R v M

[2021] SADC 113

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v M

Criminal Trial by Judge Alone

[2021] SADC 113

Reasons for the Verdicts of her Honour Judge Chapman 

19 October 2021

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY

The accused is charged with aggravated indecent assault of MJ and unlawful sexual intercourse with a person under the age of 14 years in relation to AJ.

Both MJ and AJ were friends of the accused's daughter.  It is alleged the accused committed the offence against MJ when she was visiting his home for a play date with his daughter in 2019.  It is alleged he committed the offence against AJ during a sleepover at his home for his daughter's birthday party in August 2019.

Held:  Not guilty of both counts

Evidence Act 1929 (SA) s 9, s 12AB, s 13BA(1), s 13BA(3)(a), s 13BA(3)(b), referred to.
Hughes v The Queen (2017) 263 CLR 338; MDM v The Queen (2019-2020) 136 SASR 360; The Queen v Calides (1983-84) 34 SASR 355, applied.

R v M
[2021] SADC 113

Criminal

1. The accused is charged with committing two sexual offences in relation to two complainants.  Both complainants (MJ and AJ) were friends of his nine year old daughter, LJ.  The offences are alleged to have been committed on separate occasions at the accused’s home.

2. The accused is charged with aggravated indecent assault (count 1).  It is alleged that between 1 May 2019 and 31 October 2019, he indecently assaulted MJ by touching her vagina.  The alleged offence is aggravated because MJ was under the age of 14 years at the time of the offence.  She was then seven years old.  The offence is alleged to have been committed when MJ was at the accused’s house on a play date with the accused’s daughter.  The prosecution case is that the accused put the complainant on his lap and touched her vagina whilst they were sitting in the lounge room with LJ watching a movie.

3. The accused is also charged with unlawful sexual intercourse with a person under 14 years (count 2).  It is alleged that between 2 August 2019 and 4 August 2019, he had sexual intercourse with AJ by inserting his fingers into her vagina.  The complainant was then aged nine years old.  The offence is alleged to have been committed during a sleepover for LJ’s ninth birthday party.  It is alleged the accused put his finger in AJ’s vagina when they were lying on a mattress together in the lounge room.

4. The accused elected for trial by judge alone.

5. I find the accused not guilty of both counts.  The following are my reasons.

   The elements of the offences

6. In relation to count 1, the offence of aggravated indecent assault, the prosecution must prove each of the following three elements of the offence beyond reasonable doubt:

   1.     That the accused assaulted the complainant.

   2.That the assault occurred in circumstances of indecency.  There must be a sexual connotation.

   3.That the complainant was under the age of 14 years at the time of the offence.

7. In relation to count 2, the offence of unlawful sexual intercourse with a person under 14 years, the prosecution must prove the following two elements of the offence beyond reasonable doubt:

   1.The accused engaged in an intentional act of sexual intercourse with the complainant.  Sexual intercourse includes any activity consisting of penetration of a person’s vagina or labia majora with a finger or fingers.

   2.The complainant was under the age of 14 years at the time of that act of sexual intercourse.

8. The question of whether the complainant consented to the alleged act the subject of each charge is irrelevant because each complainant was a child at the time.

9. The issue at trial was whether the prosecution has proved beyond reasonable doubt that the act the subject of each count did in fact occur.  There was no dispute that the allegation made by each complainant, if the act did in fact occur, would satisfy the elements of the offence charged.  

   Proof

10. The prosecution has the burden of proving each 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 even probably guilty.

    The prosecution evidence

11. The prosecution called evidence from four children (MJ, AJ, LJ, and another child, IJ), the parents of MJ, the mother of AJ and the investigating officer, Detective Brevet Sergeant Tamara Day.

12. The evidence of the child complainant, MJ, comprised three interviews with Senior Constable Naomi Weatherald on 19 March 2020,[1] 28 March 2020[2] and 21 April 2020[3] and evidence given by MJ at a pre-trial special hearing (PTSH) on 28 May 2021 (the pre-recorded evidence[4]).

    [1]     Exhibit P11. Transcript is MFI P11A.

    [2]     Exhibit P14. Transcript is MFI P14A.

    [3]     Exhibit P15. Transcript is MFI P15A.

    [4]     Exhibit P20A.

13. The evidence of the child complainant, AJ, comprised interviews with Senior Constable Jessica McKinlay on 21 November 2019[5] and 9 December 2019[6] and evidence given by AJ at a PTSH on 28 May 2021 (the pre‑recorded evidence[7]).

    [5]     Exhibit P1. Transcript is MFI P1A.

    [6]     Exhibit P3. Transcript is MFI P3A.

    [7]     Exhibit P17A.

14. The evidence of the accused’s daughter, LJ, comprised an interview with Senior Constable Jessica McKinlay on 22 November 2019,[8] an interview with Senior Constable Naomi Weatherald on 4 May 2020[9] and evidence given by LJ at a PTSH on 28 May 2021 (the pre‑recorded evidence[10]).

    [8]     Exhibit P7. Transcript is MFI P7A.

    [9]     Exhibit P9. Transcript is MFI P9A.

    [10]   Exhibit P19A. 

15. The evidence of the child witness, IJ, comprised an interview with Senior Constable Jessica McKinlay on 25 November 2019[11] and evidence given by IJ at a PTSH on 28 May 2021 (the pre‑recorded evidence[12]).

    [11]   Exhibit P5. Transcript is MFI P5A.

    [12]   Exhibit P18A.

16. I made orders pursuant to s 13BA(1) of the Evidence Act 1921 (the Act) that the evidence of MJ, AJ, LJ and IJ be admitted at trial in the form of the audio visual records of the interviews and their pre‑recorded evidence. The interviews satisfied the criteria for admission pursuant to s 13BA(3)(b) of the Act. The pre‑recorded evidence satisfied the criteria for admission pursuant to s 13BA(3)(a) of the Act in that the recordings were made in a PTSH conducted in accordance with s 12AB of the Act

17. At the PTSH, I determined that MJ, AJ and LJ did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence but permitted each child to give unsworn evidence.[13]

    [13] Section 9 of the Evidence Act 1929.

    The defence evidence

18. The accused elected to give evidence in his defence.  He did not call any further evidence.

19. The accused had a legal right to remain silent and was not obliged to give evidence.  He has a presumption of innocence in his favour.

20. I will assess his evidence in the same way as with any other witness.  His evidence has the same weight as the evidence of any other witness.  By electing to give evidence, he took on no onus of proof.  The burden remains on the prosecution to prove his guilt.

    Count 1

21. The prosecution case relied solely upon the evidence of MJ.  It is alleged the accused touched MJ’s vagina when she was visiting his house for a play date with his daughter, LJ.  It is alleged the indecent assault occurred whilst MJ was sitting on the accused’s lap when they were watching a movie in the lounge room.  LJ was also present in the lounge room.

    Evidence of MJ

22. When she was interviewed on 19 March 2020, MJ said she was at the accused’s house for a play date with LJ.  She thinks the touching occurred in term 2 or term 3 in 2019.  Those two term dates were agreed to span the period 29 April 2019 to 27 September 2019.[14]  It was not the last time she had a play date with LJ.

    [14]   School term 2 commenced on 29 April 2019 and concluded on 5 July 2019.  School term 3 commenced on 22 July 2019 and concluded on 27 September 2019.  (Agreed facts 8 and 9, Exhibit P22).

23. They watched ‘the actual real movie of Peter Rabbit’.[15]  She said the accused got her from under her arms, picked her up and ‘put me on his lap’.[16]  LJ was sitting on a separate couch, watching the TV.  During the interview, MJ disclosed what happened by writing it down.  She wrote ‘[first name of the accused] touched my privete part’.[17]  She then wrote ‘its were you wee out of it’.  She said she had clothes on but could not remember what she was wearing.  She said, ‘like he opened up my knickers and then he put his finger there’.[18]  He started rubbing with one finger on her skin under her knickers.  She asked him to stop and he did.  She sat back down on the couch by herself after hopping off his lap.[19] 

    [15]   MFI P11A, page 7.

    [16]   MFI P11A, page 9.

    [17]   MFI P11A, page 14.

    [18]   MFI P11A, page 15.

    [19]   MFI P11A, page 15.

24. They sat and watched the rest of ‘Peter Rabbit’.  LJ was still sitting on her couch.  The accused remained sitting on the couch.  After the movie, she went with LJ to LJ’s room and went on her iPad, watching YouTube.

25. During the interview on 28 March 2020, MJ said the accused rubbed her, but not hard.  When asked how long it went for, she said ‘until I realised it’.[20]  When she told him to stop, he stopped.  He pulled his hand out of her knickers.  It happened once.  His finger did not go inside.  She had been to LJ’s house since the incident maybe two, three or four times.

    [20]   MFI P14A, page 6.

26. On 28 May 2021, the prosecution asked further questions in examination‑in‑chief.  MJ had just turned nine.  She was asked further questions about the plan of the lounge room.[21]  She said she was pretty sure they were watching ‘Peter Rabbit’.  She had drawn Peter Rabbit on the plan.  When it was put to her in cross‑examination that she had never watched ‘Peter Rabbit’ with LJ, she said ‘well that was the only time I watched Peter Rabbit with [LJ]’.[22]

    [21]   Exhibit P16.

    [22]   PTSH, T64.

    Initial complaint

27. MJ made an initial complaint to her mother on 18 March 2020.

28. The complaint is admissible pursuant to s 34M of the Act.  The evidence is not admissible as evidence of the truth of what was said by AJ.  It may be used as evidence of the degree of consistency of her conduct.  It may be used to inform how the allegation first came to light. 

29. During the interview on 19 March 2020, MJ said she told her mum last night, but she kept it to herself most of the time.  She could not remember what she told her mum.

30. MJ’s mother gave evidence that on 18 March 2020, she received a phone call from a police officer about interviewing MJ because of the allegation made by AJ against the accused.  She spoke to MJ later that evening in the bathroom.  She said to MJ that ‘a lady by the name of Naomi from Berri police had called and she would like to talk to you about something that may have happened between [name of accused] and [AJ]’.  She gave evidence that MJ became very hysterical.  MJ kept on saying ‘they’re going to know I lied’.  MJ ran out of the bathroom and into her room, repeating ‘they’re going to know I lied’.

31. MJ’s mother gave MJ some time to settle.  She called MJ into her room to have a talk.  MJ kept on repeating ‘they’re going to know I lied’.  MJ’s mother told her that all they want to know is the truth and if you know something then you need to say something.  MJ then said, ‘you’re going to be so mad at me, mummy, because I have been lying to you’.  MJ said that the accused had touched her on her private parts.  MJ’s mother thinks she said ‘vagina’.  MJ’s mother said, ‘on your leg?’ and MJ said ‘no, on my vagina’. When MJ said he touched her on the vagina, she did circle movements using her hands.

32. MJ’s mother gave evidence she called for her husband and told MJ that she was ok and had done a wonderful job telling the truth.  MJ’s mother contacted someone at the Berri police station that evening to report what MJ had said. 

33. In cross‑examination, she confirmed that MJ was happy to go to the birthday party in August 2019.  She gave evidence that if her daughter did not want to go or do something, then she would usually tell her.  MJ seemed happy when she was picked up from the birthday party.

    Evidence of MJ’s father

34. The prosecution called MJ’s father to establish that the accused had opportunity to commit the offence.

35. MJ’s father gave evidence that his daughter and LJ were good friends.  He met the accused in 2014 at church.  He said MJ and LJ had a beautiful friendship back in 2019.  They had play dates at each other’s houses.  When he took MJ to a play date at the accused’s house, he was around most of the time because he did not like to leave them by themselves.  He gave evidence that LJ and his son did not get along very well so there were times when he would drop his daughter at the accused’s house to have a play date with LJ and then leave to kick a football with his son for an hour or two.  He would return to pick his daughter up.  He believed there were two or three times that he left MJ to stay at the accused’s house by herself in February or March 2019.  He estimated those months by checking his text messages with the accused about play dates.

    Evidence of LJ

36. LJ was interviewed on 4 May 2020 in relation to play dates with MJ.  She was asked whether she remembered watching ‘Peter Rabbit’.  She said ‘Nah, don’t think we ever watch Peter Rabbit cause wasn’t really into it.’[23]  Despite saying she did not remember watching ‘Matilda’, she was asked what she remembered about watching ‘Matilda’.  She said ‘Yes. Mm, [MJ] would mostly sit with me on the couch and my Dad would be sitting on another couch and that is basically it’.[24]  She said MJ had been to her house without MJ’s father more than one time.

    [23]   MFIP9A, page 5.

    [24]   MFIP9A, page 5.

37. LJ was not asked whether she ever saw MJ sit on the accused’s lap.

38. In cross-examination, LJ gave evidence she has never had a DVD of the ‘Peter Rabbit’ movie.  She did not remember a time when she watched ‘Peter Rabbit’ with MJ.  She did not remember, or was not sure if she remembered, a time when she watched TV or a movie with MJ and the accused in the lounge room, just the three of them.  She was then asked, ‘If you ever watched any TV or movies in the lounge room with [MJ] and your dad, would you sit next to MJ or your dad, or separate’.  She responded, ‘I would sit next to [MJ]’.[25]  They would sit on the big couch with three seats.  She was then asked the following question: ‘You never saw your dad touch [MJ’s] vagina, did you’.  She replied ‘No’.[26]

    [25]   PTSH, T47.

    [26]PTSH, T47 – 48.

    Evidence of the accused

39. The accused gave evidence that he became friends with MJ’s father after meeting him at church.  MJ and LJ became friends.  When MJ came over for a play date with LJ, her father would bring MJ and his son, stay for a coffee and chat and watch football.  There were a couple of times he left to go out and kick a football with his son.

40. The accused could not remember any occasion when the movie ‘Peter Rabbit’ had been on at his house.  He saw the movie with LJ at the cinema.  He does not have the movie on DVD, nor has he ever rented it.

41. He denied ever touching MJ on the vagina.

42. In cross‑examination, the accused agreed that LJ and MJ were close friends in 2019.  They had known each other for a couple of years.  He described MJ as always polite and well behaved.  The two girls played happily together.  They would watch movies in the lounge room or play on their iPad.

43. Sometimes he would sit in the lounge room whilst they were watching TV.  He was asked whether there were times that he would sit on the couch with MJ.  He said, ‘I would sit on another chair, LJ and MJ would sit on the couch, but I would normally sit on one of the other chairs’.[27]  He gave evidence that it was not possible that he might have been on the same couch as MJ.  He said that if he had been on the same couch, he would have been sitting next to LJ.  He could not recall a time when he was sitting next to MJ.

    [27]   T92.

    Count 2

44. The sleepover party for LJ’s ninth birthday occurred on the Saturday afternoon of 3 August 2019 and overnight to the Sunday morning of 4 August 2019 at the accused’s home address.

45. The accused was the only adult present at the birthday party.  His daughter, LJ, invited three friends – MJ (aged 7), AJ (aged 9) and IJ (aged 9).  They all watched a movie in the lounge room.  An air mattress was placed on the floor in front of the television.

46. The youngest friend, MJ, did not sleep over.  She was picked up by her mother at about 8.00pm.  The other two friends, AJ and IJ, did sleep over.  The three girls slept in the lounge room.

47. The offence is alleged to have occurred after MJ left the party and once everyone had settled down for sleep.  AJ alleges that the accused was lying on the air mattress next to her.  He rubbed her vaginal area and put his finger in her vagina.  He was still lying next to her when she woke up the next morning.

48. AJ made an initial complaint to her mother on 20 November 2019.  She was interviewed by the police the next day and the accused was arrested later that day.  LJ was first interviewed on 22 November 2019.  IJ was first interviewed on 25 November 2019. 

49. A number of issues arose from the evidence which were relevant to the assessment of the credibility and reliability of AJ’s evidence.  Those issues included AJ’s general unhappiness at the party; evidence that she put on her pyjama bottoms but not her pyjama top; evidence that she hugged the accused on the mattress when everyone was still awake; and evidence that the accused did not sleep on the mattress that night. 

    The allegation

50. AJ was nine when she was interviewed on 21 November 2019.  She started by telling Detective McKinley that she ‘went to my friend’s sleepover party and her dad … when I was sleeping he accident he was touching above of my private and private area’.[28]  She said, ‘when he was in the private area, so actually in it, I needed to pull his hands out’.[29]

    [28]   MFI P1A, page 3.

    [29]   MFI P1A, page 4.

51. The accused touched her at night time.  AJ had not yet been asleep but was trying to go to sleep.  When it happened, AJ was in the middle between LJ and the accused on the mattress.[30]  LJ was next to her, asleep.[31]  IJ was asleep on the couch.[32]  She was wearing pyjamas with knickers on.  He touched her underneath her knickers.

    [30]   Exhibit P4.  AJ did the drawing during the interview on 9 December 2019, MFI P3A, pages 5 -6.

    [31]   MFI P1A, pages 8 - 9.

    [32]   MFI P1A, page 15; MFI P3A, page 10.

52. She said first he was at the top of her private and then he started going down into it.  He was rubbing his hand above it first and then his hand started going down into the actual private area.  She felt uncomfortable, that is why she pulled his hand out.  A few minutes later, he stopped.

53. She said the name for her private part was vagina and the vulva.  She said, ‘so firstly he was touching um the skin of the vulva and then he started going into the vulva, I mean, um, he was touching the skin of the vagina and then he started going into the vagina … cos the vulva is the outside and the vagina is actual inside’.[33]

    [33]   MFI P1A, page 10.

54. She demonstrated using a tissue box.

55. She said he was rubbing around and around with three fingers on the vulva and then he put one finger inside.  She pulled his finger out and then he started doing it again ‘and after a few more of these he stopped’.[34]  She thought he used three fingers on top and then in the end he did one.  She thought the second time she pulled his finger out he said ‘ok’.[35]

    [34]   MFI P1A, page 11.

    [35]   MFI P1A, page 11.

1. When he stopped, she felt ok, but when he was doing it, she felt uncomfortable.

2. The next morning, the accused ‘was still in bed with me um on the bed’.  LJ was next to her and IJ was sleeping on the couch.[36]

   [36]   MFI P1A, page 8.

3. When she was interviewed on 9 December 2019, AJ said it was a blow‑up mattress and her pyjamas had full length pants.  She said he rubbed with two fingers and then ‘he went down into one’.[37]  She said it was a little bit uncomfortable and that is why she pulled it out.  He then went back to rubbing.  She pulled his hand out and he stopped. 

   [37]   MFI P3A, page 6.

4. During her evidence on 28 May 2021, AJ said that when she was lying on the mattress with the accused and he touched her, there was just a blanket which covered her from the neck down and was also over the accused.  There may have been a sheet on the blow‑up mattress.  There was a light on, but not in the lounge room.  She could see some things a little bit.

   Evidence that AJ was upset during the party

5. There was evidence that during the party, AJ was upset because she may have felt the other girls were leaving her out.

6. The sleepover party commenced in the late afternoon.  During the afternoon/evening, the girls were outside on the trampoline, played pass the parcel, ate snacks, pizza and birthday cake and watched a movie on TV in the lounge room.  LJ, IJ, AJ and the accused gave evidence the movie they watched was ‘Matilda’.  I find that MJ was mistaken in her recollection that the movie was ‘Peter Rabbit’.

7. I find that there was some disquiet between AJ and the other girls at the party.

8. IJ said when she got to the birthday party they went onto the trampoline.  LJ was telling some jokes, but then AJ thought she was serious and started getting mad at her and then AJ left.  LJ grabbed her iPad and put on some music.  AJ kept running off. [38]

   [38]   MFI P5A

9. LJ said that when they played pass the parcel, AJ got all the stuff she did not want.  She got a silver notebook and LJ got a pink notebook.  AJ asked if she could have the pink notebook and LJ agreed.

10. MJ said that ‘there was this girl called [AJ], and then somehow she just got umm upset at [LJ], and then umm then she was sitting on [LJ’s] couch, and just like sitting there, being upset’.[39]

    [39]   MFI P11A, page 5.

11. MJ’s mother gave evidence that when she picked MJ up at about 8.00pm, she noticed AJ sitting on a recliner, looking quite upset.  It looked like she was crying or had been crying.  She had her knees tucked up, like in a cradle position.  She knew AJ because she used to work with AJ’s brother as a support person in the classroom.  She was at the house for about 10-15 minutes.

12. The accused gave evidence that when the girls first arrived, they went out on the trampoline in the backyard.  LJ had her iPad.  AJ was getting very upset about that.  She did not want a party with technology.  She came up to the accused and started complaining.  The accused told her that it was LJ’s birthday party, ‘just all get along’.[40]  He said that she was talking in a whinging sort of voice and he thought she just was not happy because she felt left out from the other kids.  There was a bit of tension.  He went inside and got all the food prepared.  She did come up once and said, ‘the girls don’t like me, they are all picking on me’.[41]  He said to her that you have to all get along.  They were in the kitchen at that time.

    [40]   T57.

    [41]   T68.

13. He went outside and told the girls to come soon because the food is nearly ready.  They came in and had something to eat.  It looked like AJ was feeling she was being left out and was not happy.  He spoke to LJ and IJ about getting along with AJ.  They played pass the parcel after the food.  AJ complained a few times because the parcel was not landing on her.

14. To the extent that AJ was asked questions on this issue, she agreed she was feeling left out.  When she was interviewed on 21 November 2019, AJ said that IJ and MJ went on the trampoline with LJ’s iPad and ‘they were all like, they were sitting down listening to music, um, music without me’.[42]  She stayed inside with the accused in the lounge room.  They were both sitting on the couch watching YouTube on the TV.  In cross‑examination, she said the other girls would not let her go with them on the trampoline, so she just watched YouTube on the couch.  She got a little bit mad about that.

    [42]   MFI P1A, page 6.

15. During the interview on 9 December 2019, AJ was asked whether there was anything else that she wanted to tell about that day.  She said ‘Um well funny story, um, [IJ] swore at me’ and she described how she was watching YouTube videos while IJ and LJ were asleep.[43]  When she was cross‑examined on 28 May 2021, she could not remember IJ swearing at her.

    [43]   MFI P3A, page 10.

    AJ’s pyjama top and hugging the accused

16. There was evidence from LJ and IJ that AJ pulled her pyjama top off at some stage.  They both gave evidence that AJ cuddled up to the accused on the mattress.

17. LJ said, ‘we were watching Matilda – the movie … and then [AJ] had no top on … and then she snuggled up to my dad and then erm yeah she put his hand over and that’s all I remember’.[44]  She said AJ pulled her pyjama top off and was watching the movie whilst snuggling up to the accused.  Then MJ told AJ to put her top on.

    [44]   MFI P1A, page 4.

18. When LJ gave evidence on 28 May 2021, she said her memory of where everyone was when her father cuddled AJ was different.  She now believed that she was on the couch with IJ and MJ.  Her father and AJ were on the mattress.  She had prepared a new plan of where everyone was sitting.[45]

    [45]   Exhibit P10.

19. When IJ was interviewed, she said AJ took her top off when they were asleep.  She does not know why AJ took her shirt off.  She said LJ said she just does it.  AJ put her PJs on first and hugged the accused.  The accused was on the mattress and AJ just kept hugging him.

20. IJ said she was trying to go to sleep whilst AJ and LJ were watching YouTube videos.  The accused was sitting there when they were watching TV and having the snacks, but ‘then when it was bedtime he started to lay there because he was trying to help out AJ’.[46]  She was asked what the accused was doing by helping out AJ.  She replied, ‘keeping her little comfort’.[47]  She explained ‘because like she wanted someone to um take care of her because she missed her dad’.[48]

    [46]   MFI P5A, page 11.

    [47]   MFI P5A, page 11.

    [48]   MFI P5A, page 11.

21. The accused gave evidence that AJ was not wearing her pyjama top.  He did not dispute that AJ hugged him, although his evidence about the circumstances differed in some respects to the evidence given by LJ and IJ. 

22. The accused gave evidence that he was not sure when the girls changed into their pyjamas, but the movie was still on.  He left the lounge room when they got changed, then LJ called out and said he could come back in now.  When he returned to the lounge room, the girls were in their pyjamas, but AJ did not have a top on.  He asked her where her top was and told her to put it back on.  She said, ‘my mum and dad say it’s natural to be naked’.[49]  He did not push the issue because he did not want to create any tension at the party because he knows how AJ can be.  He did not want her to have another tantrum.

    [49]   T59.

23. At some stage AJ said to him ‘can you come and sit next to me’.[50]  He gave evidence he was not sure about it but then said ok.  He did not feel comfortable because she was a girl and she did not have a top on.  He went over to her because he did not want her to disrupt the party by having a tantrum.  AJ was sort of sitting up watching the movie on the mattress.  He sat down next to her.  AJ went to grab him and hugged him which made him feel a bit uncomfortable.  IJ said ‘she’s missing her dad’.[51]  The accused did not want to get up and disrupt or cause any drama.  He was sitting next to AJ who was cuddling him for maybe about 20 minutes.  He moved after the movie finished. 

    [50]   T60.

    [51]   T60.

24. AJ was not specifically asked whether she put her pyjama top on or if she pulled it off at some stage.  During the interview on 9 December 2019, AJ was asked whether she put her pyjamas on.  She said she did not think they had a bath or a shower or not.  She was then asked, ‘And at any time did you take your pyjamas off?’.  She said ‘No’. [52]  During cross‑examination, she confirmed that the pyjamas she was wearing had a top and pants.  She was asked ‘Was there ever a time during the night when you took off your Harry Potter pyjama top’.  She said ‘No’.[53] 

    [52]   MFI P3A, page 5.

    [53]   PTSH, T16.

25. AJ was not questioned about cuddling up to the accused on the mattress in the circumstances described by IJ, LJ or the accused.

    Where the accused slept

26. IJ gave evidence which supported AJ to the extent that the accused was lying next to AJ on the mattress before they went to sleep and he was still lying on the mattress next to AJ when she woke up.[54]  She gave evidence that AJ was in a one person sleeping bag.[55]  In the morning, AJ was still in the sleeping bag with the zip down a bit.  AJ had her back to him.[56]

    [54]   MFI P5A, page 12.

    [55]   PTSH, T34.

    [56]   PTSH, T35.

27. On IJ’s drawing of where everyone slept, IJ was sleeping on the mattress lying parallel and close to the three‑seater couch, AJ was in the middle and the accused on the other side of AJ.   LJ was sleeping on the shorter side of the mattress closest to the TV.[57] 

    [57]   Exhibit P6A.

28. AJ did not know if she had a sleeping bag.[58]

    [58]   PTSH, T17.

29. LJ gave evidence which did not support AJ’s or IJ’s evidence that the accused slept on the mattress next to AJ.  LJ said that her father said it was too ‘squishy’ on the couch and that he was going to sleep in his bedroom.  LJ said ‘ok’ and then AJ kept on watching people on YouTube and she was on there nearly all night.  LJ said they then went to sleep.[59]  LJ said she slept on the mattress in the middle between AJ and IJ.[60]

    [59]   MFI P7A, pages 12 – 13.

    [60]   MFI P7A, page 17.

30. In cross-examination, LJ said she did ask her father to sleep in the lounge room. She agreed he said it was not comfortable, so he went off to his own bedroom.  When she woke up the next morning, IJ and AJ were awake.  The first place she saw her father was in the kitchen making pancakes for breakfast.  She was not asked about sleeping bags.

31. The accused gave evidence that LJ asked him if he could sleep on the couch because she wanted him to stay in the room.  He did go onto the couch but did not end up sleeping there because it was a bit uncomfortable.  He said to her ‘no it’s too uncomfortable here, I’m going off to bed now’.[61]  He tried to sleep on the couch for about 15 to 20 minutes.  He then went off to bed.  LJ and AJ were still awake.  He was not sure whether IJ was awake or not.

    [61]   T61.

32. When he was in bed, the accused said he could hear the TV on YouTube.  He left if for a while because he thought it was LJ’s birthday.  He did end up going out and told them that it was getting a bit late and they had to turn the TV off.  LJ and AJ were both awake.  He thinks IJ was asleep.  They turned the TV down a bit and turned it off after a little while.  He went back to bed.  He slept there until the next morning.

33. He got up, had a shower and went to the kitchen to get breakfast ready.  He called LJ, told her to get up soon and asked whether they wanted pancakes for breakfast.  LJ and AJ were awake.  IJ was waking up.  He made pancakes and they ate them for breakfast.  AJ was picked up around 10 o’clock.  IJ’s mum came around but IJ wanted to go to church with them.  Her mum said it was fine for her to go to church, so they took IJ to church and then dropped IJ off at home afterwards.

34. In cross‑examination, he gave evidence that after LJ asked him to sleep on the couch he did lie down for a bit.  The girls were lying on the mattress.  IJ was trying to get to sleep.  The other two were watching YouTube on TV.  He did not want to sleep on the couch.  He got up after 15 to 20 minutes and said he was going off to bed because it was too uncomfortable on the couch.  LJ said ok.  She and AJ continued watching YouTube.

35. The accused thought there was a sheet on the bottom of the mattress and they had their sleeping bags and one pillow for each girl.  They had brought their own sleeping bags to the party.  He could not recall a blanket but there possibly could have been a blanket.  He was in bed for about half an hour before he went out.  All three girls were on the mattress.  He told them to turn off the TV because it was getting late and it was noisy.  He denied lying down next to AJ on the mattress or sleeping next to AJ on the mattress.

    Initial complaint

36. AJ made an initial complaint to her mother on 20 November 2019. 

37. The complaint is admissible pursuant to s 34M of the Act.  The evidence is not admissible as evidence of the truth of what was said by AJ.  It may be used as evidence of the degree of consistency of her conduct.  It may be used to inform how the allegation first came to light.  I note that there may be varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. 

38. During the interview on 21 November 2019, AJ said she told her mum last night, after AJ got out of the bath.[62]  During the interview on 9 December 2019, AJ said she told her mum that he put his finger in her private area.  She told her mum a couple of days after the party.

    [62]   MFI P1A, page 13.

39. AJ’s mother gave evidence that on 20 November 2019, AJ approached her in the evening, at about 7.00pm.  She asked to speak to her mother privately.  She wanted her father and brother to leave the room.  AJ said that at LJ’s sleepover party, the accused had touched her in a place that made her feel uncomfortable.  She was asked where that was.  AJ explained that was her private area and he had actually touched her, in her words, ‘between the two sides’.[63]  Her mother asked what she meant by that and AJ gestured towards her vaginal area.  Her mother asked for more information.  AJ explained that the accused had actually touched inside.  Her mother asked, ‘where the hole is?’ and AJ said, ‘yes’.  She gave gestures to indicate how that happened as well.  She gestured a circular motion.

    [63]   T39.

40. She described AJ as rather quiet, which is not like her.  She was quite adamant about only speaking to her mother privately.  She appeared uncomfortable and nervous.

41. Her mother reported the information to the police that night.

    Prior inconsistent statement

42. There is evidence from AJ and AJ’s mother about a conversation they had after AJ was picked up from the sleepover.  Their accounts of the conversation differ to some extent.  On AJ’s evidence, her mother asked her whether the accused had gone near her vagina and she said no.  On her mother’s evidence, there was no such direct question.  Rather, AJ said that the accused put his hand on her tummy, was asked whether he put his hand anywhere else and made no disclosure about being touched on the vagina. 

    Evidence of AJ

43. During the interview on 21 November 2019, AJ said that when her mother picked her up after the party, she asked AJ if she had a good time.  AJ said ‘yes’ and then her mum said, ‘something something something’ and then her mum asked, ‘did he go near your private part’ and AJ said ‘na’.[64]

    [64]   MFI P1A, pages 12, 17.

44. During her evidence on 28 May 2021, AJ said her mother picked her up from the party the next morning.  She could not remember what she told her mum when she was picked up, but her mum ‘did ask if he put his hands in my vagina and I said no and then a few days after that, the party – then a few days after the party I told her yes he did.’[65]  She thinks her mother said if anything ever happens and someone touches you where they should not or does something to make you feel uncomfortable, you could also tell me.

    [65]   PTSH, T18.

45. In re‑examination, she was asked why she did not tell her mum in the car about what happened.  She said she did not know.  She said she felt awful about what the accused had done that night.

    Evidence of AJ’s mother

46. AJ’s mother gave evidence about speaking to AJ after she collected her from the sleepover.

47. The conversation was in two parts.  First, on the way home, AJ said they had stayed up late and they all slept in the lounge room. 

48. Second, once they were home, her mother asked further questions because she was thinking about, and wanted clarification of, what was meant by ‘all’.  Her husband was present for the conversation.  She asked AJ whether she slept in LJ’s room.  AJ said no, they had all slept in the lounge room and the accused was there as well.  He was lying next to her.  Her mother asked what she meant by that.  AJ said the accused was cuddling her.  She was asked what she meant by that.  AJ said the accused had one hand on her tummy and gestured with an open palm on her stomach.  Her mother asked whether the accused had put his hands anywhere else.  She could not specifically remember if AJ said ‘no’.  AJ did not say anything about the accused touching her vagina.  Her mother did not make any specific reference to AJ’s vagina or private parts during the conversation.

49. AJ said they all slept on an air mattress in the lounge room.  She was positioned beside the accused.  LJ was in the middle and IJ on the other side.  She said the accused was still lying beside her when she woke up.

50. During that conversation, AJ’s mother gave evidence she spoke to AJ about boundaries.  She told AJ words to the effect that if someone touches her in a way that makes her feel uncomfortable, she can say something.

51. The conversation left her a bit concerned such that she did not want AJ to go on play dates to LJ’s house anymore. 

    Cross-admissibility of evidence between count 1 and count 2

52. Ms Harper submitted that the evidence of each count was cross‑admissible for the permissible use referred to in s 34P(2)(b) of the Act.  The evidence of one count was admissible on the other count for a permissible use that relies on a particular propensity of the accused as circumstantial evidence of a fact in issue.  She relied upon the decision of the High Court at [59]–[61] in Hughes v The Queen,[66] as follows: 

    Proof of the appellant’s tendency to engage in sexual activity with underage girls opportunistically, notwithstanding the evident risk, was capable of removing a doubt which the brazenness of the appellant’s conduct might otherwise have raised. The force of the tendency evidence as significantly probative of the appellant’s guilt was not that it gave rise to a likelihood that the appellant, having offended once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.[67]

    [66] (2017) 263 CLR 338.

    [67]   At [59]–[60].

53. She described the propensity as the accused having an interest in a child and seizing on an opportunity to offend against that child when he is the only adult present in risky circumstances, namely, when there is another child or children present.  If the allegations were heard separately it might be thought each was unlikely because of the riskiness of the behaviour, but when both girls’ accounts are considered, there is a tendency on the part of the accused to seize on the opportunities and act upon them.[68] 

    [68]   T115.

54. The cross-admissibility of the evidence of MJ and AJ for propensity purposes only arises if the evidence of each complainant is first accepted as credible and generally reliable. The evidence of each may then be used circumstantially as propensity evidence in the prosecution of the offending against the other.  For the evidence to be used ‘in that way, it is sufficient that it be accepted as credible.  It is not necessary to go further and to find the offending against one or other of them is proved beyond reasonable doubt, when evidence of a relevant propensity is but one item of a body of circumstantial evidence because, as such, it is not an indispensable step in reaching a guilty verdict.  Nonetheless, a two-staged approach to the assessment of the complainants’ evidence, in which the evidence of one is relied on after an initially favourable, but not conclusive, assessment of her evidence, involves great subtlety of reasoning’.[69]

    [69]   MDM v The Queen (2019-2020) 136 SASR 360 at [4] per Kourakis CJ.

    The Discreditable Conduct Notice

1. In closing submissions, Mr Culshaw drew attention to the absence of any reference in the filed Discreditable Conduct Notice (DCN) to brazenness as an aspect of the alleged propensity.  His initial submission was that the Director should not now be permitted to rely on such a propensity. 

2. I agree with Mr Culshaw that the Notice did not specify brazenness as an aspect of the alleged propensity.  On 23 June 2020, the Director of Public Prosecutions filed a Notice of Intention by Director to Adduce Discreditable Conduct Evidence pursuant to s 34P(4) of the Act.  The DCN provided that sexual misconduct in relation to count 1 was intended to be led as being admissible in relation to count 2 and vice versa.  The DCN provided that ‘The use of the evidence said to be permissible under section 34P(2)(b) in respect of counts 1 and 2 is: is to demonstrate that you have a sexual interest in female children of the ages 8 – 9 and a willingness to act on that interest when the opportunity arose by virtue of your daughter’s friendships’.

3. Section 34P(5) of the Act provides that the court may, if it thinks fit, dispense with the notice requirement in s 34P(4).

4. In October 2020, the accused filed (i) a Notice of Intention to Object to Proposed Discreditable Conduct Evidence and (ii) an application for severance of the two counts.  The application was heard by Judge Davison on 9 April 2021 and an ex tempore ruling was delivered on that date.  In her ruling, Judge Davison described the relevant particular issue at trial as being the unlikelihood that the accused would have engaged in such risky behaviour in the presence of others to gratify his sexual interest.  Judge Davison dismissed the application for severance.

5. Mr Culshaw conceded that he could not resile from the suggestion that the terms of the ruling put the defence on notice that such propensity would be part of the prosecution case at trial.  It is an interesting question as to whether the Director should have filed an amended DCN in order to satisfy s 34P(4) of the Act.  I do not need to decide that question.  In this case, I consider that the terms of Judge Davison’s ruling, which followed submissions made by both parties, sufficiently put the defence on notice.  Mr Culshaw conceded the defence had not suffered any prejudice by the Director’s reliance upon the propensity as currently stated.

6. It should also be noted that in her opening address, Ms Harper referred to the brazen nature of the offending in the context of the propensity relied upon by the prosecution.[70]  No objection was then made.

   [70]   T9.

7. In so far as it may be required, I dispense with the requirement pursuant to s 34P(5) of a written notice to specify ‘riskiness’ as part of the propensity relied upon.

   Improbability reasoning

8. At the end of the opening address, Mr Culshaw indicated that, in preparing the defence, he had relied upon the submission of the prosecutor before Judge Davison disavowing reliance upon improbability reasoning.  Ms Harper confirmed that because of that disavowal, the prosecution did not rely upon improbability reasoning at this trial.  Such reasoning concerns the improbability of similar accounts of offending being given by different complainants unless the offending actually occurred.[71]  I have not engaged in improbability reasoning.

   [71]   MDM v The Queen (2019-2020) 136 SASR 360 at [14] per Kourakis CJ.

   Section 34R

9. I have not reasoned that because the accused is charged with two offences against two girls that he is a bad person and is therefore more likely to have committed these crimes.  When considering one offence, I have not reasoned that he has engaged in discreditable conduct (in this case, another offence) such that he is more likely to have committed the offence under consideration. 

10. I have considered each count separately. 

11. I have found each complainant to be credible and generally reliable. 

12. In considering count 1, I have considered whether the tendency of the accused to engage in risky behaviour the subject of the allegation made by AJ removes a doubt which the brazenness of his alleged conduct for count 2 might have otherwise have raised.  I have found that it does not.  I have agreed with Mr Culshaw’s submission that the brazenness of the accused’s alleged behaviour on count 1 is at a significantly higher risk level than the alleged behaviour the subject of count 2.

13. In considering count 2, I have considered whether the tendency of the accused to engage in risky behaviour the subject of the allegation made by MJ removes a doubt which the brazenness of his alleged conduct for count 2 might have otherwise raised.  I have found that it is capable of removing doubt associated with the riskiness of the conduct the subject of count 2, however, after a full and careful consideration of the evidence in regard to count 2, I am unable to say where the truth lies.[72]

    [72]   The Queen v Calides (1983–84) 34 SASR 355.

14. I have been very careful not to engage in improbability reasoning.

    Discussion of count 1

15. I found MJ to be a compelling witness.  Ms Harper submitted MJ was a compelling witness and Mr Culshaw conceded as much.

16. Ms Harper referred to the interview on 19 March 2020 and how MJ’s demeanour changed when she was asked to talk about the offending itself.  She looked down, was shy and avoided answering the question.  Ms Harper acknowledged that such a change in demeanour can cut both ways but suggested that MJ’s reluctance to speak points to the fact that she is telling the truth. 

17. I did not find that MJ’s reluctance to disclose during the interview to be something which adversely affected her credibility, particularly given that she was talking with an adult not well known to her.  Her eventual method of disclosure, that is, by putting it in writing, was credible given her age and the fact that by that stage of the interview, she had spent some time with the interviewer.

18. Ms Harper referred to the detail of what MJ said about the offending itself, namely the accused putting her on his lap, putting his fingers inside her knickers, the way she gestured using her hand in the circular motion to show what he did when he touched her on the vagina and her demonstration using a tissue box.  It was consistent with her describing a real experience.  I agree.

19. Mr Culshaw submitted that MJ’s demeanour was appropriate.  I agree with his submission that there was nothing overt about her evidence which might make one immediately think that she was not telling the truth.

20. Ms Harper made the submission that, based on the evidence of MJ’s father, there was opportunity for the accused to commit this offence.  Mr Culshaw conceded that the accused had the opportunity to commit the offence in the sense that there were times when the accused was alone at his house with LJ and MJ.

21. The evidence of MJ’s father about there being opportunity in February or March 2019 does not line up with the evidence of MJ to the effect that the alleged offence occurred between 29 April and 31 August 2019.  Mr Culshaw did not place reliance upon that difference in terms of the assessment of MJ’s reliability.  Nor do I.   Given that MJ’s father was relying upon text messages with the accused to place the opportunities in February/March 2019, I find his evidence to be more reliable.  I find that was the relevant period rather than the period suggested by MJ. 

22. I also note that those months are outside the date range pleaded in the charge, but I do not consider that proof of dates is an essential part of the prosecution’s proof of this charge.  Again, quite properly, Mr Culshaw did not seek to take any point about that.  He did make the submission that the accused was disadvantaged by the absence of a specific date in the sense that it leaves the accused with only being able to give evidence of a denial.  I accept that disadvantage.

23. I accept the evidence of MJ’s mother as to the circumstances and content of MJ’s complaint to her and find that MJ’s complaint demonstrates consistency of conduct on her part.  There may be varied reasons why an alleged victim of a sexual offence makes a complaint at a particular time or to a particular person.  MJ’s complaint was a spontaneous response to being told by her mother that the police needed to speak to her about something that may have happened between the accused and AJ.

24. There is no evidence from MJ about why she repeatedly said to her mother ‘they’re going to know I lied’.  MJ was interviewed the day after she made the complaint to her mother and when asked whether she told anyone about the accused ‘touching your private parts’, she said ‘I told Mum last night’.  She was then asked whether she remembered what she told her Mum, and she replied ‘no’.[73]  I take that answer from MJ to mean that she was unable to remember exactly what was said to her mother, but that she did remember complaining about it to her mother.  There was no questioning of MJ about why she repeatedly said, ‘they’re going to know I lied’.  She was not asked about that in the next interview on 28 March 2020 or subsequently. 

    [73]   MFI P11A, page 20.

25. Although there is no evidence from MJ explaining what she meant, I am not troubled by that aspect of her response to her mother.  The evidence of MJ’s mother was that after she had given MJ time to settle, MJ said to her, ‘you’re going to be so mad at me, mummy, because I have been lying to you’.  MJ said that the accused had touched her on her private parts.  I think that MJ has equated ‘lying’ to her mother with failing to tell her mother.  She felt she had been ‘lying’ to her mother because she had not told her mother.

26. Mr Culshaw submitted that one of the reasons why MJ’s evidence should not be accepted beyond reasonable doubt was because of the prelude to the disclosure in the first interview.  She was asked ‘So what can you tell me about what happened when Mum asked you about [LJ’s] birthday party?’.  She answered ‘Umm, since I forgot about it, then Mum said it and then I remember it, and then I got a little bit upset because when she said that I have to come here I got really upset’.[74] He submitted there is an important distinction in that the disclosure came from a question not about what had happened, but rather, ‘what did you tell your mum’.  I do not consider that is a significant distinction.  At that early stage of the interview, Senior Constable Weatherald was trying various approaches to encourage MJ to talk about what had happened.  Also, MJ did not in fact make the disclosure at that point of the interview after that question.  It was not until much later in the interview that she made her disclosure in writing.[75] 

    [74]   MFI P11A, page 4.

    [75]   MFI P11A, page 14.

27. Further, contrary to the defence submission, I do not consider there is any cause for concern arising from MJ’s response to that question in the interview.  It is reasonable that she did forget about what happened until her mother told her she had to talk to the police about the accused and AJ.  What her mother said about going to the police station brought back to her what she had chosen to forget.  I agree with the prosecutor’s submission on this point.[76]

    [76]   T105. 

28. Mr Culshaw raised a second point as to why MJ’s evidence should not be accepted beyond reasonable doubt.  He submitted that MJ must have had play dates after this alleged touching and according to MJ’s mother, MJ was happy to go to the sleepover birthday party in August 2019.  He submitted that MJ’s distress at the time she made her initial complaint does not sit well with that happiness.  I do not agree with that submission.  I am not troubled by the fact that MJ must have returned for play dates with LJ after this alleged offence and was happy to go to the birthday party.  She was not to sleep over at the party, but more significantly, LJ was her close friend.  MJ’s father described the two of them as having a beautiful friendship.  The alleged offence happened once in February/March 2019 and the accused stopped when she said ‘stop’.  It is understandable that she chose to enjoy her friendship with LJ and ‘forget’ what happened.

29. I do not consider MJ’s distress at the time of her complaint in March 2020 is inconsistent with her being happy to go the party in August 2019.  Rather, I regard it as consistent with the triggering of a memory of an event which she had chosen to forget.  Of course, I bear in mind that distress can be caused by a multitude of different things and MJ’s distress at the time of her complaint is not independent proof of these allegations nor does it bolster her credibility in any way.  The only consideration I have given to the distress is for the purpose of considering (and rejecting) the defence submission that it is inconsistent with her happiness to go to the party seven months earlier.  I place no other relevance or weight upon the evidence of the distress.

30. Mr Culshaw submitted that a third reason for not accepting the evidence of MJ to the necessary standard was that everything she says about the event is contradicted by LJ. 

31. He submitted that MJ says it was an occasion when the three of them were watching ‘Peter Rabbit’ in the lounge room.  LJ’s evidence was that she has never had a DVD of that movie.[77]  That was also the evidence of the accused.  I also note that when LJ was interviewed on 4 May 2020 in relation to play dates with MJ, she was asked whether she remembered watching ‘Peter Rabbit’.  She said ‘Nah, don’t think we ever watch Peter Rabbit cause wasn’t really into it.’[78]  That does not sit with the accused’s evidence that they went to the cinema together to see that movie.  The evidence of LJ and the accused does leave me with some doubt about whether MJ watched that movie at the accused’s house, but that point does not cause me to doubt MJ’s allegation.  Although MJ has that movie in her mind as the one on the TV at the time of this alleged offence (including drawing Peter Rabbit on her plan of the lounge room[79]), there were occasions when the accused, LJ and MJ watched a movie together in the lounge room.   I do not consider it significant that a year later, she has a memory of the wrong movie.

    [77]   PTSH, T46.

    [78]   MFI P9A, page 5.

    [79]   Exhibit P13.

32. Mr Culshaw submitted that, crucially, LJ gave evidence that she never saw the accused touch MJ’s vagina.  During cross‑examination, Mr Culshaw put to LJ the proposition that ‘You never saw your dad touch [MJ’s] vagina, did you’.  Her answer was ‘No’.  I am unable to place much weight on that answer to that proposition.  It was put to her after questions about the seating in the lounge room.  It was a proposition that came out of the blue, there was no lead up to it.  It was a very confronting proposition for a ten year old girl, especially a girl who was giving evidence in a trial involving allegations by her friends against her father.  Once the answer was given, there was an immediate change of topic.  I make no criticism of Mr Culshaw for putting the proposition per se, but in order for the answer to carry any weight, it needed to be placed in, and arise out of, the alleged context.

33. What the proposition and answer does highlight, however, is that LJ was not asked relevant questions about this occasion as part of the prosecution case.  LJ was interviewed on 4 May 2020,[80] after MJ had made her allegation.  She was asked general questions about play dates with MJ.  Apart from being asked whether she remembered watching ‘Peter Rabbit’, the questions were very general, broad and repetitive.  She was never directed to the relevant topic.  She was never asked if she had ever seen the accused put MJ on his lap.  I agree with Mr Culshaw’s submission that MJ was not asked some of the questions that needed to be asked.[81]  It may be that because the interview took place over a year after the alleged offence occurred, she may not have been able to remember.  However, I must not speculate about her possible answers.

    [80]   Exhibit P9; MFI P9A. 

    [81]   T126 – 7.

34. I have carefully scrutinised MJ’s evidence and taken into consideration that it was not sworn evidence.  I found her to be a credible and generally reliable witness and I believe her.

35. The alleged offending was brazen.  On MJ’s evidence, the accused committed the offence whilst LJ was in the lounge room sitting on another chair.  The accused and MJ would have been visible to LJ.  The only distraction was a movie.  MJ could not recall what clothes she was wearing.  If she had been wearing a dress or a skirt rather than trousers or shorts, then what she alleges happened was risky but may have been less obvious to another person in the room.  However, there is no evidence about what she was wearing at the time.  She was not asked any further questions on the topic to see if she could recall wearing one type of clothing (such as a dress/skirt) rather than another.

36. I do have some difficulty with the brazenness of the alleged offending in that LJ was also in the room at the time in a position which would have made the accused and MJ clearly visible.

37. MJ drew a picture of where everyone was sitting at the time of the alleged offence.[82]  She was sitting on a long couch with the accused.  LJ was sitting on a single couch.  They were watching the TV.  Photographs of the lounge room were taken on 21 November 2019.[83]  The accused gave evidence that photo 11 shows how the lounge room had always been set up.[84]  It is a small lounge room with a three-seater couch and three chairs.  Based on MJ’s drawing, LJ was sitting on the chair next to the couch or the next chair across.  Either way, the accused and MJ would have been within her clear sight.

    [82]   PTSH, T59.

    [83]   Exhibit P21, T45.

    [84]   T86.

38. Ms Harper made the submission that LJ was sitting away from MJ and the accused and was likely to have been diverted by what was on the TV, rather than sitting intently watching what they were doing.  She submitted that the gentle rubbing described by MJ is consistent with the circumstances in which it occurred.  Further, if she had protested, he would have been able to quickly stop what he was doing and explain it away in terms of a misunderstanding by MJ.  She submitted that MJ did stay ‘stop’ and the accused stopped immediately.  He was careful.

39. Mr Culshaw submitted that the brazenness of the alleged offending adds to the inherent implausibility of MJ’s account.  I agree with his submission that this alleged offending is different in terms of its brazenness to that in count 2.  Here, the accused’s own daughter was awake and watching TV with them in the room.  For count 2, the potential witnesses were asleep.  The risk was that someone could have woken up.  Even if I was satisfied of a propensity based on an assessment of the evidence concerning count 2, it would not remove a doubt which the brazenness of this alleged offending raises.

40. I have carefully considered the accused’s evidence, keeping firmly in mind that he has no onus of proof.

41. I agree with Mr Culshaw’s submission that his demeanour was appropriate during his evidence.  He did give the impression he was doing his best to remember.

42. Ms Harper submitted that the accused’s denial of ever sitting on the couch next to MJ whilst watching the TV did not ring true.  It was a poor attempt at trying to distance himself from the allegation.  I agree that the accused’s evidence on this topic was too emphatic.  Nevertheless, it is not such that it makes me disbelieve his denial.

43. Having considered all of the evidence in relation to count 1, I am left in the position where I believe MJ and I do not disbelieve the accused.  It is not a matter of which version I prefer.  The prosecution must prove the offence beyond reasonable doubt. 

44. Mr Culshaw submitted that this may be a situation where it is not possible to know where the truth lies. After full and careful consideration of all of the relevant and admissible evidence, bearing in mind the onus of proof, I am unable to say where the truth lies.[85]  That means the prosecution has not met the necessary standard of proof and I find the accused not guilty of count 1.

    [85]   The Queen v Calides (1983–84) 34 SASR 355.

    Discussion of count 2

1. The prosecution case rests solely upon the evidence of AJ.

   AJ’s demeanour

2. Ms Harper submitted AJ was telling the truth and was accurate in her description of the offending.  Mr Culshaw submitted her demeanour in the interviews was a bit unusual.  She was matter of fact to the point of almost being flippant.  I do not agree with those submissions made by Mr Culshaw in relation to AJ’s demeanour during those interviews.  I found the manner in which she described the accused touching her vagina to be compelling.  With one exception,[86] there was nothing about her demeanour which made me doubt what she was saying.

   [86] See [185] – [186].

3. I agree with Mr Culshaw’s submission that under cross‑examination in May 2021, AJ responded to many questions in terms of ‘I don’t remember’.  I do not make a finding adverse to her credit because of those general responses.  By that time, it was over two and a half years since the sleepover party.  It does highlight the need for all relevant aspects of a child’s evidence to be recorded by interview/court hearing as soon as possible.

   The prior inconsistent statement

4. Mr Culshaw submitted that AJ’s credit is adversely affected by the prior inconsistent statement she made to her parents after she was collected from the sleepover.  There are essentially two points made by Mr Culshaw.  First, AJ’s statement to her parents that the accused touched her tummy is inconsistent with her evidence that he touched her vagina.  Second, she made no complaint about the accused touching her vagina.

5. I accept the evidence of AJ’s mother regarding the two separate conversations she had with AJ.  I find that AJ told her mother that when the accused slept in the lounge room, he put his hand on her tummy.  When asked whether she was touched anywhere else, she did not disclose that he touched her vagina.  I find that AJ’s recollection of that conversation with her mother is not correct in that she says her mother specifically asked her whether the accused had touched her vagina.

6. In relation to Mr Culshaw’s first point, I find that there is a prima facie inconsistency between AJ’s evidence that the accused touched her inside her vagina and her prior statement to her parents on the Sunday of the sleepover that he put his hand on her ‘tummy’.  I say a ‘prima facie’ inconsistency because it is difficult to discern the extent to which that prior statement to her parents is inconsistent with her evidence about where she was touched.  AJ did not expressly give evidence that the accused did in fact put his hand on her ‘tummy’, but she did say he was touching above her private area.[87]  It is not clear whether that might include her stomach area.  Because of that ambiguity in her evidence, I do not consider her prior statement to her mother about the accused touching her tummy to be of much significance in assessing her credibility.

   [87]   MFI P1A, page 3.

7. In relation to Mr Culshaw’s second point, I do not consider it detrimental to AJ’s credibility that she then failed to mention that the accused touched her vagina.  Interestingly, on AJ’s version (which I do not accept) of the prior conversation with her mother, she did make a prior inconsistent statement to her mother.  She says she expressly told her mother that the accused did not touch her vagina.[88]  AJ gave evidence this year that she did not know why she did not disclose to her parents at that time.  When I contrast the circumstances of her initial complaint to her mother three months later (insisting upon a private conversation away from other family members), I think there is some force to Ms Harper’s submission about the presence of AJ’s father in the car and then during the conversation at home on the Sunday night being a relevant factor in her non‑disclosure.  Ms Harper submitted that it makes sense for a nine year old girl to want to speak privately to her mother about something like this. 

   [88]   MFI P1A, page 17.

   The pyjama top

8. Mr Culshaw submitted that AJ’s credibility or reliability should be doubted because of her denial about taking off her pyjama top at the sleepover party.  AJ gave evidence that she wore her Harry Potter pyjamas.  In the second interview on 9 December 2019, AJ was asked whether ‘at any time did you take your pyjamas off?’.  AJ said no.  She was then asked ‘You had your pyjamas on all night?’ and she said yes.[89]  In cross‑examination in May 2021, she was asked whether there was ever a time during the night when she took off her pyjama top and she said no.[90]

   [89]   MFI P3A, page 5. 

   [90]   PTSH, T16.

9. Based on the evidence I have heard,[91] I find that at some stage that evening after MJ left, AJ did not have her pyjama top on, either because she did not put it on in the first place or because she took it off later.

   [91] See [71] – [80] above.

10. Ms Harper submitted that this is a side issue in respect to the need to assess AJ’s evidence about the offending.  She submitted that if AJ did in fact take her top off that evening, her denial may be explained by the passage of time.  I think the passage of time might explain her denial in cross‑examination in May 2021, however, her first denial was only about four months after the sleepover. 

11. Ms Harper submitted that what was important to AJ that night was that the accused touched her vagina, not her earlier removal of her pyjama top. There is some force in Ms Harper’s submission.  Nevertheless, AJ’s denial (or inability to remember) does strike me as a bit odd.  Unfortunately, the response that the accused says she made to his request that she put her pyjama top back on was not put to her in cross‑examination.  There is no evidence from AJ’s mother about whether AJ was in the habit of not putting her pyjama top on or removing it.  There is evidence from IJ that LJ said it is something that AJ does, but not evidence from LJ about whether it is something AJ has done on other occasions.  I am not sure whether that was normal behaviour for AJ or not, which makes it difficult for me to assess the accused’s evidence of their exchange on this topic.

12. I do not consider this is a peripheral issue. On the evidence of IJ, LJ and the accused, AJ was hugging the accused at a time when she did not have her pyjama top on.  There is no evidence that she put her top back on.  That means it is likely she slept without her pyjama top and therefore was not wearing a top at the time she alleges the accused committed the offence.  In that context, it troubles me that she either cannot remember or has denied having her pyjama top off at any time that evening/ night.

    AJ cuddling the accused

13. Based on the evidence I have heard from IJ, LJ and the accused,[92] I find that AJ did cuddle up to the accused (i) after MJ left and (ii) at a time when IJ and LJ were still awake.  Although the precise circumstances of that event varies as between each of those three witnesses, the underlying effect of their evidence has a commonality which gives rise to that finding.

    [92] See [71] – [80] above.

14. Unfortunately, AJ was not asked about this aspect of the evening during her second interview on 9 December 2019.  It would have been helpful to have evidence from AJ about that aspect of the evening which had been described by IJ and LJ during their interviews in November 2019.  AJ’s evidence did not address how it came about that the accused was lying next to her on the mattress.

    Where everyone slept

15. There is no doubt that the three girls slept in the lounge room.

16. The evidence is divided as to where the accused slept, namely, whether he slept on the mattress in the lounge room (as per the evidence of AJ and IJ) or in his bedroom (as per the evidence of LJ and the accused).

17. AJ’s evidence is that the accused slept on the mattress in the lounge room. IJ’s evidence supports that evidence.  She says the accused was lying next to AJ when it was time to go to sleep and he was still there when she woke up the next morning.

18. LJ says the accused did not sleep in the lounge room.  He left to sleep in his own bedroom.  The accused says he left to sleep in his own bedroom.

19. I found IJ’s evidence on this topic to be compelling.  She told Senior Constable McKinlay that AJ and the accused were hugging on the mattress.  She was asked if AJ said anything and she said no.  She was then asked ‘Ok.  And then he, where did [LJ’s] dad go?’.  In my view, IJ looked genuinely perplexed by that question in that it did not accord with her memory of that night.  She answered, ‘I don’t get it’.[93]  Then Senior Constable McKinlay said ‘Oh sorry.  That’s alright.  Did he stay there?’.  She said yes and that he was there when she woke up.

    [93]   Exhibit P5; MFI P5A. 

20. Mr Culshaw relied upon the evidence of LJ that the accused did not sleep in the lounge room that night and when they all woke up, he was making breakfast.  He submitted that the prosecution presented her as a witness of truth.  There is no reason to reject LJ’s version of events.  There has been no suggestion that her father has coached her.

21. It is correct that the prosecution called LJ as a witness and I agree with Mr Culshaw that there is no evidence the accused has coached LJ.  My assessment of LJ’s evidence generally was that she was trying to help her father, not because of any coaching by him, but simply because he is her father.  For example, she was overly emphatic that she always sat next to MJ when they watched movies during play dates (count 1) and very precise about the circumstances in which her father left the lounge room to sleep in his own bed (count 2).  In giving evidence in this trial, she was in a difficult and unenviable position.

22. I do not have any evidence about what LJ might have known about the allegation before she was interviewed by the police on 22 November 2019.  At the beginning of LJ’s interview, it is evident that she knew she was there to talk about her sleepover party.[94]

    [94]   MFI P1A, page 4.

23. There is evidence from AJ that a couple of days after the party, she told LJ what happened.[95]  I think that if any such disclosure was made, it is more than likely that AJ is mistaken about the timing of it.  AJ was undoubtedly mistaken about the timing of her initial complaint to her mother, when she said it was a couple of days after the party.[96]  She did in fact complain to her mother about four months after the party.  There is no evidence from LJ about any such conversation with AJ.  There is evidence that they were both in the same class at school.[97]  This issue was not explored during the interviews of the children or at trial.

    [95]   MFI P3A, page 8. 

    [96]   MFI P3A, page 9. 

    [97]   PTSH, T10.

24. My assessment of the evidence on this important aspect of the night has been difficult.  I found IJ’s evidence to be the most compelling.  She is an independent witness who supports AJ’s evidence that the accused slept on the mattress that night.   Although my impression of LJ was that she was doing her best to help her father, there is insufficient evidence before me to make a finding adverse to her credibility on this topic.

25. Ms Harper made the submission that even if I was unable to reject LJ’s evidence on this topic, then that does not make it impossible for the offending to have occurred as AJ described.  She submitted that AJ’s evidence is that the accused touched her in the night when IJ and LJ were asleep.  IJ’s evidence is that she was the first to go to sleep.  It might be that the accused left the room after IJ was asleep but before LJ and AJ went to sleep and then re‑entered the room when LJ was asleep.  He then lay next to AJ who says she was up watching YouTube videos.  He lay next to AJ on the mattress as he had earlier in the night and took that opportunity to offend against AJ.  That would account for how he was seen by IJ to be in the same position on the mattress when she woke up in the morning.

26. Mr Culshaw criticised that submission, describing it as an invitation to speculate to try and make the evidence of the witnesses consistent with each other.  He submitted that in cross‑examination, AJ was given an opportunity to comment upon the version of events as described by LJ and the accused.  She did not remember whether LJ asked her dad to sleep in the lounge room.  She did not know whether the accused said it was too uncomfortable and that he was going to his own bed.  She did not remember the accused coming back into the room and asking AJ and LJ to turn the TV off.[98]  He submitted there is no evidentiary basis to make a finding in favour of the scenario suggested by the prosecution. 

    [98]   PTSH, T16 – 17.

27. Ms Harper is correct in that such an analysis of the evidence does leave open that possibility, however, it involves piecing together different aspects of everyone’s evidence to create an overall scenario which was not the evidence of any one of those witnesses.  I agree with Mr Culshaw about the speculative nature of that scenario and am unable to find it proved beyond reasonable doubt. 

28. There is one other aspect of the evidence which is difficult to reconcile with AJ’s allegation.  There is evidence from IJ, AJ, LJ and the accused that AJ and LJ were watching YouTube videos when it was supposed to be time for sleep.

29. IJ gave evidence that she was trying to go to sleep, but AJ and LJ were watching YouTube videos.  IJ kept asking ‘is this the last one?’.  They said yes but they watched another one and another one and another one.  The accused ‘was sitting there when we were watching the tv and having the snacks, but then when it was bedtime he started to lay there because he was trying to help out AJ…keeping her little comfort’.[99]

    [99]   MFI P5A, page 11.

30. LJ said her father left to go to bed and then AJ ‘kept on watching um these people on YouTube and then she was like on there nearly all night…then we went to sleep’.[100]

    [100] MFI P7A, page 13.

31. The accused gave evidence that he got out of bed and went into the lounge room to tell LJ and AJ to turn off the TV.

32. Based on the evidence of IJ (but contrary to the evidence of LJ and the accused), it may be that the accused was in fact present when AJ and LJ continued to watch YouTube on TV.  However, it is AJ’s evidence on this topic which causes me some disquiet in that (1) she talks about the watching of YouTube in the context of telling a ‘funny story’ and (2) her account does not sit comfortably with the circumstances of the touching that she has described.  At the end of the second interview, AJ was asked whether there was anything else she wanted to say about that day.  She said,

    AJ:well funny story, um [IJ] swore at me so it was just um, so the people at the party were [LJ], me, [MJ] – that’s also [LJ’s] friend, and [IJ]…And [MJ] left, and [MJ] left and then it was just me and then it was just me, [LJ] and [IJ] and [IJ] and I think [LJ], like [LJ] was sleeping on the couch with , [LJ] was sleeping on the air, um blow up mattress with me and [the accused] and um [IJ] was sleeping on the couch and kind of I was, I was actually kind of watching You Tube videos ‘cause I, [IJ] and [LJ] were still asleep.

    Q:    Ok

    AJ:    Like they were asleep.

    Q:    When this happened?

    AJ:Yep and um yeah I just kinda stayed up watching YouTube videos and then I um went to sleep.

    Q:    Ok.  Alright.  That’s alright.  Cool.

    A:    So that’s kind like a funny story.’[101]

    [101] MFI P3A, page 10. 

33. I do not know why AJ would describe that as a ‘funny story’, particularly when it must have been close in time to when she alleges the accused committed this offence.  Further, she makes no mention of the accused during that ‘funny story’.  It is not clear whether she is saying that the accused was watching the YouTube videos with her after IJ and LJ went to sleep.  It is odd that she makes no mention of him in terms of where he was or what he was doing at that time.  Her ‘funny story’ does not fit comfortably with her account of the alleged abuse.

    Accused’s evidence

34. In relation to the accused’s evidence, Ms Harper submitted that his explanations about his action or inaction in the face of AJ not having her pyjama top on, being asked by AJ to sit with her and then permitting AJ to cuddle him for the rest of the movie lack credibility.  She submitted that if his concern was to avoid tension, then he would have told the girls to include her or call her parents.  His lack of credibility on those matters is such that his denial of this offending should be rejected.

35. Mr Culshaw made the submission that the accused’s evidence was consistent with a father who was (a) trying to make sure his daughter had a nice birthday party, and (b) was completely out of his depth in managing the situation.  In hindsight, it can be said that he should have made a different decision such as having another adult there.  He should have been more forceful in demanding that AJ put her top on.  He should not have sat next to her or allowed her to cuddle him.  He should have contacted her parents instead of trying to manage AJ himself.  Mr Culshaw submitted that all of those things are easy to say now.  He admitted he was uncomfortable with the situation.

36. There is force to the submissions made by each counsel.

37. There was nothing about the accused’s demeanour during this evidence which was inappropriate or a cause for concern.  I agree with Mr Culshaw’s submission that he presented as someone who was unsophisticated and relatively naïve.  I accept the accused was trying his best for his daughter to have a nice birthday party.  However, in my assessment of his evidence, there is a limit to how far his admitted actions and inactions may be characterised as naïve.  He is not inexperienced.  He is the father of a nine year old girl.

38. On his evidence, he sat on the mattress with AJ (who had declined to put her pyjama top back on) and let her cuddle up to him for about 20 minutes.  He said he did that because he did not want her to have a tantrum.[102]  He said IJ said ‘[AJ]’s missing her dad’ so he did not ‘want to get up and disrupt or cause any drama’.[103]  That explanation lacked credibility.  There is evidence that AJ was upset during the party, but there is no evidence that she was on the verge of having a tantrum or causing a drama. 

    [102] T60.

    [103] T60.

    Not guilty

39. I have carefully scrutinised AJ’s evidence and taken into consideration that her evidence was not sworn.  I found her to be a credible and compelling witness in her description of the alleged offending.  There were some aspects of her evidence I found to lack reliability (such as her denial about her pyjama top, her memory of her conversation with her mother after she was collected from the sleepover and her timing of her complaint to her mother).  There was also no evidence from her about her initiation of a hug with the accused.  Her ‘funny story’ troubled me.

40. I found IJ’s evidence that the accused was lying on the mattress with AJ when it was time for sleep and when she woke up in the morning to be compelling.  I found her to be a credible and generally reliable witness.  Her evidence supported an important aspect regarding the circumstances surrounding AJ’s allegation. 

41. I did not find LJ to be such a compelling witness because I got the sense that she was trying to help her father, but I do not consider that to be a sufficient basis to reject her evidence on important points (such as whether her father slept in the lounge room).  She was credible in the sense that she genuinely believed she was telling the truth.  There was nothing about her evidence to suggest she was more or less reliable than IJ.

42. I found the accused’s explanation of the circumstances in which he came to remain on the mattress hugging AJ for twenty minutes to stretch credulity, but his evidence about that hug is supported by LJ and to some extent, by IJ.

43. I bear in mind that it is not a matter of which version I prefer.  I have considered the evidence as a whole bearing firmly in mind that there is no onus on the accused to prove anything and that the prosecution must prove this charge to the standard of beyond reasonable doubt.  The assessment of the evidence of each of the witnesses has been difficult because their account vary in important respects.  After a full and careful consideration of all of the evidence, I am unable to say where the truth lies.

1. I find the accused not guilty of count 2.