R v McLeod - [2011] SADC 114

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCLEOD
Criminal Trial by Judge Alone
[2011] SADC 114
Reasons for the Verdict of His Honour Judge Herriman
28 July 2011
CRIMINAL LAW
Charge of persistent sexual exploitation of a child and alternate counts of unlawful sexual intercourse and procuring an act of gross indecency. Complainant and witness suffering intellectual disabilities. Consideration of admissibility of statements of protected witnesses, capacity to give unsworn evidence and issues of corroboration.
Verdict: Guilty of first count.
Evidence Act 1929 (SA) s 9, s 34CA; Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Byerley [2010] SASCFC 3; DPP v Hester [1973] AC 296, considered.

R v MCLEOD
[2011] SADC 114
Introduction

The accused is charged on the first count with persistent sexual exploitation of a child, it being alleged that over a period of not less than three days between 1 January 2007 and 9 December 2009, at various places, he committed more than one act of sexual exploitation of S, a person under the age of 17 years, by:
(1)indecently assaulting her by touching her vagina;
(2) indecently assaulting her by touching her breasts;
(3) procuring an act of gross indecency by causing her to touch his penis; and
(4) having unlawful sexual intercourse with her by penetrating her labia majora with his finger.
The accused is then charged with two further counts, one of unlawful sexual intercourse and one of procuring an act of gross indecency, but they are alternative counts should there be an acquittal on the primary count. They rely respectively upon the matters alleged in particulars (4) and (3) of that count.
It is apparent on all the evidence that the accused had a measure of personal contact with S over at least part of the alleged period, and certainly in the latter part of 2009. That came about through their involvement in an organisation known as the Volunteer Cadet Corps Australia (‘VCCA’ or ‘the corps’), a body established by the accused in 2007 or 2008. Members of the corps were principally children and were loosely described as sea or navy cadets, albeit that they had no formal ties with the Australian Defence Force. The accused had formed the corps after experiencing his son’s participation in another similar group described as the ‘air cadet corps’, but the VCCA rather focussed upon water and boating activities with associated training of a quasi-navy kind.
The age range of participants was between eight and 18 years but the majority of children involved were in the 12 to 14-year-old range and generally the number of participants was between ten and twelve. Corps activities involved military drills such as marching, flag-raising, camping and boating and there was otherwise classroom activity imparting knowledge of a naval flavour.
The corps did not have any formal affiliation with any other groups in Australia but there were similar bodies in the United Kingdom, USA and Canada and, indeed, there had been communication between the VCCA and a United Kingdom group to the point that arrangements had been put in place for a visit by the corps to that country.
No clear evidence emerged at trial as to the accused’s qualifications in connection with running the corps but photographs tendered to the court (P11) appeared to demonstrate he had a keen interest, if not a history of involvement, in the navy and seafaring. Further to that, references tendered (D15) demonstrated a level of involvement by him in vocational education, working opportunities, aged care and community activities generally.
The accused was the commanding officer of the VCCA until the time of his arrest in December 2009, at which time the corps ceased to function.
S is one of two children born to D and ST on 27 June 1997 and she has an older sister T, born on 28 August 1996.
As they are only 10 months apart in age, S and T have always been in the same year at school. Each suffers from an intellectual disability. I will say more about that later, but effectively each of them has an intellectual age well below her birth age.
It did not clearly emerge at trial when they first became involved in the VCCA but they were introduced to it as a result of their mother meeting the accused at a shopping centre. They went along to early sessions with her and she soon began assisting with collection of fees, canteen duties and the like. Over time and because of her regular attendance, the accused appointed her executive officer of the group. It met at Elizabeth Vale Primary School, originally on Friday nights, but at some point the meeting time was changed to Saturday mornings.
As a result of their general involvement in the corps, D and the accused saw a lot of each other and their association was the cause of some tension in D’s household. ST had not liked the accused from the beginning and freely conceded that he was jealous of his wife’s association with him, particularly when it appeared that she was to accompany the accused and the children on the proposed visit to the United Kingdom group. He and D had jointly borrowed $25,000 to cover the expenses of that trip and, although he did not know it at the time, he was later to discover that some of those borrowings were to be applied to the accused’s own trip expenses.
The accused’s wife Joylene gave evidence and said that she was herself suspicious of D’s motives and her association with her husband, but that he saw nothing in it and that she trusted him.
It is perhaps pertinent here to record that both ST and Joylene suffer from significant health difficulties.
ST has Paget’s disease, a bone disorder, and diabetes and is a disability pensioner. He rejected the suggestion that he suffers from intellectual difficulties but acknowledged that he had had problems with speech as a child and retained a stutter. I should say that my own observations of ST when he gave evidence were that he had a quite limited grasp of what was being put to him, a very poor memory indeed and a timid presentation. He and D had separated some six or seven months before trial.
As to Joylene, she was significantly disabled physically. She had suffered from polio as a child, had had difficulty with mobilisation all her life and at 61 years of age was dependent upon a walker or otherwise a gopher. She moved in the courtroom with help and with considerable difficulty and said that she was utterly dependent upon her husband’s support.
What appeared to be common ground from the evidence of D, ST and Joylene was that, at sometime in the latter half of 2009, the accused conducted tutoring sessions for S and T on general education topics at his house after Saturday morning corps meetings.
The circumstances in which that began were disputed. D said that it came about because the accused offered to conduct them and she agreed to it, as she knew her children needed all the help they could get. She did not know what the accused’s qualifications were or what he would tutor them in. Joylene gave a different account of that and said that D asked the accused whether he could help out with tutoring and he agreed.
At all events, it happened that after cadet corps ended at 11.30 a.m. or 12 noon on Saturdays, S and T would travel with either the accused or their mother to the accused’s house. They would be in their cadet uniforms but would change at his house before tutoring began. On Joylene’s account, which I accept, upon arrival at the accused’s house S and T would eat the lunch they had brought there, sometimes along with their mother, and tutoring would then continue until about 2.30 p.m., following which D would call and take the children home.
Tutoring took place in a separate office area which formed part of a detached garage at the rear of the accused’s house premises. Photographs of that area (P11) reveal a relatively small office with desks, filing cabinet, two chairs and other accoutrements. Other evidence disclosed that the office could be accessed by entering a door in the shed that opened from a paved area to the rear of the house verandah. That door gave access to a passage and one then turned to the left to enter into the office. There were other divisions within that shed.
The precise number of tutorial sessions that each child attended was not clearly established by the evidence. D said that they continued until police became involved in this matter on 6 December 2009. When it was put to her by defence counsel that there were about ten tutoring sessions in all, she agreed. She also thought it likely that S had only been to six of them. ST agreed with the latter comment but when Joylene gave evidence, she suggested that there had only been, in total, some six tutoring sessions.
Neither S nor T was of particular assistance upon that matter but on all the evidence I find that there were likely six sessions which both attended and that T attended more than that, but that there were no more than ten in total.
The prosecution case is that, with the exception of two incidents which occurred variously at the girls’ house and at a park and upon which it did not ultimately rely, the sexual exploitation relied upon with respect to count 1, or otherwise the alternative counts, occurred during tutoring sessions in the accused’s garage office and in the presence of both girls.
The defence case, which I will later discuss in more detail, is that the evidence of the girls cannot be relied upon, that it is internally inconsistent, very likely the product of contamination and that I cannot be satisfied beyond reasonable doubt about the truth of their accounts. In any event, based on the evidence of Joylene, there can never have been an opportunity for the accused to so offend during tutoring sessions.
The prosecution case comprised the oral evidence of S and T, records of their police interviews received under s 34CA of the Evidence Act 1929, the evidence of their parents D and ST, their aunt SA and that of the interviewing police officer, Senior Constable Burden. In addition, I received the psychological evidence of Ms Carapetis given on the voir dire; the agreed evidence in declarations of the children’s uncle B and of Senior Constable Tobiasen, a crime scene investigator; and the various exhibits tendered.
The accused, as was his right, did not give evidence and I remind myself that that failure does not reflect upon him in any way. He carried no onus of proof. His wife gave evidence, however, and I received agreed documentary evidence.
Legal Issues
General Observations
In reaching my decision, I have had regard to all the evidence, my observations in the courtroom and the addresses of both counsel.
A person who is charged with a criminal offence is presumed to be innocent unless and until the charge against that person is found to be proved. The onus of proof rests upon the prosecution and the accused faces no onus of proving anything.
The prosecution must prove each charge and each element of each charge beyond reasonable doubt. It is not enough for the prosecution to show a mere suspicion of guilt or even to show that an accused is probably guilty. The accused cannot be convicted on any particular count if the court has a reasonable doubt as to any essential element of that count.
If, in the end, I am left with a reasonable doubt about the guilt of the accused on any one count, then I am required to bring in a verdict of not guilty on that count. If, on the other hand, I am satisfied to the exclusion of reasonable doubt about the truth of a particular charge brought against the accused, then I will bring in a verdict of guilty on that charge. But I remind myself that I must treat separately each charge and the evidence going to that charge.
I should also stress that where in these reasons I refer to matters being proved or established to my satisfaction or I use some other expression relating to proof, then, unless I say otherwise, in each case I mean proof or satisfaction beyond reasonable doubt.
In evaluating the evidence, I must consider how much weight I can attach to that given by particular witnesses and I remind myself that I should have regard not merely to truthfulness but to the reliability of evidence. I must make allowances for the personal characteristics of particular witnesses, including the ages and intellectual development of the child witnesses here, and in doing that I note that a witness can be truthful or reliable about some matters and not others. I might accept some things that a witness says and not other things.
Count 1 – Persistent Sexual Exploitation of a Child
I turn then to the first count, persistent sexual exploitation of a child in breach of s 50 of the Criminal Law Consolidation Act 1935.
The elements of that offence are as follows:
(1)that the accused person was at all times an adult – plainly that is not an issue here and I am satisfied that element has been proved.
(2)The second element is that the accused committed acts of sexual exploitation against the complainant, here the child S.
An act of sexual exploitation of a child occurs if a person commits an act in relation to that child of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
Here the acts relied upon by the prosecution comprise allegations that the accused indecently assaulted S by touching her vagina and her breasts, that he procured an act of gross indecency by causing her to touch his penis and that he had unlawful sexual intercourse with her by penetrating her labia majora with his finger.
I am satisfied and find that each of those alleged acts is of a kind that could, if it were able to be properly particularised, be the subject of a charge of a sexual offence.
With respect to this element then, were the prosecution to prove that any of the particular types of conduct alleged did in fact occur, I would then conclude that that particular conduct was an act of sexual exploitation within the meaning of s 50.
(3)The third element is that at the relevant time the complainant was under the age of 17 years.
I am here satisfied and find that at all times when any of the alleged acts occurred, S was under the age of 17 years.
(4)Fourthly, the prosecution must prove that there was more than one act of sexual exploitation upon the complainant.
Here it relies on the four alleged types of acts, but, in the case of some of them, says that that particular conduct occurred on more than one occasion. Here I need to be satisfied of proof beyond reasonable doubt of the occurrence of more than any one such act.
(5)Finally, the prosecution must prove beyond reasonable doubt that if more than one such act of sexual exploitation occurred, those acts must have occurred over a period of more than three days.
The prosecution case is that the acts relied upon occurred over at least the period during which the accused was tutoring S; that is to say, six weeks or longer.
The defence case as to elements (2), (4) and (5) is that I cannot be satisfied beyond reasonable doubt that any of the alleged acts occurred and that there is a reasonable possibility that the evidence of both S and T, as to their occurrence, was contaminated.
Count 2 - Unlawful Sexual Intercourse
As to the alternative charge on count 2 of unlawful sexual intercourse with a person under the age of 14 years, there are two ingredients of this offence, each of which must be proved beyond reasonable doubt.
The first is that the accused had sexual intercourse with the complainant and the second is that at the time she was under the age of 14 years.
On any account, S was at relevant times under 14 years of age.
Otherwise, I remind myself that for the purposes of the law, sexual intercourse includes penetration of the labia majora by any part of the body of the accused, including a finger as is alleged here.
If I were to acquit on count 1 and otherwise find that that alleged conduct occurred here and was properly particularised, then I would find this count proved.
The accused’s position is as I have just described.
Count 3 - Procuring an Act of Gross Indecency
The further alternative count of procuring an act of gross indecency is charged in count 3, the particulars alleged being that the accused procured S to commit an act of gross indecency by having her touch his penis.
A person who commits an act of gross indecency with a person under the age of 16 years is guilty of that offence and its elements are:
(1)that the accused carried out the act alleged.
In this instance, the act is one of procuring a person to do something and I remind myself that to procure the commission of an act is to do something which brings about or causes the commission of that act. If the act is not committed, this element will not be made out;
(2)that the act was done in the presence of S, whether with or without her consent.
If the act occurred as alleged here then proof of this element would follow;
(3)that S was then under the age of 16 years – on any account, she was;
(4)that the act must have been an indecent one.
Indecency means some form of sexual conduct or activity which in the court’s opinion ought to be regarded as indecent, having regard to the age of S and the nature and circumstances of the conduct or activity and, as well, to contemporary standards of morality and decency.
In this instance, were the prosecution to prove the other particulars relied upon in proof of this count, I am satisfied the alleged act would have been an act of indecency;
(5)the indecency, if it occurred, must be gross. It must be something more than minor or trivial indecency.
In the particular circumstances here, I am satisfied that if it were proven that the accused procured the conduct alleged, then it would be grossly indecent.
The defence position is, of course, that I ought not be satisfied the prosecution has proved any of the alleged conduct occurred or that, if it did, I ought not be satisfied that any alleged procurement resulted in the commission of the alleged act.
As noted, the charged acts, with two exceptions, allegedly occurred during tutoring sessions at the accused’s house and when T was also present. The two exceptions are allegations that the accused had indecently touched S in T’s bedroom and on one occasion when they were walking in a park. I will come to discuss the detail of those allegations in due course.
Evidence Act - Section 34CA
At the commencement of trial the prosecution applied to adduce evidence of out-of-court statements made by the complainant S and her sister T, whom it contended were protected witnesses within the meaning of s 34CA of the Evidence Act.
In particular, it sought to tender through Senior Constable Burden, video‑ recordings of various interviews conducted by her with each of them.
The complainant is aged 13 and her sister 14, but it was not in contest that each suffered from an intellectual disability. The prosecution contended that that disability, in each case, affected the capacity of that witness to give in evidence a coherent account of her experiences or to respond rationally to questions, so that each child fell within the description of being a protected witness.
In dealing with that application, I considered that if I were satisfied that the proposed witness was indeed protected within the meaning of that section, then I might receive evidence of an out-of-court statement by that person if:
(1)having regard to the circumstances in which that particular statement was made and other relevant factors, I was satisfied it had sufficient probative value to justify its admission in the trial; and
(2)the protected witness had been called or was available to be called as a witness; and
(3)I otherwise gave permission for the protected witness to be cross-examined on matters arising from the evidence.

There was no doubt that each witness was available to be called as a witness.
There were however, here, three areas of dispute touching upon the prosecution application generally and, indeed, upon the provisions of s 9 of the Evidence Act:
(1)In the first place, the accused contended that, having regard to the provisions of s 9, I could not be satisfied S had the capacity to give evidence of any kind, whether sworn or unsworn, and consequently that the prosecution could not demonstrate that she could, at least in principle, be cross-examined within the meaning of s 34CA(1)(b)(ii) and (2) (R v Byerley[1]), so as to permit her out-of-court statements to be led.
(2)Whilst not disputing S could properly be described as a protected witness, the accused argued that I ought not be satisfied that her out-of-court statements had, in the relevant circumstances, probative value sufficient to justify their admission.
(3)In the case of T, the accused put that neither should I consider that her out-of-court statements had, in the relevant circumstances, the required probative value.
[1] [2010] SASCFC 3
I have considered each matter.
Section 9 establishes the presumption that a person is capable of giving sworn evidence unless the judge determines that he or she does not have sufficient understanding of the obligation to be truthful entailed in giving such evidence.
If such a determination is made, that person may give unsworn evidence provided that the court is satisfied the person understands the difference between the truth and a lie, that it informs the person that it is important to tell the truth and that the person undertakes to tell the truth.
It was common ground here that neither S nor T had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. That was undisputed because, despite their respective ages, there was clear evidence that each had an intellectual disability and, indeed, intellectual developmental ages of much less than 13 and 14.
In the case of S, at age 12 years and nine months her verbal intellectual disability was, applying accepted indicators, in the very low or moderate range and equivalent to that of a child of five to 5½ years, her non-verbal reasoning was in the low range and equivalent to that of a seven to 8½-year-old, and her spatial abilities, whilst better, were nonetheless ‘below average’ and in the eight- to-10-year range. She was also considered to have significant difficulties with short-term auditory memory and visual processing skills.
In the case of T, her verbal reasoning abilities at age 13 years and seven months were mild and equivalent to those of a six to eight-year-old; non-verbal abilities were in the same range but with a slightly higher age equivalence; and her spatial abilities were in the same range and equivalent to a child of 7½ to nine years old.
Verbal tasks are, relevantly, those required in processing what is being asked, listening to questions and being able to provide appropriate verbal responses.
The evidence as to their intellectual disabilities came from a psychologist called by the prosecution, Georgia Carapetis (‘Carapetis’). She had originally assessed both children in April 2010 and reported on her observations, but for unrelated purposes. Her tests, observations and the conclusions expressed in them were not contested by John Said (‘Said’), a psychologist called by the accused. He had not personally seen either child but he accepted Carapetis’ methodology, her test results and her conclusions.
Both experts gave evidence and their reports and evidence became evidence on the voir dire and also, by agreement, at trial. They agreed that S and T suffered from mild intellectual disabilities, and that these adversely affected their respective capacities to give a coherent account of events or respond rationally to questions, but there was a difference of opinion between them on an important issue and that was whether the court ought be satisfied that S understood the difference between truth and a lie. The court’s finding as to that was, of course, central to its s 9 determination.
Carapetis expressed the view that S did have that capacity and could provide a fair account of events provided questions were carefully and simply formed and addressed as though to a five or six year old. It was put to her in cross‑examination that S’s relative age and intellectual disability made her more vulnerable to suggestion, but she was not prepared to agree with that beyond saying it was possible. She said that there was very little research on the topic.
Said was of the view that S could not understand the difference between the truth and a lie and, further, that she was vulnerable to suggestion.
Their viva voce evidence on the voir dire focussed upon that topic, which was, of course, the ultimate question, but as well, for the purposes of informing myself upon it, I spoke to each of S and T in the courtroom.
Having considered all the evidence touching upon that matter, I found myself satisfied that S could give unsworn evidence and I did so for these reasons:
(1)Whilst both Carapetis and Said were qualified clinical psychologists, Said was in addition a neuro-psychologist. Even so, he fairly conceded that in this particular area, he was no better qualified to express an opinion than was Carapetis.
(2)Overall, I preferred the evidence of Carapetis. She had the advantage of having personally interviewed both children, whereas Said had not, and as well, I had reservations as to Said’s reasoning.
(3)He agreed that a child, even of the age of five, would be capable of understanding the difference between truth and a lie but considered that S would be more likely to give an answer without properly considering its truth. This was in the face of his concession that Carapetis was correct in her assessment of S’s verbal, non-verbal and spatial abilities which placed S in and above that age range.
It appeared to me that there was an internal inconsistency in that observation because it was her very intellectual disability that reduced S’s verbal capacities to those of a five-year-old. He pointed to no other factor going to her capacity to provide truthful answers to questions.
(4)Said’s opinion as to S’s reliability as a witness had focussed upon a reference in Carapetis’ report to an Attention/Activity Scale questionnaire, which had been completed for Carapetis by S’s mother and which Carapetis noted as pointing to ‘clinically significant behavioural difficulties … (she) … is perceived as a girl who can often lose her temper, be argumentative with adults, and noncompliant with adults’ requests … who often deliberately annoys people and is often touchy or easily annoyed by others…’
Those observations concerned him, he said, and although he was not prepared to diagnose her as suffering from an oppositional defiant disorder, he was of the view that behaviour of the kind reported upon would make her an unreliable witness as she would have increased vulnerability to not caring about the accuracy of her responses, if she was feeling oppositional to a question or questioner.
Further, he said, research indicated that children with an intellectual disability who were aware of not meeting the expectations of others were more likely to give answers they thought a questioner might expect.
In cross-examination he allowed that S would be more likely to remember a traumatic experience and give a coherent account of it, albeit with the risk of suggested responses. He then allowed that S’s level of suggestibility would also be found in any child of five or six. Otherwise, he was not alert to any reason why she might invent a false story.
He conceded that on his own assessment of Ms Carapetis’ report relating to T, she could give evidence if proper care was taken in asking questions, but he was not as confident with respect to S.
(5)I have considered Said’s evidence carefully and ultimately it appeared to me that all he was saying was that S had the intellectual capacity of a child of five years or perhaps more, that she could be behaviourally difficult and confrontational, and that special care needed to be exercised in questioning her and gauging her attitude and responses to questions and the questioner.
(6)I much preferred the simpler assessment of Carapetis that a proper assessment of the reliability of her understanding of questions and responses, necessitated careful questioning and an awareness of her limited intellectual development. In addition, the court needed to be sensitive to any indication of oppositional defiance behaviour.
(7)In the end, it was a question for the court as to whether S would likely understand the difference between the truth and a lie. I was assisted in that enquiry by the psychological evidence, by viewing S’s video-taped interviews, and by my questioning of S in court on the voir dire. As to the latter and whilst she faltered on some questions, I found myself satisfied from her responses and after considering the other evidence that she did have a proper understanding of the difference between truth and a lie.
(8)Having then told S of the importance of telling the truth in court and she having promised to tell the truth, I resolved to permit her to give unsworn evidence.
I should further say that having since the time of my order under s 34CA heard S give evidence-in-chief and be cross-examined, my opinion as to her capacity to distinguish between truth and a lie has been fortified. During the course of her evidence in court she demonstrated a good awareness of that distinction. She was undoubtedly confused on occasions and at times displayed a level of suggestibility, but overall she impressed me as striving to give a fair account of her recollections and she was firm on some critical issues when challenged in cross-examination. She did not display any measure of argumentative or oppositional behaviour.
That is not to say her evidence thereby became reliable; that is another question which I will deal with elsewhere.
Having concluded S might give unsworn evidence, that enlivened the prospect of her capacity to deal with cross-examination under s 34CA(1)(b)(ii).
Even so, the accused maintained that I ought not be satisfied that what she or T had said in the relevant video interviews had sufficient probative value within the meaning of s 34CA(1)(a).
I will deal with S’s video interviews first (P5 and P6). They comprise the relevant evidence but in discussing their contents, as well as other interviews with her and T, I will, for convenience, refer to passages in their transcripts which were marked for identification and used for reference in the trial, but which did not, for appropriate reasons, become evidence. Defence counsel went through each of them and pointed to aspects of the interviewing officer’s approach to questioning which he considered diminished the probative value of S’s answers. I will not deal with each particular matter of criticism but essentially he contended:
(1)as to the first interview, P5, that Burden used a style of questioning that led or suggested answers to S and in one instance highlighted the possibility of contamination.
It is the common experience of courts, and indeed a matter of common sense, that the responses to questions put to a child with respect to a particular matter will frequently be discursive, whether as a result of distraction, or some desire by the child to avoid dealing with topics perceived to be unpleasant or simply because of the subject’s limited powers of concentration. In those contexts the police interviewer frequently seeks to first establish a level of trust and rapport with the child and then to subtly divert the child’s mind to the particular purpose of the interview.
That will not always be a successful approach, however, and the interviewer may on occasions need to specifically direct the child’s mind to a cue or a topic in order to elicit information. Such a process may involve questions having a tendency to prompt or lead the witness and may, as well, involve the use of some limited expressions of comfort or support when a difficult, embarrassing or distressing topic is broached. None of those techniques are new or ordinarily the subject of defence criticism.
They assume a different level of importance, however, where the content of that interview is sought to be adduced under s 34CA of the Evidence Act and here the accused argued that the manner in which much of the evidence of S (and T) was elicited by Burden was by leading questions and that, in consequence, its content lacked the probative value required by s 34CA(1)(a).
Two observations are pertinent.
First, I have considered that interview at length and am not persuaded that, as a whole, there was significant leading. S first began answering by saying the accused was ‘hurting other kids’, and then later said ‘us too’, by touching other kids’ ‘private parts’ and, later, hers as well. That style of answer merely seemed to me to reflect her embarrassment in discussing such matters and an attempt to, at first, distance herself from the focus of attention. She then appeared to gain more confidence, however, and was able to expand or enlarge upon what she said had happened, where it had happened and how often.
Specific criticism was made of a passage where it was said she was led about what had happened to T (page 15 of MFI P5C). I was not satisfied that evidence was in fact led from S. The question appeared to me to be doing no more than picking up on an earlier reference (at page 13).
The reference to B (refer page 14 of MFI P5C) can be understood as a reference to the uncontested fact that there was a meeting of the two families when there was reference to B’s complaints about the accused but none of the evidence as to what transpired in that meeting was specific enough, as I saw it, to diminish the probative value of S’s account.
Secondly, in the context of my above observations, I am satisfied that when s 34CA was enacted in 2008, the legislature had in mind that the admission, as evidence of out-of-court statements by protected witnesses, would, in the case of children, necessarily mean that courts would receive material elicited by means of leading questions and displaying various levels of encouragement by the interviewer.
Ultimately, it must always be for the court to consider the probative value of that material against a background of the circumstances in which it was elicited. Here, having done that, I remained persuaded that the contents of S’s interview P5 had sufficient probative value to be received as evidence.
(2)As to P6, that interview was undoubtedly prompted by certain things S had earlier said in response to a question by her aunt SA, and accused’s counsel pointed to the leading nature of SA’s question to S and the manner in which her answer to it had led to the further police interview.
SA said that at the time of their conversation, she had been aware in a general sense of S’s allegations and she had spoken to S alone. After some casual conversation, she had asked S if the accused had touched her and she had received a yes and an affirmative nod to that. She had then asked where and S had pointed to her chest and groin.
She agreed in cross-examination that she had then asked S whether she had been made to touch the accused but her evidence as to S’s response to that was confusing. She appeared at first to say that she had received an affirmative answer to that question but then said that S had answered ‘No’.
At all events, it was after that conversation that police again interviewed S. Senior Constable Burden introduced the purpose of that interview by referring to ‘other things’ said by S to her auntie and matters proceeded from there. S then provided a detailed but, at the outset at least, discursive account of the accused’s conduct towards herself and others. In the course of describing the accused touching her over her knickers, she then went on to speak of him removing his pants and asking her to touch him on the penis. She then related a conversation with him in the course of which she at first refused to touch him but then ‘rolled’ her hands from his legs to his hips. She then spoke of other touching but was asked again about what happened when the accused asked her to touch him and she described him guiding her hand to his penis and her pulling on it.
A course of events such as that, where later things are said to family members and then passed on to police, is not an uncommon feature in trials of this nature and I was not minded to find that the direct questioning of S by SA and which apparently led to later police enquiry and a fresh revelation, of itself so reduced the probative value of the further evidence that it became inadmissible for the purposes of s 34CA. In the first place and in the context of S telling SA the accused had touched her indecently, SA’s question asking whether he had asked her to touch him was not so much out of context as to be strongly suggestive of a positive answer (if indeed it got one) and, in any event, the manner in which S’s account emerged during the course of the police interview was not such as to be responsive to her being reminded at its outset of ‘other things’ discussed with SA.
Overall, I formed the opinion that the contents of P6 had sufficient probative value for the purposes of s 34CA.
For those reasons I admitted the evidence P5 and P6.
As to the video interviews with T (P7, P8 and P9), I also considered the defence submissions as to s 34CA. Again I was taken through each interview and my attention was drawn to the manner in which Senior Constable Burden asked questions of T.
As to P7, the original interview of 9 December 2009, there can be no doubt that T’s attention was, at an early stage, drawn to S’s account of things happening to her at various places, with somebody she knew and about which she felt uncomfortable. T then identified the accused as the person concerned but went on to describe various matters connected with sea cadets and tutoring, saying little more than that Ian (the accused) was angry at times. She said S was with her sometimes at tutoring. She said she did not like the accused but denied anything had happened to cause that and said there was nothing she was uncomfortable or upset about.
She was then told that S had spoken of things happening at tutoring that made her (S) uncomfortable and she agreed they had but then spoke only about the accused’s disciplinary style.
Then (for convenience refer page 9 of MFI P7B) she was asked outright: ‘… [S] said when she was in there sometimes that Ian touches her and makes her feel very uncomfortable’, to which she responded ‘Oh yeah, so sorry, I forgot that.’ She then went on to say how the accused had touched her (T) on the chest but did not speak of any other relevant touching and later denied there was any.
Even so, she said that when the accused touched her it made her feel sad. She said it had happened in S’s presence and ‘He probably mostly does it to her as well.’ At first she said she had not seen that but then she went on to say she ‘probably’ had and further, then, that she had. She pointed out on a drawing P7A that the accused had touched S on the legs, head shoulders and arms but said nowhere else.
Then (refer page 15 of MFI P7B) she was told S had said she had seen ‘some things happening’ with her (T) but she replied that she did not remember anything.
She was then reminded she had spoken to another police lady recently and had then mentioned she had been touched. At that point she was referred to the drawing P7A and she said the accused had touched her on all the parts she had marked with a cross and that that included her private parts which she had previously marked with a cross for the purposes of identification. She could not then remember how the accused touched her there and was asked about various parts of the accused before saying it was ‘probably’ with his hands and when she had clothes on.

She was then asked what she saw the accused do to S and she said ‘the same thing what he does to me’ and she then pointed to a vagina on the drawing in front of her. She went on to say the accused touched her once during tutoring but he touched S ‘once each, each time.’
There can be no doubt that certain important parts of T’s statement were elicited by prompts or leading questions and, viewed in isolation and even allowing, for reasons just touched upon, that an interviewer is not to be held to the same rules or duties as examining counsel, I would have had reservations about its probative value for the purposes of s 34CA(1)(a), but it is not to be viewed solely in that way. In considering it, I also had regard to T’s intellectual disability and her presentation in the video.
As to her intellectual disability, I was mindful of the evidence that she was vulnerable to suggestion but, as well, of her comparative age level. She presented in the interview as extremely shy, embarrassed and not prepared at first to say very much at all. Even when her attention was directed to particular topics, her reluctance was manifest in the odd use of qualifying expressions such as ‘basically’ and ‘probably’. As to the latter, it became apparent in some cases that she did not mean to so qualify herself and that these were her actual recollections.
That presentation, in the context of her personal difficulties, was enough to persuade me that her evidence was of sufficient probative value to be admitted under s 34CA, but it did not stand alone and I also had regard to her presentation as each of the succeeding interviews occurred. It was apparent that she became more confident in dealing with the interviewer and she was more forthcoming and more fulsome with detail as the interviews proceeded. This, too, persuaded me that her earlier hesitation was attributable to her comparative age and shyness and that the prompting employed by her interviewer did not simply elicit suggested responses.
In her second interview (P8), her attention was undoubtedly drawn to a topic, because she was told her mother had contacted the police and told them she wanted to speak of more things. From that moment, however, she went on to speak of the accused ‘always touching’ her, that she had remembered some more ‘stuff’, that he was ‘basically’ touching her in different parts, that he normally did it to S as well and that she had seen that happen ‘normally after the cadets on Saturday.’ She described the accused touching S on her clothes with his hands in the ‘girl’s part’ and went on to say how he did the same to her whilst S was there, putting his hand down her outer pants.
Whilst that information was elicited by a prompt, that prompt identified none of the matters T then spoke about.
As to the third interview (P9), she was asked why she was there and responded ‘Um, to get my sister into, um, like, in court, um, court, to talk about Ian.’
That response was strongly criticised by defence counsel as indicative of concoction or contamination, albeit that ultimately the accused relied on contamination. Clearly, it was an unusual comment coming from T’s mouth but standing alone, or even with other matters spoken of in S’s statements, it did not destroy or substantially diminish what followed. On the face of it, it might merely have reflected something said to her by an adult and explaining the reason for her undergoing yet another interview.
T’s attention was then drawn to what she had earlier said about S and the accused and she was asked again what it was. She then gave an account of the accused touching S on the legs and head and said she could recall no more but then added he also touched S on ‘the rude bit’, her vagina, but she did not see that, S had told her of it. She had, however, seen him touching S over the top of her underwear. She spoke of the accused moving his hands up and down S’s legs, of touching her on the breasts. She had seen that. This all occurred during tutorials and after S’s birthday in 2009.
She then said, oddly, that it happened four times a week, when they went to see the accused.
Overall, whilst having the misgivings I have identified, I found myself satisfied that the contents of each of her interviews had sufficient probative value under s 34CA to be admitted.
Finally, I should stress that my conclusions as to the s 34CA applications were based upon only the materials and evidence put before me and the tests imposed by s 34CA(1)(a), and in no way reflected my opinion as to the actual truthfulness or reliability of any of the accounts given by S or T.
Unsworn Evidence
Given that the evidence of S and T was received under s 34CA and otherwise as the oral unsworn evidence of children much younger than their biological ages, I remind myself of the need for particular care in considering whether to accept it and, if so, in evaluating the weight to be attached to it.
Section 12A - Warnings as to Uncorroborated Evidence of a Child
I was not formally requested by either party to warn myself under s 12A(1) of the Evidence Act, but I have nonetheless done so.
The prosecution contends that the evidence of S is in any event corroborated by that of T, but the defence contends otherwise.
Notwithstanding the fact that T is a child and gave unsworn evidence, what she said is capable of corroborating S’s account if accepted by me (DPP v Hester[2]), but I remind myself that I must exercise considerable care in accepting and evaluating their respective accounts.
[2] [1973] AC 296
Section 13 – Vulnerable Witnesses
In this case evidence was given by S and T by means of a one-way screen and I remind myself that I must not draw from that fact any inference adverse to the accused nor consider that those arrangements influence the weight that ought to be given to the evidence of either S or T.
Section 34M – Complaint in Sexual Cases
The recent complaint evidence came from ST. He related how he was at home one day and S told him that ‘Ian was playing with her, was touching her’ (T/S 155). He asked her to repeat that and she did. He did not then tell his wife but instead spoke to his brother about what he should do. His brother said that that conversation occurred in about November 2009.
ST did not at first believe what he was being told and took no further action at that point, but on the following day the young girl next door, B, and her mother came in and B then told his family the accused had touched her. On his account she did not expand upon that description but it was that event which led to contact with the police and disclosure of alleged offending against S.
Following the first interview S had with Senior Constable Burden, she spoke to her aunt SA and I have discussed that conversation.
There is then S’s account of what occurred in her later interviews with Burden, which I received into evidence, and they comprise an elaboration of her original and later complaints within the meaning of s 34M.
All of those conversations amounted to complaints within the meaning of s 34M and were admitted for the purposes of explaining how S’s allegations first came to light and as evidence going to the consistency of conduct by S, but I remind myself that none of them can be received as evidence of the truth of what was alleged by S.
I further remind myself that there may be particular reasons why S complained to her father, her aunt and Burden at the times she did.
In that respect I am satisfied on all the evidence that if the charged conduct occurred, it began in about September 2009 and continued over several weeks until a time close to 6 December 2009.
I further find that it was within days of 6 December that S first complained of it to her father.
The accused’s position was that I ought infer that that complaint came about because of an earlier conversation between S and B when B allegedly asked S whether the accused had touched her on her private parts.
S’s evidence on this matter fluctuated but in the end I found myself satisfied there had indeed been an earlier conversation between the two of them, in the course of which B asked S if the accused had touched her private parts. Where that conversation took place was in issue but it is of lesser importance. I am satisfied it was before B and her mother visited S’s family and I am further satisfied that B told S of the accused touching her during a camping exercise. There was, however, no evidence of the level of detail provided by B as to that touching or that S then gave B any account of the accused touching her.
I have also had regard to the circumstances of that meeting when B and her mother, in S’s presence and that of T and their parents, spoke of B’s complaint and, as well, to the conversations between T and S and the circumstances in which S spoke to her aunt and, later again, Burden.
I will have regard to all those matters in considering the significance of when and how S complained of the alleged conduct.
Uncharged Acts
I remind myself that during the course of the trial, evidence was given that other acts were allegedly committed by the accused which are not specifically charged as separate counts before me. Here, in the nature of count 1, each of the alleged acts committed upon S falls within the description of a sexual offence.
If, however, I were to acquit the accused on count 1, I would then have to consider the relevance of acts allegedly committed upon S other than those identified respectively as founding counts 2 and 3. For reasons which emerge, I do not find it necessary to embark upon that exercise.
I am, however, mindful of the evidence of the accused’s alleged sexual offending against T and against B, and that that is not on trial before me. It was not contended that I ought have regard to that conduct as propensity evidence and I do not. T’s evidence as to these matters is relevant, however, because it is potentially helpful in evaluating S’s evidence. In the case of the alleged conduct towards T, it provides a context in which the alleged offending against S occurred; on their evidence much, if not all, of it occurred in the presence of both of them. It might serve to explain why the accused expected S’s cooperation and silence in the face of what was occurring with her and it might demonstrate a background without which S’s complaints may appear unreal or unintelligible or not fully comprehensible.
I am further satisfied I am entitled to consider whether T’s description of the regularity of the alleged events might serve to explain why S would herself be unclear about the precise dates and details of the offending charged.
Finally, it is of potential relevance in considering the defence contention that there is a reasonable possibility that S’s evidence was contaminated by anything then occurring with T.
As to the evidence of any offending against B, I consider I am entitled to have regard to a complaint of it only insofar as it may tend to explain how the police became involved in and dealt with S’s complaint and, as well, in the separate context, which I discuss elsewhere, of possible contamination.
I remind myself that I should not make use of evidence of uncharged incidents involving S or T unless I accept that they occurred. I may not conclude that just because such other acts might have occurred I ought therefore to convict the accused, nor that if they did occur he is the sort of person who would likely commit the offences charged. The evidence, if accepted, would only be considered by me in my evaluation of the evidence going directly to the charges.
Prior Inconsistent Statements
There was evidence that both S and T had made statements out of court which were inconsistent with the evidence they gave orally. I refer to their earlier s 34CA interviews and their statements D13 and D14.
I discuss these differences elsewhere but remind myself that, ordinarily, prior inconsistent statements are not proffered to establish the truth of what they purport to assert but rather to assist the court in evaluating credit or reliability and deciding whether to accept evidence actually given in court.
Evidence admitted under s 34CA, however, becomes evidence given in court and in that sense I must consider any conflicts between that evidence and the separate viva voce accounts given by each of them, how they touch upon credibility and the extent to which they touch upon important issues or are otherwise peripheral or incidental.
Mental Illness – Intellectual Disability
I remind myself, as I have done elsewhere, that each of S and T suffers from an intellectual disability and I have therefore approached their evidence with considerable caution.
I am mindful that each has a disability of a lower intellectual than biological age. Each is, in that sense, to be regarded as a much younger child and, on the psychological evidence, more vulnerable to suggestion. I have kept that in mind in considering whether particular parts of their evidence are in any manner reliable and/or corroborated.
Evidence of Good Character
I received into evidence a bundle of certificates, D15, relating to the accused’s participation in community employment and community programs generally. Amongst them was a particular document amounting to a reference and commenting favourably upon the accused’s participation in an adult literacy training program for some six months and also in youth and similar cadet organisations.
Those materials generally attest to the accused’s good character and I have considered his previous good character in considering whether I am prepared to draw from the evidence the conclusion of his guilt in any of the offences charged, because it bears on the likelihood of his having committed them.
Concoction/Contamination
The accused ultimately contended that S and T had concocted their accounts of relevant events and more strongly argued that their evidence was likely contaminated by reason of their discussions with B, their presence in the family meetings and their discussions between themselves and with others, including SA and Constable Burden.
I remind myself that were I to consider it a reasonable possibility that the evidence of S as to any of the charged matters was contaminated by such conversations, I would need to pay very careful heed to the nature and extent of that contamination in considering whether the prosecution has established beyond reasonable doubt the reliability of their evidence and the elements of each particular offence charged. Further, if I were to consider that T’s evidence, alone, was, for similar reasons, contaminated, I would need to very carefully consider its corroborative weight.
Similar Fact or Propensity Evidence
Whilst there was before me the evidence of T as to sexual acts said to have been carried out upon her by the accused in the presence of S, the prosecution expressly eschewed reliance upon them as having any evidentiary value in the case against S. Accordingly, to the extent I might have been satisfied that any of those alleged acts involving T occurred, I have had no regard to the fact of their occurrence in considering proof of the case against the accused with respect to the acts allegedly committed against S.
The Evidence Generally
- the evidence of S
I have had regard to the evidence of S as admitted into evidence through exhibits P5 and P6 and, as well, her viva voce evidence.
In her interview P5, she said that she was there to talk about Ian. They were not allowed to see him any more ‘because he was hurting other kids’ and ‘hurting us too’. By that she was referring to herself and T. She was asked how he hurt her and she said he was ‘touching little kids in the private parts’ and he had touched her in her ‘private part’. He had put his hands into her pants and it was uncomfortable. She thought he was just playing a game called ‘touching little kids’. Then she became frightened and it was hurting her because he was touching her private part. He put his hand down her pants and asked her if it felt good. He was rubbing her vagina. He was also touching her on the breast but he only did that once. He squeezed it over the top of her clothes.
It first happened during tutorials at his place on Saturdays and he touched her private parts every Saturday. Her sister T was there when it happened. He sat on a chair and she and her sister stood up. They were wearing clothes but he touched both of them. She said the girl next door, B, had told her that the accused had touched her at a camp and she heard about that when her mother and father talked.
When they were in the shed, she saw the accused touch T. He put his hands down her pants and touched her on the breast over her clothes. She was standing next to T when that happened and the accused did the same to her. She demonstrated using a cup how it was that the accused had put his finger in her vagina. She heard the accused ask T if it felt good when he did that to her and she said no and she was crying.
She went on to say that the accused had been at the house once, in T’s bedroom, and had asked her (S) if it felt good ‘when he did that thingy’ and she had said no, it felt ‘freaky’ and ‘not comfortable’. It was not clear from that account whether she was speaking of an incident of touching that occurred in the bedroom or of a conversation there with the accused.
She said that she was once at a park with the accused and there were swings there and something happened there. She did not expand upon it at that point.
She then described the accused tickling her toes with her shoes and socks off and then he was dancing like a ballet dancer and then he fell over in the shed.
She was asked whether he had ever asked her to do things and she described a couple of incidents but said there was nothing else. She then said that B next door had told her that she had been at a camp with Ian and he had touched her in the bush.
That was the end of that interview, which was on 9 December 2009. On 13 February 2010 she was again interviewed and Exhibit P6 related to that interview. She agreed she was back there because her mother reported that she had been talking with her auntie about things and she might have something else to say. She began by speaking of the accused hurting her friend B and it was of some interest that in each of those interviews her initial focus was upon others being hurt. It appeared to me that she was to some degree attempting to dissociate herself from events affecting her, about which she later spoke. At all events, she said that B told her about the incident at the camp when she came into her house on the next day.
She did not see anybody else get hurt but the accused was playing rough and he ‘makes everyone upset when he does rough things … and uncomfortable … he was hurting other kids … touching other people’s private parts’ and she saw that with her sister.
She then described an incident at a playground when she was sliding down the slide and he caught her at the bottom and they went for a walk to a place near his house, where the accused touched her private parts. They started to do more walking and went over to his house and went for a long walk with Joylene and T and they went down to Jack’s chair. In the park after coming down the slide he had touched her with his finger ‘something really wrong, what he wasn’t meant to do … You’re not, like, meant to do things, like to little kids and um, he was, um, hurting of little kids and um, touching of little kids and hurting other little kids’.
She then said how, when they were in his shed, he pulled her pants halfway down and touched her over her knickers. She went on to relate that he also pulled his pants down and told her to touch him but she refused. He was wearing ‘jocks on with boxers … he had jeans on and then he took them off’. She could see his private part. She was asked what happened and she said ‘I don’t know the story … I finished the story the other day, and that was the true bit, and now it’s really, and its true bit too’. When he asked her to touch him she said no and he said ‘Why not?’ and she said no. She was upset.

Then she described him unzipping his jeans and saying he was doing it because he thought she might like to see it and she said she did not want to. He had her take his shoes and socks off but when pressed, she did not pursue that and started saying the accused had hurt her sister as well. She was returned to the incident she had been describing and said the accused made her stand on a chair and touch him on the legs and roll her hands up to his hip. She repeated that he had touched her on the breast and asked her to massage his shoulders. Then he would have her stand on a chair and he would touch her private parts. He then had her touch him on the breast, rub his hand and put it down his pants, and she had done that, then to pull his private part. She had said no but it had happened. He was sitting on a chair at the time. He asked whether it felt good and she said it was disgusting. That happened only once.
In her oral evidence she provided a careful and reasonably detailed account of events occurring in the shed and in T’s presence but she first spoke of one incident of touching that occurred at an inside office at the accused’s house. Then she spoke of incidents occurring in the shed office when the accused touched her on the vagina more than five times. He touched her on the breast on the same day as he touched her vagina. She said that when the accused asked her to touch him, T was there and there was another time, too, when he asked. He only touched her on the breast once. All the touching happened on Saturdays, but she made the point that touching on the breast occurred on only one of them.
She said there was one occasion of touching when she was wearing a sea cadet uniform but on other occasions she was not, as they usually changed out of their uniforms before tutoring. In fact, she said she never wore her uniform for tutoring.
She agreed that the accused opened the shed doors when they went into tutoring and that Joylene would come in from time to time. She would knock on the door when she did. She probably came in every day and would sometimes stay a couple of minutes. Sometimes she would come back and the accused would get a bit cross about that.
She appeared to understand the distinction between jocks and boxers, but had no recollection of saying to her police interviewer that the accused had worn jocks with boxers.
She was cross-examined at some length about the incident of touching that she said occurred in the park and about who was present and which park it was, but she was reasonably firm about who was present. I have not taken her statement in the police interview to be asserting that the incident of touching occurred in the park containing Jack’s chair and, indeed, it appeared to me that she had then said that they had gone to that particular park after an incident of touching which occurred in another park near to the accused’s house. Other evidence supported that there was a park near to the accused’s house.
She recalled the time when B and her mother came to the house and B said that the accused had touched her on the breasts and private parts. B’s mother was angry and the grown ups were talking about it but her mother did not then ask her whether she had been touched by the accused.
She denied that B had ever asked her whether Ian had touched her and denied being in the park with T and B. When it was put to her that she had said as much to the police officer and she was shown her statement, she agreed that B had asked her that question but denied having been in the park with B. That denial did not sit with the contents of her statement to police D14.
She was asked whether she thought that if she told people Ian was touching her, she would not have to go to tutorials but she rejected that. She rejected the suggestion that she had told Joylene one day that they had seen penises on the Internet and she did not remember finding rude things on it. She rejected that she had told the accused that her uncle had made her and T touch him. She rejected the suggestion that she had said Ian had touched her at her house.
She agreed she had told the prosecutor that she could not remember if the accused had rubbed inside her vagina but she adhered to her evidence that he had touched her on the breast and put his hand down her pants.
Overall, I found her evidence to be convincing and largely consistent. She appeared to be well alert to the difference between truth and lies. On just a few occasions and on peripheral matters only she displayed a level of suggestibility but otherwise I considered she was careful to reject propositions put to her which she did not accept, even when they were of no particular relevance. By way of example, she rejected the suggestion that on most occasions she had afternoon tea with Joylene. She rejected the suggestions that Joylene’s son was with them when they went to the park, that her mother asked her about touching at the meeting with B and her mother, that the accused was at her house playing games with her and B and that the accused did not like taking the dogs for a walk.
I have already commented upon her tendency to depersonalise or deflect the questions about incidents involving herself and to otherwise refer to the accused ‘hurting’ others, and how that appeared to me to be indicative of a level of shyness or reluctance to focus upon and discuss matters of detail affecting her.
She was firm that she was touched on the breast only once and gave a fair estimate of the number of other occasions she was touched, and it is not without significance that those numbers come close to other evidence tending to show that she probably attended tutorials on no more than six occasions.
There were, however, particular aspects of her evidence upon which the defence focussed and which invite discussion.
As to the assertion that she had given a prior inconsistent statement about an alleged touching at her house
I was not persuaded as to that, for the reasons I have mentioned. Her initial police statement did not necessarily describe a touching incident at all and it may have referred only to a conversation she then had with the accused about touching, no doubt one that would likely have made some impression on her.
Tutorials in the inside office
In her interview, S spoke of one occasion when the accused touched her in his office in the main part of the house, but this was not repeated in her oral evidence. Joylene said S and T never went there but I note that T spoke of tutorials in both offices. For reasons expressed elsewhere, I had limited regard for Joylene’s credibility. In the end, I found it unnecessary to resolve this issue. I did not find it necessarily reflected on S’s reliability or credibility.
The incident in the park
The defence pursued this matter at some length and it may well be that at times S gave confusing answers, but it appeared to me that the cross-examination was misdirected because what she had said in her statement was not that that incident had occurred at the park containing Jack’s chair.
The reference to jocks and boxers
Plainly, S referred in her police interview (P6) to the accused wearing ‘jocks and boxers’ on a particular occasion whilst in the shed and I here accept Joylene’s evidence that he did not in fact possess any boxer-style underpants.
In her oral evidence, S said she had no recollection of saying that, nor any recollection of the accused wearing both. Indeed, to wear both would seem an odd thing to do. This conflict was an odd one but did not of itself impair my confidence in S’s credibility.
The conversation with B
There can be no doubt that in a statement provided to police S had related having a conversation in the park with T and B, in the course of which B asked her whether the accused had ever touched her. In giving evidence she denied having been in the park with B and T at any particular time, and at first denied but then later accepted, when shown her police statement, that there had been such a discussion with B. There was thus inconsistency in these accounts and I have considered it in the context of all her evidence.
The sea cadet uniform
She did assert that on one occasion when the accused touched her she was wearing a sea cadet uniform. Other evidence disclosed that she and T always changed clothing before going to tutorials and, indeed, she herself acknowledged that in her oral evidence. There was thus a conflict on this topic but in the context of her age and the regularity of their tutorial attendances, I did not consider it to be one of great moment.
Recent complaint
The accused was critical of the evidence of recent complaint, pointing in particular to the contamination risks inherent in S’s early discussions with police and later her discussions with SV. I will deal in a moment with contamination but I should say that I did not have any regard to them in considering how the allegations came to light or the consistency of S’s conduct in the matter. To the extent it was argued that the conversation with SV had prompted a further or fresh complaint, SV did not appear in her evidence to support that anyway.
I have had regard, for the above purposes, only to the evidence of S’s original complaint to her father.
Concoction/Contamination
As to the matters of concoction and contamination, there were several potential sources and I touch upon them. In doing so, I will speak also of T’s evidence:
·     The accused referred to some evidence that S and T were spoken to by police about other, unrelated allegations prior to the time of their formal interviews and that this in itself created a risk of contamination. There was limited evidence about the content of those other conversations apart from what is contained in the declarations of S and T. I will deal with that in a moment but there was no other evidence from which I could infer as a reasonable possibility that any early discussions with the police contaminated the evidence of either S or T.
·     S related to the police how B had told her the accused had put his hand down her pants. That was the extent of B’s account at that point and it was a potential source of contamination of S’s account, but in the end I did not consider it a reasonable possibility that her evidence was contaminated by what B said. S’s own account of what happened with the accused was considerably more extensive and detailed. She described touching by the accused in several different ways, over and under clothing, in different areas, in specific locations and positions, and in T’s presence. T’s evidence corroborated these matters.
·     There can be no doubt that S told the police that B had asked her at the park, when she was with T, whether the accused had touched her and that in her oral evidence S rejected the suggestion that that conversation had occurred in the park. Wherever it occurred, the potential contamination issue arises from the fact of the question itself, but even allowing that B had previously told S the accused had put his hand down her pants, B then neither provided nor sought any further detail and I do not consider there is any reasonable possibility the question contaminated S’s evidence, nor that of T, which on both accounts was fulsome, detailed and unprompted by B’s enquiry.
·     S then told Burden of being present when B and her mother visited their house and in the course of which B spoke of the accused touching her breasts and putting his hand down her pants. There was no evidence of any greater level of detail than that being then provided by B.
Even so, standing by itself, it is a possible source of contamination of S’s similar complaint and, indeed, that of T. I do not, however, consider it reasonably possible that a limited account of that kind contaminated the very full accounts provided by either S or T of what the accused did with each of them.
·     Both ST and D rejected the suggestion put to them that either had discussed with S or T the detail of what the accused had allegedly done and no other evidence pointed to the possibility of contamination by that means. ST’s evidence was simply that S told him the accused was playing with her and touching her and that he then panicked and rang his brother to discuss what to do. There was no evidence he sought any further detail from S then or later, and all that happened was that B and her mother then came to the house with B’s complaint and the police were called.
·     I have already discussed the evidence of SV and, whatever can be made of it, I do not consider there is any reasonable possibility that it contaminated the evidence of S. If, indeed, SV did ask S whether the accused had made her touch him and if she received an affirmative response, even so, there was no evidence whatsoever that any level of detail beyond that question and answer was suggested or emerged such as to explain the detail later proffered by S and mostly corroborated by T.
·     I have already discussed in some detail the manner in which information was elicited from S by Burden, who at times used prompts or questions of a potentially leading kind, but none of them, in my view, created the risk or led to a reasonable possibility that the answers provided were contaminated by what Burden said.
·     I will discuss separately the possible contamination of T’s evidence arising from her interviews with Burden.
·     There remained the possibility that the evidence of S or T was concocted or contaminated by discussions between them as to what had happened during the tutoring sessions. As to that matter, it was put to T that her account provided to the police was based upon what S had told her, but she rejected that. Otherwise, nothing was put to either of them in cross-examination that there had been such discussions and the only evidence touching upon it was the statement of T in P9 that S had told her the accused had ‘touched her rude bit’. In the absence of any other evidence, I am not disposed to speculate that there was a reasonable possibility of concoction or contamination of one by the other.
·     The defence sought to rely on evidence that S and T had been watching pornographic material on their home computer and that this may have contaminated their evidence. Their own evidence rejected it and I had no confidence in the evidence of Joylene as to what was allegedly said to her about this. T spoke only of seeing a picture of a clothed couple touching each other. I did not consider there was any reasonable possibility of contamination from this.
·     There was then raised by defence the spectre of their evidence in some manner reflecting or being contaminated by events occurring between them and their uncle. They rejected any such occurrences, D and ST rejected the suggestion and again I was left with the evidence of Joylene, in whom I had no confidence. That was not a reasonable possibility.
Notwithstanding the inconsistencies of which I have spoken and after taking account of the warnings I have given myself as to her evidence generally, I should say I had full confidence in S’s general credibility and reliability. She complained to her father of the accused’s conduct reasonably promptly, albeit after it had persisted for several weeks. She was on core matters, save for one, consistent in her evidence, it was detailed and it was not shaken in cross-examination. The core matter on which her evidence wavered was whether the accused had digitally penetrated her or touched her outside her vagina. On that issue and given her age and otherwise firm evidence she had been touched in that region, I did not think her credit was significantly diminished by her evidence on that topic.
I had sufficient confidence in her credibility and reliability that, even absent corroboration, I would have been minded to find myself satisfied beyond reasonable doubt of the truth of her account of things. But, as I find it, there was corroboration anyway.
As to that, the prosecution relied on two aspects, the first being the evidence of T, who on both of their accounts was present during every incident of touching save for the one in the park and the alleged one in the inside office, and, secondly, what it referred to as objective evidence of location, opportunity and grooming. It is convenient then to consider T’s evidence.
- the evidence of T
She, too, took part in video interviews, on 9 December 2009 (P7), 13 February 2010 (P8) and 28 June 2010 (P9), and it is important to consider the contents of those interviews not just in themselves but against the oral evidence she gave.
The first interview, of 9 December 2009 (P7), is remarkable, as I see it, for the level of avoidance and indecision displayed by T. At the outset she was asked by police whether there were any problems she wanted to talk about and she said ‘not that much really’. She was then told that S had said something about things that had been happening at different places that she (S) was uncomfortable about and with somebody she knew and that she said these things had sometimes occurred when T was there. T’s response was vague but she apprehended the discussion was about the accused and she then went on to talk at some length about their involvement in the sea cadets.
She was asked whether she could tell Burden anything about the accused and she said ‘I can’t remember’, that it was a little hard to say, that sometimes he was nice and sometimes he was ‘angry and stuff’. She spoke about the tutoring and said that they sometimes had tutoring in both offices at his house, the one in the shed and the one in the house. She said nothing happened in their tutorials that she could think of, that she did not like the accused but he had not done anything to make her not like him.
She was told that she was there because her parents thought she might be worried about some things that had happened that made her uncomfortable but her response was ‘not really’.
Then it was suggested to her that S had said that some things had happened in the shed during tutorials that ‘made her (S) feel very uncomfortable’. She agreed with that and said she did not like the way he talked and yelled at them about whiteboard pens.
It was further put to her that S had said that the accused sometimes touched her and made her feel very uncomfortable. Her response was ‘Oh yeah, so, sorry, I forgot that ... he just normally touches, touches me for some reason’. He ignored her but still touched her on the chest and ‘probably mostly’ did it to S as well. She ‘probably’ saw it with her own eyes and he touched S on the head, shoulders, hands and legs but nowhere else.
It was put to her that S had said that things had happened when she and S were in the shed with the accused, to which she replied ‘I can’t quite get the picture … he … ignores me and still does it … just scared and stuff … mostly touching them parts that are on there’ (the drawing shown to her) but not on other parts.
It was put to her that S had seen some things happening but she could not remember.
She agreed she had recently spoken to another police officer and pointed to parts where she had been touched and she said she ‘forgot’ but that the accused had also touched her on her private part (indicated on the drawing as the vagina), ‘probably’ with his hands and in a ‘smoothing’ way over her clothes. He had done the same with S ‘once each time’.
As I have said, that interview was somewhat remarkable for T’s initial reluctance to say anything at all, then for her use of the word ‘probably’, then for her reluctance to clearly identify those parts of her body and those of S that the accused had touched. It was evident from the video that she was comfortable only when speaking about peripheral matters.
On 13 February 2010 she was interviewed again (P8) and the interview was introduced by reference to the fact that her mother had contacted the police and informed them that she had remembered some things and wanted to speak of them. T then went on to say that she was worried about ‘what happened and stuff … Ian and stuff’. She was referred to her earlier statement that Ian touched her and said she had not remembered that much more but ‘some stuff …basically he’s been touching in different parts.’ She went on to say that he touched her on the arms and legs and on her bottom half and that he normally did it to S as well after cadets on Saturdays in his shed. When he did it to her (S), she (T) was standing there and ignoring him. He was touching S on the vagina and S was not happy about it. S had her clothes on and he was moving his hands.

When he touched her (T), it was on her bottom and he was moving his hands around over it and rubbing her bottom underneath her clothes. He did that by putting his hand down her pants and touching her on her underwear. He did that when S was there. She tried to tell him to keep his hands out of her pants but he did not listen. That was all that she had remembered that she wanted to tell.
T was interviewed a third time, on 28 June 2010, and I viewed the video of that interview (P9). She was asked why she had come in to see the police again and she said ‘Um, to get my sister into, um, like, in court, um, court, to talk about Ian’. Sometimes he touched her sister (S) but she could not remember a time when she had been there.
Then she went on to say that he normally touched S on the legs and the head and after tutorials he touched her ‘in the rude bit’.
She knew that because S had told her that and S was talking about her vagina. She said she could not remember seeing it happen but then went on to say how he normally ran his hands down S’s legs and slid them back up her legs but she had not looked at what happened after that. He sometimes rubbed S’s neck and normally touched her on the front of her underneath her top. She was reluctant to be drawn on where that was but ultimately said ‘breasts’ and she had seen that happen.
The accused kept doing stuff to her (S), touching her inside her pants, and ‘she normally touches his thing, but not, not with her, under, at the top, not underneath’. He touched S over her underwear with his hands and ‘she sounds as if she’s trying to tell him just to stop … she tries to, um, walk away but, and he keeps pulling her at … he basically … keeps touching her and stuff, and, and then after that … they did, um, they stopped and did more tutor and stuff.’
She then spoke about them going to the park with the accused and playing chasey.
There was then a lengthy discussion about when these events happened with reference to other incidents in her life and eventually she appeared to be saying that it happened some time between S’s birthday and her birthday in 2009; that is, between 27 June and 28 August 2009.
She was asked how many times she saw things happen and she said ‘Probably four times, um, a, a week, whenever he comes in …’.
Those two further interviews with T were again marked by a level of dissociation on her part, by a tendency to distance herself from events, albeit she then appeared to recognise that she was present on particular occasions and gave relatively detailed descriptions of them. They also displayed an obvious level of exaggeration with respect to frequency (for example, the accused cannot have seen S four times a week) and on any account a poor recollection as to timing.
When called to give evidence, she presented in a similar way. She first thought she had spoken to the police about 13 times (albeit there was evidence that there may have been other interviews with them about other matters). She thought she had then spoken about what had happened between herself and the accused and not what had happened with S.
The accused had touched her (T) on the breasts and on the front below her waist on more than one Saturday. It happened ‘basically’ every Saturday. She could not remember a time when it did not happen. When it happened, only the accused and S were present.He touched her on the breasts ten or more times, every time she was there. She also saw the accused touch S on the breasts every Saturday and he also touched S down the bottom at the front, maybe ten times or 20. It happened ‘(b)asically in the shed out the back’.
She then described an incident when the accused was sitting down in his office and asked S to come over to him and he started touching her. It happened like that about three times. He touched S on the breasts under her clothes but sometimes over them. It was the same when he touched her down the front at the bottom. He put his hand under her pants and over her pants and touched her on the ‘penis’, which is a ‘thing that girls have’. She said it is down the bottom at the front and they go to the toilet with it, and boys have one too. She was asked whether S’s pants were always in place and she said ‘basically’ he pulled her pants down and put his hands ‘in her penis’. Her underwear came down, too, and it happened more than once.
In cross-examination she agreed that she and S would change before tutoring and have lunch with Joylene and the accused. Their mother would provide it for them. She agreed that Joylene would often come out during tutorials and would sometimes come into the shed and not always knock on the door. The door was left open. She said she went to the park that had swings with Joylene and the accused. That was not the park with Jack’s chair. She agreed that Joylene made afternoon tea. When Joylene came to the shed, they could hear her coming.
She said that before she spoke to the police, she had not spoken to B about things that the accused had done to her, nor had she gone to the park with both B and her sister.
It was then put to her that in a previous statement to the police she had said she had been at the park with B and S, and B had asked whether Ian had touched her private parts. She said she could not remember any of that, nor telling the police of it, but she agreed that B had told her of the accused touching her (B).
She did remember the time when B and her mother came over to the house to talk about things that the accused had done but she did not know what B’s mother had said the accused had done. She thought the parents were there for a long time and B was upset and her own father was cross. Her mother did not afterwards ask her about whether the accused had done anything to her. She agreed that she spoke to the police after the B visit to her house and she recalled speaking to more than one police officer.
When the adults were talking in her house about B, they did not talk about the accused touching girls on their private bits but she then spoke of an incident when she was present and her parents, grandmother and auntie spoke about it but even then they were not asking her questions about it. They were talking about things the accused had done to S and about him touching S on her private parts.
She was then challenged with the proposition that in her police interview she was simply relating what S had told her but she said no, she had seen the accused touch S and that was the truth.
She was then asked about the computer at her house and how she and her sister used it and how she saw some rude things on it. Two people were touching each other. They had clothes on and they were touching on the leg. She had never seen a penis on the Internet, nor had she told Joylene that she had. What she had seen had just come up unexpectedly and it was a bit gross.
She agreed she had told her mother at the start that she did not want to go to tutoring on Saturdays. She was asked about her uncle but firmly denied that she had told the accused or his wife that he had touched either of them. She denied she had made allegations against the accused because she did not want to go to tutoring and reaffirmed that she had seen the accused touch S. She did not like going to tutoring because the accused kept touching her and her sister.
As to the issues of concoction or contamination of her evidence:
·     There can be no doubt that she and S spoke about at least one thing that the accused had allegedly done, albeit that there was no real evidence as to the detail of what they discussed. I do not consider it a reasonable possibility or inference that T’s own evidence was thus concocted or contaminated.
·     The same can be said of what B told her and what was said when B and her mother visited. Beyond the evidence emerging elsewhere that reference had been made to the accused touching B on the breast and putting his hand down B’s pants, there was no evidence of any other detail having been provided such as to give rise to a reasonable possibility that T’s evidence as to all she spoke of was thus contaminated.
·     There was her evidence of overhearing her family speak of things that had happened to S and that was a potential source of contamination, but there was no evidence as to the detail of that conversation.
·     I have considered the terms of T’s interviews with Burden carefully because there is no doubt Burden called T’s attention to S’s accounts of having been made to feel uncomfortable by the accused, of having been touched by him while they were all in the shed office and of having seen things happen between the accused and T.
These matters were undoubtedly raised with T as a means of eliciting some responses from her and because of her obvious reluctance to fully engage with the topic of Burden’s enquiries. Plainly, they were in the nature of leading questions and I have already had regard to them in the context of the probative weight of what flowed from them.
As to the question of contamination, T’s attention was plainly drawn to what S had said, but in a very limited way. She had, even before those questions, spoken of the accused touching her during their tutorials so I am not disposed to find as a reasonable possibility, that this manner of questioning contaminated what she ultimately disclosed.
I should add here that, in speaking of my findings as to the reasonable possibilities of contamination of the evidence of both S and T, I do not mean to imply that the accused faced some onus of establishing them. The issue of contamination was raised by him and it remained upon the prosecution to exclude it as a reasonable possibility in each instance. Here, I am satisfied it did.
Overall, I found the evidence of T to be less impressive than that of S. It was plain throughout that she had a very limited ability to describe times and frequencies and she proffered some exaggerated and unlikely evidence on these matters. It was plain, too, that notwithstanding her early observations about the accused touching S and her on their bodies, she otherwise wanted to distance herself from any discussion about intimate matters. Notwithstanding her slightly older age, she appeared to have a lesser understanding of what was being put to her than did S. As well and because the original line of police questioning was as to her own alleged experiences of being touched, she appeared to misapprehend that her evidence at the trial was not specifically directed to that but towards what she saw of the accused’s conduct with S.
It is not, of course, necessary for me to make any formal findings about what occurred between the accused and T, but notwithstanding the reservations I have just expressed and in the face of the same warnings I have given myself in considering S’s evidence, I found T’s evidence to be generally credible and reliable. Further, it corroborated S’s account of things in important respects: as to the place where and the circumstances in which the alleged touching occurred, at the least as to the frequency spoken of by S, as to the fact that the three of them were present, that the accused’s touching of S was mostly over her clothes and upon her breasts and vaginal area, that he put his hand down her pants, that there was an incident when S touched the accused on his penis, and that the accused took S’s pants down and touched her on or over the vagina.
She was, as I have said, inclined to exaggerate quantities, for example the number of times she had been interviewed and the number of times she or S had been touched, and her level of detail was less that that of S, but there was nonetheless a core in her evidence that appeared to me to be convincing and unshaken and which supported the evidence of S going to the commission of count 1.
I have considered, as well, the potential for contamination of her evidence arising from the matters mentioned above. I am satisfied there is no reasonable possibility that they or any of them contaminated her evidence or that if they or any of them did, they contaminated it to the extent that it became unreliable on core matters and incapable of corroborating the account of these given by S.
Otherwise, the prosecution pointed to what it said was objective evidence tending to corroborate S’s account and in that respect it referred to uncontested evidence of playful behaviour involving both S and T and the accused, including massaging of shoulders, removing shoes and socks, tickling toes, dancing and trips to the park. It contended that this evidence, along with the opportunity inherent in the tutorial session, was demonstrative of grooming and opportunity.
- evidence of D, the complainant’s mother
D presented as a rather serious but detached woman who had a limited ability to fit recollections within any particular time frame. Even so, she was very firm on the matters that she did remember and reasonably impressive in her responses to challenges on them.
It is evident from all that emerged that she quickly became caught up in the accused’s endeavours and was impressed with his apparent knowledge and worldliness. She had no awareness of his particular skills, but had such confidence in him that she became increasingly involved in the cadet group and to the point where he appointed her as second-in-charge. She borrowed very substantial moneys to fund the corps’ overseas trip for herself, S and T, and as well for the accused’s fare, not at first telling her husband of the latter arrangement.
She could give no direct evidence as to the charged events but she did speak of the accused’s offer to tutor her children, of how they went there on Saturdays and appeared to get on well, although T was on occasions reluctant to go to tutoring. She related how her husband first told her of S’s complaint and how she did not want to believe it. The police visited soon after that.
She appeared quite surprised when it was put to her that the accused had told her of allegations made by the girls against an uncle and flatly denied that such had occurred. S, she said, made things up, like all children, but not things like that.
She could not recall any conference with B or her mother about the accused’s conduct and thought she would have recalled that if it had happened. That level of recollection was odd in the face of her husband’s evidence, but her evidence was generally dispassionate, the circumstances of the visit were not in any way contentious, and I did not think the issue went to her overall credibility.
She said, as indeed ST confirmed, that ST had not liked the accused from the very start and in some ways that diminished the challenge that her husband’s attitude to Ian originated from what he freely acknowledged was his jealousy. She was not herself prepared to say that ST was jealous.
Overall, I had confidence in her evidence and thought she sought to give a truthful account of things.
- evidence of ST, the complainant’s father
He spoke only of having physical illnesses but as his evidence proceeded it also became obvious that he had quite limited intellectual gifts. He suffered from a stutter but his difficulties seemed to me to go deeper than that. He seemed to have trouble grasping what was being put to him or dealing with it in any simple way. His answers were frequently discursive.
He confirmed that he did not like Ian from the start, that he was ultimately jealous of him and that he suspected an affair with his wife. He had not been told by D that she was going to pay Ian’s fare from the loan moneys of $25,000 that he had guaranteed for the overseas trip; he only learned that afterwards.
The evidence of each of them must be seen against the common concession that their marriage was not progressing well anyway and, indeed, they have since separated.
Notwithstanding his personal difficulties, ST appeared to me to be open and frank in what he said. He freely acknowledged that despite his feelings towards the accused, he did not at first believe S’s complaint that he had touched her. He was shocked by it, felt unable to deal with it and his first response was to ring his brother. He was not a decisive man and frankly acknowledged he was pleased when the issue of the accused’s conduct was brought to a head by the subsequent visit of B’s mother.
He said that on that occasion the discussion was about B’s complaint. All the adults and children were then in the lounge room together as matters proceeded and their conversation went on for a long time. He was pressed on its contents. He said that B did speak at the outset but that she provided no more detail than that the accused had touched her.
He and D did not then or afterwards discuss the matter with their children as they were too shocked.
He was a simple, frail and timid man and whilst he was very shaky on matters, I am not satisfied he sought to falsify or exaggerate his evidence.
His presentation was totally at odds with the way the accused’s wife sought to portray him in her evidence and in that respect I note that her description of his conduct towards S and T was not put either to him or to D, so I am without the advantage of hearing what they might have said about such a challenge.
- evidence of SV
The evidence of SV was not generally disputed but its significance was.
She acknowledged that she asked S whether the accused had touched her and where and, further, whether she had been made to touch him. She said that S responded affirmatively to the first question but SV then gave confusing evidence as to S’s response to the second one. At first she appeared to accept she had received an affirmative answer from S but then she said her answer was ‘No’. Otherwise, she agreed that her discussion with S had been mostly conducted by her and had largely comprised a series of questions which invited yes/no answers, but that they had talked about other things, too. She said that S, by speaking, nodding or gesturing, had provided her with some details of what had happened.
In her cross-examination, the spectre of her contaminating the evidence or recollection of S by asking that second question was raised but in the end I was not satisfied there was any good evidence of it. Plainly, something said by S to her prompted a further police interview of S but what it was did not emerge from the evidence, nor was SV challenged as to it.
Ultimately, I was not particularly assisted by her evidence. I did not consider she was seeking to be evasive but I was left in considerable doubt as to its effect.
- evidence of Joylene McLeod
There was then the evidence of the accused’s wife, Joylene McLeod. As I have commented elsewhere, she was significantly disabled as a result of childhood polio and diabetes. She said she was completely dependent upon the accused’s assistance and support. She does not drive and he assists physically and takes her to doctors’ appointments and the like. He administers her injections when she has trouble doing that.
On her account, S and T came for tutorials over about six weeks. She was at pains to stress that in reality the girls spent very little time in their tutorial sessions. They were distracted and were in and out of the shed all the time. She thought they probably received only about five minutes worth of tutoring each time, notwithstanding that they were at the house between 1 p.m. and 2.30 p.m. She said that before tutoring began they, including the accused, all had lunch together. Then afterwards, when they went out to her husband’s office in the shed, she would sit in a chair outside between the house and the shed and would make her way in and out of his office all the time. The shed and the internal office doors always remained open and she would proceed to the office using her walker and without knocking.
She thought that the children were never in the office for more than half an hour and said that as she approached the office with her walker, she could be heard because its wheels squeaked. She was generally dismissive of the effectiveness of the tutorial sessions and she put that down to the children’s lack of concentration.

She then spoke of a conversation with the girls that was initiated by the accused. He came into the house with them and invited them to tell her what they had told him. It was then that they said their uncle G was ‘doing stuff’ with them, touching their private parts. On her account when, a week later, the accused reported the same account by the girls, she spoke to their mother and relayed what they said. She said D was dismissive of it, saying that they could not tell the truth, that they lied all the time.
Even before then, probably a couple of months before, she said, she had rung Family and Community Services and told them she was concerned about the way their father spoke to S and T. She had been to their house and watched him ‘mentally abuse’ them by being ‘really nasty and right up to their face, yelling at them’ (T/S 327). She had given their details to Family and Community Services but felt she had got the brush-off from them.
Even so, it emerged she had not rung them again after hearing of the very serious allegations said to have been made by the girls against G.
She also spoke of a conversation she had with T when she was visiting the girls’ home one day with the accused. As they were leaving, T told her not to look at the computer as there was something rude on it. T then told her and her husband that she was looking at people’s bodies and a man with a big penis. Her response to that was that it was not very nice. She had then discussed that remark with D, who had remarked that her children had to learn somewhere.
She spoke about the park where Jack’s chair is situated and identified it as Jubilee Park. It has no playground and she recalled going there once only and then with S and her son and the dogs, but not the accused. Otherwise she said there was another park with play equipment near to their house. She had been to it a number of times with S and T. She thought that Ian had probably only been there once. That park has some trees but they are sparse and undergrowth is slight.
Separately, she said her husband wears underpants or jocks, but not boxer shorts or silky shorts.
In cross-examination, she said how she believed that D was then trying to ‘put a hit’ on her husband. She knew that from the way D dressed and behaved with him. She flirted. The accused was, however, no more than friendly towards D. He was naïve and dismissive of her suggestion that D had designs on him but she trusted her husband anyway.
She appeared to be sceptical about whether the girls had intellectual disabilities, commenting ‘So they say. I thought they were just mucking around a lot. I think they know how to play the game a bit as well … they say they didn’t know anything. At times I would say “What’s that?”, and they would tell me, and their mother used to talk for them all the time.’ She thought they played ‘dumb’ (T/S 335).
She had been present when their mother asked her husband if he would tutor them, it was not a suggestion initiated by the accused.
She denied that her husband was strict with the girls or that he spoke very strongly towards them but he would speak firmly to get their attention.
On her account, S and T were always pleased to see them, excited to be at their place and anxious to finish lunch and get out for tutoring.
She denied that her husband was affectionate to them, he was just friendly and would brush them off if they came up to him. But they would still approach both of them and fall over them. She once saw S attempt to massage the accused’s shoulders, but she told her to stop it because she thought it was inappropriate as he was not her father.
She was tested on the amount of time any of them would have been alone with the accused in the shed and said it would never be more than 10 minutes. She thought what they were doing there was a waste of time. Sessions were in the shed because it was quieter there – there were no distractions. I found the latter an odd comment because on all the other evidence the house was otherwise empty.
She denied that she was by her evidence, attempting to minimise the amount of time the children were alone in the shed with her husband. She was asked whether she was suggesting there was never a time when her husband and the children were alone together and she responded ‘I was mostly with them, it was a very short time if he was, but I’m outside with them. I was always there … I was outside and I could hear everything what’s going on and I walked in, because quite often my son was in working on a car, I would walk past the room and, as I did, I would look in there … and they were sitting there being silly’ (T/S 342).
She said she spent time sitting outside the house because she felt more relaxed there and because she could not mount the steps to go inside by herself, she always needed help. Having said that, at a later stage in cross-examination she agreed that she was capable of going inside by herself.
She went on to say, when speaking of Jubilee Park, that the trees and bushes there were so thin that it would not be possible to be out of sight there and she would have seen her husband if he had touched S there. But she was sure in her mind that her husband had never taken them on a walk together in the park because she had a good memory.
She then said that she herself had not trusted uncle G, anyway, because the girls were very close to him and he was always buying them gifts.
She said that ST lied a lot and stuttered when he was not telling the truth. She disagreed that he was a mild and polite man.
She was asked whether she suspected something was occurring between her husband and the children but turned a blind eye to it. She said ‘That’s not true. It was all about (G)’ (T/S 348). Her husband was not alone with the children much and would not hurt them, and he had no opportunity at all to touch the girls on Saturdays even if he wanted to.
In re-examination, she went on to say that her son worked on his car most Saturdays. That evidence conflicted with that of D, S and T, who rarely saw him at the house.
Overall, I found Joylene’s evidence to be markedly partisan, defensive and directed as far as possible to denigrating the children, their parents and their uncle.
In the face of incontestable evidence as to their intellectual disabilities, she professed scepticism about this and sought to portray them as cunning and conniving and as taking advantage of the accused’s gesture in offering to tutor them. I thought this was mischievous.
She was highly critical of their father and described a demeanour and presentation which was entirely at odds with the way he appeared in court.
As to D, she may well have had a reason to dislike her, but she was at pains to present her as an uncaring and insensitive mother. Likewise, her observations as to G were seemingly gratuitous and based on very limited evidence.
Perhaps the most telling aspect of her evidence was her attempt to minimise the amount of time the accused could have spent alone with the girls. At one point she said it would have been five minutes at the most and then it was not more than 10 minutes and finally she said there was no opportunity for her husband to have touched the girls if he had wanted to.
She was critical of the girls’ lack of attention or concentration on tutorials and yet, on her own account, she was in and out of the office all the time and otherwise sitting outside and near the entrance to the shed door.
It is, of course, understandable that she would seek to support her husband’s account of things but her attacks on the girls’ family generally, on the girls themselves and her attempt to minimise the opportunity for any private contact between her husband and the girls, led me to conclude that her evidence was heavily biased and quite unreliable. I had no confidence in her credibility or reliability.
Findings
In the voir dire hearing, both psychologists had been anxious to stress the need for simple questions to be addressed to both S and T and otherwise to be sensitive to their suggestibility. The former warning was borne out in a few instances where perverse answers were provided to questions that might more simply have been posed and otherwise I kept carefully in mind in listening to their evidence, the risk of suggestibility. T showed some limited indications of it but not to the point that I doubted her reliability and I did not consider S displayed any marked level of it beyond what might be expected of a child of her intellectual age.
I have otherwise reminded myself of the need to consider with great care the evidence of S, given her age, her level of intellectual development and the fact that her evidence was unsworn. Even so, for the reasons already touched upon, and absent any corroboration, I had confidence in the account she gave sufficient to enable me to be satisfied beyond reasonable doubt of the matters relied upon with respect to count 1; that is to say, on her evidence alone I was satisfied beyond reasonable doubt that in the period between September and December 2009 and on occasions extending over more than three days, and indeed in a period extending over at least six weeks, the accused on one occasion touched her on the breast and over her clothes, on at least four occasions touched her on the vagina over her underclothing, on at least one occasion touched her on the vagina under her clothing and procured an act of gross indecency by inducing her to touch his exposed penis. I am further satisfied that each of these acts was an act of sexual exploitation. I was not, however, satisfied beyond reasonable doubt that the accused on any occasion digitally penetrated her vagina.
Whilst I found T to be a less reliable witness than S, I was nonetheless satisfied as to the credibility and reliability of the core parts of her account, which corroborated not merely the fact, but in significant ways the detail provided by S, of the sexual acts which I have found to be acts of sexual exploitation within the meaning of s 50 of the Criminal Law Consolidation Act.
There was, as well, plain evidence of opportunity and grooming conduct on the accused’s part.
Otherwise I have, for reasons explained and keeping in mind the prosecution onus, rejected as a reasonable possibility that the evidence of S or T was on core matters contaminated or such as to be unreliable.
I am mindful of the accused’s previous good character but, for all the above reasons, I find it proved beyond reasonable doubt that the accused engaged in persistent sexual exploitation of S as is alleged in count 1.
In the circumstances, it is unnecessary for me to make any findings as to counts 2 and 3 but were I called upon to do so, for the reasons already expressed, I would have found the accused guilty on count 3, and on count 2 of the alternative offence of indecent assault in that at the relevant time and place he touched S on the vagina over her clothing and without digitally penetrating it.
For all the above reasons, I find the accused guilty of count 1.