R v Kiely - [2016] SADC 59

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KIELY
Criminal Trial by Judge Alone
[2016] SADC 59
Reasons for the Verdict of His Honour Judge Chivell
16 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with aggravated indecent assault. Allegation that he approached an eight-year-old boy in a shopping centre and touched his penis through his clothing. Statements and evidence given by the complainant (at the time of trial aged nine) and his sister (at the time of trial aged 11) – issues of protected witnesses, evidence of children and unsworn evidence. Prosecution case proved beyond reasonable doubt.
Verdict: Guilty.
Evidence Act 1929 (SA) s 9, s 34, s 34CA, s 34D, s 34M , referred to.
R v Byerley (2010) 107 SASR 517; H, SA v Police (2013) 116 SASR 547; R v Cheng [2015] SASCFC 189; R v J, AP (2012) 113 SASR 529; R v Haak (2012) 112 SASR 315; R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162, considered.

R v KIELY
[2016] SADC 59

Mr Kiely is charged with aggravated indecent assault. He pleaded not guilty. He was represented by Mr Cole.
The charge is aggravated because the alleged victim was under the age of 14 years. He was eight years old on 9 June 2015, when the relevant events took place. I will call him ‘C’, and his 10-year-old sister ‘P’.
C and P lived with their mother, ‘M’, at Moana Heights. The local IGA supermarket was about 200 metres away from their house. M said that the children would occasionally go to the shops together without her supervision.[1]
[1] T 106.
On 9 June 2015, M asked C and P to go to the supermarket to get some butter. They left at between 4:00 and 4:30 pm. About 20 to 30 minutes later, P telephoned M and, as a result of that, she went directly to the supermarket. When she got there, she noted that C was ‘shaken up’.[2] She took the children home and spoke to them. They told her that a man had touched C on the penis. She called the police.
[2] T 108.
Mr Kiely was arrested at the Adelaide Airport on 26 June 2015 and charged with aggravated indecent assault. He was in the process of returning home to Perth.
C’s Interview with the Police
C was interviewed by the police on 10 June 2015. The disk containing a record of the interview is Exhibit P3. It was tendered, without objection, pursuant to s 34CA of the Evidence Act 1929.
Evidence Act, s 34CA
I was satisfied that the statements had sufficient probative value to be admitted.[3] C was available to be called as a witness in the proceedings.[4] Mr Cole sought and was granted permission to cross-examine C on certain issues.[5]
[3] s 34CA(1)(a).
[4] s 34CA (1)(b)(i).
[5] s 34CA(1)(b)(ii) and s 34CA(2). See R v Byerley [2010] SASCFC 3, (2010) 107 SASR 517; H, SA v Police [2013] SASCFC 86, (2013) 116 SASR 547.
Evidence Act, s 9
After speaking with C, I determined that he did not have sufficient understanding of the more extensive obligation to be truthful entailed in giving sworn evidence. I permitted C to give unsworn evidence. I was satisfied that he understood the difference between the truth and a lie. I told him it was important that he tell the truth, and he told me he would do so.[6]
[6] Evidence Act, s 9(2).
None of these determinations was opposed by Mr Cole.
I remind myself of the need for caution in determining whether to accept C’s unsworn evidence, and the weight to be given to it.[7]
[7] Evidence Act, s 9(4).
I also admitted a statement made by P on 10 June 2015. At that time, P was 10 years old. She was 11 at the time of trial.
I made the same determinations as to the admissibility of the interview pursuant to s 34CA of the Evidence Act, and P’s ability to give unsworn evidence pursuant to s 9 of the Act, as I did in relation to C.
Again, none of these determinations was opposed by Mr Cole.
I also remind myself of the need for caution in determining whether to accept P’s evidence, and the weight to be given to it, because the evidence is unsworn.
The evidence from these statements may be used to prove the truth of the facts asserted therein.[8]
[8] Evidence Act, s 34CA(3).
I have also had regard to the provisions of s 34D(1) of the Evidence Act. This provides:
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
I indicate that I will assess the credibility and the reliability of the prosecution evidence having regard to s 34D(1).
In considering these provisions, I have regard to the judgment of the Court of Criminal Appeal in R v Cheng,[9] in particular the judgment of Sulan and Peek JJ. From that judgment I extract the following principles, which form the basis of directions to myself when considering the evidence adduced:
·I must specifically consider all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statements made by C and P in this matter as required by s 34D(1), in particular the contemporaneity or otherwise of the statements, whether there is evidence in the interviews about the level of the cognitive development of C and P as adduced by the interviewer, and any change in the level of the child’s cognitive development between the giving of the interview and the giving of evidence in May 2016;
·any relevant circumstances deriving from the circumstances of the interview, and in particular the qualifications of the interviewer, the nature of the questions asked and the extent to which they were leading questions, and whether the circumstances of the interview induced in C and P a knowledge of the true importance of being precise and truthful, having regard to the seriousness of the subject-matter;
·whether C and P were aware of the significance of the interview and the necessity to be truthful or whether the relaxed and informal interview setting reduced their appreciation of the importance of being strictly accurate and of the important effect that mistakes, exaggeration or falsehood may have had;[10]
·the statements admitted pursuant to s 34CA are not to be afforded the status of unsworn evidence because the evidence is not given in court and has not been subjected to the procedure laid down in s 9(2);[11]
·the fact that neither C nor P had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence is relevant to the weight to be given to the statements made when they were younger and less mentally developed; in other words, if, at the date of trial, the child did not have a sufficient understanding of the obligation to be truthful, then that child would have even less understanding of that obligation 11 or 12 months earlier, when making the statement;
·on the basis of these considerations, does the evidence of C and P provide a sufficiently firm basis for a finding of guilt beyond reasonable doubt?[12]
·in all those circumstances, whether the combination of circumstances calls for a Murray/Robinson direction.[13]
[9] [2015] SASCFC 189.
[10] Cheng [67].
[11] Cheng [64]-[65].
[12] R v J, AP (2012) 113 SASR 529 at [89].
[13] Cheng [136]; R v Haak (2012) 112 SASR 315 at 322-3.
General Directions
I remind myself of the following fundamental principles:
·Mr Kiely is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
·The burden of proving guilt rests on the prosecution. There is no onus on Mr Kiely to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of Mr Kiely.
·Mr Kiely elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Ms Matteo, counsel for the prosecution. He denied the charge, and answered questions about the surrounding circumstances. He should be given credit for his decision to undertake this process in terms of the credibility and reliability of his evidence.
·Mr Kiely’s evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Even if I reject his denials beyond reasonable doubt, that does not bolster the prosecution case. For Mr Kiely to be convicted of this offence, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A person may not be convicted on doubtful, insufficient or unreliable evidence. A mere suspicion of guilt, or even if there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
Elements of the Offence
The prosecution must prove each of the following elements of the offence of aggravated indecent assault beyond reasonable doubt:
1.The accused assaulted the complainant. An assault is an application of force. Touching is sufficient. It need not have caused injury.
2.The touching was intentional as distinct from accidental or inadvertent.
3.The touching was without lawful excuse.
4.The touching was in circumstances of indecency – that is, conduct that is unbecoming, or offensive to common propriety.
The circumstance of aggravation is that the complainant was under the age of 14 years at the time.
The Prosecution Evidence
On 9 June 2015, M asked C and P to go to the supermarket to get some butter. She said they left at between 4:00 and 4:30 pm. P took her mobile phone with her. She was walking and C was riding his BMX bicycle.
About 20 to 30 minutes later, P called M. As a result of what P said, M went directly to the supermarket. When she got there, C was ‘shaken up’.[14] She took the children home and called the police.
[14] T 108.
When they arrived home, the children told M what had happened. She made notes. She did not differentiate who said what in the notes. She recalled that she was told that a man walked by and touched C on the penis. C said ‘Don’t do that or my mum will call the police’.[15]
[15] T 117.
Agreed Facts
The following are facts which have been agreed by counsel pursuant to s 34 of the Evidence Act.
1.The date of birth of [C] is 18 May 2007.
2.The date of birth of [P] is 6 April 2005.
3.Exhibit P1 is CCTV footage from the IGA supermarket situated at 55 Babbacombe Drive, Moana Heights on Tuesday 9 June 2015, depicting the interior side of the entrance doors into the store.
4.The date/time stamp contained on Exhibit P1 is 30 minutes behind South Australian time as at 9 June 2015.
5.Exhibit P1A, being the document headed ‘Schedule of Moana IGA CCTV Footage’, describes persons depicted within the footage and their movements at times displayed on the digital counter and the date/time stamp on the footage. The column headed ‘Actual Time’ represents South Australian time at the time of the occurrence of the events depicted within the footage as described in the schedule.
6.At about 4:45pm on Tuesday 9 June 2015 uniform police officers Senior Constable Stephen Strickland and Russell Kolenberg were tasked to attend at the IGA supermarket at Moana Heights in relation to the alleged indecent assault of a child. They checked the surrounding areas for a possible suspect but no person was located.
7.Senior Constables Strickland and Kolenberg attended at the residential premises of [C] and [P] on Tuesday 9 June 2015, at which time no image or photograph of any person was shown to either child.
8.At 9:50am on Wednesday 10 June 2015 Detective Brevet Sergeant Sasha Lisle conducted an interview with [C] at the Christies Beach Police Station. Exhibit P3 is an audio-visual recording of that interview.
9.During the course of the interview Exhibit P3 Detective Brevet Sergeant Lisle produced a body diagram Exhibit P3A to [C].
10.At 9:58am on Wednesday 10 June 2015 Senior Constable Amber Shreeve conducted an interview with [P] at the Christies Beach Police Station. Exhibit P5 is an audio-visual recording of that interview.
11.On Friday 3 July 2015 Detective Brevet Sergeant Lisle conducted a photographic identification procedure with [P] at the Christies Beach Police Station. Exhibit P7 is an audio-visual recording of that procedure.
12.During the course of the identification procedure conducted with [P] Exhibit P7, a folder Exhibit P8 was presented to [P].
13.Image no. 4 contained within the folder Exhibit P8 is a photograph of the defendant Craig Kiely.
Evidence of C
The children were interviewed separately the next day. C was interviewed by Detective Brevet Sergeant Sasha Lisle. The disk containing the audio-visual record of the interview is Exhibit P3. A transcript, marked as an aide-mémoire, is MFI P3B. I will give references to the transcript for convenience.
After some introductory questions, Detective Brevet Sergeant Lisle, in a commendably non-leading way, asked C to tell her why he was there. He said:
Because of what happened last night when we were going to the shops. We went, we were going to the shops to get some butter for my mum and a lolly for us.[16]
And then when we were going down the stairs we um saw this man that we never seen before and he said do you want me to walk you home, are you okay? And then he walked past me and touched my part. And then he just walked away and said are you f’in gonna run me over cause there was this car that nearly ran him over.[17]
[16] MFI P3B, page 3.
[17] MFI P3B, page 4.
Later in the interview, C elaborated. He said that as they were leaving the supermarket, they were at the bottom of the stairs and his sister was ‘cleaning out her pockets.[18] He later explained that ‘stuff’ had fallen out of her pockets because they were too full.[19]
[18] MFI P3B, page 8.
[19] MFI P3B, page 19.
C indicated his position and that of his sister on the photograph Exhibit P4. He continued: [20]
[20] MFI P3B, page 12.
Um he came over, um [P] was cleaning out her pockets. He said are you okay, do you want me to walk you home and we said no and then he came over to me and touched my part and then walked away.
C described the man as:
·having ‘gingy’ hair;
·lots of scabs on his face and freckles;
·wearing a black jacket with grey pockets, running shoes and jeans;
·having ‘grotty’ teeth;
·having ‘dark coloured eyes’.[21]
[21] MFI P3B, page 12.
When asked where the man touched him, C pointed to the genital region on a diagram produced by Detective Brevet Sergeant Lisle.[22] He said he called that part of his body his ‘willy’.[23] He said the man touched him on the outside of his clothes.[24]
[22] Exhibit P3A.
[23] MFI P3B, page 13.
[24] MFI P3B, page 14
C’s description of the man was quite accurate. Mr Kiely does indeed have light ‘ginger’ hair. His description of the clothes worn by the man who touched him corresponds quite closely with what Mr Kiely was wearing as depicted on the supermarket CCTV.[25] C and P have never seen this material.[26] Detective Brevet Sergeant Fiona Shepheard said that at the time of his arrest on 26 June 2015, Mr Kiely had a red complexion and red marks on each side of his face, and his teeth were ‘rotten and brown’.[27]
[25] Exhibit P1.
[26] T 124.
[27] T 126.
Later, on 13 August 2015, C was also interviewed by Detective Brevet Sergeant Shepheard. This statement was not led by the prosecution under s 34CA. Mr Cole did cross‑examine C on its contents.
C gave further details about a number of aspects of his previous statements:
·after the man offered to drive them home and after they had both said ‘No’, and after P turned to pick up what had fallen from her pockets, the man came over to C and said ‘I didn’t ask you’ and then touched him;[28]
·on this occasion, C described the touching as the man ‘rubbing’ him. He explained that while the man was squeezing his penis, he was also moving ‘his hand around with his fingers and that;[29]
·after the man touched him, C ‘screamed … let go right now’;[30]
·the man squeezed his penis for about two minutes, but when asked to compare it with a timer, he said stop at 30 seconds.[31] Detective Brevet Sergeant Shepheard observed that C did not appear to have an understanding of time;[32]
·C also ‘smacked’ away the man’s hands;[33]
·after he went across the road, the man hid behind a tree. P went over there but did not find him.
[28] T 130.
[29] T 69.
[30] T 131.
[31] T 133.
[32] T 140.
[33] T 132.
C was also interviewed by Ms Baohm at the Director of Public Prosecution’s office on 26 October 2015. There was a discussion with C about ‘exaggeration’. In cross-examination, C, after having the word ‘exaggerate’ explained by Mr Cole, denied that he admitted to Ms Baohm that he had been exaggerating.[34] Detective Brevet Sergeant Shepheard said that C had said to Ms Baohm that he had exaggerated when he said he slapped the man’s hand away, and that he had yelled out to P to help him.[35]
[34] T 71-3.
[35] T 137.
C gave unsworn evidence and was cross-examined by Mr Cole. There were some discrepancies on matters of detail. For example, C said that when the man offered to walk them home, he was speaking to both of them.[36] In the interview, he said the man was speaking to P.[37] C said they both said ‘No’.[38] I do not regard such discrepancies as significant.
[36] T 57.
[37] MFI P3B, page 12.
[38]T 58.
C did go further than his original allegation that the man ‘touched’ his penis. In examination he said that the man ‘squeezed’ his penis ‘really hard’.[39] In cross‑examination, C said that he used ‘touching’ because ‘that’s what I feel like saying … I think it’s like another word like touching is another word for saying like “grabbing”.’[40]
[39] T 35.
[40] T 59.
C said that the man ‘only held it for about a couple of seconds’.[41] He later said the man squeezed it for about 30 seconds.[42]
[41] T 51.
[42] T 62.
Again, I do not regard these discrepancies as significant. Time is difficult to estimate in retrospect, particularly if a person is frightened, and I do not expect that a nine-year-old child would have a clear idea of what 30 seconds means.
C said that after the incident the man crossed over Babbacombe Drive. He swore at the driver of a car that ‘nearly ran him over’.[43] In the interview, he had said that the man called out: ‘Are you ‘f’in gonna run me over’.[44]
[43] T 53.
[44] MFI P3B, page 4.
C said he saw the man walk down Babbacombe Drive, then into Fishcombe Court.[45] He called P’s name and she came over to him. He told her what had happened. She called M on the phone.
[45] T 54.
C is a bright and quite an articulate child. His responses to Detective Brevet Sergeant Lisle in the interview, and in court to counsel, were appropriate and thoughtful. There was no sign of evasiveness or reconstruction, nor of a desire to embellish his evidence. Having regard to his age, at the time of the interview and at trial, he was a good witness.
Evidence of P

P’s interview on 10 June 2015 was with Senior Constable Amber Shreeve. The record is Exhibit P5 and the transcript, to be used as an aide-mémoire, MFI P5A.
After another commendably non-leading invitation to ‘tell me why you’ve come here’, P said:[46]
AUmm yesterday Mum let us //// to hop to the shops to get some butter. And we were on the steps and everything fell out of my pockets and a man walked past and said “are you okay. Do you want me to walk you home” and I said “no I’m okay thank you” and then he walked past and touched [C].
Q42Okay. So he said “are you okay”.
A“are you okay. Do you need me to walk you home”. And then we waited for him to go down the street and then we gave mum a call.
Q43Okay. So I wasn’t there when it happened so start from the beginning. Tell me everything that happened.
AOkay. I asked mum if we could go up to the shops to get some butter and a lolly each. And when.. we walked up to the shops fine and when we got there, [C] put his bike down and we grabbed a lolly each and I grabbed butter. Then I paid for it and because [C] was running short of money, I had to give him some of mine and then I had to go back in to the shop to see umm what I had left to buy and then [C] came in cos he didn’t know where I was and I told him to stay outside and then he walked through the shops and I saw him, and I said ‘why are you in here”. And he said umm “I was in here looking for you” and then I said “I told you to wait out here” and then I gave Mum a call to let her know that we were on the way home. And then we were half way down the stairs and everything fell out and I put it back in and then the man, like said that.
[46] MFI P5A, page 5.
Later in the conversation, P told the officer what happened after the various items fell out of her pockets:[47]
ASo I put it in to groups. There was no money in the purses any more so umm I put them in my pocket and then that guy came up to us and said ‘are you okay”, and then he asked “do you need a lift. Like do you want me to walk you home”. And then half way through the road, I said I’m going to call mum and then he… this car came behind him and he said “///// you minda” and then umm I called mum and he started jumping down the hill.
She added:[48]
AAnd then he walked past. When I went back to what I was doing, I didn’t see him touch [C].
Q92You said the man touched [C]. How do you know the man touched [C].
ACos he told me after. Straight after he had .. like was half way through the road, once I’d talked to him.
[47] MFI P5A, page 9.
[48] MFI P5A, page 10.
P’s description of the man was similar to C’s:[49]
ARunning shoes. And then he had like a bit of gingery and a bit of grey in his hair. He had a dark voice.. or a deep voice.. Um he had dark eyes. Umm he had scabs all over his face. Umm he had two shopping bags.
She said the man was carrying two shopping bags, one in each hand.[50] She added the description:[51]
AWell he had some scabs.. like he’d been in a fight or something. And he had like like ///// all over his face, especially on the top of his head there … he had like pimples like on his chin. And he had grotty teeth.
[49] MFI P5A, page 12.
[50] MFI P5A, page 13.
[51] MFI P5A, page 13.
On 3 July 2015, P attended the Christies Beach Police Station and examined an array of eight photographs. A recording of the procedure is Exhibit P8. P indicated that the man who spoke to C and her on 9 June 2015 was depicted in the photograph No. 4 in the array. She placed her signature alongside the photograph. It is an agreed fact that photograph No. 4 is a photograph of Mr Kiely (Agreed Fact No. 13). (C did not select any of the photographs presented to him during a similar procedure on the same day.[52])
[52] Evidence of Detective Brevet Sergeant Shepheard, T 127.
P also gave unsworn evidence, which was substantially consistent with her statement to the police officer. She said, specifically, that after the incident, C said to her, ‘That man touched me on my willy’.[53] This statement was led, without objection, as an initial complaint.[54]
[53] T 79, 89.
[54] Evidence Act, s 34M.
P was also a bright and articulate child. She gave a detailed account of what she said happened. She gave me no cause for concern that she was being untruthful, or had reconstructed a false story as a result of suggestion. In the context of her preoccupation with the articles that had fallen out of her pockets, there is nothing surprising about her evidence that she did not see the touching. In light of that statement, her other evidence is, in my view, all the more credible.
Initial Complaint
It is noteworthy that the initial complaint to P took place almost immediately after the alleged touching.
The conversation between the children C and P at home with M after the incident was led, again without objection, as an elaboration of the initial complaint.[55] The content of the elaboration by C to M is unclear, since she was unable to say which of the children said what during the conversation. However, the detail given to her was consistent with C’s complaint to P, and with C’s evidence in court.
[55] See s 34M(6) of the Evidence Act.
Section 34M(4) provides that the evidence is admissible both to show ‘how the allegation first came to light’[56] and as ‘evidence of the consistency of conduct of the alleged victim’.[57] It is not admitted as evidence of the truth of C’s allegation.[58]
[56] Section 34M(4)(a)(i).
[57] Section 34M(4)(a)(ii).
[58] Section 34M(4)(b).
Section 34M(4) concludes that ‘it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case’.
I conclude that the evidence of C’s complaint to P is significant in that it shows that he made an immediate, spontaneous complaint to her which is consistent with how one would expect a child of eight to act in those circumstances. The details of his complaint are also consistent with his evidence. The significance of the elaboration is much less – it adds very little to the above, in view of the way the conversation transpired. Nothing inconsistent was said, but for present purposes, I ignore it.
The Defence Evidence
Mr Kiely gave sworn evidence. He said that on 9 June 2015, he had been in South Australia for five or six weeks. He lives in a suburb of Perth. He had a problem with addiction to amphetamines. As a form of intervention, his son had taken him to the airport and put him on a plane to Adelaide. The plan was that he stay with his sister, who lived in Fishcombe Court at Moana Heights.
As to the alleged incident, Mr Kiely said he did not specifically remember that day. He accepted that he was there. He went to the IGA supermarket. He often purchased his cigarettes and groceries for his sister from there.
Mr Kiely did recall speaking to two children in the vicinity of the supermarket in the late afternoon/early evening. He said that one of them had a bike. He or she was on the bitumen surface of Babbacombe Road. The other one was on the dirt section between the footpath and the road. They looked ‘lost’ and ‘bewildered’. He had a legitimate concern about them.[59] He gave the following evidence:[60]
Q.     And these kids that you spoke to, did they have bikes or no bikes or one bike.
A. I didn’t say that they looked like they come from a lower socio-economic group, no, but I took a legitimate concern, as I had good intentions, no – no way, shape, or form will I offer assistance to any child any more, due to this.
Q.   Leave that aside for a minute. These two kids that you spoke to – did you speak to both of them or one.
A.   As I can recall I just spoke to the young girl, young – young girl. I just asked if they were okay as far as I was concerned and I’m sure I didn’t offer assistance for them to get home but I might have said ‘Are you right to get home?’ I can’t remember precisely but if I had have done I would have gone home and got my niece to give them a lift home, I don’t know. My family are very close and I identify with the emotional love greatly within my family, not filthy disgusting such things at all as that, never.
[59] T 150-1.
[60] T 152.
Mr Kiely said it was obvious that the children were not accompanied by an adult.[61] He said the girl attracted his attention first. He said:[62]
I know she seemed to be the one that was more – more fragile, more inclined to be in trouble of some sort, I suppose. Not ‘trouble’, but just – it was just a legitimate concern that two youngsters might have been okay, they seemed confused somewhat. I can’t remember exactly.
He said he looked at the children for 10 to 15 seconds.[63] He marked his position on Babbacombe Road from where he observed them.[64] He then became extremely evasive as Ms Matteo sought to question him about the unlikelihood that he would turn around and converse with these children when standing in the middle of the westbound carriageway of Babbacombe Road.[65]
[61] T 182.
[62] T 182.
[63] T 183.
[64] Exhibit P2, photo no. 6.
[65] T 184-6.
Mr Kiely said the girl had been polite, but the boy, or the ‘young man’ as he called him was more ‘stand-offish’, he had an ‘attitude’, he looked at him ‘peculiarly’. Mr Kiely gave me the firm impression that he took a dislike to the boy. He said that after the children told him that they did not need assistance, he ‘turned around and went on my way’.[66]
[66] T 191-2.
Mr Kiely denied that he touched the boy in any way.[67]
[67] T 192.
Mr Kiely was a particularly unsatisfactory witness. He was evasive and defensive. He continually tried to narrow the scope of the cross-examination with answers like:[68]
Because I can remember within a reasonable time that – I don’t think it had anything to do with whether I was on cannabis or not. But as far as I can remember it was highly, more than highly, likely that I wasn’t, and – I’m repeating myself here over and again, and that is what I’ve said to you is as much as I can tell you. No more and no less.
That was in answer to a question as to whether his lack of clear memory might have been attributable to cannabis use. He admitted that he was using cannabis at that time, but ‘it was more in the evening’.[69] He said it caused him to become ‘lethargic’ and have ‘delusions of grandeur’, and that it ‘addled the mind’.[70] He also admitted that it interfered with his memory.[71]
[68] T 191.
[69] T 191.
[70] T 173.
[71] T 173-4.
Mr Kiely said he was also taking prescription medication at that time. He was taking quetiapine, or Seroquel, and temazepam for what he thought was a bipolar disorder.[72] He said the Seroquel would give him some stability within (his) mind, and cause drowsiness. The temazepam, a benzodiazepine, would also be used to assist sleep, and to help with anxiety.[73]
[72] T 145, 159.
[73] T 159-60.
Mr Kiely said he was ‘reasonably certain’ he was not drinking alcohol at that time,[74] although he had combined alcohol with his medication at times.
[74] T 161.
In examination, Mr Kiely was asked whether he had a problem with drugs when he came to South Australia:[75]
Q.   Did you have a problem with drugs at the time when you came over here.
A.   Unequivocally, yes, I did.
Q.   What was that drug.
A.   Amphetamines.
[75] T 146.
Mr Kiely denied having a physical addiction to amphetamines, although he conceded he had a psychological or mental addiction.[76] He said he had not been using amphetamine for two to three weeks before coming to South Australia, although he was not certain about this. He said ‘I think approximately’.[77]
[76] T 168.
[77] T 169.
I have grave reservations about Mr Kiely’s evidence in this area. Ms Matteo put the incongruity of his evidence to him:[78]
Q. Is it the case that you were using amphetamine right up to the point of coming to South Australia and that's why you came.
A. Well, I didn't actually came, I was sort of - I was willing to do the thing, but I didn't want my family rather than giving me any particular time to deliberate over it they just whoop, whoop, whoop and whoop, and I was on the plane back to South Australia, or to SA.
Q. You told us yesterday you unequivocally had a problem with amphetamine by the time you came over here.
A. I'm not sure that's the word I used, I would say with reasonable certainty, yes.
Q. I suggest if you had been clean of that drug for two or three weeks before getting on the plane, you wouldn't have described it as an unequivocal problem.
A. I don't know if I did describe it as an unequivocal problem, I mean - it was most definitely a problem. Initially the problem wasn't to put the drug down, it was to keep the drug down and not continually use it relapse after relapse, and I sought help from different sources but I always found myself relapsing. It wasn't a matter of my willingness to give down the drug, it was a matter of - my associations at the time, and there's no-one more than myself that wanted to stop taking it, but it was, it became such a - my problem, I only speak from my reality, that it wasn't my - I would have such a - what's the word - a willingness, a desire to stop. It was, it's just a, you know, a vicious circle so to speak.
[78] T 169-70.
Mr Kiely’s Arrest
Mr Kiely was arrested at Adelaide Airport on 26 June 2015. He told the police he did not know what they were talking about.[79] He repeatedly denied the charge. He said he was ‘dumbfounded’.[80] He did say that it was an ‘unmitigated lie’ that he had ‘touched any boy on the penis’ or that he had ‘asked any little girl to be walked home’. This is not consistent with what he said in evidence.
[79] Exhibit P10A, line 31.
[80] Exhibit P10A, line 249.
He said: [81]
I might have said “are you all right to get home by yourself”’
…
I saw them walking home and I think I .. I felt something. There was something wrong with them and I asked them if they were all right. You know. Just through empathy. No through .. you know.. it was some time at night and just asked them if they were all right.
[81] Exhibit P10A, lines 375-390.
He denied that he was under the influence of any drug or alcohol at the time. He told the police he had ‘bipolar’ and that he took [Seroquel] and [temazepam] ‘to help me sleep’.[82]
[82] Exhibit P10A, pages 10-11.
Addresses of Counsel
Ms Matteo emphasised the consistency of C’s evidence as to the four basic aspects of the narrative: the location by the steps, P dropping stuff from her pockets, the man’s offer to assist them home, and the touching of C’s penis over his clothing. She submitted that some discrepancies of detail are understandable in the circumstances. She questioned the likelihood that two young children could fabricate such a story with that degree of detail. On P’s evidence, C had only a few seconds to produce a story if it was untrue, and both children elaborated to M only minutes afterwards.
Ms Matteo addressed the requirements of s 34D of the Evidence Act. There was no previous relationship between C and Mr Kiely, there is no suggestion that C had any ‘incentive to conceal or misrepresent facts’. C’s complaint was contemporaneous with the facts alleged, and there are no other circumstances which would lead to an adverse inference as to the accuracy or otherwise of C’s statement.
Of course, there is no onus on Mr Kiely to show that C has a motive to lie – I remind myself that people make false accusations where no motive to do so is apparent.
Ms Matteo pointed out that C’s evidence is also consistent with objective facts; for example, his description of the offender being consistent with the CCTV footage and the observations of the police officer.
It is also significant that C did not identify Mr Kiely from the photo array, whereas his sister did. It would be surprising if C had concocted these allegations, but then failed to identify the alleged offender. Similarly, if P was a party to the concoction, it would be surprising that she would say that she did not see the touching. In my opinion, these factors are significant in consideration of Mr Kiely’s contention that C’s allegation is a fabrication.
Mr Cole, on the other hand, criticised C’s evidence on the basis of the discrepancies between the various iterations of his evidence, particularly his failure to mention that he yelled at the man to let go, and P’s evidence that she did not hear such a thing. There were various examples identified by Mr Cole (whether C was wearing shorts or jeans, whether the man grabbed his penis using a fist, whether the man touched or squeezed his penis, whether the touching went on for two minutes or 30 seconds, and so on).
Mr Cole did not mince words. His submission was that C is a liar, that he has concocted this allegation, and that is why P did not see the act of touching.
Mr Cole said that it is implausible that Mr Kiely would do what C said he did in broad daylight. I reject this submission. On his own evidence, Mr Kiely said that he suffers from bipolar disorder, and takes medication for it. He was also a regular user of cannabis. He denied that he was using amphetamine at the time, although I have grave reservations about that.
In those circumstances, I do not find any inherent implausibility in C’s allegations. In saying so, I am conscious of the need to avoid reversing the onus of proof. I do not do so. I make the simple point that it is not inherently implausible that Mr Kiely would act in this way.
Conclusion
I found C and P to be entirely convincing witnesses. I have no doubt they were telling the truth about what happened to the best of their respective abilities. I also accept the evidence of M and Detective Brevet Sergeant Shepheard.
Returning to the judgment of the Court of Criminal Appeal in R v Cheng, I accept the truth of C’s statements to Detective Brevet Sergeant Lisle in the 10 June 2015 interview. It was contemporaneous with the event, and a comparison between what C said in the interview, what he said to Detective Brevet Sergeant Shepheard on 13 August 2015, and what he said in evidence, gives little cause for concern that his cognitive development on 9 June 2015 would have interfered with his understanding of what occurred. It is noteworthy that Detective Brevet Sergeant Lisle did ask questions of C as to his understanding of the difference between the truth and a lie, and this was also consistent with what C said to me in the course of my s 9 questioning. I conclude that his competence to give evidence was at a similar level.
The interview was conducted in a scrupulously appropriate way, with non‑leading questions and invitations to elaborate only being made after C had been able to tell his story without interruption.
Of course, C’s evidence was not sworn, and he was not cross-examined in his interview, and so it does not carry the weight that sworn evidence would carry. However, he was cross-examined, extensively so, and his evidence remained substantially consistent.
I remind myself of the admonition in s 9 to exercise caution in determining whether to accept C’s evidence, and the weight to be given to it, because it is unsworn. Indeed, because C stands alone in his allegation that Mr Kiely touched his penis, even if his evidence in all other respects is supported by P’s evidence, the CCTV evidence and his initial complaint, I confirm that I have scrutinised C’s evidence with great care, having regard to the fact that the alleged offence is denied on oath by Mr Kiely.[83]
[83] See R v Murray (1987) 11 NSWLR 12; Robinson v The Queen (1999) 197 CLR 162.
Taking all these matters into account, keeping the admonition in mind and after scrutinising C’s evidence with great care, I indicate that I have no hesitation in accepting the truthfulness and accuracy of C’s evidence.
I have already observed that I found Mr Kiely to be a very unsatisfactory witness. His answers were evasive and at times contradictory. He purported to remember certain of the relevant events and sought to avoid giving evidence in other areas. His evidence about giving up amphetamine use was particularly lacking in credibility.

I do not find Mr Kiely to have been a witness of truth. I reject beyond reasonable doubt his denials of the central allegation that he touched C on the penis through his clothing. I do not accept that he may have done so but now cannot remember. He could remember other relevant parts of the event. I am firmly of the view that his denials were deliberately false.
My rejection of Mr Kiely’s evidence does not make the prosecution case any stronger. I simply puts at nought his version of the events.
It remains for me to consider whether I am satisfied beyond reasonable doubt that C’s allegation is true. I indicate that I am so satisfied. All of the elements of the crime of aggravated indecent assault have been proved beyond reasonable doubt.
Verdict: Guilty.