R v Kent (No 2)
[2021] SADC 56
•20 May 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KENT (No 2)
[2021] SADC 56
Reasons for the Verdicts of her Honour Judge Fuller
20 May 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
Accused charged with aggravated indecent assault and an act of gross indecency - complainant 9 years of age at time of alleged offending and 13 years of age when giving evidence - no complaint evidence led - proved prior inconsistent statements on significant matters on each count - inherent unlikelihood of complainant’s account of act of gross indecency - accused denied allegations in record of interview and called evidence of good character.
Verdict: not guilty on both counts.
Criminal Law Consolidation Act, 1935 s 56, s 58(1)(a); Juries Act 1927 (SA); Evidence Act 1929 (SA) s 13(7), s 34P(2)(a), s 34P(2)(b), s 34M, s 34M(2), referred to.
R v Kent [2020] SADC 159; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2021) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v G [2015] SASC 186; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232, considered.
R v KENT (No 2)
[2021] SADC 56
Criminal
The accused was arraigned before me on an Information alleging one count of unlawful sexual intercourse, one count of aggravated indecent assault and one count of gross indecency. I granted an application for severance of the count of unlawful sexual intercourse from the remaining counts: R v Kent [2020] SADC 159. On 14 April 2021, the prosecution entered a nolle prosequi in respect of the count of unlawful sexual intercourse which was count 1 on the Information.
On 10 May 2021, the trial of the remaining counts commenced before me.[1] Those counts were particularised in the Information as follows:
[1] At the call over defence and prosecution advised the Court that there was no reason why I should not sit as the trial Judge and the matter was then allocated to me.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jeffrey Thomas Kent between the 16th day of June 2017 and the 31st day of January 2018 at Mawson Lakes, indecently assaulted TL.
It is further alleged that TL was under the age of 14 years at the time of the offence.
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
Gross indecency. (Section 58 (1) (a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Jeffrey Thomas Kent between the 16th day of June 2017 and the 31st day of January 2018 at Mawson Lakes, committed an act of gross indecency in the presence of TL, a person under the age of 16 years, by exposing his penis to her.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
The plea
The accused pleaded not guilty and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of each offence
An indecent assault is an assault accompanied by, or committed in circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. In this case, if the touching the subject of count 2 took place in the way alleged by the complainant, this element will be established. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. As the offence charged is an aggravated indecent assault, the prosecution must prove that the complainant was under the age of 14 at the material time. It was not disputed that the complainant was under the age of 14 at the time of the alleged offence. It was not disputed that if I were to find proved the conduct alleged by the complainant, this was an assault committed in circumstances of indecency.
To prove the charge of gross indecency, the prosecution must prove beyond reasonable doubt that the accused committed an act with, towards, or in the presence of the complainant in circumstances which make it grossly indecent. It must be proved that the complainant was under 16 years of age at the relevant time. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent, but as grossly indecent. It is alleged that the accused deliberately exposed his penis in the presence of the complainant. It was not disputed that the complainant was under the age of 16 at the material time. It was not disputed that if the prosecution proved that the accused did this in the presence of the complainant in the circumstances she alleged, this conduct would constitute an act of gross indecency.
Overview of the prosecution case
The complainant, TL was born on 14 April 2008. At the time she gave her evidence she was 13 years of age. During the time period particularised in the charges, she was 9 years of age. TL’s parents both died in 2016. She and her 3 siblings were orphaned. At the time of the alleged offending, TL, and her older sister, BJL were being cared for by their older brother DJHL. His girlfriend, CH would also help look after TL and BJL.
CH, TL and BJL first met the accused in hospital when CH’s grandfather was terminally ill. At this time, CH’s aunt, JK was in a relationship with the accused. TL, BJL and CH next saw the accused on 17 June 2017, at an 18th birthday party of a relative. The accused obtained Facebook contact details for TL and BJL at the party. Thereafter, the accused and JK offered to provide respite care of the girls and there were occasions when the girls would go to the accused’s house at Mawson Lakes to visit or stay the night. The accused and JK bought both girls gifts, including clothes, shoes and toys. The accused was in regular contact via Facebook with TL.
On an occasion when TL was at the accused’s house at Mawson Lakes, the accused, JK, BJL and TL had been shopping. New clothes and toys had been bought for TL. BJL and JK then left the house, leaving TL alone with the accused. The accused suggested to TL that she get changed into her new clothes. He took her to his bedroom. TL asked him to leave but he assured her that it was okay for him to be there. He pulled her pants and knickers down and then had both hands on her hips, whilst trying to move them closer to her vagina. She jumped back and covered herself with a blanket. She then heard BJL and JK returning to the house and nothing further happened.
On another occasion, the accused was at the house where TL, BJL, DJHL and another relative were living. This house was in Mawson Lakes. The family had just moved in and were putting together bunk beds. At some stage, TL was alone with the accused in the house. He called out for her to come to the upstairs bathroom at which point he showed her his penis by pulling it out of the front slit in his underpants. She said to the accused that it was disgusting and left and went back to her room.
The accused and JK moved to Queensland in late 2017, early 2018 and both TL and BJL flew to Queensland in the January school holidays to stay with them. There is no allegation of any inappropriate behaviour by the accused during that visit.
The accused was interviewed and agreed that he met the TL at the birthday party. He also said that he and his partner would take the sisters out and that they had slept over at his house on 3 occasions but otherwise denied the allegations when put to him.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[2] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in several authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[2] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[3] The accused’s record of interview, and any admissions I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt.
[3] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
I must assess each witness as to truthfulness and reliability. I must determine whether I can rely upon the evidence the witness gives. I can reject or accept all or a part of the witness’s evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to the matter.
The evidence
I turn to examine the evidence led by the prosecution in more detail.
The following items were tendered as exhibits or marked for identification:
P1: Diagram of the house at [address redacted], Mawson Lakes.
P2: Diagram of the house at [address redacted], Mawson Lakes.
D3: Photograph of TL taken on 1 January 2018 in Queensland.
P4: Statement of DJHL sworn 24 March 2020.
P5: Statement of agreed facts.
P6: Disc containing record of interview dated 15 September 2019.
MFI P6A: Transcript of P6.
The facts agreed in P5 were as follows:
1.TL was born on the 14th April 2008.
2.John Daniel died on 12th March 2016.
3.SMAO’S-B had her 18th birthday party at her parent’s house at [address redacted] on the 17th June 2017.
4.All bonds for residential tenancies are required to be submitted to the Consumer and Business Services (“CBS”) under the Residential Tenancies Act 1995 and are recorded in the records management system.
a. DJHL and CH had a security bond, with Bond ID number 4156820-8, submitted to the Residential Tenancies Section of the CBS for the address at [address redacted], Mawson Lakes on 27th July 2017 which was refunded on the 3rd April 2019.
b. Jeffrey Kent and JK had a security bond, with Bond ID number 3915676, submitted to the Residential Tenancies Section of the CBS for the address at [address redacted], Mawson Lakes on 24th February 2014 which was refunded on 22nd February 2018.
5.In the interview with police with TL on the 29th May 2019, she stated, when asked to clarify where her knickers were, “Where my shorts were hanging” when discussing the ‘bedroom incident’.
The prosecution called two witnesses, TL and CH.
TL gave her evidence remotely and in the presence of a court companion employed by the Victim Support Service. The court was closed during her evidence and it was recorded by audio-visual means. I made those orders at the outset of the trial. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the TL’s evidence.
The complainant’s evidence.
TL was 13 when she gave evidence. Her parents died in 2016. After this she lived with her aunt and then with her brother DJHL. DJHL was in a relationship with CH, who assisted in looking after her. TL initially lived with DJHL and CH at CH’s parents’ home and when she was 9 years of age moved to a house in Mawson Lakes.[4]
[4] T 11-12.
When she was around 9 years of age, TL first met the accused at a birthday party held for a relative of CH. At that time, she also met the accused’s wife, JK.[5] At the party, she used her sister’s phone to swap Facebook friend requests with the accused.[6] After the party, she and the accused would contact each other via Facebook. She used a computer or an iPad for this purpose. She was in contact with the accused via Facebook a couple of times a day.[7]
[5] T 14, 9-21.
[6] T 15, 19-26.
[7] T 15.
A couple of months after the party, the accused came to TL’s house. After that, TL would see the accused every weekend. This was either arranged directly with TL and/or her sister or via her brother, DJHL. The accused was living at Mawson Lakes not far from their house.[8]
[8] T 16 -17; T 18, 32-34.
When TL and her sister were at the accused’s house they would ‘usually watch movies and stuff’.[9] They were generally there for a short period of time unless they slept overnight. They slept overnight quite a few times.[10] When they slept at the accused’s house, TL and her sister would sleep on an air mattress in front of the television in the lounge room.[11]
[9] T 18, 16-17.
[10] T 18, 18-27.
[11] T 19, 4-15.
The accused and JK took TL shopping and would buy her toys, clothes and snacks.[12] On one occasion when she was at the accused’s house, he asked her if she wanted to get changed. She said ‘sure’, and he then ‘directed’ her to the bedroom by saying that she should get dressed in there. She went into the bedroom and the accused came in while she was laying the clothes out on the bed. She was sitting on the end of the bed.[13] The clothes had been bought earlier in the day when she had gone shopping with BJL, the accused and JK. She could not remember what clothes they were or where they had gone shopping.[14]
[12] T 19, 18-23.
[13] T 20.
[14] T 21, 1-13.
TL asked the accused to leave so she could get dressed. TL then gave this evidence:
AHe said that it was normal and yeah.
QAnd then.
AAnd then he kind of like took off my pants.
QWhen you say ‘pants’, what do you mean.
AMy knickers and my pants.
QWhere were you when that happened.
AOn the end of the bed.
QAfter he took off your pants and knickers, where did they end up.
AJust below my knees, I think.
QBy ‘pants’, you meant your pants and knickers.
AYes.
QHow did they come off. Did they come off –
ALike unevenly.
QAfter your knickers and pants, you’ve told us, you think were around your knees.
AYeah.
QWhat happened after that.
AWe heard the others get back and then he quickly got up and left the room and then told me to get dressed.
QYou described him taking your pants and knickers off. How did he do that.
AWhat do you mean?
QSo what did he do. Can you describe for the court what he did to take them off. What part of his body did he use.
AHis hands.
QDid he use one or two hands.
ABoth of his hands.
QWhere were those hands.
ANear my waist.
QIs that before or after he took your pants off.
ABoth.
QSo he’s used both his hands to take your pants off.
AYep.
QAnd then his hands, you say are –
AOn my waist.
QWhat were his hands doing.
AThey kind of like were pushing into where my vagina –
QWhen you say ‘pushing’, what do you mean.
ALike –
QIf you need to use your hands to describe it, you can.
ASlowly moving in (INDICATES).
HER HONOUR: Witness indicates hands outstretched with thumbs away from fingers.
AYeah.
XN
QWas anything said by anyone when that happened.
AI don’t think so.
QWhat did you do.
AI kind of like bounced back to cover myself, blanket.
QYou said earlier you were sitting on the bed. So you bounced back on the bed. Is that what you mean.
AYes.
QAnd you covered yourself.
AYeah.
HER HONOUR
QYou’ve described your knickers and pants being taken off and ending up just below your knees. When that happened, where were you.
AOn the end of the bed still.
XN
QYou’ve just told us that you bounced back and covered yourself. What did you cover yourself with.
ABlankets.
…
QSo you’ve jumped back, covered yourself up. What’s happened next.
AWe heard the car pull in.
QAnd then.
AHe like looked out of the room to see what it was and he saw the car I think and then walked out of the room and said to finish getting up, ready.
HER HONOUR
QWhat did he say.
AHe said to quickly get dressed.
QYou showed us with your hands how he had his hands on your waist.
AYeah.
QHow long did he have his hands on your waist for.
ANot long before I jumped back.
XN
QDid you tell anyone what happened that day.
ANo.
QFrom the time that you’ve jumped back and the car pulling up –
AYeah.
Q-was there anything else said by either of you apart from him telling you to get ready quickly.
AYes.
QWhat was that.
AThat it was normal.
QWhat did you think that meant.
AThat it’s like what guys usually do.
…
QWhat happened after. So you’ve told us that the car’s pulled in and they have come back. What happened when they came back.
ASomeone suggested to watch Star Wars.
QIs that what you did.
AYeah.
HER HONOUR
QWhat happened to the clothes that you’d laid out on the bed.
AI put them on.
QWhen did you do that.
AAfter he left the room.[15]
[15] T 21-25.
TL then gave evidence about an incident that occurred at the house at Mawson Lakes into which she and her sister had moved. TL identified that house as being that shown in P1. TL said that the accused called her into the upstairs bathroom. She walked in and did not see anyone, and as she went to leave the accused called her name and she looked back and saw the door slowly swing open.[16]
[16] T 25.
When she heard her name called, she was in bedroom 3 as marked on P1.[17] She could not remember what she had been doing at that time. She said no one else was in the house but she did not know why no one else was there. She said it was sunset and she thought that she, her sister BJL, her niece, CH, the accused and JK were going to go to a restaurant. She said that CH and JK had just finished ‘building’ the bunk beds because they had just moved into the house. TL said that she, her niece, BJL and the accused had gone for a walk, during which the accused was ‘being kind of rude to my niece’.[18]
[17] T 26, 6-7.
[18] T 27, 28, 1-2.
When TL went to the bathroom, the door was slightly open. The bathroom light was on, but the toilet light was off. She then gave this evidence:
AThe light was on, so I thought he was in there but I left because the toilet door was closed. I thought no-one was in there.
QThen what happened.
AHe called my name as I was leaving the toilet.
QThen what happened.
AHe bent over like to show me that he was there and then got a bit closer and then he whipped out his penis.
QWe’ll just go back over that a little bit. You said you’ve gone into the bathroom and there was no-one in the bathroom. So you’ve left and you heard your name again.
AYeah.
QAnd you’ve come back in.
AYes, because it came from behind me.
QWhen you say came from behind you, what did.
AThe noise.
QWhen you came back in, where were you standing.
AJust at the entrance bit.
QWhat’s happened then.
AHe bent over like from the toilet.
QHow was he positioned in the toilet. Was he sitting. Was he standing. Was he doing something else.
AHe was sitting.
HER HONOUR
QYou said when you went in, you noticed the bathroom light was on.
AYep.
QBut the toilet light was off and the toilet door was closed.
ASlightly open, just like an inch.
QWhen you saw Jeff and you described him as being bent over from the toilet, where was he.
AHe like poked his head out from where the door opposite opened.
QWhat door.
AThe bathroom. I mean the toilet.
QWas the light in the toilet on or off at that point.
AOff.
QCould you tell whether he was sitting or standing when he poked his head out through the door.
AHe was sitting.
QCould you see the toilet itself from where you were standing.
ANot that much, no.
QAny of it.
ANo, I don’t think so. Maybe like a tiny bit.
QHow much of Jeff could you see.
AHis knees and his hand out like opening the door and another hand on the door bit.
QWhat part of the door.
ALike the bit that connects, that comes out, that bit (INDICATES) that helps it close.
QThe doorknob.
AYeah.
XN
QSo you’ve described his hand on the door, that he popped his head around.
AYep.
QAnd what happened after that.
AHe said ‘Look at this, come see’ and I’ve, like I was confused and I put my hand up in front of my face and I was like ‘Ew’ and he was ‘No, no look, it’s really cool’ and I’ve gone ‘Okay’ and I uncovered my hand from my face and his jocks were on.
QYes.
AAnd he pulled through his jocks and whipped out his penis.
QWhen you saw that, where were you standing.
AJust next to the sink bit.[19]
[19] T 28-30.
I then asked TL to mark on P1, with an ‘x’, the position she was standing at the time that TL said the accused exposed his penis. TL then gave the following evidence:
QAt the time that you said Jeff ‘pulled through his jocks and whipped out his penis’, was he still in the toilet.
AYes.
QWas he sitting or standing.
AHe was sitting I think.
XN
QYou’ve described that his jocks were on.
AYep.
QCan you describe the underpants he was wearing.
AWhat do you mean?
QWhat did they look like.
AI don’t remember. I think orange though.
HER HONOUR
QYou think they were orange.
AYep.
XN
QWas he wearing anything else on his bottom half.
AHe was wearing pants that were like on the like just below his knees.
QWhat kind of pants were they.
ALike trousers
…
QYou’ve described that his jocks were on and he’s whipped his penis out.
AYep.
QHow did his penis come out of his jocks.
AIt was kind of like a pocket.
QWhat do you mean by a pocket.
ALike, where its like a, had like a pocket at the front with no end to it.
QWhen you say there was no end to it, what do you mean.
AMeaning that it goes straight to his penis.
QSo it’s a pocket with a hole in it of some description, is that what you mean.
…
AYep
QWhat happened after he’s whipped his penis out.
AI walked behind the wall bit and I was like ‘Ew, that’s gross’ and then left.
HER HONOUR
QWhen you said he whipped his penis out, what exactly did he do.
ALike – what do you mean?
QWhat do you mean by whipping his penis out.
AHe like took it out of his jocks, out of the like hole, pocket thing.
QHow did he do that.
ABy grabbing it with his left hand – right hand.
XN
QSo you just told us that you said ‘Ew’ and you’ve left.
AYep.
QYou described going down the hall. Where did you go after that.
AI’m pretty sure my bedroom, bedroom 3.
QDid you hear anything else.
AI heard the toilet flush and the sink being used a little.
QAfter he’s whipped his penis out, was anything further said by Jeff.
AHe only said ‘Sorry’ and then that’s all I can remember.
QYou said you think you went to your bedroom.
AYep.
QDo you know what Jeff did after.
AHe finished using the toilet and washed his hands and then he came into the room.
QCame into the.
ABedroom 3.
QWhat have you done in there.
AHe just said ‘Sorry’ and then left.
HER HONOUR
QWhen you said he left, do you mean he left your bedroom.
AYeah, he left my bedroom.
QDid you see him again after that.
AYeah, we went to that restaurant place. [20]
[20] T 28-33.
TL said that everyone came home about half an hour later and they went out to a restaurant. She did not know where everyone had been. She did not tell anyone about what had happened.[21]
[21] T 33, 3-16.
TL said that the accused had ‘gifted’ her an iPhone 6 before both the ‘bedroom’ and ‘bathroom’ incident. She used the iPhone 6 to message people, including the accused, on Facebook.[22]
[22] T 33-34.
The accused and JK moved to Queensland. She and her sister saw the accused when he bought them aeroplane tickets to visit him.[23] She said that they visited him every holiday and the first time was in the January school holidays, but she could not recall how old she was on that visit.[24]
[23] T 34, 25-37.
[24] T 35.
In cross-examination, TL agreed that after the bathroom incident the accused came into her room and was talking and playing in the room with her. It was then put to her that this was different from what she had said earlier. She responded:
Yep. I don’t really remember that well. I’m pretty sure – he picked up a couple of things. I thought that is what you meant.[25]
[25] T 36, 10-21.
TL was then asked about the recorded interview she had with police in May 2019. She agreed that she understood that when she was speaking with the police officer, she was talking about something that was very important and that it was very important to tell the officer accurately what happened.[26]
[26] T 36, 22-38; T 37, 1-6.
It was then put to TL that she had told police that the accused ‘kind of said “sorry” and then we just kept talking and playing in the room. That’s where most of the toys and stuff was.’ She agreed she told police ‘something like that’. She then agreed that it was different from what she had said in evidence, but she explained:
Yes, because I didn’t remember like properly, because it was so long ago’.[27]
[27] T 38, 25-26.
TL agreed that in relation to the bedroom incident she could not recall where she went shopping, what clothes were bought or where BJL and JK went when they left the house.[28] She could not recall what clothes she had on before she got changed into the clothes she had laid out on the bed.[29]
[28] T 39, 17-30.
[29] T 40, 17-19.
It was then put to TL that when she first spoke to police in the interview in 2019, in the first version of what she said had happened at the accused’s house, she did not tell them about him putting his hands out and moving them towards her vagina. TL said that she did.[30]
[30] T 40, 25-30.
It was then put to TL that she told police in the interview in 2019 that, ‘We were in his bedroom. He said, ‘you should get dressed’. And then he tried to help me take my pants off and I put them back on’. TL said that she thought that she had told police this during the interview.[31]
[31] T 41, 1-14.
It was then put to TL that the police officers said the following to her, ‘Okay, so you say he saw your private parts. What else happened’ and she said, ‘what do you mean, like’ and the police officer said, ‘he saw your private parts’ and she said, ‘yeah.’. The police officer said, ‘and tell me what else happened between him seeing your private parts and the others getting home’, and she said ‘Um that was pretty much it. They didn’t take that long’.[32] TL agreed that this was the first version she had given police in May 2019. She agreed that in that version she did not mention that the accused tried to move his hands towards her vagina.[33]
[32] T 41, 16-23.
[33] T 42, 1-4, T 45, 22-38; T 46, 1-7.
In relation to the bedroom incident, TL agreed that later in her interview with police she told them how it was that her clothes came off her bottom half.[34]She then said she did not remember what she was wearing at the accused’s house on this occasion but said that she was wearing long pants and knickers.[35] She was then asked this series of questions about what she told police in the interview in May 2019:
[34] T 47, lines 7-12.
[35] T 47, lines 13-22.
QThe police officer said, ‘Did you still have your knickers on?’ and you said, ‘They were like half off to about here’. The police officer ‘Okay. You said ‘Where my shorts were hanging’. The police officer said, ‘Yep and who pulled them down to that point?’ and you said, ‘I think it was him’. The police officer said, ‘Okay’. You said ‘That’s what I think though, so I don’t remember that much’. Do you agree that that’s what you told police when you had your interview with them in 2019.
AYeah.
QDo you agree that in that interview first of all you told the police that you were wearing shorts –
AI was not wearing shorts. I never wore shorts back then.
HER HONOUR
QThe question was whether you agreed you told police that you wore shorts.
AI don’t think I would have.
XXN
QYou’ve told us that you never wore shorts at that time.
ADo you agree with that.
QYes.
AYou’ve told us today that you remember now that you were wearing long pants.
QYep.
AWhen I read to you, ‘Where my shorts were hanging’, is that now something that you say you didn’t tell the police.
QYeah. I didn’t say that to the policeman.[36]
[36]T 49, 1-30.
TL agreed that when she told police that she thought it was the accused who pulled her pants and knickers down this was different from her evidence, because she said in evidence she recalled the accused pulling down the clothes she was wearing on the bottom half of her body.[37]
[37] T 50, 3-10.
TL’s explanation for the inconsistency was that she had ‘thought about it more’. She agreed that she could not remember what shops she had been to, what clothes she put on after the incident, and that she had told police that she thought it was the accused who pulled her pants down because she did not remember that much. She agreed that when she spoke to police in May 2019, she could not remember what had happened with her knickers. TL agreed that memories fade with time.[38] She was then asked the following series of questions:
QIs part of what you’re telling us about you not having a complete memory of things and trying to piece them back together with the bits that you can remember.
AYep.
QPutting back together what you think might have happened back then.
AYep.[39]
[38] T 50-51.
[39] T 51, 24-30.
Defence counsel then showed TL a photograph.[40] TL agreed that it was a photograph of her wearing shorts and that it was taken on one of her trips to Queensland.[41]
[40] D3.
[41] T 53.
CH’s evidence
CH met the complainant’s brother, DJHL in high school and they dated for three to four years from the beginning of 2014. DJHL had three siblings, CL, BJL, JL and TL. Their parents died in July 2016. DJHL, BJL and TL then moved in with CH and her parents.[42]
[42] T 59.
CH first met the accused when her grandfather, John Daniel, was in hospital dying. The accused was in a relationship with CH’s aunty, JK and CH met him at the hospital when they both attended. She next saw him at her cousin’s 18th birthday party. At that party, the accused and BJL and TL sent Facebook friend requests to each other. CH said that the girls were playing and laughing that night and that was ‘just kind of how the relationship began, that they felt safe and they felt that he was fun, so they began having a relationship with him’.[43]
[43] T 60-61.
After the party, there was a lot of contact between the girls and the accused via messages on their phones. CH would go through the girls’ phones at night-time because she thought they were really young to have phones. Initially, TL had an iPad that did not work properly, and she would sometimes use CH’s computer but eventually the accused gave TL an iPod or and iPhone so that he could communicate with her and CH and DJHL[44]The communications were very consistent, from the morning until night-time, and included face-time. CH heard the accused saying things like, “Okay, call me. Make sure you listen to CH and DJHL but call me once you have finished, I’ll be here to talk’.[45]CH said that she never observed any conversations between JK and the girls.
[44] T 61, 19-30.
[45] T 64, 15-32.
DJHL, BJL and TL moved out of CH’s parents’ home to an address in Valley View for 6 months and the accused and JK would babysit the girls at that address.[46] They then moved to Mawson Lakes and the accused and JK were living a few blocks away.[47] The accused and JK took the girls out to the movies or to go shopping.[48]
[46] T 62, 10-16.
[47] T 61, 35-38.
[48] T 62, 17-24.
CH could only recall two occasions when the girls slept over with the accused and JK. The accused and JK were always willing to help out with the girls and often said they would drop their plans to help out. CH recalled one sleepover when she was shown the accused and JK’s house. She said there was the bedroom used by the accused and JK, and a spare bedroom where the girls were going to stay and board games and snacks were set out.[49]
[49] T 63.
The arrangements for babysitting were often discussed between the accused and TL or BJL, and then the girls would come to CH, or the accused would tell CH that he had checked with the girls and that they wanted to do something, and he would offer to pick them up. They would see the accused at least once a week. The arrangements were made together for both girls most of the time.[50]
[50] T 65.
CH broke up with DJHL at the end of 2017 and she moved to Queensland for a couple of months after that. She was aware that the accused and JK had also moved to Queensland when the accused got a job. They were already in Queensland when she moved there. The accused had moved there at the end of September 2017 or early October 2017.[51]
[51] T 66, 1-24.
In cross-examination, CH agreed that, whilst she was in Queensland, the accused and JK bought her some make-up from Sephora and a dress. She agreed that it was not just the girls for whom the accused and JK were buying gifts.[52]
[52] T 66, 26-38; T 67, 1.
CH agreed that there was nothing inappropriate in the messages she read between TL and the accused. CH said that the accused gave TL an iPhone, and it was not passed down via BJL. CH disputed the suggestion that the girls had stayed with the accused and JK in Queensland, but acknowledged that this could have occurred when she was on a break with her boyfriend.[53]
[53] T 67, 28-38; T 68, 1-5.
CH said that the accused and JK did not have children of their own and that they were offering respite care to her and DJHL. Part of this included the buying of clothes and shoes, although CH had asked the accused to stop doing this because DJHL’s daughter was feeling left out. The shopping trips were with both the accused and JK.[54]
[54] T 68.
Other evidence
A statement of DJHL was tendered and read onto the transcript. In it he said that he was the oldest of 4 siblings, he had two younger sisters, BJL and TL and a younger brother JL. After his parents died in 2016, he became his siblings’ carer. The family moved into CH’s family home for 4 months and then into a house at Valley View for a year. They then moved to Mawson Lakes. Whilst at Mawson Lakes, he met the accused and JK. They all got along well and met again soon after. The accused and JK then asked DJHL and CH if they would like them to watch the girls while they had a night out. This occurred a couple of times and involved the girls going out with JK and the accused for a few hours. Over time, it started to get longer, to the point where the girls would stay overnight at their house. This happened around a dozen times all up. During 2018, the accused and JK started buying the girls presents, starting off with a few presents but then it started to get silly with lots of items being bought for them.[55]
[55] T 70; P 4.
The agreed facts were then read onto the transcript.[56]
[56] T 71; P5.
The accused’s record of interview was then tendered and played in court.[57]The transcript was marked for identification.[58] The accused was interviewed on 15 September 2019, at the Elizabeth Police Station. The accused said that his partner’s niece was dating TL’s older brother and he had met them at another niece’s 18th birthday party. He said that they were orphans and because they did not have much money, they started to offer to take care of them occasionally. The relationship continued and ‘we just took them places and went out with them’.
[57] T 72-72; P6.
[58] T 72; MFIP6A.
The accused said that the girls did not stay ‘for any protracted period of time’ and that they slept over about three times. They would sleep on a blow-up mattress in the lounge room. The accused confirmed that he and JK were living at [address redacted], Mawson Lakes but lived in Queensland for 18 months. While in Queensland, they flew the girls up there to stay with them occasionally. He said they did that because their parents had died and ‘we felt really horrible for them’.
The accused said that if he had been telling TL to get changed it would have been out of her pyjamas and into regular clothes and he would hand them to her and show her the bathroom and then walk away.
The accused was then told that TL alleged that she had seen him on the toilet and that he was standing there in his underwear had said to her, ‘I wanna show you something’ and that his penis had then come out of the opening in his briefs and he said sorry, and she walked away. The accused said he did not recall that taking place and that if he used the toilet, he would lock the door every time. He said he was incredibly careful.
The accused also said that he would always be fully clothed and the only time he would be in just briefs was on a hot night in his own bedroom with the door closed. He said if he was going to the toilet, he would be fully dressed. He said that he did have some boxer shorts with a slit at the front, but they were relatively recent and most of the ones he had did not have an opening at the front.
The defence case
The accused did not give evidence but called two witnesses to give evidence as to his good character.
The first witness was Ashlen Naicker. He was 37 years of age and had known the accused since 2012. Mr Naicker ran the IT departments of the Adelaide Zoo and a company in Queensland. He met the accused through his mother when Mr Naicker headed up the Adelaide Zoo IT. He employed the accused in Adelaide and, upon moving to Brisbane, employed the accused for just over a year. The accused was his systems administrator at both companies. Mr Naicker said he was aware that the accused had been charged with two serious allegations of sexual offending against a child, but this did not change his opinion of the accused. Mr Naicker described the accused’s reputation amongst people in the community as follows:
… Jeff is a very humble character, honest as the day is long, wouldn’t harm a fly. He’s got a heart of gold and wears it on his sleeve, a very trustworthy, honest young bloke with a bright future ahead of him. He is just the salt of the earth people, him and his family. They are just good folk and again, I’ve employed him twice in my professional capacity because of those traits, a model citizen in my eyes, big heart.[59]
[59] T 83, 8-15.
Alison Roach was the second character witness. Before retiring she was employed at Autism SA, working with children with autism for 17 years. She had known the accused for 20 years. His mother used to work with her at Autism SA and they became good friends and then family friends. She had seen the accused grow up. She described the accused’s reputation in the community as follows:
His reputation would be of an honest person, a good person, a caring person. He would always be there willing to help whenever anything came up. He’s very good with computers so he was always there. He has also helped my daughter who has a company with many IT issues.[60]
[60] T 84, 27-32.
Ms Roach confirmed that she was aware that the accused had been charged with two very serious offences of a sexual nature against a child but said this did change her view of the accused. She said that when she heard about the allegations, she was very surprised, because it was so out of character.[61]
[61] T 84, 33-38; T 85, 1-5.
Neither witness was cross-examined by the prosecution. I accept, unreservedly, the evidence given by Mr Niacker and Ms Roach. They were both impressive witnesses. Their evidence has probative significance in assessing the likelihood of the accused committing the offences charged, and in assessing the credibility of his answers in the record of interview. Accordingly, I direct myself that I must bear in mind this evidence when considering whether I can draw from the evidence a conclusion as to the accused’s guilt. I direct myself that I can use this evidence in assessing the likelihood of the accused having committed either of the offences charged and in evaluating the credibility of any explanations he gave in his record of interview regarding the allegations.
There was one further fact that was agreed during the defence case. It was that the accused and his wife, JK, were married on 3 July 2015.
Prosecution submissions
In closing, the prosecutor, Ms Davey, said that the central issue was the reliability and credibility of the complainant, and that the other aspects of the prosecution case were unchallenged.
In relation to count 2, Ms Davey said that the act the subject of this charge was a continuous one. The indecency was informed by what occurred after the complainant’s knickers and pants were pulled down. The putting of the accused’s hands on the complainant’s waist and moving them towards her vagina rendered the ongoing application of force one which occurred in circumstances of indecency.
In relation to count 3, there was no dispute that the complainant was under 16 years of age. Ms Davey said that the pulling of the accused’s penis out of a hole in his underwear and showing it to a young girl was grossly indecent considering contemporary standards of indecency.
Ms Davey argued that both counts were cross-admissible under s 34P (2) (a) and (b) of the Evidence Act 1929. Firstly, she said, the evidence on each count bore upon the likelihood of there being an innocent explanation for the conduct. Secondly, she said that if one count was found proved, that evidence demonstrated a sexual interest in the complainant and could be used for that purpose on the remaining count. Ms Davey acknowledged that the argument in favour of cross-admissibility under s 34P (2) (b) was diminished by the fact that there were ongoing opportunities for the accused to act upon any sexual interest in the complainant, including whilst she was visiting in Queensland, but he did not do so.
Ms Davey said that the evidence, including that of CH, established that the relationship between the complainant and the accused was close, and that this emboldened the accused to commit the offences and have some confidence that she would not complain. Ms Davey explicitly eschewed any suggestion that the buying of gifts was a form of grooming.
Ms Davey argued that the complainant’s age at the time of the offending and when giving evidence ought to be taken into account when assessing her inability to recall details surrounding the charged offences. Ms Davey argued that the complainant’s ability to recall the detail of the charged offences was good, and her description of the accused pulling his penis out of a hole in his underpants had the ring of truth to it.
Ms Davey said that the proved prior inconsistent statement regarding the wearing of shorts during the occasion of count 2, was not significant. Ms Davey made the same submission about the proved prior inconsistent statement regarding the accused coming into her room and playing with her after the occasion of count 3. Those submissions were based upon the age of the complainant and the asserted relationship between that and her ability to accurately recall details.
Finally, Ms Davey said that I ought not place much significance on the complainant’s failure to tell police that the accused put his hands one her waist and moved them towards her vagina when she gave them the first version of the bedroom incident. Ms Davey relied upon the complainant’s age and the nature of the allegations in support of this submission.
Defence submissions
Mr Allen QC, for the accused, commenced his submissions with the fundamental proposition that the age of a complainant does not change the standard of proof. Mr Allen QC then said there were three parts of the prosecution case that would not permit a finding of proof beyond reasonable doubt on either count.
The first part of the prosecution case to which Mr Allen QC referred, was the ‘fundamentally flawed’ evidence of the complainant. This had been established by proof of prior inconsistent statements on central issues. Mr Allen QC emphasised that the interview of the complainant provided her with an opportunity to elaborate on what the accused did during the ‘bedroom incident’ when she gave her first version of this encounter to police. Despite this, she failed to mention the allegation she made in her evidence that the accused had put his hands on her waist and moved them towards her vagina. Mr Allen QC said this was the most graphic and serious aspect of this incident and one that she was most likely to remember.
Mr Allen QC then referred to the internal inconsistency in her evidence when the complainant said in examination in chief that she could not recall what clothes she was wearing during the bedroom incident, but then in answer to questions from me said she was wearing pants and later, in cross-examination, said she could not remember what she was wearing, but then said she was wearing long pants.
Mr Allen QC also emphasised the proved prior inconsistent statement regarding the wearing of shorts. The complainant said she never wore shorts ‘back then’ and would not accept that she had told police she was wearing shorts. Mr Allen QC argued that this aspect of her evidence provided a window into her mind because it demonstrated her unreliability or untruthfulness when confronted with a prior statement that was inconsistent with her sworn testimony. This aspect of her evidence was further compounded by the proof, in the form of D3, that the complainant did wear shorts at the material time.
Mr Allen QC argued that the complainant’s assertion that her memory had improved over time simply could not be accepted, let alone accepted as a reasonable explanation for her ability to now recall who had pulled her knickers down, when this was something she could not recall in May 2019 when speaking with police. Mr Allen QC said that the complainant’s agreement with the proposition that she had put back together what she thought might have happened meant that the possibility of reconstruction, as opposed to actual recollection, could not be excluded.
In relation to the ‘bathroom incident’ Mr Allen QC said that the complainant’s evidence on this count was infected by the imprecision and inconsistencies attending her evidence on the first count. Mr Allen QC also emphasised the aspects of the complainant’s evidence that made her account inherently unlikely. Those aspects included the fact that the accused was (a) in an unlit toilet at sunset, (b) in a position that, on the complainant’s evidence of her vantage point, meant she could not have seen his penis whilst he was seated on the toilet and (c) sitting on a toilet whilst wearing his underwear despite flushing the toilet and washing his hands immediately thereafter.
Other aspects of her account that ought to engender a reasonable doubt included the fact that the complainant told police that the accused came into her room after this incident and played and talked with her, but in evidence said that he came into the room briefly and said ‘sorry’ then left, and her confident answer that he grabbed his penis with his left hand, only to then immediately correct her answer to right hand.
The second part of the prosecution case was the circumstances in which the accused came to have a relationship with the complainant. Mr Allen QC said these circumstances did not advance the prosecution case, but in fact provided an explanation for the accused’s interactions and relationship with the complainant. He referred to the concession by Ms Davey that the gift giving was not grooming behaviour and said that the accused and his wife were simply trying to help both CH, DJHL and the complainant and her sister, all of whom had been placed in a difficult position as a result of the death of the complainant’s parents. All of the evidence, including CH’s examination of the messages on the complainant’s phone, pointed to the accused and his wife together trying to assist the complainant and her sister and being generous and kind-hearted. Mr Allen QC emphasised that the accused and his wife were a ‘package deal’ when it came to their care of the complainant and her sister.
The third part of the prosecution case was the version of events given by the accused in his record of interview. Mr Allen QC said that the accused gave an account of his toileting and dress habits whilst the girls were staying with him and the arrangements for the girls when they needed to get changed, all of which were sensible and appropriate. Mr Allen QC emphasised that he spoke to police in a matter of fact and common-sense manner and that I can assess the credibility of his answers in that interview by reference to the evidence of good character called in the defence case. Mr Allen QC said that the central theme in the evidence of the character witnesses was the honesty of the accused.
Section 34M (2) Evidence Act 1929
TL said that she did not tell anyone about either the bedroom or the bathroom incident. She was not asked for, and nor she did proffer, any explanation for not making a complaint. No evidence was led as to how the matter came to the attention of the police. There is no evidence that there was an initial complaint as referred to in s 34M, and as that term has been interpreted in the authorities.
After closing submissions, and as the matter had not been addressed by either counsel, I invited counsel to make any further written submissions regarding the failure to complain, on the basis that the prohibition in s 34M (2) of the Evidence Act 1929 did not apply in a trial by Judge alone.
In her written submissions, Ms Davey argued that there is ‘no evidence of when the initial complaint was made’.[62] She also contended that the complainant’s evidence was that no complaint was made on the day of the offending and therefore there is no evidence of a delay in making a complaint.[63] I disagree. The questions asked of the complainant were whether she told anyone ‘about what happened that day’ in relation to the bedroom incident and whether she ‘told anyone about what happened’ in relation to the bathroom incident. The questions were not directed to whether a complaint was made on the day of each incident. Further, the fact that the matter came to the attention of police does not mean that there was an initial complaint under s 34M.
[62] Written Submissions, 19 May 2021, paragraph [6].
[63] Ibid.
In his written submissions, Mr Allen QC argued that the evidence of the complainant regarding her reaction to the bedroom and bathroom incident revealed that she understood the inappropriate nature of the conduct alleged. She gave evidence of recoiling when the accused put his hands on her waist and expressed disgust when he exposed his penis to her. Accordingly, this was not a case where a lack of understanding of the wrongfulness of the alleged acts rendered the absence of a complaint useless.
Mr Allen QC contended that I should find that the complainant was aware of the inappropriate nature of the alleged conduct and that on both occasions, a member or members of her family arrived shortly thereafter, providing an opportunity for the complainant to complain about the conduct. Mr Allen QC said this was not a case where violence, subjugation or familial influences may tend to explain the absence of a complaint. Accordingly, I could take into account, in assessing the complainant’s credibility or consistency of conduct, the failure to complain. Alternatively, the evidence that there was no complaint is not capable of supporting her credibility or demonstrating consistency of conduct.
No evidence was led regarding the circumstances in which the allegations came to the attention of police. No question was asked of the complainant about why she did not make a complaint to any person on the day of each incident or at any time thereafter. Had such evidence been led, there would have been an evidentiary basis to evaluate the probative value of the failure to complain.
I consider that there is force in the submissions made by Mr Allen QC. However, the absence of evidence from the complainant regarding the reasons, if any, for her failure to complain prevents me from making any firm finding that her failure to complain undermines the credibility of her account or is otherwise evidence of inconsistent conduct. The bald failure to complain is, in the circumstances of this case, intractably neutral.
Findings on undisputed matters
On the unchallenged or agreed evidence led at trial I make the following findings of fact:
·TL was born on 14 April 2008 and was under 14 years of age at the time alleged in count 2 and under 16 years of age at the time alleged in count 3.
·The accused married JK on 3 July 2015. They have no children together.
·The accused’s wife, JK is CH’s aunt.
·The accused first met TL and her sister, BJL at an 18th birthday party on 17 June 2017. Thereafter, the accused was in regular contact via social media with TL.
·Until September or October 2017, the accused and JK were living at [address redacted], Mawson Lakes.
·Prior to 27 July 2017 and for a period of about 6 months TL lived in an address at Valley View with DJHL and BJL.
·From 27 July 2017, TL lived at [address redacted], Mawson Lakes with her brother DJHL, sister BJL and niece.
·TL and BJL slept over at the accused’s house at [address redacted], Mawson Lakes on a few occasions when they were living nearby at [address redacted], Mawson Lakes.
·There was only one bathroom with a toilet in the house at [address redacted], Mawson Lakes, and its layout is accurately depicted in P1.
·After the accused and JK moved to Queensland, TL and BJL flew to Queensland and stayed with them on more than one occasion. The first visit occurred in the holidays in January 2018 and a photograph of TL was taken during that visit on 1 January 2018.
·TL was wearing a pair of shorts on 1 January 2018.
·TL was interviewed by police on 29 May 2019. In that interview, she told police, when asked to clarify where her knickers were, “Where my shorts were hanging” when discussing the ‘bedroom incident’.
Analysis
The evidence on each count is cross-admissible pursuant to s 34P (2) (a). The evidence is not cross-admissible under s 34P (2) (b) as evidence of sexual attraction and a propensity to act upon that sexual attraction. It does not possess the requisite strong probative value, having regard to the fact that there are two isolated occasions of alleged sexual contact despite a background of frequent contact between the complainant and the accused, and opportunities for the accused to act upon a sexual attraction to the complainant.
I direct myself that the evidence on each count admitted under s 34P (2) (a) cannot be used to suggest that the accused is more likely to have committed the offence alleged in the remaining count. The permissible use of that evidence is that it bears upon the likelihood of there being an innocent explanation for the conduct. Ultimately, whether the evidence is used for the permissible purpose depends upon the findings I make regarding the credibility and reliability of the complainant.
The case for the prosecution depends wholly upon the evidence of TL. In evaluating her evidence, I have taken into account her age and her level of maturity. She was still a young girl at the time she gave evidence and only 9 at the time of the alleged offending. My impression of her was that she was a relatively immature 13-year-old. She seemed a little nervous when she started giving evidence and appeared to become more settled and confident as her evidence proceeded.
There were many times during her evidence, in both examination in chief, cross-examination and in answer to questions from me, that she responded to a question with the phrase, ‘what do you mean’.
The questions put by counsel or me were not complicated and did not use language or terminology that might not be easily understood by a 13-year-old. For example, in examination in chief, TL was asked, ‘you described him taking your pants and knickers off. How did he do that?’ and she replied, ‘what do you mean?’[64]. TL was also asked ‘can you describe the underpants he was wearing’ and she replied, ‘what do you mean?’[65] Nevertheless, the fact and frequency of such responses, demonstrated TL’s ability and capacity to indicate when it was that she did not understand what was being asked.
[64] T 22, 18-20.
[65] T 31, 2-3.
The balance of the evidence led by the prosecution did no more than establish that there was a relationship between the accused and TL, and the opportunity for the accused to have offended in the way described. That evidence did not corroborate, or provide any independent support for TL’s account of the alleged offending. However, that evidence provided important context, demonstrating that the circumstances in which the accused and his wife came to have a relationship with TL, and the manner in which he interacted with her, were not sinister and did not involve grooming or any inappropriate communications.
Even taking into account her age and level of maturity, for the reasons that follow, I found TL’s evidence on both counts unconvincing.
In relation to count 2, I consider the proved prior inconsistent statements by omission and commission to be significant. The account given to police, less than two years after the incident is alleged to have occurred, was significantly different from the account she gave in evidence. When interviewed in May 2019, TL described the accused suggesting that she get dressed and then ‘trying’ to help take her pants off and her putting them back on, in the course of which he saw her ‘private parts’. She later said that she ‘thought’ it was the accused who pulled her knickers down to where her shorts were hanging but that she did not remember that much. She also told police that the accused then came into her room and they were talking and playing in the room.
The most serious aspect of the incident described by TL in evidence was the placing of the accused’s hands on each side of her waist and moving them towards her vagina. Despite being asked by police ‘and tell me what else happened between him seeing your private parts and the others getting home’ she simply said, ‘um that was pretty much it’.
TL’s explanation for the proved inconsistencies was unconvincing. Her suggestion that she ‘didn’t remember like properly because it was so long ago’ and that she had ‘thought about it more’, lacked credibility. TL’s insistence that she never wore shorts at the time of the alleged offending, coupled with her refusal to agree that she told police she was wearing shorts during the occasion of count 2, caused me to further doubt the reliability and credibility of her account. When confronted with a photograph taken of her wearing shorts on 1 January 2018, she had little choice but to agree that it was her in the photograph and that she was wearing shorts.
TL’s account was one of extremely risky behaviour by the accused occurring in circumstances where TL had an opportunity immediately to complain to her sister or the accused’s wife. These matters are relevant to the plausibility of her account.
Ultimately, TL agreed that she had put back together what she thought might have happened. This concession that she had engaged in a process of reconstruction would be sufficient to create a doubt about the reliability of her evidence. When combined with the matters set out above, and the accused’s denials in his record of interview and the good character evidence, I am driven to the conclusion that the ‘bedroom incident’ described by TL simply did not happen.
In relation to count 3, I found TL’s account inherently unlikely and internally inconsistent. TL said that the toilet door was closed, and the light was off. TL then said that the door was slightly open, about an inch. TL said that the accused was sitting but she could only see a tiny bit of the toilet from where she was standing next to the basin. TL said she could see his knees and also his hand on the doorknob.
P1 is a plan of the house at [address redacted] Mawson Lakes and depicts the layout of the bathroom in which this offence is alleged to have occurred. It is not to scale so I am not able to make any firm findings about distances. However, what is evident from P1 is that the door to the toilet opens inwards and towards the wall opposite the toilet itself. This means that the toilet seat is likely to have been a sufficient distance from the toilet door to enable it to be opened and closed freely whilst a person is seated on the toilet. TL’s evidence that she could only see a tiny bit of the toilet from her position standing near the bathroom door, at the basin, as marked on P1, supports this finding. On TL’s evidence, it is inherently unlikely that she could have seen the accused’s groin area from her position in the bathroom.
TL described the accused as wearing underwear and sitting at the time he ‘whipped out his penis’. The only thing that the accused could have been sitting on in the toilet was the toilet itself. In those circumstances, it is bizarre that he would have his trousers down below his knees, but his underwear still on, whilst seated on the toilet.
TL’s evidence of what occurred after she left the bathroom was also inconsistent with her account in cross-examination. In examination, TL said that the accused came into her room and said ‘sorry’ and then left. In cross-examination, it was put to TL that the accused came into her room and was talking with her and playing in the room and she said ‘Yeah. I think so’. When it was put to her that this was different from what she said in examination, she said that she did not remember very well and thought ‘he picked up a couple of things’ and that was what Mr Allen QC meant when he asked her that question. I found this explanation unconvincing.
When it was put to TL that she had told police in May 2019 that the accused came into her room, said ‘sorry’ and then just kept talking and playing in the room where most of the toys ‘and stuff’ were, she agreed she had said ‘something like that’. Her explanation for this inconsistency was that she ‘didn’t remember like properly because it was so long ago’. I found this explanation equally unconvincing.
TL’s account was one of extremely risky behaviour by the accused occurring in circumstances where TL was in her own home and had an opportunity immediately to complain to members of her family who had returned to the house shortly thereafter. These matters are relevant to the plausibility of her account.
The matters to which I have referred undermine TL’s credibility and reliability to the extent that, without more, I would have entertained a reasonable doubt as to the accused’s guilt on count 3. However, having regard to my findings regarding TL’s credibility and reliability in respect of count 2 and the accused’s denials in his record of interview and the good character evidence, I find that the ‘bathroom incident’ described by TL simply did not happen.
Verdicts
I find the accused not guilty of counts 2 and 3.
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