R v Huynh - [2017] SADC 49

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HUYNH
Criminal Trial by Judge Alone
[2017] SADC 49
Reasons for the Verdict of His Honour Judge Muscat
11 May 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Persistent Sexual Exploitation of a Child. Admissibility of the child's recorded police interviews. Capacity of child to give evidence.
Verdict: Not Guilty
Criminal Law Consolidation Act 1935 s 50; Evidence Act 1929 ss 9, 13BA, 34CA, 34CB, 34D, 34LA, 34M; Summary Offences Act 1953 Division 3 Part 17; Statutes Amendment (Vulnerable Witnesses) Act 2015; Statutes Amendment (Attorney-General's Portfolio) Bill 2016; Hansard, referred to.
R v Seigneur (Question of Law Reserved No 1 of 2009) (2009) 103 SASR 207; R v French (2012) 114 SASR 287; R v Lomman (2014) 119 SASR 463; R v J, AP (2012) 113 SASR 529; R v P, BR [2004] SASC 323; R v Starrett (2002) 82 SASR 115; R v Climas (Question of Law Reserved) (1999) 205 LSJS 139, applied.
R v Hamra [2016] SASCFC 130; R v Johnson [2015] SASCFC 170, discussed.
R v Cheng [2015] SASCFC 189; R v J, JA (2009) 105 SASR 563; R v Byerley (2010) 107 SASR 517; R v Douglass [2015] SASCFC 66; R v Haak (2012) 112 SASR 315; R v Kiely [2016] SASCFC 151; Project Blue Sky Inc & Others v ABC (1998) 194 CLR 355; Construction of Statutes (2nd Ed) 1983 (Driedger); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Owen v South Australia (1996) 66 SASR 512; Nemer v Holloway (2003) 87 SASR 147, considered.

R v HUYNH
[2017] SADC 49
Introduction

Phuong Huynh (‘the defendant’) is charged on an Information dated 7 September 2015 with the following offence:
Statement of Offence
Persistent Sexual Exploitation of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Phuong Huynh between the 1st day of July 2011 and the 17th day of June 2014 at St Marys and other places, over a period of not less than three days, committed more than one act of sexual exploitation of K, a person under the age of 17 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
a)Kissing K on the mouth, cheeks and neck on more than one occasion;
b)Touching K’s arms, thighs and bottom on more than one occasion;
c)Touching K on the outside of her vagina on more than one occasion;
d)Taking a naked photograph of K on at least one occasion;
e)Showing K pornographic material on one occasion;
f)Inserting his finger into K’s anus on at least one occasion;
g)Licking K’s anus on at least one occasion; and
h)Inserting his penis into K’s anus on at least two occasions.
The defendant pleaded not guilty and elected to be tried by judge alone. He is presumed innocent of the charge he faces. The prosecution bears the onus of proving the charge against him beyond a reasonable doubt. It is not for the defendant to prove his innocence or disprove the prosecution case.
Admission of Police Interviews of K
K was born on 21 September 2004. She was therefore aged between 6 and 9 years during the period over which the acts of sexual exploitation, as particularised, were alleged to have occurred.
After disclosing some of the abuse to her mother on 17 June 2014, K was interviewed by police officers on 1 July and again on 28 July 2014, during which she disclosed the sexual abuse which later formed the basis of the particulars of the charge. At the time K was interviewed she was 9 years of age.
Following a pre-trial application on 27 April 2016, I permitted the prosecution to lead evidence from the police officers who interviewed K, as her out of court statements, pursuant to section 34CA of the Evidence Act 1929. The trial was then adjourned awaiting the decision of the Court of Criminal Appeal in R v Hamra[1] which would bear upon the offence of persistent sexual exploitation after certain observations of that offence were made in R v Johnson.[2]
[1] [2016] SASCFC 130. The judgment was delivered on 8 December 2016 and is now subject to a High Court appeal to be heard in June 2017.
[2] [2015] SASCFC 170.
A new statutory regime for admitting recorded evidence of vulnerable witnesses
On 1 July 2016 significant amendments to the Evidence Act and the Summary Offences Act 1953 came into force in South Australia. Section 34CA of the Evidence Act was repealed and replaced with s 34LA. Section 13BA was inserted into the Act which permits a court to admit either an audio-visual recording of a witness’s evidence taken at a pre-trial special hearing conducted pursuant to s 12AB or an investigative interview between a vulnerable witness and a prescribed person conducted pursuant to Division 3 of Part 17 of the Summary Offences Act, as the evidence of the vulnerable witness, provided certain conditions are satisfied, which are set out in s 13BA(3).
This trial concerned two investigative interviews of K conducted by police officers, which, although conducted before the introduction of the amendments, were captured by the transitional provisions.
Section 13BA states:
Admissibility of recorded evidence by certain witnesses in certain criminal proceedings
(1)Subject to this section, the court may, in the trial of a charge of an offence order that the evidence of a witness be admitted in the form of an audio visual record.
(2)     An application for an order under subsection (1) must—
(a)     be made in writing by the party wishing to have the audio visual record of the evidence admitted in the trial; and
(b)     be filed in the court; and
(c)     within 14 days of being filed in the court—be served on the other party to the proceedings (the respondent); and
(d)     otherwise be made in accordance with the rules of court.
(3)An audio visual record of the evidence of a witness may be admitted under this section if—
(a)     the recording has been made pursuant to—
(i)section 12AB; or
(ii)Part 17 Division 3 of the Summary Offences Act 1953; and
(b)     the court is satisfied as to the witness's capacity to give sworn or unsworn evidence at the time the recording was made; and
(c)     the court is satisfied that the respondent has been given a reasonable opportunity to view the recording; and
(d)     during the course of the trial, the witness is available, if required, for further examination, cross‑examination or re‑examination.
(4)The court's discretion to exclude evidence is not affected by subsection (3) and the court may—
(a)     rule as inadmissible the whole or any part of the recording; or
(b)     before admitting the recording, order that it be edited so as to exclude evidence that is inadmissible for any reason.
(5)Despite subsection (3)(d), the witness cannot be further examined, cross‑examined or re‑examined on the evidence admitted in the trial without the permission of the court which may only be given, on application by a party to the proceedings—
(a)     if the court is satisfied that a party to the proceedings has, since the audio visual record, become aware of a matter of which the party could not reasonably have been aware at the time the record was made; or
(b)     if the witness gives evidence in the trial apart from or in addition to evidence admitted under this section in the form of an audio visual record and the court is satisfied that it is in the interests of justice that the witness be further examined, cross‑examined or re‑examined; or
(c)     if the court is satisfied that it is otherwise in the interests of justice to permit the witness to be further examined, cross‑examined or re‑examined.
(6)If a court admits evidence in the form of an audio visual record under this section, the judge must—
(a)     explain to the jury that the law allows the court to admit evidence in this form; and
(b)     warn the jury—
(i)not to draw from the admission of evidence in that form any inference adverse to the defendant; and
(ii)not to allow the admission of evidence in that form to influence the weight to be given to the evidence.
At the same time s 13BA came into operation, Division 3 of Part 17 of the Summary Offences Act came into force, which governs the recording of interviews of certain vulnerable witnesses, including children under the age of 14 years and those with a disability.
Sections 74EB and EC of the Summary Offences Act govern the obligation to record such interviews and the admissibility of evidence of the interview.
Regulations contained in the Summary Offences Regulation 2016 make provision for persons authorised to be prescribed interviewers, detail what information must be included in a recorded interview and set the manner in which the interview must be conducted in respect of investigative interviews made pursuant to the Summary Offences Act.
Division 3 of Part 17 of the Summary Offences Act provides:
Division 3—Recording interviews with certain vulnerable witnesses
74EA—Application and interpretation
(1)This Division applies to a person being interviewed as a potential witness who is—
(a)        a child of or under the age of 14 years; or
(b)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.
(2)        In this Division—
serious offence against the person means—
(a)        murder or attempted murder; or
(b)        manslaughter or attempted manslaughter; or
(c)        a sexual offence; or
(d)        —
(ai)an offence of criminal neglect under section 14 of the Criminal Law Consolidation Act 1935; or
(i)an offence of stalking under section 19AA of the Criminal Law Consolidation Act 1935; or
(ii)an offence of causing serious harm under section 23 of the Criminal Law Consolidation Act 1935; or
(iia)an offence of causing harm under section 24 of the Criminal Law Consolidation Act 1935; or
(iii)an offence involving an unlawful threat to kill or   endanger life; or
(iv)       an offence involving abduction; or
(iv)       an offence involving blackmail; or
(vi)an attempt to commit, or assault with intent to commit, any of the offences in the preceding subparagraphs; or
(e)an offence of contravening or failing to comply with an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009; or
(f)an offence of contravening or failing to comply with a restraining order under the Summary Procedure Act 1921;
sexual offence means—
(a)        rape; or
(b)        compelled sexual manipulation; or
(c)        indecent assault; or
(d)any offence involving unlawful sexual intercourse or an act of gross indecency; or
(e)        incest; or
(f)any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or
(g)an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or
(h)any attempt to commit, or assault with intent to commit, any of the foregoing offences.
74EB—Obligation to record interviews with certain vulnerable witnesses
If a person to whom this Division applies is to be interviewed as a potential witness in relation to the investigation of a serious offence against the person, the interview must be conducted as follows:
(a)an audio visual recording of the interview must be made in accordance with the regulations;
(b)        the interview must be conducted by a prescribed interviewer;
(c)the manner in which the interview is conducted must meet the prescribed requirements to the prescribed extent.
74EC—Admissibility of evidence of interview
(1)In proceedings for a charge of a serious offence against the person, evidence of an interview between a prescribed person and a person to whom this Division applies is inadmissible unless—
(a)the prescribed person complied with this Division in relation to the conduct and recording of the interview; or
(b)the court is satisfied that the interests of justice require the admission of the evidence despite the prescribed person's non‑compliance.
(2)If, in the course of a trial by jury, the court admits evidence of an interview under subsection (1)(b), the court must—
(a)draw the jury's attention to the non‑compliance by the prescribed person; and
(b)give an appropriate warning in view of the non‑compliance,
unless the court is of the opinion that the non‑compliance was trivial.
The relevant regulations under the Summary Offences Regulations 2016 dealing with interviewing vulnerable witnesses are regulations 20-24 inclusive. I set out the regulations that have particular application to these proceedings:
20—Prescribed interviewers and prescribed persons
(1)For the purposes of section 74EB(b) of the Act, a prescribed interviewer is—
(a)a police officer or Public Service employee, or a police officer or Public Service employee of a class, authorised by the Commissioner or the Minister by written notice to conduct interviews with vulnerable witnesses; or
(b)a person, or a person of a class, authorised under a law of the Commonwealth or of another State or a Territory to conduct interviews with vulnerable witnesses; or
(c)a person who has successfully completed a training course in conducting interviews with vulnerable witnesses—
(i) approved by the Commissioner; or
(ii) approved by the Minister,
(and a prescribed interviewer is, for the purposes of section 74EC of the Act, a prescribed person).

(2) In this regulation—
Minister means the Minister for Health.
21—Prescribed companions
For the purposes of providing emotional support to a vulnerable witness while the witness is being interviewed, a person, or a person of any of the following classes, is prescribed:
(a)a parent, guardian, spouse, domestic partner or any other relative of the witness;
(b)a friend or carer of the witness;
(c)any other person approved for the purposes of the interview with the witness by the prescribed interviewer who is to conduct the interview;
(d)a person of a class approved by the Commissioner for the purposes of this regulation.

22—Prescribed communication assistants and communication devices
(1)…
(2)…
23—Interviewing vulnerable witnesses
(1)For the purposes of section 74EB(a) of the Act—
(a)the following information must be included in an audio visual recording of an interview with a vulnerable witness:
(i)the date on which the recording was made;
(ii)the identity of all persons who were present at any time during the interview;
(iii)details of any breaks in the interview, including the time the break commenced and concluded and (so far as is practicable) the reason for the break; and

(b)if the vulnerable witness is accompanied during the interview by—
(i)a prescribed companion; or
(ii)a prescribed communication assistant,

the witness, the companion and the communication assistant (as the case may be) must be visible at all times in the recording; and
(c)if the vulnerable witness is provided with a prescribed communication device for the purpose of providing communication assistance during the interview, the witness and the communication device must be visible at all times in the recording.

(2)…
(3)…
(4)…
(5)…
(6)…
(7) For the purposes of section 74EB(c), the manner in which an interview with a vulnerable witness is conducted will meet the prescribed requirements if—
(a)so far as is practicable, any statement made by the vulnerable witness is not elicited by the use of leading questions; and
(b)the vulnerable witness appears to understand that he or she must tell the truth; and
(c)the interview is conducted in accordance with this regulation.

24—Access to audio visual record for training and assessment
…

The amendments to the Evidence Act and the Summary Offences Act detailed above were both contained in the Statutes Amendment (Vulnerable Witnesses) Act 2015. In introducing the Bill the Attorney-General stated:
The Bill is an important measure to improve the position of vulnerable witnesses, namely children and persons with a disability within the criminal justice system both in and out of court.
The Bill preserves an accused person’s right to a fair trial whilst recognising that the South Australian Criminal Justice system needs to be more accessible and responsive to the needs and interests of victims and witnesses who are children and persons with a disability.[3]
[3] Hansard 6 May 2015.
The Bill was passed on 2 July 2015 and the Act came into operation, as previously stated, on 1 July 2016.
The transitional provision of the amending Act initially stated that the amendments made to the Evidence Act were intended to apply so as to include proceedings for a sexual offence commenced but not determined before the commencement of the clause, such as to make the new provisions apply to proceedings initiated in the court of trial before the commencement date of 1 July 2016.[4]
[4] No doubt so as to clarify the operation of the provisions following R v Seigneur (Question of Law Reserved No 1 of 2009) (2009) 103 SASR 207.
However, the Statutes Amendment (Vulnerable Witnesses) Act 2015 was further amended by the Statutes Amendment (Attorney-General’s Portfolio) Act 2016 which amended the transitional provision in the Statutes Amendment (Vulnerable Witnesses) Act to delete sub-clause (2) and substitute it with the following sub-clause:
(2)An audio visual record of the statement of a witness to whom this sub-clause applies made to an investigating or other authority before the commencement of section 10 of this Act as part of a formal interview process in relation to the investigation of an alleged offence may, after the commencement of that section, be admitted under s 13BA of the Evidence Act 1929 as evidence in the trial of a charge of the offence as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act 1953 in accordance with the requirements of that Division.
Note –
Section 10 of this Act inserts s 13BA into the Evidence Act 1929.
(3)     Sub-clause (2) applies –
(a)     to a witness who is –
(i)     a child of or under the age of 14 years;
(ii)a person with a disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions; and
(b) despite s 34LA(2)(c) of the Evidence Act 1929.
That Act was assented to on 16 June 2016 and the amendment to the transitional provision commenced on 1 July 2016.
The trial recommenced on 27 February 2017 when the prosecution made an application to lead the police interviews of K pursuant to section 13BA of the Evidence Act, on the basis that the recordings were deemed to have complied with Division 3 of Part 17 of the Summary Offences Act, through the operation of the transitional provision of the Statutes Amendment (Vulnerable Witnesses) Act.
The prosecution submitted that the amended transitional provision has the effect of permitting the court to admit audio-visual interviews made to an investigating authority (in this case the police) before the commencement of the amending Act under s 13BA of the Evidence Act as evidence in the trial of the charge faced by the defendant, as if the recording had been made pursuant to Division 3 of Part 17 of the Summary Offences Act in accordance with the requirements of that Division.

I accept the prosecution’s contention. It accords with the plain and unambiguous words of the sub-clause and mirrors Parliament’s intention as evidenced by what the Attorney-General stated when introducing the Bill:
The Bill clarifies the transition arrangements for the commencement of Statutes Amendment (Vulnerable Witnesses) Act 2015 in respect of all offences and it especially clearly provides for the continued admissibility and use of the audio-visual interviews conducted with vulnerable victims of sexual offences under the old s 34CA of the Evidence Act 1929 after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation. The Bill makes it clear that these interviews remain admissible after the Statutes Amendment (Vulnerable Witnesses) Act 2015 comes into operation and will be subject to the new statutory criteria, and admissibility will be at the discretion of the court.[5]
[5] Hansard, 24 February 2016.
In dealing with the prosecution’s application I determined that the pre-conditions to admissibility of the interviews, as set out in s 13BA(3) of the Evidence Act, were satisfied based on the following reasons:
a.The recordings, although made before the enactment of the new legislative provisions for the admission of audio-visual recordings of a vulnerable witness, are deemed compliant with Division 3 of Part 17 of the Summary Offences Act, through the operation of the amended transitional provision.
b.I was not satisfied that K was capable of giving sworn evidence at the time the recordings were made. However, I was satisfied that K was capable of giving unsworn evidence when the recordings were made. I will address my reasons for this finding later.
c.I was satisfied that the defendant had been given a reasonable opportunity to view the recordings.
d.K was available during the course of the trial for further examination-in-chief, cross-examination and re-examination. I granted permission to the prosecution and defence to conduct further examination-in-chief, cross-examination and re-examination, as I was satisfied it was in the interests of justice to do so pursuant to s13BA (5)(b).
K’s capacity to give sworn or unsworn evidence at the time she was being interviewed
An issue arose as to K’s capacity to give sworn or unsworn evidence at the time she was interviewed by the police. It was not possible, almost three years after the interviews were conducted, to conduct an inquiry in the usual way under s 9 of the Evidence Act to determine K’s capacity to give evidence.[6] The court must therefore determine the question based on the recorded interviews themselves.
[6] For example by my questioning K directly to determine her level of understanding of the obligation entailed in giving sworn evidence.
Despite the presumption contained in s 9(1) of the Evidence Act that K is capable of giving sworn evidence, I determined, given her age at the time she was being interviewed, her level of comprehension of the questions being asked of her and her presentation during each police interview, that she did not have a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence as discussed in various authorities, including; R v French[7], R v Lomman[8], R v J, AP[9], R v P, BR[10], R v Starrett[11] and R v Climas (Question of Law Reserved)[12], and therefore the presumption contained within s 9(1) was rebutted.
[7] (2012) 114 SASR 287.
[8] (2014) 119 SASR 463.
[9] (2012) 113 SASR 529.
[10] [2004] SASC 323.
[11] (2002) 82 SASR 115.
[12] (1999) 205 LSJS 139.
I acknowledge the difficulty the Court was faced with in determining this issue based solely on viewing the police interviews conducted at an earlier point in time, and that different minds might arrive at different conclusions as to a vulnerable witness’s capacity to give sworn evidence at that point in time. In this respect much depends upon the extent and detail of the questioning by the interviewing officers to assist in a determination of this important issue, which was lacking in both interviews with K.
I was satisfied, however, that whilst K was not then capable of giving sworn evidence, she did have the capacity to give unsworn evidence at the time she was interviewed. I based this finding on her demonstrated understanding of the difference between telling the truth and telling a lie as elicited by the interviewing police officer, and her general level of comprehension of the purpose and importance of the interviews being conducted with her.
The prosecution case consisted principally of the two recorded interviews of K, admitted pursuant to s 13BA. Insofar as it might be necessary to do so in a trial by judge alone, I have directed myself in accordance with s 13BA (6).
K was further examined by the prosecutor and then cross-examined by defence counsel, after permission was granted by the Court pursuant to s 13BA (5) to do so on topics identified by counsel, as I was satisfied that it was in the interests of justice to do so.[13] Permission was also granted to re-examine K on identified topics for the same reason.
[13] The repealed s 34CA limited the opportunity to cross-examine a protected person: s 34CA(2). However, under s 13BA(5) a wider discretion is now provided to a court to permit cross-examination of a vulnerable witness, as observed by Kourakis CJ in R v Kiely [2016] SASCFC 151 at [19].
By the time K was called to give evidence at trial she was 12 years of age. I formed the view that there was nothing to suggest that K was incapable of giving sworn evidence. Moreover, counsel for the defendant did not submit otherwise.
Assessing the weight to be accorded to the recorded interviews admitted pursuant to s 13BA
Both counsel initially submitted that in considering the weight that should be attached to the recorded interviews admitted pursuant to s 13BA, the Court is required to apply s 34D of the Evidence Act, which provides:
34D—Weight to be attached to evidence
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2)For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
In support of this contention counsel relied upon R v Cheng.[14] That decision concerned an out of court statement made by a protected witness to a police officer being admitted into evidence pursuant to the now repealed s 34CA of the Evidence Act. There is little doubt about the correctness of that decision as it applied to statements admitted pursuant to the former s 34CA.[15]
[14] [2015] SASCFC 189; (2015-2016) 297 LSJS 363.
[15] See also R v J, JA (2009) 105 SASR 563.
I pause to observe that while a judge was obliged to direct a jury in terms of s 34D, its utility was diminished because the accuracy, contemporaneity and motive of the witness (invariably an interviewing police officer) was never in question, given that the statement took the form of a video recorded investigative interview.[16]
[16] Cf R v Cheng op cit per Sulan and Peek JJ.
Out of court statements by certain alleged victims of sexual offences are now governed by s 34LA of the Evidence Act, which provides:
34LA—Admissibility of evidence of out of court statements by certain alleged victims of sexual offences
(1)     In proceedings in which a person is charged with a sexual offence, a statement not
made in oral evidence in the proceedings (an out of court statement) is admissible as evidence of any matter stated if—
(a)oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of that matter; and
(b)the person who made the out of court statement is identified to the court's satisfaction; and
(c)        each of the conditions specified in subsection (2) is satisfied.
(2)     The conditions are as follows:
(a)the person who made the out of court statement is the alleged victim of the sexual offence;
(b)the person will not be called as a witness in the proceedings because the judge is satisfied that, at the time the person made the out of court statement, the person was—
(i)        a young child; or
(ii)a person with a disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions;
(c)the out of court statement was not made by the person to an investigating or other authority as part of a formal interview process conducted in relation to the alleged offence;
(d)after considering the out of court statement, the circumstances in which it was made and any other relevant factor, the judge is of the opinion that the evidence has sufficient probative value to justify its admission.
(3)Subsection (2)(b) applies regardless of the age of the person or the person's capacity at the time the judge is considering whether to admit the evidence of the out of court statement in the proceedings.
(4)Evidence of an out of court statement admitted under this section may be used to prove the truth of the facts asserted in the statement.
(5)If evidence of an out of court statement is admitted under this section, the judge must warn the jury to treat the evidence of the out of court statement with particular care because it has not been tested by way of examination or cross‑examination of the alleged victim.
Although some similarities still exist between s 34LA and the now repealed s 34CA, in that whilst the statement may still be used to prove the truth of the facts asserted, the maker of the statement under s 34LA is no longer required to be available to be called as a witness in the proceedings, and the statement made

is admissible regardless of the capacity of the maker at the time the statement was made.[17]
[17] Section 34CA required the statement of the protected person to have sufficient probative value to justify its admission, be available to be called as a witness and have the capacity to give evidence. See R v J, JA (2009) 105 SASR 563, R v Byerley (2010) 107 SASR 517 and R v Kiely [2016] SASCFC 151.
In introducing the significant amendments to the Evidence Act the Attorney General explained the reasons for repealing s 34CA and replacing it with s 34LA in the following terms:[18]
Section 34CA has a long and complicated history…The present section has been the subject of varied interpretation by the courts since its commencement and regular judicial calls for legislative reform.
Section 34CA has proved difficult in its application. The Statutes Amendment (Vulnerable Witnesses) Bill addresses some of the difficulties that have arisen in its application by providing a new regime dedicated to the admission of pre-recorded investigative interviews of certain vulnerable witnesses, as well as provisions to admit recorded evidence of that class of witness taken during a pre-trial special hearing. In light of the inclusion of these schemes in the Bill and the difficulties in application of the section that have been raised by the Court of Criminal Appeal on several occasions, the Government has reconsidered the previous approach to s 34CA of the Act.
The genesis and true purpose of the original s 34CA that emerged from the 1986 Task Force was to admit an out of court statement as an exception to the hearsay rule in relation to child sexual abuse victims when the time, content and circumstances of the statement provide sufficient safeguards of reliability and trustworthiness. The new s34LA achieves this purpose. Unlike the previous incarnations of s 34CA, it does not require that the maker of the out of court statement be available for cross-examination.
Section 34LA will apply only where the maker of the statement is not to be called as a witness. It provides that a statement that was made out of court by an alleged victim of a sexual offence who, at the time the statement was made, was a young child of or under the age of 14 years or a person with a disability that adversely affects their capacity to give a coherent account of their experiences or to respond rationally to questions, is admissible to prove the truth of the facts asserted in the statement. The section will operate to make statements admissible regardless of the age of the person or the person’s capacity to give evidence at the time a court is considering the admission of the statement. This is to take into account the scenario where, for example, a young child makes a contemporaneous complaint of sexual interference, and for whatever reason, there is a delay in the matter proceeding to trial. At the time of trial, the young child no longer falls within that definition, however due to the passage of time or for other reasons he or she may have no memory or ability to recall or repeat the relevant statement.
The effect of the new section is that a complaint, allegation or account of sexual abuse that is given by this class of witness can be presented to a court by the person to whom the statement is made, or a person who was present when it was made. The vulnerable witness is not required to give evidence about the alleged offending or to be available for cross-examination. The section is a very limited exception to the hearsay rule. If the vulnerable witness is to be called as a witness, s 34LA has no application – however the statement may be admissible as an initial complaint pursuant to s 34M of the Evidence Act 1929. The section does not operate to make admissible a formal investigative interview of a vulnerable witness with a police officer or psychologist. There are other provisions in the Bill to deal with those investigative interviews.
The section is intended to apply to a very rare class of case, where the young child whose cognitive development is not such that they could give evidence, or the person with a disability who similarly does not have the capacity to give evidence, says something out of court, that amounts to an allegation of sexual offending. The timing, content and circumstances in which the statement is made bespeaks its reliability. The making of the statement may, for example, be accompanied by sexualised conduct by the vulnerable witness. There may be accompanying evidence that supports the content of the statement – such as eye-witness, medical or forensic evidence like DNA evidence. In this rare class of case, the timing, content and circumstances in which the statement is made can be adequately tested by examining the person to whom the statement was made or the person who witnessed the statement being made. Issues of competency of the maker of the statement under s 9 of the Evidence Act 1929 do not arise – it being assumed in s 34LA(1)(a) that the oral evidence given in the proceedings by the person who made the out of court statement would be admissible as evidence of the matter.
[18] Hansard 6 May 2015.
I consider that s 34D has no application to recorded interviews of witnesses admitted pursuant to s 13BA. The language of s 13BA is very different to the now repealed s 34CA.
Section 34CA (and now s 34LA) concern statements made by protected witnesses (or a young child or a person with a disability) and as such are directly governed by s 34D which specifically concerns such statements. This is to be contrasted with the language of s 13BA, which refers to the audio visual recording of certain witnesses as the evidence of the witness, whether the recording has been made pursuant to s 12AB (pre-trial special hearing) or Division 3 of Part 17 of the Summary Offences Act.
This was an important point of distinction made clear in R v Cheng,[19] R v J, AP[20] and R v J, JA[21] where the Court of Criminal Appeal held that s 34CA was dealing with the admission of out of court statements made by a protected witness, evidence of which was given by the person to whom the statement was made and as such was not the evidence of the protected witness but of the person to whom the statement was made.[22]
[19] [2015] SASCFC 189.
[20] (2012) 113 SASR 529.
[21] (2009) 105 SASR 563.
[22]Cf R v Douglass [2015] SASCFC 66, R v Haak (2012) 112 SASR 315, R v J, AP (2013) 118 SASR 150 per Kourakis CJ, and R v Cheng op cit per Stanley J, all of which treated a child’s out of court statement, admitted pursuant to s 34CA, as the child’s evidence-in-chief for the purposes of the Evidence Act.
Section 34D(2) distinguishes between statements rendered admissible by the Evidence Act and evidence. Accordingly, once an interview admitted under s 13BA is treated as evidence, s 34D appears not to be applicable on its own wording.
Furthermore, it is difficult to reconcile s 13BA(6)(b)(ii) with s 34D. This is because s 13BA(6)(b)(ii) requires a warning to the jury that the admission of evidence in the form of the recordings should not influence the weight the jury is to give to the evidence in that form, whereas, s 34D explicitly requires estimating the weight to be attached to the evidence rendered admissible under the Act.
The treatment of evidence admitted pursuant to s 13BA
The language which Parliament has used in s 13BA is very specific and unambiguous and to be considered in its statutory context.[23]
[23] Applying the literal rule of statutory interpretation in determining Parliament’s intention.
In my view an audio visual recording of a vulnerable witness’s investigative interview now forms the basis of that witness’s evidence–in-chief for the purposes of the Evidence Act.
Furthermore, this construction accords with the clear legislative intent[24] behind the introduction of the important amendments to the Evidence Act in 2015.[25]
[24] Applying the purposive rule of statutory interpretation to adopt a meaning consistent with the purpose of the legislation: Project Blue Sky Inc & Others v ABC (1998) 194 CLR 355 at 381.
[25] Extrinsic material, such as Parliamentary speeches, can be utilised to assist in the construction of legislation by informing the court of the context and statutory purpose of the words employed by the legislature. The context includes the existing state of the law and the mischief which one may discern the statute was intended to remedy: K-Generation Pty Ltd v Liquor LicensingCourt (2009) 237 CLR 501 per French CJ. See also Owen v South Australia (1996) 66 SASR 512 per Cox J and Nemer v Holloway (2003) 87 SASR 147 at 166.
The amendments to the Evidence Act and the Summary Offences Act were both contained in the Statutes Amendment (Vulnerable Witnesses) Bill 2015. In introducing the Bill the Attorney-General stated that the provisions:[26]
… [P]rovide for the admission of audio visual records of interviews as the evidence of victims or witnesses who are children aged of or under 14 years or have a disability that adversely affects their capacity to give evidence in cases involving a sexual or violence offence, and to regulate how those interviews are conducted.
The Bill inserts Part 17 Division 3 into the Summary Offences Act 1953 that provides that a statement of a witness who is a young child aged of or under 14 years of age, or has a disability that adversely affects the person’s capacity to give a coherent account of the person’s experiences or to respond rationally to questions, is to be taken by way of investigative interview and for an audio visual record of that interview to be made.
The Bill provides in s 13BA of the Evidence Act 1929 that the audio visual record of an investigative interview, along with audio visual records of pre-trial special hearings made pursuant to s 12AB that is inserted into the Evidence Act 1929 by the Bill, can be admitted as the evidence of the witness in a trial. The Bill provides that the audio visual record of the investigative interview can be admitted into evidence on application of either party to the proceeding. A pre-condition to the admissibility of this evidence is the availability of the witness during trial, if required, for further examination, cross-examination or re-examination – however any further questioning of a witness can only occur with the leave of the court. This will prevent a vulnerable witness being exposed to irrelevant, unnecessary or inappropriate questioning.
…
The Bill does not seek to preclude the use of examination-in-chief by counsel at trial as there will invariably be scenarios where issues or points will need to be clarified, explained or developed beyond the account provided on the video interview. However, it is not contemplated that such questioning should simply allow the witness to repeat the account as provided in the audio visual interview. It is anticipated that the investigative interview will provide a complete and accurate account at the outset of the investigation into the matter. Skilled examination-in-chief may be the only effective way to present the entire prosecution case if an account in an audio visual interview is flawed or plainly inadequate.
Specific legislative provision is overdue in South Australia to regulate and provide for the use at trial of the pre-recorded interviews with a vulnerable witness. Any preference for ‘live’ evidence and blanket opposition to any use of pre-recorded evidence as a substitute for live testimony is outdated and does not have regard to research that has been undertaken in the field. Research does not support any view claimed of higher acquittals.
…
… The Bill amends s 9 to provide that it has no application to statements made out of court that may be admitted as evidence in proceedings as an exception to the hearsay rule. Section 9 will still apply to an audio visual record of an investigative interview or pre-trial special hearing admitted pursuant to s 13BA of the Bill as the witness’s evidence. In that scenario, it is entirely up to the court how it will determine the witness’s competence. [Emphasis added]
[26] Hansard, 6 May 2015.

A contrary argument was initially raised, but ultimately not pursued, by counsel, who referred to s 9(6) of the Evidence Act, which provides:
(6) Subject to this Act, this section does not apply to a statement made outside of a court admitted as evidence in any proceedings under an exception to the rule against hearsay at common law or under this Act.
Given that the subsection begins with it is subject to the balance of the Act, hence it is to be read as being subject to s 13BA. Moreover, where s 9(6) refers to a statement made outside of a court as an exception to the hearsay rule, it is, in my view, referring to statements pursuant to s 34LA, which governs the admissibility of out of court statements made by certain alleged victims of sexual offences.[27] This is to be contrasted with the language of s 13BA(1), which renders a recording of the evidence of a witness admissible whether recorded pursuant to s 12AB of the Evidence Act or Division 3 of Part 17 of the Summary Offences Act. As I have already observed, the second reading speech in relation to the introduction of ss 13BA and 34LA makes Parliament’s intentions clear.
[27] So much is clear from the second reading speech of the Attorney-General reproduced at [32].
In summary, when ‘the words of the section are read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament’[28], the meaning becomes clear.
[28] Construction of Statutes (2^nd Edition) (1983).
Judicial warning regarding unsworn evidence
As I am of the view that the recorded audio-visual interviews of K, admitted pursuant to s 13BA, are to be treated as her evidence, then a consideration of s 9 of the Evidence Act becomes necessary. In this respect, as I determined before the trial commenced that at the time K was interviewed she did not have sufficient understanding of the obligation entailed in giving sworn evidence, but did have the capacity to give unsworn evidence,[29] then the requirements of s 9(4) are enlivened.
[29] For the reasons discussed at [23]-[26].
Section 9(4) states:
9—Unsworn evidence
(4)If unsworn evidence is given under this section in a criminal trial, the judge—
(a)must explain to the jury the reason the evidence is unsworn; and
(b)may, and if a party so requests must, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
Defence counsel requested that I warn myself pursuant to s 9(4)(b) of the need for caution in determining whether to accept the evidence of K (admitted pursuant to s 13BA) and the weight to be given to it and I indicate that I have done so.
Persistent sexual exploitation of a child
Section 50 of the Criminal Law Consolidation Act 1935 creates the offence of persistent sexual exploitation of a child and relevantly provides:
50—Persistent sexual exploitation of a child
(1)An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.
Maximum penalty: Imprisonment for life.
(2)For the purposes of this section, a person commits an act of sexual exploitation of a child if the person commits an act in relation to the child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
(3)[not relevant]
(4)Despite any other Act or rule of law, the following provisions apply in relation to the charging of a person on an information for an offence against this section:
(a)subject to this subsection, the information must allege with sufficient particularity—
(i)the period during which the acts of sexual exploitation allegedly occurred; and
(ii)the alleged conduct comprising the acts of sexual exploitation;
(b)the information must allege a course of conduct consisting of acts of sexual exploitation but need not—
(i)allege particulars of each act with the degree of particularity that would be required if the act were charged as an offence under a different section of this Act; or
(ii)identify particular acts of sexual exploitation or the occasions on which, places at which or order in which acts of sexual exploitation occurred;
(c)the person may, on the same information, be charged with other offences, provided that any sexual offence allegedly committed by the person—
(i)in relation to the child who is allegedly the subject of the offence against this section; and
(ii)during the period during which the person is alleged to have committed the offence against this section,
must be charged in the alternative.
(5)[not relevant]
(6)[not relevant]
(7)In this section—
prescribed age, in relation to a child, means—
(a)[not relevant];
(b)17 years;
sexual offence means—
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
(8) [not relevant]
A defendant is guilty of the offence of persistent sexual exploitation of a child if, over a period of not less than three days, the defendant commits more than one act of sexual exploitation of a child under the age of 17 years.
The particulars of the various acts of sexual exploitation are alleged in the charge as having taken place between 1 July 2011 and 17 June 2014 at K’s home, as well as in the defendant’s vehicle and in his refurbished bus.
The offence of persistent sexual exploitation contains four elements, each of which must be proved by the prosecution beyond reasonable doubt, namely:
1.At the time of the alleged offending the defendant was an adult. This is not in dispute.
2.The defendant committed at least two acts of sexual exploitation against K.
·       A person commits an act of sexual exploitation if they commit a sexual offence.
·       The prosecution has alleged that the defendant committed a variety of sexual offences against K, as set out in the particulars. The acts of sexual exploitation that the prosecution allege the defendant to have committed are indecent assault, by kissing K on the mouth, cheeks and neck and touching her on the arms, thigh, bottom and vagina and licking her anus; producing child pornography, by taking naked photographs of K on at least one occasion; committing an act of gross indecency by showing K pornographic material on one occasion; and unlawful sexual intercourse in the form of digital/anal intercourse and penile/anal intercourse of K.
3.The prosecution must prove that the defendant committed at least two acts of sexual exploitation. In this respect, it need only prove that the defendant committed two or more of any combination of the proved sexual offences.
·       As Kourakis CJ held in R v Hamra[30], neither the elements of the offence or its particularisation, requires the occasion on which each act of sexual exploitation was committed to be identified in a way which distinguishes it from other acts of sexual exploitation.[31]
·       Plainly, the acts of sexual exploitation may consist of both those acts specifically detailed by K and those where such particularity could not be given by her.
·       That said, the inability of a child to describe any surrounding circumstances peculiar to any of the alleged acts of sexual exploitation may bear on the reliability or credibility of the child’s evidence but, if the evidence is accepted, this element of the offence will have been proved.[32]
·       K was able to delineate or identify (by particular occasion and location) many of the acts of sexual exploitation which she alleged against the defendant. On the occasions which she was unable to provide specific detail of the alleged abuse in order to identify the occasion or to distinguish it from other acts, the prosecution nevertheless submitted that her evidence relating to those acts of sexual exploitation should be accepted beyond a reasonable doubt.
·       This was the real forensic issue in dispute in the trial. The defendant submitted that the alleged acts did not occur at all. Additionally, the defendant contended that upon a proper evaluation of K’s evidence, the prosecution was simply unable to prove the acts of sexual exploitation beyond a reasonable doubt. The defendant does not carry any onus to disprove the prosecution case.
4.The two or more acts of sexual exploitation, of which I am satisfied beyond reasonable doubt have been committed by the defendant, must take place over a period of three days or more, during which time K was under the age of 17 years.
·       This simply means that the time between the first and the last acts of sexual exploitation proved must be three days or more.
·       There is no dispute that K was under the age of 17 years during the period over which the alleged acts of sexual exploitation are said to have taken place.
[30] [2016] SASCFC 130. Since this decision special leave to appeal has been granted by the High Court in Hamra v R and Chiro v R to be heard together in relation to the construction of s 50 of the Criminal Law Consolidation Act. The appeals are listed to be heard by the High Court sitting in Adelaide in June 2017.
[31]   R v Hamra at [43] and [47].
[32] Ibid at [37].
The prosecution case
The prosecution case relied solely upon the evidence of K (in the form of the admitted police interviews and her in-court evidence given under oath). There was no other evidence which supported K’s assertions that she was sexually abused by the defendant.
The evidence revealed that the defendant met K’s mother in about 2010 through his patronage of a cafe that she worked at and they had become good friends. The defendant and K’s family socialised together, including attending at each other’s home for barbeques and on outings. The defendant would regularly visit with his daughter, C, who was close in age to K, so they could play together. The defendant also stored a number of his motor vehicles, bicycles and a ride-on lawnmower at K’s home. He would regularly attend there (sometimes without notice) to work on his vehicles and the lawnmower. When he visited he often brought food with him for K’s family. He also performed repairs or maintenance of K’s house, including repairing the roller door and enclosing a veranda. Over time the defendant had become a trusted and close family friend.
On the evidence, it was commonplace for K to greet the defendant, whenever he visited, by running to him, jumping up and hugging him. It was also not uncommon for the defendant and K to greet and farewell each other with a kiss. K also would often sit on the defendant’s lap on the couch in the living room.
The defendant said in evidence that he viewed K as a daughter and admitted kissing her on the lips, cheeks and forehead as a sign of affection. He strongly denied any sexual purpose behind these admitted kisses.
K’s mother said that she did not witness anything untoward or improper about the defendant’s interactions with her daughter.
In July 2011 K’s mother travelled to Bali for a holiday. She asked the defendant to look after her three children (at that time K and her two older brothers) while she was overseas. The defendant agreed to do so and stayed at the family home between 22 and 29 July 2011.[33] The defendant said that he slept in K’s mother’s bedroom during that time.
[33] Agreed Facts, Exhibit P9.
The defendant said his role during this period involved taking the children to school, preparing meals for them and sending them to bed. He also took the children on an outing to the Port Adelaide Markets and to visit his parents.
K alleged that the defendant first sexually abused her during the week her mother was in Bali and said thereafter the abuse continued until she made a disclosure to her mother on 17 June 2014.[34]
[34] K disclosed to her mother that the defendant had kissed and touched her leg, which K said occurred on an occasion when the defendant had taken K to buy some ice cream: T 135.
K’s mother said that upon receiving her daughter’s complaint she decided not to probe or question her for detail, as K appeared uncomfortable and embarrassed.[35] K’s mother said she immediately took K to the police station to report her daughter’s disclosure.
[35] Ibid.
The disclosure by K to her mother, therefore, provides some evidence of the consistency of conduct of K when assessing K’s credibility.[36] I have had regard to this when assessing K’s credibility. The disclosure to K’s mother clearly provides evidence of when the alleged conduct first came to light[37] and this in turn led to a swift police investigation.
[36] Section 34M of the Evidence Act.
[37] Ibid.
Upon hearing K’s disclosure, her mother immediately contacted the defendant. K’s mother confronted the defendant via text messages, although she did not detail any of her daughter’s allegations to the defendant other than informing the defendant that ‘K has told me everything.’[38] The defendant responded by text that he did not know what K had said about him and that he had not done anything wrong.[39] In the text communications with K’s mother, the defendant appeared to be genuinely confused over the accusations being made against him.[40]
[38]   Exhibit P7.
[39]   Ibid.
[40]   Ibid.
K was first interviewed by the police on 1 July 2014 and subsequently on 28 July 2014.[41]
[41] Exhibit P1.
On 2 July 2014 police officers attended at the defendant’s address. The defendant was not present at the time. The police searched the defendant’s bus and seized his laptop computer. When the defendant returned home he discovered that someone had entered his bus and stolen his property. He then attended at his local police station to report the matter. The following day the police officers returned to the defendant’s home and arrested him. During an interview conducted with the defendant he denied the allegations.[42] The defendant’s mobile telephone was then seized from him for forensic analysis along with his laptop.
[42] Police Record of Interview of the Defendant, Exhibit P8.
An analysis of the defendant’s laptop and mobile telephone revealed some photographs which he had taken of K and her brothers during July 2011 when he was caring for them while their mother was holidaying in Bali. None of the photographs are, in my view, incriminatory. Further there were no photographs or videos located on either the defendant’s mobile telephone or his laptop computer, depicting K in a state of undress, as she alleged. I will return to this evidence later in my reasons.
The defendant gave evidence at trial denying any sexual impropriety against K.
I have had regard to the defendant’s repeated denials of any wrongdoing in considering whether the prosecution has established any of the acts of sexual exploitation against him.
K’s evidence
First Record of Interview on 1 July 2014
The first police interview with K did not reveal specific details of each allegation. K alleged that the defendant first started abusing her when her mother went to Bali. It is an agreed fact that this period was between 22 July and 29 July 2011[43] when K was 6 years of age.
[43] Exhibit P9.
The abuse alleged by K involved the defendant kissing her and rubbing his hands along her legs. She marked on a body diagram the positions where she was kissed (her lips, cheeks and neck) or touched (her arms, thighs and buttocks) by the defendant.[44]
[44] Exhibit P2.
K said that after her mother returned from Bali the defendant continued to kiss and touch her a number of times, even when her mother was home. K said the sexual abuse continued until she disclosed the abuse to her mother in June 2014.
K recalled a specific occasion when the defendant kissed her. She said this occurred at a time when her mother’s friend was visiting and while her mother was putting her younger brother to bed. She said she was kissed by the defendant when her mother’s friend was out of the living room. She said her brothers were playing games elsewhere in the house. She did not state where in the house the others were when she was being kissed by the defendant on this occasion.
She also disclosed that the defendant touched her on her ‘spots’, through her underwear.
Towards the end of the interview, K described that the defendant would discipline her (and her brothers) with a ‘spoon/chopstick contraption’ if they misbehaved. She drew a picture of the object on Exhibit P3.
In his evidence the defendant admitted using a wooden spoon to discipline K and her brothers when he looked after them in July 2011, if they misbehaved, as he had seen their mother discipline her children in this manner. He said he would tap them on the backside and they would then stop annoying him while he was preparing meals in the kitchen. The defendant denied making or using a wooden spoon with chopsticks attached, as described by K.
During the interview, K wrote down the specific locations where the defendant kissed and touched her as she described. That document was received into evidence as Exhibit P3.
The locations where K had written she was sexually abused (the parenthesis revealing the total number of occasions also written by K) were:
·In her mother’s room (two or three times).
·In her room (twice).
·In the living room (four times).
·In her brother’s room (once).
·Out the backyard (once).
·Under the carport (five times).
·In his car (eight times).
·In the garage (twice).
K initially attempted to indicate the number of times she was kissed or touched by measuring the distance on the interview desk before eventually writing down the number of times, as described above.
K was asked to recall what she could about the abuse at each identified location, although she was not asked in the manner one might have expected given her apparent specificity about each occasion she had nominated.
In K’s bedroom
K recalled an incident when the defendant was looking after her when her mother was in Bali. She said the defendant entered her bedroom at night, removed the quilt and started ‘touching her’ and ‘kissing her’ and ‘all those things’.
In the defendant’s car
K also recalled occasions when she was touched in the defendant’s vehicle. These occurred when he had taken her to see some of her mother’s friends (who she did not or could not name) and to Hungry Jack’s to get ice-cream. She described sitting on the front seat in the defendant’s vehicle and was told by him to remove her seat belt and to sit with her legs in between the gear stick.[45] She said that she was touched on these occasions on the outside of her clothing. It is unclear whether the touching occurred while the car was stationery or moving.
In the garage
[45] K drew an image of the gearstick on Exhibit P3.
K recalled two specific occasions of sexual abuse in the garage, once when she was kissed by the defendant and the other when he undressed her and photographed her naked.
K said the latter incident occurred when her mother was in Bali. She said the defendant took her into the garage and closed the garage door slightly, one night while her brothers were sleeping. K said the defendant removed her pyjamas and sat her on a tyre. She claimed that he used his mobile telephone to photograph her naked.
Although K had specified each location and the number of times she was abused in the interview, she did not provide any further detail of the abuse, other than as outlined.
Second Record of Interview on 28 July 2014
The second interview was lengthier, with the police officers concentrating on questioning K regarding specific incidents before moving to explore other forms of sexual abuse. There was clearly a lapse in K’s memory between the two interviews which were held only four weeks apart.[46]
[46] I discuss this issue at [130]-[142] and [160], when dealing with the importance of conducting interviews with children.

K repeated that the defendant would ‘kiss, touch and feel’ her.
K recalled the defendant telling her not to tell anyone about the incidents. K said the defendant told her that ‘if you tell anyone I will hurt you’ and for that reason K said she did not tell her mother about the abuse. K recalled the defendant threatening her like this many times although she could not provide any detail, other than it was when her ‘mother was not looking’. When asked what she thought the defendant would do to hurt her, K responded by saying that the defendant would have hit her with the wooden spoon/chopsticks when her mother was not looking.
K did not initially remember the very first incident when the defendant had abused her. Only after being prompted by one of the police officers did she agree that it occurred when her mother was in Bali. K could not remember the final occasion either, although she said it might have occurred in the defendant’s vehicle when they were driving to visit one of his friends so that she could play with his friend’s daughter, although she was unable to remember the girl’s name. K stated on this occasion the defendant, while driving, was feeling her legs as well as touching her on the arms and shoulders.
When questioned further about the touching generally, K said the defendant touched her both on the outside and inside of her clothing on her bottom. The interviewing police officers, in an attempt to clarify K’s understanding of the difference between being touched and penetrated, unhelpfully used as an example the difference between entering a house and remaining outside a house, which only served to confuse K on the very issue they were attempting to explore with her. It was evident from the interview that K was becoming confused and understandably so in my view.
When K was asked about whether the defendant had placed his finger inside her ‘spot’, which the police ascertained was her vagina, K said that she was only ever touched on the outside of her clothing on her ‘spot’ (vagina) and touched on both the outside and inside of her bum (anus).
K said the defendant hurt her when he touched the inside of her ‘spot’. However, it is far from clear whether K was referring to being touched on the inside or outside of her clothing or whether she was speaking about her anus or vagina being penetrated. This simply served to illustrate the many unsatisfactory aspects of the manner in which the interviewing officers conducted the interviews of K by not focussing K’s attention on one topic at a time and clarifying her understanding of penetration.
K said that the defendant would give her short kisses if someone was approaching, but if no one was around he would give her longer kisses, which K said would last for between 15 to 20 seconds. She said the kisses made her feel uncomfortable.
K went on to specifically state how many times the defendant had sexually abused her in 2014, by writing the number next to the number she had previously written on Exhibit P3 during the first interview. K wrote that she was abused once in her bedroom, twice in the living room (after initially writing one), no times in her brothers’ bedroom, once in the backyard, three times under the carport (after initially writing one), three times in the defendant’s car and once in the garage (after initially writing one, then two).
In K’s bedroom
K recalled the defendant ‘kissing and feeling’ her twice in her bedroom. She recalled that one touching and kissing incident occurred when her mother was overseas. K remembered that the second incident occurred at night time when her mother was at home. K could not remember whether this occurred before or after her mother went overseas.[47] K said that she went to bed and the defendant followed her into her bedroom and did ‘exactly what he did when her mother was overseas’, namely removing the quilt before touching and kissing her. K recalled that on one of these two occasions she was wearing long pants and on the other she was wearing shorts because it was hot but she could not differentiate between the two.
[47] Despite earlier in the interview agreeing that the sexual abuse first commenced when her mother was away in Bali.
K’s mother did not give any evidence whether the defendant was ever at her home on an occasion when K had gone to bed as K alleged. It would indeed have been an extremely brazen act if the defendant entered K’s room during the night and sexually abused K when her mother was in the house.

In his evidence, the defendant said that any form of interaction that occurred between himself and K during the time he was looking after K and her brothers, was in the context of tucking K into bed, kissing her goodnight, and reading a bedtime story to her. He admitted kissing her on the lips and sometimes on the cheek. He recalled occasions when K would wake in a state of upset, crying and asking where her mother was. He said that this happened either when he was already asleep himself or while he was watching television. To comfort K, he said he would pat her head, back and shoulder and put her back to bed. He denied touching K sexually or inappropriately when he put her to bed and denied entering K’s bedroom on any other occasion as she alleged.
In the living room
In her first interview, K wrote that she was touched and kissed on four occasions in the living room. When further questioned about this in the second interview, K could only recall two specific incidents.
The first incident K recalled was an occasion when her mother’s friend was visiting. K said that her mother was putting her younger brother to sleep, and her mother’s friend was out of the living room at that time. K said her mother, the family friend (a man named Graham) and her two older brothers were all behind the door and out of her line of sight. K said that as she went to get a drink the defendant pulled her from the back of her top and placed her on to his lap, when he was sitting on the recliner chair. K said the defendant was moving his hand ‘up and down’ her body from her backside. She also said the defendant was kissing her on the back of her neck.
K’s mother did not give any evidence of the family friend named Graham or of an occasion when the defendant had visited her while Graham was visiting.
When asked to elaborate about other incidents in the living room, K could only recall one other incident which occurred when her mother was in Bali. K said on this occasion her brothers were playing games. K said that the defendant kissed her on her cheeks, the back of her neck and on her lips, and that he touched her on the arms and legs while she and the defendant were on the couch. It was unclear whether her brothers witnessed anything or were even in a position to witness anything. K’s brothers were not called as witnesses to support what she stated, either on this occasion or generally.
In her brothers’ room
K recalled an incident when her mother had taken one of her brothers to visit the doctor. K remained at home with her other brother. She said that she was playing the PlayStation at the time in her brothers’ bedroom. The defendant had arrived for a visit and entered the house. She said the defendant asked her where her mother was, and she told him that ‘they went to the doctors’. K said she was in her brothers’ bedroom and that her brother was in the living room watching television. K said the defendant began touching and kissing her. She said that she stopped the game she was playing and went to watch television in the living room where her brother was, bringing an end to the abuse.
The backyard
K recalled an incident in the backyard when her mother and brothers were home. The defendant arrived with his daughter C to visit. K recalled playing with C on the trampoline. K said that she (that is K) needed to go to the toilet and recalled the defendant telling her to ‘do it out here.’ K declined and instead entered the house to use the toilet. K said the defendant followed her inside the house and when she returned to the backyard he also followed her out and then ‘touched, kissed and felt’ her. K said this occurred while she was sitting on a chair near the swing set. K said this occurred while C was on the trampoline calling out to her. K claimed that C would not have been able to have witnessed anything from the trampoline.
The defendant agreed that he quite often brought C with him to visit K’s family. He recalled that C and K were always together as they were about the same age. He denied this allegation and also denied ever seeing the bench seat upon which K claimed she was abused.
Underneath the carport
In her first interview K alleged five incidents occurred underneath the carport, but she only specifically described one incident. K said that she went to the carport to assist the defendant fix a lawnmower. K remembered the defendant putting down the tool he was using to repair the lawnmower. K said the defendant then ‘grabbed her, pulled her down, and started kissing her all over.’ She said that when the defendant heard someone, he told K to ‘go see if your mum wants any help.’
K said she could no longer remember any other incidents underneath the carport or in the living room.
The defendant said that he purchased a ride-on lawnmower off eBay and collected it from Horsham in Victoria with K’s mother, sometime between 2013 and 2014. He stored the lawnmower at K’s mother’s home, where he did some repair work to it. He said that he took K for a ride on the lawnmower in the front yard. K’s mother confirmed the defendant’s evidence regarding the ride-on lawnmower and of K riding on it.
Later in her sworn evidence K denied the lawnmower was a ride-on and said she was never taken for a ride on it. In my view, it is surprising that K would not remember the type of lawnmower or that she was taken for a ride on it, given it would have been a fun experience for her to have done so.
In the defendant’s car
In the first interview K recalled the defendant kissing and touching her eight times in his vehicle. She was unable to describe all eight events, but listed five occasions in which the touching and kissing occurred. It appeared that on some occasions K was not alone in the vehicle with the defendant when he allegedly touched her leg.
K could not remember the last time she was abused by the defendant but when further questioned it can be inferred that the last incident occurred in the defendant’s vehicle. K could not remember how long ago she last saw the defendant and expressed some hesitation when responding. When questioned further she was unsure whether this was in fact the last time she saw the defendant.
When asked about when she last saw the defendant, K recalled the defendant taking her to visit one of his friends to play with his friend’s daughter and have dinner, before returning K home. K did not remember the defendant’s friend’s name, but she remembered playing with a girl whose name started with the letter G.
K said on this occasion she was alone in the car with the defendant. She said that the defendant drove with one hand on the steering wheel and his other hand was ‘feeling against her’, touching up and down her leg. She said he also touched her on the legs, arms and around her shoulders.
K recalled a further four incidents that occurred in the defendant’s vehicle, namely when they went to buy ice-cream from Hungry Jack’s, when he drove her to a friend’s house, when they went to pick up his son, and when they went to buy take-away for dinner. She said that on each occasion the defendant would feel and touch her. She said he would kiss her on her back, on the cheeks and on her lips.
K’s mother said that she and her children had been on family outings with the defendant’s family. She said that the children always travelled with their own parent, but she confirmed that K had travelled alone in the defendant’s car on occasions.
K’s mother recalled an occasion in 2014 when the defendant drove K to buy ice-cream from Hungry Jack’s. She also recalled that the defendant drove K to a restaurant to have dinner with the defendant and his daughter and one of the defendant’s friends. It was unclear from the evidence whether K was alone in the car with the defendant on this latter occasion or whether the defendant’s daughter was also in the car with them.
The defendant agreed in evidence that there were occasions when K would travel alone with him in his vehicle such as when he would collect his daughter C. When questioned about why he denied being alone in his vehicle with K when he was interviewed by the police, the defendant said his response was instinctive, albeit incorrect at the time. He also agreed driving alone with K to purchase dessert or ice-cream after having dinner at her home. The defendant did not dispute that there were opportunities for him to have abused K in his vehicle as she alleged, although he denied ever doing so.
Inside the garage
K described two incidents occurring in the garage; once when her mother was overseas and another when her mother was inside the house. One of the incidents was described earlier in the first interview.
K repeated that she was placed onto a tyre in the garage when her mother was in Bali and of being undressed by the defendant and photographed while naked. However, K now added that he had also asked her to move around so that he could take a video of her but she did not want to and instead she put her clothes back on. K was not able to recall what the defendant said to her when taking the photographs of her in the garage.
However, K now also described another occasion of abuse in the garage when her mother was inside the house and K had gone there to feed the chickens. K said she had entered the garage when the defendant followed her inside, closed the door, turned the lights on and then undressed her. She said that he then sat her on a tyre and started ‘feeling me, touching me and all that.’ K did not suggest in the second interview that she was photographed on this second occasion.
This account was materially different to and also inconsistent with what she described in the first interview and has caused me to doubt the accuracy of her memory of events concerning this alleged abuse.
K’s mother recalled that the defendant stored bicycles and old car tyres in the garage. However, the defendant disputed leaving tyres in the garage. He said that he would remove the wheel on his vehicle to fix its brakes, but that he would refit the wheel once he had completed the work he needed to undertake. The defendant denied what K alleged occurred in the garage. Again, it would be an extremely brazen act for the defendant to have behaved as K alleged when her mother was home and could have entered the garage and witnessed the defendant sexually abusing her daughter on the car tyre.
In her mother’s bedroom
When questioned about where the defendant touched her on the inside of her ‘spot’, K wrote ‘my mum’s room about two or three times’ and said he would go ‘inside (but only sometimes) of her spot(s)’.
K wrote that this occurred when her mother was overseas. K also wrote that the defendant used his finger to ‘separate her bum’ and that he ‘pokes his tongue out and licks the inside of my bum’.
When asked to describe how she felt when the defendant touched her on the inside of her anus, K said she felt ‘yuckier, nervous and not okay’. When prompted by the police officers asking her whether this conduct hurt her or whether the defendant had ever hurt her, K only replied that she was hit with ‘spoon/chopsticks.’
One of the police officers then asked K what the defendant used his penis to do. K’s answers were elicited through leading questions. K struggled to answer but wrote ‘when he separates my bum he puts his spot in the [my] bum’. When further questioned about the number of times the defendant inserted his penis inside her anus K wrote the answer ‘about two, or three, or four times’. She was vague as to whether this conduct occurred in her mother’s bedroom, or in the defendant’s bus (trailer), or both.
Despite K apparently alleging digital and penile penetration of her vagina and anus she did not describe any pain or injury associated with these activities, which given she could have been as young as six years, might have been expected.[48]
[48] The only evidence on this topic was limited and unsatisfactory. When asked in the second police interview at page 22 whether the defendant had ever hurt her, K responded that he had used the wooden spoon/chopstick contraption to ‘whack us’ when she and her brothers were naughty. When asked whether the defendant had ever hurt her when he was touching her, K replied ‘Hmm’ and then when asked, ‘With his hands or fingers, has he ever hurt you anywhere on your body?’, K replied ‘When he touches the inside of my spot.’ No further detail was sought to be elicited from K as to which ‘spot’ the defendant had touched the inside of, how painful it might have been, how often she experienced pain or whether she experienced any physical symptoms associated with the pain she was describing, such as bleeding, all of which simply highlights the deficiency in the questioning by the interviewing police officers, making it difficult to make any finding beyond reasonable doubt on such an important topic.
Added to this is the lack of any medical evidence, which, if K had complained earlier, might have been performed. In this respect the prosecution has accepted the defendant’s submission that he has suffered a forensic disadvantage, which requires the court to direct itself in terms of s 34CB of the Evidence Act. I indicate that I have taken this into consideration when scrutinising K’s evidence.
In the defendant’s trailer/bus
K also recalled, for the first time, that she was abused in the defendant’s bus, which she called the ‘trailer.’ She wrote this location on Exhibit P3 above where she had written the other locations where she was abused during the first interview. K said she and the defendant were on their way (in his vehicle) to visit one of the defendant’s friends but then stopped at his home and entered the trailer (bus). K wrote that the defendant played a sex video for her to view and she did not like watching it. She recalled that this occurred about a year prior to the second interview. She did not elaborate further on this alleged abuse inside the trailer.
An assessment of K’s interviews
I have previously stated that given my ruling that K did not have sufficient understanding of the obligation entailed in giving sworn evidence when she was being interviewed but did have the capacity to give unsworn evidence at that time, then the requirements of s 9(4) of the Evidence Act were enlivened.
As I was requested to do so, I have warned myself pursuant to s 9(4)(b) of the need for caution in determining whether to accept the evidence of K given in the form of the police interviews and the weight to be given to this evidence.
In my view the police interviews of K were simply unsatisfactory. The interviews were conducted in a disjunctive manner, and lacked a logical or systematic approach, such that at times it was very difficult to follow what K was saying.
This is especially so given the manner in which the interviews were conducted by the police officers, which included some leading questions and an inability to articulate what it was they wanted K to answer or focus on. There were also frequent interchanges of topics and concepts, which only added to K’s apparent misunderstanding of what it was she was being asked to provide answers to or clarify. At other times K demonstrated a tendency to simply agree with the leading question asked of her rather than provide a response of her own.
K was also prone to distraction throughout the interview[49] and understandably so given her young age, which only reinforces the importance of good interviewing techniques involving young children.
[49] For example K was tying up her shoelaces or drawing when answering some questions, while at other times she was yawning, laughing or waving at the camera and clearly not focussed or concentrating on what she was being asked.

The interviewing police officers often did not attempt to explore whether K was able to provide more detail of either the abuse or of the surrounding circumstances.
The interviewing police officers were also not clear when explaining to K the concept of touching inside and outside of the clothing. They interchanged between asking about whether the defendant touched her on the inside and outside of her clothing, on the inside or outside of her anus and on the inside and outside of her ‘spot(s)’, or the inside or outside of K’s house, all of which led to confusion rather than clarity as to precisely what K was alleging. I have already observed the unfortunate example used by the police officers in attempting to clarify K’s understanding of being penetrated.[50]
[50] At [89].
The interviewing police officers also asked K questions containing different propositions such that it was unclear whether K’s response was in relation to the first or the second part of the question.
During the interview, the police officers did not progress the questioning in a meaningful and interrogatory fashion, which would have assisted in clarifying K’s account.

K’s answers often led to more questions and the interviewing police officers often failed to elicit meaningful elaboration of the allegations. They did not ask K the interrogatory questions that logically came to mind as a result of K’s responses and they lacked the ability to articulate, in language a child of K’s age would understand, what it was they wanted K to answer or focus on. There were a number of occasions where it was plain that K simply did not understand or appreciate what she was being asked and so volunteered a response which may or may not have been accurate or reliable.
During the interviews K would write down particular allegations (for example, the serious allegation of the defendant inserting his ‘spot’ in her anus) rather than speak of them, yet the interviewing police officers did not ask her anything further about the circumstances surrounding the written allegation.
K also pointed to the body charts when answering questions but it was not altogether clear what she was referring to, especially when referring to her ‘spot’ or ‘spots’ (which appeared to be used interchangeably by K) and which the interviewing police officers did not seek clarification when such was essential.
The many shortfalls in the conduct of the interviews has affected K’s account of the alleged incidents and starkly brings into focus the need for training courses for police officers in conducting interviews with vulnerable witnesses.
Investigative interviews of vulnerable witnesses now form the evidence of the vulnerable witness and as stipulated in the regulations under the Summary Offences Act, only prescribed interviewers who are suitably qualified and authorised can now conduct such interviews.[51]
[51] See reg 20 of the Summary Offences Regulations 2016.
It is approaching 12 months since the important amendments to the Evidence Act relating to the use of recorded interviews as the evidence of a vulnerable witness has come into force yet counsel could not inform me whether regulation 20 of the Summary Offences Regulations has been effected. I bring this important matter to the attention of the Commissioner of Police and the Minister for Health so that appropriate training and accreditation of prescribed interviewers can occur.
K’s evidence in court
K was further examined by the prosecutor on some aspects of her police interviews requiring clarification or to adduce additional detail not elicited by the police officers during the interviews. K was then cross-examined and re-examined.[52]
[52] In accordance with the Court’s permission granted pursuant to s 13BA(5)(b) of the Evidence Act.
When giving evidence in court K generally displayed a poor memory of events. For example, she was simply unable to remember the incidents of touching she alleged happened when her mother was in Bali. She also did not remember the allegation she had made in her police interview of the defendant touching her on the vagina.
She was unsure about a number of other matters, including her age when her mother first travelled to Bali or how long her mother was away for, and whether she had become upset about her mother being away or whether she called out to the defendant. She also could not remember whether the defendant would kiss her goodnight, tuck her into bed, or read her a bedtime story during the period he was caring for her when her mother was in Bali.
K also contradicted her evidence in the police interviews regarding her legs straddling the gear stick by saying that she would place her legs together when sitting on the middle seat of the defendant’s vehicle.
There was also ambiguity regarding other aspects of her evidence, for example, the discipline she claimed she was subjected to by the defendant with the wooden spoon/chopstick contraption and she had no memory of the defendant working on the verandah and converting it into a shed, a major project that would have taken some time to complete.
K was cross-examined about her interactions with the defendant. Counsel for the defendant put to her that she would be happy or excited to see the defendant when he arrived at her home or if she visited him at his home with her mother. K agreed that she would happily sit on the defendant’s lap, and that he might quite innocently touch her leg or back on these occasions.
K said that she had only been in the defendant’s bus once. She was initially unable to recall whether it was night or day time when she visited the defendant’s bus, but later recounted that it was during the day when she left the bus. However, she was unable to recall whether she had ever been inside the bus with her mother.
K described the bus as having a big bed, a ‘rainbow light’, a hammock and a desk along the side. When she entered the bus she recalled jumping on the bed and lying down. K then said the defendant proceeded to undress her. She said he kissed her on her lips, cheeks and neck. K also recalled the defendant touching her on her back, the front of her body, her legs and her arms.
K also recalled the defendant playing a ‘sex video’ on the laptop while she was lying naked on the bed in his bus. She said she was made to watch the video against her will. K was then unable to recall what happened after the video finished. However, there is no detail of what was actually depicted in the ‘sex video’ as K was not asked, nor was she asked what her understanding of sex was.
K suggested that the incident in the bus took place when she and the defendant had gone to purchase takeaway food and they detoured to the defendant’s bus before returning home with the takeaway. The defendant said that he did attend with K to buy takeaway on occasions but the shops were within 10 minutes of K’s home. The defendant lived a considerable distance from K’s home such that if he was away for any length of time it is reasonable to infer that K’s mother would have become alarmed or questioned him.
K’s mother was not asked about any occasion when K was away from home with the defendant for an extended period of time while going to buy takeaway dinner.
In his evidence the defendant said that he purchased the bus at an auction towards the end of 2011. Sometime in early 2012 he moved the bus from the auction yard to his former girlfriend’s home in Ferryden Park, where he removed some of the seats before moving it to his home at Burnside.
The defendant said that K’s mother had taken all of her children to see his bus while it was parked at the Ferryden Park address and later at Burnside.
The defendant denied ever being alone inside the bus with K and denied showing her a sex video as she alleged.
K’s mother agreed that she had taken her children to see the defendant’s bus in 2013 when it was first parked at Ferryden Park. She also agreed that she had taken her children to see the bus sometime towards the end of 2013 or early 2014 when it was parked along the driveway of the defendant’s Burnside property.
K’s mother specifically recalled taking K to see the bus on two occasions, which contradicted K’s evidence of having been inside the bus only once, although it is possible K may have understood the question she was being asked as the number of times she had been to the defendant’s bus by herself.
Overall K’s evidence in court was very vague and uncertain. She frequently responded to cross-examination by saying ‘I don’t remember’ or I don’t know’, which obviously made the task of testing her account of the alleged sexual abuse extremely difficult for counsel and as such her sworn evidence added very little to her evidence in the police interviews.
This highlights the critical importance of properly conducted investigative interviews of children by suitable qualified interviewers. K’s memory of the alleged abuse naturally faded between the time of her interviews and trial, a characteristic not uncommon in young children. It is obviously important when interviewing children about such serious allegations at a time contemporaneous to the alleged abuse, that as much detail as possible is elicited from the child in a logical and sequential order, given that it will later form that child’s evidence of the alleged abuse. Sadly that was lacking in this case.
Electronic evidence
The police seized the defendant’s laptop computer from his bus when they attended at his premises on 2 July 2014 and conducted a search of the defendant’s bus. The police returned the following day and arrested the defendant and seized his Apple iPhone 5 mobile telephone. At that time the defendant welcomed any investigation of his mobile telephone and laptop, claiming he had nothing to hide and that no incriminating material or images would be found on either device.
Both devices were forensically examined by the police.[53] No images of K were located on the defendant’s iPhone 5.
[53] Evidence of Dr Lin.
A total of 10 photographs of K were recovered from the defendant’s laptop.[54] None of the photographs depicted K in any state of undress or sexualised pose.
[54] Exhibit P10.
The photographs (and the defendant’s explanations of them[55]) reveal:
[55] K was not questioned about the photographs.
·Photograph 1 was of K and her brothers sleeping in their backyard, which the defendant said was sent to him by K’s mother.
·Photograph 2 was a ‘selfie’ of K taken by her using the photo function on the defendant’s laptop. The defendant was unable to say when this photograph was taken by K.
·Photographs 3 and 4 are of K with her face painted, taken by the defendant during an outing with her brothers to the Port Adelaide Markets when K’s mother was in Bali during July 2011.
·Photographs 5 and 6 are of K holding a puppy taken during a visit to the defendant’s parents’ home on the same occasion as the visit to the Port Adelaide Markets.
·Photograph 7 shows K and her brothers eating doughnuts during the visit to the Port Adelaide Markets.
·Photograph 8 shows K eating a meal at the Food Court in Chinatown. The defendant could not precisely state when this photograph was taken, although he said that K’s mother was present whenever they went to the Food Court.
·Photograph 9 shows K with the defendant taken using the photo function on his laptop. The defendant could not say when or where the photograph was taken.
·Photograph 10 is a zoomed or enlarged image of K’s face taken from photograph 9, which the defendant was unable to explain.
The defendant said the photographs taken at the Port Adelaide Market, his parents’ house and at the Food Court were likely taken on his Apple iPhone 4S, which was his previous mobile telephone.
The defendant said he sent the photographs, which he had taken of K and her brothers at the Port Adelaide Markets and at his parents’ home, to K’s mother while she was in Bali, so that she could see her children were happy and enjoying themselves while she was away.
Dr Lin, the prosecution’s electronic crime forensic expert and Mr Gare, the defence forensic technology expert, both agreed that photographs and video files, once deleted from an Apple iPhone 5 mobile telephone, cannot be recovered.[56]
[56] Files deleted from an iPhone 5 are irretrievable directly from the mobile device because the file will be encrypted in such a way that can never be decrypted.
On the other hand, photographs and video images stored onto a computer can be recovered, even after they have been deleted from the device.
Mr Gare distinguished three methods in which files stored on an iPhone 5 could be retained on other devices, through a process of backing up, syncing or downloading of data from the iPhone onto a computer.
Syncing a mobile telephone to a computer is a process where the files on the mobile telephone remain ‘in sync’ with another location, commonly onto a computer hard drive or in the ‘cloud’.[57] While photographs and video files can be synced, this process is more commonly used for audio files.
[57] T268.
Backing up an iPhone involves the computer taking a copy of all current content on the iPhone and making a copy onto the computer.
Downloading a file from an iPhone is a one-way process where files on the iPhone (such as photographs and videos) are added to a library on the computer.
Both Dr Lin and Mr Gare agreed that if a photograph or video file was deleted before the iPhone 5 was backed up to a computer, the images would not be backed up to the computer and there is no way of recovering those images. However, where a photograph or video file has been backed up onto a computer, and then subsequently deleted from the iPhone 5, the photograph or video file will remain on the computer and is recoverable from the computer’s back up file.
Mr Gare said that he recently examined the defendant’s laptop released to him by the police and extracted information from it. He expressed the opinion that the files he retrieved had not been synced or downloaded from the iPhone to the laptop. If the photographs he recovered from the defendant’s laptop were synced or downloaded he would have expected to see more duplication of photographs between the devices.
It was his opinion that the defendant’s mobile telephone was backed up to the laptop. He analysed a number of backup sets which he said came from different mobile telephones. He found two backup sets named ‘Phuong’s phone’ but was unable to distinguish which type of iPhone each backup related to. The most recent backup for the older device was dated 4 March 2013 and the most recent backup for the newer device was dated 23 June 2014.
Mr Gare explained that the backup process was cumulative in nature and so any new photographs and video files would simply be added to the backup files. Further he said that it would be impossible to determine on which dates the iPhone was backed up due to the nature of backups involving a cumulative process of storage. Accordingly, there could have been multiple backups of the mobile telephone to the computer or only limited backups. Mr Gare said there was no technology available to substantiate how frequently the defendant’s iPhone was backed up to his laptop, nor was it possible to tell from any forensic analysis the dates the iPhone was backed up to the laptop. The only certain dates he was able to discover from the back up sets were 4 March 2013 and 23 June 2014.
However, Mr Gare said the backup file from the old mobile device was restored onto the new iPhone and this must have taken place by way of a physical connection between the new iPhone and the laptop. Mr Gare said that the new device would have had files from the old device restored onto it (as evidenced from the replication of photographs from the old device), and that it would have been backed up at least once, on 23 June 2014.
The defendant said that his laptop was a gift from his former girlfriend (the mother of his daughter, C) and was in his possession in July 2011 when he was looking after K and her brothers when their mother was in Bali.
I accept that the defendant had very limited knowledge or understanding of technology and relied solely on his then girlfriend to set up his laptop for him. He said that she had set up the laptop for him so that his mobile telephone would be automatically ‘synced’ to the laptop each time it was charged through the USB port on the laptop, which he said would occur every two or three days.
The defendant said he did not know how to back up his iPhone and his knowledge of the technology was very basic and limited to plugging his iPhone into the laptop to charge, believing that process also involved syncing his iPhone to his laptop because that is what he was told by his then girlfriend.
As mentioned earlier, Mr Gare said that it was unlikely that the defendant ‘synced’ files from his iPhone to his laptop, contrary to the defendant’s belief. Mr Gare came to this conclusion because he found that the photographs on the iPhone were not replicated in a photo library on the defendant’s laptop. Mr Gare also said that a user would have to decide whether to sync, download or back up files when the iPhone is first set up to the computer. I accept the defendant’s evidence that his former girlfriend had made those decisions for him when first setting up the laptop for him.
The prosecution submitted that the naked photographs and video which K claimed the defendant had taken of her in her garage were deleted by him prior to his mobile telephone being backed up onto the computer or that the images were possibly taken using a different mobile telephone.
The prosecution also argued that the close-up photograph of K (photograph 10 in Exhibit P10) revealed that the defendant had a ‘particular’ or sexual interest in K.[58] The defendant said he did not have any explanation for how the close-up photograph of K happened to be saved on his laptop. The prosecution submitted that the defendant’s denial about the close-up photograph should be used against him when evaluating his credibility as a witness. I cannot accept either submission.
[58] Prosecution closing address.
The bundle of photographs (or photograph 10 alone) in itself do not suggest that the defendant had a sexual interest in K. There is nothing sexual in any of the photographs, which, in my view, appear to be totally innocent in nature.
The tendered photographs bear no weight to the determination of the defendant’s guilt.
Furthermore, I cannot exclude as a reasonable possibility what the defendant told the police in his interview and repeated in evidence, that he did not take any photographs or videos of K in the garage as she alleged.
It is accepted that apart from the 10 photographs recovered from the defendant’s laptop, as described above, that no other images of K were located on the defendant’s mobile telephone or laptop. If, as the prosecution contended, the defendant had a sexual interest in K then the absence of any other images of K (even non-sexual images) indicates otherwise.
Furthermore, K said that she was photographed sitting naked on the tyre in the garage when her mother was in Bali. It is not disputed that photographs 3 to 7 were taken by the defendant during that same period using his mobile telephone (most likely the iPhone 4S).
It is logical to assume that if the defendant did photograph or video K naked on his mobile telephone, as she alleged, then it is likely he would have used the same mobile telephone he had used to photograph K and her brothers at the Port Adelaide Markets, and if so, those images would have been stored onto the mobile telephone, unless deleted by him before any backup to his laptop.
It is also logical to assume that at some time, most likely no later than 4 March 2013, the mobile telephone (most likely the iPhone 4S) was backed up to the defendant’s laptop because there was a restoration of the images from the laptop onto the defendant’s new mobile telephone (the iPhone 5). If so, there is no explanation for the absence of the allegedly incriminating photographs (and video file) from the backup on the laptop, other than they never existed in the first place or they were deleted from the mobile telephone (iPhone 4S) before the backup.

The latter proposition seems inherently unlikely, for if the defendant had a sexual interest in K, such as to take photographs and a video of her naked, he would likely have kept them for future viewing rather than deleting them, unless he was suspected of wrongdoing at that time, of which there is no evidence.
In my view the absence of any photographs or a video depicting K naked, as she alleged, tells against her credibility and supports the defendant’s repeated assertions that he did not sexually abuse K.
The defendant’s evidence
I have already referred to parts of the defendant’s evidence throughout these reasons. The defendant maintained what he said to K’s mother, and then the police, that he did not behave inappropriately towards K as she alleged. He was unshaken in cross-examination.
The defendant accepted that during his record of interview with the police he referred to his daughter C as a friend’s daughter. He said he did so because he was embarrassed about the circumstances of C being born through an extra-marital affair he had with C’s mother. He also said he did not want to impact on the Centrelink payments which C’s mother was receiving for the care of their child by disclosing that he was the father.
The prosecution submitted that the defendant’s evidence is discredited because he has admitted lying to police that C was not his daughter and also telling the police that he had never been alone with K. In my view, the defendant gave reasonable explanations for lying to the police about C and for not being alone with K. In any event he has not denied in his evidence that he has been alone with K in his vehicle, thus providing opportunities for him to have sexually abused K as she alleged. The admitted lies have not affected my assessment of the defendant’s overall credibility.
Analysis
As can be seen, the entire prosecution case rests solely upon my acceptance of K’s evidence beyond a reasonable doubt.
In deciding whether the prosecution has proved the commission of the acts of sexual exploitation alleged in the particulars, I am to have regard to the whole of the evidence, including the defendant’s denials to K’s mother and the police and his evidence denying any misconduct against K.[59]
[59] R v Schulz [2016] SASCFC 150 per Vanstone J.
The prosecution submitted that K was a credible and reliable witness. It was submitted that the explicit allegation of the defendant separating K’s buttocks and licking her anus had to be the truth based on real experience, as it would be improbable for a child of such young age to describe such conduct unless it was experienced.[60]
[60] R v J, AP (2012) 113 SASR 529 per Vanstone J.
The defendant submitted that it is possible that K gained knowledge of this conduct through viewing explicit material over the internet. During his evidence the defendant recalled an incident when he was caring for the children (including K) during the time K’s mother was in Bali. He said he permitted the children to use his mobile telephone and laptop and caught them laughing in the lounge room while they were looking at his mobile telephone. He claimed that the children had googled ‘sex’ on his mobile telephone and that he noticed there were naked photographs and a diagram on the screen. He said he took the mobile telephone from them and reprimanded the children for using his phone for that purpose.
Despite this having occurred he said he never raised the issue with their mother. I did not find the defendant’s evidence on this topic, which the prosecution submitted was invented by him during his evidence, at all convincing and I am not prepared to act upon it.
Although I have given some weight to the prosecutor’s submission about the improbability of a girl of K’s age knowing and being able to write about such explicit allegations unless experienced, I must still be satisfied beyond reasonable doubt, based on her evidence whether those acts actually occurred.
In weighing and carefully evaluating all the evidence given in the trial I have arrived at the conclusion that I am unable to rely on or accept K’s evidence alone as proof beyond reasonable doubt of the particularised acts of sexual exploitation, for the following reasons:
·K was only six years old when the acts of sexual abuse allegedly commenced. K’s unsworn evidence, as detailed in the police interviews when she was nine years of age, was at times unclear and difficult to follow because of the manner in which the interviews were conducted, as I have already discussed in these reasons, thus affecting the weight to be attached to that evidence.
·K’s sworn evidence in court, given almost three years after she was first interviewed, was lacking in detail and did not materially add to her police interviews. During her evidence in court K’s memory of the abuse she alleged in her police interviews was poor and at times was totally deficient, making it virtually impossible to properly test her account. K’s frequent responses throughout her sworn evidence of not recalling incidents has affected my overall assessment of her reliability.
·The police were unable to retrieve any evidence to prove that the defendant took photographs or a video of K while she was naked as alleged by K. I am satisfied, for the reasons earlier stated, that no evidence actually existed and this has caused me to doubt both K’s reliability and credibility concerning those particular allegations, which in turn has affected my overall impression of K as a witness.
·If the inappropriate touching and kissing occurred, as described by K, in the living room, in the backyard, in the defendant’s vehicle and variously about K’s home, then it occurred while her brothers, mother and a family friend were nearby or in the presence of or near the defendant’s own daughter C. I am unable to accept the defendant would be so brazen as to abuse K in such circumstances as frequently as K has alleged. If it occurred, it would have occurred very quickly and briefly for no one else to have noticed any inappropriate conduct nor to discern any difference in K’s demeanour, particularly around the defendant.
·While I accept that there were instances when K would travel alone in the defendant’s vehicle with him, which the defendant admitted, those instances were very limited and given his denials I am left with a reasonable doubt whether any sexual abuse occurred in the defendant’s vehicle, particularly given K’s inconsistent evidence (discussed below) as to where she sat during trips in the defendant’s vehicle and who else was present when she was allegedly being touched.
·K was very specific during the first interview with police about the number of times each alleged incident occurred. Likewise in the second interview K was able to specify the precise number of occasions she was abused during 2014, although she exhibited some confusion about this by correcting the number of occasions she had written. It is peculiar that a nine-year-old child would be able to specifically recall the exact number of occasions that she was sexually abused and in particular locations. However, when further questioned in the second interview and during her sworn evidence, K was unable to substantiate incidents that occurred more than once or twice, being incidents that allegedly occurred in the living room, under the carport and in the defendant’s vehicle. Moreover, despite being able to specify the exact number of occasions she was abused at particular locations K was unable to provide detail surrounding most of the abuse. It appeared to me that K may simply have been guessing the number of times she alleged she was abused to satisfy the questions being asked of her by the interviewing police officers.
·K said that her mother dismantled the ‘wooden spoon/chopstick contraption’, a claim which was not supported by her mother. Given the unusual design, as described by K, I would have expected K’s mother to have recalled this if it were true. Furthermore, neither of K’s older brothers were called to give evidence about the use of the ‘spoon/chopstick’ as a disciplinary device by the defendant or indeed to support K’s evidence generally. This supports the defendant’s evidence on this topic and undermines K’s.
·While acknowledging her young age as a contributing factor, there were a number of important inconsistencies in K’s evidence, which tell against her reliability and credibility on important topics. These include:
-   K’s evidence concerning the two incidents in the garage. It appears that K may have been confused between the two incidents, as she seemed to suggest that the defendant asked her to remove her clothing and to sit on the tyre on each occasion. During the first interview K said that both instances occurred when her mother was in Bali. In the second interview K said one occasion occurred when her mother was in Bali and the second occurred when her mother was somewhere in the house. There was also no mention of the defendant photographing her in the garage during the second interview.
-   During the first interview K drew a picture of the gear stick in the defendant’s vehicle and said that she had to straddle her legs between the gear stick when travelling in the vehicle with him. However, it was revealed in cross-examination that the front passenger seat of the defendant’s car would be able to comfortably seat two passengers. When asked about where she positioned her legs when sitting in the front middle passenger seat, she said her legs were together. K also said that she was touched on occasions when others were present in the vehicle, including the defendant’s own children. In his evidence the defendant denied K straddling her legs between the gear stick of the car or there being any form of inappropriate touching or kissing as K alleged.
-   K agreed in cross-examination that the only time the defendant had kissed her on the lips and cheeks was when he was putting her to bed during the period that her mother was in Bali or on occasions when he was greeting and farewelling her. This contradicted the evidence she gave in the interviews with police.
-   During her sworn evidence K said that she and the defendant were on their way to get takeaway food for dinner the night they detoured to the defendant’s bus (trailer), during which the alleged sexual acts in the bus were said to have occurred. However in the second interview with the police officers, K said that they detoured to the defendant’s bus when they were on their way to the defendant’s friend’s house. Furthermore, K’s sworn evidence as to the occasion she was driven to the defendant’s bus was not supported by her mother, who would have noticed her absence for such an extended period of time if what K alleged was true.
-   When asked how many times she had been in the defendant’s bus (trailer), K said that she had only been there once. However K’s mother stated that K had visited the defendant’s bus with her at least twice; once when the bus was at Ferryden Park and once when it was parked in the driveway of the defendant’s home in Burnside. When cross-examined, K said she did not remember whether the only times she had been in the defendant’s bus were in the company of her mother, although she appeared to maintain that she had only been in the defendant’s bus alone with him once.
-   K was convinced that the defendant did not own a ride-on lawnmower. She said that she had never ridden on one before. Both were contrary to the undisputed evidence given by K’s mother and the defendant. Although the prosecution submitted that K was compelling when giving evidence about the incident when the defendant is alleged to have pulled K down onto the lawnmower before kissing her, it is significant that K was mistaken about the type of lawnmower the defendant owned or that she had been taken for a ride on it, a fun experience a child would likely have remembered, indicating some loss of memory by K.
·As detailed in the summary of K’s evidence above, K was often unable to describe the circumstances surrounding the acts of sexual exploitation she alleged (perhaps due to the deficiencies in the conduct of the police interviews) and this has impacted upon my assessment of her reliability and at times credibility.[61]
·There is no evidence to support K’s allegations of sexual abuse.
·K was not medically examined and as a result there is no evidence of injury due to anal or vaginal penetration by a finger or penis, which might have been expected.[62] This has disadvantaged the defendant as a medical examination conducted at the time of the alleged penetrative sexual activity might have supported his defence and as such requires the court to scrutinize K’s evidence with this in mind.[63]
·The defendant’s repeated denials of any sexual impropriety against K.
[61] See R v Hamra op cit at [37].
[62] The prosecution did not call any expert evidence on this issue.
[63] See s 34CB of the Evidence Act. A point conceded by the prosecution.
I emphasize that these reasons in no way reflect a view held by me that K is a liar or an outright dishonest witness. Nevertheless, after careful scrutiny of K’s evidence, I am left with a number of reservations about the accuracy and credibility of the evidence she has given.
As the standard of proof in a criminal trial is an exacting one, I find myself in a position where I am left with reasonable doubt on K’s evidence alone that any of the acts of sexual exploitation necessary to prove the offence have been established.
Verdict
I find the defendant not guilty.