R v NBB (No 6)
[2020] ACTSC 224
•14 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v NBB (No 6) |
Citation: | [2020] ACTSC 224 |
Hearing Dates: | 6 – 9 July 2020 |
DecisionDate: | 14 August 2020 |
Before: | Mossop J |
Decision: | On each count on the indictment dated 6 July 2020 the accused is not guilty. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse with a person under 10 years – act of indecency on a person under 10 years – Crown case largely based on complainant’s evidence – whether a reasonable doubt exists as to the reliability of the complainant’s evidence – it does – not guilty on all counts |
Legislation Cited: | Crimes Act 1900 (ACT), ss 50, 55, 61, 66B Evidence Act 2011 (ACT), ss 165A, 191 Supreme Court Act 1933 (ACT), ss 68B, 68C |
Cases Cited: | Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 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: | SCC 355 of 2019 |
MOSSOP J:
Introduction
The accused is alleged to have committed seven offences against the complainant, who was under the age of 10 at the time of the alleged offending. Counts 1, 2, 3, 5, 6 and 7 allege that the accused engaged in sexual intercourse with a person who was under the age of 10 years contrary to s 55(1) of the Crimes Act 1900 (ACT). Count 4 alleges that the accused committed an act of indecency on a person under the age of 10 contrary to s 61(1) of the Crimes Act. Counts 1 and 2 are course of conduct charges pursuant to s 66B of the Crimes Act.
At the commencement of the hearing, the accused was arraigned on the seven counts on an indictment dated 6 July 2020. The accused pleaded not guilty to each count.
In order to protect the identity of the complainant, persons referred to in these reasons have been anonymised by assigning each person letters: Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74 (EMP Act). The principal people referred to in the case and their relationships to each other are as follows:
(a)SI is the complainant’s mother.
(b)CF is SI’s partner.
(c)ME is the complainant’s older sister.
(d)TF is the complainant’s younger sister.
(e)M is the complainant’s friend.
(f)B is the complainant and ME’s respite carer.
(g)LX is SI’s psychologist.
(h)IB is the accused’s wife.
(i)BH is the accused’s stepson.
(j)DC is the accused’s stepdaughter.
(k)AC is the accused’s stepdaughter.
(l)LB is the accused’s daughter.
(m)UX is the accused’s half-sister.
Election
As a result of amendments to s 68B of the Supreme Court Act 1933 (ACT), an election could be made for a trial by judge alone in these proceedings, notwithstanding that they related to “excluded offences”: s 68B(3A)(b). Such an election was filed on 22 May 2020.
Directions
Under s 68C(2) of the Supreme Court Act I am obliged to set out:
(a) the principles of law applied; and
(b) the findings of fact which I make.
I am also obliged to take into account any warning or direction to be given, or a comment to be made, that would have been made to a jury in the proceedings had the matter been tried before a jury: s 68C(3).
General principles
The Crown bears the onus or burden to prove the guilt of the accused. The Crown has asserted that the accused has committed criminal offences, therefore the Crown must prove that the accused committed those offences. The accused does not have to prove that he did not commit those offences.
The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offences unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
The accused is presumed by law to be innocent of the offences with which he is charged, unless, and until, the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the events about which the witness has given evidence.
I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.
In this case the accused did not give evidence on oath or affirmation. He was not obliged to do so. The onus at all times lies upon the Crown. At all times the burden lies upon the Crown to prove each element of each offence beyond reasonable doubt.
Directions particular to this case
I have also given myself the following directions.
Liberato direction: There was a significant conflict in the evidence between that given by the complainant and the denials by the accused in his interview with police. Even if I prefer the evidence for the Crown, I should not convict unless I am satisfied beyond a reasonable doubt of the truth of that evidence. Even if I do not positively believe the evidence for the defence, I cannot find an issue against the accused contrary to that evidence if the evidence gives rise to a reasonable doubt as to that issue.
Murray direction: As the Crown case is largely based on the evidence given by the complainant, I need to examine that evidence carefully. I am entitled to convict the accused on the basis of that evidence if I accept it. However, in order for the Crown to establish the charges beyond a reasonable doubt, I would need to accept beyond a reasonable doubt the accuracy of that evidence. It is therefore important that I consider it carefully.
Markulevski direction: Each of the charges against the accused must be considered separately. If I am not satisfied beyond reasonable doubt in relation to one of the charges, I must consider what effect, if any, the doubts that I have about the complainant’s evidence on that charge have in relation to the other charges.
EMP Act: I have also given myself the directions that are required by the EMP Act:
(a)Directions about the manner of giving evidence: In this trial evidence was given by pre-recorded police interviews, by audiovisual link, using a witness intermediary and with a support person present. The evidence of child witnesses was also given by audiovisual link and with a support person present. That is the usual practice in the ACT. I must not draw any adverse inference against the accused and the evidence should not be given greater or lesser weight because the evidence was given in that way: EMP Act ss 4AM(3), 13(2), 49(5), 57(2), 72(2), 101(6).
(b)Delay in complaint: The absence or delay in making a complaint does not necessarily indicate that the allegation that an offence was committed is false. There may be good reasons why a victim of a sexual offence may not make, or may hesitate to make, a complaint about the offence: EMP Act s 80B(2).
I do not give myself either of the warnings or suggestions which are prohibited by ss 80 and 80A of the EMP Act or s 165A of the Evidence Act 2011 (ACT).
I must also give myself those directions which arise out of particular aspects of the evidence in this case:
(a) Complaint: In relation to evidence of complaints made by the complainant after the event, if I accept that the complaints were made and that evidence is consistent with the evidence of the complainant, then I can use that evidence in two ways:
(i)First, I can use evidence of what was said in the complaint as some evidence that the incident did occur as the complainant said. The law says that because of the circumstances in which the complaint was made, I am entitled to use what was said in that complaint as evidence of the truth of what the complainant alleged against a person. I must consider whether I draw that conclusion in this particular case and so treat the complaint as evidence of the alleged incident by the complainant. If I do use it as some evidence of the incident that is the subject of the relevant count, then I must determine what weight to give it.
(ii)Second, whether I do use the evidence of complaint in that way or not, the fact that the complainant raised the allegation against the accused at the time and in the manner that he did may lead me to accept the evidence he gave. In other words, it makes his evidence more believable than if he had not raised the allegation as he did. If I use the evidence in that way, I must determine what weight the evidence should be given.
I must, however, bear in mind that the fact that a person says something on more than one occasion does not mean that what is said is necessarily true or accurate. A false or inaccurate statement does not become more reliable just because it is repeated on one or more occasions.
(b)Tendency: Burns J made a pre-trial ruling in relation to tendency evidence: R v NBB (No 2) [2020] ACTSC 85. Although this ruling was made in the context of an earlier version of the indictment, the parties proceeded on the basis that it permitted the evidence led in support of each of the counts to be used as tendency evidence in relation to each of the other counts. The asserted tendencies were that the accused had a tendency to have a sexual interest in the complainant, and a tendency to act on his sexual interest in the complainant. Although I have read the decision of Burns J, insofar as it refers to other allegations made against the accused which were not the subject of evidence in this case, I have put those allegations completely out of my mind.
In relation to the tendency evidence I direct myself as follows. The accused is charged only with the offences stated in the indictment. The Crown contended that when considering any particular charge, I should take into account the evidence led in support of each other charge.
(i)The Crown says that the evidence of other offending shows a pattern of behaviour that reveals that the accused had a tendency to have a sexual interest in the complainant, and a tendency to act on his sexual interest in the complainant. The evidence can only be used to establish this tendency if I make two findings:
a.The first is that one or more of those acts occurred. In making that finding I do not consider each of the acts in isolation but consider all the evidence in order to determine whether a particular act, or acts, actually took place. Because in each case the evidence is relied upon in support of other charged conduct, I must be satisfied of that conduct beyond reasonable doubt. If I find that none of the acts are proved by the Crown, then I must put aside any suggestion that the accused had the tendency advanced by the Crown. If I do find that one or more of those acts occurred, then I go on to consider the second finding.
b.The second finding is whether, from the act or acts that I have found proved, I am satisfied that the accused had the tendency that the Crown alleges. If I cannot draw that conclusion then, again, I must put aside any suggestion that the accused had the tendency alleged.
(ii)However, if I do conclude that the acts are proved and that they establish that the accused had the tendency to act in the particular way alleged, I may use the fact of that tendency in considering whether the accused committed the offences charged. I must bear in mind that this is just one part of the evidence relied upon by the Crown and give it the weight that I think it deserves in the context of the evidence before me.
(iii)I cannot reason that, because the accused has committed these other acts, he is therefore, generally, a person of bad character and for that reason must have committed the offences charged.
(c)Expert evidence: In this case, Dr Nahal Payman was called as an expert witness and portions of the report of Dr Catherine Sansum containing expert evidence were admitted. An expert witness is a person who has specialised knowledge based on that person’s training, study or experience. A witness with such specialised knowledge may express an opinion on matters within his or her particular area of expertise. The value of any expert opinion is dependent on:
(i)the reliability and accuracy of the material which the expert used to reach his or her opinion; and
(ii)the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given.
Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion, where that opinion is based on that witness’s specialised knowledge.
The evidence of Dr Payman was admitted to provide me with evidence about the significance of the findings made during the examination of the complainant when he attended the Canberra Hospital on 19 March 2019. The evidence of Dr Sansum concerning the patterns of disclosure by child victims of sexual abuse was led in order to support the credibility of the complainant by providing evidence that would help me to assess whether, in this case, the pattern of complaint was usual or unusual.
I must consider the extent to which the opinions expressed by the doctors, particularly Dr Sansum, may be applied in the particular circumstances of this case. I am not obliged to act upon the expert evidence particularly if the facts upon which the expert’s opinion is based does not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
There was no real challenge to the reliability of the expert opinions expressed. Therefore, if I am to reject that evidence then there must be some good reason for doing so.
(d)Lies: The Crown says that certain statements made by the accused in his police interview were lies. It submits that these are admissions by the accused because they demonstrate a consciousness of guilt on his part. In order to be an admission:
(i)the statement must be shown to be a lie, namely, an untrue statement made knowing that it was untrue; and
(ii)the lie must have been told because the accused knew that the truth would implicate him in the offence.
There may be reasons for telling lies apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or avoid a consequence extraneous to the offence. If there is such a reason then the lie cannot be regarded as an admission.
The Crown also relies upon the statements that it says are lies in relation to the credibility of the accused’s statement to police more generally. If I find a statement made by the accused to be a lie, I may take that into account in assessing the weight to be given to his statement to police. However, I must not reason that if he told a lie to police about something, that is evidence of his guilt.
Elements of the offences
Counts 1, 2, 3, 5, 6 and 7 are charges under s 55(1) of the Crimes Act which provides:
55Sexual intercourse with young person
(1) A person who engages in sexual intercourse with another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 17 years.
The elements of the offence are:
(a)the accused engaged in sexual intercourse with another person;
(b)the accused intended to engage in sexual intercourse with that other person; and
(c)the other person is under 10 years.
Under s 50(1) of the Crimes Act, the definition of sexual intercourse includes, relevantly:
(a)the penetration, to any extent, of the genitalia or anus of a person by any part of the body of another person: s 50(1)(a);
(b)the introduction of any part of the penis of a person into the mouth of another person: s 50(1)(c); or
(c)fellatio: s 50(1)(d).
Counts 1 and 2 are course of conduct charges in accordance with s 66B of the Crimes Act which provides:
66BCourse of conduct charge—child sexual offences
(1)More than 1 incident of the commission of the same child sexual offence may be included in a single charge if, and only if—
(a)each incident constitutes an offence against the same provision; and
(b)each incident relates to the same complainant; and
(c)the incidents take place on more than 1 occasion over a stated period; and
(d)the incidents, taken together, amount to a course of conduct having regard to—
(i) the time at which the incident happened; or
(ii) the place at which the incident happened; or
(iii) the purpose for which the incident was committed; or
(iv) any other relevant matter.
Count 4 is a charge under s 61(1) of the Crimes Act which provides:
61Act of indecency with young people
(1) A person who commits an act of indecency on, or in the presence of, another person who is under the age of 10 years is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
The elements of the offence are:
(a) the accused committed an act of indecency on, or in the presence of, another person;
(b) the accused intended to commit the act of indecency on, or in the presence of, that other person; and
(c) the other person is under 10 years.
Overview of the Crown case
The Crown alleges that between 1 January 2016 and 5 March 2019 the accused engaged in sexual intercourse with the complainant on multiple occasions and committed one act of indecency on the complainant, when the complainant was between the ages of five and eight years old.
The accused was friends with the complainant’s mother since approximately 1998. Since the complainant’s birth in 2010, the accused would regularly see the complainant both at his own home in Theodore, and the complainant’s home in Holder. The Crown says that the accused would regularly stay at the complainant’s house, both during the week and on the weekends. He would sometimes be the only adult in the house and he and the complainant would often be alone in a room together.
The complainant, ME, SI and CF would often go to the Theodore residence. The Crown says that the accused and the complainant would be alone in the lounge room, while the other members of their families would be in other rooms of the house. There were times that the complainant and ME, or just the complainant, would stay overnight at the accused’s house.
It is alleged that on numerous occasions when the accused was alone with the complainant, the accused would play with the complainant’s penis using his hand and would fellate the complainant. Count 1, a charge of sexual intercourse with a young person, refers to this course of conduct from 2016 to 2018, occurring in the lounge room of the complainant’s home in Holder when no one was around.
Count 2 refers to a similar course of conduct which would occur at the accused’s home in Theodore between 2016 and 2019. It is alleged that the accused would often indicate to the complainant that he could use the Xbox if the complainant allowed the accused to play with his penis.
Count 3 relates to an occasion in 2016 when the complainant’s mother left the house to go to an appointment and ME was in her bedroom. While sitting in the lounge room with the complainant, the accused is alleged to have asked the complainant to touch his penis and the complainant said no. It is alleged that the accused then touched the complainant’s penis with his hands and mouth. The complainant told the accused to stop but the accused is alleged to have continued to touch him.
On an occasion between January 2018 and February 2019, the complainant was at the accused’s house in the lounge room and the accused placed the complainant’s hand on the accused’s penis. The complainant told the accused to stop but the accused continued. This conduct is alleged to make up count 4, the act of indecency.
In relation to count 5, it is alleged that the accused was at the complainant’s home in Holder on an occasion between January 2017 and October 2018. While the complainant’s mother was in the shower, the accused is alleged to have rubbed his penis on the complainant’s back. He is then alleged to have pulled down the complainant’s underwear and inserted his penis into the complainant’s anus. The complainant is alleged to have told the accused to “get off”, but the accused did not listen.
Count 6 relates to an occasion between 1 January 2019 and 5 March 2019, when the complainant was at the accused’s house. The accused and the complainant were in the lounge room together and the complainant was wearing shorts. It is alleged that the accused played with the complainant’s penis using his hand and performed fellatio on the complainant.
Count 7 is said to be an incident that occurred between August 2018 and March 2019 when the complainant was in the accused’s bedroom in Theodore. The accused is alleged to have touched the complainant’s penis with his hand and mouth. The accused is alleged to have asked the complainant to touch the accused’s penis and the complainant said no.
It is alleged that in early March 2019, after observing increasingly sexualised behaviour and other behavioural issues in the complainant, the complainant’s mother asked him if anybody had touched him at the accused’s home. The complainant is alleged to have responded that the accused had touched him, had played with his penis, and that the accused had used his mouth on the complainant’s penis. The complainant’s mother asked the complainant if the accused had put his penis in the complainant’s bum. The complainant initially denied this but made subsequent disclosures to his mother that this had happened, and that the accused would “dry hump” him.
Evidence
Complainant
The complainant gave evidence by way of three evidence-in-chief interviews which occurred on 5 March 2019, 7 March 2019 and 15 November 2019. The interviews were supplemented by some additional examination-in-chief. He was cross-examined.
First and Second Police Interview
In the first interview (5 March 2019) he made no disclosures, being very reluctant to communicate anything to police.
In the second police interview (7 March 2019) he wrote a note for police which said (with corrected spelling) “he was playing with my private bit with his hands and his mouth” (Exhibit 1). Much of the interview discussed computer games, the police obviously attempting to establish some rapport with the complainant and get him to talk to them.
So far as incidents the subject of the allegations are concerned, the complainant said:
(a)It happens when he goes over on the weekend and when the accused comes over to his house.
(b)It happens in the lounge room.
(c)No one else is in the lounge room when it happens.
(d)It has happened a lot (a lot more than nine times but less than the highest number that he can count to – 400 and something).
(e)The accused said that if he lets the accused play with his private part (the complainant’s penis), the accused will let him on the Xbox.
(f)He was eight at the time of the interview and said that it happened when he was six or seven, subsequently saying it happened when he was in Year 1 and has been happening since then.
(g)It happens sometimes when he plays the Xbox with the accused.
(h)It makes him feel angry.
(i)The accused asked him to touch the accused’s private part but he said no.
(j)He was worried about the police telling the accused about what he said.
(k)He had told his mum and his dad the week before the interview.
(l)The accused had not offered to buy him something if he let the accused touch his private part.
(m)Sometimes the accused “lays on me”.
(n)When the accused lays on him, the accused had his clothes on.
(o)The complainant also had his clothes on.
(p)He demonstrated the motion that the accused used when he touched the complainant’s penis (thumb and index finger joined in a circle, moving up and down).
(q)When the accused touches the complainant’s penis with his mouth “he does the exact same thing”, that is, he moves the complainant’s penis in and out of his mouth.
(r)The last time it happened was two weeks ago at the accused’s house in the big lounge room. The last time it happened at the complainant’s house was last year.
(s)The last time it happened at the accused’s house, the complainant was wearing shorts, it was light outside and the complainant had been to school.
(t)The last time it happened at the complainant’s house was the previous year, before Christmas. He did not know whether it was close to Christmas.
(u)He could not remember where the first occasion had happened.
(v)The occasions when the accused was lying on top of him occurred at both houses. He could not recall the last time the accused lay on him at the complainant’s house.
(w)It occurred on the couch which was black and fluffy (rather than smooth like vinyl or leather).
(x)The couch was long enough to sleep on.
(y)When he stays at the accused’s house, his sister, AC and LB sleep in the bedroom with him.
(z)When the accused touches the complainant’s penis, he wants the accused to stop. He agreed with the proposition that he said to the accused, “don’t do it”.
In additional oral evidence-in-chief, the complainant agreed that the note in Exhibit 1 was what he had written in the interview. He said that the accused had touched his “private bit” under his clothes and on his skin. He said that when the accused touched his “private bit” with his mouth, the accused’s mouth touched his skin. He said that his clothes had been moved by the accused. He said that he had shorts and underwear on but that the accused had pulled his underwear down.
He said that when the accused played with his “private bit” at the accused’s house, he and the accused were alone in the lounge room, on the couch. He said you could see “a little bit” into the kitchen from the couch and that you could see the kitchen bench. He did not recall whether he could see any people in the kitchen. He said that when he visited the accused’s house, DC would play in her bedroom. He did not know where AC would play and LB would be outside with ME.
In relation to the occasions when the accused lay on him at his house, he could not recall what couch that occurred on. He could not recall whether the accused did anything when he laid on him.
He said ME would watch YouTube on her computer.
Third Police Interview
In the third interview, conducted on 15 November 2019, the complainant was, by this stage, nine years old and somewhat more forthcoming.
The complainant said that he had known the accused for three years, since he was in kindergarten. He provided a piece of paper to the police (Exhibit 2) which said (with spelling corrections and paragraph numbers added):
[1] Kindy before I met [CF]. I think at home. [The accused] was touching me with his hands and mouth. [ME] was in her room. Mum was at an appointment. In the lounge room. It was when we had the white couch and he was touching with his hands and mouth.
[2]Me and [the accused] were in his room. [AC] and [LB] and [ME] were outside. [DC] was in her room and [IB] was in the kitchen. Mum was at home with TF.
[3][The accused] was touching me with his hands and mouth.
[4]February. [The accused’s] house in the lounge room and [AC] and [LB] and [ME] were in [AC’s] room and [DC] was in her room and mum and [IB] were in the kitchen.
[5]He was forcing for my hand to touch his front private and when mum was in the shower he was forcing me to do it again with my hands and he was humping me like rubbing his front private.
[6][The accused] put his front private in my bum.
Paragraph 1 describes what is alleged in count 3 on the indictment. Paragraphs 2 and 3 describe what is alleged in count 7 on the indictment. Paragraph 4 and the start of paragraph 5 (up to “touch his front private”) refer to what is alleged in count 4 on the indictment. The rest of paragraph 5 and paragraph 6 describe what is alleged in count 5 on the indictment.
In his evidence-in-chief interview the complainant was asked questions by reference to what he had written. He identified CF as his stepdad. He was asked where the accused was touching him with his hand and mouth and wrote another note which said (with spelling corrected) “He was touching me where my front private”. He identified that the reference to his “private bits” was to his penis.
He appeared to say that the white couch had a leather (or smooth) surface.
He said that when it happened the accused touched the complainant’s penis first, and then told him to touch the accused’s penis and the complainant said “No, I don’t want to”. He said the accused kept asking him and he kept saying no. The accused kept touching his penis and he said “stop” but the accused did not stop.
He said he thought it was winter or autumn. He explained that AC and LB were the accused’s two daughters, that ME was his sister and that DC was the accused’s and IB’s other daughter. He explained that TF was his baby sister.
In relation to the statement “[The accused] was touching me with his hands and mouth”, the complainant said that this was happening on the bed in the accused’s bedroom. Both the accused and the complainant had their clothes on. The accused put his hands under the complainant’s clothes. The complainant thought he was in Year 2 but did not know why he thought that. He said that the accused asked him to touch his penis and he said no. He said the bedroom was pink and there were pictures, including one drawn by DC and one drawn by AC. He thought that those pictures were on the closet.
So far as a reference to February was concerned, that was February 2019. He did not know why he thought that incident occurred in February. He was asked what else happened in February and said “Nothing… not that much”. He said it was the same year that he had two particular named teachers at the start of the year.
In relation to the statement that the accused was forcing his hand to touch the accused’s front private, the complainant said: “So he was like grabbing my hand and trying to put it on his penis”. He said that the accused had shorts on and that he was moving the complainant’s hand to his (the accused’s) penis. He said he could not see the accused’s penis. He could not remember what the accused said to him, but he did say that the accused told him that he wanted the complainant to touch his penis. Prior to the incident, they were “on the iPad”. He said that the accused made him touch his penis. He said that he touched the skin on the accused’s penis. He said he thought it was the weekend because he went to the accused’s house on the weekend. He said that the accused touching his penis with his hand or his mouth occurred every time he went to the accused’s house, from kindergarten to the beginning of 2019. In relation to that, the transcript records:
Q 245. Yeah? And when you went to [the accused’s] house on the weekend---
A. Yep.
Q 246. ---did this happen every time?
A. Yes.
Q 247. It did? Okay. So when I say did this happen, what you’ve said to me is that [the accused] has asked you to touch his penis with your hand and sometimes he’s grabbed your hand and made you touch his penis with your hand, is that right?
A. Yes.
Q 248. And then you’ve also talked about [the accused’s] touched your penis with his hand---
A. Yep.
Q 249. ---and his mouth. Is that right?
A. Yes.
Q 250. And you’re saying that every time you went to his house---
A. Yep.
Q 251. ----from kindy to the beginning of this year---
A. Yeah.
Q 252. ---that [the accused] would do that to you?
A. Yep.
In relation to the incident that occurred when his mother was in the shower, he said that the accused was rubbing his “front private” on the complainant’s back. This occurred in the lounge room. He said that the accused pushed him and made him lie on his belly on the lounge. This was the white couch. He said that the accused was rubbing his front private on the complainant’s bum. He said that both he and the accused had clothes on. The transcript records:
Q 274. And then you said, “[The accused] put his front private in my bum.”
A. Yep.
Q 275. Tell me about that.
A. I don’t remember all of it.
Q 276. Yeah, what do you remember?
A. Nothing mostly.
He said that he knew that the accused had put his front private in his bum because he felt it and it hurt. He said that he said to the accused, “Get off” but that the accused did not, and kept on doing it. He said that the accused had pulled down the complainant’s pants and undies. So far as when it occurred, he could not say whether it was in Year 3 or whether it was a long time ago. He did say that TF had not been born. He later said that he thought it occurred when he was in Year 1, in 2017. The transcript records:
Q 293. So do you remember mum being big and fat, having [TF] in her belly?
A. Two thousand and eighteen.
Q 294. Two thousand and eighteen. So last year?
A. No, when I was in year one.
Q 295. In year one, so two thousand and seventeen?
A. yeah
Q 296. Why do you think it was year one?
A. I don’t remember.
The complainant said that the accused had only put his penis in his bum once. When asked again about which month it was, he said “I’m pretty sure it was September or October” because “[TF] was born on [sic] October”. He said this made him remember about the accused because he was still having sleepovers at the accused’s house when TF was born. He could not recall what the accused had done to him between 2017 and coming to see the police in early 2019. The transcript of that exchange was as follows:
Q 328. And after he did that, what things did he do to you between two thousand and seventeen and when you came and saw me at the start of the year?
A. I don’t know.
Q 329. You don’t know? What was the last thing you remember [the accused] doing to you that you didn’t want him to do before you spoke to me?
A. I don’t remember.
He could not describe the accused’s penis.
He was asked whether the accused had ever told him not to tell anyone and he said that the accused had not.
He had only told his mum and dad what had happened just before he saw the police.
He said he had only told his mum once. When asked why he did not tell his mum about it before he initially said “I don’t know”, but then said that he was worried about getting himself in trouble.
He was referred to his answer in which he had said that it happened every time he went to the accused’s house and was asked about when it happened when the accused came to the complainant’s house. He said “Every time”. He said that the accused did not touch him in any other room of the house beside the lounge room. He said he went to the accused’s house “mostly every weekend” and that the accused would come to the complainant’s house “not that much”.
In additional oral evidence-in-chief he was asked about the three incidents described in the document that he had prepared (Exhibit 2). The first was when the accused had touched the complainant when his mum was at the appointment. He said the accused touched the skin of the complainant’s penis with his hand and mouth. He could not recall what part of the accused’s mouth touched his penis, but he did say that his penis was inside the accused’s mouth. His underwear was pulled down by the accused.
In relation to the second incident which occurred in the accused’s bedroom, the accused’s hand and mouth had touched the skin of his penis. His penis was inside the accused’s mouth. The accused pulled down the complainant’s pants. He could not recall whether the bedroom door was open or closed.
In relation to the incident described as occurring in February, he said that this occurred on the couch in the lounge room, while his mum and IB were in the kitchen. He said that, from the couch, he could see only IB in the kitchen. When he saw IB, the accused was still making him touch the accused’s penis. IB was not looking at him, she was talking to his mum. When the accused made him touch the accused’s penis, he touched the skin of the accused’s penis, inside the accused’s clothes. He initially said that he moved his hand on the accused’s penis but he could not recall how he had moved his hand. He then said that the accused moved the complainant’s hand on the accused’s penis. He demonstrated this by showing how the accused had grabbed his wrist. He said that he told the accused to “stop”, but that the accused did not stop.
Cross-examination
In relation to the February incident, the complainant agreed with propositions that he told the accused “no” and that he said so in a normal voice. He said that he was not looking at IB while he was saying “no”. He did not see IB or his mum looking at him while he was in the lounge room with the accused.
He was asked questions about the accused’s stepson, BH, and where he stayed. He agreed with the proposition that when the accused stayed at his house in Holder, the accused slept in the lounge room. He also agreed that DC also slept in the lounge room. He denied seeing DC and his mum having arguments.
He agreed that, at his house, the Xbox was in the lounge room where the accused slept and that they played Xbox there together. He could not recall whether DC was there when he and the accused were playing Xbox.
He agreed that M was a friend of his. He denied watching movies on M’s mum’s phone. He could not recall getting in trouble because of watching videos of ladies kissing on M’s mum’s phone.
He agreed that before TF was born his mum went to hospital and that this made him sad. He agreed that he was sad because his mum was not at home.
He could not recall that CF stopped living with him for a while. He denied that after TF was born his mum went to hospital. He agreed that after TF was born, his mum sometimes left him and his sister and that this made him sad. He denied it made him angry. He denied receiving special classes in Year 1, 2 or 3 and said he only received them in Year 4.
He agreed that in Year 4 he was angry at home so that he fought a little with his sister and that he was angry at school.
It was suggested to him that after he spoke to police his mum spent more time with him. He said "Not really". He denied that he got to sleep in his mum’s bed after he spoke to the police.
In relation to when he first told his mum about the incidents, he agreed that he told her everything that he remembered. He said that he had told her that the accused had put something in his bottom. He said that he had not told her that he had touched the accused’s penis, saying that he forgot and remembered it later.
It was suggested to him that his mum asked him if anyone had touched his “privates”. He agreed that she had asked this and said that he responded “yes”. It was suggested to him that his mum asked if he had touched or seen anyone else’s penis and he said he did not recall. He agreed with the proposition that was put to him that, when speaking to police, he had told them things so they would stop asking him questions and that he had told them things that he did not really remember.
He was asked whether the accused had ever touched his penis and he said “Yes”. He was asked whether he had ever touched the accused’s penis and he said “Yes”.
Re-examination
In re-examination he was asked whether there was one, or more than one, conversation with his mum about the accused touching him. He said that he did not recall. He was asked whether anything else was making him angry and he said he was being bullied at school.
He was asked whether he had told any lies to police and he said that he had not.
SI
Evidence-in-chief
SI has three children: ME born in 2009, the complainant born in 2010 and TF born in 2018.
She has been in a relationship with CF since 2016. He moved into her house in Holder at the end of September of that year. For about a year her parents were also living in the house. By March 2019 CF’s relationship with the complainant was “pretty close”. The complainant called CF “dad” and they got along well.
She gave evidence about the layout of her house based on a plan which became Exhibit 3. She gave evidence that there was a white couch in the lounge room which she got from her parents, which was there between 2016 and November or December 2017. It comprised a three-seater unit and two single recliners.
In 2016, she had known the accused for 18 years. They had met at primary school in Year 3 and had been friends ever since. She met the accused’s wife, IB, in about 2012. She and the accused were best friends and the accused had known the complainant since he was about one year old. Between January 2016 and March 2019 the relationship between the accused and the complainant was very close. She trusted the accused to look after her children. There was no issue with the accused babysitting, nor any need to watch him while he was with the children.
She would go to the accused’s house in Theodore every second weekend and at least one time during the week. CF was often at work. The complainant usually loved going but a couple of times he was “stroppy”. The complainant liked to play with the accused and play on the Xbox. The Xbox was in the lounge room. She would normally be in the kitchen with IB. DC spent most of her time in her room. SI would also generally bring ME to the accused’s house. AC, LB and ME would generally play together in AC’s room or outside. The accused was usually in the courtyard, out the front fixing cars or in the lounge room with the complainant and the Xbox. He would play on the Xbox with the complainant. At some stage in 2016 or 2017 IB worked as a swim instructor but she could not say the days on which IB worked. Sometimes SI and the children visited the house when IB was at work. Sometimes she would drop the kids off to be babysat at the accused’s house.
She was asked questions about the layout of the accused and IB’s house, based on a plan which became Exhibit 5. She was, in particular, asked about the layout of the lounge room and kitchen, and the furniture within the lounge room. She said that as at the date of her last visit to the house on 3 March 2019, there was a big, black corner couch in the living room with a chaise longue (referred to in evidence as simply a chaise). It was against the outer wall of the building, opposite the entrance to the room. She said that you could not see the chaise from the kitchen. She said that the furniture had been arranged in this way for a couple of months but tended to get changed around. She said that prior to that, the lounge had been against a diagonal wall, adjacent to the entrance to the room.
She said that she had seen both the accused and the complainant go into the accused’s bedroom but she had never thought to question it. She said that there was a pink wall in the accused’s bedroom. There were times that she had seen the accused alone with the complainant.
There were times when she left the complainant and ME at the accused’s house. There were also times when she left only the complainant there. Sometimes the complainant was left there overnight. The reason for that was that there was a period when SI was in hospital. There are also occasions when the accused offered to have the kids overnight or the kids asked to stay at the accused’s house overnight. There were occasions in 2017 and 2018 when she and CF had gone interstate and the complainant had stayed with SI’s mother or with the accused.
In relation to hospital stays, she explained that she had been hospitalised for mental health issues when she was pregnant with TF in 2018 and she also had her appendix out in June 2017 which involved staying in hospital.
She said that she had appointments with a counsellor, LX, during the period of 2016 to March 2019. She had been seeing her since 2014. LX would have a month or two off each year and SI’s problems with mental health when pregnant with TF occurred during one of these breaks.
While ME generally liked staying over at the accused’s house, there was an occasion at the end of SI’s pregnancy with TF that ME refused and had to be coaxed to stay over.
The accused stayed at SI’s house after 25 August 2016 when there was an arrangement in place that the accused not be present at the home in Theodore when IB’s son, BH, was staying. From the end of September 2016, the accused would stay at SI’s house every second weekend, from Friday evening until Monday morning. At times he was the only adult present in the house because SI was at work, as was CF. He would babysit the kids when she and CF were out. ME had a computer in her room and would watch YouTube on it.
SI would communicate by text message with the accused to check whether he was coming around. Sometimes he did not show up. She texted him because she needed to know whether she needed to feed him. A collection of such text messages was tendered and became Exhibit 7. She also explained that sometimes the accused would stay during the week because BH would spend half the holidays with IB and hence, the accused could not stay at his house.
She identified a photograph of DC sleeping on a chair at her house on 10 November 2017 as being the first occasion when DC also came to stay.
She described one occasion when the accused was alone at her house with the kids, while she was sitting at the emergency department of the Canberra Hospital waiting to be treated for an issue unrelated to her mental health. She could not get hold of the accused to see if the children had been fed. Ultimately, CF had to drive home to check and the accused was in fact at home.
There were occasions when SI would leave the children to go for a drive and the accused would be left alone with them. After CF arrived home from work, he would then follow her and bring her home.
There were occasions when the accused was at SI’s house but ME was not there because she was going for a sleepover at a friend’s house.
She had seen the accused and the complainant in the complainant’s bedroom quite regularly. They played with Lego or she could hear them through the door “just mucking around”.
In 2016 she observed that the complainant would fight with his peers and his attitude to people had changed. He got into trouble at school and was required to go to the “blue room” at school approximately twice a week. The complainant also regressed to bedwetting in 2016.
She gave an example of an occasion when the complainant was not happy to go to the accused’s house. It was a hot day and they had been shopping in Fyshwick. She said that she thought that he was overstimulated by the lights and the people at the shops. They went from there to the accused’s house. The complainant refused to get out of the car. He was coaxed out with food and then went back to the car after eating.
She gave evidence that in February 2019 the complainant engaged in sexualised behaviour that led to SI raising the issue with LX, her psychologist. LX suggested that she speak to the complainant and suggested how to go about it. She said to talk to him without “putting words in his mouth”.
SI spoke to the complainant after school at a time when CF had taken ME out. She asked the complainant if anyone had seen his penis or if he had ever seen anyone else’s penis. He said that he had when he went to public toilets. She asked whether anyone had ever tried to touch his penis at M’s house (the house of the complainant’s best friend). He said no. She asked him whether anyone had tried to touch his penis at B’s house (the house of a respite carer who regularly looked after the complainant and ME). He said no.
She asked him whether anyone had tried to touch his penis at the accused’s house and he said yes. She then asked him who had done it and he said the accused had. She asked what the accused did and he looked confused. She asked him “does he use his hands” and he said the accused used his hands and then demonstrated moving his hands up and down. She asked whether the accused used his nose, his lips, or his teeth and the complainant said that the accused uses his whole mouth. He motioned up and down with his mouth. She asked whether he had ever touched the accused’s penis. The complainant said no. He said that the accused had asked him to touch the accused’s penis but he had said no. She asked him whether he had ever told the accused no when the accused tried to touch him, and he said he tries to say no but the accused does it anyway.
She asked him whether the accused ever offered him anything in exchange for doing this to him, like “I’ll give you a lolly” and the complainant said “No, just the Xbox”. She asked him whether the accused touched him on top of or under his clothes and he said “both”.
She said that the complainant was upset, that he was crying, that he was “really cuddly” and that his voice was shaky. She asked him whether he had any concerns about telling her and he said that he was worried he would get in trouble. She asked him whether the accused had put his penis in the complainant’s bum and he said “No”.
At this point the witness was crying and the court adjourned early for lunch.
She was then asked about the last occasion that they went to the accused’s house on 3 March 2019. The accused, IB, DC, LB and AC were there. The accused’s half-sister UX, her partner, another girl and UX’s son were also there. UX, her partner, the other girl and UX’s son soon left. IB and SI were in the kitchen tidying up. DC was in her room. AC, ME and LB were in AC and LB’s room. The complainant came out and played on the Xbox in the lounge room and the accused lay on the couch next to the complainant while he played. She said she would pop her head around the wall every now and again to check on the complainant. No one else was in the lounge room with them, although LB ran into the lounge room and hid at some stage. They had arrived sometime after lunch. They stayed at the house until 7:00pm.
The accused had come to her house the weekend before the trip to the accused’s house on Sunday 3 March. The conversation with the complainant occurred on Monday 4 March. CF rang the police and they saw the police the following day. The complainant was taken to the Child at Risk Health Unit at the Canberra Hospital for an examination. He declined a genital examination.
There had been an occasion when the complainant had complained of his penis hurting after spending a weekend at the accused’s house. It was red and swollen. SI asked CF to look at it. CF said that it was not normal, and she assumed that the complainant had not been washing properly.
A few days prior to the third interview with police, the complainant made further disclosures to her. He said that the accused had stuck the accused’s penis in his bum. He said that the accused would make dry humping motions on his back. He also told SI that there was an occasion when she was in the shower and the accused tried to play with his penis. So far as the dry humping was concerned, he gave a mixture of explanation and demonstration to his mum, who told him to write down what had happened. She said that the complainant was upset, was hiding his face and was embarrassed when he was telling her what had happened. There was more than one conversation when he spoke about these things. She confirmed with the complainant that he had written down all that he remembered.
Cross-examination
In cross-examination SI denied that the police had informed her of all of the allegations made by the complainant. She said that she had provided the text messages to the police after the interview because she went away and thought more clearly about what information to provide. She agreed that her description of where children played at the accused’s house was based on her general recollection and she was not saying that the complainant had only ever played in the bedroom. She said he played outside and played Roblox on the iPad with the girls. She agreed that there were no rooms that were off-limits to the kids. She said that the lounge room was close to the kitchen, but you could not see into it from the kitchen. You could call out from the lounge room to the kitchen, but there was a wall in the way. She said that the heart of the house was between the lounge room and the kitchen. She was shown the photo which became Exhibit 8, which provided a view from the lounge room to the kitchen. She described the couch and chaise and was asked questions about a photograph taken from the kitchen with a view towards the lounge room, which became Exhibit 9. She agreed that you could see part of the lounge room window in the photograph.
After August 2016, because of a family law issue, the accused was not staying at his house when BH visited. There was a period when BH did not stay at the house at all. There was a period when he stayed during the day only. Then he would stay overnight and would stay for a week during the holidays.
She said that there was a period when the accused would sleep in his car whenever BH came to stay at the house. She said the accused did this twice and then she found out and told him to stay at her place. She agreed that there were occasions when he had stayed with his half-sister, UX.
She agreed that she had broken up with CF for a period in May 2017. She was positive that before the breakup, the accused had still been coming over to her house. She accepted that she might be wrong, but her recollection was that he was there. She agreed that she had had mental health difficulties prior to TF’s birth. However, she only had time in hospital for her mental health issues when she was pregnant with TF.
She disagreed with the suggestion that the accused only started staying regularly at her house at the end of 2017. She agreed that there was a time when he no longer had to stay with her. She thought it was in January 2019. She said that she always had his support and that he was always just a message away.
She said that when DC was at the house in Holder, although she slept there, she would often go out and “hang out with friends”. She disagreed that DC came over regularly in the period that the accused was coming over from November 2017.
She agreed that after breaking up in May 2017, CF returned in June after she had her appendix out.
She agreed that her trip to the hospital emergency department was an unplanned trip. So were the occasions when she went out driving. She said that the accused and IB helped her when she was giving birth to TF by looking after ME and the complainant. She agreed that if she was getting overwhelmed with the kids she could drop them off at the accused’s house. She said that the accused was her support person that she would go to if she was struggling with her mental health. She agreed that part of the assistance that the accused and IB provided was allowing the kids to stay over at their place in order to give her a break. She said that the text messages that she had sent from South Australia involved a request for the accused to give her parents a break from looking after the children.
When she was at work on a Saturday, just the accused, ME and the complainant would be around the house in Holder. During the time that SI was working, DC was not at the house.
When the accused was staying at her house, he would sleep in the lounge room and watch TV there. Him spending the day in the lounge room was not something that she thought was unusual or concerning. The accused also played with the complainant in the complainant’s bedroom.
The accused and CF got on quite well. If CF was home, the accused and CF would talk about footy.
The complainant would wrestle with CF and do the same with the accused. The complainant would get a bit stroppy if he was losing one of those wrestles. If he got stroppy, he would tell everyone to go away and leave him alone. He would quite happily shout at CF or at the accused, but he did not shout at her.
She was asked about the complainant receiving special classes from about Year 1 or Year 2 at school. She said that “he had NDIS” and would get some assistance at school.
She said she did not think that the complainant was upset by her going to hospital before TF was born.
She said that in 2018 she had stresses about money during her pregnancy with TF. She agreed that there were some weeks when money was really tight and they did not have money to buy food, so the kids would stay at the accused’s house to ensure that they were able to be fed.
In relation to the visit to the accused’s house on 3 March 2019, she agreed that IB was in the kitchen cleaning things up and that she stood on the other side of the bench. She agreed that she periodically popped her head around the corner to see what was going on in the lounge room. She saw the accused lying on the couch and the complainant playing Xbox. She said that, in her head, she asked why the accused was lying so close to the complainant. She said that when the complainant asked to play the Xbox, the accused was in his bedroom and the accused said he could. She agreed that LB came into the lounge room and hid around the couch and then a few seconds later ran back to the bedroom.
She agreed that the complainant’s bedwetting happened prior to 2016 and happened again after 2016.
She agreed that there had been an occasion where she was present when the complainant had been watching a video of two ladies kissing on M’s mum’s phone and he got “roused on” for that.
In relation to sexualised behaviour, she agreed that the complainant and the neighbour’s son had been putting their penises through the fence.
She also agreed that when the complainant had a swollen penis, she had told the complainant and CF that the complainant needed to shower and wash it properly.
She said that ME had been displaying sexual behaviours at the age of three and she had spoken to LX about that.
She agreed that the complainant and ME sometimes did not get on well.
She agreed that, in relation to her first discussion with the complainant, LX had told her not to use specific names and not to suggest things that might have happened.
She agreed that the first question she asked the complainant was whether or not anyone had touched his private parts and he said “no”. She then asked him in another way just to ensure that he understood what she was saying. She then asked him whether or not anyone had seen his privates or if he had seen anyone else’s privates. He said yes, when he goes to the toilet in public. She agreed that when she had an interview with police in March 2019, things might have been a bit fresher in her memory. In cross-examination counsel for the accused read SI the transcript of her police interview, in which she recounted her discussion with the complainant, and she provided further details:
[Counsel for the accused]: That’s okay?--- [SI]:… I said, “when you go over to [the accused’s] house, does anyone touch your penis?” And he said, “yes.” And I asked him who.
And he said, “[the accused]”?---Touches his penis and he said, “[the accused].”
“And then I asked him what [the accused] does. He said [the accused] plays with his penis.” You said that?---Yes.
“I asked him, ‘what does he do when he plays with it? Does he tickle it, does he rub it, does he hold it and go up and down?’” You asked him a series of questions, is that correct?---I asked him a series of questions with a bit of demonstration so that he could understand what I was saying.
All right. And then what [the complainant] actually said was, and you said, “And [the complainant] said, ‘he does that one. Goes up and down.’”?---Yes.
Okay. So he indicated that he does the up and down one?---He – he – yes. He demonstrated by doing that with his hand, and going up and down.
Next question you asked was, “I asked, ‘does he do it on top of the pants or under the pants?’ And then he said, ‘both.’” That’s correct?---Yes.
“I asked him has he ever touched his penis with any other part of his body?” And then you said, “like, nose, or his penis, or his mouth?” Okay, so you gave him a number of options, that’s correct?---Yes.
And it was after you gave him those options he said, “mouth”?---Yes.
“Then I asked [the complainant], ‘what does he do with his mouth?’ And [the complainant] signed going up and down.” That’s correct?---Yes. So, I gave him another list of things. Like, “does he use his teeth, his lips, his tongue?” [The complainant] said, “he uses his whole mouth and goes up and down.”
“And then I asked [the complainant] if anything has ever been put in his bum,” and [the complainant] said, “no.” That’s correct?---Yes.
“When I asked [the complainant] has [the accused] ever made him touch his penis, [the complainant] said, “no.”?---Yes.
That’s correct. “He said he has asked, but [the complainant] said no.” That’s correct?---Yes.
He indicated to you at that time that nothing had been put in his buttocks or bum, when you asked him that question?---Yes.
And specifically, you asked him whether or not [the accused] had made him touch [the accused’s] penis, and he said, “no,” to that. That’s correct?---Yes.
She agreed that she spoke to the police again on 13 November 2019. She said that the conversation that she had with the complainant about any further disclosures was after she had spoken to the police on a second occasion.
Re-examination
In re-examination she said that the accused had only stayed at UX’s place a few times. She only went to visit him at UX’s twice.
She said that after the accused was not allowed to be at home with BH, the next two times that BH stayed at the house, the accused stayed in his car and then she rang him up to tell him to stay at her house. She said that this was in early September because she had only just got into her relationship with CF and the accused had said that he did not want to stay at her place because he did not want to disrupt her new relationship.
She said that on 3 March 2019, when the complainant was playing on the Xbox at the accused’s house, the sound on the TV was on.
Dr Nahal Payman
Dr Payman is a paediatrician and has been so for the last 22 years. She is a staff specialist at the Child at Risk Health Unit at the Canberra Hospital. She saw the complainant on 19 March 2019. She took a history from the complainant’s mother. The complainant was quietly spoken, polite and followed instructions. She did an examination of his respiratory, cardiovascular and abdominal region and those areas were all normal. He declined to have a genital examination. He did not express any concerns about any pain or discharge from his penis and had no difficulties passing a stool or urine. It was her opinion that it was highly unlikely that she would have found any physical signs of sexual abuse on a genital examination at that stage. The absence of such physical signs did not confirm or negate the possibility of inappropriate sexual conduct. She said that superficial injuries to the anus can heal quickly. She said that it was an area of the body that was designed to stretch. She said that a complaint that a penis was hurting, being red or bulging could be a sign of irritation or inflammation. It could be something that would heal by itself or something which needed antibiotics. The most common cause would be little boys playing with their penis, or not bathing so that it became dirty and irritated. It could be caused by someone else playing with their penis. It was not possible to say one way or the other.
She said it was not common for a child to disclose the fact that they are being assaulted at the time of the assault, particularly if the person is well-known to the child. It is not common for the child to call out at the time of the abuse if the person is a familiar or trusted person. The circumstances that are common for a child to disclose would be where the person is not a familiar person, where there is a single instance and where the child is in a stable family. It is less common to disclose where the person is a familiar person who is well-trusted and the child is in not so stable a family environment. That is also the same in relation to calling out at the time of the assault. The evidence in this paragraph was initially given on a voir dire but was ultimately admitted without objection.
She said that bedwetting, aggression and anger are behaviours indicative of emotional distress. She said that when the emotional distress stops, those symptoms would improve or could stop.
In cross-examination she agreed that the anus was a part of the body that had multiple nerve receptors. There may be a pain response from external stimuli such as pressure from outside of the anus. There can also be a pain response from internal pressures coming from within the body. She agreed that there may be a pain response without any insertion into the anus.
She agreed that causes of emotional distress may include disruption in family structures or bullying at school or anything that causes the child to be upset. It did not have to be at a particular level of severity.
She agreed that in relation to a child’s response to any individual acts of abuse, every child will react differently. She agreed that some children may report an act of abuse instantly and that others may take weeks, years or decades.
In relation to red marking of the penis, other sources of such symptoms may be chafing or irritation. She said that the condition balanitis does need a steroid or antibiotic cream. She agreed that blunt trauma might be a cause of redness.
There was no re-examination.
CF
CF is the complainant’s stepfather. He has been in a relationship with the complainant’s mother since September 2016. He has had a child with SI, a girl called TF. He gave evidence about the layout of the house in Holder.
He said that when he first met SI, he was a truck driver delivering white goods. He worked most Saturdays. He might get one Saturday off per month. He ceased being a truck driver in September 2018. In his next job as a coach driver he had to work on weekends. He continued in that job until December 2019.
In March 2019 his relationship with the complainant was good. The complainant referred to him as “dad”. That had started in about mid-2017.
SI was not in paid employment when he first met her, but she subsequently started working as a disability support worker which required her to work on some Saturdays. She ceased that work just before TF was born in October 2018.
He said that he first met the accused when he commenced his relationship with SI. He and SI separated for a while. Once he came back, the accused was in the picture a lot more often and he got to know him fairly well during that period. He thought that the period of their breakup was mid-October 2016 and that they were back together by the end of October or the start of November. His family would go around to the accused and IB’s house with the children. There were occasions when SI would take the children over to their place without him. He said that the children stayed at their place for long periods without either he or SI being there. So far as he was concerned, there was no issue about the accused looking after the complainant and ME. He said the accused was more like an uncle to them. He said that in the period of September 2016 through to March 2019 the relationship between the accused and the complainant seemed okay. The complainant would get agitated at times when playing together but overall, it was “pretty okay … looking at it from the outside.”
He said that he and SI went over to the accused’s house most weekends if the accused was not staying at their place. He said that they would go over and have a barbecue or dinner and hang out and let the kids play.
He said that the kids would be playing at the front, in AC’s room or would be in the lounge room. Mostly ME would play with AC and the complainant would play with LB and AC. DC would play with the younger children every now and then, but she would keep to herself and do “teenager stuff”.
He could not recall IB working. He gave further evidence about the layout of the house. He said that the Xbox was in the lounge room and that the complainant would play the Xbox. He did not think that the accused played the Xbox too often. He said that the accused would play the Xbox with the complainant and would spend time with the complainant in the lounge room. Sometimes that was with other people and sometimes that was the two of them alone. He described the big L-shaped couch that was in the lounge room and its location. He described the complainant sitting on the chaise which was located in an area that could not be seen from the kitchen. He described the limited view of the lounge room that you could get from the kitchen. He said that the furniture in the living room was moved around but that the couch was in the position that he described for about six to eight months.
He said that the complainant went into the master bedroom maybe a couple of times but not that often. He said that there were times when he left the complainant and ME in the accused’s care at the accused’s place. That would occur for a lot of different reasons. When they were playing with LB or AC, the complainant would ask to have a sleepover. Sometimes they had sleepovers because “we had other issues to deal with” but it was often that the children asked to have a sleepover. Before CF started as a coach driver, money was “a bit more scattered” and there were times when they were struggling. The accused and IB would look after the children then as well. During school holidays the children would be at the accused’s house for three or four days in a row, as the children would ask if they could stay longer and they would allow it because the children were having fun playing with their friends.
Around the birth of TF, if there were appointments or if SI was hospitalised then the accused and IB would look after the kids if they were asked.
He could not recall when the accused started staying over at their house in Holder. He recalled seeing more of the accused after he and SI’s separation. He said that, normally, the accused would arrive after work and stay until Sunday lunchtime. Sometimes he would stay Sunday night and go straight to work on Monday morning. At some point DC started coming over as well. He thought that was towards the end of 2017 or early 2018. She did not come with the accused every time. He said there were plenty of times when the accused would be the only adult in the house with the two children. That would occur when he and SI went out shopping or when he and SI were at work.
There was an occasion when SI was hospitalised due to her mental health condition. He said that he went to hospital with SI and he was “pretty sure” that the accused was at their house with the kids. He said that around the time that TF was born, the kids stayed at the accused’s house for two or three days.
He said that ME had a computer in her room and spent a fair bit of time watching YouTube during the day. He said there were times when he saw the accused alone with the complainant at his (CF’s) house. They would be playing FIFA on the Xbox or working on Lego or just having “muck around fights”.
The Lego was in the complainant’s bedroom most of the time and, on occasions, the accused and the complainant would be in the complainant’s bedroom. He was sure that there were times when the accused was alone with the complainant because ME was not at home.
He said that he was told by SI that she had spoken to LX about the complainant’s behaviours and that she was going to speak to the complainant. CF took ME to the shops. When he returned SI told him what had been said. He then had a “comforting kind of conversation” with the complainant. He said he gave him a hug and asked him why he did not let him and SI know. The complainant said that he thought he would be in trouble and said “at least you don’t do it to me” and gave CF a hug. His recollection of the conversation was that it was just to reassure the complainant that he was not in trouble, that it was not his fault and that it should not happen to anyone. He said that the complainant was visibly upset.
He said that the complainant did not tell him directly about any of the things that the accused had done. He did not want to make the complainant talk to him about it.
He subsequently called the police. Following the complainant’s interviews with police, CF did not have any conversations with the complainant about what the accused had done.
He did recall that there was an occasion when the complainant complained about his penis being painful. He remembered the occasion occurring in 2017 but he could not recall when exactly in 2017 it occurred. He thought it was on a weekend. SI had called him and asked him to have a look. He described the complainant’s penis as being really swollen. He said it looked infected but the complainant said he had been washing it. He could not say whether the complainant had been at the accused’s house around that time.
He said that when the accused was coming over for the weekend, there was an arrangement where he came around every fortnight. Every third or fourth time he would not show up.
He said that there were occasions when SI went out for long drives to deal with her mental health issues and that he would go out looking for her. He said that the accused would be at home with the children and he (CF) would go out looking for her when he got home from work. He explained that the accused would be there because SI would never leave the kids alone.
In cross-examination he agreed that SI’s driving expeditions were unplanned, spur of the moment activities. He also agreed that when he had to go to the hospital for any reason, that was also unplanned. He said that because trust had built up, it was possible to leave the children with the accused. He said that the accused was happy to look after the children while he and SI went to the shops.
It was suggested to him that there were weekends or months when the accused would not come over. He said that “nine times out of 10 he would be there” so although there may be a month during that long period, he said that it was not very often at all that the accused did not come over. He confirmed that there were times when ME was not at the house in Holder when the accused was looking after the complainant there. He agreed with propositions that he was assuming that there were times that this happened because of “the way his life was working”. He said he could not be 100% sure, but he was “fairly confident” that there were occasions where that had happened.
He agreed that at the accused’s house he would spend some time in the courtyard smoking and that he spent his time with the accused. He said they would not sit in the lounge room very often and that they would more be in the dining room, kitchen, courtyard or out the back for the barbecue.
He agreed that the complainant would play wrestle with both him and the accused and that if it got out of hand the accused would get a bit “stroppy” and he would let you know if he was “pissed off”.
In relation to sightlines from the lounge room to the kitchen, he demonstrated by reference to Exhibit 9 that you could see a bit of the lounge room but it was not a great view. He agreed that you would be able to see to the middle of one of the windows in the living room. He said that if you were in the kitchen you may be able to talk to somebody in the lounge room depending on where they were sitting.
So far as the period when his breakup with SI occurred, it was suggested to him that this ended shortly after she had an operation on her appendix. He said that this was the second breakup. It was suggested to him that it was at this point that the accused started regularly coming to the house. He did not accept that proposition, saying that the accused was “already in the picture by the appendix stage”.
He was aware that there was a period of time when BH stayed with his biological father full-time. He was also aware that there was a period when BH was staying overnight at the accused and IB’s house and the accused was sleeping in his car. He was aware that there was a period where the accused was staying at his half-sister’s house. He was not sure how long this occurred for. He said that as soon as SI became aware that the accused was sleeping in his car, the accused was given the offer to stay with them. He agreed that the appendix operation was in June 2017. He maintained that his recollection was that the accused was staying at their house prior to that time.
There was no re-examination.
IB
IB is the wife of the accused. She was entitled to object to giving evidence as a witness for the Crown but did not take any such objection.
She married the accused in 2013. She has four children: DC born in 2003, AC born 2006, BH born 2007 and LB born 2013. The accused is the father of LB.
She gave evidence that around 25 August 2016 the care arrangements for BH changed so that the accused would no longer have contact with BH and when BH stayed with IB, the accused would have to absent himself from the house. She knew SI, her children and CF. Between January 2016 and March 2019 SI and her children came to her house quite regularly. Sometimes they came with CF. Sometimes the complainant and ME would stay overnight at her house, including on weekends and during school holidays. Sometimes they would stay for the whole school holidays. Sometimes they stayed for weeks. There were times when the complainant would stay over but ME would not stay over. She said the complainant stayed over just about every weekend. There were times when the children stayed over when money was tight for SI. She said that when the complainant came over there was no need to supervise the accused when he was with the children or with the complainant. So far as she was aware, there was no issue with SI allowing the accused to look after the complainant.
He said that the complainant likes to play the Xbox. The complainant plays Fortnite and Roblox. He agreed with the proposition that sometimes at the complainant’s house, SI and CF would be out, ME would be in her room using a computer and hence the complainant would be alone with him. He said “Yeah, sometimes.”
In relation to his house, he described that you can see a bit of the lounge room from the kitchen. He denied that he had suggested to the complainant that he could play on the PlayStation if the complainant let him touch the complainant’s penis.
He was asked about whether or not the complainant might have accessed pornography at his house and gave answers consistent with that being unlikely. He denied ever showing the complainant pornography. He denied touching the complainant’s penis with his hands or mouth.
He did refer to SI reporting that, three months prior, the complainant had seen pornography on M’s mum’s phone. He had no idea what sort of pornography it was.
He was asked whether DC had been with him at SI’s house “the whole time in the last couple of years?” He said that she had and that she had been there every time. He said that whenever the complainant and ME stayed over at his house, IB was there as well. He said that IB did not work but that she used to work “before the stuff started with BH”.
He said that AC was at a named Canberra high school. He was asked whether there was anything he wanted to ask the police and he said:
I’m just – having a terrible time with this, because I don’t know where this is coming from. It’s really got me struggling for words. It’s like really destroying me at the moment.
In answer to questions from Constable Jude Middlemiss the accused said that before August 2018 he stayed at SI’s house just on weekends; on Friday nights, Saturdays and Sundays. The evidence appeared to be that he also spent time at SI’s house in the holidays, although it was unclear precisely what time this was. He said that DC had been with him in every case since August 2018. He agreed that he would stay somewhere else and then just return to normal life. He explained that he did not want anybody finding out about it. When he stayed at SI and CF’s house they would just do what they normally do. He would sleep on the lounge and DC would sleep on the other side of the lounge.
The police then ran over the facts as they understood them to be:
(a)he has been friends with the complainant’s mum, SI, for 21 years;
(b)he is the complainant’s unofficial godfather;
(c)SI comes over to his place with the family and the kids play somewhere else;
(d)the complainant and ME like to stay over because they get electronics;
(e)because of the “[BH] issue”, he stays with SI and CF with DC;
(f)he has known the complainant since the complainant was about two or three years old;
(g)the complainant was a bit shy at first and when he was about five years old they kicked the football around;
(h)he has is not been alone with the complainant since “closer to 2016”;
(i)DC goes with him when he babysits and she leaves the house with him when BH comes;
(j)he was told by SI about the complainant being caught in the toilet showing another boy his penis, and about him showing the next-door neighbour his penis through the fence;
(k)he and CF have a good relationship; and
(l)there was no porn that the complainant might have seen at his house, but there was an incident where the complainant and M were watching porn on M’s mum’s phone about three months ago.
He adamantly denied any kind of sexual relationship with the complainant: “Yes, with [the complainant] nothing has ever happened.” In relation to the complaint that he touched the complainant’s penis with his hand and his mouth he said, “No. That makes me feel so sick.”
After the playing of the interview with the accused, a record of IB’s work history at the swimming school where she worked was tendered through Senior Constable Corey and became Exhibit 16.
Senior Constable Corey explained that the complainant’s third interview with police came about because “[the complainant’s] mum had contacted me and said that he wanted to talk to me again so I contacted the prosecutor at the time and she asked if I’d do another interview with him.” In that interview he had brought a letter with him. That was identified as the letter which was Exhibit 2. The additional words that he wrote down on a separate piece of paper was the second part of Exhibit 2.
She explained that a statement had not been obtained from ME because unless she voluntarily came forward, police would not conduct an interview because it was “quite traumatic and the welfare is more important”. She indicated that ME was quite adamant that she was not going to talk to police.
In cross-examination she was asked about ongoing contact with witnesses. She agreed with propositions that if a witness recalls something they have remembered then they can tell the police about it as the investigation proceeds.
She confirmed that when interviewing the accused they spoke about an allegation between 2017 and 2019. She confirmed that at no time off-camera that she could recall did they ask about a time in 2016.
There was no re-examination.
Agreed facts
Exhibit 12 was a document containing a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 2011 (ACT). This related to family composition and dates of birth. It also related to the change in shared custody arrangements of BH between his biological father and IB. As at 1 January 2016 the arrangement was for week-about care. From about 25 August 2016 the accused was not permitted to have contact with BH or be present at the premises of the house in Theodore when BH was there.
Report of Dr Catherine Sansum
Portions of a report by Dr Catherine Sansum, a specialist medical practitioner at the Child at Risk Health Unit, were admitted. Dr Sansum was not required for cross‑examination. Her evidence related to explanations for delay in disclosure by child victims of sexual abuse. The opinion included the following:
(a)delayed disclosure of sexual abuse is more common than disclosure at around the time the abuse occurs;
(b)reasons for delayed disclosure include that the perpetrator is in a position of power or authority or that the children are embarrassed or may fear getting into trouble;
(c)approximately 50% of children do not disclose sexual abuse until an adult asks them about it;
(d)children who disclose in childhood are most likely to disclose to a friend or their mothers;
(e)it is not unusual for disclosures to occur over time because children may test the reaction of others before revealing all that has happened to them;
(f)if a child is believed upon first disclosing sexual abuse, more information and detail may be shared by the child later; and
(g)children do not typically respond to sexual abuse by calling out or using force to resist.
Counsel for the accused submitted that this evidence could be admitted without challenge on the basis that each case turned on its own facts.
Assessment of the evidence
This is a case which turns upon the ability to accept beyond reasonable doubt the accuracy of the evidence given by the complainant, notwithstanding the denial made by the accused. The only substantial evidence supporting the complainant’s evidence is the evidence of the complaints made to his mother. The Crown case is made more difficult by the complainant’s reluctance or inability to articulate, in detail, what happened to him, and the very broad period during which the offending conduct is alleged to have occurred.
Much time at the trial was spent on contested factual issues which went to the opportunity, or the extent of the opportunity, available to the accused to commit the offences alleged. Notwithstanding the amount of time spent on evidence relating to these issues, ultimately there were only some differences as to the extent of the opportunity available to the accused to have committed the offences. Counsel for the accused accepted that, having regard to what was, on any view, the extensive and close contact between the complainant and the accused, there was ample opportunity for the offences to have been committed. That concession was clearly correct. In those circumstances the evidence became less significant for that purpose but remained of relevance because of the Crown’s allegations that statements made by the accused to police were lies demonstrating a consciousness of guilt or lies that otherwise affected the credibility of the accused. Those were statements which asserted that there had been few occasions when the accused had been alone with the complainant. I will return to that issue later.
Remembering that at all times the burden lies upon the Crown to prove the case beyond reasonable doubt, it is useful to set out those factors in favour of, or against, the acceptance of the accuracy of the complainant’s evidence.
Demeanour
The complainant’s evidence was given in a straightforward manner. He answered questions that he could and did not appear to be embellishing what occurred. There was no reason identified why the statements about the accused’s alleged conduct would have been made by him unless they reflected events that had occurred.
However, the evidence given during the interviews with police was given in a reluctant and disjointed manner which made it more difficult to get a clear impression of the coherence of the narrative or the extent to which the complainant was really remembering events.
Content
So far as the content of the complaint were concerned, the collateral details relating to the circumstances in which the alleged sexual misconduct occurred appeared to be reliable. For example, the complainant gave accurate evidence about the colour of the accused’s bedroom and his evidence about being able to see from the lounge room to the kitchen was corroborated by the witnesses.
However, a number of aspects of his evidence did give me concern. He gave evidence of sexual abuse occurring on every occasion that he went to the accused’s house on the weekend, from the time he was in kindergarten (2016) up until the beginning of 2019: see [58] above. That is a very long period and a very large number of occasions. That frequency and number of occasions of oral sex or indecency sits awkwardly with the absence of any evidence from another witness of having observed any incriminating acts in what was a very busy household.
The evidence of the complainant was the same in relation to when the accused came to his house. He said that the sexual abuse occurred every time: see [66] above. The same comment can be made as in relation to the allegations relating to the accused’s house.
In relation to the anal sex incident, he was asked what he remembered and said “nothing mostly”: see [59] above. In relation to timing, he could not be specific. He said it was in Year 1 but could not say why he said that: see [60] above.
A more general aspect of the complainant’s evidence which did not seem to be reliable was the emphasis in his evidence that he said “no” or otherwise verbally resisted the suggestions or actions of the accused. This was not entirely credible because it seemed to me to be inconsistent with the dynamics that would have existed between the complainant and the accused. The complainant may have sought to emphasise this resistance after the realisation that other people considered that what occurred was wrong. While this issue might lead to some doubt about this aspect of his evidence, it remains consistent with the proposition that the abuse occurred.
Complaint
The evidence of complaint provided some evidence that the events occurred as the complainant alleged and tended to support his credibility. The complaint was not a spontaneous one and was not made in circumstances such as the immediate aftermath of an incident, which would have given it additional weight. Rather, the complaint was made after questioning by the complainant’s mother. While that questioning was not directed to the identification of the accused, in assessing the weight to be given to the evidence of complaint, it is relevant to take into account that it was a complaint in response to questioning rather than a spontaneous one.
The demeanour of the complainant at the time when the complaints were made is significant and supports the reliability of the complaint. The evidence of SI was that he was upset at the time that he made the complaint and that he was fearful of getting into trouble. The evidence of CF about the demeanour of the complainant at the time was consistent with the complaint being a reliable one.
In assessing this evidence, it is necessary to take into account the evidence referred to at [136] above, in relation to the complainant’s first conversation with SI about the accused’s alleged conduct:
(a)his initial denial that he had been touched by anyone, which was inconsistent with what he said later in the conversation when further questions were asked;
(b)his statement that he had not touched the accused’s penis, which was inconsistent with what he subsequently told police in the third interview; and
(c)the fact that, prior to him describing how the accused touched his penis, his mother gave a series of suggestions and demonstrations of how he might have been touched, giving rise to the possibility of some influence on the content of the complaint.
My comments under this heading are all made in the context of my acceptance of Dr Samsun’s evidence about delay by children in disclosure of sexual abuse and the manner in which disclosure may often occur: see [252] above.
Behavioural changes
The Crown contended that the sexualised behaviour observed by the complainant’s mother and his regression to bedwetting were both matters which were consistent with the allegations. It is not possible to place any weight on this evidence as supporting the Crown case as there are other circumstances which might reasonably explain this behaviour. So far as bedwetting was concerned, this might be explained by a number of factors unrelated to any offending by the accused. Most obviously would be being bullied at school. However, the complainant’s life was not without complications apart from that, including getting into trouble at school, the presence or absence of a new father figure, his mother’s mental health difficulties, a new sibling and his family’s very significant financial difficulties. In those circumstances, it is not possible to point to regression to bedwetting as being indicative of sexual misconduct on the part of the accused, as opposed to one of a number of other possible matters.
So far as the sexualised behaviour is concerned, the two incidents referred to in evidence were of one incident in which young boys showed each other their penises and another incident in which the complainant was putting his penis through a fence to a child in the neighbouring house. While I accept that sexualised behaviour may be indicative of exposure to adult sexual conduct and, hence, consistent with the allegations made against the accused, the nature of the conduct in the present case was not only explicable by reference to such exposure. Rather, a plausible alternative hypothesis was that these behaviours were consistent with normal sexual exploration by a young child.
Further, there was some reference in the evidence to his sister, ME, demonstrating sexualised behaviours up until the point when CF moved back in, following the first breakup. There was no evidence to suggest that she had been sexually interfered with. That is consistent with the uncertainty surrounding the cause of, or reasons for, sexualised behaviour on the part of the complainant.
Development of evidence over time
The complainant’s evidence of what occurred developed over time. In his initial conversation with his mother he positively denied anyone having put their penis in his bum: see [107] above. After the initial complaint to his mother, he participated in the first evidence-in-chief interview with police, during which he said almost nothing in relation to the alleged offences. He said somewhat more in the second interview because he was prepared to write one allegation down. It was only in the third evidence-in-chief interview that more details of different allegations were set out. That included the allegation that the accused had put his penis in the complainant’s bum. It is important to note the substantial period that had elapsed between the second and third interviews. The difficulty that the complainant had in articulating what he says occurred makes it less easy to accept the accuracy of his evidence than if it had been able to be better articulated at an early stage.
Of course, the inability to readily articulate the details of what occurred may be completely understandable and consistent with how a child who had been subject to such conduct might behave. It would not be unusual that a child in the complainant’s position would be reluctant to make disclosures and only prepared to make disclosures gradually. However, that recognition does not completely overcome the lack of detail given at an early stage.
It is also notable that in order to try to encourage a very reluctant child to talk to them, police were very encouraging and gave the complainant positive reinforcement when he did tell them significant material. While this is understandable and not unreasonable, it gives rise to a possibility that the content of the complainant’s evidence may have been influenced by the positive feedback that he received.
Once again, these comments are made in the context of having accepted Dr Samsun’s evidence about patterns of disclosure by children.
Timing issues
The complainant’s evidence about when incidents occurred was very vague. He said that he was abused more than nine times and less than the highest number he could count to (which was “Four hundred and something”). He said that it occurred every time he went to the accused’s house and every time the accused came to his house. He gave some estimates of timing which led to doubts about the reliability of his evidence as to timing. For example, he said that the anal intercourse occurred on the white couch: see [59] above. The evidence was that this couch was in the house from 2016 until November or December 2017: see [85] above. In the third police interview the complainant said that the anal intercourse occurred in 2017, consistent with the couch being in the house: see [60] above. However, later in the same interview, he said that he was pretty sure that the incident occurred in September or October 2018, prior to TF’s birth, which must have been inaccurate. He then had no recollection of anything that the accused had done to him between that incident and coming to see the police, notwithstanding that there was at least one specific incident alleged to have occurred at the beginning of 2019 and elsewhere he had said that sexual abuse occurred every time he visited the accused’s house or the accused visited his house: see [66] above.
Such vagueness and inconsistencies are not surprising in a child of his age who alleges sexual abuse that is so prevalent. However, it is the imprecision and the inconsistencies that exist in his evidence which must be taken into account when assessing the overall reliability of his evidence.
Some exposure to pornography
It appears likely that the complainant had some exposure to pornography. There was specific evidence of an incident involving him accessing some material which was probably pornographic (see [130] above), although of a different nature to the type of conduct alleged in this case. Exposure to pornography could be a reason why a child of the complainant’s age was familiar with several acts such as those he described. There is also evidence of sexualised conduct, relied upon by the Crown as being consistent with the allegations made but also consistent with other possibilities, including exposure to pornography.
Answer that told about things not sure of
At the end of cross-examination of the complainant, the following exchange took place:
[The complainant], when you were talking to the police, did you think they wanted you to say that [the accused] had done things?---Yes.
Did you tell them things so they would stop asking you questions?---Yes.
Did you tell them things that you didn’t really remember?---Yes.
The final questions asked of the complainant in cross-examination were:
Did [the accused] ever touch your penis?---Yes.
Did you ever touch [the accused’s] penis?---Yes.
In re-examination, the following exchange took place:
[Counsel for the accused] asked you some questions about when you spoke to the police, Sue and Jude. He asked you whether you told them things so that they would stop asking you questions?---Yes.
Did you tell them things that were lies to make them stop asking you questions?
…
The witness: No.
This last question was objected to, but the question and answer were allowed.
Cross-examination which elicited agreement to the proposition that the witness had told the police things that he did not really remember was carefully targeted and deliberately not explored. The preceding questions were potentially complex or ambiguous for a child of the complainant’s age. The final questions put to the complainant in cross-examination indicated that any doubt cast by the earlier answer did not extend to the basic proposition that the accused had touched the complainant’s penis and that he had touched the accused’s penis. However, it left uncertainty of indeterminate scope hanging over the answers that the complainant had given to police. With an inarticulate witness such as the complainant, that left the Crown in a difficult position because untangling what the complainant was agreeing to in the earlier answer would be difficult having regard to the level of understanding of the complainant and the requirement for simplicity of questions arising from the recommendations of the witness intermediary. The Crown did elicit from the complainant that he had not told lies, a proposition which is likely to have been understood by the complainant as not involving telling the police things which he believed were untrue. That is different to confirmation that what the complainant had told the police was true and did not remove the uncertainty as to what the complainant meant by his agreement to the proposition that he had told the police things that he could not really remember.
Having regard to the burden of proof and the centrality of the complainant’s evidence, the uncertainty thereby created is a problem for the Crown rather than the accused. It provides another example of the difficulty created for the Crown by deliberately minimalist cross-examination, which achieves a superficially favourable answer, which is not then comprehensively addressed in re-examination: compare Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33 at [48].
Credible denial
Leaving aside the question of lies alleged to have been told to the police, which I will address in a moment, what the accused said in his interview with police is not clearly incredible. His demeanour during the interview does not reflect poorly on his credibility. He appeared to answer the questions posed to him by police without hesitation. There is nothing in his demeanour or behaviour during the interview which would cast doubt upon the reliability of his evidence. He is reasonably articulate. He accepted, in a non-defensive manner, facts consistent with the Crown case. Most significantly, he accepted that he has a close relationship with the complainant and that there would have been many occasions when he had contact with the complainant.
I must take into account that the denial by the accused was not given on oath, in contrast to the evidence of the complainant.
The Crown submitted that the accused told lies to police during the course of the interview. The first alleged lie was his statements at questions 100 and 101 that “I’d babysit for them but ever since my situation, no, I’ve not been alone with him.… Oh, I make sure of it. I’m not alone with nearly any child.” The second was at question 105. The question and answer were:
Q 105. So if you babysit at their place, does [IB] go with you?
A. No, I’ll have my eldest stepdaughter [DC] with me.
So far as the first alleged lie is concerned, there is some ambiguity as to what the accused meant by “alone with him”. It might mean alone with him in a room or alternatively it might mean alone with him in the house.
Even assuming that the statement involved the latter, I am satisfied that the statement was inaccurate. Further, I am satisfied that the second statement relating to DC was also inaccurate. I am satisfied that the accused made the statements in order to convince the police that it was less likely that the allegations against him were true by reason of a lack of unsupervised opportunity. I take this into account generally in assessing his credit in relation to what he told police, in the manner that is permissible in accordance with the directions that I have given myself.
However, I am not satisfied that I should give the answers significant weight as admissions by reason of them demonstrating a consciousness of guilt. That is because the making of the statements in the context of such a police interview, where there had been a history of sensitivity in relation to what he describes as “my situation” with BH, is also consistent with him having told lies in order to deflect false allegations.
Circumstances surrounding the accused’s contact with BH
Although the evidence was deliberately not elaborated upon, it was clear that after August 2016 there were allegations made in relation to the conduct of the accused towards his wife’s son, BH, and that led to a situation in which he was not permitted to be present at his own home when BH was visiting. Because of the limitations on the evidence and the fact that I am required to put out of my mind any material not in evidence, these circumstances form part of the complex circumstances in which the offending is alleged to have occurred. They are not matters which are adverse to the accused in a significant way. The scrutiny of his conduct towards BH could be seen as a factor which made it less likely that there was any misconduct towards another child. However, I have treated it as effectively a neutral factor.
Social connections
So far as social connections are concerned, the accused seemed to have strong social connections which reflected well on his character, unless viewed through a lens of suspicion. He was clearly a long-term friend and supporter of the complainant’s mother. He supported her at times when she had difficulties with her mental health, when she had to go to hospital, when she broke up with her partner CF and when she had so little money that it was necessary for her children to go and stay with the family of the accused in order that they be properly fed. This support appears to have been part of a genuine long-term friendship.
The accused himself is married and has one child with his wife. He also has three stepchildren. So far as the evidence discloses, he has functional relationships with at least two of them, the evidence concerning BH being unclear. As has been emphasised, the evidence disclosing the difficulty with his presence when BH was in the house did not extend beyond there being non-specific allegations of misconduct made in the context of a family law dispute.
Of course, none of this is inconsistent with the offences having been committed. Plenty of offenders have otherwise functional relationships separate from their offending conduct. Further, it is not unusual for an offender to be well known to the victim and the victim’s family. However, the overall picture of long-term genuine friendship with, and support for, SI does not fit readily with the allegations made against the accused.
Matters not explored
There was some evidence that the complainant was receiving support from the National Disability Insurance Scheme and that this involved some additional classroom support at school. The evidence did not disclose what disability he suffered from. Although it seems unlikely, having regard to his presentation, that this affects the reliability of his evidence, the absence of any explanation as to what disability justified such involvement raises a question in my mind.
Conclusion
The decision that I have ultimately reached is that, although the complaints made by the complainant appear credible and it is likely that the complainant was sexually interfered with by the accused, I have what I consider to be a reasonable doubt about the accuracy of the complainant’s evidence. This is a general doubt about the reliability of the complainant’s evidence. That doubt arises from the aggregation of matters that I have referred to in the preceding section of these reasons. They are, in summary:
(a)the reluctant and disjointed manner in which the complainant’s evidence-in-chief was given: [258];
(b)the difficulty in accepting that there was sexual abuse on every occasion that the complainant visited the accused’s house or the accused visited the complainant’s house between 2016 and the beginning of 2019: [260]-[261];
(c)some of the lack of detail about what the complainant said about the anal intercourse incident: [262];
(d)the evidence of the complainant’s verbal resistance to the accused in circumstances where the likely dynamics between the complainant and the accused suggest that this was unlikely: [263];
(e)the fact that the complaint made to the complainant’s mother was not made spontaneously, that it involved an initial denial and that details were given after there were some suggestions and demonstrations as to how the complainant might have been touched: [264], [266];
(f)the lack of detail given in the complainant’s first two police interviews and the substantial gap in time before the third interview with police: [271];
(g)the positive reinforcement given during the course of the interviews with police in: [273];
(h)the imprecision as to the number of occasions when abuse had occurred and as to the timing of particular incidents: [275];
(i)the exposure of the complainant to some pornography: [277];
(j)the complainant’s answer given in cross-examination that he had told police things that he did not remember: [278]-[283];
(k)the apparent plausibility of the accused’s denial: [284];
(l)the long-term, genuine and supportive friendship that existed between the accused and the complainant’s mother: [291];
(m)the nature of the accused’s social connections with his family and the family of the complainant: [292]; and
(n)the lack of evidence explaining the complainant’s disability: [294].
None of these matters individually gives rise to what I consider to be a reasonable doubt. However, taken collectively, in the circumstances of this case they are sufficient to give rise to a reasonable doubt. The aggregation of these matters means that I am not able to accept the accuracy of the complainant’s evidence to the high standard that the law requires in order to find the accused guilty of the charges on the indictment.
Therefore, although, in light of the evidence led by the Crown, there must be grave suspicion surrounding the conduct of the accused towards the complainant, the Crown has not proved the allegations in counts 1 to 7 beyond reasonable doubt. On each charge the accused is not guilty and a verdict of acquittal must be entered.
The verdict of the Court is: On each count on the indictment dated 6 July 2020 the accused is not guilty.
| I certify that the preceding two hundred and ninety-eight [298] numbered paragraphs are a true copy of the Judgment of his Honour Justice Mossop. Associate: Date: 14 August 2020 |
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