R v JS
[2022] SADC 161
•23 December 2022
District Court of South Australia
(Criminal)
R v JS
Criminal Trial by Judge Alone
[2022] SADC 161
Reasons for the Verdict of his Honour Judge Barklay
23 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - PARTICULAR CASES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The accused is charged with maintaining an unlawful sexual relationship with a child and in the alternative seven counts of indecent assault. It is alleged he touched the complainant’s vagina, breast and buttocks at different times over the course of about 10 months. The accused was a family friend of the complainant at the time. He had known her all of his life.
Verdict. Guilty.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56 and 57(2), referred to.
R v Bauer (A Pseudonym) (2018) 266 CLR 56; HML v The Queen (2008) 235 CLR 334; Liberato v The Queen (1985) 159 CLR 507; Douglass v The Queen [2012] HCA 34; R v C, CA [2013] SASCFC 137; R v Mann (2020) 135 SASR 457; R v M, DV (2019) 133 SASR 470; KSC v R [2012] NSWCCA 179, considered.
R v JS
[2022] SADC 161Introduction
This is a trial by judge alone of JS.
JS is charged with the following offences (counts 2 - 8 are in the alternative):
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child.[1]
[1] Criminal Law Consolidation Act 1935 (SA) s 50(1).
Particulars of Offence
[JS] between the 1st day of December 2019 and the 12th day of November 2020 at Mount Gambier, OB Flat, Millicent, Glenburnie and other places, maintained an unlawful sexual relationship with [BC], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) touching her breasts on more than one occasion;
(b) touching her buttocks on more than one occasion; and
(c) touching her vagina on more than one occasion.
Second Count
Statement of Offence
Indecent Assault.[2]
[2] Ibid s 56.
Particulars of Offence
[JS] on the 3rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her vagina.
Third Count
Statement of Offence
Indecent Assault.[3]
[3] Ibid.
Particulars of Offence
[JS] on the 3rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her buttocks.
Fourth Count
Statement of Offence
Indecent Assault.[4]
[4] Ibid.
Particulars of Offence
[JS] on the 3rd day of February 2020 at OB Flat, indecently assaulted [BC] by touching her vagina.
Fifth Count
Statement of Offence
Indecent Assault.[5]
[5] Ibid.
Particulars of Offence
[JS] between the 4th day of February 2020 and the 17th day of July 2020 at Mil-lel, indecently assaulted [BC] by touching her breast.
Sixth Count
Statement of Offence
Indecent Assault.[6]
[6] Ibid.
Particulars of Offence
[JS] between the 1st day of October 2020 and the 12th day of November 2020 at Glenburnie, indecently assaulted [BC] by touching her vagina.
Seventh Count
Statement of Offence
Indecent Assault.[7]
[7] Ibid.
Particulars of Offence
[JS] between the 1st day of October 2020 and the 12th day of November 2020 at Glenburnie, indecently assaulted [BC] by touching her breast.
Eighth Count
Statement of Offence
Indecent Assault.[8]
[8] Ibid.
Particulars of Offence
[JS] between the 1st day of November 2020 and the 12th day of November 2020 at Glenburnie, indecently assaulted [BC] by touching her buttocks.
Elements of the offence
All elements of a count must be established beyond a reasonable doubt before there can be a verdict of guilty.
The elements of the offence of maintaining an unlawful sexual relationship with a child are:
·That the accused knowingly maintained a relationship with the victim;
·That the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship;
·The victim was under 17 years of age during the relationship; and
·The accused was an adult during the relationship.
There is no dispute that the victim was under 17 years old, and the accused was an adult during the relevant period.
The elements of the offence of indecent assault are:
·The act subject of the charge occurred;
·The complainant did not consent to the act;[9]
[9]Section 57(2) Criminal Law Consolidation Act 1935 (SA) provides no person under the age of 17 years is deemed capable of consenting to an indecent assault.
·The act involved a deliberate application of force;
·The act occurred in circumstances of indecency (i.e. had a sexual connotation); and
·The complainant was under 17 years of age at the time of the offence.
Issues in dispute
·The first issue is whether the relevant sexual acts occurred. There is no doubt that if the act the subject of counts 2 to 8 occurred that it would amount to an indecent assault. Nor is there any dispute that those acts would amount to unlawful sexual acts for the purposes of count 1.
·The second issue relates to count 1 only. The defence case is that, even if the sexual acts were established, the accused did not knowingly maintain a relationship with the complainant for the purposes of engaging in unlawful sexual acts; therefore, this element is not established. The issue is whether the prosecution needs to prove the accused maintained the relationship for the purposes of engaging in unlawful sexual acts.
Onus of proof
The burden of proof is upon the prosecution. Before any count can be established, the prosecution must prove each element beyond a reasonable doubt. It is not sufficient for the prosecution to show a mere suspicion of guilt or that the accused is probably guilty.
Motive
In this case, the defence have suggested that BC was motivated to fabricate an account against the accused because he refused to let BC breed her mare with the accused’s stallion. I will discuss this issue later in my reasons. At this stage, I direct myself that the accused does not have to prove anything least of all a motive on BC’s part to lie. Even if I were to find that the reason suggested as a motive to lie was not compelling and reject that argument, that does not mean that there was no motive. People may have a motive to lie which is not readily discernible. Rejecting the motive to lie put forward by the defence does not enhance the credibility of the complainant’s evidence in any way. I repeat, there is no onus on the accused to prove anything.
The evidence
The complainant – BC
BC was 17 years old when she gave evidence.[10] She was about 15 years old in late 2019 and 2020 when the offending is alleged to have occurred. At the time, BC lived with her mother (MC), father (MJC) and her sister (AC) in Mount Gambier.
[10] BC was born on 12 December 2004. See also: T 34.6-10.
The accused (JS) and his family were long-term family friends with BC and her family.
BC regularly went to JS’s house with her mother and sister, where she would ride horses and spend time with JS and his family. She said JS would teach her things to do with the horses.[11] BC said she treated JS like family. He was like a big brother to her.[12]
[11] T 35.8-9, 12-17.
[12] T 53.17-19.
Warrnambool road trip
In late December 2019, that changed. While driving back with the accused from a horse auction in Warrnambool, Victoria, JS turned the conversation sexual. BC said:[13]
[13] T 39.7-15.
So, it started off with him just talking about the girls that he had been with and then, like, we drove past locations and he’d be like ‘I stayed with this girl here and I stayed with this girl here’ and then he was talking about the first time that he had rooted, which is had sex with, at the age of 13, which was - I don’t know what it’s called when you get someone double your age but there was a word he used, and then he said that his mother didn’t know about it.
She said he used a word to describe getting with someone double your age[14] but could not recall it. She said it was a slang term ‘…like of a cougar or something because, yeah, older women get with younger dudes’.[15] JS then asked if she had ‘rooted anyone’, and she responded ‘no’. [16]
[14] T 39.31-33.
[15] T 39.34-38.
[16] T 40.4-6.
At some point on the drive, BC said JS took out his phone and showed her a music video of women dancing topless.[17] JS was laughing. She said it was not funny and took the phone off JS, saying not to use his phone while he’s driving as it’s dangerous.[18]
[17] Ibid 14-24.
[18] Ibid 28-30.
While she had the phone in her hand, she noticed he had Tinder on his phone. BC asked JS why he had Tinder on his phone, to which he told her that it was ‘…not [for] dating but for trying to get hook-ups’.[19] She began to look at his Tinder at which time JS told her to swipe ‘yes’ to everyone to see how many matches he could get.[20]
[19] Ibid 34-36.
[20] Ibid 37-38.
In cross-examination, defence counsel suggested to BC that the accused never directed her to go on to his Tinder. BC replied ‘no; I laughed that he had Tinder and then tapped into it and then he just said, yeah, swipe yes on all of them, like see how many matches you get’.[21] Her response was immediate and convincing.
[21] T 255.16-18.
BC said the conversation eventually returned to normal. When they returned to JS’s home in Mount Gambier, she and her family helped JS and his family unload the horses and then drove home.[22]
[22] T 41.15-21.
Baynes’ block incident (counts 1, 2, 3 and 4)
BC did not describe anything of a sexual nature occurring after the Warrnambool road trip until February 2020. In February 2020, the accused had horses placed at various properties around Mount Gambier and his own. One such location was a property owned by Mr Baynes’[23] (Baynes’ block). On 3 February 2020, BC travelled with JS in his white Landcruiser to Baynes’ block, where JS was going to collect a horse, put it in his horse float and relocate it to his property. BC’s mother, sister, JS’s mother (TS), and JS’s grandfather drove separately in TS’s car to the block. This was the first and only time that BC had been to Baynes’ block.[24]
[23] It was agreed at trial that the block near the barn steakhouse was owned by Mr Baynes.
[24] T 43.17-24.
On the way to Baynes’ block, the accused asked the complainant who she was ‘rooting’, to which she responded ‘no one’.[25] By that time, the accused frequently asked her who she was rooting. She said it was something he would say as a conversation starter.[26] She gave the following evidence:[27]
[25] T 44.18-29.
[26] T 54.29-30.
[27] T 45.17-38.
QYou also gave evidence that JS said, ‘Who are you rooting.’
AYes.
QYou said no one.
AYep.
QDoes he respond to you saying no one?
ANo, he said nothing. The only thing that happened in the last part before we arrived there was he put his hand on my crotch.
QWhat do you mean by ‘crotch’.
AVagina.
QYou say he put his hand on your vagina.
AYes.
QWhich hand.
AHis left hand, his right was on the steering wheel.
QSorry, what was that.
AThe right was on the steering wheel.
QSo he puts his left hand on your vagina. Can you tell his Honour what part of the left hand touched your vagina.
ASo he cupped it and it was like this part here (INDICATES).
At trial, BC demonstrated a cupped hand and explained that JS put his cupped hand on her vagina, over her clothes, for a few seconds while he was driving (count 2). She was asked if she had said anything. She said: [28]
[28] T 46.14-16.
No, because I don’t know how to respond, like it’s an awkward situation. You feel frightened. You sit there and you don’t know what to do.
After he touched her vagina, they drove into Baynes’ block, towing an empty horse float.[29] They parked in the paddock, and people got out to go and round up the horses. BC’s mother told BC to get a whip out of the horse float.[30]
[29] T 46.23-38, 47.1-3.
[30] T 47.30.
BC said she went to the horse float (which was being towed by the accused’s vehicle) to get the whip. JS came up behind her and squeezed her buttocks with both hands as she leaned into the horse float (count 3).[31] The squeeze lasted a few seconds.[32] After that, she did not say anything but stood up to turn and walk from the horse float. As she did so, BC said JS was right there and grabbed her vagina over her clothes with his hand for a couple of seconds (count 4).[33] Again, he did not say anything, and neither did she. She said she ‘…gasped, that’s about it, [she] widened [her] eyes and just stand [sic] there, in the most awkward - I don’t know the word – situation’.[34] After that, she walked off and went to her mother while JS and his mother went to catch the horse.[35]
[31] T 47-8.
[32] T 48.36-37.
[33] T 49.15-27.
[34] T 50.9-11.
[35] Ibid 21-24.
Text messages
When BC approached her mother, she asked if she would drive back in the car with her and JS.[36] Her mother asked her why. BC explained that she did not know what to say out loud. So rather than speak to her mother, she sent her text messages. She did not refer to what happened because she was ‘…out in public, with people there and [didn’t] know how she would have reacted’.[37] Standing beside her mother, she sent five text messages while telling MC to check her messages.[38] I set out her evidence:[39]
[36] Ibid.
[37] Ibid 32-33.
[38] T 51.21-30.
[39] T 51.4-19.
QSo you’re sending them immediately, right there.
AYep, yeah, she’s looking at her phone, I told her to open the messages and then she picks up the phone and just looked at me funny and I then I just kept sending her text messages.
QDo you remember how many messages you send.
AI’m not sure exactly how many messages, six, seven.
QDo you remember what the messages say.
AI just asked her if she could come in the car with [JS] and she looked at me like why, and then I was just like I will explain it later, just please come in the car, just work something out, I didn’t say that in the text messages but I didn’t want to go back by myself.
QBy yourself you mean with the accused.
AYeah, or say anything or have to say anything to make it seem obvious that something was going on.
The five text messages sent by BC to her mother on 3 February 2020 between 6.53pm and 7.05pm were admitted into evidence.[40] The text messages are as follows:
[40] P1 and P11.
1.i’ll tell you if you come in [JS]’s car with me (6.53pm)
just trust me
i can’t make it look bad
2.just say you want to go with me (6.54pm)
3.because idk [sic] make up a good excuse (6.55pm)
4.or say you want me to go with you (7.04pm)
5.don’t say anything (7.05pm)
As a result of the text messages and the conversation BC had with her mother, BC’s mother drove home with JS, and BC drove home with JS’s mother in her car.[41] When they returned to JS’s house, she helped unload the horses and then went home with her mother.
[41] T 52.4-7.
In the car ride, she said her mother asked her what was going on. She did not want to tell her mother exactly what happened to her so told her mother that JS was talking about ‘inappropriate stuff’ and she did not want to be there.[42] She said that her mother didn’t really think a lot of it but told her if that happened again, just let her know, and she would talk with him.[43]
[42] T 53.2-4.
[43] T 54.36-38.
What BC told her mother in the car on the way home is not complaint evidence; I have not used it that way. I have not relied on it to support BC’s account or her credibility in any way. Further, I have not relied on it for the truth of the assertions contained in the statement.
Relevance of conversation with mother in the car – limited use of the evidence
The evidence is relevant to explain or put in context BC’s evidence as to why she did not complain to her mother, namely[44]:
[44] T 53.6-15.
AI didn’t want to tell her what was going on because it’s a hard situation to explain to someone and she is family friends with their family. So, I didn’t really want to upset her because she [her mother] is a really loving person and she was going through a really tough time. She was having friend problems with her friend ... and she was really upset, and she’d get home and she’d cry and stuff like that and then the only escape was when she rode horses with them when we were around them because they were really nice to her.
It is also relevant to explain why MC did not ask BC for more detail about the text messages or take any other action. It is also relevant to explain why MC spoke to JS and what she said to him. I will discuss that evidence later in my reasons. That is the limited way that I have used the evidence.
In cross-examination, BC was taken to her statement, where she said that on the first occasion that JS offended against her, she passed through a Covid checkpoint. At the same time, she said in her statement that the first occasion he touched her she sent text messages to her mother. The text messages were dated 3 February 2020, yet the Covid checkpoint was not in place in Mt Gambier until the last week in March 2020.[45]
[45] D8, agreed fact [2]. See also: T 236.1-35.
Mr Jolly took BC to the agreed facts and to her text messages. Realising that the Covid station was not in place when she sent her text messages, BC said that she may not have been correct about going through the checkpoint. BC maintained she sent the text messages the day JS touched her at Baynes’ block. She was confident they stopped at a service station on the way to Baynes’ block and recalled what she ate. She said she may have confused the Covid checkpoint with another time when she was with JS when he had a horse float, and they went through the check point.[46] She was unequivocal that the offending occurred on the day that she sent the text messages to her mother: [47]
[46] T 239, 242.
[47] T 241.3-9.
No, they’re from that exact situation because I remember standing right next to her, next to the float, she was standing next to me and I said ‘Look at your phone’ and she said ‘What for?’ and I said ‘I sent you a text message’, and she went on there and then she just kept looking at me and I was responding to her as she was like giving me the facial expressions.
Indecent assault on BC’s property (count 1 and 5)
A couple of months after the events at Baynes’ block, the accused came to BC’s home to assist ‘breaking in’ one of their horses. She said that the accused arrived in his white Landcruiser. Her mother told her to go in the car with JS to help open the gates. She didn’t want to, but her mother told her to ‘be polite and open and close the gates’.[48] While in the car, she said the accused asked her ‘who she was rooting’. She said she replied ‘no-one, per usual’.[49] She said after that the accused grabbed her right breast (counts 1 and 5). I set out her evidence:[50]
[48] T 56.6-7.
[49] Ibid 20.
[50] Ibid 24-34, T 57.1-10.
AWe got about in between halfway where the turning point of my house is and the last gate, because I had opened the first gate and let him through, closed it, and then he had drove and halfway in between them he grabs me on the right boob.
QYou say he grabs your right boob.
ACorrect, ... and I’m just sitting there like this and then he leans over and he’s like looking at me and then he just grabs me on the right boob.
QGrabs you how.
AWith his left hand, with his right hand on steering wheel.
…
QWhereabouts on your boob do you say he grabbed you.
AJust around like the top area.
QWhen you say top area what do you mean.
ALike you've got the nipple and the breast and then just like grabbed it.
QDo you say the area with the nipple.
AYes.
QHow long has he grabbed it for.
AJust a couple of seconds.
Red utility incident (counts 1, 6 and 7)
The next occasion where the accused touched BC was weeks or months later (not days).[51] BC said it occurred when she went to JS’s house to help load hay bales so JS could take them to Kingston to feed the horses that JS kept there. By this time, JS was in a relationship with ES.
[51] T 73.5-7.
The accused was driving a red 4WD utility. The utility had a single cab with a bench seat. BC and her mother, MC, were sitting in the cabin as the accused drove along, towing a trailer. BC said the accused’s girlfriend, ES, was sitting in the utility tray, facing the back of the utility.[52] They were driving out to a hay shed on the accused’s property when they stopped at a gate. When MC got out to open the gate, JS put his hand on her crotch and grabbed her vagina (count 6).[53] She described JS cupping his hand around her vagina, ‘he just slightly moved it a bit, like a finger cup… like moved it up when he was like taking it off and then like scoop’.[54] Like the other occasions, the touch lasted only a few seconds.[55] As he moved his hand away, he said ‘I know that you like it’.[56] Her mother did not get back into the car. A little later on the drive, JS grabbed her right breast (count 7). This time he held her breast for a couple of seconds and asked her if she was wearing one of her mother’s bras because he could feel a lot of padding.[57] She just looked at him and then turned to look out the window.[58]
[52] T 70.4-6, T 68.27-33.
[53] T 68.32-37.
[54] T 69.30-34.
[55] Ibid.36.
[56] T 70.15.
[57] T 71.13-14.
[58] T 72.8.
In cross-examination, BC said that she thought ES was sitting on the back of the red utility and that there was no canopy or sides.[59] Mr Jolly took her to her statement, where she said ES was sitting on the trailer behind the utility. She agreed that that was what she had said in her statement to the police. She said: [60]
[59] T 192.25-31.
[60] T 191.6-10.
If it’s in the statement, yes, but I don’t remember much about that. I remember that she was sitting on the back, facing towards something, whether it was the trailer or the car, but I know she was definitely facing backwards and sitting on the back of something.
She said that if it was in her statement, that would be more accurate.[61] BC explained that although she had said that ES was on the back of the utility, she could not now actually recall where she was sitting.[62]
[61] T 194.32-36.
[62] T 192.28-30.
Although much was made of this inconsistency, in my view, the inconsistency is of a little moment. It turns out that what BC said in her statement and adopted in evidence is independently supported by ES. ES confirmed she was located on a trailer being pulled by a red utility with JS and BC in the front cab of the utility.[63]
[63] T 514.1-2.
NB’s graduation party (counts 1 and 8)
The last time JS touched BC was towards the end of October 2020 when BC went with her mother and sister to JS’s house to celebrate their mutual friend, NB, graduating high school (the party).[64]
[64] T 73.27-29.
While at JS’s house, BC said that her and JS were having a conversation and when he asked her who she was ‘rooting’, to which she responded ‘no one’.[65] She then proceeded to talk about how she had a kiss with a guy and that she kind of liked him, to which JS asked who was the guy that she had kissed.[66] JS asked her, ‘Would you fuck him’, to which she responded ‘No’.[67] JS then asked ‘Why’, to which BC said:[68]
[65] T 76.18-22.
[66] Ibid.
[67] Ibid 24-26.
[68] Ibid 27-31.
'Because well, I didn't want to' and like my parents had just spoken about before like you're too young etc., etc., and I was like yeah ... do that stuff, don't want to do that stuff, not interested and then they went –
BC said that JS and ES then walked to JS’s bedroom and got her ‘like 15 condoms’ out of his bedroom and passed them to her. BC said that JS then said ‘Take them to the car now and go stash them’. BC said that she did not know what to do and went to the car and put them under the seat.[69]
[69] Ibid 34-36.
Failure to mention what JS said about the condoms
In her original statement to the police, BC said that JS gave her condoms on the night of the party. However, she failed to mention JS told her to put them in the car or that her mother saw the condoms.
She explained that when her mother saw her with the condoms, she said she had been speaking to JS and ES about the boy she had kissed, and then they gave her the condoms. Her mother thought them giving her the condoms was a joke.[70]
[70] T 178.10-24.
There was extensive cross-examination about this topic. BC acknowledged that she had not included those things in her statement. She explained the process of giving her statement, where she answered the questions asked by the police officer and provided further detail when asked to clarify things. She explained she must have forgotten to add that piece of information when the police were taking her statement.[71]
[71] T 147.28.
In her police statement, BC said that JS gave her the condoms.[72] So, BC mentioned the topic. The statement then moves to another topic. What happened to the condoms after JS gave them to her is not covered in the statement. But something must have occurred after she got the condoms. The obvious inference is that the statement-taker did not finish off on that topic. When BC gave evidence, she finished the topic not covered in her statement. The fact that the statement does not record all the detail surrounding that topic is not a matter that has affected my view of BC’s evidence.
[72] Statement of BC (PD114) dated 12 November 2020, 8 [18].
Her answer was compelling:[73]
[73] T 148.2-8.
When you are asked under pressure and you are scared shitless in a police station, you are not going to remember every detail that was said. I was absolutely frightened with the whole process, and I didn’t even know what to do, I didn’t go straight to the cops, I even told the school counsellor because …
BC said she did not mention that her mother saw her with the condoms in evidence in chief as she was not asked about that.[74] However, when Mr Jolly asked for more detail, she gave it.[75]
[74] T 157.8-10.
[75] T 159.
The statement was taken over five hours and finished late at night.[76] Unsurprisingly, all the details were not included in her original statement.
[76] T 152.29-31.
The defence closely cross-examined the complainant as to the process of her re-reading her statements to establish that if the things she said in Court were true, then she would have alerted the police to those additions when she re-read her statement prior to coming to Court. BC explained that she was unsure if she could add details to her statement.[77] Her understanding was that the purpose of re-reading her statement was to correct anything that was wrong and ensure everything in the statement was true.[78]
[77] T 156.20-34.
[78] Ibid.
She was unsure if she was allowed to add information if the police did not ask about that topic.[79] Her answers around this issue had a ring of truth to them.
[79] T 156.26-30.
After dinner, she was tired or, perhaps, bored, so when ES said she was going to bed, BC said she would go with her and watch Netflix on her phone.[80] BC said ES fell asleep, and after a while, she dozed off a bit. While dozing, she said that JS came into the room. She said:
[80] T 78.11-14.
AAnd then not long after because I’m still half awake and then I heard someone come in and they were like - like this and then I’ve seen a big tall shadow come towards me and then all of a sudden felt someone grab me on the bum, squeeze and then stop.
QWere your eyes open at this point.
AMy eyes were half open as they walked in and then I closed my eyes and then all of a sudden I felt a cold sensation on my face, of frozen peas.[81]
[81] T 83.6-14.
…
QDid you say he squeezed your bum or grabbed your bum.
AHe went like this (INDICATES).
QA squeezing motion.
ANOT ANSWERED.[82]
[82] T 85.5-8.
…
QHow long did he do that for.
AWell, not long, like three seconds.[83]
[83] Ibid 13-14.
…
QBut your eyes were open at this point.
AAfter the bag of peas were on my face my eyes were open, yes.
QBut when you say the accused was grabbing your bum what caused you to open your eyes fully.
ALike wide open? As soon as he started looking over my face I was like what’s going and then all of a sudden bam, on the left side of my face frozen bag of peas.
QDid he say anything during this.
AHe didn’t say anything until the peas were on my face and I looked up and I was like what the hell.
QWhen you say he put the peas on your face can you describe how he did that, how long.
AIt was like two seconds, like and then as soon as I opened my eyes and got up he stopped.
QDid he let go of the bag of peas.
ANo, they were still in his hand.
QSo you saw that it was a bag of peas.
AYeah, I knew it was a bag of peas because he walked out with them as well as soon as I got up and left the room[84].
[84] Ibid 17-37.
During cross-examination, BC said she was unsure who was sitting where in the loungeroom when she went to the accused’s bedroom with ES. She thought that JS’s grandmother was sitting in her chair. She agreed the loungeroom over looks JS’s room. She freely said that the door to JS’s room was not completely closed when she went into the room with ES.[85]
[85] T 170.3-6.
She agreed that ES rolled over at some point, and they may have touched, but she did not recall her saying ‘don’t mind me’.[86] She disagreed that the two of them were back-to-back. BC was on her stomach, and her back was facing the ceiling.[87]
[86] Ibid.
[87] T 172.3-8.
She maintained that the accused put a bag of peas on her face. She denied JS lifted her off the bed by the arm - she left the room herself.[88]
[88] T 173.14-24.
Snapchat message
Later that night, while she was at home, JS sent her a Snapchat containing a black screen which read ‘You’ve got the best arse I have ever seen’.[89]
[89] T 88.35-36.
She responded with a Snapchat of half of the roof and half of the bedhead with the words ‘no’, to which he responded, ‘yes’ with the same black screen image.[90] The next morning BC said that she woke up to a Snapchat message saying ‘…if you were older, I’d definitely get with you’.[91] She said Snapchat deleted the ‘Snaps’ when you opened them, so she lost the message. Although she could have taken a screenshot of the ‘Snap’, she did not because if she did, it would automatically notify JS that BC had saved the message.[92]
[90] T 91.8-17.
[91] Ibid 28-29.
[92] T 89.24-27.
In cross-examination, BC agreed she could have told her mother about the messages but said, ‘I could have, but I didn’t. How do you handle a situation like that?’.[93]
[93] T 175.28-29.
She explained why she did not take a screen shot of the Snapchats and showed it to her mother in the following way: [94]
[94] T 177.6-10.
I didn’t know how she was going to react with something like that, if I showed her evidence of something, so if I let her know and gave her the idea of what’s going on she wouldn’t lash out and just accuse and then go straight to their family and tell them what’s going on.
BC went on to say: [95]
[95] T 182.36-38, T 183.1-4.
I did say at the start I wasn’t sure how to deal with a situation like this, whether to tell someone or what was going to go on, but I know that my parents wouldn’t have tolerated it and they would’ve gone and said something and I didn’t want something to be said because then I was involved and the spotlight was on me.
Later again, BC said: [96]
[96] T 185.15-17.
[she was not actually thinking about keeping the message as proof for anything]…What was going through my head that morning, I didn’t know how to deal with the situation, that is why I opened this [the snapchat message] and didn’t respond to it.
I have mentioned some of the cross-examination of BC already. In deference to the cross-examination, I mention a final topic that defence counsel covered.
Who are you rooting – said in front of Mum for the first time in evidence
For the first time in her evidence, she said that JS would ask ‘who are you rooting?’ in the company of her mother.[97]
[97] T 139.1-8.
She agreed that when she gave her statement to the police on 12 November 2020 that she did not tell the police about that,[98] she did not tell the prosecutor even though she had recently met with the prosecutor and re-read her statement.[99] She said:[100]
[98] T 139.34-38.
[99] T 140.1-32.
[100] T 140.31-38.
If I’m being completely honest, I have no idea, like, if I was allowed to add stuff to it or how it’s said, because everything that was said in the statement is correct, but I wasn’t sure if you, like I knew abbreviation was allowed, but I’m not sure if you’re allowed to add smaller details in it as well.
She said that she was unsure ‘how long down the track you could add for it [sic], I thought it was on that spot unless I stand corrected’.[101]
[101] T 152.22-24. See also T 154.4-6.
The complainant’s mother - MC
MC is the mother of the complainant. MC described her close relationship with the S family, including JS. MC said when she and JS would go to horse sales he would come to their house, she and her children would go riding with him, there was general helping - she would help him with his foals or with mares in foal.[102]
[102] T 277.19-26.
Warrnambool road trip
She described an occasion when she and her daughters (BC and AC) went to the Warrnambool horse auction with JS and his family in December 2019. After the auction, she said BC left with JS in his vehicle[103] and her daughter AC came with her in her car. However, she did not remember much about the trip back.
[103] T 281.36-38.
Baynes’ Block
MC described a block near The Barn Steakhouse where JS kept some of his horses – Baynes’ block. She had been to Baynes’ block with BC on two occasions.[104] Only once with both JS and BC. On that occasion, she said BC travelled to the block with JS in his vehicle while MC travelled with JS’s mother (TS) and grandmother (EMS).[105]
[104] T 284.1-2.
[105] T 285.33-35.
Conversation between MC and BC
MC said BC approached her about 5 or 10 minutes after they all arrived at Baynes’ block.[106] JS and TS were occupied, trying to round up a horse.[107]
[106] T 289.10-14.
[107] Ibid.
She said BC pulled her aside and asked if she had gotten her text messages.[108] She said no. BC told her that JC had had an inappropriate conversation with her, and she didn’t feel comfortable going back with him in his car when they left Baynes’ block.[109] The text messages MC received from BC were tendered.[110] They matched the text messages from BC’s phone, except that they included the times the text messages were received.
[108] T 288.33-38.
[109] Ibid.
[110] Exhibit P11.
The conversation between BC and JC has a limited use.
The limited use of the evidence is to explain the circumstances in which MC came to speak to JS and why MC decided to drive back with JS from Baynes’ block.
I have not relied on anything said during that conversation for the truth of the assertions contained in the conversation. Specifically, I have not relied on it to prove that BC had an inappropriate conversation with JS. In relation to that, what BC says JS said is relevant and admissible for that purpose.
MC conversation with JS – partial admission
MC said that after the conversation with her daughter, she travelled back with JS in his car. BC travelled with TS and EMS. MC said she spoke to JS about what her daughter had said to her at Baynes’ block while travelling back from Baynes’ block. Her evidence was as follows: [111]
[111] T 290.4-25.
AI just said to him that [BC] had pulled me aside and had a bit of a talk to me and she felt uncomfortable about the conversation. [BC] didn’t elaborate really a lot, it was stuff about sex and so I said to [JS] that, you know, she’s a young girl, you shouldn’t be having those kind of conversations, you’re making her feel uncomfortable, yeah, he didn’t really say much to it.
QWhen you say, ‘He didn’t say much to it’ can you recall if anything he did say.
AHe just said, ‘Oh okay’.
HIS HONOUR
QIs that all he said.
AYes.
QAnd when he said, ‘Oh okay’ what did you say.
AI just left it at that. I thought that perhaps from his response that, you know -
OBJECTION: MR JOLLY OBJECTS
QWhen you spoke to him and he said, ‘Oh okay,’ can you describe his demeanour, what you saw.
AHe seemed shocked and so it was pretty much it...
The accused, according to MC, did not ask her what she was talking about when she suggested that he was having an inappropriate conversation with BC. Instead, he just said ‘Oh, okay’. Yet, at the same time, he appeared shocked. The issue is whether his failure to respond amounts to an implied admission to some inappropriate behaviour. The most it could amount to is circumstantial evidence supporting BC’s evidence that JS spoke inappropriately with her before he indecently assaulted her. I will return to consider this issue later in my remarks.
In cross-examination, MC said she did not have any horses at Baynes’ block. However, she said she had a thoroughbred mare that she shared with JS at Baynes’ block at one stage. The mare had been at JS’s property as it was in foal to JS’s stallion. She was not sure how the mare got to Baynes’ block.[112] She did not recall ever taking the mare there herself.
[112] T 305.8-10.
It was the defence case that the attendance at Baynes’ block on 3 February 2020, as described by MC, did not occur. It was suggested to MC that the only time that MC went to Baynes’ block in February 2020 was on 10 February. However, MC maintained that she was at Baynes’ block on 3 February.[113]
[113] T 306.13-19.
BC’s reticence to attend JS property
Mr Jolly cross-examined MC about a time when BC did not want to go to the accused’s property anymore. I set out MC’s evidence about this: [114]
[114] T 293.2-18.
QIs it the case that some time about September or October in the year 2020 that [BC] told you that she no longer wanted to visit the [S family]’s house on Kromelite Road.
ANo. [BC] didn’t want to come around there, she was saying that she just wanted to stay home or she you know might want to do stuff around the property and our place. She - yeah, I just put it down to her being a teenager and not wanting to be around because sometimes when we go to the [S family]’s home I would stop for a coffee or something and you know - we might be doing stuff with horses that was half an hour, it might turn into three hours because we have a coffee and talk and -
QSo, we might have been at cross-purposes. I suggested to you that it was around September or October that she started to tell you that she did not want to travel to the [S family]’s residence on Kromelite Road.
AYes, that’s correct.
QHave I got that time of year about right.
AYes.
QCan I suggest to you that you told the police when you spoke to them on 19 July 2021 about September or October 2020 [BC] started to say she didn’t want to come around to the [S family]’s or help out with horse stuff.
AYes, that’s correct.
Given that BC had already agreed during cross-examination with the questions on this topic, her statement to the police, which said the same thing, was simply a prior consistent statement. It could not be used to bolster her credibility on that point.[115] The prior consistent statement is irrelevant, and I have ignored it.
[115] Palmer v R (1998) 193 CLR 1, [49] per McHugh.
MC’s evidence in court that BC stopped wanting to go JS’s property is relevant and admissible. The defence sought to rely on this evidence as supporting their theory that BC was upset with JS about him not letting her breed her mare with his stallion; hence, she did not want to spend time at the property. It was circumstantial evidence supporting a motive to lie.
The other potential relevance of the evidence is that it is circumstantial evidence that supports BC’s evidence that JS made her feel uncomfortable because of what he was doing to her.
The evidence as to the conversation that MC had with BC is hearsay. I have not relied on it to prove BC did not want to go to JS’s house. However, MC’s evidence that her daughter stopped going to JS’s around September or October 2020 is direct evidence from MC about that issue. I cannot express a view as to whether it supports that finding by reference to that evidence standing alone. It is an item of evidence that needs to be viewed in the context of the whole of the circumstantial case. I will return to the relevance and use of the evidence later in my remarks.
NB graduation dinner at JS’s house
During cross-examination, MC gave evidence about the night of NB’s graduation party. She said at some point after dinner, ES decided to go into JS’s room because she was tired, and that BC went in there as well.[116] When the time came for MC to leave, she began calling out to her daughter, who was still in JS’s room. She said after calling out a few times, JS went into the room. After about 30 seconds to a minute, he returned to the kitchen, [117] grabbed some frozen vegetables, and re-entered the room. She was adamant that JS carried the frozen vegetables into the bedroom. The following exchange took place: [118]
[116] T 318.15-17, 23-27.
[117] T 320.23-26.
[118] T 321.12-20.
QAre you sure about that because didn’t people start yelling out to him ‘Don’t do it, don’t take the frozen vegetables in.’
AHe took them in there.
QIt is not the case he put them on the wooden cart that is just in the hallway.
AHe took them in there.
QHe took them in there.
AYes.
She did not see what JS did in the bedroom as the door was closed, and she could not see anything.[119] She was unsure if the door was latched, but it looked completely shut.[120] When JS went into the room with the frozen peas, she looked in the direction of the bedroom, but when JS went into the room, she couldn’t see into the room, so she looked away.[121] BC came out after JS went into the room for the second time. MC was unsure if JS had her by the arm when he came out.[122]
[119] T 320.21-22.
[120] Ibid 10-13.
[121] T 322.15-17.
[122] Ibid 1-5.
MC’s evidence, if accepted, supports BC’s evidence that the accused entered the room and placed a bag of peas on her face. It also, if accepted, provides the accused with the opportunity to offend in the way described by BC because the door was pulled over so people in the loungeroom could not see, leaving the accused in a darkened room with his girlfriend ES asleep in bed. I will return to consider this evidence in the context of the whole of the evidence.
Motive
In cross-examination, MC agreed that BC had expressed an interest in breeding her horse PJ at one point.[123] She said ‘it was just an idea that she had sort of come up with, but it wasn’t concrete.[124] BC initially raised it with her and her husband.[125] They had thought of breeding her horse with a Clydesdale nearby as a surprise ‘but it seems she wanted to continue her riding at the time with her horse’.[126] She said there was a general conversation with JS about breeding with one of his stallions, but the conversation was never more than a general one.[127] She did not recall ever speaking to JS, where he expressed concerns about BC’s ability to care for a second horse.[128]
[123] T 330.16-17.
[124] Ibid 25-26.
[125] T 331.7-14.
[126] Ibid.
[127] Ibid.
[128] T 333.12-15.
MC’s evidence showed that although BC was interested in breeding her horse PJ, it was little more than that. MC’s evidence tends to undermine the idea that BC had a motive to lie.
MC confirmed she had a birthday party on 7 November, and JS and his family were invited.[129] The birthday was relevant to the defence case as it was at the party on 7 November 2020 that JS said to BC that he would not allow her to breed her horse with his stallion. On the defence case, this motivated BC to make up a story about him.
[129] Ibid 31-32.
I found MC to be an impressive witness. She struck me as a witness who was doing her best to give an accurate account of what she recalled. She may have been mistaken about whether she travelled to Warrnambool with JS and his family or separately. She also may have been unclear about when BC got into the truck with JS on the way back from Warrnambool, but these are relatively unimportant matters and they have not affected my assessment of her credibility and reliability.
Her evidence as to what occurred at Baynes’ block supported the text messages she received on her phone. Her evidence as to what she saw at the party fits common sense. I accept her as a truthful and reliable witness.
NB (next-door neighbour to the S family)
NB was 20 years old when she gave evidence.[130] She has worked as a support care worker, aged care worker and care coordinator. She is the next-door neighbour to JS and has been for about 14 or 15 years.[131] She said she was close to JS; they went to primary school together but became closer in the last four or five years. In 2020, NB went to JS’s house for dinner every Thursday night. As of the date that she gave evidence, she said she would visit JS’s grandmother weekly, if not a couple of times per week.[132] On 30 October 2020, NB had a celebration party to mark the end of Year 12 at JS’s house.
[130] T 367.5-8.
[131] Ibid 26-27.
[132] T 370.2.
She said after dinner, everyone was sitting in the loungeroom when MC started calling out to BC because they were going to leave. She said MC called out to her for 15 minutes to half an hour. She said the door to JS’s room was ‘open as far as it could go’[133] and she could see straight into the room.[134] She did not describe what BC’s response was to her mother calling out to her for what might have been up to half an hour. She said she could see her lying there, but she was not doing anything that she could see. She was not sure if she was awake.[135] She said she could see ES lying there but thought she may have been on her phone, but couldn’t say ‘100% that she was on it at that stage’.[136] Despite having a clear line of sight into the bedroom, NB said that apart from lying on the bed, she could not say what either of them were doing when MC yelled at BC for nearly half an hour.[137]
[133] T 379.23-28
[134] Ibid.
[135] T 380.13-14.
[136] Ibid 20-21.
[137] T 379.29-30.
NB said that JS then got up and got a bag of peas from the freezer, at which point she and EMS yelled at him, and he put the peas down on the cart in the hallway outside JS’s room.[138] JS grabbed BC by the arm, and they both came out of the room. MC, BC and AC then left.[139] She described seeing both girls on the bed. She could not see their faces, although she could see their torso and legs. She thought both of the girls were on top of the bed.[140] Of course, that is inconsistent with ES’s evidence, who said she was under the covers.[141] At no point did BC respond to MC calling out to her.[142] In my view it is highly unlikely there would be no response from BC if what NB was saying were true. NB was asked to estimate how much of the door frame JS took up when he entered the bedroom – she estimated he would have taken up about half to three-quarters of it.[143] JS is a large, framed, tall man. The idea that he might only take up half of the door frame is simply not feasible.
[138] T 379.9-12.
[139] T 381.2-4.
[140] T 383.26-29.
[141] T 522.3-4.
[142] T 388.13.
[143] T 386.37.
There were a number of aspects of NB’s evidence about her observations at the party that that I found implausible. Her evidence that the door was wide open the whole time ES and BC were in the bedroom is inherently unlikely. ES wanted to sleep, and BC, who was also tired, wanted to relax and doze in JS’s room. The idea that they would lie on the bed with an open door when at least four people were in the loungeroom a short distance from the bedroom talking offends common sense. ES gave evidence that after getting into bed, she removed her top, took off her jeans and put some shorts on.[144] The door was pulled across on her account, which makes sense, given she is removing clothes and planning to sleep.
[144] T 522, T 542.
It is also inherently unlikely that MC would sit on a couch calling out to her daughter for half an hour with no response from BC. For those reasons I do not accept NB’s evidence.
The accused - JS
JS elected to give evidence in his defence.
The trip to Warrnambool
JS agreed that he attended the Warrnambool horse auction in December 2019. He said that on the trip back to Mount Gambier, BC accompanied him in his truck for part of the journey.[145]
[145] T 400.11-12.
Events in the truck
On the way back to Mt Gambier, JS said that BC had his phone at one point and was sending Snapchat messages to a girl concerning JS transporting horses.[146] He said he did not ask BC ‘who she was rooting’.[147] Although he vaguely remembered discussing Tinder, he could not remember having an entire conversation about it.[148] He may have had the Tinder application on his phone as he said he got it on a work trip to Queensland, but he had not used it for a long time.[149] He denied that BC had gone onto his phone and swiped right or left to women on the application. He denied having a sexual conversation with BC – he did not show her a video of naked women.[150]
[146] T 401.29-38.
[147] T 403.12-13.
[148] T 403.1-4.
[149] Ibid 7-8.
[150] Ibid 9-11.
Baynes’ block – diary notes
JS said he did not go to the Baynes’ block on 3 February 2020. He refreshed his memory from his work diary, which noted that he had worked nine hours that day. There was no entry about moving any horses anywhere on that day. In other words, he denied being in BC’s company on 3 February 2020, let alone indecently assaulting her.
JS refreshed his memory from an entry in his diary on 2 February 2020, which read ‘I had a look at the horse with [MC]’[151] and said he went to look at a horse with MC on that date. He thought BC and AC went also.[152]
[151] T 462, T 406.26-32.
[152] T 407.1-3.
He said he had gone to Baynes’ block on 10 February with MC so that MC could leave one of her mares to be paired with one of JS’s stallions.[153] He thought BC and AC may have been there, although he could not be sure.
[153] T 405.29-30.
He said MC pulled in with a float behind her blue ute, he arrived in his white Landcruiser, and they put her horse in the paddock and left.[154] He could say it was 10 February that he did that because he had made an entry in his diary about it.
[154] T 405.31-38.
The diary entry on 10 February 2020 read, ‘move horse for the [T]’.[155] This note, according to JS, referred to MC by her maiden name, T. He said that when he first started hanging around them (MC’s family), he did not know her married name.[156] JS said he did not know what year MC married but later agreed that MC may have married in 2005 when her surname became C. JS was seven years old.[157] I also note that BC was born a C on 12 December 2004.[158] The accused was six years old. He had only ever known BC as a C. As to why the accused referred to MC’s family as T he said:[159]
[155] T 409.1-9.
[156] Ibid 7-9.
[157] T 463.18-19.
[158] P12, agreed facts [1] and [2].
[159] T 443.1-4.
As I said, they’re family friends, we’ve known them for years. Knew [MC]’s mother, [MC]’s sisters and that and yeah, it’s just I didn’t know [BC’s father]’s surname and that, so it was always just [T].
Ms Moore asked JS why he referred to MC as MC’s first name on 2 February 2020 and T on 10 February. He gave the following explanation:[160]
[160] T 462.25-30.
AWell, if it’s to do with the thoroughbreds, it’s sort other whole family, if it’s just to do with cross-bred horses it’s more just to do with [MC].
QSo is your evidence that, if it’s to do with the thoroughbreds, you say moving for the [T’s].
AYeah, well, [BC’s father]’s involved in those horses as well.
The prosecution’s case was the reference to T in his diary did not relate to MC or any horse connected to her or her family. The accused could not think of anyone besides the T family with the surname T. He later agreed that he had nine friends with the surname T on his Facebook profile.[161] It was not clear on the evidence if this related to people outside MC’s family.
[161] T 463.31-36.
I find it implausible that JS did not know MC’s surname, given that she had that name since JS was about seven years old and he was very close to BC, and she only ever had the surname C. The idea he did not know [BC’s father]’s surname is fanciful. If the horse that was moved on 10 February (if that occurred) was related to MC’s family, the reference would have been to C.
Touching at BC’s house
JS denied touching BC in his car while at BC’s house. He said that he could not recall any occasion when BC was in his Landcruiser at her house. JS rhetorically asked why she would be in the car with him if he were leaving. He said she would typically get into the back of the ute and sit with his dogs to pat them all.[162]
[162] T 493.7-11.
Red-Nissan
BC described an occasion where JS touched her vagina and breast while in a red utility. On that occasion, I initially described ES being on the back of the tray of that utility and there being no canopy on the utility. JS was taken to that topic and said that the canopy had never been removed from the utility.[163] He said that he could not recall any occasion when ES, MC and BC were in the red utility when he towed a hay trailer. He said if he had a hay trailer on, there would be no place for anyone to sit.[164] JS’s evidence about this is inconsistent with BC’s evidence and with ES.[165] He denied touching BC anywhere on her body when she was in his red utility.[166]
[163] T 498.20-21.
[164] T 498.24-28.
[165] T 428.1-7.
[166] T 499.1-10.
NB – celebration dinner
Condoms
JS said that on the night of NB’s celebration dinner, BC spoke to him and ES about ‘a boy that she had kissed… that she had kissed a boy and she was hoping to go and stay at his place and wanted to sleep with him’.[167] He was not sure what ES said.[168] He said he went to his room and got a packet of condoms.[169] He said that he thought ES gave them to her. He said he did not say anything to her when he gave her the condoms.[170] He denied asking BC who she was rooting when they talked about the boy she had kissed.[171]
[167] T 429.29-31.
[168] Ibid 36-38.
[169] T 429.13-15.
[170] T 430.18-19.
[171] T 429.3-7.
On the night of the celebration, after dinner, he said that ES had been working all day and had to get up early in the morning, so she decided to go to bed.[172] She said goodnight to everyone and went into his room. BC went in there as well.[173] He described MC wanting to leave and calling BC to get up because they were going for about half an hour.[174] Eventually, he got up, went to the freezer, got a bag of peas and was on his way to the bedroom with them but put them down just outside his bedroom because everyone was telling him to put them down. He then walked into the room, the door was wide open,[175] and he told BC she had to get out of bed. He was unsure if she was asleep, although her eyes were closed.[176] Ultimately, he took her by the arm and pulled her out of bed. At no point did he touch BC on the buttocks. In addition, he denied sending any Snapchat messages, as described by BC.
[172] T 432.11-13.
[173] Ibid 20.
[174] T 433.33-35.
[175] T 435.13, T 505.28.
[176] T 504.18.
He agreed he did send Snapchats to BC at different times, but it was about horses.[177] JS said he snap-chatted with BC almost daily since she was about 13 years old.[178]
[177] T 437-9.
[178] T 441-2.
Motive
JS said that BC had spoken to him about breeding her horse PJ with one of his stallions. It was connected to a school project. He says that BC was persistent in speaking to him about breeding her horse. It was something that she would raise every second week. He discussed how when PJ was with foal, if that happened, she could break in and ride one of his horses while PJ was in foal and when PJ was ready to ride again, he would have his horse back.
In the end, JS said that because BC had not been up to the task of looking after Tommy (a horse he had given to BC, but MC returned it because she did not look after it properly)[179] she had not demonstrated that she could pull her weight. So, he decided not to let her breed her horse with one of his stallions. The issue came to a head at MC’s birthday party when he told BC that he had made a final decision. BC asked about breeding her horse with his, and he said ‘Well, no… why would I allow you to have more horses when you can’t even look after the ones you have got properly’.[180] He said that BC was unhappy and stormed off and ‘wouldn’t talk to me for a bit’.[181]
[179] T 118.1-6.
[180] T 424.13-16.
[181] Ibid 20.
JS’s girlfriend - ES
ES was JS’s girlfriend and had been since May 2020. ES said that she had met JS on Tinder in the beginning of 2019. That did not come to anything. When she bought a horse from him in about April 2020, their relationship commenced.[182] After she started a relationship with JS, she would spend most weekends with him. She had an interest in horses and would help out around the property.[183] She recalled a time when JS towed a trailer behind his red Nissan Patrol utility to collect hay on his property. She said that BC and MC were also present on this day.[184] She agreed that BC and MC were in the cab of the utility at one point.[185] She agreed that, at some stage, MC got out of the utility and possibly got into the trailer.[186] ES said she was in the trailer sitting on top of the mudguard with her feet inside the trailer, hanging onto bales of hay to support herself. ES’s evidence circumstantially supports BC’s evidence that there was an occasion when she was in a red utility at a time when her mother and ES were also present. It also supports BC’s evidence that there was an occasion where the accused and BC were alone in the cabin of the red utility.
[182] T 550.
[183] T 509.31-38.
[184] T 512.8-11.
[185] T 513.25-26.
[186] T 534.6-11.
ES said that she did not sit on the back of the utility while JS was driving with BC in the cab.[187] The defence said this was a material inconsistency with BC’s evidence because BC said that ES was sitting in the back of the utility. I am unable to accept that submission.
[187] T 514.1-2.
BC agreed when cross-examined that when she gave her statement in November 2020, she said that ES was in the trailer and not in the back of the utility on the occasion she said that JS grabbed her vagina and breast. Further, BC agreed in cross-examination that what she said in her statement was more likely to be accurate. In other words, she adopted her earlier statement as accurately representing where ES was sitting on the day. The cross-examination removed any inconsistency between BC and ES.
In any event, whether ES sat in the utility tray or the trailer does not materially undermine, or at all, the strength of what BC says occurred whilst she was in the cab of the utility with JS.
Condoms
On the night of NB’s graduation party, ES said BC spoke with her about a boy.[188] After that, ES discussed with JS giving condoms to BC.[189] However, ES could not give any further detail about her conversation with JS other than to say that they spoke about giving BC some condoms, and the conversation did not occur in BC’s company.[190]
[188] T 516.15-22.
[189] Ibid 34.
[190] Ibid 29-37.
She said she and JS gave BC the condoms in JS’s bedroom and when they were handed to her, one of them said they wanted her to be safe.[191] She could not remember who suggested they get her condoms, just that they got some. She said JS retrieved them from the bag in his room.[192]
[191] T 517.21-22.
[192] T 537.6-11.
Events in the bedroom
ES said after dinner on the night of MB’s graduation party, she felt tired and decided to go to bed.[193] She said that BC came with her.[194] She said she announced to everyone that she was going to bed. When she got into the bedroom, she changed into her night clothes and got into bed. She described the bedroom door as being slightly open.[195] ES said that when she went into the bedroom to get changed, she closed the door at least part of the way. She estimated the door would have been open about 50 cm.[196] She said when BC got into bed, she got under the covers along with ES. At one point, she said that JS came into the room, flicked on the light, and then left, turning off the light as he did so. The door was left half open.[197] Although in cross-examination, ES agreed that after the light was turned off, the door could have gone back to about the same position as it was when she got changed, namely about 50 cm open.[198] She continued watching a movie with BC for a while before falling asleep. She was asked if she made contact with BC whilst under the covers. She said their backs and buttocks touched each other.[199]
[193] T 521.6-8.
[194] Ibid 26-27.
[195] Ibid 31.
[196] T 543.13-15.
[197] T 523.16.
[198] T 546.20-22.
[199] T 524.14-18.
ES said she was a bit embarrassed when their buttocks touched although she did not move away after that but remained in that position with their buttocks touching.[200] She said they were connected the whole time they were in bed.[201]
[200] T 548.4-16.
[201] Ibid 27-30.
I note that BC says she was not under the covers with ES, and they were not lying there with their buttocks pressed against each other. I accept BC’s evidence about that. I find ES’s evidence on that topic highly unlikely. Given their relationship, the idea that they would lay in that position is implausible and remain in the same position after confronting that their buttocks were touching.
ES was unsure how long she was asleep, although she woke up at one point with JS coming into the room telling BC that she had to go. The light was on at that point. It woke her up. She said she was facing the other way, so did not see JS. At some point, she noticed that BC was out of bed because she was not touching her anymore.[202] However, she never got out of bed and BC and JS left the room. ES agreed that the room was ‘pretty black’ apart from the door’s positioning.[203]
[202] T 525.24.
[203] T 546.29-31.
JS’s mother - TS
TS is the mother of JS. She confirmed that she attended at the Warrnambool horse auctions on 15 December 2019. She said that she and her family travelled to Warrnambool the day before the horse auctions were set to take place and they stayed the night with friends.[204] She described JS leaving after the horse auctions on his own and that either BC or her younger sister got into the truck with JS at some point on the trip back.[205] TS was taken to the topic of Baynes’ block. In particular, whether she had attended at Baynes’ block in February 2020. She gave the following evidence:[206]
[204] T 552.6-8.
[205] T 554.7-15.
[206] T 554.33-38, T 555.1-11.
QAt any time in February 2020 were you at Baynes’ block when [MC] was also at Baynes’ block.
ANot that I can recall.
QWould you go to Baynes’ block with anyone else, if you were going.
AOnly with [JS] or with mum and dad.
QIn February would you be delivering or collecting horses from Baynes’ block generally.
AIf we were doing anything it would be taking them down there.
QAre you able to say if any of [MC]’s horses were being agisted on Baynes’ block in February to your knowledge.
AOne went down there, it was the 10th, I think it was 10 February.
QWere you present when that horse was delivered there.
ANo.
It is unclear what TS relied on to say MC’s horse went to Baynes’ block on 10 February 2020. I am unsure if she had first-hand knowledge of that or if she is basing it on something she was told by someone or read. In those circumstances, I am not prepared to rely on this evidence.
JS’s grandmother - EMS
The accused’s grandmother EMS gave evidence. EMS and her husband DS lived with JS at his property in 2020.[207] EMS said that she never liked BC.[208] She made no secret of the contempt she held for BC. I have taken that into account in assessing her evidence. EMS said that she kept records relating to her grandson’s horse activities.[209] For example, whenever he put a horse somewhere, he would tell her where and she would write it in her book. JS gave evidence that he had about 80 horses in 2020 placed at various properties, including his own.[210]
[207] T 558.15-16.
[208] T 587.37-38.
[209] Ibid 19-22.
[210] T 393.13-16.
EMS was asked about the location of some of JS’s horses. In particular, she said that MC had a horse agisted at Baynes’ block in 2020.[211] EMS said she had kept a record of when that horse was placed at Baynes’ block. Having consulted her records EMS said that MC’s horse was placed at Baynes’ block on 10 February 2020. EMS said that she could not recall any time in February 2020 where she was present at Baynes’ block with her daughter, MC and BC:[212]
[211] T 560.15-16.
[212] T 560.15-38, T561.1.
QTo your knowledge, did [MC] have a horse with you for agistment in February 2020.
AYes.
QWhere was that horse being agisted.
AAt Baynes’ at OB Flat.
QDid you keep a record of when that horse was at the Baynes’ block.
AYes.
QWas that a record of when the horse was delivered or taken.
AWhen it was delivered down there.
QAre you able to say what day that was in February.
AThe 20th - sorry, 10th.
QWere you asked by [JS]’s solicitor to check through your records before coming to court.
ASorry, what -
QWere you asked by [JS]’s solicitor to check your record books before coming to court.
AYes.
QIs that how you able to say it was the 10th.
AYes.
QAt any time in February 2020, were you physically present at Baynes’ block with your daughter, [TS], and [MC] and [BC].
ANot that I can remember, no.
EMS was present for NB’s celebration dinner. After dinner, she said she sat in her usual chair in the lounge room.[213] She said ES and BC went into JS’s bedroom sometime after that to watch a show. She said they were lying on the bed. She said she was not paying attention when BC entered JS’s bedroom. At some point, MC wanted to go and was yelling out to BC to come. She called out to BC ‘come on it’s time for us to go’.[214] She estimated that MC yelled out to her daughter for about a quarter of an hour, and everyone was getting sick and tired of it. She said that MC’s voice was increasing in volume.
[213] T 563.21-38.
[214] T 565.31.
At some point, JS got up, walked to the freezer, and took out a bag of frozen peas and corn. As he made his way towards the bedroom, EMS said something like ‘put that on her, and I’ll kick your backside’.[215] And with that, she said JS threw the frozen peas and corn onto a little cart in the hallway just outside JS’s bedroom. Then, she said she saw him march into the bedroom and, in one motion, grab BC, pull her off the bed, and drag her out.[216]
[215] T 566.21-22.
[216] Ibid 34-38.
She said that she could see everything that was happening. She did not think the light was on in the bedroom, but the loungeroom light was very light and bright and shone straight into the bedroom so she could see plainly. EMS said that JS grabbed BC, pulled her up, and ‘hauled her out’. She described him dragging her outside. He picked her up and dragged her past MC and AC. She said BC was protesting a bit and dragging back. EMS said that BC was taken out of the room and directly out of the house. I note EMS’s evidence is inconsistent with JS, BC, and MC’s evidence. I bear in mind EMS’s unbridled dislike of BC which provided an obvious motive for her to fabricate an account to help her grandson.
I do not accept EMS’s evidence that the door was wide open. For reasons I have already expressed in the context of discussing ES’s evidence I find her evidence implausible.
Prosecution and Defence cases
Prosecution case
The prosecution submitted that the evidence supports a finding beyond a reasonable doubt that the accused and BC had a relationship. They saw each other regularly. BC describes him as a big brother. BC’s description was consistent with and supported by ES’s description of their relationship, which was similar. The accused said he snap-chatted BC about horses almost daily since she was 13 years old. Finally, Ms Moore pointed to the accused’s evidence that he regarded BC as a good family friend.
Ms Moore submitted that the frequency, duration, continuity and nature of the contact between BC and the accused leads to the conclusion, beyond a reasonable doubt, that there was a relationship for purposes of section 50 of the Criminal Law Consolidation Act 1935 (SA).
Ms Moore submitted that BC was an honest, credible, and reliable witness. She identified features of her evidence that were so specific they lead to a conclusion that she was telling the truth. In addition, Ms Moore submitted that BC’s account lacked any malice or ill will towards the accused and that she was very matter of fact in her account of things that had happened to her.
In addition, various items of circumstantial evidence support aspects of BC’s evidence such that, when taken as a whole, I should accept her evidence beyond a reasonable doubt that the various unlawful sexual acts she described actually occurred.
On the first occasion, BC said the accused sexualised the conversation with her in December 2019; BC’s evidence was supported in the following ways.
·First, BC described the location and timing of the first occasion where the accused sexualised the conversation as being in the accused’s truck on the way back from Warrnambool in December 2019. MC, TS and JS supported BC’s evidence as to location and timing;
·Second, the accused in evidence said that he vaguely recalled a conversation about the Tinder App in the truck on the way back from Warrnambool; and
·Third, the accused’s concession that he had the Tinder application on his phone.
As to what BC said occurred at Baynes’ block, the evidence of MC supported BC’s evidence that she was at Baynes’ block on 3 February 2020, that she travelled home in a different car to the accused and that she sent her text messages at Baynes’ block that day. In addition, the agreed fact it was 10 degrees on 3 February 2020 at 6pm supported BC’s evidence that it was cold that day.
As to the second occasion, BC said the accused indecently assaulted her in the accused’s utility while driving through paddocks on her property. Ms Moore pointed to MC’s evidence (and the accused’s evidence to the same effect) that the accused would attend BC’s property to help with the horses. Ms Moore submitted that this evidence supported BC that the accused attended at their home, increasing the likelihood of her being in his car with him as she described.
As to the red utility incident, BC said the accused indecently assaulted BC in the accused’s red utility while ES was sitting on the utility tray or the trailer. ES’s evidence directly supports BC that she was in the utility with the accused and her mother, and her mother got out at one point, leaving BC and the accused alone in the cabin.
As to the party, BC said the accused indecently assaulted her in his bedroom. Again, there was no dispute she went into the accused’s bedroom with ES, so there was an opportunity to offend.
Ms Moore submitted that it would have been difficult to see into the loungeroom with the lights off in the bedroom. ES was in the bedroom when BC said the accused grabbed her buttocks, but she was asleep so she added nothing.
Ms Moore submitted the accused’s evidence was not credible. He denied speaking to ES and EMS about the charges he was facing, yet both said he had spoken to them about it. His evidence as to the diary entries relating to MC was unconvincing. There was no good reason for him to refer to MC as T. MC’s evidence directly undermined him when she said JS never referred to her as T. The accused’s entry about seeing a horse with MC was unlikely. There was no need to record it. He made no record of the horses he was breaking in (and JS made money from that), then why would he make an entry in his diary about something as inconsequential as seeing a horse with MC.
As to NB’s evidence about JS not taking the peas into JS’s bedroom on the night of her party, Ms Moore said she might be mistaken about that. She submitted that NB was unreliable about where people were sitting in the loungeroom, which should lead me to doubt what she said about the peas. Her evidence that the door was open all the way was also unlikely, as was her evidence that the accused only took up half the doorway and, therefore, she could still see into the room.
Ms Moore said that EMS’s evidence was not credible or reliable. First, EMS openly expressed her dislike of BC and was therefore tainted with bias. Second, she attempted to say there was daylight in JS’s room which allowed her a good view even though, given the time of night, it would have been dark. Finally, Ms Moore said that because of EMS’s eyesight issues, the limited lighting, the distance from her seat to the accused’s bedroom and the accused’s large stature, EMS did not have a clear view of what was happening in the bedroom.
As to the defence submission that BC had a motive to lie, Ms Moore submitted that BC did not complain to the police or her parents. If this were about revenge for being denied an opportunity to breed her horse with the accused’s stallion, then telling her school counsellor in private and not knowing the counsellor would report it tells against that finding.
Ms Moore submitted that the sexualised conversation between the accused and BC in December 2019, if accepted, was evidence of sexual attraction that could be relied on when assessing the rest of the evidence.
Defence case
Mr Jolly submitted the prosecution had not proven that the accused maintained the relationship (it was conceded there was a relationship) to commit unlawful sexual acts. The accused had known BC since she was a child. Mr Jolly submitted that the friendship between the two, which started when the accused was a child, was not maintained for an unlawful sexual purpose.
In any event, Mr Jolly submitted that the prosecution had not proven beyond a reasonable doubt that any of the sexual acts alleged occurred.
Mr Jolly submitted that the prosecution failed to put to the defence witnesses that they spoke with the accused about his charges before giving evidence in order to fabricate their account. Because of that I cannot assess the defence witnesses’ credibility and reliability on that topic.
Mr Jolly submitted that BC was not a reliable witness. BC said she spent the whole trip back from Warrnambool with the accused, but other evidence suggests it was only part of the trip. Mr Jolly submitted the cabin of the truck was too large and difficult for the accused to show her a video on his phone whilst maintaining control of the truck containing horses. BC maintained she passed through a Covid checkpoint the day she went to Baynes’ block, which could not be accurate. Mr Jolly argued there was an inconsistency between BC and MC regarding where they were when BC sent the text messages on 3 February 2020. Also, there was the accused’s evidence he was not at Baynes’ block on 3 February 2020. That assumed that the date and time on the text messages were correct. It was not conceded they were.
Mr Jolly submitted that because the accused was in Court the following day for a bail variation (4 February 2020),[217] his offending on 3 February was implausible. Mr Jolly submitted that the accused would be aware of the consequences of breaching his bail, which would make ‘him incredibly stupid or incredibly brazen’ to do such a thing. Mr Jolly submitted that the Court proceedings made it unlikely he would commit the offences alleged against him.
[217] T 622.31-38.
Regarding the red utility incident, Mr Jolly submitted that BC said MC was present in the utility just before the offence, but MC gave no evidence about that topic.
BC’s evidence is that on the day of the party, the accused told her to put condoms in the car and that her mother found her with the condoms, but BC never mentioned it in her statement to the police. Mr Jolly submitted that this evidence was not peripheral evidence but was a precursor to the offending. It was such a dramatic departure from her evidence that I should doubt the whole of her evidence.
Mr Jolly submitted BC’s evidence about having peas put on her head is out of step with the weight of the evidence and is another reason I should doubt BC’s evidence.
Finally, Mr Jolly submitted that the evidence supports a finding that BC had a motive to lie because the accused had told her that he would not let her breed her horse with his stallion.
Discussion
Assessment of BC (the complainant)
The prosecution case relies on my acceptance of BC’s evidence beyond a reasonable doubt. The crucial issue is her credibility and reliability.
Mr Jolly cross-examined BC over three days. The cross-examination takes up 175 pages of transcript. The lengthy cross-examination allowed me to observe BC give evidence over an extended period. BC impressed me as a considered, careful, thoughtful, articulate, and polite witness. At no stage was her credibility undermined. At no point did any of her answers or her presentation or the detail of her evidence cause me to doubt anything she had to say.
Looking at BC’s evidence generally there are numerous items of evidence that circumstantially support aspects of BC’s evidence about each occasion that the accused is said to have behaved inappropriately or indecently assaulted her, including:
·the evidence that supports BC was in the accused’s truck on the way back from Warrnambool;
·that the accused did have Tinder on his phone;
·the text messages sent on 3 February 2020 by BC to her mother;
·the temperature being 10 degrees on 3 February 2020 (BC said it was a cold night when the accused indecently assaulted her at Baynes’ Block);
·MC’s evidence;
·the evidence that BC would drive in the accused’s car from time to time;
·ES’s evidence about the red utility incident;
·EMS, NB and MC all confirm BC was in JS’s bedroom on the night of NB’s party; and
·BC’s reluctance to attend JS’s property in October 2020 (supports her evidence that she did not want to be near him because of what he had done to her).
I turn to consider the specific unlawful sexual acts and the lead up to them.
Trip back from Warrnambool
BC gave a detailed account of what occurred in the cabin of the truck in December 2019, including the video she said the accused showed her, which included topless women, the accused explaining how he got with someone double his age at 13, and that JS called it a name like a ‘cougar’, all had a ring of truth about it. There is no doubt that she was in the truck as she described in 2019. There was a level of detail to her account that is inconsistent with a fabricated account. This was a consistent feature of her evidence.
I accept BC’s evidence as to what occurred in the truck. The relevance and use I have made of the evidence is that it shows that the accused was testing the boundaries with BC and gauging what her response might be to sexualised contact between the two. Showing her the video of naked women is a good example of that. The accused relaying his own sexual experience with an older woman when he was a teenager introduced the idea of an ‘older/younger’ sexual relationship. The evidence is relevant to explain why the accused might have thought he could go further at Baynes’ block and why he thought BC might not say anything. It is relevant to the ‘state of affairs’ between the two. It is relevant to explain that the offending at Baynes’ block did not come out of the blue. That is how I have used this evidence. [218] Whilst it may also supply evidence that the accused had a sexual interest in BC, I have not used the evidence in that way.
[218] HML v The Queen (2008) 235 CLR 334, 478 [426] (Crennan J); KSC v R [2012] NSWCCA 179.
The accused showing BC topless women on a video is discreditable conduct. I am satisfied that the probative value of the evidence outweighs any prejudicial effect may have on the defendant.
I have not used the evidence in an impermissible way to suggest the defendant is more likely to have committed the offence because he had engaged in the discreditable conduct. I have not employed what is sometimes referred to as ‘bad person reasoning’.[219]
[219] R v C, CA [2013] SASCFC 137, 17 [76] (Kourakis CJ).
Baynes’ block (counts 1, 2, 3 and 4)
I was impressed by the account given by BC concerning what occurred at Baynes’ block. The specific way she described the accused ‘cupping’ ‘his hand around her vagina’ was a level of detail consistent with her describing an actual event. The other detail that she gave about the accused touching her as she leant into the horse float to grab a horse whip, namely, he grabbed and squeezed her buttocks, and when she turned, he was there and placed his hand again on her vagina, was a detailed and specific account. Further, BC’s description of her response, that she ‘gasped that’s about it, I widened my eyes and just stood there in the most awkward – I don’t know the word – situation’, was convincing.
Besides BC’s description of what occurred at Baynes’ block, there are the text messages she sent to her mother on that occasion. The text messages do not directly support the fact that the accused touched her on the buttocks or vagina. However, the evidence circumstantially supports her not wanting to travel back from the Baynes’ block with the accused alone.
MC’s evidence supports BC’s evidence that BC sent the text messages to her, and that BC did not want to travel back with the accused from Baynes’ block. I accept MC’s evidence on that. She is circumstantially supported by the text messages that were on her phone. I found her to be an honest and compelling witness.
Defence submission
The defence submits that I should not accept BC’s evidence about what occurred at Baynes’ block in part because of her evidence that on the way to Baynes’ block, she passed through a Covid checkpoint near a service station where she and the accused stopped. It is agreed that the Covid checkpoint in Mount Gambier was not established until the end of March 2020.[220] The defence submits that because BC maintained that she went through the Covid checkpoint and that that could not have been on 3 February 2020, all of her evidence as to what occurred on that day is unreliable, and I should disregard it.
[220] D8, agreed fact [2].
I do not accept that submission. BC clearly stated that the day that she sent the text messages, the accused touched her at Baynes’ block. The text messages are far more reliable as to time than her recollection of the Covid checkpoint. It is a reasonable explanation for BC’s conflicting evidence as to the time is that she was conflating two separate occasions. One where she went to Baynes’ block with the accused and another time when she was with the accused and had travelled through the Covid checkpoint.
The fact that she must be wrong about travelling through a Covid checkpoint on the day of the text messages does not affect my assessment of her reliability and credibility as to the events of 3 February 2020.
The defence case is that JS never went to Baynes’ block on 3 February 2020. The accused gave evidence to that effect.
I have considered TS and EMS’s evidence that they could not recall being at Baynes’ block in February 2020 with BC, MC and JS. Neither witness gave positive evidence that they were not there. On BC’s account, the trip to Baynes’ block and specifically what occurred there was not made known to anyone, least of all TS or EMS. The evidence supports the finding that the S family and C family regularly came together in relation to horses. They regularly kept each other’s company at locations all over Mount Gambier to do with horses.
The fact that TS and EMS have no specific recollection of being at Baynes’ block on 3 February 2020, in circumstances where it would have been an uneventful occasion (for them at least), has not caused me to doubt BC’s evidence about what occurred at Baynes’ block.
MC conversation with BC on the way back from Baynes’ block
MC’s evidence supports parts of BC’s evidence about what occurred at Baynes’ block. First, she says she was at Baynes’ block and received the text messages on 3 February 2020. Secondly, she decided to, and did, drive back with JS from Baynes’ block. Third, when she told JS that BC felt uncomfortable about the conversation, that she was a young girl and he should not be having those sorts of conversations with her, JS responded by saying ‘Oh okay’. He didn’t ask her what she was talking about. I accept MC’s evidence about what occurred at Baynes’ block and on the drive with JS on the way back from Baynes’ block.
The response ‘Oh okay’ is an item of evidence that in combination with the other evidence in the case may circumstantially support BC’s evidence that the accused was speaking inappropriately to her, saying things like ‘who are you rooting’. However, in combination with MC’s evidence that JS ‘seemed shocked’ and that BC ‘didn’t elaborate really a lot’, I find that JS saying ‘oh okay’ does not amount to an admission to anything and cannot be used to circumstantially support BC’s evidence that JS was speaking inappropriately to her.
BC’s property – white Landcruiser (count 1 and 5)
BC’s description of driving on her property in the accused’s white Landcruiser when the accused looked directly at her as he put his hand on her breast was compelling. Again, I was impressed by the understated way BC described the event. There was no attempt at embellishment. Coupled with the evidence of what had earlier occurred at Baynes’ block which I found to be convincing I accept BC’s evidence about this event.
Red utility incident (counts 1, 6 and 7)
BC described an occasion when she and her mother were in the cabin of the accused’s red utility with the accused. BC said she thought the accused’s girlfriend was in the tray of the utility, although later said in the evidence that she may have been in a trailer being towed behind the utility. She said they were collecting hay on that occasion and stopped at a gate while driving through a paddock. When MC got out to open the gate, the accused grabbed her vagina. She described what occurred again in a way that I found convincing: she said that JS cupped his hand around her vagina as in, ‘he just slightly moved it a bit, like a finger cup… like moved it up when he was like taking it off and then like scoop’.[221]
[221] T 69.30-34.
Later in the same trip, she described the accused grabbing her breast, and when he did, the accused asked if she was wearing one of her mother’s bras because of the padding. She just turned her body away from him and looked out the window.
Her description of what occurred, what the accused said, what she did (turning and looking out the window and ignoring him), and her persuasive presentation as she gave the evidence leads me, in combination with the other evidence, to conclude that she was accurately and truthfully describing what occurred.
ES’s evidence directly supports BC’s evidence that: (1) there was an occasion when BC was in the red utility with the accused; (2) at one point, her mother was in the cabin with the accused and BC; (3) her mother got out of the cabin; and (4) at the time the accused was towing ES on a trailer.
Defence submission
The defence criticism of BC’s evidence on this topic focused on three things. First, BC’s description of ES sitting in the tray of the utility as opposed to sitting on a trailer when these events were said to have occurred. Second, BC described the tray as not having a canopy when it always had a canopy on the defence case. Third, MC gave no evidence about the red utility incident.
The defence tendered photographs of the utility showing it had a canopy.[222] The accused and ES both gave evidence that the red utility always had a canopy – it never came off. This, it was submitted, undermined the credibility and reliability of BC’s evidence.
[222] D5.
I do not accept that submission. Even accepting that BC was wrong about the canopy - it is not an important detail. Whether she was sitting on the utility tray or the trailer does not make any meaningful difference to her account – ES was still sitting at the back of the vehicle.
Further, Mr Jolly cross-examined BC about the statement she gave to the police on 12 November 2020. In that statement, BC said that ES was in the trailer behind the red utility when the accused indecently assaulted her. During cross-examination, BC agreed that what was contained in her statement was accurate and what she told the police was true. Further, she said that what she told the police was likely more accurate than the evidence she gave in court. She agreed that ES was in the trailer instead of the utility tray.
In the end, BC’s evidence was supported directly by ES, who said she was in the trailer, which is what BC described in her original statement. It is not surprising to me that an inconsequential detail as to precisely where ES was sitting behind the utility was not accurately recalled by BC when she gave evidence.
The vital part of her evidence was her description of the accused touching her. The defence criticism has not caused me to doubt the reliability and credibility of BC’s evidence about the red utility incident.
Although MC gave evidence, Ms Moore, for the prosecution, did not ask MC any questions about the red utility incident. The defence submits this undermines BC’s evidence about what occurred. I do not accept that submission. The lack of any evidence by MC on this topic is a neutral point. There is no evidence from her about that for me to assess. I do not infer that her lack of any description of that occasion means that it did not occur, particularly in circumstances where she was not asked a single question about it.[223]
[223] To that end, Ms Moore did not ask MC any questions about what occurred at NB’s graduation party, but when asked by the defence about NB’s graduation party, there was much that she could and did say about it. Including evidence that supported the prosecution case.
The party
I turn to BC’s evidence that the accused touched her buttocks while in JS’s room on the night of NB’s graduation dinner. She did not embellish or overstate what occurred.
Her evidence that the accused placed a bag of frozen peas on her face is an unusual detail, unlikely to be invented. MC’s evidence (which I accept) supports BC’s evidence about that. MC saw the accused enter his room with a bag of peas. Although the placement of the frozen peas is not part of the alleged unlawful sexual act, it is part and parcel of the event.
The fact that BC says that JS squeezed her buttocks while everyone was in the next room rings true.
BC’s evidence as to Snapchat messages from the accused after the party ‘you have the best arse I have ever seen’ and ‘if you were older, I would definitely get with you’, adds to the richness of the detail given about this occasion. Again, this is an unlikely detail. Her explanation, during cross-examination, that she did not show the messages to her mother or father because they would have said something, and she did not want the spotlight on her was a compelling response.
In considering BC’s evidence about the indecent assault on the night of NB’s graduation party, I have considered the evidence of NB, EMS and the accused.
Defence case about the party – NB and EMS’s evidence
The defence case was that NB and EMS said they saw the accused remove BC from his bedroom on the night of NB’s graduation party. They did not see the accused touch her buttocks. Based on NB and EMS’s evidence a doubt arises about BC’s evidence.
I have earlier indicated the reasons why I do not accept the evidence of EMS and NB. I accept MC’s evidence that the door was closed over. That accords with common sense and is consistent with ES who thought the door was at least mostly closed.
Motive to Lie
It was submitted that I should reject the complainant’s evidence on the basis she had a motive to lie about JS to get back at JS for refusing to let her breed her horse with JS’s stallion.[224]
[224] T 255.35-38.
Apart from it being difficult to see how that would cause her to make up the allegation she did (the accused was a family friend and she thought of him like a brother), the real problem with accepting that submission is that BC did not go to the police. She did not complain to her parents. Instead, she spoke privately with a school counsellor who, unbeknownst to her, reported the matter to the police and the authorities became involved.[225] The circumstances in which the matter came to the police materially undermines the suggested motive to lie.
[225] T 150.26-29.
I reject the defence submission that BC had a motive to fabricate an account about JS to get back at him for not letting her breed her horse with his.
I have reminded myself that the prosecution bears no onus in establishing a motive to lie. Even if I reject the motive to lie, which I have, it does not enhance the credibility of BC. I refer to my earlier directions about that.
Reluctance to attend the property
I have earlier referred to evidence that at some point in September or October 2020, according to MC, BC stopped wanting to go with her to JS’s home. I have considered whether this evidence contributes to the defence case that BC was upset with JS for not letting him breed his horse with hers. In my view it does not. The combination of BC’s evidence and MC’s evidence supports the finding that while she had toyed with the idea of breeding a horse it was hardly anything that she was deeply invested in.
I do however accept MC’s evidence that BC stopped going to JS’s property as much in September or October 2020. There are numerous references in BC’s evidence that she wanted to avoid the accused or not be alone with him because of what he was doing to her.[226]
[226] T 56.4-7, T 71.1-11, T 161.19-22.
Taken in isolation, BC not wanting to go with her mother to JS’s house may not amount to much. However, when viewed in the context of the whole of the case it does circumstantially support BC’s evidence that she wanted to avoid the accused because of what he was doing to her.
JS’s evidence
The accused elected to give evidence. There was nothing about the accused’s demeanour when giving evidence that caused me any concern about his evidence.
However, there were a number of aspects to his evidence that I found implausible.
I do not accept JS’s evidence that he did not attend at Baynes’ block on 3 February 2020. The irresistible inference to be drawn from the text messages sent on 3 February 2020 is that BC and MC were in his company, that BC had been in JS’s car with him and in combination with BC and MC’s evidence that they were at Baynes’ block on 3 February 2020. The accused’s evidence that he went to work and went home and had no contact with BC or MC on that day is implausible.
I found the accused’s evidence that he delivered one of MC’s horses to Baynes’ block on 10 February by reference to a diary note he claimed related to her unconvincing.
I am satisfied that the diary entry dated 10 February was unrelated to MC. The accused’s evidence that the entry referred to MC by her maiden name, T, which she had not used since JS was seven years old was inherently unlikely. JS had known MC by her surname, C, for the whole of his adult life. I find his explanation unconvincing. In addition, his entry “had a look at a horse with [MC]” makes little sense. It seems unnecessary for him to make a note that he looked at a horse with MC – given that he used the diary for record keeping purposes such as when he sold a horse or where a horse was kept (noting that EMS kept a separate record herself). JS denied making any alterations to his diary in an attempt to cast doubt about whether he attended Baynes’ block on 3 February. To that end, I am sceptical of the diary entries kept by JS. I am of the view such entries do not undermine BC’s evidence or my assessment of JS’s unreliability of the day.
I am similarly sceptical about EMS’s evidence on this topic. EMS purported to have regard to a book she kept about the movement of JS’s horses in 2020 yet the same book also had records relating to when JS got his first pony twenty-three years before (in 1997). Given my finding that EMS had a general dislike for BC, she had a clear motivation to fabricate an account to assist her grandson and her unlikely evidence regarding the party (which I have rejected) I am not prepared to accept her evidence as to the records she claimed she kept in 2020. I find JS’s denial that BC was ever in his car while he was visiting at BC’s house unconvincing. Given his close relationship with BC (he Snap-chatted her almost daily), his denial is unlikely. He was clearly trying to minimise the contact he had with her.
JS’s evidence that he could not recall an occasion when ES, MC and BC were in the red utility is inconsistent with ES’s evidence which I accept.
I find the accused’s evidence about the party lacked credibility. His evidence that the bedroom door was wide open was unlikely and inconsistent with common sense.
I do not accept his account of putting the peas on a table as opposed to BC’s account that he put them on her head. If it occurred the way JS said, BC would not have known about the peas. They form part of her narrative because that is what occurred. It follows I do not accept the other defence witnesses on this topic.
Mr Jolly made a submission that the accused would be unlikely to have committed the offences because he was on bail at the time. Mr Jolly submitted that the accused would be ‘incredibly stupid or incredibly brazen’ to commit an offence while on bail as it would be a breach of his bail. As such, Mr Jolly submitted that the accused is less likely to commit an offence knowing that the ‘eyes of the law is [already] upon him’. I do not accept that submission. I find it incredibly speculative that the accused would be less likely to commit an offence on bail just because he is aware of the consequences that may be imposed. There was no evidence as to what JS was on bail for nor what the conditions of the bail agreement were.
I do not accept the accused as a credible or reliable witness. Specifically, I do not accept that his denials are reasonably possibly true.[227] I put his evidence to one side.
[227] Douglass v The Queen [2012] HCA 34, 5 [13] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J).
Findings
Baynes’ block
Taking into account BC’s detailed description of the events at Baynes’ block in combination with the evidence that supports aspects of her account as to that event I am satisfied beyond a reasonable doubt that the accused grabbed BC’s vagina in his car while driving to Baynes’ block, and while at Baynes’ block, he grabbed her buttocks as she leant into the horse float and then her vagina as BC went to walk off. I am satisfied beyond a reasonable doubt by grabbing BC’s vagina and buttocks he indecently assaulted BC.
In light of my findings about Baynes’ block I find that JS had a sexual attraction, or sexual interest, in BC and had acted on that attraction by grabbing her vagina and buttocks at Baynes’ block. It is therefore more likely that he would have continued to seek to fulfill the attraction by committing further sexual acts against BC.[228]
[228] R v Bauer (A Pseudonym) (2018) 266 CLR 56, 88 [60].
The basis for the admissibility of this evidence rests on the ‘very high probative value of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person’.[229]
[229] Ibid [51]. See also: HML v The Queen (2008) 235 CLR 334, 384 [109] (Hayne J).
For the reasons identified in R v Bauer at [51] and [60] and HML v The Queen at [109], I am satisfied that the probative value of the evidence outweighs any prejudicial effect, and the evidence has strong probative value having regard to the particular issue arising in this case. Namely, whether the accused committed the acts the subject of the charge.
I am satisfied that the permissible use is, and can be, kept separate and distinct from the impermissible use. I have not reasoned that simply because he committed another offence against BC, he is therefore a bad person and is more likely to have committed the offence on that account.
Landcruiser incident at BC’s property
Taking into account BC’s detailed account of what occurred in the accused’s white Landcruiser at her property, the understated way she described what happened, and the accused’s sexual attraction, and specifically how that had manifested itself whereby the accused would opportunistically and brazenly grope her, I am satisfied beyond a reasonable doubt that the accused grabbed BC’s breast while driving in a paddock at BC’s house.
I am satisfied beyond a reasonable doubt that grabbing BC’s breast amounts to an indecent assault.
Red Utility incident
I am satisfied beyond any reasonable doubt that the accused grabbed BC’s vagina and breast while she was inside his red utility while they were towing a trailer with ES on the back. In coming to that view, I have relied on BC’s compelling and detailed account, the circumstantial support that ES provides as to the occasion on which the offending occurred and the accused’s sexual attraction to her which he had already acted on.
I am satisfied beyond a reasonable doubt that grabbing BC’s vagina and breast, on that occasion, amounts to an indecent assault.
The party
Considering BC’s evidence, including the account she gave about what happened in JS’s bedroom while she was trying to sleep, and the Snapchat messages she received later that night and the next day. I accept her evidence. I am reinforced in that finding by MC’s evidence which circumstantially supports parts of what she says as to the occasion and the opportunity to offend. Finally, her evidence is supported by the evidence that establishes the accused had a sexual attraction towards her which he acted upon. More specifically, that his sexual attraction had manifested itself in the accused grabbing the accused’s vagina and breast while people were in close proximity to them and there was a high risk of being caught.
I am satisfied beyond a reasonable doubt that the accused grabbed and squeezed BC’s buttocks on the night of the party in the way she described.
I am satisfied beyond a reasonable doubt that grabbing and squeezing BC’s buttocks on that occasion amounts to an indecent assault.
Relationship
I am satisfied that the accused had a relationship with BC when he committed more than two unlawful sexual acts. I reject the defence argument that the prosecution must prove that the accused maintained the relationship for the purpose of committing the unlawful sexual acts.
The prosecution must prove the ‘maintenance of a relationship, which need not be sexual one, in which (in the sense of in the course of which) an adult engages in more than two unlawful sexual acts’.[230] In this case on the undisputed evidence there was relationship between JS and BC. There is no doubt that JS knowingly maintained that relationship.[231] It was his evidence that he sent her Snapchats almost every day. I find beyond a reasonable doubt that the accused maintained an unlawful sexual relationship with BC.
[230] R v M, DV (2019) 133 SASR 470, 471 [1] (Kourakis CJ).
[231] R v Mann (2020) 135 SASR 457, 464 [20], 467 [35] (Kourakis CJ).
Verdict
I find the accused guilty of maintaining an unlawful sexual relationship with a child. Counts 2 -8 were charged in the alternative – given my verdict as to count 1, no other verdicts are required.
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