R v LNS - [2021] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v LNS
Criminal Trial by Judge Alone
[2021] SADC 10
Reasons for the Verdict of her Honour Judge Chapman
12 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with aggravated indecent assault. It is alleged that in November 2017, he touched the vagina of his 8 year old daughter. The accused gave evidence and denied he committed the offence.
Verdict: Not guilty

R v LNS
[2021] SADC 10

The accused is charged with one count of aggravated indecent assault alleged to have been committed in November 2017.
The alleged victim of the offence is his daughter who was then eight years old. By that time, the accused and the complainant’s mother had been separated for years and were sharing custody of the complainant.
The offence is alleged to have been committed by the accused on a weekend in November 2017 when the complainant was staying with him for the first time at a place in Sellicks Beach which the accused was house sitting for a friend. On the first night, the complainant asked the accused to sleep in her bed with her because she was scared. He did so. The complainant alleges that on three occasions during the night she woke up to find the accused touching her. The first time he was pinching her nose. The second time he was patting her bottom. On the third occasion, he was rubbing her vagina over her underpants (the alleged indecent assault) and pinching at her underwear. The complainant rolled over then the accused said hello or good morning to her.
The prosecution led evidence from the complainant, the complainant’s mother, a domestic violence counsellor and a police officer and tendered agreed facts.
The accused gave evidence in his defence. He agreed he slept in the complainant’s bed that night because she said she was scared. He denied committing any of the acts upon her and, in particular, denied committing the alleged indecent assault.
The elements of the offence
In order to prove the offence of aggravated indecent assault, the prosecution must prove the following elements beyond reasonable doubt.
1.   The accused intentionally assaulted the complainant.
2.   The assault was accompanied by, or occurred in, circumstances of indecency which must involve a sexual connotation.
3.   The accused was in a position of authority in relation to the complainant (element of aggravation).
Because of the complainant’s age at the time (aged eight), her consent to any such act is not a relevant issue. There is no dispute the accused was in a position of authority.
If the accused committed the alleged act, it would amount to an indecent assault. The issue is whether the act did in fact occur.
Proof
The prosecution has the burden of proving the offence. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty. The prosecution must prove beyond reasonable doubt that the act did in fact occur.
The accused gave evidence in his defence. He was not obliged to give evidence. He had the right to remain silent in answer to this charge. I have assessed his evidence and the weight to be given to it in the same way as with any other witness, subject to one important caveat. By giving evidence, the accused took on no onus of proof. He was not required to prove what he said. It was for the prosecution to disprove it. Even if I was to reject his evidence, it would not follow that he is therefore guilty of the offence. I must carefully consider the prosecution evidence and determine whether, despite the evidence of the accused, the prosecution has proved the offence beyond reasonable doubt.
The complainant’s evidence
The complainant was interviewed by Detective Attard on 10 January 2019.[1] She was then nine years old. I admitted the audio-visual record of that interview pursuant to s 13BA of the Evidence Act 1929. I was satisfied the requirements for its admission pursuant to s 13BA(3) had been met and in particular, I was satisfied that the complainant had the capacity to give unsworn evidence at the time of the recording. There was no challenge to the admission of the recording.
[1] Exhibit P1.
In that interview, the complainant spoke about her general relationship with the accused. She said the accused left her in the same clothes all week when she stayed with him. He did not change her underwear or do washing.
She said one time he played tricks with her. She went to bed and he made banging sounds on the walls. She asked, ‘what are you doing?’. He said, ‘I don’t know’ but she then looked out the window and saw him doing it. It made her scared.
She said there were times when they were play fighting that she asked him to stop but he did not do so. He started really annoying her, pinching her and hurting her. He pinched her on her legs, arms and cheeks. He did that a lot of times. He did not respect her personal space.
Some of their play fighting included the accused trapping her head between his legs when he had no pants on. She felt very uncomfortable because he would not let go. He squeezed her head and her head was very close to his penis. She got very short of breath and light headed because of her asthma. That happened more than one time.
She told Detective Attard that the accused has done ‘a lot of inappropriate stuff to her’, but she did not remember all of it.
In relation to the charged occasion, the complainant told Detective Attard that the accused was looking after a house for his friend. On the first night, she slept with him because she ‘don’t do good in houses on the first night by myself cos I feel really scared’. The house also felt like it was in the middle of nowhere. She said she woke up and he did three things. The first thing he did was pinch her nose. He did that for 20 seconds and he did that three times. She then fell back asleep. She woke up again to find that he was patting her bottom. She then fell asleep again. She next woke up in the morning. She told Detective Attard that the accused was ‘kind of like rubbing my knickers’. He was rubbing her vagina and then started pinching at her knickers.
The complainant gave evidence at trial. Before the complainant commenced her evidence, I asked her questions in order to determine whether she had a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
She was 11 years old at the time of the trial. In my view, the complainant had an appropriate understanding of the difference between the truth and a lie. I did not consider she had a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. She did know it was important to tell the truth in court. She did not think there was a difference between telling the truth to her friends and telling the truth in court. She did not understand why people hold the Bible or make a formal promise to tell the truth in court.
She was permitted to give unsworn evidence.
The complainant was cross-examined about the allegation.
She gave evidence she thought she asked her father a couple of days before the weekend if he could sleep in the same bed with her. She said, ‘because every time I move into a new house, I always sleep with an adult, like it’s just a comfort thing’.[2] It was a double bed. She was scared because she had never stayed in that house. It was really windy and it was a creepy house. She had all those feelings when she went to bed that night.
[2] T51.
After the accused pinched her nose, she went back to sleep. When she woke up again, the accused was patting her on the bottom. It was black, still dark. She then fell back asleep.
She then had a dream about sitting at the dinner table. She could feel being touched. She woke up and the accused was touching her in bed (the indecent assault). She did not know what to do, so she just stayed there for a couple of seconds and then rolled over. It was probably a minute, or less than a minute, she could not say. After she rolled over, he said hello and/or good morning.
The alleged indecent assault in its chronological context
The complainant’s allegation of indecent assault must be considered in a wider chronological context. That context includes the nature of the relationship between the complainant’s mother and the accused after they separated, the impact of that relationship upon the complainant, the events leading up to the complainant making the initial complaint and the timing of a later police investigation. They are all important matters which in combination leave me with reasonable doubt about the allegation.
October 2010 to March 2018
There is no dispute that in October 2010, the eight or nine year relationship between the complainant’s mother and the accused ended. The complainant and her mother moved out of the home address in the Adelaide hills where the accused remained (the accused’s home). They lived with the accused’s mother for a few months then with an aunty for a month, then back and forth between the two. The complainant’s mother secured a rental property in Mount Barker in 2011. The accused visited the complainant at the Mount Barker house. The complainant’s mother permitted the complainant to have sleepovers with the accused when the complainant was three years old (from about mid‑2012).
The complainant’s mother then secured employment. As a result, the complainant stayed with the accused on Monday to Thursday nights. He cared for her during that period including taking her to, and collecting her from, school.
By 2014, the complainant and her mother had moved to live in the same town in the Adelaide hills as the accused. The complainant’s mother gave evidence about two occasions in 2014 when the accused was allegedly violent toward her. The accused gave a different account of those occasions. They both agree that the complainant was present on both occasions.
From 2014 to 2016, the complainant and her mother moved home on many occasions and the complainant changed school multiple times. By the time they moved to Gawler in 2016, the complainant’s mother no longer had her driver’s licence. Their home was also a significant distance from the accused’s home. Consequently, the complainant stayed with the accused during the school week and stayed with her mother on weekends. Later in 2016, the complainant’s mother moved to Brighton. The custody arrangements remained the same until February 2017 when the complainant’s mother moved back to the same town in the Adelaide hills where the accused lived. The complainant’s mother rented a property in the same street as the accused. The custody was then equally shared.
On 3 November 2017, the accused moved out of his place to house sit a friend’s place at Sellicks Beach. The complainant and her mother moved into the accused’s home. The custody arrangements changed. The complainant was to be with her mother for the week and with the accused at Sellick’s Beach on the weekends.
For the reasons set out below, I find that the complainant stayed with the accused at Sellick’s Beach for the first time on the weekend of 10 November 2017. That puts the time of the alleged indecent assault to be the morning of Saturday, 11 November 2017. I also find that the complainant stayed other weekends at Sellick’s Beach with the accused in November and December 2017. She did not stay with him for any weekends from 15 December 2017 onwards.
In early 2018, the accused did not see the complainant very often. The complainant and her mother continued to live in the accused’s home in the Adelaide hills town whilst the accused continued to live at Sellick’s Beach. I find that the complainant’s mother made excuses about the complainant having other commitments and therefore being unable to be with the accused. He visited that town to see the complainant, mostly seeing her on Saturdays. On a few occasions when he visited in 2018 there were arguments between the complainant’s mother and the accused in the presence of the complainant.
On the day before Good Friday in 2018, the accused visited the complainant at his former home. During that visit, the complainant left on her bike and went to a friend’s place. The complainant’s mother gave evidence the accused rang her, yelling at her, so she hung up.
In the early hours of Good Friday (30 March 2018), the complainant’s mother and the accused sent text messages to each other. The complainant’s mother gave evidence that those messages and a subsequent phone call with the accused were the trigger for her to call Homeless Gateway and seek shelter with the assistance of a domestic violence service. She described the messages from the accused as threatening and abusive. She was scared for her safety.
The complainant and her mother were placed in a hotel.
On 5 April 2018, the complainant’s mother went to the police station in Grenfell Street and signed an affidavit in support of an Intervention Order against the accused.
Initial complaint (10 April 2018)
I find that it was on 10 April 2018 that the complainant made the initial complaint to her mother, that is, the day before the complainant’s mother went to see a financial counsellor and the police were notified, the latter agreed as being 11 April 2018.
The complainant gave evidence that she and her mother were staying in a hotel and it was a week after Easter. She told her mother what happened with the accused. She felt like she had to tell her mother. She was in bed and falling asleep. She told her mother by writing it down on a piece of paper and giving that to her mother to read. She remembered she wrote down that she was having a dream and then she woke up and felt the accused touching her. She could not remember what else she wrote down.
In cross-examination, the complainant gave evidence that she wrote on a single piece of paper, not in a book. She did not see the piece of paper again after she gave it to her mother. She did not read it out to her mother because she was in tears.
The complainant’s mother gave evidence that the complainant told her what happened about three weeks into living in the hotel, at night time. She said she needed to tell her something about dad. She was struggling to get the words out, so the complainant’s mother suggested it would be easier for her to write it down. She gave the complainant an art book. The complainant wrote some things in that book and then handed it back to her. The complainant was not good at spelling and her handwriting was very messy. The complainant’s mother found it very difficult to read it. She asked the complainant to read a bit out to her.
The complainant told her she thought it was the first night that she was staying at Sellicks Beach. She was scared because it was a new house and so she slept in the bed with the accused. At some point during the early morning, she woke. She thought she was having a dream, but soon realised that it was not a dream. She felt the accused touching her vaginal area. She did not use those words, but demonstrated to her what was happening. She demonstrated lying on her back and her hands near her vagina and she was using a rubbing motion back and forth. She was also pinching at her underwear and holding her nose shut. She said she kind of felt weird about it and rolled over and made eye contact with him. He then stopped and said, ‘good morning, did you sleep well?’.
When she made the complaint, the complainant looked upset, embarrassed and was crying.
April 2018 to January 2019
On 11 April 2018, the complainant’s mother met with her financial counsellor. She told the financial counsellor what the complainant had told her. The police were called.
The complainant did not make any disclosure of sexual abuse to the police. She gave evidence she did not know why she did not tell the police about what happened with the accused. She said she just did not feel comfortable.
On 13 April 2018, the complainant’s mother met with her domestic violence case manager at a domestic violence service shelter.
On 19 April 2018 and 4 May 2018, there were two court hearings dealing with the complainant’s mother’s application for an Intervention Order. The application was dismissed on 4 May 2018.
The complainant did not have any contact with the accused from Good Friday 2018 onwards.
On about 20 December 2018, the accused initiated proceedings in the Family Court for custody of the complainant. Relevant papers were served on the complainant’s mother.
On 21 December 2018, Detective Attard became involved in the investigation of this allegation. The investigation was triggered by an eCARL notification (an electronic child abuse report line report via the internet). The complainant’s mother gave evidence it was possible that she rang the child abuse line in December 2018 about this incident. She could not remember, but if that is what her domestic violence counsellor told her to do, then that is probably what she did.
The complainant was interviewed by Detective Attard on 10 January 2019. She made the allegation the subject of this charge.
Assessment of the evidence of the complainant and her mother
My assessment of the complainant’s evidence is inextricably linked with my assessment of the complainant’s mother’s evidence and her actions in 2017 and 2018. Ultimately, I think the complainant has been affected by her mother’s decision in March 2018 to seek emergency refuge from the accused on the basis he was a threat to their safety. Her mother’s explanation of those events lack credibility as do other aspects of her evidence. The prosecution has not excluded the possibility the complainant has (unconsciously) made this allegation to try and make her mother happy by keeping the accused away from them.
I did not find the complainant’s mother to be a credible witness. The concerns I have about her evidence include her supposed need for emergency accommodation on Good Friday 2018; her failure to produce the written complaint made by the complainant; her inaction in addressing custody of the complainant with the accused whilst keeping the complainant’s whereabouts secret from him over a period of nine months; her report of child sexual abuse upon being served with the accused’s application in the Family Court for custody of the complainant; and her account of the complainant’s relationship with the accused after he moved to house sit at Sellick’s Beach.
The supposed need for emergency accommodation on Good Friday 2018
The complainant’s mother’s evidence‑in‑chief gave the clear impression that the text messages she received from the accused in the early hours of the morning of Good Friday 2018 made her feel so physically unsafe that she rang the Homeless Gateway services as soon as she could when she woke up that morning. She described them as threatening messages. Her evidence was that the accused said he was going to kick her out, that she had two weeks; he was threatening to make her homeless so that he could take the complainant; he was calling her names, threatening her situation, her housing and the complainant’s mental welfare. It made her feel very upset. When the messages eventually stopped, she got a few hours of sleep.

After making the call for emergency accommodation in the morning, she was told there was a hotel room available for the complainant and herself and they left. She was transferred to the domestic violence service and then on 5 April 2018, her case worker took her to the police station to apply for an intervention order.
The text messages were tendered in cross-examination (exhibit D6). I find that the evidence given by the complainant’s mother about the threatening nature of those text messages is not borne out by the messages themselves.
First, the messages had a context which was not mentioned by the complainant’s mother during her evidence‑in‑chief. They show that as at Good Friday 2018, the complainant’s mother was in arrears in rent payments for the accused’s home where she was living with the complainant whilst the accused was house sitting at Sellick’s Beach. The accused was less than impressed with that situation. The complainant’s mother repeatedly asked him to find out how much was owing. He could not understand why she did not know how much was owing. He was concerned that he might lose the house. His texts referred to previous occasions when she had financial issues.
In cross-examination, the complainant’s mother acknowledged this was not the first time she had difficulties paying rent. She explained that when her daughter turned eight, her government benefit went from parenting payment single to Newstart. By 2017, she had significant rental arrears at multiple properties. One of the reasons for her debt was her drug use. She was probably owing thousands of dollars. She disagreed with the suggestion that the accused was going out of his way to help her by letting her rent his home. Rather, she said, they worked it out together to sort out that problem.
Second, prior to the tender of the text messages, I find that the complainant’s mother exaggerated the threatening nature of them. During cross-examination, she was asked to identify the actual messages she had earlier described as threatening. She identified two texts. The accused texted: ‘you pay that rent back or ur out I’m done then [the complainant] will have to stay with me whilst ur homeless’. The next text was ‘I’m serious you have manipulated and fucked me over this whole time I’m giving you a week to sort it out’. These were two texts amongst many. They do not support her suggestion that the threats were so bad that she needed to seek emergency shelter. In context, those texts show that the accused was understandably despairing as to why she did not know the quantum of the arrears or was unable to find that out for herself. In my view, her tone is the more belligerent.
Third, I find that during cross-examination, the complainant’s mother concocted the occurrence of a telephone call from the accused having realised that exhibit D6 did not support the level of threat she had initially portrayed. She gave evidence the accused called her around 8.00am, during which he was very angry and screaming down the phone. She hung up and then proceeded to phone Homeless Gateway. She relied on the phone call to say that it really scared her because it felt like he was going to come up to the house as he had done in the past.
When the complainant’s mother gave her statement to the police on 6 February 2019, and during her evidence‑in‑chief, she made no mention of such a phone call.
Additionally, her evidence about a phone call from the accused at around 8.00am is not consistent with exhibit D6. At 8.17am, there was a message from the accused saying, ‘Hi I’m trying to call but no answer’. The complainant’s mother responded to the effect that they are asleep and she did not want to talk right after his earlier abuse. At 8.23am, there was a hang up message on her message bank. The accused did not leave a message. At 9.23am, there was a message from the accused saying, ‘hello I’m trying to call u’. At 10.45am, there was another message from him saying ‘Been trying to call all morning where are u?’.
Fourth, I have some doubt about the veracity of the complainant’s mother’s references to the accused’s prior violence in 2014 as the basis of her fear and pressing need to leave in 2018.
She agreed that there had been no physical violence toward her since two incidents in 2014. She described the first occasion as occurring on a day when she asked to borrow the accused’s car. She arrived at his house, but he turned up late. She was flustered and they argued. During the yelling match, she described the accused running aggressively at her, grabbing her, swinging her around and throwing her into the ground. Her back hit the ground and she felt it crack. He then threw her phone to the ground, obliterating it. She got up, grabbed the complainant’s hand and ran next door. The police and an ambulance were called.
The accused gave evidence about an occasion when the complainant’s mother said his car was not good enough. They argued, she fell over, her phone smashed and she ran next door with the complainant. He tried to speak with them through the neighbour’s door.
On the second occasion, the complainant’s mother gave evidence she received a phone call from the accused which made no sense. She hung up and within five minutes he was at her front door. He let himself in without permission. They were yelling at each other. He threatened to take the complainant with him if she did not comply with his way of parenting. He punched the fridge. After he left, she stayed at a friend’s house. She was home the next morning waiting for a call from a domestic violence service when he came in the front door, walked over to the complainant, picked her up and put her in the car without a seat belt. The complainant’s mother tried to get the keys out of the ignition to stop him from leaving. His mother became involved in the altercation. The car ended up reversing backward onto the road and somehow his mother ended up falling over. The accused bit her on the arm when she was trying to fight for the keys. The car then started to go forward, she moved away and the accused drove off with the complainant. The complainant’s mother called the police and an ambulance. The complainant was with the accused for about 14 days.
In cross‑examination, the complainant’s mother agreed that this was a day on which the accused was to have custody of the complainant. She denied she caused the upset. She described the complainant as extremely upset and not wanting to go with the accused. The complainant’s mother said that she was trying to take the keys away in order to ‘settle the situation down so that we could communicate calmly’.
The accused gave evidence it was his day to collect the complainant. There had been an argument about a week earlier regarding an ongoing dispute about how they were raising the complainant. He went into the house and as they were leaving, the complainant’s mother came at him and started grabbing him as he was walking toward the car. When he was in the driver’s seat, she tried to get the keys. He admitted that he bit her arm to get her to let him go. The police got in contact with him pretty much straight away. He met them and they questioned the complainant, who remained in his care for the next two weeks.
Having assessed the complainant’s mother as a witness who tended to exaggerate her evidence, I have some doubt about her account of those two occasions. Neither occasion resulted in the accused being arrested. In any event, I have not used that evidence to reason that the accused is a bad person or is more likely to have committed this offence. Ultimately, I do not need to resolve the factual dispute about those two occasions, but I generally prefer the evidence of the accused when there is a conflict with the evidence of the complainant’s mother. The two occasions were approximately four years prior to the occasion when the complainant’s mother took the complainant away to emergency accommodation. They do not add much, if any, weight to the claim by the complainant’s mother that on Good Friday 2018 she was so in fear of the accused that she needed to take the complainant, urgently escape from him and remain hidden.
The separation of the complainant from the accused
On Good Friday 2018, the complainant’s mother deliberately separated the accused from the complainant. The complainant had made no complaint of a sexual nature about the accused at that stage.
In my view, by Good Friday 2018, the complainant’s mother was in financial difficulty (again) and realised that the accused had become unforgiving of her situation. During cross-examination, she admitted that she was ‘already talking to people from CentaCare before this because I wanted out even before this’. When asked what she wanted out of, she said, ‘I didn’t want to be around [the accused]. I didn’t want to have to do this anymore. I wanted to be able to go to Family Court, get a parenting order in place and not have to see [the accused], or, you know, have him in my life any more’. When it was put to her that the complainant was his daughter, she said, ‘That’s correct, but many people have children together and they separate and they don’t have to necessarily have to be in contact with one another. There are ways around that. Like dropping the child off at the police station and the other parent picks it up. Like, for my safety, I was over it and I just wanted to cut contact’.[3]
[3] T134
The difficulty with the credibility of that position is that she did not take steps to go to the Family Court and get a parenting order in place. Rather, in my view, she exaggerated her fear of the accused and kept the complainant from him. It is in this context that the complainant made the initial complaint to her mother.
The evidence of the complaint is not evidence of the truth of what was alleged. It is evidence of how the allegation first came to light. It may be used as evidence of the degree of consistency of conduct of the part of the complainant.
I have some doubt about what was in fact said by the complainant to her mother on 10 April 2018. The complainant’s evidence was that she wrote everything down and said very little. Her mother’s evidence was that the writing was difficult to read and the complainant told her what happened. I find it curious that the complainant’s mother never produced the complainant’s writing to the police or to the court. Her evidence about being unable to find the art book in which the complainant wrote her complaint does not ring true. She described it as a very large art book and so she did not know why she would carry that around with her to take to the police. She said she was in a lot of shock after what she had been told. She put it somewhere safe in a tub in her cupboard. They moved a couple of times and in that process, it has ‘just vanished along with other important documents’. The complainant said she wrote on a single piece of paper.
There may be varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time to a particular person. I am unable to exclude the possibility that one of the reasons for the complaint in this case is that the complainant wanted to say something she thought her mother wanted to hear.
When the complainant spoke to the police in April 2018, she made no disclosure of sexual abuse by the accused.
Despite that non-disclosure to the police, the complainant’s mother kept the complainant away from the accused for the rest of the year. She made no application to the Family Court to sort out custody of their daughter during that year. The accused made an application in December 2018. He had not seen his daughter since that Easter weekend when, he said, she had ‘disappeared’.
The complainant’s mother gave evidence that she did not go through the Family Court because she was told by her case worker, and a lawyer, to wait for the accused to initiate court proceedings. It troubles me that the complainant’s mother took no action in the Family Court, but appears to have remained in hiding with the complainant and done nothing. She was asked whether throughout 2018 she was in fear of the accused finding out where she was. Her response was that she was at first, but as time went on ‘you learn to let go and you settle into a new way of life and things become a little bit easier’.
I also find it troubling that the complainant’s mother made a report of child abuse to the police as soon as the accused made an application in the Family Court regarding custody of the complainant.
In the period leading up to that report, the complainant’s mother had told the complainant to be aware and keep a look out for her father. If she saw her father, she was to let her mother know. Further, the domestic violence case worker gave evidence that she had to warn the complainant’s mother a number of times about the types of conversations she was having in the complainant’s presence, including conversations about how she was feeling and her level of fear in regard to the accused. The case worker gave evidence that she was sure the complainant would have witnessed her mother becoming upset when talking about that topic. She said the complainant’s mother’s level of fear was heightened when someone attempted to serve Family Court documents upon her on 20 December 2018.
It is in that context that in January 2019, the complainant made a disclosure to the police, telling them about this allegation.
The complainant’s relationship with the accused prior to Good Friday 2018
The complainant’s mother sought to diffuse the significance of that period of time in hiding by explaining that, in any event, by March/April 2018, the complainant did not want to see the accused. Having considered the text and video messages sent by the complainant to the accused in November 2017 to March 2018 (discussed below), I have doubt about that.
I find that the complainant’s mother was incorrect when she gave evidence that the complainant only stayed with the accused at Sellick’s Beach on one occasion. Her evidence was that the complainant came back after the first time and did not want to go again. She said the complainant may have spent New Year’s Eve with the accused, but that was all. She said the complainant was always not very happy about going to stay with the accused, but after staying that time at Sellick’s Beach, it got worse. There were tears, she was really upset and begging not to be sent. She was getting so upset that she was sick, physically unwell from emotions. When the accused asked for the complainant to talk to him on the phone, most of the time the complainant said she did not want to talk.
Facebook messages between the accused, the complainant and complainant’s mother [4] show that the complainant stayed with the accused on at least two or three weekends after 10 November 2017, including the very next weekend of 17 November 2017. The complainant’s evidence was that she stayed with the accused on at least two occasions after that first weekend.
[4] Exhibits D8, D9 and D10.
On 15 December 2017, Facebook messages were sent between the accused and the complainant. The complainant sent the accused fun and loving images. The accused responded, including ‘ha ha love you’.[5]
[5] Exhibit D13.
On 17 December 2017, the complainant left a voice message for the accused saying, ‘I love you’ and ‘Just calling to say I miss you’.[6]
[6] Exhibit D5.
On 19 December 2017, the complainant sent the accused various text messages, including ‘I love you’. The accused responded, ‘love you heaps’. She also sent a voice message asking him what he was doing, asking him to call her back and telling him that she loved him.[7]
[7] Exhibit D5.
On 21 December 2017, the complainant left another voice message for the accused. Again, her tone was happy and loving. She was excited because the cactus had bloomed. She had sent a photo of it to him. She said she loved him and asked him to message her. She said they were going to town and would not be there if he visited. She repeated that she loved him.[8]
[8] Exhibit D5.
In cross-examination, the complainant agreed that the messages she left were not consistent with her hating her father. She explained that when she was with her mother she felt safe and did not think about it. She used to leave those messages because she did not want him to get mad. She said she loved him in those messages because ‘I felt safe at mum’s and so he wouldn’t get mad at both of us’.
On 23 March 2018, which was only a week before the complainant’s mother decided to seek emergency accommodation, the complainant sent the accused a funny face video message during which she said, ‘I miss you, I miss you’. [9] There is no sign of dislike, let alone hate.
[9] Exhibit D14.
So how did it come about that on 10 January 2019, the complainant was volunteering to Detective Attard, within minutes of the interview, that she really did not like her dad at all, describing him as ‘a bad person’? She explained that after she rode her bike to her friend’s house, she never saw him again. She said, ‘and that felt good when I was getting away from him’.
She said her mother picked her up and told her that they were going into hotel accommodation. Her mother said they were getting away from dad. The complainant told Detective Attard that she felt happy because she did not have to see him anymore. She volunteered again that she really did not like him and is starting to call him [name of the accused], not dad. She said she hated him. She went on to say, ‘literally, I don’t want to see him, I don’t want to be around him.’.
Those statements were made by the complainant in a very determined manner. I keep in mind that such feelings toward the accused could be attributable to the happening of the alleged indecent assault. However, such an expressed level of dislike and hatred toward the accused is difficult to reconcile with the text and video messages she sent to the accused following the alleged incident up until March 2018.
I cannot exclude the possibility that the complainant’s feelings toward the accused have been influenced by her exposure to the events from Good Friday 2018 onwards which have resulted in her wanting to keep her mother ‘safe’ from the accused. That possibility is apparent in some of the responses the complainant gave during her evidence. When asked why she continued to stay with the accused after the alleged indecent assault she said, ‘I don’t know, I just – I didn’t want to go but I did because – I don’t know. I felt like I had to go or he would get mad or hurt my mum again’.[10] In relation to hearing them yell, she gave evidence that it made her feel ‘scared because I just – I didn’t want my mum to get hurt because he has hurt her before’.[11] The arguing made her feel ‘sad and scared, once again; cos he has hurt her in the past and I don’t want her to get hurt’.[12]
[10] T42
[11] T42
[12] T47
I found the accused to be a credible witness. His responses were appropriate. He did not exaggerate.
I am not satisfied beyond reasonable doubt that any of the alleged uncharged acts occurred during play fighting. I am not satisfied beyond reasonable doubt that the act the subject of the alleged indecent assault in fact occurred.
Verdict
I find the accused not guilty.