R v Godden
[2022] SADC 2
•11 January 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GODDEN
Criminal Trial by Judge Alone
[2022] SADC 2
Reasons for the Verdicts of her Honour Judge Fuller
11 January 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Accused charged with 3 counts of indecent assault and 1 count of unlawful sexual intercourse - complainant 14 at time of alleged offending in 2013 - accused did not give evidence but called witnesses refuting aspects of complainant's account - proved prior inconsistent statements of complainant, forensic disadvantage, lack of detail regarding contextual setting of alleged offences, contradiction of complainant's account on matters by defence witnesses undermined complainant's credibility - cumulate effect giving rise to reasonable doubt with respect to all charges.
Verdict: not guilty of all counts.
Criminal Law Consolidation Act 1935 (SA) ss 49(3), 56; Evidence Act 1929 (SA) ss 34P, 13(7), 34M(3), 34M(4); Juries Act 1927 (SA) s 7, referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v S, DD (2010) 109 SASR 46; R v England (2013) 116 SASR 589; R v Maiolo (No 3) (2010) 109 SASR 46; R Bauer [2018] HCA 40, considered.
R v GODDEN
[2022] SADC 2
On 10 November 2021, the accused was arraigned before me on the following Information:
Phillip Donald Godden is charged with the following offences:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Phillip Donald Godden between the 1st day of January 2013 and the 31st day of August 2013 at Blewett Springs, indecently assaulted [HC].
This is a “prescribed offence” within the meaning of and for the purposes of s 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Phillip Donald Godden between the 1st day of January 2013 and the 31st day of August 2013 at Blewett Springs, indecently assaulted [HC].
This is a “prescribed offence” within the meaning of and for the purposes of s 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49 (3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Phillip Donald Godden between the 1st day of January 2013 and the 31st day of August 2013 at Blewett Springs, had sexual intercourse with [HC], a person under the age of 17 years, by penetrating her labia majora with his finger.
This is a “prescribed offence” within the meaning of and for the purposes of s 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Phillip Donald Godden between the 1st day of January 2013 and the 31st day of August 2013 at Blewett Springs, indecently assaulted [HC].
This is a “prescribed offence” within the meaning of and for the purposes of s 38 of the Child Safety (Prohibited Persons) Act 2016.
The plea
The accused pleaded not guilty to all charges and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. In this case, if the touching the subject of counts 1, 2 and 4 took place in the way alleged by the complainant, this element will be established. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. As the complainant was under 17 at the time of the alleged offence, consent is not a defence. It was not disputed that if I were to find proved the conduct alleged by the complainant in respect of counts 1, 2 and 4, on each occasion this was an assault committed in circumstances of indecency.
To prove the offence of unlawful sexual intercourse in count 3, the prosecution must prove that the accused had sexual intercourse with the complainant and that when he did so, the complainant was under the age of 17. Sexual intercourse includes the penetration of the vagina or labia majora by any part of the body of another person.
Cross-admissibility of counts
Each count must be considered separately. However, it was common ground between the parties that the counts were cross-admissible pursuant to s34P of the Evidence Act 1929 on the basis that each charged act, if proved, could be used as circumstantial evidence demonstrating a sexual attraction to the complainant and the tendency of the accused to act in furtherance of that sexual attraction. I am satisfied that the evidence of each charged act is admissible on the basis set out by the High Court in R v Bauer [2018] HCA 40:
Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.
The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.[1]
[1] At [49] – [50]. Footnotes omitted.
Overview of prosecution case
The complainant, HC was born on 15 January 1999. She is the cousin of the accused’s wife JG. It is the prosecution case that the accused sexually abused HC on four separate occasions in 2013 when she was 14 years of age. The sexual abuse occurred at the accused’s family home where the complainant would attend on weekdays after school. The sexual abuse comprised two occasions upon which he indecently assaulted the complainant by touching her on the breast. On a third occasion, the accused touched the complainant on her vagina and inserted his fingers into her labia majora. On the fourth and final occasion, the accused indecently assaulted the complainant by picking her up and throwing her on his bed and attempting to remove her tracksuit pants.
The complainant stopped attending the accused’s family home after school some time in July or August 2013 and as a result the offending came to an end. The complainant had told her mother that she no longer wanted to go to the accused’s family home after school because she was not getting along with one of the accused’s children.
The first person to whom the complainant disclosed the sexual abuse was her boyfriend, JHC. She told him that the accused had groped her and tried to rape her, but did not go into any specific detail. The complainant elaborated upon that complaint to her mother on Boxing Day 2018. Her mother told her that another family member had made allegations of a sexual nature against the accused and the complainant responded to this news by crying. Her mother then asked her ‘so he’s done it to you?’ and then asked the complainant why she had not said anything. The complainant told her mother that she did not want to hurt the family and was not sure that she would be believed. The complainant told her mother that the accused had touched her inappropriately and that this had occurred in front of the accused’s two sons.
The accused was arrested on 10 January 2019.
General directions
The accused elected for trial by a Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in several authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[2] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3]
[3] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
I must assess each witness as to truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witness’ evidence. In the circumstances of this case, it is appropriate to direct myself that a reasonable doubt as to the truthfulness or reliability of the complainant's evidence in relation to one count may be taken into account in assessing the truthfulness and reliability of the complainant's evidence of another count.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
The evidence
I turn to examine the evidence led by the prosecution in more detail.
The following items were tendered as exhibits:
P1 – Photograph of house at Blewett Springs.
P2 – Plan of house at Blewett Springs.
P3 – 7 photographs of complainant.
P4 – Statement of agreed facts.
D 5 – Facebook Post 4 June 2013.
The following facts were agreed in P4:
1.The accused, Philip Donald Godden, was born on 11 November 1979.
2.The complainant, [HC], was born on 15 January 1999.
3.[FG] was born on 30 October 2002.
4.[CG] was born on 22 May 2004.
5.[WG] was born on 21 December 2007.
6.[JDG] was born on 31 October 2010.
7.From 21 March 2011 until December 2014, the accused, his wife [JG] and their children [FG, CG, WG and JDG] lived at 65 Adams Road, Blewett Springs, South Australia.
8.In the years 2012 to 2014, HC attended Willunga School.
9.HC provided a statement to police on 5 January 2019.
10.The accused was arrested by police in relation to this matter on 10 January 2019.
The prosecution called 3 witnesses, the complainant HC, her mother DN and the complainant’s former boyfriend JHC.
HC gave her evidence in the presence of a court companion employed by the Victim Support Service. The court was closed during her evidence, and it was recorded by audio-visual means. A one-way screen was erected between her and the accused. I made those orders at the outset of the trial. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the HC’s evidence.
The complainant’s evidence.
HC was born on 15 January 1999. Her mother is DN and father, JC. They separated when she was around 6 years of age. She has two younger siblings, NC and TC. Following her parents’ separation, she lived with her mother and visited her father on a fortnightly basis for a weekend and one week during school holidays. Her mother had one brother WN, an older sister SMA and a younger sister TN. SMA has 3 children, a daughter, JG, son, DMA and younger daughter HMA.[4]
[4] T 10-T 11.
JG is married to the accused, who the complainant knew as Phil. She described him as being in the family since before she was born. The accused and JG have 4 children, FG, 19 years of age, CG, 17 years of age, WG, 12 years of age and JDG, 11 years of age. They are all younger than HC.[5]
[5] T 11.
Her aunt, SMA, has a daughter, AM, who is 15.
HC went to St John’s Grammar until the first term of year 3. She then went to Seaview Downs Primary until year 5. She then went to Sturt Street Community School until high school in 2012 when she started at Willunga High. She was 13 in 2012.[6]
[6] T 12.
In 2012 she was living in Aldinga Beach with her mother and two younger siblings. Her mother was working full time Monday to Friday for an accounting firm in the city. In 2013 she was still living in Aldinga Beach. She turned 14 on 15 January 2013. She started year 9. Her mother was still working full-time in the city.[7]
[7] T 12-T 13.
After HC started high school in 2012, there was an arrangement whereby she would catch the school bus to her cousin JG’s property in Blewett Springs. The bus would travel through McLaren Vale and pick up primary school students and she would be dropped off right out the front of JG’s property. The eldest children of the accused and JG, BG and CG, were at school at that time and would get on the bus at McLaren Flat when it stopped outside the primary school.[8] This arrangement started at the beginning of the school year in 2012 and was put in place because her mother was not comfortable with her going home on her own after school so she arranged for her cousin JG to watch her until her mother finished work and came to collect her.[9]
[8] T 13.
[9] T 13-14.
HC said she went to the Blewett Springs property after school, Monday to Friday. During school holidays and in the week that she would be with her mother, she would spend the week at the house at Blewett Springs.[10]
[10] T 14.
HC said she stayed at the property at Blewett Springs for a couple of hours after school. Her mother would collect her between 6.00pm and 6.30pm depending on how long it had taken her to get there from the city.[11]
[11] T 15.
On rare occasions she would visit the accused and JG on weekends; otherwise it would only be if there were family occasions such as birthday celebrations.[12]
[12] T 15.
HC was shown P2, the plan of the house at Blewett Springs and said that the dining area was used for an office and had a corner desk and computers set up. The area marked ‘living room’ was a theatre room with TV, couches and an entertainment unit set up with speakers. In the lower part of the area marked ‘family room’ there were couches set up along the wall that backed onto the bedrooms, and a TV in the corner on the opposite side of the couches near the door. HC marked the couches on P2. In the upper part of the area marked family room there was also a dining table, fridge and fish tank. HC then identified the occupants of each bedroom marked on P2.[13]
[13] T 16.
When HC went to the Blewett Springs property after school she spent the majority of the time in the family room. She said she was eventually allowed to spend time in the living room because the children were not permitted inside there without an adult present. When she was in the family room she would alternate between sitting at the breakfast bar or the couches at the bottom right of the area marked family room.[14]
[14] T 17.
After she had bought herself an iPod she would listen to music, play games or go on social media if she was not spending time with the accused’s children. She had social media accounts with Facebook, Instagram and would occasionally use Twitter. She had full access to the internet on her iPod. She first started using social media in July 2012.[15]
[15] T 17-18.
When at the accused’s house, she would spend most of the time with the two older girls, FG and CG:
…we would often go up to the chicken coop that was at the back of the property and I would help the girls feed and water the chickens, otherwise we would play fantasy games, like pretend we were animals around the property.[16]
[16][16] T 18, 11-15.
HC did not have a key to the house. JG was not working. She said the accused was working but she did not know in what occupation.[17] JG looked after the children the majority of the time she was there. When she and the children were up at the back of the property, JG would remain in the house, so they were not under adult supervision at all times.[18]
[17] T 18.
[18] T 19.
HC said the property had two paddocks, with sheep in one. There was a chicken coop, stables and a storage area and a couple of trees. She did not recall there being any horses on the property. There were dogs but she was not sure if there were two or three.[19]
[19] T 19.
When HC started going to the Blewett Springs property after school she got on very well with the accused’s children. They rarely argued. She got on fairly well with JG and they would always have conversations while she was in the kitchen baking or cooking dinner.[20] HC said she got along fairly well with the accused, but when JG was there too she did not talk to him as much as she did JG.[21]
[20] T 19.
[21] T 19-T 20.
P3 was shown to HC and she identified the photographs as being photographs of herself. Photograph 1 was a picture of HC in summer high school uniform. She took this photograph in May 2013 and posted in on Facebook the day she took it. She was next to the front window in the living room of the Blewett Springs property when she took the photograph.[22] The second photograph was one taken by one of her cousins and was taken in 2011 at Wentworth Gaol in New South Wales when she was 12. The photograph on page 3 was taken the same day on the Murray River by either her mother or cousin. The photograph on page 4 was of HC wearing her summer school uniform and was taken at the beginning of the school year in 2012. The photograph was taken by her mother at her family home in Aldinga Beach.[23] Photograph 5 was taken in Tasmania on a holiday with her mother and siblings in October 2013 when she was 14.[24] Photograph 6 was taken on Aldinga Beach by her mother when she was 13 later in 2012. She uploaded this picture to her social media. HC took photograph 7 depicting herself in the living room of Blewett Springs wearing her school uniform. It was taken off the same time as photograph 1. She uploaded it to social media using an application to apply a colour changing filter. [25]
[22] T 20-T 22.
[23] T 22-T23.
[24] T 23.
[25] T 23-25.
She continued going to the accused and JG’s home until approximately April 2013. There were occasions when she would be alone with the accused. He would approach her while she was in the family living room playing on her iPod and sitting on the couch. He would often sit on her or poke at her, which she found to be annoying and irritating. He also poked and tickled and snatched things and generally roughhoused with other members of the family.[26]
[26] T 25.
Count 1
HC could recall one occasion when the accused managed to snatch her iPod. She gave this evidence:
I remember one occasion where he managed to snatch my iPod. I refused to give him the passcode to be able to unlock it. I can remember him reaching to try and grab my iPod and then I can remember him reaching under my top and feeling my left breast.[27]
[27] T 26, 5-9.
HC said that she had earphones connected to the iPod which had an earpiece for each ear connected by a wire to the iPod. When the accused approached, she would remove one earpiece.[28] She was asked to describe how the accused put his hand on her breast and she gave this evidence:
[28] T 26-T27.
AReaching through the opening – the neck opening of my shirt.
QHow did his hand move as he did that.
AIt moved down towards my left breast trying to feel the left breast.
QDo you recall if you were wearing underwear that day.
AI would’ve been wearing a – just a regular bra underneath.
QWhen you say ‘you would have been’ was that something you always wore.
AYes.
HER HONOUR
QWhat sort of bra was that, do you remember?
AIt would’ve been a beige, skin colour bra.
QAnd had you hit puberty by then.
AYes.
XN
QWhereabouts did he touch you.
AThe top of my left breast.
QAnd was that over or under your bra.
AUnder my bra.
QHow did you feel as he did this.
AShocked, scared, I was not comfortable with it.
QDid he say anything to you as he did this.
ANot that I can remember.
QDo you remember saying anything to him.
ANo.
QAs he grabbed the iPod from you can you describe how his body was positioned in relation to yours.
ANo.
QCan you remember which side he was sitting on.
AHe was sitting to the right side of me.
HER HONOUR
QWhen he grabbed the iPod, the earpiece that remained in, did that come out.
AYes. [29]
[29] T 27, 19-38; T 28, 1-16.
After giving this evidence, HC was asked how she felt when the accused grabbed her iPod and she said it was frustrating. [30] She said she could have got up off the couch if she had wanted to. After the accused grabbed the iPod from her, she tried to get it back by reaching to grab it out of his hand. When she did that the accused reached down her top with the hand that was not holding the iPod. She could not say which hand he used.[31] She said this incident occurred in year 9 but when asked whether there was any particular reason why she remembered that to be the case she said no.[32] She said the touching of her breast was not firm, ‘it was more of a light touch’ in a downwards and then a circular motion before he removed his hand.[33] She then gave this evidence:
[30] T 29.
[31] T 29.
[32] T 30.
[33] T 31.
QDo you remember how that incident came to an end.
ANo.
QYou told her Honour that you got your iPod back.
AYes.
QDo you remember if he said anything to you after that.
ANo.
QDo you remember if you said anything to him.
ANo.
QDo you remember if anyone else was home when this happened.
ANo.
HER HONOUR
QDoes that mean no-one was home or you can’t remember.
AI can’t remember anyone being home at that time.
…
QAt the time that it happened, was anyone home.
ANo.
QAfter this happened, did you see anyone else.
ANo.
QWhen I say, ‘Did you see anyone else’, did you see anyone else at home.
ANo.[34]
[34] T 31, 27-38, T 32, 1-28.
HC said that she did not get changed into other clothes when she went to the Blewett Springs house. There was one occasion when she had to change out of her track suit pants because of the bad weather and JG gave her another pair.[35]
[35] T 29.
Christmas 2012 was held at the Blewett Springs property, and her family went there for it. She did not recall feeling anxious or scared being around the accused at that time and she said touching of her breast by the accused occurred after this.[36]
[36] T 30.
Count 2
HC said she could recall one other incident when the accused touched her on the breast:
AI do not remember the lead-up to the incident but I can remember him again reaching in, this time it was my right-sided breast which he grabbed and this time it was a firm grab that did cause some pain. I don’t remember whether it was inside or outside of my clothing.
QDo you remember if you were at Phil and [JG’s] house when that happened.
AThis was also at Phil and [JG’s] house.
HER HONOUR
QWere you wearing a bra at the time.
AYes.
QSo when you said you don’t remember if it was inside or outside of your clothing, were you referring to something other than your bra or your bra or both.
ABoth.
XN
QWas this an occasion when you were visiting their house after school.
AYes.
QWas anyone else home at the time this happened.
ANo.
QWhat happened after he did that.
AI do not remember.
QHow long did that incident go for.
AI don’t recall it being any long length of time. It was only a short, quick moment.
QDid he say anything to you as he did this.
ANo.
QWhat was happening before that incident.
AI would have been on the couch either on my iPod, laptop or pod or DVD player.
QWhen you say you would have, do you have a clear memory –
ANo.
HER HONOUR
QDo you have any recollection of where in the house you were when this happened.
AYes. It was in the family room area where the couches were, towards the back of the plan.
XN
QIs that the same location as the first incident.
AYes.
QHow did that incident come to an end.
AWith me moving away from Phil and onto the next couch that was situated next to the couch that I was originally on and sort of – I remember curling up, just trying not to – keeping my back towards – facing inwards towards the couch and just curled up in a ball on the couch.
QDid he ever touch you on the breast in that way on any other occasion.
ANot that I can remember.[37]
[37] T 32, 35-38; T 33 – T 34, 1-14.
Count 3
HC said the next incident that she could recall of a sexual nature occurred when she was walking into the living room. She gave this evidence:
I remember an incident occurring where I was walking into the living room/theatre room. I can remember [JG] and the two older girls not being home but the two boys were and Phil. I was walking into the theatre room when Phil came up behind me, using one of his legs, took me off balance and caught me as I was beginning to fall and then dropped me onto the floor. The next moment I remember being held down, facing down on the carpet, with Phil on top of me, from what I can remember, sort of sitting with one leg on each side of me. I was face down. I had a brief moment that I was able to send a message that I had on my – with my iPod to one of my friends on Facebook before my iPod was then taken out of my hand and thrown to where I could not reach it. I struggled to try and reach out and get out from underneath Phil. The next moment I remember Phillip reaching underneath me towards my lower area. I remember his hand going underneath my tracksuit pants and underneath my underwear and him touching my vagina inside the outer labia and touching my urethra and clitoris area.[38]
[38] T 35, 8-28.
HC said this took place when she was in year 9 and after the occasions upon which the accused touched her breast.[39] She could not remember how long after the first occasion of breast touching that the second occurred but said that this third occasion of touching occurred a week or two, possibly more after the second occasion of breast touching.[40]
[39] T 35.
[40] T 35-T36.
HC was then asked about where WG and JDG were at that time:
QWere [WG] and [JDG] already in the room when you entered.
AI remember calling [WG] into the room to try and help me get Phil off me, but he had been told no by Phil to not do anything and he – [WG] appeared to be confused as to what was going on, that he didn’t understand what was going on.
HER HONOUR
QSorry, Ms Park, how old was [WG] at this point.
AHe would have been either four – yeah, he would have been four from memory.
XN
QYou’ve told us that [JG] and the girls were out, was [JDG] also home.
AYes.
QWhere was he.
AHe, from memory, would have been in his room
QYou didn’t see him in the theatre room.
AI don’t recall seeing him in the theatre room.
QHow were you positioned when Phil came in.
AI had my back towards – I had my back facing towards the family room.
QWere you standing or seated.
AI was standing.
QWhat was [WG] doing.
AI can recall him just – he was in the room playing with – I can’t remember whether he had a toy or whether he was playing with one the furniture that was in the room.
QCan you describe how Phil knocked you to the ground.
AUsing one of his legs, sort of swiped me off – swiped my legs off balance, so that I would then fall to the ground.
QDid he say anything as he did that.
ANo.
QIn relation to the couches that you marked on this floor plan, where were you when you fell to the ground.
ASort of between the two single recliners and the two entry ways, sort of in the middle.
…
QAs he did that, where were his hands.
AI can recall the one hand, that was his right, reaching in from my right side under my tracksuit pants and my underwear.
QGoing back to when he took you to the ground, did he touch you with his hands at all.
ANot that I can remember.
HER HONOUR
QSo were you lying flat, your whole body was flat, face down on the floor.
AYes.
XN
QYou describe that his legs were either side of you, how much of his weight was on you.
AMajority of his weight.
QWere you able to move.
AI was not able to get out from under him.
QWhat were you doing as he did this.
ATrying to crawl – I could move my torso, I can remember trying to reach to be able to get my iPod, but it was too far for me to be able to reach it and I couldn’t move across the carpet.
QGoing back a step, you’ve told us that you were holding onto your iPod.
AI was in the beginning before – which I tried to send a message out to my boyfriend at the time, before he then snatched it off of me and then threw it out of reach.
HER HONOUR
QWere you holding onto the iPod while you were flat on the floor.
AIn the beginning.
QWhere were your arms and hands.
AOutstretched – stretched to the side of me.
QIf you can say so, which hand did you have the iPod in.
AMy left hand.
QAnd in that position, you sent – you did send a message.
AI attempted to, I believe I did send a message along the lines of ‘Help’.
QWhat did that physically involve you doing with the iPad, iPod sorry.
AI was on Facebook messaging my boyfriend at the time the word ‘Help’.
QDid you have to get onto Facebook or were you already on it.
AI was already on it on the Messenger.
QWhat’s involved in sending a message on Facebook messenger.
ATyping out the word ‘help’ and then hitting the button to send it, send the message as you would in a text.
QWhat do you need to get the message to a particular person.
AI had to be in – had their chat open to be able to send a message to them.
QWas the chat open.
AYes.
QHad you been messaging your boyfriend before this incident happened.
AYes.
XN
QWhen you sent that message, where were your arms positioned.
ATo the side somewhat outstretched in front of me.
QCould you see Phil’s hands.
ANo.
QWhat was Phil doing while you did this.
AAt first trying to grab the iPod off me. It was very sudden and quick, once I no longer had the iPod, had access to my iPod, before he then began reaching through my clothing.
HER HONOUR
Q[HC] to send the message or to try to send the message, did you have to use both hands or just the one hand.
AJust the one.
XN
QHow did he take the iPod from you.
AGrabbed it out of my hands.
QHow did he do that.
ABy reaching over, over the – my torso and hand as I was trying to keep the iPod away from him being able to reach it to snatch it from me.
QWhat did he do once he got hold of it.
AHe threw it across the carpet to where I couldn’t reach it.
…
QAfter he threw the iPod, what happened next.
AThat was when he leaned over me and sort of held me down so that I couldn’t – it was even more difficult for me to be able to get up.
QHow did he hold you down.
AUsing his full body weight, torso.
QCan you say where his body was positioned over you.
AOver my lower half of torso and my hips.
QWhere were his legs positioned at that time.
AOn either side of my hips.
QWhere were his arms positioned at that time.
AOn the side – to the side of my torso near my shoulders.
QWhat parts of his body were making contact with yours.
AHis groin and lower torso.
QWhat could you feel.
AI could feel his groin.
QWhere could you feel that.
AI could feel it against the lower half of my waist on my back.
QHow did that feel.
AUncomfortable.
QWhen his hand moved to your tracksuit pants, where did he move his hand.
AIt moved down from the waistband, underneath the waistband of my tracksuit pants, going over my clitoris and urethra area and in between the labia.
QWhen his hand went into your tracksuit pants, whereabouts on your body did he do that, was it towards the front.
AThe front, the front of my body.
QYou’ve described where he touched you, can you describe what sort of motion he used.
AA sort of feeling motion and then a sort of rubbing with his fingers.
QWhere was he rubbing.
AThe – my clitoris and urethra area.
QAnd you described the anatomy of the vagina, whereabouts in relation to the outer lips or labia majora did he do that.
AThe outer lips, just – the outer lips just below my urethra
QAnd he touched you in that area as he moved in the way you’ve described.
AYes.
QHow long did that go on for.
AA few seconds before I managed to shove his hand away, pull it out and shove it away.
QWhile he was touching your vagina, did he say anything.
ANo.
QDid you say anything.
AI said to ‘Stop’, ‘No, don’t touch me there’.
QWhat were you doing physically.
AI was struggling to try and get out from underneath him and to shove his hand away.
…
QHow did this incident come to an end.
AI managed to – once Phil had stopped, after I managed to shove his hand away, I then got up, grabbed my phone, grabbed my belongings that I had near the breakfast bar in the family room and move them to the couch. I can remember curling up on the couch focussing on my iPhone feeling very distressed and upset and just waiting until my mum had – was ready to collect me.[41]
[41] T 37-42.
HC said that she found the touching stressful, very upsetting and she did not feel comfortable with it at all. She was not physically hurt. The accused did not say anything to her and she did not say anything to him after it ended. The message ‘help’ was sent to her boyfriend at the time, JHC. [42] HC did not know if the message actually sent and could not recall if she received a response. She no longer had the message because she deleted all of the communications between them. When she became friends with him again on Facebook, she began to message him again and as it commenced as a fresh conversation, she concluded that he had deleted the messages too.[43]
[42] T 42.
[43] T 43.
HC said that she was lying on her stomach face down on the floor and the accused had his body weight on top of her. For the accused to access the front of her body he had to use a ‘forced action’.[44]
[44] T 44, 23.
Count 4
HC said ‘a couple of weeks or a few days’ later the accused picked her up and put her over his shoulder as he walked towards the bedroom he shared with JG. HC said:
He then took me into their room, threw me down onto their bed, I had my back onto the bed facing upwards, he then climbed up onto the bed kneeling over me, he attempted to remove my tracksuit pants. I was in my school uniform so it was after school. He attempted to remove my tracksuit pants, but I was struggling not allowing it, again struggling to try and get out from underneath him as he was leaning over me while on the bed. I can remember struggling telling him, ‘No’, that it’s not right, ‘You can’t do this’, just repeatedly saying ‘No’. I eventually managed to pull my right leg up and knee him in the groin to which then allowed me to be able to get out from under him and run out of the room. And then I had already had my things close to the couch and then curled up on the couch again and putting music on and trying to rest and wait for my mum to come pick me up.[45]
[45] T 45, 8-24; T 46, 1-4.
HC said that she had been sitting on the couch that was closest to the middle of the family room playing on or listening to her iPod. The accused picked her up off the couch and she tried to wriggle out of his hold. She could not recall where his hands and arms were, but the front of her torso was over the front of his right shoulder and her legs were over the front of his torso. [46]
[46] T 47.
When she was thrown onto the bed by the accused, she was on her back and her feet were dangling off the edge of the bed. HC marked P2 to indicate where her head and feet were.[47] She struggled to get away from him and to climb off the bed. When she tried to climb or roll off, he would grab her and throw her back onto the bed. He then tried to remove her tracksuit pants and underwear. While he was doing this, he was leaning over her and facing her. He was kneeling on each side of the outside of her legs, closer to her knees. He used his right arm to hold himself up and the other he used to try to remove her clothing.[48] He tried to grab the outside of the waistband of her tracksuit pants on the right side and pull her pants down. He managed to grab them briefly before she was able to ‘shove’ his hand off with her right arm and hand.[49]
[47] T 48.
[48] T 49.
[49] T 50.
The accused was laughing and saying ‘oh what’s wrong? What’s the matter?’. HC replied, ‘it’s not right. No.’ The struggle lasted about a minute or so and the incident ended because she was able to pull her right leg up enough to use her knee to kick the accused in the groin.[50] She said this ‘caused him enough pain to give me a chance to get off the bed and out of the room’. She then gave this evidence in response to questions from me:
QHow did you know he was in pain; what did you see.
AHe was – it sort of made him stop what he was doing and to reach for his groin, which then gave me the opportunity to be able to get – climb off the bed and run out of the room.
QAnd you said he reached for his groin, what did he reach for his groin with.
AWith the hand that he was trying to – his left hand which he was trying to use to grab my pants.
QCan you say what he was wearing during this incident.
ANo.[51]
[50] T 50.
[51] T 51, 4-14.
She then went back to the couch and sat in the corner closest to the sliding door and waited for her mother to arrive. Her mother arrived an hour to two hours afterwards. The accused did not say anything to her about the incident. She was feeling extremely distressed, frightened, scared and upset but she tried not to show any emotion until she got home. [52]
[52] T 51.
After this incident, there were no more incidents of a sexual nature involving the accused.[53] She continued to go to the Blewett Springs house but only for a short amount of time because she eventually convinced her mother to allow her to go home after school. She said she stopped going ‘roughly May 2013’ and based this on photographs she had posted on Facebook and Instagram when she was at home.[54]
[53] T 51-T 52.
[54] T 52.
The change in after school arrangements occurred after she had an argument with FG over seating arrangements on the bus. FG had spoken to JG who had then contacted her mother advising that they were not happy with her behaviour. HC said that was enough for her to convince her mother to let her go home after school.[55] She said she did not want to continue going there because ‘of the way [the accused] had been treating me when [JG] wasn’t there’[56] but she told her mother it was because she was beginning to fight with FG. She gave the following evidence in response to questions from me:
[55] T 52.
[56] T 53, 16-17.
Q[HC] was it the fact that you had been arguing with [FG] or was that something that you’ve made up.
AThat was – so we were arguing but it wasn’t enough of a reason for me to – but it’s what I had convinced my mother.
QAnd what had you been arguing about.
ASeating arrangements on the bus. So the primary and high school children were to sit separately but [FG] would want to sit up the back with myself and the rest of the high schoolers.
QIs that something you didn’t want to happen.
AThey – the other high schoolers didn’t want it.
QAnd as a result of that, what did you do.
AI calmly explained to [FG], you know, ‘I’m sorry but they don’t want you up here’. You know, it’s all I could really say, I couldn’t make any promises, and that they had to go sit back down with the other children.[57]
[57] T 53, 19-35. HC referred to FG as ‘they’ at various times during her evidence. She explained that this is because FG no longer identifies as female and therefore the pronoun ‘she’ is not appropriate.
HC was asked why she did not tell her mother the real reason that she wanted to stop going to the accused’s house after school and she said:
I was concerned for how my mother would react to being told what would happen, her having – having it made it – would have made her very upset, that if I had then spoken up and caused legal action, that if [JG] and the kids did not have any form of income, that they would be in a lot of financial struggle and I did not want to hurt my family in that way. And I also feared that no-one would believe what had happened to me.[58]
[58] T 54, 8-15.
After she stopped going to the accused’s house after school, she would still see the accused and JG, but not as regularly. It would only be at family birthday celebrations or Christmas.[59] The last Christmas that HC saw the accused and JG was Christmas Day 2016. They were all having dinner at SMA’s house in Seaford Rise. HC’s mother had bought glow sticks for the children to play with and an argument broke out amongst the children about the glow sticks. The children were warned that if the arguing did not stop, the glow sticks would be confiscated. The arguing continued. DN got up to intervene and then the accused did. When her mother returned, she was very upset and told HC that they were leaving straight away. After this occasion, the only other time she saw the accused and JG was at an uncle’s 50th at Marion. She did not speak to either of them and said, ‘I tried to keep my distance as I didn’t want to be anywhere near [JG] or Phil at the table’.[60]
[59] T 54.
[60] T 55, 24-26.
She said she did not want to be anywhere near JG because she did not feel comfortable around her. She said JG disliked her because of the family incident that occurred on Christmas Day 2016.[61] She then gave this evidence in response to questions by me:
[61] T 55-T 56.
QWhat made you think she didn’t like you because of that incident.
ABecause of the way my mother had reacted to the situation and because I supported my mother in how she reacted. They were demanding apologies and we didn’t believe that any apologies needed to be made. I had debated that night about telling my mother what had happened while at BlewettSprings but I feared it would only make the situation worse.
QIn relation to the incident involving the glow sticks how did you support your mother in her reaction.
AWell, she had gone to confiscate all the glow sticks off of all the children and I believe she must have been telling the children off when Phillip approached her, and from what my mum has told me, he had told her to eff off and other – she hasn’t told me exactly what was said but that had really upset her.
QYou said you thought [JG] didn’t like you because you’d supported your mother in how she reacted.
AMm.
QWhat did you do to support your mother.
AI basically said, you know, she was – that she was in the right for trying to tell the kids off because no-one else was taking any action until she did.[62]
[62] T 56, 10-33.
Complaint to boyfriend, JHC.
The first person to whom HC disclosed what the accused had done to her was her boyfriend, JHC. They had resumed a relationship in 2015 and were spending holidays together at her home in Aldinga. On one occasion she asked him if he recalled her sending him messages while she was in her cousin’s home, and he said that ‘he briefly remembered’. She then told him that she had sent the message ‘help’ because her cousin’s husband, Phil, had been touching her on the breasts and groin area and that she believed he tried to rape her, but she did not go into the detail of exactly what happened.[63] She told him that it was her older cousin’s husband, the cousin whose place she went to after school.[64] She did not tell him about any of the specific occasions about which she gave evidence.[65]
[63] T 57, 2-16.
[64] T 60, 23-24.
[65] T 61, 11.
She said this conversation was in the school holidays between term one and two and it occurred around midday. She did not know how the topic came up but she trusted that he would not tell anyone else and he did not know anyone involved personally. She was at a point where she really wanted to tell someone about what had happened to her. After she told him, he felt really bad for her and was sorry it had happened and wished it had not happened.[66] She did not discuss this topic with him in person ever again. After she made her first statement to police, she messaged him on Facebook Messenger and asked him if he remembered her telling him anything back when they were in a relationship in 2015:
He was a bit unsure, but vaguely remembered me talking about something and I spoke with him and said he’ll probably be asked to make a statement about what he can remember I’ve said.[67]
[66] T 59, 8-38.
[67] T 64, 1-4.
She has not discussed the matters about which she gave evidence with him ever again.[68]
[68] T 64, 8.
HC did not tell anyone else about what the accused had done. She did not tell JG because she thought JG would not believe her. She said she did not have that sort of trust with her.[69]
[69] T 61, 3-10.
HC said her friendship in 2013 with JHC became more than that a few weeks after they had started spending time together in their friendship group. It was an on again, off again relationship for about 2 years. The relationship ended in June 2015. They rarely spent time together outside of school and there were only a few occasions when they ‘hung out’ during school holidays. She would keep in touch with him through Facebook Messenger almost every day, before school, during class time or after school. This contact did not occur when they were ‘off again’.[70]
[70] T 57, 29- T 58, 27.
HC said she deleted their Facebook messages in the ‘middle end of 2015’ when their relationship came to an end. She was still friends with him at the time she gave evidence.[71]
[71] T 58, 38.
Complaint to mother, DN.
On Boxing Day in 2018, HC had come home after staying with her partner at his grandmother’s house for Christmas Day. Her mother had told her she needed to have a conversation with her when she got home. Upon arriving home, her mother told her that Phil had just been arrested. HC knew that JG also had a father called Phillip, so she said ‘Godden?’ and her mother said yes. Her mother told her that he had been arrested for paedophilia and then said she needed to ask her whether anything had happened to her.[72] HC said her instant response was ‘no words, but just to break down crying’.[73]
[72] T 64, 18-29.
[73] T 64, 29-30.
Her mother then told her she would get in contact with the detective to whom she had spoken and would arrange for her to make a statement if she was happy to.[74] HC said yes, and told her mother, whilst crying, ‘I didn’t let him get as far as he could have, he tried’.[75] She then gave this evidence about the conversation with her mother:
[74] T 64, 33-35.
[75] T 64, 36-38.
QWhat did you tell her about what had happened.
AJust that he had tried to do certain stuff, but I wouldn’t let him get as far as what he could have.
QDid you tell your mother about any of the particular incidents that you’ve told her Honour about today.
ANo.
QDid she ask you for any detail.
ANo.[76]
…
Q[HC] did you tell your mother any further detail about what had happened to you during that conversation.
ANo.
QAnd did you discuss that topic with your mother again after that conversation.
ANo.[77]
[76] T 65, 10-20.
[77] T 68, 8-13.
In cross-examination, HC said that it took 15 to 20 minutes to travel from her family home in Aldinga to the accused’s home in Blewett Springs.[78] When she caught the school bus from Willunga High School it would stop at McLaren Flat Primary School. The high school children were collected first and then the primary school children. It took the bus 10 minutes to go from the primary school to the accused’s house at Blewett Springs. The bus left school at 3.10pm and she would arrive at Blewett Springs around 3.40pm.[79]
[78] T 68, 26.
[79] T 69, 3-31.
On most occasions FG and CG would be picked up by the bus at primary school.[80] HC said there were often occasions when JG would already have picked them up and HC would travel on her own on the bus.[81] She was not aware of any specific reason why that happened but said that it happened ‘three out of five times’.[82] HC agreed that this was about 60% of the time and that it was more often than not.[83]
[80] T 69, 36-38.
[81] T 70, 2-5.
[82] T 70, 20.
[83] T 70, 26-31.
On the occasions when FG and CG were on the bus with her, the routine was that they would drop their bags off inside and grab a snack which would take about 15 or 20 minutes. Then the majority of the time they would head up and take care of the chickens that were towards the back of the property. She agreed that FG and CG had jobs to do including tending the animals. She said that was a fair bit of work[84]. Tending the chickens took about 30 to 50 minutes depending on whether they mucked around. This would take past 5.00pm and then her mother would pick her up at 6.00pm.[85]
[84] T 70, 36-T 71, 13.
[85] T 72, 1-38.
When FG and CG were not there three out of five days a week, the house would be left unlocked, and she would go inside and put her bag down. If she had anything left over to eat, she would eat it and if not, she would go and sit on a couch and play on her iPod or phone and listen to music. She would not feed or tend to the animals if FG or CG were not there because it was not her house.[86]
[86] T 73, 4-13.
HC denied making up the fact that there were three days a week when the girls were picked up by their mother and that all three of them would not be at the home when she arrived.[87] She agreed she gave her first statement to police on 5 January 2019 and in that statement she said, ‘I was going to their house every night after school and [FG] and [CG] were there – were on the bus with me most of the time’.[88] HC agreed that what she told police was different from her evidence but then said ‘they were on the bus most of the time but not always’.[89] She was asked why she gave evidence that on two of the five days FG and CG were on the bus and she said:
Because sometimes they would have been picked up either earlier but they would still be at the Blewett Springs property when I would get there off the bus.[90]
[87] T 73, 26.
[88] T 74.
[89] T 75, 12.
[90] T 75, 17-19.
HC agreed that what was happening after school between 3.45pm and 6.00pm at Blewett Springs was a pretty busy time on a very small urban farm-type operation. However, she said that while everyone had jobs to do and did them most of the time, she never saw the accused do anything.[91] She did not know what he did for work but knew that he would drive somewhere for work. She did not pay attention to what time he arrived home at any stage, but she said it would vary.[92]
[91] T 75, 20-37.
[92] T 76, 4-14.
HC said that there were times when the accused would return home when she was there, sometimes he was not there at all and other times he was already there when she arrived, whether JG was there or not. She agreed that she would have no idea what time the accused would get home from work.[93]
[93] T 76, 35-T 77, 9.
HC said that there were a few occasions when she and FG would have arguments on the bus. She said there was a form of agreement between the high school and primary school students that the primary school students would stay at the front of the bus and the high school students would stay at the back of the bus. Occasionally she would allow FG to come to the back of the bus and sit with her if there were no other high school students.[94] On the occasions when she did not give FG permission to sit with her, FG became upset. There was one occasion when HC had another high school student with her, and that person did not want any of the children up the back of the bus and HC was required to relay that to FG. She denied that it was a big argument or that the bus driver intervened and spoke to JG about it.[95]
[94] T 77, 37.
[95] T 78, 5-18.
HC said she met her boyfriend, JHC at the beginning of 2013. She had not met him in 2012 when she was in year 8. Nothing happened between her and the accused in 2012.[96] She said she was treated ‘respectably’ by the accused in 2012 and he did not give her any gifts or preferential treatment or offer to take her away alone from the farm. She agreed she knew what the word ‘grooming’ meant, and the accused had not engaged in any grooming behaviour with her in 2012.[97] HC agreed that the first occasion the accused touched her breast was a complete surprise with no build up, no talk about touching or anything of that nature. She agreed it happened completely out of the blue.[98]
[96] T 78, 22-36.
[97] T 79, 3-33.
[98] T 79, 34-T 80, 10.
HC said that none of the occasions upon which the accused touched her sexually occurred during school holidays, they were all after school. HC agreed that first term in 2013 was from about 29 January to 12 April with school returning on 30 April or 1 May 2013.[99] HC said that the sexual acts occurred between the period February 2013 and May 2013, a three-month period, two weeks of which were school holidays.[100]
[99] T 80, 13-32.
[100] T 80, 34-T 81,
HC said that the first touching of the breast occurred within a few weeks of the school year. She then said it would have been only a couple of weeks. She could not remember any surrounding events which might assist to narrow the time of the first event.[101] She could not recall what she was listening to on her iPod and she did not know what time it was. She agreed that the accused got very close to her when he touched her, but she did not know what he smelt like or if he smelt at all.[102] She did not know where the children or JG were but agreed that JG could have been near the house or out. She said the children were out and she had a clear recollection of that, but she did not know where they were or what time they returned. She could not recall if they returned before she left that day.[103] After the accused touched her breast, he did not say anything to her, and she did not say anything to him. She was then asked whether anyone else was home when it happened, and she said no.[104]
[101] T 81, 4-T 82, 8.
[102] T 82, 9-38.
[103] T 83, 2-36.
[104] T 84, 28-37.
HC said in response to questions from me that dinner time was 6.00pm and JG would prepare the dinner. If her mother had not arrived by the time dinner was served, she would be offered dinner most of the time and would eat with the family.[105]
[105] T 84, 1-22.
The second occasion when the accused touched her breast occurred a matter of weeks, at the most, after the first. She said it was still light, but she did not know what time it was. She did not know what the accused was wearing, and she did not know what he smelt like. JG was not at the property at the time. The children did not come home, and no one was cooking dinner. She did not know what the accused was doing before he touched her breast.[106]
[106] T 86, 18-T 87, 33.
HC said that the third occasion of sexual touching occurred within a few weeks of the second. However, HC said she did not know in what month it occurred or whether there was any specific school event with which it coincided.[107]
[107] T 87, 34-T 88, 4.
HC said that WG started school in 2013 and caught the bus with her. HC said that there were times when JG picked up all three children from primary school leaving HC to travel to their home by herself on the bus.[108] There were occasions when the accused was home with the youngest child. On the third occasion of touching, JG was out with her daughters. She said that it was ‘likely that they were at netball training’.[109] It was put to her that she had not mentioned previously that the girls played netball or that she went to a couple of netball games and she said she did not see it as relevant.[110] I asked her how often then went to netball training and she said she was pretty sure it was once a week, after school during netball season. She did not know when netball season was and did not know if it was in terms two and three.[111]
[108] T 88, 18-36.
[109] T 89, 23-24.
[110] T 89, 21-31.
[111] T 89, 33-T 90, 4.
HC said that on the third occasion of touching by the accused, she specifically recalled calling WG into the room. She did not know where JDG was. HC said that she was sure that WG was at school and was 5 years of age. HC agreed that in response to a question from me she had said that WG would have been 4 years of age. She said she struggled to be able to recall exact ages.[112]
[112] T 90, 27-T 91, 23.
HC said she repeated WG’s name when he came into the room after she called him. She could not recall what, if anything, she said to WG when he came into the room. She did not know what time it was when the accused touched her, did not know what he was wearing, what time her mother picked her up and did not know whether JG arrived home before she was collected by her mother.[113]
[113] T 92, 3-30.
When HC was lying on the floor with the accused on top of her, she had her iPod on her left hand. She was not left-handed, but she managed to text the letters ‘help’ to her boyfriend, JHC. She said she later spoke to him and asked him if he recalled her sending him that message and he said yes. That was in 2015. When asked if he ever rang her or talked to her in the hours or days after sending the message, she said no.[114] She then gave the following evidence in response to questions from me:
[114] T 93, 2-T 94, 19.
QSorry, Mr Redford, you said that you, after sending that message, at some point brushed it off as though you had been mucking around.
AYes.
QCould you just tell us a bit more about the context in which you brushed it off as though you had been mucking around.
AYes.
QCould you just tell us a bit more about the context in which you brushed it off, was that in a conversation or in a message.
AIt was a reply to – so his reply to my ‘help’, it was a ‘Don’t worry about it, never mind’ but I don’t recall what messages would have been from then on afterwards or if there was anything else that night.
QWhat did he say in the message that prompted you to say ‘Don’t worry about it’.
AI can’t recollect exactly what the words was, but it was he didn’t understand what I meant just by the word on its own.[115]
[115] T 94, 21-36.
In cross-examination HC said that she had a conversation via Messenger with JHC about the ‘help’ message, but she did not explain why she sent him that message. She could not recall what she said in that conversation.[116]
[116] T 95, 33-35.
HC said that WG stood there watching and was told by the accused ‘no, go away, don’t do anything’. She was sure that JDG was not present.[117] HC agreed that she gave a statement to police on 5 January 2019 and in that statement she said:
I can remember feeling stressed and uncomfortable and this made me feel a foggy sensation in my mind. [WG] and [JDG] were in the room and I asked them to get – to help get their dad off me but I can’t remember that they didn’t help me.[118]
[117] T 96, 10.
[118] T 97, 1-7.
HC agreed that she told police that WG and JDG were in the room. When asked why she told police they were both in the room she said, ‘that was my best recollection at the time of who was at the house’.[119] When asked why she said in evidence that she did not ask WG to do anything she said, ‘nothing that I could remember saying in the moment’.[120]
[119] T 97, 22-23.
[120] T 97, 29.
HC agreed that she had not told police in any statement that the accused had touched her clitoris on the third occasion he touched her. She said that since making her statement she had gone over the incident in her mind to try and recall as much as she possibly could and in finer detail. HC agreed that when she first spoke to police on 5 January 2019, she used the terms ‘hand underneath my school tracksuit pants, waistband and inside my underwear and touched my vagina with his fingers’ and ‘I can remember feeling his fingers on my vagina near my urethra area where I do a wee’.[121] HC agreed that she made another statement on 23 April 2019 and that she initiated it. In that statement she said the following:
During my original statement in para.9 I described an incident where Phil touched my vagina with his fingers. I can remember him touching my vagina and moving his fingers around and I remember him touching my urethra area where I do a wee.
His fingers were definitely on my skin and inside and between the two sides of my labia.[122]
[121] T 98-99.
[122] T 100, 4-13.
HC agreed that she did not mention anything about her clitoris but denied that she was exaggerating in her evidence or making it up as she went along.[123]
[123] T 100, 23-29.
HC said her relationship with JHC commenced in the earlier half of 2013, some time after the middle of February, March of possibly April. She disagreed that they became boyfriend and girlfriend on Valentine’s Day 2014. HC insisted that she was in a relationship with JHC in 2013.[124] HC contacted JHC via Facebook Messenger on 5 January 2019, after she had spoken to the police. She did this because the police suggested it. She asked him whether he remembered what she had told him about what the accused had done to her a few years before. JHC told her, ‘I have a shocking memory so probably not. All I can think of is something to do with us’. HC then said to him ‘No, when I would go to my cousin’s house after school’ and he said, ‘First thing that comes into mind is sexual harassment’.[125] It was put to HC that if she made a complaint, the only thing she complained about was sexual harassment and she said, ‘I was not going to message him exactly what it is that he needed to remember’.[126] As far as she knew, the police had not attempted to try and retrieve the message ‘help’ which she said she had deleted years earlier.[127]
[124] T 101, 5-T 102, 37.
[125] T 105, 2-35.
[126] T 106, 5-6.
[127] T 115, 9-16.
Since reporting the matter to police, HC has had contact with JHC through Facebook messenger. She provided police with messages exchanged between her and JHC. In that exchange, JHC said ‘I’m going in tomorrow to basically say yeah he’s a pedo’.[128]
[128] T 115-17-38.
HC said that the fourth occasion upon which the accused touched her occurred days, maybe a week after the third. She agreed it was some time before May 2013, when she stopped going to the accused’s house. She did not know what the accused was wearing or what he smelt like.[129] She said that she had a clear recollection of kneeing the accused in the groin. She agreed that she had not said this to police when she gave a statement. She agreed that she told police, ‘I cannot remember how this stopped, only that I was fighting really hard with him to get off of me, eventually Philip backed off from me and I got out of the room and went back to the lounge room where I curled up with my iPod’.[130] When asked why she did not tell police that she had kneed the accused in the groin, HC said that at the time she made her statement she had not ‘fully recollected the whole situation’ and denied that she had tried to reconstruct it.[131]
[129] T 103, 3-18.
[130] T 111, 15-20.
[131] T 111, 22-27.
HC said that in 2020 and earlier in 2021 when she was gathering the photographs in P3 the photographs that were on her Facebook profile allowed her to work out the rough time that she stopped going to the accused’s house. She did not provide those photographs to the investigating officer. HC agreed that when she gave her first statement to police, she said that she stopped going to the accused’s house in August 2013.[132] When asked what it was that made her think it was August 2013 when she said, ‘just my general, what very minimal memory I have of that year, it’s still to this day quite a blur of how things proceeded in that year’.[133]
[132] T 112, 1-T 113, 19.
[133] T 113, 23-25.
After she reported the matter to police, she went to a 21st birthday party for Oscar Campbell. She did not know when that party was. One of the guests there was Michaela Robinson. She knew that Michaela Robinson was mutual friends with the accused’s wife, JG and she mentioned to Michaela Robinson that she wanted nothing to do with her because of what her husband had done.[134] She then gave the following evidence:
[134] T 106, 34-T 107, 12.
QI want to suggest to you that you said to her that you were going to get back at them, referring to [JG] and [the accused].
AIs there any evidence of what exactly I have said?
QI’m just putting to you that’s what you said on that occasion. You agree or disagree.
AI disagree.
QI want to suggest to you that at Oscar Campbell’s party, you said ‘I’m going to drag his name through the mud all from nothing.
AI disagree.
QYou deny saying that.
…
AI deny saying that – those words exactly.
QWhat words do you say you used.
ANot those.
QBut you were boasting about the fact that you were going to have him put in gaol.
AYes.
QI want to suggest to you that you said that you were on a vendetta against your aunty.
ANo.
QYou deny saying that.
AYes.
…
QI want to suggest to you that you said words to the effect ‘Aunty doesn’t know what’s coming to her. I’m going to get Phil locked up’.
AI did not say – I deny.[135]
[135] T 107, 13-38; T 108, 9-12.
HC said that she was not present during the argument her mother had with the accused on Christmas Day 2016. She did not know where WG was at that time.[136] She could not hear what was being said. Her mother then told her, ‘We’re leaving’. HC said that a family member, JN, who was involved in the incident told her a week or so later through a Facebook message that the accused and JG wanted an apology from her mother.[137]
[136] T 108, 16-T 108, 5.
[137] T 113, 35-T 114, 10.
HC said that the accused’s job on occasion meant he did not get home until late at night. She agreed that the house was on 4 acres of land, and they had more than 10 chickens which took some time to feed. HC denied that she had dinner with the accused’s family on most occasions she stayed there and said it was only on some occasions.[138]
[138] T 116, 5-29.
HC said that the problems she was having with FG and the arguments regarding FG hanging around her on the bus were a contributing factor in her decision not to continue going to the accused’s place but was not the sole factor. She agreed she told her mother that she was not getting along with FG and that FG was upset with her because she wanted to sit with the high school children on the bus and FG had complained about this to her own mother. She said this was one of the reasons she did not want to go back to the accused’s house.[139]
[139] T 117, 10-32.
HC said she did not know whether she was in a relationship with JHC at the time she stopped going to the accused’s house. JHC at that time was living in Aldinga in the same suburb. His house was a lot closer to hers than the accused’s house. When she was able to go to her own home after school, she was able to see JHC, but not regularly. She would not have been able to do that if she had been going to the accused’s house.[140]
[140] T 117, 33-T 118, 14.
HC agreed that there were other animals on the farm at Blewett Springs that needed tending to. She was not involved in that but agreed that the accused would ask her to help in relation to the animals. She was not interested in doing that but denied becoming quite resentful in relation to the accused about this.[141]
[141] T 118, 28-T 118, 5.
HC said that JG volunteered for the RSPCA but denied that she took in cats and kittens when HC was going there. She said she only had two cats.[142]
[142] T 119, 6-12.
In re-examination HC said that sometimes JG would pick up FG and CG and by the time HC got to Blewett Springs they were not there. There were also times when they would not be on the bus but would be at the Blewett Springs home when HC arrived. HC said there were ‘minimal’ occasions when she was told whether she would see FG or CG on the bus. On those occasions she was not told why they were being picked up. She would get a text message about this from JG.[143]
[143] T 119, 20-T 120, 12.
On some occasions HC went to netball training with FG and CG but never went to games. HC was not aware of any other activities FG or CG undertook that meant they were not home after school.[144] HC said JG had a horse at another property, but she did not know where that was, and she never went with JG to visit the horse. She did not know if JG took the other children to visit the horse.[145]
[144] T 120, 14-27.
[145] T 120, 33-T 121, 9.
HC said the tending to the chickens was a job for the children of the house. She could not remember any other tasks around the farm that the children had to do after school.[146]
[146] T 121, 10-25.
Oscar Campbell was a friend of hers and she thought his 21st birthday party was in 2019.[147]
[147] T 121, 32-36.
The complainant’s boyfriend, JHC
JHC was born on 17 June 1999 and was 22 years of age when he gave evidence. He started at Willunga High School in 2014. He met HC within a week of going to Willunga High School. She was in year 9 and he was in year 8.[148]
[148] T 127, 14-T 128, 7.
He and HC were friends for a little while and then started a relationship on Valentine’s Day 2014. He described their relationship as off and on again for about a year or two. The longest they were together was 3 months.[149] Out of school hours they would contact each other every day until 8.00pm via social media, Google Hangouts and Facebook.[150]
[149] T 128, 8-32.
[150] T 128, 33-T 129, 2-19.
JHC caught the bus from his home at Aldinga Beach to Willunga to go to school. JHC went on the bus with HC to go back to her place to spend the night there ‘for a little bit’ and he then learnt that when she was not spending time with him, she was going back to her cousin’s place.[151] He did not know the cousin’s name.
[151] T 129, 25-37.
In 2014, when JHC was in year 8 and in the first half of the year, HC said to him:
‘…that she had to go to her cousin’s place while her mum worked and that, unfortunately, her cousin’s husband would touch her inappropriately, and if she didn’t go there, she would be turned on against her entire family and she did not feel comfortable going there at all.
HER HONOUR
QI missed it. The connection is not great. If she didn’t go there what would happen.
AThe cousin’s husband would turn her entire family against her and basically shame her and make her feel that she’s not worth anything.[152]
[152] T 130, 30-38; T 131, 1-3.
JHC said this conversation took place in front of the bus stop at their school. He said he was not very observant with respect to her demeanour or presentation during this conversation. He said that the conversation was pretty clear in his memory and when HC said she was being touched inappropriately they were ‘pretty much’ her words.[153] She said that it happened ‘the majority of the time that she went there’.[154] His response to her was:
I told her to not go and to come back to my place and that she’ll be safe at my place, and she shouldn’t have to worry about being there and just speak up about it and tell them, the police.[155]
[153] T 132, 11-19.
[154] T 132, 26-28.
[155] T 131, 28-31.
JHC said that during the conversation HC did not mention a message that she had sent him. He did not remember receiving a message from HC with the word ‘help’.[156] A couple of months after the conversation HC told him that she had stopped going to her cousin’s place.[157]
[156] T 132, 32-37.
[157] T 134, 12-14.
The topic of being touched inappropriately by her cousin’s husband did not come up again while they were still in a relationship. The relationship ended at the end of 2014, but it resumed the following year a few times. It finished for good at the start of 2016. For the first year after they separated, he did not contact HC at all and tried to keep away from her. After a year he tried to have a friendship with her.[158]
[158] T 133, 22-T 134, 9.
The only contact JHC had with HC about this matter was two years ago when she told him she had reported the person.[159]
[159] T 134, 18-19.
In cross-examination, JHC agreed he told police on 4 May 2019 that he and HC started a relationship in 2014. He started high school in year 8 and left at the end of year 11.[160]
[160] T 135, 1-18.
JHC had never been to HC’s cousin’s house and had never met her cousin or her cousin’s husband. JHC agreed that HC messaged him on 5 January 2019 saying, ‘Hey, I got a question for you’ and he responded, ‘what’s up’. She then messaged, ‘do you remember what I told you about what my cousin’s husband did to me a few years ago’ and he responded, ‘I have a shocking memory so probably not. All I can think of is something to do with us’.[161] HC then messaged, ‘No, when I would go to my cousin’s house after school’. This jogged his memory and he responded, ‘the first thing that comes to mind is sexual harassment’.[162] JHC said he could not recall HC going into any specifics about the alleged sexual activity.[163]
[161] T 136, 21-31.
[162] T 138, 1-11.
[163] T 139, 16-18.
JHC said he visited HC at her house during their relationship.[164]
[164] T 138, 24-27.
The complainant’s mother, DN.
DN said she separated from HC’s father in 2005 when HC was 6 years of age. Thereafter she had the full-time care of her three children.[165] From February 2010, DN and her children lived at Aldinga Beach. DN was working as a tax accountant five days a week, nine to five, at an office on the east side of the Adelaide CBD.[166]
[165] T 142, 26-31.
[166] T 143, 5-30.
Her sister, SMA, is three years older than her and has three children, JG, D and H. DN was very close with her sister SMA. SMA’s daughter JG married the accused on 13 January 2001, but they were first together when aged 15 or 16.[167]
[167] T 144, 1-T 145, 10.
When DN’s children were young, her side of the family would get together for special occasions such as birthdays, Christmas and Easter. On most occasions that included the accused and JG. [168] In terms of his interaction with the children DN described the accused as:
…just the fun guy to be around. He used to roll around on the floor with the kids, he would give them piggy backs, play games with them on Xbox or Nintendo.[169]
[168] T 146, 11-19.
[169] T 146, 27-30.
His interaction with HC was similar although she said there was not a lot of interaction.[170]
[170] T 146. 31-36.
HC started Willunga High School in 2012 in year 8.[171] DN said that the first photograph of HC in P3 was taken when she was 13 or 14. The second was taken at Wentworth gaol in October 2010 when she was 11. The third was taken in April 2011. The fourth was taken at their Aldinga Home on HC’s first day of high school. The fifth was taken in October 2013 in Tasmania. The sixth was taken when HC was about 15. The final photograph was taken when HC was around 13 or 14 years of age.[172]
[171] T 147, 9-17.
[172] T 148, 23-T 151, 10.
When DN was working full time in 2012, one of her younger children was in childcare on Halifax Street and the other at Sturt Street Community School. She collected them from school and childcare after work. HC would catch the bus to JG’s house at Blewett Springs. This arrangement commenced when HC started school in February 2012 and continued into 2013.[173] DN initiated the arrangement with JG, telling her that she did not want HC home on her own and JG offered for HC to come to their home after school. DN said her relationship with JG was very good at that time. DN said HC’s relationship with JG and the accused was also very good. HC got along very well with the accused’s children.[174]
[173] T 152, 1-33.
[174] T 152, 34-T 153, 35.
HC went to the accused’s home most days, ‘depending if she was sick or had something else on’.[175] The other occasions when HC would go to the house was if there was a family function or if they called over to say hello and have a coffee. HC would occasionally go there in school holidays but generally DN would take that time off work.[176]
[175] T 153, 38; T 154, 1.
[176] T 154, 10-14.
DN understood that JG would be mostly supervised by JG and occasionally by the accused. The accused was working in 2012 and 2013 installing wood heaters and doing window tinting but his hours were not regular.[177]
[177] T 154, 15-29.
DN finished work between 5.00 and 5.15pm and would drive to Blewett Springs to pick up HC, arriving anywhere between 6.00pm and 6.30pm depending on the traffic. It would then take 15 to 20 minutes to get home. When she picked up HC, she would go into the house pretty much all of the time.[178] JG and the children were home most of the time when she arrived. The accused was there 80% of the time. There were occasions when she arrived, and JG was not there but some of the children were there most of the time.[179] She was not sure if there was ever an occasion when none of the children were there.[180] If some of the children were out they might have been at netball practice or at teacher parent meetings.
[178] T 155, 6-T 156, 4.
[179] T 157, 26-38.
[180] T 158, 5-6.
DN would generally stay for half to three quarters of an hour if they stayed for a coffee. HC occasionally stayed for dinner, but it was a rare occasion and would occur if DN had something on in town.[181]
[181] T 158, 8-13.
The arrangement came to an end just after the school holidays in July 2013 because HC was raising concerns about things that were going on between her and FG. JG had sent her a text message saying that FG had come home distraught because HC did not let her sit with her at the back of the bus with the high school students. HC told DN that it was the high school children who did not want the primary school children up the back of the bus. This issue came up a couple of months before the arrangement came to an end and was raised more than once.[182] DN sent JG a message saying they had decided that HC was old enough to stay home on her own. JG responded ‘okay, fine’. HC then spent time with the accused’s family at the usual family events or if they caught up on weekends. There was one Christmas held at Blewett Springs, but she could not say when that was.[183]
[182] T 158, 14-36.
[183] T 159, 10-30.
I formed a generally favourable view of the witnesses JHC and DN and consider that both witnesses were doing their best to give a truthful account of relevant events that took place some years ago. However, there were some aspects of their evidence which I was not satisfied were sufficiently reliable to accept and act upon.
I accept DN’s account of her observations of the accused with the various children of the various family members and his reputation as being the ‘fun guy’ to be around and interacting with the children physically and playing games with them. I accept her evidence that the accused’s interaction with HC was similar but more limited.
DN’s evidence that HC’s relationship with JG, the accused and their children was very good was a very general statement without any detail regarding time or the basis of those observations. Plainly, there was a serious enough issue between HC and FG to warrant DN deciding to terminate the arrangement for HC to attend the accused’s house after school. I prefer DN’s evidence regarding the date the arrangement was terminated. I consider it more likely that DN would recall this accurately, because it was her decision, and she was responsible for determining whether it was now safe for HC to go straight home after school. DN said the arrangement ended just after school holidays in July 2013 but the issue that lead to the termination was one that had been raised a couple of months earlier and on more than one occasion. In addition, JG gave evidence that D5 was posted on Facebook on 4 June 2013. DN agreed in cross-examination that she had seen a Facebook post with the content set out in D5. Although I have reservations regarding the reliability of a number of aspects of JG’s evidence, I accept her evidence that she posted D5 on 4 June 2013 and find that HC was still attending the accused’s home after school at that time.
I reject DN’s evidence that JG was away from the home in 2013 on occasion because she was looking after or feeding her horse at another property. I consider that this evidence is likely to have been the result of an assumption rather than the product of her own knowledge. I prefer the evidence of Lynn Warren regarding the agistment arrangements for JG’s horse Levi, for reasons I will explain when analysing Ms Warren’s evidence.
HC was aware that JG volunteered for the RSPCA but said that JG did not take in cats and kittens during the time that she was going there after school. JG gave evidence that she was foster caring for kittens in 2013 and this involved two hourly feeds. I accept JG’s evidence on this topic, given the unchallenged evidence that JG volunteered for the RSPCA and her obvious interest in animals. I consider it likely that HC’s evidence that there were no foster cats or kittens is the product of her disinterest in the activities of the household at which she stayed after school. I have found that D5 was posted on FB on 4 June 2013. Whilst it is not admissible for testimonial purposes, it is relevant as demonstrating the attitude JG publicly expressed towards HC. This leads me to conclude that JG’s obvious, and at times, vitriolic antipathy towards HC when giving evidence is not simply the product of her anger towards HC for making allegations of sexual abuse against the accused.
JG made no effort to disguise her intense hatred of HC. As mentioned, I am not prepared to find that this hatred of HC has arisen solely as a consequence of the allegations levelled against the accused. D5 demonstrates that the relationship between JG and HC was fraught in 2013. However, my impression of JG’s evidence as a whole is that she was so outraged by the fact that HC had accused her husband of sexual abuse that this has clouded or altered her recollection of the relevant events.
My impression of JG’s evidence is that she has convinced herself that there was simply no opportunity for her husband to have committed these offences and that it was her duty to expose the true character of HC. Much of the evidence JG gave about HC and her behaviour was hearsay, irrelevant or otherwise not put to HC. I have disregarded that evidence.
Although I accept the evidence of JG regarding the number of animals kept at the property, her daily duties as a mother and wife and volunteer for RSPCA, and the agistment arrangements for her horse, I do not accept as plausible her evidence, or the implication in her evidence, that there was no opportunity for the accused to have committed the offences alleged.
I do not consider it necessary to resolve the differences in the accounts of DN and JG of the events of Christmas Day 2016. It is obvious on any view that the events of that day resulted in a rift between the two families. The precise circumstances leading up to the rift are not relevant to the issues in dispute.
Complaint evidence
The evidence of complaint was admitted pursuant to s 34M (3) of the Evidence Act 1929 and I direct myself as to the permissible and impermissible use of this evidence in accordance with s 34M (4).
Initial complaint
The evidence of the initial complaint came from HC and JHC. However, there were significant differences between their accounts of the timing, content and location of the initial complaint. HC said she was with JHC at her home in Aldinga in the school holidays between term 1 and term 2 in 2015. She reminded JHC of the ‘help’ message she sent him which ‘he briefly remembered’ and then told him she had sent this because the accused, her cousin’s husband, had been touching her on the breasts, groin and she believed he had tried to rape her. In contrast, JHC said that this conversation took place when he was in year 8[260] and in the first half of the year and occurred in front of the bus stop at their school. HC told him that she had to go to her cousin’s house while her mum worked and that her cousin’s husband would touch her inappropriately and she did not feel comfortable going there but if she did not go there the whole family would turn against her. HC told him that it would happen the majority of the time she went there. JHC said that HC did not mention sending him a message.
[260] JHC said that he was in year 8 in 2014 and HC was in year 9. This was incorrect. HC was in year 9 in 2013.
A couple of months later HC told him that she had stopped going to her cousin’s place. It is also relevant to note that in cross-examination JHC agreed that on 5 January 2019 he could not initially recall the contents of HC’s complaint when she asked him if he recalled what she had told him about her cousin’s husband had done to her, but when she mentioned going there after school he said, ‘the first thing that comes to mind is sexual harassment’.
The differences between their accounts are significant and impossible to reconcile as being referable to the same occasion. On analysis, JHC’s account of the circumstances, location and timing of the complaint seems plausible. On JHC’s account, HC is about to board a bus to travel to the accused’s house and in this context, it is understandable that she may have complained to JHC about having to go to the accused’s house after school, why she did not want to go there and why she felt she had to. A central feature of HC’s account of the complaint to JHC is that she referred to the ‘help’ message and explained why she sent it. JHC disputed that HC mentioned sending him a message when she complained about the accused’s conduct.
I prefer the evidence of JHC regarding the timing, circumstances and location of the initial complaint. In my view, it demonstrates a degree of consistency of conduct as the complaint appears to be contemporaneous with the alleged offending. However, I note that the complaint described by JHC in evidence was of ‘inappropriate’ touching but in 2019 JHC recalled it as ‘sexual harassment’ and that it occurred the majority of the time that HC went to the accused’s house. This inconsistency undermines the reliability of JHC’s recollection of HC’s actual words. Further, this is significantly different from HC’s evidence that the inappropriate touching occurred on four occasions only over a period of 3 months and when she was attending the house 5 days a week. I take into account these matters in my assessment of the complainant’s credibility.
Elaboration of initial complaint
I am satisfied that the evidence of DN regarding the conversation with HC on Boxing Day 2018 meets the definition of an elaboration of the initial complaint. I am not satisfied that the evidence of HC regarding this conversation satisfies the definition of an elaboration of an initial complaint. In making this assessment, I am mindful of the requirement to ensure that only one complaint, whether elaborated upon or not, is admitted.[261]
[261] R v England (2013) 116 SASR 589 at 590 per Stanley J and Maiolo (No 3) per Peek J at [80] to [82].
In HC’s account of the conversation with DN there was no elaboration of the alleged offending as articulated in her complaint to JHC. HC said she told her mother that ‘he tried to do certain stuff, but I wouldn’t let him get as far as what he could have’ and did not tell her mother about any of the occasions about which she gave evidence or giver her any further detail.
However, I consider that, in any event, what she did say was not, in my view referable to any of the alleged offences. In R v S, DD (2010) 109 SASR 46, Duggan J observed:
The complaint evidence is not capable of establishing consistency in relation to the offence charged in a particular count unless it can be seen to be referable to that offence. That is not to say that a complaint must necessarily refer to the details of the occasion charged in the count under consideration. However, where a general complaint of sexual abuse is led in evidence for this purpose, it must be established that what was said encompasses the conduct alleged in that count.[262]
[262] (2010) 109 SASR 46 at [4] (Duggan J, Anderson J agreeing); see also at [98]-[99], [107]-[111] (Peek J).
I formed the view that DN was giving a truthful and reliable account of the conversation with HC and accept her evidence regarding what was said by HC. This evidence is relevant as establishing how the allegations came to light and also as some evidence of consistency in respect of counts 1, 2 and 4 because HC complained that the accused had touched her inappropriately. However, DN’s evidence of the elaboration of the complaint also reveals an inconsistency between HC’s description of what occurred and her evidence at trial regarding count 3. HC told DN that the accused had ‘attempted’ to touch her inappropriately in front of the two young boys. The inconsistency is twofold – the reference to an attempt and that it occurred in front of the two boys. This inconsistency is relevant to my assessment of the consistency of the complainant’s conduct and her credibility.
Absence of context and surrounding detail
HC was an articulate witness but presented with an unemotional and flat affect. I found her evidence regarding the occasions upon which she alleged the accused had touched her sexually to be largely devoid of surrounding detail and, at times, internally inconsistent or inconsistent with earlier statements she made to the police.
The absence of detail regarding the circumstances surrounding each alleged offence makes more difficult the exercise of evaluating and assessing HC’s evidence.
Forensic disadvantage
The alleged offending occurred over 8 years ago. In my view, the state of the complainant’s evidence and the delay has resulted in the accused suffering a significant forensic disadvantage. The four occasions of alleged offending are said to have occurred within a 3-month period in 2013, each within a few weeks of each other and each in a time window between approximately 3.40pm and 6.00pm – 6.30pm on a day between Monday and Friday. Although this time period is relatively short, and the window of opportunity narrow, the evidence of HC does not permit any further narrowing or identification of when it was that each occasion of alleged offending occurred. Accordingly, it is difficult, if not impossible, for the accused to prove that he was not present at the house on any or all of the occasions of alleged offending, or to demonstrate that there were other persons in the area of the house in which the alleged offending occurred.
I acknowledge that JG gave evidence, which, if accepted, suggested that the accused had little if any opportunity to offend against HC in the way she described. However, the imprecision and lack of detail in HC’s evidence of each occasion of offending make it difficult to assess the credibility of JG’s blanket assertions that there was no real opportunity for the accused to have offended in the way described. Further, an important part of HC’s narrative regarding count 2 was the sending of the Facebook message ‘help’ to her boyfriend JHC. The police did not interrogate HC or JHC’s devices to determine whether the messages had been deleted as asserted by HC and there is no evidence that the police investigated the possibility of retrieving the deleted Facebook messages.
I bear in mind the forensic disadvantage I have identified when evaluating the complainant’s evidence.
Implausibility and opportunity
The conduct the subject of count one came out of the blue and without any grooming behaviour. Whilst there is evidence that the accused would often rough house with his own children and children related to his family, there is no evidence that the accused engaged in conduct with HC to acclimatise or condition her to inappropriate touching. Indeed, DN’s evidence, which I accept, was that there was less interaction between the accused and HC when compared with the other children in the extended family.
There is no escalation of behaviour that might have emboldened the accused to act in this way and to be confident that HC would not complain. Further, although HC asserts that on the occasions of counts 1, 2 and 4 no other family members were home, there is no evidence from which I could infer that they were all absent from the home or the property. It is of course possible that these acts could have occurred if the accused was at home alone with HC. It is also possible that the accused determined to engage in brazen behaviour with a high risk of detection. However, in the absence of evidence contextualising the allegations, such as where the other family members were, and for how long the accused was present in the house at the same time as HC, it is difficult to assess the plausibility of the alleged act occurring or whether the defendant had sufficient opportunity to commit such an act. An example of this is HC’s evidence that she did not pay attention to what time the accused arrived home at any stage, but that it would vary.
HC said she spent a week at the accused’s house during school holidays when she was not with her father for the school holidays. HC said that the sexual acts the subject of the charges occurred between February and May 2013, two weeks of which were school holidays. However, HC said all sexual acts occurred after school. HC gave no detail whatsoever regarding her activities at the accused’s house during school holidays, including the times, if any, she was alone with the accused. The school holidays represented the longest window of opportunity for the accused to offend but, as there was no context or detail provided regarding the activities of all members of the household, it is difficult to determine whether the absence of any offending in that period was the result of a lack of opportunity. Conversely, it is not possible to conclude that the opportunity to offend existed or determine the extent of any such opportunity, a matter that might refute the assertion that the accused was sexually attracted to HC and had a tendency to act upon that sexual attraction when the opportunity arose.
Inconsistencies in evidence
I now summarise the features of the complainant’s account of each alleged offence which, in addition to the matters to which I have already referred, have led me to harbour reservations regarding HC’s credibility and reliability.
In relation to count 1, when first describing what occurred, HC said that the accused reached ‘under my top’ and felt her left breast. Later she said he reached through the neck opening of her shirt. HC could not recall what, if anything the accused said when he grabbed her iPod, what he had been doing immediately beforehand, what she was wearing, whether the accused said anything to her when he touched her breast, how the incident came to an end or whether either of them said anything afterwards. She did not know where the children or JG were or what time they returned.
In relation to count 2, HC could not recall anything about the circumstances leading up to the accused grabbing her breast. She did not know what the accused was doing immediately beforehand. She could not recall whether he touched her under or over her clothing. She could not recall what occurred after the accused grabbed her breast, but she said neither of them said anything to each other. She initially said that she could not recall what happened after the accused grabbed her breast but then said that she moved away from the accused and onto the couch next to the one upon which she had been sitting. She said JG and the children were not there and did not come home and no one was cooking dinner.
HC’s evidence regarding count 3 was that the accused had used one of her legs to take her off balance and caught her as she was beginning to fall and then dropped her onto the floor and then held her face down on the carpet and sat astride her. She later said that he grabbed her by the top of her arm and lowered her onto the ground. She initially said that as he did this his right hand reached in from her right side under her tracksuit pants and underwear. She said the accused had his legs on either side of her with the majority of his weight on her and she was unable to move. However, shortly afterwards she said that he was ‘at first’ trying to grab the iPod from her and once he had taken it from her and thrown it across the floor, he began reaching through her clothing. HC did not know what time her mother collected her that night or whether JG came home before that occurred.
I found implausible HC’s evidence that, in this position, she was able to type and send the message ‘help’ to her boyfriend whilst holding the iPod in her left hand with her arm to the side outstretched in front of her. In examination in chief, she said that she did not know whether the message in fact sent but in cross-examination said that she spoke with her boyfriend on a later occasion in 2015 and he confirmed that he had received the message ‘help’. In evidence she said she called WG into the room to help her but she did not know where JG was and she was sure that he was not there. When WG came into the room she repeated his name. She did not ask him to do anything. In a statement to police on 5 January 2019, she told police that WG and JG were in the room, and she asked them to help get their father off her, but they did not help her. She said that was her best recollection at the time. When asked why she gave evidence that she did not ask WG to do anything she said ‘nothing that I could remember saying in the moment’.
HC also agreed that she has never told the police that the accused touched her clitoris when he put his hand down her underwear despite providing another statement to police on 23 April 2019 in which she said, ‘his fingers were definitely on my skin and inside and between the two sides of my labia’. I did not find convincing HC’s explanation that she had gone over the incident more clearly and in finer detail since giving those statements.
In relation to count 4, HC could not recall the ‘lead-up’ to the accused picking her up, putting her over his shoulder and throwing her onto his bed. She could not recall how he picked up her from the couch or where his arms or hands were. She gave a detailed account of pulling her right leg up enough to be able to kick the accused in his groin with her knee causing him to stop and reach for his groin. This gave her the opportunity to climb off the bed and run from the room. However, in her statement to police she said that she could not recall how the incident stopped and that she was fighting really hard with him, and he eventually backed off. When asked why she did not tell the police she had kneed him in the groin, she said that when she made her statement, she had not fully recollected the ‘whole situation’.
I found this explanation for this inconsistency unconvincing. On the complainant’s account this was an occasion when she believed the accused was trying to rape her and she was struggling to escape. Her actions in kneeing the accused in the groin were what enabled her to end what was, on her account, the most distressing and frightening of the incidents involving the accused. I consider it unlikely that she would have forgotten how this incident ended when giving her statement to police.
In her first statement to police, HC said that she stopped going to the accused’s house in August 2013. In evidence, she said it was May 2013. Her explanation for the inconsistency was that her memory of the events of 2013 was ‘minimal’. This answer was unusual and at odds with her asserted recollection of events in 2013.
HC said in evidence that on 3 out of 5 days, JG would pick up FG and CG and HC would travel on her own to the accused’s house. In her first statement to police on 5 January 2019, HC said that FG and CG were on the bus with her most of the time. When asked to explain this inconsistency, she gave an answer that was inconsistent with her earlier evidence.
Conflicting testimony
In addition to these matters, there were aspects of HC’s evidence that conflicted with other evidence I found to be credible and reliable.
In re-examination, when asked if JG had any other activities or interests that meant she was away from the family home when HC was there after school, HC said she had a horse that lived away from the family home. She did not know where the horse was kept or how often JG went to see the horse. As a consequence of this evidence, the accused called Ms Warren to give evidence. Ms Warren struck me as an honest and thoughtful witness. I have no hesitation in accepting her evidence regarding the agistment of JG’s horse, Levi, at her property for the period she described and on the basis that JG would notify Ms Warren if she wanted to visit Levi. I also accept her evidence that JG rarely visited Levi but when she did it was on a weekend, and she brought her husband and children with her. I do not accept the submission of the prosecutor that it is open for me to find that JG visited Levi without telling Ms Warren and let herself in through the unlocked gates. There would be no reason for JG to attend without notifying Ms Warren in advance.
I found Michaela Robinson to be an impressive witness. There was no evidentiary basis upon which I could infer that she had any allegiance towards the accused or his wife that might give rise to issues of bias and nor was it suggested to her in cross-examination that this was the case. Ms Robinson’s account of how the conversation with HC started and developed had the ring of truth to it. Ms Robinson asserted a clear recollection of the conversation, and she did not waver in cross-examination. It was never put to Ms Robinson that she had fabricated the conversation or was giving false evidence to assist the accused or JG, rather it was suggested to her that may have been mistaken about the words HC used. Ms Robinson rejected the possibility that she had misheard and said her recollection of the conversation had been consistent. In my view, it was telling that HC’s initial response to the suggestion that she had told Ms Robinson that she was going to get back at JG and the accused was to ask, ‘is there any evidence of what exactly I have said?’.
I accept the evidence of Ms Robinson regarding this conversation and reject the evidence of HC and find that the conversation occurred as described by Ms Robinson. The fact that HC said in an intoxicated state that she was going to use the accused to get back at her family and drag his name through the mud all out of nothing does not of itself prove that the allegations made by HC are false or that she has given false evidence. However, in my view the making of such a statement is inconsistent with the behaviour of a person who is, or believes she is, a victim of the type of serious sexual offences alleged by HC. On one view, the words spoken imply a motive to make a false complaint. There is evidence of a serious division between the accused’s family and the complainant’s family following the events of Christmas Day 2016. There is evidence of public expressions of dislike and disapproval of HC by JG in 2013. However, the evidence led in this case is not such that I am prepared to make a firm finding that HC had a motive to lie and for that reason fabricated the allegations.
Conclusion
The evidence of the conversation with Ms Robinson undermines HC’s credibility and reliability to such an extent that, in combination with the proved prior inconsistent statements, lack of surrounding detail and concomitant forensic disadvantage to the accused I am left with a reasonable doubt regarding the guilt of the accused with respect to all charges.
Verdicts.
I find the accused not guilty of all four charges.
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