R v J P
[2024] SADC 83
•12 July 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v J P
Criminal Trial by Judge Alone
[2024] SADC 83
Reasons for the Verdict of her Honour Judge Deuter
12 July 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused elected for trial by judge alone on one count of maintaining an unlawful sexual relationship with a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 1 January 2013 and 31 December 2015, the accused committed the acts against his younger cousin BP of maintaining an unlawful sexual relationship with BP, namely:
(a) causing her to touch his penis;
(b) causing her to perform an act of fellatio upon him; and
(c) touching her genital area on one occasion.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50 and 50(1); Evidence Act 1929 (SA) ss 34M, 34CB, 34P(2) and 34P(4), referred to.
R v Mann [2020] SASCFC 69; Ford v The King [2023] SASCSA 117; Butera v Director of Prosecutions (Vic) (1987) 184 CLR 180; R v Ortega-Farfan [2011] QCA 364; The Queen v Pftizner (1976) 15 SASR 171; R v Abdulla [2010] SASC 52; R v Stringer [2000] NSWCA 293; Douglass v The Queen [2012] HCA 34, considered.
R v J P
[2024] SADC 83Contents
Background
Description of family members
Elements of the offence
Legal Directions
Voir Dire
1. The CCTV footage
Provenance of the CCTV footage and copy
Ruling
2. The Family Meeting
The Evidence
The Complainant, BP
The Complainant’s father, PP
The Complainant’s sister, SP
The Complainant’s mother, PV (through an interpreter)
The complainant’s sister, DP
The Accused, JP
The Accused’s father, ThP
Consideration
Ruling
Evidence of Offending
1. The Prosecution case
The complainant, BP
BP’s father - PP
BP’s sister - SP
BP’s mother – PV (through an interpreter)
BP’s brother - TP
BP’s sister - DP
Detective Brevet Sergeant Sarah Brown
2. The Defence Case
The Accused - JP
JP’s brother - MP
JP’s sister - AP
JP’s father - ThP
Submissions in closing
1. Prosecution closing address
2. Defence closing address
3. Prosecution reply
Decision
Verdict
R V JP
Background
The accused (JP) is charged on an Information dated 23 September 2022 with Maintaining an Unlawful Sexual Relationship with a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The particulars of the offending were agreed at the start of a trial on 4 December 2023:
JP between the 1st day of January 2013 and the 31st day of December 2015 at Salisbury Plains, maintained an unlawful sexual relationship with BP, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a. causing her to touch his penis on more than one occasion;
b. causing her to perform an act of fellatio upon him on one occasion; and
c. touching her genital area on one occasion.
This is a ‘prescribed offence’ within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The accused and the complainant (BP) are first cousins on their father’s side. They lived with their respective families as next‑door neighbours. The Prosecution allege that the sexual offending is alleged to have taken place at JP’s home on occasions when BP was visiting.
It is an agreed fact that BP was born on 25 May 2007; and that JP was born on 29 November 1993. BP was between 5 and 8 years old during the period of the alleged offending. JP was between 19 and 22 years old.
The incidents involving the touching of JP’s penis are alleged to have occurred in the bedroom that he shared with his brother, MP. The occasion of JP demanding that BP fellate him is alleged to have occurred when he walked BP into the bathroom adjacent to his bedroom.[1] The third incident is alleged to have occurred when BP was sitting with JP on his bed, and he demanded that she take off her underwear. BP complied and it is alleged that JP touched her vagina, on the outside. A later, uncharged allegation was of JP lifting BP’s dress whilst she was in his room, and looking at her underwear.[2]
[1] An agreed fact at trial was that the bathroom attached to the bedroom shared by JP and his brother was renovated in October 2013.
[2] Transcript of Prescribed Interview dated 3 July 2021 (Exhibit MFI P2) at p21; T159.
On 23 September 2022, JP pleaded not guilty in this court to the charged offence. A late application for election for trial by judge alone was filed on 17 November 2023. This was opposed by the Crown. After argument, a judge of this court granted an extension of time for election to 17 November 2023. The trial proceeded without a jury.
A further agreed fact is that JP has never been charged or convicted of any criminal charge outside of these proceedings.
I now publish my reasons for the verdict I deliver.
Description of family members
As a result of the nature of the offending, and the family dynamics involved, to ensure that the complainant and the accused will not be identified, all family witnesses will be described by initials. They are as follows:
(1)The complainant’s family
BP- the complainant
PPthe complainant’s father
PV- the complainant’s mother
KL- the complainant’s father’s first wife
SP- the complainant’s half sister
DP- the complainant’s half sister
TP- the complainant’s half brother
JaP- the complainant’s younger brother
LP- the complainant’s cousin
(2)The accused’s family
JP- the accused
MP- the accused’s brother
AP- the accused’s sister
ThP- the accused’s father
TO- the accused’s mother
Elements of the offence
The Prosecution must prove beyond reasonable doubt the following elements of the offence in relation to each count:
1.That JP was an adult at the time of the alleged offending.
Upon the agreed fact, this element was not in dispute and I find it proved beyond reasonable doubt.
2.That BP was a child at the time of the alleged offending. Upon the agreed fact, this element was not in dispute, and I find it proved beyond reasonable doubt.
3.That JP knowingly maintained a relationship with BP during the period over which the alleged sexual acts occurred. The relationship cannot be constituted by isolated acts but must have a degree of continuity. The relationship must comprise more than the alleged sexual acts alone. In considering whether there is a relationship for the purposes of s 50 of the Criminal Law Consolidation Act 1935 (CLCA), all of the circumstances of the association between JP and the alleged victim, must be taken into account.[3] Whether there is a relationship is a question of fact.[4] This element was not in issue at trial and I am satisfied beyond reasonable doubt that JP maintained a familial relationship with BP during the relevant period. He is BP’s first cousin; and he and his family lived next door to her family, over the period of the alleged offending.
4.That JP engaged in an unlawful sexual relationship with BP. An unlawful sexual relationship is a relationship in which, during the period that it was being maintained, JP committed two or more unlawful sexual acts with or towards the complainant. Each of these acts is denied by JP. The particularised unlawful sexual acts as alleged are:
· Indecent Assault (encouraging BP to touch his penis, and touching BP’s vagina)
· Unlawful Sexual Intercourse (fellatio),
[3] R v Mann [2020] SASCFC 69 at [12].
[4] Ibid at [21].
As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
As BP was under the age of 17 years at the time of the alleged offending, the issue of consent is irrelevant.
The sole issue in dispute is, whether the Prosecution has proved beyond reasonable doubt, that JP committed the alleged unlawful sexual acts on two or more occasions.
Legal Directions
As the trial proceeded by judge alone, it is not necessary to outline the standard jury directions. However, I remind myself of the following directions:
·That JP is presumed innocent unless, and until, his guilt has been proved beyond reasonable doubt by the Prosecution. The burden of proof rests wholly on the Prosecution and JP is not obliged to prove anything. In relation to the alleged offending, nothing short of proof beyond reasonable doubt is sufficient. It is not enough for the Prosecution to show a suspicion of guilt or to show that JP is probably guilty. The Prosecution must prove each element of the offence beyond reasonable doubt. If there is an explanation consistent with the innocence of JP, or after careful consideration I am unable to decide where the truth lies, then the Prosecution will have fallen short of proving its case beyond reasonable doubt, and JP must be found not guilty.
·In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, I mean to a standard of beyond reasonable doubt.
·I must determine whether each of the witnesses that have been called are credible and reliable. I can accept part of a witness’ evidence, and reject part of that evidence, or I can accept or reject it all. If, however, the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged, then JP remains presumed innocent and I must return a verdict of not guilty.
·JP elected to give evidence. He was not required to, and could have remained silent. I remind myself that I am to assess his evidence in the same way as other witnesses, and must not give it less weight because it was given by the accused person.
·The onus of proof does not change because JP gave evidence. The onus remains on the Prosecution to prove the charged offence beyond reasonable doubt. Even if I reject JP’s evidence, and disregard it, the question remains, has the Prosecution, on the evidence I accept, proven guilt beyond reasonable doubt.
·In this regard my decision is not to be based upon a preference between the evidence of BP and JP. If I accept JP’s evidence, I must find him not guilty. Even if I find there is a reasonable possibility that JP’s evidence is true, I must find him not guilty.
·The evidence of all witnesses must be assessed for both its credibility and reliability. In doing so, I am able to consider a witness’s demeanor, and must take into account that witnesses vary in age, background, education and their ability to express themselves.
·Evidence was given by BP of initial complaint and elaboration of that complaint. Evidence of complaint must meet the criteria in s 34M of the Evidence Act (1929) (Evidence Act). It can be used to understand how the allegations first came to light and the degree to which BP has acted consistently. That is, was BP’s complaint about the offending at the time, what might be expected, and to what extent did her account remain consistent from the time that she first reported the offending. The evidence of complaint does not demonstrate the truth of what was said. The complaint can be used for assessing the credibility of BP, including any difference between her account and that of the complaint witness.
·I must take into account that there are multiple reasons for when and how a complaint is made. Issues of credibility, consistency of conduct or inconsistencies, and the circumstances leading to the complaint must all be considered.
·The defence is not required to provide or prove a motive to lie. The fact that there is limited evidence presented of a motive to lie does not strengthen the Prosecution case. It is neutral.
·I must consider any evidence said to support a motive to lie, and whether it affects the evidence of BP and other Prosecution witnesses. If I reject the evidence of the motive to lie, this does not mean that BP is necessarily telling the truth. It does not strengthen the Prosecution case. There are many reasons why a witness may lie, and I am not to treat BP’s evidence as more credible because I have rejected reasons for her to be lying.
·In addition to BP’s prescribed police interview (the prescribed interview) conducted on 4 July 2021, BP gave additional evidence and was cross-examined via an audio visual link from a witness suite. I must not draw any adverse inference against JP because of those arrangements, nor allow them to influence the weight I give to BP’s evidence.
·However, the Prosecution case rests on the evidence of BP and I must therefore scrutinise her evidence carefully.
·I am to consider the directions set out in s 34CB of the Evidence Act in assessing whether there is any forensic disadvantage to JP. I am not to speculate as to what any absent witness may have said in evidence. I should however take into account any absence of evidence when assessing the witnesses called by the Prosecution, and when deciding if the charge has been proven beyond reasonable doubt. If I find there is a forensic disadvantage, I must identify the matters that cause a disadvantage to JP as the accused person.
·Any evidence of discreditable conduct given by BP was not the subject of a notice filed by the Prosecution pursuant to s34P(4) of the Evidence Act (1929). Any evidence was therefore not led for a propensity purpose. Before I can use any of the evidence led by the Prosecution for a discreditable conduct purpose, I must be satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on JP.[5] I must be satisfied that the permissible use can be kept sufficiently separate and distinct from the impermissible use.
[5] s 34P(2)(a) of the Evidence Act.
Voir Dire
On 17 November 2023, the defence filed a Rule 39 Notice seeking to exclude all evidence at trial referencing:
…a family meeting (inclusive of a subsequent gift of a puppy to the complainant by a third party) said to have been conducted on Saturday 26 June 2021 (the family meeting).
The family meeting involved JP, BP, and several other family members, including both sets of parents. This meeting was after BP had disclosed the alleged offending to her sister, SP and as a result, BP’s parents learned of the allegations. It was argued that JP felt pressured to attend the meeting and did not attend of his own free will. The timing of the meeting was also relevant, as it was before JP was arrested, and before BP had participated in the prescribed interview. The Prosecution argue that the admissions were made when JP was confronted by BP’s allegations.
The grounds relied upon by JP as set out in the Rule 39 Notice are:
1.The applicant was obliged to participate in the family meeting and thus his communications in that context cannot be said to have been in exercise of his own free will.
2.The meeting was conducted in the shadow of the threat of a police report absent his cooperation in the context of the meeting.
3.The external pressure applied to the applicant by senior family members was otherwise oppressive and, further, this serves to compromise the reliability of any comment made by the applicant in this setting.
4.The allegations were not put to the applicant with consistency and/or clarity, thus compromising reliability and relevance.
5.The responses allegedly given by the applicant lack clarity, thus further compromising reliability and relevance.
6.Others present during the course of the family meeting, the applicant’s immediate family members (his parents), provide an opposing narrative as regards relevant events, thus creating a factual controversy that again serves to compromise reliability.
7.The evidence lacks relevance.
8.The evidence is unreliable.
9.The evidence is otherwise more prejudicial than probative.
10.To admit the process of interrogation would otherwise be unfair to the applicant.
At the commencement of the trial, I was advised that there were several issues in relation to the family meeting, that could only be determined after the evidence of the participants (at least eight people) was heard. In addition, there was CCTV footage of the meeting (without sound). As all attendees at the family meeting would be giving evidence generally at trial, it was agreed that the trial should commence with all witnesses giving evidence. Any evidence regarding the family meeting would be received de bene esse, on a provisional basis, without determining admissibility. At the conclusion of the trial, submissions would be made on the voir dire and, depending upon the ruling, the evidence regarding the family meeting may be excluded.
As the trial proceeded, JP sought to have the CCTV footage of the family meeting excluded from the evidence. Again, I allowed the trial to proceed until I had heard evidence on oath regarding the circumstances of the creation of the footage. My rulings on each of these issues are set out below.
1. The CCTV footage
I ruled that CCTV footage of the family meeting as comprised in MFI P7 should be excluded. This was CCTV footage of the family meeting, and it did not contain any audio.[6] The family meeting was held in the complainant’s home, and the relevant footage was later deleted from the CCTV hard drive. The version of the CCTV footage sought to be tendered was therefore not the original CCTV footage, but a copy.
[6] MFI P7.
It was conceded by the Prosecution that exhibit MFI P7 was in fact three ‘clips’ of a much longer piece of CCTV footage.[7] These were parts of the original footage copied by BP’s mother, PV, by holding a mobile phone (iPhone 13) to the original footage as it was displayed on another mobile phone (iPhone 8), owned by BP’s father, PP. The iPhone 8 was placed on a table, and PV held the iPhone 13 over the top of it to record several parts of the family meeting.
[7] T247.
This occurred before the original CCTV footage was deleted from the hard drive. The footage from the hard drive was accessed by using the iPhone 8.[8] No admissible evidence was led regarding the location of the CCTV cameras,[9] nor how the original footage was deleted.
[8] T231-232; T366.
[9] T239-244; T248-249.
It was agreed by the Prosecution that the footage sought to be tendered did not show the entirety of the footage. For most of the footage, only half of the participants were filmed.[10] PV told the court that she recorded on to her phone only footage of JP on the day BP made her allegations, being 27 June 2021. Only three separate clips of the footage as copied were sought to be tendered.
[10] T491.
The admissibility of the CCTV footage in MFI P7, despite the manner in which it was produced, was argued by the Prosecution on the basis that it was ‘real’ evidence that showed the placement of persons at the family meeting.[11] The Prosecutor relied upon the decision of the Court of Appeal in Ford v The King[12] (Ford) where, photographs taken by police of what they found on a mobile phone used by the appellant, were admitted in as evidence at trial. The Court found that the evidence located in the appellant’s mobile phone was relevant and admissible evidence in proof of the Prosecution’s circumstantial case. It was said that:
… the notion that mobile phones can be used to take, send and receive still and moving digital images, usually described as photographs and videos, is also well recognised.[13]
[11] T247-249.
[12] [2023] SASCSA 117.
[13] Ibid at [53].
In these proceedings, PV did not simply copy or download the CCTV footage. She edited it by only copying three small parts. She also moved the ‘recording’ iPhone 13 in and out as she sought to highlight parts of the footage that she considered to be important in incriminating JP. In addition, the screen of the iPhone 8 from which PV recorded the footage was cracked in several places, meaning that the footage recorded onto the iPhone 13 was at times not clear and blurred over. It was not an accurate replication of the original CCTV footage.
I was also taken to the decision of Butera v Director of Prosecutions (Vic)[14] (Butera), where the High Court considered the provenance of the transcripts of recordings, including the translation of tape recordings. Mason CJ, Brennan, and Deane JJ said that the proper view was that the tape by itself is not admissible evidence, but rather it is the sound produced by its playing which is admissible.[15] They found that the best evidence rule cannot be used:
…. to exclude evidence derived from tapes which are mechanically or electronically copied from an original tape. Provided the provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved, there is no reason why the copy tape should not be played over in court to produce admissible evidence of the conversation or sounds originally recorded.[16]
[14] (1987) 184 CLR 180.
[15] Ibid at [9]-[10].
[16] Ibid at [11].
Defence counsel argued that these authorities have no work to do in this matter, as the original footage had been edited and MFI P7 is not simply a copy of the original CCTV footage.[17]
[17] T374.
I have reviewed the authorities and find that the admissibility of ‘copy’ tapes (or in this case just a ‘copy’) requires as a condition that the ‘provenance of the original tape, the accuracy of the copying process and the provenance of the copy tape are satisfactorily proved.’[18]
[18] Butera at [10].
Provenance of the CCTV footage and copy
The Prosecutor submitted that the evidence of PP and VP established that the family meeting was recorded by CCTV cameras without audio. PP and VP’s evidence explained how VP then copied parts of that footage and why the original was deleted.
The Prosecution relied upon MFI P7 as circumstantial evidence that corroborated that the family meeting took place; and showed the manner in which JP and the other witnesses conducted themselves generally.
Defence counsel argued that without audio the CCTV footage was of limited value. The circumstances were not analogous to the factual circumstances in Ford, as a direct replication of what was on the CCTV recording was not made and the precise editing method was unknown.
The Court was taken to the decision of the Supreme Court in Queensland in R v Ortega-Farfan[19] (Ortega-Farfan), where the appellant had made inculpatory statements in a conversation that was covertly recorded by the complainant’s father. However, portions of the conversations were omitted from the transcript read to the jury. It was submitted on appeal that the omitted parts of the transcript influenced the meaning of the appellant’s statements as relied on by the prosecution, in that they materially weakened the inference of guilt.
[19] [2011] QCA 364.
The conviction was set aside by the Court of Appeal. It was found that the edited transcript had presented the jury with an incomplete picture of the conversations, meaning the jury could not make a ‘meaningful assessment of the significance of the appellant’s allegedly incriminatory statements’.[20]
[20] Ibid at [59].
Defence counsel argued that the CCTV footage in MFI P7 was similarly cherry picked in an ambiguous manner. The editing process was also not made clear by PV’s evidence. This impacted the accuracy and reliability of the footage and there was no evidence of what parts of the original CCTV footage were excluded. There was clear and obvious editing by VP as she moved the iPhone 13 closer and then away from the iPhone 8.[21] This, together with pauses and jumps in the footage, was described by defence counsel as manipulation, and of the footage having no continuity.[22] It did not show the entirety of the family meeting. The footage was of very low quality, and without audio of what was said, had negligible relevance.[23]
[21] T443.
[22] Ibid.
[23] T448-449.
Defence counsel also raised that there was no evidence as to when and why the original footage was deleted.[24] In summary, he submitted that the contents of the exhibit MFI P7, were a secondary recording and no proper basis for admission had been established.[25]
[24] T450.
[25] T490.
Ruling
On 12 December 2023, I ruled that the footage in MFI P7 was inadmissible. The provenance of the footage, and particularly the copying process was not satisfactorily proved. As a result, it had no, or minimal, probative value. This was compounded by the fact that the footage had no audio, and it was only the position and demeanor of those on screen that could be used as circumstantial evidence.
I found this to be a different factual scenario to that considered in Ford where the copies taken were of static images.
VP’s evidence was that the sole purpose for editing the footage the way she did was to capture JP’s ‘confession’. I found VP to be an unimpressive witness as she was evasive regarding the parts of the meeting that she copied, and those that she did not.
I found that in all the circumstances, the provenance of the edited footage had not been proved. The footage was not helpful to the Court, given its quality and clear editing to suit a purpose. It was also highly prejudicial to JP, in circumstances where he was not aware that CCTV cameras were recording the meeting. This left him with no opportunity to review the full footage before it was deleted.
I find that there was no proper basis for the footage in MFIP7 to be admitted.
2. The Family Meeting
Before determining the voir dire regarding the family meeting, it is necessary to review the relevant evidence of the witnesses to that meeting.
The Evidence
The Complainant, BP
In the prescribed interview, BP said that when SP told their dad about the sexual offending ‘he went a bit crazy’ and decided to go next door and tell ThP. This led to JP’s parents coming over to discuss the allegations, without JP.[26] DP was also contacted and when she arrived, SP told DP of the detail of the allegations.[27]
[26] Transcript of Prescribed Interview dated 3 July 2021, page 29.
[27] Ibid.
SP told BP that there were discussions between both sets of parents about forgiving JP and not reporting him to police. ThP then went home to bring back a puppy for BP to make her happy. She rejected this.[28]
[28] Page 30.
Later in the evening after JP came home, he and his parents came over to BP’s house for a family meeting.[29] SP and DP sat either side of BP, and JP was sitting across from them.
[29] Page 32.
BP told police that JP said he was sorry during the family meeting and called himself stupid. BP said that JP said several times he did not know why he did it, blaming his hormones.[30]
[30] Page 32.
During her in court evidence, BP said she was quite emotional at the family meeting, as were other family members. There was talk about police and what would happen next.[31] However, BP had thought the purpose of the meeting was for JP to apologise.[32]
[31] T164; T168-169.
[32] T165.
BP gave evidence that the extent of the allegations discussed during the meeting was limited to the lifting of her dress and JP touching her.[33]
[33] T169.
BP agreed that she had spoken of JP’s girlfriend, Jenny. She had asked JP what Jenny would have thought of his actions.[34] JP spent most of the meeting with his head down.[35] In relation to any admission, BP said that JP admitted he had done ‘it’ and he was sorry for ‘it’. She denied that he had said he didn’t remember any offending, but if he had then he was sorry.[36]
The Complainant’s father, PP
[34] Ibid.
[35] Ibid.
[36] T169-170.
PP said that either his wife or his brother’s wife, TO had said that JP wanted to say sorry to BP.[37] This led to the family meeting. BP, SP and DP were present, beside PP and PV. JP attended with his parents. PP acted as chairman, sitting next to JP, who started apologising. He was looking down in a slouched position and shaking his head. PP described this as JP ‘confessing’.[38] PP said he put his hand on JP’s back as he confessed.[39]
[37] T223.
[38] T225.
[39] T279.
PP confirmed that what JP was admitting to was not set out during the meeting. JP could not explain why he had done ‘it’.[40] PP denied that he told BP that JP might try and kill himself, before JP came to the meeting, or that JP should say sorry to the family and cooperate.[41]
[40] T227.
[41] T278-279.
PP denied asking for money, up to a $1 million dollars, from JP for compensation, but agreed he had discussed police charges. PP told JP it would be best if he pleaded guilty as he would get a more lenient sentence.[42] PP said that SP threatened JP, calling him ‘dead meat’.[43] She was emotional at the meeting.
The Complainant’s sister, SP
[42] T280.
[43] T287.
SP told BP’s parents about the allegations against JP. She told them everything that BP had told her.[44] After the allegations were discussed, it was agreed that JP would come over to BP’s house to meet with the families. SP was present and described JP as having his head down.[45] SP said that JP was sitting with his parents, opposite her.
[44] T320.
[45] T323.
SP described BP being in tears whilst yelling at JP, calling him a ‘paedophile’, and a child abuser.
SP then became involved in setting out an extensive list of all the sexual offending she said BP had told her. This was far more extensive than BP’s evidence of what she had said the allegations were as contained in the prescribed interview.[46] I find that this was SP’s approach to her evidence generally. She gave florid descriptions of the extensive alleged sexual acts.
[46] T325.
SP described JP’s parents as being afraid he would go to jail and they did not want SP to report the matter to police, or for BP to go to a psychologist who would then have to report JP to police.[47] Towards the end of the meeting, she said that, JP ‘openly admitted that he had committed’ all of the described acts. He said what he did was wrong and promised never to do it again. JP described himself as the ‘worst of the worst’ and said he should not have done it.[48]
[47] T326.
[48] T327.
SP said JP wanted to come over to her father’s house and no one told him what to say.[49] I pause to note that SP was not with JP before the meeting started, and as a result that statement is hearsay and of no evidentiary value.
[49] T327.
In cross examination, SP was very defensive and exaggerated portions of her evidence, particularly in relation to the allegations discussed at the meeting. She denied that anyone at the family meeting called JP ‘dead meat’, but agreed that the first time she spoke to JP about the allegations was at the meeting.[50] She confirmed that JP admitted to the offending, after BP had recounted it in detail to him.[51]
The Complainant’s mother, PV (through an interpreter)
[50] T344.
[51] T345-346.
PV gave her evidence in a highly emotional way, often yelling her answers. I found that she had a script that involved ensuring JP was convicted. This often meant she did not answer the question put to her, but provided her own narrative. This was unhelpful and impacted her reliability.
In relation to the family meeting, PV described JP as looking very serious, and worried.[52] As SP was speaking, JP’s head was down, and he was not looking at the others. However, as a result of her limited understanding of English, PV did not know what was being said by SP, or JP’s responses. She agreed that SP was very angry.[53]
[52] T362.
[53] T485.
PV then gave evidence that she did understand BP asking JP why he had done ‘it’ to her and JP apologising. She also said that Jenny was mentioned as JP’s girlfriend, and what would she think about what JP had done.[54]
[54] T363.
PV said that she spoke at the meeting, acknowledging BP’s suffering and asking if she could forgive JP this one time. BP was said to have responded ‘no mum, no mum’.[55] PV described JP as being a ‘…very, very good boy at the meeting’.[56] She described JP as coming to their house to confess.[57]
The Complainant’s sister, DP
[55] T364.
[56] Ibid.
[57] T367.
DP said that she found out about the allegations when SP called her and told her BP’s allegations. She later went to her father’s home and spoke to SP and BP. The extent of the allegations said to have been told to DP by SP went well beyond the pleaded allegations in the Information. DP said the allegations included giving JP ‘head’ under his study table on multiple occasions; JP getting BP under the sheets to touch her and finger her, and JP locking BP in the bathroom so she would give him head a few times.
Although this is hearsay evidence, and bears no value in determining JP’s guilt, I find it relevant to assessing DP’s credibility and reliability as a witness.[58]
[58] i.e. cross examination of DP at T439.1-11.
DP said that after discussing the allegations, she was walking to her car when JP’s mother (TO) came out and told her that JP had admitted the offending and wanted to talk to their family. DP’s evidence was when she said it was late, TO said that JP was insisting that the two families speak. She agreed to stay, and the family meeting proceeded.[59]
[59] T421.
DP’s evidence was that JP walked into the meeting with his head down and did not look at anyone.
DP asked JP why he had done it? He then apologised, and explained he had some kind of ‘urge’ and did not know what he was doing at the time. DP said that no one put the actual allegations to JP during the meeting, accepting that TO had already confronted him.[60] She did however ask what Jenny would think of the offending.[61]
[60] T423.
[61] T424.
DP said that JP’s father told them all that no one was to tell anyone else about the offending.[62] DP did not hear SP call JP ‘dead meat’, nor did she hear BP level accusations at him, such as him being a paedophile.[63] She did not agree that PP was acting as chairman, or that he ever put his arm on JP’s back.[64]
The Accused, JP
[62] T426-427.
[63] T429.
[64] T430
JP’s evidence was that he was blindsided by the allegations made by BP when he arrived home on a Saturday afternoon in June 2021. He had seen PP speaking with his father, and he was then called in to speak to his parents. He was told that BP alleged that he had touched her five to seven years prior. His parents wanted him to come over to BP’s home to discuss these allegations with BP’s parents.[65] They were worried about her and threats of her running away to Queensland and suicide was also mentioned. JP’s own mother put pressure on him to go next door. JP’s evidence was that he was ‘basically forced to go over there’.[66] I took this to mean culturally and psychologically pressured. JP confirmed that in Vietnamese culture a younger person does not talk back to, or challenge elders.[67]JP described this as him feeling a sense of obligation to attend the family meeting.
[65] T520-522.
[66] T522; T549.
[67] T525-526.
JP was aware of PV’s previous attempts on her life. He described her as ‘crazy’.[68]
[68] T522-523.
JP confirmed that when they went next door, he was taken into the family room. PP, PV, SP, DP and BP were present. Both of JP’s parents were with him. PP told JP where to sit; on a couch between PP and his own father. BP, SP and DP sat opposite. JP agreed that PP took on a chairman like role.[69]JP’s evidence was that SP spoke at the meeting first. She was dominant and ‘attacking’ throughout the family meeting as she pressed JP regarding the alleged offending. She accused JP of touching BP, and lifting up her dress. SP also called him ‘dead meat’ and a paedophile. As SP kept pressing JP, he said ‘I don’t remember doing it, but if I did it, I’m sorry’.[70] This was in response to SP’s limited allegations.
[69] T524-525.
[70] T526; T528.
When asked about this confession, JP said that this was the only line he could use to help his uncle, PP. His evidence was that PP told him that when allegations were put, he should not argue and just agree.[71] JP described this as following his uncle’s orders or instructions.[72]
[71] T530.
[72] T561.
JP also said that before SP confronted him at the family meeting his parents had said that the allegations regarding BP involved touching her and lifting her dress. That was the extent of the allegations, and JP denied his parents ever put anything further to him before the family meeting. He also denied that he went to the meeting to apologise for the more extensive allegations now part of the charge against him; or to stop any report to police.[73]
[73] T545-547; T561.
JP denied that he had touched BP.
JP spoke of other pressure upon him at the meeting. This included BP asking him about his girlfriend Jenny, and saying he should break up with her.[74] JP also thought BP called him a paedophile.[75] He was not however physically prevented from leaving the family meeting.[76] JP remained, while SP made her allegations. He decided to keep his head down. He agreed he shook his head as she spoke, and PP might have patted him on the back. He said he was upset and tired.[77]
[74] T527; T528.
[75] T528.
[76] T528; T549.
[77] T528-529.
JP denied that SP ever put the extensive allegations of sexual abuse to him at the family meeting, including the fondling of his penis and him touching BP’s vagina.[78]
[78] T547.
JP explained that he did not get along well with SP before the allegations were made. He understood SP hated him.[79] However, he was close to PP.[80]
The Accused’s father, ThP
[79] T533-534.
[80] T542.
On 26 June 2021, PP came over to his home to speak to ThP and his wife, and ask them to come over to his house to discuss an issue. When ThP and PV arrived next door BP, DP and SP were present. SP told them that about five to seven years before JP had touched BP and lifted up her skirt.[81]
[81] T631.
ThP gave evidence that PP, his brother, said to let SP and others say what they wanted to as he was worried for BP’s well-being. PP said she may try to commit suicide like her mother had previously threatened.[82]
[82] T631.
When JP came home, ThP asked him if he had touched BP or lifted her dress about three years ago. JP denied it.[83] ThP then asked JP to come next door and speak to PP and PV, as they were worried about BP. ThP agreed that he had said to JP that his uncle was worried about BP running away or committing suicide.[84] JP said it was late and he was tired, but out of love for his family, he would go next door and help them. ThP pressured JP to go over to his brother’s house. PV also encouraged him to go over.[85]
[83] T632.
[84] T633.
[85] T634.
When ThP arrived at PP’s house, he told him that JP denied ‘doing it’. PP still wanted JP to come in and listen to what his daughters wanted to say. The family meeting then proceeded.[86] ThP confirmed JP’s version of the meeting, namely that:
(1)SP alleged that JP had touched BP five to seven years ago, and lifted her dress;
(2)JP said he could not remember doing it, but if he did, he was sorry.
[86] T635.
ThP gave evidence that SP had said that JP was ‘dead meat’. She raised the topic of his girlfriend Jenny. During the family meeting JP was very angry and just looked at the floor.[87]
[87] T635-636.
In cross examination, ThP said he now regrets using his parental authority to force JP to go over and help PP. He also emphasised that the only allegations made were that JP touched BP and lifted her skirt.[88]
[88] T632.
ThP denied that during the family meeting, JP admitted he had touched BP because he was a young, dumb, horny, hormonal teenager; or because he had urges.[89] He confirmed that PP and PV were worried about BP before the meeting as she had been trying to run away to Queensland, and they were worried she may commit suicide.[90]
[89] T653.
[90] T654.
Consideration
Defence counsel argued that the evidence of the family meeting should be excluded upon the basis that any admissions made by JP were impacted by the circumstances of the meeting; and that those admissions were not made voluntarily.
Whilst I acknowledge that issue, and the family and cultural issues that led to JP agreeing to attend the family meeting, I am of the view that the more important factual issue to be determined is what JP was admitting. This is highly relevant as, on BP’s evidence, the only allegation being discussed was of JP lifting her dress and touching her. The nature of that touching was not described. BP was adamant that this incident was what the meeting was about.[91]
[91] T169.
This evidence is inconsistent with SP’s evidence that BP was yelling at JP and calling him a paedophile. I prefer BP’s version of events, given that the allegations were about her.
SP was an angry and defensive witness, who became argumentative when challenged by defence counsel. She seemed determined to see JP punished and I find that this impacted the reliability of her evidence. She agreed that she had said to BP that she hated JP before any allegations were made.
SP was not privy to the discussions between BP’s parents, JP, and his parents. She was therefore not aware what allegations had been discussed before the family meeting. Her evidence was that JP said sorry for his actions, after BP had told everyone what had happened to her. This was in direct conflict to the evidence at both BP and PP.
SP’s step‑mother PV agreed that SP spoke a lot at the family meeting, and JP apologised. Her evidence did not assist in determining what JP apologised for.
BP’s father, in his evidence, said that it was unclear what JP was admitting as no precise allegations were put. He assumed that JP knew from early discussions.[92]
[92] T226-227.
DP’s evidence regarding the family meeting was based on hearsay regarding the allegations made by BP. She however confirmed that no allegations were put to JP at the family meeting. She did not hear BP call JP a paedophile.
JP’s evidence was that SP took control of the meeting. She accused him of touching BP and lifting up her dress. JP said, ‘I don’t remember doing it, but if I did I’m sorry’. This was the extent of the admission.[93]
[93] T526, T528.
The allegations made by BP regarding the extent of the sexual touching put at the family meeting, i.e., lifting her dress and touching her, was what JP said his parents had told him before the meeting. This was also the extent of what was put by SP to JP at the meeting.
This was consistent with ThP’s evidence. That is, the only allegations discussed were that JP touched BP and lifted her dress.
I find that the evidence does not reach any higher than JP admitting to lifting BP’s dress on one occasion and touching her in some undefined way. I am not satisfied that JP was made aware of the extent of the allegations, as particularised in the amended information, before, or at the family meeting. BP herself confirms that the only allegation put at the meeting was the uplifting of her dress.
Ruling
While I find that it is not necessary to determine whether JP’s attendance at the family meeting and any ‘confession’ was voluntary, so as to exclude the meeting from my consideration, I find it is likely that JP felt pressure to attend the meeting, and appease his uncle. However, taking into account all of the extraneous circumstances of the family meeting (familial pressure, extent of the allegations not put etc), any unfairness to JP is ameliorated. This is because the evidence is unclear in relation to what JP is admitting to, but this evidence is so limited in its uses, and of such limited value that any potential unfairness to JP is inconsequential.
I cannot find on the evidence that JP admitted to the offending which forms the basis of the charge, as set out in the amended Information. The evidence supports a finding that at the family meeting the only allegation put to JP was uplifting BP’s dress and some, undefined touching. This is what JP apologised for. This leads to a conclusion that if JP did apologise it was only for an uncharged act.
The evidence of the family meeting can only really be used to demonstrate the contextual background for how the allegations were put to JP and his family, as well as the credibility of the participants.
Evidence of Offending
I now set out the evidence relevant to the alleged offending taking account of my rulings.
1. The Prosecution case
The complainant, BP
BP’s evidence was comprised of the prescribed interview conducted by Detective Brevet Sergeant Munn (now Brown) on 3 July 2021, and sworn evidence given on Wednesday 6 December 2023 via CCTV with a court companion present.
(i) The Prescribed Interview
I found the recording of the prescribed interview to be sub‑standard, as the video and audio quality was poor, making it challenging to determine BP’s evidence and to assess her demeanor. I set out below a summary of BP’s evidence.
BP confirmed her date of birth. She has one brother JaP who lives at home with her and their parents. She also has three half siblings.[94] BP confirmed that JP was her cousin and lived next door.[95]
[94] Transcript of Prescribed Interview dated 3 July 2021, pages 4-5 (Exhibit MFI P2).
[95] Ibid, page 6.
BP said that she could not recall when the offending began.[96] She said that she thought it had stopped when she was in year 3, because she did not remember anything happening after she commenced year 4.[97]
[96] Ibid.
[97] Ibid, page 7.
In describing the offending, BP said that one day, she had been at JP’s house and was hanging out with his sister (AP). BP kept going into JP’s room and he forced her to go under his table in his bedroom. By force, BP said that she meant he asked her to do so, and JP did not physically force her under the table.[98] JP then took off his pants and asked BP to touch his penis.[99] This type of sexual offending occurred more than one time.[100] JP shared a bedroom with his brother, MP. The offending would happen when MP was not in the room.[101] BP could not remember the words JP said when he asked her to get under the table.[102]
[98] Ibid, page 8.
[99] Ibid, page 7.
[100] Ibid.
[101] Ibid, page 8.
[102] Ibid.
BP could not describe how, or in what way, JP made her ‘play with his penis’. She said there were a lot of things she could not remember.[103] She maintained that this happened under the desk on several occasions but could not pinpoint how many.[104] Afterwards, JP would pull up his pants and act as though nothing had happened.[105] His parents, and siblings were in the house when this occurred.[106]
[103] Ibid, page 9.
[104] Ibid.
[105] Ibid, page 10.
[106] Ibid.
BP said that JP was 14 years older than her, and that she thought he was still in high school or at university when the first incident under the table happened. BP said that she did not think that JP had a job at the time of the offending.[107]
[107] Ibid, page 11.
BP then gave evidence regarding the layout of JP’s bedroom. She said that he shared a room with MP, and they shared a bunkbed. JP slept on the bottom bed and his brother slept at the top. They had two desks on the opposite side of the room and a cupboard. BP completed a drawing of the bedroom.[108]
[108] Exhibit P3.
BP said that she and her brother, JaP, would typically go over to her cousins’ house together but when the incident under the table occurred, she had gone over to JP’s house alone. She also said that JP had been wearing either sweatpants or pyjamas at the time.[109]
[109] Transcript of Prescribed Interview dated 3 July 2021, page 11 (Exhibit MFI P2)
The next incident BP spoke about was when JP took her into the bathroom, which had recently been renovated, and he told her to put his penis in her mouth.[110] JP had said to her ‘let’s go to the bathroom’ and BP followed him in. BP said that she told JP that she did not want to do it. He responded with ‘I’m gonna tell my mum that you did this’.[111] BP said she could not exactly remember what JP was threatening her with.[112] BP said that JP continued to threaten her until she finally put his penis in her mouth. She said she recalled him telling her ‘to do it as deep as I could’[113]. BP said this occurred only once.[114] BP also said that this occurred behind the door of the bathroom.[115] On the agreed fact, this was after the bathroom was renovated in October 2014, and therefore BP was at least seven years old.
[110] Ibid, page 14.
[111] Ibid.
[112] Ibid.
[113] Ibid, page 16.
[114] Ibid, page 14.
[115] Ibid, page 15.
BP said that she did not remember what word JP used to describe his penis, but that she did know that this was what he was asking her to do.[116] She described that she was standing as this occurred. She thought she was probably JP’s waist height at the time.[117] BP said that she did not think anything came out of the JP’s penis, and that he was holding it whilst it was in her mouth.[118] BP could not recall what JP was doing whilst his penis was in her mouth, but she said she thought he may have just been standing still.[119]
[116] Ibid, page 16.
[117] Ibid.
[118] Ibid, pages 16-17.
[119] Ibid, page 17.
BP said she recalled saying to JP ‘oh look, I did it deep’ and then afterwards, he pulled his pants up.[120] On this occasion, the rest of JP’s family were again all home.[121] She said that afterwards, she went home and acted as though nothing had happened.[122]
[120] Ibid.
[121] Ibid.
[122] Ibid, page 18.
The third incident BP told police of occurred in JP’s bedroom. She said that the two of them were sitting, and laying on his bed, and that she was not wearing a shirt for some reason.[123] JP was hugging BP, when he told her to take off her underwear. BP said no, and she said she thought that he then started touching her genitals.[124] She does not remember taking her underwear off.[125] No one else was in the room at the time, but BP said that JP’s family were again in the house.[126]
[123] Ibid.
[124] Ibid.
[125] Ibid.
[126] Ibid, page 19.
BP said that whilst they were on the bed, and her top was off, JP hugged her from behind, and put his arms around to her front.[127] BP said that on this occasion JP did not go inside of her vagina, and he was touching her on her underwear.[128] She said that JP’s hand was ‘just over it’. However, when asked whether JP’s hand was over or under her underwear, she said that his hand was underneath.[129] BP said that JP was just ‘patting it and touching it’.[130]
[127] Ibid, page 19.
[128] Ibid, page 20.
[129] Ibid.
[130] Ibid.
BP then described another incident, which occurred when she was around 8 or 9 years old. BP said that she was a wearing a dress and was sitting on JP’s bed whilst he was sitting at his computer desk.[131] BP said that there was a tub of gummy worms on JP’s desk, and she had walked over to have some. JP told her that she could not. BP said that JP then lifted up her dress and looked at her underwear.[132]
[131] Ibid.
[132] Ibid, page 21.
BP said that she would hang around the JP’s house and in his bedroom a lot.[133] She described an occasion where she had been learning about sexual health at school, and she said the word ‘penis’ around JP. He told her that she could not say words like that. [134]
[133] Ibid.
[134] Ibid.
When asked why she thought the offending stopped when she was in year 3, BP said that she did not remember anything happening in year 4 and 5.[135] During the interview she was able to name her year 4 and 5 teachers.[136]
[135] Ibid, page 22.
[136] Ibid.
BP told police about another scenario where JP had given her his phone to play with, and she looked at his YouTube search and said that he had been looking up ‘woman breast feeding a baby’.[137] The context for this evidence was not clear.
[137] Ibid.
A summary of the sexual offending BP described in the prescribed interview was confirmed by BP to be:[138]
·The first time in JP’s bedroom when he asked BP to touch his penis under his desk. BP said this happened many times, but she could not say how many times, nor could she say over how many years or months.
·The second time was when they were in the bathroom and JP asked BP to put his penis in her mouth.
·The third time was on JP’s bed when BP was topless, and he touched her on the vagina. BP said she thought this happened one time.
[138] Ibid, pages 23-24.
BP said that she realised that what JP had done to her was bad during year 5, after she had camp where she was told that if someone goes to touch you ‘you just scream out and yell’. BP said that she knew what JP had done to her was bad before this, but she did not speak up about it because she felt embarrassed.[139]
[139] Ibid, page 25.
The first person whom BP told about the offending was her cousin, LP. This was via text message in 2019 (two years before the prescribed interview took place).[140] BP said that she told LP ‘Oh I have to tell you something, I’ve been sexually assaulted by JP’.[141] BP said that these messages were via the Instagram platform, but she has since deleted the messages.[142]
[140] Ibid, page 26.
[141] Ibid, page 27.
[142] Ibid.
This conversation occurred when SP was plucking BP’s eyebrows, and they had been speaking about their cousins. SP brought up that she hated JP. BP then said words to the effect of ‘I have to tell you something, but you can’t tell anyone’, and proceeded to disclose the offending to SP.[143]
[143] Ibid, page 28.
BP said that SP wanted to go to the police. BP was too awkward to disclose the offending to her parents, so she asked SP to tell them, which she did.[144] BP said this conversation took place in her bedroom. Both of her parents, SP, and her younger brother JaT were present during this conversation.[145]
[144] Ibid, page 28.
[145] Ibid, page 29.
BP said that her father said words to the effect of ‘if you report this to the police, you will never be able to come here ever again, and I never want to talk to you’. [146] BP said that her father also said words to BP’s mother, to the effect of ‘if you were at home to actually look after her this would not have happened’.[147]
[146] Ibid.
[147] Ibid.
BP said that her parents spoke about telling JP’s parents of the allegations. BP said her father went outside for a smoke in the backyard, and then JP’s parents came over to their home. BP said that JP’s parents said words to the effect of ‘Oh thank the lord he didn’t actually rape her, or like, go inside her or anything’.[148]
[148] Ibid.
The next person who became aware of the allegations was BP’s half sister, DP. BP said that SP called her and told her about the allegations over the phone.[149]
[149] Ibid.
BP’s parents wanted her to forgive JP and told her that if she wanted to throw him in jail, she would be ruining his life because he would lose his girlfriend and his job.[150] BP said she felt that her parents were defending JP.[151]
[150] Ibid, page 30.
[151] Ibid.
BP said that soon afterwards, her uncle brought over a puppy and said ‘oh I better give you this puppy so you can be happy and everything’ and BP said that she did not want a puppy.[152] BP said that the puppy was returned to her uncle’s home.[153]
(ii) Examination in Chief
[152] Ibid.
[153] Ibid, page 31.
The parties agreed on discrete issues upon which the Prosecutor could further examine BP. In response to a question, BP said that during the incident where JP made her touch his penis under his desk, she felt grossed out.[154] When asked whether this incident changed the way she acted around JP, BP said it did not because it would have been weird to change the way she acted around her cousins, and she did not want anyone else to know about the incident.[155]
[154] Transcript 107.
[155] T107.
BP said that she knew that JP’s conduct was wrong. She said that before the year 5 excursion, her mother had told her that if anyone were to touch her, she should yell and ask for help.[156] BP confirmed that the first person she spoke to about the allegations was her cousin, LP. She said she did not tell anyone sooner because she was embarrassed, and felt a sense of shame. She did not want people to look at her differently.[157] BP said she told LP because she was her closest cousin growing up.
[156] T111.
[157] Ibid.
BP deleted the messages where she disclosed the offending to LP because she did not want anyone to find out about them, as she thought she might get in trouble.[158]
(iii) Cross Examination
[158] Ibid.
BP said she could not pinpoint the years during which the offending occurred, but said that she knew from year 5 onwards it did not continue.[159] She confirmed that the alleged offending occurred when she was 5 to 6 years old and took place over a couple of years.[160]
[159] T113.
[160] T115.
BP confirmed that during the period of the allegations, she was living with her parents, and her younger brother.[161] None of the children from her father’s first marriage, TP, SP or DP lived with them.[162] She was unaware of any intervention order taken out against her father by his first wife, KL. BP was also unaware of any criminal allegations made by KL against her father.[163] BP confirmed however that the three children from her father’s first marriage, did not get along with her mother, PV.[164]
[161] T116.
[162] T116.
[163] T117.
[164] Ibid.
BP confirmed that JP lived next door with his parents, and his two siblings MP and AP. BP confirmed that JP and his brother shared a bedroom.[165]
[165] T118.
BP agreed that the main form of contact between the two households was family gatherings, as her father had many siblings, and the families would regularly get together.[166] These gatherings would take place in several different houses; not always held at the same one.[167] BP agreed that the children would hang out in groups during these family gatherings, typically according to gender.[168]BP agreed that she fought with JaP during family gatherings.[169]
[166] T118.
[167] T119.
[168] T120.
[169] T130.
In relation to AP, the accused’s sister, BP maintained that she would visit JP’s house at times for the purpose of hanging out with AP. She told the court that she would go over to JP’s house to watch Barbie movies, learn to braid hair and read with AP.[170] BP disagreed with the proposition that this never occurred.[171] BP affirmed some general evidence about contextual details relating to JP’s household, agreeing that AP was a homebody and studied a lot, and that JP and his brother MP played computer games together in their shared bedroom.[172] BP said that at the time of the alleged offending, MP was not in the room, but she could not specify where he was in the house.[173]
[170] T121.
[171] T122.
[172] T122-T125.
[173] T125.
BP agreed that JP and MP would travel to and from University together.[174] She agreed that their parents were strict, and she remembered both being home a lot.[175]BP gave evidence that the JP’s mother would babysit her and JaP during the school holidays.[176] This occurred during primary school when their own mother was working.[177] BP disagreed with the proposition that this never occurred.[178]
[174] T126.
[175] T126-T127.
[176] T128.
[177] T129.
[178] T130.
BP confirmed that all of JP’s immediate family would have been home during the alleged offending. She could not say where the other family members were but maintained that they were not in the room at the time.[179] She also agreed that JP’s parents required bedroom doors to remain open, but there were occasions when JP’s door would be closed, for example, when the older cousins wanted to keep the younger children out.[180]
[179] T131.
[180] T132.
In relation to the allegations, BP agreed the first time anything occurred was in JP’s bedroom.[181] She said that she was made to touch JP’s penis on several occasions, but she could not specify how many times, nor the first time it occurred.[182] She agreed that she told police that JP was wearing ‘pyjamas or sweatpants’ at the time.[183]
[181] T133.
[182] Ibid.
[183] T134.
BP was asked a series of questions pertaining to her proofing meeting before trial with the DPP on Wednesday 29 November 2023.[184] She confirmed that there was a discussion about what kind of questions she would be asked during the trial by defence counsel.[185] BP said that she also spoke to her father and sister, SP, about her evidence.[186] This conversation took place during dinner, a couple of days before the trial commenced. They spoke about their evidence and defence assumptions, and her sister said that they were not supposed to talk about these topics.[187] BP said that it was mostly her father speaking and telling them that their lawyers would be trying to make them look bad in court.[188]
[184] T142.
[185] Ibid.
[186] Ibid.
[187] T144.
[188] T146.
BP said that she was wearing pyjamas during the incident on the bed.[189] She said that JP touched her private part under her underwear. When asked why she was wearing pyjamas at JP’s house, BP said that because their house was next door, and she just would not change her clothes at times.[190] BP could not confirm at what time of day this incident occurred.[191] BP said that JP had told her to take off her pyjama top, which she did.[192] She could not identify what time of year it was, or whether there were other people in the house at the time of this incident.[193]
[189] Ibid.
[190] T147.
[191] T148.
[192] Ibid.
[193] T149.
In relation to the bathroom incident, BP said it occurred after the bathroom had been renovated.[194] JP’s mother was home, but BP did not know where his siblings or father were.[195] BP could not identify what JP was wearing, or what she was wearing; what time of year it was; or what time of the day on this occasion. BP said that this occurred only once.[196] She could not recall whether JP had ejaculated.[197]
[194] T150.
[195] Ibid.
[196] T151.
[197] Ibid.
BP disagreed with the proposition that these incidents did not occur.[198]
[198] T153.
In relation to the time where BP accessed JP’s phone, she said that she and JP were in his bedroom.[199] BP could not explain why she was there on her own, and she did not know the location of MP, or the rest of JP’s family.[200] BP confirmed that she saw a video related to breastfeeding on JP’s phone. This occurred during the period of the allegations.[201]
[199] T155.
[200] T156.
[201] Ibid.
In relation to the incident when BP was wearing a skirt and JP up skirted her, BP said she would have been approximately 9 years of age, and the dress was red with a cartoon character on the front of it.[202] BP said that the dress was a gift from JP’s mother.[203]
[202] T159.
[203] Ibid.
On the topic of being gifted a puppy by JP’s father, BP maintained her position that this did occur.[204] BP said this occurred a couple of days after she disclosed the allegations to SP.[205] BP said she thought the puppy was a toy poodle, and that JP’s father was a dog breeder.[206] It was put to BP that this puppy in-fact belonged to AP, to which BP said she was not sure which dog that was.[207] BP maintained that AP had nothing to do with the puppy that was brought over to her.[208]
[204] Ibid.
[205] T161.
[206] Ibid.
[207] T161-T162.
[208] T163.
In relation to her evidence regarding who she first disclosed the allegations to, BP confirmed that she first told a cousin LP via Instagram, but that the messages had since been deleted.[209] BP confirmed that the next person she told was SP.[210] BP confirmed that SP did not like JP, but denied that SP had said that she hated him.[211]
[209] T172.
[210] Ibid.
[211] T173.
BP confirmed in her evidence that there was an occasion where SP was talking about leaving a vibrator at her boyfriend’s place.[212] BP said she thought this occurred after the period of alleged offending.[213]
[212] Ibid.
[213] T174.
BP gave her evidence with no emotion. She could provide little or no detail of the circumstances surrounding the alleged offending, including what time of day she would be at her cousins’ place. When pressed to provide details, her responses were vague. She could not describe how or in what way JP made her play with his penis; nor how many times that offending occurred. She said she was threatened if she did not fellate JP but could not recall what those threats involved.
In relation to the offending on JP’s bed, BP added that JP did not have a shirt on, but she did not know why. She did not recall taking her underwear off to allow JP to touch her. BP’s evidence was contradictory as to whether she had kept her underwear on or not. Later in cross examination, BP said she had her pyjamas on. This was the first time this version was given.
I found there were several inconsistencies in BP’s evidence. She admitted that there were a lot of things that she did not remember. Whilst she was young when the offending occurred, I find that some of those inconsistencies cannot be explained by BP’s age.
BP’s father - PP
BP’s father was first married to KL, with whom he had three children, TP, SP and DP.[214] They separated in 2004.[215] PP met his current wife, PV, when he went back to Vietnam after his divorce was finalised.[216] They returned to Adelaide in 2006.[217] PP has two children with PV, being BP, and his younger son, JaP.[218] The family lives next door to his brother’s family. [219]
[214] Ibid.
[215] T191.
[216] Ibid.
[217] Ibid.
[218] T192.
[219] Ibid.
PP is employed as a refrigeration mechanic and is an electrician by trade.[220] At the time of the alleged offending, he was working full‑time, and was often on 24‑hour call.[221] PP gave evidence that his wife did not commence working until JaP was approximately two years old.[222] He said that she worked as a cleaner at a bakery shop from 3:00pm until 5:00pm during the period of 2013‑2015.[223] He could not recall how many days per week she worked.[224]
[220] T193.
[221] Ibid.
[222] Ibid.
[223] Ibid.
[224] T194.
PP then gave some evidence about the gate that was installed between his property and that of his brother.[225] He said it was built after the house was finished.[226] An aerial photograph showing PP’s property was tendered by the Prosecution.[227] PP said that the gate was used frequently by both households, for example, whenever there was a family gathering, or over the fence conversations.[228] He said that his children would use the gate to access the properties, when there was a party/family gathering, or when they were sent to borrow items etc.[229]
[225] T194-198.
[226] T194.
[227] Exhibit P4.
[228] T196.
[229] T197.
PP said that BP would go next door most often when the family would go over there for lunch or dinner.[230] He said that he did not always monitor BP during family functions and it was normal for her to go into different rooms.[231] PP could not recall explicitly seeing BP and JP spending time together. He could also not recall whether JP’s two siblings were always present during the times his family would visit.[232] PP could not comment on what his niece, AP, was doing during the family gatherings.[233]
[230] T199.
[231] Ibid.
[232] T200.
[233] T201.
PP was shown a floorplan of his brother’s home next door, which he had drawn and labelled.[234] This was tendered by the Prosecution.[235] During his evidence, PP amended this layout of the house, when he recalled that in 2013, JP was living in one bedroom and his brother MP had moved into bedroom number 3. JP’s parents had moved to sleep in the rumpus room.[236] He said that this change occurred when JP’s family were doing modifications to the bathroom adjacent to the boys’ bedroom.[237] PP said that MP thereafter remained in bedroom number 3 for the duration of his studies. This included the period of the alleged offending.[238] I pause to note that PP is the only witness who gave evidence that JP and MP did not share a bedroom around the time of the alleged offending. His evidence is in direct conflict with that of BP, who clearly stated that the boys shared a bedroom.
[234] T202.
[235] Exhibit P5.
[236] T211.
[237] Ibid.
[238] T212.
PP said that during family gatherings the door was often closed because JP and his brother would play video games in their room.[239] He knew this because he would have to walk past JP’s room to go to the bathroom.[240] PP said that AP’s door was also frequently closed.[241]
[239] T204.
[240] Ibid.
[241] Ibid.
PP later said that during the period of the alleged offending, JP and his brother would be in the room together, when BP and JaP were there.[242]
[242] T205.
PP said that he first became aware of the allegations involving JP when his daughter SP told him she had something serious to speak to him about. When PV came home, they all gathered inside a bedroom. This also included DP.[243] SP told them in Vietnamese that: ‘Jason asked Britney to fondle his penis’, and had asked BP to ‘suck his dick’. PP was very shocked, and BP was crying.[244] I pause to note that this evidence is hearsay and can only be used to establish how PP learned of the allegations. It is not complaint evidence.[245]
[243] T218.
[244] Ibid.
[245] T220.
PP said that SP wanted to report JP to the police, but he was worried about the impact on his family and JP’s future.[246] PP’s wife suggested that they should go and speak to JP’s parents about the allegations before going to the police.[247] PP said that SP wanted to immediately take BP to the police, but PP thought the best way he would be able to help in the situation was to speak to JP and ask him to see a lawyer.[248]
[246] Ibid.
[247] T221.
[248] Ibid.
PP was taken to footage from an iPad showing JP’s bedroom. He confirmed that it had been downloaded onto a disc from an iPad used by BP and JaP.[249] PP identified that the footage showed BP, JaP, JP, and MP in JP’s bedroom.[250] PP said that JaP was approximately 4 years old in the footage.[251]
[249] Exhibit MFI P8.
[250] T256.
[251] T257.
Under cross‑examination, PP could not confirm the date the iPad footage was recorded.[252] He conceded that the footage depicted two bunk beds, and both JP and MP were living in the room at the time.[253] However, PP disagreed with the proposition that MP moved out of the bedroom in 2018, and maintained that he moved out in 2013. PP disagreed with the proposition that he was attempting to create an opportunity for JP to be alone in his room with BP.
[252] Ibid.
[253] T258.
PP agreed that on 30 November 2023, he sent the following email to the investigating officer who he knows as Sarah:[254]
After today’s procedure, I realise that we have to prove Britney went to his room by herself. We both only remembered she went in his room when there was a party with all the kids together or when our family came over for dinner.
[254] T260; Exhibit MFI D9.
PP said that the investigating officer did not raise any issues in establishing the evidence to prove the Prosecution case. PP said that he himself had thought about the case. When pressed he became evasive, and his evidence made no sense.[255] He attempted to keep his evidence within the narrative he wanted to put before the court.
[255] T261.
PP was asked a series of questions pertaining to his first marriage and the allegations he was the subject of.[256] These included rape and assault. His evidence was that police had said ‘Phi, I never see a person like you, have been charged and you can come right to the police and complain’.[257] This description of a police investigation is an example of how PP gave his evidence. It was exaggerated and, I found unreliable.
[256] T265.
[257] Ibid.
PP agreed that there was an Intervention Order issued against him by his former wife, and their three children.[258] Due to the Intervention Order, PP said he did not resume contact with the three children of his first marriage until 2016/2017.[259] His evidence was confusing as to why that was, except that he could not make the regular commitment to see the children on weekends.[260]
[258] T267.
[259] T268.
[260] Ibid.
PP later gave evidence that he could not remember what year contact with his children resumed. He also refused to concede that when he first told police about the layout of his brother’s home, that he said the two boys (JP and MP) were sharing a room.[261] It was put to PP that in the plan he drew of the home for police, it had JP and MP in the same bedroom.[262] He became combative, refusing to answer direct questions put to him on this topic.[263]
[261] T273.
[262] Exhibit P5.
[263] T271 – T273
In relation to the relationship between PV and PP’s three older children, PP did not accept there were issues between them.[264] PP could not recall an instance where an argument occurred between him and PV regarding a dental bill for BP.[265] He also could not recall an instance where SP, DP and TP called PV ‘the wicked witch’.[266] This part of the evidence was not persuasive as PP refused to answer simple questions. He remained evasive and gave the impression of not wanting to answer a question that he thought might damage his version of events.
[264] T273.
[265] T274.
[266] T275.
PP confirmed his evidence that the day after the family meeting, JP’s father brought a poodle puppy over to the house for the purpose of gifting it to BP.[267] In relation to his evidence regarding the gift of a bell to BP by the accused, PP could not recall that the first time he mentioned to the police JP gifting a bell to BP was a week prior to the commencement of the trial.[268] However, by his evidence, the gift of the bell was not around the time of the family meeting.
[267] T289.
[268] T290.
PP said that no conversation took place between him and his children in relation to the evidence they would be giving during the trial. However, PP said that it was human nature for a ‘slip of the tongue’ to sometimes occur. BP and SP kept reminding him that they were not permitted to talk about the proceedings.[269] Again, I found that evidence unconvincing. He used the term ‘slip of the tongue’ several times. This suggested that PP had in fact spoken about the evidence his family should give at trial.
[269] T292.
As the cross‑examination continued, PP became increasingly argumentative and resistant to answering direct questions. This occurred in relation to the allegations made against PP by his ex‑wife, KL. PP gave evidence that in his police interview, the officer had said words to the effect of the observation: ‘I never see someone has been charged and come straight to the police’.[270] PP was then shown the video of his police interview of 2005.[271] The admissibility of this video was left as a piece of evidence I was to determine in relation to the allegation that MP came over to his house and attempted to have the CCTV footage of the family meeting deleted.
[270] T293.
[271] T299; Exhibit MFI P10.
In reviewing PP’s evidence, and the manner in which he presented, I found him to be unreliable. He refused to answer questions that he thought might contradict the Prosecution case. In this regard, PP agreed that he never told anyone about MP and JP being in different bedrooms until he gave evidence in court. That was because he just suddenly recalled it.[272] I do not accept that evidence.
BP’s sister - SP
[272] T304.
SP is the daughter of PP and KL and was born on 23 April 1996.[273] BP and her brother JaP are SP’s half siblings.[274] Between 2013 and 2015, SP would visit her father’s home every couple of weeks.[275] She recalled there was a period of time after her parent’s separation that she did not see her father, as she was told she was not allowed to.[276]
[273] T311.
[274] Ibid.
[275] Ibid.
[276] T312.
SP said that whenever she would visit her father’s house, she would also visit JP’s home.[277] He tended to be gaming in his room whenever she visited.[278] SP said that during the timeframe of the alleged offending, JP shared a room with his brother, and the door was often closed. She recalled having to knock before entering.[279] SP said that AP would often be in her own room, or out with friends.[280]
[277] Ibid.
[278] T313.
[279] Ibid.
[280] T314.
When SP was at her cousins’ home, she would often be in the living and dining room, and also in JP’s room. She said that apart from family gatherings, she would sometimes go over there to have lunch or dinner, or just to hang out with JP, MP or AP.[281] SP recalled seeing BP next door at her cousins’ home on many occasions. She would be in the living room, or in JP’s room or in AP’s room.[282] When she was in JP’s room, BP would be watching the brothers game most of the time.[283]
[281] Ibid.
[282] T315.
[283] T316.
SP said that her relationship with JP’s parents was polite, but she did not interact with them frequently.[284] JP’s parents were quite strict in that they did not let their children go out as often. They were rather conservative and religious.[285] She was not aware of any ‘open door’ policy that the parents might have enforced.[286]
[284] T315.
[285] T317.
[286] Ibid.
SP gave evidence that she was first made aware of the allegations relating to JP when she was at her dad’s place. She said she had been plucking BP’s eyebrows when JP came up in the conversation. BP said that she did not like JP and that he had sexually abused her.[287] SP said that BP told her that she was seven years old when JP had sexually abused her on several occasions but that she could not exactly remember the dates.[288] SP said that BP told her that the offending allegedly occurred in JP’s bedroom, and in the bathroom on one occasion.[289]
[287] T317.
[288] Ibid.
[289] T318.
SP said that BP told her by way of complaint:[290]
… when she was in [JP’s] room he would close the door and grope her underneath her clothes, he would rub her genitals, her vagina, her bum and grope her whole body multiple times, multiple times doing that. Also she told me that when he was - he would sit in his study chair while he was playing games or using the desk and he would get her to go underneath the desk and give him hand jobs and she said that this happened multiple, multiple times. She also said that when - that he forced her into her - his bathroom and he would force her to give him oral sex, perform a head job on him and when she said no, and she didn't want to, he threatened her and said that he would tell horrible things about her to his parents and make her look bad and so she was - she told me she was really scared of what his parents would think because they raised her partly as well, so she was forced to do it and gave him oral sex. She also told me another time she was in his room sitting on his bed and he asked her to get into his bed and take off her underwear and when she refused, he put his hand in her underwear, underneath her clothes and started rubbing her vagina. Also - so that happened all throughout the one year, throughout the couple of months when she was seven, all those offences. And then two years later he reoffended, it was Vietnamese/Chinese New Year, she told me that his mum had gotten her a new dress and she was in his room and he asked to look at her underwear, he lifted up her dress and had a peek at her underwear.
[290] T318-319.
SP said that BP did not say whether JP had ejaculated on any of these occasions.[291] BP also said that the incident where she performed fellatio on JP occurred in the bathroom, and that he had forced her into the bathroom.[292]
[291] T319.
[292] Ibid
SP said that BP appeared distraught and distressed when she was telling her about the offending.[293] SP said that after speaking to BP, she spoke to BP’s parents, but they were in denial.[294] SP’s father said ‘we can’t tell anyone about this’ or words to that effect. SP said that she conveyed everything that BP had told her.[295]
[293] Ibid.
[294] T320.
[295] Ibid.
JP’s parents then came over, and a discussion occurred in BP’s bedroom. SP said that she told them exactly what BP had told her, namely:
[JP] had sexually abused [BP] at seven years old. I told them exactly what he had done, forced her to give him oral sex, touched her multiple times underneath her clothes, her vagina, rubbing it, groping her whole body. I told them how he had forced her to give him hand jobs underneath his study desk. I told them about the incident where his mum gave her the dress and he pulled up her dress and looked at her underwear. The incident where he asked her to get into his bed and take off her underwear, where she didn't and he fondled her genitals after that.
In summary, the Prosecutor suggested that on the evidence I might think that BP’s description of the relationship between the two families fits much better with all the evidence in the proceedings and was more realistic.
Turning to the offending, it was argued that although the level of brazenness in the offending was extreme, that did not mean that the offending did not occur. This brazenness was characterised by the fact that the offending occurred in JP’s home whilst there were often many other people present. It was suggested that an answer might be that JP was emboldened to offend by BP’s silence after the first incident of offending. In any event, it was submitted that offences of the kind before the Court are often brazen and opportunistic by their very nature. It is not unusual for children to be sexually abused in a family home.
It was submitted that BP’s allegations were complex, and involved three years of her life. The Prosecutor submitted that BP was an accurate and reliable witness on the key aspects of the case, although she may not have been perfect in every detail.
The Prosecutor also pointed to where BP had said she felt guilt during the period of the abuse, arguing that this was an odd comment for a child to make if they were fabricating their evidence. He submitted that JP may have been emboldened by BP’s silence, to continue his offending.
2. Defence closing address
Defence counsel criticised the Prosecutor for consistently peppering his closing address with the assertion ‘that you might think’, when putting submissions before the court. He argued that this was a dangerous way of framing evidence that requires a high degree of proof, namely, beyond reasonable doubt. He suggested that making a submission based upon why would BP lie, is the Prosecution attempting to reverse the onus of proof. The Prosecution should know better than to ask the court to consider the evidence in this way. I agree that the onus is upon the Prosecution to prove their case beyond reasonable doubt.
Applying that onus, there are several key contentions that are entirely reliant upon the uncorroborated evidence of a single witness: These are the
·Internal inconsistencies in the Prosecution evidence and the intrinsic improbability of the allegations;
·Inconsistency with broader facts on the issue of opportunity;
·Inconsistencies with reliable evidence, particularly the defence case; and,
·The inability of the Prosecution to exclude the defence evidence as a reasonable possibility.
The last contention is the most important. If the Prosecution cannot exclude the accounts of the defence witnesses as a reasonable possibility, then there cannot be a verdict of guilty. It was argued that this is something the Prosecution had not done, and which the Prosecutor did not address in his closing. Excluding the narratives of the defence witnesses as a reasonable possibility, is the relevant test, not whether the accused’s or the complainant’s evidence is to be preferred.
Defence counsel then reviewed the evidence of BP. Firstly, in relation to whether others were at home. She said that during the offending:[610]
… I reckon they were all at home.
… I think there were many people at home.
[610] T17, T19.
In such circumstances, absence of any supportive evidence, it was submitted by defence counsel as a significant factor. It was argued that it would be expected that there would be an observation of something of concern in JP’s room by someone. One of the adults in the house. Those who were all home. Defence counsel submitted there was no surrounding evidence whatsoever; no observation of anything of concern.
Counsel then discussed the evidence in the iPad video at Exhibit P8. He argued that this evidence was damning to the Prosecution case, as it clearly shows a child (BP) that does not display any indicia of fear or apprehension towards JP.
It was also submitted that in this context, that there was no witness for the Prosecution or defence who expressed anything but shock at the allegations. There was therefore nothing at the time of the allegations that lent support to criminal behaviour occurring.
Defence counsel submitted that the evidence of opportunity was critical, namely, the opportunity for JP and BP to be alone in his bedroom. The nature of the allegations is of repetitive and consistent conduct, not just one occasion. It was argued that in a small suburban home, noise would travel throughout the home. JP’s father was at home at all times as a result of a work injury. His wife was his carer. Neither heard nor saw anything unusual and they never saw BP come to their house on her own.
AP, gave evidence in a softly spoken manner. She was in her last two years of high school, and then University at the time of the alleged offending. It was submitted that there was nothing about the way she presented her evidence which was evasive. She gave her evidence in a candid and transparent manner, and of her being a consistent presence at the home.
MP confirmed that he and JP spent most of their time together. They would travel to University together and play sport together. MP’s University results were suggestive of someone who spent a significant amount of time studying. He was also a consistent presence in the home, and particularly in the bedroom he shared with his brother, JP.
Defence counsel submitted that each of these family witnesses presented in a way that made sense. Their evidence was consistent with their presentation. It is not like they were poor students. They all gave evidence that they were studious. That is important when assessing the evidence.
BP’s mother gave evidence that she worked ten hours per week and had no need for babysitting. This suggests that JP and his siblings were not being prevailed upon to babysit. PV did not provide any particular circumstance which showed the need for any babysitting for BP or her brother, JaP. This evidence was given without contradiction by the Prosecution. In any event JP’s mother, TO, gave evidence that BP and her younger brother were ‘a little out of control’ and they were unlikely to offer to babysit. There was therefore no opportunity, but also no need, for BP and her brother to be at JP’s home, and especially in the bedroom BP shared with his brother.
It was said that the relationship between the families involved a strong familial bond. Defence counsel submitted however that JP’s father, and BP’s father were cut from very different cloth. It was not in dispute that they loved each family but that did not prove that they visited each other’s home frequently. In relation to PV’s suicide attempt, of course family would do anything to assist. That does not mean, without proof, that you would be seeing them all the time.[611]
[611] T352.
Another issue raised in relation to opportunity was that BP was often, if not always with her brother. The iPad video at Exhibit P8 lends considerable support to that position. In addition, at page 13 of the Prescribed Interview, BP says that she hung out with her brother very often. The defence case is that they were inseparable.
It was argued by defence that the evidence of PP should be considered with caution. He had the whole family in MP’s and JP’s bedroom. He described this as a ‘rush of people’.[612] He seemed to be trying to find an artificial way for BP to be in JP’s bedroom.
[612] T204.
It was submitted that the open door issue was blown out of proportion. Defence counsel argued that the Prosecution elevated the open door policy to discredit the defence witnesses. The general family practice was that bedroom doors were kept open. JP’s bedroom door did not have a lock, and of course during family events, the doors may be opened and closed. There was also evidence from TP that either BP or her brother would slam the door shut.
Defence counsel argued that the ‘open door’ policy was not an issue, despite attempts by the Prosecutor to make it such. This was because this case was not one where children were sequestered off to a remote location, or placed in a position where there was no risk of another person entering the room.
On the topic of observations of BP being at JP’s home, defence counsel submitted that the evidence of SP had to be approached with caution, particularly in the context of the evidence of TP of a cessation of contact between the families through 2016/2017. This was also confirmed by DP when she said that contact resumed when she turned 18.
Defence counsel submitted that the wider family was now a family deeply divided. After the allegations were made by BP the two families had no contact. The evidence must be considered in this context. The two families have become fortified in their positions. It was argued that SP’s evidence, that is contrary to much of the rest, should not be preferred and does not meet the burden of proof.
This demonstrates the forensic disadvantage for JP of delay, in the face of the Prosecution alleging JP and BP must have had some contact around the time of the offending, and that JP’s evidence was too absolute to be accepted. Defence counsel submitted that there were real forensic disadvantages when, BP, as a young child could not define when the offending occurred with any precision. Her evidence was vague, and she could not speak to the day of the week, month, season or year of any of the alleged offending. If the trial was closer to the time of the offending, the assertions, including those of SP, could have been met with more precision. The forensic disadvantage of delay was argued to be a significant issue in the proceedings.
Defence counsel addressed the Prosecutor’s submission that BP would not have known the season when the offending occurred because it took place inside. He argued that if BP knew what she was wearing, she would have known what the weather or season was. BP gave evidence that JP was wearing pants or pyjamas during the offending. However, the evidence was that only MP had pyjamas. That evidence was not refuted by the Prosecution.
It was argued that BP was particularly vague in relation to the sexual abuse that took place in the bathroom on one occasion. She was not sure who was home at the time, except JP’s mother. She did not recall, or know, what JP was wearing; what she was wearing; whether the bathroom door was closed; or when the offending took place.[613]
[613] T150-151.
Importantly, BP did not know if JP had ejaculated. Defence counsel argued that on this event, a child would not be uncertain about this, if the events were truthfully narrated.[614]
[614] T732.
In relation to BP’s vagueness, defence counsel pointed to the issue of the time frame over which the offending was alleged to have occurred. He noted that at page 22 of the transcript of the prescribed interview, it was said by BP that the offending occurred in years 4 and 5 which would have had her being 9 to 10 years of age. Her evidence was that she was 5 to 6 years of age.[615] The charged period has her at 5 to 8 years old. This timeframe does not meet the evidence in the prescribed interview or given in cross‑examination.
[615] T112-115.
The reality of BP, and other prosecution witnesses, not being able to positively state when the offending occurred put JP at a disadvantage in meeting the case against him. Defence counsel referred to the statement of Bray CJ in The Queen v Pftizner that:[616]
Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated, if the occasion itself is clearly identified, and both parties have directed their cases towards it.
[616] (1976) 15 SASR 171, 185.
Justice Gray in R v Abdulla[617] set out the specificity that is required in providing particulars of offending. The matters set out as being important were:
·that procedural fairness required adequate particularity to ensure a defendant knows the case they are to face;
·that the dates in the Information have the purpose of deliberately identifying particular alleged acts which constitute the relevant crimes;
·that the time/date of offending may be material if the age of a victim is an essential element of the charge.
[617] [2010] SASC 52 as [89].
In summary, he stated:
Regardless of whether time is an element of the offence or of essence to the offence, the circumstances of the case, such as forensic issues raised at the trial, including alibi or lack of opportunity, may make the date vital. In such circumstances, even though the particulars of when an offence is alleged to have been committed are not an element of the offence, the proof of the date or date range alleged may be material to the integrity of the criminal process.
Defence counsel argued that these authorities confirm the requirement for proper particulars, including dates and general information, that places the offending in a factual context. In these proceedings, there was a lack of particularity which dovetailed into the issue of forensic disadvantage. He referred further to the discussion of Adams J in R v Stringer,[618] where the significance of proper particulars to an accused’s understanding of the case to be met, rather than a case based on vague and labile allegations, was confirmed.
[618] [2000] NSWCA 293.
Defence counsel argued that there is a forensic disadvantage that accrues where the complaint evidence rests outside the date range of the charged offence. It is also fundamental in assessing BP’s reliability. He submitted, ‘…how can she allege these things when she is 5 or 6, or maybe 9 or 10?’[619]
[619] T730.
In BP providing her evidence by the prescribed interview, defence counsel raised concern about the comments of the investigating officer. Whilst they were made to encourage BP to tell her story, the opinions or comments of the investigating officer should be ignored. He asked that I take that into account.
The evidence relating to JP’s family gifting a puppy to BP was submitted to be a reconstruction and unreliable. BP first gave evidence that JP’s father brought over the puppy on the day of the family meeting so she would be happy. However, BP rejected the gift as she did not want a puppy. The gesture shocked her, as if her son had done something like JP had done to her, she would have reported him to police. BP’s mother described the puppy as blackmail,[620] although she later retracted that version of events.[621]
[620] T481.
[621] T482.
Later evidence was given that the puppy was in fact owned by AP, and the puppy was just taken next door by JP’s father to stop it barking. It was argued that AP’s evidence, supported by ThP, should be accepted rather than the clear reconstruction of BP’s family. This evidence taints BP’s narrative.
Defence counsel submitted that there were motives to lie. These included BP’s questions regarding JP’s earnings and his ownership of a house.[622] In addition, she could have been influenced by the opinions of others regarding JP, particularly her sister, SP, who said that she hated JP when first told of the offending by BP.[623] She was also a young girl who grew up in a household where there had been a rape allegation against her brother TP, by her mother. Such sexual allegations were not unknown.
[622] T167.
[623] T329.
It was suggested that the allegations did not come from a neutral setting, but rather one where concoction may well be evident, and reinforcement of view, supported by others.
There was also manipulation on the part of BP’s father (PP) who gave evidence of a strong bond with JP, from whom he bought electrical parts each week from JP’s place of employment. JP often gave him a special deal.[624] Defence counsel argued that this evidence did not demonstrate a relationship, but rather self‑interest on PP’s part, and where PP’s priorities clearly lie.
[624] T221.
There were also issues with the subsequent complaint to SP, whose evidence was that BP told her that JP had ‘…touched her multiple times underneath her clothes… her whole body’,[625] and then that there was an application of force. It was submitted that this description did not marry up with the particularised allegations, or BP’s evidence.
[625] T321.31.
In relation to LP being the first person to whom BP complained, there was simply no evidence to prove that complaint. Detective Brown in evidence confirmed that she was unable to speak with LP and did not have details of that complaint. She confirmed that BP alleged she made the first complaint to LP via the Instagram application, but had no details of that. The electronic communication no longer existed. Defence counsel submitted that the evidence of DP introduced a whole new set of allegations based on a double hearsay.
Defence counsel submitted that PP’s evidence was unreliable on many levels. His reference to JP giving BP a bell, for some unknown reason, was denied by both JP and BP. In addition, both SP and BP gave evidence that they sat down with PP before the start of the trial to discuss the evidence. However, PP denied this.[626]
[626] T291-292.
It was submitted that SP was also not a credible witness. She strongly denied that she had ever discussed leaving a vibrator at her boyfriend’s home.[627] However, BP in her evidence agreed that SP would discuss sexual matters in front of her. This included a time in a group, with her cousins AP and JP, where the subject of SP leaving a vibrator at her boyfriend’s house was raised. BP was then 13 years old.[628] JP, MP and AP also gave evidence of the discussion regarding a vibrator whilst BP was in a group in a bedroom with all the cousins at their home. JP told SP off for referring to the vibrator in BP’s presence.[629]
[627] T339-340.
[628] T173-174.
[629] T533-534; T578; T614-615.
Defence counsel submitted that this was not a matter of SP failing to recall the conversation as suggested by the Prosecution. Rather, SP had been adamant that the conversation did not take place.
This was argued to be important as it led to two conclusions. That SP could not be trusted; and that BP was exposed to sexualised conversations in the presence of and by, her older sister. This may have led to reconstruction of relevant events and framing of JP.
In describing the defence case, counsel submitted that JP spoke consistently and honestly regarding his family’s living circumstances. This was supported by the evidence of his parents and siblings. The consistency between the witnesses makes the evidence reliable and credible. It was argued that the Prosecution’s submission that the evidence was too similar to be accepted, was the reversal of common sense. In this case all the issues were spoken to clearly and thoughtfully. The defence witnesses were not evasive and did not obfuscate.
It was submitted that on the basis of the defence witnesses, the Prosecution could not exclude their versions of events as a reasonable possibility.
A final issue raised was PP’s communications with Detective Brown during preparation for the trial, and his concern that ‘they’ required proof that BP went into JP’s bedroom alone. He and his wife only recalled her being at his brother’s home for family gatherings.[630] The defence argue that PP and PV were acting as advocates, as opposed to being focussed on giving open and honest evidence to the best of their recollection.
3. Prosecution reply
[630] Exhibit D9; T462-466.
The Prosecutor in reply took issue with the defence case that BP’s complaint to her cousin LP was not an initial complaint pursuant to s34M. He submitted that pages 26 to 27 of the Prescribed Interview set out the detail of that complaint made two years before trial. He urged me to consider these pages of the interview.
Decision
I have carefully considered all of the evidence and submissions in the matter. Generally, the witnesses, including JP were giving evidence of matters that occurred between 8 and 10 years ago. Allowance has to be made for this, particularly in relation to BP who was quite young when the alleged offending occurred. I have borne this in mind when assessing the evidence.
The principal issue to be determined is whether the Prosecution has proved beyond reasonable doubt that JP committed two or more of the particularised sexual acts. There is no dispute that the other elements of the charge are proved.
The two most important witnesses in the trial are BP and JP. The evidence of other witnesses bears on their evidence, for an against each, but the focus of analysis is the credibility and reliability of BP and JP.
There can be no finding of guilt unless I am satisfied beyond reasonable doubt of the truthfulness and reliability of BP on material matters. I must therefore subject all of her evidence to close scrutiny.
A consequence of the above principle is, that I cannot find JP guilty unless I reject his evidence on material matters, and reject any evidence supporting his testimony, as being reasonably possible.[631]
[631] Douglass v The Queen [2012] HCA 34.
If, in the face of two compelling bodies of opposing evidence, I am unable to determine where the truth lies, I will not be satisfied beyond reasonable doubt of the Prosecution case.
In addressing the sufficiency of the evidence, I have taken into consideration the forensic disadvantages faced by JP in responding to the Prosecution case given the delay since the alleged offending was said to have occurred. These disadvantages include the distortion of human memory and thereby, reconstruction; the loss of opportunity to test the specificity of events where memory fails; and therefore, the loss of opportunity to make any defence other than a simple denial.
This is compounded by the fact that there was no initial complaint evidence. The complaint was made by Instagram messages to a cousin (LP). Those messages have been deleted and LP did not give evidence. The evidence of first complaint could not be tested. Nor could it be compared to BP’s evidence before the court regarding the allegations. Her consistency could not be tested, via the first complaint. It was another two years before BP then told SP.
The offence of Maintaining an Unlawful Sexual Relationship with a Child was enacted to resolve the difficulty that victims experience in remembering the details of sexual offending with sufficient particularity, when it occurred when they were a young child. As a result, each alleged sex act does not have to be proved beyond reasonable doubt, as if each was the substantive charge that had been laid. I accept that BP could not be expected to recall every detail of the alleged sexual acts, nor was she required to do, for the Prosecution to make out the charge.
Nevertheless, there is a significant level of concern with BP’s evidence. Particularly, her description of the alleged sexual acts was vague and inconsistent. BP gave evidence that there were a lot of details about JP and the offending that she did not remember. Importantly, BP could not recall the exact time frame of the offending. The particulars of the offending were agreed, including a time frame of between 1 January 2013 and 31 December 2015. This placed BP as being between five and eight years of age, and JP as between 19 and 22.
BP however gave evidence that she did not know if JP was at university or high school when the offending started. This was despite JP being 19 years old at the start of 2013.
BP could not describe how JP asked her to play with his penis when under the desk; and did not know, even approximately, how many times this offending occurred. She did not know the period of time over which this occurred.
In relation to sexual acts in the bathroom, BP suggested JP made threats to get her to fellate him. However, she could not recall what those threats were. She did not remember how he described his penis (i.e., by slang), or what JP was doing whilst his penis was in her mouth. BP did however recall saying that she had ‘done it deep’. I find this an odd thing for BP to have said at seven years of age, in circumstances where there was no evidence that she understood what fellatio was.
BP later said that the demand for fellatio only happened once. Despite this, she could recall no surrounding details including whether JP ejaculated. I agree with defence counsel that this would be something one would expect to remember.
In her prescribed interview, BP said there were a lot of things she could not remember about the offending. This not only goes to her vagueness regarding the events, but also places JP at a forensic disadvantage. It is very difficult to assess where the truth lies.
BP’s evidence regarding the third incident was again vague. She did not know why she was not wearing a top whilst she sat on the bed with JP, and could not recall if she had taken her underwear off. Her evidence was inconsistent as to whether JP had touched her vagina under or over her underwear. JP’s vagueness extended to her not knowing when this offending occurred or whether other people were in the house.
BP agreed that JP’s family had an open‑door policy. This makes JP’s offending particularly brazen in the context of her evidence that family was home during the offending, and there was an open‑door policy.
BP’s vague evidence cannot be bolstered or fortified by the evidence of SP and DP. As set out above, DP’s evidence of what occurred was solely learned from SP. It is hearsay and has no evidentiary value. SP’s evidence was not first complaint evidence. Whilst the evidence confirmed the three types of sexual acts, SP’s evidence was exaggerated and embellished. It was not consistent with BP’s evidence. The escalation of the accounts of the offending makes it difficult to determine what occurred between BP and JP.
The inconsistencies between what BP said happened over the sexual acts, and what SP and DP have each said BP told them of the offending severely undermines BP’s reliability about what occurred between her and JP. This causes me to have a reasonable doubt as to whether the alleged offending occurred.
While I accept the natural difficulties a child faces in attempting to accurately recall details of past traumatic events, the fact remains that the vagueness of BP’s account of events and uncertainties in her memory must be carefully assessed in determining whether serious allegations of unlawful sexual acts have been proved beyond reasonable doubt. BP’s lack of complete memory of events weighs heavily in my assessment of the reliability of her evidence.
BP’s evidence that she disclosed the offending to her cousin LP in 2019 has not been proved. This does not assist in assessing her reliability and credibility.
BP said that during the period of the offending, and after, she did not change her behaviour around JP so not to raise suspicions. There was no suggestion that she stopped going over to JP’s home generally or, for family gatherings. Her family, in evidence, did not suggest any change in her behaviour.
In considering whether BP’s evidence of the alleged offending should be accepted beyond reasonable doubt, I have also taken account of defence counsel’s submissions, of the inherent risks taken by JP associated with BP’s allegations when considering the plausibility that JP acted as BP alleged. That is, sexually assault her, on different occasions in his bedroom and bathroom, whilst other family members were in the house and doors were open.
While I do not find that BP has necessarily deliberately lied about being sexually abused by JP, there are important matters that seriously affect the reliability of her evidence, including important inconsistencies, memory difficulties and general vagueness of her account. These issues are not overcome by the evidence of her siblings and parents. Their evidence was hearsay and embellishment of what BP had told them. I find that the Prosecution case, viewed as a whole, does not satisfy me beyond reasonable doubt, of JP’s guilt.
I have also considered the evidence of JP. My decision, as set out above, is not based upon a preference of the evidence of JP, but rather on the issues I have with the evidence of BP and other Prosecution witnesses. I also find that I am not able to reject JP’s evidence and his denial of any sexual offending. In particular, that he and his brother, MP, spent most of their time together, including sharing a bedroom. I find that there was just no opportunity for BP to be in JP’s bedroom as alleged by her.
In all the circumstances, I find myself unable to exclude as a reasonable possibility that JP never engaged in any unlawful sexual activity with BP. Having considered and assessed the entirety of the evidence presented to the Court, I am left with a reasonable doubt whether the alleged unlawful acts as described by BP have been proved beyond reasonable doubt.
Verdict
I find JP not guilty of the charge on the Information.
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