R v Jessop - [2015] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JESSOP
Criminal Trial by Judge Alone
[2015] SADC 168
Reasons for the Verdicts of Her Honour Judge Davison
10 December 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - CIRCUMSTANTIAL EVIDENCE - GENERALLY
Trial by Judge Alone - Accused charged with two counts of Aggravated Indecent Assault - Prosecution declined to call Complainant - Stay of Proceedings Application - Circumstantial case of eye witness medical and forensic evidence - Accused denied the offences.
Verdicts: Count One - Guilty. Count Two - Not Guilty.
Criminal Law Consolidation Act 1935 (SA) s56, s56(2); Juries Act 1927 (SA) s7, referred to.
Whitehorn v The Queen (1983) 152 CLR 657; Richardson v The Queen (1974) 131 CLR 116; Adel Muhammed el Dabbah v The Attorney General (Palestine) 1944 AC 156; Williams v Spautz (1992) 174 CLR 509; Jago v District Court New South Wales (1986) 168 CLR 23; Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82; Knight v R (1992) 175 CLR 495; R v Hillier (2007) 228 CLR 618; Douglass v R (2012) 86 ALJR 1086, considered.

R v JESSOP
[2015] SADC 168

Christopher Ian Jessop is charged with two counts of Aggravated Indecent Assault.[1] It is alleged that he committed these offences against his partner’s 11 year old child in the family home during the early hours of the 21^st of October 2013. The Complainant, EB, was not called to give evidence in this trial. The Prosecution relies upon circumstantial evidence in the nature of observations made by the Complainant’s mother, a medical examination and DNA evidence, to prove this case beyond reasonable doubt. The Accused denied that he had had any inappropriate contact with EB at any stage.
[1] Criminal Law Consolidation Act 1935 (SA) s56.
The Accused elected for trial by Judge alone. The application was granted and the trial proceeded before me without a jury. [2]
[2] Juries Act 1927 (SA) s7.
Preliminary Applications
There were a number of applications made prior to trial by the Accused. The Accused applied for the proceedings to be permanently stayed as an abuse of process. He relied upon grounds that the Prosecution did not intend calling the Complainant as a witness or present her for cross-examination. He argued that in the absence of direct evidence of indecent assault from the Complainant, the trial would be an abuse of the Court’s process and foredoomed to failure.
The only authority relied upon by the Applicant was Whitehorn v The Queen[3].
[3] Whitehorn v The Queen (1983) 152 CLR 657.
I was told by the Prosecutor, Mr Powell, that EB was not being called due to her age, her intellectual disability and the possible emotional harm that may result from her being required to attend Court. That information had been conveyed to the defence by letter dated 30 October 2015.
The application for the stay was made on two bases, the first is that as a consequence of the Prosecution’s decision not to call the Complainant, the Accused is denied the opportunity to test the reliability of the Complainant and more widely, the case against him.
The second basis was that the absence of any evidence from the Complainant and, consequently, the absence of any direct evidence that the Accused indecently assaulted the Complainant, means that the case is doomed to fail and ought not be permitted to proceed.
The obligations of prosecutors with respect to the calling of witnesses are well known. In Richardson v The Queen[4] the Court said:
“Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few.”
[4] Richardson v The Queen (1974) 131 CLR 116 at 119.
There is no suggestion by the Defence in this case that the Prosecutor has been influenced by some “oblique motive.”[5] There was no suggestion by the defence that the reasons advanced by the Prosecution for declining to call the complainant were not valid in the circumstances.
[5] Adel Muhammed el Dabbah v The Attorney General (Palestine) 1944 AC 156
The responsibility for deciding whether a person is called as a witness for the Prosecution rests with the Prosecutor. This must be viewed against the trial as a whole. It is only if it can be said that that decision could give rise to a miscarriage of justice that the trial should be stayed. If the effect of the failure of the Prosecution to call the witness denies the Accused a fair trial, then that is a matter to be taken into account in respect of whether the trial ought to be stayed.
In this trial there is evidence to be led from the Complainant’s mother that at about 3.15am on the day in question, she woke up in bed and found that the Accused was no longer beside her. She got up to investigate. She went down the hallway and heard a noise in the lounge room. She walked the short distance to the lounge. When she got there she saw the Accused getting up from the sofa where he had been face down on top of her daughter who was lying on the sofa. She confronted him about what he was doing. He said he was doing nothing. She made him leave the house and she then called the police. When her daughter was examined about 12 hours later she was found to have injuries to her genitals consistent with blunt force trauma having occurred within the last 12 hours or so. In addition to this, the Prosecution relies upon a significant amount of DNA evidence which supports a finding that the Complainant’s DNA was under the Accused’s fingernails, on his hands, and inside the tracksuit pants that he had been wearing when he was discovered by his partner in the lounge room. DNA consistent with having come from the Complainant was also found on his penis. The DNA samples were taken by the police about 12 hours after the alleged incident.
The Applicant complains that he could not explore through cross-examination what happened during the weekend and other things that may have assisted the Defence. He also relies upon statements that have been made by the Complainant and were found in subpoenaed documents to the effect that the Complainant had been interfered with by others although not at times relevant to this matter.
The facts of this case are clearly very different to those in Whitehorn where the trial proceeded solely on the evidence of the admissions made by the accused in response to a complaint by a complainant from whom no evidence was called. The appeal was allowed as there were a series of events that rendered the conviction unsafe. This case does not rely on any suggestion by EB that the offences were committed but rather upon circumstantial evidence to prove the case.
In this particular case I am not satisfied that there is any unfairness to the Accused in the Prosecution declining to call the Complainant. No application was made before me for the Complainant to be called for cross-examination. Even if this had been done and the Prosecution declined to make her available, this would not necessarily constitute any unfairness to the Accused. A significant issue in this matter is who had caused the injuries to the Complainant. The Prosecution need to prove beyond reasonable doubt that the injuries were caused by the Accused, and the circumstances in which they were caused, in order to prove either or both of the charges. The fact that a charge relies upon circumstantial evidence alone, does not preclude the Prosecution doing this. There are many examples of cases in which the Prosecution is able to prove a case on circumstantial evidence, including many murders, where there is no direct evidence of the assailant available. In the circumstances I do not regard the failure to call the Complainant as a fundamental defect going to the root of the trial that presents an unfairness that cannot be overcome in this case.[6]
[6] Williams v Spautz (1992) 174 CLR 509 at [519] and Jago v District Court New South Wales (1986) 168 CLR 23 per Mason CJ at [34].
The failure to call the Complainant in this matter does not necessarily foredoom this Prosecution. There is, as I have said, circumstantial evidence that supports the case.
I declined to stay this Prosecution for either of the reasons advanced by the Applicant.
The Applicant then challenged portions of the evidence to be lead by the Prosecution. The first ground challenged the evidence of Dr Jeyaseelan. Her evidence was to relate to her examination of the Complainant and her findings. These findings included injuries that she opined were consistent with blunt force trauma consistent with having been caused by fingers or a penis. This evidence was challenged by the Applicant on the basis that penetration was not an element of either of the charges and the evidence was therefore irrelevant. Further, the Applicant submitted that the evidence was prejudicial and that the prejudicial effect outweighed any probative value that it may have for proving the two offences as they were particularised. It was further submitted that it called for the Accused to provide an explanation as to how these injuries may have occurred.
The Prosecution position in relation to this argument was that whilst penetration is not an element of the offences as charged, it is relevant on the Crown case to show that there was an injury caused to the hymen. The inference being that this could only occur if someone was sexually interfering with or indecently assaulting a person of the age of the Complainant at that time.
I declined to exercise my discretion to exclude this evidence. The evidence was plainly admissible and highly probative of the charges. There was no impermissible prejudice to the Accused in the leading of this evidence. If the findings of the Doctor were correct then in all likelihood there had been injury caused to the Complainant, it may have been that they were self inflicted. This was an area which was to be explored with the Doctor. In the absence of the Prosecution disproving that the injuries were self inflicted then in all likelihood the charges would fail to be proven beyond reasonable doubt. The fact that it may call for an explanation from the Accused if he chooses to give evidence is not a ground upon which to exercise my discretion to exclude it. There are many cases in which the Accused may feel a need to explain particular circumstances. That is a question for him to determine. There is no onus of proof upon him to do so and I will not draw any adverse inference against him for not having explained any one of the circumstances about which evidence has been led in the trial.
The Applicant also argued that the DNA evidence should be excluded. He argued that the evidence was highly prejudicial and had a low probative value in the circumstances of this case where there is no direct evidence as to how the DNA may have been deposited.
I do not accept that this evidence has a low probative value. In the circumstances of this case it is relevant that it is said that the Accused has the Complainant’s DNA in the trackpants which he was wearing at the relevant time and that the Complainant’s DNA may have been located on his penis, on his hands and under his fingernails when he was examined about 12 hours after the alleged incident. There is no impermissible prejudice to the Accused in admitting this evidence. There is no unfairness to him. In the circumstances of this case, and the nature of the circumstantial case, it will be for the Prosecution to exclude any reasonable hypothesis consistent with the innocence of the Accused, if they fail to do that then they will not have proved the charges beyond reasonable doubt. I decline to exclude the DNA evidence.
Charges
The Accused is charged with two counts of Aggravated Indecent Assault.
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Christopher Ian Jessop on the 21^st day of October 2013 at Aberfoyle Park, indecently assaulted EB, a person of the age of 11 years.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Christopher Ian Jessop on the 21^st day of October 2013 at Aberfoyle Park, indecently assaulted EB, a person of the age of 11 years.
An Indecent Assault is an assault accompanied by or committed in circumstances of indecency.
The offence of Indecent Assault consists of two essential ingredients each of which must be proven by the Prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first ingredient is that the Accused assaulted EB. An assault is an intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injuries. The application of force must be intentional which means that a purely unintended accidental touching would not be sufficient. The application of force must be unlawful. There is no suggestion that the Accused acted with lawful justification.
The second ingredient is that the assault must be accompanied by or occur in circumstances of indecency. In this context the indecent circumstances must involved a sexual connotation. What is indecent is to be considered using reasonable contemporary standards.
Consent has no part to play in relation to this case, as at all stages EB was under the age of consent.
The charge is aggravated as EB was 11 years old at the time of the alleged incident. It is unnecessary for the Prosecution to prove that the Accused knew of or was reckless as to her age at the time. [7]
[7] Criminal Law Consolidation Act 1935 (SA) s56(2).
The first count on the Information has been particularised by the Prosecution as the touching of the hands to the genital area of EB. The second count has been particularised as the touching of the penis to the genital area of EB.
Directions of Law
The Prosecution bears the onus of proving the guilt of the Accused at all times. The Accused does not have to prove that he did not commit the offences charged. The standard of proof is beyond reasonable doubt. The Accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In these reasons if I use the word proved, established, or satisfied then I have meant in each case to an extent that excludes reasonable doubt.
The Accused is presumed at law to be innocent of the charges unless and until the evidence that I accept satisfies me that each and every element of the offence has been proven beyond reasonable doubt.
If, however, the evidence that I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains innocent and I must return a verdict or verdicts of not guilty.
If I am satisfied that there may be an explanation consistent with the innocence of the Accused or I am unsure where the truth lies then I must find that the charge has not been proven to the standard required by the law and I must find the Accused not guilty. If I cannot exclude the Accused’s evidence as a reasonable possibility, then he is entitled to a verdict of not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
The Accused has given evidence. He was not obliged to give evidence but chose to do so. His evidence must be considered along with the other evidence in the case. In doing so I have made due allowance for some difficulties that he may have had understanding questions asked of him and articulating his responses.
There are two charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice, or fear and not be influenced by public opinion in relation to this matter.
Circumstantial Direction
The Prosecution relies here upon circumstantial evidence to prove the offence. Before Mr Jessop can be convicted on this evidence, his guilt must be the only rational inference which can be drawn from the circumstantial evidence.[8]
[8] Shepherd v R (1990) 170 CLR 573; Barca v R (1975) 133 CLR 82.
When a case against an accused person rests wholly or substantially upon circumstantial evidence, a verdict of guilty cannot be returned unless the circumstances exclude any reasonably hypothesis other than the guilt of the accused. If an inference or hypothesis consistent with innocence is open on the evidence, an accused person must be given the benefit of the doubt necessarily created by those circumstances.[9] If there is a reasonable explanation for the circumstances which is consistent with innocence, then Mr Jessop must be found not guilty. This is because a reasonable doubt would necessarily arise where any other inference consistent with innocence is reasonably open on the evidence.
[9] Knight v R (1992) 175 CLR 495.
Even if there is only one circumstance inconsistent with a conclusion of guilt that may be sufficient to destroy the hypothesis of guilt, depending on the nature of that individual circumstance.
In determining whether an inference is reasonable, I am to consider the evidence as a whole. A reasonable inference can be drawn from a combination of facts, none of which viewed alone would support that inference. I am not required to analyse each circumstance individually, none of which by itself would support an inference of guilt. While guilt must be established beyond reasonable doubt, the individual primary facts used to establish guilt need not themselves each be proved beyond reasonable doubt.[10]
[10] Shepherd v R (1990) 170 CLR 573 at 575 and 585.
I do not have to reject one circumstance because, considered alone, no reasonable inference can be drawn from it. I must consider the weight which is to be given to the united force of all the circumstances. One piece of evidence may resolve a doubt about another.[11]
[11] R v Hillier (2007) 228 CLR 618.
It is not for the Defence either to establish that some inference other than guilt should reasonably be drawn from the evidence, or to prove particular facts which would tend to support such inference. If the evidence viewed as a whole is susceptible of a reasonable alternative explanation then the Accused is entitled to be acquitted.
Evidence
The first witness called by the Prosecution was MB. MB has 5 children. Her eldest child is a daughter EB. EB was born on 17 December 2001. She gave evidence that EB is in year 8. EB has a learning disorder that was described as global delay. She said that that impacts upon EB’s speech causing her to have trouble pronouncing words as well as having difficulties learning new concepts.[12]
[12] TT 30.

In October 2013 MB was living at an address with her 5 children. She was in receipt of a single parent payment. She commenced a relationship with the Accused. In October 2013 she had known him for about 11 months. They had been in a relationship for 7 months. By October 2013 he was renting a place but staying with her on a regular basis. She said that he stayed with her “pretty much every night.”[13] At that time he was working installing air-conditioning. He came back to her house after work and stayed the night. She described the relationship between the Accused and her daughter EB as appearing normal.
[13] TT 33.
As at 20 October 2013 her son LB was in hospital. She, the Accused and the children went to visit him during the day on the 20^th. After they returned home they had a family meal and then the children went to bed at the normal time of about 7 o’clock.[14] EB had her own bedroom, next to the master bedroom in the house. Shortly after the children went to bed she and the Accused went to bed. She woke up at about 3.15am and noticed that the Accused wasn’t beside her. She got up and walked down the hallway. When she was entering the dining room she heard a noise coming from the lounge room. She described this as a rustling noise. She walked into the lounge room and saw the Accused coming off the lounge and when he had moved out of the way, she saw her daughter EB was getting up as well and then EB stood next to the Accused. She described the way that he got off the lounge and indicated that his belly had been towards the lounge. She gave evidence that she saw her daughter EB underneath him and that as soon as he stood up her daughter did the same. She was unable to see what type of clothing they were wearing because it was so dark.[15] She noticed straight away that the Accused was puffing a lot, “panting, puffing.” She said to him “what’s going on in here?” He said “E’s woken up, E’s just woken up.” The Accused walked out of the room. She asked him what he was doing and he didn’t reply. He walked into the bedroom and sat on the side of the bed. She told her daughter to go to her room and shut the door. MB followed the Accused into the bedroom. She said to him “I can’t believe you’ve done this” and that she was going to call the police to which he replied “give me enough time to prove I didn’t do it.”[16] She told him to get his stuff and to get out. He did that. At one stage he told her that he had been sick for weeks. She gave evidence that that was not true because she had been with him pretty much every day and knew he wasn’t sick. She also observed that his hands were shaking and his body was shaking all over.
[14] TT 35.
[15] TT 37.
[16] TT 39.
Before leaving the house he changed his pants. He took his pants off and put his jeans on. He left his pants on the floor. These pants were parachute type Nike pants. She didn’t touch them and left them in the same spot on the floor.
She gave evidence that EB was wearing shorts and a top and that the items EB was wearing were taken by the police. The police also took the parachute pants that the Accused had removed and left on the floor.
The witness was then shown photographs[17] and identified various photographs of clothing. In particular, she identified a pair of parachute pants as being the ones left by the Accused on the floor after he got changed. She also identified a pair of her daughter’s knickers. She said they would’ve been the ones worn by her on that night but she couldn’t remember seeing her wear them. A plan of the house was also tendered through this witness.[18]
[17] P2.
[18] P3.
MB was cross-examined. She said that the Accused got along well with the children but that she had done the parenting, including disciplining the children. She said that he might have kicked the football with the children on occasions but she had no specific recollection of that. She agreed that on the weekend in question her son LB was at hospital. She was asked whether on one occasion when they left the hospital the Accused was carrying one of her twins and holding the hand of another child when they left the hospital. She said she couldn’t remember that and normally the twins would walk beside her.
She agreed that in the months leading up to the incident she and the Accused had argued and that they would have a drink together. She went on to say that the Accused was always drinking. She was asked about the incidents that occurred at the hospital with her son, LB, and had little recollection in relation to it. She said she couldn’t remember the Accused helping in relation to any of his treatment at the hospital. It was suggested to her that on the Sunday night both she and the Accused were drinking. She disagreed saying that the Accused was drinking but she was not. She said he drank a lot of beer on that occasion. She said she went to bed really early after the children were sorted.[19] She agreed with the proposition that the Accused and EB had clothes on when she saw them get up from the lounge. She denied the Accused had ever said to her “what are you going on about M?” In re-examination she was asked what the state of the clothing of the Accused and her daughter was when she entered into the lounge room before they both stood up. She said it was too dark for her to see at that stage.
[19] TT 55.
The Prosecution called Duncan Taylor. He is a forensic scientist employed at the Forensic Science Centre. He gave evidence in relation to the transfer of DNA. This evidence was that during the course of sexual activity DNA could be transferred from one person to another. It can be transferred via seminal fluid or from female to male in a transfer of cells of vaginal secretions and in the event of penile activity it can be transferred to the penis. He said that vaginal secretions can contain epithelial cells which contain DNA. There can also be free DNA with vaginal secretions, that is, DNA that is not present in any particular cell, but free within the fluid. He said that during the course of physical contact there can be a transfer of skin cells from one person to another and it can go in both directions. He also gave evidence that contact DNA can be deposited when an item has been contacted rather than there being a transfer of biological fluid. He gave examples such as drinking out of a cup and saliva being located on the rim of the cup which could be targeted for DNA profiling. The outer surface of the cup could also be targeted where the hand has had contact with it.
He gave evidence in relation to secondary transfer. He said that that is when DNA comes to be on an item, not because it has been directly contacted by it but where there is an intermediary item that acts as a vector to move it to the item. In staying with the cup analogy, if the cup was picked up and the DNA of the individual was deposited underneath the cup and the cup was put back onto the desk, the DNA may be transferred to the desk from the cup.[20]
[20] TT 68.
Dr Taylor then outlined the items that had been submitted to the Forensic Science Centre in relation to this case. That included a buccal swab from each of the Complainant EB and the Accused, the black tracksuit pants, underpants in the name of EB, a sanitary pad from EB, the Sexual Assault Investigation Kit from EB and a number of samples that were taken from the Accused during a forensic procedure conducted by the Police.
In relation to the black trackpants, tape lifts were taken from the inner front and inner rear of the pants. A DNA profile was obtained from the tape lift of the inner front. A mixed DNA profile originating from three individuals was obtained. One of those individuals was assumed to be the Accused because they were his trackpants. They then compared the DNA profile of EB to the mixed DNA profile and considered two possible scenarios. The first was that the sources of the DNA were the Accused, EB and an unknown person while the other scenario was that the sources of the DNA were the Accused and two other unknown people. They calculated that the likelihood ratio was 270,000 in favour of the first description, that is, that the probability of obtaining the mixed DNA profile was 270,000 times more likely if the sources of DNA were the Accused, EB and an unknown person rather than the Accused and two other unknown people.
The second sample was the tape lift from the inner rear of the trackpants which was also examined. A mixed DNA profile was obtained. There was DNA from four individuals in that profile. They assumed that the Accused was one of the four people. They then compared the DNA profile of EB to that mixture and obtained a likelihood ratio of 4.4 million in favour of her inclusion to that mixture as opposed to the Accused and three other unknown persons.
The underpants submitted in the name of EB were subjected to some presumptive tests for body fluids. Semen was not detected. Positive results for the presumptive tests for blood were obtained. There were also two pubic hairs located, which were subjected for testing for DNA. Samples were taken from the inner waist band, the outer waist band, the inner crotch and from the hairs in the underpants. They located a single DNA profile and the Accused’s DNA was excluded from any of the samples taken.
The sanitary pad said to come from EB was also analysed. Presumptive tests were conducted. There was a positive result for the presumptive test for blood. There was one sample taken from the upper surface of the pad. A single source DNA profile that matched EB was located.
The Sexual Assault Investigation Kit from EB was analysed. Semen was not detected. There was no further analysis done.
The medical samples obtained from the Accused were also examined. There were a number of different samples from the hands, fingernails and penis of the Accused. Presumptive tests were carried out. At least one swab from each of the right fingernail swabs, the right hand swabs, the left fingernail swabs and the right palm finger swabs, gave a positive result to the presumptive test for blood.
Further analysis was conducted. In relation to the swabs from the right hand fingernails of the Accused, a mixed DNA profile from two individuals was obtained. Assuming the Accused was one contributor, they excluded EB from the mixture. The next sample was the swab from the left palm and fingers of the Accused. The DNA profile obtained was too weak to determine the number of contributors. The next sample was from the left hand of the Accused. A mixed DNA profile from three individuals was obtained. Assuming one to be the Accused, they then compared the DNA profile from EB to that mixed DNA profile and obtained a likelihood ratio of 23 billion in her favour of inclusion in that mixture.
The next sample was from the left hand fingernails of the Accused. They obtained a mixed DNA profile with three contributors. Assuming the Accused was one of those three, they compared the DNA profile of EB to the mixture and obtained a likelihood ratio of 2.2 billion in favour of her inclusion. There was also blood-like staining associated with that swab.
A test was conducted on the swabs from the right palm, fingers and nails. A mixed DNA profile originating from two contributors was obtained. Assuming that the Accused was one of those two, they compared the DNA profile of EB to the mixture and she was excluded as a possible contributor.
The swabs of the right hands of the Accused were tested. A mixed DNA profile with three contributors was obtained. Assuming that the Accused was one of those three they then compared the reference sample of EB to the mixture and obtained a likelihood ratio of 3.1 billion in favour of her inclusion in that mixture.
The penile swabs of the Accused were tested. They obtained a mixed DNA profile originating from two people. Assuming that the Accused was one of those two they then compared the reference DNA profile of EB and obtained a likelihood ratio of 4100 in favour of her inclusion in that mixture. The confidence expressed by the witness for anything above a likelihood ratio of 1 million was extremely strong support for the scenario of EB being a contributor to those mixtures rather than not being a contributor. In respect of the penile swabs, 4100 was described as very strong support for EB being a contributor to the mixture. In relation to the penile swab, the mixed DNA profile having come from two contributors is made up in proportions of 96% of the Accused and 4% for the other contributor, so if EB is the contributor, she would be the 4%, said Dr Taylor.
Dr Taylor then went on to give evidence about secondary transfer and the mechanisms of secondary transfer.[21]
[21] TT 80 and 81.
Dr Taylor was cross-examined. He agreed that as you went through the stages of transfer, namely primary, secondary and tertiary, that there would be less and less DNA to be transferred down the line. As you got less and less information, or less and less of the material deposited, then there would be lower levels of the DNA profile and that would result in a lower likelihood ratio. He gave evidence that eventually you get to a point where you would not detect any of the DNA at which point individuals start to be excluded.
He confirmed that in relation to the underpants said to come from EB that there were mixed DNA profiles obtained and that the Accused was excluded as a contributor. He gave evidence that there was a negative presumptive test for semen on the sanitary pad.
The Prosecution called Dr Jeyaseelan. Dr Jeyaseelan is a medical practitioner who graduated from the University of Adelaide with a Bachelor of Medicine and a Bachelor of Surgery in 1995. In 2006 she obtained her Fellowship at the Royal Australasian College of Physicians specialising in Paediatrics. She also has a Masters of Public Health and a Graduate Certificate in Forensic Medicine obtained in 2008 and 2011 respectively.
She has worked in the Department of Paediatrics at the Flinders Medical Centre as a paediatrician since 2008. Part of her role is working for Child Protection Services. Her work in the Service is broken down into two components, one being the complete forensic medical examination of children who have experienced abuse or neglect and the other is to provide general paediatric care for children who have experienced trauma or neglect.
She examined EB on 21 October 2013 between 2.00pm and 4.00pm. She obtained a general history from MB and also spoke to EB. She was aware from the records that EB had been assessed for intellectual and global development difficulties. She gave evidence that it was evident from the speech of EB that she had language delay. She made no assessment in relation to EB’s intellectual functioning.
She conducted a general examination. Her observations were that EB appeared well, alert and cooperative, although a little anxious and occasionally teary.
She then conducted a genital examination. That examination was conducted with the child lying in the supine position. It was aided by the use of a video colposcope, that provides a bright light and projects a magnified image of the area being examined onto a screen to allow for more easy visualisation. There was no internal examination other than the application of swabs for specimen collection. The genital area was exposed by applying traction to the labia majora. That traction then allows the tissues to part permitting visualisation of the internal genital structures.[22] The doctor gave evidence that she had prepared a diagram of the genital area of EB.[23]
[22] TT 89.
[23] Exhibit P4.
Whilst conducting the examination of the genital areas the first thing she observed were two areas of redness to the left side of the external genital structures. She described these as areas of erythema that had a slightly abraided appearance with slight roughened areas of redness. One of these areas was between the genital structures and the anus in the area of the perineum and the other to the left of the labia majora.
On examination of the internal genital structures, there was evidence of injuries around the hymeneal membrane. There was bruising and swelling to the areas of the hymeneal membrane between the five and eight to nine o’clock position. There were also two lacerations involving the hymeneal membrane, one located at six o’clock and the other located at between eight and nine o’clock. They were v-shaped and through the partial thickness of the hymeneal membrane. Both lacerations had red borders but there was no active bleeding at the time of examination. She gave evidence that it was likely they would have bled at the time of the injury as a laceration is a cut or tear to the membrane and it would have caused bleeding.[24]
[24] TT 91.
The Doctor also observed that upon traction of the genitalia EB was somewhat tender, although she did not report any other pain or discomfort during the examination. She noted a lax anal tone but no injuries around the anus. She then took the swabs for the Sexual Assault Investigation Kit.
The Doctor was asked her opinion in relation to the areas with erythema. She said that they appeared to be friction injuries that could have been caused by applying a “crushing force over the skin from contact with an object.” [25] She said that fingers or a penis if applied forcefully against the skin in those areas could have caused the abrasions she observed. She also opined that the injuries were consistent with having been caused within 12 hours of the examination and described them as recent injuries. She gave this opinion because the injuries were still red and there was evidence of skin disruption being the breaches to the skin.
[25] TT 92.
In relation to the injuries to the hymen, she said the mechanism for those injuries would have been a blunt penetrative trauma to the hymen. Once again fingers applied or inserted, and/or the application or insertion of a penis could have caused those injuries and is consistent with the bruising, swelling and bleeding. She said that the injuries could have been caused 12 hours earlier as the presence of bruising and swelling indicates a recent injury. She said injuries in the genital area heal quickly and there may be resolution of these injuries even 24 hours or 48 hours after the application of force. In addition to this, lacerations can change in appearance over a period of time, moving from the sharp edge margins that she observed to the more rounded U-shaped injuries. However, in this case, it was the presence of the swelling and the bruising in particular that indicated to her that these were recent injuries.
Dr Jeyaseelan gave evidence that EB was not menstruating at the time of the examination as she observed no bleeding during the examination nor when she collected the swabs from the high vagina, low vagina or labia.
The Doctor gave evidence that in her clinical experience she has not seen self-inflicted injuries of the internal genital structure of this type.
She was cross-examined. She conceded that the time frame in which the injuries had occurred could have been longer or shorter, however, the bruising and swelling provides a time frame, she said, for more recent injuries that would heal generally within 24 to 48 hours, so it was less likely to be an injury of more than 48 hours in duration. In relation to the possibility of self-inflicted injuries she said that she couldn’t necessarily rule out that they were self-inflicted.
Two statements from Joanne Sanderson who had taken the forensic samples from the Accused were tendered.[26] The statement of Dr Taylor and his report was tendered.[27] A series of agreed facts were read.[28]
[26] P5.
[27] P6.
[28] TT 98.
The Accused gave evidence. He said that he met MB at a Christmas function in late 2012. They moved in together at about the end of April 2013. At that time he was working installing air-conditioning and combustion heaters. He generally worked from 7 to 7.30am and got home at various times, sometimes as late as 6.00pm. At the time he moved in with MB she had five children. He said that he got along well with the children and that they grew quite fond of him over a short period of time.[29] He said he would help out with the children although MB was the major caregiver. He gave examples of his help being that he changed a movie for them on occasions, taught the boys to use hand and power tools, and played football, he said, usually on Saturday in the morning. He said he had physical contact with the children such as giving them a cuddle or teaching them how to hold a pen or pencil properly. In relation to the older children of which EB was one, he described the type of physical contact he had with them as “just you know, give them a pat on the back or a cuddle if they were upset.”[30]
[29] TT 100.
[30] TT 102.

He described the events of the weekend in question. He said that LB was in hospital. He had worked until about 4 or 4.30pm on Friday when he had a quick wash and then went and dropped off the other children at MB’s brother’s place in Christies Beach. He and MB then went to visit LB in hospital. They stayed there for a couple of hours and went home. On Saturday morning they got up early at about 8.30 to 9 o’clock and went to the hospital to see LB. He, MB and the four children went to the hospital on that occasion. They stayed at the hospital all day until about 6 or 7 o’clock. On the following day, Sunday, they once again went to the hospital. On that day, he recalled LB having a particularly unpleasant procedure and said he had assisted in relation to it. He said during that day the children’s Grandmother had arrived and supervised the children at the hospital whilst he and MB were with LB. They left the hospital about 7.30pm and walked to MB’s car. He said that he carried one of the twins and that MB carried the other twin, and the two elder children held the hands of himself and MB. He couldn’t remember which of the children’s hands he was holding. They went home via the bottleshop and KFC.
At home, the children had something to eat, the twins went to bed and about half an hour later the older children went to bed. He and MB stayed up and they argued. They argued, he said, about the fact that MB felt the children didn’t love her because LB had wanted him to help with the medical procedure rather than herself. At that time he wanted to terminate the relationship. He said they were both drinking alcohol. They both went to bed at about the same time. He didn’t want to talk anymore as he had had enough by that stage. Before falling asleep he finished his drink and had a cigarette.
He said that he got up to go to the toilet at some stage during the night. When he awoke up he lit a cigarette in the main bedroom, put some pants on, and then walked down the hallway and went to the toilet. After that, he went to the fridge to get a drink. He was still smoking his cigarette at that stage. Whilst he was in the kitchen he heard a noise coming from the lounge room. He went to investigate and saw MB sitting on the lounge wearing a pyjama set.[31] She was just sitting on her own. He asked her what she was doing up and she said something but she mumbled it and he didn’t understand what she said. Her mum, MB, then came out the main passage and said “what’s going on?” He said “I don’t know, I just got here, I was just asking her why she’s up. I couldn’t understand what she said.” MB then asked EB what was going on. She then turned and said to him “have you been touching my daughter?” He said “no”, she said “I want to talk to E.” With that, the Accused went back to the bedroom. He then sat on the bed and finished his smoke and about two or three minutes later MB came into the bedroom. She again asked if he had been touching EB. He denied that he had touched EB. He said the conversation went as follows. She said “have you been touching E?” He said, “what are you talking about?” She said “have you been touching E?” He said, “no”. She asked him a couple of times and he said “no, I haven’t touched her.” MB then asked him to get his stuff and to get out. At that stage he thought MB was being “an idiot”.[32] He took the keys to his vehicles, his tape measure and pliers, his work related stuff and his dog, and left. MB told him that she was going to call the police while he was packing his things. He denied that he ever said to her “I’ve got plenty of time to prove I didn’t do it.”
[31] TT 108.
[32] TT 111.
Once he left the house, he started to walk towards a colleague’s house. It was about 3.45am when he left the house but he didn’t get to the colleague’s house because he went the wrong way. Eventually he rang the colleague who came to pick him up.
The Accused denied that he was on top of EB on the lounge at any time.
He denied touching her vagina with his finger or his penis. He said that at that stage he had some abrasions to his knuckles that were work injuries.
He was cross-examined. He said he liked EB and got along well with her. He did activities with her including helping her with her reading and writing. He said he was under the impression she was 12 years old but it’s now come to light that she was only 11.[33] He said he wasn’t particularly affectionate towards her and treated her like the other children. He said if he did give her a cuddle it would be a pat on the back sometimes, or both arms around her to comfort her a bit, and he demonstrated that. He denied ever kissing her goodnight or doing anything other than giving her a fairly perfunctory hug before bed. The cuddling, he said, occurred before bed in the kitchen or occasionally in the lounge room.
[33] TT 116.
In relation to the events of the evening of 20 October, the Accused said that he was unclear whether he had given EB a cuddle before bed. It was more likely that he did but he couldn’t remember it. He didn’t put her to bed, she went there herself. He didn’t kiss her goodnight. When he got into bed he was naked. When he got up to go to the toilet, he thought he put jeans on. He said he didn’t think he was wearing the black trackpants on the night in question. When shown the photos he agreed that they could be his trackpants that were taken by the police on that night. He said if he had been wearing them it would have been throughout the weekend. He later conceded that when he got up he may have put the black trackpants on rather than the jeans but wasn’t sure about that. He said that whatever pants he put on, he put them on without underpants on that evening. He said that when he went into the lounge room he saw EB sitting upright in the middle of the lounge. He said that EB was quite often found up and about at night as the children helped themselves to the food cabinet. However, he conceded that she had never before that night, been found in the lounge room sitting on the couch on her own, in the dark without the television on. He denied having gone into her room and taking her from the room into the lounge room. He said the lounge room was in darkness when he found her there. He said he didn’t turn on any lights in the lounge room and he hadn’t had a chance to take her back to the room because he had only just seen her there when MB arrived. He described leaning up against the door frame with his shoulder against the door and denied that he actually went into the lounge room at any stage. He denied that he had been getting up from the couch when MB arrived. He denied being “caught in the act”[34] of sexually abusing EB.
[34] TT 135.
He was cross-examined about what occurred in the bedroom after he and MB returned to the bedroom. He said he got dressed and she asked him to leave. When getting dressed he put on work clothes including jeans. He conceded it was possible that he had changed out of his trackpants and put on his jeans when he left the house but he couldn’t specifically recall this.
In relation to the allegation that when he was found in the lounge room by MB he was puffing and panting, the Accused said that he didn’t reckon he was but he had been sick in the previous two maybe three weeks. Although he thought his health was fine at the time of this incident. He said he wasn’t breathing heavily or noisily at the time, and he wouldn’t have thought his breathing was something that MB would have noticed. He denied that he was shaking when he was in the bedroom that night, and denied that he had been shaking because he had been caught in the act of abusing EB.
He denied he had EB’s blood on him and had no explanation for how her DNA could have come to be on his hands or under his fingernails, or, on his penis. He said there was no accidental touching that could have accounted for that. He said in relation to the DNA inside the track pants, he had no explanation for how it could be there. He didn’t think she would have handled his tracksuit pants and she had not worn them.
The Accused also gave evidence that after he was picked up by his work colleague on the morning of 21 March, he dropped his dog off and worked installing air-conditioning. He said he didn’t do a lot of work on that day because he was “mentally distraught.”[35] He said he didn’t shower or wash his hands at all that day and hadn’t showered since Thursday of the week before. He confirmed that EB was with him and MB from the time she was picked up on Friday evening, including all day Saturday and Sunday.
[35] TT 146.
The Accused called no other evidence.
Addresses
Mr Powell addressed on behalf of the Prosecution. He submitted that the combination of evidence led by the Crown leads to only one plausible conclusion, that the Accused indecently assaulted EB in the lounge room of their home in the early hours of 21 October 2013. He said that the Crown relies on the observations of MB and her evidence about the behaviour of the Accused in the lounge room as indicating some type of sexual activity or sexual contact involving EB. They also relied upon the medical examination conducted by Dr Jeyaseelan and her observation of injuries that are consistent with a sexual assault. The Prosecution submitted that the only realistic explanation for the injuries are that they were as a result of a sexual assault. Mr Powell referred to the abrasion type injuries and the injuries to the hymen. The hymeneal injuries would have resulted in bleeding and that is significant as there was bloodlike staining found on the swabs of the Accused’s hands and on the sanitary pad being worn by the Complainant when it was seized by the police, and the Complainant was not menstruating at that time.
Mr Powell submitted that the evidence of Dr Jeyaseelan excludes self harm as the cause of the injuries. Whilst she accepted it as a possibility, he said it was not a realistic possibility given her evidence that she has never seen injuries of this type self-inflicted. The third aspect that the Crown relied upon was the DNA evidence as establishing that the Accused had recent contact with EB in particular with his fingers and his penis. Mr Powell submitted that DNA consistent with EB’s DNA was found on swabs taken from his left hand, under the fingernails of his left hand, on his right hand, and his penis. It was also located on the front and rear inside of the trackpants and this could have occurred when the Accused pulled up his pants and transferred the complainant’s DNA from his penis to the pants. There was also blood like staining on the underpants and the sanitary pad consistent with bleeding from the injuries after they were caused. In all, the combination of features in this case is such as to exclude any reasonable hypothesis consistent with the innocence of the Accused. In relation to the evidence given by the Accused, Mr Powell submitted that it is an unlikely account in the circumstances of this case. He submitted that the Accused’s evidence was unconvincing and ought not be accepted. He said that it was incredulous to consider that the DNA of the complainant came to be on the Accused in the areas on which it was located simply because they occupy the same house and there was innocent or secondary transfer from the Complainant to the Accused in the areas in which it was located.
Mr Stratton-Smith addressed on behalf of the Accused. He said that there was no evidence from MB that there was any removal of clothing or disarray of clothing when she went into the lounge room, something that would have been necessary if indeed the Accused was engaged in an act of indecent assault with his penis at that time. He was critical of the evidence of MB and her inability to answer questions about the chronology of offence and the events relating to her family on the weekend of the alleged offences. He suggested that she was less than frank in relation to her true recollections.
Mr Stratton-Smith submitted that the Accused was with the family for the whole weekend and inevitably there would have been physical contact between him and all members of the family, perhaps providing an explanation for the forensic evidence in this case.
In relation to the observations of MB he said that because it was so dark in the lounge room there was an assumption made by MB that the Accused was getting up from a particular position on the couch at that time and she never actually saw the Accused lying on top of her daughter. He said there was no suggestion that either of them were quickly pulling up clothing or doing anything else that may have indicated that there had been unlawful activity occurring. He submitted that it is unlikely that the Accused got the Complainant out of bed and then took her to a lounge room where there was no door on the lounge room. He posed the question why risk being heard or seen or being caught in that way. He submitted that it was much more likely that EB had herself got out of bed and moved to the lounge room. He submitted that this scenario is not at all unlikely.
Further he submitted that MB had made assumptions in relation to what was going on between the Accused and EB, and these assumptions were unfounded. He also submitted that the statement of MB, that the Accused said “that will give me time to prove I didn’t do it,” does not make sense and appears to be out of context in relation to what was being discussed at that time.
In relation to the medical injuries he submitted that whilst the injuries may have been consistent with a finger or a penis, that does not rule out other causes particularly given the broad potential timeframe for the injuries. He submitted it does not exclude the injuries being self inflicted, something the Doctor could not positively exclude.
Mr Stratton-Smith submitted that the DNA evidence doesn’t take the matter much further and that the results are quite unsurprising. The Accused was living with the family, and there must have been contact between the members of the family in the usual way. He also submitted that there was support for this proposition given that there were three or four contributors to some of the profiles that were obtained from the swabs taken from the Accused. He submitted that the DNA of the Complainant from the penis could have been a secondary transfer by the Accused having held his penis when toileting and the DNA having been transferred to his penis in that way. This is also supported, Mr Stratton-Smith said, by the likelihood ratio of the DNA located on the penis.
He also reminded me that there was no semen located in any of the swabs or in any item that had been analysed.
He submitted that it is noteworthy that the Accused was specifically excluded as a contributor to any DNA on the Complainant’s underwear, and he said if there was some truth to these allegations then one might expect that the Accused’s DNA would be located on the Complainant’s underwear.
Mr Stratton-Smith said the Accused had given evidence even though this was not required. He submitted the Accused was honest, his evidence was consistent, he provided plausible explanation for what he did and when he did them and that there was no reason to reject his account as a reasonable possibility. Mr Stratton-Smith invited me to acquit the Accused.
Findings of Fact
I found MB to be a credible and reliable witness. She gave her evidence in a straightforward and convincing manner. She did not hesitate to admit any uncertainty that she had. She was very clear about the events that occurred at about 3.15am on 21 October 2013. If she was prone to exaggeration she may have added further detail that could have been damning towards the Accused but she did not do so. The actions that she took immediately after her observations were entirely consistent with the observations that she made. She directed the child to go to her bedroom. She confronted the Accused immediately about what he was doing and ordered him from the house. Thereafter she telephoned the police who attended in the early hours of the morning. I accept that her memory in relation to other events on the weekend was not so clear. There may be many reasons for this. They may have been routine as opposed to the unusual event she witnessed in the early hours of that morning.
I accept the evidence of MB that in the course of getting ready to leave the house, the Accused took off the pants that he was wearing, left them on the ground and changed into jeans. This is supported to some extent by the evidence of the Accused that he wears jeans to work and that that is what he left the house in on that morning.
I accept that after MB told the Accused she was going to call the police, he said words to the effect that that “would give him enough time to prove he didn’t do it.” There seems to be no doubt on either the evidence of MB or the Accused that in the early hours of the morning, MB at least thought that she had witnessed an event that was suspicious between the Accused and her daughter.
I accept the evidence of Dr Jeyaseelan that when she examined the Complainant, about 12 hours after the discovery by MB of the Accused with her daughter, that she observed injuries to the genital area. These injuries included two lacerations in the hymeneal area that would have bled at the time they were caused but had no active bleeding at the time of the examination. I accept that the Complainant was not menstruating at the time of the examination. I accept that the blood that was on the sanitary pad, seized by the police in the early hours of 21 October, from the Complainant, came from the injury caused to her genitals. I accept that the areas of redness observed by the Doctor were caused by friction or abrasion consistent with rubbing by the fingers or another body part on that area. I accept that the injuries, as observed, were recent injuries consistent with having occurred at about the time when MB observed the Accused in the lounge room with her daughter.
On the evidence given by both the Accused and MB, EB had been either with them for the 48 hours prior to the medical examination occurring. There was no evidence of contact between EB and any other person, or her having any accident, or any other explanation for the injuries that were observed by the Doctor.
I accept the DNA evidence. The results of the DNA test were not challenged by the Accused. The cross-examination of the witness in relation to this issue was directed to the transfer of DNA and the various possibilities that exist in relation to the transfer. The DNA results confirm the presence of the complainant’s DNA on the inside of the black trackpants worn by the Accused at the time he was discovered with her in the lounge room. In the front sample, there are three contributors, including the Complainant, and the rear, four contributors, including the complainant and two unidentified people. There was no evidence before me as to when these trackpants were last washed, or for how long the Accused had been wearing them. In addition to this finding, there was a mixed DNA sample from two people located on the penile swab of the Accused. The Complainant was one of the two contributors to this DNA profile. I am satisfied that it was her DNA profile that was located in the profile being the minor proportion of the profile, the major proportion was that of the Accused.
Within the samples taken by the police from the Accused at 4.45pm on 21 October 2013 by registered nurse Joanne Sanderson, were fingernail and hand swabs from the dominant right hand of the Accused, followed by fingernail and hand swabs from his left hand.[36] From the swabs taken under the left hand fingernails, a mixed DNA profile was obtained with three contributors, including the Accused and there was extremely strong support for EB as one of the other two contributors. From the swabs of the right hand, there was a similar result found. EB was excluded as a contributor to the DNA profile from the swabs taken under the right hand fingernails, and, from the swabs taken from the right palm, fingers and nails of the Accused. During the course of evidence MB described seeing the Accused on the couch with her daughter EB. She described the head of EB being towards the left hand side of the couch, as depicted in photo 8, P2. If the Accused was lying on top of her with his face facing her, his left hand would have been less constrained by the circumstances of how they were lying, and may have allowed him to touch EB from that position, and therefore deposit her DNA under his fingernails and on his fingernails.
[36] P5.

No DNA of the Accused was located on the underpants or sanitary pad that was taken from the Complainant by the police in the early hours of 21 October. It was suggested in the Defence address that if these offences had been committed then one would expect there to be DNA from the Accused on the underpants. However, that argument is only good if in fact the Complainant had been wearing the underpants at the time that she was discovered by her mother in the lounge room. The only evidence of the clothing that she was wearing at that time came from the Accused who thought she was wearing a “PJ set”. MB was unable to see what clothing EB was wearing because it was so dark,[37] but gave evidence that EB was wearing shorts and a top later, and these were the items seized by the police. In relation to her daughter’s knickers, she identified them as being in photo number 2 of P3 but couldn’t remember her wearing them on the night. These underpants also contained blood like staining on the inner crotch and the only DNA profile identified came from the Complainant herself.
[37] TT 37.
There was no evidence before me that EB had been wearing the underpants at the time when these alleged offences occurred. I remind myself that these issues must be determined on the basis of the evidence that was adduced, not what may have been adduced had a particular witness been called. The absence of any evidence cannot be used by me to fill the gaps in relation to the matter. In particular, I must not speculate about what a particular witness may have said if they were called to give evidence. The question for me here is, does the absence of DNA from the Accused, but the presence of mixed profiles from the inner waist band, the outer waist band, and the inner crotch, all of which the Accused has been excluded from, give rise to a reasonable hypothesis consistent with the innocence of the Accused in the circumstances of this case. That is a matter to be considered along with the balance of the evidence. Of course it is possible that one circumstance alone could be sufficient to provide a reasonable doubt. Equally, if there is one hypothesis consistent with innocence and the other consistent with guilt, then I must give the benefit of the doubt to the Accused.[38]
[38] Knight v R (1992) 175 CLR 495 at [503].
When the medical samples taken from the Accused on the afternoon of the 21 October 2013 were analysed, at least one swab from each of the right fingernail swabs, the right hand swabs, the left fingernail swabs and the right palm finger swab, gave a positive reaction to the presumptive test for blood. No positive reactions for the presumptive test for blood were obtained from the left palm finger swab or the left hand swabs. On the swabs of the right hand, in addition to the presumptive test for blood being positive, there was a mixed DNA profile for which there were three contributors. There was extremely strong support for EB being a contributor in relation to this sample. In respect of the swabs for the right palm, fingers and nails, EB was excluded as a contributor to the DNA profile. In relation to the swabs on the right hand fingernails, EB was excluded as being a contributor. In respect of the swabs for the left hand fingernails, both blood and DNA profile consistent with coming from EB was located. In relation to the finding of blood, the Accused gave evidence that he had had some injuries, being abrasions to his knuckles, some time prior to 21 October 2013. He did not say in evidence that these injuries bled, nor were there any specifics given in relation to how they were caused, or even when they were caused.[39]
[39] TT 112.
I did not find the Accused to be a very convincing witness. His evidence lacked detail and cogency. I do not find him to be a credible witness. I found this very surprising as he had been on notice from the time of alleged incident of the allegation and the police involvement. At various stages in his evidence he attempted to demonstrate his good relationship with the children of MB by claiming to have purchased food items or toys. It was quite superficial. While the Accused has no onus on him to provide explanations for the evidence of the Prosecution, it is relevant that when he gave evidence there were no innocent explanations that could undermine the prosecution case, in other words, give rise to a rational hypothesis consistent with innocence. Naturally, I have and will consider his denials and his evidence.
I am satisfied that the following facts are established by the evidence.
·That at about 3.15am on 21 October 2013, MB awoke to find the Accused no longer asleep in the bed beside her. She investigated and found him in the lounge room.
·When she first saw him, he was getting up from the lounge where he had been lying face down with her daughter EB who was lying face up underneath him. He was puffing and panting at that time.
·After he got up from the lounge, EB got up, MB told her to go to her room.
·MB confronted the Accused, the Accused denied he had done anything to EB.
·The conversation continued in the bedroom. The Accused continued to deny any wrongdoing. His hands and his body were shaking at that time.
·The trackpants that he had been wearing when he was in the lounge room were removed by him and left on the floor.
·The police were called and attended shortly thereafter. They seized items of clothing including the trackpants that the Accused had been wearing and the underpants and sanitary pad from EB.
·When EB was medically examined 12 hours later, she had injuries to her genital area consistent with blunt force trauma and penetration of the hymen. The injuries to the hymen were lacerations that would have bled at the time they were caused. These injuries would have been caused approximately 12 to 48 hours prior to the medical examination occurring.
·Upon examination of the clothing items at the forensic science centre, blood was located in the underpants and on the sanitary pad collected from the Complainant. She was not menstruating at the time.
·DNA was located in the front and rear of the track pants. EB was a contributor to the profiles obtained.
·Samples were obtained from the Accused by the police 13½ hours after the incident in the lounge room.
·No semen was detected on any of the samples. This is consistent with the Accused not having ejaculated at any stage.
·The swabs analysed from the Accused’s right fingernails, the right hand, the left fingernails and the right palm, gave a positive result to the presumptive test for blood.
·EB was excluded as a donor of the DNA from the right hand fingernails of the Accused.
·EB was a contributor to the DNA located on the left hand, under the left hand fingernails and from the right palm, fingers and nails, and the right hand of the Accused.
·The DNA of EB was located on the penis of the Accused.
·EB was in the company of the Accused and her Mother, and there had been no incidents observed by MB or the Accused that could have given rise to the injuries observed at the medical examination in the relevant timeframe.
The defence case in relation to the circumstantial evidence is that the Accused denies he interfered with the Complainant. The Complainant has not given evidence that the Accused interfered with her, there is no evidence as to whether any injuries, if they existed, were self inflicted. The DNA of the Complainant located on the Accused could have been as a result of a secondary or tertiary transfer. There was no DNA of the Accused located on the underpants of the Complainant. The combination of these features, says the defence, leaves open a rational hypothesis that the Complainant inflicted the injuries upon herself, or, that someone other than the Accused interfered in a sexual way with the Complainant.
In considering the inferences to be drawn from the facts that I have found established, I must consider the combined strength of the established facts. Doing so, I am satisfied that the Accused sexually interfered with EB in the early hours of 21 October 2013. I make this finding on the basis of the combination of the evidence - the observations of MB, the injuries to the Complainant, the finding of blood in her underpants and on her sanitary pad, and the results of the DNA and forensic testing. I reject as a reasonable hypothesis that the Complainant inflicted the injuries upon herself. I reject this taking into account the whole of the case, including the observations of MB and the DNA evidence. I reject as a reasonable hypothesis that another person sexually interfered with the Complainant. I reject this on the basis of the evidence of MB, the fact that EB had not been in the company of another who could have inflicted the injuries within the time frame available, the finding of the blood in the underpants and the sanitary pad in the early hours of the 21 October and the results of the DNA analysis. In rejecting this hypothesis I have taken into account the evidence of the Accused about his injuries, and possibly holding the hand of the complainant as they left the hospital, the lack of his DNA on her underwear and the arguments of his counsel. I do not accept that the denials of the Accused that he sexually assaulted the complainant are reasonably, possibly true.[40]
[40] Douglass v R (2012) 86 ALJR 1086.
The Accused is charged with two counts of Aggravated Indecent Assault. The first count relates to a touching of the vagina of the Complainant with the hands of the Accused, and the second, to a touching of the Complainant’s vagina by the penis of the Accused. I must consider whether I am satisfied beyond reasonable doubt in relation to the elements of each of these offences.
The injuries that were observed are consistent with having been caused either by the finger or the penis of the Accused. The observations of MB are consistent with either a touching of the vagina by the finger or the penis having occurred at a stage prior to her walking into the room. The observations of MB when she walked into the lounge room are not consistent with the Accused touching the Complainant with his penis at that time, given the state of clothing as described by MB. I have no doubt given the findings of DNA under the fingernail on the left hand, the finding of DNA on the swabs of the right hand, and the positive presumptive test for blood that the Accused has used his fingers to touch the Complainant in the area of her genitals. However, whether he has used his penis in relation to touching her is not so certain. It is possible that his hand came in contact with his penis after he touched the Complainant and there was a transfer of DNA both onto his penis, and thereafter, onto the tracksuit pants he was wearing at the time. As the Prosecution have not excluded this as a reasonable possibility, a doubt remains and the Accused must be given the benefit of this doubt.
I am satisfied beyond reasonable doubt that he used his fingers to touch the genital area of the Complainant and caused the genital injuries to her, thus causing her DNA to be under his fingernails and blood from those injuries to be under his fingernails and on his hand. I am therefore satisfied beyond reasonable doubt that the Accused assaulted EB by touching her on the genitals with his fingers and that this assault is indecent. Further I am satisfied beyond reasonable doubt that the Complainant was 11 years old on 21 October 2013.
Verdicts
I find the Accused guilty of count one on the Information and not guilty of count two.