R v Molloy - [2014] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MOLLOY
Criminal Trial by Judge Alone
[2014] SADC 141
Reasons for the Verdict of His Honour Judge Chivell
22 August 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with committing the offence of unlawful sexual intercourse by inserting his finger into the vagina of a five-year-old girl at a school playground. Statements and evidence given by the complainant (at the time of trial aged six), her brother (aged nine) and her cousin (aged seven) – issues of protected witnesses, evidence of children and unsworn evidence. Whether discreditable conduct evidence admissible. Whether prosecution proved digital penetration beyond reasonable doubt.
Verdict: not guilty of unlawful sexual intercourse but guilty of aggravated indecent assault.
Criminal Law Consolidation Act 1935 s 5(1)(a), s 49(1), s 75; Evidence Act 1929 s 9, s 12A(1), s 34, s 34CA, s 34D(1), s 34M(4), s 34P(2) & (3), s 34R(1); Juries Act 1927 s 7(1), referred to.
R v Byerley [2010] SASCFC 3; H, SA v Police [2013] SASCFC 86; R v Maiolo (No 2) (2013) 117 SASR 1, considered.

R v MOLLOY
[2014] SADC 141
Introduction

Michael John Molloy has pleaded not guilty to unlawful sexual intercourse (Criminal Law Consolidation Act 1935, s 49(1)). He has elected to be tried by a judge sitting without a jury (Juries Act 1927, s 7(1)). He was represented by Mr Healy. Ms Attar appeared for the Director of Public Prosecutions.
Particulars of the charge are:
Michael John Molloy, on the 16^th day of November 2013 at Mount Gambier, had sexual intercourse with [A], a child under the age of 14 years, by inserting his finger into her vagina.
Background
On 16 November 2013, a basketball tournament was held at the Mount Gambier North Primary School, in Heath Street, Mount Gambier. The complainant’s mother, ‘M’, drove her children to the school so that her eldest daughter could compete. Her two younger children, ‘A’ (the complainant), aged five, and ‘B’, aged 8, accompanied them. They arrived at the school at around 11 a.m. They all watched the first game, and then went into the town centre for lunch. They returned to the school at about 2.30 p.m. This time they were accompanied by M’s sister and her daughter, ‘C’, aged six.
As soon as they arrived, the younger children were keen to play in a structure called the ‘Mud Hut’. This was situated adjacent to Heath Street. Their mothers gave permission to do so. The three children went to the hut while their mothers went to watch the afternoon game.
When the game concluded, M and her sister went back to the Mud Hut. When they arrived, M noted that there were several other children also in or near the hut, in addition to A, B and C.
M also noted the presence of a young man sitting inside the hut with the children around him. He had a guitar. He told M and her sister that the children had been keeping him company, that they had made him laugh, that B had told him that his father was a policeman in (a country town), and that B had called him a ‘hobo’ (T 107).
There is no dispute that the young man was the accused, Michael John Molloy.
M said that when she arrived, A was hanging upside down on a cross-bar over the entrance to the hut (depicted in Exhibit P2, photograph 47). Her top had fallen down so that her stomach and upper body were visible. M said this bothered her (T 108). She grabbed A and took her down from the bar.
After getting the children in their cars, M and her sister discussed the situation and M then telephoned Sergeant Derek Long, a friend from Mount Gambier police, and reported these events.
Mr Molloy’s Arrest
Soon afterwards, another police officer, Senior Constable Smelt, arrived at the school. He spoke to Mr Molloy. Mr Molloy collected his backpack, guitar case and mobile phone from a power point (depicted in Exhibit P3, photograph 8). By this time, Sergeant Long had also arrived. He searched Mr Molloy’s belongings. Among those belongings were a number of documents, including bank documents, maps and bus concession slips, all of which had crudely-drawn pictures of female genitalia on them, with captions such as ‘Sex with Preteen Girl 6 y.o.’, ‘Sex 8 yo’, ‘Childs Vagina 8 yo’, ‘Rape’ and ‘Child Rape’. Some of the pictures depicted a large penis entering a small child’s vagina. Similar pictures were drawn on Mr Molloy’s guitar, and on various other articles in his possession (see Exhibits P12, P14, P15, P16 and P17).
Mr Molloy was arrested for possession of child pornography.
A later search of Mr Molloy’s mobile phone revealed that from just after midnight until just before 9 a.m. on the morning of 16 November, it had been used to search the internet for child pornography. Among the search terms entered were ‘8yo girls nude’, ‘preteen vag pics’, ‘8yo girl rape porn’, ‘child’s play’, ‘naked girls nudechild’s play’, ‘little nude girls’, ‘little preteen nude girls’ and ‘i will rape a preteen girl today’ (Exhibits P19 and 20).
The Charge Comes to Light
After these events, M took her children to the house of Sergeant and Mrs Long to catch up with Mrs Long and some other ‘policing wives’. This had been arranged earlier. They were there from about 4 p.m. to about 6.30 p.m. After that, M and the children travelled to the house of more family friends. It had been arranged that they would stay the night there. There was another basketball game early the next morning.
At one point during the evening, A came into the room where the group of adults had been talking about the day’s events. M said that she must have heard them talking. M asked A if she was okay, and whether anything else had happened. A told them that the man had said she was very pretty, that he wanted to marry her, that he liked watching her do cartwheels and hanging upside down, because he liked seeing her belly. Upon further questioning, A said she had felt uncomfortable, but that ‘he didn’t do anything’. M said she just ‘skipped off’, apparently unconcerned (T 113-4). This was Saturday night, 16 November 2013.
M and the children returned home on Sunday, 17 November 2013. M said she discussed these events with her husband that night, after the children went to bed. On Monday, 18 November 2013 she was sitting with A on the couch in their lounge room. After waiting until her brother B had left the room, A asked M if she (A) had ‘a scar on her bits’. M told her that she did not. A said ‘I told the man that’. When asked why she was asking, A said ‘The man asked me if I had a scar on my bits and I told him I didn’t and then he asked if he could see’. A told her mother that she pulled her trousers open and he looked in there, then he told her he could not see very well, so he asked if he could ‘feel down there’. She had said ‘Yes’ and he put his hand ‘down there’ (T 114-5). A demonstrated to her how the man had done this, by placing her hand over her genital area, with the fingers pointing down, with the middle finger over the vulval area.
M said she asked A if the man had ‘put his fingers anywhere’, whereupon A became ‘really upset’, put her hands over her ears, and asked her to stop. M hugged her and did not press her further (T 115).
A was interviewed by Ms Kerri Molden, psychologist, on 4 December 2013 at the Child Protection Service at Flinders Medical Centre. Included in a long interview (the transcript of which is Exhibit P4A), A told Ms Molden that:
·the man asked them where the toilet was (p 16);
·she showed him with her arm (indicating pointing) (p 17);
·then:
[K]Yep, okay, so you didn’t go inside the toilet.
[A]I showed him where it was (Demonstrates by motioning with her hand in the air)
[K]You showed him where it was, okay, mmm hmm.
[A]….
[K]Okay. So where were you when the man said do you have a scar on you?
[A]Behind the bush.
[K]Behind the bush.
[A]’Cos he just stopped, ’cos he just stopped there.
[K]He just stopped there, oh okay. Mmm hmm, mmm hmm. Okay. Mmm, hmm. And where was the bush?
[A]Near the hut.
[K]Near the hut.
[A]And, and I do remember where he touched me.
[K]Mmm hmm.
[A]He touched me on the rude part.
[K]On the rude part, oh okay. Mmm hmm. Mmm hmm. Okay.
[A]That makes a funny sound. (Referring to the play doh)
[K]It makes a funny sound, it did, you’re right, okay. So tell me, so you –
[A]’Cos he was looking if there was actually a scar on my …
[K]So he was looking to see –
[A]A scar.
[K]If you had a scar where?
[A]On my rude part.
…
[K]Okay. So, if you had your pants on how did the man look at your rude part?
[A]He opened my pants up.
[K]Oh. Mmm hmm.
[A]’Cos he touched my rude part.
[K]Oh, mmm hmm, and what did he touch your rude part with?
[A]His finger.
[K]His finger, okay. Mmm hmm.
[A]And that was all that he did.
[K]That was all he did.
[A]Mmm hmm. And then, um, mum just rang the Police.
[K]And then mum rang the Police, okay. Mmm hmm.
[A]And took him to jail.
[K]Mmm hmm, and took him to jail, okay. So just help me understand, what, so the man touched your rude part with his finger.
[A]Yep.
[K]Okay and he opened up your pants.
[A](Nods head, indicating yes)
[K]Mmm hmm, okay. So what did the man do, with his finger?
[A]He touched me.
[K]He touched you.
[A]Somewhere private.
[K]He touched you somewhere private, okay. Mmm hmm. Okay. And how did it feel on your rude part when he touched it with his finger?
[A]It feeled uncomfortable.
…
[K]Okay, so I just want to ask you a few more things about what happened with the naughty man. So when the naughty man opened up your pants and put his finger inside your pants.
[A]When?
[K]No, when he did do that, was that on your rude part, was his finger on your rude part, or inside your rude part, or something else?
[A]In and on.
[K]In and on, okay, mmm hmm. And how do you know that it was in and on?
[A]Because I feeled it.
[K]Mmm hmm.
[A]And I knew it.
[K]Okay, because you feeled it and you knew it. Okay, mmm hmm. Mmm hmm. Mmm hmm. And what happened next after he had his –
[A]Finger.
[K]Yeah, on and in your rude part, what happened next?
[A]Um, he, that’s all of it.
(pp 18-24)
·after this he went to the toilet and then he went back to the hut (p 24);
·her mum and (her sister) came. Her mum rang the police, and waited until they came. The police got all his bags. Then he went to gaol (p 26).
Mr Molloy was arrested on the charge of unlawful sexual intercourse within a day or two of these statements being made.
General Directions
I remind myself of the following fundamental principles:
·Mr Molloy is entitled to the presumption of innocence - he is to be regarded as innocent unless and until his guilt has been proved by the prosecution beyond reasonable doubt.
·Each element of the offence must be proved beyond reasonable doubt, and if any one element is not so proved, the appropriate verdict is ‘not guilty’.
·The burden of proving guilt rests on the prosecution. There is no onus on Mr Molloy to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of Mr Molloy.
·Mr Molloy elected to give evidence. He was under no obligation to do so. In doing so, he subjected himself to cross-examination by Ms Attar. He denied the charge, and answered questions about the surrounding circumstances. He should be given credit for his decision to undertake this process in terms of the credibility and reliability of his evidence.
·Mr Molloy’s evidence should be assessed in the same way as the evidence of any other witness. In particular, it should not be given less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Even if I reject his denials beyond reasonable doubt, that does not bolster the prosecution case. For Mr Molloy to be convicted of this offence, I must be satisfied of the strength of the prosecution case beyond reasonable doubt.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. A person may not be convicted on doubtful, insufficient or unreliable evidence. A mere suspicion of guilt, or even if there is a probability of guilt, is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
Elements of the Offence
The prosecution must prove each of the following elements beyond reasonable doubt:
1.That Mr Molloy had sexual intercourse with A. The definition of sexual intercourse includes digital penetration of the vagina or the labia majora (Criminal Law Consolidation Act, s 5(1)(a)).
2.At the time he did so, A was under the age of 14 years.
There is no dispute as to the second element. M, A’s mother, gave evidence that A was born on 22 March 2008 (T 100).
Specific Directions
- Unsworn Evidence
A gave evidence on 7 July 2014. She was then six years old. On the day of the alleged offence, 16 November 2013, she was five years old.
In view of A’s very young age, I formed the view that it was necessary to undertake an inquiry as to whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence (Evidence Act 1929, s 9(1)).
I interviewed A in the witness room (the interview was transmitted to the courtroom by closed-circuit television) and determined that she did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I determined that it was appropriate to permit her to give unsworn evidence, because I was satisfied that she understood the difference between the truth and a lie. I had told her that it was important to tell the truth, and she had indicated that she would tell the truth (Evidence Act, s 9(2)).
If this were a trial by jury, I would be obliged to explain to the jury the reason the evidence is unsworn and, if a party so requests, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. There has been no such request. Mr Healy did suggest strongly in his submissions that there is a need for such caution. He pointed to A’s young age, and the possibility that information may have been suggested to her, perhaps inadvertently, by her elder brother, her mother and others with whom she may have come into contact.
For those reasons, I recognise that there is a need for caution in determining whether to accept A’s evidence and the weight to be given to it. I will keep that need for caution steadily in mind when assessing her evidence.
- Statement of a Protected Witness - A
I have admitted into evidence the statements of A to her mother on 16 November 2013 and 18 November 2013, and to the psychologist Ms Molden on 4 December 2013 (Evidence Act, s 34CA)). I have already given reasons for so doing, but in summary:
The statements had sufficient probative value to justify their admission (s 34CA(1)(a)). This factor was not disputed by Mr Healy.
The protected witness was available to be called as a witness in the proceedings (s 34CA(1)(b)(i)). This factor was satisfied on the basis that the prosecution indicated an intention to call her as a witness. I had conducted an inquiry and determined that she should be permitted to give unsworn evidence (see R v Byerley[1]).
[1] [2010] SASCFC 3
Mr Healy applied for and was given permission to cross-examine the protected witness (s 34CA(1)(b)(ii)). I was satisfied, on the basis of indications from Mr Healy, that cross-examination was likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence (s 34CA(2)) (see H, SA v Police,[2] in which the court held that permission to cross-examine is a single-stage process involving both an assessment of the witness’ capacity to give evidence and whether the cross-examination is likely to elicit the material mentioned in sub-s (2)).
[2] [2013] SASCFC 86
The evidence contained in those statements may be used to prove the truth of the facts asserted in those statements (s 34CA(3)).
It is also necessary to consider the provisions of s 34D(1) of the Evidence Act, which reads:
(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
I shall consider these matters further when I come to assess both the credibility and the reliability of A’s evidence.
Similar procedures were adopted in relation to the witnesses B and C. They had both made out-of-court statements, and were also called to give oral evidence. I will deal with those issues when I come to discuss their evidence.
- Discreditable Conduct Evidence
The evidence of the contents of Mr Molloy’s mobile phone, and of the pornographic drawings and annotations which I have described earlier, was admitted pursuant to s 34P(2)(a) of the Evidence Act. I refer to my ruling dated 4 July 2014.
As I believe I made clear in my earlier ruling, the evidence has been admitted as being circumstantial evidence which is highly probative of Mr Molloy’s state of mind, his motive for being present with the children in the circumstances, and his motive for committing the alleged offence. I regard these as permissible uses of the evidence within the meaning of s 34P.
Ms Attar expressly eschewed any reliance on propensity reasoning in relation to this evidence. For that reason, I had regard in my earlier ruling to s 34P(2)(a) alone.
However, on further reflection, in my opinion the purposes for which Ms Attar suggested that the evidence may permissibly be used, do contain aspects of propensity reasoning. For example, to speak of Mr Molloy’s motive for being present with the children is to suggest that he was sexually attracted to them. In the same sense, to speak of Mr Molloy’s motive for committing the alleged offence, is to speak of his sexual attraction to the children.
In R v Maiolo (No 2),[3] Peek J wrote, at [86]:
Sexual attraction evidence is a species of propensity evidence and a legitimate purpose of propensity evidence is to reason that the accused is likely to have committed the offence(s) charged. Accordingly, a broad warning against any use of reasoning via propensity evidence is not required. However, what is required is a warning against impermissible uses of propensity evidence …
[3] (2013) 117 SASR 1
That being so, to be admissible, the evidence must also satisfy the test in s 34P(2)(b), which states:
(b)in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.

As I stated in my earlier ruling, in my opinion the evidence has high probative value. I believe that the description ‘strong probative value’ in s 34P(2)(b) is also appropriate to describe the evidence.
For those reasons, in the sense in which the evidence constitutes propensity reasoning, it is permissible propensity reasoning within the meaning of s 34P.
Section 34P(3) provides that in the determination of the admissibility of the evidence, I must have regard to whether the permissible use of the evidence is, and can be kept, sufficiently separate and distinct from the impermissible use of such evidence so as to remove any appreciable risk of the evidence being used for that purpose.
Clearly, I must direct myself appropriately so as to ensure that those uses are kept separate and distinct.
Furthermore, s 34R(1) provides:
(1) If evidence is admitted under section 34P, the judge must (whether or not sitting with a jury) identify and explain the purpose for which the evidence may, and may not, be used.
Having identified the permissible uses of the evidence, it is therefore necessary for me to identify the impermissible uses of the evidence.
Section 34P(1) of the Evidence Act is as follows:
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a)     cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b)     is inadmissible for that purpose (impermissible use); and
(c)     subject to subsection (2), is inadmissible for any other purpose.
In Maiolo (No 2), Peek J identified the following broad categories of impermissible propensity reasoning:
(1)substituting propensity evidence for a critical consideration of the specific charges
His Honour wrote, at [87]:
Where sexual attraction evidence (as a species of propensity evidence) is being considered, the jury may legitimately reason that the effect of such evidence may be that the accused is likely to have committed the offence(s) charged but they may not simply assume that that evidence necessitates that he must have done so. The jury must be directed that even if they accept as proven that the accused had behaved in a similar way previously, and perhaps on many occasions, that does not mean by itself that he must have done so on the particular occasion(s) specified in the charge(s). The jury must be effectively directed that our system requires proof of the particular charge(s) irrespective of whether a similar course of criminal conduct is established by the overall effect of the evidence in the case.
(2)(failing to observe) the distinction between mere sexual attraction and the tendency to act upon it
His Honour wrote, at [90]:
Allied to the above discussion is the important point that even if sexual attraction is proven by prior uncharged acts evidencing it, that does not mean that the defendant necessarily acted upon that attraction or motive on the particular occasion to which the specific charge(s) relates. Thus, in HML v The Queen, Gleeson CJ emphasised:
[11] The kind of similar fact evidence in question, that is, a complainant’s evidence of uncharged acts, even when received and used as evidence of motive, is unlikely to compel, as a matter of logic, a conclusion that the charged offence or offences occurred. To prove that a person did something many times does not compel a conclusion that he did it again. However, it might make it more likely that sworn testimony that he did it again is true. People do not act in accordance with all their inclinations at every opportunity, but proof of a person’s inclinations may provide strong support for direct testimony as to that person’s conduct. …
Mr Healy, in his closing address, strongly emphasised this distinction in the present case. I will discuss this issue again later in these reasons;
(3)(failing to observe) the distinction between general and specific propensities
His Honour wrote, at [98-9]:
The nature of the general/specific propensity distinction has been further considered by the South Australian Court of Criminal Appeal in R v S, PC. The appellant there had been convicted of charges of indecent conduct toward a young male. The appellant was in possession of a photograph of the young male naked and this evidence was, in effect, left to the jury on the basis of the appellant’s sexual passion for young boys generally. Duggan J (with whom Anderson and Kelly JJ concurred) stated:
[26] … The evidence was left to the jury as evidence of mere disposition. It was suggested by the prosecution that the appellant had a general disposition to engage in sexual conduct with young boys. The evidence of this disposition was not put forward as an item of circumstantial evidence so as to invite coincidence reasoning; nor was any other relevance suggested apart from general disposition. As Gleeson CJ pointed out in HML v The Queen, in the absence of some purpose beyond general disposition there is a clear danger of prejudice in the improper use of such evidence.
[27] In the circumstances there was a real risk of a miscarriage of justice arising from the improper use of the evidence. In my view, the appeal must be allowed and the convictions set aside.
Importantly, his Honour proceeded to state that “[t]he situation would have been different if the evidence had been led to establish a particular disposition as opposed to a general disposition”. His Honour then referred to passages in HML v The Queen and concluded (in relation to the facts in R v S, PC):
[30] Although the evidence of the taking of the photographs could not be used to establish that the appellant had a general sexual propensity for young boys, it would have been open to the trial judge to admit the evidence on either or both of the bases referred to in the judgments of the members of the High Court in HML v The Queen. The evidence could have been used to establish that the appellant had a particular sexual interest in the complainant, rendering it likely that he committed the offences with which he was charged. The use of the evidence in this way would appear to satisfy the Pfennig test as explained by Hayne J. On the other hand, the evidence could have been admitted on the basis that it was relationship evidence in the sense described by Kiefel J. Admissibility on these bases would be subject to the further assessment as to whether the probative value of the evidence exceeded its prejudicial effect.
I indicate, for the purposes of these reasons, that I have paid careful regard to the observations of Peek J which I have set out above, and have borne the warnings he has suggested steadily in mind when analysing the credibility and reliability of the prosecution evidence in this case. In doing so, I am satisfied that the permissible uses of the evidence can be kept sufficiently separate and distinct from the impermissible uses of the evidence as outlined above, so that there is no appreciable risk of the evidence being used for that purpose (s 34P(3)).
- Evidence of a Child
Section 12A(1) of the Evidence Act provides:
(1) In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—
(a) the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and
(b) a party asks that the warning be given.
Neither party asked me to give the warning described in s 12A(1)(a) to myself, but in any event, I do not consider that there are, in the circumstances of this particular case, cogent reasons, apart from the fact that A is a child, to doubt the reliability of her evidence. I will discuss the submissions of Mr Healy as to why I should doubt A’s evidence, and the reasons why I consider these submissions should be rejected, later.
Prosecution Case
- Agreed Facts
The following facts were agreed by counsel (Evidence Act, s 34). I therefore find those facts proved without the need for evidence to be called:
1.Exhibit P4 is a disk that contains the footage of the interview conducted by Kerri Molden, a psychologist, with [A], at the Flinders Medical Centre, Adelaide, on 4 December 2013. That interview commenced at 11:40 am and concluded at 12:43 pm.
2.The transcript marked exhibit 4A was read and verified as accurate by Kerri Molden.
3.Exhibit P5 is a copy of the picture marked by [A] during the interview with Kerri Molden on 4 December 2013.
4.The disk marked exhibit P6 is a disk that contains the footage of the interview conducted by Senior Constable Jane Smith with [B] at the Mount Gambier Police Station on 25 November 2013. That interview commenced at 11.10 am and concluded at 12.05 pm.
5.Senior Constable Smith arranged for a transcript to be prepared of that interview and verified it as accurate. That transcript has been marked exhibit P6A.
6.The picture exhibit P7 is the picture drawn by [B] during the interview with Senior Constable Smith on 25 November 2013.
7.The “Preventing Crime Personal Safety Handbook”, exhibit P8, is a booklet marked by [B] during the interview with Senior Constable Smith on 25 November 2013.
8.The disk marked exhibit P9 is a disk that contains the footage of the interview conducted by Senior Constable Jane Smith with [C] at the Mount Gambier Police Station on 10 December 2013. That interview commenced at 9.05 am and concluded at 9.45 am.
9.Senior Constable Smith arranged for a transcript to be prepared of that interview and verified it as accurate. That transcript has been marked exhibit P9A.
10.The picture exhibit P10 was drawn by [C] during the interview with Senior Constable Smith on 10 December 2013.
11.The accused was the author of the hand writings and drawings on the documents and maps now marked exhibits P11 and P12 and the pictures and drawings on the guitar exhibit P15.
12.The photographs in the booklet exhibit P2 were taken on 19 November 2013.
13.The photographs in the booklet exhibit P3 were taken on 27 June 2014.
14.It is agreed that if [B] had been asked in evidence whether there was only one occasion when [A] walked away from the hut with the man his evidence would have been that there was only one such occasion.
15.The Samsung mobile phone seized from the accused on 16 November 2013 was taken to the Electronic Crime Branch of the South Australia Police Force on 25 November 2013.
16.The data extraction process was undertaken in relation to Samsung mobile phone seized from the accused on 16 November 2013 at the Electronic Crime Branch of the South Australia Police by Richard Billington on 27 December 2013.
17.When spoken to by Andrew Smelt at the Mount Gambier North Primary School on the afternoon of 16 November 2013 the accused indicated he was staying with a friend named James who lived at “3 Cas”.
18.At 5.15 pm on 16 November 2013 at the Mount Gambier Police Station Sergeant Derek Long commenced to look through the Samsung mobile phone seized from the accused.
19.Sergeant Derek Long spoke to the accused in relation to other matters at 6.21pm at the Mount Gambier Police Station on 16 November 2013.
It is unclear whether item no. 14 constitutes a ‘fact’ within the meaning of s 34. An agreement about what a witness’ evidence would have been does not, it seems to me, constitute evidence of the fact asserted if the evidence had been given. For example, it does not constitute B’s evidence that there ‘was only one such occasion’.
In case I might be accused of pedantry, I should indicate that I accept that the agreement does at least constitute an indication by the defence that there is no dispute about that fact.
- Evidence of A
I have already outlined what A told her mother on 16 and 18 November 2013, and what she told Ms Molden, the psychologist, on 4 December 2013. What she said in these statements is evidence of the truth of the facts asserted in those statements (Evidence Act, s 34CA(3)).
It is agreed that the video recording of the interview is Exhibit P4. Exhibit P4A is a transcript of the interview, which was admitted as an aide-mémoire to the contents of the disk. Exhibit P5 is a document marked by A during the interview on the drawing of a child, indicating that the area of her body to which she referred as her ‘rude part’ was the vulval area.
Ms Attar did not ask A to go through the entire scenario again in examination-in-chief, but merely asked her to elaborate on a few issues. For example, A was asked to describe what she called ‘this bar thing’ when she was describing the cross-beam of the hut in photograph 47 of Exhibit P2 (T 48).
A was a little vague about the location of the bush which she described to Ms Molden. When asked whether, when referring to the bush, she was referring to bushes in Exhibit P3, photograph 42, A said, ‘I think it was – I think it was at that bush that I was telling you, I think’ (T 50).
A was also vague about the location of the toilets she had pointed out to Mr Molloy. She referred to the toilets with the red door in Exhibit P2, photograph 18. She said: ‘I think I showed him to the toilet where they’re red and it’s 18’. However, she added, ‘I don’t know. Because it was a very long time ago’ (T 50).
In cross-examination, A contradicted her mother, saying that her statement to M that the man had touched her ‘rude part’ was made when they were at their friends’ house on the evening of 16 November 2013 (T 54). Later, when asked whether this conversation occurred on the same day that she was at the school, she replied, ‘I’m not quite sure’ (T 55). M told the court that A did not make this disclosure until 18 November 2013. I will refer to this later.
When Mr Healy put to her in cross-examination that B and C also went with her to show the man where the toilet was, A was quite specific: ‘No, I just showed him. And then he stopped at this random bush and he touched my rude part’ (T 57).
When pressed, A began to waver. After giving an answer that while they were near the bush, the man said that he wanted to marry her, Mr Healy asked:
Q.Are you sure he said that he wanted to marry you, [A].
A.I think. I’m not lying at all. I think he said that.
Q.You think.
A.I don’t know.
Q.But you’re not sure.
A.Yeah, but he probably did because I said it on the video, I think.
(T 57-8)
There are various other examples in the transcript of where A started with a definite proposition and then responded with ‘I don’t know’ or ‘I think’ when challenged in questioning.
At times, A’s evidence was remarkably perspicacious for a child of her age. When she was describing where she and the man moved to, she said:
A.Well, there’s the – these, there’s a hut and then you walk – you walk to the right and then you walk – is that way is south? And then you walk to the south and then there’s – and then you stop and then there’s the dark grey.
Q.Yeah, that’s right, okay.
…
(T 59)
A was indeed right; the direction she indicated was south. This is evident from the diagram Exhibit P1. Later, A said:
Q.    On the other side of that gate is the mud hut, isn’t it.
A.    Yep. It’s – the – I think it’s the west, is it, that side? The west.
Q.    Okay. The west. That’s probably true actually …
(T 60)
Again, referring to the diagram, A was indicating a westerly direction.
Finally, Mr Healy began directly contradicting A. At T 61 he said:
Q. But you didn’t go into the bush, did you.
A. No, I don’t think.
It must be observed that at no stage did A suggest that they did go ‘into’ a bush. She said these events happened ‘at’ or ‘behind’ or ‘near’ a bush.
Then the following passage of evidence took place:
Q.You said in your video ‘Maybe it was just a little bit of my clothing, or maybe it was my pants’. Do you remember saying that.
A.Yep.
Q.What do you mean.
A.I think it was just a little bit of my pants. I don’t know.
Q.What do you mean by that, [A]. What was a little bit of your pants.
A.Well, there might have just been a little bit of – of that thing that came off and it might have been – and there might have been a little hole in my underpants. It might have went through my underpants or it might have – well, and then he thought that it might have been a scar.
Q.The man didn’t see your rude part, did he.
A.I’m not sure, because I didn’t see him looking there, I think.
Q.You didn’t see him looking at your rude part.
A.I’m not sure.
Q.He didn’t touch your rude part, did he.
A.Well, I think he just put his hand on it and put his hand in my pants.
Q.He didn’t touch you – he didn’t open up your pants, did he.
A.Well, he didn’t unzip the zipper, he just put his hand in my pants.
Q.He put his hand near your pants.
A.No, in my pants, but he didn’t undo the zipper, he didn’t.
Q.He didn’t put his hand in your pants, did he.
A.He did.
Q.And he never touched you on the rude part, did he.
A.Yep, he did. He did touch me on the rude part.
Q.And he didn’t put his finger on your rude part, did he.
A.I’m not quite sure, but he didn’t put a stick on it, no way.
Q.He didn’t put a stick on it.
A.He didn’t put any yucky things like that on it.
(T 62-3)
It is obvious from this passage that A started out being definite that the man did touch her ‘rude part’. Mr Healy then put to her three times that the man did not do so, and on each occasion she replied that he did. On the fourth occasion he put the same proposition to her, she then replied ‘I’m not quite sure, but he didn’t put a stick on it, no way’. Finally, Mr Healy asked, for the fifth time:
Q. And he didn’t put his finger in your rude part, did he.
A. I’m not sure.
(T 63) (my emphasis)
I do not accept that this cross-examination should cause me to doubt A’s credibility or reliability. I regard it as a very clear example of a little girl buckling under the pressure of repetitive questioning by an adult, and seeking to divert the pressure by, for example, talking about a stick.
This issue is also illustrated by the following passage:
FURTHER CROSS-EXAMINATION BY MR HEALY
Q.    [A]
A.    Yep.
Q.    Did somebody tell you to make up a story about a man touching your rude part.
A.    No, I don’t think.
Q.    Have you made up that story, [A], about a man touching your rude part.
A.    I don’t know.
Q.    You don’t know if you’ve made it up. You could have made it up.
A.I don’t know. I have never made up a story, but I have about different things, but not about that.
Q.So you’ve made up stories about different things.
A.Yes.
Q.You’ve made up a story about this, haven’t you, [A].
A.No.
(T 64)
Again, A’s vacillation under repetitive cross-examination is apparent. It was readily apparent that she was struggling to deal with being directly contradicted by an adult questioner.
Again, I reject the suggestion that such cross-examination should cause me to doubt the credibility or the reliability of A’s evidence.
- Evidence of B
On the date that B gave evidence (8 July 2014), he was nine years old, it was 18 days before of his 10^th birthday (T 72).
In view of B’s young age, I formed the view that it was necessary to undertake an inquiry pursuant to s 9(1) of the Evidence Act 1929 as to whether he had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.

A similar procedure to that adopted in relation to A was followed in relation to B.
I interviewed B, who was in the witness room (the interview was transmitted to the courtroom by closed-circuit television), and determined that he did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Further, I determined that it was appropriate to permit him to give unsworn evidence because I was satisfied that he understood the difference between the truth and a lie. I told him that it was important to tell the truth, and he indicated that he would tell the truth (Evidence Act, s 9(2)).
If this were a trial by jury, I would be obliged by s 9(4) of the Evidence Act to explain to the jury the reason the evidence is unsworn and, if a party so requests, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. There has been no such request, but, again, Mr Healy suggested in his submissions that there is a need for such caution, having regard to B’s tender age and the possibility that information may have been suggested to him, perhaps inadvertently, by his mother and others he may have come into contact with.
For those reasons, I accept that there is a need for caution in determining whether to accept B’s evidence and the weight to be given to it.
- Statement of a Protected Witness - B
Evidence of an interview between Senior Constable Jane Smith and B, A’s elder brother, conducted at Mount Gambier on 25 November 2013, was admitted pursuant to s 34CA of the Evidence Act. It is agreed that the record of that interview is Exhibit P6. A transcript of the interview was admitted as an aide-mémoire (Exhibit P6A). A diagram drawn by B during the interview is Exhibit P7.
The statements had sufficient probative value to justify their admission (s 34CA(1)(a)). This factor was not disputed by Mr Healy.
The protected witness was available to be called as a witness in the proceedings (s 34CA(1)(b)(i)). This factor was satisfied on the basis that the prosecution indicated an intention to call him as a witness, and I had conducted the inquiry and made the determination that he was able to give unsworn evidence as allowed by s 9 of the Evidence Act (see R v Byerley;[4] see also H, SA v Police,[5] in which the court held that permission to cross-examine is a single-stage process involving both an assessment of the witness’ capacity to give evidence and whether the cross-examination is likely to elicit the material mentioned in sub-s (2)).
[4] [2010] SASCFC 3
[5] [2013] SASCFC 86
Mr Healy applied for and was given permission to cross-examine the protected witness in principle (s 34CA(1)(b)(ii)).
I was satisfied, on the basis of indications from Mr Healy, that cross-examination was likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence (s 34CA(2)).
The evidence contained in the statement may be used to prove the truth of the facts asserted in that statement (s 34CA(3)).
It is also necessary to consider the provisions of s 34D(1) of the Evidence Act, which I have already set out.
I shall consider these matters further when I come to assess both the credibility and the reliability of B’s evidence.
B’s description of the events is encapsulated in the following passage of the conversation with Senior Constable Smith on 25 November 2013:
[B]So I was in the basketball stadium and then I said to mum where’s [A] and [C] and she said at the hut so I walked down to the hut and when I walked in there was this guy and umm was like whoa and [C] and [A] said oh this guy’s telling us stories and everything. And then [A] said Oh [B] thinks that you’re a hobo and then he’s just like oh yeah really. And then I’m I think that this is a hobo tent umm and then when I came in he said urr umm I said to him what do you do for a living? And he said I play guitar. And I said can you play us some stuff and he said yeah I’ll go get my guitar it’s underneath the tree over there. So he went and got it and he said hey come over here and sit on my lap and I’ll help you play the guitar. So I go like I went over there and he gave me the guitar and he said just be careful because it’s a two thousand dollar guitar. And so I played it and then he said oh do any of you know where the toilet is? And then I’m just like yeah do you want me to take you? And then he said no [A] that little girl over there can. And then I was watching them until they walked to the toilet and then I turned around and talked to [C] for a bit and there was a short period of time when I wasn’t there and [A] says that he touched him, touched her but yeah I don’t I think he did but like there was a short period of time when I wasn’t there.
[JS]Okay.
[B]And yeah so I just was talking to [C] and he always just said oh hectic bro and when they were at the toilet [A] said to me that he said that if you were younger I would if I was younger urr he would marry, marry [A].
[JS]Oh okay so she told you that?
[B]Yep.
[JS]She said that um huh.
[B]And when we were, when, when he, whenever he smiled his eyes like went up like just like that…
[JS]Oh okay.
[B]And umm then mum came…
[JS]Um huh
[B]And he said no there was two other guys playing in the playground that I knew and umm I just said hey come over and listen to this guy play his guitar, and they came over and there he was just playing his guitar to us so we just sat down on the wall and we listened to him and the mum came and said oh hello how are you? Come on guys and then she’s just oh who are you? And then he’s just like oh I can’t tell anyone my name and it was just like okay come on kids we need to go. And then [A] told the story to mum and then yeah we called the police and he had to go to gaol.
(pp 5-6)
The following further points emerged:
·The man said to A that she had a ‘nice tummy’ and that ‘if I was younger I would marry you’ (pp 12-13). (Later in the interview, at p 32, B said that he did not hear the comment about marrying A, he said that A had told him that.)
·While the man was playing his guitar, he was trying to use his iPhone (p 17).
·C went over and sat on the man’s lap while he was playing the guitar (p 18).
In evidence-in-chief, Ms Attar did not lead B through the entirety of his statement to Senior Constable Smith, but rather highlighted specific points. For example:
·when A was hanging upside down and her clothes ‘went up and you could see her tummy’, the man said that she had a ‘nice tummy’. He said this once. He said ‘Oh that’s cool, keep on doing that’ (T 74, 75);
·when the man went to the toilet with A, B and C were still inside the hut. He said:
I saw them go through the gate and then there’s another line of fence and then there’s a gate, they went through that, they went to those basket rings and then they went behind – past the wall, under a verandah and went to the toilets.
(T 75-6)
It is noteworthy that B gave this evidence without being referred to the plan, Exhibit P1. However, his evidence corresponded with the position of the gate in Exhibit P2 photograph 42, the further gate in Exhibit P3 photograph 4, the corner of the building in Exhibit P3 photograph 9, the basketball rings in Exhibits P11 and P14, and the toilets beyond the corner of the building in Exhibit P3 photographs 15 to 18;
·B said that the man and A turned left to a verandah and then went down to the path to the toilets. He said he could not see them after they turned left (T 79).
Some of the points elicited by Mr Healy in cross-examination were:
·B said that he went with A and the man to the first gate (the one depicted in Exhibit P2, photograph 42). B pointed towards the toilets and then he returned to the hut. He denied that A returned to the hut with him (T 80);
·B said that he heard his mother use the word ‘paedophile’ while she was talking to someone on the telephone (T 81). This evidence corresponds with M’s evidence that the word was used in one of her conversations with her friends on the evening of 16 November 2013 (T 117);
·B heard A tell their mother that ‘(t)he man touched me’, their mother asked where, and A told her (T 82);
·after A and the man left for the toilets, A returned to the hut by herself (T 82);
·B did not hear the man say he wanted to marry A if he was younger. A told him that (T 83).
- Evidence of C
On the date that C gave evidence (8 July 2014), she was seven years old (T 90).
In view of C’s young age, I formed the view that it was necessary to undertake an inquiry pursuant to s 9(1) of the Evidence Act 1929 as to whether she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
A similar procedure to that adopted in relation to A was followed in relation to C.
I interviewed C in the witness room (the interview was transmitted to the courtroom by closed-circuit television) and determined that she did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. Further, I determined that it was appropriate to permit her to give unsworn evidence because I was satisfied that she understood the difference between the truth and a lie. I told her that it was important to tell the truth, and she indicated that she would tell the truth (Evidence Act, s 9(2)).
If this were a trial by jury, I would be obliged by s 9(4) of the Evidence Act to explain to the jury the reason the evidence is unsworn and, if a party so requests, warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. There has been no such request, but, again, Mr Healy suggested in his submissions that there is a need for such caution, having regard to C’s tender age and the possibility that information may have been suggested to her, perhaps inadvertently.
For those reasons, I accept that there is a need for caution in determining whether to accept C’s evidence and the weight to be given to it.
- Statement of a Protected Witness - C
Evidence of an interview between Senior Constable Jane Smith and C, A’s cousin, conducted at Mount Gambier on 10 December 2013, was admitted pursuant to s 34CA of the Evidence Act. It is agreed that the record of that interview is Exhibit P9. A transcript of the interview was admitted as an aide-mémoire (Exhibit P9A). A diagram drawn by C during the interview is Exhibit P10.
The statements had sufficient probative value to justify their admission (s 34CA(1)(a)). This factor was not disputed by Mr Healy.
The protected witness was available to be called as a witness in the proceedings (s 34CA(1)(b)(i)). This factor was satisfied on the basis that the prosecution indicated an intention to call her as a witness, and I had conducted the inquiry and made the determination that she was able to give unsworn evidence as allowed by s 9 of the Evidence Act (see R v Byerley;[6] see also H, SA v Police,[7] in which the court held that permission to cross-examine is a single-stage process involving both an assessment of the witness’ capacity to give evidence and whether the cross-examination is likely to elicit the material mentioned in sub-s (2)).
[6] [2010] SASCFC 3
[7] [2013] SASCFC 86
Mr Healy applied for and was given permission to cross-examine the protected witness in principle (s 34CA(1)(b)(ii)).
I was satisfied, on the basis of indications from Mr Healy, that cross-examination was likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence (s 34CA(2)).
The evidence contained in the statement may be used to prove the truth of the facts asserted in that statement (s 34CA(3)).
It is also necessary to consider the provisions of s 34D(1) of the Evidence Act, which I have already set out.
I shall consider these matters further when I come to assess both the credibility and the reliability of C’s evidence.
C’s initial summary of what happened was:
·[C] Well I went to watch my cousin play basketball and my two other cousins, [B] and [A] went to show me a little hut and we were playing in there and my cousin [B] found some little brushes and we started sweeping in there. And then this man came over and he came in and asked us where our parents were and we told him where they were. And then he said he needed to go to the toilet so all went with him. And then we pointed it out to him halfway and he went into the toilet and then we came back and we started talking about things cos we thought that he was a bad person because umm people that we don’t know about never came to talk to us Before…
[JS]Um huh.
[C]And then he came back and he just started playing the guitar and stuff and we were showing him tricks and that’s all I remember.
(pp 4-5);
·that A was showing the man ‘a little trick’ and was hanging upside down (p 6);
·that she heard the man say to A that she had a ‘cute tummy’ (p 6);
·after the children pointed out to the man where the toilet was, ‘we all went back together and the man was still in the toilet when we ran back’ (p 11);
·she denied that she played the man’s guitar (p 14);
·she denied that she sat on the man’s lap (p 16);
·as to whether A was alone with the man at any stage, the following exchange took place:
[JS]Okay alright now umm was there any bits where you were just with [B]?
[C]Umm there was one bit where I was just with [B] and that was when [A] was with the man outside and they were looking at the little symbol that was on the back of the hut and me and [B] were in the hut just talking to each other and that was the only time when [B], when and [sic] the man were with each other alone, that was the only time.
(p 16)
When C gave oral evidence, the following points emerged:
·as to whether A was alone with the man at any stage, this exchange occurred:
Q.Was there any time when you were in the hut with [B] just the two of you when you couldn’t hear any talking outside.
A.[A] and – [A] and the man did go out a little bit far away from the hut and that – and that was just me and [B], we couldn’t hear them.
Q.Is that something you saw, that they went a little bit away from the hut.
A.Yes.
Q.Where did you see them go.
A.They just went kind of near the toilets but none of them needed to go.
Q.Which toilets did you see them go near.
A.They went to the close ones because they didn’t go very far away.
Q.Where were you when you saw them do that.
A.I was just outside the door of the hut.
Q.Was that before or after you had gone halfway.
A.After.
(T 93)
In cross-examination, C’s evidence included the following:
·as to whether C had any conversations with A about what happened with the man:
A.I said like things like ‘What were you doing a couple of times and you went outside?’ and because I was a little bit worried that she might have been hurt or something so I asked her a couple of questions.
Q.What did she tell you.
A.When I – when I said ‘Did anything happen?’ she just said ‘All I did was just sit out there with the man and I found a bit of glass and there was a little purple bit on it’ and she said that they just looked at it.
Q.And you remember telling Jane that there was some glass out – just outside the hut.
A.Yes.
Q.And you told Jane too, didn’t you, that the only time it was just you and [B] was the time that [A] and the man were outside the hut looking at the symbol.
A.Yes.
Q.And was that symbol – was that the squiggly drawing on the outside of the hut.
A.Yes.
(T 94-5)
·when pressed about whether she heard the man say that [A] had a ‘nice tummy’, she gave the following answers:
Q.    And isn’t it the case that [A] told you that the man said she had a nice tummy.
A.    Yes.
Q.    So you didn’t hear the man say that, did you.
A.    I didn’t hear him say it but – well, I did – I heard him say it and then [A] told me.
Q.Are you sure it wasn’t that you know about that because [A] told you, not that you heard him say it yourself.
A.    Well, I’m pretty sure that that’s what happened but I’m not sure if that’s wrong.
Q.    That what’s wrong.
A.    The thing when I said that – I said before.
Q.    So is it that you’re not sure whether you heard the man say it.
A.    I’m – I think I didn’t hear him say it but I also think that I did, so I’m not sure.
(T 96)
I consider that, for the same reasons I expressed earlier, this sort of cross-examination does not assist me to assess the credibility or reliability of C. When a small child is being contradicted so directly by an adult, it is a natural reaction to proffer an answer that seems more acceptable to the adult. Her becoming unsure was merely a reaction to being contradicted.
- Statements made by A to her mother, M – Evidence Act s 34CA
M gave sworn evidence. She described the trip to Mount Gambier with her three children to the basketball tournament, attending the first game at about 11.30 a.m., travelling into central Mount Gambier for lunch, and then returning at about 2.30 p.m. for the second game. M’s sister and her daughter C were with them.
When they arrived, A, B and C went to play at the mud hut instead of watching the second game.
When M and her sister returned to the area of the mud hut after the game, there were several other children in the vicinity. M also saw a young man sitting down inside the hut with a guitar. The children were surrounding him, and A was hanging upside down on the cross-bar at the entrance to the hut.
After speaking to the man, M called the police. She rang a friend of hers, Sergeant Derek Long, on his private phone.
A police officer, Senior Constable Smelt, arrived soon afterwards and spoke to the young man (and there is no doubt that this was Mr Molloy) over the fence. M and the children left at around that stage.
M and the children went to Sergeant Long’s house. She had previously arranged to go there to see Mrs Long and several other wives of police officers. She had kept in contact with them since the family had left Mount Gambier. At about 6.30 p.m., M took her children to the home of other family friends. She had previously arranged that she and the children would stay the night there. There was another basketball game early the following morning. M’s husband was at work all weekend, so he did not join them in Mount Gambier.
That evening, during a discussion about the day’s events which did not include the children, A entered the lounge/dining room and said:
·‘The man said that I’m very pretty and that he wanted to marry me’;
·‘He liked watching me do cartwheels and hanging upside down because he liked seeing my belly’;
·she felt uncomfortable but she did not want to go;
·‘he didn’t do anything’, and then she just skipped off.
(T 113)
M also gave evidence of another conversation she had with A on the evening of Monday, 18 November 2013. By this time, they had returned home. M said that the conversation included the following:
·‘She asked me if she had a scar on her “bits” and I told her she didn’t.’
·‘She said “I told the man that”.’
·‘I said “Why are you asking?”’
·‘She said “The man asked me if I had a scar on my bits and I told him I didn’t and then he asked if he could see”.’
·‘… she said she pulled her trousers open and he looked in there, but then he told her that he couldn’t see very well, so he asked if he could feel down there. She said “Yes”.’
·‘She said that he did, he put his hand down there.’
·A then demonstrated in her genital area where ‘down there’ meant.
(T 114-5)

In cross-examination, M very frankly conceded that B and A may have overheard her conversations during the evening of 16 November 2013, and thus learned of the allegations that Mr Molloy was a paedophile and that pornography had been found among his belongings (T 117-8). She denied that she and her husband discussed the case with their children on the Sunday night, 17 November 2013. Her husband is a police officer. She said:
‘… with the work he does, we are very aware of not talking about things in front of our kids, so we waited until they went to bed before we had a big proper discussion about it … we decided unless she brought it up we weren’t going to say anything. If it was out of her mind, we were sort of happy with that until we knew what we were going to do. We made a pact we weren’t going to bring it up.
(T 120)
M was a patently honest witness, and I accept that she was motivated to act correctly and in the interests of her children at all stages of these proceedings. She frankly acknowledged that there were some occasions when the children may have heard adult conversations and been influenced by them. But I reject any suggestion that M has consciously done anything to contaminate the memories of A and B about these events. Mr Healy did not make any such suggestion.
Defence Case
Mr Molloy was affirmed and gave the following evidence in his own defence.
He is 26 years old and a painter by trade. He had been travelling and busking. He had arrived in Mount Gambier on Friday, 15 November 2013. He had come from Warrnambool by bus. His intention was to travel to Adelaide, where he had a month’s work organised.
He had stayed with a man named Jamie Howe on the Friday night. Mr Howe had a house in Case Street. He did not know where he would sleep on the Saturday night. He said ‘I had my sleeping bag, like sleep anywhere’ (T 164). He did not plan to stay with Mr Howe again on the Saturday night as he did not really get on with him. He said Mr Howe ‘didn’t play enough guitar’ (T 172).
He had taken methamphetamine the night before at Mr Howe’s house. He was still under the influence of it on the Saturday (T 165). He had been using methamphetamine on and off since he was 14.
On the morning of these events, after he left Mr Howe’s house, he was walking around but he could not navigate as his mobile phone was flat. He saw the school, and in particular a rainwater tank near the kindergarten (the location is indicated in Exhibit P1). He ‘made a beeline’ to the water tank (T 164). While he was at the water tank, he had a conversation with a female person. This was Ms Robynn Turner. Ms Turner had given evidence as part of the prosecution case.
Ms Turner was recalled, by consent, later in the prosecution case for further cross-examination. Mr Healy elicited from Ms Turner that at about 2 p.m. on 16 November 2013, she saw a male person, and there is no doubt that this was Mr Molloy, drinking from the rainwater tank. She said he was carrying a guitar case. She told him that there were water bubblers in the school grounds, which he could use if he were thirsty (T 157).
Mr Molloy said that after he spoke to the principal, he went to the bubblers and then he saw an external power point, so he used that to recharge his mobile phone. After that, he ‘mosied around’ (T 166) and then lay under a tree and waited for his phone to charge. He lay there for half an hour or so, then he went and checked his phone, played his guitar for a bit, and then went to the mud hut.
When he arrived at the mud hut there were two girls there, who were obviously A and C. He said “I was as surprised to see them as they were to see me’ (T 167). He went inside the mud hut and sat down. Then B came in. There was some conversation, in which B told him his father was a policeman, and asked whether he was a ‘hobo’.
He then asked the children where the toilets were. He said the three children came with him to the gate depicted in Exhibit P2, photograph 42, and:
They were just like ‘Yeah, there’s a toilet out here’. I’ve gone to the gate, opened the gate and they’ve pointed in the direction of, like, where my stuff was and that was it, I’ve walked over there, yeah.
(T 168)
A mystifying aspect of this evidence is that Mr Molloy had already been in that area. His mobile phone was being charged from a power point which is midway between the two toilets (see Exhibit P3, photographs 5, 6, 7 and 8). He was well aware that the toilets were there. He did not need the children to point them out.
Mr Molloy said that, in any event, those toilets were locked. He did not become aware of that until he walked up there (T 168). He then ‘walked off’ up towards the gymnasium, which is also depicted in the plan, Exhibit P1. However, he did not go to the toilets at the gymnasium. He then decided that his phone had enough charge, so he would go into town and use the toilets there (T 169).
Mr Molloy denied that any of the children walked up the pathway from the gate with him. He denied that he was alone with A at any stage (T 169).
Once he collected his phone, he decided to go and collect his guitar from where he had left it in the mud hut. He went back to the mud hut and the children were playing with his guitar. He sat down in the mud hut again and began playing his guitar again. He denied that C sat on his knee and he denied that at any stage he said to A that she had a ‘nice tummy’. He did not take much notice about whether A was hanging upside down on the bar. He denied that he ever told A he would marry her if he were younger. He denied that at any time he touched A, and in particular that he put his hand on her vagina (T 171).
As to the pornographic drawings that were found in his possession that day, Mr Molloy said that he had drawn them the night before, whilst under the influence of methamphetamine (T 171). He said:
A.Under the influence of drugs I’ve heard everyone gets the thoughts, it’s what you do with them and that’s what I chose to do with them. I would never put that on anybody else.
Q.Was it your intention to go into the school that day to find a young girl.
A.No. It was a Saturday.
(T 171-2)
Mr Molloy did not deny putting the pornographic search terms into his mobile phone the previous evening. The last one was put in at 8.58 a.m. He said that his phone had gone dead after that (T 172). He denied searching for child pornography while he was at the primary school on 16 November (ibid).
In cross-examination, the following points arose:
·referring to the search terms entered into his mobile phone, Ms Attar put to Mr Molloy that he was ‘completely preoccupied with the sorts of things you had been looking at from midnight until 8 a.m.’, to which he replied ‘If you say so, yep’;
·when it was put to him that when he was entering search terms such as ‘preteen vag pictures’, ‘child’s play’ and ‘8 yo girl rape porn’, he was doing so because he found those topics ‘sexually arousing’, to which he replied ‘All right’ (T 174);
·when he was questioned about the drawings depicting child pornography on pictures and maps, on his guitar and in various other places, he said ‘That’s how I tried to expel it, you know, by putting it onto paper like as in a therapy’ (T 174);
·when asked whether he was sexually aroused by what came up on the internet, he replied ‘I can’t remember’;
·when it was put to him that he became ‘almost obsessed’ with the topic of child pornography throughout the morning, he replied ‘I suppose so’ (T 175);
·he denied that he went to the primary school to seek out female children (T 175);
·he denied that he was sexually aroused when he saw A at the hut (T 176);
·he denied that asking the children to point out the toilet was a ruse to get one of the girls on her own (T 177);
·when it was put to him that he liked seeing A’s top come away from her stomach when she was swinging on the beam, he replied ‘That’s what they say. I don’t remember that’ (T 177);
·he said he did not know the children were in the hut when he arrived there. Notwithstanding that they were there, he entered the hut anyway, sat down and started playing his guitar, and engaged in conversation with them;
·when asked about his plans for the day, Mr Molloy made the rather startling allegation that:
I had like $300 on me from when I left Jamie’s and that just disappeared from when I got to the cop shop.
(T 181)
This assertion was not explored any further. It was certainly not put to the police officers who gave evidence that Mr Molloy had $300 on his person at the time he was arrested, nor was it suggested that $300 had disappeared. It was not put that this was a recent invention, nor was there any application to call the police officers in relation to that issue (see R v Latifi[8]).
[8] [2014] SASCFC 74
Analysis
It is not disputed that Mr Molloy was the person who was with the children referred to in the evidence in the afternoon of 16 November 2013. Nor is it disputed that A was one of those children.
The central issue in this case is whether the prosecution has proved beyond reasonable doubt that Mr Molloy touched A in the manner alleged.
Mr Molloy admits that:
·he was accessing child pornography on the internet throughout the night before the relevant events; and
·he drew and wrote the various examples of child pornography in Exhibits P11, P12, P15 and P16.
Mr Molloy disputes that, in doing those things, he demonstrated that his motive for being at the school on that day was to find a female child to sexually assault, and that he had formed an intention to do so.
Mr Molloy has denied on oath that he was alone with A at any stage, and that he touched A in any way.
In that context, I repeat the general direction I gave myself at the outset, namely, that rejection of Mr Molloy’s evidence, if that be the outcome, does not strengthen the prosecution case – it must be assessed on its own merits to ascertain whether the charge is proved beyond reasonable doubt.
On the prosecution case, the only people present at the time the alleged offence occurred were A and Mr Molloy. I remind myself that I must approach the assessment of the credibility and reliability of A’s evidence -with caution, having regard to her age.
I formed a very favourable impression of A’s credibility and reliability when she gave evidence. She is a very bright and articulate child. She gave a clear description of the relevant events.
The only issue about which A’s evidence was unclear was the precise location where the alleged assault took place. I do not find this surprising. She was not familiar with the locality – this was the only time she had been at the school. The photographs did not assist her to identify the bush or tree she was referring to. Her inability to identify the precise location does not cause me to doubt her evidence.
In my view, the content of A’s evidence is inconsistent with confabulation or fantasy. Her evidence that Mr Molloy asked her whether she had a ‘scar on her bits’ is not likely to have been the product of her imagination.
A’s evidence is supported by that of her brother, B, particularly as to her swinging on the beam. M also observed this. C also supported A’s evidence about Mr Molloy commenting on A’s ‘nice tummy’, although C contradicted A and B on other matters. I remind myself of the need for caution in assessing the credibility and reliability of the evidence of all of these children.
Mr Healy submitted that A has reported the swinging on the beam episode and the ‘nice tummy’ comment because she knew that her mother did not like her doing that and had chastised her before for doing it. I reject this submission. I have no doubt that A was swinging on the beam in the manner she described. She was still doing it when M arrived.
A’s statements to M after the incident, on 16 and 18 November 2013, are before me pursuant to s 34CA of the Evidence Act. They are evidence of the truth of A’s evidence (s 34CA(3)).
Mr Healy submitted that I should doubt A’s credibility because on 16 November 2013 she did not mention the alleged touching, and she said ‘he didn’t do anything’. It was not until she was at home, on 18 November, that she described to her mother that Mr Molloy had touched her ‘rude part’.
I do not accept that submission. It is not surprising that A, overhearing the adults discussing the day’s events on 16 November, did not disclose the inappropriate touching in front of family friends. The manner in which she approached her mother on 18 November, the way she broached the subject with her, and the circumstances which then prevailed, namely that she was in her own home and alone with her mother, strongly suggest to me that she had been ruminating on the subject since the weekend, and had waited for an appropriate moment to raise it.
I also remind myself of the provisions of s 34M(4) of the Evidence Act:
(4)     If evidence referred to in subsection (3) [on the making of an initial complaint of an alleged sexual offence] is admitted in a trial, the judge must direct the jury that—
(a)     …
(b)     ...
(c)there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
The fact that A used precisely the same words to her mother, namely the reference to the ‘scar on my bits’, is consistent with what A told the psychologist, Ms Molden, 19 days later, and what she has said in evidence. Since what she told Ms Molden is also before me pursuant to s 34CA, this statement is further evidence of the truth of A’s evidence.
A’s statements to her mother were completely unsolicited and spontaneous. Her statements to Ms Molden were the product of very careful, non-leading questions in the course of a very professional interview. These statements provide strong support for A’s evidence.
In my view, these are the circumstances to which I must have regard pursuant to s 34D(1) of the Evidence Act. There has been no suggestion that A had an incentive to conceal or misrepresent facts.
Mr Healy submitted that the evidence of C should cause me to doubt the credibility and reliability of A’s evidence. She contradicted A and B, saying that all the children accompanied Mr Molloy to the gate, and all three returned to the hut when Mr Molloy went off to the toilet.
I am satisfied that C’s evidence should not be preferred to that of A and B. She was also a very young child and her evidence is unsupported. She also contradicted A and B about whether she sat on Mr Molloy’s lap and whether she played his guitar.
It is highly probable that C was not aware of the sequence of events in anywhere near the degree of detail that A was. She did not know that anything had happened to A until much later. She did not speak to the police until 10 December. It is not surprising that C’s recollection of the events is less clear that that of A or B.
Mr Healy submitted that A’s evidence has been contaminated by suggestions from M that ‘something happened’ that afternoon, or by statements made by her parents that A may have overheard, or by statements made by B. There is no evidence of any of this. M made it clear that she and her husband decided not to talk to A about these events unless she raised the issue again, which she did on 18 November. The contrary was not suggested to M in cross‑examination.
Even if A did overhear conversations by her parents, I reject the suggestion that this may have induced A to make the detailed and esoteric allegations which she has made.
As to the evidence of the internet searches for child pornography and the pornography in written and drawn material in Mr Molloy’s possession, I accept the prosecution submission that it is strong evidence of Mr Molloy’s motive and intent in relation to his presence at the school that day. After all, the statement ‘I will rape a preteen girl today’ can scarcely have been clearer as a statement of intent. I reject Mr Molloy’s explanation that he was merely verbalising his thoughts as some form of therapy. If that were true, it is difficult to understand why he placed himself in the company of small children in the way he did.
I also agree with Ms Attar’s submission that, when weighing the likelihoods and probabilities of what happened, a significant factor is the unlikelihood that Mr Molloy’s preoccupation with having sex with a female child the night before these events, and the allegations of a five-year-old girl the next day, was pure coincidence.
In my view, this evidence provides strong support for A’s evidence that Mr Molloy sexually assaulted her that day.
Mr Healy argued that Mr Molloy’s accessing of child pornography the previous night should not justify reasoning that he necessarily acted upon such thoughts.
This is precisely the sort of reasoning against which I have already warned myself. It is the second category of impermissible reasoning identified by Peek J in Maiolo (No 2), referring to Gleeson CJ’s comments in HML v R (see [48] above).
Of course, the fact that a man may have a sexual attraction for someone in a particular class of persons, does not mean that he has acted upon it on the particular occasion in question. But it can make other ‘sworn testimony’ that he did so more likely to be true. In HML, Gleeson CJ referred to ‘sworn testimony’ in this context, but I am sure there is no relevant distinction between that and unsworn evidence of a child permitted under s 9 of the Evidence Act and evidence admitted pursuant to s 34CA of the same Act.
In my view, the evidence of Mr Molloy’s activities during the previous night made A’s evidence more likely to be true – indeed, it provides strong support for that evidence.
Mr Healy referred to the objective circumstances at the school that afternoon. He asked why a person in Mr Molloy’s position would take the risk of assaulting a child in circumstances where there were so many people in close proximity, and when he was told by B that their father was a police officer.
I accept that is a relevant factor, but it did not deter Mr Molloy from remaining with the children at the hut, and indeed returning there after he went looking for the toilet. Nor did it deter him from allowing the children to have access to his guitar, which had hand-drawn child pornography on it.
In my view this behaviour merely confirms that Mr Molloy was highly preoccupied with his paedophilic sexual fantasies that day, to the extent that he became indifferent to the risks involved.
As to Mr Molloy’s evidence, it was unsatisfactory and implausible in many important respects. It is true, as Mr Healy submitted, that Mr Molloy’s evidence was consistent with that of the principal as to his proximity to the water tank earlier in the day, and that his evidence of staying at his friend Mr Howe’s address checked out, at least as to the correctness of the address.
However, Mr Molloy’s explanations for the child pornography, namely that he had taken methamphetamine the night before, that he had ‘heard that everyone gets the thoughts’, and that he had just decided to use the thoughts in that way, were completely specious.
Mr Molloy was completely unable to explain why he asked the children where the toilets were when he well knew where they were. His phone was charging outside them. Further, as it turned out, he did not need to go to the toilet anyway.
Mr Molloy’s answers in cross-examination were unsatisfactory and, at times, dismissive. For example, he answered the question about entering paedophilic pornographic search terms because he found the topics sexually arousing with the words ‘All right’. When asked if he had become ‘almost obsessed’ with child pornography, he replied ‘I suppose so’.

In all the circumstances, I found Mr Molloy to be a most unsatisfactory witness, one whose evidence could not be relied upon. I reject it as untrue beyond reasonable doubt wherever it conflicts with the evidence of A.
Conclusion
Having rejected Mr Molloy’s evidence, I must consider whether the prosecution case satisfies me beyond reasonable doubt of Mr Molloy’s guilt. With one exception, I conclude that I am so satisfied.
I am not satisfied beyond reasonable doubt that Mr Molloy’s finger penetrated A’s vagina or labia majora so that it can be held that sexual intercourse occurred.
It is true, as Ms Attar submitted, that A said that Mr Molloy put his finger ‘on and in’ her vagina. However, in her demonstration to her mother, which I have described when dealing with M’s evidence, it was not clear to me that A was demonstrating that.
I conclude that I am satisfied beyond reasonable doubt that Mr Molloy touched A’s vagina, but not that penetration has occurred.
In those circumstances, my verdict, pursuant to s 75 of the Criminal Law Consolidation Act, is not guilty of unlawful sexual intercourse, but guilty of the alternative charge of aggravated indecent assault.