R v Kent & Johnson
[2021] SADC 154
•21 December 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENT & JOHNSON
[2021] SADC 154
Reasons for the Verdicts of his Honour Judge Kimber
21 December 2021
CRIMINAL LAW
Defendants charged with Indecent Assault, Unlawful Sexual Intercourse and Possessing Child Exploitation Material.
One complainant. Evidence of propensity.
Ms Johnson guilty of counts 4, 5 and 8, but not guilty of counts 1, 3 and 9.
Mr Kent guilty of counts 6 and 7, but not guilty of count 2.
Evidence Act, 1929 (SA) s 34P, referred to.
R v KENT & JOHNSON
[2021] SADC 154Introduction
In 2019 KIP (the complainant) was 16 years of age. In the first half of that year she had a relationship with Brandon Kent (Brandon). Nigel Kent (Mr Kent) is Brandon’s father. In 2019, Melissa Johnson (Ms Johnson) was Mr Kent’s partner. Mr Kent and Ms Johnson lived together.
Mr Kent and Ms Johnson are separately charged with offences involving the complainant. The alleged offences are:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Nancy Johnson on or about the 2nd day of February 2019 at Davoren Park, indecently assaulted KIP by touching her breasts.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Indecent Assault. (Ibid).
Particulars of Offence
Nigel John Kent on or about the 2nd day of February 2019 at Davoren Park, indecently assaulted KIP by touching her breasts.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Nancy Johnson on the 19th day of March 2019 at Davoren Park, had sexual intercourse with KIP, a person under the age of 17 years, by inserting a finger into KIP’s vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Melissa Nancy Johnson on the 19th day of March 2019 at Davoren Park, had sexual intercourse with KIP, a person under the age of 17 years, by causing KIP to perform an act of cunnilingus upon her.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Melissa Nancy Johnson on the 19th day of March 2019 at Davoren Park, had sexual intercourse with KIP, a person under the age of 17 years, by causing KIP to insert a finger into Melissa Nancy Johnson’s vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Nigel John Kent between the 1st day of April 2019 and the 31st day of May 2019 at Davoren Park, had sexual intercourse with KIP, a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
Nigel John Kent on the 12th day of April 2019 at Davoren Park, had sexual intercourse with KIP, a person under the age of 17 years, by inserting his penis into her vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Eighth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Nancy Johnson on the 12th day of April 2019 at Davoren Park, indecently assaulted KIP by kissing her on the mouth.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Ninth Count
Statement of Offence
Possessing Child Exploitation Material. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Melissa Nancy Johnson on the 17th day of September 2019 at Davoren Park possessed child exploitation material, knowing of its pornographic nature.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Mr Kent and Ms Johnson both elected for trial by Judge alone. These are the reasons for my verdicts.
Elements
All elements of a count must be established beyond a reasonable doubt before there can be a verdict of guilty.
Indecent Assault has the following elements:
1. The act the subject of the count occurred;
2. The complainant did not consent to the act;
3. The act involved a deliberate application of force;
4. The act was indecent (i.e. ‑ had a sexual connotation).
As to the second element, s 57(2) of the CLCA provides no person under the age of 17 years is deemed capable of consenting to an indecent assault. However, s 57(3) provides:
(3)Where the person is between the age of sixteen and seventeen years, his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the indecent assault—
(a) he or she was under the age of seventeen years; or
(b)he or she believed on reasonable grounds that the person was of or above the age of seventeen years.
Unlawful Sexual Intercourse has the following elements:
1. The act the subject of the count occurred;
2. The act was an act of sexual intercourse;
3. The complainant was under the age of 17 years.
Sexual intercourse is defined in s 5 of the Criminal Law Consolidation Act, 1935 (CLCA) in the following way:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a)penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or
(b)fellatio; or
(c)cunnilingus,
and includes a continuation of such activity;
Section 49(4) of the CLCA provides:
(4) It shall be a defence to a charge under subsection (3) to prove that—
(a)the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b) the accused—
(i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
The offence of possessing child exploitation material has the following elements:
1. The material the subject of the count is child exploitation material;
2. Ms Johnson was in possession of the child exploitation material;
3.At the time of possession, Ms Johnson knew of the pornographic nature of the material (i.e. ‑ knew it was intended or apparently intended to excite or gratify a sexual interest).
The real issues
As set out above, Ms Johnson is charged with counts 1, 3-5, 8 and 9 and Mr Kent is charged with counts 2, 6 and 7.
The real issues in counts 1 and 8 are whether the act the subject of the count took place and if it did, whether the act was both deliberate and indecent. If those matters are proven, the ‘defence’ in s 57(3) of the CLCA must be considered. The real issue in counts 3‑5 inclusive is whether the act the subject of the count took place. If that is proven, the ‘defence’ in s 49(4) of the CLCA must be considered. The real issue in count 9 is the element of possession.
The real issue in counts 2, 6 and 7 are whether the act the subject of the count took place. If that is established, there is no dispute the remaining elements have been proven. In count 2, Mr Kent has not sought to establish the ‘defence’ in s 57(3) of the CLCA. In counts 6 and 7, Mr Kent has not sought to establish the ‘defence’ in s 49(4) of the CLCA.
Basic legal directions
It is not necessary for me to direct myself in the same way a jury would be directed.
Each count must be given separate consideration. The burden of proof is upon the prosecution. Before any count can be established, each element must be established beyond a reasonable doubt.
Neither Mr Kent, nor Ms Johnson, gave evidence. The exercise of the right to silence is not evidence. I have not drawn any adverse inference because of the exercise of that right. There may be many reasons why that right was exercised. I have not speculated about that, nor about any other matter.
Ms Johnson was arrested on 3 June 2020. She participated in an audio-visual record of interview.[1] Ms Johnson’s interview is only admissible with respect to her. The evidence of that interview is what I see and hear in the audio-visual record. While the transcript of that interview is an exhibit,[2] the transcript is only an aid.
[1] P16.
[2] P17.
An aspect of the prosecution case is video recordings of sexual activity involving Ms Johnson and Mr Kent. Later in these reasons I will outline how I have, and have not, used those videos. What the prosecution says can be heard on all but one of those videos has been transcribed and the transcripts are an exhibit. Again, the transcripts are only an aid. The evidence of those videos is what I can see and hear.
Complaint – s 34M of the Evidence Act, 1929 (EA)
The last alleged sexual act between the complainant and Mr Kent and between the complainant and Ms Johnson occurred on 12 April 2019. On the evidence, the complainant did not tell anyone about any sexual conduct involving either defendant until 17 August 2019. On that day, she spoke to a woman she had known for many years, Ms Goldberg. Ms Goldberg was a close friend of the complainant’s mother. The essence of the complainant’s evidence about what she told Ms Goldberg was:[3]
A.I didn't go into great detail, I just told her that something had happened with Brandon and his family, that they had done with me while I was intoxicated and that I felt not okay because I didn't want it to have happened, I didn't want to have done it at all and I felt sick and scared and just wanted to not be there anymore.
[3] T69.37-70.4.
For her part, Ms Goldberg’s evidence included:[4]
[4] T230.24-231.24.
A.She needed to talk to someone. She didn't know who to confide in, but had to get it off her chest that something had happened.
Q.After she said that to you, what, if anything, did you say.
A.I told her she could talk to me, that I loved her, that I would be there for her and she could talk to me about whatever she needed to.
Q.Did (the complainant) say anything else to you after you said that.
A.Yes. She then started to open up to me about what had happened.
Q.As best as you can remember can you please tell his Honour what (the complainant) said to you when she started to open up.
A.(The complainant) told me that while she was with Brandon she had been staying at his father's house and that she had had sex, she had been having sex with Brandon and that I was a bit unclear whether Brandon or the father had forced, but she had had sex with his father and that she was unsure if she was drugged, because she couldn't remember everything, all the details, and was afraid.
Q.Did you say 'unsure if she was drunk' or 'unsure if she was drugged'.
A.Drugged, because she couldn't remember the details.
Q.Did (the complainant) say anything else to you about any of that in that phone call.
A.Yes, she also said that she had been shown a video that had been recorded that she knew of and because she couldn't remember everything that she had been showed the recording.
Q.Did she say to you what the recording was of.
A.Of Brandon's father having sex with her.
Q.Was anything else said to you that you can recall by (the complainant) during that conversation.
A.Just that she was afraid and didn't know who to talk to and didn't know what to do and she was very emotional about it. I just kept reassuring her I loved her and that I'd help her.
As will be obvious, the evidence of the complainant and Ms Goldberg as to what was said differed in key respects. Ms Goldberg told me Brandon’s father was specifically identified, but Ms Johnson was not. This is despite the complainant giving evidence of sexual acts with Ms Johnson. Ms Goldberg said mention was made of a recording of Brandon’s father having sex with the complainant. The complainant did not give any such evidence. The only recording she mentioned was of sexual activity with Ms Johnson, albeit, as I will later explain, that sexual activity was in the presence of Mr Kent.
Where there are differences, I prefer and accept the evidence of Ms Goldberg. I was impressed with her evidence. Ms Goldberg is a more mature woman who was recalling a conversation with a child. In contrast, I am satisfied the complainant was very emotional at the time of the conversation. Her emotional state may have resulted in her believing she had expressed herself in a way she did not. Further, I am satisfied the complainant’s memory is imperfect about when the conversation occurred. The complainant’s evidence was the conversation was in the early hours of the morning.[5] I accept the evidence of Ms Goldberg that it was at night, after about 9.00pm.[6] Ms Goldberg’s evidence as to the timing of the conversation is supported by messages kept by Ms Goldberg.[7]
[5] T69.30.
[6] T233.32.
[7] T232, P5.
The complaint to Ms Goldberg is not conduct consistent with Ms Johnson having participated in any sexual act with the complainant. I will treat it as conduct inconsistent with sexual acts with Ms Johnson and, in that way, relevant to both the complainant’s credibility and reliability. That said, the significance of the inconsistent conduct must be evaluated bearing in mind there is no dispute by either defendant there was sexual activity involving the complainant and Ms Johnson before this complaint. As I will come to, in her interview with the police, I am satisfied that Ms Johnson admitted the acts the subject of counts 4 and 5 occurred, albeit in circumstances different to the evidence of the complainant. While Ms Johnson’s interview is not evidence with respect to Mr Kent, sexual activity between Ms Johnson and the complainant can be seen in the three video files created on 19 March 2019 and, as I will later find, Mr Kent made those recordings.[8] Those three video files are evidence with respect to both defendants.
[8] P11.
There may be varied reasons why the complainant spoke to Ms Goldberg and did so when she did. The complaint to Ms Goldberg about Mr Kent is only admitted to inform me how an allegation of sexual conduct between her and Mr Kent first came to light and as evidence of the degree of consistency of conduct of the complainant. It is not evidence of the truth of what the complainant told Ms Goldberg. It remains for me to determine the significance (if any) of the complaint to Ms Goldberg.
I am satisfied the complaint to Ms Goldberg is conduct consistent with Mr Kent having engaged in some sexual activity with the complainant. However, the complainant’s evidence is that Mr Kent performed at least three separate sexual acts on three different days (i.e. ‑ counts 2, 6 and 7). In contrast, the complaint is general. The complainant did not refer to more than one act, nor specify the sexual act, or acts. Given Ms Goldberg’s evidence that ‘sexual intercourse’ was mentioned, I am satisfied there was no mention of the act the subject of count 2.
While the evidence of Ms Goldberg explains how an allegation involving Mr Kent first came to light and is conduct consistent with some sexual activity with Mr Kent having taken place, I am not satisfied Ms Goldberg’s evidence assists the prosecution case in any other way.
General background
I am satisfied of the following matters of background.
The complainant was born on 17 October 2002.[9] At all relevant times, she was 16 years of age. As set out above, Mr Kent had a son, Brandon. Brandon passed away on 10 June 2021.[10] The complainant and Brandon met in early January 2019. They commenced a relationship almost immediately, certainly before the end of that month.[11] On 2 February 2019, the complainant and Brandon attended 7 Searle Road, Davoren Park (7 Searle Road) to celebrate Mr Kent’s birthday. This was the first time the complainant met Mr Kent and Ms Johnson.[12]
[9] T23.
[10] T24.
[11] T145.
[12] T25.
As at 2 February 2019, Mr Kent, Ms Johnson and Brandon lived at 7 Searle Road. Mr Kent and Ms Johnson lived there throughout all contact with the complainant. They were in a sexual relationship. Another adult male also lived at that house, a man referred to as ‘Uncle Merv’.[13] Brandon and Uncle Merv had their own bedrooms. There was a third bedroom used by the two defendants.[14]
[13] T25.
[14] T241.
On 2 February 2019, the complainant drank heavily and consumed cannabis. She became intoxicated.[15] At one point, with the aim of reducing the effects of what she had consumed, the complainant had a bath.[16] After the bath, she was provided with a dress to wear in place of the clothing she had been wearing before the bath. That dress was provided by Ms Johnson. It was low cut and tight, with thin straps on each of the shoulders.[17]
[15] T156.
[16] T176.
[17] T34.
Late that night, and after the bath and change of clothes, the complainant’s older sister (AP) came to the house with a friend. AP, her friend and the complainant later left 7 Searle Road at approximately 1.00am on 3 February 2019. They went to AP’s home. The complainant was still intoxicated. After a time, the complainant left AP’s home and walked back to 7 Searle Road.
From this point, the complainant was a regular visitor to 7 Searle Road.[18] The days she attended included, but were not necessarily limited to, some Fridays through to the Sunday.[19] During the period she was attending 7 Searle Road, the complainant was attending school. At the beginning of the 2019 school year, she attended St Columba College, but only for a very short period.[20] The complainant then attended Northern Adelaide Senior College (NASC). She was in the ‘FLO Program’ and in Year 11.[21] She did not attend school every day. She was only required to attend when her classes were scheduled.[22] Her class load was more limited than other students in Year 11 as she was in the ‘FLO Program’. She was doing Year 11 over more than one year.[23] Attendance at NASC did not involve wearing a school uniform.[24]
[18] T42.
[19] T51.
[20] T87.
[21] T83.
[22] T83.
[23] T183.
[24] T146.
The complainant was at 7 Searle Road on 19 March 2019. That night the complainant engaged in sexual activity with Ms Johnson. This occurred on a couch in the loungeroom.[25] The complainant was intoxicated. The sexual activity with Ms Johnson was filmed between about 9.03pm and 9.22pm. That footage was stored on an SD card in three separate video files.[26] The SD card was found by police on 17 September 2019 in the bedroom shared by Mr Kent and Ms Johnson.[27] The three video files and five photographs of the complainant are the child exploitation material the subject of count 9. The SD card containing the child exploitation material was one of five SD cards found in that bedroom on 17 September 2019.[28] All five SD cards contained intimate images and/or videos of Mr Kent and/or Ms Johnson.[29]
[25] P9 NK1.9.
[26] P11.
[27] T273.
[28] T273.
[29] P8 and T275.
One of the complainant’s visits to 7 Searle Road was on 12 April 2019.[30] Also present on that occasion were at least Brandon, Mr Kent and Ms Johnson. The complainant again consumed alcohol to excess as well as at least cannabis. She became intoxicated. She may also have had a panic attack, or similar.[31] Before 2 February 2019, the complainant understood she had been diagnosed with anxiety and depression. She was taking prescription medication.[32] Because of the complainant’s state, AP and an ambulance were called at about 9.30pm.[33] During the call to the ambulance, Mr Kent stated the complainant was 16 years of age.[34] What Mr Kent said in that call is only admissible with respect to him.
[30] T217.
[31] T116.
[32] T43.
[33] P21.
[34] P19.
The complainant was taken by ambulance to the Lyell McEwen Hospital. She was discharged at about 7.20am on 13 April 2019.[35] Having been discharged she went to 7 Searle Road, but only briefly.[36] There was no sexual activity with either Mr Kent or Ms Johnson after 12 April 2019. The complainant and Brandon continued their sexual relationship for about two or three months, including for a period after the complainant regarded them as having broken up.
[35] P21 and T62.
[36] T62-63.
The complainant’s first contact with the police about any matter relevant to this trial was on 17 August 2019.[37]
[37] T152.
During the search on 17 September 2019, in addition to the five SD cards, police also found a mobile phone in the possession of Mr Kent. It contained numerous photographs of Ms Johnson exposing her breasts. Police also located two other mobile phones. One contained photographs of Ms Johnson exposing her breasts and engaged in sexual acts. The other phone had a video of Mr Kent licking Ms Johnson’s nipples and numerous videos of Mr Kent engaging in sex acts.[38]
[38] P8.
Intoxication
There is no dispute that at the time of each of the acts the subject of counts 1 to 8, the complainant had consumed alcohol and cannabis and perhaps, at least on some occasions, methylamphetamine. Alcohol and other drugs can lower inhibitions and impair memory. These are matters relevant to the evaluation of the evidence of the complainant.
I am satisfied both defendants consumed at least alcohol on 2 February 2019, 19 March 2019 and 12 April 2019 and that both were intoxicated to some degree. It is likely they consumed a drug, or drugs, other than alcohol on at least some, if not all, occasions the subject of the alleged offences. The use of alcohol, even to excess, is not ‘discreditable conduct’ pursuant to section 34P of the EA. The use of other drugs is ‘discreditable conduct’ but is not to be used to reason either defendant is a bad person and for that reason more likely to be guilty, nor is to be used to reason either defendant has a relevant propensity. I have only used the consumption of alcohol and any other drug by the defendants in two ways. First, for both defendants, in considering whether their inhibitions may have been lowered. This includes both at the time of alleged sexual activity with, or in the presence of, the complainant and at the time of videos which record sexual interactions between Ms Johnson and Mr Kent in the absence of the complainant. Second, with respect to Ms Johnson, in considering whether it might have impacted adversely upon her memory of events as set out in her interview with police. I am satisfied both uses of the evidence have a probative value which substantially outweighs any prejudicial effect (s 34P(3)(a) EA) and can be kept separate and distinct from any other use (s 34P(4)) EA).
On the evidence, both defendants must have permitted the complainant and Brandon to use alcohol and other drugs in their home. I have not used that aspect of the defendants’ conduct in any way.
Some general observations about the evidence of the complainant
Both the honesty and reliability of the complainant are in issue.
There was nothing in the way the complainant gave evidence which caused me to doubt her honesty or reliability. She gave evidence in a matter of fact, straightforward way. I was not left with any doubt the complainant believed that each of the alleged sexual acts she related in her evidence had taken place.
There are reasons why it is necessary to approach the complainant’s evidence of sexual acts with, or in the presence of, the defendants, and the circumstances surrounding those alleged acts, with caution. First, the complainant was intoxicated at the time of all alleged sexual acts. As I have said, intoxication can impact adversely upon the reliability of memory. Second, the complainant admitted her memory of some occasions of alleged sexual acts was incomplete.[39]
[39] T52-54, 58-62, 163.
Speaking generally, it might be one thing to be intoxicated, it might be another to inaccurately recall, or imagine, a sexual act. However, in this case, there is a clear illustration of how intoxication can impact this complainant’s memory. For reasons I will later give, I am satisfied beyond a reasonable doubt the complainant engaged in the acts the subject of counts 4 and 5 with Ms Johnson. The sexual activity which included those two acts occurred over at least about twenty minutes and was, at least in part, in the presence of Mr Kent. Despite those things, the next day the complainant did not recall that incident until shown video footage of at least part of the sexual activity with Ms Johnson.[40] The only explanation for that lack of recollection is intoxication. Because of the complainant’s intoxication at the time of all alleged sexual acts, there is a real risk of her evidence of the occurrence of an alleged sexual act being unreliable. There is a real risk she has become convinced something took place when it did not.
[40] T163.
Further, the complainant made more than one prior inconsistent statement about key events. Prior inconsistent statements are relevant to both honesty and reliability. I will not repeat the matters relevant to the complaint to Ms Goldberg. As already outlined, no mention was made of sexual activity with Ms Johnson. That said, the complainant did not say there had been no sexual activity with Ms Johnson. However, I will treat that omission as a prior inconsistent statement. In her affidavit dated 18 August 2019, the complainant said she could not recall Ms Johnson doing anything once she sat on the couch.[41] In her affidavit dated 27 May 2020, the complainant said she had no memory of what Ms Johnson had done.[42] These inconsistencies are significant. The complainant’s evidence is that she had her memory refreshed about the alleged sexual acts on 19 March 2019 as a result of seeing video footage the next day. The complainant also gave evidence of the alleged sexual acts the subject of counts 1 and 8. In her statement on 18 August 2019, no mention was made of the party on 2 February 2019 despite that being a first occasion of alleged sexual acts by both defendants. The complainant made no mention in affidavits on 18 August 2019, 27 May 2020 and 18 May 2021 of consuming cannabis at the February party. All of these inconsistencies are significant.
[41] T165-6.
[42] T160-161.
In addition, in her affidavit dated 18 August 2019 the complainant said the first time she was drunk was the occasion the subject of counts 3-5 inclusive. That was not true, she had been intoxicated on 2 February 2019.[43]
[43] T154-155.
The complainant gave explanations for some of these inconsistencies. In particular, why she revealed different behaviour over time. For example:[44]
Q.Do you agree, Ms Potter, that in that statement that you gave on 27 May 2020, that you provide an account of the party at Nigel's on 2 February 2019 but you don't make any mention of Mel having touched your breasts at that time.
A.Each time that I gave a statement I became more confident in what I was saying and I felt more safe and protected. So the reason why I went back and did other statements is because I then wanted to say more about what happened instead of just not much at all, so I would go back and give more information because I felt more comfortable in saying so.
….
Q.- to the police regarding Mel. Is there any reason why you would feel comfortable disclosing that incident but not being touched on the breast.
A.Because of the fact that I felt if I talked about all of them then I would be shamed for what had happened and so, yes, I started off with the big stuff because I wanted to get that out of the way and even though I had to repeat it I then spoke about other times that it happened.
[44] T160.38 – 161.11, 161.27-161.35.
I am satisfied the evidence just detailed was honest. When different sexual acts have taken place over a long period, it is not surprising a young person will not detail every act. It is not something that necessarily reflects a lack of honesty or reliability. However, in this case there is the combination of incomplete memory on each occasion of an alleged sexual act, inconsistent statements and inconsistent conduct.
There are further reasons why particular care is needed in evaluating the complainant’s evidence.
The complainant’s evidence is inconsistent with other evidence I am unable to reject. AP told me that on the occasion of her visit to 7 Searle Road on 2 February 2019, she saw Ms Johnson touch the complainant on the breasts. The complainant gave no evidence of such conduct occurring in the presence of her sister. While I am satisfied that act occurred, as the evidence of the complainant’s sister impressed me, it is further confirmation of the imperfection of the memory of the complainant when intoxicated.
Further, I do not accept the evidence of the complainant as to why she did not say anything when Mr Kent touched her breasts on the occasion the subject of count 2. The complainant told me:[45]
Q.You said you were afraid of Nigel, why were you afraid of Nigel.
A.Nigel had spoken about his past and he'd also shown a lot of temper. He used to smash glasses on walls when he was angry or just throw things and one time he threw a glass at Brandon's head and I had to pick out the pieces of glass from his skull.
Q.Yes, but was that before he touched your breast on this first visit to the house.
A.He had shown a lot of anger when I'd first met him, yes. He was throwing around things, yelling at people and, of course, talking about his past.
[45] T36.25-36.
The complainant later conceded that any incident involving Brandon and glass had been ‘forward in time’. I take this to mean after her first meeting Mr Kent. If such an event occurred, I am satisfied it was a subsequent occasion and the complainant was reconstructing why she had not said anything. I have found myself unable to determine whether that reconstruction was deliberate or unconscious. What matters is that any example of reconstructing events must be taken into account in evaluating the complainant’s honesty and reliability as to all alleged sexual acts with both defendants.
In light of the above matters, particular care is needed before accepting the complainant’s evidence with respect to any sexual act the subject of a charge.
At the same time, for reasons I will later give, the complainant’s evidence also falls to be evaluated bearing in mind I am satisfied that both Ms Johnson and Mr Kent had a sexual interest in the complainant and a willingness to act on that interest. For reasons I will also give, I am satisfied the defendants had a sexual interest in Ms Johnson engaging in sexual activity with Brandon. That latter interest is relevant to whether counts 7 and 8 occurred.
On the evidence, the last occasion of alleged sexual acts including the complainant and the defendants was on 12 April 2019. After that date, the complainant continued her relationship with Brandon and may have returned to 7 Searle Road. Neither the continuation of the relationship with Brandon, nor that the complainant may have returned to 7 Searle Road without further sexual acts occurring, cause me to doubt the complainant’s evidence of sexual acts with either defendant. The complainant was a child in a relationship with Brandon. Were it not for her age, I would find she consented to all sexual acts with Mr Kent and Ms Johnson. In all of the circumstances, it is not surprising that she may have returned to 7 Searle Road after 12 April 2019 and before speaking to Ms Goldberg. That neither defendant attempted to offend again is not inconsistent with the complainant’s evidence. It is not her evidence there was sexual activity with the defendants every time she visited before 12 April 2019.
Counts 3 to 5
I turn first to these counts as they relate to an occasion of sexual activity which was filmed. The occasion is, at least in part, within three video files which are within an SD card labelled by the police as NK1.4.[46]
[46] P11.
The alleged act the subject of count 3 is Ms Johnson penetrating the vagina of the complainant with her fingers during the alleged sexual activity the subject of these three counts. That act cannot be seen in any of the three video files. The only evidence of the act the subject of count 3 is the evidence of the complainant.[47] That the alleged act cannot be seen in the video files does not mean it did not occur. The three files are not continuous. It is obvious that sexual activity which took place does not appear in the three files. When the first file commences, sexual activity has already commenced. There is a break of about five minutes between the end of the first file and the commencement of the second. There is then a break of about 10 minutes between the end of the second file and the commencement of the third. Sexual activity is taking place when the third video file ends.
[47] T145.
As for the act the subject of count 3, the complainant told me Ms Johnson placed her fingers inside her labia majora, over the underwear she was wearing.[48] The complainant was ‘extremely intoxicated’[49] and not ‘100% with it’.[50] The complainant told me the next morning Mr Kent showed her about 30 seconds of video which was ‘of what had happened that night between Mel and I on the couch’.[51] Before viewing the video the next morning, the complainant did not recall the incident.[52] The complainant also said she did not have a good memory of the incident and that her memory had improved over time.[53]
[48] T46.
[49] T45.
[50] T49.
[51] T49.
[52] T168.
[53] T164.
As set out above, the complaint has made prior inconsistent statements, including about this specific incident. She admitted when she gave a statement to the police on 18 August 2019, she said that from the point she sat next to Ms Johnson on the couch she did not remember anything else that happened.[54] In a statement on 27 May 2020, the complainant said: ‘I don’t remember if Mel did anything to me ….’[55]. It was only in 2021 that she recalled the conduct the subject of count 3.[56]
[54] T165-166.
[55] T165.
[56] T161.
Having paid attention to the way the complainant gave her evidence, and having considered the whole of the evidence, I am satisfied the complainant genuinely believes the act the subject of count 3 took place.
That such an act occurred is consistent with the level of intimacy which can be seen in the three video files, the duration of that intimacy, as I will come to, my satisfaction counts 4 and 5 took place and that Ms Johnson had a sexual interest in the complainant and was willing to act on that interest. However, given the complainant’s intoxication; that she might have reconstructed some aspects of her evidence; her failure to recall the incident the next day until shown a video; the prior inconsistent statements set out earlier and, as I will come to later, that I do not find counts 1 and 2 proved beyond a reasonable doubt, I am not satisfied beyond a reasonable doubt Ms Johnson committed the act the subject of count 3.
I find Ms Johnson not guilty of count 3.
My failure to accept the evidence of the complainant beyond a reasonable doubt is relevant to the reliability of the balance of the complainant’s evidence and I will keep that in mind.
The act the subject of count 4 is the complainant performing cunnilingus upon Ms Johnson. The act the subject of count 5 is the complainant placing a finger into Ms Johnson’s vagina.
The evidence I will consider in evaluating counts 4 and 5 is the evidence of the complainant, the three video files which show the incident on the couch and Ms Johnson’s interview with the police. It is unnecessary to decide whether the complainant’s evidence and the video files together prove either act beyond a reasonable doubt. This is because I am satisfied Ms Johnson admitted both acts in her interview with the police. Ms Johnson told the police there was an occasion which was filmed when she was on the couch. Ms Johnson said the complainant performed cunnilingus on her (‘licking me out’) and the complainant had penetrated her with a finger (‘fingering me out and stuff’).[57] I am satisfied beyond a reasonable doubt Ms Johnson was speaking of the same occasion shown in the three video files and which were the subject of the complainant’s evidence. I am also satisfied Ms Johnson was both honest and reliable as to the complainant performing cunnilingus upon her and penetrating her vagina with at least one finger.
[57] P16.
Based upon the three aspects of the evidence just mentioned, I am satisfied beyond a reasonable doubt the acts the subject of counts 4 and 5 occurred.
The next issue is whether Ms Johnson caused those acts to occur, or at least permitted them to continue once commenced. If she did at least one of those things, she will have engaged in the sexual intercourse the subject of the count. This must be separately considered in each of counts 4 and 5. Ms Johnson told the police she had asked the complainant to stop on about three occasions and that Mr Kent said the same.[58]
[58] P16.
Having viewed the three video files, recognising they are not continuous and do not show when the incident commenced nor when it ended, I reject Ms Johnson did not willingly participate in the acts the subject of both counts 4 and 5. Ms Johnson can be seen kissing the complainant during the footage. At no point during the footage does she resist, nor attempt to move away. At the commencement of the first video file, Ms Johnson is dressed from the waist down. In the two later video files, the clothing on the lower part of her body has been removed. Further, Ms Johnson’s breasts are exposed, at least partially, and no effort is made to cover them during the footage. Given the above matters and the duration of the intimacy shown in the three video files, I am satisfied beyond a reasonable doubt Ms Johnson was a willing participant in both acts.
Section 49(4) of the CLCA
Counts 4 and 5 occurred on 19 March 2019. This is established by the dates the three video files were created.[59] The complainant was 16 years of age. Ms Johnson will be guilty of counts 4 and 5 unless she establishes, on the balance of probabilities, the ‘defence’ in s 49(4) of the CLCA. As set out earlier, s 49(4) provides:
(4)It shall be a defence to a charge under subsection (3) to prove that—
(a)the person with whom the accused is alleged to have had sexual intercourse was, on the date on which the offence is alleged to have been committed, of or above the age of sixteen years; and
(b)the accused—
(i)was, on the date on which the offence is alleged to have been committed, under the age of seventeen years; or
(ii)believed on reasonable grounds that the person with whom he is alleged to have had sexual intercourse was of or above the age of seventeen years.
[59] P11.
The issue is whether Ms Johnson has proved the matters in s 49(4)(b)(ii).
Ms Johnson did not give evidence. An appropriate starting point is her interview with the police. In that interview, Ms Johnson said:[60]
[60] Exhibit P17. Pg 13.32-14.4.
JH So, and how old’s (the complainant).
MJ As far as I know she was 17.
JHok. so was that – so when you – when she was coming around she was going out with Brandon.
MJ Yes
JH Yep. And she was 17 and he was 17 as far as you’re aware.
MJ Yes, that’s right, as far as I was aware he was 17 and she was 17.
JH You said before that she was going to school. What school was she going to.
MJ I think it was the Elizabeth TAFE, across the road from here.
JHOK. and what was she doing, did you have a conversation with her about that or anything like that.
MJOh I don’t know, No I didn’t ask her.
In her evidence, the complainant told me:[61]
[61] T65.8-21.
Q.Did you ever speak to either Nigel or Melissa Kent about the fact that you were at school.
A.Yes, a few times.
Q.Did you ever speak to Nigel or Melissa Kent (sic) about your age.
A.Yes.
Q.Once or more than once.
A.Multiple times.
Q.At this time you were 16 years old, that's right.
A.Yes.
Q.Is that how old you said you were.
A.Yes.
Q.Or did you say something else.
A.I said I was 16 years old.
Given the question ‘Did you ever speak to Nigel or Melissa Kent about your age’, this evidence leaves uncertain whether the complainant told Ms Johnson she was 16 years of age.
The complainant also said that on an occasion before the incident on the couch, she had referred to her age. She told me:[62]
[62] T66.20-67.7.
Q.Can you recall when you next mentioned your age after that day to either Ms Johnson or Mr Kent.
A.I believe it was another time when they were talking about buying alcohol from the liquor store and how I couldn't go in because I wasn't 18.
Q.When was that in relation to the sequence of the sexual acts you've told me about.
A.It had been multiple times during each act when they would go and buy alcohol.
Q.No, but when did you talk about your age in the context of going to buy alcohol, was this after the occasion of the bath.
A.Yes.
Q.And so when was it in relation to the occasion on the couch with Ms Johnson or the occasion of the chocolate bar, or the occasion on the back lawn, where in the sequence was the second occasion about age.
A.I believe it was before the couch because when - I believe it was on that day we had gone to get the alcohol and I couldn't get any obviously because I was under the age of 18 and so I had to wait outside the liquor store with Brandon.
Q.Did you talk to anyone about that.
A.Yes.
Q.Who did you talk to.
A.Nigel and Mel.
The complainant later conceded the reason she did not go into the shop when alcohol was purchased was because Brandon was not permitted to enter as he had stolen from the shop.[63] In any event, the evidence extracted immediately above goes no further than the complainant saying she was not 18 years of age. The relevant issue is whether Ms Johnson believed on reasonable grounds the complainant was 17 years of age. The evidence extracted immediately above is not inconsistent with that.
[63] T177.
In this case, s 49(4) of the CLCA requires attention to two matters. First, did Ms Johnson believe the complainant was at least 17 years of age (‘the first question’?). Second, if she did hold that belief, was it held on reasonable grounds (‘the second question’?).
For Ms Johnson to establish on the balance of probabilities she believed the complainant to be 17 years of age, there does not have to be evidence supporting that belief beyond what Ms Johnson told police. Nonetheless, there was no evidence the complainant told Ms Johnson, or anyone else, what Ms Johnson claimed in her interview (i.e. ‑ that she was 17 years of age). While the complainant’s evidence permits of uncertainty as to whether she told Ms Johnson her age (as opposed to just telling Mr Kent), she said the only age she mentioned was 16 years of age[64] and that she never stated anything but her true age.[65] Other than that she was drinking and taking drugs, there is no particular reason why the complainant might have said she was 17 years of age, nor why anyone else might have said that to Ms Johnson. As a matter of common sense, particularly given she was drinking and consuming other drugs, if minded to mislead others, it is more likely the complainant might say she was 18 years of age. I will not overlook the complainant made inconsistent statements on important matters, that her memory of sexual acts which occurred in the presence of Ms Johnson is imperfect and that there is a risk of reconstruction. However, given the complainant’s evidence, the only evidence Ms Johnson believed the complainant was 17 years of age comes from Ms Johnson’s interview.
[64] T65.
[65] T158.
Ms Johnson did not say in her interview she had been told the age of 17 years by anyone. That said, if minded to lie, it may not be the most obvious lie to tell. Given Ms Johnson must have known the complainant was consuming alcohol and other drugs, a more likely lie would be to claim she thought the complaint was at least 18 years of age.
I have rejected Ms Johnson’s account for the incident on the couch. I am satisfied she gave a deliberately false account in her interview for how that incident occurred. My rejection of that aspect of the interview is only relevant to Ms Johnson’s credibility but, in that limited way, it is relevant to my assessment of what Ms Johnson said about her belief as to the age of the complainant.
In submitting she had established both that she believed the complainant was 17 and held that belief on reasonable grounds, Ms Johnson’s counsel relied on more than one aspect of the evidence. First, the physical maturity of the complainant which is before me in various photos and videos. Second, that Brandon was 18 years of age at the time of her interview and that Ms Johnson would have known he was 17 in the first half of 2019. Third, that the complainant participated in various sexual acts with Brandon and at least some were, at least, overheard by Ms Johnson. Fourth, that the complainant had spoken of oral sex with Ms Johnson. Fifth, that the complainant regularly used alcohol and other drugs. Sixth, that she was not attending any educational institution every day and was doing so in plain clothes. Seventh, that the name of the educational institution attended by the complainant was consistent with Ms Johnson potentially believing it was a place where older students/adults might go, Northern Adelaide Senior College. Allied to this, Ms Johnson told the police the ‘school’ she thought the complainant was attending was ‘Elizabeth TAFE’.
In my view, in combination, the above matters permit of more than one conclusion as to what Ms Johnson’s belief as to age may have been and must be considered in light of the complainant’s evidence she had only ever given her true age. Despite the criticisms which can be made of the complainant’s evidence and that not every aspect can be accepted beyond a reasonable doubt, having considered what Ms Johnson said in her interview, the evidence of the complainant as to what she said about her age is more likely.
Having considered the evidence, I am uncertain whether Ms Johnson believed the complainant was older than 16 years of age. Ms Johnson has not satisfied the ‘first question’ on the balance of probabilities. For that reason alone, Ms Johnson has not established the ‘defence’. However, as a matter of completeness, I turn to the ‘second question’.
Ms Johnson did not expressly say in her interview why she believed the complainant was 17 years of age. The only aspect of her interview which might have a link to that belief was what she said about the complainant having ‘school and stuff’, thinking she may have been attending ‘Elizabeth TAFE’ and that she said Brandon was 17 years of age in her interview. There is no evidence the complainant was attending a TAFE (which might be consistent with ‘adult’ education) and I reject she ever said she was. There is no reason for her to have done so. However, I will not overlook considering whether Ms Johnson may have misunderstood what was said.
As for the other matters emphasised by her counsel and listed within [80] above, while it may be Ms Johnson was aware of each of the matters identified by her counsel, on the assumption Ms Johnson had the relevant belief as to age, I cannot determine which, if any, of those matters, caused her to believe the complainant was older than 16 years of age. I cannot determine this as Ms Johnson did not tell the police that any of those matters influenced her view and she did not give evidence. Even assuming Ms Johnson believed the complainant to be older than 16 years of age, her failure to state in evidence or in her interview what were the grounds for that belief (other than, by inference, the age of Brandon, a mention of school and of TAFE) would leave me uncertain as to the grounds on which she believed the complainant was older than 16 years of age. It follows Ms Johnson would not satisfy me on the balance of probabilities that there were reasonable grounds for her belief the complainant was older than 16 years of age.
Further, even on the assumption the matters mentioned in the interview were the grounds for that belief, I am not satisfied they were reasonable grounds to hold that belief. Given the onus of proof, I am not prepared to conclude Ms Johnson believed that a person going to TAFE was older than 16 years of age. As for Brandon being 17 years of age, it is not uncommon for persons of that age to have partners who are the same age, older, or younger. Looking at those matters in combination, in the absence of more detail in the interview, were it necessary, I would not be satisfied they were reasonable grounds to hold the belief asserted by Ms Johnson in her interview.
I find Ms Johnson guilty of counts 4 and 5. I have made these findings without using the evidence of any other alleged sexual act involving Ms Johnson or Mr Kent.
The use of counts 4 and 5
Before turning to the balance of the counts, I turn to how the evidence of counts 4 and 5 can be used in evaluating counts 1 and 8.
In the case with respect to Mr Kent, it is also necessary to separately consider the use of evidence he might have recorded the three video files of the sexual activity between Ms Johnson and the complainant on the couch on 19 March 2019 and showed that footage to her the following day. I remind myself that Ms Johnson’s interview with the police is not evidence in the case against Mr Kent. That interview cannot be used to resolve whether he was the person recording the videos, nor any other matter.
I turn first to the use of the evidence of counts 4 and 5 with respect to Ms Johnson.
The evidence of counts 4 and 5 can be used to evaluate whether the act the subject of count 8 came ‘out of the blue’. It cannot be used for this purpose in evaluating count 1 as that alleged act was before counts 4 and 5. It might seem unlikely Ms Johnson might expect the complainant to submit to count 8 without knowing they had engaged in the acts the subject of counts 4 and 5. Further, it might seem unlikely the complainant would submit to that act without knowing she had earlier engaged in sexual acts with Ms Johnson. The probative value of the evidence of counts 4 and 5 for those purposes substantially outweighs any prejudicial effect it may have on Ms Johnson (s 34P(3)(a) Evidence Act, 1929 (EA)). Those uses are, and can be, kept separate and distinct from any impermissible use (i.e. ‑ mere bad person reasoning, or reasoning which involves a propensity or disposition as circumstantial evidence (s 34P(4) EA).
I turn to whether the evidence of counts 4 and 5 can be used to show a propensity (s 34P(3)(b) EA). Based upon that evidence alone, I am not satisfied that on 19 March 2019 Ms Johnson had a sexual interest in the complainant and a willingness to act on that interest. It is only two acts on the same day, both part of a single encounter. Having viewed the video files, I am unable to discount Ms Johnson was intoxicated. People will sometimes act in a way when intoxicated which does not reflect a sexual interest which persists beyond the acts in question. However, for reasons I will later give,[66] the evidence of counts 4 and 5 viewed in the context of other evidence does satisfy me that Ms Johnson had a sexual interest in the complainant and a willingness to act on that interest.
[66] See below at [108].
I turn to Mr Kent and his conduct at the time of counts 4 and 5. I am satisfied he was the person filming that activity. The SD card containing the three video files was found in his bedroom, on that same SD card were intimate photographs and videos of Mr Kent and I accept the complainant’s evidence he showed at least an aspect of those videos to the complainant the next day on his phone.[67] The relevant footage was recorded over about 20 minutes, albeit the total length of the three video files is significantly less than that. A penis can be seen in the footage. I am satisfied Mr Kent chose to expose himself and did so as he had a sexual interest in what he was filming. These matters alone do not satisfy me Mr Kent had a sexual interest in the complainant on 19 March 2019 and a willingness to act on that interest. It is a single occasion, involves his partner and there is a difference between filming a person engaging in sexual acts and being willing to act on that interest by more directly participating in a sexual act with them.
[67] T49.
However, Mr Kent’s filming of the sexual activity on 19 March 2019, retaining those videos and showing part of that footage to the complainant the next day, falls to be viewed in the context of other evidence.
In an undated video file on the same SD card as the three video files dated 19 March 2019 and numbered in part ‘Carve Raw 5A4000’, I am satisfied Mr Kent says the following: ‘… (K) you know you want my cum …. (K) oh I want to cum in your mouth, on your tits and in your pussy’. I am satisfied that when Mr Kent uses the name (K) he is intentionally referring to the complainant and was expressing a sexual interest in her. I am satisfied that the filming on 19 March 2019, Mr Kent’s retention of the three video files with that date, the showing of at least part of those files to the complainant the next day and the undated video together establish Mr Kent had a sexual interest in the complainant and a willingness to act on that interest from no later than 19 March 2019. In reaching this view with respect to Mr Kent, I have not used Ms Johnson’s interview. As set out above, that interview is not admissible with respect to Mr Kent. In considering the case with respect to Mr Kent, it has not been necessary to resolve whether Ms Johnson was penetrated, nor whether she had cunnilingus performed upon her, nor whether Mr Kent knew one or both of those acts had occurred. The footage alone leaves me in no doubt Mr Kent knew he was filming sexual activity between Ms Johnson and the complainant during which the complainant became topless; Ms Johnson’s vagina was exposed and the complainant’s head and hand were, at the very least, in the area of Ms Johnson’s vagina for a period of time which was more than fleeting. For reasons I will later give, the ‘Carve Raw 5A4000’ video has a further, more specific use, in considering count 6.
With respect to Mr Kent, I am satisfied the evidence I have mentioned which establishes he had a sexual interest in the complainant and a willingness to act on that interest, has a permissible use which substantially outweighs any prejudicial effect it may have upon him and has strong probative value having regard to the particular issue or issues arising at trial (s 34P(3) EA). The issue for Mr Kent being whether he committed the acts the subject of counts 2, 6 and 7. The evidence I have mentioned will not be used to reason Mr Kent is a bad person and for that reason more likely to be guilty of any offence with which he is charged.
Ms Johnson also participates in the ‘Carve Raw 5A4000’ video. However, I have not used that video in any way in the case with respect to her.
Other discreditable conduct
The prosecution led other evidence it submitted had a permissible use which also established a propensity and a willingness to act upon it. That evidence was: five ‘role play’ videos of sexual activity and communications between Ms Johnson and Mr Kent (some of those videos making reference to the Christian name of the complainant, Brandon and others whom the prosecution said it could be inferred were children); four commercially produced pornographic videos with the theme of sexual activity between members of the same family; a hand written document about sexual fantasies which, on the prosecution case, refers to the complainant and Brandon; a sexual dice game found in the bedroom of the defendants on 17 September 2019 which included a number of names written on pieces of paper, one of which was the Christian name of the complainant; Mr Kent showing the complainant photos of his penis and of Ms Johnson with her breasts exposed; Ms Johnson exposing her breasts to the complainant at the request of Mr Kent and Mr Kent grabbing the complainant’s underwear.
The above evidence falls to be evaluated mindful of the particular issues arising at trial. Those issues being whether the acts the subject of counts 1, 2, 6, 7 and 8 took place. No aspect of this evidence could be used to show either defendant is a bad person and for that reason more likely to have engaged in any sexual act with, or in the presence of, the complainant or Brandon.
I will deal with each of these pieces of evidence separately.
I am not satisfied Ms Johnson possessed, nor had viewed, any of the commercially produced pornographic videos. I am satisfied Mr Kent was in possession of those videos as they are on the same SD card as the videos he made of the incident on the couch. However, this evidence adds nothing to the sexual interest and willingness to act upon it already established by the evidence at [94] above and the evidence of a video which I will outline below in which the two defendants discuss Brandon. I have not used the commercially produced pornographic videos with respect to either defendant.
Given the sexual dice game was in the bedroom of both defendants and given the evidence of photos and videos of them involved in sexual acts together, it is likely both defendants had played the dice game. However, I am not satisfied they had done so using the piece of paper bearing the name of the complainant. As a result, I have not used this evidence with respect to either defendant.
As for the five ‘role play’ videos within P11 (the transcripts of which appear in P14), insofar as they involve sexual acts between the defendants and/or mention the names of persons other than the complainant (sometimes accompanied by references to those persons being children), other than specific aspects of one video which I will refer to below at [105], I am not satisfied any other aspects of those videos have strong probative value having regard to the issues in dispute the trial. I have not used any other aspects of those five videos.
I turn to a specific aspect of one of these five videos created on 28 March 2019 with the file number, in part, 051654 during which the prosecution submits Mr Kent uses the name of the complainant while Ms Johnson is fellating him.[68] I have listened to that video carefully, including the enhanced audio. I am not satisfied Mr Kent uses the name of the complainant in this specific video. I have not used that aspect of that video with respect to either defendant.
[68] See page 16 of P14 and [145].
The only aspect of any of the five ‘role play’ videos which I will use is that aspect of the undated video during which Mr Kent uses the complainant’s name. The use of that evidence with respect to Mr Kent is set out at [94] above. I will not use that evidence with respect to Ms Johnson.
There is one video within P11 which falls outside what might be called a ‘role play’ video. It has the file number, in part, 151758 and was created on 6 April 2019. There is no transcript. There is no dispute it shows Ms Johnson outside, was filmed by Mr Kent and that both defendants speak. During this video Ms Johnson says words to the following effect – ‘Brandon will you please cum on my titties, in my mouth and my pussy’. Ms Johnson then exposes her breasts. Ms Johnson also says words to the following effect ‘I want to make love to you Brandon …I want to have wild slutty sex with ya’. During the recording Mr Kent can be heard to say he intends to ‘bluetooth’ Brandon. I am satisfied Mr Kent is saying he intends to send the video to his son. Given Ms Johnson was present and what she said during the video, I am satisfied Ms Johnson knew both that Mr Kent intended to send the video to Brandon and was, by her conduct, encouraging that to happen.
Although this is a single video, I am satisfied this video can be used to show Ms Johnson had a sexual interest in having sexual intercourse with Brandon and a willingness to act on that interest by no later than 6 April 2019. I am also satisfied the video can be used to show Mr Kent had a sexual interest in his son having sexual intercourse with Ms Johnson and a willingness to be present when that occurred. I am satisfied those uses of the evidence substantially outweigh any prejudicial effect it may have on the respective defendants and have strong probative value having regard to the issues in the trial.[69] In the case of Ms Johnson, the issue being whether she had sexual intercourse with Brandon on 12 April 2019, it being the complainant’s evidence that was occurring at the time of the acts the subject of counts 7 and 8. In the case of Mr Kent, the issue being whether he had sexual intercourse with the complainant on 12 April 2019 at the same time as his partner was having sexual intercourse with his son, as alleged in count 7. I did not use this evidence in considering counts 3-5 inclusive. I also will not use this evidence in considering any of counts 1, 2, 6 or 9. I will not reason from this evidence that either defendant is a bad person and for that reason more likely to be guilty of any count.
[69] Section 34P(3) Evidence Act, 1929.
As for the written document,[70] I am satisfied it was written by Ms Johnson and it refers to the complainant, Brandon and sexual intercourse occurring in the presence of partners. I am of this view because of the reference to ‘Red’ (i.e. - Mr Kent) engaging in sexual intercourse with a person with the Christian name of the complainant, (albeit misspelt with a capital C instead of a capital K); the reference on the following page to a person called ‘Mel’ engaging in sexual acts with a person other than Mr Kent and Mel showering with a person with the complainant’s Christian name (albeit misspelt with a capital C rather than a capital K) and asking each other if ‘we enjoyed each others man’ (sic) and as it was found in the bedroom used by Ms Johnson.[71]
[70] Part of P15.
[71] Exhibit P15 and T284.
Viewed in the context of the evidence of counts 4 and 5, I am satisfied Ms Johnson having written the note at some point before it was found can be used to show Ms Johnson had a sexual interest in the complainant and a willingness to act on that interest by engaging in sexual activity with her. I am satisfied the interest and willingness existed by no later than 19 March 2019, notwithstanding the note is undated. I am satisfied this use of the document and counts 4 and 5 substantially outweighs any prejudicial effect it may have on Ms Johnson and has strong probative value bearing in mind the issues in counts 1 and 8.[72] Those issues being whether the acts the subject of those counts were committed by Ms Johnson. In reaching this conclusion I have not overlooked that writing a document is very different to engaging in a sexual act with a person. However, as I have said, the document must be viewed in the context of the evidence of counts 4 and 5. I have not used any aspect of the evidence to reason Ms Johnson is a bad person and for that reason more likely to be guilty of any count.
[72] s 34P(3) (EA).
I have not used the written material with respect to Mr Kent. While he may have read it, merely reading something does not mean the reader adopts the interest expressed by the author, let alone is willing to act on that interest.
As for Mr Kent showing the complainant photos of his penis and of Ms Johnson with her breasts exposed, this evidence further confirms Mr Kent’s sexual interest in the complainant and willingness to act on that interest, albeit not by directly participating in sexual acts with her. I am satisfied that use of the evidence has a permissible use which substantially outweighs any prejudicial effect it may have upon Mr Kent and has strong probative value having regard to the particular issues arising at trial (s 34P(3) EA). The issue for Mr Kent being whether he committed the acts the subject of counts 2, 6 and 7. The evidence I have mentioned will not be used to reason Mr Kent is a bad person and for that reason more likely to be guilty of any offence with which he is charged.
As for Mr Kent grabbing the underwear of the complainant, I will not use that evidence in any way. It may not have had a sexual motive. As for Ms Johnson exposing her breasts to the complainant at the request of Mr Kent, I will not use that evidence in any way. It adds nothing to the sexual interests, and willingness to act on those interests, already established.
Counts 1 and 2
The alleged act the subject of count 1 is Ms Johnson touching the breast of the complainant on the night of a party at 7 Searle Road.
I am satisfied that on 2 February 2019, the complainant became so intoxicated that she needed to bathe and change her clothes. I am satisfied she was provided with fresh clothing which was, at least to some extent, revealing. I have not reasoned the dress chosen was because Ms Johnson had a sexual interest in the complainant. The provision of that dress will not be used other than as part of the narrative of the events of that night. In any event, for reasons set out above, I have found that by 19 March 2019, Ms Johnson had a sexual interest in the complainant and willingness to act on that interest. In evaluating count 1, I will proceed on the basis, without deciding, that both the interest and the willingness to act on it existed on 2 February 2019.
I have no doubt the complainant genuinely believes the act the subject of count 1 occurred.
Having considered the complainant’s evidence and Ms Johnson’s sexual interest in the complainant and willingness to act on that interest, I am satisfied it is more likely than not Ms Johnson deliberately touched the breasts of the complainant in the way alleged. However, I am not satisfied of that beyond a reasonable doubt. The matters set out below give rise to a reasonable possibility of the complainant being unreliable as to the occurrence of the specific act the subject of count 1.
The complainant was grossly intoxicated. She did not recall the incident on the couch on 19 March 2019 when in a similar state until she saw a recording. The alleged incident was not prolonged and is said to have occurred when the complainant was naked in the bathroom and trying to relieve the effects of that intoxication by taking a bath. This is not to overlook the complainant gave evidence not just of the act the subject of the charge, but also referred to comments made by Ms Johnson about her breasts. Further, AP’s evidence was a similar act occurred but in a different place at the house, at a much later time, that night. I am unable to discount the complainant’s memory as to where the touching took place, and when, is inaccurate.
I find Ms Johnson not guilty of count 1.
As for the evidence of AP about seeing Ms Johnson touch the breasts of the complainant on 2 February 2019, that is not an act the subject of any count. AP impressed me when she gave evidence. As a matter of common sense, the incident is one likely to stand out in her mind. I accept AP’s evidence about that act. However, I have not used it in any way in evaluating any count. This includes not reasoning Ms Johnson is a bad person and for that reason more likely to be guilty of any count. It adds nothing material to the evidence already outlined showing Ms Johnson had a sexual interest in the complainant and was willing to act on that interest.
The alleged act the subject of count 2 is Mr Kent touching the breasts of the complainant on the same night as count 1. Given I am satisfied the complainant’s memory as to the act the subject of count 1 might be unreliable, I am not satisfied beyond a reasonable doubt her memory of being touched on the breasts by Mr Kent on the occasion the subject of count 2 is reliable. This includes that I cannot exclude that the complainant was recalling the act observed by AP, but mistakenly attributed it to Mr Kent due to her intoxication.
I find Mr Kent not guilty of count 2.
In considering counts 6-8 inclusive, I will bear in mind that I have not been satisfied of the reliability of the complainant’s evidence of counts 1, 2 and 3. I have already born it in mind in evaluating counts 4 and 5.
Count 6
The alleged act the subject of count 6 is the complainant performing fellatio upon Mr Kent in the loungeroom at 7 Searle Road. On her evidence, fellatio commenced while Mr Kent was on the chair in that room, but also after that when positioned on her back on the floor of that same room while Mr Kent was positioned above her.[73]
[73] T54.
The reliability and credibility of the complainant’s evidence must be evaluated mindful that she was ‘extremely intoxicated’[74]; that I have not found counts 1, 2 and 3 proven beyond a reasonable doubt; the discussion earlier with respect to how her memory is unreliable when she is intoxicated; the risk of reconstruction and the inconsistent statements the complainant has made. Count 6 also falls to be evaluated mindful that it might be unclear whether the incident on the couch had taken place before this and the date of the creation of the video within P11 numbered in part ‘Carved Raw 5A4000’ is unknown. Notwithstanding those uncertainties, I am satisfied that by the time of this alleged act Mr Kent had a sexual interest in the complainant and was willing to act upon that interest. My satisfaction of those matters is based upon the filming of the incident the subject of counts 4 and 5 on 19 March 2019, the showing of a video of that incident to the complainant the next day, the defendant’s retention of those three video files and the ‘Carved Raw 5A4000’ video.
[74] T52.
In addition, I am satisfied that by whenever this alleged act was Mr Kent had a more specific interest than just engaging in any sexual activity with the complainant. I am satisfied he had a specific interest in being fellated by her. I am satisfied of this because of what he says in the ‘Carved Raw 5A4000’ video. After saying ‘come on (K) you know I want your cum’ he tells Ms Johnson to ‘get your mouth ready … get your mouth ready’ and says ‘oh (K) oh I want to cum in your mouth, on your tits and in your pussy’. Although the creation date of this video is unknown, I am satisfied Mr Kent’s interest in being fellated by the complainant existed at the time of the act the subject of count 6. I am satisfied the use of this video to show the more specific interest in being fellated by the complainant substantially outweighs any prejudicial effect it may have on Mr Kent and has strong probative value having regard to the particular issues arising in count 6.[75] Those issues being whether Mr Kent asked the complainant to fellate him and whether he permitted that to occur. I have not reasoned Mr Kent is a bad person and for that reason more likely to be guilty.
[75] Section 34P(3) (EA).
Notwithstanding the complainant may have been extremely intoxicated, indeed likely as intoxicated as she was at the time of the incident the subject of the allegations the subject of counts 1, 2 and 3; the caution required with both her credibility and reliability because of her possible unreliability about counts 1, 2 and 3; the inconsistent statements and the risk of reconstruction; I am satisfied beyond a reasonable doubt she performed fellatio upon Mr Kent after he had asked her to do that in return for a chocolate bar. I reject the complainant might have imagined, or deliberately invented, this incident. Any doubt which might have existed were this count based solely upon the evidence of the complainant is resolved once that evidence is evaluated in light of the nature of the incident itself; Mr Kent’s sexual interest in the complainant and willingness to act on that interest (including the specific interest in being fellated by the complainant).
I am satisfied beyond a reasonable doubt the complainant performed fellatio upon Mr Kent on this occasion while he was in two different positions. The complainant could not say how long passed between when Mr Kent was in the first position and him being in the second. In his opening, the prosecutor said the act the subject of count 6 was an act of fellatio in the loungeroom.[76] Given this conduct all occurred in the loungeroom and was directed towards the same reward (the chocolate bar), I am satisfied beyond a reasonable doubt this was a single continuous act of fellatio which happened to occur occurred in two positions. I am of this view notwithstanding the uncertainty about how long passed between the two positions. In my opinion, that the defendant’s penis cannot have been in the mouth of the complainant throughout the whole period does not matter as I am satisfied beyond a reasonable doubt this was one continuous occasion of fellatio which occurred in two different positions.
[76] T6-7.
I find Mr Kent guilty of count 6.
The use of count 6 in considering count 7
I am satisfied count 6 occurred before the alleged conduct the subject of count 7. I accept the complainant’s evidence the occasion of count 7 was the final occasion of any sexual activity between Mr Kent and her.[77] I will only use the evidence of count 6 in evaluating count 7 in the following ways. The evidence of count 6 sheds light on whether Mr Kent had reason to believe that he could engage in the act the subject of count 7 as he had committed count 6 without complaint or resistance and whether the complainant was likely to engage in sexual activity with Mr Kent. I am satisfied that the probative value of the evidence for those purposes substantially outweighs any prejudicial effect it may have upon Mr Kent.[78] These uses of count 6 will be kept separate and distinct from bad person reasoning and a propensity use (s34P(4) (EA).
[77] T59.29-35.
[78] Section 34P(3)(a) (EA).
I am also satisfied the evidence the subject of count 6 further confirms Mr Kent’s sexual interest in the complainant and willingness to act on that interest. I am satisfied that use of the evidence substantially outweighs any prejudicial effect it may have on Mr Kent and has strong probative value having regard to the issues in count 7 (i.e. ‑ whether that act occurred).
It is an interesting question whether Mr Kent’s sexual interest in the complainant and willingness to act on that interest is admissible with respect to count 8. The sexual interest and willingness of Mr Kent is established by conduct which, in part, occurred in the presence of Ms Johnson. Putting that aside, there is no reason why the sexual interest of one person and that person’s willingness to act on that interest is not admissible in the trial of a second person, provided the evidence which establishes the interest and willingness is admissible with respect to the second person. In that event, the issue is just whether the evidence is relevant. Those observations made, I will not use the evidence of count 6 nor my findings of any sexual interest in the complainant and willingness to act upon that interest held by Mr Kent in evaluating count 8 and have not used it in evaluating any other count. I did not use Ms Johnson’s sexual interest in the complainant and willingness to act upon that interest in evaluating counts 2 or 6 and will not use those conclusions in evaluating count 7.
Counts 7 and 8
The complainant’s evidence was she had been drinking and had consumed at least one drug, she believed cannabis. She said her memory was ‘a bit blurry’, but there came a point when she was on the back lawn. The complainant said Mr Kent placed his penis into her vagina and that Brandon was having sex with Ms Johnson next to them. The complainant said that while on the lawn, Ms Johnson pulled her towards her and kissed her on the lips.[79] Mr Kent having sexual intercourse with the complainant on this occasion is the alleged act the subject of count 7. Ms Johnson kissing the complainant is the alleged act the subject of count 8.
[79] T57-61.
On any view, the complainant’s memory of the occasion of this visit to 7 Searle Road and the incident the subject of these two counts is imperfect. For example, she said her memory was a ‘bit blurry’ and ‘there were flashes of different things happening’.[80] She had been drinking, taking other drugs and after the alleged acts, an ambulance was called and she was admitted to hospital. These matters are relevant to whether her account is both credible and reliable. Also relevant is that she initially had no memory of counts 4 and 5; I have not been satisfied beyond a reasonable doubt of the reliability of her memory of the events the subject of counts 1, 2 and 3; the inconsistent statements and the risk of reconstruction.
[80] T58.
It remains the case the complainant’s credibility and reliability must be evaluated bearing in mind the separate sexual interests and willingness to act on those interests held by the defendants, but bearing in mind I will not use the sexual interest and willingness of one defendant in considering the other defendant.
Based upon the evidence of the complainant about counts 7 and 8, viewed in the context of the evidence which has satisfied me Ms Johnson had both a sexual interest in having sexual intercourse with Brandon and a willingness to act on that interest and a sexual interest in the complainant and a willingness to act on that interest, I am satisfied beyond a reasonable doubt that Ms Johnson kissed the complainant while she was having sexual intercourse with Brandon. Based upon the evidence of the complainant, viewed in the context of the evidence which has satisfied me Mr Kent had both a sexual interest in the complainant and a willingness to act on that interest and an interest in Ms Johnson engaging in sexual activity with Brandon, I am satisfied beyond a reasonable doubt that Mr Kent had sexual intercourse with the complainant in the way alleged in count 7. Any doubt which I might have had if the only evidence of each act was the complainant’s evidence of the specific act is overcome once the respective sexual interests and willingness to act upon those interests are considered.
This was an incident likely to stand out in the mind of the complainant. It involved an act of sexual intercourse with the father of her boyfriend in the presence of others. I reject that the complainant either imagined, or invented the acts the subject of counts 7 and 8.
As I am satisfied beyond a reasonable doubt that act the subject of count 7 occurred, I find Mr Kent guilty of count 7.
I am satisfied beyond a reasonable doubt that Ms Johnson kissed the complainant on the back lawn. Although the complainant said that act happened more than once during the overall sexual activity,[81] I am satisfied it was a single incident. I accept the whole of her evidence about kissing beyond a reasonable doubt. The conduct the subject of count 8 involved an application of deliberate force and was committed in circumstances of indecency.
[81] T61.
Section 57(3) of the CLCA
Section 57 of the CLCA provides:
(2)Subject to subsection (3), no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.
(3)Where the person is between the age of sixteen and seventeen years, his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the indecent assault—
(a)he or she was under the age of seventeen years; or
(b)he or she believed on reasonable grounds that the person was of or above the age of seventeen years.
In my view, relevant to this trial and Ms Johnson, the proper approach to the above sub-sections is that if Ms Johnson satisfies me on the balance of probabilities she believed on reasonable grounds the complainant was of or above the age of 17 years at the time of the act the subject of count 8, then sub-section (2) does not apply. In that event, the prosecution must establish beyond a reasonable doubt the complainant did not consent to the act.
Ms Johnson submitted she believed the complainant was 17 years of age and held that belief on reasonable grounds. It is not necessary for me to examine this issue again. I have already discussed it in the context of counts 4 and 5. There is no evidence, or submission, which must be considered with respect to count 8 not already considered in discussing the ‘defence’ in counts 4 and 5. Ms Johnson has not satisfied me on the balance of probabilities she believed the complainant was of or above 17 years. Even had Ms Johnson believed the complainant was of or above 17 years of age, I would not have been satisfied she had that belief on reasonable grounds.
As set out above, this means the element requiring proof of an absence of consent is established by the operation of sub-section (2). Whether the prosecution would have been able to prove this element without that sub-section is irrelevant.
I am satisfied beyond a reasonable doubt that on 12 April 2019 Ms Johnson kissed the complainant while the later was having sexual intercourse with Mr Kent and that act was committed in circumstances of indecency. As I am satisfied beyond a reasonable doubt the complainant was 16 years of age, the complainant was not capable of consenting.
I find Ms Johnson guilty of count 8.
Count 9
The real issue in count 9 is whether Ms Johnson was in possession of the child exploitation material on the relevant SD card found in her bedroom on 17 September 2019. I am satisfied she shared that bedroom with Mr Kent. In order to be in possession of the child exploitation material, the prosecution must first establish beyond a reasonable doubt Ms Johnson was in possession of the SD card on which that child exploitation material was stored. Even if it establishes that, the prosecution must still prove Ms Johnson was in possession of the child exploitation material stored on that SD card.
A person is in possession of an item if they knowingly have custody and control of that item to the exclusion of another, other than a person in joint possession.
I am not satisfied beyond a reasonable doubt Ms Johnson was in possession of the SD card. I accept there is evidence to the contrary. In particular, Ms Johnson appears in videos and photographs stored on the SD card, including the videos made at the time of counts 4 and 5, and the SD card was in her bedroom. In addition, Ms Johnson had a sexual interest in the complainant and a willingness to act on that interest. However, I am unable to exclude Mr Kent was in sole possession of the SD card on 17 September 2019. Six months had passed since the videos were recorded. It was Mr Kent who had recorded the videos the subject of counts 4 and 5 and who showed them to the complainant the following day. Mr Kent appears in other images and videos on this SD card. There is no evidence any of the three files, or photographs, were accessed after 20 March 2019.
Further, I am not satisfied that when interviewed by the police and asked about the SD card, Ms Johnson admitted possession of the specific SD card the subject of count 9. During that interview, Ms Johnson said:[82]
[82] Exhibit P17 page 20.16-37.
JHSo, there was a, there was a number of SD cards, like memory cards that we seized when we searched the address Ok.
MJYeh.
JHIt was on one of those memory cards. Does Brandon have memory cards that he keeps in his phone.
MJI don’t speak to him anymore.
JHOk.
MJHe’s turned against us since all this shit’s happened.
JHMmm. And what about, so, the SD cards were found within your bedroom at the time.
MJyep.
JHYep. So who’s, who belongs, who’s SD cards are they.
MJMine and Red’s, or Nigel sorry.
That Ms Johnson was admitting possession of the specific SD card upon which the child exploitation material was later found is not the only interpretation of what Ms Johnson said, even against the background of the whole of the evidence able to be considered with respect to Ms Johnson. I am unable to exclude Ms Johnson was merely admitting that one or more of the five SD cards belonged to her and that any SD card which belonged to her was not the SD card the subject of this count.
I am not satisfied beyond a reasonable doubt Ms Johnson was in possession of the SD card which contained the child exploitation material.
I find Ms Johnson not guilty of count 9.
Conclusion
I find Mr Kent not guilty of count 2, but guilty of counts 6 and 7.
I find Ms Johnson not guilty of counts 1, 3 and 9, but guilty of counts 4, 5 and 8.
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