R v Jandamarra (a pseudonym)

[2020] NSWDC 424

District Court

New South Wales

Medium Neutral Citation:

R v Jandamarra (A pseudonym) [2020] NSWDC 424

Hearing dates:

18 May 2020 - 22 May 2020

Date of orders:

3 June 2020

Decision date:

03 June 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The accused is found not guilty on all counts.

Catchwords:

Criminal law – Judge alone trial – sexual intercourse - child complainant

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Cases Cited:

R v Johnson [2020] NSWDC 153

Fleming v The Queen [1998] 197 CLR 250

Category:

Principal judgment

Parties:

Regina (Crown)
Jandamarra – A pseudonym (Accused)

Representation:

Counsel:
Mr Radojev (Accused)
Ms Morgan (Solicitor advocate DPP)

Solicitors:
Mr Baumgarten (Crown)
Mr Barron (Accused)

File Number(s):

2018/00258291

Publication restriction:

Statutory non-publication order re identity of complainant.

Judgment

1. HIS HONOUR: On 18 May 2020 Jandamarra (the accused) appeared before the Griffith District Court sitting at Albury. The Court sat at Albury to facilitate the evidence of a child complainant who had travelled from Traralgon in Victoria to Albury.

2. A Judge Alone election had been filed. The Crown opposed a Judge Alone trial. On 30 April 2020, following my decision in R v Johnson [2020] NSWDC 153, I directed a Judge Alone trial.

3. The accused was arraigned and pleaded not guilty. He pleaded not guilty to the following counts:

Count 1: Between 1 July 2017 and 14 August 2018, in Deniliquin in the State of New South Wales did have sexual intercourse with JCK, who was at the time under the age of ten years, namely of the age of eight or nine years, contrary to s 66A(1) of the Crimes Act 1900.

And the Director of Public Prosecutions further charges, in the alternative to count 1,

Count 2: between 1 July 2017 and 14 August 2018, at Deniliquin in the State of New South Wales did assault JCK, a person then under the age of 16 years, namely eight or nine years old, and at the time of such assault did commit an act of indecency on the said JCK contrary to s 61M(2) of the Crimes Act.

Count 3: between 1 July 2017 and 14 August 2018 at Deniliquin in the State of New South Wales did assault JCK, a person then under the age of 16 years, namely eight or nine years old, and at the time of such assault did commit an act of indecency on the said JCK contrary to s 61M(2) of the Crimes Act.

Count 4: between 1 July 2017 and 14 August 2018 at Deniliquin in the State of New South Wales did assault JCK, a person then under the age of 16 years, namely eight or nine years old, and at the time of such assault did commit an act of indecency on the said JCK contrary to s 61M(2) of the Crimes Act.

Count 5: between 1 July 2017 and 14 August 2018 at Deniliquin in the State of New South Wales did assault JCK, a person then under the age of 16 years, namely eight or nine years, and at the time of such assault did commit an act of indecency on the said JCK contrary to s 61M(2) of the Crimes Act.

General Directions

4. In compliance with s 133(2) and (3) of the Criminal Procedure Act, and as required by the decision of the High Court in Fleming v The Queen [1998] 197 CLR 250, I remind myself of the following principles of law. As the accused has pleaded that he is not guilty to all counts and elected trial by Judge Alone it becomes my duty and responsibility to consider whether the accused is guilty or not guilty of these charges and to return my verdicts according to the evidence that I have heard. The Court notes that five separate trials have been conducted, although they have run concurrently. The evidence relating to each count is different, and the Court, in considering each count, has only had regard to the evidence admissible on each count. I consider each charge separately and consider the evidence in respect of each charge separately. Separate verdicts will need to be given in respect to each charge on the indictment.

5. I have heard and received final submissions from the Crown and Mr Radojev of counsel. I will consider the submissions that have been made in the addresses and give to the submissions such weight as I think they deserve. I note that in no sense are those submissions evidence in the case.

6. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense. I acknowledge that I have very important matters to decide in this case; important not only to the accused but also to the whole community. I must act impartially, dispassionately, and fearlessly. I must not let sympathy or emotion sway my judgment.

7. As the sole judge of the facts I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the trial. That evidence includes the oral evidence of the various witnesses called and the various exhibits. I remind myself that I may, in my role as the judge of the facts, draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

8. I now direct myself on the onus of proof. This is a very important direction. This is a criminal trial of a most serious nature, and the burden of proof of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges. There is no onus of proof on the accused at all. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I warn myself that suspicion is not a substitute for proof beyond reasonable doubt. It is, and always has been, a critical part of our system of justice that persons tried in this Court are presumed to be innocent unless and until they are proved guilty beyond reasonable doubt. Unless the Crown succeeds in proving each and every one of the essential ingredients or elements of the charge beyond reasonable doubt then the accused must be found not guilty of the charges.

9. The words “beyond reasonable doubt” are ordinary every day words and that is how I understand them. If at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their addresses, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of not guilty because the Crown will have failed to do what the law requires it to do.

10. I remind myself that it is vitally important that I clearly understand that the accused must be found not guilty if his guilt has not been proved to my satisfaction beyond reasonable doubt.

11. It follows from this, of course, that if I am left unable to decide whether the Crown has proved its case in relation to any such essential element, even though I may feel that the accused may be guilty, if I have a reasonable doubt in respect of that matter the accused is entitled to the benefit of that doubt and I must find him not guilty. This is so in respect to the Crown case against the accused for each count.

12. The accused gave evidence in the trial. It is the Crown that bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the offences charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before me. The fact that the accused has given evidence does not alter the burden of proof. The accused does not have to prove that his version is true. The Crown has to satisfy me that the account given by the accused should not be accepted as a version of events that could reasonably be true.

13. The Crown must satisfy me beyond reasonable doubt that I should reject the accused’s evidence as a reasonably possible version of the facts. If the accused’s evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of the offence, or any essential fact that it must prove, then I am bound to bring in a verdict of not guilty. I do not have to believe the accused is telling the truth before he is entitled to be acquitted. If, at the end of my deliberations, I find the Crown has failed to eliminate a reasonable possibility that the version presented by the defence is true, then the Crown has failed in its obligation to persuade me of the accused’s guilt beyond reasonable doubt.

14. The accused bears no onus of proof in respect of any fact that is in dispute. I remind myself that he is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence and by the Crown that he is guilty of the offences charged. Wherever the Crown seeks to establish the guilt of an accused person with a case based largely or exclusively on a single witness it is important that I exercise caution. I exercise that caution because the Crown case depends on me accepting the reliability of the evidence of a single witness.

15. Unless I am satisfied that the complainant is both an honest and accurate witness in the account she has given I cannot find the accused guilty. It is necessary for me to examine the evidence of the complainant very carefully to satisfy myself that I can safely act upon the evidence to the high standard required in a criminal trial. It is my duty to decide whether I accept the evidence of the complainant in whole, part, or not at all. It would be wrong to conclude that the complainant is telling the truth because there is no apparent reason for her to lie. People lie for all sorts of reasons. Sometimes it is apparent, sometimes it is not. Sometimes the reason is discovered, sometimes it is not. I cannot be satisfied that the complainant is telling the truth merely because there is no reason for her to have made up these allegations. There might be a reason for her to be untruthful that nobody knows about.

Markuleski Direction

16. This direction applies to where there are multiple counts involving the one complainant. I have made it clear a number of times that as a tribunal of fact I must consider evidence in respect of each charge on the indictment separately. It follows from that if, as the tribunal of fact, I have a reasonable doubt as to the truthfulness and accuracy of the evidence of a complainant in respect of one count involving that complainant, as the tribunal of fact I can use that reasonable doubt to determine whether I have a reasonable doubt in respect of any other count on the indictment relating to that complainant.

Elements

Count 1:

17. Sexual intercourse with a child under 10 years, s 66A(1).

1. The accused had sexual intercourse with the victim.

2. The victim was under the age of ten years.

18. At the time of the alleged offence the complainant was under the age of ten years, namely eight or nine years old. It was not an issue in the trial. The prosecution need not prove that the complainant was not consenting as the consent of the complainant is not a defence under this section . The issue in the trial is whether the Crown could prove beyond reasonable doubt that the act of sexual engagement took place.

Counts 2, 3, 4 and 5:

19. Indecent assault (child under 16) s 61M(2)

1. That the accused assaulted the complainant.

2. That the assault was indecent.

20. The Crown must prove each element of the offence beyond reasonable doubt.

Evidence Led In the Crown Case

21. MFI 1 - Transcript of JIRT of JCK conducted on 15 August 2018.

MFI 2 - Transcript of JIRT of JCK conducted on 4 April 2019.

22. The parties have no objection to me retaining the transcripts for the purpose of preparation of these reasons.

MFI 4 - Disk of JIRT 15 August 2018

MFI 5 - Disk of JIRT 4 April 2019.

23. The following exhibits were tendered:

Exhibit 1 - Diagram of female figure marked by the complainant on 15 August 2018.

Exhibit 2 - Diagram of female figure marked by complainant 4 April 2019.

Exhibit 3 - Diagram of male figure marked by complainant, 4 April 2019.

Exhibit 4 - ERISP transcript Hayley Noonan, 1 November 2018.

Exhibit 5 - ERISP transcript Shire Parsons, 22 August 2018.

Exhibit 6 - ERISP transcript of SC, 23 August 2018.

Exhibit 7 - Transcript of refusal to be interviewed of the accused, 22 August 2020.

24. The following witnesses were called by the Crown: The complainant, CC, the mother of the complainant, Todd Donoghue, the officer‑in‑charge.

25. On 19 May 2020 I refused to grant leave to the Crown to adduce into evidence the following questions and answers in the 15 August 2018 JIRT of the complainant and what followed thereafter on those topics. At question 256 she was asked,

“Q. Okay, cause someone told me that um - um - a time that Jandamarra’s doodle or boy, boy part was inside your girl part?”

26. The transcript records “no audible reply”. I have watched the interview and the complainant nodded in agreement after the question was asked. At question 335 she was asked,

“Q. Okay, and someone else told me Jandamarra might’ve have put his fingers in your girl?” The transcript records “no audible reply”.

27. I have watched the interview. The complainant nodded in agreement after the question was asked. Question 256 was the foundation for penetration alleged in count 1. At the completion of the Crown case Mr Radojev, who appeared for the accused, sought a directed verdict of not guilty. In oral evidence before me the complainant did not assert penetration. Madam Crown sensibly did not oppose the application for a directed verdict: T 93, lines 9 -10. I directed that the accused was not guilty of count 1 and a verdict of acquittal was entered into the record. I refused an application for a directed verdict in relation to the alternative count, being count 2.

The Accused’s Case

28. The accused gave evidence and he denied the allegations.

Evidence Relevant to Counts

29. Count 2 - First interview:

Q 216 - “He pulled his pants down”.

Q 217 - “And then I woke up and he was on me”.

Q 219 - “On the floor,on the bed”.

Q 226 - “I woke up because, um, I felt something on me and then I woke    up and he was on me”.

Q 232 to 238 - “Girl spot touching his boy spot”.

Q 240 - “My - my pants were on”.

Q 272 - “I saw him looking up and he was bouncing on me”.

Q 273 - “Belly and his boy spot”.

Q 274 - “Belly and my girl spot”.

30. Second Interview

Q 199 (asked if inside or outside) - “Inside”.

Q 202 - “Um, I don’t know if I can explain. It was bouncing”.

Q 203 - “Up and down”.

31. In short compass the allegation was that the accused was lying on top of the complainant bouncing, and his penis was touching her vagina.

Count 3

32. The Crown alleges a further aggravated indecent assault took place on a chair the morning after, namely touching the vagina with fingers.

33. Second Interview

Q 212 - “It was finger touching”.

Q 214 - (indicates vagina on drawing).

Q 219 - “He grabbed me with his hand”.

Q 220 - “And then he took me to his chair”

Q 226 -(asked where he touched). “Um, he touched me with his fingers    again”.

Q 228 - “Out - in - I can’t remember”.

Count 4 - Further aggravated indecent assault in the lounge room

34. The Crown alleges there was an indecent assault by the accused, namely touching the vagina with fingers.

35. First Interview

Q 173 - “Lounge room”.

Q 174 - “And then Jandamarra grabs me”.

Q 177 - “So he grabs me - um, he either grabs my hands and pulls me.    He grabs me, like just picks me up”.

Q 178 - “And then he starts to touch me”

Q 180 - (Agrees it is on her girl’s part).

Q 180 (b) - “The skin”.

Q 181 - “His fingers”.

Q 184 - “Um, um, on the outside”.

Count 5

36. Count 5 is a further aggravated indecent assault which the Crown alleged took place at the Moona camp.

37. First Interview

Q 382 - “It was once at Moona”.

Q 386 - “When the boys left they went to get some Kangaroo”.

Q 388 - “And then they - and then Jandamarra was like, ‘Come here’, and I    thought he wanted to talk to me”.

Q 390 - “And then um, um, like started touching me and I tried to run”.

Q 391 -“And then SC’s trying to help me and pulling me away and    saying, ‘Leave my sister alone’.”

Q 397 - (Asked about him touching on her girl spot). She nodded.

Q 398 -“On the clothes”.

Other Evidence in The Crown Case

Complaint Evidence   

38. The complainant said that she had made a complaint to Shire (the first person she told. Q 196 JIRT, 15 August 2018, T 33 line 29). Db and her mum: JIRT, 15 August 2018, at questions 196 to 206. She spoke to Db in her bedroom and told her, “Practically some of the stuff that I told you”: JIRT, 15 August 2018 at Q 206 to 209.

39. In cross-examination she was asked,

“Q. When you told Db what had happened what did you tell her?

A. I can’t remember”: T 52.

40. The complainant was asked about what she told Shire at T 33, “We were playing handball on the croquet ground ... I said, ‘He is’ and she asked why, and I said, ‘Because he touches me’. And she said, ‘What do you mean?’ and she’s like, ‘Down there?’ and I said, ‘Yeah’.”

41. Shire Parsons was interviewed on 22 August 2018, which is exhibit 5. At questions 53 to 55 she told the police,

“Q. And what happened and what else did she say?

A. She said that he was being really weird.

Q. Really weird? And what else did she say?

A. She said that, um, he was touching her.

Q. Touching her? And did she say anything else?

A. No.”

42. The police attempted to get a statement from DB. They rang a number of times, she was living 20 kilometres out of Deniliquin. They offered to pick her up and then from that point she began to decline telephone calls: T 86. She told the police she did not want to be involved: T 88. The officer‑in‑charge conceded that she was “a very material witness”: T 89. It would appear that no further efforts were made by the police to take a statement after she said she did not want to be involved.

43. Hayley Noonan was interviewed by police on 1 November 2018 (exhibit 4). She told the police the following:

“Q 34. And what did she say to you?

A. Um, she said, um - ‘No he didn’t touch me. He was just tickling me and touched my girlie bits. Like, he touched my - that bit there’.

Q 35. Um.

A. She only pointed to like the stomach and just near the boobs.

Q 36. So sorry, you said, ‘No he didn’t touch me’. Is that what you said? A. No, he didn’t touch me inappropriately, he just touched my - um -    whatever that thing is called there. Like, she only pointed to this area and    just below the tits.

Q. 37. Okay, so what are you, what are you pointing to there?

A. The stomach and the chest a bit.”

44. At Q/A 45 part of her answer was:

“I said, ‘JCK, did pop do anything to you?’ I believe you whatever you say’. And then she said, ‘No, he didn’t do anything to me, he just touched me in that area’”.

“Q. 46. And when she said in that area where was she pointing again?

A. Just the belly bit.

Q 56. Is there anything else you know about this or remember about this?

A. About that day?

Q 57. Yeah, or anything that’s been said or anything?

A. No. All she said was that ‘He only touched me in that area, and that was it’.

Q 58. And before you said ‘in that area’ you said - I think at the start you said, ‘In the girlie bit, or something’?

A. ‘Yeah, in like the girlie bits’. So like, she said, ‘In the girlie bits’ and I was like, ‘What girlie bits?’ then she said - she just went like that.

Q 59. Okay?

A. Just in here.

Q 60. So when you’re circling there, what are you pointing to? What are    you pointing at there?

A. I don’t know, just she was just going like that.

Q 61. Okay, so she said, ‘The girlie bits’ and like, did a circle?

A. I said--

Q 61. Did she?

A. Yeah, I said - she’s like ‘The girlie bits’, and I was like, ‘What girlie bits?’ And she was like, ‘Just here’.

Q 62. Okay, and like--

A. Like, just my--

Q. Did a circle or something?

A. Just my belly and like the chest.”

45. She made this observation about the charges faced by the accused:

“Q 70. Okay, so you heard that he got charged and then you said--

A. Yeah.

Q 71. to JCK. Okay, so what made you go up and ask her that?

A. Um, because I know it wasn’t true because pop has taken me, my brother - he, my pop, has grown up with all of our kids. He has Ricky - he had Ricky, Jay, Brooke, Tamika in his house.

Q. 72. Yeah?

A. And two girls by the one - by themselves. He didn’t do anything to them.

Q. 73. Okay?

A. So - and we knew it wasn’t true and he would never do that because there would be a pattern, cause he hasn’t been - cause you don’t just start being a paedophile at 64 years old.

Q. 74. Yeah, okay?

A. There has to be a pattern, a pattern.”

46. In relation to the allegation at the Moona camp (count 5), she told the police, in part of her answer to Q 83;

“A. We went out to bush one day and that’s when it was meant to happen.

Q 84. Yeah?

A. But me, four of my friends, so me, Ava, Hanna, Lexie, Zac, Isaiah, Will, Liam, so there was eight of us--

Q 85. Yeah?

A. and we were all out there and SC and JCK - JCK were out there for a night

Q 86. Yeah?

A. --and we were sleeping in the hut as well, and that’s when it was meant to happen.

Q 87. Yeah, so what else--

A. But--

Q 87. --did youse do on that--

A. But we were there.

Q 87. --camping trip?

A. Yeah - um, what do you mean?

Q 88. Just tell me what you did from start to beginning on that. Did you -    you know, I don’t know, go driving around in a car or--

A. Yeah, JCK and SC were with us all the time. Pop stayed at the hut most of the time because, like, he needs to look after the hut, and then he was cooking. And then - but we - but we only got to stay out there for a little because, like, I think it was just overnight we stayed. Like, we stayed out there but then mum and Nan came out with the three other kids.”

47. In response to question 97 she answered;

“A. And then JCK, SC, me, all - all the girls went - we went to bed like early cause we were really tired. And then we were just like sitting there talking. Do you want me to tell you the bed layout?

Q 98. Yeah?

A. Um, so pop is like over in the corner.

Q 99. Yeah?

A. Like, he has a bunk over in the corner. Then it was Zac, Isaiah in the bed and then, um, what - I think it was Liam and Will in the other bed.

Q 100. Yeah?

A. And then over like - it’s like a really big hut.

Q 101. A big room, yeah?

A. Way over in that corner was JCK and SC, and then around - and then the next bed was me and Ava, and then over next to SC and JCK was Lexie and Hanna.”

48. The complainant gave evidence about complaint to her mother in the trial at T35.

“Q. What was mum apologising for?

A. I think it was just because she was sorry that this all happened.

Q. Had you told her about what happened?

A. I didn’t tell her, Db did.

Q. When you say, ‘So mum couldn’t figure this out’, what do you mean?

A. She wanted to know why I didn’t tell her and what really happened    and all that.

Q. What did you say to her?

A. I basically just said I didn’t want to tell her because I thought she    would get mad and then Jandamarra would get mad at me because he said to promise not to tell anyone and I broke that promise.

Q. Did you say anything else to your mum?

A. I said that I told Shire way before and that it wasn’t just yesterday that    I told her. I told her way before yesterday.

Q. Did you tell your mum anything else?

A. No.”: T 35.

49. I then asked this question,

“Q. Did you tell your mum anything that happened between you and Jandamarra?

A. No.”:T 36.

50. The evidence of the complainant is in stark contrast to that of the mother. CC gave evidence that she spoke to her daughter the following morning,

“after being told, and I only had a quick discussion with her which is where she told me what he apparently tried to do to her”

T 71. “JCK has said to me that Jandamarra pulled his pants down twice and showed his penis and tried pulling her pants down twice, and on a number of occasions had tried to use his fingers on her vagina on multiple occasions, and that’s where the conversation ended”

T 72. At the time the conversation took place her daughter “was upset”:

T 72. She said that Db told her that JCK had told Db that Jandamarra “had been touching her up”: T 80.

51. In cross-examination after several questions which in my view she danced around, she admitted going to the police three to four years ago and making a complaint that her parents had sexually abused her son. However, she denied encouraging her daughter to make a false complaint against the accused for financial reward.

52. It is for me as the tribunal of fact to decide whether the complaint was made. If I am satisfied that it was then the rhetorical question I should ask is did the complainant act in the way that one would expect her to act if she had been indecently assaulted as she said she was? Is what she did the sort of conduct one would expect of a person in her position at the time? If, as the tribunal of fact, I think the complainant has done what one would expect of someone in her position to do, that may support the Crown case because it makes the evidence of the complainant more believable. As the tribunal of fact I may find that there is consistency between the complainant’s conduct and the allegations she makes against the accused. If, as the tribunal of fact, I do find that the complaint was made and I do find that there is consistency, then as the tribunal of fact I can use what the complainant said about the accused’s conduct towards her. There is some evidence of the truth of what she said; that is, as evidence that the accused indecently assaulted her in the way she alleges he did.

53. On the other hand, if the complainant has not acted in the way that one would have expected someone to act after being indecently assaulted as she described, then that may indicate that the allegations are false. Of course, the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.

54. Did the complainant complain in the terms as suggested by her mother? She denied telling her mother anything that happened between her and Jandamarra. Her mother says different. On the evidence of the complainant I am unable to find that she made a complaint in the terms as asserted by her mother.

55. No statement was taken from DB. She did not give evidence. I am unable to conclude that the complainant made a complaint in the terms as suggested by her. I also take into account the complainant said that she could not remember what she told Db. The complaint to Shire Parsons was of a very general nature. The complainant told Shire the accused was “touching her”. She did not say anything else: Q 53 to 55, exhibit 5.

56. There is some limited consistency with the allegation of indecent assaults. This consistency of conduct is inconsistent with the evidence of Hayley Noonan. Noonan said that the complainant told her that the accused was tickling her and was touching her on the chest area below the tits. She asked, “JCK, did pop do anything to you?” and then she said, “No, he didn’t do anything to me, he just touched me in that area”: Exhibit 4, Q 45. When she said, “In that area” she was pointing at “just the belly bit”: Exhibit 4, Q 46. This suggests to me that the complainant has not acted in the way that one would expect someone to act after being indecently assaulted as described. It may suggest the allegation is false.

Evidence of the Complainant

Count 2

57. The Crown submitted this was the strongest count. It submitted that the complainant gave a cogent description. The complainant was asleep on the couch. She was awoken because the accused was bouncing on top of her. The Crown submitted that this was a truthful recall of a naïve child trying to explain something that is occurring; that it is sexual to which she does not appreciate the nature of. In evidence she said she was woken because the accused was bouncing on top of her. In her interview she said that her brother woke her up. She said that her brother was on a mattress on a floor: T 29; JIRT MFI 1, Q 264.

58. SC, the complainant’s brother was interviewed on 23 August 2018 (exhibit 6). I give little if any weight to this interview due to the age of SC. It is clear he was wrong when he said that he did not sleep over at the accused’s place. This was contrary to the evidence of the complainant and the accused. She said the following morning she wanted to go home because of what occurred. This is consistent with the accused’s evidence that here was an occasion when the complainant was angry and wanted to be taken home in the morning. The Crown relies upon this in support of the proof of the count. I will deal with the criticisms of the complainant’s evidence at a later point of the judgment.

Count 3

59. The Crown in its submissions accepted that there were some difficulties with this count. Those difficulties arose due to the fact that there was a difference in what the complainant said in her interview (which I have earlier set out) as opposed to what she said in her evidence. In her evidence she said that he grabbed her hand and took her to his chair and she tried to get away. He was touching her on the leg, “Like grabbing me on the leg, like above the knee, sort of”: T 32-33. Due to the marked variation I am unable to find that the Crown has proved this count beyond reasonable doubt. I am not satisfied that the touching of the leg above the knee was for the purposes of sexual gratification. I am satisfied on balance that touching occurred, but it was touching for the purposes of restraint, not sexual gratification.

60. I find the accused not guilty of count 3 and a verdict of acquittal will be entered in the records.

Count 4

61. The allegation is that the accused touched the complainant in the lounge room on the vagina. The Crown concedes that in her JIRT there is some level of generality about the complaint. The Crown relies upon the complaint evidence of what the mother said the complainant told her; that is, on a number of occasions he had tried to use his fingers on her vagina. I have previously set out the details of this evidence and shall not repeat what I have said. The Crown relies upon the position of the complainant in cross‑examination where she maintained that the accused had touched her on the vagina.

Count 5

62. The allegation is that she was indecently assaulted at the Moona camp. The Crown relies upon the accurate detail given by the complainant about the camp. There is no dispute that she went to the camp with her brother and stayed for more than one night. She gave evidence that there were five or six other people at the camp. She said there were teenage boys there. There is no dispute that the complainant and her brother were younger than the other people attending the camp. There is no dispute during the camp that there was kangaroo hunting. The Crown relied upon opportunity. She said that there was a time when the others went out and she and her brother stayed behind with the accused. The accused agrees that there was such an occasion. She says that when the others were away the accused was touching her on her girl part on the outside of her clothing. The Crown described this as opportunistic touching which she managed to break away from. The Crown submitted that I could accept the complainant to the requisite standard beyond reasonable doubt particularly in respect of count 2 and count 5 due to the level of detail suggesting accuracy of the circumstances.

Criticisms of the Complainant’s Evidence

63. Mr Radojev on behalf of the accused makes the following criticisms of the complainant’s evidence. In her first JIRT at Q 121 she did not allege anything bad about Jandamarra. In cross-examination she said that that answer was untrue because he touched her on the vagina. In her JIRT at Q 122 she said that Jandamarra hurt her mum. In cross-examination she said she did not know what it was about. She never asked her mum what it was about. It was submitted that it was a concoction because there was no evidence from the mother that the accused had hurt her, the mother.

64. In her JIRT at Q 133 to 134 she said every time she had stayed at the accused’s he had been touching her. In cross-examination she said that answer was sort of true, it was more true than less. She accepted that some of it must have been true and some of it was untrue. She repeated that when she told the police in her JIRT that the only thing bad about the accused was that he had hurt her brother was “true but it wasn’t true”.

65. She was criticised by asking Db to lie for her (asking Db to tell her mother that she had only told Shire the day before). It was submitted that she was willing to lie to protect herself. She was criticised for unreliability of memory. One example was her inability to remember if the mattress incident was before the couch incident: T 53. On one version she was sleeping on the couch and is woken by SC before the accused laid on her. In another version she said she woke herself. She was asked in cross-examination,

“Q. Well which one was it? Did you wake yourself up or did SC wake you up?

A. I don’t know”.

66. It is submitted that this points to unreliability on her part. In her second JIRT she said that the first JIRT took place two years earlier. It did not, it took place eight months earlier. She said she was probably confused.

Evidence of the Accused

67. The accused is a 70 year old pensioner. He has 16 grandchildren. He has a criminal history going back to 1967. There are no sexual offences on his record. He is entitled to a limited character direction. He had JCK and SC stay with him on weekends from time to time. He did so because he had witnessed CC’s de facto physically abuse SC. He also took the complainant to boxing training. He denied any wrongdoing on his part. There was one curious answer during his evidence. He was asked this,

“Q. On that occasion you were out at the camp did you attempt to touch JCK on the vagina area?

A. No, because we were always busy doing things.”

68. He went on to explain busy doing things was taking the kids and showing them how to make things. It was submitted on his behalf that he was not a sophisticated man and that curious answer must be looked at in that light. A further curious answer related to the camp (count 5). He was asked,

“Q. Yes, and there was no attempt by you to touch JCK in any way improperly?

A. No, not when you’re doing that stuff. No, not ever”.

69. Doing stuff I took to mean showing the kids the way of their forefathers. The second answer does point to a man of no sophistication doing the best he could in answering the questions posed to him.

Findings

70. Generally I found the complainant to be an honest and reliable witness save the inconsistency in versions in count 3 where I found the accused not guilty. I do not disbelieve the evidence of the complainant. However, that is not the end of the matter. The accused has given evidence. One of his answers was curious to say the least but it may have been brought about by his lack of sophistication. He has denied any wrongdoing on his part. He was tested in cross-examination and maintained his denials. I do have some suspicions about his evidence but not such that I have formed a state of disbelief.

71. Mr Radojev, at the commencement of his final address, reminded me that if I have suspicions, even great suspicions, I must acquit. Proof beyond reasonable doubt is the highest standard of proof known to the law. In this trial I do not disbelieve the complainant, nor do I disbelieve the accused.

72. Accordingly, I cannot be satisfied to the highest standard of proof beyond reasonable doubt. I find the accused not guilty of counts 2, 4 and 5, and verdicts of acquittal will be entered into the record.

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Decision last updated: 06 August 2020