R v Omond
[2022] SADC 62
•20 May 2022
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v OMOND
Criminal Trial by Judge Alone
[2022] SADC 62
Reasons for the Verdict of his Honour Judge Kimber
20 May 2022
CRIMINAL LAW
Defendant charged with Maintaining an Unlawful Relationship with a Child and Indecent Assault in the alternative.
Verdict: Guilty of Maintaining an Unlawful Sexual Relationship with a Child.
Criminal Law Consolidation Act 1935 (SA) ss 50 and 56; Evidence Act 1929 (SA) ss 34M and 34P, referred to.
R v J, JA [2009] SASC 401; Gately v The Queen (2007) 232 CLR 208; R v NZ (2005) NSWCCA 278, considered.
R v OMOND
[2022] SADC 62R v OMOND
Introduction
On an Information dated 7 February 2020, Mr Omond is charged with the following offences:
First count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of offence
Gary Omond between the 1st day of January 2016 and the 19th day of December 2018 at Elizabeth Downs and Craigmore, maintained an unlawful sexual relationship with AF, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) touching her vagina on more than one occasion;
(b) (deleted)
(c) putting his mouth near her vagina on more than one occasion; and
(d) by holding an object, namely a vibrator, against or near her vagina.Second count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Gary Omond between the 13th day of December 2018 and the 19th day of December 2018 at Craigmore, indecently assaulted AF by holding an object, namely a vibrator, against or near her vagina.
It is further alleged that AF was under the age of 14 years at the time of the offence.
Count 2 is an alternative to count 1.
Mr Omond elected for trial by judge alone. These are my reasons for finding Mr Omond guilty of Count 1.
Elements
The elements of Count 1 are:
1.The defendant was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised;
2.AF was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised;
3. The defendant knowingly maintained a relationship with AF;
4.While the relationship was being knowingly maintained by the defendant, he intentionally committed two or more of the unlawful sexual acts particularised.
If two or more acts within the particulars of Count 1 are proven beyond a reasonable doubt, the balance of what must be established will be proven to that standard. AF was no more than ten (10) years of age. The defendant was an adult. At all relevant times, there was a relationship and the defendant knew that. The defendant was initially a next-door neighbour and AF would visit his home. AF stayed overnight at his home on occasions and he would look after her. The defendant took AF to places other than her home and his own home.
The elements of Count 2 are:
1. The act the subject of the charge occurred;
2. The act involved a deliberate application of force;
3. The act was indecent;
4. AF was under the age of 14 years.
The act the subject of Count 2 is what the prosecution described in its opening address as ‘on one occasion … the accused held a vibrator against or near (AF’s) vagina’.[1] There is no dispute that if the prosecution established beyond a reasonable doubt the defendant did that on a single occasion, the offence will have been proven.
[1] T6.
General Directions
Having conducted a trial by judge alone, it is not necessary to set out the standard, obvious directions of which a judge is bound to be aware. However, I remind myself of the following.
The defendant is presumed innocent unless and until his guilt has been proven beyond a reasonable doubt. This requirement extends to proof beyond a reasonable doubt of every element of an offence. To the extent the defendant has put forward a defence or innocent explanations, he does not have to prove them. It is not sufficient for the prosecution to show a suspicion of guilt, or to demonstrate the defendant is probably guilty. I must apply my common sense. I must only consider the evidence given by the witnesses and the exhibits.
The defendant did not give evidence. His failure to do so is not evidence. I must not draw any inference adverse to him from the failure to give evidence.
Some other directions
The complainant is AF. She was born on 12 November 2008. On 2 January and 8 July 2019 AF was interviewed and an audio-visual record made. Those interviews are P1 and P3 respectively. I have not drawn any inference adverse to the defendant from the admission of evidence in the form of the two interviews. I have not allowed the admission of evidence in that form to influence the weight to be given to the evidence.
Transcripts of the two interviews were tendered.[2] Those transcripts are not the evidence. They are just documents which can assist in following the respective interviews.
[2] P2, P2A, P4, P4A.
Background – matters not in dispute
There are matters not in dispute. I find the following established, unless otherwise indicated.
As I have said, AF was born on 12 November 2008. Her mother is KC. AF is the youngest of KC’s five children.
In about February 2016, KC and her four youngest children, including AF, moved into a house at Midlow Road, Elizabeth Downs (AF’s house at Midlow Road). AF and her mother lived there at all relevant times, including when AF spoke to the police about the defendant for the first time on 2 January 2019.
When AF and KC moved into AF’s house at Midlow Road, the defendant was living next door (the defendant’s home at Midlow Road). The defendant had been living there since November 2014. He was living with his partner (Ms Barrow) and her son Thomas. Thomas was born on 3 August 2011. The defendant is not Thomas’ father.
The two houses at Midlow Road were attached. There was a low fence separating both the front and back yards. For periods of time, others lived with the defendant, Ms Barrow and Thomas at Midlow Road. The defendant’s father lived there for about four months, but it is unclear on the evidence if any of that period was when AF was living next door. Ms Barrow’s brother lived at the defendant’s home at Midlow Road for about two months immediately before the defendant moved from that address. When the move took place, the defendant, Ms Barrow, Thomas and Ms Barrow’s brother moved to a house at Craigmore.
After AF moved into Midlow Road, her mother became friendly with the defendant and Ms Barrow. AF also became friendly with Thomas. AF would regularly attend the defendant’s home. AF would do so, at least in part, to spend time with Thomas, to play with items there and to separate herself from her siblings.
At all relevant times, KC was a single mother. In 2016 she was working as a carer, but also had her own cleaning business. KC sold her cleaning business at the end of 2016. She continued working as a carer in 2017, with a break for part of that year. During 2017 KC commenced working for an organisation called Bene. At least once commencing there, KC worked night shifts five or six nights a week. When working night shifts her hours were 11:00pm to 7:15am. KC was still working for Bene in 2019. She ceased working there in 2020.
Ms Barrow worked for KC’s cleaning business for about two or three months commencing in about May 2016. The number of days a week, and the hours in any given day, varied. It was about three days a week for a maximum of about five hours. Ms Barrow sometimes started as early as about 7:30am. She worked on one Saturday, but only for a couple of hours.
The defendant, Ms Barrow, Thomas and Ms Barrow’s brother moved to 4 Coorara Court, Craigmore (Craigmore) on 18 May 2017. Ms Barrow’s brother stayed at that house until May 2018.
From no later than the week ending 9 July 2017, the defendant worked for the Northern Adelaide Waste Management Authority. He was still working there on the day of his arrest, 3 January 2019. The defendant’s timesheets,[3] which are business records, establish the days and times he worked. He did not always work every day from Monday to Friday. He sometimes worked on weekends.
[3] P14.
In December 2018, the defendant’s grandmother, Ms Williams, lived in the same street as the defendant. By that time, Ms Williams had lived there for about forty (40) years.
AF continued to visit the defendant’s home after he moved to Craigmore. At least on occasions this would be arranged through text and/or Facebook messages between the defendant and KC. AF stayed overnight at Craigmore. The final time was in December 2018. There is no dispute AF stayed at least two nights in that month. For reasons I will later give, I am satisfied she stayed longer than that.
On the morning of 2 January 2019, KC took AF to the Elizabeth Police Station. AF was interviewed in the absence of her mother. That interview is P1. AF alleged she had been touched in sexual ways by the defendant. Aspects of what she alleged were that a vibrator had been used by the defendant and that on a single occasion he had placed an item on her wrists and legs. The word ‘restraints’ is a convenient description for what AF described, but she did not use that word.
KC had a vibrator while living with AF at Midlow Road. As at January 2019, she had owned it for about five (5) years.[4] It was kept in a drawer in her bedroom. It was pink and about 10cm long.[5] AF had seen a vibrator belonging to KC on at least one occasion before 2 January 2019. While AF was a young child and while living interstate with her mother, KC sold sexual aids. KC had once owned a set of ‘restraints’. She first had them in about 2009. She may have left them at the home of her ex-partner in Victoria.[6] KC left that house in 2013.[7] AF had seen KC’s ‘restraints’ at a previous house.[8]
[4] T111.
[5] P9, photo 33.
[6] T143.
[7] T78.
[8] T58.
On 3 January 2019, police officers attended the defendant’s home at Craigmore. Only the defendant and Ms Barrow were present. While living at both the defendant’s home at Midlow Road and Craigmore, Thomas would sometimes stay with his father.
On 3 January 2019, police searched at least the main bedroom used by Ms Barrow and the defendant. The house was very untidy. In the drawers of the bedside table in the main bedroom were two vibrators, both of which belonged to Ms Barrow. One was pink, the other blue. The pink vibrator was about 24cm long. The blue vibrator was about 14cm long.[9] Ms Barrow had both items when she was living with the defendant at Midlow Road. During the search on 3 January 2019, police did not find any item which could be described as a ‘restraint’.
[9] P16.
The defendant was arrested on 3 January 2019. His conduct when arrested is consistent with him denying having committed any offence.
As set out above, the defendant was working while living at Craigmore. Ms Barrow was also working while living at that address. This was from at least 8 October 2018. She worked as a carer for Gawler Supportive Care. The dates and times she worked are set out in timesheets which are business records.[10]
[10] P19.
The interviews of AF – P1 and P3
As set out above, the two interviews with AF are exhibits. They were admitted pursuant to s 13BA of the Evidence Act, 1929 (EA). The interviews were played during the trial. I invited submissions as to whether I could view the interviews after the closing addresses and, if so, in what circumstances. Both counsel submitted I could watch the interviews again, but the defendant’s counsel submitted I should only do so in court in the presence of counsel and the defendant.
As part of my evaluation of the whole of the evidence, I have watched both interviews once in my chambers. This included replaying some aspects, particularly to ensure that I understood what AF was saying. At times, aspects of what AF said is difficult to discern.
The approach of both counsel in submitting I was permitted to watch the interviews again is consistent with the approach of Duggan J in R v J, JA [2009] SASC 401 at [28]-[30] (Nyland J agreeing). In R v J, JA an audio-visual statement of the complainant had been admitted pursuant to s 34CA of the EA. That section has since been repealed. The trial judge had told the jury that if it wished to view that audio-visual record during its deliberations, it would have to do so in the court room. Duggan J stated the approach of the trial judge was correct. Implicit in Duggan J’s approach is that he accepted the jury could view the audio-visual record during its deliberations. In my view, that P1 or P3 were admitted pursuant to s 13BA of the EA and that this is trial by judge alone, do not demand a different approach.
While Duggan J held in R v J, JA the trial judge was correct in telling the jury the audio-visual record could only be viewed in the court room, I am satisfied that is not necessary in trial by judge alone. The justification for Duggan J’s approval of the approach of the trial judge was the risk of ‘giving the complainant’s version undue weight if there is no restriction on the playing of the tape’.[11] In my view, if that risk exists in trial by judge alone, it does not exist to the same degree. It is common that judges sitting alone will read the trial transcript, sometimes many times. Sometimes not all aspects of a witness’ evidence will be read the same number of times. Putting aside audio-visual records admitted pursuant to s 13BA of the EA, audio-visual recordings are commonly exhibits (e.g. records of interview with defendants and CCTV footage). Sometimes such recordings might be watched many times, including replaying specific aspects. In my view, at least in trial by judge alone, there is no need to take a different approach when an aspect of the evidence of a witness is an audio-visual record. Nonetheless, I have directed myself that P1 and P3 are only part of the evidence of AF, and only part of the evidence in the trial. I am obliged to evaluate the whole of the evidence. I must not give P1 and/or P3 undue weight because I have viewed them more than once.
[11] R v J, JA [2009] SASC 401 at [30], referring with approval to Gately v The Queen (2007) 232 CLR 208 at [16], [28], [96]; R v NZ (2005) NSWCCA 278.
AF’s evidence of sexual acts
AF alleges she was touched in a sexual way by the defendant in more than one way, on more than one occasion. She has alleged this occurred in her bedroom and at both homes of the defendant. It is helpful to identify some aspects of what the prosecution submits AF has said which I should accept were an honest and reliable account of conduct corresponding with the three types of unlawful sexual acts set out in the particulars of Count 1.
Particular (a) – touching her vagina on more than one occasion
The prosecution submits AF told the police in P1 she had told her mother the defendant had ‘started grabbing my privates’.[12] AF’s reference to what she had told her mother is not evidence of any such conduct having occurred. However, the prosecution submits that comment is relevant to what AF says immediately thereafter. The prosecution submits that immediately after referring to what she had told her mother about the defendant’s alleged conduct, AF told the police ‘it’ started when the defendant lived next door, and it occurred while at that house in her room.[13] The prosecution says it can be inferred when AF said that ‘it’ happened the first time ‘next door’ and that he ‘started doing it in my room’[14], AF was telling the police ‘it’ was grabbing her privates and it occurred at his house next door and in her room. Notwithstanding the prosecution’s submission, I will not rely upon the passages just identified within the first interview for the truth.
[12] P1, Transcript P2 p7.
[13] P1, Transcript P2, p7.
[14] P1, Transcript P2, p7.
The prosecution also relies upon AF stating the defendant ‘would always grab on to me and then my privates’[15] and that the defendant would ‘put his hand there on top of my clothes and sometimes underneath’.[16]
[15] P3, Transcript P4, p5.
[16] P3, Transcript P4, p5-6.
Particular (c) – putting his mouth near her vagina on more than one occasion
Among the evidence relied upon by the prosecution to support this particular is that AF has said: ‘he started doing his mouth’[17]; he had put his mouth on her privates[18] and the first time it had happened was ‘at his old place’[19]. As to how many times such conduct occurred, the prosecution says AF has said it happened ‘only twice’[20], but has also said the defendant ‘would always put his mouth on my rude part’[21] and if she was laying down on his bed ‘he would always’ come and put his mouth on her ‘part’, which she hated.[22]
[17] P1, Transcript P2, p11.
[18] P1, Transcript P2, p11.
[19] P3, Transcript P4, p7.
[20] P3, Transcript P4, p7.
[21] P3, Transcript P4, p8.
[22] P4, Transcript P4, p9.
Particular (d) – by holding an object, namely a vibrator, against, or near, her vagina
The prosecution submits that among the evidence to support this particular is that AF said the defendant has ‘this thing my mum has’ and that ‘he started putting it near my rude part, but I kept pulling it away’[23]. AF has also said the vibrator was in the drawers in the bedside table;[24] the defendant had only used it a couple of times[25]; it had vibrated; and she did not remember how long he had used it for because she was falling asleep.[26] AF has also said that it was a ‘pink long thing’[27]. The prosecution case is AF has said the ‘last time I saw him he touched me with a vibrator. Just like a little bit. So I just pushed it away and I was gonna break it but if I break it, Gary and Stacey would be mad at me’[28].
[23] P1, Transcript P2, p9, p15.
[24] P1, Transcript P2, p16.
[25] P3, Transcript P4, p9.
[26] P3, Transcript P4, p10.
[27] P1, Transcript P2, p9.
[28] P1, Transcript P2, p20.
Other aspects of AF’s evidence
During cross examination and re-examination, among what AF said was the following.
As to the last time she had seen the defendant, an aspect of what AF said was the last time the defendant had done something to her was ‘last Friday … when school holidays had not even begun, last Friday when school holidays weren’t there yet’.[29] AF also said that only the defendant and Ms Barrow had been at the house on the occasion of that visit and Thomas had not been at that home ‘for a while’.
[29] P1, Transcript P2, p7.
AF said that when the defendant was next door, she would go to his home to get away from her brothers.[30] She would go over and knock on the door without calling first.[31] There were times when Ms Barrow would not be there.[32] AF also said that once the defendant moved to Craigmore, the defendant and Ms Barrow would sometimes watch her play netball and she did stay over at Craigmore.[33]
[30] T47.
[31] T47.
[32] T49.
[33] T50.
AF agreed she had seen her mother’s vibrator before going to the police, and that she had asked what it was.[34] AF said her mother had not told her what it was, nor that it was used to put on her ‘privates’. Her mother had grabbed it and hid it away.[35] AF also denied that her mother had told her she used it to relax.[36]
[34] T53.
[35] T53.
[36] T53.
As for AF having said to the police, ‘My mum has it but she charges it and it’s a vibrator, I think it is, she does it so it makes her relax’, AF said the defendant had told her the vibrator made her mother relax.[37] At one point when asked about the defendant using a vibrator to touch her, AF responded in one of her interviews:
[37] T54.
Well my mum has one as well and she doesn’t really use it half the time, but when we’re like, asleep or something, she would do it. Like put it on herself but not us, and Gary has one too, and I never knew, but then I found out.[38]
[38] P3, Transcript P4, p9.
I pause to observe I am satisfied that not only had AF seen her mother’s vibrator before going to the police, she had some knowledge about her mother’s use of it. It is difficult to draw any other conclusion from those aspects of the evidence immediately above which refer to how often her mother used it, when and that she charged it.
AF also said every time she came home from the defendant’s home at Craigmore, her mother would ask if he had placed his mouth on her privates.[39]
[39] T56.
KC
In my summary of undisputed evidence, I have referred to some aspects of KC’s evidence. I will not repeat those matters.
KC told me that she had not talked to AF about ‘sex’[40]. She told me that in so far as she was aware, AF did not know what ‘sex’ was and she had not had ‘that discussion with her’.[41] However, KC had said to AF and her children:[42]
[40] T139.
[41] T139.
[42] T107.
APretty much just the same context, I'd always say to them, you know, 'If anyone touches youse down there you need to tell me' and I've always said it to them even as a group, all the children 'Nobody touches there, boy or girl, it's your parts. The only person who can touch it is a doctor'.
An aspect of the defendant’s submissions was that AF may have related to police sexual activity she had seen in her own house or heard about. KC denied AF had seen her having sex.[43]
[43] T139.
As for the AF seeing, or knowing about, a vibrator, or ‘restraints’, KC initially told me she had not had any discussion with AF about vibrators, or ‘restraints’.[44] However, KC later recalled an occasion on which AF had her vibrator and had asked her something to the effect of what it was. KC told me she had not said anything in response and grabbed it and put it away.[45]
[44] T110.
[45] T142.
Z is KC’s eldest son. At the time of the trial he was twenty-two (22) years of age.[46] He must have been about nineteen years of age in January 2019. At the end of 2011, KC took steps to have Z removed from her care as he was exhibiting ‘sexualised behaviours’.[47] Z lived with KC and AF again in about 2014 for a time and spent Christmases with KC and AF. [48]
[46] T76.
[47] T115-116.
[48] T115-116.
The defendant did not rely upon any evidence about Z to suggest AF might have engaged in any sexual act with him.[49] There was also no evidence of what the ‘sexualised behaviours’ were. As I understand it, the relevance of Z’s alleged conduct was to explore the possibility of what might have been discussed with, or overheard by, AF and which might inform whether AF might have invented or imagined any alleged conduct by the defendant.
[49] T117-118.
An aspect of this evidence was KC’s evidence of an alleged incident in the days before AF spoke to her about the defendant. KC said in the days preceding taking AF to the police she became aware of alleged sexual activity between her niece M, her nephew B and Z. KC said she first learned of that alleged conduct on 28 December 2018 and she then spoke to M and Z.[50] KC was not asked whether anyone else was present when she spoke to M and Z, nor did she relate the alleged sexual activity involving M, B and Z. KC also told me she had spoken to her brother on 31 December 2018 at her home, but that did not occur ‘in front of the children’.[51] KC was not asked to detail what she had discussed with her brother.
[50] T136-137.
[51] T137.
‘Initial complaint’ – whether KC told AF what to say
An aspect of the evidence of KC is what the prosecution submits was an ‘initial complaint’ by AF. KC told me that on the night of 1 January 2019, she spoke to AF because of the alleged incident involving M. KC said she wanted to know AF was safe.[52] Part of what KC told me was:[53]
[52] T137.
[53] T104-105.
QTell us about your conversation with AF, how it occurred and what was said, using the words that were said.
APulled AF into a room and I said to her, I said 'Nobody touches you down there' and I gestured to her vagina and I said 'If anybody touches there you need to tell me'.
QWhat was AF’s response.
AShe goes 'Okay mummy'.
QWhat happened after that.
AI was in brushing my hair, getting ready for work, and AF wanted - she asked to speak to me and I thought 'Oh God, what's going on?', and I said 'Yep, okay, let's go' and we went into the bedroom and we had a chat and she told me that she didn't want to go back to Gary and Stacey's anymore.
QWere they the words that she used, what were the words that she used.
A'Can I not go back to Gary and Stacey's?'
QWhat was your response.
AAnd I said 'Why, what's going on?' and she turned around and she said to me that Gary tried to touch her down there.
QYour response.
AAnd I said 'Okay, we're going to deal with this' and the first thing I did was picked up my phone and tried to ring the police station and it rang out for 45 minutes.
QWas there any discussion about what she meant by 'down there'.
AWhen I gestured to her vagina she said, she nodded her head.
QDid she say anything else, apart from 'He tried to touch me down there', about what Gary had done to her.
AShe said that he tried to put his mouth down there and she kicked him away.
QWas that the extent of what she told you.
AThat was the extent, I told her to stop. As much as I wanted her to let it all out, I told her she couldn't tell me any more and she had to wait to go to the police station.
KC told me she had to go to work that night, but did make contact with the Elizabeth Police Station. She said she was told there was no one to talk to that night and to attend in the morning.[54] KC told me she took AF to the police station the next morning. She denied telling AF what to say.[55]
[54] T105.
[55] T139.
It is convenient at this point to make some observations about the evidence of KC, including her evidence of the ‘initial complaint’.
KC impressed me when she gave evidence. She gave evidence in a straightforward, matter of fact way. At no point did I form the impression she might have been misleading me. I am satisfied she did her best to relate events honestly and to the best of her recollection.
As for the suggestion made at trial that KC might have told AF what to tell the police, while it is not for the defendant to prove anything, the motive suggested by the defendant (i.e. - that she was seeking to deflect attention from the alleged conduct of Z), does not strike me as likely. It is unclear how KC might have thought AF making a false allegation with respect to the defendant might impact upon what might occur with Z’s alleged conduct with M. The evidence is KC spoke to the police about that matter on 2 January 2019.[56] There is no evidence as to what she said. On the evidence, I do not infer she might have been reluctant to speak to the police or might have misled the police. There is no dispute KC enjoyed a good relationship with the defendant before AF went to the police. Given that relationship, it is unlikely she might have sought to have AF make serious, false allegations about him. Even putting these matters aside, I accept KC’s evidence she did not tell AF what to say. I reject KC was motivated by wishing to protect her son such that she wanted AF to relate a false story and reject she wanted AF to mislead the police. The rejection of KC being motivated to have AF mislead the police is not evidence.
[56] T140-141.
As to AF’s evidence of ‘initial complaint’, she said in the first interview ‘I told my mum that he started grabbing my privates’. AF agreed in her evidence in court the first time she had said ‘yes’ when asked if the defendant had placed his mouth on ‘her privates’ was when her mother had asked her. AF denied she had said ‘yes’ because she thought that was the response her mother wanted on that occasion, or because her mother had asked that more than once.[57]
[57] T56-57.
As I understand the evidence, there is no direct evidence the conversation on 1 January 2019 was the first time AF had spoken about the alleged conduct of the defendant. Nor is there direct evidence what AF said on that day to KC was an ‘elaboration’ of something previously alleged. AF’s evidence went no further than her saying the conversation with her mother was the first time she had said ‘yes’ to her in the context of being asked about any relevant conduct by the defendant. AF never expressly stated she had not mentioned the defendant’s conduct to anyone else before speaking to her mother on 1 January 2019. No submissions were made by either counsel as to the basis upon which I should, or should not, find this was an ‘initial complaint’.[58]
[58] Section 34M EA.
Other than saying it was the first time she had said ‘yes’ to her mother, AF said she had been told by the defendant to keep his conduct ‘a secret’ and ‘ever since I’ve been trying to tell my mum … every time I try and tell my mum, the boys or my sister get in the way’ and she had wanted to tell her mum ‘secretly’.[59] Further, KC was unaware of the alleged conduct until 1 January 2019.
[59] P1, Transcript P2, p10.
On the evidence, it is more likely than not the first time AF made any allegation of any sexual conduct by the defendant was to her mother on 1 January 2019 and what AF said was an ‘initial complaint’. Nonetheless, in the absence of direct evidence from AF this was the first time she made a relevant allegation to anyone, I will take a cautious approach and not rely what was said on that day as an ‘initial complaint’.[60]
[60] Section 34M EA.
I am satisfied AF’s complaint did not come in response to the question ‘Did Gary put his mouth on your privates’, as I accept the evidence of KC that she never asked such a question. It follows that, contrary to a submission the defendant made, I reject AF made any allegation of the defendant using his mouth because of what KC said to her.
I prefer the evidence of KC as to what was said by AF at the time of the conversation on 1 January 2019 and I accept KC’s evidence. Nonetheless what was said is not evidence of the truth of what was said and must not be used as a consistent statement, or consistent conduct, by AF. The only uses of this conversation are to explain why AF was taken to the police the next day and if there are differences in the two accounts of what was said at the time of the conversation with KC, those differences are potentially relevant to the credibility and reliability of AF.
There are some differences in the evidence of KC and AF about what was said. AF referred to telling her mother the defendant ‘started grabbing my privates’. KC said she was told the defendant ‘had tried’ to touch her down there and had tried to put his mouth ‘down there’. However, I accept KC’s evidence she brought the conversation to an end. KC told me ‘I told her to stop. As much as I wanted her to let it all out, I told her she couldn't tell me any more and she had to wait to go to the police station’.[61]
[61] T105.
Given that, and AF’s age, I am satisfied those differences are not material to the honesty and reliability of AF.
Ms Barrow
I will not repeat the aspects of Ms Barrow’s evidence already referred to in my summary of the evidence not in dispute. Putting those aspects of her evidence aside, the following aspects of her evidence have potential significance to the issues in the case.
Ms Barrow told me after the move to Craigmore AF came only during the ‘school holidays over the weekend’ and this occurred no more than four times.[62] She said the defendant would not collect AF himself.[63] Ms Barrow told me AF was not permitted to enter the main bedroom at Craigmore, other than to access the ensuite bathroom.[64] She said she had seen AF in the main bedroom a couple of times. She said AF had lain on the bed, but Ms Barrow had always been there.[65] Ms Barrow said the only occasion the defendant and AF had been alone at Craigmore was for a ‘few’ minutes one weekend in December 2018.[66] Ms Barrow said AF had only been at the house from Friday night to Sunday on that weekend.[67] Ms Barrow said on this occasion the defendant had been unwell and arrangements were made for Ms Williams to attend.[68] Ms Williams confirmed she had done that on a single occasion in order to supervise AF while the defendant was unwell and in bed.
[62] T211, 230.
[63] T211.
[64] T214.
[65] T215.
[66] T215.
[67] T216.
[68] T216.
Ms Barrow confirmed the two vibrators found by the police on 3 January 2019 in her bedside drawers were hers and were kept there. She said she had never shown them to AF, nor spoken to her about them.[69] Ms Barrow told me she kept her ipad between her bed and the bedside drawers, or in one of the bedside drawers. She said AF would never be permitted to obtain the ipad herself, but there were occasions she saw AF with it, without knowing AF had asked for it.[70] Ms Barrow had no knowledge of any ‘restraints’ at either relevant address.[71]
[69] T223.
[70] T231.
[71] T223-224.
Ms Barrow told me that AF went on two holidays with her, the defendant and Thomas. She said that on both occasions she shared a room with AF and the defendant shared a room with Thomas.[72] This is contrary to AF’s evidence[73] and what she told KC.[74] I will return to this.
[72] T232-233.
[73] T73-74.
[74] T134.
It is convenient at this point to make some observations about the evidence of Ms Barrow.
There was nothing in the way Ms Barrow gave evidence which caused me to doubt her. That said, I cannot accept everything she told me. I do not accept her evidence about the duration of AF’s last visit to Craigmore. For reasons I will later give, it was longer than just Friday to Sunday. It follows I do not accept Ms Barrow’s evidence the defendant was only alone with AF for a few minutes during that last visit. I am unsure if Ms Barrow deliberately misled me on this topic or was mistaken. For reasons I will later give, I also reject Ms Barrow’s evidence about sleeping arrangements on two trips with AF.
In so far as Ms Barrow’s evidence might deny opportunity for the defendant to be alone with AF on other occasions, that she was unreliable about an important aspect of AF’s final visit to Craigmore (i.e. – the duration) and about sleeping arrangements on two trips are matters relevant to the reliability of other aspects of her evidence which might deny opportunity for the defendant to be alone with AF on any other occasions.
Ms Williams
Ms Williams is the defendant’s grandmother. I accept on one occasion she attended the Craigmore house to supervise AF when the defendant was unwell and Ms Barrow not at home. Given Ms Barrow’s evidence the defendant was unwell on the occasion of the last visit, and given I am satisfied that last visit was in the period of 14 December to 18 December 2018, I am satisfied this occasion was at some point in that period. I have not been able to determine precisely which day.
Ms Omond
Ms Omond is the mother of the defendant. I accept her evidence she was a regular visitor to her son’s homes at Midlow Road and Craigmore. Ms Omond met AF but told me she never saw AF alone with the defendant. I accept that evidence, but it does not deny opportunity for the defendant to be alone with AF on other occasions.
Ms Omond told me she met KC but did not like her. Ms Omond said KC would talk in front of her children about wanting to go out, ‘pick up men and bring them back to her house’ and she wanted a kid free house or a kid free weekend.[75] That KC said such things in the presence of her children was not put to KC in cross examination. I have not found it necessary to resolve whether KC ever said such things. There was no suggestion from Ms Omond that KC said anything which AF might have adopted in inventing or imagining allegations about the defendant. Ms Omond did not say KC had spoken of touching of the vagina; the placing of a mouth on, or near, a vagina; or about the use of a vibrator.
[75] T245-246.
Opportunity
It is necessary to say something more about whether there was opportunity for the defendant to commit any unlawful sexual acts with AF. I am satisfied there was opportunity at both Midlow Road and Craigmore.
There is no dispute AF was a regular visitor to the defendant’s home at Midlow Road. There is no dispute that AF attended Craigmore less often. While I have been unable to determine precisely how many times, I am satisfied AF went to that house more than once and stayed overnight.
I accept KC’s evidence the final visit was between 14 December to 18 December 2018. Not only was KC an impressive witness whom I am satisfied was honest and sought to be accurate, that AF was at Craigmore in that period is consistent with messages between the defendant and KC around that time. I am satisfied that on 7 December 2018 the following messages were exchanged by the defendant and KC. [76]
[76] P9.
Defendant: Haya is it possible to have (AF) from the 14thPM till 18 lunch time???
KC: Yeah, should be ok but she has netball on the 14th at night.
Defendant: Yer, that’s ok I’ll come and watch her play.
KC: Sounds great.
The message from the defendant above is consistent with him being happy for AF to be with him between 14 to 18 December inclusive. It is also consistent the defendant’s timesheets which establish he commenced work at 1:30 pm on 18 December 2018.[77] I am also satisfied KC sent the following message to the defendant at about 9:15pm on 17 December 2018: ‘Hey buddy how’s (AF) doing’.[78] That message demonstrates KC’s state of mind about where AF was. I am satisfied KC sent that message as she believed AF was with the defendant on that date, at that time.
[77] P14.
[78] P9.
I am satisfied that in the period 15 December 2018 to 18 December 2018, there was opportunity for the defendant to be alone with AF. I accept Ms Barrow’s evidence that while living at Craigmore, it would take her about twenty (20) minutes to travel to and from work.[79] Accepting that AF did not attend the defendant’s home until the night of 14 December 2018, I am satisfied Ms Barrow was at work on Saturday 15 December 2018 at least at the following times: 9:30 to 12:00noon; 2:00pm to 2:30pm and 3:30pm to 6:30pm. On Monday 17 December 2018 Ms Barrow was at work between at least 9:00am to 1:00pm. On Tuesday 18 December 2018 Ms Barrow was at work between at least 9:00am to 1:30pm and 2:00pm to 6:00pm.[80] In that same period, the defendant did not work on Saturday 15 December, Sunday 16 December, or Monday 17 December. On Tuesday 18 December 2018 he did not commence work until 1:30pm.[81]
[79] T219.
[80] P16.
[81] P14.
To the extent Ms Barrow’s evidence might be relied upon to deny opportunity for the defendant to be alone with AF at his home at Midlow Road and/or Craigmore outside of the period just mentioned, as I have said, that evidence must be viewed bearing in mind my satisfaction Ms Barrow is unreliable about the defendant only being alone with AF for a few minutes on the occasion of her last visit to Craigmore. Her error about that period causes me to doubt the reliability of what she has said about other times AF was at both addresses. Even putting that aside entirely, I am satisfied the evidence does not deny opportunity for AF and the defendant to be alone. There is no dispute Ms Barrow was working for about two to three months while living at Midlow Road. There is also no dispute that AF was a regular visitor to that house, sometimes unannounced. There is no suggestion Ms Barrow had any reason not to trust the defendant and not be prepared to leave him alone with AF if she was working, or away from the house for some other reason. As a matter of common sense, adults will have things to do which might require them to be outside, or absent from the house altogether. Further, the allegations made by AF are not of unlawful sexual acts which necessarily required particularly extended periods of privacy.
As for the evidence the defendant’s father lived at Midlow Road, there is no evidence as to precisely when that was, nor his habits. As for the evidence of Ms Barrow’s brother living at both Midlow Road and Craigmore, he was only at Midlow Road for a relatively short period and had left Craigmore by about May 2018. Even putting those matters aside, there is no evidence about his habits. In any event, as I have observed, as matter of common sense, adults will not spend every moment of every day inside, or at home.
As for AF’s home and the opportunity to commit an unlawful sexual act in AF’s bedroom[82], KC could only ‘specifically recall’ one occasion of the defendant being at her home at Midlow Road when AF was there.[83] Ms Barrow’s evidence was of the defendant being in AF’s bedroom on perhaps two occasions with her. She did not recall anyone else being there.[84] This can be contrasted to AF’s first interview when she appeared to suggest the occasion of an unlawful sexual act in her bedroom was when KC and four others were at the house.[85] I am satisfied the defendant had opportunity to be at AF’s home and in her bedroom without that being known, or recalled, by KC or Ms Barrow. The defendant attended that house and assisted on occasions with more than one job.[86] He lived next door for about fifteen (15) months. KC was working regularly and would leave AF in the care of AF’s elder sister particularly.[87] Ms Barrow worked for a brief period while living next door KC. If home, Ms Barrow had no reason to pay careful attention to where the defendant was at every moment. I am satisfied the defendant had opportunity to go next door at Midlow Road without Ms Barrow noticing, or recalling.
[82] P1, Transcript P2, p7, p18; T48.
[83] T92.
[84] T232.
[85] P1, Transcript P2, p18.
[86] T91-92.
[87] T80.
My satisfaction that opportunity existed is not evidence that any unlawful sexual act took place.
The creation of opportunity
As I understood it, an aspect of the prosecution case was I might conclude there was something probative in the defendant pursuing opportunities for AF to spend time with him, or something probative in him showing an interest in her. For example, KC said the defendant would ask if AF could come over[88] and inquired about what she might want for her birthday.[89] There is the communication on 7 December 2018 set out at [79] above. For her part, AF said, ‘He always asks us if I can come over. He asks my mum if I can come over, so he can see me again, 'cause we don’t see each other for like, a really long time’.[90]
[88] T93.
[89] T99.
[90] P1; Transcript P2, p12.
I am not satisfied there is anything probative in the defendant creating, or exploring, opportunities for AF to attend his home, or for otherwise showing an interest in her. I am unable to exclude the defendant might have been doing no more than assisting KC and providing opportunities for AF to spend time with Thomas and have a break from her siblings. KC was a single mother who worked fulltime. KC and the defendant got on well. They were friends. AF told me she would go to the defendant’s home to get away from other people and to be alone. She would do so without asking.[91] Ms Barrow gave evidence to the same effect.[92] There is no dispute AF would play with Thomas. [93]
[91] T47.
[92] T157.
[93] T94.
Further discussion
The only evidence of any unlawful sexual act is AF’s interviews and evidence in court. In evaluating AF’s interviews and evidence in court, I must not overlook that no aspect of that evidence must be evaluated without considering the whole of her evidence and the balance of the evidence. Matters which might impact adversely upon AF’s honesty and reliability must be evaluated in combination.
For reasons already given, I have rejected AF said the defendant had committed unlawful sexual acts having been told what to say. The real issue is whether the prosecution has established beyond a reasonable doubt AF did not invent or imagine unlawful sexual acts within the particulars of Count 1 as being committed by the defendant. More particularly, the issue is whether the prosecution has established beyond a reasonable doubt the defendant committed two or more of the unlawful sexual acts set out in the particulars of Count 1.
There was nothing in the way AF presented in her interviews or evidence in court which caused me to doubt her honesty and reliability. That said, I was more impressed with her presentation in court. She was particularly clear and otherwise impressive in that part of her evidence. She responded to questions in a straightforward, convincing fashion.
That AF was more impressive in her evidence in court may have been due to her being older than at the time of the two interviews. In court, she was more focussed and less distracted than at times in both interviews. During both interviews she also gave her account in a straightforward fashion, but there was not always a close focus on responding to the question asked.
There was a lack of detail in some responses about unlawful sexual acts. For example, when asked in the first interview to tell the interviewer a little bit more about how her ‘privates’ had been ‘grabbed’, AF replied ‘I don’t remember 'cause I have a really bad memory’.[94] Nonetheless, there were occasions on which detail was given. For example, in response to ‘what happened when he put his mouth on your privates’[95], when describing where the vibrator had come from, what the defendant had done and how she responded[96] and in relating that the defendant would grab her ‘privates’ both over and underneath her clothing.[97] The lack of attention to the question on occasion and lack of detail on occasion, has not caused me to doubt her honesty or reliability about the occurrence of unlawful sexual acts. Some lack of attention and absence of detail is unsurprising when a child the age of AF is relating events. Further, as set out above, detail was given on occasions.
[94] P1, Transcript P2, p7.
[95] P1, Transcript P11.
[96] P1, Transcript P2, p15-16.
[97] P3, Transcript P4, p5.
I am satisfied AF’s presentation in the two interviews was consistent with a child of her age who may not have fully appreciated the seriousness of the alleged conduct about which she was speaking. This is consistent with the evidence of KC that she had not talked to her daughter about sexual matters.[98] AF’s age and absence of sexual education gives rise to the possibility of a degree of naivety about the seriousness about what she was telling the police. This is not to overlook that, as I will come to, I am satisfied AF had some knowledge of sexual matters and that AF obviously knew she was speaking to a police officer when being interviewed.
[98] T110.
The defendant submitted the two officers who interviewed AF at the time of P1 and P3 asked leading questions which suggested responses which AF might give and inaccurately related what AF had said.[99] I have considered each of the passages to which the defendant made reference. I am satisfied the overwhelming majority are just examples of the interviewer introducing a topic based on something previously said either in the same interview, or in the case of the second interview, in the first, following which AF sometimes gave further detail in response to being invited to do so. To give a specific example, the defendant directed my attention to the first interviewer saying ‘So tell me more about what happened when he did put his mouth on your privates’.[100] This came after AF had said the defendant had ‘started doing his mouth’.[101] Other similar examples appear elsewhere in the second interview.[102]
[99] T330-341.
[100] P1, Transcript P2, p11.
[101] P1, Transcript P2, p7.
[102] P3, Transcript P4, pp3.15, 3.23, 4.24ff, 4.41, 5.38-42, 7.18-22.
This is not to overlook that during the first interview, the officer suggested to AF she had said the vibrator had been removed from a particular drawer by the defendant.[103] To that point, AF had only said the defendant had used the vibrator, without saying he had had obtained it from somewhere.[104] That does not cause me to doubt what AF said about the use of a vibrator. What is important is what AF said about its use, not whether the officer made an incorrect assumption about the defendant obtaining it from a specific place before it was used.
[103] P1, Transcript P2, p16.
[104] P1, Transcript P2, p15.
I cannot accept every aspect of AF’s evidence.
AF’s told me every time she spent time with the defendant, her mother would then subsequently ask whether the defendant had placed his mouth on her vagina.[105] The evidence of KC was inconsistent with the evidence of AF.[106] I am satisfied AF is unreliable about this. Not only do I prefer the evidence of KC where it conflicts with that of AF, KC had no reason to ask such a specific question. There is no evidence KC had any suspicion about the defendant. I do not believe AF might have been dishonest in this aspect of her evidence. I am satisfied she was mistaken, likely as her mother had told AF she should tell her if anyone touched her ‘down there’ and as an aspect of the defendant’s behaviour had been to use his mouth on, or near, AF’s vagina. Nonetheless, this unreliability is important. It shows AF can be unreliable in relating events which touch on the conduct of the defendant. I will bear this in mind in assessing AF’s evidence of unlawful sexual acts.
[105] T55-56.
[106] T140.
These are not the only aspects of AF’s evidence which the defendant submitted were unreliable. I accept KC’s evidence AF’s final visit to Craigmore was in the period 14 to 18 December 2018.[107] In cross examination, AF said the last time she had been touched was the same day she spoke to her mother.[108] AF also said in evidence it was three days before she told her mother.[109] I am satisfied these aspects of AF’s evidence are not significant in assessing AF’s honesty and reliability about unlawful sexual acts. First, children can have difficulties with precision when it comes to time. More than three years had passed between the last visit and AF giving evidence in court. Second, AF’s evidence in court must be evaluated against the background of her interviews which were given much closer to relevant events when it might be expected AF’s memory will have been more reliable. In her first interview, AF said the last occasion the defendant had done something was ‘last Friday when school holidays weren’t there yet’;[110] ‘the day that school holidays, last Friday, when school holidays start … the day that school holidays have only just begun.’[111] I am satisfied what AF said in her first interview is consistent with the final visit commencing on the Friday school holidays commenced (i.e. ‑ the final day of the school term). It is an agreed fact that term four ended on Friday 14 December 2018.[112]
[107] T107.
[108] T66.
[109] T64.
[110] P1, Transcript P2, p7.
[111] P1, Transcript P2, p9.
[112] Agreed Facts, P20.
The defendant submitted AF had been inconsistent about whether she had been touched during the school holidays. In her evidence in court, AF said there was touching at Craigmore during the school holidays and disagreed she had told police nothing happened on school holidays.[113] In her second interview, AF said she could not remember being touched on school holidays.[114] However, that aspect of AF’s interview must be evaluated in context. AF had been answering questions about an occasion she and the defendant had stayed in a motel.[115] In my view, in this interview, AF was not referring to the defendant’s conduct at the time of every school holiday, just the occasion of the stay in the motel she was relating. For these reasons, I am satisfied AF was not inconsistent in the way the defendant submitted.
[113] T50.
[114] P3, Transcript P4, p11.
[115] P3, Transcript P4, p11.
When police searched the defendant’s home on 3 January 2019, they did not locate any ‘restraints’.[116] In addition, Ms Barrow’s evidence was she was not aware of any such item being in the house.[117] Ms Barrow’s evidence and the failure to locate any such item, are of significance in evaluating the honesty and reliability of AF’s evidence. The evidence about the search was very general. On the evidence, the search might have been a careful one. Further, whether AF might have invented or imagined this aspect of her evidence falls to be evaluated against the background of her having seen such an item before. As set out above, AF said she had seen such an item in her mother’s bedroom.[118]
[116] T189.
[117] T223-224.
[118] T58.
AF’s account of whether the defendant touched her vagina with his mouth is not consistent.
AF’s evidence about how many times the defendant had placed his mouth on, or near, her vagina varied. At one point she said it had happened ‘only twice’. At other times she said it would ‘always’ happen. While a child might not pay particular attention to how many times something happened, instead recalling just that it happened once or more than once, and differences in evidence about how many times something happened might not be a sign of a lack of honesty or reliability, I will not dismiss this as a matter with no significance in evaluating AF’s honesty and reliability about unlawful sexual acts.
While AF said in her first interview the defendant ‘put his mouth on my privates’[119] and said in her second interview, ‘put his mouth on my rude part’[120] and ‘put his mouth on my part’[121], during her first interview AF indicated he had not made contact, saying she had told her mother the defendant put his mouth ‘near her privates’ and said the defendant had not touched her ‘privates’.[122]
[119] P1, Transcript P2, p11.
[120] P3, Transcript P4, p8.
[121] P3, Transcript P4, p9.
[122] P1, Transcript P2, p19.
That AF has not been consistent about whether there was contact in this way, including within a single interview (i.e. – the first) is relevant to her honesty and reliability. Nonetheless, these inconsistencies have not caused me to doubt the defendant at least attempted to place his mouth on AF’s vagina. I accept AF resisted by smacking the defendant in the face[123] and pulling his beard[124].
[123] P1, Transcript P2, p19.
[124] P1, Transcript P2, p19.
I am satisfied AF did not invent or imagine her response. I am also satisfied, given her age, that the defendant’s conduct might have caused AF to describe what took place in terms consistent with her vagina being touched by the defendant’s mouth even though such conduct might not have been made.
As to being touched on the vagina with a vibrator, AF said in her first interview the defendant had done that ‘a little bit’[125], in the same interview AF earlier said the vibrator had been placed ‘near my rude part, but I kept pulling it away.[126] While AF said in evidence in court she had been touched with the vibrator,[127] she did not say where.
[125] P1, Transcript P2 p19-20.
[126] P1, Transcript P2, p15-16.
[127] T58.
I have considered whether AF has been inconsistent about whether her vagina was touched with the vibrator. At best, AF said it had only been a ‘little bit’. In my view, bearing in mind her age at the time of the first interview, saying at a different point the vibrator had been placed ‘near’ her vagina until she pulled it away, is not necessarily inconsistent. To a child of AF’s age, ‘near’ and ‘a little bit’ may be the same thing. Nonetheless, I will treat this as an inconsistency relevant to AF’s honesty and reliability.
Taking this approach has not caused me to doubt AF’s honesty and reliability about the defendant at least attempting to place a vibrator on AF’s vagina. For the same reasons given for why there may not be an inconsistency, even if it is, I am satisfied it simply reflects how a child of AF’s age might express herself when any touch was slight, or in the alternative, when an object was placed only near her vagina, particularly when she resisted by ‘pulling it away’.
As for the defendant submitting AF might have ‘made up’ being touched the day before going back to school, I reject AF might have been dishonest when she said in cross examination the defendant would ‘do it the day before I have to go to school’.[128] I am satisfied AF did stay at Craigmore, and not just during the school holidays. AF said she would stay at that address ‘every second weekend’.[129] I am satisfied it was not as often as that. KC said the ‘majority’ of times it was during the school holidays, but occasionally on weekends.[130] I accept that evidence. That AF stayed at Craigmore is not evidence that any unlawful sexual act took place, nor is it evidence of when during any stay any such conduct occurred. As to whether AF might have been unreliable about anything occurring the day before she had to go to school, even if she was I reject it as being significant. What matters is not whether AF is reliable as to a specific day, or days, on which unlawful sexual acts occurred. There would be nothing surprising in a child of AF’s age being unreliable about precisely when something took place. It might be one thing for AF to be inaccurate as to precisely when something took place, it is another thing for AF to have imagined, or invented, that unlawful sexual acts took place. It is not necessary for the prosecution to prove precisely when any unlawful sexual act took place. The issue in Count 1 is whether it has established beyond a reasonable doubt there were at least two unlawful sexual acts within the particulars. This is not to overlook that I accept KC’s evidence as to the frequency of visits to Craigmore on weekends. As to whether that is a matter relevant to the honesty and reliability of AF, I reject it as a matter of significance. While the attendances at Craigmore were not as frequent as AF said, I accept KC’s evidence to the effect they included school holidays and weekends. That being so, that AF was inaccurate as to the frequency is not something which has assisted me in evaluating whether the defendant committed any unlawful sexual act.
[128] T51.
[129] T50.
[130] T94.
AF said more than once she had a ‘bad memory’.[131] She also said ‘since I was younger, I haven’t remembered really anything ‘cos my memory, I can’t remember’.[132] In court, AF denied she had said that because she could not remember what her mother had told her to say.[133] Not only do I accept AF’s denial in evidence, as set out above, I have rejected KC did that. As for AF’s comments in her interviews about the quality of her memory, I am satisfied that does not have any significance in evaluating her honesty and reliability about unlawful sexual acts. AF’s comments are just the observations of a child which I am satisfied say nothing about the honesty and reliability of her evidence of unlawful sexual acts. This is not to overlook that aspects of AF’s interviews about unlawful sexual acts lack detail. However, I reject that might be a reason to doubt AF’s evidence of unlawful sexual acts having occurred. I am satisfied that what a child is likely to recall is the occurrence of conduct by a defendant, not the detail of everything which took place. Further, as set out at [92] above, there were aspects of what AF said about unlawful sexual acts which had detail.
[131] P1; Transcript P2, p7; P3, Transcript P4, p13.
[132] P3; Transcript P4, p2.
[133] T63.
There is no dispute AF and the defendant went to Wallaroo and stayed in a motel. I accept there was also a trip to Murray Bridge.[134] AF said she shared a room with the defendant[135] on the single trip about which she gave evidence. KC told me AF told her the same thing,[136] but that is not evidence of what occurred on any trip and cannot be used as a prior consistent statement. In contrast to the evidence of AF and KC’s evidence of what she was told, Ms Barrow said she shared a room with AF on both occasions.[137] One might expect a mother to recall the sleeping arrangements on a such trips. For example, one would expect her to recall if the adult male shared a room with a girl who was not his daughter when there was an adult female present and a male child with whom the defendant could have stayed. At the same time, there are reasons to accept AF’s evidence about this. I prefer AF’s evidence about these sleeping arrangements. She gave a reason for Thomas sharing a room with his mother (i.e. – he would cry);[138] it might be unsurprising that when staying away from home one adult might share with one child when staying in a motel; Thomas is not the defendant’s son and there is no evidence Ms Barrow had any cause to be concerned about AF and the defendant being alone.
[134] T221.
[135] P3, Transcript P4, p11; T74.
[136] T134.
[137] T232.
[138] P3, Transcript P4, p11.
An important aspect of AF’s evidence about the conduct of the defendant is the use of the vibrator and that such an item was available to the defendant.
As set out above, there was a pink vibrator at Craigmore. Something the prosecution must exclude is AF imagining or inventing what the defendant had done because of what she knew of her mother’s vibrator. In my view, the prosecution is not assisted by AF being able to describe a vibrator consistent with that owned by Ms Barrow. I am not satisfied it is significant the vibrator at Craigmore was significantly longer than the item belonging to KC. AF did not give any estimate of length. Also relevant is that the colours of the two vibrators are consistent, necessitating consideration of whether AF might have adopted the description of the item belonging to her mother.
For AF’s evidence of the appearance of a vibrator consistent with that found at Craigmore to have significance, the prosecution must also exclude AF had merely seen the pink vibrator at a home of the defendant without it being used during any unlawful sexual act.
I have been unable to exclude AF might have had the opportunity to see a vibrator at the home of the defendant in circumstances other than it being used by the defendant in her presence. AF was a regular visitor to both homes. She would turn up unannounced at the defendant’s home at Midlow Road. As a matter of common sense, children might go into rooms they should not and look in places they should not. That AF was a child who might be curious and look in an adult’s bedroom without permission is consistent with her having seen her mother’s vibrator and ‘restraints’. The vibrator was kept in Ms Barrow’s bedside drawers. At Craigmore, AF would use the ensuite bathroom, requiring her to go through the main bedroom. AF was in the habit of using Ms Barrow’s ipad which was ordinarily kept immediately adjacent to the bedside drawers and sometimes in those drawers.
As I am unable to exclude AF might have had the opportunity to see the vibrator available to the defendant innocently and as she had seen her mother’s, whether I can accept her evidence as to its use by the defendant turns upon whether I can accept beyond a reasonable doubt her evidence about its use by the defendant. I have already referred above to her response in cross examination to the suggestion it was not used.
AF was able to describe its use by the defendant in a way consistent with how an adult would use it. She said, ‘[t]hat vibrator, he started putting it near my rude part, but I kept pulling it away’[139] and that it had been touched ‘on my part’.[140] By ‘my part’, I am satisfied AF meant her vagina.
[139] P1, Transcript P2, p15.
[140] P3, Transcript P4, p10.
The significance of AF’s evidence about the use of the vibrator by the defendant falls to be evaluated against the background of my acceptance of the evidence of KC[141] she had not discussed her vibrator with AF. At the same time, this aspect of AF’s evidence must also be evaluated given my satisfaction AF had some knowledge of sexual matters which had not come from the defendant or her mother. It must also be evaluated in the context of AF’s evidence set out at [44]‑[45] above and my observations about that evidence.
[141] T142-143.
Despite KC saying she had not discussed sexual matters with AF,[142] evidence I accept, AF knew the word ‘sex’ and felt it an appropriate description of what she was alleging. AF also felt some reluctance about saying that word aloud, instead writing it on a piece of paper during her first interview.[143] For those reasons, I am satisfied AF had some knowledge of sexual matters from someone other than KC and knew that word to be an apt description of what she was alleging had taken place. Given the absence of evidence she had learned that specific word from the defendant, I cannot exclude she had acquired knowledge of that word, and some knowledge of sexual matters, from someone other than the defendant. It is unnecessary to identify the source of this knowledge. There might have been more than one source. I simply observe it might have come from overhearing, or being told by someone other than KC, about the alleged behaviour involving M and Z or through some other communication. For example, some discussion which might have occurred with a sibling or friend about sexual matters generally, and/or in the specific context of the mother’s vibrator and/or ‘restraints’ having been sighted.
[142] T109-110.
[143] P1, Transcript P2, p5.
For these reasons, whether I am satisfied beyond a reasonable doubt the defendant used the vibrator with AF ultimately turns upon whether I accept AF’s evidence about that. Relevant is that specific aspects of the evidence of AF about the use of the vibrator struck me as details unlikely to have been invented or imagined.
I found the following aspects of her evidence about the use of the vibrator particularly convincing. First, that she reacted by ‘pulling it away’.[144] Second, what she thought might happen if she broke it. AF said she was ‘gonna break it but if I broke it (the defendant and Ms Barrow) would be mad at me’.[145] It is one thing for AF to have invented or imagined the use of a vibrator, perhaps because she was aware one was in the house of the defendant and her own, and even to know how it might be used, it is another to invent or imagine her response to it being used. Third, that the defendant had only used it ‘a couple of times, and I hate it’.[146] Fourth, that the defendant told her that it would ‘relax her’.[147] Relevant to AF saying that in her second interview is her evidence at trial. When AF said the defendant had told her the vibrator would relax her and he had ‘told her all about it’,[148] I formed the distinct impression AF was relating something which had occurred.
[144] P1, Transcript P2, p15.
[145] P1, Transcript P2, p20.
[146] P3, Transcript P4, p10.
[147] P3, Transcript p4, p10.
[148] T54.
Other specific aspects of AF’s interviews were convincing and impressed me as the account of a child relating events which had taken place and which were not invented or imagined. I particularly have in mind AF’s evidence the defendant would not do anything when Ms Barrow was at home;[149] the use of the ‘restraints’ was simply to see if they would fit or something;[150] and that the defendant would tell her to keep what was occurring ‘a secret’, because ‘if my mum found out, I wouldn’t be able to see him and he wants to see me like every day, but if I told her that means he wouldn’t be able to see me and he loves to see me like every day, like every few weeks’.[151] I also found convincing AF’s description of how she would resist, or attempt to dissuade, the defendant. That is, she would ‘pull his beard, or … smack him’.[152]
[149] P1, Transcript P2, p12.
[150] P1, Transcript P2, p8.
[151] P1, Transcript P2, p19.
[152] P1, Transcript P2, p19.
In addition, key aspects of AF’s responses in cross examination were also convincing. When it was put nothing sexual had happened, she simply replied ‘something did happen’.[153] When it was put that she had not been touched with the vibrator by the defendant, AF simply said, in a very matter of fact way, ‘Yes, he did’.[154] Both the content of those responses, and the way AF gave that evidence, struck me as her relating what had occurred.
[153] T51.
[154] T58.
Conclusion – Count 1
As set out above, there are specific matters relevant to the honesty and reliability of AF about the defendant having committed unlawful sexual acts which remain to be considered.
I have rejected AF’s evidence her mother ever asked her whether the defendant had placed his mouth on her vagina. The police failed to locate ‘restraints’ during a search of the defendant’s home and Ms Barrow had not seen any such item. AF had seen such an item in her mother’s bedroom, giving her knowledge, other than from the defendant, of such an item and potentially how it might be used. Aspects of evidence of AF’s evidence about how often the defendant placed his mouth on, or near, her vagina have varied. AF had some knowledge of sexual matters, including about the use of a vibrator, which I am satisfied did not come from anything KC had told her and might not only have come from the defendant.
At the same time, while unreliability on any issue, and the opportunity to learn of relevant matters other than from the defendant’s conduct, must be born in mind in assessing the honesty and reliability of AF about unlawful sexual acts, the ultimate issue is not whether every aspect of AF’s evidence, including every aspect of her evidence about unlawful sexual acts, is proven beyond a reasonable doubt. Nor is the ultimate issue whether AF might have had relevant knowledge beyond the defendant’s alleged conduct. The ultimate issue is whether I am satisfied beyond a reasonable doubt the defendant committed at least two of the unlawful sexual acts set out in the particulars of Count 1.
Although care must be taken with demeanour, AF gave evidence in a straightforward and convincing way. As I have said, there was nothing in the way which she gave evidence which caused me to doubt her. More importantly, as also set out above, there were specific aspects of her evidence about unlawful sexual acts, and her response to such acts, I found particularly convincing and compelling. The way AF gave evidence and the convincing and compelling aspects of her evidence must be evaluated in light of there being aspects of her evidence I have rejected and which might be unreliable. Nonetheless, it is not easy to reconcile the convincing way in which AF gave evidence and those compelling aspects of her evidence with it being reasonably possible AF invented or imagined the defendant having committed unlawful sexual acts with her.
Bearing in mind the importance of not reaching any conclusion without considering the whole of the evidence, I have reached the following further conclusions.
That AF has given different accounts of how often the defendant placed his mouth on, or near, her vagina has not caused me to doubt her honesty and reliability about the defendant having committed unlawful sexual acts. AF is a child. It is one thing for AF to give inconsistent accounts of how many times an unlawful sexual act occurred, it is another thing to invent or imagine that such conduct took place more than once.
That the police did not locate ‘restraints’, that Ms Barrow had not seen any such item and that AF had seen a like item in her mother’s bedroom, are not aspects of the evidence which have caused me to doubt AF’s evidence. I found AF’s evidence about this aspect of the defendant’s conduct (in particular, that it was simply to see if they would fit or something) compelling. I am satisfied that conduct took place.
I pause to observe that if that conduct is ‘discreditable’ it is not the subject of either count. There was no objection to the evidence. No submissions were made on whether this evidence was ‘discreditable conduct’. In the absence of submissions, it is unnecessary to resolve if placing such an item on a child without that conduct being immediately accompanied by any sexual comment or other sexual conduct is ‘discreditable conduct’. I will proceed on the basis it is. Proceeding on that basis, I am satisfied the evidence was admissible in order that I could have the whole of AF’s evidence of conduct by the defendant before me and as the failure of the police to find such an item, and Ms Barrow’s absence of knowledge of such an item in the house, are matters relevant to AF’s honesty and reliability. I am satisfied those uses of that evidence have a probative value which substantially outweighs any prejudicial effect and can be kept separate and distinct from any other use. I have not used this aspect of the evidence to reason the defendant is a bad person or had a sexual interest in AF and for those reasons is more likely to have committed any unlawful sexual act.
Having considered the whole of the evidence, and notwithstanding I cannot accept every aspect of AF’s evidence, as I have said, AF gave her evidence in a convincing way. More importantly, as I have also said, I found specific aspects of what she said about unlawful sexual acts being committed by the defendant convincing and compelling. I reject AF might have invented or imagined unlawful sexual acts being committed by the defendant.
I am satisfied beyond a reasonable doubt that at all relevant times the defendant was over the age of 18 years and AF was under the age of 17 years. I am satisfied beyond a reasonable doubt the defendant committed more than two unlawful sexual acts with the complainant while knowingly maintaining a relationship with her. More specifically, I am satisfied beyond a reasonable doubt the defendant:
1.Touched AF’s vagina more than once, at least with his hand[155] (an Indecent Assault and conduct within particular a).
[155] P3 Transcript P4, p5-6.
2.At least attempted to place his mouth on AF’s vagina more than once[156] and in doing so placed his mouth ‘near’ her vagina (at least an Attempted Indecent Assault and conduct within particular c).
[156] P1, Transcript P2, p11, p19; P3, Transcript P4, p7, p8, p9.
For the reasons set out at [102]‑[105] above, I am not satisfied beyond a reasonable doubt contact was made in this way. I am only satisfied it is likely.
3.At least attempted to place a vibrator against AF’s vagina and in doing so placed that item near her vagina (at least an Attempted Indecent Assault and conduct within particular d).[157]
[157] P1, Transcript p15-16, p19-20.
Given the possible inconsistency during AF’s first interview as to whether her vagina was touched in this way[158], I am not satisfied beyond a reasonable doubt AF’s vagina was actually touched by the vibrator. I am only satisfied such a touching is likely. Nonetheless, I am satisfied beyond a reasonable doubt the defendant at least attempted that and in so doing, the vibrator came to be near AF’s vagina.
[158] [106]‑[108] above.
For the above reasons, I find the defendant guilty of Count 1.
Given that verdict, I will not consider Count 2.
Verdict
I find the defendant guilty of Count 1.
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