R v H, JH
[2022] SADC 11
•3 February 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, JH
Criminal Trial by Judge Alone
[2022] SADC 11
Judgment of his Honour Judge Stretton
3 February 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with maintaining an unlawful sexual relationship with a child - the accused is the de-facto partner of the complainant's eldest sister - the complainant gave evidence by way of prescribed interviews and a pre-trial special hearing. The accused did not give evidence. The complainant was an honest and reliable witness whose evidence should be accepted beyond reasonable doubt.
It is proven that on 9-10 occasions the accused digitally touched the complainant's vagina in circumstances amounting to an unlawful act for the purposes of the charged offence. The offence is proven beyond reasonable doubt.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) 12AB, referred to.
R v Mann [2020] SASCFC 69; BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR; R v S, GJ [2012] SADC 150, considered.
R v H, JH
[2022] SADC 11
The accused JHH is charged with maintaining an unlawful sexual relationship with the complainant. The accused is the de-facto partner of the complainant’s eldest sister.
The alleged offence
The accused is charged on Information dated 27 November 2020 that between the 1st day of January 2019 and the 15th day of January 2020 at Elizabeth Vale and Salisbury East, he maintained an unlawful sexual relationship with (the named complainant), a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely touching her vagina on more than one occasion.
Elements of the offence
The elements of the offence of maintaining an unlawful sexual relationship with a child are:
·That the accused knowingly maintained a relationship with the complainant. While there must be more to the relationship than the alleged sexual acts, evidence of unlawful sexual acts can be considered when deciding whether a relationship has been proved. The existence of a relationship is a question of fact.[1] Familial and de-facto relationships can constitute relationships for the purpose of the offence.[2]
·That during that relationship, the accused engaged in two or more unlawful sexual acts with the complainant. An unlawful sexual act is an act that constitutes[3] a sexual offence. Sexual offence is defined to include indecent assault. An indecent assault is the intentional and unlawful application of force by an accused to a complainant without the consent of the complainant, the accused knowing or being reckless as to the absence of consent, committed in circumstances of indecency with a sexual connotation. Where the complainant is a child however, consent is irrelevant as a child cannot legally consent to an indecent assault.
·That the complainant was a child during the period of the relationship. For this purpose, a child is a person under the age of 17 or, if the accused was a person in a position of authority in relation to the complainant during the alleged relationship, a person under the age of 18.[4]
·That the accused was an adult during the period of the relationship.
[1] R v Mann [2020] SASCFC 69 at [21].
[2] R v Mann [2020] SASCFC 69 at [26].
[3] Or would constitute, if adequate particulars were provided.
[4] Criminal Law Consolidation Act 1935 (SA) ss 50(12), (13).
The unlawful sexual acts alleged in this matter are acts of digital touching of the complainant’s vagina, directly, and indirectly through her clothing, each constituting the offence of indecent assault.
Each of the elements of the offence must be proven beyond reasonable doubt by the prosecution.
The issues at trial
It was agreed that at all relevant times[5] the complainant was a child[6] and the accused was an adult.[7] The complainant was approximately eight and the accused 27 years of age. It was not disputed that the alleged vaginal touching, if proven, would constitute an indecent assault and hence an unlawful sexual act.
[5] The charged period.
[6] Agreed fact 2.
[7] Agreed fact 1.
The primary issue at trial was whether the alleged vaginal touching happened at all.
Counsel for the accused also submitted in his final address that the prosecution had not proven that there was a ‘relationship’ between the accused and the complainant, sufficient for the purposes of the charged offence.
The course of trial
The accused pled not guilty and elected for trial by judge alone.
It was alleged that the offending occurred between the 1st of January 2019 and 15 January 2020, 15 January 2020 being the day the complainant made an initial complaint to her sister. She was taken by her stepfather to the Elizabeth police station on 22 January 2020.
The prosecution called evidence from the complainant by way of two prescribed interviews conducted by police, the first taken on 22 January 2020, and a second taken on 9 April 2020, and by way of unsworn evidence given by the complainant before his Honour Judge Kimber at a pre-trial special hearing on 12 July 2021. That hearing was convened pursuant to section 12AB of the Evidence Act 1929.[8] The audio-visual records of those events were tendered and played. Diagrams and drawings made by the complainant in the course of her evidence were tendered.
[8] Section 12AB provides, among other things, that where a young child is a witness in the trial of a sexual offence, the court should order the witness give evidence at a pre-trial special hearing. The legislation sets out a number of requirements that must be satisfied in the interests of justice. There was no submission that the pre-trial special hearing was formally deficient in any way.
The prosecution called the complainant’s mother and stepfather, as to the various familial connections and when the periods of contact between the families occurred. Complaint evidence was called from the complainant’s second oldest sister. The prosecution also called the complainant’s oldest sister, the accused’s partner, as to contact between the families over the relevant period.
Evidence was called that the accused was interviewed by police on 1 February 2020. The accused admitted he had contact with the complainant through the familial connections over the period alleged, but denied the allegations put to him.
The defence did not call evidence.[9]
[9] T251.
General directions
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[10] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[11]
[10] BCM v The Queen [2013] HCA 48; Douglass v The Queen [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[11] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.
To be clear however, the court has applied all the principles applicable to a criminal trial of a charge of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
It is fundamental however, that the accused has, and always retains, the presumption of innocence. The prosecution bears the onus of proof and must prove each element of the charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence.
Evidence was led of the complainant’s initial complaint to her older sister. Complaint evidence is admitted for a specific and limited purpose. Importantly, it is not admissible to demonstrate the truth of what was reported. It is led for the strictly limited purpose of demonstrating how the allegations came to light and to allow the court to consider the degree of consistency (or otherwise) of conduct on the part of complainant, both as to the fact and circumstances of the making of the complaint, and the content of the complaint. The evidence will be dealt with in that strictly limited way.
The evidence given by the complainant was unsworn. Neither statement taken by police was given on oath, nor was the evidence given before his Honour Judge Kimber on oath. The court has regard to the fact that the statements were not on oath, nor was the evidence on oath. The court has carefully scrutinised the statements and evidence in accordance with the legal principles applicable to their assessment, and bearing in mind that they were not given on oath and not subject to the sanction of the oath.
The prosecution case rests primarily on the statements and evidence of the complainant, a young child both at the time of the alleged offending and at the time she gave her statements and unsworn evidence. Accordingly, the court has scrutinised, reviewed and considered that evidence with particular care.
Transcripts of the complainant’s statements, and of a recorded record of interview with the accused were tendered. The court has had regard to the primary evidence, and has used the transcripts as aides memoire only.
It was not submitted that there was any extended delay that might give rise to any significant forensic disadvantage in this matter.[12]
[12] Defence address, T300.
In this matter the accused elected not to give evidence. That was his legal right, and accordingly there can be no adverse inference whatsoever where an accused exercises that important legal right possessed by every member of the community. It remains at all times, and in every respect, the prosecution’s obligation to prove each and every element of the charged offence, beyond reasonable doubt.
The evidence
In the following summary of the evidence, the accused’s partner who is the complainant’s eldest sister will be alternately described in those terms or as the complainant’s mother’s eldest/oldest daughter. The second eldest sister/daughter, through whom complaint evidence was called, will be described as the complainant’s ‘elder sister’, or as the complainant’s mother’s elder/older daughter.
The complainant’s two prescribed interviews were tendered, as was her pre-trial unsworn evidence. I will not set it all out but have carefully considered it all.
In her first prescribed interview given on 22 January 2020, the complainant was initially asked a series of questions whereby the complainant said she knew the difference between the truth and a lie and said she would tell the truth. There was then an extended period of small talk from the interviewing police officer, apparently designed to establish rapport and put the complainant at ease.
The complainant was then asked to tell the officer why she was there. The complainant replied it was because her oldest sister’s partner[13] ‘puts his fingers down below’, and sometimes ‘moves his fingers around’. She added ‘… sometimes when he does it, it sometimes hurts’. The complainant then became upset and asked for a break. After a break the officer asked if it had happened once or more than once, and she replied, ‘more than once’. She said that the first time it happened was ‘like sometime last year’. She said, ‘Sometimes they come over and like when nobody is in the room, he does it like when I’m sitting next to him or when somebody’s … or like I said just then so other people won’t find me … other room and sometimes goes into the room where I am and sometimes does it’. On this and a number of subsequent occasions when referring to ‘down below’ the complainant would point or indicate between her legs.
[13] Identified as the accused in specific questioning about the family, and generally, throughout the prescribed interviews.
The complainant was asked whether she could recall any certain incidents.[14] She replied that he had done it in her bedroom when the accused had come to her house, and that he had done it in the lounge room when nobody else was there, ‘same as my bedroom’, and once in the kitchen/dining room. She said that he had also done it at her oldest sister’s place. She said that every place he did it, it felt embarrassing and uncomfortable.
[14] Aide memoire 22 January 2020, line 255.
The complainant was asked to describe what happened when it had occurred in her bedroom. The complainant said that she was hanging her clothes up in her cupboard in her room, when the accused said, ‘stop for a minute, I want to do it’. She said she stayed silent, and he went ahead and did it. She was asked what he did, and she replied that he ‘reached down to behind my underwear and touched my private part’. She said that he touched the middle of it with his fingers, and that it did not feel right. She said, ‘I feel like saying to him ‘stop doing it’ but I just don’t have that confidence’.[15]
[15] Aide memoire 22 January 2020, line 332.
The complainant said that sometimes the accused would touch her ‘on the outside,’ and sometimes ‘on the inside.’ When asked how many times he touched her on the inside, she replied ‘too many’. The complainant said that the accused had touched her about 9-10 times; ‘I think it’s about nine to ten … wait, about how many times he visits … whenever they visit’. The complainant added ‘but he never used to do that though, and I’m thinking in my head like ‘why would he do that if he hasn’t done it before … so why do it?’. She was asked when he started doing it and she replied, ‘ages ago’, and when asked about the 9-10 times, added that it could have been more or less than that, but it was just about that number.
In response to further questioning, she said it had happened more than once in her bedroom, and the last time it happened in her bedroom was the year before (i.e., 2019). She said it happened twice in her bedroom, both times in 2019.[16] The complainant was asked about the other time it happened in her bedroom and she replied that on that occasion she was cleaning out her room,[17] and that second time he just put his fingers ‘on the outside’. The complainant said that on that occasion he came into her room and asked her if he could do it, but once again she stayed silent like she always did, and he did it.
[16] Aide memoire 22 January 2020, line 398.
[17] Aide memoire 22 January 2020, line 446.
She said, ‘I felt like saying to him ‘stop doing it; I’m tired of you doing it to me’. But I just, like I said before, I don’t have no confidence you know, like cos not everybody has the confidence’.[18]
[18] Aide memoire 22 January 2020, line 588.
The complainant said it also happened four to five times in the loungeroom.[19] She said that he would do it when everybody was outside, and when anybody came into the room he would stop.[20]
[19] Aide memoire 22 January 2020, line 402.
[20] Aide memoire 22 January 2020, line 618.
She was asked to describe a particular occasion. The complainant said that she was in the kitchen and that she and the accused were the only two in the kitchen/dining room. She said she was standing near the sink and the accused came over to her, and asked her if he could do it, she stayed silent, and he did it ‘on the outside’.[21]
[21] Aide memoire 22 January 2020, line 642.
The complainant was asked how long it had been going on and she replied she could not remember when it started but that it had been going on for a few months, and added ‘too long, too many times he’s done it’.[22]
[22] Aide memoire 22 January 2020, line 714.
The complainant was asked to describe the times when he had done it in the lounge room. She replied that every time, she was sitting in the lounge room with the accused sitting next to her. She said it happened there four to five times, with two of those times ‘on the inside’.[23] She said she couldn’t really remember any other specific incidents associated with the occasions it happened in the lounge room.[24]
[23] Aide memoire 22 January 2020, line 733.
[24] Aide memoire 22 January 2020, line 756.
The complainant said that she first disclosed the events to her elder sister ‘about one to two weeks ago’, and then to her stepfather on the Monday evening two nights prior to the police interview.[25] Finally, the complainant was asked if there was anything else she would like to tell the officer. The complainant replied ‘Actually yes. He said, ‘to keep it, it’s our secret’ but like I just at that moment when I told you and I told my other sister, I just couldn’t handle it anymore and I had to tell my sister’.[26]
[25] Aide memoire 22 January 2020, lines 805-818.
[26] Aide memoire 22 January 2020, line 864.
Two months later, on 9 April 2020, the complainant undertook a second prescribed interview. After the complainant was again taken through a series of formal questions about understanding the difference between the truth and a lie, and promising to tell the truth, she was again questioned in detail about the events.
The complainant said that whilst she could not remember which was the last incident between her and the accused, nor when the first incident happened, that the first time it happened was about six months ago, and was an occasion when she was in her bedroom hanging up clothes. She said that it was on an occasion when the accused and his family had come to visit. It was late in the afternoon around sunset, and it was almost dark. She said that she was in her bedroom hanging up her clothes. Others were out the front of the house. It occurred after the accused came into her bedroom and closed the door, approached her, and said, ‘can I do something?’ She said ‘He wiggled his fingers down my front private part’ for a couple of seconds but stopped when the others came back inside.[27]
[27] Aide memoire 9 April 2020, lines 65-102, 899-952.
The complainant was then asked about what happened after that time, and she said that there was an occasion in the lounge room at their house when everyone else was outside, out the back. She said that it wasn’t a special occasion; it was just them coming over for dinner and to catch up. It was the evening, and it was dark outside. The accused and his two-year-old son were present, and the others were outside talking, when it occurred on that occasion. She was sitting next to the accused. The accused asked her if ‘he was allowed to wiggle his fingers’, to which she kept silent. It happened then.[28]
[28] Aide memoire 9 April 2020, lines 105-140, 953-989.
The complainant was asked when the next incident happened. She said that it occurred in the kitchen of their house, on an occasion when, like the time before, the others were outside. She said it was around sunset, with the sky an orangey colour. She was standing in the kitchen. She was wearing a t-shirt. She drew a diagram of her and the accused standing in the kitchen. She said the accused walked over to her and asked, ‘can I do the thing’, to which she did not reply. The accused then did it again, putting his finger ‘down there’, ‘down below’ on the front of her private parts. He wiggled his finger around, ‘on the outside’ of the front of her private parts, for a bit shorter than a minute. Then people came back inside through the front door, and he stopped and returned to where he had been.[29]
[29] Aide memoire 9 April 2020, lines 147-438.
The complainant was then asked whether she could recall any of the other incidents. She described another incident in the lounge room. She said it was a sunny day, at around twelve noon or one o’clock. The accused and others had come over for a catch-up. She said her mum and dad and her little sister, her oldest sister,[30] and their son all went outside. She was initially sitting on a different couch to the accused. The accused then asked her ‘can I put my finger below’, to which she did not reply. The accused was then sitting on the lounge next to the accused and put his finger down the front part of her private part and wiggled it. She said the event lasted less than a minute, as people started coming back inside at which the accused immediately stopped what he was doing.[31]
[30] The accused’s partner.
[31] Aide memoire 9 April 2020, lines 446-584, 989-1024.
The complainant repeated that while the accused had never used to do this to her, he did it multiple times, indeed every time they came over up until the time came that she told her older sister and then her mum and dad.[32]
[32] Aide memoire 9 April 2020, lines 626-628.
The complainant was asked whether there were any other specific times she could remember, and she described an occasion when she was playing in her bedroom, the accused knocked on her open door, came in and asked if he could put his finger below her front part, to which she said she, as always, kept silent. The accused then closed the door and put his finger ‘down below’ and started wiggling it about ‘on the outside’. The others were outside. After less than a minute she heard a door open and close, indicating people were coming back inside. The accused stopped what he was doing straight away.[33]
[33] Aide memoire 9 April 2020, lines 639-736.
The complainant was then asked whether it only ever happened at her house. She replied that it happened once at the accused’s house. She said that she was at their house for a sleepover. She said it was a few months ago. She was there alone, just with the accused, his partner (her older sister) and their two year old son. At some point she was alone in a room with the accused. She could not remember which room it was. The accused asked her if he could ‘put his fingers below’, to which she again kept silent. The complainant said the accused then put his fingers below and wiggled them on the outside of her private part. When asked to describe where he put his fingers, she replied ‘like just before that type of curve part … Like type of bracket things’, explaining that she used that part of her for going to the toilet. She drew a diagram. She said she couldn’t remember any more times.[34]
[34] Aide memoire 9 April 2020, lines 743-893.
The complainant was asked to draw a diagram of where the accused ‘wiggled’, and she did so. The tendered diagram appears to depict a vaginal area.[35]
[35] Aide memoire 9 April 2020, lines 1039-1050, exhibit P8.
The complainant was again asked who she told about these events. She said she first told her older sister, then her stepfather, then her oldest sister (the accused’s partner) and then her mother. She said she told her older sister what happened, and that she did not know why the accused had started doing it. The complainant said that her stepfather asked her if she liked the accused, to which she shook her head. He then asked her why, and she said; ‘and then I told the reason why I didn’t like him which is what I said to (her older sister) what he did to me. And then he said, ‘tell your mum’ on the same day that I like told (him)’.[36]
[36] Aide memoire 9 April 2020, lines 1101-1130.
The complainant gave evidence at a pre-trial special hearing on 12 July 2021. An edited version of that evidence was tendered by agreement between the parties.
The complainant gave brief evidence-in-chief whereby she described the accused and the other family members. She repeated that the first person she told about the events in question was her older sister. She said she couldn’t remember her sister’s response. She said that her mum and stepfather had told her to tell the police everything that happened She said her mum told her to be honest, and her stepfather told her ‘don’t stress’.
The complainant was then cross-examined. She agreed that there was a sleepover at the accused’s house when their young son and the accused’s daughter were also present. She maintained that she was alone with the accused in the lounge room once during that sleepover. She agreed that during a sleepover, a friend of the accused called Tyson came over. She agreed that she saw the accused and Tyson go out through the laundry door on one occasion. She said that her older sister was not present. In further cross-examination she agreed that the accused and his family would come and visit to her house, and sometimes their younger son would be with them. She didn’t agree that it would mostly just be her sister and their son, or that the accused would come and pick them up after work. She agreed that there was only one occasion when the accused was at her house for dinner. She agreed that there was only one occasion with the accused when she was in her room hanging up clothes. She repeated that the accused had been in her bedroom twice, the other time when she was cleaning her bedroom. She repeated her complaint evidence. She said she had not discussed with either her parents or her older sister whether anything similar had happened between the accused and her older sister. She said that no-one had told her to make up an untrue story for the police, and no-one had offered her any gifts or presents if she would make up something that wasn’t true about the accused.
The complainant’s mother then gave evidence. She described the family and her five female children, including the complainant. She gave evidence that she has been in a relationship with the complainant’s stepfather for four years and they have two young children together. She described the complainant as a bubbly, caring child who loved reading and family outings, and who got along with all her sisters. She, the complainant’s stepfather and the four younger children lived together at a given address in Elizabeth Vale. The complainant’s stepfather would divide his time between their house and his grandparents, usually staying with the grandparents during the week. Her oldest daughter, the accused’s partner, now 24, moved out of home at the age of 16. Photos and diagrams of the house were tendered. She said that they would sometimes go out the back of the house, but would not eat or use the entertainment area there.[37]
[37] T43-50.
The complainant’s mother gave evidence that her oldest daughter and the accused had been together since high school, had lived together for several years and had two children together. She gave evidence that in 2019 her eldest daughter and the accused would come over to visit, sometimes weekly. Sometimes the accused wouldn’t come. She said that there was an occasion in October-November 2019 when they came over for dinner, staying for a couple of hours. She recalled the accused and the complainant interacting while watching TV or interacting with the family. She said that while that occasion stood out, there were other occasions as well.[38]
[38] T52.
The complainant’s mother gave evidence that there were also occasions during the school holidays when the complainant would visit her eldest daughter and the accused at their home in Salisbury East. The complainant was also friendly with the accused’s daughter from a previous relationship. She could recall at least one occasion in 2019 when the complainant slept the night there, although there was a three-month period around August 2019 when there was no contact with the accused and her eldest daughter.[39]
[39] T54.
The complainant’s mother said that there were occasions when she saw the accused go into the complainant’s room, and she could remember that happening when the accused was at their house for a family dinner in November 2019.[40]
[40] T55.
The complainant’s mother was extensively cross-examined. I will not set it out in detail nor mention everything raised, but have carefully considered it all.
The complainant’s mother was cross-examined about the rear entertainment area at her house. She said it hadn’t been recently used, and she couldn’t remember anyone being out the back socialising on the occasion she had described when the accused was over for dinner, saying ‘it was more so inside, that I remember’. Nor did the family ‘socialise together’ in the front yard.[41]
[41] T58.
The complainant’s mother was cross-examined about where her older daughter (the complaint witness) was living in 2019 and she agreed that her older daughter was living with friends for that year.[42]
[42] T60.
The complainant’s mother was cross-examined about her relationship with her oldest daughter, the accused’s partner. She said that she was not aware of any problems in her relationship with her, but there was a period from 2017 to November 2018 when she hadn’t seen them, because she had been advised not to see them by police in light of allegations made by her elder daughter against the accused. Whilst she had not been told the actual allegations, police had said it was that the accused had done something sexual to her elder daughter. The police had also told her not to discuss the incident with her elder daughter.[43] She resumed contact with her eldest daughter and the accused after she ran into them at a shopping centre in about November 2018. Contact then resumed, perhaps weekly, but not always with the accused in attendance. She did so essentially because the children wanted to see each other.[44]
[43] T66.
[44] T69.
The complainant’s mother was cross-examined about having children. She agreed that while she had only had girls so far, she had always wanted to have a boy. She denied the suggestion by counsel that she was jealous that her eldest daughter had had a boy, she denied that she had ever told her eldest daughter that, or that she had ever reported her eldest daughter or the accused to Families SA.[45]
[45] T72.
The complainant’s mother was cross-examined about whether she had told her eldest daughter that she had been sexually abused by her biological father, and she responded that the police had informed her, the complainant’s mother, about that. She said that so far as she was aware, her eldest daughter may have resumed contact with that man in 2017, although she wasn’t sure.[46]
[46] T74.
The complainant’s mother was cross-examined about resuming contact with the accused. She agreed that she did have concerns about him visiting in light of the earlier allegations. She agreed that she wouldn’t have wanted him alone with the children. She said that as a result she kept an eye on the family.[47] She said that he was, she thought, alone with the complainant in 2019, on the occasions when there were family dinners, when she thought he was in a different room than her, for example when she the complainant’s mother was in the lounge room and she thought the accused was in the kitchen or bedroom. She did not actually see the complainant in the bedroom with him, but that she thought her eldest daughter (the accused’s partner) was watching over them.[48] It was put to her that she made a police statement on 9 April 2020 saying that there were times on an occasion when the accused and her eldest daughter had come over for dinner in October or November 2019 ‘that I recall (the accused) and (the complainant) was alone in (the complainant’s) bedroom. I trusted (the accused) so I didn’t think there was any issue at the time’. She agreed she had not actually seen the accused go into the bedroom. Then she said she did see the accused go into the bedroom, saying that she saw him leave the lounge room, go in the direction of the complainant’s room, and she thought she saw him go into the complainant’s bedroom. She agreed that from where she was in the loungeroom she could not have seen the accused actually entering the complainant’s bedroom.[49] She said in relation to her police statement, she could not now recall which night she was talking about, although it was an occasion when they had come over for dinner in October or November 2019.[50] She said that she did see the accused with the complainant alone in the bedroom, when she, the complainant’s mother, was in between the rooms, at a point when she thought they, together with her eldest daughter, were trying to find an outfit for the complainant. She recalled talking to them about it.[51]
[47] T77.
[48] T78.
[49] T86.
[50] T88-9.
[51] T90.
She said she thought she could trust the accused and didn’t think anything would happen so long as her eldest daughter was there.[52] She explained her statement by saying words that seemed to be to the effect that she thought the complainant was with someone, but sometimes she wasn’t.[53] Her answers on this topic were not, at the end of the day, clear.
[52] T92.
[53] T93, and generally.
The complainant’s mother was cross-examined about how the allegations came to light. She gave evidence that the first thing that occurred was that her elder daughter came into the living room and told her and the complainant’s stepfather that something had happened between the accused and the complainant, causing her to think that he had done something to the complainant. As a result, the complainant’s stepfather took the complainant to the police station the next day. Separately, she, the complainant’s mother, went to the police station whereupon the police told her the allegations. She had not discussed the matter or subsequently discussed the allegations with the complainant because she did not want to upset the complainant.
The complainant’s mother gave evidence that she also did not discuss the allegations with the accused’s partner, her eldest daughter, because the complainant wanted to talk to the eldest daughter (her sister) herself about the matter. Accordingly, the complainant’s mother rang her eldest daughter, and her eldest daughter came over and the complainant talked to her.[54] It was a short conversation. The complainant’s mother’s impression was that the complainant was very upset as a result of the conversation, because as a result of the conversation the complainant was scared that her eldest sister would hate her.[55]
[54] T104.
[55] T106.
The complainant’s mother was cross-examined about what then happened, and agreed that since the complaint in the current matter was made she had stopped having contact with the accused and her eldest daughter, saying that she was not allowed to speak to them or see them.[56]
[56] T107-8.
The complainant’s mother denied suggestions by defence counsel that she had asked both the complainant and her elder daughter to fabricate allegations against the accused, and promised them gifts to do so, or that she was jealous of the fact that the accused’s partner (her eldest daughter) had had a boy, and other suggestions including that she had had a big argument with her eldest daughter in 2017 about the suggestion that her biological father had molested her.[57] She denied a suggestion that she, the complainant’s mother, and her partner, the complainant’s stepfather, were falsely claiming to live apart to maximize their Centrelink benefit.[58]
[57] T108.
[58] T109.
The complainant’s elder sister was called to give evidence. She was 17 years of age at the time of the trial. She described the family members and the living arrangements. The complainant’s elder sister indicated that she did live with the family but from time to time she has lived elsewhere. From early 2019, through to July 2020 she lived at a friend’s house rather than with the complainant and the complainant’s mother. She gave evidence that she occasionally visited but that the accused was not present on the occasions when she visited in 2019.
The complainant’s elder sister then described what occurred on 15 January 2020. She said she had a conversation with the complainant in the bathroom of the complainant’s house. The complainant said, ‘I want to tell you something, Jimmy puts his hands down my pants’. The complainant’s elder sister said she felt in shock.
The complainant’s elder sister was cross-examined extensively as to these events. She was asked what she did after the disclosure had been made to her. She replied that she went into the loungeroom and told her mother and stepfather what the complainant had told her, to which they looked shocked but did not otherwise react.
In further cross-examination, it was put to the complainant’s elder sister that she had conversation with a third party called ‘Martika’ whereby she admitted to ‘Martika’ that the complainant’s mother had asked the complainant’s elder sister to make up false allegations against the accused. She denied that ‘Martika’ then took her to a police station.
In further cross-examination the complainant’s elder sister denied the suggestion that she, in a drunken call on New Year’s Eve 2018, told the accused that the complainant’s mother had asked her to make up allegations that she had previously made about the accused. The complainant’s elder sister agreed she had made sexual allegations against the accused in 2017 but denied that her mother had put her up to it or offered her anything to do it. She agreed that from early 2019 she did not see the accused at any time. In further cross-examination the complainant’s elder sister agreed that her family did not use the outdoor area to entertain, and generally did not entertain people. She agreed that when the complainant had disclosed what had happened to her, she had replied that the accused had done the same thing to her.
The prosecution then called the complainant’s stepfather to give evidence. The complainant’s stepfather gave evidence of the relationship with the complainant’s mother and their respective children. He gave evidence that he would live part-time with the complainant’s mother and part-time with his grandparents. He gave evidence that he knew the accused through the complainant’s eldest sister, and that they had a mutual interest in cars.
The complainant’s stepfather gave evidence that in 2019 he could recall the accused coming to the complainant’s house, maybe three or four times when he was at the house, although there could have been other occasions. He recalled one occasion when the accused and the complainant’s oldest sister were there to help unload a table, another occasion when they were there for dinner, and there were other occasions when they were there just to have a drink or say hello.
The complainant’s stepfather gave evidence that for about three months leading up to just before November 2019 he and the complainant’s mother did not have contact with the accused.
The complainant’s stepfather described the occasion when he asked the accused to help unload a table he was having delivered. The accused and the complainant’s eldest sister and their young son came over, and indeed were already there when he arrived at the house at roughly 6.00pm. After the table had been unloaded he recalls the complainant’s mother and the eldest daughter going to the shops to buy food and drink and he noticed on returning to the loungeroom the accused and the complainant sitting together on the lounge with the complainant’s legs dangling between the accused’s two legs.[59] The complainant’s stepfather described the complainant as sitting across the accused’s lap and he noticed that the accused’s hands were on her legs and shoulder sitting almost as if ‘like they were a couple’.[60] When he saw that, he told the complainant to move to the other side of the loungeroom which she did, but when he returned to the room a little later the complainant was on the accused’s lap again.[61]
[59] T145.
[60] T151.
[61] T153.
The complainant’s stepfather was asked about an occasion in 2019 when the accused and the complainant’s eldest sister came over for dinner and he agreed that such an occasion occurred. He said that there were other occasions when they attended for a visit. He agreed that on most occasions the complainant’s eldest sister came without the accused. The complainant’s stepfather gave evidence that there was an occasion in the October school holidays when the complainant went to spend a weekend with the accused and her eldest sister.
The complainant’s stepfather then gave evidence about how he became aware of the allegation and described his role in bringing it to the attention of the police. He said that on 20 January 2020 the complainant was giving him a hand, at which time he became aware of the allegation from what she said. He was unwell the next day, so he took her to the police station the following day, Wednesday 22 January 2020. It was unclear from the way the questions were asked whether he was saying that the complainant disclosed matters to him whilst she was helping him out, or whether it was later that evening.
The complainant’s stepfather gave evidence that whilst they did occasionally cook barbeques in the rear yard it was not an area used for meals or entertaining. He did say that members of the family would however go into the rear yard for various reasons.
The complainant’s stepfather was also cross-examined extensively. It was put to him that he had fabricated seeing the accused and the complainant on the couch and that for some reason he wanted the accused to be convicted of the offence and was just telling lies to support the prosecution case. He denied such suggestions. He was cross-examined about the content of the disclosure to him by the complainant. He gave evidence that he was standing by the bin cutting up cardboard and the complainant said to him ‘I hate Jimmy’ to which he responded ‘why do you hate Jimmy?’ and she answered ‘he’s touched me in places’ to which he responded ‘well I think this is a matter for the police’, and accordingly he took her to the police.[62] The complainant’s stepfather agreed that he had said in a statement to police that the complainant had said ‘he rubs my legs’, and he agreed that she said that as well. To be fair to the witness when he had originally described what she said, he also said ‘and rah rah rah rah’, to indicate that more had been said.
[62] T162.
The complainant’s stepfather agreed that in a statement given to police on 30 April 2020 he had told police that the complainant had said it had happened in her bedroom and in the loungeroom at the accused’s house. The complainant’s stepfather agreed that he had said that but that he had forgotten about that when he gave his evidence in court.[63]
[63] T165.
The complainant’s stepfather was cross-examined at length concerning the initial disclosure to him, subsequent events, and his actions. It is fair to say there is some inconsistency in the detail of his answers. At times he indicated he was confused about those events and could not remember some of the detail nor exactly what was said. Defence counsel put to the complainant’s stepfather a statement he gave to police on 30 April 2020 where he described the complainant’s elder sister’s words to him and whilst he could not remember exactly what she said it was that the complainant ‘had something bad to tell us about (the accused) and it was to do with something bad’. He agreed in the statement that he immediately thought it may have been something of a sexual nature, and discussed it with his partner the complainant’s mother. He agreed he had said in that statement that the complainant had told him the accused had rubbed her leg in her bedroom and in the lounge room, but responded to counsel that he had forgotten about that, and that when earlier the complainant’s elder sister had told him something had happened, he had replied to her ‘I’ll wait to hear it from (the complainant)’. He agreed he had said those things and that they refreshed his memory, but in effect he was confused in the witness box and ‘I’ve got that much in my head at the moment. I can’t remember’. He said, ‘You just – you’ve confused me that much, my, my brain’s going 100-to-one at the moment, sorry’.[64] The witness conceded that he was illiterate and unable to read.[65]
[64] T156-172.
[65] T165.
The complainant’s stepfather repeated that he did not immediately go to the police until two days later because of the state of his health. He explained that he had injured his back. The complainant’s stepfather was cross-examined about when and how often they saw the accused throughout 2019 and he replied that whilst he could not remember the dates or times or months, they saw them off and on.[66] He indicated that the complainant’s mother and her eldest daughter started talking again after meeting at the Ingle Farm Shopping Centre. He agreed he was aware that the complainant’s elder sister had made allegations against the accused in 2017 but indicated he did not know much about it. When asked if it concerned him, he said ‘yes and no’ because he did not know much about it and the accused was a mate of his from beforehand.[67] The complainant’s stepfather was asked about his observations of the accused having his hands on the complainant’s legs or leg and the events of that day. He said he thought that the accused had come to their house about four or five times when he was present in 2019.[68]
[66] T179-180.
[67] T168.
[68] T170.
The complainant’s stepfather was also asked about whether he was wrongfully claiming Centrelink payments on the basis that he did not live full-time with the complainant’s mother, and he denied that was the case.[69]
[69] T172.
The prosecution then called the complainant’s eldest sister, the partner of the accused. The complainant’s eldest sister gave evidence that she was 24 at the time of trial and the partner of the accused, having been together in a relationship with him for just over five years. The complainant’s eldest sister gave evidence that she had met him at high school when she was about 12 years of age. She gave evidence that they had two children aged two and four at the time of trial. She gave evidence that she moved out of her parents’ house at about 15 years of age after an argument with her mother and her mother’s then husband, in January 2013.
The complainant’s eldest sister gave evidence that the accused was working in the latter half of 2019, usually from 8.30am to 4.30pm but occasionally from 7.30am to 3.30pm. The complainant’s eldest sister said that she visited the complainant and her mother and family at various times in 2019 although contact had been cut off until about July that year, after which she would go there roughly about every two to three weeks. She said the period of non-contact would have been, in her memory, about five or six months prior to July 2019. She gave evidence that from about August 2019 the accused would accompany her on some visits to the complainant’s house, maybe once or twice a month through to the end of the year; perhaps a maximum of ten times in that space of time.[70] She recalled having dinner there on one occasion although she could not recall the exact date. She said the visits would be a maximum of an hour and a half to two hours on each occasion.
[70] T195.
The complainant’s eldest sister said that she also remembered an occasion when they went around to the complainant’s house so that the accused could help move a table. She said that would have been in early December 2019, from having reviewed her Messenger records.[71] She said that they were there for a maximum of some two hours and she could not recall leaving the house during that time, although she did not specifically remember ultimately leaving. She said she did not go shopping with her mother ‘on that day’, although she recalls taking her mother to the shops on another day when they stayed for dinner.[72] That occasion was also in the second half of 2019 when she had attended with the accused and their young child for a family dinner and to see each other.
[71] T196.
[72] T198.
The complainant’s eldest sister also agreed there was an occasion in October 2019 when the complainant stayed over at her and the accused’s house for the weekend. Snapchat photos from that date were tendered.[73] She gave evidence that the complainant slept in bedroom four, which she also described as a storage or candle room.[74] She said that she did not leave her house at any time during the weekend nor in her opinion was the accused alone with the complainant, and they tried to spend as much family time as they could because that was their weekend for access with ‘another child’.[75] She maintained that every moment that she was in the house the complainant was in front of her, and that whilst the accused had gone into the complainant’s bedroom she was in that room at the time.
[73] Exhibit P15.
[74] T204.
[75] T205.
The complainant’s eldest sister was then cross-examined. She acceded to propositions put to her by defence counsel that she consciously kept a view of the accused when they were at her mother’s house because of previous drama with her mother and previous arguments with her mother.[76] She also acceded to propositions that she was concerned about other false allegations being made against the accused and so she always kept him in view when they went to visit her mother’s house to avoid further false allegations being raised. She acceded to a proposition that there was no opportunity for the accused to have sexually interfered with the complainant during any of his visits to her mother’s house.[77]
[76] T207.
[77] T208.
With reference to a copy of a Facebook Messenger message, she dated the occasion when the accused assisted with the table as 11 December 2019.[78]
[78] Exhibit D1.
The complainant’s eldest sister gave evidence that she had had a falling out with her mother in 2017 over her biological father. She said that when she was younger she had gone through court cases, presumably Family Court. She was told that her father had sexually harassed her when she was younger. So at the age of 18 she asked for the paperwork and court papers, and when she received them she could find nothing that related to her father sexually harassing her. As a result, she formed the view that her mother had lied to her about why she was unable to see her father. Consequently, she commenced contact with him again.[79] She gave evidence that whilst nothing specifically was said, she had the impression that her mother was jealous of the fact she had given birth to a boy in June 2017.[80]
[79] T213.
[80] T214-220.
She agreed that on 20 January 2020 she had received a phone call from the complainant’s stepfather to call him back urgently, so she rang her mother to be told that the complainant wanted to talk to her. As a result, she went over there on 20 January 2020 and spoke to the complainant. She said that was the last time she visited the house.
The final witness was the investigating officer Brevet Sergeant Turnbull.
At 1.28pm on 1 February 2020 Brevet Sergeant Turnbull spoke with the accused and conducted a formal record of interview. The complainant’s eldest sister, the accused’s partner, was at his request also present during that record of interview. The interview was recorded on video, which was tendered.[81] A transcript aide memoire was also provided.[82]
[81] Exhibit P17.
[82] MFI P18.
The accused answered all questions put to him and denied that he had sexually or inappropriately touched the complainant at any time. He agreed that he would see the complainant when he and the complainant’s eldest sister would visit the complainant and her family but repeated his denials, categorising the allegations as ‘bullshit’. The accused indicated he thought of the complainant as his own little sister and was ‘absolutely at a loss of why they would do this shit again – especially with (the complainant). Done nothing wrong by her at all’.[83] He said there were never any times he would be alone with the complainant. When taken through the specific allegations he categorised them as ‘absolute bullshit’.[84]
[83] MFI P18 at 136.
[84] MFI P18 at 253.
The accused advanced the argument ‘why the hell would I touch (the complainant) yet I have my daughter every second weekend and for every on and off week over the holidays and not touch her?’. He said that even if the complainant came up to him for a cuddle on the couch, he would move her to the side and never had any sort of physical, sexual contact with her whatever. He suggested that the complainant’s mother was jealous because he and the complainant’s eldest sister were happy, he had a full-time job and they had a son which the complainant’s mother had been trying to have for years and observed that every time the complainant’s mother had a girl she would form a relationship with someone different and try and have a boy.[85] The accused told police he had never been in the complainant’s bedroom.[86] It is fair to categorise the accused’s demeanour throughout the interview as angry, verging on aggressive.
[85] MFI P18 at 280.
[86] MFI P18 at 331.
A sample of phone call and text data extracted from the accused’s mobile phone regarding his partner and the complainant’s mother was tendered indicating contact over the period October 2019 to January 2020.
At the conclusion of the prosecution case the defence indicated that it would not be calling any further evidence.
The defence case as reflected in the plea of not guilty, the accused’s record of interview and the matters put and raised by defence counsel at trial is that the allegations did not occur and that the accused is not guilty.
Addresses
The court carefully considered the evidence called and tendered in the matter as it was given and has subsequently re-read the evidence and closely reviewed all tendered materials. The court has heard and carefully considered the comprehensive written and oral addresses delivered by counsel but will not repeat in these reasons all their arguments. The prosecution case rests primarily if not entirely on the evidence of the complainant. Counsel’s addresses have consequently been primarily directed towards the credibility and reliability of the complainant.
The prosecution submitted that the complainant was an honest and reliable witness, consistent across both prescribed interviews and in her evidence, whose presentation was consistent with a young girl giving evidence about such topics, and whose evidence had the ring of truth, and who was largely unimpeached by cross-examination. The prosecution, whilst conceding that there was no obligation whatsoever for the defence to advance a motive for the complainant to lie, put that the motive advanced by the accused in his record of interview and by his counsel at trial was fanciful and did not survive scrutiny. The prosecution submitted that the charge had been proven beyond reasonable doubt.
The defence submitted that firstly, there was insufficient evidence to prove there was any kind of relationship between the accused and the complainant, and that was a necessary element of the charged offence which accordingly the prosecution had failed to prove. The defence submitted that there were overt problems of inconsistency in the complainant’s evidence that should cause the court not to accept it, and that even at its highest, by virtue of significant shortcomings in the complainant’s statements and pre-trial evidence, that evidence should not satisfy the court. The defence submitted that there were difficulties both with the complaint and opportunity evidence and that the complainant’s mother was a dishonest witness whose evidence was a ‘tissue of lies’. The defence submitted that given the prior allegations against the accused, the complainant’s oldest sister, the accused’s partner, always observed the accused when the families were together such that the events simply could not have occurred.
Analysis
The court has carefully considered everything called, put and tendered, together with all of counsel’s submissions.
As mentioned at the outset, the court has scrutinised the complainant’s evidence with particular care, given the complainant’s young age, that the evidence was not on oath, that the prosecution is entirely dependent on it, and that its content is vigorously disputed by the defence.
On close analysis, the complainant’s prescribed interviews were spontaneous and gave the strong impression of being unrehearsed. There were no leading questions or suggested answers or inappropriately suggested topics. Her reactions, demeanour, seriousness and apparent stress varied appropriately, depending on whether the questioning related to the matters she was there to discuss or on the other hand non-sexual topics.
The complainant’s evidence at the pre-trial special hearing gave the distinct impression of being careful, thoughtful, and serious. A close analysis of the content of the interviews and the pre-trial evidence discloses no material inconsistency as to the amount of contact between the families, and the number of, and central facts of, each of the events that she could specifically recall and describe. The complainant disclosed no perceptible adverse animus towards the accused. The overwhelming impression given was of a young but intelligent and serious child, honestly describing what happened to her. She appeared to think carefully before answering the serious questions addressed to her, particularly when being asked to think back and remember and describe particular events, and then appeared careful to answer only to the extent her memory permitted.
On the other hand, the complainant’s mother was palpably and observably stressed and upset throughout her evidence. She spoke very meekly and quietly such that she was often difficult to hear and had to be constantly encouraged and reminded to speak up. She gave the impression of being highly medicated. The court had to regularly enquire if she was feeling well enough to continue. She openly cried at at least one point in her evidence. At times her answers were jumbled and inarticulate. The overwhelming impression conveyed was of a highly traumatised, medicated, depressed and upset mother, barely able to cope with being in the witness box having to describe what had occurred. Her state may well have been worsened by the fact that she was being accused of bribing the complainant to fabricate the entire case against her oldest daughter’s partner, out of jealously because she was never able to have her own much-wanted male baby. The overwhelming impression given was of a highly traumatised witness, further traumatised by the matters raised with her in cross-examination, consequently giving evidence which was at times jumbled and unclear, and sometimes inconsistent with her earlier evidence and with extracts from her police statements as put to her. The final impression was of an honest but highly upset and traumatised mother, whose consequent recall and description of detail was problematic and unreliable.
The complainant’s stepfather’s evidence also had its issues. Whilst he was largely a straightforward and matter of fact witness, he was an admittedly illiterate man who tended to answer quickly and to the effect of what he was being asked to recall, rather than stopping to think and provide the most accurate detail his memory would allow. He periodically appeared not to fully appreciate that the exact detail of what he was being asked was required. He conceded that he had become variously confused and angry at times during cross-examination. The other side of that same coin was that there was no guardedness or contrivance in his presentation, and no indication of any attempt to mislead or be dishonest. He gave the overwhelming impression of an honest witness, reliable as to primary matters, but with a poor and hence unreliable memory for dates, detail, sequence, and the content of conversations beyond the rough gist of what the conversation may have been about.
The complainant’s elder sister, to whom the complainant first complained, was a straightforward witness who presented well. The overwhelming impression was of an honest and reliable witness, doing her best to recall events and conversations accurately.
The complainant’s eldest sister, the accused’s partner, gave evidence in a straightforward manner as to uncontroversial matters such as the various family members and the history of the various relationships, and the number of occasions the families had contact over the relevant period. On the other hand, when asked about the opportunities the accused may have had to commit the alleged offence her evidence became unconvincingly absolute. For example, she said that on family visits she would keep the accused directly in front of her sight for every moment of what could be a two hour visit. As discussed with counsel, whilst she was called as a witness by the prosecution, she demonstrated palpable antipathy towards the complainant’s mother, and promulgated the baseless suggestion, in her words an ‘impression’, that her mother was jealous she had a boy. As discussed with counsel, she is the accused’s partner, committed to him, and has two young children with him. In those circumstances there is an obvious motive for her to see things the accused’s way, view history in a light favourable to him, and see the facts more absolutely in his favour. The allegations made by a complainant in a matter like this might well be a very difficult pill for a young mother of two in this witness’ position to swallow.
The accused in his record of interview angrily and vehemently rejected the allegations put to him and maintained his innocence. The court has regard to his categoric denials, and indeed all the matters raised in his record of interview. The argument he proffered to police to the effect of why would he offend against the complainant when, in effect, he had access to his own daughter was however a somewhat unsettling and discordant element.
As to complaint, the court accepts the evidence of the complainant and her elder sister as to the circumstances and the content of the complaint. Any variances are due to honest differences in recollection. Whilst the complainant’s stepfather was an honest witness, and was trying to accurately recall matters, he was not reliable as to detail and where his evidence is at any variance with the complainant or her sister as to how events or matters surrounding the circumstances of the complaint occurred or were described to him by them, I discount what he says and do not regard it as affecting the veracity and reliability of the complaint evidence from the complainant and her elder sister.
The court finds that the circumstances and timing of the complaint and to who it was made are entirely consistent with what one might expect a young child in the complainant’s position to do. Her evidence that despite being told by the accused that she had to keep it secret, ‘I just couldn’t handle it anymore and I had to tell my sister’ had the distinct ring of truth.
The content of her complaint was brief, but not inconsistent with her later evidence at trial. It was however sufficiently brief that the court cannot regard it as providing any additional probative weight on the basis of ‘consistency’.
It is important to remember that there is no obligation on the defence to prove or even suggest a motive for a complainant to lie, and consequently there is no obligation on the defence to prove or even suggest a reason why the complainant in this matter would or might fabricate her evidence to implicate her eldest sister’s partner. It is always for the prosecution to prove its case and prove that its witnesses are truthful. It is long recognised that witnesses can lie for any number of undisclosed reasons, indeed they can lie for no reason at all.
However, where, as here, motives to lie have been raised by the defence the court must consider them and give the possibility of a motive in support of the defence case every consideration. The primary suggested motive is that the complainant’s mother, due to jealously that her eldest daughter had had the male child she had always wanted, got the complainant to fabricate the allegations and pursue them with the police and to trial. The first observation to be made is that there is no evidence of that motive. The accused’s partner said she just had that ‘impression’. Further, it is inherently unlikely that a mother who had always wanted a boy, whose daughter had a boy and hence provided a grandson to the mother, would, even if jealous, attempt to wrongly accuse and convict her blameless son-in-law, to get at her daughter, and do it by pressuring or bribing another daughter to fabricate the extensive allegations of serious sexual abuse made in this matter. Such a course would be highly risky and dangerous for her, as well as likely to tear the entire family apart. Further, the evidence discloses no involvement by the mother in either the making of the initial complaint nor the reporting of it to the police. Accordingly, in the court’s view the suggested motive has no weight. It is important to repeat that the absence of ostensible motive for the complainant to lie in no way supports the prosecution case, nor is it a makeweight.
The alleged offending was brazen, but only involved relatively brief digital touching that could be stopped instantaneously on the approach of others, and only after the accused asked the complainant on each occasion if he could proceed, such that he may well have thought that there was no objection, and that the complainant would indeed respect his admonition to her to keep it as their secret.
After the closest of scrutiny, at the end of the day, the complainant’s evidence at trial by way of her prescribed interviews and special pre-trial hearing was convincing. In particular, her in court unsworn evidence was serious, careful, moderate, and thoughtful. Whilst the court bears in mind the accused’s denials, and all the matters raised, tendered and submitted by the defence, the court finds that the complainant was an honest and reliable witness whose evidential material was truthful and accurate and should be accepted beyond reasonable doubt.
As to whether there was a relationship for the purposes of the charged offence, there is no doubt that there was at the time a close familial relationship between the accused and the complainant, based on the fact that the accused was the complainant’s eldest sister’s de facto partner, and that the families regularly interacted over the charged period. There was ongoing social and familial interaction between the accused and the complainant that amounted to a relationship of that kind. For example, the accused admitted in the record of interview that the complainant would regularly greet him and ‘come in for a cuddle’. There is no merit to the defence submission that a relevant relationship did not exist.
Factual conclusions
The court finds proven beyond reasonable doubt that that accused, on nine to ten occasions between October 2019 and 15 January 2020, deliberately and intentionally touched the complainant on her vagina with one or more fingers, which he would usually then wiggle around for a short time, for less than a minute on each occasion. One of those occasions was when the complainant attended the accused’s house to visit for a sleepover, and the remainder of the occasions were when the accused attended the complainant’s home on family visits over the charged period. Some of these involved the accused touching the complainant on ‘the outside’, which the court finds means on the outside of her clothing, and on other occasions on ‘the inside’, which the court finds means inside her clothing touching her vagina itself.
The court finds proven beyond reasonable doubt that in each case the touching occurred in circumstances of indecency with a sexual connotation. In each case it involved the intentional, non-trivial and unlawful application of force by the accused to the complainant, a child legally incapable of consenting to such touching, without lawful excuse. Accordingly, each touching amounted to an indecent assault, consequently a sexual offence and an unlawful sexual act for the purposes of the charged offence.
The court finds proven beyond reasonable doubt that the accused on each occasion asked the complainant if he could do so, but although the touching made the complainant feel embarrassed and uncomfortable, and that it sometimes hurt, and that she did not want him to do it, she did not feel confident enough to speak up and object. The accused told the complainant to keep it secret, as it was to be their secret. In the end the complainant couldn’t handle it anymore and told her elder sister, who told their stepfather, and the matter was reported to the police.
The court finds proven beyond reasonable doubt that the accused knowingly maintained a familial and social relationship with the complainant at all relevant times.
The court finds proven beyond reasonable doubt that the accused was an adult, and the complainant was an eight-year-old child at all relevant times.[87]
[87] Agreed facts 1 and 2.
Each element of the charged offence has been established beyond reasonable doubt.
Legal conclusion
The charged offence has been proven beyond reasonable doubt, in particular; that between the 1st day of January 2019 and the 15th day of January 2020 at Elizabeth Vale and Salisbury East, the accused maintained an unlawful sexual relationship with (the named complainant), a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely touching her vagina on more than one occasion.
Verdict
Guilty.
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