R v MRB
[2021] QDC 294
•23 November 2021
DISTRICT COURT OF QUEENSLAND
CITATION:
R v MRB [2021] QDC 294
PARTIES:
The Queen
v
MRB
FILE NO:
DIVISION:
Criminal
PROCEEDING:
Judge only trial
ORIGINATING COURT:
District Court at Southport
DELIVERED ON:
23 November 2021
DELIVERED AT:
Southport
HEARING DATE:
2 and 3 November 2021
JUDGE:
Dann DCJ
ORDER:
Not guilty on the count of indecent treatment of a child under 16, under 12, who is a lineal descendant
CATCHWORDS:
CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES –VERDICT – where the defendant is charged with one count of indecent treatment of a child, under 16, under 12, who is a lineal descendant – where the defendant was previously acquitted by a jury of the other count on the indictment – where the complainant is the defendant’s daughter – where the defendant and the mother of the complainant were separated at the time of the offending and shared custody of the complainant – where the alleged offending occurred in 2019 when the complainant was staying with the defendant– where the nanny employed by the defendant went into the complainant’s bedroom one morning and the defendant was in bed with the complainant cuddling her and waking her up – whether the complainant was in a distressed condition when the nanny came into her room – where the nanny later questioned the complainant about her and the defendant in bed – whether the nanny pushed the complainant in the questions she asked her with a potential for the complainant to be led – whether the complainant had a motive to lie – whether the complainant’s evidence of the touching is reliable – whether the defendant is guilty or not guilty of the charge
LEGISLATION:
Criminal Code Act 1899 (Qld), s615B, s 615C
Evidence Act 1977 (Qld), s 93A, s21AK, Division 4ACASES:
R v GJL [2021] QCA 175 cited
R v Pentland [2020] QSC 231 citedCOUNSEL: S J Gallagher for the Crown
S W Zillman for the Defendant
SOLICITORS: Office of the Director of Public Prosecutions (Qld) for the Crown
Sibley Lawyers for the Defendant
Introduction
This is a judge only trial before me on 2 and 3 November 2021. This court granted the application for the trial to be conducted by judge alone on 27 July 2021. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Section 615C (3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.
The defendant (MRB) is charged with the following offence:
That on the twenty-ninth day of April 2019 at Gold Coast in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant] a child under 16 years.
And [the complainant] was under 12 years.
And [the complainant] was, to the knowledge of [the defendant], his lineal descendant.
The crown particulars of the offence are that there was touching of the vaginal area over the clothing with the hand.
The defendant pleaded not guilty.
The defendant contends that there are two issues. The first is whether the defendant touched the complainant (ELB) as particularised by the Crown. The second issue is, if I determine that he did, whether that is a deliberate touching, so as to be indecent.
Elements of the offence
To prove the offence of indecent treatment of a child under 16, under 12, who is a lineal descendent, the crown must satisfy me that:
(a)The defendant dealt with a child;
“deals with” includes a touching of the child, by any part of the defendant’s body and the touching of the defendant by the child.
(b)The dealing was indecent;
“indecent” bears its ordinary every day meaning; that is, what the community regards as indecent. It is what offends against currently accepted standards of decency. Indecency must always be judged in the light of time, place and circumstances.
(c)The dealing was unlawful;
“unlawful” means not justified, authorised or excused by law. No justification, authorisation or excuses arise for consideration.
(d)The child was under 16 years of age;
ELB’s birthday was the subject of a joint admission in the trial. For these reasons it suffices to say the parties admitted the complainant was nine years old on 29 April 2019. Consequently, it is apparent that ELB was under 16 at the time of the alleged offence.
(e)The child was under 12 years of age;
As for (d), it is apparent that ELB was under 12 at the time of the alleged offence.
(f)The complainant was, to the knowledge of the defendant, his lineal descendant.
Lineal means being in the direct line of descent from an ancestor. It was jointly admitted in the trial that ELB was, to the knowledge of MRB, his lineal descendant.
Factual background
ELB was born in September 2009. MRB is ELB’s biological father. At the time of the alleged offending, the defendant and ELB’s mother (CDG) were separated and not living together. MRB and CDG had an approximately equal share custody arrangement of the complainant and her younger sister (JNB).
On Saturday 27 April 2019, whilst under MRB’s care, ELB stayed at a friend’s house. The next day, Sunday 28 April 2019 both ELB and her sister were back with MRB. ELB stayed at the defendant’s house that night and woke up in her bed the next morning on Monday 29 April 2019. The charge arises out of events said to have occurred on the morning of 29 April 2019 when the defendant went into ELB’s bedroom and got into her bed to wake her up.
The defendant employed a nanny (CHL) who lived on the property to assist him with ELB and her sister (JNB). CHL was in the kitchen of the home on the morning of 29 April 2019 making breakfast. MRB told her he was going into ELB’s room to wake her up. About 10 minutes later CHL went into ELB’s bedroom, got ELB, (there is an issue in the trial as to how CHL got her and ELB’s level of distress), completed the morning routine and dropped the children to school. She had a conversation with ELB that morning. At the end of that school day ELB and JNB returned to their mother’s house. On Thursday 1 May 2019 ELB returned to stay overnight with MRB after school. On 2 May 2019 in the morning before school CHL instigated a further conversation with ELB in MRB’s absence about events on the preceding Monday morning. MRB took ELB to school (it was crazy socks day). As a consequence of the conversation CHL had with ELB, ultimately, later that day, CDG took ELB to a general practitioner and thereafter to the police station where her first interview with the police was recorded. CDG and CHL each gave the police written statements that day.
In March 2021 the defendant was tried before a jury in respect of the count currently before me and a count alleging indecent treatment of the complainant on an unknown date between 26 December 2018 and 29 April 2019. The jury acquitted the defendant of the latter count and was hung on the count which is now before me.
Relevant principles/directions
General application
In R v Pentland [2020] QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:
“[12]The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.
[13]In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
[14]The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
[15]The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
[16]It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’ evidence. I may accept parts of it if I think it is worthy of acceptance.
[17]In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence but it is up to me to decide whether I accept particular evidence and if I do, what weight or significance, it should have.
[18]I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw.
[19]The defendant has not given or called evidence. That is his right. He is not bound to do so. The burden on the prosecution does not change and the fact that the defendant did not give evidence is not evidence against him. It proves nothing at all. ...”[1]
[1]R v Pentland [2020] QSC 231 at [12]-[19].
Reasonable doubt
For the crown to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged. Proof beyond reasonable doubt is the highest standard of proof known to the law.
If I am left with a reasonable doubt about guilt, I must find the defendant not guilty. If I am not left with any such doubt, I must find the defendant guilty.
Principles specifically relevant
Section 93A statements
The complainant is a child.[2] Her evidence included the statements given to police and admitted pursuant to s 93A of the Evidence Act 1977 (Qld) (“Evidence Act”). The recordings were played during the trial. I take into account that presenting children’s evidence in this way comprises the routine practice of the Court and is adopted in every case involving children such as the complainant.
[2]I apply the same general observations about the complainant’s younger sister.
The recordings were tendered, and I was provided with transcripts which were marked for identification. I have had access to these recordings and the transcripts. I keep in mind that the transcripts are not evidence and are merely an aid. It is what I heard on the recordings that matters, not what is in the transcripts. In coming to the conclusions in these reasons I have had specific reference to the recordings of the complainant’s evidence.
Pre-recorded evidence
The complainant[3] gave evidence which was pre-recorded under Division 4A of the Evidence Act. I take into account the usual directions applying to each child that:
(a)at the time the child gave evidence, she was in a room which was separate from the courtroom;
(b)the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
(c)at the time the child gave evidence there was a support person sitting in the room with her, and no other person;
(d)whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
(e)at the time, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all;
(f)the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
(g)the courtroom was closed, and all non-essential persons were excluded while the pre-recorded evidence of the child was played;
(h)all of these measures, used for the taking and showing of the children’s evidence, are the routine practices of the court for taking and showing evidence of children in a case such as this and I must not draw any inference as to the defendant’s guilt because these measures were used. The probative value of the evidence is not increased or decreased because these measures were used, and accordingly, the evidence is not to be given any greater or lesser weight because these routine measures were used.
[3]I apply the same general observations about the complainant’s younger sister.
As with the s 93A interviews, I was provided with the transcript of the recording. I instruct myself in the same way in respect of this transcript as for the transcripts of the 93A interviews.
There were some obvious places in the various recordings where editing occurred. I do not draw any inference adverse to the defendant as a result of this.
Motive to lie
The complainant
In cross-examination, ELB was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant.
This motive had two main aspects:
(a)She was prepared to tell lies about her father to her mother if she did not get what she wanted. This was what she said to her father; and
(b)Whilst she wanted to sleep in her Dad’s bed, her Mum had told her she was not allowed to and ELB was worried her Mum would get mad if she did. She also knew her Mum was critical of how her Dad looked after her and wanted to take her away from him.
I have set out this evidence below. It was not expressly put to ELB that she lied about the allegations because of either of these aspects of the evidence.
If I reject the motive to lie put forward on behalf of the defence, that does not mean that ELB is telling the truth. If there was a motive, the defendant may not know of it. There may be many reasons why a person may make a false complaint. Even if I am not persuaded that a motive to lie is established, I have to satisfy myself ELB is truthful.
Distressed condition
I have evidence before me of ELB’s distressed condition when CHL went in to get her from her bedroom on the morning of 29 April 2019. I can use this evidence in support of the evidence that ELB was assaulted by MRB. It is a matter for me whether I accept the evidence relating to ELB’s distressed condition. If I do, then I have to ask myself: was the distressed condition genuine or was the complainant pretending? Was she putting on the condition of distress? Was there any other explanation for the distressed condition at the time? I recall the warning that I ought to attach little weight to distressed condition because it can be easily pretended. If I find that the distress was genuine then I may use it as evidence that supports ELB’s account.
Preliminary complaint evidence
In this case there is evidence of the complainant’s preliminary complaint to each of CHL, CDG, Dr Tanchev and JNB. I have addressed that evidence below. I bear firmly in mind that this evidence may only be used to assess the credibility of the complainant’s account in the sense that consistency between her account of events and that which she told each of the preliminary complaint witnesses may enhance the likelihood that her account is true. Those out of court statements are not to be used as evidence proving what occurred.
Similarly, any inconsistency between the preliminary complaints I find and the complainant’s evidence as to what occurred may cause me to have a doubt about ELB’s credibility or reliability. I must consider whether any such inconsistencies are of such a nature as to affect her credibility or reliability or whether they are matters that are explicable in all the circumstances. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me to determine.
First is the preliminary complaint to CHL. She said that she had a conversation on the morning of 2 May 2019 with ELB when they were taking out the rubbish. She said that she asked ELB whether Daddy makes her feel uncomfortable when he is in her bed. CHL says that ELB said “Yes, and I don’t like it.” Then CHL asked ELB “Has he ever touched your privates?” and she says that ELB said “Yes, and I don’t like it.” CHL did not give evidence of hearing a conversation in the car park. CHL gave evidence of a conversation later on 2 May 2019 between CHL, ELB and CDG which took place at the park, where ELB’s mother asked ELB what had happened, and ELB said that Daddy had touched her front privates. CHL said that ELB’s mother then asked ELB “Has it happened before?” and ELB said “Yes.” CHL said that ELB said it happens sometimes in the mornings before school, and that it usually hurts when she is at school and sometimes for a couple of days.
The next preliminary complaint was that to the complainant’s mother, CDG. CDG gave evidence that she had a conversation with ELB at the carpark of the school on 2 May 2019. CHL was present for the conversation. She says that after CHL said to ELB that you can tell Mummy, ELB then told her that she did not know that parents were not allowed to touch your private parts. CDG responded that no one is allowed to touch your private parts. CDG says that ELB then said, “even the doctor” and she said “no – no-one is allowed to touch you.” CDG said that she then took ELB to the park down the road and ELB had lunch and they had a further conversation. CHL was present. She says that ELB said it happened in her bedroom, and it had happened many times. ELB told her it was a touching on the front part of the private parts and that she was not wearing underpants but was wearing her pyjamas. The defendant was wearing boxer shorts. CDG said the front part of her private parts was a reference to the vagina. CDG then said that she then took ELB to see Dr Tanchev. She said she was present for the conversation between ELB and Dr Tanchev, and that ELB:
(a)showed the doctor on the fluffy bunny what occurred which was on the front part of the bunny between the legs;
(b)said that it hurt. Whilst Dr Tanchev asked her for specifics about how it hurt, ELB said “it just hurt”; and
(c)said it happened many times.
The next evidence of preliminary complainant was to the complainant’s sister, JNB. JNB gave evidence that ELB said to her, on 2 May 2019, that their father had “done something” to ELB and that he had been “touching her private parts”. ELB said to JNB she said stop, but the other day she woke up early and she went on the couch and Dad went into her room.
The final preliminary complaint was to Dr Donna Tanchev. Dr Tanchev gave evidence that on Thursday 2 May 2019, she had a consultation with ELB, in the presence of CDG. Dr Tanchev said that during that consultation, ELB told her that she was up early that morning to avoid cuddles with her Dad because he usually would come into her bed in the morning for cuddles and she pointed to her genitals as the site of the touching or cuddling. Dr Tanchev gave evidence that ELB told her it happened “yesterday morning” whilst she was awake in bed. Dr Tanchev also gave evidence that ELB indicated that her father would touch her over and under her clothes in her bed with the covers over both him and her and that the touching was with his hands. Dr Tanchev says that ELB told her that it happened before, but she couldn’t quantify. ELB told Dr Tanchev that it hurt at the time and afterwards. “Touching” was the word ELB used.
Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me. I remind myself that inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider. But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people who are asked on several different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.
Special scrutiny required (Robinson)
I must scrutinize ELB’s evidence with great care before I can arrive at a conclusion of guilt of the offence. This is because there are some features of ELB’s evidence which suggest a risk that ELB’s evidence, or aspects of her evidence, may not be reliable. They are the impact, on her, of the animosity between her parents which was known to her before the alleged offence and the manner in which the complaint arose.
As to the first, ELB accepted that she told her stepbrother (MOR) before the alleged offending that “Mummy wants to take us away from Daddy” and that “She says that Dad doesn’t take good care of us”. ELB also accepted that she told MOR “Mummy says he doesn’t spend enough time with us”. It is apparent from these statements that, prior to the offending, ELB was aware there was conflict between her parents about her being with her father and about how he is managing her in his house. There is also the statement she volunteered that her mother said she wasn’t allowed to sleep with her father and that her mother would get mad about it. ELB also gave evidence she said to her father she wanted to go to her mother’s house when he would not let her go swimming on an occasion and that her father wouldn’t get her things. I find that ELB’s view that her mother would get mad if she was sleeping with her father (ie in the same bed), could, of itself, be a matter that may have made her anxious and, to some extent, distressed, when her father got into bed with her on the morning, particularly when they were observed by CHL.
As to the second, the complaint was not a spontaneous complaint first made by ELB to any person. The complaint arose because of enquiries by CHL, and persistent and leading questions asked by CHL.
The first suggestion that there was any touching of ELB’s privates was not made by ELB, it was made by CHL. CHL gave evidence that ELB said it happened in response to a pointed question by CHL about whether it had happened immediately after her question about whether Daddy made her uncomfortable. That also followed a conversation a few days earlier where CHL’s evidence was that on the Monday morning when she was brushing ELB’s hair getting her ready for school she asked ELB did she feel uncomfortable with Dad coming into her bed and ELB said “Yes”. CHL’s evidence was that ELB “was very shut down and did not say much at all”. CHLs evidence was that she asked ELB if he had done anything else to make her feel uncomfortable, touched her in an inappropriate way (though she could not remember her exact words) and ELB was kind of distressed and sort of just shrugged but didn’t say. This was 15 – 20 minutes after getting ELB out of bed.
Noting that children who are young may be more easily led and inclined to adopt suggestions I should scrutinise the evidence of ELB with great care before I could arrive at a conclusion of guilt because of these circumstances. So, I should only act on the evidence of ELB about the alleged acts if, after considering it with those warnings in mind, and all the other evidence, I am convinced of its truth and accuracy.
Previous acquittal and a modified Markuleski direction
MBR has undergone a jury trial in respect of this count and another count on the indictment arising from these matters. In that trial the jury found him not guilty of count 1 on the indictment, which was a count of indecent treatment of a child under 16 under 12 who was a lineal descendent. This is a retrial on the other count, on which the jury was unable to reach a verdict.
The effect of an acquittal in law is, relevantly in this trial, that the defendant is taken to be entirely innocent of the offence of which he was previously acquitted.[4]
In this case the whole of ELB’s evidence was before me in respect of the count MRB was acquitted of as well as the count being tried. Both parties submitted this is to assist me to assess ELB’s credibility. The Crown accepted that MRB was entitled to the full benefit of the acquittal and that none of the evidence ELB gave in respect of the acquitted count could be used to bolster her evidence concerning the count before me. The defence submitted that I should modify the standard “Markuleski” direction[5] for the particular circumstances.
[4]R v GJL [2021] QCA 175 at [53].
[5]Supreme and District Court Bench book No 34.
I direct myself that as the whole of ELB’s evidence is before me, if I have a reasonable doubt concerning the truthfulness or reliability of ELB’s evidence in relation to either (or both) counts, whether by reference to her demeanour or for any other reasons, I must take into account in assessing the truthfulness or reliability of her evidence generally.
I also consider her evidence in respect of the specific count before me when considering the merits of that count.
Noting that the jury acquitted in respect of count 1, that does not necessarily mean I cannot convict of the count before me. I have to consider why I have some, if any, reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence, that is whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the current count.
Evidence
Complainant’s first section 93A statement
ELB first participated in an interview with police on Thursday 2 May 2019.[6] ELB had a quite large, two legged soft toy bunny rabbit with her in the interview.
[6]I have set out the whole of ELB’s evidence in the s 93A that deals with her allegations against MRB.
ELB told police that she lives at home with mum. ELB said that she had come to talk to the police about Dad, he’s sometimes mean, sometimes annoying, and sometimes she doesn’t like him. When asked the reasons for those thoughts she said to the police officer: “because when he goes in my bed and gives me cuddles, he touches my private parts and I don’t like it, I keep on whacking him and he doesn’t stop.”
She told the police officer she could not remember the first time something happened. She said the very last time she remembered Daddy hopping into bed and touching her privates was ‘yesterday’. She knew it was her Dad in bed with her because she saw his face.
When the police officer asked her to tell her everything about yesterday and to start at the beginning the complainant said “I was telling him to stop, and he wouldn’t stop, and I was whacking him to get him to stop and last time my nanny CHL … she came straight away …. She came barging in and Dad … and CHL said come on … and I didn’t like it, so she said come on (ELB) let’s go have breakfast and she got me out of there because I didn’t like it in there.”
The complainant’s evidence was that she sleeps in her own room at her Dad’s house, which has a bed and bunks; she sleeps in the bed and the bunks are for her friends, although she’s never had friends over.
In response to the police officer asking her to tell her everything she remembered from when she woke up in her bed yesterday the complainant’s evidence was: “He came to give me cuddles and he did that and they wouldn’t stop”, she could not remember everything that happened when Dad first came into her room but “I can remember that I didn’t like it” and “He was touching my privates and he wouldn’t stop”. The complainant did not know another word for her privates, but she said the part of her body which was her privates was ‘the front’ and she used her privates for peeing. When she said the front her gestures indicated her front pubic region.
She said he used his hand and ‘he doesn’t use anything else though’. When asked by the police officer to tell what he does with his hand, the complainant made a gesture where she held her palm out flat with the fingers apart and brought them down in a flat motion onto the head of the toy bunny. When asked to “show me on bunny what he does” the complainant touched the rabbit with a flat hand in the front pubic area where the legs joined the body.
When asked how she knew it was his hand and not something else, she replied “because it felt like his hand and I didn’t know that it was his hand and I think it was his hand”. Her evidence was that “after that it started hurting, it hurt here, it started hurting and stinging, … it just stinged a lot … it just stinged for the rest of the day” and when asked which part stung the complainant put her hand on her own front area pubic region. She said when she went to the toilet it hurt.
He evidence was she was wearing a singlet and shorts and underwear and when asked if Dad’s hand was on top or under her underwear she responded “I’m not sure, they feel the same to me … I don’t know”.
When asked to tell the police officer about whacking Dad she said “I was doing this .. on his back”. She gestured by slapping the toy rabbit hard on its back with her hand.
When she was asked what Dad would do, she said, “it would stop and then CHL came in and then her…” and when asked if Dad said anything to her, she said “no”.
She said she was in the bed that’s on its own and she was laying down and Dad was next to her even though it’s only one little bed. The complainant’s gesture demonstrated her lying flat on her back as she gave this evidence, and she patted the sofa with her right hand when explaining where the defendant was. ELB said nobody else sleeps in the room with her. JNB is next door.
When she was asked to tell the police officer about another time that Dad touched her privates when he goes into her bed and cuddles her that she could remember she said, “I can’t remember.” When she was asked if it ever happened before yesterday, she said “no because I was at mummy’s then”.
When asked “… is there anything else that Daddy’s done … did you think that about him before yesterday” her evidence was “Mm Yes because he did that I think another time, but I can’t remember when it was”.
She said she remembered him doing “the same” and “It was the same and I didn’t like it”. She said on the other time she got out of bed and ran to the kitchen. CHL made her breakfast and Dad made himself a coffee.
When asked if she said anything to CHL the complainant said: “Yes she was asking me that today before school and we went outside to take the bins out and when Dad was um … in the house having a shower we went outside and talked about it”. This was about 7.20 or 7.30 that morning.
The other time she didn’t tell anyone after that, she didn’t remember what had happened about the other time.
ELB volunteered that “… my Mum said I’m not allowed to sleep in Dad’s bed”. When asked to tell the police officer everything about sleeping in Dad’s bed she said, “he did the same thing and I didn’t like it”. When asked what used to happen in Dad’s bed, she said, “he did the same thing as last time and I didn’t like it” and “he did the same as um – he touched my privates still” but when asked to tell about the time she remembered Dad touching her privates in his bed her evidence to the police officer was “No I can’t remember I think it was like a month ago”. She remembered that “I did not like it” (said with some emphasis) and she was wearing the same thing. She didn’t remember when it was, and she thought her sister was on the couch because she wakes up and goes on her iPad. On the day that Dad touched her privates in his bed she woke up “because I kept on hearing the beat noises and I couldn’t really sleep any longer so I just woke up and went on the couch”.
When asked about how Dad touched her privates the time in her bed her evidence was Dad did it “the same”. When asked how he did it on the time in his bed, what he actually did, her evidence was “the hand” “I think it was the hand” and that Dad touched “the front” of her body and she said, “I think it was his hand but I’m not sure”. ELB was not sure why it stinged and it stinged on that time in Dad’s bed as well. The stinging was “it was burning it was like pinching me” and it started “after he did it ... it started once I got to school”. It was the top of her private that was burning and stinging. ELB pointed on the rabbit to the front area between her legs. Her evidence was that she didn’t tell anybody about that time “but I did tell CHL though” but she could not remember when she told CHL.
When asked how it made her feel, ELB said “I’m not sure… I just didn’t like it”. She told the police officer that she did not talk to anyone else about what happened.
The complainant said she told Donna at the Broadbeach hospital, but she didn’t remember what she said to Donna because Donna wrote it all down. She also said that “I said to her that if I keep on saying it all, I’ll forget it because normally when I say things too many times I have to forget it … I will forget it … because I won’t remember the words that I’ve been saying and I’ll say different things like a lollipop or something.”
Before she told her mum, or CHL or the doctor, her evidence was that she didn’t really want to stay at Dad’s house cause she was scared, and she didn’t want him to do it anymore. At this point ELB’s voice on the recording is extremely soft and she is looking down.
Other than the time he did it when she slept in his bed, ELB said to the police there were no other times that Dad did it. There was nothing else she could think of with Dad “but I know more things about Bunny”. At this point ELB became animated when talking about features of the soft toy. To my mind, appreciating that ELB was very young, this indicates she does not fully appreciate the gravity of the allegations which the police are speaking with her about.
ELB said her sister’s room was down the hallway next to her. ELB also said that Dad comes in and gives JNB hugs, but he doesn’t do that[7] to JNB because JNB told her that when ELB told her in the car what had happened.
[7]‘That’ was the word ELB used; in context, I understood ‘that’ to be a reference to the alleged offending.
She didn’t have the pain that she talked about in her privates because she didn’t let him do it to her this morning, she got out of bed early and went onto the couch and stuck her legs together. At the time that the complainant gave this evidence, she could be seen on the video to cross her legs. She saw her Dad this morning and she said, “He said oh I was about to go give you cuddles and I’m like oh I woke up early today”.
Her evidence was that she never talked to Dad about what he did. She also said she did not get along with Dad “that well really” normally because “ he’s always like .. I’m not sure”. Her voice was very soft, she was looking down and she shrugged her shoulders.
She sees her nanny CHL in the morning but lately CHL’s been coming with another nanny to pick her up. She sees her Dad at 6pm at night and she’s not sure who puts her to bed because she normally falls asleep on the couch and somebody puts her in bed. She could not describe what normally happened when she woke up at her Dad’s house or if she had a normal routine at Dad’s house.
She said that the stuff that’s been happening with Dad has made her feel bad, she didn’t like it and in response to being asked how her tummy, or her heart has been feeling ELB says “uncomfortable”.
Complainant’s second section 93A statement
As a consequence of statements which ELB made in a conference with representatives of the prosecution prior to the prerecord of her evidence pursuant to s 21AK of the Evidence Act about the possible frequency of alleged offending by the defendant, ELB participated in a further recorded interview with police on 21 May 2020.
In that interview she said her Dad was an idiot because he’s mean and he kicked her. When she was asked “has there been any other time ….. when we last spoke you told me what Dad did to you in your bed and you told me what Dad did to you in his bed did anything like that ever happen any other time” she said “no” and then “he only did it twice I think .. .he did it twice in my bed and twice in my wait no twice in his and twice in mine I think.” Her evidence was that she did not remember the other time in Dad’s bed, she was not sure it was twice, she just thought it was.
When she was asked “so last time you told me about how Dad um touched you on your private part how many times do you think that happened” and she said “um, not sure, twice”.
In response to the question “Twice … you said before it was twice in your bed and twice in Dad’s bed can you remember it happening any where else” she said “no”. She told the police officer she did not remember how many times in a week it happened, she could not remember any other times
She recounted an incident where she said that her Dad had locked her in her room because she said she wanted to go back to mum’s after she said she wanted to get her swimmers to go into the pool and he would not let her. She said she snuck out of her room and into her brother’s room and to the then nanny (someone preceding CHL).
She said she used to feel horrible when she stayed at Dad’s house, they would never get anything, and he’d always get his girlfriend clothes and they would never get anything.
When she woke up at Dad’s house, CHL would come.
She slept in Dad’s bed when she was scared, he put her to bed on her bed but when she got scared at night she would just go to his.
When she was asked what Dad would do twice in his bed and twice in her bed, she said, “the same thing” and “I can’t remember”. She said to the police officer nothing else ever happened with Dad that was like they had talked about before.
She agreed that she remembered telling the ladies at the court that it happened lots of times but when asked what she meant when she said that to them ELB responded, “like twice or something I said lots and then I said like just twice or a couple of times after that”.
She said yes to the suggestion “it was only twice or a couple of times.” ELB said there was nothing else she would like to talk about.
Complainant’s section 21AK evidence - 24 August 2020
ELB confirmed to the prosecutor in her 21AK evidence on 24 August 2020 that everything she had told the police was the truth, there was nothing she wanted to change and that another word for private parts was vagina.
When asked about how many times her Dad touched her on the private parts in her bed, after a long pause when ELB looked up to the ceiling and then down to the table, ELB somewhat hesitantly gave evidence she thought it was once or twice that her Dad touched her private parts in her bed. She could remember the time she had told the police officer about when CHL came into the room. After another long pause she said she didn’t know what had happened the different time. She could not remember the different time from when CHL came into her room.
In cross examination the complainant agreed that at the times she was speaking about her Mum and her Dad not living together and she spent some of her time at Mum’s place and some of her time at Dad’s place. It was the same for her sister.
ELB confirmed she and JNB had been with her Dad the weekend before she spoke to the police officer, she went with her sister, her Dad and his girlfriend to the St Hilda’s fete. She agreed that she stayed at her friend Skye’s place that Saturday night. She agreed there was discussion between her Dad and Skye’s mum about whether she would be allowed to stay over and that she was getting upset, cranky that she might not be allowed to stay over.
The following exchange then occurred:
“Now, do you remember there was some discussion involving Skye’s mum and your Dad whether you’d be allowed to stay? Yeah.
over at Skye’s that night. Do you remember that? Yes. All right. And you were – can I suggest – getting upset, cranky, that you might not be allowed to stay there? Yes.
And can I suggest you said about whether you can stay or not; you said to Dad? Yeah.
If I can’t stay, I’m going to tell mummy lies about you. Mummy likes it when I tell lies about you. Do you? Yeah.
accept that that’s what you said, trying to stay over at Skye’s place? Yeah.
Okay. And that was in front of Skye’s mum. You know Skye’s mum? Yeah.”
The complainant agreed:
(a)On the Sunday she and her sister were back with the defendant and, that day, they were being introduced to a new nanny. That nanny was there at bedtime and she and her sister went to sleep on the couch with her;
(b)The next morning she was in her bed;
(c)Her Dad came in to give her a cuddle;
(d)This was a regular thing that he would come in and give her a cuddle in the mornings;
(e)The defendant lay down beside her, and gave her a cuddle;
(f)She remembered her Dad saying, “I have to wake a princess up gently in the morning” (At this point I observe her eyes were downcast and she appeared very subdued);
(g)It would often happen that she would be in the defendant’s bed when she was scared of the dark, the shadows and the trees and things she could see outside;
(h)Often, she would get into her Dad’s bed, sometimes her sister would get into the defendant’s bed too and the three of them would be in the bed.
The following exchange then occurred:
“Right. Now I want to pause, there, and put this to you, [complainant name]? Yes.
At no time did your Dad ever touch you inappropriately. Do you know what that word means? Inappropriately? Yes.
Wrongly, or in some sort of sexual way. I’m saying in no time did Dad ever touch you in that way? Yeah.
Do you agree with me? Yes.
Well, let’s make sure we’re on the same page, here. You’ve said on some other occasions that your Dad had touched you on your private parts when you were either in your bed or in his bed? Yes.
But that didn’t happen, I’m saying to you, did it? No.
It didn’t? He did.
He didn’t. Do? He did.
you agree with me? Yeah.”[8]
[8] Transcript 1-18, L20.
I note I have set out what the transcript records and I will deal specifically with this passage of audio later.
ELB agreed:
(a)MOR was sometimes living with the defendant at that time. He had a girlfriend (STE). The complainant said she did not remember asking to sleep with MOR and STE;
(b)A few weeks before she first spoke to the police, she had gone out on a Saturday night with MOR and STE to a Japanese restaurant and then back to the defendant’s;
(c)MOR said he and STE were going to sleep in the media room that night. She said she didn’t remember saying to him “No, can you sleep in here tonight?”;
(d)He said, “Why don’t you go and sleep with Dad” and she said, “No I’m not allowed”. He said, “what do you mean, you can always go and sleep with Dad when you are scared”. ELB replied, “My mum said I wasn’t allowed to”. I note that ELB volunteered this before being asked about it;
(e)MOR said that was rubbish and, if she was scared, she was allowed to go and give Dad a cuddle;
(f)She replied, “I want to but Mummy will get mad”. (At this point in the recording I observe that the complainant was nodding firmly in an affirmative way);
(g)MOR said “well Mummy isn’t here. That’s silly. You’ll be fine. You’re a big girl” and he told her that he loved her and said good night;
(h)He turned her lamp off and was walking out the door and he said, “Sleep with Dad” and she said “No I’m not allowed, mummy won’t let us”;
(i)The next day, in talking to MOR they had the following conversation:
(i)she said something like “I wish Daddy didn’t have to leave for work”;
(ii)he said to her “Yeah I know it can be hard sometimes”; and
(iii)she said, “Mummy wants to take us away from Daddy.”;
(iv)He said, “Why does she want to do that? that’s horrible” (At this point I observe that ELB’s eyes were very downcast. The presiding judge intervened and asked ELB if she understood and agreed with what was being asked and ELB said she did);
(v)She said “She says that Dad doesn’t take good care of us (Again ELB’s eyes were downcast);
(vi)She said “Mummy says he doesn’t spend enough with us”; and
(vii)He said, “He’s looked after you, sometimes he works too much”.
Moving to when she first spoke to the police officer, ELB agreed:
(a)It was a special day at school being crazy sock day. (At this point I note ELB’s voice was much calmer and clearer);
(b)She was wanting to be dropped off by CHL and the defendant said he’d drop off herself and her sister;
(c)They were each dressed up in special socks and the defendant gave her some money for cupcakes and or a donation at the school;
(d)On the way they stopped at the old Tallebudgera post office, she sat on the front steps of the old post office and MRB took a picture of her wearing her crazy socks;
(e)This photograph was taken on the very morning she said she spoke with the police officer for the first time;[9]
(f)At the school she ended up seeing her mother and CHL. (At this point I note ELB had started to become restive in the chair);
(g)After that she went to see a doctor;
(h)After that she went to see the police lady; and
(i)That was really the last time she saw the defendant because she and her sister had been living with Mummy ever since.
[9]The photograph was Exhibit 4 in the trial.
ELB remembered speaking to the police officer the first time, which was recorded. ELB agreed she spoke to a prosecutor on 10 March 2020. She recalled she told that prosecutor that Dad had touched her on her private parts in his bed “a billion times, like 10 times”. She said no to the question whether he did anything different and when asked where this had happened, she said “I think my bedroom when staying with Dad”.
ELB remembered speaking with the police officer the second time, which she agreed was recorded. ELB remembered speaking to another prosecutor about 10 days prior to the day she was giving evidence. She agreed she told this prosecutor she didn’t want to change anything having watched the recordings.
In an exchange with the cross examiner ELB accepted she had said ‘a number of times’ to the prosecutor in conference 10 days before the first trial. Relevantly, in respect of the count before me, ELB confirmed she had told the crown prosecutor in conference prior to the trial:
(a)the things happened in her bed before JNB’s birthday;
(b)there was only a week or so between them;
(c)the first time something happened was in her bed and the second time was in the defendant’s bed;
(d)the time in her bed first, he touched her privates;
(e)that was the time CHL went into her room;
(f)that was not the only time he touched her in her bed. The next time might have been a couple of days after or like a week;
(g)there might have been two or three times, she wasn’t sure, but later on she said twice;
(h)that on the time CHL walked in, CHL saw her face and said to her “ELB do you want to come and have some breakfast?” ELB had breakfast, then CHL asked her to come outside and asked her if anything had happened and said she (ELB) could tell her (CHL). ELB told her and said the defendant had told her not to tell anyone; and
(i)the time she ran out into the kitchen might have been the same time.
In re-examination ELB said she knew what touched inappropriately meant and:
“…that time in your Dad’s – where he touched you on the front private part in your Dad’s bed: is that true or not true? True.
And the time in your bed where CHL barged into the room – into your bedroom and he touched you on the front private part: is that true or not true? True”
ELB’s voice was very firm, and she was looking down.
The complainant’s sister [JNB]
JNB, the complainant’s younger sister also spoke with the police on 2 May 2019.
The relevant matters in the 93A interview she had are:
(a)After ELB and her mother had spoken in the park, ELB told JNB “has Dad ever done something wrong”. ELB told JNB that Dad’s done something wrong to her (ELB);
(b)JNB said ELB said that Dad’s been touching her private parts, she said stop, the other day ELB woke up early and went on the couch and Dad went into her room and she didn’t see her there so then he went into the living room and ELB was there and ELB said to him that she woke up early;
(c)JNB was having breakfast and did not see ELB on the couch;
(d)JNB said Dad’s pretty nice to her, he’s never touched her private parts, he hugs her and stuff in bed when she comes into his bed and he always lets her come into his bed; sometimes she sleeps in Dad’s bed which she likes, it’s safe because there are no trees around;
(e)JNB said ELB sleeps in her own bed and said ELB had slept in Dad’s bed with her. When all three of them used to sleep in the bed together it was a bit squishy, she didn’t always sleep in the same place, but Dad had to separate them because she (JNB) kicks and ELB does not, so when they are together they hurt each other so Dad sleeps in the middle;
(f)JNB said “Mum says we can’t sleep in Dad’s bed”;
(g)She and ELB don’t have a routine at their Dad’s house; she wakes up, has breakfast then gets changed and does her teeth and so does ELB. JNB has her own room;
(h)Dad wakes ELB up and hops into ELB’s bed and she knows Dad normally goes into ELB’s room and wakes her up because she comes into ELB’s room and Dad’s waking ELB up, he’s not actually shouting but he’s just saying time to wake up and stuff like normal Dads do;
(i)JNB hadn’t heard about that other thing and didn’t know that MRB was touching ELB’s private parts;
(j)When asked by the police officer how she feels around Dad JNB says “Well he seems really safe”. (When she says this she appears very focused and is looking at the camera).
JNB also gave brief pre-recorded evidence. She stated her date of birth and the date being 31 March[10]. She confirmed the contents of her interview with the police were true. JNB was not cross examined.
[10]I have excluded the year because that is not relevant for the purposes of the issues in the trial
The nanny - [CHL]
CHL was a nanny employed by the defendant to assist looking after the complainant and her sister. She worked for the defendant for two periods. The first period started in January 2018 through to about September 2018, then, after a break CHL started work again in March until the end of April or early May 2019.
As the nanny, she would prepare for school in the mornings. She or the defendant would drive them to school. She would attend to house cleaning duties, pick the girls up from school, prepare dinner, general childcare duties. She lived at the defendant’s house and her evidence was she knew the two girls quite well.
CHL knew that custody of the complainant and her sister was shared fifty fifty between MRB and CDG. Her evidence was that she wouldn’t say that she knew the complainant’s mother, they would connect, mainly via text message about sports things or little bits and pieces: day to day things to do with the kids.
On the morning of 29 April 2019, CHL said she was doing a regular routine to get the kids ready for school. JNB was not out of bed. ELB was in bed. CHL’s evidence was that the defendant had got up while she was preparing breakfast, which was unusual, and he said to her he would wake the complainant up and went into her room. CHL said “for me”. MRB was wearing just boxer shorts when he went to the complainant’s room.
She said between MRB going into ELB’s bedroom and her going into ELB’s bedroom was close to 10 minutes. When she went into ELB’s bedroom, she saw MRB lying in bed, under the covers with ELB.
The layout of the complainant’s bedroom is that her bed is right opposite the door, length ways, on the opposite side of the room. There is another little table at the end of the bed and around to the right was a set of bunk beds.
CHL’s evidence was that ELB was positioned laying on her back closest to the wall, furthest away from the door. MRB was laying alongside her, closest to CHL. MRB was facing ELB, on his side. Both ELB and the defendant were under the covers, which were pulled up to their shoulders and their arms were under the covers.
CHL gave evidence that ELB sat straight up when she walked in and called out to her. ELB called out CHL’s name in quite a distressed manner. She gave evidence ELB held her arms out for CHL to come and get her. She said it was distressed, like a desperate cry. ELB seemed distressed and not happy when she had walked into her bedroom. She said ELB’s voice and her face were what indicated to the nanny that she was distressed. ELB held her arms up for CHL to come and grab her. ELB’s arms were straight out, above shoulder height.
She said that when she walked in, the defendant had turned over to her and said, “you have to wake her up gently because she is a princess”. She said she didn’t respond to the defendant, she picked up ELB and carried her out to the kitchen. ELB was wearing her pyjamas.
She said there were no lights on, it was day light, the room had curtains and she believed they were open.
Once she was out of the bedroom, CHL prepared ELB’s breakfast and brushed her hair to get ready for school. Whilst doing that she spoke with ELB about the defendant. She said she asked the complainant how that made her feel, “did that make you feel uncomfortable with Daddy coming in your bed” and the complainant said ‘yes’. Her evidence was ELB didn’t say much at all, she was very shut down. She asked the complainant if the defendant had done anything else to make her feel uncomfortable or touched her in an inappropriate way and the complainant was kind of distressed and shrugged. CHL could not remember the exact words she used with the complainant.
Between grabbing her from the room and that conversation was approximately 15-20 minutes and that was the only conversation that day about it.
CHL gave evidence that ELB and her sister went back to their Mum’s house that afternoon and on the night of 1 May 2019 they came back to the defendant’s house. She briefly saw the girls on that evening but then again on 2 May 2019 in the morning.
That morning CHL did not have to get ELB out of bed, ELB was on the couch in a different sitting area from the loungeroom, crouched down so low that CHL had walked past ELB without noticing her there.
Later on whilst they were getting ready CHL asked ELB to come outside and help whilst she was doing something with the bins. There were things that concerned CHL that morning that related to ELB and the defendant.
CHL said outside with ELB and asked her what had happened on Monday morning, 29 April 2019. She asked the complainant again if it made her feel uncomfortable, ELB responded, “yes and that I don’t like it”. She asked the complainant “does he ever touch you under your clothes, does he ever touch your privates” and the complainant said, “yes and I don’t like it”. She said that the complainant said that without any hesitation. She said there was then a conversation about the complainant telling her mother and being brave and doing something about this because it isn’t right.
The defendant dropped ELB and her sister at school that day.
CDG then called her, and they had a conversation about what the complainant had said that morning. She and the complainant’s mother then went to the school and took the complainant out of school. The complainant’s mother had a conversation with the complainant that CHL was present for.
CHL’s evidence about that conversation was that the complainant’s mother asked what happened and ELB said that the defendant had touched her on her front privates. CDG asked if this had happened before and ELB said yes, it happens sometimes in the mornings before school and it usually hurts at school and sometimes for a couple of days. ELB called the area that hurts her front privates.
A number of things were explored with CHL in cross examination.
CHL’s evidence was that usually her communication with CDG was by text message, though there was the occasional phone call. Her evidence was there were a few phone calls before the call on the morning. She told the court she did not recall saying the last time she gave evidence that the first time she’d ever spoken to CDG was on 2 May 2019, just after ELB’s disclosure. When she was taken through the transcript of her evidence on the earlier occasion, where she had expressly given evidence that it was the first telephone call she explained the discrepancy on the basis that perhaps she misunderstood.
As to her evidence that ELB sat straight up when she walked into the room that morning, it was put to CHL that she said nothing about that in her police statement which she gave on 2 May 2019. It was also put to her that she said nothing in her police statement about ELB putting her arms out. Her explanation for this was that she wasn’t asked specifically what the complainant was doing with her arms. After being reminded that she had in fact volunteered the information in a conference with the Crown Prosecutor prior to the first trial, CHL’s evidence was that she imagined the police officer would have asked her what she saw when she entered the room, and she didn’t know why she didn’t refer to ELB firstly sitting up and secondly putting her arms out. It was correct, she said, that the first time she said anything about this was very close to two years after the event, adding “It was not something I would forget in a hurry”.
CHL said it was not the case that ELB got out of bed and came over to her. When her police statement where she had said that ELB got out of bed and came to her was put to her CHL said perhaps there was something left out in the moment, she may have been misinterpreted and ultimately, her evidence was that her police statement was wrong.
The cross examiner then turned to the morning of 29 April 2019 when CHL was brushing the complainant’s hair and had asked her if she felt uncomfortable when the defendant came into her bed and if the defendant touched her in an inappropriate way. CHL denied the suggestion that she was pushing the complainant, specifically stating “I asked her those two questions and left it at that”.
When it was put to her that in conference with the Crown Prosecutor in March 2021 there she had said that “I was pushing her specifically” her evidence was “that was an incorrect choice of word” and she didn’t know why she had said it. CHL accepted that, without her questioning, ELB had not volunteered anything herself on the Monday morning. CHL also accepted that the complainant had not volunteered anything on the Thursday; again she was the one who had introduced the topic. She confirmed what occurred with the complainant as follows:
“You said to her out near the bins, “I’m really concerned about Monday morning when I saw Daddy in your bed”; is that what you said to her? Yes.
That’s in your statement, isn’t it? Yes.
And she said, “Yes, I don’t like it.” That’s her response? That’s correct. Yes.
And then you said, “Has he ever touched you on the private parts that no one is ever to touch you on?” You asked her that question, you put that to her; is that right? Yes. Yes, it is.
And she said, “Yes, and I don’t like it”; is that right? That’s correct. Yes.
Okay. So that’s what I put to you earlier. You see, she never, as it were, spontaneously volunteered things. It was in relation to your questioning of both the Monday and the Thursday that, ultimately, she said that; do you agree? Yes.”
CHL confirmed that when she was in the park with ELB and CDG, CDG said she had to go and see her solicitor. CHL was aware that she did that and that later CDG took ELB to a doctor for a physical examination. CHL did not go to the solicitor or the doctor but was at the police station after that.
CHL was not aware of the complainant having ongoing issues with urinary tract type infections or vulva irritation.
At the conclusion of the oral evidence admissions were made jointly by the parties as follows:
“All matters put to CHL in cross-examination as statements she had made previously were correct.”
And
“CHL gave evidence in court on the 15th of March 2021. During cross-examination, she disagreed that she had used the word “pushed” in a conference with the Crown prosecutor on 12 March 2021.”
Dr Donna Tanchev
Another aspect of CHL’s evidence which struck me as having some significance was about the events of the morning of 29 April 2019. CHL’s evidence was the defendant had got up and had told CHL he was going into wake ELB. In other words, the defendant told CHL where he was going and what he was going to do. CHL’s evidence was it was daylight in ELB’s bedroom, she could see and the curtains were open. CHL gave no evidence that she saw ELB whacking the defendant or telling him to stop. There was no evidence of a closed door when CHL went into ELB’s bedroom some 10 minutes later. There was nothing in the evidence to suggest that there was any limitation on CHL’s movement in the house at any time. There would be a level of brazenness to the conduct ELB alleges occurred on a Monday morning, on a school day, where the adult nanny who was well known to the children was involved in the ordinary routine of preparing the children for school in the defendant’s home. This makes the offending, as ELB alleges it, inherently improbable.
CDG
As ELB’s mother, a heighted state of anxiety about ELB’s welfare is understandable and I make some allowances for that. However, CDG presented as an argumentative and defensive witness in cross-examination and a number of aspects of her evidence concerned me. Some parts of CDG’s evidence strained credibility:
(a)The suggestion that ELB was crying when she saw her at school on 2 May 2019, which was not in her police statement of 2 May 2019. That statement was made on the day that she first saw ELB at school. One would have expected that CDG making a statement on the day of these events, would have told police ELB was crying if that was in fact so. (I observed CHL gave evidence she was present at this occasion but CHL gave no evidence that ELB was crying);
(b)That she had been telling ELB for a long time no one was to touch her private parts, and that ELB had told her she had told her father no one was to touch her private parts. Yet her evidence is ELB had said to her in the car park at school on 2 May 2019 “I didn’t know your parents weren’t allowed to touch your private parts”;
(c)That she had told ELB on 2 May 2019 no one, not even a doctor, could touch her private parts but when ELB refused a clinical examination “it was her choice”. This is in circumstances where Dr Tanchev’s evidence was that CDG did not tell her that she (CDG) had told ELB about not even doctors being permitted to examine her privates; and
(d)That ELB had not been examined by Dr Tanchev when she had been taken in consultations with her about ELB subsequent to 2 May 2019; which was especially contradicted by Dr Tanchev.
Given these matters I do not accept CDG’s evidence that ELB was crying when she saw CDG in the carpark at school.
Conclusion
My conclusion is that I am not satisfied the Crown has proved the case to the required standard.
Accordingly, the verdict is not guilty.
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