R v M, R J
[2020] SADC 65
•29 May 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, R J
Criminal Trial by Judge Alone
[2020] SADC 65
Judgment of His Honour Judge Stretton
29 May 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone of two counts of Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. The three circumstances of alleged aggravation were that in committing the offences the accused abused a position of trust, that he knew that the complainant was a child of whom he had custody as a parent or guardian, and that he knew she was under the age of 14 at the time of the offence. The accused was the stepfather of the 13 year old complainant. It was alleged that he had an oral discussion (count 1) and a subsequent text conversation (count 2) with the complainant wherein he variously offered to demonstrate to or to try out with the complainant ‘first base’ which he described as kissing, ‘second base’ which he described as touching, and ‘hand jobs’. The accused disputed the contents of the unrecorded oral conversation and maintained at trial that whilst he did have firstly an oral and subsequently a text conversation with the complainant about ‘first base’ and ‘second base’, he was merely offering fatherly advice and had no prurient purpose, nor was he intending to make the complainant amenable to sexual activity.
Held: each offence and each circumstance of aggravation is proven beyond reasonable doubt.
Verdicts:
Count 1 – Guilty.
As to count 1, each circumstance of aggravation is proven beyond reasonable doubt.
Count 2 - Guilty.
As to count 2, each circumstance of aggravation is proven beyond reasonable doubt.
Child Safety (Prohibited Persons) Act 2016 Section 38; Criminal Law Consolidation Act 1935 Sections 5AA; 62; 63B(3)(b),(7); Summary Offences Act 1953 Section 74EB, referred to.
R v Symons (2018) 130 SASR 503; San v The Queen [2020] SASCFC 35; R v Richards (2016) 125 SASR 341; BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCAA 213; Markou v R [2012] NSWCCA 64; R v R, R v R, LJ [2008] SASC 35; R v T, WA (2014) 118 SASR 382; R v S, GJ [2012] SADC 150, applied.
R v M, R J
[2020] SADC 65
The accused, RJM, is the complainant IB’s de-facto stepfather. In November 2018, the accused was 32 years of age and the complainant was 13 years old. The family, comprising the accused, the complainant’s mother, the complainant and several other siblings lived together at an address in Parafield Gardens.
It is alleged that in November 2018 the accused twice communicated with the complainant with the intention of making her amenable to sexual activity. Firstly, having discovered that she had her first boyfriend, by verbally describing, then offering to show her what ‘first base’ and ‘second base’ were, second base including ‘hand jobs’, and secondly, then following that offer up with text messages a week or so later.
It is alleged that the offences were aggravated in three ways. Firstly, on the basis that the accused abused a position of trust in committing the offence. Secondly, because he knew that the complainant was a child of whom he had custody as a parent or guardian. Thirdly, on the basis that he knew that the complainant was under the age of 14 at the time of the offence.
On 25 November 2018, the accused was arrested and spoken to by the police. The accused exercised his legal right to decline to answer questions, but when the brief allegations were read to him the accused responded that it had all started off as ‘stirring her up’, and that he ‘shouldn’t of (sic) asked them questions’.
He was charged, and has pled not guilty. The accused has exercised his legal right to request a trial by judge alone, and the matter proceeded accordingly. The following Information sets out the charges in full.
The Charges
First Count
Statement of Offence
Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Section 63B(3)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
RJM between the 1st day of November 2018 and the 23rd day of November 2018 at Parafield Gardens, made a communication for a prurient purpose with the intention of making IB, a child under the age of 17 years, amenable to sexual activity.
It is further alleged that RJM abused a position of trust in committing the offence.
It is further alleged that RJM committed the offence knowing that IB was a child of whom he has custody as a parent or guardian.
It is further alleged that RJM committed the offence knowing IB was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of Section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Aggravated Communicating with the Intention of Making a Child Amenable to Sexual Activity. (Ibid)
Particulars of Offence
RJM on the 23rd day of November 2018 at Parafield Gardens, made a communication for a prurient purpose with the intention of making IB, a child under the age of 17 years, amenable to sexual activity.
It is further alleged that RJM abused a position of trust in committing the offence.
It is further alleged that RJM committed the offence knowing that IB was a child of whom he has custody as a parent or guardian.
It is further alleged that RJM committed the offence knowing IB was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of Section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Offence
The prosecution, who bear the onus of proof, must prove each element of a charged offence beyond reasonable doubt before a finding of guilt can be made.[2] Per s 63B(3)(b) of the Criminal Law Consolidation Act 1935, it is an offence for a person to make ‘a communication for a prurient purpose and with the intention of procuring a child under the prescribed age in relation to that person amenable to a sexual activity’. The elements of that offence are as follows:
1The accused communicated in relation to the complainant.
2The complainant was under the prescribed age.[3]
3The communication was for a prurient purpose. A ‘prurient purpose’ is defined to mean with the intention of satisfying the accused’s desire for sexual arousal or gratification.[4]
4The communication was with the intention of making the complainant amenable to sexual activity. Sexual activity has its ordinary meaning, and will include the many behaviours, whether physical or verbal, which are capable of being sexually stimulating, and can include a sexually stimulating conversation.[5]
[2] In the course of this judgment reference is made to, and there is considerable discussion of the defence case. No such reference or discussion should be taken to infer or connote that the defence has any obligation or onus whatsoever. The onus remains at all times with the prosecution to prove beyond reasonable doubt each and every element of each offence.
[3] 17 years of age, or 18 years of age if the accused is in a position of authority. Section 63B(7), Criminal Law Consolidation Act 1935.
[4] Section 62, Criminal Law Consolidation Act 1935.
[5] R v Symons (2018) 130 SASR 503. The Court applies the Supreme Court authorities further articulating and explaining the scope and definition of the offence, most recently San v The Queen [2020] SASCFC 35; R v Richards (2016) 125 SASR 341.
The prosecution also alleges the three pled circumstances of aggravation, namely that the accused abused a position of trust in committing the offence, knew that IB was a child of whom he has custody as a parent or guardian, and also that he knew IB was under the age of 14 years at the time of the offence. Each of these matters, if proven, are circumstances of aggravation.[6] The accused will be guilty of an aggravated offence if in addition to proving the elements of the offence beyond reasonable doubt, the prosecution proves one or more of these circumstances of aggravation beyond reasonable doubt.
[6] Section 5AA, Criminal Law Consolidation Act 1935.
The Course of Trial
The prosecution called evidence from the complainant by way of audio visual recording taken pursuant to s 74EB the Summary Offences Act 1953, supplemented by brief evidence in chief on oath. Permission to cross examine the complainant was granted on all topics sought by the defence. The complainant gave evidence about the conversation the accused had with her comprising the allegations concerning count 1, and gave evidence as to receiving the text messages from the accused a week or so later that make up count 2.
As to count 1, the prosecution called complaint evidence from the complainant’s grandmother as to the complainant disclosing the conversation with the accused to her on or around 12 November 2018.
As to count 2, the prosecution called two of the complainant’s school friends who were present with her on the day she received the relevant texts from the accused, 23 November 2018. Each saw some of the texts and witnessed the complainant’s distress at their receipt.
The investigating officer, Brevet Sergeant Sweetman gave evidence as to photographing texts from the accused located on the complainant’s phone, said to comprise count 2, and texts from the accused on the complainant’s mother’s phone alleged by the prosecution to amount to admissions. A further police officer was called as to the seizure and police analysis of the complainant’s and the accused’s phones, and the arrest and brief interview of the accused.
The accused gave evidence on oath in his own defence.
The Cases at Trial
It was common ground that an oral conversation occurred between the accused and the complainant during which the topic of the complainant now having a boyfriend was raised, and that the accused raised the topic of whether the complainant had been to ‘first base’, or ‘second base’, with the accused describing what those terms meant. There is some dispute as to any further contents of that conversation.
It is common ground that the accused had a text conversation with the complainant on 23 November 2018. The content of that conversation is not in issue as the texts were extracted from the complainant’s phone, tendered at trial and not disputed. The accused deleted the texts from his own phone before attending the police station to be interviewed.
The prosecution case is that in the totality of the circumstances it can be inferred beyond reasonable doubt that in both instances the accused was communicating for a prurient purpose and trying to make the complainant amenable to sexual activity.
In relation to the circumstances of aggravation, it was not in dispute that the accused was in a position of trust in relation to the complainant, knew that she was a child of whom he had custody as a parent or guardian, and also that he knew she was under the age of 14 at the time of the events in question.
The defence case is that in neither case, whether it be the initial verbal communication alleged to constitute count 1, or by way of the text communication alleged to constitute count 2, was the accused communicating for a prurient purpose or intending to make the complainant amenable to sexual activity, but rather was just discussing or offering to discuss issues with her in a fatherly way, to assist her make her way through life.
Legal Principles
As this is a trial by judge alone, the court must deliver considered and fully articulated reasons for its decision. Whilst sufficient reasons must of course be given to properly explain the verdict,[7] a trial judge, sitting alone, is not obliged to express all the matters ‘which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law’.[8] To be clear however, the court has applied all the principles applicable to a criminal trial of charges of this nature that would be set out by way of all the standard directions to a jury. It serves no purpose to set out pages of standard form directions, however they have all been applied.
[7] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 34 at [14]; R v Keyte (2000) 78 SASR 68; AK v State of Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[8] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, WA (2014) 118 SASR 382. The Court applies the principles helpfully set out by Lovell J at paras 6-25 of R v S, GJ [2012] SADC 150.
It is fundamental however, that the accused has, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof, and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must and will consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The accused exercised his legal right, when questioned by police, not to answer questions. That was his legal right, and an important right which all members of the community possess. As such, no adverse inference of any kind may arise against an accused on such account.
The accused in this case gave evidence on oath. He was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. The accused is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in exactly the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it at all times remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence. Further, even if an accused gave evidence and was entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.[9]
The Evidence[10]
[9] Douglass v R [2012] HCA 34 at [13]-[14].
[10] This is a brief summary of the evidence. For brevity, it is not all set out, but it has all been carefully reviewed and considered.
The first witness was the complainant, IB. She gave evidence by way of a video interview statement to police given on Sunday 25 November 2018 at 5:13pm,[11] and then on oath at trial. The court bears in mind that the evidence by way of statement was not on oath, and has regard to all the relevant circumstances and considerations in its assessment.
[11] Video interview statement tendered as Exhibit P1, transcript aide memoire MFI-P2.
The complainant gave evidence[12] that she is now 15 years old.[13] She confirmed Exhibit P3 as her birth certificate, her birthday being in February 2005.
[12] For simplicity, the phrase “gave evidence” will be used to describe the complainant’s account both per her tendered statement and on oath at trial.
[13] T39.18-19.
The complainant gave evidence that her parents separated at some stage, and that the accused is her stepfather. She described how her mother and the accused have been in a relationship for around 6 years. At the time of the offending, the complainant lived at her mother’s house 50% of the time and the other 50% was spent at her father’s house. The accused lived at her mother’s house, along with her siblings.[14]
[14] T39.38-41.11.
At the time of the offending, the complainant owned a mobile phone, given to her by her grandparents.
Count 1
The complainant said that a week or two before her police interview, there was a night when she was doing her painting homework for art.[15] Her mum was at the beach and it was just the complainant and her step-father the accused at home.[16] She says that she calls her step-father ‘(first name given)’.[17] The complainant said that he was helping her with her art and at the start there were ‘no red flags’. She said that he was giving her tips on how to do her art. She said he was drinking alcohol that night.[18]
[15] MFI-P2, p 5. For ease of reference, the MFI aide memoire transcript page reference is given. The evidence is the tendered audio-visual record Exhibit P1.
[16] Ibid, p 9.
[17] Ibid, p 11.
[18] Ibid, p 10.
The complainant said a conversation took place in the kitchen at around 9 or 10 pm, and she was pretty sure that it was a Sunday or a Saturday night.[19] She said that she was texting her boyfriend when the accused said, ‘don’t worry I won’t tell your mum that you have a boyfriend’.
[19] Ibid, p 10.
The complainant said that the accused then asked her if she had gone to first and second base. The complainant responded by saying that she didn’t even know what that was. He then explained to her what first and second base was. The complainant says she responded by saying ‘no, not going to do that’ or ‘no, like that’s not going to happen’.[20] The complainant said the accused then said, ‘oh well I can show you what it is and everything and like I can explain it to you’.[21] The accused also asked her if she’d had her first kiss, and she responded that she hadn’t.[22] The complainant said he also said, ‘oh well I can show you how everything’s done’. [23] She responded by saying that she didn’t want that.
[20] Ibid, p 8.
[21] Ibid, p 5.
[22] Ibid. p 8.
[23] Ibid, p 8.
During the audio-visual recording, the complainant was asked to talk more about the part of the conversation where the accused explained ‘first and second base’. The complainant responded by saying she had said on the night, ‘I don’t know what that is, like can you explain it to me’.[24] The complainant said the accused described first base as kissing and holding hands and that second base was touching. This made the complainant feel uncomfortable.[25] He was also talking about ‘hand jobs’, which also made the complainant feel uncomfortable.[26] The complainant said that the accused asked if she had given one and if she had seen anything.[27] The complainant said the accused said ‘I’ll show you how they’re done’ and that she responded saying ‘I don’t want that to happen’[28] or the accused said, ‘do you want me to show you what it is?’, to which she replied ‘no thanks’.[29] She repeated in the course of the recording that accused said to her ‘I’ll show you how they’re done’, and that she responded by saying she didn’t want that to happen.[30] The complainant was asked in evidence about this aspect on several occasions, and repeated on each of those occasions that the accused had offered to show her how these things were done. The accused asked the complainant whether she had ever watched porn, and she replied that she hadn’t, that it was bad, that it wasn’t appropriate for her age and that she wouldn’t do that.
[24] Ibid, p 11.
[25] Ibid, p 11.
[26] Ibid, p 7.
[27] Ibid, p 8.
[28] Ibid, p 8.
[29] Ibid, p 12.
[30] Ibid, p 8.
The complainant said that after that, the accused came up behind her while she was still working on her art and started rubbing her shoulders. She said she felt uncomfortable and didn’t like it, so she kept brushing him off and that he stopped after around three minutes.[31] The complainant said nothing further happened after the shoulder rub finished.[32]
[31] Ibid, p 7.
[32] Ibid, p 12.
The complainant the accused offered her alcohol. She thought it was just a joke because he was drinking, and thought he was just joking around.[33]
[33] Ibid, p 6.
The complainant said she told her Grandma about the conversation, but repeated that at the time she thought it was all a joke because he had been drinking.[34]
[34] Ibid, p 6.
The complainant’s grandmother was called and gave evidence of this conversation as well.[35] She is the complainant’s father’s mother.[36]
[35] This is not evidence of the truth of any such conversations, rather it is evidence of complaint that may be used, and used in this judgement strictly in accordance with the law concerning such evidence.
[36] T54.5-8.
The complainant’s grandmother gave evidence that as at November 2018 she was seeing the complainant regularly. She said that at some time in November 2018, she learnt that there were some text messages between the complainant and the accused. Before the complainant’s grandmother learnt of these messages, she had a conversation with the complainant. The witness said she thinks they were in the car and that it was the Monday after the conversation, so Monday 12 November 2018.[37]
[37] T54.36-55.4.
The complainant’s grandmother said that the complainant started talking to her about some art homework she’d done the night before when she was staying at her mother’s house, and that the accused had been helping her. As far as she can remember, the complainant then started telling her that the accused had had a few drinks that night, the Sunday night, while he was helping her. The complainant told her that he started talking to the complainant about boyfriends, if she had any boyfriends, that type of thing, and whether she’d been to first base. The witness said she wasn’t sure if she said the accused said second base as well.[38]
[38] T55.5-19.
The complainant’s grandmother said the complainant didn’t seem upset at that stage, that the complainant seemed to think it was a bit funny on the basis that the accused had had a few drinks and she thought the complainant thought it was a bit of a joke. She said she thinks she may have said to the complainant ‘did he touch you anywhere’ and as far as the witness can recall, the complainant just said, ‘just massaged my shoulders’. In cross examination, the complainant’s grandmother agreed with the proposition put to her by defence counsel that she got the impression that at that stage the complainant thought that the accused ‘had just been a bit silly and a bit drunk’.[39]
[39] T55.20-56.12.
I return to the complainant’s evidence, as to the second alleged offence.
Count 2
The complainant said that at the time of the alleged offending comprising count 2 she owned a mobile phone which had been given to her by her grandparents. She identified photographs of text messages on that phone. She identified the name of the accused, and a text conversation which occurred between her and the accused. She said she also told police about this conversation in her interview with them. In the interview, she gave a short account of that text conversation.[40]
[40] T41.12-42.20.
The complainant told police that she was at school on Friday (23 November 2018), when the accused started texting her out of the blue.[41] Then as that conversation proceeded, around her second and third lesson of the morning, she said he started talking sexually, and that she felt uncomfortable. She said that the accused began asking whether she had thought about ‘the offer’.[42] She replied asking what he meant by ‘the offer’.[43] The accused responded by saying ‘nah’, the complainant then asked ‘why’. He responded to her saying ‘fine, I’ll tell you’. The complainant said the accused said, ‘touching and first and second base and trying that out’, the complainant said she responded saying that she didn’t want that to happen and that she thought of the accused as a father.[44] The complainant said that she said to the accused that she thought it was a little inappropriate because he was dating her mother. She said he responded by saying ‘oh well’ and that was about it.[45]
[41] Video interview Exhibit P1; Transcript of record of interview of the complainant, MFI-P2, p 4. The video is the evidence. The transcript is used only as an aide memoire.
[42] Ibid, p 5.
[43] Ibid, p 12.
[44] Ibid, p 13.
[45] Ibid, p 5.
The complainant said that after this exchange the accused continued on ‘like a normal conversation’, asking her to help him build something for her Mum.[46]
[46] Ibid, p 13.
The complainant said that after seeing these text messages, she spoke to her school friend ‘JB’ and then also ‘AH’. [47] She said that they were sitting next to her in class.[48] She said that after school she walked home but felt too scared to tell her mother and so eventually spoke on the phone to her friend TT who then told TT’s mother what had happened.[49] The complainant said she understood that TT’s mum told her grandmother, who then told the complainant’s mother.
[47] Ibid, p 4.
[48] Ibid, p 14.
[49] Ibid, p 14.
The complainant said that the accused had not made this ‘offer’ prior to the first conversation at her house and the subsequent text conversation. The complainant said that before that day at school when he texted her, the accused had never actually texted her during school, and had never really texted her in general. After the day when these alleged events came to light, she had not seen the accused again.
During the complainant’s evidence, with reference to the extracted schedule of text conversations,[50] she explained several terms that are used in the messages, as follows:[51]
·LOL = Laugh out loud
·IKR = I know right
·Nah, all G = All Good
·WUM = What you mean
[50] Exhibit P10.
[51] T44.3-33.
Considering its significance, the text communication between the accused and the complainant should be set out in full.[52] It commenced with the accused texting the complainant at 10:19 am on 23 November 2018. The complainant was at school.
[52] The complainant’s phone was seized by police and the text messages were electronically extracted and tendered without objection as Exhibit P10. The messages from the accused are left margin justified. The responding messages from the complainant are right margin justified.
# Time Text
Accused Complainant
1. 23/11/2018 10:19:12 AM Hey 2. 23/11/2018 10:19:33 AM Hi 3. 23/11/2018 10:20:28 AM What ya doing at school 4. 23/11/2018 10:20:41 AM Math 5. 23/11/2018 10:21:05 AM Show me 6. 23/11/2018 10:22:10 AM Y 7. Photograph 8. 23/11/2018 10:24:21 AM What the hell is that lol 9. 23/11/2018 10:24:28 AM Math 10. 23/11/2018 10:24:40 AM Questions for a bored game we are lacking 11. 23/11/2018 10:24:42 AM Making 12. 23/11/2018 10:25:16 AM Cool 13. 23/11/2018 10:26:02 AM Y did u text me 14. 23/11/2018 10:26:04 AM Lol 15. 23/11/2018 10:27:26 AM To say hi I'm bored at the docs 16. 23/11/2018 10:28:27 AM Don't u want me to text u?? 17. 23/11/2018 10:28:52 AM Oh haha o don't make bad I'm at recess now lol 18. 23/11/2018 10:29:48 AM Nice 19. 23/11/2018 10:30:01 AM Haha yeh x 20. 23/11/2018 10:30:24 AM What's ya next subject 21. 23/11/2018 10:32:49 AM Double art and English 22. 23/11/2018 10:38:17 AM Killa fuk its boring at this docs cheer me up lol 23. 23/11/2018 10:38:59 AM I just dribbled all over myself hahaha 24. 23/11/2018 10:39:20 AM Hahaha ya weirdo lol 25. 23/11/2018 10:39:43 AM Hahahah thanks 26. 23/11/2018 10:39:58 AM Your mum is so much of a ball breaker hey 27. 23/11/2018 10:40:07 AM IKR 28. 23/11/2018 10:40:14 AM She's can be a Bitch at times hahaha 29. 23/11/2018 10:40:28 AM Don't show her that 30. 23/11/2018 10:40:30 AM That 31. 23/11/2018 10:40:53 AM Yeah I stick up for u all the time ;) I won't I promise 32. 23/11/2018 10:41:16 AM I'm by myself at the docs 33. 23/11/2018 10:41:35 AM Few hahah 34. 23/11/2018 10:41:47 AM So what's wrong with ya hand ma matie 35. 23/11/2018 10:45:12 AM Not sure yet still waiting lol 36. 23/11/2018 10:46:34 AM Just between me n u n don't show no one else but u do look good for when u go to school :) 37. 23/11/2018 10:53:30 AM Oh n why u break up with ya bf? 38. 23/11/2018 11:02:23 AM Not talking to me now? Lol 39. 23/11/2018 11:32:08 AM Soz I'm in class 40. 23/11/2018 11:33:17 AM OK lol 41. 23/11/2018 11:33:19 AM He used to block me during the day because he didn't want his friends and family knowing he had a gf 42. 23/11/2018 11:34:01 AM That's fucked want me to bash him lol 43. 23/11/2018 11:36:11 AM Yeh 44. 23/11/2018 11:36:35 AM OK lol 45. 23/11/2018 11:36:57 AM Ahah 46. 23/11/2018 11:37:29 AM I'm really sorry for the other week when u was painting n I was saying that stuff I hope u don't hate me for it 47. 23/11/2018 11:39:58 AM Nah allg 48. 23/11/2018 11:40:17 AM Oh good lol 49. 23/11/2018 11:40:32 AM Did u think about it hahaha 50. 23/11/2018 11:40:58 AM Wum 51. 23/11/2018 11:41:47 AM About the offer lol 52. 23/11/2018 11:42:26 AM Oh nah 53. 23/11/2018 11:42:47 AM OK lol 54. 23/11/2018 11:42:55 AM :( 55. 23/11/2018 11:43:08 AM Y u sad lol haha 56. 23/11/2018 11:43:35 AM Cause u didn't think about the offer haha 57. 23/11/2018 11:48:16 AM Oh 58. 23/11/2018 11:52:04 AM Oh well I tried I guess lol 59. 23/11/2018 11:52:27 AM Tried what 60. 23/11/2018 11:52:51 AM Offering 61. 23/11/2018 11:53:04 AM Offering what 62. 23/11/2018 11:54:42 AM What we talked about the other night lol 63. 23/11/2018 11:55:00 AM Refresh my memory 64. 23/11/2018 11:55:49 AM Na 65. 23/11/2018 11:55:56 AM Y not 66. 23/11/2018 11:56:11 AM How do I know its u ?? 67. Photograph of the complainant sitting at her desk at school sent by the complainant to the accused 68. 23/11/2018 11:57:16 AM Sorry teacher is watching me 69. 23/11/2018 11:57:40 AM Well promise not to even show your friends this 70. 23/11/2018 11:58:22 AM Like fooling around n trying first n second base 71. 23/11/2018 12:01:16 PM No thank you. I don't want to at all.
Please don't ask that again72. 23/11/2018 12:01:41 PM OK I'm sorry 73. 23/11/2018 12:02:07 PM I'll leave u alone 74. 23/11/2018 12:02:24 PM Do u promise though?? 75. 23/11/2018 12:02:55 PM I can't promise anything. This is serious 76. 23/11/2018 12:03:40 PM (complainant’s name) please don't 77. 23/11/2018 12:04:07 PM I was only joking 78. 23/11/2018 12:04:17 PM Didn't sound like it 79. 23/11/2018 12:04:54 PM Please keep it between us 80. 23/11/2018 12:05:19 PM This is serious 81. 23/11/2018 12:05:27 PM This isn't something you can joke about 82. 23/11/2018 12:05:57 PM (Complainant’s name) please I wouldn't do that to u ever 83. 23/11/2018 12:06:33 PM Never talk about that stuff again. I'm serious 84. 23/11/2018 12:07:33 PM If u don't say anything I'll tell u about the present I got ya 85. 23/11/2018 12:07:50 PM I'll never mention it again 86. 23/11/2018 12:08:08 PM Can u please delete 87. 23/11/2018 12:08:11 PM I've go to go 88. 23/11/2018 12:08:20 PM Got to go 89. 23/11/2018 12:09:20 PM Please don't say a word to anyone 90. 23/11/2018 12:13:29 PM Please mate 91. 23/11/2018 12:39:22 PM I'll help u with all your home work ok 92. 23/11/2018 12:39:22 PM Well all ya art work cause I don't know maths or anything else haha 93. 23/11/2018 12:48:47 PM I'm capable of doing my homework myself thanks for the offer but I'm fine thanks 94. 23/11/2018 12:50:11 PM I know your prob smarter than me haha 95. 23/11/2018 12:50:58 PM R we still friends 96. 23/11/2018 12:52:01 PM Hope so :( 97. 23/11/2018 12:53:40 PM Can u help me build something for my mum? 98. 23/11/2018 12:53:53 PM A lil cart? 99. 23/11/2018 12:54:20 PM Y 100. 23/11/2018 12:54:54 PM Cause I need your brain 101. 23/11/2018 12:55:51 PM Don't u like me anymore (complainant’s name)?? 102. 23/11/2018 12:56:01 PM Huh what 103. 23/11/2018 12:57:03 PM R we still friends 104. 23/11/2018 12:57:31 PM 臘♀️ 105. 23/11/2018 12:57:35 PM Dunno 106. 23/11/2018 12:58:30 PM Can we put all this behind us please 107. 23/11/2018 12:59:50 PM Ok 108. 23/11/2018 1:01:21 PM OK thankyou I'm still ya bestie and what would u like to do tonight ? 109. 23/11/2018 1:04:26 PM I'll do u another henna? 110. 23/11/2018 1:06:09 PM Do u need picking up from school?? 111. 23/11/2018 1:07:10 PM No I have pageant in morning going to Sandy's tonight 112. 23/11/2018 1:07:57 PM What pagent 113. 23/11/2018 1:08:07 PM Norwood 114. 23/11/2018 1:08:32 PM Oh r u in it? 115. 23/11/2018 1:08:45 PM Yeh 116. 23/11/2018 1:09:10 PM I going to see my nanna tomorrow but she don't remember me :( 117. 23/11/2018 1:18:55 PM What
The complainant was then cross examined in detail.[53] She was taken over the conversations and the surrounding events. Her recall at trial, some 18 months after the events was less certain in its detail. The complainant said that whilst her memory at the stage she was speaking to police was pretty fresh, at trial, with the passage of time, it was now pretty vague.[54]
[53] T44-52.
[54] T53.18-22.
Her cross examination as to the conversation alleged to constitute count 1 is in part as follows:
QGoing back to the actual conversation that you had, you'd asked (the accused) not to tell your mum (that she had a boyfriend) and he agreed to do that; is that right.
AYes.
QHe then also asked you about whether you'd been to first or second base with your boyfriend; is that correct.
AYes.
QAt that stage, you had no idea what that even meant; is that correct.
ANo, I did not.
QDid you ask (the accused) what did that mean.
AI did.
QAnd he gave you a brief explanation at that point.
AYes, I did.
QHe gave you a brief explanation that first base was kissing, second base was touching; is that correct.
AYes, it is.
QYou said 'I don't need any more information than that'.
AYes, I felt uncomfortable.
QAt that point, did he say something to the effect of 'Well, if you do want to discuss this matter, you're free to have a conversation about it if you want to'.
AYes.
QOn that evening, that's pretty much where that conversation ended, isn't it.
AYes.
QThere was no further discussion about demonstrating what kissing was or anything like that.
ANot kissing, no.
QThere was no further discussion about demonstrating what anything was, was there.
AThere was a little bit.
QA little bit.
ASo we got onto the conversation about inappropriate videos and stuff like that. We got onto the demonstration of like hand jobs and stuff like that.
QWhen you say 'We got onto the topic of inappropriate videos' –
AYes.
QWhat do you mean.
ALike porn, stuff like that.
QAre you saying you brought that up or he brought that up.
ANo, he brought that up.
QAre you sure about that.
AYes.
QWas that the only time he brought that up.
AYes, it was.
QWhat did he say.
AHe was just basically like explaining like have I watched it and asking if I've watched it and stuff like that.
QAre you sure about that.
AYes.
QSo he just asked if you'd watched pornography.
AYes.
QYou mentioned something about hand jobs.
AYes, I did.
QAre you saying he also asked you about those.
AHe asked if - like when we were talking about bases, he asked like touching and I said like 'What do you mean by that?'. He then explained like giving hand jobs and then we got onto that topic.
QWhen you say 'We got onto that topic', you asked what he touching was.
AYes, I did.
QHe said it could include a hand job.
AYes.
QIt didn't go any further than that, did it.
ANo.
QThere was no offer to show you what a hand job was.
ANo.
QThere was no offer to show you what other kind of touching there would be.
ANo.
QWhat he did offer though was for you to talk about it at another time if you felt comfortable.
AYes.[55]
[55] T47.9-49.10.
…
QHave you still got those text messages in front of you.
AYes, I do.
QI want you to turn to p.10 of those messages.
AYes.
QThe second grey message says 'Did you think about it?'.
AYeah.
QAnd that's you asking the question 'What do you mean?'.
AYes.
QAnd he said 'About the offer LOL'. I assume that still means laugh out loud in that context.
AYes.
QAnd you've gone 'Ah nah'. Was that you saying 'I've thought about the offer and I don't want to talk any more'.
ANo, it was me saying that I did not think about the offer.
QAt that stage you knew the offer was to discuss first and second base again like you had previously.
AYes.
QBut it wasn't an offer to do any of those actions with you, was it.
AIn a way it was but in a way it wasn't at the same time.
QHe never said 'I want to show you what first base is'.
AHe didn't say in those terms, no.
QHe didn't tell you 'I want to touch you and show you what second base is'.
ANo.
HIS HONOUR
QCan I ask you in what way was it partially to show you or to offer to do something do you say.
AWell, he started talking about hand jobs and stuff like that and offered to show me and stuff like that. I guess that's what I'm trying to explain.
XXN
QI'm a little confused. When I asked you before, I said that he didn't offer to do any of that stuff to you, that's correct.
AYeah.
QAnd he wasn't offering to provide a demonstration to you in any way.
AWell, I - as I said before, I said that he did in a way, so.
QSo he said he'd talk about these things and you thought that meant it included a demonstration, is that what you're saying.
AWell, that's what I got from the conversation and how he was saying it to me, yes.
QEven though those words were never spoken by him, is that correct.
AWell, in my eyes, that is what I heard, but he didn't exactly say 'I will show you', no.
QSo it's possible that you misunderstood what he meant when he was saying -
AThere is a slight possibility, yes.[56]
[56] T49.21-T51.21.
As indicated, the text conversation between the complainant and the accused concluded at about 1.18 pm that day, 23 November 2018.
Evidence was called from the two other students who were present with the complainant at or around the time of the text conversation.
AH gave evidence that she is 15 years old and in November of 2018 was at school with the complainant, in year 8. She was friends with the complainant and with another student JB.[57]
[57] T57.4-14.
AH gave evidence that she was in art class with the complainant when she became aware that the text conversation was happening. AH gave evidence that she was sitting at the back of the room when the complainant approached her looking really distressed. AH asked her what was wrong and the complainant showed the witness her phone indicating text messages between the complainant and someone that AH didn’t know. AH said the complainant was almost in tears and she asked the complainant who she was messaging. The complainant answered that it was her mum’s boyfriend. AH said that as she was reading through the messages got progressively more inappropriate and were saying things to do with first, second and third base. The complainant told AH that she was freaking out and didn’t know what to do. AH gave evidence that she told the complainant to tell him to stop saying things like that, and to tell her mum what was happening.[58] AH also saw JB comforting the complainant, because ‘she was, like, absolutely freaking out’. The witness said she was replying and saying things like ‘Stop talking like that’, and ‘don’t talk like that, it’s inappropriate’.[59] In cross examination AH agreed that AH in fact formulated some of the responses for the complainant to the accused, in particular the responses rejecting what the accused seemed to be proposing and telling him not to ask again.[60]
[58] T57.15-58.5.
[59] T58.6-10.
[60] T58.19-59.3.
The other student present at the time was JB. Her evidence was tendered by consent in the form of a video interview recorded on 31 July 2019.[61]
[61] Exhibit P5, refer to aide memoire transcript MFI-P6.
JB said that she had been present in art class with the complainant when the complainant had received text messages and became really stressed. She said that the complainant was mainly talking to AH about it, who at that time JB did not really know, but that she, JB, saw some texts of ‘her stepdad like talking about first and second base and stuff’, and ‘how she looked good walking to school today’. JB was not cross examined.
The final two witnesses were police officers.
Brevet Sergeant Sweetman gave evidence that he conducted the initial investigation into the matter on 24 November 2018, and Detective Williams gave evidence that he was allocated the investigation the next day, 25 November 2018. Through those officers various further evidence was tendered, in particular a series of texts between the accused and the complainant’s mother.[62] The prosecution alleges that in those texts the accused, in effect, admits his offending.
[62] Exhibit P11.
As earlier set out, the texts alleged to constitute count 2 on the Information had concluded at 1.18 pm on 23 November 2018. The tendered texts between the accused and his partner the complainant’s mother commence at 5.53 pm that same day. It is plain from the conversation itself that by 5.53 pm not only had the complainant’s mother become aware of the text conversation, but had a copy of it.
The tendered texts between the accused and his partner, the complainant’s mother, open at 5.53 pm with the accused indicating that he was proposing to kill himself, and with the complainant’s mother variously expressing outrage, disbelief and concern about the texts the accused had sent her daughter, the complainant, about the consequences that would have for her family and the custody of her daughter, and about the fact that he had deleted the messages from his phone. She told the accused that she was going to the police.
Before any specifics are put to the accused, the accused is recorded as volunteering:
I never meant for it to get bad (the complainant’s mother’s name)[63]
I was only stirring her up but no one will believe me so I’m going to leave this world[64]
I never meant it to b real OK but u won’t believe me.[65]
I’ve never looked at (the complainant) that way ever OK I never would.[66]
[63] Exhibit P11, text 12, 6:13pm 23/11/2018.
[64] Ibid, text 13, 6:14pm 23/11/2018.
[65] Ibid, text 21, 6:20pm 23/11/2018.
[66] Ibid, text 22, 6:20pm 23/11/2018.
At that stage, the complainant’s mother then puts to the accused that he has gone behind her back to text her daughter at school, and expresses concern in relation to other messages sent to others, to which the accused responds:
‘No I never meant it to sound like I was going to’[67] … and a little later, in five consecutive unanswered messages the accused said:
If u don't believe me at all (the complainant’s mother’s name) just say and if u really think I'll do that to your daughter I'll tell u now that I never would of done it ever[68]… Fine if u don't wanna talk to me then so b it I'll just go walk infront of a truck[69]… OK[70]… Fuk it I'll do it hope u have a good life[71]… Fukn talk to me.[72]
[67] Ibid, text 32, 6:25pm 23/11/2018.
[68] Ibid, text 43, 6:50pm 23/11/2018.
[69] Ibid, text 44, 6:53pm 23/11/2018.
[70] Ibid, text 45, 6:56pm 23/11/2018.
[71] Ibid, text 46, 6:57pm 23/11/2018.
[72] Ibid, text 47, 7:02pm 23/11/2018.
The complainant’s mother then texted to the accused that having seen the messages she is going to the police, that the accused has now made it so that she can’t have her own daughter in her own home, and concludes with ‘hope ur happy with ur self about grooming my daughter’ to which the accused responded:
I never meant it to go that way tell whoever u need to tell and u can live your life without me cause I am now going to punish myself that u never have to see me again.[73]
[73] Ibid, text 52, 7:37pm 23/11/2018.
The complainant’s mother then directly accused the accused in the following terms: ‘U have groomed my daughter today then told her not to say anything u have then come home acted like everything is fine when u could of come clean straight away with me’,[74] to which the accused responded:
I knew I fukd up I never meant it but u have made your choice so thankyou and goodbye.[75]
[74] Ibid, text 59, 7:46pm 23/11/2018.
[75] Ibid, text 60, 7:47pm 23/11/2018.
Shortly after this the complainant’s mother told the accused in five consecutive texts:
U asked her to fool around with u (the accused’s name) … 1st and second base u told her she looks good when she gets ready for school … The concept of all this (the accused’s name) is u have not done this once but few now … I'm going to ur parents about this (RJM) … They need to know as well.[76]
[76] Ibid, texts 66-70, 7:49-7.51pm 23/11/2018.
The accused merely responded:
I understand.[77]
[77] Ibid, text 71, 7:51pm 23/11/2018.
The complainant’s mother immediately sent a further five texts saying:
I don't think u do or u would not of done all this… U are a pedifile… How do u like them words being said to u… Pedifile as u have groomed girls… What have I done for u to be like this to my friends and family.[78]
[78] Ibid, texts 72-76, 7:52-7.53pm 23/11/2018.
The accused replied:
U haven't done anything its me not thinking… I've done wrong by u and everyone.[79]
[79] Ibid, texts 77-78, 7:53-7.54pm 23/11/2018.
The complainant’s mother replied:
Not thinking. Wow (the accused’s name). Going after younger girls under age and that's ur excuse not thinking… And here I am trying to build a family with u.[80]
[80] Ibid, texts 79-80, 7:54pm 23/11/2018.
The accused replied:
(The complainant’s mothers name) I never meant it like that I'm sorry.[81]
[81] Ibid, text 81, 7:55pm 23/11/2018.
The complainant’s mother then sent the following two texts:
Not something I expected I'm so disappointed in u (the accused’s name) words can't explain how much and u truely don't care as much as u try to sit there and say ur sorry u aren't… U knew what u were doing.[82]
[82] Ibid, texts 103-104, 8:02pm 23/11/2018.
The accused responded:
I never wanted to go there but in your view it doesn't sound like it I've fucked up (the complainant’s mother’s name) I don't know what to do with myself.[83]
[83] Ibid, text 105, 8:05pm 23/11/2018.
The complainant’s mother then sent a series of texts and included screen shots of some of the texts that the accused sent the complainant, starting with:
U have asked to fool around (the accused’s name) I have all the messages on my phone.[84]
[84] Ibid, text 106, 8:06pm 23/11/2018.
The accused replied:
Yep I know u have them.[85]
[85] Ibid, text 107, 8:07pm 23/11/2018.
The complainant’s mother then sent two screen shots of some of the texts the accused had sent her daughter, and said in the three subsequent texts:
U even tried bribing my daughter telling her u have a present for her… How fucked up in the head are u (the accused’s name) … I'm in two minds speaking to ur mum and dad first or police station.[86]
[86] Ibid, texts 110-112, 8:08pm 23/11/2018.
The accused responded:
Either way I've fucked up.[87]
[87] Ibid, text 113, 8:09pm 23/11/2018.
The complainant’s mother continued:
U have left me in a position where I can't talk to anyone really and I'm alone with all this in my head I can't talk to anyone for what u have done to me and my family… U don't even care… (the accused responds that he can't get there as he has no fuel) … U can't even talk to ur own parents u just sit there when ur mum talks to u… I'm so disappointed in what u have done (the accused’s name).
The accused replied:
I don't know what to do (the complainant’s mother’s name) I have ruined everything… I'm dissapointed in myself for what I have done.
The complainant’s mother continued:
U need to sit in front of ur parents and admit what u have do me and not lie.
The accused replied:
So do I take myself to the cops cause your going there to tell them.
The complainant’s mother responded:
(The accused’s name) I think u need to be honest with self and seek help.
The accused replied:
I'll seek help but I've lost everything I have loved and have ruined everything we had I don't deserve to have u or a home anymore I'm lost (the complainant’s mothers name) I don't know what to do or to say to u to help what I have done… I know u don't want me anymore and I understand.
The complainant’s mother said:
I put aside the past (the accused’s name) but to have u ask (the complainant) the night of doing art project about if she has watched pornos and asked if she has a bf etc then then her she always looks good in school uniform and then asking her bout the offer and when she says wat offer u then remind her then when she says no u then tell her not to say anything. And if she doesn't say anything u have a present for her!!!... Read that and relisewhat all that looks like and u expect me to sit back and think it's ok u delete messages after speaking to ur step daughter… She is ur step daughter and u sit there writing that to her let alone anyone is not good.[88]
[88] Ibid, texts 126-128, 10:03-10:04pm 23/11/2018.
The accused replied:
I shouldn't of done that and I apologize I have done that its wrong.[89]
[89] Ibid, text 129, 10:06pm 23/11/2018.
The text conversation continued for a considerable time, indeed over the following two days, with the complainant’s mother repeatedly accusing the accused of inappropriate conduct towards her daughter, including of the accused making sure it was her daughter before then grooming her, of asking her if she watched pornos and had a boyfriend, of making an offer to her then covering it up, repeatedly conveying that what he wrote to her daughter was ‘fucking serious’, that it was one thing having done it in the past but having then done it to her daughter was another thing again, and of ruining their relationship.
At one stage of this, in the very early hours of the morning of 24 November 2018, the complainant’s mother put to the accused that at the same time he had been texting her daughter the complainant he had been texting to herself that he was feeling ‘horny’. She sent a series of seven texts as follows:
I have none on my side (the accused’s name) after everything … And u know that … (the accused’s name) I don't know how u can right now … I don't know anything but u knew what u were doing to (the complainant) … U sat there waiting for messages back … And then at same time message me saying ur horny … Or that meant to go to someone else seeing u wrote ur so horny again.[90]
[90] Ibid, texts 207-213, 4:47am 24/11/2018.
The accused did not deny this allegation but responded by acknowledging it with:
Whatever (the complainant’s mother’s name) bye.
The complainant’s mother pursued the matter:
U wrote this not me … But I'm meant to find it all ok and sit back and try to move on … U say u can't sleep well I can't either and u have now made it worse … I went to bed at 12 last night and woken up by every noise here at home then by u at 4 now I lay here with thoughts and images in my head which is truely making me feel worse … All I wanna do right now is cut my self and relive the pain and stress I'm dealing with and what possible stress I'm going to go through from today onwards … U not being here u have nothing to worry bout but ur self but me I have the home and kids and etc to worry for.[91]
[91] Ibid, texts 215-217, 4:55am 24/11/2018.
The accused still did not further respond to or deny the allegation that at the same time he had been texting the complainant he had been texting the complainant’s mother to the effect that he was ‘horny’. He said:
I'll come and help u with the house n help u out as much as I can but I know u don't want me there at all.[92]
[92] Ibid, text 218, 5:01am 24/11/2018.
The complainant’s mother continued the conversation in a series of seven unanswered texts over the next three hours:
Ur wrong … U think I want that u think I like the thought (the complainant) can't come over anymore … My family our home we had broken ruin … So much shit is running through my head I feel betrayed and lost and hopeless … I feel that I'm not good enough as a partner … I sitting here trying to question why u are doing this shit (the accused’s name) and I sit here blaming my self which I shouldn't have to do … I wish u could ans et questions honestly without thinking bout consequences.[93]
[93] Ibid, texts 219-225, 5:47am to 8:45am 24/11/2018.
Eventually the accused responded:
U shouldn't blame yourself (the complainant’s mother’s name) … I'm sorry I done that to (the complainant) which I shouldn't have.[94]
[94] Ibid, texts 226-227, 8:51am 24/11/2018.
The complainant’s mother responded:
Doesn't matter if it was (the complainant) or another child u have sent a child messages asking.
The accused replied:
I know I have betrayed u and I'm sorry there's no way I'm going to b able to fix this.
In the course of all of this, at no stage did the accused disagree with the characterisation of his behaviour towards the complainant, but rather kept apologising and saying that he had ‘fucked up’, that his dad ‘says I got mental issues’, [95] that he ‘never meant it to go that far’, [96] that he felt ‘like the biggest piece of shit’, [97] that ‘from what I have done I’m hating myself so much’, [98] and that he would ‘seek help’[99] and that he would do everything he could to ‘fix this’.[100]
[95] Exhibit P11, text 242, 9:08am 24/11/2018.
[96] For example, P11, text 323, 10:42am 24/11/2018.
[97] For example, P11, text 393, 12:08pm 24/11/2018.
[98] Exhibit P11, text 402, 1:09pm 24/11/2018.
[99] For example, P11, text 357, 11:23am 24/11/2018.
[100] For example, P11, texts 233, 362, 364, 380, 410 and 573.
At times the accused seemed to accede to the proposition that he had an interest in young women, that he simply went too far with it, but that he had not wanted to actually do anything. At 10:41 am on 24 November, the complainant’s mother and the accused had the following text conversation, the complainant’s mother asking the following questions with the accused answering as follows:
Q. Why are you seeking younger girls attention like this?
A. I wish I can take everything back n start fresh but I can’t and I’m sorry.
Q. Children who are underage?
A. I never meant it to go that far.
Q.Go that far u texted her asking wanting. Meaning there is a part of u that wants that. And I want to know why?
A. I should of stopped and no don’t want that I promise I don’t realise till its to far.
At various stages in the text conversation the accused indicates that he will shortly kill himself, and that because she has reported the matter to the police he will never be allowed to see the complainant’s mother again, that he loves her, and repeatedly apologises. For example, at 10.56am on 24 November 2018 after discussion as to the police having been notified and the complainant’s mother telling the accused that he should do the right thing, man up, and speak to the investigating detective[101], the accused says:
I know I’ve fucked up (the complainant’s mother’s name) n I’m sorry after this I won’t be able to see you again cause I’ll be locked up.
[101] Exhibit P11, text 332, 10:48am 24/11/2018.
When she replies that he won’t be locked up but that he should speak to the police, the accused replied again:
Yes I will b u all going to the cops about it so just proves I’ll b locked up.[102]
[102] Ibid, text 354, 10:57am 24/11/2018.
By 11:28am on 24 November 2018, by the 363rd text of the conversation, the transcript appears to reflect the complainant’s mother appearing to come around to start to forgive the accused, say that she still loves him, and that he has ‘made just a stupid mistake that u need to man up and fix’.[103] The accused continues to tell the complainant’s mother that he loves her, that he deserves to be bashed, that he promises to fix everything, offers her the use of the car, and for a time the conversation becomes affable.
[103] Ibid, text 363, 11:30am 24/11/2018.
At 10:15am on 25 November 2018, now two days after the events alleged to constitute count 2, the complainant’s mother returns to the allegations and texts the accused: ‘Why did you mention pornos to (the complainant)’.[104] The accused gave no reason for doing so, replying: ‘All I did was just asked her if she has watched any and left it at that (the complainant’s mother’s name)’.[105] The complainant’s mother then accused the accused of being drunk and not remembering, the accused responding he ‘only had a 6 pack’. The complainant’s mother then said:
(The accused’s name) that is the night u took ur dad to drop off point u were already drunk. Then u continued to drink more when u got home … so it was more than 6.[106]
[104] Ibid, text 511, 10:15am 25/11/2018.
[105] Ibid, text 512, 10:15am 25/11/2018.
[106] Ibid, texts 521-522, 12:39am 25/11/2018.
The accused responded:
So you think its all true??? … If so then u never believe me at all on anything (the complainant’s mother’s name) … Thanks a lot.
The complainant’s mother replied:
(The accused’s name) I'm just trying to work out what's going on … I had to ask (the complainant) exactly what happen that night cos when I ask u u can't give me a direct answer of timeline what happen while I was out.
The accused said: ‘I just tried to help u at home but got bailed up and felt pushed away’. To which the complainant’s mother responded:
(The accused’s name) that wasn't the case at all … U came over surprised me for u to be here before I could be home which u rushed here it feels like as u got here quicker than me … As for bailing u up I'm sorry if u feel like that has happened this morning it wasn't the case I just simply trying to ask u as to about the night cos u haven't exactly told me the whole night to what happen while I was out just drinks and drabs from when I ask u things.[107]
[107] Ibid, texts 529-530, 12:45pm 25/11/2018.
The accused said:
It really made me feel unwelcome to go inside as u wanted to talk outside.[108]
[108] Ibid, text 531, 12:54pm 25/11/2018.
The complainant’s mother then said:
I think u also need to take some steps now to about seeking help with a physc so u need to ask the dr also if u can please get a referral to speak to one … U kept storming off which u do all the time when a conversation is overwhelming for u.[109]
[109] Ibid, texts 532-533, 12:54pm 25/11/2018.
The accused did not address any of the matters being put to him, responding:
U are talking loud as fuk out the front (the complainant’s mother’s name).[110]
[110] Ibid, text 534, 12:56pm 25/11/2018.
About two hours later, at 2:52pm on 25 November 2018, the complainant’s mother returned to the issue of the accused’s conduct with the complainant:
U gotten away with two times already and third time now only something happening cos I take it in my own hands to go to cops cos sandy and peter wasn't going too … Why ur doing all this with me I don't know why u seek attention like that I don't know. I don't know what I've done to make u want to seek attention from others when ur with me … I don't know if a part of u will stop or try to continue to get away with it.[111]
[111] Ibid, texts 563-564, 2:52pm 25/11/2018. NOTE: The court will entirely disregard any suggestion that the accused had offended or misbehaved in any way with any other person.
The accused simply disregarded this message, replying: ‘OK just got to the docs now n fuk they buy so much shit for the kids so much sugar no healthy stuff at all I said to he's better going to aldi’.[112] The complainant’s mother, clearly upset, responded and sent further texts remonstrating with the accused:
U always tell me u didn't think what ur doing at time … U always tell me it's wrong … U always deleting stuff in ur phone … Making sure I don't find it … How is this a loving relationship … Marriage and everything gone out the window all my hopes and dreams crushed.
[112] Ibid, text 565, 12:54pm 25/11/2018.
When the accused again did not substantively respond to this[113] she continued: ‘I feel like I have lost everything … And I feel like it's never gonna be the same’. Then after another very brief response from the accused, she continued:
(The accused’s name) my home is broken I'm alone I have a partner who is bard from being here ATM and not meant to see any of the kids and I have a daughter that isn't allowed to be near u. Or come to my home … I feeling absolutely lost and beaten and I don't know why this has happen all to me … No matter what I do trouble always finds me and I can't just be happy my just crushed and pushed further into the ground with nothing.[114]
[113] The accused just saying firstly: ‘What is with all that just then (the complainant’s mother’s name) I'm finish at the docs n heading back to mums’. And then a little later ‘U haven't (the complainant’s mother’s name) I go back to work tomorrow as I'm cleared to go back’.
[114] Exhibit P11, text 572, 3:41pm 25/11/2018.
After all this the accused replied: ‘(The complainant’s mother’s name) I'm trying to fix all this I can't do it in a day I'm sorry u feel that way as I have said many of times to u’.
About 5 hours later, at 8:32pm, the accused texts the complainant’s mother that he has been called in for questioning, and she asks him to ring her straight afterwards, to which he agrees.[115]
[115] Ibid, texts 576-580, 8:32pm 25/11/2018.
The accused was interviewed by police at 8.54pm that evening. The video of that interview was tendered without objection.[116] The accused exercised his right to decline to answer any questions, however responded briefly when the allegations were put to him.
[116] Exhibit P8. Transcript aide memoire Exhibit MFI-P9.
Q.Yep alright, so I’ll give you the allegation, if you do wish to answer that’s fine, if you don’t, just say, OK? So the allegation is, you have I guess spoke with (the complainant), during a conversation with (the complainant) its alleged that you have offered and tried to procure sexual contact with (the complainant). Alright, so its alleged that you’ve asked her about some sexual acts and stated that you would be willing to show her these acts. Ok. I know you did mention that you didn’t want to ask any questions but given that’s the allegation, is there anything you wish to say about this?
A. Well, all I want to say is it all started off as just stirring her up, and yeah its gone.
Q. Do you want to I guess, expand on that?
A.Well she was talking about her boyfriend so then I’ve just stirred her up and just yeah.
Q. How did you …
A. Shouldn’t of asked them questions and yeah.
Q.You said you were stirring her up, can you tell me more about how you were stirring her up?
A. Oh just about talking, about her boyfriends and everything.
Q.Alright I am aware that you did say you didn’t want to answer any questions alright so I’m not going to sit here and keep on (unintelligible) you with things. Alright is there anything else you wish to say before the camera is deactivated?
A. No.
The Defence Case
The accused gave evidence on oath and called no further witnesses. The court will not set out all the accused’s evidence but has regard to it all.
The accused gave evidence that he is currently 33[117] and has always lived in South Australia. He was at the relevant time, and still is, in a relationship with the complainant’s mother. Over their five-year relationship they have had three children together. The accused has two other children, from before his current relationship.
[117] T95.5-6.
The accused said that the complainant was around 10 years of age when he first met her mother. The accused said that the complainant lived 50/50 with them and her father. The accused said his relationship with the complainant was pretty good. He said he saw her as a stepdaughter, or indeed as a daughter of his own.
The accused gave evidence that he was not involved with the complainant’s day-to-day care on a regular basis, such as picking her up from school and dropping her off and those sorts of things.[118]
[118] T97.32-37.
The accused then gave evidence about the evening on which the offence comprising count 1 were alleged to have occurred. The accused said he remembered the evening in question. He agreed that he was drinking that evening and said he did have a couple. He said he would have drunk roughly a six-pack of XXXX Gold Beer that night.[119]
[119] T98.6-17.
The accused agreed that at some stage the complainant’s mother wasn’t at home. He said that he thought this came about maybe because of an argument that he and she had during the day, so she had needed her time to get away, so she took the Great Dane for a walk on the beach. The accused said that he stayed home to guide the complainant through her art project because he had done a fair bit of artwork over the years.
The accused said the complainant was doing her homework at the kitchen table. He said that most of the time he was outside, but that he would come inside, and be floating around the house. He said that while he was outside he was probably having a cigarette as he is a smoker. He was also drinking beer. [120]
[120] T98.36-99.10.
The accused said he had a conversation a few times with the complainant when he came inside. He said he would just talk to her about a few pointers on how she could do water colours for her paintings, for example showing how she could fade the paint with water.
The accused said that during the conversation the complainant mentioned that she had a boyfriend. He said that while he was showing her how to paint she was texting someone, he said ‘who’s that’ and she said, ‘it’s my boyfriend’. The accused said that prior to this conversation he didn’t know that she had a boyfriend and that it was the first time he had heard about it. The accused said that his response to finding this out was that he would have said to her ‘that’s new’. [121]
[121] T99.30-100.7.
He said that the complainant said that she had been seeing him for a while and not to tell her mother about it, and that ‘those were her words’. The accused said that the complainant didn’t say why she didn’t want the accused to tell her mother. He said that previously when the complainant has told her mother something, that the mother would then ‘drill’ the complainant about it. Therefore, when the complainant asked him not to tell her, he kept her word and didn’t tell. He agreed that he told the complainant that he wouldn’t tell her mother. He disagreed that he had any further discussion about her boyfriend, indeed he said that he thinks at that time he would have been due for another cigarette.[122]
[122] T100.8-101.5.
The accused agreed that he had a further conversation with her that evening, probably after he’d had another cigarette and another beer. He said he asked the complainant if she had gone to first or second base. He said her response was no, and that she didn’t know what that was. The accused said that after that he said to the complainant that he could explain it to her, but did not offer to show her or anything. The accused said his exact words were ‘I can help guide you through it or understand what it means’. He said that he would have mentioned that in the context of trying to be a father, and just trying to get her to understand what that is. He agreed that he explained what first and/or second base was; that first base was kissing and second base was touching. He said he said nothing more than that, and that he did not show her what that meant.[123]
[123] T101.10-102.4.
The accused agreed that he heard the complainant tell the court that the accused had talked to her about hand jobs. He disagreed that he had that conversation with her. He disagreed that he had ever had a conversation with her about hand jobs. He disagreed that he ever offered to demonstrate what one is.
The accused agreed that he remembered the complainant telling the court that the accused had asked her about whether she had watched pornography. He disagreed that he had a conversation with her on that night or any other night about having watched pornography. He disagreed that he had ever asked her if she had watched pornography. [124]
[124] T102.36-103.6.
The accused agreed that he heard the complainant tell the court that there was a conversation around her doing her artwork and after that that he gave her a shoulder rub. The accused said that did not happen and that he has never done that. The accused said he would never have done that to the complainant because he couldn’t ever do that to his own partner. The accused said that he can’t recall touching the complainant on the shoulders that night, but he said he knows through the years that if he did he usually ‘just got the pressure point and stuff like that’ in the neck. The accused said a pressure point is where you can put the fingers in the neck and ‘it makes them twitch or something’. He said that it was a game, that he and the complainant’s mother would do it all the time. He said that he has occasionally done that to the complainant before.[125]
[125] T103.7-104.10.
The accused said that evening he probably went out for a cigarette and then came back in over 10-15 times, going outside for a cigarette every 10 minutes. The accused said that there would have been a break in between the conversations he had with the complainant.
The accused agreed that he saw his own police interview where he told police that it started out with him stirring the complainant up. He said he had meant ‘Stirring her up as I recall the pressure point in the neck and, yeah’. The accused also said that he did that in the context of her having a boyfriend because she hadn’t had one previously, it was something new to her.[126]
[126] T104.12-22.
The accused denied having any inappropriate intention towards the complainant in terms of the conversation with her that evening.
The accused agreed that about 11 or 12 days later, on a Friday, he was sending text messages to the complainant. The accused said that he was at the doctors on that particular Friday morning because he had ‘previously injuries’ with his wrist over the years of work and that he was just seeing why it was really sore.[127]
[127] T104.23-36.
The accused said he started sending messages to the complainant that day because he was bored waiting at the doctor’s, and that it is usually a two-hour wait at Elizabeth Medical and Dental.[128] He said he was there to see a GP. The accused was asked why he started texting the complainant that day and replied that it ‘was out of the blue’ and that he was texting a few other people as well. He said he was messaging work people and maybe also the complainant’s mother.[129]
[128] T105.9-12.
[129] T105.14-22, T106.2-8.
He said he chose to message the complainant at that time because he was scrolling through his phone, the complainant came up in the list, so he thought he’d see what she was up to. He said he wasn’t really trying to achieve anything from making that contact with her. He just wanted to start off a conversation. He agreed that he knew she was at school at that time.[130]
[130] T106.9-18.
The accused’s counsel then asked the accused what else he was contacting her for. The evidence was as follows:
QYou said, initially, that you wanted to know what she was up to.
AYes.
QAnd what else were you hoping to find out by contacting her.
AProbably to just ask about the - an offer that I asked her that night we were chatting on her art project.
QFirstly, what did you offer her when you were talking the night that she was doing her art project.
AJust guidance through her boyfriend conversation we had.
QLet's go back to the night of that conversation. You've used the term 'offer'; what exactly did you say to (the complainant) during that conversation, that you say it was an offer.
AThe offer I would have said to (the complainant) that I can help guide her through, like the boyfriend stage as a stepfather and father-figure. There was no offer of me offering anything I bought or anything like that.
QSo, when you say 'offer' what, specifically, do you mean.
AOffer's probably the wrong word to use, but it's just I suppose, just there to help guide her through life I guess.[131]
[131] T106.23-107.5.
The accused was then taken to the text communications he had with the complainant on 13 November 2018.
The accused disagreed that he had given the complainant his phone number to contact him. He said he would contact the complainant via her phone only to message her about her mum or if she was with her mother, at that time. By ‘only message about her mother’ he meant that if the complainant’s mother was driving, she would say ‘Can you text (the complainant) this’, to tell her what she’s told him to say. He agreed that he would usually only be sending messages to the complainant under the instruction of her mother.[132]
[132] T107.27-108.5.
The accused gave evidence that he would text the complainant ‘not that much really’. He said he started messaging her on the day in question to say ‘hi’.[133] The accused agreed that the conversation set out in exhibit P4 was the message exchange that he had with complainant on 23 November 2018.
The accused: Just between me n u n don’t show no one else but u do look good for when u go to school :)[134]
[133] T108.9-13.
[134] Exhibit P10, text 36.
The accused was taken by his counsel through some of the texts he sent to the complainant, and asked to explain why he sent them and what he meant by them.
The accused said he sent that message because he knew that changing from schools, her old school, that she always looked like a ‘dag’ and just knowing that she was growing up at that stage. Then he said that it was just a compliment that he would have just said to her, that there was no specific reason to send her a compliment at that time. When asked if there was any reason why he needed to put ‘Don’t show anyone else’ or ‘don’t show no-one else’ in that message he said ‘No, I don’t know’.[135]
[135] T108.35-109.13.
There had been nothing in the conversation to date which could be seen as prompting, leading to, or requiring such a compliment or indeed requiring an admonition not to show the text to anyone else. Logic might suggest that if the conversation or the comment was intended to be an innocent one, there would be no reason to specify that the complainant not show the message to anyone. Logic might also suggest that if there was an innocent explanation for asking that it not be shared, it would also be easy to recount it, especially with the benefit of hindsight the accused would undoubtedly have had at the time of trial. Soon after the compliment, the accused said:
The accused: I’m really sorry for the other week when u was painting n was saying that stuff I hope u don’t hate me for it[136]
[136] Exhibit P10, text 46.
The accused agreed he sent this message to the complainant. The accused said that by ‘that stuff’ it would have been about just the boyfriend in general and the first and second base. He said that he said, ‘I hope you don’t hate me for it’ because he knew it would have made her feel uncomfortable with that conversation and was just asking that she didn’t hate him for it.[137] In his earlier evidence in chief the accused had described this earlier event as a brief conversation wherein after the topic of her boyfriend had come up he had explained in a fatherly way, in response to the complainant’s questions, that first base was kissing and second base was touching, and just indicated that if she wanted to talk further she could ask. He said there had been no further conversation along those lines, and no conversation at all about hand jobs or pornography. Objectively there would seem nothing in that version of the accused’s evidence about the verbal conversation that would either require an apology, nor that could generate any legitimate concern that the complainant might ‘hate (him) for it’.
[137] T110.24-111.3.
The complainant replied, ‘Nah allg’, meaning no, all was good. The accused then replied:
The accused: Oh good lol Did u think about it hahaha
The accused said that ‘did you think about it’ was about the offer that he talked to her previously a couple of weeks ago, about offering to guide her through. He gave evidence that the offer was about when the accused talked to her about her boyfriend and first and second base, and he said he offered to help her through it and talk to her about it because she couldn’t talk to her mother or father about anything because they would just jump to conclusions.[138]
[138] T111.12-25.
The complainant replied ‘Wum’, meaning what do you mean. The accused told her what he meant:
The accused: About the offer lol
The accused said that ‘lol’ means ‘laugh out loud’. He said that he usually just writes that after, when he has written stuff.[139]
The complainant to the accused: Oh nah
The accused: OK lol :(
[139] T111.35-112.2.
The accused said that he sent the sad face because she didn’t think about the offer, being that he offered to guide her through life a bit. He then said that the sad face would have popped up and that he wasn’t too sure why he would put a sad face there.[140] The complainant asked why he was sad:
The complainant to the accused: Y u sad lol haha
The accused: Cause u didn’t think about the offer haha
[140] T112.8-14.
He gave evidence that it made him sad, her not thinking about the offer, because she didn’t want his help to help guide her through life and because he has guided her through her art projects and stuff many other times. He said these other things he’s helped guide her through were when her mother and her had previously had arguments where he has helped by explaining to her where her mum was coming from in the lead up to the argument they’ve had.[141] The accused continued:
The accused agreed that he sent that message in response to the complainant’s mother’s message. He said he didn’t ask the complainant about porn that night or any other time. He said he can’t say why he would have written that message. He agreed that at the time he was really worried about his relationship. He said he doesn’t know why he would tell the complainant’s mother that he has asked the complainant about porn if he hadn’t. He said that he could be lying in the message to the complainant’s mother, because he previously had lied lots and been unfaithful to her. He said he may have lied to get the complainant’s mother off his back at that time. He said he didn’t know why it would get complainant’s mother off his back to agree with her that he had talked to the complainant about porn.
Overall in cross examination, the accused maintained that the conversations about first and second base were all a big misunderstanding. He said that all he was offering to do was guide the complainant through life as a father figure. He maintained that the complainant had lied about him offering her a hand job. He maintained that the complainant had lied about him bringing up pornography with her. [161]
[161] T139.2-17.
The accused conceded in cross examination that nowhere in any of the tendered texts, at any time, had he said that the conversations in question were just an offer to guide the complainant through life. He agreed his first message to (the complainant’s mother) was simply ‘I’m going to neck myself’.
The accused agreed that he didn’t tell the police that it was all a big misunderstanding. He agreed that he didn’t tell the police that it was an offer to guide her through life, but rather that he was just ‘stirring her up’.
The accused said in cross examination that he thought he would give the complainant a compliment because she used to wear her primary school uniform which was all blue and it was joked around the family that she sort of looked like a boy sometimes. He agreed that the complainant didn’t look like a boy anymore. This was a different explanation from that given in evidence in chief.
In further cross-examination, the accused conceded that as soon as the matter came to light he deleted all his messages to the complainant and deleted the complainant’s number as a contact.
The accused conceded that at the same time he was messaging the complainant’s mother that he was ‘horny’, he was also messaging the complainant. He denied that this had anything to do with his text to the complainant ‘Just between me n u n don’t show no one else but u do look good for when u go to school:)’. The accused said he could not recall whether he had deleted the message to the complainant’s mother that he was ‘horny’, but acknowledged that the message was no longer on his phone by the time it was seized by police shortly afterwards.[162]
[162] T149.10-30.
In cross examination, the accused repeatedly denied discussing or explaining ‘hand jobs’ to the complainant at any time.
In cross examination, the accused acknowledged that while on the one hand he was saying that he had apologised to the complainant in his text to her for saying ‘that stuff’ ‘the other week’ to her, because it had possibly made her feel uncomfortable, that he nonetheless still went on to ask her if she had thought about the ‘offer’. So on one hand he is apologising for it, and on the other hand he then repeats it.
In cross examination, the accused also agreed with the proposition that he had no need to further ask about his ‘offer’ to the complainant if she no longer had a boyfriend, then acknowledged that he knew she no longer had a boyfriend. Yet he still proceeded to reiterate his ‘offer’. He responded that he hadn’t really thought about the fact.[163]
[163] T181.33-182.1.
The accused maintained that his texts towards the end of his conversation to the complainant, increasingly to the effect that he was joking and would never have actually done anything to her, that she promise to say nothing, that she tell no-one, and that she delete the texts, were all because he had read back over the texts and was panicking as to how they looked. He maintained that the offers he then made about the present he had got her, to do her ‘a Henna’, to help with her homework and pick her up from school were not bribes.
The accused agreed that nowhere during the 580 text message conversation with the complainant’s mother between 5:53pm on 23 November and 8:41pm on 25 November did he suggest it was ‘just a misunderstanding’. The accused maintained that he didn’t have a chance to. In an objective sense that is plainly not the case. There are many hours over which no texts were sent, and there are many times when the complainant’s mother asks direct questions as to why the accused did what he was alleged to have done, to which the accused had unlimited time to respond, and indeed did respond. Yet the accused never suggested to the complainant’s mother that there was any misunderstanding, nor indeed that he was attempting to guide the complainant or in any way give her fatherly advice. He then said that she doesn’t listen to his text messages most of the time. The accused said he possibly told her it was a misunderstanding in the phone calls, he said he tried telling her a lot of times it was a misunderstanding, and it wasn’t what it seemed, and that he had no intentions of doing anything with the complainant. [164]
[164] T189.32-190.17.
In relation to his text to the complainant’s mother that ‘I’ll get bashed by family and friends which I deserve everyday’, he disagreed that if it was just a misunderstanding that he wouldn’t need to have sent that text message. He said he wrote ‘I deserve everyday’ because of what he put the complainant’s mother and the complainant through. He said he would get bashed because other people would jump to conclusions and don’t ask first.[165]
[165] T190.18-191.4.
Consideration
The court has regard to everything put and submitted by counsel. Counsel both provided comprehensive written and oral final addresses. The court will not repeat the matters put, but has regard to all matters put. The court has carefully considered all the evidence, and given particular attention to the matters highlighted by counsel.
The thrust of the prosecution’s address was that the complainant was a truthful and reliable witness who should be believed as to the oral conversation alleged to constitute count 1, and if the conversation occurred as she recounted it, there could be no doubt whatsoever that it was for a prurient purpose and intended to make the complainant amenable to sexual activity. In relation to count 2, the thrust of the prosecution address was that a plain reading of the texts, together with all the surrounding circumstances, also established beyond reasonable doubt that those texts were sent by the accused with a prurient purpose to make the complainant amenable to the sexual activity that the accused was indeed offering on a plain reading of the texts themselves. The prosecution submitted that the accused was a poor witness whose account of the oral conversation, denials of a prurient purpose or intention to make the complainant amenable to sexual activity simply should not be believed.
The thrust of the defence address was that the complainant may well be mistaken and wrong in her recall of the initial conversation, and that the accused was a good witness whose account of that first conversation was at least a reasonable possibility. The defence argued that the words used in the texts were not clearly in support of the propositions alleged by the prosecution, and that the accused showed both in the overall texts and in his sworn evidence, that he was not necessarily good with words or able to express himself clearly. The defence put that the prosecution had not established to the requisite degree, in relation to either charged count, that the accused had any prurient purpose, nor had the prosecution established that the accused was communicating with the intention of making the complainant amenable to sexual activity.
Overall, and in the context of final addresses, it was not disputed that the accused had an oral conversation with the complainant at the time and place she alleged, nor was it in dispute that he had a subsequent conversation with the complainant in the text messages extracted from the complainant’s phone dated 13 November 2018 and tendered at trial. It was also common ground that the accused was in a position of trust in relation to the complainant, that the complainant was a child of whom he had custody of as a parent or guardian, and that he knew that the complainant was under the age of 14 at the relevant time.[166]
[166] Defence written closing address, p 3; Prosecution written closing address, para 6, 2.10.
Further, the text conversations were not in dispute, those texts having been electronically downloaded from the complainant’s phone and the complainant’s mother’s phone.
Accordingly, the primary area of factual dispute on the prosecution’s case was the exact nature and content of the oral conversation alleged to comprise count 1 on the Information. The other major issue was whether it was established that the accused had any prurient purpose, or was in anyway attempting to make the complainant amenable to sexual activity, within the meaning of s 63B(3)(b) of the Criminal Law Consolidation Act 1935.
The court turns to the primary area of factual contention on the prosecution case, the contents of the oral conversation between the accused and the complainant allegedly comprising count 1 on the Information. The prosecution relies primarily on the evidence of the complainant. The prosecution also submits that in subsequent text messages both to the complainant and the complainant’s mother, the accused effectively admits count 1.[167]
[167] Both counsel agreed that the contents of the texts said to comprise count 2 were relevant in an assessment of count 1 in that they purported to discuss and on the prosecution’s case, made admissions in relation to count 1. Both counsel agreed that count 1 was relevant to consideration of count 2 in that whatever the accused was allegedly offering the complainant by way of the texts said to constitute count 2 were doing so by way of referencing the offer he had made during the course of the oral conversation said to constitute count 1. For example, see the defence closing address at T206. No objection was taken to the admission nor to the cross-admissibility of the evidence in these ways. The evidence was plainly admissible on this basis. The evidence was not used in any other way.
The court has closely scrutinised the complainant’s evidence. The court takes into account all relevant factors, including her age, and the fact that her tendered video interview was not on oath. She was at the stage of her interview attempting to recall events up to two weeks prior. The court has scrutinised the interview and the circumstances in which it was made, and has carefully assessed whether she was led in any way by the questioning or whether there are any other aspects apparent which might potentially affect her credibility or reliability. There were no indications that she had been led in any way, or that anything she said was not based on her own recollection.
Overall, the complainant gave evidence by way of both her statement and her subsequent evidence on oath very well. She was a sensible, straight forward young woman, who appeared to have no malice towards the accused and was factual, straight forward and responsive when answering questions both in her statement and in her subsequent sworn evidence before the court.
The statement given was contemporaneous with the events and accordingly, more detailed and certain. At trial, some 18 months later, the complainant was still clear and straight forward but had less detailed recall of the events. She was earnest and straight forward in her presentation, showed no tendency to exaggerate and was overall a very good witness. Her evidence as to the oral conversation alleged to comprise count 1 on the Information was credible.
Her complaint to her grandmother was generally consistent with both the events having occurred, and with her account in court. It was briefer and in much less detail, as one might well understand it would be in the circumstances of the time. At that time, the complainant was uncertain about the purpose of the accused’s conversation and was tending to put it down to the fact that the accused had been drinking and might have possibly not been serious. Therefore, it is likely she only recounted part of what had been said to her, and left out what might be described as some of the more embarrassing detail.
Overall, the complainant’s evidence had the ring of truth and gave a strong impression of reliability.
By contrast, the accused gave evidence very poorly. The accused’s presentation to the court was jumbled, as were his attempts to explain the many texts put to him.
Unfortunately, the accused’s evidence that his conversation with the complainant was simply an altruistic effort on his part to offer her parental guidance rang hollow from the outset. There are many reasons for this. The accused’s subsequent texts to the complainant referencing that oral conversation make no mention whatsoever of that being his intention or that being the process he was suggesting that he and the complainant embark upon. It would have been an easy matter in those subsequent texts to reference his offer of parental guidance in inoffensive and non-sexual terms that did not need anyone to promise silence or not to show the messages to others yet, that was not done, even when he was desperately trying to defend himself and explain himself and get the complainant to remain silent in the latter stages of the text conversation with her. Further, when the accused was grilled for some two days by text by the complainant’s mother over what he had said to her daughter both in the oral conversation, but more particularly in his text conversation with the complainant, despite having every opportunity to do so, at no time did he suggest that all he had done was to offer to discuss, in a fatherly way, boyfriend related issues. He was asked numerous questions by the complainant’s mother about exactly what he was attempting to do and he never even adverted to such a purpose in response.
Further, when apprehended and interviewed by police in a formal setting, with the allegations put to him, the accused again made no reference to any suggestion he was attempting in a merely parental way to offer guidance. He gave an entirely inconsistent response, that he was ‘just stirring her up’. In short, his evidence was entirely inconsistent with almost everything he said both to the complainant in his texts to her, to the complainant’s mother in his texts to her and what he said to the police when apprehended.
In relation to the initial oral conversation, comprising count 1, the complainant was clear that the accused had raised with her whether she had watched pornography and also clear that he had discussed ‘hand jobs’ with her. The complainant’s evidence was frank, unguarded and credible in these respects, both in her tendered interview and her subsequent evidence on oath. The accused’s evidence admitted only so much of that conversation that might be consistent with the defence he proffered at trial i.e. parental guidance, and denied matters which might be seen as going too far with one’s stepdaughter, such as raising both pornography and hand jobs with her when all she had done is mention that she had a boyfriend. This had the distinct air of deliberate minimisation by the accused to fit the defence he mounted at trial. It was also inconsistent with his texts to the complainant’s mother, wherein he admitted raising pornography with the complainant.
Indeed, in his texts to the complainant’s mother it is clear that on four separate occasions the complainant’s mother accused him of discussing pornography with the complainant. On the first three occasions, the accused acknowledged the allegations or apologised, not denying but without specifically answering whether he had raised pornography with the complainant. On the fourth occasion, he specifically admitted that he did so. His denial in court was consequently both unconvincing and affected his overall credibility, given the unequivocal nature of his admission to the complainant’s mother in the relevant text.
In the witness box, the accused purported to explain many of the texts by saying that he was bad with words, that he didn’t think before he wrote or texted or answered, and that it didn’t come out the way he meant it to. His evidence on this topic was unconvincing. Both when the accused was texting the complainant and over the two days he was texting the complainant’s mother, he had plenty of time to compose whatever he wished to compose, and indeed not answer when he wished not to answer. Further, on each occasion he was called to account for what he had allegedly been attempting to do and had every opportunity to clearly explain the innocence of his actions; in each case he apologised for what he had done, rather than assert that he had not done anything, and at no stage in the texts did he raise the defence he raised in court.
In all, the accused was an unconvincing witness whose explanations lacked credibility and much of whose evidence was inconsistent with the text messages which he had purported to explain.
In the totality of the circumstances, the court accepts the complainant’s evidence as both accurate and reliable beyond reasonable doubt. Notwithstanding the accused’s evidence, which the court has carefully considered together with all of the accused’s counsel’s submissions, the court finds that the conversation alleged to comprise count 1 on the Information occurred exactly as the complainant said it did.
Accordingly, it is established beyond reasonable doubt that around nine or 10 pm on either Saturday 10 November or Sunday 11 November 2018 the complainant was home alone with the accused and was texting her boyfriend. The accused said, ‘don’t worry, I won’t tell your mum you have a boyfriend’ and then asked her if she had gone to first and second base. The complainant replied that she didn’t even know what that was, and the accused then proceeded to tell her that first base was kissing and holding hands and that second base was touching. The accused went on to talk about hand jobs and asked if she had given one or seen anything like that. The accused then said he would show her how they’re done which the complainant rejected. The accused also asked the complainant if she’d had her first kiss to which she replied she had not. The accused asked if she had seen ‘porno’. The accused told the complainant that he could show her how everything was done, which in the context was referencing first and second base, kissing and hand jobs. The court makes those findings primarily based on the complainant’s video interview with police, that interview being shortly after the events concerned, at a time when the complainant’s memory would be far better than it was in court.
The court finds that the text messages tendered between the accused and the complainant are proven beyond reasonable doubt. The court also finds proven beyond reasonable doubt the text messages tendered between the accused and the complainant’s mother.
The court finds proven beyond reasonable doubt that the text messages to the complainant represent the accused offering exactly what they grammatically indicate. In short, the court finds proven beyond reasonable doubt that the accused is reminding the complainant of their oral conversation of him offering to try out first and second base and fooling around with the complainant, and enquiring whether she had further considered that offer. The court finds proven that the messages constitute an admission that the accused was offering exactly the same thing by way of the earlier oral conversation which is alleged to comprise count 1.
In each case the accused was in a situation which allowed him to safely make such suggestion. In the case of count 1, home alone with the complainant in the course of an evening wherein he was drinking alcohol and assisting her with her art homework. On the second occasion, when he was alone in a waiting room and able to confidentially text the complainant and at which time he was also thinking sexually, as evidenced by his text to the complainant’s mother at around the same time that he was feeling horny.
Indeed, an analysis of the text messages between the complainant and the accused on 23 November 2018 has all the flavour of a clever and manipulative process of grooming the complainant. The messages start out with the accused sending a number of texts gaining rapport with the complainant and overcoming her apparent surprise that he had texted her. The accused then introduces the concept of the complainant’s mother being “so much of a ball breaker hey” and conveys that he sticks up for the complainant all the time, seemingly to establish a conspiratorial rapport with her. Then the accused compliments her looks and starts talking about why the complainant broke up with her boyfriend i.e. takes the conversation to a very personal level. Then the accused purports to apologise for what he had said in the earlier oral conversation, but it is plain that the apology is not genuine because the moment the complainant indicates she was not perturbed and everything was fine, the accused immediately embarks upon a reiteration of his offer to her. This is inconsistent with any genuine concern that such a discussion may upset the complainant. The accused then appears to attempt pathos to further his rapport, by introducing a sad face in response to the complainant indicating that she did not think about his offer, and to provoke the complainant to be interested in continuing the conversation. The strategy works and the complainant asks him why he is sad, which allows the accused to seamlessly return to the topic he is pursuing. The accused then insists by proof of photograph that he is actually speaking to the complainant, and furthers the conspiratorial tone by asking the complainant to promise to not even show her friends the text he is about to send, which is the text making the offer ‘like fooling around n trying first n second base’.
It is at that point that the complainant’s friend is likely to have taken the phone and texted the clear and unequivocal rejection: ‘No thank you. I do not want to at all. Please don’t ask that again’. The accused’s reaction of then immediately apologising, saying he will leave the complainant alone, requiring her to promise not to say anything, asserting that he was only joking, repeating a request that they keep it between ‘us’, saying that he wouldn’t ever do anything to her, that she should never mention it again, that she must delete the message and if she says nothing, he will tell her about the present that he got her, is only consistent with the immediate panic that such an immediate and unequivocal rejection would likely provoke if the accused knew that what he was doing was objectively very wrong. His panic at this stage is quite inconsistent with him just having issued a non-sexual parental reminder that he was available to give her guidance as a parent should she wish it. Further, there would be no need for the accused to suddenly promise to ‘leave you alone’ if the offer had not been to, in some way, not leave her alone. Nor would he need to immediately deny that he would ‘do that to you ever’ unless the tenor of the conversation had been that he had been proposing to do something to her. All in all, the text conversation is highly indicative of the accused making a sexualised offer to gratify his own prurient interests and of the accused being fully aware that he was doing just that.
The court finds that from the outset of the text conversation to the complainant, the accused was intending to offer to ‘fool around and go to first and second base’ with her and that is the reason for his exhortation to her from the outset and as the conversation progressed not to tell anybody, not show the messages to anyone, and the reason for his precaution to ensure that he was speaking only to her before he clarified what he was offering her. The court finds that the accused conducted the text conversation for the prurient purpose of his own sexual gratification and had the conversation with the intention of making the complainant amenable to the proposed sexual activity.
The court finds that in relation to the oral conversation some days earlier, the accused had that conversation for the prurient purpose of his own sexual gratification and had the conversation with the intention of making the complainant amenable to the proposed sexual activity.
In coming to its conclusion, the court has carefully considered all the evidence including the defence case.
Conclusions
In relation to count 1 the court finds that the prosecution has proven beyond reasonable doubt that on or about 11 or 12 November 2018 at Parafield Gardens, the accused by oral conversation communicated with the complainant for a prurient purpose, namely his own sexual gratification, with the intention of making the complainant amenable to sexual activity with him by way of him showing her, or him engaging with her, in sexualised touching, sexualised kissing or ‘hand jobs’.
It is proved beyond reasonable doubt that at that time he was in a position of trust in relation to the complainant and in committing the offence. It is further proved beyond reasonable doubt that at the time the accused knew that the complainant was a child for whom he had custody as a parent or guardian, namely stepfather. It is further proven beyond reasonable doubt that the accused committed the offence knowing the complainant was under the age of 14 at the time of the offence. In relation to count 1, each of the circumstances of aggravation is accordingly proven beyond reasonable doubt.
In relation to count 2, the court finds that the prosecution has proven beyond reasonable doubt that on 23 November 2018 at Parafield Gardens, the accused communicated with the complainant via text for a prurient purpose, namely his own sexual gratification with the intention of making the complainant amenable to sexual activity namely, taking up his previous offer of he showing her, or participating with her, in sexualised fooling around, and getting to first and second base, namely sexualised touching and sexualised kissing.
In relation to count 2 it is proven beyond reasonable doubt that the accused was in and abused a position of trust towards the complainant in committing the offence. It is further proven beyond reasonable doubt that in committing count 2, the accused committed the offence knowing that the complainant was a child of whom he had custody as a parent or guardian, namely stepfather. Finally, it is further proven beyond reasonable doubt that the accused committed the offence, knowing that the complainant was under the age of 14 at the time of the offence. In relation to count 2, each of the circumstances of aggravation is accordingly proven beyond reasonable doubt.
Verdicts
Count 1 – Guilty - All 3 circumstances of aggravation are proven.
Count 2 - Guilty - All 3 circumstances of aggravation are proven.
[1] A number of procedural and evidence-related applications were made at various times during the trial by both the prosecution and defence, and rulings made at the time. These applications were by and large by consent and unopposed. The rulings together with brief reasons for each decision are set out in the transcript. Hence in the interests of brevity they are not set out in the judgment. Accordingly, it should not be assumed that formalities not mentioned in this judgment were not fully considered and dealt with in the course of trial.
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