R v JHH
[2022] SADC 127
•20 October 2022
District Court of South Australia
(Criminal)
R v JHH
Criminal Trial by Judge Alone
[2022] SADC 127
Reasons for the Verdict of his Honour Judge Heffernan
20 October 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
MAINTAINING AN UNLAWFUL SEXUAL RELATIONSHIP WITH A CHILD
The accused is the biological father of the complainant. It was alleged that he repeatedly sexually abused the complainant over a period of about two and a half years commencing 17 March 2018. At all relevant times, the accused was separated and later divorced from the mother of the complainant. Both the accused and the mother had repartnered. When the complainant was about two years old the accused instituted parenting proceedings in the Federal Circuit Court seeking time with and joint care of the complainant. Those proceedings were bitterly contested over a number of years. False allegations of domestic violence by the accused were made in an affidavit sworn by the complainant's mother. That affidavit was tendered in the parenting proceedings. Allegations of sexual abuse by the accused to the complainant were also made in the context of those proceedings in 2017. The complainant was interviewed in 2018 and no sexual abuse was disclosed. On 3 January 2021, the complainant allegedly disclosed the accused's offending on the day she was returned to her mother after having spent a week with him.
Verdict: Not Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50(1) and 50(12); Evidence Act 1929 (SA) ss 13BA (3)(b), 3(c), 5(b), and 6(b), referred to.
R v JHH
[2022] SADC 127Criminal Jurisdiction
The accused was tried before me in the absence of a jury. He is charged with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[JHH] between the 17th day of March 2018 and the 2nd day of January 2021 at Davoren Park, Salisbury North, Salisbury East, or other places, maintained an unlawful sexual relationship with [KEH], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) inserting his penis into her vagina on more than one occasion;
(b) performing an act of cunnilingus upon her on more than one occasion;
(c) inserting a finger into her vagina on more than one occasion;
(d) inserting his penis into her anus on more than one occasion; and
(e) causing her to perform an act of fellatio upon him.
Background
The complainant KEH (DOB 18 March 2014), is the biological daughter of the accused. The accused and the complainant’s mother separated not long after the complainant’s birth. It is alleged that from 2016, pursuant to orders made in the Federal Circuit Court (‘FCC’), the complainant visited and stayed at various addresses where the accused lived.
From July 2016, pursuant to orders made in the FCC, the arrangement was that the accused would have three hours with KEH every Saturday. From 10 July 2017, the FCC made orders allowing for the accused to have care of KEH on alternate weekends from Friday at 5pm to Sunday at 5pm (‘the alternate weekend orders’).
On 25 October 2017, KEH was examined at the emergency Department of the Women’s & Children’s Hospital. The examining medical practitioner observed two bruises to her back and bruising over her shins and knees. A genital examination revealed some erythema of the labia minora and introitus but no bleeding or discharge. There were no other significant findings on that examination.
The alternate weekend orders were suspended from 30 October 2017 until 26 March 2018, when overnight contact resumed on one night each alternate weekend. From 26 June 2018, the accused’s time with KEH was increased to alternate weekends from 4 pm Friday to 5 pm Sunday. The complainant’s mother withheld contact with KEH from the accused in contravention of the FCC orders and as a result she was placed on a good behaviour bond by that court on 13 August 2019. The last occasion on which the complainant stayed with the accused was over the Christmas period in 2020 and 2021.[1]
[1] The chronology in the paragraph is taken from Exhibit P10, Agreed Facts.
The allegations were initially reported to police on 3 January 2021. The accused was arrested on that day and police took swabs of his penis. On the same day forensic swabs were taken of the genitalia and perianal area of KEH. The underpants, leggings and bed coverings of KEH were seized by police on 3 January 2021. On 11 January 2021, Aimee Phillips, a social worker at Child Protection Services, conducted a preliminary interview with KEH. An examination by Forensic Science SA of KEH’s underpants and leggings did not reveal the presence of semen or blood-like staining.[2] A mixed DNA profile was found on the swab taken from the glans of the accused’s penis. Analysis concluded that the statistical weighting was 6.9 billion in favour of the proposition that KEH was not a contributor to the mixed profile. The swabs obtained from KEH’s genitals and perianal area had either very low amounts or no male DNA present and were not analysed.[3]
[2] Ibid.
[3] Exhibit P11.
Elements of the Offence and Legal Directions
The elements of the offence of maintaining an unlawful sexual relationship with a child are as follows:
1.That the accused knowingly maintained a relationship with the child, KEH. This element requires more to the relationship than the sexual acts alleged. The sexual acts can nonetheless be considered when determining whether the prosecution has proved this element. At trial there was no dispute as to this element. There was a relationship maintained during the period alleged. I am satisfied this element has been proven beyond reasonable doubt.
2.In the course of the relationship, the accused engaged in two or more sexual acts with KEH. An unlawful sexual act is a sexual offence, defined by s 50(12) of the Criminal Law Consolidation Act 1935 (CLCA) as:
"sexual offence" means—
(a) an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b) an attempt to commit, or assault with intent to commit, any of those offences; or
(c) a substantially similar offence against a previous enactment.
This was the only element in dispute at trial. Where a number of different types of sexual acts are particularised, it is not necessary for the prosecution to prove that all of the types of conduct occurred. It will be sufficient if two or more acts of the type of conduct alleged were performed by the accused during the period alleged.
3.That KEH was a child during the period of the relationship. There is no dispute that KEH was born on 18 March 2014. This element is established beyond reasonable doubt.
4.That the accused was an adult during the period of the relationship. There was no dispute as to this matter. This element is established beyond reasonable doubt.
The primary issue at trial was whether the accused had ever committed any of the acts as alleged.
As this is a trial by judge alone, I am not required to give written directions to myself on the law which are as detailed as would be required for a jury. I have nonetheless applied the relevant directions in my consideration of this matter in the same way I would have directed a jury to apply them.
I have applied the following principles in reaching my verdict.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. Before the accused is convicted of the offence, the prosecution is required to prove beyond reasonable doubt each element of the charge. In these reasons, if the words ‘proved’ or ‘established’ or ‘satisfied’ are used, this means to a standard of proof beyond reasonable doubt. If there is any explanation consistent with the innocence of the accused, or there is uncertainty as to where the truth lies, then the accused must be found not guilty.
The accused elected to give evidence. He was not obliged to do so. As the accused has given evidence in his defence, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. He does not have to prove his innocence. Subject to that, I have assessed his evidence like the evidence of any other witness in this trial. I note that I am entitled to give him such credit as I think appropriate for adopting a course he was not obliged to take.
I have reminded myself that in the assessment of the evidence, it is not a question of whether I prefer the evidence of one witness over that of another. Rather, the question is whether I find that evidence to be honest and reliable and whether the prosecution has proved each element of the offence beyond reasonable doubt.
KEH’s evidence in chief was in the form of two audio-visual records admitted pursuant to s 13BA of the Evidence Act 1929. On the voir dire, I viewed part of one of the interviews conducted with the complainant by police. I also asked KEH a series of questions on the voir dire to establish whether I could be satisfied of her competence to give evidence. I was satisfied of KEH’s capacity to give unsworn evidence at the time each of the recordings was made.[4] There was no doubt that the accused had been given a reasonable opportunity to view the recording and KEH was available for the purpose of giving evidence during the trial if required.[5] KEH gave brief oral evidence in chief at the trial and was cross examined. I was satisfied that it was in the interests of justice to permit this.[6] I have reminded myself that I am not to draw any inference adverse to the accused because the complainant’s evidence in chief was introduced by way of a pre-recorded interview and I am not to allow the admission of evidence in that form to influence the weight I have given to it.[7] Prior to the complainant giving evidence in chief I satisfied myself that she was capable of giving sworn evidence and she did so.
[4] Evidence Act 1929 (SA) s 13BA (3)(b).
[5] Evidence Act1929 (SA) s 13BA (3)(c).
[6] Evidence Act1929 (SA) s 13BA (5)(b).
[7] Evidence Act1929 (SA) s 13BA (6)(b).
I have scrutinised the evidence of KEH, and indeed all of the witnesses, carefully. I have re-read the transcript and given close consideration to it and to all of the tendered materials.
The Evidence
The complainant was interviewed by Ms Aimee Phillips from Child Protection Services on 12 January 2021. She was just under the age of 6 years at the time. The interview was conducted in the familiar format of an introductory conversation establishing whether the child knew the difference between the truth and a lie. It was conducted in a room where she had access to toys and drawing materials. As is often the case, the complainant had difficulty in maintaining concentration during the questioning process. It was frequently necessary for the interviewer to direct her attention to the subject matter.
Penile penetration
After the interviewer reminded KEH that on the previous day she had told the interviewer that JHH had done naughty things to her, the complainant agreed that he had done so.[8] She said that JHH had put his ‘ding a ling’ in her. She said that he had told her not to tell anyone about it and that he had done it more than one time.[9] She then said ‘Like a hundred times and, and he, and he also put his tongue in my wee-wee…. Yep, and also his finger, and also his finger too’.
[8] Transcript of Interview, p 22, 302. (The footnotes refer to the transcript of interview, which I have used as an aide memoire.)
[9] Transcript of Interview, p 22, 304-309.
KEH indicated on a diagram and with words that when she said ‘ding a ling’ she was referring to his penis. She then said that he had also put his ding a ling in her bum ‘like 100 times’.[10]
[10] Transcript of Interview, p 25, 346-350.
When asked to tell the interviewer everything about the last time JHH put his ding a ling in her, the complainant said the following:[11]
at the beginning, he put his ding a ling in one time...
More than one time well like on one place...
Inaudible...
Then that many –...
Then 100...
The very first thing that happened is well he didn’t like me very much...
Then what happened is, then what happened is well, then what happened is he really really really really really put his ding a ling in there so I said ‘no [JHH] don’t’...
Yep. Well because he is [JHH] inaudible[12]
[11] For the purpose of this extract, I have removed the questions and comments of the interviewer, some of which were simply repetitions of the answers.
[12] Transcript of Interview, p 29, 408, p 30, 428.
It was established that the person the complainant was talking about was the accused, JHH.
When asked how she knew JHH, the complainant said she knew him because her mother told her that he was ‘a dickhead’. KEH said that sometimes she (the complainant) said the ‘F word’ at JHH, but no one had told her not to. When the interviewer asked again for the complainant to tell her everything about what happened on that last occasion, she replied ‘Well I already told you’.[13] When asked what she saw JHH do on the last occasion, the complainant said:
When I see he was nearly nearly, he was going to pee on me ...
Yeah. Well nearly so I said to him ‘stop wait I think you are going to nearly pee on me’...
He said ‘no not’. And, and I said yes I can I can feel it coming ...
And that feel like wee, felt like wee ...
[13] Transcript of Interview, p 32, 448.
In answer to what it looked like she said:
Oh it just looked white ...
But, but, but when he put his ding a ling in me it, it looked all of red ...
And I said ‘Stop’…
And then, mm, and he was um going to do it again ...
He, he, he only said to me ‘Does that hurt’. And I said ‘Mm, mm’, like that, and then I said ‘yes’ …
Mm, it feels like, it feeled like, like, it feeled like, it’s like farty thingy ...
A cushion.. Yep…
Like a cushion farting.[14]
[14] Transcript of Interview, p 32, 452 – p 35, 484.
She said that after this occurred he did it again. She said that JHH put his ding a ling in her over her clothes and then explained that he pulled her pants down and her undies down and she did not like it.[15]
[15] Transcript of Interview, p 35, 495-498.
She said that at around the last time that JHH had done this JS saw them doing bad things. JS is the partner of the accused and lived with him at all relevant times. It seems from her answers that at about that time somebody said ‘[KH] help, [KH] help’. KH was her half-brother and she did not like him pulling her hair which he always did.[16]
[16] Transcript of Interview, p 37.
She then said that JS saw:
… me and him doing bad things when she heard me screaming … .
She heard me screaming when she said ‘[JHH]’...
Cos, cos [JHH] is her partner.[17]
[17] Transcript of Interview, p 38.
When asked if she could tell the interviewer more about the bad things, the complainant said:
The bad things ...
The bad things happened when on, when I um said um, when I said ...
Well sometimes when he, he, well sometimes when I’m tired he wakes me up. …
[JHH] ...
He wakes me up at night ...
And then he puts his ding a ling in me all the time …
Inaudible...
And then in my bum ...
He kisses me there and there and there.[18]
[18] Transcript of Interview, pp 38-41. KEH indicated on a diagram.
As can be seen from the video of the interview, the above series of answers was punctuated by the complainant referring to and then rocking her toy penguin to sleep. I mention that, not because it is unusual for a child in her circumstances to focus on play whilst being questioned, but because it was a feature of the conversation that the complainant seemed to either wander in her concentration or to seek distraction, repeatedly during the interview. On at least one occasion, it seemed that the description of her experience of the events mirrored the subject of her play. The difficulty the complainant had with concentrating during the interview was noted by the interviewer. At one point the interview was suspended so that KEH could do some stretches and exercises, presumably to assist with her focus.
She said that JHH did it 100 times, over and over.[19] She was unable to recount what had happened when he pulled her pants down but said that she thought it was at night-time.[20]
[19] Transcript of Interview, p 42.
[20] Transcript of Interview, p 43.
The complainant then asked the interviewer if what she was saying was going to be given to the police.
When asked about the first time this had occurred, KEH said that something had occurred with JHH’s jumper that had pulled the skin off her thumb, causing it to bleed. She then seemed to say, with reference to her thumb, that it had occurred over and over, but that JHH did not know he had done that.[21] After it had happened it got ‘sorer and sorer’ and blood was coming everywhere onto her.[22] In the context of her answers, it seemed that she was referring to blood coming from an injury to her thumb. She did not know why it was JHH had put his ding a ling in her the first time. She speculated that may have been because he wanted to marry her. She then said that the first time it happened it was not nice. JHH had not said anything to her on that occasion.[23]
[21] Transcript of Interview, p 45.
[22] Transcript of Interview, p 46.
[23] Transcript of Interview, p 47.
When asked about another time that JHH had put his ding a ling in her, KEH said that sometimes he did it when he wanted her to wake up and that he then wanted her to be good.[24]
[24] Transcript of Interview, p 51.
Cunnilingus
The interviewer then directed the complainant to her answer about JHH having put his tongue in her wee wee. KEH said that it happened more than once and said to the interviewer: ‘Yep, remember what I said? – a hundred’.[25] When asked about the last time the accused had done this, the complainant answered that the last time he did it was when he ‘wanted’ her. The complainant was playing with Play-doh at this point of the interview. She then gave the following answers:
[25] Transcript of Interview, p 62.
Complainant: Then what happened is, is really what happened is ...
When he put his tongue in my wee wee ...
Is him, well he didn’t, he didn’t want me but now he did ...
So guess what I’m making?
Interviewer: What are you making?
Complainant: Worms
Interviewer: Worms – cool. Did [JHH] say anything when he put his tongue in your wee wee?
Complainant: Nope...
Interviewer: [KEH] what did it feel like when [JHH] put his tongue in your wee wee?
Complainant: It feeled like worms.
Interviewer: It felt like worms?
Complainant: Mmmhm, what I’m making right now. … Look at the long worms.[26]
[26] Transcript of Interview, pp 62-63.
Beyond those answers, the complainant was not able to describe in greater clarity the context or facts of any other occasion of cunnilingus. I am left in some doubt whether when answering the direct question about the ‘last occasion’ the complainant was actually describing a distinctly recalled single event.
Digital penetration
When the interviewer asked about the accused having digitally penetrated her, KEH said that it had happened a hundred times.[27] She could not describe in any detail the last time it had occurred, but said that when it happened, it felt like worms coming out of his ding a ling.[28] She was still playing with the Play-doh and making worms at this point.
[27] Transcript of Interview, p 68.
[28] Transcript of Interview, p 71.
When asked if she had told her cousin ‘O’ about the accused, KEH told the interviewer that everything she had told O was about ‘him’ and the things she had told O were ‘yuck’. She said that she had told O something after having a bad dream. When it was suggested that she had told something to her aunt Alicia, the only thing the complainant was able to recall was that she had told her about JHH.[29] During this passage of the interview, the complainant remained focused on her play. When pressed further about what she had told her aunty, she spoke about Alicia’s dogs.[30]
[29] Transcript of Interview, p 79.
[30] Transcript of Interview, p 80.
Anal penetration
On the topic of anal penetration, when asked about the last time it had happened, she said it happened when he really, really wanted it to.[31] She was unable to provide any detail of the final occasion except that she did not tell him to do it. She said it felt like dog germs. She could not recall anything about the context in which it had occurred.[32]
[31] Transcript of Interview, p 82.
[32] Transcript of Interview, pp 84-85.
Fellatio
The complainant said that on occasion, the accused had told her to wet his ding a ling. She then said that he had changed his mind when he heard something. She told the interviewer that she wanted to tell her mum and that the wetting involved putting her mouth on the ding a ling.[33] When she did it, he told her to do it all day and she told him that she did not want to come back (to his house).[34] When she put her mouth on JHH’s ding a ling, JS told him not to do anything to her.[35] KEH then said that no one else had been present when it happened. When she put her mouth there, he told her to stop and that he did not like it.[36] She then clarified and said the accused did not like her and in fact hated her.[37] He had told her to go when she did it (ie, putting her mouth on his ding a ling) and when she told him that she could not run he said again and again ‘yes you can’.[38] Her mum had told her something about the police. KEH told the interviewer that she had asked her mum if she was going to give something that her mother had written on paper to the police.[39]
[33] Transcript of Interview, pp 88-89.
[34] Transcript of Interview, p 91.
[35] Transcript of Interview, p 91.
[36] Transcript of Interview, p 93.
[37] Transcript of Interview, p 94.
[38] Transcript of Interview, p 94.
[39] Transcript of Interview, pp 96-97.
KEH told the interviewer that the only thing that worried her was when she felt sad about her mum.[40] She said that nothing had ever happened to her private parts.[41] She then said that the only person who had touched them was JHH. He had told her not to tell anyone about his ding a ling.[42]
[40] Transcript of Interview, p 102.
[41] Transcript of Interview, p 105.
[42] Transcript of Interview, p 106.
Oral evidence of complainant
In brief evidence in chief, the complainant repeated in general terms that the accused had penetrated her orally and vaginally with his penis, that it had occurred more than one time in her bedroom at his house and that it probably happened when she was closer to 4 years of age.[43]
[43] T 99-101.
In cross-examination, the complainant was asked about living arrangements and personal interactions when she stayed at the accused’s house. KEH told the court that she did not like JS because she was a ‘meany’. Sometimes JS put her in timeout for picking on KH, her little brother. She did not get along with KH because he would sometimes pull her hair which she did not like.[44] She denied that she ever hit KH. She said that she would often get a smack on the bottom from either JHH or JS when she stayed with them. Her mother did not smack her very much. Her mother’s partner was GM and she said she called him ‘dad’ and he never smacked her.[45] She was not able to go to the fridge at JHH and JS’s house if she was hungry but she was allowed to do so at her mother’s house. She did not like JS because of the rules she had to follow.[46] She told the court that she did not like the accused because he always smacked her. This would usually happen after she said something to KH like: ‘Go away [KH], I don’t like it’.[47] She agreed that it was a bit difficult having KH present because he got some of the attention from the accused. In contrast, she was the only child who lived with her mum and GM. The accused and JS also had a baby and KEH agreed that she used to get a bit jealous of the baby and KH.[48]
[44] T 103.
[45] T 104.
[46] T 104.
[47] T 105.
[48] T 105.
The complainant was asked about a time when she had run away from the accused’s house and was found by police. She said that she could not sleep so she got into her ‘normal’ clothes, which had been given to her by her mother. She then went out of the back of the house but she did not know how she unlocked the gate.[49] She did this because she wanted to go and see her mum. Everyone else was asleep at the time. She agreed that she somehow managed to get the padlock off the back gate and then went looking for her mum.[50] When asked if something had happened which made her want to go and see her mum on that day she said:
So what happened was when I got out of – of the house, and out of the back gates, I close the gates back up, left a lock at the back and then after runned off… And I looked both ways and, and then I crossed over the road.[51]
[49] T 105.
[50] T 106.
[51] T 106.
The complainant told the court that she did not live in different houses with the accused and JS and that when she went to stay with them it was always in the same house. The naughty things always happened to her in her bedroom. She said that JS did not ever see JHH do naughty things to her.[52] JS was never with the complainant at the time the accused did the naughty things. Nor did JS ever say anything to her when JHH was doing naughty things to her in the bedroom.[53] KEH was asked about some answers on that topic which she had given in her interview/evidence in chief:
[52] T 107.
[53] T 107-108.
QYes, and when you watch that video, you said that [JS] said ‘keep doing it’.
AYes, and that is not true.
QSo it’s not true that [JS] said ‘keep doing it’.
AYep.
QCan you help me understand why it isn’t true because that’s something that you told the police happened after you watched the video with Aimee.[54]
[54] The reference to having told the police ‘after’ the complainant had watched the video with Aimee, was in context, referring to the fact that the complainant had watched the forensic interview with Aimee prior to giving her evidence in Court. The comment on which the complainant was being cross-examined was a comment made in the forensic interview.
ARight.
QSo is there a reason that you said that [JS] told [JHH] to keep doing it and now you say that isn’t true.
AYes.
QOkay, and what is the reason.
AThe reason is [JS] said ‘keep doing it’, she said ‘Do it for a little bit more and do it until it’s night-time’.
QAlright. That’s what [JS] said.
AYes.
…
QAnd who did she say that to.
AShe said that to [JHH].
QAnd what was [JHH] doing when [JS] said that.
AHe, he done it for a little bit more until the sun was a little bit down and, and then after he stopped.
QOkay. And when you say [JHH] was doing it, do you mean that he was putting his dingaling in your wee wee or what do you mean he was doing.
AI was meaning he was doing it when he was putting his dingaling in my wee wee.
QAnd [JS] said ‘do it a little bit more’.
AYes.
QSo did [JS] know what was happening.
ANo.[55]
[55] T 108-109.
The complainant was then asked about her evidence that the naughty things happened in the spare room closest to JHH and JS’s room. She told the court that this was a different room to the one in which she slept. There was a bed in that room. JS had not said ‘do it a bit more’ when she was in the spare room with JHH. When it happened in the spare room, it happened on the bed during the daytime whilst JS was in the bedroom she shared with JHH. She was certain that the spare bedroom had a bed in it, but no one ever slept in that bed.[56]
[56] T 109.
The complainant told the court that there was one occasion when JHH was doing a naughty thing to her and she was told by JS to go away and watch television.[57] JS had said this after JHH had stopped and that he stopped because they heard JS coming. They were in the spare room at the time. JS asked JHH to come out of the spare room so that she could talk to him. They had both pulled up their pants, but JS was not standing at the door at the time.
[57] T 110.
The complainant was cross examined about having told the interviewer that JS had seen the complainant and JHH. When asked about it she said: ‘That there is a lie.’[58] In fairness to the complainant, the topic was put to her more specifically and counsel reminded her that she had told the interviewer that JS had seen her and JHH doing bad things on the occasion when JS had heard the complainant screaming. After the passage was put, the complainant said: ‘That there is a lie’. When it was put to her that the passage quoted did not actually happen the complainant agreed.[59] When asked why she had said that to the interviewer, the complainant responded:
I thought it was the truth, but it was actually not the truth.[60]
[58] T 113.
[59] T 113.
[60] T 114.
There followed a series of questions from me in an attempt to help the complainant to refocus because she had become distracted.
KEH then clarified and said that she had not been telling a lie to the interviewer and that she had just been wrong about that. She said that she told the interviewer that because:
AI forgot. I forgot [JS] didn’t see me and [JHH] because I thought she did, but it was actually a dream.
QSo you had a dream about [JS] watching you and [JHH] do naughty things.
AYes, like I normally do because I don’t like it and it’s also scary as well.
QSo you had a lot of these dreams, did you.
AYes.
The complainant then asked if she could ask a question:
AWell, my question is I think I was like seeing a ghost of [JS] I think because I think I just saw a ghost of [JS] somewhere at [JHH] place because that’s what I normally have a dream of.
QYou saw a ghost in a dream or you saw a real ghost.
AWell, I there was a real ghost at my real mum and dad’s. I’ve seen it because [JHH] is my stepdad anyways, yeah, and plus I also know there is also a ghost at GM’s place.[61]
[61] T 115-116.
The complainant told the court that she had just remembered in the last couple of days that this event (ie JS having seen her on the occasion when KEH screamed) had occurred in a dream.
When it was put to the complainant that she had previously said that there was a time when JS walked into the room, asked if JHH could come outside and then told JHH to ‘please stop’, the complainant said that she could not remember this, which she found weird. She repeated that JS had never seen any of the naughty things that JHH had done.
KEH told the court that when she was about four years old, her mother had told her that the accused was naughty.
When asked if her mother had told her when she was about four that the accused was going to gaol, the complainant said that the only person who had said that to her was her ‘real dad’, GM. She said that on one occasion her mum had called the accused a dickhead. The complainant agreed that she too thought that the accused was a dickhead. The complainant denied that her mother had ever told her that if JHH did naughty things she would not have to go and visit him anymore. She said that she had not told her mother about the naughty things but she had told her cousin O. She told the court that she did not want to tell her mother because she thought that if she did her mother would get angry with her.[62]
[62] T 118.
The complainant was cross examined about her bedroom at the accused’s house. She agreed that she was not allowed to go into the spare room. She agreed that when she had a bath at the accused’s house, it was JS who would help her. She said that JHH did not go into her bedroom very often and only went in there to wake her up and put her into bed and then wake her up again when he was going to work.[63] She agreed that sometimes when she stayed with the accused she would talk to her mother on the phone and that afterwards she would sometimes get upset because she missed her mother. When it was put to her that she had told the interviewer that JS had said ‘do it all day, don’t stop until night-time’, KEH said that that bit was not true and that JS had said to the accused ‘stop until it’s half night time half’.[64] When asked why she had said those words to the interviewer, she said that she thought she forgot that part as well.
[63] T 122.
[64] T 123.
The complainant told the court that she had never watched people doing naughty things on the television when she was at her mother’s house. She had never seen mum and GM doing naughty things. She could not remember if her mother had told her to say that JHH did naughty things to her. She then said, inconsistently with her earlier answers, that her mother had told her that the accused would go to gaol if he did naughty things to her. Her mother had told her this when she was about seven years of age. She said that all the naughty things JHH did to her happened in the same room in the same house.[65]
[65] T 125-126.
First forensic interview
At the insistence of the defence, the prosecution tendered the first forensic interview conducted with the complainant. This interview was conducted on 16 March 2018, when KEH was about 4 years old. This interview was conducted after the allegations of sexual abuse were first raised against the accused in the FCC proceedings. The interview was conducted by an employee of Child Protection Services. I satisfied myself that the complainant was capable of giving unsworn evidence at the time of the interview.
At the outset of that interview, KEH was asked the usual questions to establish whether or not she understood the importance of telling the truth and the difference between the truth and a lie. Having been told by the interviewer that it was her job to talk to children about things that have happened to them so that they can tell the truth, KEH spontaneously said that sometimes the accused smacked her. In response to questioning, she said that it happened on more than one occasion. She then said that he smacked her all the time. She expanded on this and said that the accused smacked her on the wee-wee. She said that he did this more than one time. When asked directly, more than once, she was not able to give any more information about an occasion on which the accused had done this.
KEH was asked by the interviewer whether anyone had told her what to say in the interview. She replied that the accused had told her what to say. When the question was put to her again, she said that she did not know if anyone had told her what to say and then immediately after denied that anyone had told her what to say.
It was explained to KEH that it was very important that she tell the interviewer everything that happened when the accused smacked her on the wee-wee. The interviewer pressed her, in an appropriate fashion, to provide more information on that topic. She repeatedly stated that she did not know anything more. The interviewer clarified what she was referring to when she was saying her wee-wee. KEH stood up to demonstrate and it was established that she was referring to her bottom. She said that when she was smacked on the wee-wee it was over her clothing. KEH was asked about having been taken to the hospital with a sore wee-wee. She said that it became sore because she fell over onto the floor. She told the interviewer that when she fell over, she cried and that her mother protected her. She repeated that her mother protects her all the time and that she was protecting her from the accused. She said this was because she did not like the accused although she could not explain why that was. The interviewer asked KEH an open question about whether anything else had happened with the accused. KEH responded that the accused was going to gaol. When asked who said that, she said that her mother had said it. That answer was repeated to her, and she agreed that that was what her mother had said to her. When asked whether there were any good things about the accused, KEH replied that she did not know. When asked whether there were any bad things about the accused, she once again replied that she did not know. The interviewer asked KEH directly whether anything had happened to her private parts and KEH said ‘no’. She was asked directly whether anyone had shown her their private parts and again she responded ‘no’.
Other witnesses
SJM
SJM, who is the biological mother of the complainant, gave evidence on oath and was cross-examined. She told the court that she met the accused in about 2010. They lived together in Adelaide for about four years before moving to Queensland for eight months. When she became pregnant with KEH they returned to live in Adelaide. She said that she had separated from the accused sometime between four and six months after KEH was born. They did not separate on good terms.[66] For a couple of weeks after separation the accused would attend at her house to visit KEH whilst she or her mother were present. She could not recall why that arrangement changed. There then followed a period when the accused did not spend any time with KEH.
[66] T 132.
In 2015, SJM commenced a relationship with her new partner GM. They married in August 2017. The accused had less frequent contact time with KEH after she had commenced her relationship with GM. Nonetheless, as the accused was KEH’s biological father, she allowed him to have days with her from time to time.[67] She said that over time she began to see the accused more as a friend but that their only contact was to facilitate his time with KEH. The arrangement appears to have been very unstructured. On SJM’s account the accused would turn up at random times and ask if he could take the child for a while.[68] She said there were no requests from the accused for a more stable arrangement.[69] When KEH was about two, the accused served proceedings on her under the Family Law Act. He was seeking equal shared care of the child. An order was made on 25 September 2018, inter-alia, giving the parties equal shared parental responsibility and allowing the father to spend time with KEH each alternate weekend, every second week during school holidays and alternate Easters and Christmases. Once those orders were in place there was no issue with handovers for about 18 months. After that time, KEH would kick, scream and cling to either her or GM at hand over time.[70] Once that behaviour began it occurred on every occasion. SJM said that there was a period of time when she did not facilitate KEH having any time with her father. This was when the child was around 5 or 6 years of age and followed an incident during which KEH had run away from the father’s house during the night. SJM said that she was placed on a good behaviour bond for failing to comply with the parenting orders and that after that time contact between the accused and KEH resumed.[71]
[67] T 132.
[68] T 133.
[69] T 133.29-30.
[70] T 134.35- 135.10.
[71] T 136.
SJM told the court that the last occasion on which KEH spent time with the accused was the Christmas/New Year period in 2020. She and the accused had equally split time with the child on Christmas Day. Whilst it was not entirely clear on SJM’s evidence, the arrangement seems to have been that KEH would spend the period between Boxing Day and New Year’s Day with the accused. During that period she received one phone call from KEH but there was nothing unusual about it. KEH simply repeated what she would usually say, namely that she wanted to return to her mother’s house.[72] By the time she and GM took KEH back on New Year’s Day 2021, they had her niece O staying with them. SJM said that when the handover occurred, KEH enthusiastically ‘crash tackled’ her and was happy to see them, getting into their car as soon as she saw O was there. It was not until much later that evening that any allegations were made against the accused.[73]
[72] T 139.
[73] T 140.
In cross examination, SJM confirmed that it was usual practice for KEH to wear different clothes when she was staying with her father. On the occasion when she ran away from the accused’s house she had been wearing the clothes that SJM had dropped her off in.
SJM agreed that KEH did not like having to go to her father’s house. She agreed that once parenting proceedings were issued she resisted the attempts of the accused to have equal shared care of KEH. She agreed that she had at one stage resisted the father spending any time with the child but said it was during the period in which he was couch surfing.[74] She agreed that she had stopped allowing the accused to have any time alone with the child prior to him issuing proceedings. She had restricted the accused’s time to seeing KEH on her birthday, telephone contact and at her premises. She told the court that prior to the proceedings being issued she understood the accused was still couch surfing between friends and family and did not want to have KEH unsettled by spending time with her father at different locations.[75] She denied that prior to their separation the accused had been the primary carer for KEH.
[74] T 143.
[75] T 143.
SJM denied that after the parenting proceedings were issued, she had made allegations in the course of those proceedings that the accused had been physically violent to her during their relationship. She agreed, when it was put to her in cross examination, that he had not ever been physically violent to her during their relationship. She denied that she had ever sworn an affidavit making allegations to the contrary and agreed that if she had done so it would have been untrue.[76] She agreed that between 2016 and 2019 many applications were made by the accused to have contact with KEH and that she resisted them. Later in cross examination, when extracts were put to her, SJM admitted that she had sworn an affidavit in the course of the parenting proceedings which alleged that the accused had been physically violent towards her on at least three occasions. In particular, that affidavit alleged that he had hit her several times on the left side of the head and to the ribs. It also alleged that he would forcefully slam her head into the wall. She agreed that those allegations were not true and said that at the time she had ‘probably’ been deliberately lying in her affidavit.[77] SJM agreed that she did not want the accused to have anything other than supervised visits with KEH.
[76] T 144.
[77] T 151-153.
SJM agreed that she refused to allow the accused to have contact with KEH from October 2017 when she observed a couple of small bruises on the child’s back whilst bathing her. She agreed that she had taken the child to hospital after a bath and told staff at the hospital that KEH had made allegations of sexual interference by the accused. She agreed that this resulted in the accused being prevented from seeing the child until the beginning of April 2018 and that even after that time, he was only permitted supervised access at the Campbelltown Children’s Contact Centre.[78]
[78] T 146-147. Whilst it was not made clear on the evidence, the implication was that the accused’s court-ordered time was suspended during that period as a result of the allegations.
SJM agreed that she took KEH to an interview on 16 March 2018 but denied that she had told KEH prior to that time that the accused was going to go to gaol. She agreed that she had previously said at a time prior to the interview on that date, that the child had told her that she had touched the accused’s penis and that ‘white stuff’ had come out of it.[79] This had occurred shortly after she had taken the child to the hospital to be examined in October 2017.
[79] T 148.11-16.
SJM agreed that when she was interviewed in March 2018, she did not tell the interviewer that KEH had made this disclosure to her. She said that she probably would have forgotten about that disclosure by that time because she was quite stressed.[80] She agreed that she regarded it as an important disclosure. SJM acknowledged that she understood the child to be saying that she had touched the accused’s penis and that he had ejaculated (‘the ejaculation disclosure’). SJM agreed that she had never raised that important disclosure in the FCC proceedings and nor had she notified either the police or ‘Family Services’ (sic) about the matter.[81] Her explanation for this was that at the time her brain was elsewhere because she was dealing with the death of her mother. She denied that she had made up that disclosure.
[80] T 149.8-9.
[81] T 149.34-35.
SJM made an admission in cross examination which demonstrated she had particular antipathy towards the accused. It was put to her that she had told an interviewer that the accused should be subjected to ancient Japanese law and that his genitals should be cut off. Whilst she did not admit to having said that, she agreed that this was the view that she held at the time and said: ‘I think that quite often but I try not to vocalise it’.[82] She denied that she had been trying to influence KEH in making allegations against the accused as a way of preventing him from having contact with the child.
[82] T 154.1-3.
GM
GM is the husband of SJM and the stepfather of KEH.
He first met SJM in 2014 when the complainant was about 4 or 5 months old. He married SJM in August 2017. GM moved in with SJM in late 2014. He recalled that about that time the accused would occasionally visit in order to have a day with KEH. Generally, in 2014 the accused’s contact with KEH was during the daytime although he thought there might have been a couple of occasions on which he had overnight access. When parenting orders were put in place in 2016, the accused’s time with KEH increased. That gave the accused alternate weekends from Friday until Sunday afternoon with the complainant as well as arrangements for school holidays and Easter and Christmas. He said that handovers for the father’s time occurred at the Elizabeth police station and later transferred to the Salisbury police station when each of the parties moved residence. During this period of time GM worked as a fly in and fly out worker in the mining industry. He would attend handovers when he was in Adelaide on his time off but the majority of the time it would be SJM on her own. He described KEH’s demeanour when she was being taken to handovers to spend time with the accused as erratic, moody and aggressive. She would kick the back seat of the car and throw tantrums.[83] He said that this would occur on the majority of the occasions that he attended handovers.[84] He told the court that this was common for the last two and half to three years that the accused had contact with KEH.[85] He said that on the majority of handovers the accused was present with his partner.
[83] T 166.24-26.
[84] T 166.28.
[85] T 171.24-25.
GM could not recall precisely what the handover arrangements were for Christmas 2020. He recalled that handover occurred at the accused’s premises. He said that KEH was really worked up on this occasion and screaming in the car because she did not want to go with the accused. Between Boxing Day and New Year’s Day the complainant stayed with the accused and his partner. When they picked her up on New Year’s Day at the Salisbury police station he observed KEH to be withdrawn and moody but said that this was her normal behaviour when handed back after time with her father. That contrasted with her usual demeanour when living with them. He then said that when they picked KEH up on New Year’s Day she was ecstatic to see them and gave her mother a big hug. He was not asked and did not explain whether the moodiness occurred prior to or after her happy mood at the time of being handed back. However, his evidence was that after time with her father she was always moody.[86] They had KEH’s cousin O staying with them for a couple of days to spend time and play with KEH on her return from the accused’s house. KEH got on well with O. He told the court that he contacted police on 3 January 2021.
[86] T 168, 169.
In cross examination, GM said that when he spoke with the complainant on occasions after she had spent time with her father, he would ask her why she was moody and that the majority of times she would say that it was because she had been naughty and the accused or his partner had punished her.[87] He said that he was aware of a phone call between the complainant and SJM on 30 December 2020. This was whilst the complainant was still staying with the accused. It was apparent to him that KEH was quite upset and crying to her mother that she wanted to come home.[88] He agreed that she sounded more distraught than she ever had been before on a telephone call.
[87] T 169-171.
[88] T 172.17-18.
JS
JS is the partner of the accused. She told the court that she had known him since about 2011 and then in late February or early March 2016 she moved in with him at his home in Davoren Park. At that time, she had only met the complainant once briefly and that was before her relationship had commenced with the accused. At the time she moved in he had no access to KEH. Not long after she moved in, the complainant resumed spending some time with the accused. It started with him being invited to KEH’s birthday party and after that the alternate weekend time commenced. She said that after that time ‘…every so often we would lose access for a brief period of time. The longest we lost was eight months. That was in 2017…’.[89] As of 2018, KEH was permitted to stay with them on alternate weeks during school holidays. When that occurred, she was permitted to make phone calls to her mother on Wednesdays.
[89] T 181.6-8.
JS said that her first child, KH, was born in mid-2017. She and the accused moved into Farley Grove, Davoren Park when he was about a month or two old. She thought that at about that time there was a gap in the accused’s contact with KEH. In 2019, they moved to Harley Drive in Salisbury East. At that time her son was about one and a half years old and her daughter had not yet been born. When KEH came to visit at that address she had her own bedroom. She was visiting every alternate weekend at that stage. There had been no access for the accused with the complainant between late 2018 and early 2019 but she said that this had nothing to do with orders made by the court.
JS was asked to describe the complainant’s behaviour at the time of handovers to the accused. On her account, handovers initially went well but that changed at about Christmas 2019. At that time, they had KEH for Christmas and she started acting up, screaming and getting upset saying that she wanted to stay with her mother.[90] She said that KEH’s demeanour at the time of handovers varied from occasion to occasion. If she got worked up however, she would settle down not long after the handover occurred.
[90] T 184.17-25.
In terms of discipline, JS said that KEH would be given four warnings if she was, for example, throwing a tantrum. If she got to the fourth warning she would be sent to her room to sit on her bed for a period until she calmed down.[91] JS described KEH as troublesome the majority of the time. She told the court that there were issues between the complainant and her son which caused arguments and fights over toys and similar things. She also found it difficult to fit in with set routines. JS said that their attempts at communicating with KEH’s mother to find a middle ground in terms of respective routines was unsuccessful.[92]
[91] T 185.19-25.
[92] T 186.3-9.
JS was not in employment during the period relevant to these allegations. There were not many occasions when she would leave the home by herself. When KEH was staying with them they would tend to go out in a group. An exception to this is when she gave birth to her daughter and that evening the accused went home for the night without her. On that occasion his mother was staying with them.[93] She could not recall any occasions between 2019 and 2020 when KEH was left at the house with the accused without her being present.[94]
[93] T 186-187.
[94] T 187.8-13.
There were no occasions between 2018 and 2020 when the accused went into KEH’s room to speak to her about discipline when JS was not with him. JS said that it was she who helped KEH get dressed and choose clothes, but the majority of the time she was able to dress herself with the door closed. She said that KEH typically changed into her pyjamas by herself and put herself to bed. She was not escorted to her bedroom at bedtimes by either JS or the accused.[95] Typically, they would say good night to KEH from the door of the bedroom. JS said that the accused would generally not go into KEH’s bedroom and not on his own. The reason for this was that allegations had been made in October 2017 that he was interfering with KEH. Those allegations arose in the context of the parenting proceedings. Once those allegations had been made, she said they were very wary of anything that might arise in further allegations. It was she who bathed KEH and in part that was to establish a routine, in an attempt to prevent any further allegations being made.[96] She never noticed anything unusual about KEH’s underwear.
[95] T 188.
[96] T 196-197.
With respect to the Christmas period of 2020, JS said that they had KEH from 3 pm Christmas Eve to Christmas Day at 3 pm when there was a handover at the Salisbury police station. KEH returned to their care on Boxing Day at 3 pm and stayed with them until 1 January 2021. When KEH was handed over to them on Boxing Day, she was dropped at their house because they had been told that she was getting into a mood and it seemed easier than doing a handover at the police station. On New Year’s Eve they all went to a party at a friend’s house and stayed until 1 or 2 am. KEH and both her son and daughter were asleep when they got home. The effect of her evidence was that KEH went to bed and that she and the accused spent some time outside and then went to bed together with the accused falling asleep first. She got up in the early hours of the morning to breastfeed her daughter which she did in her bedroom and the accused was with her in the room at that time. KEH was returned to her mother at 5 o’clock on 1 January 2021 at the Salisbury police station and she recalled asking her to change into her ‘mother’s clothes’ at about 4:20 pm. Two days later police attended at their house and seized KEH’s bed linen and the clothes that she had been wearing. None of those items had been washed at the time they were seized.
With respect to the running away from home incident in early 2019, she said that they did not see KEH for some time after that incident and only after they had returned to court for further orders. Her evidence was that as the years went by it became harder to deal with KEH’s behaviour when they had her.[97] On a couple of occasions KEH swung at her and sometimes kicked at her if she was in the middle of a tantrum. The main person that she was physically abusive towards was her younger half-brother. That was something which increased after they moved to Harvey Drive. In terms of discipline, when that occurred, she would be sent to her room to calm down or denied a toy or dessert. They would also make her apologise to her brother on such occasions. JS said that there were sometimes when her son would pull KEH’s hair if she refused to share toys with him and that he had also bitten KEH when he was going through a biting phase.[98] JS said that after KEH would have her mid-week phone call with her mother, her mood would immediately switch and she would go from playing and getting along with the other children to throwing a tantrum and repeatedly saying that she wanted to return to her mum.[99] One of KEH’s acting out behaviours was to tear wallpaper in her bedroom.
[97] T 198.
[98] T 199.
[99] T 199.35 – 200.1.
JS said that there was one occasion when they dropped KEH to her mother’s house at Bolivar when she saw KEH watching the movie ‘IT’. It was common ground between the parties that this movie was a violent horror movie, unsuitable for children. At one stage during this visit she saw KEH sitting next to her mother whilst her mother viewed images of adult sex toys on her laptop computer.[100] That was in 2019. The mid-week phone calls occurred during the time they were living at Harvey Drive but not when they were living at Farley Grove. JS recalled the phone call on the Wednesday before 1 January 2021. She said that KEH was upset as she usually was and at the end of the phone call her bad mood immediately started again. JS said that she did not witness inappropriate behaviour between the accused and KEH on any occasion.
[100] T 200.
Dr Janine Tee
Dr Janine Tee is a forensic paediatrician. Dr Tee conducted a forensic medical assessment of KEH on 3 January 2021. She conducted her assessment on the basis that KEH had reported some pain in the genital area at about 9:30 pm on 2 January 2021. That information was provided to her by SJM. There was no report of any genital bleeding.
On examination, Dr Tee identified diffuse or generalised redness in the external genital region. She diagnosed the cause of the redness as being vulvovaginitis. That is a condition which is commonly seen in prepubertal girls. It is an irritation which can have various causes, for example hygiene irritants such as bubble baths, synthetic underwear and so forth. It is a non-specific finding. Physical contact with another person could not on its own be a cause of the redness observed unless irritants of the relevant kind were on the skin of the person who made contact with KEH. However, the condition tends to be caused by a chronic contact with irritants rather than a one off contact. Dr Tee said that she would not expect to see an irritation of the kind she observed if there was one episode of skin to skin touching.[101] Even if there were repeated episodes of touching, Dr Tee said that she would not attribute skin to skin touching as causing this condition. There was no evidence of any injuries to KEH’s genital tissues.
[101] T 212.7-8.
In a prepubertal girl if there was penetration through the hymen by an erect penis, Dr Tee said she would expect there to be an injury to the hymen because it is quite small. She would expect to see that injury if the episode of penetration had occurred as recently as within days. Sometimes a laceration to the hymen can heal completely but it can also heal and leave a defect referred to as a deep notch or a cleft. The doctor could not say definitively whether she would expect to see damage on physical examination if KEH had been subjected to many instances of penile penetration. That is so because individual episodes do not tend to be ‘additive’.[102] Whether a notch is left after an injury depends on each episode and the healing process which follows it. If penile penetration went through the hymen and into the vagina then contact with the hymen could be expected. In other words, she would not expect penile penetration into the vagina which somehow missed the hymen. Superficial penetration past the labia would not necessarily involve contact with the hymen. Generally, if the penetrating object was either a finger or an erect penis she would expect that to cause injury. Other factors such as the degree of force and whether or not lubricants were used can also have a bearing on whether or not an injury occurs. The hymen of a prepubertal girl is extremely sensitive tissue and a simple touch can cause pain. A prepubertal hymen is prone to bleeding if it is injured, but it is not possible to quantify how much bleeding might be expected. If there was injury, which would typically be a laceration, and if there was penetration, the doctor said that she would normally expect a history of pain and bleeding from the genital area.
[102] T 213.
Dr Tee said the finding of a deep notch or cleft was actually quite uncommon. That is because hymenal lacerations can heal leaving no visible trace. No notches were found on examination of KEH. There was also no injury to the anal area. Anal penetration in a child the age of KEH may well, but not necessarily, cause an injury. Penile anal penetration of a young child can cause quite serious injury. Had there been penetration through to the vagina of KEH, it may well have developed into either a notch or a cleft.
Record of interview with accused
The accused was interviewed by police on the day of his arrest, 3 January 2021, and elected to answer questions. He denied having sexually assaulted KEH. He told police that he had taken the precaution of not entering KEH’s bedroom if she was present since SJM first made sexual allegations against him in the course of the FCC proceedings. In his account of New Year’s Day 2021, he said that he had disciplined KEH by sending her to her room and that she was playing up by throwing things around her bedroom. He said that she became unsettled during that day, crying and saying that she wanted to be returned to her mother. On the accused’s account, the Wednesday phone call that week with her mother had been particularly disruptive. It lasted for about 45 minutes and KEH cried when he made her terminate the call.
Case for the accused
The accused’s evidence
The accused was 30 years old at the time of the trial. He gave evidence which explained how he met and commenced a relationship with the mother of the complainant. At the time SJM became pregnant with the complainant they were living with the accused’s parents in Queensland. His stepfather gave them an ultimatum to either abort the pregnancy or move out and so they returned to Adelaide and living for a while with SJM’s mother.[103]
[103] T 251.
He said that he grew apart from SJM after the birth of KEH. On his account, SJM started to spend time away from the home when KEH was very young which left him as the sole carer on those occasions. That occurred not long after KEH was born and until she was about six or seven months old.
It was he who ended the relationship with SJM and moved out of the house.[104] Once he moved out he said that he was allowed to visit KEH as long as SJM and her mother were at home. He said that he went to visit two to three times a week and spent about an hour or so with the child. That arrangement only continued for a couple of weeks until SJM told him that he was not welcome back to the house. She changed her phone number and they lost contact.
[104] T 253.
He said that he first sought legal advice about the situation when KEH was about 10 months old because he wanted to have 50:50 shared care of the child.[105] Ultimately, proceedings were issued in the FCC. An agreement with SJM allowed him to have some time with KEH but it ultimately resulted in her stopping his time with the child. When he resumed proceedings in the FCC, SJM made allegations against him namely that he was a violent abusive person who took drugs and took KEH to drug houses with him.[106] Orders were made allowing him to have further contact with KEH until SJM stopped access again, this time, accusing him of sexually assaulting KEH. That was in 2017. As a result of those allegations his time with KEH was stopped and when it resumed, he was initially only allowed to have supervised contact. Those first allegations were investigated and nothing came of it.[107]
[105] T 254.
[106] T 256.
[107] T 257.
The accused told the court that he commenced a relationship with JS in 2016 and they have subsequently had a son and a daughter. After the sexual abuse allegations first arose in October 2017, he and JS agreed upon a routine whereby she would do all the bathing of KEH and he would not enter the child’s bedroom without JS being present.[108]
[108] T 259.
He said that handovers at the commencement of his time usually occurred with he and JS attending as a ‘family unit’. Handovers occurred at a police station and he regarded this as being to stop any arguments, bickering or any further allegations being thrown around about him.[109] One of the precautionary things he and JS did was to establish a routine whereby KEH would change out of the clothes her mother had dressed her in on the day of the handover at the commencement of his time. This was so they did not get accused of ruining KEH’s clothes or returning her in unclean clothing.[110]
[109] T 259.
[110] T 260.
The accused said that from 2016 when the visits started, things were generally all right apart from a few arguments with KEH about being nice to her brother or damaging things. That seems to have changed in about 2017 when KEH became very distant from them and would sometimes assault her brother. It was about this time that KEH would say that she did want to come to their house when handovers were occurring. She began to kick up a fuss, screaming and yelling saying that she did not want to go and that she loved her mum.[111]
[111] T 260.
The accused described the occasion on which KEH ran away during the night. He maintained that the rear gate to the house had a padlock which he locked that evening. He said that he still did not understand how it was the child had managed to get away. There had been an earlier incident at the house in which they previously lived when KEH grabbed a kitchen chair, dragged it to the front door and tried to unlock it.
The accused gave a version of events of attending at SJM’s house on the occasion when he and JS saw her watching pornography on her laptop which was essentially consistent with the evidence of JS.[112] He said that SJMs partner told her to stop watching the pornography. He then asked SJM to put a movie on for the children to watch. It turned out the movie which was put on was the movie IT and he remarked to GM that it was not a kid friendly show.[113] GM turned the movie off.
[112] T 262.
[113] T 263.
The accused said that when the routine of Wednesday telephone calls between KEH and SJM started, KEH would start crying, pleading to go home and saying that she did not like his place and that she wanted her mother to pick her up.[114] The phone calls sometimes lasted for up to an hour and a half. When the phone calls ended, KEH would go back to her ‘normal self’, being defiant and trying to get them to return her to her mother. He said her behaviour in that regard got worse after the phone calls started.[115]
[114] T 264.
[115] T 265.
In terms of discipline, they would send KEH to her bedroom and tell her to calm down. He said that he only ever smacked KEH on two occasions. The first was when she had been throwing tantrums during the day and then threw a toy car at her little brother. The second occasion came when she was being defiant and ripped paper off the wall of her bedroom.[116]
[116] T 266.
The accused said that they stuck very strictly to their agreed arrangements about him not having certain types of contact with KEH. He said that the only time he would go into KEH’s room was if his son got into a fight with her and this was merely for the purpose of retrieving his son.[117]
[117] T 267.
After October 2017 he did not ever bathe KEH.
The accused gave evidence about New Year’s Eve and the final day KEH stayed with them which was essentially consistent with that of JS and his interview with police.[118] He said that on New Year’s Day 2021 when the final handover occurred KEH jumped out of the car when they arrived, ran to SJM and, seeing her cousin was in the car, jumped into SJM’s vehicle. He has not seen or spoken to KEH since that day.
[118] T 268.
He said that when KEH was having tantrums, she would often be verbally abusive towards them, using the F word and calling JS a bitch.[119] She also called him an arsehole a couple of times.
[119] T 273.
The accused was cross examined but neither his account of the events nor his credit worthiness were materially affected by it.
Addresses of Counsel
Prosecution
In his closing address, the prosecutor submitted that I should find KEH to have been a coherent and internally consistent witness. There was nothing inherently unbelievable or far-fetched about her account of the alleged offending or the circumstances surrounding it. It was submitted that her reference to certain events occurring 100 times was explicable by reference to her maturity and age. The prosecutor pointed to the fact that KEH gave an account of the accused having sex with her when he woke her up as being a detail which supported her reliability. It was consistent with the accused making efforts to commit his offending at night when others were asleep to ensure that he would not be detected. In the prosecution submission, it is not a remarkable fact that KEH could not provide precise details of the various sexual acts given that she was young and the events she was describing occurred multiple times.
The prosecutor submitted that the level of detail in her evidence nonetheless went above what might be expected if KEH had been coached or had independently fabricated the allegations. It was also submitted that it was telling that KEH said the accused had told her not to tell anyone about the offending. That was consistent with the opportunistic and brazen manner of his alleged offending and also consistent with the significant influence the accused had over her because of her fear of him as a disciplinarian.
The prosecutor submitted that KEH’s description of various sensations she recalled during the alleged sexual acts were powerfully indicative of her reliability because it is unlikely that she would have been able to describe them in the manner she did unless she had really experienced them. The prosecution submitted that I should dismiss as a reasonable possibility any suggestion that the complainant had been coached or told what to say by her mother. In any event, it was implausible to conclude that KEH had been able to maintain a basically consistent version of events if she was not telling the truth.
It was submitted, but I do not accept, that there were no significant inconsistencies in the complainant’s evidence. The prosecutor submitted that I should dismiss as ridiculous the evidence of JS and the accused that he did not, whilst alone, set foot in the complainant’s bedroom during the relevant period. It was implausible to maintain, as JS and the accused did, that they took the claimed precautions simply because SJM had raised allegations against the accused at an earlier time in the parenting proceedings. It was submitted that over the alleged period the accused had ample opportunity to commit the alleged offending undetected.
Defence
Defence counsel submitted that there was no evidence which might corroborate or bolster the evidence of the complainant by way of showing her consistency and reliability as a witness. He pointed to the lack of forensic evidence notwithstanding the examination of items of KEH’s clothing. It was submitted that the evidence of Dr Tee ruled out the possibility of any penile – vaginal intercourse having taken place. Further, defence counsel submitted that it was a significant matter that neither JS nor SJM had ever observed blood on underpants of the complainant. Nor was there evidence of repeated complaints of pain or discomfort by the complainant.
It was submitted that the evidence of the complainant’s mother was tailored to suggest that the accused had sexually interfered with KEH. Defence counsel pointed, for obvious reasons, to the evidence as to the perjured affidavit in the FCC matter. He noted that even though SJM acknowledged having deliberately lied to the court in order to obtain full custody of KEH she still tried to maintain in this court that it had not been ‘intentional’. In the defence submission, SJM crafted her evidence in such a way as to suggest that KEH started to resist spending time with the accused and becoming extremely distressed at handovers, at about the time that the allegations of sexual assault were first raised in the FCC proceedings. However, SJM conceded in cross examination that those things had commenced at an earlier time.
In a similar way, it was submitted that SJM tailored her evidence about KEH having run away from the accused’s house as being towards the end of 2018 or in the beginning of 2019 when it had in fact occurred at an earlier time when the accused was living at a different address. It was significant, defence submitted, that the attempt at running away had come before any allegation of sexual abuse had arisen. That made it inherently more likely that KEH tried to run away because she missed her mother rather than because she was being abused by the accused.
Defence counsel also submitted that there were a number of factors operating on the mind of KEH during the times she stayed with the accused. One of them was that she appeared to be jealous of her half siblings, in particular, of her younger half-brother. Whilst in her father’s care she was not an ‘only child’ and her siblings, being younger, would presumably have commanded greater attention from their parents than she did. She was only 4 years old when her mother first told her that the accused was going to gaol and that her mother was trying to protect her from him. It was telling that in the first forensic interview, KEH was asked why she did not like the accused and his partner, and she said it was because they would discipline her. Had there been any abuse, one might have thought that she would proffer that as a reason for not liking them. It was submitted that GM supported the defence case that it was discipline and not sexual abuse which might have turned KEH against the accused. He said in evidence that KEH would return home moody and upset and would explain that it was because she had been disciplined. Further, he said that this occurred from the very beginning of KEH starting to spend time with the accused pursuant to court orders.
Defence counsel submitted that its theory that the complainant’s mother had influenced her with a fabricated version of events gained support from SJM having said that KEH made a comment about ‘white stuff’ coming out of JHH’s penis in 2017. The complainant did not mention that matter during her first forensic interview and yet did mention it in her second forensic interview. It was also a remarkable fact that if those words had been said to SJM that she did not raise it with police or use it in the FCC proceedings at a time when she was trying to resist the accused’s attempts to spend more time with KEH.
It was submitted that there was a disturbing similarity between the circumstances which gave rise to the 2017 interview and those which preceded the 2021 interview and that the common denominator was the involvement of SJM.
Further support was gained for the theory that SJM had told KEH what to say in the first record of interview by what KEH actually said in that interview. She said that the accused had smacked her on the wee-wee. However, when she demonstrated what she was referring to she indicated her bottom. There was no evidence that KEH ever referred to her bottom as her wee-wee. At the very least, this gave rise to a concern that KEH had been told to make a certain allegation and that with proper questioning from the interviewer, she described something other than what she had said.
Further, it was submitted that the explanation KEH gave about having only dreamt that JS had witnessed some of the events smacked of something she had been told to say by her mother prior to trial, when it became apparent that JS would obviously deny such an allegation in evidence. On all of the evidence, it was submitted that the prosecution had not discharged the onus of proof.
Consideration
Evidence of KEH
It should be understood that the following consideration of the complainant’s evidence is not a criticism of her. She gave her evidence to the best of her ability. At times during her oral evidence, the complainant was affected by an inability to maintain focus similar to that seen on the video of her recorded interview. That appeared to be as a result of something more than just her chronological age. I nonetheless remain of the view that she was competent to give evidence on oath. Her description of certain acts having happened 100 times cannot, in the context of her evidence or the manner of her descriptions, be regarded as an accurate or helpful estimate of the frequency of the events she was alleging had occurred.[120] That figure appears to have been a default answer designed to indicate that she was referring to many occasions. I am unable to draw any conclusions as to how many occasions the individual acts are alleged to have occurred. A proper consideration of the evidence suggests that she was referring to more than one occasion and over more than one day. The inability of KEH to describe in detail any of the incidents makes any more accurate assessment of that matter impossible. On some occasions, when the complainant was giving evidence with respect to specific occasions, her attempts to provide greater detail demonstrated only her lack of recollection.
[120] It should be noted that the complainant twice wrote the number ‘1000’ on the body diagram used by the interviewer, see Exhibit P1.
There were a number of inconsistencies in the complainant’s evidence. A simple example is whether her mother had told her about the prospect of the accused going to gaol. In oral evidence, after initially denying that, her final position was that her mother had mentioned this to her. That was what she had said in her first forensic interview. I accept that this was said to her. That is entirely consistent with the deep-seated aversion her mother has towards the accused. Obviously enough, KEH was aware from an early age that aspects of the accused’s conduct towards her had been reported to the police. What impact might that have had on her? As a child taking part in the second forensic interview, she knew that the very things she had told police might result in imprisonment for the person with whom she did not want to spend time and whom she had been brought up to believe was in effect, an imposter. Further, that her mother was her protector from him. In the context of these allegations, the potential impact on KEH of her primary and at times sole carer having such an entrenched animus towards the accused has obvious implications for an assessment of the complainant’s reliability. Since at least the age of two, KEH has been at the centre of bitterly contested parenting proceedings and her mother has inculcated the mistaken belief that the accused is not her ‘real’ father. She has been brought up to refer to and regard her step-father as her actual father. At the age of four she was told that something about the accused’s behaviour to her would cause him to go to gaol.
It cannot be ignored in an assessment of KEH’s reliability that she has an antipathy towards the accused which on a consideration of all the evidence, appears to have been fostered by her mother. It is concerning that her basic view of the accused is that he is, to use her term, a dickhead, a description she has heard her mother use. Given her mother’s evidence, it is a view of the accused that I am reasonably confident has been reinforced to her either deliberately or otherwise in her home environment. Those matters have an implication for the evidence of her mother and stepfather about the fierce reluctance KEH had to being handed over into the accused’s care. I cannot safely draw any corroborating inference from her conduct in that regard. There is more than one possible explanation for her aversive behaviour on those occasions.
Similarly, the evidence relating to the complainant having run away from the accused’s house in the middle of the night is indicative of the very close bond that she has with her mother and the lack of bond she has with her father and his partner JS. It does not provide evidence of conduct which I could safely infer provided any corroboration for the sexual allegations. It occurred before any allegation of sexual abuse was made by SJM.
Another significant inconsistency in the complainant’s evidence was whether JS had seen the accused abusing her or not. When forensically interviewed, her description was unequivocally that JS had witnessed the abuse on an occasion when KEH had been screaming. It will be recalled that at trial, that allegation was described by KEH as a lie, because she now realised that it had occurred in a dream. Despite her explanation, I am left with a doubt about whether her earlier allegation about that matter was made because she was purporting to recall an event which had occurred, or because she had dreamt it. If it had in fact only occurred in a dream, then it must be the case that at the time of the forensic interview, KEH did not appreciate that the incident was part of a dream. I am not able to be satisfied by the evidence she gave in court, which sought to explain that earlier allegation on the basis that she had only just realised it was a dream. It may well be that the complainant has had bad dreams from time to time about the accused and having to visit his house. It is difficult to accept that just prior to trial, after having made the claim so clearly to the interviewer, that a child of her age would suddenly have come to a rational and reliable realisation that an event she described about 18 months earlier was not merely false, but that it had operated on her mind at that earlier time in a way which made her believe it to be true. Further, if her capacity for recollection at the time of the forensic interview was such that she could recount an incident she had dreamt as if it were fact, an obvious concern arises as to whether that same flaw has affected other allegations made in her forensic interview. That aspect her evidence has given me significant concerns about her reliability as an historian.
In addition, KEH could not give any detail of what it was she apparently said to O or Alicia at the time she apparently made disclosures.
Evidence of SJM
The starting point for an assessment of SJM’s evidence is her admitted lies, told under oath in the parenting proceedings. Those false allegations were calculated to cause reputational damage to the accused and to support SJM’s staunch opposition to him having orders made for parenting time with KEH in the terms he sought. Not all lies will be fatal to the credit of a witness. Whilst people tell lies for different reasons and in an infinite variety of circumstances, I have concluded that it would be dangerous to rely on SJM’s evidence in this trial. In addition to her false affidavit, I am unable to accept her evidence as to why she did not raise the ejaculation disclosure during the parenting proceedings and why she did not report it to police or the Department for Child Protection. If that disclosure had been made, it seems inherently unlikely that she would have forgotten about it. By that stage, she had already gone to considerable lengths to prevent the accused from spending time with KEH, and on her account, she was already concerned about the risk of KEH having been sexually abused by the accused. A disclosure of that kind would be shocking to hear from any child. It would have been all the more shocking because of KEH’s age at the time it was made. The significance of that disclosure for the parenting proceedings would have been immediately clear to SJM.
On all of the evidence, I cannot exclude as a reasonable possibility that the description given by KEH of ‘white stuff’ was a repetition of something she had been told by her mother. As a more general observation, it must be acknowledged that anyone who genuinely believed a person to have sexually interfered with their child would be likely to have strongly adverse views about them. That fact does not explain or excuse the false affidavit. Nor does it provide a pathway to a line of reasoning which might repair SJM’s credit as a witness. Further, I do not accept SJM’s evidence that she did not tell KEH prior to the first forensic interview that the accused was going to gaol.
Evidence of JS
Whilst I have some doubts about the evidence of JS as to the occasion on which she saw KEH sitting next to her mother whilst her mother was looking at sex toys on the Internet, I found her otherwise to be an honest and reliable witness. I accept that once sexual allegations had been made in the course of the parenting proceedings, she and the accused took special care to establish a routine around KEH’s bedroom, and her bed and bath-time routine which meant he would not be alone with her. In light of the allegations which had been made by the complainant’s mother in the course of the parenting proceedings that response was both understandable and prudent. I accept that she did not observe any inappropriate conduct between the accused and KEH. Further, I accept her evidence that she would not leave KEH alone in the house. The fact that JS did not have paid employment and was at home with two younger children in full-time parenting capacity during the relevant period also logically reduces the opportunity the accused might have had to have interfered with KEH undetected. I accept her evidence that to her observation, a significant source of KEH’s behavioural problems whilst in their care resulted from the difficulty KEH had in interacting with her half-brother. I also accept the evidence that the routine of Wednesday phone calls to her mother was something which tended to aggravate her behavioural problems.
Evidence of Dr Janine Tee
There was no challenge to the expertise of Dr Tee and I accept that she was qualified to express opinions on the matters of which she gave evidence. I accept her evidence as credible and reliable. The redness she observed on the complainant’s vagina does not provide corroboration for the allegation that the accused had sexually interfered with KEH at some time in the week or so prior to the examination. Nor is it possible to say that her evidence is at least consistent with such an allegation. Whilst it is theoretically possible that penile penetration could occur into the vagina without coming into contact with the hymen, it seems unlikely. The possibility of that never having occurred if the complainant had been repeatedly penetrated by the accused seems very remote. Had the accused fully penetrated the complainant on multiple occasions, then, on the basis of the evidence of Dr Tee, I am satisfied that she would almost certainly have experienced an injury to her hymen at some stage. If that had occurred, I am also satisfied that it would have resulted in both pain and bleeding. There is no evidence from any witness to the effect that blood was ever observed on KEH’s underwear or that she made complaints after 2018 of pain in her genitals.
On the evidence, I find that the absence of any notches or clefts does not have any probative weight because it would still have been possible for injuries to the hymen to have occurred and yet fully healed, leaving no trace. I have concluded that the evidence of Dr Tee is, at best, neutral to the prosecution case but is not inconsistent with the accused’s denial of sexual abuse.
The forensic evidence provides no support for the prosecution case but is not inconsistent with the case of the accused to the effect that he did not sexually interfere with the complainant and in particular provides some support for his denial of having sexually abused KEH in the two days leading up to his arrest.
Evidence of accused
The accused is not required to prove any matter. I gave close consideration to his evidence as it was given and again when reading the transcript. He presented in a straightforward manner and did not at any stage appear to deflect questions put to him in cross examination. He gave an account of events in his evidence in chief which was coherent and cogent.
I accept his evidence, consistent with that of JS, that from the time that SJM raised allegations of sexual impropriety in the course of the parenting proceedings he took special care not to place himself in a position which might make him vulnerable to further allegations. That he should take such an approach in consultation with JS is understandable. It is also something he told police about on the day of his arrest.
It is not my task to decide whether I prefer the evidence of the prosecution or the defence. It is not necessary for me to make a positive finding as to the truthfulness of his evidence because he bears no onus of proof. As I have already indicated, I did not find his credit to have been shaken on cross examination. It is sufficient for present purposes to record that I cannot exclude the accused’s account of events as a reasonable possibility.
Conclusion
This section of my reasons is to be read in conjunction with the observations about the evidence in the section above.
Many aspects of KEH’s evidence have given me considerable cause for concern. She has an entrenched belief that she has been sexually abused by the accused. She seemed to have esoteric knowledge of ejaculation, whilst obviously not referring to it by name. That said, there were aspects of her evidence which seemed implausible and not merely because of inconsistencies in her account of them. One example is her evidence that JS, who I find to have been a witness of truth, told the accused to keep penetrating her ‘for a little bit more, and do it until its night-time’.[121]
[121] T 108-109.
I find that JS at no stage witnessed the accused interfering with KEH. I do not accept, as KEH said, that she encouraged him to do so. There were also passages in KEH’s evidence in which it was only possible to get a very general understanding of the matters of which she was complaining. On occasions, it was not possible to confidently understand the nature, duration and context of the matters of which she complained. I repeat, my close analysis of her evidence must not be seen as a personal criticism of her.
In the course of considering this matter it has been necessary for me to consider the possible role played by SJM in having influenced KEH’s version of events. I cannot exclude as a reasonable possibility that SJM’s view of the accused and his behaviour has had a significant impact on the allegations made by KEH. Putting the sexual allegations to one side, SJM’s basic attitude to the accused seems almost certainly to have influenced the deeply adverse view of him taken by KEH.
Further, SJM’s admitted lies in the affidavit tendered in the FCC cannot be quarantined from a consideration of the evidence in this matter. The purpose of those lies was to create a perception of risk in the mind of Judge Kelly of the FCC. The perceived risk intended was the possibility that the accused, by virtue of his falsely asserted domestic violence, was not a safe person to be given court ordered time with KEH. It was after that allegation was unsuccessful that allegations of sexual assault were raised for the first time.
It is not necessary for me to make, and I do not make, a positive finding that SJM deliberately fabricated allegations including the reference to ‘white stuff’ which she caused to be promulgated by KEH. I nonetheless cannot exclude as a reasonable possibility that this has occurred.
I cannot be satisfied on the evidence that the accused committed any of the acts as particularized. It is for the prosecution to prove every element of an offence beyond reasonable doubt. In this case, the prosecution has not discharged the onus to do so and I find the accused not guilty.
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