R v HH
[2023] SADC 138
•23 October 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HH
Criminal Trial by Judge Alone
[2023] SADC 138
Reasons for the Verdict of her Honour Judge Tracey
23 October 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the brother of the complainant's mother's boyfriend. The accused was charged with one count of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). Interviews of the complainant admitted pursuant to s 13BA of the Evidence Act (SA) 1929.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) s 13BA and 13BA(5)(c); Juries Act 1927 (SA) s 7, referred to.
R v HH
[2023] SADC 138
HH (the accused) is charged with maintaining an unlawful sexual relationship[1] with MM, who at the time of the alleged offending was between the ages of 7 and 9 years. The accused’s brother JH was in a relationship with MM’s mother at the time of the alleged offending. The accused elected to be tried by judge alone pursuant to s 7 of the Juries Act 1927 (SA).
[1] s 50(1) Criminal Law Consolidation Act 1935 (SA).
The charge is as follows:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
HH between 21st day of August 2014 and the 1st day of January 2017, at Munno Para West, maintained an unlawful sexual relationship with MM, a person under the age of 17 years, by engaging int wo or more unlawful sexual acts with or towards MM, namely:
(a)Touching her genital area, on more than one occasion;
(b) Inserted his finger or fingers into her vagina, on more than one occasion;
(c)Exposing his naked body to her on more than one occasion;
(d)Touching her chest; and
(e)Causing her to touch his penis on more than one occasion.
Prosecution Case
The charged offending relates to acts alleged to have taken place over a period between 21 August 2014 and 1 January 2017.
The accused came to live at the complainant’s home with her family around July 2015 at an address in Munno Parra West (the House). MM’s mother RN, JH and the complainant’s two older siblings HM and DM were living at the address. At the time, the accused was around 21 years of age.
The prosecution alleges that the accused sexually abused MM during the period he resided with the family. MM alleges that the accused, on multiple occasions, touched her vagina, inserted his fingers into her vagina, exposed his naked body to her and caused her to touch his penis. It is further alleged that on one occasion he touched MM’s breasts.
In late 2016, after the relationship between RN and JH ended, MM and her family moved out of the house, bringing an end to the sexual abuse. When MM and her family moved out RN was in a new relationship. MM said that she told her mother and her new partner, GD, that the accused had touched her and that her mother said she did not know what to do. RN had no recollection of such a discussion.
On 12 September 2021, MM sent a text message to her mother about the accused doing sexual things to her which was not relied upon by the prosecution as an elaboration of complaint. Rather, its only purpose was said to be to provide a timeline as to how the allegations came to the attention of police. The matter was reported to police on 15 September 2021 when the accused participated in a record of interview.
Before trial, orders were made pursuant to section 13BA of the Evidence Act 1929 (SA) that MM’s evidence would be admitted in the form of two pre-recorded audio-visual recordings conducted with prescribed interviewers on 30 September 2021 and 16 August 2022. On 28 November 2022 and 30 January 2023 pre-trial special hearings were conducted wherein the complainant gave evidence, was cross-examined and re-examined.
Witnesses
The prosecution called the following witnesses:
·MM (the complainant).
·RN (MM’s mother).
·Detective Campbell Murdoch.
The accused elected to give evidence.
Elements of the Offence
Sexual Abuse of a Child
The prosecution must prove beyond reasonable doubt each of the following elements:
1. The accused knowingly maintained a relationship during the relevant period.
2.The accused was an adult during the relevant period.
3.MM was a child under the age of 17 during the relevant period.
4. The accused engaged in two or more unlawful sexual acts with MM in the course of the relationship.
There was no dispute at trial with respect to elements 1, 2 and 3 and I am satisfied those elements of the offence are established beyond reasonable doubt. Only the fourth element is in dispute.
The prosecution alleges that particulars (a), (d) and (e) are acts of indecent assault while particular (b) amounts to the offence of unlawful sexual intercourse with particular (c) alleged to be an act of gross indecency.
The elements of aggravated indecent assault are as follows:
Aggravated indecent assault
The prosecution must prove beyond reasonable doubt each of the following elements:
(1)The accused intentionally assaulted MM.
(2)The assault occurred in circumstances of indecency; that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.
(3)MM was under the age of 14 years at the relevant time.
The elements of the offence of gross indecency are as follows:
Gross indecency
The prosecution must prove beyond reasonable doubt each of the following elements:
(1) The accused did the act alleged;
(2) The act was done with MM;
(3) MM was under the age of 16 years at the relevant time;
(4) The act must have been indecent.
Indecency means some form of sexual conduct or activity which ought to be regarded as indecent, having regard to the MM’s age and the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency. The indecency, if it occurred, must be gross. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised, not only, as indecent but also as grossly indecent.
The elements of the offence of unlawful sexual intercourse are as follows:
Unlawful sexual intercourse
The prosecution must prove beyond reasonable doubt each of the following elements:
(1)The accused had sexual intercourse with MM.
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving –
(a)Penetration of the labia majora or anus of a period by any part of the body of another person or any object; or
(b)…
(c)…
(2) MM was under the age of 14 years at the relevant time.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove each element of the offence beyond reasonable doubt and it is not sufficient for the prosecution to prove a mere suspicion of guilt or that the accused is possibly or probably guilty.
·I must bring an open and unprejudiced mind to the case.
·I must assess each witness as to their truthfulness and reliability. I can reject or accept all or a part of a witness’s evidence.
·MM gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give her evidence.
·The accused answered questions during the police interview. This does not mean that the accused takes on any burden of proof in the trial. He does not at any time have to prove his innocence. It remains a fundamental requirement that the prosecution has the burden of proof and to the standard of beyond reasonable doubt.
·The accused gave evidence and was not bound to do so. I must assess his evidence in the same way as any other witness.
·If, after full and careful consideration, I am unable to decide where the truth lies and who is telling the truth, the prosecution would have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.
Agreed facts
Age and relationship
1.The accused, HH, was born on 10 February 1995.
2.The complainant, MM, was born on 23 August 2008.
Prescribed interview of MM dated 30 September 2021
3.On 30 September 2021, Constable Carlow conducted a prescribed interview with MM pursuant to section 13BA of the Evidence Act 1929.
Prescribed interview of MM dated 16 August 2022
4.On 16 August 2022, Constable Riley conducted a prescribed interview with MM pursuant to section 13BA of the Evidence Act 1929.
Housing Records
5.Between 21 August 2014 and 26 August 2016, RN resided at [Munno Para West].
[GD]
6.On 22 August 2023, GD provided a signed affidavit to police.
7.He told police the following:
a.In about 2016 he was in a relationship with RN;
b.The relationship lasted approximately 12-24 months;
c.They lived together at [Munno Para West];
d.During that time RN’s children DM, MM and HM also lived with them; and
e.At no time when he was in a relationship with RN does he remember any of the children disclosing anything of a serious sexual nature to himself, or to RN in his presence
Prosecution evidence
MM’s evidence
Prescribed interview of MM on 30 September 2021
Prosecution tendered, marked Exhibit P1, MM’s prescribed record of interview, conducted by Constable Carlaw on 30 September 2021. MM was 13 years old at the time.
During the interview, MM reported that something had happened to her when she was younger. She explained that she was not sure “if it is rape or sexual assault, but it was never like any, sexual like contact, like, he never put his penis inside of me”.[2] MM said the accused had offended against her when he moved into the house. She described being about six or seven years old at the time, although was not certain of her age as she was not “very good with numbers”.[3]
[2] MFI P2 – TT 4, 37-39.
[3] MFI P2 – TT 4, 49.
During the interview MM described three specific incidents where she could recall and detail the alleged abuse. During the interview MM also recalled other more generalised scenarios in which she alleged the accused abused her.
Hide and Seek
MM said that not long after the accused had moved into the house she was running away from her siblings and hid under a blanket because she thought they were playing, tag or something, when they were meant to be going to sleep.[4]
[4] MFI P2 – TT 6, 35-37.
MM said that during the game she grabbed the blanket and threw it over her head and laid down so her siblings thought she was just part of the blanket.[5] She was unsure what the accused was doing while she was hiding, but thought that he might have been laying down using his phone. MM remembered that she had thought nothing of lying next to the accused at that time, because she thought the accused was really nice.[6]
[5] MFI P2 – TT 7, 19-22.
[6] MFI P2 – TT 7, 10-11.
MM said that the accused grabbed a second blanket and put it over her head.[7] She said that whilst hiding under the blanket the accused touched her vagina and said ‘only he could do it’.[8]
[7] MFI P2 –TT 7, 35-36.
[8] MFI P 2 – TT 5, 13
MM said that at the time, the accused was sleeping on the floor in the lounge room but could not remember what he was sleeping on.[9] She was hiding under the blanket because ‘he had two separate blankets because he was sleeping in the lounge room ‘cos he had just moved in’,[10] later adding that ‘he had two blankets on because maybe it was colder’.[11]
[9] MFI P2 –TT 6, 46 – 48.
[10] MFI P2 – TT 5, 4-6.
[11] MFI P2 - TT 7, 6.
MM said that she thought that the incident occurred at 7-7.30pm because she remembered it being dark in the house, although some of the lights were on.[12] She thought that the incident maybe occurred the first or second day that the accused moved in. She prefaced this by stating that she could not recall what happened the day after that, but recalled it happening two days after he moved in and then ‘it was an everyday thing’.[13]
[12] MFI P2 – TT 9, 41-42.
[13] MFI P2 – TT 5, 16-18.
MM said that during this incident her mother, JH and her siblings were in the house. She said she thought her siblings must have stopped chasing her because she did not remember them coming back out. She thought her mum and JH were sleeping in their bedroom or were watching TV in their bed. MM said she did try to tell her siblings but just could not.[14] MM explained that she thought it was disgusting, and she thought she should keep it to herself because they would see her in a “different way”.[15]
[14] MFI P2 – TT 10, 18.
[15] MFI P2 – TT 10, 28-30.
MM described an occasion where she was laying on the couch and the accused took her into his room and tried to put his fingers “up her”. At this time MM was sleeping on the lounge but was not sure why this was.[16] She heard the accused coming, and ‘pretended to be asleep, so like nothing could happen again’.[17] MM said that the accused picked her up like a baby and took her into his room.[18] Once they got to the bedroom, although she was half asleep and did not remember much, she said ‘ …I think he threw me on the bed and then he undressed me, well he started to undress me, and I tried to kick him off, and then that was the first time that he used violence against me and started punching me like, punching me legs’.[19] She said that ‘then he kind of like pinned me down. And then he tried to put his fingers up my vagina’.[20] When asked what she had meant by ‘he tried to’, MM said: “Well obviously like, he didn’t successfully do it because I screamed, and he didn’t do it. And then he tried to get in another time, and then I screamed and then, he never did it again. He’s only done it two times.”[21]
[16] MFI P2 – TT 11, 33.
[17] MFI P2 – TT 11, 37-38.
[18] MFI P2 – TT 11, 38-39.
[19] MFI P2 – TT 12, 15-19.
[20] MFI P2 – TT 12, 26-27.
[21] MFIP2 – TT 12, 31.
MM said the accused took the bottom part of her clothing off first and then he might have taken her top half off. She added that she did not remember if he actually took her top half off because she thought she had already run out of the room and she was pretty sure it was just her and the accused in the house because her mother worked a lot and she did not know what JH did. She did not know where her siblings were.
MM said that the accused was unable to successfully penetrate her vagina because she screamed and ran out of the room. She was trying to look for her siblings. She said that she was going to tell her mother, but the accused hit her.[22]
[22] MFI P2 – TT 14, 6-9.
When describing how the incident felt, MM said that “it hurt… because obviously I was only 6 and him putting his fingers up there really hurt’.[23] The accused told her that it would feel better and to just trust him.[24] She confirmed that the pain she felt was pain in her vagina.
[23] MFI P2 – TT 14, 13-14.
[24] MFI P2 – TT 14, 18.
MM said that she could not remember when it was that she had screamed. When a summary of what she had said was repeated back to her by the interviewing officer, MM said ‘I’m pretty sure I told you when I screamed’. When MM was reassured that it was alright if MM was not sure, MM said, ‘I know…no…cos I remember telling you, I think you wrote it down, but I don’t know, I don’t know.’[25]
[25] MFIP2 – TT 14, 41.
MM said she had run out looking for her siblings.[26] MM said she thought this incident occurred on a school day and that ‘as luck would have it’ the accused had to leave for work. She was maybe ‘home sick’ and said she was ‘pretty sure’ they left her with the accused because her mum and JH had jobs and obviously, they trusted the accused.[27] She then said that her siblings were not there, but she did not know whether the accused left for work. She said she did not think he would have left her at home as she was just 6 years old but could not remember.
[26] MFI P2 – TT 15, 15.
[27] MFI P2 – TT 16, 39-41.
When then asked to tell the interviewer the ‘other time you remember where he’s tried to put his fingers in your vagina’, MM said: “Oh the other time he did successfully do it, because I had already, like, pushed him off me”.[28]
[28] MFI P2 – TT 17, 4
MM said that this incident happened really late at night. She told the accused that she was going to find her parents and then he ‘punched her legs again’.[29] When asked to describe what happened in order, MM said she slept in the accused’s room, and that she was made to do so by the accused, ‘otherwise he would keep doing it’. Sometimes, she would sleep on the mattress in his room and sometimes he would put her on his bed. There were times that she would sleep in the accused’s room and nothing sexual would happen.
[29] MFI P2 – TT 17, 12.
MM described an occasion when she was sleeping on his mattress and he woke her up and turned the lights on and he was naked.[30] MM said:
And I just thought, like wow, this is gonna happen, like, I’m only 6. And it didn’t happen thankfully, it never happened, which is really good. But he like, kind of the same thig he did here, but he didn’t pin me down, because I was still like half asleep He …he just kind of said that he would like, hurt my family, …if I didn’t let him do this he would hurt my family. And I really loved my family. So.[31]
[30] MFI P2 – TT 18, 48.
[31] MFI P1 – TT 18, 3.
When asked what it was that he really wanted to do, MM said that ‘he wanted to put his fingers up me’. Then she ran out of the room and did not sleep in there for ‘like a week’.[32]
[32] MFI P2 – TT 18, 34.
Uncharged offending
MM she said that she thought the accused may have touched her while she was asleep because she would always go to bed with clothes on and sometimes she would wake up naked.[33] MM said that she would wake up and put her clothes back on, but that the accused would be gone because he had work[34] or sometimes if he was sleeping next to her she would go to her parents’ room or to her room and just ‘like sigh in relief, because it was just’[35] too much for her.
[33] MFI P2 – TT 18, 45.
[34] MFI P2 – TT 22, 32.
[35] MFI P2 – TT 22, 38-40.
MM described an occasion when the accused asked her if she wanted to ride a horse. She said she would ‘hop on his penis’ straddling her legs either side of him, with his pants on. This incident occurred in his room on the mattress. She thought it was before they got into bed. She remembered her mum walking into the room and the accused threw her up in the air and covered it up which she really hated.[36] She could only remember this happening once but thought it may have happened multiple times.
[36] MFI P2 – TT 19, 19.
MM also described incidents where the accused would touch her ‘boobs’ over her clothes when he got home from work[37] and being made to stroke the accused’s penis. She remembered an occasion where she and the accused were under a crochet blanket. Her siblings were in the room, and the accused grabbed her hand. She demonstrated the shape of her hand around the accused’s penis, going up and down.
[37] MFI P2 – TT 24, 19.
MM said:
He would just grab my hand and I think he would like, I think he would, like he would clench somewhere on my body, like really hurt if I didn’t do it. I don’t…. I don’t think it was my legs this time. I think it was another part of my body, but it really hurt.’[38]
[38] MFKI P2 – TT 25, 12
She remembered him wearing a band T-shirt on this occasion and wearing black jeans, which she described as ‘obviously being unzipped’. MM said that at the time she was wearing a pink hoodie and blue shorts. She could not remember how long it lasted. She thought she was sitting on the accused’s lap, on the floor in his room and both her siblings were sitting on the mattress playing a video game. MM said she remembered doing that a few times. She did not remember what she could feel when she had her hand on the accused’s penis.
The Complaint
MM said she first made a complaint to her mother a month before the September 2021 interview. Two or three days after that they went to the police. She described needing to tell her mum because ‘she wanted to see him in gaol and behind bars’.[39]
[39] MFI P2 – Page 21, line 44.
MM said that her “real” dad, had asked her whether the accused was doing anything to her, and she had said ‘no’. MM said that she now wished she had told her father about the accused and did not know why she had not. MM said she was afraid the accused would find out and added that ‘mum doesn’t want me to have any contact with dad.’[40]
[40] MFI P2 – Page 23, line 31.
Prescribed interview on 16 August 2022
MM participated in a second prescribed interview with Constable Madeleine Riley on 16 August 2022. During this interview MM was asked to tell the interviewing officer everything about when she spoke to her mother about what happened.
MM said that she sent her ‘it’ via a text message because ‘she didn’t know how to tell her in person’.[41] Once she sent the text message the next morning her mother and JT, her mother’s partner at the time, brought her into the lounge room and she had to explain what happened.[42] MM was unsure when this conversation occurred but thought it might have been on the same day she came into the police station last year, but probably not. MM said that she had not given her mother any detail. She said that she sent it and then ‘kind of regretted it’. She talked to her mother the next morning. She did not remember ‘what parts’ she told her mother. Her mother mentioned going to police.
[41] MFI P5 – Page 3, line 33.
[42] MFI P5 – page 3, line 34-35.
MM was asked about her use of the word ‘rape’ during the previous interview and in the text to her mother. MM said it was when no consent was given to touching someone.[43]
[43] MFI P5 page 7 line 37
Pre-trial special hearing dated 28 November 2022 and 20 January 2023
The pre-trial special hearings in this matter proceeded before me on 28 November 2022 and 30 January 2023. Pursuant to s 13BA(5)(c) of the Evidence Act, I ruled that it was in the interest of justice to permit MM to be further examined, cross-examined and re-examined in accordance with applications outlined by counsel.
Neither counsel objected to the trial proceeding before me as the trial judge.
MM commenced giving her evidence in court shortly after 10.00 am on 28 November 2022 with a court companion, but without a screen in place. At 10.27 am, MM told me that she needed to take a break and her evidence continued via CCTV with a court companion. Unfortunately, the evidence MM gave in court had not been properly recorded and MM attended on 20 January 2023 for the evidence that had not been recorded to be taken again.
At the time of the pre-trial hearing in November 2022, MM was 14 years old and in year 8. She lived with her mother, JT and her two older siblings, who were then aged 17 and 18 years.
In her evidence MM said that the accused used his hands when he touched her vagina[44] using a ‘circle’[45] motion. She said that after the first and second time it became an “everyday thing”.
[44] MFI P7A – page 7, line 32.
[45] MFI P7A – page 7, line 37.
MM was asked about the occasion she had described in her first interview with police, where the accused tried to put his fingers in her vagina. MM said that when she had referred to the accused’s fingers hurting in her vagina, she meant inside her vagina. She was unsure how long the accused’s fingers were inside her but that ‘they weren’t in there for very long’.[46] MM said that the incident would have been when there was no one home, early in the morning when she was sick. She said she did not recall anyone else in the house. Her siblings would have been at school or at their Dad’s. She thought it was when she was sick because it was really early so it would have been a weekday and she only ever stayed home when she was sick. She said it was not a clear memory of no other person being home when it happened.
[46] MFI P7A – page 7, line 35.
MM was then asked about having ‘described another occasion where you said that the accused made it clear he wanted to put his fingers in your vagina again… You said he didn’t do it successfully’.[47] MM agreed that had been what she had said and that she could not recall any other details around that particular incident, other than to agree with counsel that it was ‘similar’ to the first time that she described him putting his fingers in her vagina.
[47] MFI P7 -page 11 line 16
MM said she could not recall why it was that the accused would punch her on the legs but said that she ‘believed’ it happened around the same time, that some of the other things that the accused was doing to her would happen.
MM was asked what she had meant in the text message to her mother when she said ‘do you remember I have spoken to you about this before’. MM said that she had spoken to her mum and GD when she was seven or eight years old. She recalled pulling her mother aside and saying that he touched and then she asked her to point to where… then she started crying and from what she remembers, her mother said “I don’t know what to do.”[48] She was not sure what happened at that time, she thought her mum asked whether they should go to the police, but she was unsure if they did at that time.[49]
[48] MFI P7B – pag 19, line 29-31.l
[49] MFI P7B – page 20, line 9-10.
During cross-examination MM said that she would play video games with the accused but they had not played with dolls or anything like that. She had a clear memory of playing Grand Theft Auto with the accused and a zombie video game.[50]
[50] MFI P7B – page 26.
MM said that that the accused punched her hard enough to leave bruises,[51] which her mother saw, but probably just thought that they were from MM’s school and kindy. When reflecting on why she did not tell her parents about what had happened to her at the time, MM said she didn’t know, she probably should have, but that she was in shock.[52]
[51] MFI P7B – page 28, line 38.
[52] MFI P
MM agreed that as a 7-year-old at times, she probably sought attention from the accused.[53] She denied that she wanted attention the whole time she lived with him. MM denied that the only reason she slept in the accused’s room was because they would have fallen asleep whilst watching a movie.[54]
[53] MFI P7B – page 33, line 1.
[54] MFI P7B – page 33, line 12.
MM denied that she had looked back and created a story.
Detective Brevet Sergeant Campbell Murdoch
Detective Brevet Sergeant Murdoch (DBS Murdoch) was the investigating officer.[55]
[55] TT – 15, 20-25.
He said that the matter was first reported to police on the 7 October 2021 and on that day, he attended the accused’s address at 7.40pm, placing him under arrest. The accused was then conveyed to the Elizabeth police station and a recorded interview was conducted.[56]
[56] Exhibit P10
During cross-examination DBS Murdoch agreed that police first discussed MM’s allegations with the accused during the recorded interview.
Accused’s interview with police
During the interview DBS Murdoch explained that the police had ‘received information in relation to a girl called M’.[57] The accused enquired as to whether this was his “brothers ex daughter” and said that he knew MM because he lived with her when he was with his brother when MM was around 7-9 years old.[58]
[57] MFI 11 Transcript – Page 5, line 13.
[58] MFI 11 – Page 5, line 24.
DBS Murdoch told the accused that MM had made an allegation about him having inappropriately touched her while he was living at the house.[59] The accused immediately denied the allegations and stated that “he never touched her”, adding that she did sleep with him, and clarified that this meant she slept ‘next to him’.[60]
[59] MFI 11 – page 5, line 27.
[60] FFI 11 – page 5, line 34.
DBS Murdoch told the accused about the allegation where MM was playing hide and seek, to which the accused responded “What. I, I don’t remember, sorry. I never did it, so. I don’t remember her play hide and seek”.[61] When asked whether he had a good memory, the accused said, ‘I remember bits and pieces, but it’s not the best’.[62]
[61] MFI 11 – Page 6, line 32.
[62] MFI 11 – Page 6, line 32.
DBS Murdoch told the accused that MM had detailed about two or three occasions where she recalled in detail the alleged abuse, but that it was alleged he had offended pretty much every night he was living there. The accused denied an occasion when MM and her siblings were in a room watching TV when MM was under a blanket with him, and he had made her stroke his penis.
When asked whether MM had ever touched the accused’s penis, he responded “No. Not… on purpose. Like she would lean back or, something…probably…probably like that, because she was close to me a lot of the time.”[63]
[63] MFI 11 – page 7, line 45.
When describing the relationship between himself and MM, the accused said “well I played with her, like, when I didn’t have my computer, but after that ahh.. maybe I was a bit mean to her… ohh… not mean but, just maybe a gaming addiction, cos I had nothing to do, I, at the end of the day, I played with her. Like we played dolls and stuff like that. And just watching TV. But after that, then I just started playing games, and when I got my computer there”.[64] He went on to say that he “didn’t pay a lot of attention to her, like, like I did before, so”.[65]
[64] MFI 11 – page 9, line 28 – 33.
[65] MFI 11 – page 9, line 41.
The accused said that he thought he had slept in the family room at the house at the start [66] or maybe that was when he had just visited, before he actually lived there.[67] He explained at that that time, he was just there for a little while, maybe up to a week at most, maybe even less, he did not know. The accused also remembered that “sometimes the girls would sleep out there”.[68]
[66] MFI 11 – page 11, line 7.
[67] MFI 11 – page 11, line 11.
[68] MFI 11 – page 11, line 15.
Evidence of RN
RN confirmed that MM is the youngest of her three children. She said her relationship with JH commenced in approximately 2015 and that he had moved into her house, with her children, “within a couple of months”.[69] The accused moved in about three months or so after JH officially moved in’,[70] when MM would have been six years old. RN said that the accused moved into bedroom 3 and did not at any stage sleep in other areas of the house.
[69] TT – 22, 1.
[70] TT – 23, 1.
RN said that there would always be a mattress in the family room, but no other bedding in that room. If the mattress “was being used it was set up on the floor in front of the lounge and when it wasn’t, it was just lifted up and leant against the window”.[71]
[71] TT – 24, 22-24.
During the time the accused lived with her family, RN said she observed MM sleeping on the lounge in the family room on the ‘odd occasion’, when it was really hot during the summer, because there was a split system in that room. RN said that she never observed MM sleeping in the accused’s bedroom but saw her spend time with the accused in his room playing computer games a couple of days a week. She described the relationship between the accused and MM like a ‘friendship’[72] and no different to the relationship he had with her other children.
[72] TT – 26, 9.
RN said that during the years 2015 to 2016, she worked as a support worker, which involved mainly working during school hours. She would begin work around 9am, once she had dropped the kids off at school. Initially JH had not worked, but when he got work, his hours were such that he would leave the house around 5-5.30am Monday to Friday. She said the accused did not work but would help with the cleaning and occasionally look after the kids if she had to, quickly run to the shops or something.[73] She did not recall any occasions where MM was unwell, and the accused had to look after her.
[73] TT – 27, 9-12.
RN said that her relationship with JH ended in early 2016, and that the accused continued to reside at the house until she and her children moved out in the middle of 2016 to live with her new partner GD, after which, she and her children had no contact with the accused.
RN said that sometime in 2021, MM sent her a text message that related to the allegations and the matter was reported to the police.
RN said she never observed anything sexual between the accused and MM. She recalled seeing bruises on MM’s legs but could not recall how often she saw them.
In cross examination RN said that when JH was unemployed, she did not know what he was doing at home, but guessed he was probably just sitting and watching TV.[74]
[74] TT – 30, 35.
RN described having a set morning routine with the children, where they would get up, she would get them breakfast, get them dressed, make their lunch, and take them to school.[75] She did not believe that JH helped with the morning routine, but he would help by sometimes picking the children up from school.
[75] TT – 31, 17-18.
MM would sleep on the couch in the family room if it was hot. There was a TV in the lounge room and all the bedrooms.
RN said that the accused was “like part of the family, like help out, do things”.[76]
[76] TT – 33, 32-33.
After JH moved out of the house, the accused would still help out around the house if she asked him to, but otherwise he would spend most of his time in his room playing computer games.
During re-examination RN said that if her children were playing computer games in the accused’s bedroom, she would not go into the bedroom, but if she were to check on them, she would stand in the doorway.
Accused’s Evidence
The accused gave evidence that he is currently working as a ‘picker packer’ and had worked in that role for the past 2 years. Between 2015-2016, he lived with his brother JH and his brother’s partner RN. At some point during that period, JH and RN broke up and JH moved out of the house.
The accused said that he visited the family at the house for about a week before he was asked by RN to move in with them.[77] He agreed to move in because he could get Centrelink there and, the house had better internet which was important to him because he was a “gamer”.[78]
[77] TT – 38, 11.
[78] TT – 38, 19.
The accused said that when he first moved in, he was allocated bedroom 3, however, when he visited the house prior to moving in he would sleep in the loungeroom.
He was unsure if JH and RN were working when he moved into the house. He thought that later on RN started working in aged care.[79]
[79] TT – 39, 23-28.
The accused said that he would work for six-month intervals with Centrelink, Monday to Friday, approximately 9am-3pm “give or take”.[80] When he was not working, he would “play games and watch TV shows” in his room.[81]
[80] TT – 40, 10 – 11.
[81] TT – 40, 24.
When describing what the family did in the house the accused said that at night, they would eat food together, and that during the day they would probably play with each other. He was in his room pretty much all the time[82] so he wasn’t sure what they were doing. He said sometimes he would go out to the shops or the park, but he could only recall going to the park once.
[82] TT – 40, 32-35.
The accused said that MM joined him in his bedroom for movies or games. The other two siblings would occasionally visit.[83] He explained that MM would just walk into his room and ask if he wanted to play something. He said that his bedroom door was only closed if he was “getting dressed or something like that”.[84] The accused said that after he got his laptop and his PlayStation, he would focus more on his game than playing with MM, so he would ‘deny’ her if she asked him to play.[85]
[83] TT – 41, 14.
[84] TT – 41, 27.
[85] TT – 42, 5-7.
The accused said that his morning routine would usually be to wake up, have breakfast and have a shower. He explained that he would usually be awake at 5am because he would have to catch the bus. If he was not working, he would just stay and maybe play games. He explained that there were times where RN would have to work and would message him over Facebook telling him to wake the children up to tell them to get ready to go to school, but that he never took the children to school.[86]
[86] TT, 43, 2-22.
The accused elaborated on what he told police regarding MM sleeping in his bed, saying that “some nights she would come in to ask or she would just join me watching Disney or some anime movies and we would just fall asleep”.[87] He could not remember how many times this occurred.
[87] TT – 43, 35-37.
The accused denied all the sexual allegations made by MM.
When asked to explain what the accused meant in his police interview when he said, ‘maybe she would lean back or something’, he said that MM would sometimes sit close to him and that she might have leaned back and potentially touched his penis by accident.[88]
[88] TT – 45, 28-36.
The accused described his relationship with MM as being overall a “good” relationship, but that he didn’t remember it well.
In cross-examination, the accused said that he first visited the house, a bit before he moved in, but was unsure of the actual date. It was possibly a week or so before.[89] He visited the house for about a week and stayed in the loungeroom on a mattress, with maybe two blankets.
[89] TT – 47, 3.
The accused did not recall a game hide and seek while he was sleeping in the lounge room and said he did not play the game with the children over the time he lived there. He thought that the children might have played the game “sometimes”. The accused denied the allegations made by MM of hiding under the blanket, whilst playing the game.
The accused said when he thought that he officially moved into the house, he moved straight into Bedroom 3, but that it could be possible that he stayed in the loungeroom for a period of time. He said he did not know MM before moving in or visiting the house.
The accused said that there were times when all the children and the children’s friends would sleep in the lounge room. While he thought this might have happened on multiple occasions, he could only recall one occasion specifically. He did not recall any occasion where MM slept in the loungeroom by herself.[90]
[90] TT – 52.
The accused said that when he first moved into bedroom 3, a single mattress was on the floor. When asked whether MM had slept on the mattress when it was on the floor, the accused said he was unsure and said he could not “remember … the exact times and dates”.[91] Whilst the single mattress was on the floor, if MM came to watch a movie in his room she would either be sitting down or laying down next to him on the mattress, under a blanket. He denied that this was when he sexually abused MM.
[91] TT –53, 31.
The accused agreed that the mattress eventually moved to a bedframe, and that MM would on occasion also sleep on the accused’s bed. Sometimes she would come in and watch movies with him at night.[92] MM would come to his room to watch movies “whenever she decided to come and watch, so it could be daily”.[93] He said that he never took note of what MM was wearing, but that she was always wearing clothes when she came in to his room and he denied ever trying to take them off. He denied ever taking his own clothes off and exposing himself to her.
[92] TT –55, 4-6.
[93] TT – 55, 33-34.
The accused denied ever carrying MM during his time at the house, or ever having made a threat to her. He denied ever inserting his fingers in her vagina.
The accused accepted he had told police that he remembered MM sleeping in the lounge room sometimes, and that he had given evidence that he only saw her sleeping out there on one occasion. He said that he could only recall one occasion but thought that there might have been more than one.[94]
[94] TT – 58, 8-9.
The accused was unsure when MM started falling asleep in his room but that it might have been “quite a bit after”[95] he moved in. He denied ever making MM sleep in his bed.
[95] TT – 58, 28-29.
The accused said that if there was a need to wake MM up for school, he would have had to wake her up by “calling out to her, probably calling out to her, maybe, yeah, calling out to her, shake her, I don’t know”,[96] possibly turning on the lights if it was dark. The accused thought that because he was getting her ready for school it might have been early and therefore dark.
[96] TT – 60, 6-7.
The accused was unsure whether he ever looked after MM when she was sick but said that he did not remember such an occasion.
The accused said he was not working when he first moved into the house, but that he began working for Centrelink for 6-month periods. He accepted that apart from working and eating, he spent a lot of time in his room.
When asked how often MM slept in his bedroom the accused said, “I don’t know, sometimes, sorry, when you try to give me specific dates you try and make me remember and I can’t remember if I was, because it would be varied, it depends on her, if she would come at night and wanted to watch movies with me. So, it could, it could be like a week, it could be a month, it could be all over the place”.[97] He agreed that it could be frequent. Apart from gaming with MM the accused also suggested that he played dolls with her. He denied ever making her sit on his penis.
[97] TT – 65, 28 – 34.
The accused suggested that although MM never touched his penis on purpose, there were instances where she would sometimes sit in front of him, with his legs beside her, and that he thought she might have brushed against him sometimes.[98]
[98] TT – 66, 31.
Although he told police that he had a good relationship with MM, he said that he did not think he paid a lot of attention to her during times where he was playing games and explained that it was a “lot less than before when [he] didn’t have anything to do”.[99]
[99] TT – 68, 37-38.
The accused denied ever being violent with MM, touching her vagina or causing her to touch his penis. He said he had never exposed his body to her.
In re-examination, the accused was asked to explain what he thought the word frequently meant, in the context that the accused had given evidence of MM “frequently” staying in his bedroom. The accused said he thought it meant multiple times and said that the amount of times MM slept in his room varied.
The accused confirmed that he had no memory of waking MM up when it was dark but that if he had to wake the children up for school, he assumed he would have to wake them up around 7 – 7.30, maybe even earlier than that.[100]
[100] TT – 70, 23-24.
Prosecution Address
The prosecutor submitted that the real issue concerned whether the Court could accept beyond reasonable doubt that the accused committed two or more sexual acts against MM in the manner she had described. MM’s evidence was the central pillar of the prosecution case.
During her first prescribed interview MM was quietly spoken and clearly found the alleged offending uncomfortable to talk about. The prosecutor accepted that MM was at times defensive, however urged me to have regard to the context and the topic being spoken about at the time MM was answering questions. The prosecutor suggested that the topics are uncomfortable, embarrassing, and sensitive and that MM had remained composed and that her evidence was straightforward throughout.
While MM could not remember certain details, her memory should not be expected to be perfect. MM’s evidence was not overly dramatic, which the prosecutor suggested was a sign that her evidence was not fabricated or made up. The description MM gave, and the demonstrations provided during the pre-trial hearing was, it was suggested, very compelling.
The level of detail MM provided in relation to the specific incidence of the alleged offending was significant, highlighted for example by her evidence that she could describe the pain felt when the accused tried to insert his fingers into her vagina. The prosecutor submitted that MM’s description of pain and how the accused said that it would feel better, had a compelling ring of truth to it.
The prosecutor submitted that the demonstrations the complainant gave could only have been given by someone with actual experiences of a sexual nature. MM had not said anything directly inconsistent throughout the life of the matter.
MM’s use of the phrase “I think” throughout her evidence, was, in the prosecutor’s submission, used only when she was discussing peripheral matters and not the substantive allegations. The prosecutor suggested that MM was sure, using affirmative phrases like “I know” when discussing the charged offending.
In relation to complaint evidence, the prosecutor argued that MM gave a detailed and reasonable explanation as to why she did not raise the abuse with anyone at the time of the offending. That is, that at the time did not feel she could tell anyone because she was scared of her mother and siblings’ opinion of her.
It was conceded that there was differing evidence between MM and RN, with respect to a complaint made closer to the time of the offending. The prosecutor argued that the prosecution does not have to prove beyond reasonable doubt that a witness is accurate and reliable in every respect, but rather, the Court may accept evidence of one witness over the other, even though the Court may find both the witnesses generally both truthful and reliable. In this instance the prosecutor asked me to consider the possibility that RN may be reluctant to speak about an original conversation her daughter had with her, due to RN’s lack of action at the time.
MM acted reasonably, by speaking to her mother when the accused was no longer in her life, particularly given the threats the accused was making against her family.
There was an unquestionable opportunity for the accused to have offended over the charged period. This opportunity was established by all the witnesses including the accused who said that the accused and MM spent time together, often alone together in the accused’s bedroom.
The prosecutor highlighted MM’s evidence that she slept in the accused’s room because the accused would make her sleep in there.
Although the offending might be considered to have been brazen in nature and carried an element of risk, that did not mean the offending did not take place and MM’s lack of compliant would have emboldened the accused. The acts of violence alleged by MM suggest that the accused was asserting control and force and ultimately gave context as to how the accused was able to commit the sexual offences against her.
The prosecutor concluded by submitting that MM’s evidence was compelling, forthright, and candid and that MM did not embellish or exaggerate.[101] The prosecution asked the court to look at MM’s evidence against her age, vulnerability and the subject matter and find that she was a truthful witness.
[101] TT - 90, 24-25.
Defence Address
Defence counsel submitted that this was not a case where there may be a mistake as to what occurred. Here, the offence simply did not happen, and the allegations are a fabrication.
The accused should not be expected to remember something at a completely unimportant time in his life and could not be expected to remember mundane details, such as when it was that people woke up around the house. The accused was, it was suggested, unsophisticated but trying his best to remember details and be a truthful witness.
On the topic of the “I think” evidence given by MM, defence counsel argued that this type of language would be used by an untruthful witness to try and flesh out a lie, as the witness could not be pinned down with respect to questions about it later. It was suggested that at times MM was reconstructing events.
Defence submitted that for the accused to have acted so brazenly when MM had then run to her mother’s bedroom was implausible. Furthermore, it would be illogical for the accused to have walked into the house and on the very first couple of nights sleeping there, think he could sexually offend against one of the children, particularly given that there was no existing relationship between MM and the accused and when no threats were alleged to have been made at that point to keep her silent, with no benefits or enticements given.
Defence counsel highlighted the differences between the evidence given by MM and RN as to MM’s initial complaint and asked me to disregard the prosecutor’s speculation that RN may be deliberately hiding her memory of the initial complaint, particularly as no questions were ever put to RN in that regard. Furthermore, no attention had been paid to the initial complaint during the interviews of MM, with questions focussed on the text MM sent to RN.
It was submitted that the accused against his own interests, described that he was initially sleeping in the lounge room, even when RN had given evidence that he always slept in the bedroom.
Defence counsel highlighted that no one in the house ever heard MM’s screams. Furthermore, MM’s siblings, who were alleged to have been present at the time of some of the alleged offending, had not been called to give evidence.
The accused’s presentation during his record of interview showed that he was completely unaware of the purpose of the interview until the moment he was provided details about the sexual assault allegations by the police.
The accused was described by defence counsel as having given an honest account, so much so that he made admissions that placed him in positions that would amount to opportunity. While the accused could have taken the opportunity to hide behind the evidence given by RN, he did not take it and the accused was clearly motivated to tell the truth.
Analysis
As identified by both counsel, the case brought against the accused is based entirely on the evidence MM gave. Importantly, I must scrutinise her evidence with care.
There has been a delay before the matter has come to trial and I have directed myself that the delay has resulted in a significant forensic disadvantage to the accused. Given the delay, the accused has been unable to test the account given by MM in detail or to call other potential witnesses. There is danger that the memories of witnesses have been distorted. I have taken into account the forensic disadvantages faced by the accused in considering whether or not the prosecution has proved its case beyond reasonable doubt.
While I found MM to be doing her best to give an accurate account of what had occurred when she was around 6 years of age, it was plain that her memory of what had taken place was limited. While there appeared to be little that was inconsistent between the descriptions MM gave about the events, I cannot accept she recounted reliable memories of the circumstances as they existed at the time. While doing her best to provide answers to the questions being asked of her, she was to some degree at least, reconstructing her memories. On occasion MM added details, which while perhaps relating to peripheral matters, were in my view, unlikely to have been a recollection of events so long ago. For example, the number of blankets on the accused’s bed, and the reasons for family being absent at various times.
My regard for MM’s evidence concerning the sexual acts that were performed on her by the accused has been affected by my impression that MM was giving her evidence by reference to her current knowledge of sexual behaviours. While a witness will of course reflect and better understand later what they experienced as a child was in fact sexual in nature, the difficulty here is that I cannot be certain that the memories upon which MM based that reflection were reliable.
In making these observations, I make no criticism of MM, given that she was giving evidence some 5 or 6 years after the events of a time when she was very young and in what she no doubt found very stressful, uncomfortable, and embarrassing circumstances.
It would not be difficult to accept the circumstances that what MM described weighed heavily on her decision not to disclose the accused’s offending until a time when he was no longer in her life, and there may be many reasons why the first complaint that MM said she made to her mother was something that RN did not recall, including that suggested by the prosecutor in her address. In doing so however, I note that the prosecutor was seeking to discredit her own witness and RN had not been asked for her comment on such a suggestion.
It may also be the case that the complaint made to RN was not sufficiently clear for RN to have understood what MM had intended to convey, although I acknowledge that in her evidence on 28 November 2022, MM said she told her mother that the accused had touched her and had pointed to her vagina. It would be surprising for a mother not to have some recollection as to any concern raised by their daughter that involved any sort of touching by someone who had been living at their house and with whom there had not been a long or particularly close association. I also note that by that time, RN was no longer in a relationship with the accused’s brother. I have found that the evidence of MM’s complaint to RN, has not assisted in assessing consistency in MM’s conduct.
There is no doubt that much of what MM said regarding sleeping on the accused’s bed and interacting with him was consistent with the accused’s own evidence and the police interview. Certainly, on both of their accounts, there was ample opportunity for the offending to have occurred as MM alleged.
I have found that it is likely that the accused played a far greater role in looking after MM and her siblings than RN was prepared to acknowledge. RN’s evidence was at odds in several respects with that of MM and the accused. I do however find that when the accused was questioned, he appeared to try to provide answers which gave the impression that his answers were not always based on genuine memory but rather on supposition. In both his interview with police and in his evidence in court, the accused presented as unsophisticated and somewhat guileless. While any benefit in agreeing with the evidence he had heard given by RN, that there was limited interaction between himself and MM would likely appeal to some accused, that did not it seems occur to the accused here. That did, as his counsel submitted, suggest that the accused was genuinely trying to be truthful in his answers.
While offending of the kind alleged does undoubtedly occur in circumstances which would ordinarily be considered too risky, the offending here was very brazen. The accused allegedly offended almost immediately upon his arrival at the house and at least on some occasions, while MM’s family were at home, and sometimes in the presence of her older siblings. RN did not recall anything of concern and MM’s older siblings did not give evidence. RN said she worked school hours, which did not fit with MM’s evidence that at least some of the offending occurred in the early hours of the morning when there was no one in the house. MM said that when she was woken by the accused who was naked, she had run to her mother’s bed. I cannot accept that in those circumstances the accused would be so confident that MM would not make an immediate complaint to her mother in the event he offended against MM again.
My concerns about the accuracy of MM’s recollections could perhaps be explained by the way in which MM was questioned which has left me with uncertainty as to what her position really was regarding some of the events she described. Contrary to the prosecutor’s submissions, MM did not make allegations that involved numerous acts of penetration. The evidence before me regarding any act of penetration is best described as confused. In her interview on 30 September 2021, MM described the accused picking her up like a baby from where she was sleeping in the lounge and being taken to his room where he started to undress her. It was early in the morning and no one else was awake. He pinned her down and punched her legs and tried to put his fingers up in her vagina, but she screamed, and then ‘he never did it again’. She then said that she was pretty sure it was just she and the accused at the house because her mother worked a lot, and she did not know what JH did or where her siblings were. MM said that she was ‘pretty sure’ she told the interviewer when she had screamed. When the interviewer said that she was … “just trying to work out, ‘cos I didn’t realise that he had put his fingers inside you, or he just tried to…” MM challenged the interviewer, saying, “I know, no… ‘cos I remember telling you, I think you wrote it down, but I don’t know, I don’t know”. This challenge and apparent unwillingness to clarify was difficult to reconcile with MM having recounted a genuine memory of the events and caused me considerable disquiet as to the reliability of her evidence.
MM initially said that in relation to this first attempt by the accused to penetrate her vagina, that the accused “as luck would have it” had to leave for work. Later in that interview, MM was unable to say how it was she was at home with the accused and whether he stayed with her for the day. The apparent inconsistencies on this topic were not explored either at the time she gave her initial interview or later in examination, making it difficult to be confident that what was described was reliable.
MM then said the second digital penetration by the accused was ‘successful’ as opposed to her continual reference to the accused ‘trying’ to insert his fingers into her vagina, but there was a paucity of detail given by MM about this event. She did not describe this incident as having ‘hurt’ and the ‘successful’ penetration was not explored in any way, with the event having apparently concluded with MM running out of the room again, and not sleeping in the accused’s room for a week. MM slept in the accused’s room again but said she could not remember what happened. She added ‘I can’t remember in specific detail, but I, I’d say no doubt that he did it when I was asleep, when I would sleep in his room….because I would wake up naked’.
When MM gave evidence on 20 January 2023, she was asked about the occasion she had described to police where the accused had tried to put his fingers into her vagina and had said that it had hurt. She said the accused’s fingers went inside her vagina. She agreed that it was early in the morning, that she was home sick from school and there was no one else in the house. She later said that it was not a clear memory that no one was home at the time. MM was then asked about having described another occasion where she said that the accused made it clear he wanted to put his fingers in her vagina again and that she had said that the accused did not do that successfully. MM agreed that was what she had said previously and that she did not recall any other details but said that it was similar to the first time she had described.
Contrary to the proposition put to MM in her examination in chief, MM had said in her first interview that the accused ‘successfully’ put his finger into her vagina on the second occasion. I accept that MM’s evidence that the accused told her that it would feel better and to trust him, was compelling, however even accepting that it might be inferred that MM had successfully penetrated her vagina on the first occasion as it had hurt, and her answers in cross examination to the effect that the accused had penetrated her vagina, in the end, I have found that on the confused evidence before me, I cannot be satisfied beyond reasonable doubt that the accused had inserted his finger or fingers into her vagina.
The concerns I have identified in relation to the evidence regarding whether there was a successful penetration of MM’s vagina, or the accused had ‘tried’ to do so, have caused me to reflect carefully on MM’s evidence as regards the other offending alleged against the accused and MM’s evidence generally. With respect to the accused “touching her boobs”, MM said that she could not go into specific detail because she could only remember a little part of it. When the accused got home from work, he would pick her up and touch her boobs over her clothes. She said that was all that she could remember. It is difficult, without more, to be satisfied that this behaviour amounted to behaviour that puts the alleged offending into context.
MM said she remembered the accused would make her stroke his penis and she demonstrated how she was made to hold his penis, moving up and down. Her siblings were in the room and it ‘probably wasn’t the first time’. She recalled what the accused was wearing, the clothes she was in at the time and that ‘this time’ it was not for long because she thought they were called for dinner. She said it would happen a lot. The accused would ‘clench’ her body even harder if she tried to stop. She added that she was half asleep and would wake up with her hand going up and down the accused’s penis. She could not remember how the accused’s penis felt.
MM’s evidence of these allegations was somewhat confused and internally inconsistent. My impression overall, was that MM was adding to her description of what had occurred in a fashion that suggested she was perhaps seeking to bolster her story against the accused. The evidence she gave was in direct response to the interviewer having asked MM in relation to the accused touching her boobs, “But you can’t remember actually more detail”.
MM’s description of the uncharged act concerning the horse game was led for a non-propensity purpose as part of the background or context to the charged acts. On the evidence before me, I cannot say that there was anything necessarily sexual about the conduct and the evidence on this topic does not assist in my assessment of the charged offending.
MM said in her evidence on 28 November 2023 that she did not know why it was that she would sleep in the accused’s bedroom, could remember only one occasion when she had woken up naked and could not recall any specific occasions when she had seen the accused naked. There was only one occasion she could recall of the accused touching her boobs. The accused carried her to his bed on only ‘a very few occasions’. She was at the time, not allowed to watch tv. This evidence did not align with the evidence MM had given earlier on these topics.
To be found guilty of the offence of maintaining an unlawful sexual relationship with a child, I must be satisfied beyond reasonable doubt that at least two sexual offences were committed by the accused during the relevant period. I accept that MM could not be expected to recall the details of events that occurred when she was around 6 years of age with precision or in order, and I do not suggest that MM has necessarily lied. However, my concerns that MM was recreating aspects of her recollection not just concerning peripheral matters, lead me to conclude that I cannot be satisfied that MM’s evidence satisfies the very high standard that must be applied to her evidence. I cannot exclude the accused’s denials as a real possibility.
In those circumstances, I find the accused not guilty.
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