I have seen on the 16^th.’[20]
[20] T 146-147.

It was suggested to Ms Young that had she seen the accused touching JH on the groin, she would not have waited for two days to report the matter, in circumstances where JH was still attending the centre while the accused was working there. Ms Young responded by saying ‘I know what I saw, as I said I was shocked to see what I saw.’[21]
[21] T 161.
Defence counsel put to Ms Young that on 16 December 2014 she in fact saw the accused near the lockers with JH, on one knee, and putting some photographs in JH’s backpack. Ms Young responded by saying ‘no, one hand was on JH’s groin area’.[22]
[22] T 162.
Uncharged Acts
The prosecution led a series of four statements by the child JH to other members of his family, pursuant to s 34LA of the Evidence Act. The statements by JH to his family members disclosed other occasions of the accused touching JH’s penis, or, asking JH to expose his penis to the accused between October and December 2014. Defence counsel did not challenge the admissibility of those statements, and I allowed each statement to be led as having complied with the pre-conditions for admissibility provided for by s 34LA of the Evidence Act, and, in particular, as having sufficient probative value to justify its admission.
Defence counsel did not challenge that JH made each statement to the relevant family member. Rather, defence counsel disputed the truthfulness and reliability of the facts asserted by JH in his statements to each family member.
I now turn to the evidence in respect of each statement made by JH.
Statement to AH
AH is JH’s grandmother. From December 2013 until 2016, her daughter CH and LH (CH’s husband) lived with their children at her home. AH was aware that a person called ‘Peter’ was JH’s carer at the centre. She said that JH mentioned ‘Peter’ every day.
AH said that on one occasion in August 2014, she visited JH at the centre. She said that the accused, ‘Peter’, paid a lot of attention to JH. For example, JH took her to a Play Doh table and the accused knelt down explaining how he had made the Play Doh. When JH took AH to do another activity, the accused again came over. AH said that JH again moved to another table whereupon the accused again followed telling AH what her grandson liked and what he did not like.
AH also gave evidence that JH would return home from the centre with five cent pieces, two to three times per week, over a period of months, which she understood the accused had given JH.
AH described an incident in October 2014, when she was in her lounge room with her three grandchildren watching television. AH said that JH went to the bathroom, and when he returned came over and asked AH to help him button up his trousers. JH then sat on her lap. AH said she put her feet out on the recliner, and placed her hands across his body. AH’s said her arms were over the top of his legs, between his knees and his groin, and in close proximity to his groin. AH said that JH then said ‘nobody’s allowed to touch my willy except mummy and daddy, Nanna and Pa and Peter’. AH asked JH ‘why Peter?’ and JH responded by saying ‘because he put his hands inside my Jockey shorts and it makes me go faster down the slide.’[23] JH then said that he wanted to sit down on the floor. AH said that she informed CH and LH about what JH had said but CH, after speaking with JH, decided not to do anything further about JH’s disclosure.
[23] T 22.
CH gave evidence that she spoke with JH that evening about what JH had said to her mother. CH said she asked JH whether anyone had put their hands down his shorts or under his shorts and JH said ‘no’. CH said she asked JH if the accused had ever put his hands down his shorts, and JH said ‘no’. CH said she was sitting on the couch and trying to use her legs as a slide. CH said she asked JH to ‘show mummy how Peter holds you’. She said JH grabbed both her arms and wrapped them around him. CH asked JH again if the accused touched JH over his shorts and JH said yes. CH said JH appeared disinterested during the conversation and it was very hard for JH to sit still as he was distracted. CH said the conversation took place only minutes before his normal bed time.
CH said that as a result of her conversation with JH, she was convinced her mother had misheard what was said by JH, and her mother was mistaken. CH said she had no reason to think that JH would disclose something to her mother and not her. CH said she also felt that such an incident, as purportedly described by JH to her mother, was unrealistic considering the centre’s environment. CH decided not to take the matter any further.
In cross examination, AH denied that JH had only found a five or ten cent piece at the centre on one occasion, and that the accused had allowed him to keep the coin on that occasion only. AH also denied that she had expressed any concerns to CH about JH having a male child care worker, and she denied having held such concerns. AH said that it was CH who had said that it didn’t feel right that JH’s caregiver was male, but CH felt that the accused was entitled to do his job.
Statement to LH
LH gave evidence that he would often take JH to the centre and collect him, as he worked very close to the centre.
LH gave evidence that the accused was often asking him questions about his Polish heritage and on one occasion accused asked him if he could accompany JH and his family to the Polish Club, which LH declined. LH said that while he was of a Polish background, he did not attend the Polish Club and even if he had, he did not know the accused well enough to invite him to dinner. LH said that the accused asked him to go to the Polish Club on about three occasions.
LH also gave evidence that on one occasion JH returned from the centre with a five cent piece and a ten cent piece, which JH told him the accused had given him. LH said that JH also came home on one occasion with some dinosaur stickers.[24] LH said he confiscated the stickers as he did not think it was appropriate for JH to receive such a gift from the accused.
[24] P 2.
LH gave evidence that on the evening of Thursday 18 December 2014, he was in the bathroom with his daughter. LH said he called out for JH to brush his teeth. JH came running towards the bathroom with his pants partly down while holding and waving his penis. LH said JH was holding his penis and moving it around for less than 30 seconds.
LH said he told JH ‘that’s not a nice thing to do, you don’t show your willy’. LH said he then asked JH ‘who is allowed to see your willy?’ LH said JH responded by saying ‘mummy, daddy and Peter’.[25] LH said he considered JH’s behaviour unusual, and he had never before seen JH waving his penis in that way. LH then told his wife what JH had said, and CH spoke with JH alone. LH confirmed that after his wife had spoken to JH, they decided to advise the centre of JH’s disclosures the following morning and report the matter to the police.
[25] T 69.
In cross examination, LH agreed that JH was at the centre for about 50 hours per week. LH agreed that he was aware and consented to JH being a ‘focus child’. LH agreed that the accused was enthusiastic in regard to his studies and JH being his ‘focus child’, and he agreed that the accused’s questions about his Polish heritage were in reference to JH being the accused’s ‘focus child.’
Statement to CH
CH gave evidence that during 2014, JH would talk about his friends and mention the name Peter quite a bit. It was only in April of 2014, that CH said she realised Peter was in fact a childcare worker.
CH said that in early 2014 she was approached by the centre about JH being a ‘focus child’. CH’s other children had been the subject of such studies before and she found it a positive experience in that the childcare worker was taking a closer interest in her child. CH said that while JH was the accused’s ‘focus child’ the experience was more intense, in that there were more questions and more direct involvement by the accused.
CH gave evidence that JH had a fifth birthday party in November 2014. CH said that on an afternoon about six weeks prior to that party she collected JH early from the centre so he could come and look at the proposed party location, ‘Groovy Chicks and Pirate Ships’. CH said as she was leaving with JH, the accused knelt down and said directly to JH ‘well, I hope your big friends can come too, can they come to your party?’[26] CH said she ignored that comment, as did JH, and the accused was not invited to the party. CH said on another occasion at the centre, the accused again asked JH ‘will Peter get to come to your party?’[27] CH said she told the accused ‘no’.
[26] T 39.
[27] T 41.
CH gave evidence that the accused would often say goodbye to JH by giving him a hug. The accused would crouch down with his legs apart and pull JH in between his legs quite close. CH said on more than one occasion the accused hugged JH for an uncomfortable amount of time. After a Christmas concert in December, CH said she saw the accused hugging JH goodbye and making comments to JH such as ‘what am I going to do without you next year?’, and ‘I will miss you so much’.[28] CH said the accused was hugging JH for an extended period of time.
[28] T 42.
CH also gave evidence of two occasions when JH came home with five cents and 10 cent pieces. On one of those occasions, CH said she asked JH where did you get the money from and he said ‘Peter gave it to me’.
CH gave evidence about a conversation she had with JH on 18 December 2014, between 7.00 pm and 7.30 pm, after she had been approached by her husband, LH. As a result of speaking with her husband, she took JH into JH’s bedroom. They were alone. CH gave evidence that she started the conversation by telling JH the importance of telling the truth. CH then asked JH directly who gets to see his willy and JH said ‘mummy and daddy and Peter’. CH responded by saying ‘I don’t think he would like that’. JH said ‘no he does he asks all the time, all the time’. CH then asked JH ‘how does he ask, what words does he use?’ CH said JH didn’t answer immediately. CH said JH was getting distracted and she repeated ‘look I don’t think Peter would like that’. JH responded by saying ‘no, no he does, no other kids are around, it’s ok mummy no other kids are around’. CH said she asked JH ‘where does this happen? ‘Where are you?’ ‘Where do you show your willy?’ and JH said ‘the cubby house, the garden and the slide’. CH said she asked JH two or three times during the conversation where JH shows the accused his willy and each time JH responded by saying the same locations of the cubby house, the garden and the slide. CH said that JH said that the accused would say words to him like ‘let’s do it now, let’s do it now’, and then JH would show him his willy.[29]
[29] T 44-45.
CH said she then told JH that it was really naughty of Peter to do that. CH said JH responded by asking why it was naughty as he, JH, gets to see his brother and sister naked all the time. CH responded by saying it’s different because Peter is an adult and he already knows that’s naughty. CH said she told JH that if anyone asks to see your willy you need to tell the teacher straight away. JH responded by saying the teachers are not there, as they are at lunch. CH told JH to tell whoever is there straight away, and JH said ‘okay’.[30]
[30] T 45.
CH gave evidence that JH also spoke about photos and an I-Pad. CH said that it was JH who brought up the topic of photos.[31] CH said however, that JH was very tired and really distracted by this point and she could not get any clear answers on the topic of how and where the photos were taken and by whom.
[31] T 46.
CH said that on the following morning of 19 December 2014, she took JH to the centre and while travelling in the car with him, she said to him ‘so JH, remember who gets to see your willy’. JH responded by saying ‘it’s ok, Peter’s not there today’.[32]
[32] T 49.
CH said that upon arriving at the centre she confirmed that the accused was not working that day. CH then advised the acting assistant director, Ms Renee Tonani of JH’s disclosures to her. CH said that Ms Tonani did not tell her about Ms Young’s purported observations but simply advised her that she was aware of an ‘unhealthy relationship’. Later that day, CH reported JH’s disclosures to the police. CH said the police told her not to talk to the staff at the centre about JH’s disclosures. CH said she has not had any discussion with any staff member about anything that might have happened to JH at the centre.
On 6 February 2015, JH was interviewed by the Child Protection Services. I will return in more detail to the contents of that interview later in my reasons. After the interview was completed, CH and LH returned home with JH. CH said she felt at this stage she was allowed to speak freely with JH as in her mind the investigative process was complete. CH told JH how proud they were of him. CH said she asked JH whether Peter had asked to see his willy and JH said ‘yes’. CH asked JH again where this had occurred and JH repeated the same locations: the cubby house, the garden and the slide. CH said she asked him if there had been any touching, and JH said ‘yes’. CH then asked JH who touched him and JH said ‘no touching’. CH asked JH if he JH had ever touched anyone and JH said ‘no’. CH asked JH whether there were any other kids there and JH said ‘no’.[33]
[33] T 52-53.
In cross examination, CH agreed that she was aware in 2014 that JH was going to be a ‘focus child’, and that the accused was enthusiastic about JH being his ‘focus child’. CH agreed that throughout 2014 the accused provided her photographs and documents about JH. CH also agreed that she sent the accused a Christmas card in December 2014, but she did so before JH’s disclosures to her on 18 December 2014. CH agreed that prior to JH’s disclosures to her, CH was comfortable with her son’s care at the centre.
Interview by CPS of JH on 6 February 2015
The DPP sought to lead the contents of the interview by Child Protection Services with JH conducted on 6 February 2015[34] (‘the interview’) pursuant to s 34KB of the Evidence Act. During the course of the interview, JH did not disclose any sexual conduct by the accused towards him and indeed made statements contrary to the prosecution case. Defence counsel took no objection to the admissibility of the interview, indeed it was at the behest of the defence that the interview was tendered[35] and sought to be led. I allowed the evidence of the interview with JH to be tendered as satisfying the pre-conditions for admissibility provided for by s 34KB of the Evidence Act.
[34] P 15.
[35] P 15.
The interview commenced at approximately 10.45 am on 6 February 2015, and continued for over an hour. The interviewer had met JH on the previous day. I note at the outset that JH was not interviewed until seven weeks after the alleged conduct the subject of the charge. This is a lengthy period of time to have elapsed in the life of a 5 year old. Furthermore, JH had started school earlier that week, and had not attended the centre since 19 December 2014, nor had he had any contact with the accused since 18 December 2014.
During the course of the interview JH was asked to tell the interviewer everything about Peter at childcare. JH said ‘I don’t remember’.[36]
[36] P 15, L 385-387.
The interviewer then said to JH:[37]
[37] P 15, L 501-522.
QSo [JH] I heard that you told mum that someone asked to see a part of your body. Did you tell mum that someone asked to see a part of your body.
AYes.
QTell me everything about someone asking to see a part of your body.
AActually I didn’t.
QWhat was that sorry [JH]
AI said I didn’t.
QYou didn’t. You didn’t what.
QI didn’t ask my mummy my body.
AYou didn’t ask mummy about your body.
QNo
Later, JH was asked:[38]
QSo I heard that you told mum, [JH] that when there’s no other children around someone asked to see a part of your body. Did you tell mum that when no other children are around someone asked to see part of your body.
AUm, yes, actually no.
QNo.
AI don’t remember I forgot actually I forgot.
[38] P 15, L 606-615.
Next, JH was asked the following questions:[39]
QAlso [JH] I heard that you told mum that someone asked to see part of your body in the cubby house, the vegie patch and the slide. Did you tell mum that someone asked to see part of your body on the veggie patch, the slide and the cubby house?
ANo.
QYou didn’t say that? OK. I’m getting very thirsty. I’m going to get a drink of water. Would you like a cup of water?
AYes.
[39] P 15, L 663-672.
JH was then asked:[40]
QSo [JH] I heard that you told mum that someone says to you ‘lets do it now’. Did you tell mum that someone says to you ‘lets do it now’?
AUm, yes.
QYep. Who says to you ‘lets do it now’?
AI don’t know.
[40] P 15, L 828-836.
JH was then asked:[41]
QSo [JH] I heard that someone has taken pictures of you. Has someone taken lots of pictures of you?
AMummy did on the rocks at home.
QAnd who else has taken pictures of you.
ANanna.
QNanna?
AAnd then no-one else.
[41] P 15, L 863-875.
JH was asked about hugging with the following questions:[42]
QWho gives you hugs [JH]?
AMummy and daddy.
QMummy and daddy. Does anyone else give you hugs?
ANanna and Pa.
QYeah. And? Who else gives you hugs?
AUm, I don’t know.
[42] P 15, L 953-956.
JH was then asked about kissing:[43]
QWho gives you kisses?
AMummy and daddy.
QYeah.
AAnd Nanna and Pa.
QAnyone else gives you kisses.
ANo.
[43] P 15, L 991-1003.
JH was asked about tickling:[44]
QWho gives you a tickle?
AMummy and daddy.
QI’ll put their names down there. Does anyone else give you a tickle?
AUm, no.
[44] P 15, L 1036-1047.
JH was also asked whether anyone has given him a touch to his private parts. He said:[45]
ANo.
QHas anyone asked to see your private parts?
AI’m not sure.
QYou’re not sure.
ANo.
QDo you want to have a think and remember?
ANo, thank you.
[45] P 15, L 1092-1107.
JH was also asked about showing people his private parts. He said:[46]
QHas anyone asked you for you to show them your private parts?
AUm, I don’t know. I’m, no. Sometimes I don’t know though.
QHow come sometimes you don’t know?
AI’m not sure.
[46] P 15, L 1117-1124.
JH was then asked the following questions:[47]
[47] P 15, L 1200-1218.
Q[JH] I heard that you told mum that three people can see your pee pee and you said that was mum, dad and someone else.
A[S] and [M].
QIs [S] and [M]. Is there anyone else that can see your willy, your pee pee?
ANo. Actually, only mummy and daddy.
QOnly mummy and daddy?
AYep.
QI heard that you said to mum that mummy, daddy and one other person can see your willy. Who was that one other person that you told mum that can see your willy?
AI don’t know.
It can be seen from the above relevant extracts of the interview, that JH did not disclose any sexual touching by the accused of him nor did he say that the accused asked him, JH, to show the accused his penis. Indeed, JH denied that any person had touched him on the private parts and any person had asked to see his private parts. Defence counsel relied on this interview to challenge both the observations of Ms Young, and to challenge the truthfulness and reliability of the statements made by JH to family members.
Directions on statements made by JH to family members

The prosecution sought to lead the disclosures made by JH to his family members in a testimonial capacity pursuant to s 34LA of the Evidence Act. The evidence was said to reveal a pattern of sexual touching and indecent behaviour by the accused towards JH, prior to the charged act witnessed by Ms Young on 16 December 2014. The prosecution relied on the statements by JH as admissible as uncharged acts to show how JH came to submit to the touching observed by Ms Young without protest; to explain how the accused might have expected JH would submit to that touching without complaint; and to explain how the accused might have been emboldened to touch JH in a public area of the centre. Of course, before I could use the evidence of the disclosures made by JH to his family, summarised above, I would need to be first satisfied beyond reasonable doubt of the truthfulness and accuracy of the facts asserted in each of those statements.
I now direct myself on how I cannot use the evidence of JH’s disclosures to family members. Even if I am satisfied beyond reasonable doubt of the truthfulness and reliability of the facts asserted by JH in his statements to his family members, that evidence does not in any sense absolve me from the task of determining whether the charge itself is made out. It is simply one part of the evidence used to prove the charged offence. I must not reason that because I am satisfied beyond reasonable doubt of the evidence of the uncharged acts, if I am so satisfied, that the accused must be guilty of some offence and convict the accused of the charge. That would clearly be a wrong approach and I will not adopt it.
I remind myself that it is the evidence presented in proof of the charge itself which is the critical evidence in the trial and that is largely, in this case, the evidence of Ms Young. The evidence of the statements made by JH to family members disclosing other uncharged acts, is presented only to assist me in my evaluation of Ms Young’s evidence going directly to the charge, in particular, in assessing JH’s behaviour, and the accused’s emboldened conduct on the prosecution case in committing the alleged charged offence in such a public and brazen manner.
I also direct myself that it would be wrong for me to conclude that because of the evidence of the uncharged acts, should I find them proved beyond reasonable doubt, that the accused is the sort of person who would be likely to commit the offence with which he is charged, and therefore he is more likely to be guilty of the offence. Again, that would be a clearly incorrect approach and I will not adopt it.
Evidence of the accused’s behaviour towards JH at the centre
I also received a body of evidence about the accused’s behaviour and attention towards JH at the centre, consisting primarily of evidence from other child care workers. Additionally, I have already referred to the evidence from AH, CH and LH of the accused giving JH coins, from LH about the accused wanting to join JH and his family at the Polish Club, and from CH of the accused hugging JH and taking a particular interest in JH’s 5^th birthday party.
Ms Emily Zerella gave evidence. During 2014, she was working in the Koala Room at the centre. Ms Zerella said she was the primary carer of 15 children in the Koala Room, including JH. Her responsibilities towards JH was to plan activities for him to further his development.
Ms Zerella gave evidence about her observations of the accused interacting with JH during 2014. She said that the accused was more of a buddy to JH than an educator, as he was not disciplining JH or setting appropriate boundaries. She said the accused was spending more and more time with JH, seeking him out, and disrupting his play when it did not involve the accused, and this occurred at least a couple of times per week. Ms Zerella said she did not see the accused behave in that way towards any other child.
Ms Zerella said that the accused also referred to JH by a pet name, ‘J-J’.
Ms Zerella gave evidence that the accused took JH to particular places at the centre alone, including the slippery slide, cubby house and in the vegetable garden. Ms Zerella said that a childcare worker spending time alone with a child is inappropriate as it places extra pressure on other childcare workers as they then become responsible for a greater proportion of the children in care.
Ms Zerella said that she also observed the accused greet JH by hugging him at least once per day, and the accused did not greet other children in this way. Ms Zerella said that hugging a child can be appropriate, for example, if the child is asking for a hug or if the child is upset. However, it was the accused initiating hugs with JH, in circumstances where JH was not upset.
Ms Zerella also gave evidence about an incident in October 2014, when JH had fallen over and the accused said he was going to check him. Ms Zerella told the accused that he needed to wait for another person to be present. Ms Zerella said the accused then became agitated and said ‘don’t worry about it’ and walked off. Ms Zerella said Ms Young was also present for the incident.
Ms Zerella also gave evidence of occasions when the accused sat JH on his lap and tickled him. She said this occurred on at least a few occasions per week. She never saw any other children sitting on the accused’s lap. Ms Zerella said she challenged the accused about his behaviour in a subtle way by saying ‘just sit JH down’ or she would approach JH and sit him down with the rest of the children.
Ms Zerella was referred to a letter that she wrote to her superior Ms Leonard on 8 April 2014,[48] in which she expressed her concern about the accused’s interaction with the children. Ms Zerella said in the letter that the accused’s behaviour meant that the children were not learning acceptable boundaries. Ms Zerella said in evidence, that when she wrote in the letter of children being tickled by the accused, she was referring to JH as one of those children.
[48] P 10.
Ms Zerella also gave evidence that she saw the accused taking photographs of JH with his own camera. She agreed that it was necessary to take photographs of JH as part of the ‘Focus Child Program’, however she said the accused continued to take photographs of JH after he finished the program.
Ms Zerella also gave evidence of an occasion when the accused told her that he and JH were in the garden, and JH had wet his clothes so the accused intended to change JH. Ms Zerella said that JH’s clothes did not appear wet so she told the accused to just leave it, as in her view there was no need to change JH at all.
Ms Zerella also gave evidence that on 17 December 2014, she saw the accused alone with JH in the garden, and on seeing this she took extra children out to the garden to be with the accused and JH. Ms Zerella said she did so because she did not think it was appropriate for the accused to be alone with one child, when there were close to 40 children at the centre that day, and other children wanted to go into the garden. She said it also made the other childcare workers’ jobs more difficult because they were responsible for more children on their own.
Ms Zerella gave evidence that on Thursday 18 December 2014, after a conversation with Ms Young, she went outside and saw the accused alone in the cubby house with JH. They were both sitting on the floor. Ms Zerella told JH to come with her and that she would take some photos of JH’s friends as he was finishing up at the centre that year.
Ms Zerella said that later that day, as the accused was leaving the centre, he asked to say goodbye to JH. JH was carrying some items in his hands. Ms Zerella said that by this stage, she was aware of Ms Young’s purported observations and was concerned not to let the accused have any physical contact with JH. Ms Zerella said to the accused ‘JH’s hands are full, just say merry Christmas’. The accused responded by saying ‘really, you are not going to let me say goodbye’. Ms Zerella said ‘JH just say goodbye to Peter’. JH then said ‘bye Peter’. The accused said words to the effect that ‘you are really not going to let me hug him’. Ms Zerella responded by saying ‘his hands are full, just wave goodbye’.[49] She said the accused was quite agitated and he left.
[49] T 180.
In cross examination, it was suggested to Ms Zerella that the accused was not agitated as he left on 18 December. Ms Zerella disagreed. Ms Zerella agreed that after she wrote her letter in April 2014, she discussed her concerns about the accused with other childcare workers. Ms Zerella also agreed that after Ms Young reported her observations to her on 18 December 2014, there were discussions between herself and other staff members about the accused. There was no evidence as to the nature of those discussions, or indeed with whom they were had.
Ms Sharmane Leonard also gave evidence of her observations of the accused interacting with JH during 2014. She was the team leader in the Koala Room in 2014. Ms Leonard said the accused regularly spent time alone with JH gardening and feeding the chickens. Ms Leonard said that other staff raised concerns with her about the accused giving one on one attention to JH and that this was impacting on staff/children ratios. Ms Leonard said that she told the accused that it was not acceptable to spend time alone with one child, and that he was required to involve more children. She said the accused responded by saying ‘JH is my focus child’. Ms Leonard said she responded by saying ‘JH can be your focus child but you should always include him with a group experience’.
Ms Leonard made diary notes of her conversations with the accused on this topic in a 2012 diary.[50] She gave evidence that the entries corresponded roughly with the respective dates in 2014. One entry was made on 22 July in which she wrote ‘spoken to PG about his inclusion with children and activities especially the ones related to his studies’. Ms Leonard explained that this note referred to her conversation with the accused about the fact that he cannot have one on one time with JH. Ms Leonard also wrote ‘PG understood the advice given and now involves more children’. She said that her note reflected what in fact had occurred.
[50] P 11.
There was also an entry on 25 July which referred to having spoken to EZ, (who she said was Emily Zerella) which reads ‘PG closed the blind on AR reminded PG to be more vigilant and aware of his surroundings, found PG putting JH into sand pit box, I intervened and explained that that is not acceptable’. Ms Leonard said this entry referred to the accused emptying the sand pit toys out of the box and placing JH in the box. She said that this behaviour was not acceptable for safety reasons. Ms Leonard noted ‘PG listened while I was talking’, and she agreed in evidence that the accused did listen.
Ms Leonard also referred to another entry which reads: ‘carries children especially JH at above shoulders not acceptable explained about safety’. Ms Leonard said that she had seen the accused carrying JH on his shoulders many times.
Ms Leonard was also referred to an entry on 3 December, which she said she would have made after July 2014. The entry referred to the accused’s lack of boundaries with children. Ms Leonard said that she told the accused to be more professional as an educator with clear boundaries so that when he wants to be heard, children will listen to him. Ms Leonard said that the accused’s lack of boundaries was mostly with one child, JH.
By consent, I received a statement from Ms Renee Tonani taken on 30 December 2014. The statement referred to the accused’s conduct on 18 December 2014, after Ms Young spoke to her about what she purportedly observed between the accused and JH. Ms Tonani said that as the accused was leaving the centre, she asked him if he was ok, and the accused said no. Ms Tonani asked him what was wrong and he said ‘you know why, I just don’t understand’. Ms Tonani said ‘understand what?’, and the accused said ‘I have known this child for nearly all his life and now I can’t even say goodbye, they won’t let me’. The accused shook his head and said ‘I have a lot of thinking to do over the holidays’. Ms Tonani said ‘just have a nice break and we can talk further in the New Year if you wish’.[51] She said the accused nodded, pushed the door with some force and left.
[51] P 12, statement of Renee Tonani dated 17/12/2015.
Ms Anna Siciliano also gave evidence of the accused leaving the centre for the last time on 18 December 2014. Ms Siciliano said she wished him a Merry Christmas and he replied that he had a lot of thinking to do over the break. Ms Siciliano said that on Friday, 19 December, she was advised by Ms Tonani that JH’s mother wished to speak with her. She spoke with CH later that morning, and CH advised her of JH’s disclosures. Ms Siciliano said that she did not tell CH of Ms Young’s reported observations of the accused with JH because she wanted to ensure that all procedures were correctly followed.
Directions on evidence of the accused’s behaviour towards JH
The prosecution relied on the evidence of the accused’s attention and physical affection towards JH, and of the accused spending time alone with JH in isolated parts of the centre, to explain how the accused came to create an environment and relationship with JH in which he was emboldened to commit the offence and in which the accused could do so confident that JH would not complain. The evidence was led to establish how, on the prosecution case, the accused had the opportunity to commit the charged offence. The evidence was not lead as evidence of the accused’s sexual attraction towards JH, and I have not used it for this purpose.
Of course, on the defence case, the witnesses were cross examined to the effect that any interest shown in the child JH was a reflection of an affectionate relationship borne out of the fact that JH spent a lot of time at the centre and the accused had a lot of contact with JH because JH was his ‘focus child’. Furthermore, the accused, through his counsel, disputed that the accused had given JH numerous coins or money as suggested by AH, and indeed this is supported by the evidence of CH and LH.
I remind myself that before I could use any aspect of this body of evidence I would have to be satisfied as to the truthfulness, accuracy and reliability of that piece of evidence.
I now direct myself on how I cannot use the abovementioned evidence of the accused’s attention, and physical affection, towards JH. Even if I am satisfied that the accused spent time alone with JH in secluded parts of the centre, was physically affectionate towards JH and paid significantly greater attention to JH than any other child, that does not in any sense absolve me from the task of determining whether the charge itself is made out. It is simply one part of the evidence used to prove the charged offence. I must not reason that because I am satisfied of the evidence of the accused’s physically affectionate behaviour to JH and that the accused spent time alone with JH, he must be guilty of something and convict the accused of the charge. That would clearly be a wrong approach and I will not adopt it.
I direct myself that it would also be wrong for me to conclude that because of the evidence of the accused’s behaviour towards JH, he is the sort of person who would be likely to commit the offence with which he is charged and therefore he is more likely to be guilty of the offence. Again, that would be a clearly incorrect approach and I will not adopt it.
Assessment of Ms Young’s evidence
I turn first to consider the evidence of Ms Young. Her evidence is the only direct evidence of the charged act. Defence counsel submitted that Ms Young, on the evidence, had a clear animosity towards the accused. It was said that she had a significantly negative view about the accused’s professionalism as a childcare worker, as shown by her letter of April 2014. It was submitted that Ms Young’s negative view of the accused coloured her observations of the accused and JH on 16 December 2014.
Furthermore, defence counsel submitted that Ms Young took two days to report her observations of the accused and JH, in circumstances where JH continued to be in close proximity to the accused, and such delay should cause me to doubt her evidence. Ms Young was a mandatory notifier and she understood that should she suspect child abuse, she was legislatively required, as soon as practicable, to report the suspected abuse. Defence counsel referred to Ms Young’s explanation for her delay, namely that she wanted to convince herself that she didn’t see the accused touching JH, and that she was looking for a string of hope, and submitted that Ms Young was in fact convincing herself that she did see the accused touching JH on the groin.
Defence counsel also relied on Ms Young’s evidence that she checked the fastening arrangements of JH’s shorts later that day, and the contents of his bag and submitted that this evidence demonstrated a lack of certainty by Ms Young that she had in fact seen the accused touching JH’s groin, otherwise why the need for such inquiries by her?
There was no challenge, on the defence case, to the evidence that the accused was near the lockers, speaking with JH, at the time of the alleged charged act. On the defence case, the accused was simply placing items in JH’s bag. Defence counsel submitted that I cannot be satisfied beyond a reasonable doubt of Ms Young’s evidence that she saw the accused touching JH on the groin, as I must be, if I am to convict the accused. Furthermore, defence counsel relied on the exposed area in which the incident was said to occur. It was suggested that the accused and JH could easily have been seen by anyone going into the toilets with the children from the Koala Room, and it was inherently unlikely that anyone would commit the charged act in such a public area notwithstanding the prosecution case of the alleged closeness between the accused and JH by this time.
In summary, it was put that I cannot exclude as a reasonable possibility that Ms Young may well be mistaken about her observations, as shown by her delay in reporting the suspected abuse, and her efforts to confirm what she saw by checking if there was a fastening arrangement on JH’s shorts and the contents of his bag.
Defence counsel also relied on JH’s interview with Child Protection Services, in which JH denied any sexual touching by the accused or that the accused asked JH to show him, the accused, his penis, and submitted that the interview should also cause me to have a doubt about the accuracy of Ms Young’s purported observations.
Ms Young presented as a careful and considered witness. She appeared deeply upset by her observations on 16 December 2014. Ms Young made appropriate concessions about her concerns about the accused’s professionalism. For example, she agreed that she was upset by what she saw as special treatment towards the accused. She also agreed that the accused had apologised to her for his past behaviour towards her. I am of the view that had Ms Young really held genuine animosity towards the accused on 16 December 2014, she would not have waited two days before reporting her observations of the accused, nor would she have felt such internal conflict in having to do so.
I also do not accept that Ms Young’s delay in reporting the allegations is because of a lack of certainty on her part as to what she saw transpire between the accused and JH. Ms Young gave evidence that while she always intended to report what she saw, she delayed doing so because she was shocked and scared, and because she worked with the accused. She said she kept telling herself, ‘I’ll do it later’. Ms Young’s evidence that she likened seeing the alleged act to receiving bad news from a family member, that ‘you kind of want it to be a bad dream, and snap out of it, but it’s just there’ was convincing and in my view explained her delay in reporting the allegations. Similarly, I accept that Ms Young’s actions in checking whether JH’s shorts had a zip, and the contents of his bag, does not undermine her credibility or reliability but is simply part of her confirming what she saw out of fairness to her co-worker before reporting the allegations.

Furthermore, Ms Young’s description of the charged act was detailed, in that she described having an unobstructed view of the accused and JH, and she described the manner in which the accused was kneeling on one knee, grabbing JH’s groin for 3-4 seconds, with his thumb up, and JH’s groin in the accused’s palm. Ms Young’s description is also completely at odds with the accused’s explanation, given immediately to Ms Young, that he was simply putting photos in JH’s bag. It is to state the obvious to say that Ms Young’s observations do not allow for such an explanation, nor do I accept that Ms Young was mistaken as to what she said she observed. I reject, as a reasonable possibility, the accused’s explanation, given at the time, that he was simply putting photos in JH’s bag.
Finally, JH’s interview with CPS in which JH says that the accused did not touch him on the private parts, and did not ask JH to show him his private parts, does not cause me to doubt Ms Young’s observations. JH can be seen in the interview in a childlike manner avoiding answering many of the questions. He can also be clearly seen not wanting to talk about the raised topics. Furthermore, the interview is not had until seven weeks after the alleged incident, at a time when JH has earlier the same week started school for the first time. JH’s denials in the interview does not cause me to doubt the reliability of Ms Young’s evidence, because of JH’s young age, and the delay in CPS conducting the interview.
Findings on uncharged acts
I turn to consider the statements made by JH to his family members led by the prosecution pursuant to s 34LA of the Evidence Act, as evidence of uncharged acts. Defence counsel did not dispute that JH made each of the relevant statements to AH, LH and CH, respectively. In any event, I considered each family member gave their evidence about JH’s purported disclosures honestly, truthfully and accurately.
However, I warn myself that I must treat the evidence of each out of court statement with particular care before I use it to prove the truth of the facts asserted in the statement, because it has not been tested by the examination or cross-examination of JH. Furthermore, JH was a very young child, aged 4 or 5 at the time of each statement. There is, to my mind, a vagueness and a lack of clarity to each statement, consistent with JH’s age, which means in all the circumstances, I cannot be satisfied beyond reasonable doubt of the truth of the facts asserted in each statement. I put that evidence to one side and I do not take into account any of JH’s out of court statements to his family members in considering my verdict.
I turn to the evidence of the accused’s behaviour towards JH as deposed to by JH’s family and other childcare workers. I accept the following evidence which was not challenged by defence counsel: the evidence of Ms Zerella and Ms Young that prior to 16 December 2014, the accused would spend time alone with JH in the cubby house and the vegetable garden; the evidence of CH, Ms Zerella, Ms Young and Ms Leonard that the accused would often hug JH in circumstances not initiated by JH and where JH was not upset; and the evidence of Ms Zerella and Ms Young that the accused often placed JH in his lap. I accept the evidence that the accused, in spending time alone with JH, hugging and placing JH in his lap, treated JH differently from other children in his care, and his other ‘focus children’.
I also accept the evidence of AH, CH and LH that the accused showed a particular interest in JH, as shown by the gift of dinosaur stickers, the accused asking to attend JH’s party and calling him ‘J-J’ and the accused’s behaviour on the day AH visited the centre, as described by AH.
I also accept Ms Zerella and Ms Young’s evidence that the accused took photos of JH on his own camera in breach of the centre’s policies, notwithstanding that the police did not find any physical evidence of such photographs. The police did not search the accused’s home until 27 December 2014.
I make it clear that I do not accept AH’s evidence that the accused would regularly give JH coins. I prefer the evidence of CH and LH that this occurred on two occasions only.
The abovementioned evidence of the accused’s behaviour and attention towards JH, and of the accused’s physical affection towards JH, taken together, explains the level of intimacy and comfort which came to exist between the accused and JH, and is relevant to show how the accused was emboldened to commit the charged act so brazenly in an exposed area, confident that JH would not complain or resist his advances. The evidence rebuts the defence argument that it is unlikely that any person would commit the charged act in the manner described by Ms Young.
I remind myself that I must not reason that because I am satisfied of the evidence of the accused’s physically affectionate behaviour to JH, and that the accused spent time alone with JH, that he must be guilty of something and convict the accused of the charge. I remind myself that it would also be wrong for me to conclude that because of the accused’s physical affection towards JH, and the accused’s attentive behaviour towards him, he is the sort of person who would be likely to commit the offence with which he is charged and therefore he is more likely to be guilty of the offence. Again, that would be a clearly incorrect approach and I do not adopt it.
Conclusion
I find beyond reasonable doubt that on 16 December 2014, Ms Young saw the accused grabbing JH on his groin over his shorts for about three to four seconds. I reject as a reasonable possibility that Ms Young was mistaken as to what she observed, or that the accused was simply placing photos into JH’s bag or locker.
I am satisfied beyond reasonable doubt that the accused’s touching of JH was indecent and there was a sexual connotation to the circumstances of indecency, given the touching by the accused of a 5 year old’s groin for a sustained period of three to four seconds.
I am satisfied beyond reasonable doubt that at the time of the indecent touching the accused was in a position of trust and authority in respect of JH, and JH was under the age of 14 years at the time.
I am not satisfied beyond reasonable doubt of the truth of the facts asserted in the out of court statements made by JH to his family members, and thus of the evidence of previous similar abusive conduct.
Verdict
I find the accused guilty of the charged offence of Aggravated Indecent Assault.