R v NBB (No 5)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v NBB (No 5)
Citation:	[2020] ACTSC 190
Hearing Dates:	24–26 June 2020
DecisionDate:	15 July 2020
Before:	Murrell CJ
Decision:	Not guilty on all counts.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Incest with person under 10 years
Legislation Cited:	COVID-19 Emergency Response Act 2020 (ACT) Crimes Act 1900 (ACT) s 62(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 4AM, 49, 57, 74, 80B Supreme Court Act 1993 (ACT) ss 68B, 68C
Cases Cited:	R v NBB (No 2) [2020] ACTSC 85
Parties:	The Queen (Crown) NBB (Accused)
Representation:	Counsel K Lee (Crown) D Berents (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Accused)
File Number(s):	SCC 230 of 2019 SCC 293 of 2019

MURRELL CJ

As a result of amendments to s 68B of the Supreme Court Act 1993 (ACT) (SCA) effected by the COVID-19 Emergency Response Act 2020 (ACT), during the “emergency period”, an accused may elect to be tried by a judge alone in relation to “excluded offences”, including the subject offences: SCA s 68B(3A)(b).

The accused elected to be tried by a judge alone and his legal practitioner certified that he had been advised in relation to the election and had made the election freely.

When arraigned before me sitting as a judge alone, the accused pleaded not guilty to the following charges:

(a)Count 1: between 1 January and 31 December 2015, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a pencil);
(b)Count 2: between 1 January and 31 December 2015, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a pencil later on the same day as Count 1);
(c)Count 3: between 1 June and 31 July 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using a stick in the backyard);
(d)Count 4: between 1 January 2015 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using the nozzle of a shower gel container during a bath time when the complainant’s sister LB was present);
(e)Count 5: between 11 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration involving the Xbox and/or observed by the complainant’s sister DC);
(f)Count 6: between 11 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration);
(g)Count 7: between 1 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (digital penetration with fingers wrapped in undies, witnessed by the complainant’s sister AC); and
(h)Count 8: between 11 and 20 August 2016, he engaged in sexual intercourse with the complainant, his stepchild, a person under the age of 10 years (anal penetration using the nozzle of a shower gel container during a bath time).

In order to protect the identity of the complainant, in this judgment his name and other names have been anonymised: Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA) s 74.

Personae

The complainant (born late 2007) is the child of IB and SH. IB had two children of a previous relationship, DC (born late 2003) and AC (born early 2006). IB and SH separated in about 2008.

SH re-partnered with OH.

In 2013, IB married the accused (born 1989). IB and the accused had one biological daughter together, LB (born mid-2013). The accused, IB, DC, AC and LB lived in Theodore.

As at August 2016, IB and SH maintained a relatively good relationship. Custody was shared equally; the complainant stayed with his parents on alternate weeks. The changeover was on Friday afternoons.

UX is the accused’s half-sister and the complainant’s auntie. Between June and August 2016, she resided at the Theodore residence.

Between 1 February 2016 and 21 December 2016, IB worked as a swimming instructor, finishing as late as 7 PM. The accused worked from August to December 2015 but did not work during 2016.

Crown opening

The Crown case was that, between January 2015 and August 2016, the accused used his fingers and various objects to anally penetrate the complainant, who was then seven or eight years of age.

The Crown relied on other incidents (involving shaving cream and shower gel) as relationship/context evidence.

In accordance with Burns J’s ruling in R v NBB (No 2) [2020] ACTSC 85, the evidence supporting each charge was tendered in support of each other charge as tendency evidence showing that the accused had the tendencies:

(a)To have a sexual interest in the complainant; and
(b)To act on the sexual interest in the complainant.

Defence opening

The accused agreed that the complainant was his stepchild and that the complainant was less than 10 years of age at the relevant times. He agreed that he had bathed the children when IB was absent, including during the week prior to the complainant’s disclosures.

The accused denied all allegations of intercourse.

Directions

I set out the principles of law that I have applied for the purpose of arriving at verdicts: SCA s 68C(2). I also set out the warnings, directions or comments that would have been given had the matter been tried before a jury: SCA s 68C(3).

General directions

The charges upon which the accused is being tried are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty on each charge.

The Crown bears the onus of proving the guilt of the accused beyond reasonable doubt. The accused is presumed to be not guilty of each charge. If I have a reasonable doubt about his guilt on any charge, I must return a verdict of not guilty on that charge.

In order to prove a charge beyond reasonable doubt, the Crown must prove each legal element of the relevant offence beyond reasonable doubt. The Crown need not prove each disputed fact beyond reasonable doubt (unless proof of that fact is essential to proof of a legal element).

In making findings of fact, I must rely upon the evidence, i.e. the evidence given by the witnesses and the evidence contained in the exhibits. I must apply my common sense. I must bring an open and unbiased mind to the evidence and consider it dispassionately and logically.

I must consider the reliability of witnesses, looking both at their honesty and the accuracy of their memory. Logically, it may be that a witness should be accepted on one matter but not another. If it is logical to do so, I may accept one part of a witness’s evidence and reject another part of the witness’s evidence, or—as was the case with several witnesses in this trial—I may doubt the witness’s reliability without entirely rejecting the possibility that they told the truth.

The complainant

In this trial, the complainant’s evidence was given by an audio-visual police interview and by audio-visual link from a remote room. He had a support person present and his evidence was given in the presence of an intermediary. These matters are usual practice. I draw no adverse inference against the accused and the evidence is accorded no greater or lesser weight because it was given in that way: EMPA ss 4AM(3), 49, 57.

As the complainant was the critical prosecution witness and—in the case of most of the alleged offences—the only prosecution witness capable of giving direct evidence of the events in question, I must examine his evidence very carefully before deciding whether I accept the key aspects of his evidence beyond reasonable doubt.

Although the charges must be considered separately, the verdicts must be consistent. Consequently, if I doubt the evidence of the complainant on one charge, I must consider whether that doubt causes me to doubt his evidence on the other charges.

It is not up to the accused to establish a motive or reason for the complainant to lie or be mistaken. The issue is whether I accept the complainant’s evidence about the critical events beyond reasonable doubt.

The accused

The accused decided that he would not give evidence. He was entitled to exercise that aspect of his “right to silence” and I draw no adverse inference from his decision to do so.

In a police record of interview, the accused provided his version of events. I must consider that version. Even if I do not positively believe the version given by the accused, I must not convict if that version gives rise to a reasonable doubt about his guilt on any charge.

Even if I completely reject the accused’s version of events, that does not strengthen the prosecution case. It is neutral. I still need to consider whether, on the evidence that I find to be reliable, the prosecution has proved each charge beyond reasonable doubt.

Complaint direction

The complainant made a disclosure first to OH (on the weekend after Friday, 19 August 2016), and next to his father, SH (on the following day). Later, he made a disclosure to Dr Sansum.

These disclosures (complaint evidence) can be used in two ways.

First, the evidence may be relevant to the complainant’s credit. I must consider whether there was a delay in complaint, the terms of the complaints, and whether any delay reflects adversely on the complainant, or whether there were good reasons for any delay. The absence of complaint or a delay in making a complaint does not necessarily indicate that the allegation concerning an offence is false. There may be good reasons why any victim of a sexual offence (especially a child) does not make, or hesitates to make, a complaint: EMPA s 80B(2).

Second, as each of the complaints was made when the events in question would have been “fresh in the memory” of the complainant, each complaint provides some evidence of the facts asserted. However, complaint evidence is not of the same quality and independence as direct evidence.

Tendency and context directions

As the incidents upon which the prosecutor relied as tendency evidence for each offence are the other alleged offences, I must first be satisfied beyond reasonable doubt that a particular offence occurred before I can use that offence as tendency evidence.

I must then be satisfied that the tendency evidence shows that the accused had the asserted tendency or tendencies at the date of the offence under consideration.

If I am satisfied that there was a tendency or tendencies at the relevant time, then I treat that tendency or tendencies as one circumstance supporting the prosecution case––not as direct evidence that the alleged offence actually occurred, but as one circumstance that may make it more likely that the accused committed the offence in question.

I cannot reason that, because the accused misconducted himself on the occasion(s) the subject of the tendency evidence, he is generally a bad person and, because he is generally a bad person, it is more likely that he committed the offence under consideration.

Apart from the incidents the subject of the charges, the prosecution relied on other general evidence of sexual misconduct by the accused towards the complainant. If the evidence was accepted, the only basis upon which I could rely upon it is to show that the alleged conduct the subject of the charge(s) was not isolated, to give context to the conduct and to show that it did not occur “out of the blue”.

Elements of the offences

Each charge alleged incest with a person under 10 years of age, contrary to s 62(1) of the Crimes Act 1900 (ACT). Section 62 provides:

62Incest and similar offences
(1) A person who engages in sexual intercourse with another person, being a person who is under the age of 10 years and who is, to the knowledge of the firstmentioned person, his or her lineal descendant, sister, half-sister, brother, half-brother or stepchild, is guilty of an offence punishable, on conviction, by imprisonment for 20 years.
…
(5)A person charged with an offence against this section shall, unless there is evidence to the contrary, be presumed to have known at the time of the alleged offence that he or she and the person with whom the offence is alleged to have been committed were related in the way charged.
(6)In this section:
stepchild, in relation to a person, means a person in relation to whom the firstmentioned person stands in place of a parent.

In relation to each charge, the Crown had to prove each of the following legal elements beyond reasonable doubt:

(a)The accused engaged in sexual intercourse with the complainant;
(b)The accused intended to engage in the sexual intercourse;
(c)The complainant was under the age of 10 years;
(d)The complainant was the stepchild of the accused (a person to whom he stood in place of a parent); and
(e)The accused knew that the complainant was his stepchild.

In relation to each charge, there was no dispute about elements (c), (d) or (e), nor was there any question about whether, if any of the alleged acts of sexual intercourse had occurred, it was intentional. In relation to each charge, the sole issue was whether the accused had engaged in the alleged act of sexual intercourse with the complainant.

The evidence

Complainant

At the time of the trial, the complainant was 12 years old. He was in Year 7 at school.

Counts 1 and 2

On Tuesday 23 August 2016, police conducted an evidence-in-chief interview with the complainant, who was then eight years old.

The complainant said that “the first time” that he been assaulted was when he had been colouring in.

The accused “found a pencil”, a sharp pencil, pulled down the complainant’s shorts and underpants and “shoved it in [the complainant’s] butt. The accused put the sharp end of the pencil “inside [his] butthole”. The complainant objected, but the accused responded that he was an adult and the complainant could not tell him what to do. The incident occurred in the dining room.

The accused sent the complainant to his room.

Later, when the complainant came out of his room, the accused said, “you ready for me to do it again?”. The complainant said “no” and returned to his room. The accused chased the complainant with the pencil. The complainant stopped because he was asthmatic and felt that he might faint. The accused “shoved it in [his] butt again”, i.e. pulled down his shorts and underpants and forced it in. The complainant screamed.

The complainant told the accused that his bum hurt, to which the accused responded, “You’ll live. You’ll get better”.

In court, he said that he was unsure whether his mother had been at home at the time of the incident. He could not recall whether anyone else had been present.

The complainant’s mother did not witness the incident. However, he told her about it on the night that it happened, saying that the accused had put a pencil up his bottom. His mother “went and roused [the accused]” and told the accused to “Stop that, C”.

The complainant said that the incident had occurred in “about last year”, i.e. in 2015. In court, he said he was unsure whether the incident had occurred before or after his mother had commenced work as a swimming instructor.

Thereafter, the accused only assaulted the complainant when his mother was absent. When she went back to work, the accused told him, “All right. I’m going to do this again”.

The complainant said that “whenever I’m colouring in, I get the pencil”.

Count 3

The next assault occurred when the complainant was jumping on the trampoline in the backyard. The accused located a “thick stick” (although the complainant also described the stick as a “skinny long” stick) near the fence at the rear of the backyard and told the complainant to “come down here” as he had “a surprise”.

The complainant dismounted the trampoline. The accused chased him with the stick. The complainant paused for breath because he was asthmatic. The dogs began to bark and the accused “whacked the dogs” and told them to stop barking.

The stick went “really, really far” up the complainant’s anus. In court, the complainant said that the accused inserted the stick in the complainant’s anus “a fair bit”. The complainant screamed and said “ow”. The accused told him to shut up, pulled the stick out and threw it over the neighbour’s fence.

The accused threatened the complainant with “the bullet and the pliers” and a hammer if he told anyone.

A neighbour, BD, came to their front door and knocked. She asked why the complainant had screamed and the accused responded that “the dog just bit him”. In evidence, the complainant said that he had not heard the exchange but had been told about it by his mother when she (his mother) “came back inside”. At that time, the complainant was in his bedroom.

The stick had put a hole in the complainant’s pants and undies. When his mother had come home from the shops, she had seen the hole and he had told her what had happened. They had been his favourite shorts (short green board shorts) but his mother had told him to throw them out because of the hole. The undies had also been thrown out. His mother had said that she would rouse on the accused and she had yelled at the accused.

After the incident, there was blood and “sticks” in his faeces. He screamed. When his mother asked the cause, the complainant responded “that time that I told you that [the accused] stuck the stick up my butt … it really hurt and now I’m pooping out parts of branch and, um, blood”. His mother “roused on [the accused]”.

The complainant told police that the stick incident had occurred “two months ago”, and that it had been about a month before his mother had been offered a job at the swim school.

The complainant said that, following this incident, nothing happened for about two weeks.

Count 4

The complainant usually had a bath with his younger sister LB at about 7 PM, before his mother returned home from work.

He said that “after the stick it was the shaving gel” and then corrected himself to say, “pencil and then the shaving gel, then the soap because the soap he’s doing 24/7 now”.

The accused put shower gel on him because LB “thinks it’s fun when [the accused] squirts it on us”. The first incident involving the shower gel started with the accused putting shower gel on him “and one time he turned it around and shoved it in my bum and squeezed it and I screamed”. The accused “started squeezing half a bottle in there”. The accused repeatedly said, “this is what you get for not admitting that you’re gay”.

His mother returned home from work half an hour later. She usually returned home from work at about 7:30 PM.

Later that night, the accused gave the complainant his Ventolin inhaler and said “Ha, you’re sucking a penis”.

Afterwards, the complainant’s faeces was “runny” and “basically blue”.

The incident occurred in daylight saving time at 7 PM.

In court, the complainant said that he did not remember much about the incident as it had occurred “ages ago”.

Counts 5, 6 and 7

When he spoke to police, the complainant referred to events on the previous Monday, Tuesday and Wednesday.

The complainant explained that, if he or his sisters wanted to play with the iPod or Xbox for an hour, “we have to give [the accused] a massage for two and a half hours”.

On the Monday, the complainant gave the accused a massage “just so I can play the Xbox” and then the accused “started to shove his fingers up my butt when I was walking down the hallway to go to the lounge room to play the Xbox”. The accused pulled the complainant’s shorts and underpants to one side to fit his hand in and had put his fingers inside the complainant’s “butthole”.

On the Monday (or “one-day”), the accused had digitally penetrated him. The door had not been completely shut and the accused had been sitting on the complainant “ramming his fingers in [his] butt” when DC had walked in and gasped. The accused had removed his fingers and said, “Do you want me to do this to you too?”. DC had gone to fetch his mother, who was asleep on the couch. After the incident, the accused had been in “more trouble”.

In court, the complainant was not sure whether the Xbox incident and the incident observed by DC had been the same incident.

On the Tuesday, the accused had announced to the complainant “we have to finish the argument”. When the complainant had asked “what argument?”, the accused had replied, “this argument” and had put his fingers “straight up [the complainant’s] butt”. The complainant had said “ow”. His younger sister LB had come and asked what was happening and had gone to tell her aunt. She had started crying. DC and AC had been at a friend’s house.

In court, the complainant could not recall where this incident had occurred or how the accused had inserted his fingers, but he said that he had been clothed.

On the Wednesday (or, in evidence in court, Tuesday), the accused had a pair of undies (or “jocks”), scrunched them up and “kept on shoving that up my butt instead – well, his fingers were wrapped in it”. He had used two fingers. AC had “heard [the complainant] yelling at [the accused] for it” and had told his mother. The accused’s fingers had gone “inside [his] body”.

The complainant also said that this incident had “happened three weeks ago”. He had come out of the toilet and the accused had pulled down the complainant’s pants and put two fingers in the complainant’s “butt” “wrapped around with undies”. The accused had said, “This is what you get for saying that you’re not gay”, then his baby sister had come up.

Count 8

The complainant told his mother “everything”. She said that she would speak to the accused and there was a fight.

The accused punished him by putting him in the corner “last Wednesday” and “then it went to Thursday with the shaving cream”. On the Friday, he had returned to his father’s home and nothing had happened since.

On Thursday (18 August 2016), the accused “put shaving cream in my butt”. The shaving cream only went “inside the crack”, between the bum cheeks, making it slippery. The complainant said that this means “it would go in … it wouldn’t hurt as bad because it doesn’t take as long for the shower gel … head bit to get in there”. Then, the accused “did the shower gel”.

On the Thursday, the complainant had swimming lessons and obtained a medal. In the car, the accused had said “Boo. You suck. You’re gay” and referred to “Swimming Gay Champion”. They ate butter chicken for dinner.

On Thursday night during bath time, when the accused was shaving, he put shaving cream (or shower gel?) on the complainant’s body, saying “That’s your soap”. The accused told the complainant that he had to “wash inside [the complainant’s] butt”. The accused put the shower gel nozzle in the complainant’s anus and squeezed. It was a big white bottle of blue shower gel. After covering the complainant’s body, the accused walked away but then returned saying “I forgot one thing … To put some on your butt”. The complainant said, “You know it hurts me?” and the accused responded, “That’s the point”.

The accused said, “I’m going to put different things up your bum now” and “time for me to stick three-inch fingers in your bum”, but his mother arrived home.

Other evidence of the complainant

The complainant said that “every night when I’m over there he does the shower gel. Like, every time he shaved, I get the shaving cream … Whenever I’m at the back, I get the stick. Whenever I’m colouring in, I get the pencil”. He said that the accused “basically keeps doing the same thing over and over again”. In evidence, he said that he could not recall how many times the accused had put the shower gel up his butt.

The complainant could not remember much “because the rest of them was a few months ago”.

Towards the beginning of the police interview, the complainant told police that “he mainly does it in the cubby houses because he can’t get caught. So I try and make him not come in my cubby houses”. Later in the interview, when asked whether it had ever happened in the cubby house, the complainant said “no”. In court, when asked whether the accused had done anything in a cubby house, the complainant responded, “No, I don’t think so, no. Well, not that I can remember”.

The complainant told police that the accused had threatened to punish him if he told his father. In evidence, he said that the accused had told him that he would hold the bullet and the pliers and hit it with a hammer. The accused had told him that he would be stabbed and shot if he told anyone about what had happened. The complainant would be stabbed “by these … knuckle things that he had … that you put on your knuckles and they had screws coming out of the end of them”.

The complainant said that his sisters DC and AC had seen what was happening and had asked whether he was okay. When he had said that his “butt really hurts”, they would respond “I can imagine. It looked like it hurt”. Nothing had happened to his sisters.

The complainant did not recall telling MT and the accused that he had seen SH with a vibrator up his bottom.

In his record of interview, he told police that another child had told him that if the complainant “told on him, he would put his penis in our butts so we didn’t tell”.

The complainant presented as intelligent and articulate, both in the police interview and in court. On several occasions during the police interview, he demonstrated the conduct that he was describing, which added credibility to his account.

OH

OH said that, over the weekend following Friday 19 August 2016, the complainant had seemed shut off and had not said much. At school, in the preceding week or weeks, the complainant had been taught about “private parts”.

That weekend, the complainant told her “my bum is sore”. There was a conversation to the following effect:

OH: Your bum will be sore because you have been on antibiotics and you might be going to the bathroom more.
Complainant: Or it could be because [the accused] put shaving cream up my bum.
OH: Do you mean on or up your bum?
Complainant: No, I mean up my bum. I was in the bath with [LB] and [the accused] was there.
OH: Did anything else happen?
Complainant: Yes.
OH: It’s good you told me. I might have to tell dad. You might have to tell dad tomorrow.
Complainant: I’m worried because [the accused] said he would fight dad if he needed to.

During this conversation, the complainant was very quiet and seemed scared.

OH told the complainant that she needed to tell his father. The complainant was “worried that that his dad would get hurt because he said to me that [the accused] said he would fight [SH] if he needed to”.

The following day, after school, at the home of family friends, there was a conversation to the following effect:

OH: Tell dad what you said about [the accused].
Complainant: [The accused] put shaving cream up my bum. It was squirted up my bottom.
SH: Was there anything else?
Complainant: [LB] and I were playing with the shaving cream and rubbed it on our bodies and after that [the accused] inserted it up my bottom. [Soap, pencils and a stick were mentioned]. [The accused] tried to twist his undies and tried to put his fingers up my bottom. In the bathroom, the pump was inserted up my bottom and pumped and it changed my poo colour to green.
SH: Did you tell your mum?
Complainant: Yes. She roused on [the accused].

During this conversation, the complainant looked scared. He said words to the following effect:

I’m scared I will get into trouble from mum and [the accused] and that [SH] will get hurt as [the accused] said he would fight him.

The complainant agreed that he would speak to the police. SH attempted to speak to IB about the disclosure, but “got no response”.

OH had heard the accused call the complainant “gay” a couple of times as a joke.

OH was a credible witness. She appeared to be distressed when recounting the details of the disclosure.

SH

SH said that, as at August 2016, the custody split was working well.

In purely text communications, SH asked IB whether she would cancel child support as she had started working, but she had refused as the accused was not working. It had been agreed that he would continue to pay child support until the accused obtained work.

When OH told SH of the complainant’s disclosure, SH decided that he would not speak to the complainant until the following day, to see whether his account remained consistent.

On the following day, at the home of family friends, the complainant said that the accused had put a soap pump, stick, pencil and fingers “up his bum”. SH recalled that the complainant may have said that the pencil was used while they were wrestling in the lounge room; that the accused had grabbed it and poked it in the complainant’s bum. The complainant said that the stick incident had occurred outside, in the front or back yard. SH was “pretty sure” that the complainant said that the soap incident had occurred in the shower. He acknowledged uncertainty regarding what had been said about the shaving cream incident; he agreed that the reference to shaving cream may have “come out of the affidavit that I read to get the text message about child support”.

During this conversation, the complainant seemed frightened. SH asked him why. The complainant responded that he had been “threatened”. The complainant said that he had complained to his mother on “a couple of occasions”.

After speaking to police, the complainant had seemed relieved and happy.

SH denied that he had discussed a vibrator with the complainant, shown him a vibrator or used a vibrator in the complainant’s presence.

SH had heard the accused calling the complainant “gay” when “mucking about”.

There was no suggestion that SH was anything other than a reliable witness.

AC

In August 2016, AC was interviewed by the police. At that time, she was 10 years old. At the time of the trial, she was 14 years old and in Year 8.

AC told the police that she had never seen anyone hurt the complainant with a stick or with their hands and that nothing “weird” or hurtful had happened during the complainant’s most recent stay. She had never seen the accused put anything in the complainant’s bottom and the complainant had never told her that the accused had put something in his bottom. She had never reported an incident to her mother. She was quite definite that she had seen no-one “hurt [the complainant’s] bottom”.

She had never seen the accused put a pencil in the complainant’s butt crack or her mother’s butt crack. The accused had not subjected her to such behaviour.

When her mother was at work, the accused looked after the children, cooked dinner and supervised bath time. LB and the complainant would bathe together, and she and DC had showers after they had finished. Her auntie did not watch the children bathe.

“Sometimes” the children had to give the accused a massage before they were permitted to play games such as Xbox.

She had never heard the accused call the complainant “gay”.

Assessment of AC

During the police interview, AC was frightened and/or upset. Her head remained buried in her hands. She would not look at the police. She whimpered. She whispered many of her answers. At other times, she was unresponsive to questions or just nodded slightly.

There was nothing about AC’s evidence in court to suggest that she was lying. She was the first person in the accused’s household to whom police spoke; they spoke to her before they spoke to the accused and did so in the absence of both her parents. There was little, if any, opportunity for her to be coached in her answers.

Confidently, I consider that AC was a reliable witness.

It is possible that the complainant was mistaken about AC witnessing Count 7 and reporting the incident to IB. However, the complainant suggested that AC had observed more than one incident; she was adamant that she had seen none.

DC

DC was 12 years old as at August 2016. She was 16 years old and in Year 11 when she gave evidence.

In 2016, DC did not make a police statement.

In evidence, she agreed that she loved the accused as a father and had formed a “really tight bond” with him. She had “never got along” with the complainant and “didn’t like him”.

The complainant and LB would bathe together, and no one would be there. Sometimes, her mother would wash LB and sometimes she would shower at the same time. The accused did not watch them. She did not believe that her auntie watched them in the bath.

She had never observed the conduct the subject of the charges, nor had the complainant reported such conduct to her. She had never asked the complainant whether he was okay (she “couldn’t care if he’s okay or not”). She had never seen the accused put a pencil down the complainant’s “butt crack” or heard the accused call the complainant “gay”.

Assessment of DC

DC said that she had heard SH ask her mother “for full custody of [the complainant]”, her mother had responded in the negative and “the next day all this stuff came up”. She had overheard this conversation because it was on speakerphone. However, both the participants in the alleged conversation (IB and SH) denied that it had occurred.

DC was obviously uncomfortable when giving evidence. She swung about on her chair. She became emotional and defensive when the allegations of sexual impropriety were raised. However, from her demeanour, it was difficult to conclude whether she was lying or simply upset about the allegations against a man whom she regarded as a father and the fact that she was giving evidence.

I have limited confidence in the veracity of DC’s evidence.

IB

IB remains married to the accused.

In mid-2016, she worked as a swimming instructor. She had fixed shifts on Wednesdays, Thursdays and Saturdays, but also “filled in” when other instructors were unable to work. At times, she worked “the majority of the week”.

On weekdays, she arrived home at 7:30 PM. The accused looked after the 6:30 PM dinner and ran the bath and shower. By the time that the bath and shower routine had started, she would be walking through the door from work. She would stand in the doorway to the bathroom or sit on the floor beside the heater on the hall wall and talk about her working day with the accused, UX and the children. UX would sit in front of the heater and talk or walk around. She had no role in the bath time routine.

Because there was a water problem, showering was a case of “quickly in and out” for the older girls and herself. The complainant and LB would be in the bath, the older girls would shower with the door open and IB would sit or stand in the doorway. There were times when she herself showered while the complainant and LB were in the bath.

The accused would be “walking back and forwards around the house when [the older girls] were getting out of the shower … he would make sure he couldn’t see”. As the older girls were part of bath time, there were only one or two times when the accused had been in the bathroom during bath time and that was when he was shaving.

There had been an incident in 2016 when the complainant and LB had been in the bath, she had been in the shower and the accused had been shaving. The accused had poured shaving cream on the children’s hands and they had rubbed it onto their bodies, “danced around” and then washed it off in the bath. However, it was more accurate to say that the accused had put shaving cream on the children’s faces and they had rubbed it all over their bodies. The complainant had sung “we are shaving”. She thought that the complainant had not yet turned eight years old when this incident occurred.

There was a family joke involving pencils. If a family member was wearing their pants so low that one could see their “butt crack”, another family member would throw a pencil and try to land it in their pants. This was referred to as “pencil up the bum”. She, the accused and all the children had participated in this game.

Something may have happened to the complainant, but she was sure that the accused was not the culprit. On one occasion, a Year 6 student had dragged the complainant to the toilets and tried to force the complainant to suck his penis. IB had reported the incident to the principal.

In August 2016, she had told the police that the complainant had lied, had “anger issues” and had said that he had seen SH “sticking a vibrator up his butt”.

At a barbecue attended by a family friend MT, the family group had been in the lounge room when the complainant had “randomly” volunteered that “my dad has a vibrator” and that “I walked in and he was sticking it up his bum in the lounge room”. He had known that it was a vibrator because it “has volumes that go up and down” and it “makes the bzz noise”.

IB had intended to speak to SH about the matter and/or report the disclosure to the authorities. She had not been able to speak to SH because OH “never left me alone with [SH]”. At the time, she had been unsure whether the statement was truthful. In an affidavit completed in September 2016, she had stated that she had not raised it with SH because she had not been sure whether it was true, “didn’t think much of it” at the time and had not wanted to spoil the complainant’s relationship with SH.

She was familiar with the signs of abuse and had seen none. The accused had never called the complainant “gay” or teased him with that expression.

The complainant had not disclosed abuse to her, and she had not “roused” on the accused (she said, “that’s not what I would have done”). The girls had never told her about the accused putting fingers in the complainant’s anus.

No shorts belonging to the complainant had been thrown out because they had a hole in them. The complainant’s favourite pair of green boardshorts were not thrown out.

She had never observed sticks in the complainant’s faeces.

She did not remember telling the police during her interview in 2019 that:

I did my statement over the phone [in 2016] and … I've said all I knew. They asked if I ever suspected of anything between the girls and [the complainant] with [the accused]. I said, “No. He's never been left alone with them. That was one of our agreements when we first got together was, because they're not his children, we didn't want him to be in the bathroom alone, we didn't want him in a room while they get dressed. Just - it was just our agreement.”

However, there had been a “habit of [the accused] not being alone” with the children because of an incident involving one of the other children and a third party. However, “there would’ve had to be” times when the accused was alone with the children.

During the relevant week when the complainant had been in her household, she had received a text communication with SH concerning child support. There had been no conversation regarding child support over the phone or in person.

Assessment of IB

When giving evidence, IB was defensive, irritable and, at times, aggressive. I found her explanation as to why she took no action following the vibrator disclosure contradictory and unbelievable. Nor do I believe her purported recollection of a shaving cream incident. The picture that she painted of a family gathering around the bathroom that, in effect, denied the accused any opportunity to commit offences in the bathroom was inconsistent with the evidence of other witnesses. Her explanation of the “family joke” of “pencil up the bum” was bizarre and it was contradicted by DC and AC. She denied that the accused had called the complainant “gay”, but the accused said that both he and IB had described the complainant in that way, and in 2016, IB herself told the police that they had used that expression.

IB said that she was angry and frustrated because people did not believe her. That sentiment may explain her demeanour when giving evidence but would not explain her evidence concerning the vibrator disclosure, family joke and bath time group gathering, which I do not believe.

I place little reliance on the contentious parts of her evidence. However, even if she lied about important matters, that does not bolster the prosecution case.

UX

UX resided with the family from June 2016. Generally, she was at home.

When IB was absent in the evening, the accused looked after the children, including bathing them. He would squirt soap onto the complainant’s hands so that the complainant could wash himself. For most of the time, the accused would not be in the bathroom but would be “around that area”.

LB had swimming lessons once a week and, when she was in the bath, she liked to show UX what she had learned. Consequently, UX would sit in the hallway outside the bathroom. LB would demonstrate her swimming knowledge to UX three or four times a week and “it became part of the routine”. UX sat “just past the toilet door, in front of the door of the bedroom”.

UX said that she had received no report of misconduct on the part of the accused.

Assessment of UX

I was not impressed with UX’s evidence concerning the frequency with which she observed bath time. She seemed overly eager to offer it. I consider it to be improbable that, over a period of several months, she observed the swimming demonstration three or four times a week. Her account of where she sat and the frequency with which she observed bath time differed from that of other witnesses.

UX was not a reliable witness.

BD

BD was the family’s neighbour. BD recalled hearing the children play in the backyard, especially once there was a trampoline in the backyard. Sometimes, she heard the family’s dogs barking. On occasion, she would come to the family’s front garden to chat with the accused or IB.

BD said that she had not heard the complainant call out in a distressed state and had not gone to the family’s front door to inquire after him in or before 2016.

Although BD was elderly, she was an astute and reliable witness. I consider that, had she been uncertain about whether the alleged events had occurred, she would have said so.

It is possible that the complainant was mistaken about BD coming to the front door, but it is such a distinctive detail that I am not attracted to the possibility of mistake.

MT

MT is a close friend of the accused. He said that, on 13 August 2016, he was in the lounge room of the family’s home with the accused, IB and all the children when, out of the blue, the complainant said:

I saw my dad stick a vibrator up his bum.

He walked out of the room “pretty much straight away” because he was “gobsmacked” and “couldn’t believe what was said”. Later, there was a conversation with the accused that they “couldn’t believe that that actually came out of his mouth”.

Because of MT’s close relationship with the accused, he has a motive to lie. Although there was nothing about the manner in which he gave his evidence that suggested that he was lying, I prefer to place limited reliance on his evidence.

Dr Catherine Sansum

On Wednesday, 24 August 2016, the complainant was examined at the Canberra Hospital by Dr Catherine Sansum, who was then the medical director of the Child at Risk Health Unit at the Canberra Hospital.

The complainant told her:

“[The accused] was putting stuff (and his fingers) in my butt and saying I was gay.”
“Last Thursday he put shaving cream in my butt.”
“He does it in my butt every night I’m there – in the bath.”
“He put shower gel in my butt and squirts it in with the long bit”. He had bluish poo after the shower gel was inserted.
“He puts anything that is long and puts it in my butt.”
“One time when I pooped there was blood.”
“One time he put a stick in my butt and there were splinters in my butt and poo.”
“He put a pencil in.”
“It hurts and I scream.”
“Mum screamed at [the accused] once so now he does it when she is at work.”

The complainant told Dr Sansum that he often had a “sore butt”.

An external examination of the complainant’s anus revealed significant peri-anal irritation and a tender perineal raphe (the line of skin in the midline between the penis and scrotum). Dr Sansum opined:

It is not possible to determine the cause of this irritation as [the complainant] has been taking antibiotics for the past week which has caused some diarrhoea and discomfort around his bottom. Alternatively, this could be due to local trauma or chemical irritation from the insertion of creams and soaps.

Dr Sansum said that superficial injury to the anus usually healed within one or two days, leaving no scarring. A deeper internal injury took a lot longer to heal and often led to scarring. She did not undertake an internal examination to determine whether there was scarring because it was invasive and uncomfortable for a child and it was not standard practice to undertake such an examination.

Detective Sergeant Luke Perritt

On Wednesday, 24 August 2016, police attended the accused’s home in Theodore.

Later on 24 August 2016, police spoke to IB, who told them:

All them (both sides of the family) teased the complainant about being “gay”, not just [the accused].
[The complainant] had been lying lately.
There was an incident a couple of weeks ago where a fifth grader had threatened to rape [the complainant].
[The complainant] had told her he had caught his father with a vibrator up his butt.

The officer spoke to the complainant’s principal who said that the complainant had been making up stories (possibly, in relation to an assault by another boy) and, when questioned about the truthfulness of those stories, had become agitated and upset.

Accused’s version in record of conversation

In a record of conversation commencing at 3:42 PM on 24 August 2016, the accused told police:

[T]he allegation with the soap dispenser [in the complainant’s anus] I believe would be – I was actually having a joke with him and I squirted it on top of his – like, right on top of his butt crack. … It was just on top. Because he’d been farting all that day and it was, like, literally horrid.
…
I don’t know where this stick, pencil, finger thing is coming from even remotely.

This incident had occurred on the Sunday (14 August). In relation to shower gel, the accused said that one could squirt out only a small amount shower gel.

The accused provided a detailed account of what had occurred during the previous week when the complainant had been at the Theodore house.

He prepared the bath on Friday (12 August), Saturday (13 August), Sunday (14 August), Monday (15 August), Wednesday (17 August) and Thursday (18 August). IB washed LB two or three times in the past week. IB worked on Saturday morning (13 August).

He sometimes got in the shower while the complainant and LB were in the bath.

On the Sunday night, he ran the bath for the complainant and LB, and:

I first started squirting [LB] on the chest and she started laughing. Um, told me to do it to [the complainant], so I squirted it on top of his chest because they complain how cold it is when it hits his – like when it hits both their bodies.

When the accused squirted the gel on top of the complainant’s butt, the complainant said that it was cold, and the accused desisted. The accused told the children to wash off and they did so. IB had been “sitting near [LB]’s bedroom door, which aligns herself in front of the bath”.

On Monday (15 August), the complainant and LB made a cubby house in the lounge room and played in there.

On the Tuesday afternoon while he was cooking dinner, there was fighting or shoving between the older three children and he had sent all three to “the corner” until dinner was ready.

On Thursday (18 August), he prepared the children for their swimming lesson from 5:30 to 6 PM. The complainant and LB stayed with IB to help tidy up before she left work, and the accused went home with DC and AC. UX cooked dinner. The family had dinner and then the children bathed.

In relation to shaving cream, the accused said:

Yes. I put it on both him and [LB]. So I was actually shaving my face.
Um, and [LB] kept asking – kept asking to shave. And – and then [the complainant] suggested to [LB] that they both shaved. So I had a bit of leftover shaving cream on my hand.
Um, I put some on the top of [LB]’s, like, chest to her neck.
Um, with [the complainant] I tried to put it on his cheeks and underneath …
Right underneath his chin.
… [D]irectly under his throat. And then I had a little bit that I wiped off across his chest and his arms, to which he rubbed it all over his body. And [LB] did the same thing. They thought they could wash themselves with it instead of using shower gel.

In relation to the pencil allegation, the accused said:

No. I don’t believe I ever did that.
… That could possibly – when they make a mess, if they sit and they – like, they’re [sic] butt crack hangs out, I drop a – see if I can drop a pencil in.
But I do that to everybody.
…
Actually not often. It’s just, like, every now and then. It’s, you know, sort of one of those jokes. I’m laughing and …

The last time that it had occurred was perhaps 6 to 8 months ago. On that occasion:

Um, last time I can remember it was actually all of them. They were sitting in the lounge room, they were colouring, so they were leaning forward.
Um, and there was [sic] pencils everywhere. And I actually had stood on one and kicked it. Like, my left foot stood on one and as I went to continue walking, my right foot kicked it –
– as well which put a scrape line down my foot … . So as a joke I had looked over and, like, I’d picked up a pencil and seen them and actually all three of them had a bit of their butt cracks showing, so I just –
– sort of dangled to see if I could drop it.

About three weeks earlier, a Year 5 student had threatened to rape the complainant and had told the complainant that he would force him to suck his penis and lick his anus. There had been a family meeting with the school principal.

In relation to requiring the complainant to massage him for an hour if he wanted to play Xbox, the accused said that “I get all the kids to do that” as he has “bad nerve pain”.

The accused said that he had a bullet and pliers in his toolbox, that the complainant had asked him about shooting a bullet and that he had joked about being able to shoot it “with pliers and a hammer or a rock or something”.

Both he and IB had “stirred [the complainant] up about being gay”. He claimed that all the parents (the accused, IB, SH and OH) had stirred the complainant about being gay. All the parents had noticed that the complainant’s Ventolin looked like a penis. One night, the accused, IB and UX had laughed when the complainant had grabbed his Ventolin a particular way, but had told the complainant that he was too young to understand why they were laughing.

Assessment of the account given by the accused

I found it suspicious that the accused was able to provide such a detailed account of the events of each day during the last week that the complainant had spent in the household. Initially, the accused denied any incident involving a pencil, but later recalled in some detail the pencil “joke”, remembering that it had last occurred six or eight months ago. As noted above, while IB (whom I find to be an unreliable witness) recalled the pencil joke, her daughters did not.

These and other responses suggest fabrication. However, while I doubt the accused’s version of events, I do not reject it as not reasonably possible.

Consideration

I am well aware that I may convict on the complainant’s uncorroborated evidence.

In this case, the complainant’s evidence was not uncorroborated. The complaints that he made to OH, SH and Dr Sansum both supported the complainant’s credibility and furnished some evidence of the facts asserted.

However, in relation to each charge, there was another witness who, on the complainant’s account, should have been able to provide supportive evidence, but did not. The complainant said that, in relation to each incident, there was at least one witness who had seen or overheard the incident or to whom an immediate complaint was made. The witnesses were called, but none gave evidence supporting the complainant’s account.

In relation to Counts 1 and 2, the complainant said that he had made a contemporaneous complaint to IB, who had “roused on” the accused. IB denied that there had been a complaint or “rousing”.

In relation to Count 3, the complainant said that he had called out “ow” and IB had reported to him that BD had come to the front door to enquire after his welfare. BD denied her alleged involvement.

In relation to Count 4, the complainant said he had complained to IB. IB denied any complaint.

As to Count 5, the complainant said that the incident had occurred during the most recent visit to his mother’s household. It had been witnessed by DC, whom the accused had also threatened. DC had reported the incident to IB, who had spoken to the accused about it. Both DC and IB denied any knowledge of the matter.

As to Count 6, the complainant said that LB had witnessed the incident and had said that she would report it to UX. UX denied any knowledge of the incident.

As to Count 7, the complainant said that AC had “heard him yelling” and had reported the incident to their mother. AC said that she had not observed any incident that had involved the complainant being hurt and the complainant had never complained to her about the accused putting anything in his bottom. As AC was interviewed by police at her school before they interviewed other family members, there had been no opportunity for other family members to pressure her into lying. IB said that she knew nothing of this incident.

Although I have significant reservations about the reliability of some of the witnesses (IB and DC), I do not completely reject the evidence of any witness. In the case of Counts 3 and 7, the complainant’s account was contradicted by the evidence of BD and AC respectively. Both witnesses were reliable witnesses.

The absence of supporting evidence from any witness in relation to any incident of which they were said to have knowledge causes me to doubt whether the incident occurred in the manner described by the complainant.

Further, BD and AC were reliable witnesses who failed to corroborate Counts 3 and 7 respectively. Consequently, I doubt the evidence of the complainant concerning those charges. I take that doubt into account on the other charges and it adds to my doubt about them.

As I am not satisfied beyond reasonable doubt that any of the alleged offences occurred, none can be utilised to support a tendency that is relevant to whether other charged incidents occurred.

The reasonable doubt that I harbour in relation to each incident is reinforced by the following evidence which questions the complainant’s credibility:

(a)Although I have strong reservations about their evidence, I consider it to be a possibility that MT and IB did give accurate evidence about a “vibrator” disclosure. I accept SH’s evidence that there was no such incident. This gives rise to the possibility that the complainant lied about it.
(b)Through Detective Sergeant Perritt, there was evidence that, in the opinion of the school principal, the complainant had been “making up stories”, at least in relation to an assertion of inappropriate sexual conduct by a fellow student. When the complainant’s disclosure was first made known to his father, SH entertained the possibility that it was not true and might change overnight.
(c)In the police interview, the complainant contradicted himself about a very important matter: whether he had been assaulted in a cubby house.
(d)The complainant said that his sisters had observed misconduct on several occasions (not just the occasions the subject of charges), yet they denied observing any misconduct.

Further, the complainant’s account of several incidents was confused. In relation to Count 7, the complainant said that he was “pretty sure” that there had been only one incident of penetration involving undies. He said that the incident that happened “three weeks ago” but also that it had happened the preceding week. I realise that young children may have difficulty judging time, but there is a significant difference between “three weeks ago” and the immediately preceding week. As to Count 5, the complainant was uncertain about whether the incident observed by DC and the incident involving the Xbox were the same incident.

The complainant presented as a reasonably reliable witness. His account to police had a ring of truth, he presented well when giving evidence in court, and he made reasonably consistent complaints to OH, SH and Dr Sansum. There is a possibility—or even a probability—that something inappropriate occurred within his mother’s home.

However, for the reasons stated above, I am not satisfied beyond reasonable doubt that any alleged offence occurred.

Verdicts

The verdicts are as follows.

(a)Count 1: Incest with person under 10 years (anal penetration using a pencil)—Not guilty;
(b)Count 2: Incest with person under 10 years (anal penetration using a pencil later on the same day as Count 1)—Not guilty;
(c)Count 3: Incest with person under 10 years (anal penetration using a stick in the backyard)—Not guilty;
(d)Count 4: Incest with person under 10 years (anal penetration using the nozzle of a shower gel container during a bath time when the complainant’s sister LB was present)—Not guilty;
(e)Count 5: Incest with person under 10 years (digital penetration involving the Xbox and/or observed by the complainant’s sister DC)—Not guilty;
(f)Count 6: Incest with person under 10 years (digital penetration)—Not guilty;
(g)Count 7: Incest with person under 10 years (digital penetration with fingers wrapped in undies, witnessed by the complainant’s sister AC)—Not guilty;
(h)Count 8: Incest with person under 10 years (anal penetration using the nozzle of a shower gel container during a bath time)—Not guilty.

I certify that the preceding two hundred and seven [207] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.

Associate:

Date:

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Citations

R v NBB (No 5) [2020] ACTSC 190

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R v NBB (No 2) [2020] ACTSC 85

[2020] ACTSC 190

15 July 2020