R v Kotz
[2019] SADC 3
•22 January 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOTZ
[2019] SADC 3
Judgment of His Honour Judge Barrett
22 January 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship with a Child (Count 1) when that child was aged between eight and 12 and in the alternative counts of Aggravated Indecent Assault, Gross Indecency and Unlawful Sexual Intercourse (Counts 2, 3, 4). He is also charged with two counts of Aggravated Indecent Assault (Counts 5 and 6) in relation to CB's friend AM, when AM was aged 11. Both complainants are now young adults.
Held: The accused is Guilty of Count 1 and Counts 5 and 6.
Evidence Act 1929 (SA) ss 34M, 34P, 34R, referred to.
R v Place (2015) 124 SASR 467 at [43], [46], [56]; R v Lobban (2000) 77 SASR 24 at [86]; R v Jones [2018] SASCFC 80; R v Van Wyk [2018] SASCFC 138 at [24-25]; R v S,DD (2010) 109 SASR 46; R v Landmeter (2015) 121 SASR 522; R v P,S [2016] SASCFC 97; R v Ricciardi [2017] SASCFC 128; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999)160 ALR 588, discussed.
R v KOTZ
[2019] SADC 3
The accused is charged with sexual offences against two girls; CB, the daughter of his one-time partner, and AM, a school friend of CB. The trial proceeded without a jury.
In respect of CB, the accused is charged in count 1 with Maintaining an Unlawful Sexual Relationship with a Child between February 2003 and August 2008 when CB was aged between seven and 13 (the evidence of CB is effectively that the offending took place when she was between the ages of eight and 12). The particulars of the alleged offending set out in the Information are as follows:-
a) Causing CB’s vagina to rub against the accused’s penis over her clothes on multiple occasions;
b) Rubbing her bottom on multiple occasions;
c) Rubbing her breasts on multiple occasions;
d) Rubbing the tip of his penis up and down her vagina on one occasion;
e) Causing her to masturbate him on one occasion;
f) Inserting his penis into her vagina on one occasion.
If proved, particulars (a) to (e) inclusive would amount to offences of Aggravated Indecent Assault, although particular (e) might also amount to an offence of Gross Indecency. Particular (f) would amount to an offence of Unlawful Sexual Intercourse with a child under 14.
Counts 2, 3 and 4 are charged as alternatives to count 1. They are respectively charges of Aggravated Indecent Assault, Gross Indecency and Unlawful Sexual Intercourse with a child under 14. They replicate particulars (d), (e), and (f) of count 1.
Counts 5 and 6 are counts of Aggravated Indecent Assault relating to CB’s friend AM. Those offences are alleged to have been committed between March and October 2007, when AM was aged 11 (the latter date particularised was her 12th birthday). The particulars of the two counts of Aggravated Indecent Assault are, respectively, the rubbing of the accused’s genitals against the complainant’s bottom and rubbing her bottom close to her vagina. Each charge takes the aggravated form because AM was under 14 at the time.
Course of the trial
The prosecution called CB, AM, and CB’s mother SB. Agreed facts were tendered.
The accused gave evidence himself. He called his daughter TM. Statements of two character witnesses were tendered by consent. The prosecution agreed that the tendered statements represented what the character witnesses would have said if they had given evidence.
Both parties tendered exhibits.
The accused gave notice at the outset of the trial that objection was taken to the anticipated complaint evidence but counsel for the accused, Mrs Shaw QC, said that it would be appropriate for me to hear the relevant evidence and rule on the application in my judgment. In her address at the end of the trial Mrs Shaw made submissions in support of the objection with reference to the evidence which had been given.
Issues in the trial
In respect of count 1, the charge of Maintaining an Unlawful Sexual Relationship with a Child, the prosecution must prove beyond reasonable doubt the following ingredients:-
1The accused was an adult. This ingredient is not in dispute.
2The complainant was under the age of 17 years. During the relevant period, CB was aged between seven and 13. This ingredient is not in dispute.
3The accused engaged in the unlawful sexual relationship by committing two or more unlawful sexual acts with, or towards the complainant. An unlawful sexual act means an act which would itself constitute a sexual offence. Each of the unlawful sexual acts set out in particulars (a) to (e) in the Information may amount in law to the sexual offence of aggravated indecent assault. An indecent assault is any deliberate and unlawful touching carried out with a sexual intent or purpose and found to be indecent according to contemporary community standards. Particular (f) alleges an act which would amount to unlawful sexual intercourse. The prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with CB by inserting his penis into her vagina and at the time she was under 17.
The prosecution must prove that the accused committed two or more of the particularised acts.
4The accused maintained the unlawful sexual relationship. “Maintained” carries its ordinary meaning, that is “carried on”, “kept up”, or “continued.” It must be proved that there was an ongoing relationship of a sexual nature between the accused and the complainant. There must be some continuity of sexual conduct.
Consent is no defence to this charge. A child under 17 is incapable in law of consenting to sexual activity.
Counts 2, 3 and 4 are alternatives to count 1. In respect of count 2, the charge of aggravated indecent assault, the prosecution must prove beyond reasonable doubt that the accused committed an indecent assault against the complainant and that at the time the complainant was under 14.
In respect of count 3, 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 accused procured the complainant to commit the act. It is alleged that the accused caused the complainant to masturbate him. The complainant must be under 16.
In respect of count 4, unlawful sexual intercourse of a person under 14, the prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with the complainant by inserting his penis into her vagina and that she was under 14 at the time.
In respect of counts 5 and 6, the two counts relating to AM, the prosecution must prove beyond reasonable doubt that the accused indecently assaulted AM and that she was under 14 at the time. The ingredients are the same as the alternative count 2 relating to CB.
Factual background
The accused met CB’s mother SB in 2003 after each had separated from their spouses. The relationship between the adults commenced in about March 2003. The couple separated in August 2008. The relationship therefore lasted for about five and a half years.
In 2003, SB was living in Willaston with her children. She had five children of whom CB was the middle child. The eldest and youngest children were daughters, the eldest being about four years older than CB and the youngest being about five years younger. CB had an older brother who may have been living with his father at the relevant times. The younger brother was about two years younger than CB.
When the accused and SB met, SB was either unemployed or doing some cleaning work. The accused ran a business. He also had a second job delivering gas bottles. It seems that the accused met SB when she became a customer of his delivery job.
The accused has a daughter, TM, who is about the same age as CB. AM was a school friend of CB and they remain friends. In fact, TM, CB, and AM were all born in the same year, TM in April, CB in September, and AM in October.[1]
[1] There is an error in AM’s date of birth on T102. She was born in 1995 not 1985.
Both SB and the accused had child access arrangements with their former spouses. Generally, SB would have her children (with the possible exception of her older son) living with her. The father would have them with him on alternate weekends and during the holidays. It seems that access arrangements between SB and her former husband did not always operate smoothly. Sometimes the father did not take access at all or sometimes he did not return them. There appears to have been some resort to Family Court proceedings. CB had some contact with the welfare authorities.
The access arrangements between the accused and his former partner appear to have been more orderly. TM lived with her mother. She would be with her father on alternate weekends and at agreed times during holidays. At all relevant times, the accused lived at Salisbury East. His family had a house at Stonehut in the lower Flinders Ranges.
SB was living at Willaston when she met the accused in 2003. She moved with her children to Hewett in 2007. It appears that while still at Willaston SB did some cleaning work and then worked as a bartender at the Willaston Hotel. As a bartender she worked split shifts. Some shifts were in the late afternoon and at night. She would sometimes finish work between 9pm and midnight.
SB said that when she worked late either the accused or her eldest daughter would look after the younger children.
More contentious background
There is a degree of disagreement about the frequency of the accused’s staying at CB’s house, both at Willaston and Hewett. There is also some dispute about how often the accused’s daughter stayed there.
SB said the accused would spend most weekends with her. Sometimes he would stay overnight during the week. Whenever she had the children the accused’s visits would be at her house. While she might have occasionally spent a night at his house when she did not have the children, the children did not, with one exception, stay at his house. On Wednesday the 18th of July 2007 SB and her eldest daughter JB went to a concert (the Christina Aguilera Concert). The ticket for that concert is Exhibit P12 and there is a dated photograph of SB and JB marked Exhibit P11. In addition, there appears to have been a single occasion when SB and the accused stayed for a while at Stonehut with the children. Photographs confirm that CB was there on that occasion (Exhibits D7 and D8).
CB says that on each of the occasions she stayed at the accused’s house and at Stonehut, the accused committed sexual acts upon her.
The prosecution’s case – evidence of first complainant CB
CB says that within six months of her mother and the accused beginning their relationship the accused started coming into her bedroom at night and massaging her.[2] On the first occasion CB was asleep when he came in. He sat on the side of her bed and rubbed her back, from her neck to her bottom on top of her nightwear. He rubbed her with just one hand. He got under the bedcovers with her. He was wearing just his underpants. Nothing was said by either of them. CB pretended to remain asleep but she opened her eyes as he was leaving.
[2] T58.
CB said that thereafter the accused would come into her bedroom at night every time the two of them happened to be at her mother’s house overnight.[3]
[3] T28.
While the accused’s massaging began by him touching her on top of her nightwear, his behaviour changed. It developed from touching her over her clothing to touching her underneath her clothing so that he was touching her on the skin of her breasts and bottom.[4]
[4] T29.
The behaviour changed again so that the accused would lie on his back and pull her on top of him so that their genitals were touching through their clothes. By that I understand CB to mean that though the accused had massaged her under her clothes with his hand, when he pulled her on top of him he had his underpants on and she had her nightwear on. CB said that when the accused pulled her on top of him, her head would be resting on his chest.[5]
[5] T30.
CB said that when he got her on top of him the accused would push down on her bottom with his hands so that there was ‘pressure on our parts.’[6] The vagina was pushed against the penis.
[6] T30.
When the accused came into her bedroom CB was always on her own. Sometimes her mother was home at the time but at other times she was at work.[7] CB estimated that the accused did sexual things to her about ‘a hundred times.’[8] The offending occurred both when CB’s family was living at Willaston and also when they moved to Hewett (SB said that she believed the family moved from Willaston to Hewett in 2007).[9]
[7] T31.
[8] T29.
[9] T136.
As well as saying the accused engaged in the behaviour described above she gave evidence of three specific occasions – one occurring at the Hewett address, which she described as the ‘worst incident’, and one each on the solitary occasions when she stayed overnight at the accused’s house in Salisbury East and his family’s house at Stonehut.
CB described the ‘worst incident’ at Hewett in these terms.[10] She said that the accused came into her bedroom during the night. He was wearing just his underpants. He lay on her bed on his back and pulled her on top of him. With his hands, he pressed her bottom down so that her vagina was rubbing on his penis through their clothes. He did that for about five minutes. He then pulled her knickers to one side, pulled his penis out of his underpants and started rubbing it on her vagina. He tried, then succeeded, in getting the tip of his penis inside her vagina. He moved in and out for five or so minutes. CB said that she heard a noise and the accused left the room. She believed her mother was home at the time. Nothing was said by either the accused or CB during the incident. This incident is particular (f) in count 1, the particular alleging the accused inserted his penis into CB’s vagina on one occasion. The act is also the subject of the alternative count 4, the charge of unlawful sexual intercourse. CB believes she was 12 at the time.
[10] T34-6.
CB says that the accused sexually abused her on the night that her mother and eldest sister went to the Christina Aguilera concert. It is common ground between the parties that the mother and eldest sister went to the concert on Wednesday the 18th of July 2007 and while they were at the concert CB was at the accused’s house in Salisbury. It is also common ground that when SB and JB returned from the concert they spent the rest of the night at the accused’s house. There is controversy about whether CB’s younger sister, ShB, and the accused’s daughter stayed the night as well. There is no evidence about whether CB’s brothers stayed the night. CB says she believes she was 12 at the time (on the 18th of July 2007 she was two months short of her 12th birthday).
CB says that after her mother and sister left for the concert she was alone with the accused in his house.[11] She says that after dinner she and the accused were watching TV on the couch. She fell asleep. She woke to find the accused pulling her on top of him. He pushed her bottom down so that their genitals were touching. He had an erection. He was wearing only his underpants. She had boxer shorts and knickers on the bottom and a top. The accused pulled her knickers aside, took his penis out and rubbed it against her vagina. More specifically, CB said that the accused rubbed his penis against ‘her flaps.’ That alleged act is particular (d) in count 1, the allegation of the accused rubbing the tip of his penis up and down CB’s vagina on one occasion. It is also the subject of count 2, the alternative offence of aggravated indecent assault.
[11] T36-40.
CB says that after committing the above act the accused grabbed her hand and put it on his erection. He then put his hand on top of hers and rubbed it up and down so that she was in effect masturbating him. That went on for a few minutes. She felt the accused ejaculate onto her boxer shorts. Her boxer shorts got wet. She did not see him ejaculate but she felt it. After he ejaculated the accused got off her and left the lounge room. She pretended to be asleep for five or 10 minutes. Then she went into the accused’s daughter’s room where she had her spare clothing and changed. She put the soiled boxer shorts in her bag. She noticed the next day that there was a white stain in the crotch area of the boxer shorts. She put them in the wash at her house. That alleged act is the subject of particular (e) in count 1, the particular alleging that the accused caused CB to masturbate him on one occasion. It is also the subject of count 3, the alternative charge of gross indecency.
CB says that the accused touched her sexually on the only occasion that she went to stay at his family’s house in Stonehut in the lower Flinders Ranges. She said that she made that visit in the company of her mother and two sisters. The accused and his daughter were also there. It was an overnight stay.
CB says that during one of the days they were there she had fallen asleep on the accused’s bed. She did not know where everyone else was when she was woken up by the accused pulling her on top of him.[12] While on his back he massaged her bottom and applied pressure so that their groins were touching.
[12] T41.
CB says that the last time the accused touched her sexually was before her 13th birthday.[13] She says that for a time after what she described as ‘the worst incident’, the one at Hewett when the accused penetrated her vagina, he did not do anything of a sexual nature to her. She said that she thought that was quite strange. After a while however he did resume coming into her room. She says that she thereafter made it difficult for him to do anything sexual to her. She would roll around and ‘somewhat fight him off I guess so that he wasn’t successful in doing it anymore.’[14]
[13] T42.
[14] T42.
CB says that the first person she told about what the accused was doing to her was AM. She said that she told AM when she was about 11, i.e. before the offending had stopped. The admissibility of this evidence of complaint is challenged. I will deal with the admissibility question later. CB says that her conversation with AM was before the occasion of the Christina Aguilera concert, which was the subject of particulars (d) and (e) of count 1 and the alternative counts 2 and 3, and before the ‘worst incident’ which is particular (f) of count 1 and the alternative count 4. CB gives no evidence of complaint with regard to those allegations.
CB says that her complaint to AM occurred at AM’s house in AM’s bedroom. The terms of her complaint are as follows ‘I explained to her that – the way that Sean was touching me, massaging me. I told her that he used to pull me up on top of him and massage my back and put pressure on my bum.’[15] She was not sure whether she told AM about where these incidents took place, i.e. whether they occurred at the Willaston or the Hewett houses. She could not remember whether she told AM any further details of the incidents beyond what is set out above.
[15] T43.
CB says that AM replied that the accused had done ‘the exact same thing’ to her.[16] That evidence is led as the initial complaint by AM. I will return to that topic later. The admissibility of that evidence is also challenged.
[16] T44.
CB says that on one occasion she saw the accused with AM on the lounge in the house at Hewett. The accused was on his back on a blue futon couch with AM on top of him. He was massaging AM’s back on the top of her clothes.[17] AM had her head on the accused’s chest. CB said that she saw the two of them as she walked into the lounge room. Her observation was only for a few seconds.
[17] T48.
CB says that on other occasions she had seen the accused massaging AM’s feet and legs. She had seen that happen in the lounge at Hewett. She said that she had seen that sort of thing happen ‘every single time that [AM] and Sean were around each other.’[18] CB said that the accused used to massage her feet too.[19] She said the accused would pick her up when he would greet her. His practice was to pick her up so that her hands were around his neck. Her legs were either side of his hips and his hands would be under her bottom supporting her. She said he greeted her in that manner every time. She said she saw the accused pick up AM in the same way.[20]
[18] T50.
[19] T54.
[20] T50-1.
CB said that the accused called her and AM ‘sexy.’ He did that on a couple of occasions to her and she heard him say it to AM.[21] On occasions he asked CB if she had a boyfriend. She was not sure whether he asked the same of AM. She said the accused would invite AM around on a handful of occasions.[22]
[21] T54.
[22] T54.
Summary of Crown case regarding CB
The Crown case in respect of CB is that the accused maintained an unlawful sexual relationship with her for about four years when she was aged between eight and 12. The accused’s modus operandi was that he would come into her bedroom at night, sometimes when her mother was home and others when she was at work. He would begin by massaging her back on top of her nightwear but his behaviour escalated to massaging her under her clothing. Later still he would get her on top of him so that their genitals were touching. He would push her bottom down so that there was pressure on their genitals. Nothing was ever said between them. The accused would often be wearing only his underpants. The accused was at CB’s house most weekends, first at Willaston and then at Hewett. CB was generally at her mother’s each alternate weekend. CB describes three occasions in particular. They are not necessarily in this order – the incident at Stonehut, the two acts on the occasion of the concert on the 18th of July 2007 (constituting particulars (d) and (e) of count 1 and the alternative counts 2 and 3) and the ‘worst incident’, the USI at Hewett (particular (f) of count 1 and the alternative count 4).
Precis of defence case regarding CB
The accused’s case in respect of CB is that no sexual offending or touching ever occurred. While the accused might have massaged her back if she, like her sisters, ever asked him to, he never went into her bedroom at night to massage her in the way that she says he did. While there is no occasion for the accused to suggest a motive to lie about him sexually abusing her (the prosecution must prove its case beyond reasonable doubt), it is suggested by the defence that CB’s complaint about the accused to anyone in authority was effectively at a time when she was homeless. She might have made these false allegations to secure sympathy and support from the welfare authorities who were imposing conditions on such support. I will deal with that question later.
The accused also submits that there are significant inconsistencies in CB’s own evidence and between her evidence and that of other witnesses. In that way there must be a reasonable doubt about her credibility.
It is submitted that there are no such inconsistencies to be found in the accused’s evidence or that of his daughter. He has adduced evidence of good character.
The prosecution’s case – evidence of second complainant AM
I summarise the evidence led by the prosecution in respect of counts 5 and 6, the two counts of aggravated indecent assault which relate to AM.
AM said that she met CB when they were both in the same year 6 class at school. She was 11 (CB is about seven weeks older than AM). The two became close friends. By then CB’s family was living at Hewett. AM did not know CB when the family was living at Willaston. AM said she would visit CB three to four times a week, usually after school. She would regularly stay overnight.[23] She would stay overnight both during the week and on weekends. The accused had looked after the children, including AM, three or four times when CB’s mother was not there.[24] AM said that when she stayed overnight she would share CB’s bedroom. AM said that the accused would massage her there. She said that on at least five occasions the accused came into CB’s bedroom while AM was in bed, and he massaged her.
[23] T103.
[24] T104.
She said the first time he massaged her he came into the bedroom, sat on top of her with his legs either side of her and massaged her quite hard from the shoulders down to the coccyx. That first time she was lying on her belly. He massaged her over the top of her clothing.[25] He was moving in a thrusting motion with his body.
[25] T105-6.
He continued to massage her over a period of ‘a year and a bit.’[26] On the occasions after the first massage in CB’s bedroom, the accused’s modus operandi was ‘pretty much the same thing’[27] except that in time he massaged her underneath her clothing so that he was massaging her on the skin.[28] He would sit in such a position that she could feel his penis in the area of her coccyx or ‘even a bit lower.’[29] AM said that although she did not see the accused massage CB on the first occasion he massaged her, she would later see him go from massaging her to massaging CB in the bedroom. She said the massages of CB went on for longer.[30] When asked how many times she saw that she said ‘at least two or three times.’[31] AM said that in addition to seeing the accused massage CB in the bedroom, she had seen him massage her in the lounge. AM said that she had seen massaging between CB and the accused on a couch in the lounge room. She had seen CB massaging the accused and vice versa.[32] On what appear to be two separate occasions she saw CB massaging the accused when she walked into the lounge from outside[33] and she saw the accused on top of CB when she saw them from the kitchen.[34]
[26] T112.
[27] T107.
[28] T111.
[29] T113.
[30] T107.
[31] T107.
[32] T107.
[33] T108, line 11.
[34] T108, line 37.
AM says that there was an occasion when the accused touched her sexually in CB’s mother’s bedroom. AM says that she and the accused were in the mother’s bed intending to watch a movie. They had some popcorn that ‘we’ made (it is not clear who is meant be ‘we’). CB was expected to join them but she did not. The accused started massaging AM’s back. He then slid his hand into her pants. He ‘started rubbing on my butt and he made his way down to my, like, bum hole and he asked me if I liked it and telling me that I liked it and stuff, and I felt really weird and I left the room.’[35] AM did not think that CB’s mother was home at the time although she was ‘not a hundred-per-cent sure.’[36]
[35] T109.
[36] T111.
AM said that the accused had a particular way of picking her up. He would pick her up so that his hand would be supporting her bottom but it would be ‘like half bottom and half vagina.’[37]
[37] T114.
AM said that the accused would call her ‘sexy’ and ‘good looking’ and say ‘that’s hot on you.’ He would say that sort of thing to both her and CB, particularly if they were getting ready to go out.[38]
[38] T114.
AM identified photographs comprising Exhibit P9. She said she recognised herself, CB, the accused’s daughter TM and CB’s eldest sister JB in the photographs. She said the accused would get ‘us’ to model.[39]
[39] T116.
AM said the first person she told about what the accused was doing was CB. She said the conversation took place in her, that is, AM’s house in Hewett. CB was living with her for a short while at the time. She said that CB started the conversation by saying that the accused had touched her sexually. CB told her the accused ‘slid it in’ and ‘I didn’t ask anything more because I already knew, you know, what was what.’[40] AM said she did not remember CB telling her what exactly the accused had done but ‘I really remember that’ referring to the comment above.
[40] T115.
AM said that she told CB ‘how he touched my bum and stuff… and then we started talking about the massages and, like, how weird they were and that they happened a lot, like often.’[41]
[41] T115.
AM says that she told CB what the accused was doing to her. She said she did that in her bedroom in her own house. The terms of her complaint appear above.
Summary of Crown case regarding AM
The prosecution case regarding AM is that on two occasions the accused committed an indecent assault upon her, aggravated in each case by her being under 14. The two acts are part of an uncharged course of conduct consisting largely of massages. Count 5 is the first occasion on which AM says the accused massaged her while she, and CB, were in CB’s bedroom.[42] Count 6 is the occasion in which AM says that the accused rubbed her bottom close to her vagina under her pants when they were in SB’s bed with the popcorn.[43] AM says she was 11 or 12 at the time the accused was touching her. It went on for ‘a year and a bit.’[44]
[42] T105-7.
[43] T109-111.
[44] T112.
Precis of the accused’s case regarding AM
The accused’s case in respect of AM is that no sexual offending or touching ever occurred. The accused never performed a massage on AM at all.[45] He was never at SB’s house when AM was there unless SB herself was at home. The accused said SB had told him that she had agreed with AM’s mother that AM could only stay with her family if she, SB, was home at the time.[46] While it was never put to SB in cross-examination that she had told the accused that, it was put to her that the two mothers had that arrangement. SB denied that proposition in these terms:-[47]
[45] T172.
[46] T180.
[47] T164.
QNow you mentioned that AM would stay at your place. Did you know her mother, SM.
AYes.
QDid she have an arrangement with you that she would not let AM stay overnight unless you were there.
ANo.
QDoes that ring a bell.
ANo. I don’t recall that, no.
QDo you think that might be the case.
AI would be guessing so I would have to say I don’t know.
The accused said that he only recognised AM being at SB’s house in the last six months of his relationship with SB. He could not recall ever seeing her before that.[48] He said that the relationship with SB ended in August 2008.[49]
[48] T180.
[49] T194.
The accused’s evidence
The accused denies that any sexual offending took place. He denies all charged and uncharged allegations. He gave evidence himself. While I treat his evidence in the same way that I treat the evidence of any other witness there are two particular matters that I bear in mind when considering his evidence.
The first is that I should bear in mind in two ways the good character evidence which was given. The accused has no prior convictions. Not only did he give evidence of good character himself but he effectively called witnesses as to his is good character. The prosecution accepts that the witness statements of Antony Webb and James Langmead, both dated the 9th of August 2018, are evidence of good character. That evidence may be used to make it more likely that the accused’s evidence is more believable and reliable and it may make it less likely that he committed the crimes alleged, including the uncharged acts (R v P, S [2016] SASFC 97).
The second matter I must bear in mind when assessing the accused’s evidence is the forensic disadvantage he suffers by reason of the delay in the allegations being reported (R v Ricciardi [2017] SASCFC 128).[50] Some 15 years have elapsed from the beginning of the allegations by CB in 2003. The accused gave quite specific evidence of forensic disadvantage. He said[51] that he might have been able to locate payslips, bank details, credit card statements and phone records which might have supported his evidence, for example, of more limited time spent by him in CB’s company. More generally though I bear in mind that the accused’s recollections of where he was at a particular time and where other people were would have been fresher in his mind and might have been more detailed than they have been were it not for the forensic disadvantage.
[50] Per Vanstone J at [55] – [59]. Her Honour was in the minority as to the result but not in respect to the question of Forensic Disadvantage.
[51] T189 and T190.
The accused is 51. After school he spent four years in the army. During that time he suffered injuries to his back and ankle. As a result he was discharged from the army on a Department of Veterans Affairs pension. The back injury consisted of a severely crushed L4 - L5 disc. As a result he has had to undertake physiotherapy, chiropracty, massage and medication.[52]
[52] T179.
Upon discharge from the army the accused spent 10 years working as a chef. After that he set up a “school of fish” business which seems to have undergone some changes in operation over the years. It involved teaching fishing skills on boats and running fishing tours.
He met his wife in 1993. His daughter TM was born in 1995. He separated from his wife about 18 months after the birth of his daughter, by which I take him to mean in late 1996. After the separation he took access to his daughter each alternate weekend and during school holidays. He met SB early in 2003. The relationship lasted until August of 2008. Their time together seems, unsurprisingly, to have taken place mostly, if not exclusively, at SB’s houses. SB had the custody of at least four of her five children. Access was taken by the children’s father but details of that access are unclear. It seems that access arrangements did not always work smoothly. It is unclear to what extent the access arrangements regarding SB’s children and the accused’s daughter were aligned. In other words it is unclear whether the parties arranged their access weekends so that the children were together or not together most weekends. The accused had care of his daughter on alternate weekends and in school holidays. It is not clear what proportion of the holidays he took (I will refer later to his diary for 2007). The accused said that from the beginning of their relationship in 2003 the time he and SB spent together varied quite considerably.[53] He said that at first he only stayed with SB about twice a month. His staying over became more regular after that. Once or twice a month he would have his daughter stay with him at SB’s house, by which I take him to mean that she would stay with him each alternate weekend and on those occasions they would both stay with SB. The accused said that he was only aware of AM staying at SB’s place in the last six months of his relationship with SB. He estimated that AM was only at SB’s house three or four times when he was there.[54]
[53] T178.
[54] T181.
The accused denied all of the allegations of sexualised behaviour which are uncharged. He denied ever picking CB up in a sexualised way. He denied picking up AM at all. He denied ever asking either girl to pose for photographs in a somewhat suggestive way. He denied ever making sexual comments to them.
I will return to a more detailed discussion of the accused’s evidence regarding massages occurring in the house but the accused denied massaging CB or her sisters other than possibly ‘[rubbing] their shoulders if they wanted to….’[55] In relation to the circumstances of the Christina Aguilera concert occasion the accused denied any sexual impropriety with CB. He said that, contrary to CB’s evidence, his daughter stayed overnight. He produced a diary (D14) indicating that he had marked the occasions in which his daughter stayed with him and he made such a mark on the 18th of July 2007. It was school holidays.
[55] T181.
The accused said on the night of the concert CB’s younger sister, ShB, stayed there as well. She went to bed early. CB and his daughter stayed up watching television until SB and the elder sister came home from the concert.
The accused denied any sexual impropriety during the solitary visit CB made to his family’s holiday house at Stonehut. He said that many children stayed at the house on that occasion. He produced photographs of some of the visitors.
The accused’s daughter’s evidence
The accused’s daughter TM gave evidence. She is now 23. She is a remedial massage therapist by occupation. She said that when she stayed with her father at SB’s house she slept in the lounge or she shared a bedroom with one of the girls. She did not specifically mention sharing with CB. She said she remembered clearly the Christina Aguilera concert occasion. She said she and CB stayed up watching TV until SB and the older sister returned from the concert. She said the accused was in his computer room while she and CB were watching television.
TM identified herself in some of the posed photographs which were tendered. She denied her father had ever asked her or any of the other girls to pose in a suggestive way. In respect of some photographs which might be thought somewhat suggestive, TM denied her father took them, adding that she would not have posed in that way in the presence of her father.[56]
[56] T236.
I will not presently canvass the statements of the two character witnesses. I accept that they are evidence of the accused’s good character and that that evidence may be used in the two ways I have already mentioned.
Discussion of evidence of CB
My impression of CB was that she was an honest witness. I have scrutinized her evidence in detail. She appeared to be trying to honestly and accurately say what happened. For the moment I am referring to the manner of her giving evidence rather than the content of that evidence. She gave her evidence in a straightforward fashion without apparent exaggeration. She appeared to give serious attention to questions in both examination-in-chief and cross-examination.
Under cross-examination she appeared to give serious consideration to inconsistencies or criticisms of recollections which were put to her. She appeared to readily admit many propositions put to her. She appeared genuinely unsure of others she said she was uncertain about. By way of contrast, if she rejected a proposition put to her it was done with nothing more than appropriate firmness. It needs to be borne in mind that the offending is alleged to have occurred over about four years from when she was aged between eight and 12. That is about 10 to 15 years ago. CB was 22 when giving evidence.
I give some examples of my observations about the manner of CB’s responses, particularly in cross-examination: some where she readily admitted error or late disclosure, some where she genuinely appeared uncertain and yet others where she firmly but appropriately rejected propositions put to her.
I deal first with examples of CB readily conceding propositions put to her. CB was asked whether it was correct that the first time she had ever mentioned an incident of impropriety occurring at Stonehut was a week before the trial. She replied that that was correct.[57] It was put to CB that at about the time she made the first complaint about the accused’s behaviour to anyone in authority she was being pressed by Family and Community Services to abide by their conditions before she could get any further financial assistance. This is an important topic going to an alleged motive of the complainant to lie. I will return to that aspect of this evidence later. She was asked whether she had been told that if she wanted to receive any more financial assistance she would have to abide by certain conditions. She replied that she thought that was correct. She was then asked if she walked out of the office. She said ‘sounds like something I would do yes.’[58] She was asked whether she had had a discussion with AM about AM being sexually abused and whether she told the police that she had that discussion about a year before the statement was given. At first she said she could not remember about the time delay which was being suggested, but when the direct speech from the statement was put to her she said ‘I believe I did tell the police that yes.’[59]
[57] T55-6.
[58] T86.
[59] T90.
I give examples of CB appearing genuinely uncertain about certain propositions put to her. The first relates to the Stonehut evidence. I have already given the example of how she readily admitted that she had only mentioned the Stonehut incident a week before the trial. By way of comparison she was asked in cross-examination about people who were present at the visit to Stonehut. She was asked to name the people who were there. She listed some but when others were put to her she said that she could not remember whether they were there, or she did not believe they were there. She said that her elder sister and the accused’s daughter TM slept in the caravan but she could not remember where she herself slept. She was asked questions about who was present in the accused’s house on the night of the Christina Aguilera concert. She was asked whether her younger sister had stayed there that night too (the older sister had gone to the concert with the mother). She said she did not believe that the younger sister was there. CB was asked whether the police had ever asked her about allegations of sexual abuse by other people. She said she was not sure and asked Mrs Shaw to repeat the question. When the question was repeated she said she was not sure. I asked her some questions on that same topic. She appeared genuinely to say that she could not remember. When I went on to ask her further questions about whether FAYS were asking her about a relationship she was having with a boy she agreed they did.
I give examples of where CB was firm in rejecting propositions put to her. I have already referred to questions directed towards CB about her younger sister being present at the accused’s house on the night of the Christina Aguilera concert. However, when it was put to her that the accused’s daughter was there she firmly said that she was not. She firmly repeated that same answer when a slightly different question was put.[60] It was put to CB that the accused had not been in the same house as CB any more than 30 or so times. CB firmly said that that was not correct. CB was asked questions about who might have taken some of the photographs, more particularly, the photographs showing the females posing in somewhat suggestive fashions. CB said she did not think she had taken any of the photographs herself but she said she did not know who had taken them. She then added firmly: ‘It was often that Sean would take a lot of photos on that camera because he had this big, technical, expensive camera, like a good camera, so it was often that he was always taking photos.’[61]
[60] T59.
[61] T96.
These examples refer to the manner in which CB gave her evidence rather than the substance of the evidence. The contrast between the three sorts of response, that is, the ready concession, the considered uncertainty and the firmness gave me the clear impression that the witness was doing her best to honestly and accurately say what happened. I have not been exhaustive in providing examples of each manner of response. There are more of each.
I acknowledge that the manner in which a witness gives evidence should not be given disproportionate weight (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) & Ors (1999) 160 ALR 588 at [617] per Kirby J). Drawing conclusions about a witness’ credit from simple demeanour is of very limited weight. By use of the word ‘manner’ I mean to incorporate a combination of how CB gave her evidence and what she said. Her ready acceptance of propositions put to her in cross-examination which she would be likely to have understood adversely affected her credit suggests candour. The manner of the answers and the content suggests candour. The acknowledgement of uncertainty or lack of memory suggests an attempt to give accurate and truthful answers, both in the manner and content of the answers. The firm rejection of propositions never appeared unduly defensive. The manner and content of these sorts of answers suggested a firm confidence. I accept that witnesses can lie and be unreliable with apparent confidence. Witnesses can come to believe things which are not true and can for that reason appear confident in the witness box. That said, I do not accept that CB is mistaken or deluded about the offending she speaks of. The alleged course of conduct extends over four years and is too detailed in my view to be the subject of mistake or delusion.
I turn to the content of CB’s evidence. Mrs Shaw submits that CB’s evidence cannot be accepted on a number of grounds. Her evidence is internally inconsistent, principally, although not exclusively, because her evidence in court conflicts with out of court statements she has made.
Second, her evidence conflicts with other witnesses, in fact with all civilian witnesses. It is inconsistent with the evidence of AM, with her own mother SB and with the accused and his daughter.
Third, it is inconsistent with the evidence to be found in the exhibits. Far from getting support from the two civilian prosecution witnesses their evidence conflicts with hers. The suggested complaint evidence to AM is either not admissible as complaint evidence or it is inconsistent with CB’s evidence. The so-called complaint evidence damages rather than enhances CB’s credit.
Finally, the defence submits that there are improbabilities about CB’s evidence such that it should be rejected, or at least, there remains a doubt about its truthfulness and reliability.
These criticisms are quite distinct from the reasons why the accused’s own evidence and that of his daughter should be accepted or at the very least raise a doubt, particularly given that the good character evidence adds to the strength of the defence case. The exhibits also support the defence case.
The defence has supplemented Mrs Shaw’s address by a written schedule of evidence comparisons, effectively a list of inconsistencies within CB’s evidence and between her evidence and other witnesses or exhibits. I will not refer to each item in the schedule but I have considered all of them. I deal with what I see as the more significant of them.
Mrs Shaw points to inconsistencies between CB and AM about the very massages the subject of the alleged offending against CB. The defence suggests that, far from AM’s evidence supporting and strengthening CB’s evidence of the essential offending, AM’s evidence contradicts her evidence, casting doubt on it.
Before discussing that evidence, I make this observation: CB says that the accused sexually abused her over a period of about four years from when she was about eight until she was about 12. During that time his behaviour changed. It began with him massaging her on top of her clothes, to massaging her underneath her clothes, to getting her on top of him and engaging in sexual activity in that way. The offending took place at both the Willaston house and at the Hewett house. The prosecution case, and the accused’s case, is that the accused only came to know AM when CB’s family moved to Hewett. AM says that the accused abused her on only a few occasions over a period of seven months in 2007 when she was 11. Only one of the two charged occasions (count 5) occurred in CB’s bedroom although AM said that the uncharged course of conduct consisting of massages included massages in CB’s bedroom.
The point of these observations is that on the Crown case there is only a small overlap in time between the offending against the two complainants. Not all of the offending during the time which overlapped is alleged to have taken place when both of them were present. When regard is had to inconsistencies in their evidence, it has to be remembered that few of the allegations are said to be happening at the same time.
Nevertheless, there are inconsistencies between the two complainant’s accounts which must be borne in mind.
These are the more significant inconsistencies between the two complainants about the massaging of CB:-
·CB says that she was asleep when the accused came into the bedroom to massage her.[62]
[62] T25.
·AM said that the accused would knock on the door just as they were about to go to sleep.[63]
[63] T21-3.
·CB says that when the accused massaged her at Hewett he would pull her on top of him[64] (she was not sure whether AM was in the bedroom when that happened).[65]
[64] T33.
[65] T33, lines 30 to T34, line 1.
·AM said that the accused always sat on her when he massaged her, including when she was massaged in CB’s bedroom. The accused would massage her, then go over to CB and massage her.
·AM said that CB was always awake when she was being massaged and the accused massaged CB by sitting on her as he had done with AM.
These inconsistencies are alleged in page 3 of the defence schedule.
A closer analysis of the evidence does not bear out the criticisms that are made, or at least the criticisms are not as clear as are suggested.
The first apparent inconsistency on page 3 of the schedule is alleged to be the one between CB’s evidence at T25 and AM’s evidence at T123.
It is true that at T25, CB in examination-in-chief said that she was asleep when the accused came into her bedroom to massage her. It is equally true that at T123, AM in cross-examination said that the accused would knock on the bedroom door as the two girls were about to go to sleep and massage them while they were both awake. He would chat while massaging each of them.
However at T25, CB is plainly talking about what happened to her in her bedroom at the Willaston house. AM never went to the Willaston house. She only visited CB’s family when the family moved to Hewett.
At the bottom of page 3 of the defence schedule it is asserted that CB said (at T33) that no one was present in the Hewett bedroom when the accused massaged her whereas AM said (at T113) that she saw the accused massage CB when CB was awake.
It is simply not correct to say that CB said that no one was present in the Hewett bedroom when the accused massaged her. I reproduce CB’s evidence,[66] (including T33, line 32) but also the lines which immediately follow line 32. I italicise lines 33 onwards:-
[66] T33, line 23.
Q… But when Mr Kotz came into your bedroom at Plover Court, what did he do.
AHe continued to do what he did every other time which was climb into my bed and rub my back, pull me up on top of him and continued to rub my back and my bum and push down on my bum to put pressure onto penis.
QWhen that happened at Plover Court [Hewett] was there ever anybody else in the bedroom when that was happening.
ANo, I don't believe.
QDid Sean ever come into the bedroom when [AM] was staying at your house.[67]
[67] T33, line 33.
AI can't exactly say, I'm not quite sure. I would assume yes.
QI don't want you to assume anything. Is your answer that you're not sure about that.
AYes.
On the other hand it is correct to observe that at T112, line 37 to T113, line 4, AM said that CB was awake when the accused massaged her.
That said, neither witness says that the accused massaged them both in the bedroom on many occasions. In cross-examination Mrs Shaw put to CB that the accused had only ever been at the Hewett house when AM was there, on four or five occasions. CB said she thought it was probably about 10 times.[68] AM said that the accused came into the bedroom at least five times.’[69]
[68] T58.
[69] T104.
On page 4 of the schedule it is asserted that CB said[70] that the accused never said anything to her when he came into the bedroom whereas AM said[71] that there were conversations.
[70] T29, line 17.
[71] T123.
It is generally correct to say that there is an inconsistency between the two witnesses on that topic. But the inconsistency comes about in this way: at T29, CB was being asked in examination-in-chief about the whole course of massage conduct, bearing in mind that she said that the conduct extended over four years from when she was aged between about eight to 12. She described how the conduct began and how it developed. In this context CB was asked whether the accused would ever say anything to her when he was touching her. She said he did not.[72] The conduct CB was alleging had been going on for two or three years before the alleged conduct with AM began. During that time there had been no resistance or complaint by CB (CB says that the conduct eventually ceased when she was about 12 because she began to physically resist and the first alleged complaint was to AM when there was an alleged exchange of confidences of both girls).
[72] T29, line 17.
In examination-in-chief AM was asked whether the accused said anything to her when he massaged her for the first time in the bedroom. She said ‘not that I can remember.’[73] At T107, line 2, AM said she had seen the accused massage CB in the bedroom two or three times.
[73] T105, line 35.
Later in examination-in-chief Ms Barnes asked AM questions about the course of the massaging of both girls in the bedroom albeit that that specific course consisted of only a handful of occasions. Ms Barnes asked AM whether the accused ever said anything to her when he was giving her ‘those massages in the bedroom.’[74] Mrs Shaw objected on the ground that the question had already been asked. Ms Barnes conceded that she might have asked that question and did not pursue the matter. In fact she had not asked that question. She had only asked about whether the accused had said anything to her on the first occasion it happened.
[74] T113.
That topic of talking during the massages in the bedroom was the first topic taken up in cross-examination.[75] It was put to AM that in a proofing in June 2017, AM had said that the accused would chat to her during the massages. Then he would move on to CB and keep talking. AM conceded that she probably had said that (T123, line 1) and she went on to agree that the accused had chatted to her and then to CB while massaging.
[75] T122.
So while there remains an inconsistency between the two witnesses on that topic I do not conclude that it significantly damages the credit of either CB or AM.
The defence submits that there are inconsistencies between the two complainants regarding the alleged massaging itself. I have already referred to the evidence of AM that when she stayed overnight at CB’s house, the accused would knock on the bedroom door just as the girls were about to go to sleep and CB would be awake when the accused massaged first her (AM), then CB. The implication of that evidence is that CB would be likely to have witnessed AM being massaged.
If CB had witnessed AM being massaged and vice versa then the evidence of both of them about the alleged complaint is unusual. The tenor of the evidence of both of them, if not the words actually used, is that it was the first time each was aware of the other being massaged in an inappropriate way. The topic of what each actually saw of the massaging of the other, at least in the bedroom, was not fully explored in either examination or cross-examination of either witness. The situation was slightly different with the evidence each gave about seeing the accused massage the other in the loungeroom. I will turn to that topic separately.
Returning to the bedroom allegations, the question for the moment is in what way is the credit of each of the two complainants affected by what they say about seeing the accused massage the other? Does either support the other and enhance the credit of the other or is their evidence inconsistent or implausible so that the credit of one or both is damaged?
Before looking at that evidence I bear in mind some general observations. CB says the accused was massaging her in her bedroom for about four years from when she was aged about eight to 12. That happened at both the Willaston and the Hewett addresses. AM says that the accused massaged her in CB’s bedroom at Hewett on a small number of occasions. She said at least five, over a period of about a year. She was 11 at the time.
No one asked any questions about how the beds occupied by the girls in CB’s bedroom were positioned in relation to each other. No one asked whether the lights were on or off. In other words, the ability of each to see what was happening to the other was never fully explored. CB does not claim to have seen the accused massaging AM in the bedroom. She says that when the accused massaged her she pretended to be asleep.
AM said that she saw the accused massage CB ‘at least two or three times.’ Except for the claim by AM that the accused would talk to both girls in the bedroom while massaging them (i.e. both were awake), the two accounts are not inconsistent.
Nor is there any necessary inconsistency between the way in which each say they were massaged in the bedroom. AM says the accused always massaged her by sitting on her while she was on her stomach. She goes on to say that on the occasion she saw the accused massage CB he did the same to her.
CB’s account of what the accused did to her in the bedroom at Hewett was not explored in great detail but there is certainly an argument that it appears inconsistent. She was asked:-
Q… But when Mr Kotz came into your bedroom at Plover Court, what did he do.
AHe continued to do what he did every other time which was climb into my bed and rub my back, pull me up on top of him and continued to rub my back and my bum and push down on my bum to put pressure onto his penis.[76]
[76] T33, lines 23-29.
In that passage CB does not specifically describe how each was positioned when the accused rubbed her back before pulling her on top of him. That is, did he at that stage sit on her back while she was on her stomach as AM claims he did to her, or was it different? I accept however that there is an apparent inconsistency in their descriptions.
While that may raise criticisms of the credit of both witnesses it makes it unlikely that the two have got their heads together to concoct false stories. CB does not purport to support AM’s account of the bedroom massaging at all. AM’s evidence purports only slightly to support CB in that she says she saw CB massaged on at least two or three occasions.
I turn to the evidence that each witness gives of seeing the accused massage the other in the lounge room. CB says that while she never saw the accused massage AM in her bedroom she did see him massage her on one occasion in the loungeroom.[77] However she did see the accused rub AM’s feet and legs on many occasions.[78] I will return to the topic of massaging more generally later.
[77] T48.
[78] T50.
It is an agreed fact (P13, (2) (e)) that the first time CB mentioned ever seeing the accused massage AM is in a proofing session with the DPP on the 19th of June 2017. She had given earlier statements on the 17th of November 2014 and the 12th of February 2016 and had attended a proofing session at the DPP on the 11th of February 2016 (I assume, although I have not been told, that what was said at the proofing session on the 11th of February 2016 was incorporated into the statement of the 12th of February).
CB said[79] that she walked into the loungeroom and saw the accused lying on his back on a blue futon couch with AM on top of him. He was massaging her back over the top of her clothing. AM had her head on the accused’s chest. CB said she only saw what was going on for a few seconds. AM gives no evidence about the accused ever massaging her in that manner. Further AM gives no evidence of the accused massaging her in the loungeroom. She was never asked, either in examination-in-chief or cross-examination, whether the accused ever did anything to her in the loungeroom. In examination-in-chief, AM was asked[80] whether the accused ever touched her anywhere other than in CB’s bedroom. She said that he had massaged her in SB’s bedroom, that is, the mother’s bedroom. She went on to give her evidence about that topic. No further question was directed to the accused ever touching her in other locations in the house. In other words her attention was never drawn to other locations. Understandably no questions about the loungeroom incident involving her were raised in cross-examination.
[79] T48-9.
[80] T109, line 7.
However, AM was asked whether she had ever seen the accused massage CB in any place other than CB’s bedroom. She said she had seen the accused massage CB in the living room.[81] In a somewhat confusing series of questions and answers[82] AM appears to be saying that she had seen CB massage the accused by lying on top of him and massaging him ‘pretty much doing the same thing that he would do to us.’[83] She had also seen on an apparently different occasion the accused massaging CB while on top of her.[84] Attempts at clarifying what exactly AM was describing were not particularly successful.[85] Attempts at further clarification in cross-examination were equally unsuccessful.[86] There was no re-examination on this topic.
[81] T107.
[82] T107, line 36 to T109, line 6.
[83] T107, lines 29-30.
[84] T107, lines 32-5.
[85] T107, line 36 to T109, line 6.
[86] T133, line 25 to T134, line 8.
The state of evidence on the topic of the accused massaging either complainant in the loungeroom is this:-
·Neither witness says that the accused massaged them in the loungeroom. But in each case there is a qualification to that fact. CB says she is not sure if the accused massaged her anywhere other than in the Hewett bedroom[87] and AM’s attention was never drawn to whether the accused massaged her in the lounge.
[87] T48.
·Notwithstanding the above, each says that they saw the accused massage the other in the loungeroom. In the case of CB witnessing AM, apparently on one occasion and in the case of AM witnessing CB, apparently on more than one occasion.
·As to the manner in which each says she saw the other being massaged in the loungeroom by the accused, CB says she saw AM being massaged with AM on top, a manner not attested to by AM. AM says she saw CB being massaged in two ways, both of which CB said the accused did to her but she does not say it happened in the loungeroom. There is some confusion in the evidence AM gives on this topic.
·While it cannot be said that either witness gained support from the other on this topic I do not accept that the resulting inconsistencies are fatal to the credit of either witness. The inconsistencies tend to negate collusion between the two of them.
The night of the concert
I turn to the evidence relating to the Christina Aguilera concert allegation. The concert was held at the Adelaide Entertainment Centre on the night of Wednesday the 18th of July 2007.[88] CB spent the night at the accused’s house in Salisbury. CB’s mother dropped her off at the accused’s place then she and CB’s eldest sister JB went to the concert. After the concert SB and JB came back to the accused’s house and spent the rest of the night there.
[88] Dated photograph, Exhibit P11, and Ticket Exhibit P12.
CB says that she and the accused were alone while her mother and sister were at the concert. When asked specifically in cross-examination whether the youngest sister ShB was there CB said she did not believe she was[89] (SB said that she left CB and her younger sister ShB at the accused’s house when she went to the concert.[90] The accused said that ShB was there but she went to sleep after dinner. TM said that she could not remember whether ShB was there that night).[91]
[89] T59.
[90] T146.
[91] T233.
No one asked any questions about whether the younger brother was there that night. The significance of that is that if SB left ShB at the accused’s place it is more likely that she would also have left the younger brother there. Conversely if she made alternative babysitting arrangements for the younger brother she might also have made the same arrangements for ShB.
The evidence is unclear about whether CB ever stayed at the accused’s house on other occasions. CB was never asked whether she stayed at his house on other occasions. SB said that the children did stay at the accused’s place[92] but she was never asked whether it was more than the one occasion of the concert.
[92] T146.
The accused was never asked whether SB’s children ever stayed at his place other than on the night of the concert. TM said in cross-examination[93] that SB and her children stayed at the accused’s house ‘rarely’, ‘maybe once or twice but it was not a regular occurrence.’
[93] T232.
I bear in mind that all witnesses were giving evidence of a single event just over 11 years ago. The only witness for whom the occasion would have been remarkable is CB, and then only if her account of the sexual offending on that occasion is true (that is an aspect of the forensic disadvantage suffered by the accused, although he was able to have recourse to his diary).
Three witnesses gave evidence about what happened at the accused’s house that night during the concert. They were CB, the accused and his daughter. I have already referred to CB’s account in examination-in-chief about what she said occurred on that occasion.[94] She says that the accused committed two sexual acts against her. The first occurred when he got her on top of him, rubbed her bottom pushing it against his erect penis, then got out his penis and rubbed it against her vagina over her clothing, then under her clothing. That act comprises particular (d) of count 1 and the alternative count 2, the charge of aggravated indecent assault.
[94] T36-40.
The second was committed just after committing the first act. CB said the accused put her hand on his erect penis and effectively caused her to masturbate him. He ejaculated onto her boxer shorts. This act comprises particular (e) of count 1 and the alternative count 3, the charge of gross indecency.
In cross-examination[95] CB acknowledged that in several respects her evidence differs from out of court statements she has made. These are the inconsistencies:-
[95] T58-62.
·In a statement she gave on the 17th of November 2014 she said she fell asleep on the couch under a blanket. She did not mention watching TV with the accused.
·In the same statement she said she believed the accused was wearing old cotton navy blue track pants with no shirt. She acknowledged making the earlier statement but said that her present recollection was he was wearing only underpants.
·In the same statement she said that the accused ejaculated when he was rubbing her penis against his vagina whereas in her evidence she says that he ejaculated after the masturbation. Further, the masturbation was effected over the top of his clothes rather than against the naked penis.
In my view these inconsistencies are not such as to damage CB’s credit, at least not taken alone. They are the sorts of inconsistencies one might expect from a witness who was just short of 12 at the time and was 19 when giving her statement in 2014.
The most significant challenge to CB’s evidence in relation to this incident is the evidence from the accused and his daughter TM that TM was at the house that night. While it would be possible that the accused would commit such acts against CB if his daughter was in the house it is unlikely he would do so. Quite apart from any other considerations it is highly likely that if TM was there that night the two girls might be expected to stay up together. If CB and the accused were watching TV in the lounge it is unlikely that TM would not be there too.
CB specifically said that after the accused ejaculated on her shorts she went into TM’s bedroom where she had left her clothing and she changed there. If TM had been in her own bedroom during the sexual acts in the lounge CB might be expected to be acutely aware of her presence when she went to change. CB is adamant that TM was not there that night. Her mother SB also says TM was not there.[96]
[96] T148.
The accused and his daughter both say she was there. I deal first with TM’s evidence. As might be expected TM’s evidence on this topic was brief.[97] She said she was home with her father that night. She stayed up watching TV with CB until SB and JB came home. Her father was on his computer in the other room during the evening.
[97] T225-6.
In cross-examination she claimed to be able to clearly remember the occasion. That itself is somewhat surprising given the relatively unremarkable nature of the occasion so many years ago. That is so even if, as TM says, it was rare for CB and her siblings to stay overnight at the accused’s house. TM was pressed about what she could remember about the evening. She did not remember if the younger sister ShB was there[98] (CB does not believe she was there but both mother and the accused say that she was).
[98] T233.
Quite unsurprisingly TM could not remember what she and CB watched on TV, which concert SB and JB had gone to, when they got home or where CB slept that night. She denied discussing the evening with her father.
The accused’s evidence was that on the night of the concert TM and CB’s younger sister were there. ShB went to bed early. CB and TM stayed up until SB and JB came home. He denied any sexual impropriety.
The accused produced his 2007 diary for the purpose of demonstrating that he made a note of whenever his daughter TM stayed with him. He explained[99] that he made those notes because there had been discrepancies with child maintenance payments and he wanted to keep an accurate record of when his daughter stayed with him. He said that the arrangement with his former wife was that his daughter would be with him every second weekend, public holidays, school holidays, Easter and Christmas. He recorded his daughter staying with him by putting a ‘T’ on each day she stayed with him. He highlighted those marks for ease of reference. The accused made a note that TM stayed with him on Wednesday the 18th of July 2007, the date of the concert. It is an agreed fact, but it also appears in the front of the diary, that that was during the school holidays. The accused was not cross-examined on the diary entries. The entries about them have these features:-
[99] T182.
First, they generally record TM staying with the accused every second weekend. Usually the note shows TM staying from Fridays to Sundays. Occasionally the note shows weekend stays from Thursday to Sunday or just Saturday and Sunday.
Second, the accused had TM with him for Easter and Christmas. At Easter TM is noted as staying for Easter from Friday the 6th of April to Monday the 9th plus a further week until Sunday the 15th of April. The school holidays did not begin until Monday the 16th of April. At Christmas TM is noted as staying from Tuesday the 11th of December to Friday the 1st of January. The school holidays for December did not start until Monday the 17th of December but TM is recorded as beginning her stay on the 11th of December.
Third, apart from the notes relating to Christmas, the only occasion that there is a note of TM staying with the accused over school holidays is in July, including the night of the concert. The July school holidays were from Monday, 9th of July to Monday the 23rd of July. There is a note of TM being with the accused on what appears to be his usual alternate weekend from Friday the 13th to Sunday the 15th (he had TM with him on the weekends a fortnight before and after that weekend) but then there is a record of her not being with the accused on Monday the 16th or Tuesday the 17th of July but returning on Wednesday the 18th, the night of the concert and staying until Saturday the 21st.
As I say this is the only record of TM staying with the accused during the school holidays. She did not apparently stay with him during the January part of the school holidays (she may have stayed with him in the preceding December).
She did not stay with him during the April school holidays (Monday the 16th to Monday the 30th of April) although she had stayed with him over the extended Easter break which concluded just before the April holidays.
She did not stay with him during the October school holidays.
Of course if the accused did falsify the entries for the stay in July he could also have falsified other entries to make the July entry appear more consistent but it is slightly odd that the July stay starts on the day of the concert. There was a gap of two days after TM had stayed with him for her usual fortnightly access.
The accused was not questioned at all about the diary entries so I would not draw an adverse inference against him on this topic. All I do observe is that the document itself is not, in the circumstances determinative of TM staying with her father on the night of the concert. I add that TM’s own evidence of her staying is not highly probative on this topic given the difficulties inherent in her claim to be able to clearly remember the occasion. That said, that very difficulty is a forensic disadvantage suffered by the accused which I bear in mind. If a timely complaint had been made TM’s recollections would be expected to be more easily relied upon.
Stonehut
Criticism is made about the prosecution witnesses’ evidence relating to the offending alleged to have taken place on the single occasion CB visited the accused’s family’s house at Stonehut. The first criticism is that CB first made the allegation in a proofing session with the DPP the week before the trial began. The second criticism is that there are inconsistencies within CB’s evidence relating to the incident. In cross-examination she said that the party staying there comprised the accused and SB, the accused’s daughter and CB’s two sisters. She did not believe her younger brother was there and she did not remember TM having a friend there. She could not remember cooling off in a water tank or playing board games. Later in cross-examination Mrs Shaw produced two photographs to CB (D7 and D8) showing her and the other children playing a board game and cooling off in a water tank. The photographs also depicted CB’s younger brother. CB readily conceded their veracity.
In examination-in-chief CB said that she had fallen asleep on the adults’ bed. She was woken up by the accused pulling her on top of him. She did not know where everyone was. In cross-examination she said the bedroom door was open at the time. When she was asked whether there were other people in the house she said she did not think so. When the whereabouts of her mother were raised she said that she believed her mother and the others had gone to a bakery nearby. It was put to her that she had not previously mentioned that the others had gone to the bakery. CB conceded that she may not have said that but she had mentioned in the statement the presence of the bakery. The defence points out that CB’s mother SB had first mentioned the Stonehut visit in a statement given the week before the trial. I assume, although I have not been told, that that came about when the issue was raised with SB by the DPP or the police following CB adverting for the first time to that incident. It was put to her that while she had mentioned the bakery in her statement she had not mentioned going to it. SB conceded she may not have done that. She said that when she went to the shop she went on her own. She denied speaking to CB about the matter.
It is further suggested that there are improbabilities about CB’s account. She cannot explain how she came to be in the adult bed, the door was open and there were many people staying in the house at the time.
In my view the three types of criticism of the evidence on this topic, that is, the recent invention, the inconsistencies and the improbabilities do not substantially undermine CB’s credit. They are the sorts of frailties in evidence given by witnesses who were children at the time, and who are giving evidence years later.
The ‘worst incident’
I have already summarised CB’s evidence about what she described as the ‘worst incident.’ The act of penile-vaginal penetration is the subject of particular (f) of count 1 and count 4, the alternative charge of unlawful sexual intercourse with a child under 14. CB says she believes she was 12 at the time (she turned 12 on the 1st of September 2007).
The defence criticises CB’s evidence relating to this incident on the ground that her evidence that the accused penetrated her vagina with his penis is inconsistent with a statement she gave a social worker on the 11th of February 2010. What she said to the social worker is set out in agreed fact 1(g) of P13. I do not reproduce the passage in that agreed fact but the social worker’s note appears to be a very brief summary of CB’s allegations of the accused’s sexual abuse overall. The note records the abuse occurring from April 2007 to June 2008. It purports to cover the whole course of the alleged conduct. The notes refer to several sorts of sexual behaviour associated with massages. The relevant note says that CB ‘stated that there was no penetration.’ I will refer in more detail later to the evidence of CB’s reports to authorities of abuse by the accused but it is not clear that CB’s attention during the interview with the social worker was focussed on the details of the course of conduct. I would describe the social worker’s notes as a broad or generic account of abuse. Nevertheless, one can imagine that the social worker was concerned to find out whether any penetrative sexual activity had occurred and on the face of it CB had said that there had not been any penetration. CB says in court this was the only occasion in four years when penetration occurred.
It is to be noted that it was never put to CB in very thorough cross-examination that she had ever denied penetration in the several proofings and witness statements she had given. She gave her first statement to the police on the 17th of November 2014, then three subsequent statements on the 12th of February 2016, the 26th of June 2017 and 3rd of August 2018, each following a proofing session with the DPP. When the inconsistent statement to the social worker was put to CB she said she did not remember saying that but if she did it was not correct. In the circumstances I do not find that the inconsistency adversely affects her credibility.
Discussion of evidence of AM
I have already considered AM’s evidence in several contexts, but I have given her evidence separate consideration from that of CB. I have also scrutinised her evidence carefully.
AM can only have been visiting CB’s house in Hewett for about a year or so. CB’s family moved to Hewett in 2007, although it is not entirely clear that CB changed schools. The adult relationship broke up in August 2008. AM said that she often stayed overnight at CB’s house. Both SB and CB say the same. I therefore think it unlikely that the accused only ever saw AM at CB’s house in the last six months of his relationship with SB.
AM says the accused massaged her at least five times in CB’s bedroom. She saw the accused massage CB there at least two or three times. The two charged acts of aggravated indecent assault of AM are the first occasion of massage in CB’s bedroom and the sole occasion when the accused massaged her in SB’s bedroom.
In addition to the charged acts there are uncharged massages and discreditable conduct consisting of the accused picking her up in a sexualised way and making sexualised conversations with her. In addition, it is alleged he asked her to pose for photographs.
The evidence of massages of AM is criticised on a number of grounds. It is pointed out that AM’s account of massaging in CB’s bedroom differs from the evidence of CB. That is correct in relation to the modus operandi of AM’s massages. AM said the accused would sit astride her when she was lying on her front. However, CB never claims to have seen the accused massage AM in the bedroom. There is no reason why the accused might not choose to massage AM differently from how he had been massaging CB for several years. I accept that while neither CB or AM says the accused massaged them in the loungeroom, each claims to have seen the accused massage the other in the lounge. I accept that in those circumstances neither witness can be said to corroborate the other on those topics. There is effectively nothing to corroborate.
Each of the complainants says that the accused engaged in a course of sexual or sexualised conduct with them during the course of the charged offences. Each says that the accused:-
·Picked them up in such a way that there was a degree of indecent touching.[117]
[117] CB at T51 and AM at T114.
·Engaged them in sexualised conversation.[118]
[118] CB at T54 and AM at T114.
·In the case of AM, the accused caused her and other young females in the house to pose for photographs in a slightly suggestive way.[119] AM points out that CB is depicted in some of the photographs tendered although CB does not give evidence about the photographs.
[119] AM at T116.
I address the question of whether I need to give myself a direction about uncharged acts or discreditable conduct arising from this evidence.
In respect of CB, at least as far as count 1 is concerned, the need for such a direction is different from that which is required in relation to counts 5 and 6 relating to AM. In R v Landmeter (2015) 121 SASR 522 Vanstone and Bampton JJ discussed the need for a direction contemplated by s 34P and s 34R of the Evidence Act 1929 in a case where the charge is Persistent Sexual Exploitation of a Child, the predecessor offence to the present count 1.[120] The first observation made by the majority judges is that the purpose of the creation of the offence of Persistent Sexual Exploitation of a Child is to dispense with the common law requirement for the prosecution to identify, charge and prove each sexual offence. The offending relates to the whole course of conduct comprising the particularised and unparticularised sexual offences, whether they be committed on one occasion or multiple occasions. For that reason, no specific warning has to be given about the multiplicity of particularised acts or unparticularised sexual offences.[121] However, the fact finder must bear in mind that unparticularised conduct is not sufficient to prove the charge. ‘It is proof of more than one of the particularised conduct which the jury must be satisfied.’[122]
[120] [18] – [35]. Peek J was in dissent on this topic.
[121] [27].
[122] [29].
I adapt and apply the conventional jury direction. Proof of unparticularised conduct does not absolve the fact finder from the duty of finding the requisite particularised conduct proved beyond reasonable doubt.
The second observation made by their Honours is that unparticularised conduct may amount to discreditable conduct. Notwithstanding that, their Honours said that there is no need for a judge to make a finding pursuant to s 34P or give a direction pursuant to s 34R of the Evidence Act 1929. At least that was so in relation to evidence in the case of lingering in a bathroom. Their Honours concluded that the evidence in that case was general in its nature. It was ‘subsumed and overshadowed by the particularised allegations and there was ‘no scope for reasoning from those interactions to a conclusion of guilt of the charge.’[123]
[123] [30].
In my view CB’s allegations of the accused picking her up and engaging in sexualised conversation do not call for the rulings or directions contemplated by ss 34P or 34R. That is particularly so in a judge alone trial. That said, I accept the prosecution submission that[124] these activities, if proved, indicate a sexual interest by the accused in CB.
[124] T250-1.
In relation to counts 5 and 6 relating to AM, I accept that I am obliged to make rulings pursuant to s 34P and give myself the directions contemplated by s 34R.
In respect of these counts the discreditable conduct consists not only of the acts referable to CB, i.e. the picking up and the conversations but also to the uncharged acts which are part of the course of conduct alleged by AM, that is, the other acts of sexualised massaging. There is also AM’s evidence of the accused asking how to pose for photographs.
I bear in mind that the evidence of discreditable conduct cannot be used to suggest that the accused is more likely to have committed the charged offence (s 34P(1)(a)).
I do not use the uncharged acts as evidence of propensity or disposition (s 34P(2)(b)).
I find that the permissible uses of the uncharged acts are the capacity of the evidence to indicate that the two charged acts did not occur out of the blue. They occurred in the context of several other similar acts and they occurred in the context of the accused having a sexual interest in AM. I must find that the probative weight of these permissible uses substantially outweighs any prejudicial effect (s 34P(2)(a)) and I must find that the permissible and impermissible uses can be kept sufficiently separate and distinct from each other ((s 34P(3)). I make those findings. I admit the evidence.
I have already identified the purpose of admitting the evidence (s 34R(1)). I do not find that the evidence of discreditable conduct is essential to the process of reasonably leading to a finding of guilt in respect of counts 5 and 6 (s 34R(2)).
The accused’s evidence
In considering the accused’s evidence and his credibility I bear in mind first the good character evidence. The statements of the two character witnesses are Exhibits D15 and D16.
The first statement is from Antony Paul Webb. He has been friends with the accused for 25 years. He met him through the accused’s parents. They worked together at times. They have acquaintances in common. The witness says that he has always found the accused to be honest and genuine. He says that the accused has the reputation of being honest, hardworking and a family-oriented man who is great with children. The second witness, James Langmead, is a retired police officer who reached the rank of Chief Inspector by the time he left the police force. He too got to know the accused through the accused’s father. He has been friends with the accused’s family for 25 years. Mr Langmead knows of the accused’s reputation in the community. The accused has the reputation of being a stable, honest man with a strong focus on his family.
Both witnesses indicate that they have been told of the allegations in the present case.
That evidence may be used both to bolster the accused’s credit as a witness and in making it less likely that he committed the offences which are charged. The accused has no antecedents.
I also bear in mind the forensic disadvantage the accused suffers by reason of the delay in the allegations coming to light. I have already referred to the specific disadvantages mentioned by the accused himself but I have also had regard to others which I have referred to.
The accused gave evidence on oath. He denied all allegations of sexual impropriety. With the two qualifications mentioned above, I treat his evidence in the same way as that of any other witness.
I found the accused’s evidence unsatisfactory in three respects. I formed the clear impression that he went to undue lengths to minimise his contact with SB and her family, and also AM. My impression was that he was trying to distance himself from them. I found his denials of taking the posed photographs implausible. I found aspects of his evidence about massages unsatisfactory. I will explain each topic in more detail but I bear firmly in mind that the fact-finding task does not ultimately involve deciding whose version of events I prefer. The burden of proving the charges beyond reasonable doubt rests throughout on the prosecution. The accused bears no burden of proof at all.
Opportunity
I turn to the topic of the accused’s evidence about his contact with SB and her family. The couple met through the accused’s work as a gas delivery man in early 2003. Their relationship began in March 2003. The couple separated in August 2008. CB turned eight in September 2003 and was just short of her 13th birthday when the couple separated. CB says that within six months of the adult relationship beginning the accused started coming into her bedroom and massaging her. Her evidence does not make clear when the massaging escalated to the point that it became overtly sexual. She said the massaging stopped some time before her 13th birthday.
SB said that once their relationship began the accused spent most weekends with her. Sometimes he would stay overnight during the week. It is not in dispute that, with the possible exception of the elder son, SB had her children with her most of the time. The children stayed with her during the week. They stayed with her at least each alternate weekend. There was some irregularity in the access taken by the father but with some exceptions the irregularity tended to be that he would not always take access.
SB was unshaken in her cross-examination on the topic of the time the accused spent with her and her family. Although one should be wary of drawing conclusions about how people organise their lives, SB’s evidence seemed reasonable and likely about the times at which she and the accused were together.
The accused however was at pains to explain that his visits to SB’s family were not as frequent as she said they were. When it was put to him that he would go to SB’s house on weekends when he did not have his daughter with him, as well the weekends when he did have her with him, he said that he did not generally do so. I asked him myself why that was so. He said ‘because I would try and have other work to keep me occupied.’ He went on to say that he probably did a lot of work on the weekends.[125]
[125] T201.
When he was asked if he could estimate how many times a year he might have visited SB he gave a quite convoluted answer which seemed evasive.[126] There were two similar sorts of answers to related questions.[127]
[126] T203, lines 7-20.
[127] T204, lines 15-25 and T205, lines 17-25.
Photography
I turn to the evidence about the accused’s photography. P9 and D10 are photographs of three females in the two families. P9 consists of 25 photographs. Most are shots of the females in slightly suggestive poses. The three females depicted are CB’s older sister JB, AM and the accused’s daughter TM. AM said the accused took all of those photographs and he asked the girls to pose for him.
TM denies that her father took the nine photographs which have her depicted in them. She said she would not have posed in that way in front of her father. While AM said that the accused took the photographs and asked the girls to pose, she agreed that some of the poses they took were their own idea and not specifically directed by the accused.
Exhibit D10 is 40 photographs. They overwhelmingly include AM, JB and TM although there are a few of SB. There are three which include CB and two include CB’s younger sister, ShB. The prosecution Exhibit P9 contains the more provocative photographs which AM said the accused took and in which, where she is depicted, she was directed by the accused to pose. The defence Exhibit D10 includes some similar photographs but none appear to be replicated from P9. Some however, appear to have been taken on the same occasion as those in P9. They demonstrate that other photographs were taken and not all of them involved AM.
The subject of the accused’s photography assumes some importance in the trial. AM in particular said that the accused would take photographs of her and other females in the house and he would at times ask her to pose in provocative ways. The photographs in P9 and D10 include photos of her which fit that description. The prosecution submits those photographs, particularly of AM in P9, demonstrate the truth of what AM says. They demonstrate the accused’s sexual interest in her.
There are only a few photographs of CB. They are in D10. The photographs of her are not particularly provocative. CB was not questioned in examination-in-chief about photographs at all. The topic was raised in cross-examination and related to photographs in MFI D5. I have not seen the photographs in MFI D5. They were never tendered. I was told by Ms Barnes, and it was confirmed by Mrs Shaw, that D10 comprised a selection of photographs from MFI D5.
Only the photographs from MFI D5 were shown to CB in cross-examination. She said she did not think she took any of those photographs, she thought it possible that TM took some and she did not remember a timer being used. In other words there was a photographer in each case. She did not know who took the photographs[128]. She volunteered however that the accused was often taking photographs. He had an expensive camera.[129]
[128] T95.
[129] T96.
The photographs became more a feature of AM’s evidence. The bundle P9 was tendered through her.[130] Exhibit D10 was tendered in cross-examination of AM.[131] In relation to photography in general, AM could not remember a timer ever being used[132] and the majority of the photographs were taken by the accused.[133]
[130] T116-7.
[131] T129.
[132] T128.
[133] T129.
In relation to Exhibit P9, AM said that those photographs were taken by the accused on an occasion when she and CB were dressing up in some of SB’s clothing. TM was there at the time and was included in some of the P9 photographs. AM maintained that the accused was taking those photographs and directing her to pose.
In examination-in-chief the accused’s attention was drawn not to P9 but to D10. He said that he believed he was present and admits he took some of those photographs. They include photographs of TM. He denied directing any of the girls to pose.[134]
[134] T191.
In cross-examination, his attention was drawn to P9.[135] Some of those photographs include TM as well. The accused said he did not take all of the photographs. He did not remember taking the photographs which included his daughter.[136] He had no recollection as to why the girls posed in the way that they did. He denied that the photographs were taken at his suggestion. He said that while he was with SB he might have taken four to five hundred photographs and there was nothing out of the ordinary about the photography session depicted in P9.
[135] T206.
[136] T206.
When asked specifically about a photograph in P9 of AM, JB and JM posing on chairs he said he might have taken that photograph. It is the only photograph in the exhibit showing the three girls posing together on chairs. Three photographs of JB sitting alone somewhat provocatively in a chair on the first page of the exhibit appeared to be taken on the same occasion. It appears to be the same chair and she appears to be wearing the same clothing as she does in the other photographs. Likewise, on the penultimate page of the exhibit, three photographs of AM sitting alone on a chair appear to be on the same occasion.
The accused said that his best recollection of this evening was that the girls were in a bedroom taking photographs. He had given TM permission to use the camera. He then saw them ‘scamper out the back door’ and because he was concerned about them dropping his camera on the cement he followed them outside and took a few photographs himself. However, he never directed them.[137]
[137] T209.
The accused pointed to a particular photograph in P9 which showed JB and AM lying on the concrete outside. He said that his legs were depicted in the background. I accept that as a reasonable proposition. That photograph would tend to corroborate his account that he did not take all of the photographs on that occasion. What, from another point of view, the evidence might suggest is that he has taken the opportunity to join in the photography session, but not necessarily for the sole purpose of protecting his camera. In my view, his evidence does not negate AM’s evidence that he directed her to pose in the photograph depicting her. He could have joined in the fun, becoming engaged in it for his own purposes.
Of some significance is what TM said on the topic of those photographs. In examination-in-chief her attention was drawn to D10. She said that the photographs were all taken on the night when the girls dressed up in some of SB’s clothing. She said that all but two of the photographs were taken by her or the other girls. The two that were taken by her father included SB herself and were taken inside the house rather than outside or elsewhere. She denied the accused directing any poses.
In cross-examination her attention was drawn to P9. She could not remember who took the photographs which included her.[138] She denied that the accused took the photographs where she, JB and AM were depicted. She emphasised her denial by saying ‘because there was no way on this planet I would pose like that in front of my dad, ever.’[139]
[138] T236.
[139] T236.
With regard to the photographs in P9 of AM posing alone, TM said they were taken by herself or JB. In my view TM’s reaction to the suggestion that she would not have posed in front of her father as she is shown in the photographs was unusually defensive. In fact, the photographs of her are quite restrained. She is almost always depicted as part of a group of two or three. In none of them is she depicted posing on her own in the manner of JB or AM in P9. I find that the accused himself took the posed photographs of JB and AM in P9.
Massaging
Just as the accused’s involvement in photography was occurring commonly in the household, so too was massaging by him, and of him. CB and AM say that the massage of them was his modus operandi leading to sexual offending. The accused denies any improper massaging. Both witnesses said that they had seen the accused massaging the other. CB said that although she had not seen the accused massaging AM in her bedroom, she had seen him massaging her feet and legs, quite often.[140] She said the accused had rubbed her own feet on occasions different from the night-time back massages.[141]
[140] T50.
[141] T54.
AM was not asked about the accused massaging her, other than those associated with the offending against her.
In cross-examination, SB was asked about her observations of the accused massaging herself and ‘the kids’ while watching movies.[142] This exchange took place:-[143]
[142] T195.
[143] T181.
QIn relation to… and was that really on the back and the shoulders area that he'd give you massages, more shoulders.
AYeah feet, wherever really.
In examination-in-chief, the accused said he might have rubbed the shoulders of the children if they wanted him to.[144] In cross-examination he agreed that he massaged SB’s back[145] and that he would rub the children’s shoulders. He said that he had massaged CB and SB in that way but denied ever massaging AM at all. He denied ever rubbing her legs. He said he would massage the others if they: ‘presented themselves in front of me and said ‘I’ve got a sore shoulder can you rub it?’…’[146]
[144] T181.
[145] T198.
[146] T199.
In relation to rubbing SB’s children on the legs or feet, he said ‘I may have if I was sitting on the couch watching TV and they presented their feet in front of me. I may have but it’s nothing that I can recall.’[147]
[147] T199.
He added that SB used to massage her children. That was never put to SB.
The accused was asked how the requests for massage were made. He said: ‘…For example, sitting in front - on the couch watching TV, I've had children drop in front of me and go 'I've got a sore shoulder, can you give me a rub?...’[148]
[148] T200.
The accused indicated that he only ever massaged JB and CB, not either of their brothers.[149] In re-examination he explained that was because the boys never presented themselves in front of him for one.[150] The accused said that massages of the children were infrequent, possibly half a dozen times for each girl. He said that he used to massage his daughter too but that had not happened at SB’s house.
[149] T200.
[150] T223.
In cross-examination Mrs Shaw asked CB if she had ever seen the accused being massaged by anyone else. She said she had not. Mrs Shaw then produced to her the photograph D6.[151] This is a photograph of the accused lying shirtless on his stomach on a sofa. SB is sitting astride his buttocks, apparently massaging the middle of his back. His daughter TM is standing alongside him apparently massaging his upper back. There was no evidence about who took the photograph. The accused did not know who took it. The photograph is not posed. It really looks as if SB and TM are somewhat surprised by the photographer.
[151] T97.
I asked the accused some questions about what was happening at the time of that photograph. He said he remembered being in extreme pain that day. He acknowledged that neither SB or TM had any qualifications in massage therapy. He explained that his daughter’s contribution to the massage was simply ‘she knew I used to get in a lot of pain.’[152] The accused said that he found that the ministrations of SB and TM eased his pain on that occasion.
[152] T198.
In my view, that photograph graphically illustrates that the accused had made massage an unexceptional part of domestic life when he stayed at SB’s house, at least as between him and the female members of the household. He had ‘normalised’ massage within the house. In these circumstances, the accused beginning to massage CB in her bedroom when she was eight might not have seemed extraordinary.
Conclusion
I am satisfied that each of the complainants are truthful and reliable in their evidence of the charged offences. I reject the accused’s denials.
In respect of CB, I am satisfied beyond reasonable doubt that the accused maintained an unlawful sexual relationship with her for about four years from when she was about eight until she was about 12. I find that the accused committed each of the particularised behaviours in count 1. I find that he committed the acts in particulars (a) to (c) on multiple occasions and particulars (d) to (f) on one occasion each. I do not therefore need to consider the alternative charges of counts 2, 3 and 4.
In respect of AM, I am satisfied beyond reasonable doubt that the accused committed the charged acts comprising counts 5 and 6 and that those offences were committed as part of a slightly longer course of conduct attested to by AM.
I come to these conclusions on the basis that I accept the truthfulness and reliability of both complainants as to both the charged and uncharged acts.
I find that the accused had a sexual interest in CB, evidenced by his beginning to massage her in an apparently innocuous way when she was about eight. When he met no resistance, and no complaint was made, his massaging of her became more overtly sexual, culminating in the single act of unlawful sexual intercourse described by CB as the ‘worst incident.’ I find that after that, CB started resisting the accused and he stopped offending against her. The offending stopped some time, perhaps shortly before, the end of the relationship between the accused and SB. I find that the accused’s massaging of CB occurred in the context of his normalising massage in the household in the way that I have described. I find that the accused’s sexual interest was further demonstrated by his sexualised picking her up and engaging in sexualised talk with her.
I reject the accused’s denials of sexual activities with CB. I found his evidence unsatisfactory in the respects I have mentioned.
In respect of AM, I am satisfied beyond reasonable doubt that the accused committed the two acts of aggravated indecent assault comprising counts 5 and 6. I find that those acts were committed in the context of the slightly longer course of conduct consisting of other massaging carried out in a similar way. Further, I find that the accused’s sexual interest in AM was demonstrated by the way in which he picked her up in a sexualised way, engaged in sexualised talking and asked her to pose in somewhat suggestive ways for photographs. I reject the accused’s evidence in respect of AM.
Verdicts
Count 1 – Maintaining an Unlawful Sexual Relationship with a Child Under 14 – Guilty.
Count 5 – Aggravated Indecent Assault – Guilty
Count 6 – Aggravated Indecent Assault – Guilty
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