R v P
[2016] SADC 67
•27 June 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v P
Criminal Trial by Judge Alone
[2016] SADC 67
Reasons for the Verdicts of Her Honour Judge Davison
27 June 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with two counts of aggravated indecent assault. It is alleged that the accused assaulted his 6 year old daughter. The accused gave evidence and adduced evidence as to events on the day in question, lack of opportunity and good character. Unable to reject the accused's account as a reasonable possibility.
Verdict: Not guilty both counts.
Evidence Act 1929 (SA) s 9, s 13C, s 21, s 34CA, s 34D, s 34P, referred to.
R v P
[2016] SADC 67
IMP is charged with two offences that are alleged to have been committed against the complainant, SMP, who is his six year old daughter. SMP had spent the weekend with the accused. She was then dropped off to her mother’s house by the accused on 23 April 2014. That evening after SMP had a shower, she made an allegation that the accused “poked her on the wee-wee.”
It is alleged that between 19 and 23 April 2014, while SMP was staying at the accused’s address, the accused made her lie down on the bed in his bedroom, lifted her dress, pulled down her knickers and poked her genital area. These allegations are the subject of count one on the Information. It is further alleged that the accused was naked, grabbed SMP’s wrist, and made her touch his penis with her hand. These allegations are the subject of count two.
IMP pleaded not guilty to both charges of Aggravated Indecent Assault and elected for trial by judge alone.
Charges
The accused is charged with the following offences on the Information dated 21 September 2015:-
First Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
IMP between the 19th day of April 2014 and the 24th day of April 2014 at Fulham, indecently assaulted SMP, a person of the age of 6 years.
It is further alleged that IMP committed the offence knowing that SMP was a child of whom the offender was the parent or guardian.
Second Count
Statement of Offence
Aggravated Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
IMP between the 19th day of April 2014 and the 24th day of April 2014 at Fulham, indecently assaulted SMP, a person of the age of 6 years.
It is further alleged that IMP committed the offence knowing that SMP was a child of whom the offender was the parent or guardian.
Pre-trial matters
Evidence Act 1929, s 13C
The Director of Public Prosecutions made vulnerable witness applications in relation to the complainant, SMP. Consequently, I ordered that all proceedings in relation to the complainant be recorded.[1] I further ordered that the complainant was permitted to give evidence via CCTV and that a court companion could be present with her when she gave evidence.
Evidence Act 1929, s 9
[1] T 4.
At the time of the trial the complainant was 7 years old. After asking her a number of questions I was not satisfied that SMP had a sufficient understanding of the obligation to be truthful when giving sworn evidence due to her young age.[2] I was satisfied that she knew the difference between the truth and a lie. I told her it was important to tell the truth and she indicated that she would tell the truth.[3] Consequently, I permitted SMP to give unsworn evidence in the trial.
Evidence Act 1929, s 21
[2] T 9.
[3] T 10.
Section 21 of the Evidence Act reads as follows:-
21—Competence and compellability of witnesses
(1) A close relative of a person charged with an offence shall be competent and compellable to give evidence for the defence and shall, subject to this section, be competent and compellable to give evidence for the prosecution.
(2) Where a person is charged with an offence and a close relative of the accused is a prospective witness against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken) the prospective witness may apply to the court for an exemption from the obligation to give evidence against the accused in those proceedings.
(3) Where it appears to a court to which an application is made under subsection (2)—
(a)that, if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) that, having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness, wholly or in part, from the obligation to give evidence against the accused in the proceedings before the court.
(3a)If the prospective witness is a young child, or is mentally impaired, the court should consider whether to grant an exemption under subsection (3) even though no application for exemption has been made and, if of the opinion that such an exemption should be granted, may proceed to grant the exemption accordingly.
(4) Where a court is constituted of a judge and jury—
(a)an application for an exemption under this section shall be heard and determined by the judge in the absence of the jury; and
(b) the fact that a prospective witness has applied for, or been granted or refused, an exemption under this section shall not be made the subject of any question put to a witness in the presence of the jury or of any comment to the jury by counsel or the presiding judge.
(5)The judge presiding at proceedings in which a close relative of an accused person is called as a witness against the accused must satisfy himself or herself that the prospective witness—
(a)is aware of his or her right to apply for an exemption under this section; or
(b)is incapable, by reason of age or mental impairment, of understanding his or her right to apply for an exemption under this section.
(6)This section does not operate to make a person who has himself been charged with an offence compellable to give evidence in proceedings related to that charge.
(7) In this section—
close relative of an accused person means a spouse, domestic partner, parent or child.
I was satisfied that SMP was a close relative of the accused. Being a child of 7 years she was incapable of understanding her right to apply for an exemption. However I was satisfied that there were no risks as referred to in s 21(3) of the Evidence Act 1929. The complainant had not seen the accused for over a year or had any type of relationship with him. In the circumstances I did not exempt her from giving evidence against the accused in these proceedings.
Evidence Act 1929, s 34CA
The Director of Public Prosecutions made an application to lead out of court statements made by the complainant pursuant to s 34CA of the Evidence Act 1929. This application was not opposed by counsel for the accused.[4]
[4] T 11.
The out of court statements were made at various times. The complainant disclosed details of the alleged incident to her mother, CM on 23 April, 24 April and at various times during May 2014. The complainant also made disclosures about the alleged incident to an employee from Child Protection Services (CPS) on 26 May 2014. In some of the earlier statements to her mother, the complainant made reference to her cousin, MB having also been touched by the accused.[5] This allegation was later recanted by the complainant.
[5] 23 and 24 April.
Having regard to the nature of the statements and the charges before the court, I considered that there was sufficient probative value to justify their admission. Further, SMP was a young person who was available to be called. I determined that I would give permission for her to be cross-examined on matters arising from the evidence if I could be satisfied of the requirements of s 34CA(2) of the Evidence Act 1935. I therefore granted leave to the prosecution to adduce the evidence of the statements pursuant to s 34CA.
Counsel for the accused made an application pursuant to s 34CA(2) seeking permission to cross-examine the complainant on certain topics.[6] I granted leave for Mr Ey to cross-examine the complainant on the following topics:
1The topic of the complainant’s cousin, MB and the statements made by the complainant in relation to her;
2The frequency of the alleged incidents between the complainant and the accused;[7]
3The relationship between the accused and the complainant;[8]
4The “iPad incident” discovered by MB’s mother;[9]
5The complainant’s statements in relation to wearing nappies and being treated like a baby by the accused;[10]
6The kissing which allegedly occurred at the time of the charge;[11]
7The inconsistencies about what clothes she was wearing at the time of the alleged incident.[12]
[6] T 11.
[7] T 25.
[8] T 25.
[9] T 25.
[10] T 26.
[11] T 26.
[12] T 34.
I did not grant leave to cross-examine the complainant on the topic of her sleeping in the accused’s bed.[13]
Evidence Act 1929, s 34D
[13] T 26.
As the prosecution adduced the evidence of the out of court statements made by the complainant, I must have regard to the weight to be attached to the evidence pursuant to s 34D of the Evidence Act 1929. When determining the weight that can be attached to the evidence given, I must have regard to the inferences that can be drawn as to the accuracy and truthfulness of the statement. It is also important to assess the contemporaneity of the statements and whether the maker of the statement had an incentive to conceal or misrepresent facts; a relevant consideration to have regard to also in relation to evidence given orally. This task includes viewing the evidence in light of the complainant’s age at the time of the statements, the period of time that has lapsed, the parental responsibility arrangements between the accused and the complainant’s mother, and also in light of the untruth concerning MB that was told by the complainant at the time of the initial complaint.
Evidence Act 1929, s 34P
The prosecution made a late application to adduce evidence of uncharged acts against the accused. The evidence the prosecution proposed to lead was:
1that the accused kissed the complainant on the lips and put his tongue in her mouth;[14] and
2that the accused made the complainant wear nappies, bibs and use a dummy whilst she was in his care.
[14] Exhibit P2, P24, Q 273-277.
The prosecution proposed to lead this as circumstantial evidence demonstrating a sexual attraction towards the complainant and a tendency of the accused to act in furtherance of that sexual attraction. It must be noted that evidence tending to suggest that a defendant has engaged in discreditable conduct cannot be used to suggest that the accused is more likely to have committed the offence because he has engaged in discreditable conduct. However, the evidence of the kissing and use of nappies, bibs and dummies can be used to show an ongoing sexual interest in the complainant if admitted pursuant to s 34P(2)(b).
I was satisfied that the evidence had strong probative value having regard to the particular issues arising at trial and that its admissibility would not unduly prejudice the accused. I was also satisfied that I could separate the permissible and impermissible uses of the evidence. Therefore, the evidence of the uncharged acts was admitted pursuant to s 34P(2)(a) and (b).
General directions
I have applied the following directions to my assessment of the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt. The accused does not have to prove that he did not commit the offences charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons if I use the words “proved,” “established,” or “satisfied,” in each case, I mean to an extent which excludes a reasonable doubt.
If I am satisfied that there is an explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find that charge has not been proven beyond reasonable doubt and I must find the accused not guilty.
The accused is charged with two counts on the Information. Both counts must be assessed by me separately. Only the evidence that is relevant to the individual count can be taken into account in determining whether I am satisfied that each element of the offence has been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness, and I can reject or accept all or part of the witness’s evidence.
The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as I would with any other witness.
I must bring an open and unprejudiced mind in this case. I must make my decision without sympathy or prejudice and not be influenced by public opinion in relation to this matter.
SMP gave evidence with special arrangements in place. I must not draw an adverse inference against the accused as a result of these arrangements nor allow them to influence the weight I give to the evidence of the witness.
Aggravated Indecent Assault
There are three elements of the offence of Aggravated Indecent Assault. Each must be proven beyond reasonable doubt:
1That the accused assaulted SMP. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not cause any injury. That application of force need not be great. Any touching or handling would be enough. It must be intentional, so purely unintended or accidental touching would not be sufficient.
2The force must be unlawful, that is, without justification or excuse.
3The assault must be accompanied by or occur in circumstances of indecency. It is a matter for me to consider whether the behaviour of the accused is proven and could only be described as indecent by reference to reasonable and contemporary standards. I must be satisfied that the conduct had a sexual connotation.
The evidence
A social worker with Child Protection Services (CPS) gave evidence for the prosecution about two interviews he had with SMP. The first interview was on 23 May 2014. He gave evidence that they spoke about unrelated topics and he canvassed her understanding of the truth. The prosecution tendered a recording of the second interview that was conducted on 26 May 2014.[15] In this recording the complainant said that her dad had touched her wee and that “after he does it to me I, he grabs my wrist and he makes me do it to him.”[16] She said that it happened more than once and that she was on his bed the last time the touching took place. In the recording, SMP said that after the accused touches her, he puts nappies on her and tells her she is a baby. She said that on the last occasion, she was playing hopscotch and the accused called her into his bedroom and told her to lay on the bed. The accused was not wearing clothes. She said she was wearing a dress.[17] She said that he touched her with his finger and it was painful where he was poking. She said the accused lifted up her dress and pulled her knickers down. In the interview, SMP said that after he poked her, he grabbed her hand and made her poke him on his “wee.”
[15] Exhibit P2 was tendered pursuant to s 34CA of the Evidence Act 1929.
[16] Exhibit P2, P7, Q69.
[17] Exhibit P2, P8, Q86.
SMP said, “um, he started poking me and then he made me he grabbed my wrist and then, and then um he made me poke it and then he then he said go and play and when I call you in a couple of minutes, and he called me and he made me do it again”[18]
[18] Exhibit P2, P15, Q160.
In the interview, the complainant described the accused’s penis as “yucky.”[19] She said that the last time it happened was at night. SMP said that the accused “puts nappies on her and tells her to go and play.” She said the accused makes her wear a nappy and a dummy every time she is there,[20] day and night, and the accused does not let her take the nappies off to go to the toilet. When asked if anyone else has seen the nappies, SMP said that her grandparents do not know that she wears a nappy. She said that the accused gives her the dummy but she does not ask for it. She said that her grandparents see her using the dummy during the day.[21] Towards the end of the recording, SMP says that she has forgotten “to say about the kissing thing.” She said the accused kisses her at the same time he is touching her and when he kisses her he puts his tongue in her mouth.
[19] Exhibit P2, P10, Q115.
[20] Exhibit P2, P21, Q236.
[21] Exhibit P2, P23, Q265.
The social worker also gave evidence that when he interviewed SMP and asked about where she was touched, she motioned to the front part of the doll she was shown. He gave evidence that the region the complainant was referring to as a ‘wee’ was the genital area. He said that she demonstrated with one finger to the penis on the male doll and said that was where she poked the accused.
When cross-examined by Mr Ey, the social worker gave evidence that the complainant was not in the vicinity when he first spoke to the complainant’s mother in person. He went on to say he was aware that when SMP made the initial complaint to her mother, she said that her cousin, MB, was also involved. SMP subsequently denied that MB had been touched after her mother told her that she would not be in any trouble for talking about it. The social worker gave evidence that he did not specifically ask the complainant about an incident with MB in the interview because he had asked whether SMP had knowledge of anyone else being touched and she said no.
The complainant, SMP was then called to give unsworn evidence. She said that she could not remember whether the accused poked her in the wee more than once.[22] She said that she was angry and “a bit sad” when he touched her because she did not want him to touch it. She went on to say that when the accused touched her, he kissed her and stuck his tongue in her mouth. She said that his breath smelled like cigarettes. SMP was then asked whether the accused kissed her while he was touching her. She replied that she thinks it happened at the same time but she was not sure if that happened at the same time he poked her or another time.[23]
[22] T 57.
[23] T 58.
The complainant said the first person who she told about the incident was her mother, and she made the initial complaint on the same day it occurred. She said she saw the accused’s ‘wee’ when he grabbed her wrist and made her poke him as well. When she was asked what it felt like she said “it was all slimy, slimy, slime and slimy and wet and that.”[24] SMP said that she felt scared when she poked the accused’s wee. She again said that she could not remember whether the accused poked her once or more than once.
[24] T 59.
The complainant was cross-examined by Mr Ey after permission was granted pursuant to s34CA(2) of the Evidence Act 1929. SMP gave evidence that she stayed overnight with the accused every second weekend. She said that her younger cousin, MB would often come over to the accused’s house and play with her. The complainant said that on the day of the alleged incident, the two of them were playing on an iPad. She said that she could not remember taking photographs on the iPad. She was asked about an incident where MB’s mother saw them in the bedroom, got angry and took the iPad off of them because they were lifting up their dresses. The complainant said that she could not remember whether that happened or not. Mr Ey put it to the complainant that MB’s mother came in and saw a photo of the complainant on the iPad wearing a red dress. SMP replied that she did not think that happened.[25] She said that she only remembered taking photos of she and MB smiling. SMP also denied MB’s mother or her grandmother asking them about lifting up their dresses on that day. She further denied MB’s mother raising her voice after finding photos on the iPad of SMP lifting up her dress and showing her knickers, taken by MB.[26]
[25] T 65.
[26] T 72.
The complainant was asked about the circumstances when the accused kissed her. She said that she did not like it because his breath smelled like cigarettes. She said that she thought this had only happened once. SMP said that she did not think anyone was home when the accused touched her but she was not sure.[27]
[27] T 67.
SMP was further cross-examined about the initial complaint. She agreed that she initially told her mother that the accused had also touched MB.[28] The complainant gave evidence that after she said MB was involved, she said she had made a mistake and that she only said it because she thought she was going to get in trouble. Mr Ey then asked about the amount of times she said to her mother that she and MB were allegedly assaulted:
Q“You also told mum that he did it six times because you were six, was that a lie?”
A“I can’t remember”
Q“You told mum that he did it five times to [MB] because she was five, was that a lie?”
A“I can’t remember that.”[29]
[28] T 67.
[29] T 67.
The complainant was then cross-examined about the interview she had with CPS. She said that she was telling the truth when she told the CPS worker that the accused made her wear nappies. She confirmed that the accused made her wear a nappy during the day when she stayed at his house. SMP agreed that she told the CPS worker that she was wearing a dress when the accused touched her and that he pulled her knickers down. When asked what happened to her nappy on that occasion she responded, “I can’t remember.”[30] I then asked the complainant whether she wore nappies every time she went to the accused’s house and she replied that she could not remember. SMP also said she could not remember why she wore nappies at the accused’s house. Mr Ey tendered a bundle of photos of the complainant taken by the accused. The complainant was not sure if she was wearing nappies in any of the photos but thought that she might be in some.
[30] T 69.
SMP confirmed that she told the truth when she said that she had to use a dummy all the time. When I asked about the dummy, SMP said the following:
Q“Did you grandparents ever see you with the dummy?”
A“Not that I know of”
Q“Why would they not have seen you with a dummy if you were using it?”
A“I can’t remember”
Q“Did you use the dummy during the day?”
A“I can’t remember”
Q“Did you use it to go to sleep at night?”
A“I can’t remember”
Q“Do you still have the dummy?”
A“I don’t know.”[31]
[31] T 69.
The complainant said she could not remember telling her mother that the accused pulled off her pants and pulled her knickers down in her initial complaint. She also could not remember telling the CPS worker that the accused had lifted up her dress at the time of the alleged incident. She gave evidence that she was not sure how long they were in the bedroom for on the day of the alleged offence and that her grandmother was in the kitchen preparing dinner at the time.
The prosecution then called CM, the mother of SMP. She gave evidence that she was in a relationship with the accused for some time prior to the birth of SMP. CM said that she had primary custody of SMP but the accused had contact with her every second weekend and some of the school holidays. She and the accused had formal custody orders in the Family Court in 2013 and they used a ‘communication book’ as their only form of communication as per the orders. They had scheduled handovers in a public agreed meeting place and the accused had telephone contact with SMP on Mondays and Wednesdays at 7.30pm. CM confirmed that at the time of the offending, the complainant would stay with the accused at his parents’ house. CM gave evidence that the complainant stopped using a dummy when she was about 2 years old. She said SMP was fully toilet trained by the age of two and a half and stopped wearing nappies to bed at night after that time.[32]
[32] T 97.
CM gave evidence that on 23 April 2014, she assisted the complainant to shower after she was brought home by the accused at about 7.30pm. CM said that as she towel-dried SMP, she said “dad poked me on the wee-wee.”[33] CM gave evidence that she replied “we’ll just get you dried and dressed.”[34] SMP told her mother that it happened at the accused’s house and when she asked whether it happened once or more than once “she said that he poked her six times for the age that she was.”[35]
[33] T 98.
[34] T 98.
[35] T 99.
CM then recorded an audio conversation with SMP after the initial disclosure was made. The prosecution tendered the audio recording of the conversation.[36] In the audio recording, SMP says that daddy poked her on the wee and that no one else was home at the time. The complainant is recorded saying that the accused poked her cousin at the same time that he poked her. SMP said that it occurred ‘today’ and that he has not done anything like that before. In the recording, the complainant is asked by CM whether it made her sad and the complainant responds, “yes.” SMP also told CM that the accused poked MB five times because she was five.[37]
[36] Exhibit P7.
[37] T 108.
CM gave evidence that the following morning, SMP came into her bedroom and said that the accused had poked her with his finger. She also indicated how he had poked her by forcefully pushing her finger through CM’s two fingers so they separated into a V shape. CM gave evidence that the complainant told her that “daddy kisses her on the lips and he uses his tongue and she does not like it because his breath is like cigarette smoke.”[38] CM gave evidence that on the morning of the interview with CPS, SMP disclosed that when the accused touches her, he “grabs me by the wrist and makes me touch him down there.” [39]
[38] T 106.
[39] T 107.
CM was cross-examined by Mr Ey. She gave evidence that SMP initially disclosed that she had been poked six times and MB had been poked five times and that the amount of times related to their ages.[40] CM confirmed that SMP did not return to the accused’s house after the allegations were made but denied telling the complainant that the reason she was not going to the accused’s house was because of the allegations. CM said that SMP was fearful of returning to the accused’s house and she reassured her that she would not have to go back.
[40] T 108.
Mr Ey cross-examined CM about the statement that she gave to police on 5 June 2014. She agreed that SMP did not say that the accused grabbed her wrist after he touched her on the ‘wee-wee’ on the morning of 26 May 2014 in the order as specified in her statement. CM said there was a subsequent conversation in which the complainant revealed this information however she could not recall exactly when that was. CM said that she believes it was a few days before the CPS interview while she was telling the complainant that she would be speaking to someone soon, SMP said “daddy pokes me in the wee-wee and grabs my wrist and makes me touch him.”[41] This statement was made out of the blue.
[41] T 145.
CM confirmed that the accused saw SMP each weekend until approximately March 2010 and then after that time, SMP would stay at the accused’s premises overnight every second weekend. She gave evidence that in late 2010 she and the accused underwent unsuccessful mediation with Relationships Australia. CM reduced the visits to day visits as she believed this was in SMP’s best interests due to some unusual parenting behaviours that she believed were exhibited by the accused. In 2011 proceedings were initiated in the Family Court. CM and the accused began to communicate via a ‘communication book’ as they were unable to verbally communicate. CM denied trying to influence the complainant or undermine her relationship with her father at that time[42] and insisted that she was trying to promote a workable parenting arrangement.
[42] T 122.
CM was shown a contravention application filed by the accused in the Family Court in 2012. She said this was filed in response to confusion about custodial time with the complainant and this was resolved by way of consent orders made in the Family Court on 7 June 2013. CM gave further evidence in relation to the history of the Family Court matters and agreed that the communication within the communication book was not pleasant at times. Further, she explained that the accused would call SMP at his specified times and sometimes she would not want to speak to him for whatever reason and this caused disharmony between CM and the accused. CM denied listening to the phone conversations but said that sometimes she would put the phone on speaker and sit SMP on her lap to facilitate the phone calls.
CM was further cross-examined about her statement given to police on 5 June 2014, where she said that she brought the issue about the nappies to the attention of the accused in the communication book on 23 January 2014. However, the entry on that date within the book relates to a concern raised about the accused making SMP wear bibs. CM gave evidence that SMP first told her that the accused made her wear nappies on 9 January, however, there is no mention about bibs or nappies in the communication book on that date. CM said that she raised the issue about bibs in the book first, as she was testing the waters and planning on raising the issue about the nappies, however, the accused never responded to her. She denied the suggestion from Mr Ey that her communication in the book is an example of the reflection of the attitude she had towards the accused and his dealings with SMP.
CM gave evidence that she instructed her solicitors to file an urgent application in the Family Court on 2 May 2014 as a result of the allegations. She said that there were various affidavits filed by her, the accused, the accused’s sister, NB (MB’s mother) and the accused’s mother. She is aware that one of the affidavits made mention of SMP and MB taking photos on an iPad. CM also said that she did not expect there to be any changes in the custodial arrangements for a year or so after the allegations were made.
The investigating officer, Gary Batty was called by the prosecution. He was present at the CPS interview with the complainant, although he was not visible to her. He said that he became involved in the matter after information about an alleged incident came from Families SA, and he contacted CM to investigate. In relation to the complainant’s initial disclosure relating to MB, it was put to Mr Batty that at that time he spoke to MB’s mother, NB, she said she had seen some photos on an iPad that day and offered to give him the iPad. Mr Batty said that he did not remember the conversation. He said that at some point he found out that SMP had retracted her disclosure relating to MB, however he could not confirm when that was. He confirmed that he interviewed the accused on 3 July 2014.
The prosecution also tendered the statement of Dr Frances Settle.[43] This was admitted by consent of the parties. The statement outlines SMP’s presentation to the Paediatric Emergency Department on 24 April 2014. It says that SMP’s general examination was normal and inspection of her genital area did not show any sign of acute infection or trauma. The statement says that the doctors recommended that CM call the Child Abuse Report Line in relation to the allegations. Dr Settle further confirms in the statement, that the absence of injury is a common finding when there is an allegation of sexual assault, particularly as a poke to the genital area may not cause an injury.
[43] Exhibit P8.
That completed the Crown case.
The defence case consisted of four witnesses; the accused, his mother, his sister and a character witness.
The accused elected to give evidence. He gave evidence that he has played soccer for many years and has coached soccer for the last 10 years for the under 10s, under 19s, under 23s seniors and the under 16 girls divisions at a soccer club. He gave evidence that he was in a relationship with CM for six months prior to SMP’s birth. He said that following her birth, he and CM made arrangements that he would have visitation rights to SMP once a week. He said that in January 2013, he did not see his daughter during the school holidays, contravening the Family Court orders that existed at the time. Consequently, he made an application to the Family Court and further orders were made in June 2013. He said that in April 2014 the orders were being adhered to.
The accused gave evidence that SMP stayed overnight at his address where he lived with his mother and father. He said the complainant was toilet trained and not required to wear nappies. The accused went on to say that SMP did not wear nappies while she stayed with him.[44] From the time SMP ceased wearing nappies until April 2014, SMP did not use a dummy. The accused said that there was a dummy in the house for his sister’s son, CB. The accused’s sister also has a daughter, MB who was five years old in April 2014. MB and SMP had a great relationship. SMP would go to NB’s house to play and MB would often come play at the accused’s house.
[44] T 167.
The accused gave evidence that SMP would sometimes wear bibs at dinner time when she was eating pasta. He said that she wore a bib so that sauce would not be spilt on her dress.[45] The accused gave evidence that at the time of the alleged offending, his relationship with SMP was good. Counsel tendered two drawings made by SMP, one which reads “to dad, happy birthday” and another which reads “I love you dad.” The accused said she gave these to him for his birthday.
[45] T 169.
The accused denied touching SMP’s vagina with his finger on 23 April 2014, or on any occasion.[46] He also denied grabbing SMP’s wrist and getting her to place her finger on his penis.[47] He went on to say that he has never touched his daughter inappropriately.
[46] T 174.
[47] T 174.
The accused gave evidence that SMP stayed overnight at his house on Tuesday 22 April 2014. He and his mother dropped SMP home the following day at about 7.30pm. When he tried to contact his daughter the following Monday as per the Court orders, the phone went unanswered. He said he subsequently received a text message from CM saying that the complainant was unable to speak with him.
The accused gave evidence that on the last occasion the complainant stayed with him, he was at home with his mother and father. His sister, NB came over with her children, CB and MB, at around 11.00am on 23 April 2014. At about that time, the accused, his mother and SMP returned home after running some errands. MB and CB remained at the accused’s address until approximately 3.00pm when NB came to pick MB up. The accused said that at no stage that day did either of his parents leave the premises.[48]
[48] T 175.
After the accused and his mother dropped SMP home that night, the accused learned from his mother that MB and SMP were caught taking inappropriate photos on an iPad that day by NB. The accused said that he immediately phoned his sister, NB, who explained the context of the photos. He said they planned to sit the girls down the next time they were together and speak to them about the photos. They also decided that they would have to be monitored when using the iPad in future.[49] The accused gave evidence that he did not see the photos.
[49] T 176.
The accused gave evidence that after discovering that orders had been made preventing him from having contact with SMP, he instructed his lawyers to apply for his family to have continued supervised contact with the complainant. That was unsuccessful.
The accused was then cross-examined by Ms Dunlop for the prosecution. The accused gave evidence that the complainant enjoyed spending time with him and at his house. The accused explained that SMP was not naughty but there were times when she would become upset because MB had something that she did not but he, his mother or NB would speak to them about it and resolve the issue. He gave evidence that there was no discipline in their house and any issues would be resolved by talking them through. The accused said that his mother would speak to SMP and show her the correct way of doing things but she would never yell or smack the children, nor would he.
The accused said that around April 2014, his nephew, CB was about 2 years old and consequently there were nappies for him around the house. The accused said that SMP had her own bedroom at his house and the door would be half-shut when she was asleep. The accused slept with his bedroom door three-quarters shut.
The accused gave evidence that SMP’s bed time was between 7.30 and 8.30pm, he would usually go to bed around 9.30-10.00pm and his parents would go to bed after him. He said that the kitchen and dining room were directly visible down the hallway from his bedroom in the house.[50]
[50] T 181.
The accused said that the complainant would often come into his bedroom when she awoke in the morning and jump on top of the bed and wake him up but sometimes he was already awake. He said that the expectation of privacy in his house was that his mum would sometimes come into his bedroom to put clothes away and clean the room, however, she would not spend time in there. He said there were occasions during the day where he might be in his bedroom with the complainant. A photo tendered depicted the accused with the complainant in his room. The accused said that the door was open on that occasion and his mother and father were home. He said he was not sure whether his mother was in the kitchen or the lounge room but that she was home and his dad was generally outside in the garden.
The accused gave evidence that SMP would never stay at his house while no one else was home to prevent accusations from being made.[51] He said that this was a proactive decision made by him and his mother as a consequence of the Family Court orders made in 2013. He said this decision was made as they did not want to go back to the Family Court. In April 2014, the custody arrangements were fairly stable. He said that he went on various outings with SMP alone including going to the park, to his workplace to visit his colleagues, to swimming lessons, and to visit friends and family, but that he was never alone in the house with the complainant.[52] The accused said that he was concerned about being accused of not being a reliable parent, and so he always had his mother or someone there to assist him.
[51] T 183.
[52] T 185.
The accused gave evidence that on the day of the alleged offending, SMP woke up around 7 – 7.30am. He is not sure whether she came into his bedroom or not that morning. His mother prepared her breakfast before tidying the house. At about 11.00am the accused, his mother and SMP went to run errands. When they returned home, the accused’s sister, NB dropped her children off at the house. When NB returned around 3.00pm, she used the back entrance of the house. She said goodbye to the accused who was outside cleaning up tennis equipment that the girls had been using. SMP came outside and watched him put the car seat in the car as they were going to see his work colleagues that afternoon. When they returned, SMP had dinner and then he and his mother left to return the complainant to her mother’s house at about 6.30pm. When it was put to the accused that there was a period of time that day where he spent time with the complainant in his bedroom, he disagreed, however he agreed that he was uncertain whether SMP had come into his bedroom that morning.[53] He also gave evidence that he was unsure whether he spent time with SMP in his bedroom the previous day.
[53] T 189.
The accused was cross-examined about the way he shows affection to the complainant. The accused said that they would hug and he would kiss her on the forehead or cheek, however, he said that he did not kiss her on the lips on any occasion.[54] He further explained that he was a smoker at the relevant time but SMP never made a comment complaining about him smelling like cigarettes. It was put to the accused that there were occasions where he kissed the complainant on the lips. He denied this.[55] He further denied there being an occasion where SMP complained to him about her genital area being sore.[56] The accused also gave evidence that SMP would never have seen him naked or seen his penis at any time.[57]
[54] T 190.
[55] T 192.
[56] T 192.
[57] T 192.
The accused said that he had a discussion with the complainant about ‘keeping safe’ however that was limited to not talking to strangers and did not extend to ‘good and bad touches.’ He gave evidence that SMP wore different clothing at different times including dresses, leggings and jeans and said that she would have showers and baths at his house, generally in the evening. The complainant could undress herself and when she would bathe, the accused’s mother would generally assist the accused to bathe her. Sometimes he would bathe SMP alone, however, he said that his mother was always around in the house. The complainant could also brush her teeth and go to the toilet unassisted.
The accused was also cross-examined about the complainant’s bed time routine. He said that he and his mother put SMP to bed together. He said his mother would be there to assist and she would always check on the complainant afterwards to ensure that he had “done it correctly, put her in the bed, covered her with the sheets and [made] sure she is sound asleep.”[58] He gave evidence that SMP was happy after CB and MB left on 23 April until the time she went home that day. He said that after he dropped the complainant home, he called NB as his mother had mentioned that NB had caught the girls taking inappropriate photos on an iPad earlier that day.
[58] T 194.
The accused gave evidence that he used to refer to SMP as ‘bella’ but he never called her “his baby”. The prosecutor put it to the accused that he poked the complainant on her genital area on 23 April and on other occasions. He replied “no, it’s not true.”[59] It was also put to him that he grabbed SMP’s wrist and made her touch his penis to which he again responded “no, it’s not true.”[60]
[59] T 196.
[60] T 196.
He said that he has discussed the allegations with his mother including the allegations that he made the complainant wear a dummy and nappies. He said that he has discussed the allegations with her because she was home with him all day and she knows the allegations are not true.[61] The accused also gave evidence that NB has read the statements and that they discussed the allegations after the complainant gave evidence but that they have not had any further conversations since because “she knows [he] has never done such a thing.”[62]
[61] T 198.
[62] T 199.
The accused’s mother, CP, was called. CP gave evidence that at the time of the alleged offending the accused has lived with her and her husband for approximately 7 ½ years. CP confirmed that the accused and the complainant’s mother went to the Family Court several times to determine access arrangements. She said that the accused had frequent contact with SMP after she was born and that SMP would stay overnight from the time she was approximately two years old. CP said that SMP had her own bedroom and that she had a great relationship with her. She said the complainant and the accused also had a very good father-daughter relationship.
CP gave evidence that in 2014, the complainant was toilet trained, could dress herself and was not wearing nappies. She gave evidence that MB was also toilet trained at this time, however CB was not, as he was only two years old. She said that she never saw SMP using a dummy. CP gave evidence that she required all of the grandchildren including the complainant to wear bibs at dinner time as she did not want them to get pasta sauce on their clothes. She said she had never seen the accused kiss SMP on the lips.
CP said she was aware that the complainant’s mother would complain about the accused’s parenting. She said that she and the accused had a discussion about how to deal with the complaints and as a result of this and wanting to help out, she would assist the accused with SMP’s bathing routine.
She gave evidence that on the afternoon of 23 April, SMP and MB were playing in the accused’s bedroom. She said that SMP was wearing a red dress that day and she could see straight into the bedroom from the kitchen as it is straight down the hallway. CP said that she could hear the girls laughing and she walked into the accused’s bedroom and saw MB lying on the bed with SMP standing above her with her dress up. She asked what they were doing and they insisted ‘nothing.’ When NB arrived to pick her children up, CP said that she heard NB yelling. She said that she asked what happened and NB said something about the girls taking ridiculous photos on the iPad. CP gave evidence that she told the accused about the photos after they had dropped SMP home that night, and the accused consequently phoned NB.
When asked about her knowledge of the allegations, CP said:
Q“Since that time have you discussed the matter with IMP?”
A“Yes”
Q“And the allegations”
A“Not true”
Q“Sorry”
A“It’s not true”[63]
[63] T 213.
CP was cross-examined by Ms Dunlop. She said that in April 2014, there was a dummy in the house for CB. She said that the accused’s bedroom door would be shut when he slept and SMP’s would be left slightly open with a night-light on. She confirmed that SMP’s bedtime was 7.30pm and that the accused would go to sleep around 9.30-10.00pm. She said that she and her husband would go to sleep afterwards. CP said that the accused would put SMP to bed and that she would either assist or go in afterwards to “make sure I check [SMP] is everything cover, everything properly, put the pyjama down properly on the legs because I’m very fussy for that, and she sleep.”[64] She also said that she would check on the complainant three or four times a night and “if she’s not cover, put up a little bit the sheet and she’s nice and warm.”[65] CP gave evidence that usually someone was home all the time and she would try and be there when the grandchildren were there. She said she could not remember if there was an arrangement between her and the accused that she would be there all the time[66] but that she likes to make sure dinner is ready and if she ever left the house, she would only go out to the shops quickly. CP gave evidence that it was just her nature to be there all the time but that she and the accused had discussed that there were too many complaints from SMP’s mother about the accused’s parenting.
[64] T 215.
[65] T 226.
[66] T 217.
She gave evidence that SMP never complained to her about her genital area hurting. CP said that she often went into the accused’s bedroom to clean the room and make the bed. She said that she has never heard the accused call SMP ‘baby’ and had never seen the accused naked around the complainant. She confirmed that the complainant would sometimes go into the accused’s bedroom in the morning and wake him up. She said SMP would sometimes also go in his bedroom in the morning and she would be in the kitchen and she would hear the complainant walk down the hallway towards his room. CP said that there were no other occasions when the complainant would spend time with the accused in his bedroom. She also said that she did not go out at all in the afternoon of 23 April and that SMP was happy for the balance of the day after MB left.
The accused’s sister, NB, gave evidence. She said that SMP and MB played together at least every second weekend. She said that she was aware that the accused and the complainant’s mother would communicate only through a communication book and that at times, the book was “atrocious.”[67] She confirmed that SMP and MB were toilet trained in April 2014 and she never saw SMP wearing nappies. She also gave evidence that she never saw the complainant using a dummy. She said that both SMP and her own children were required to wear bibs when eating pasta at her parents’ house, and they still are to this day.
[67] T 233.
NB gave evidence that her children were at the accused’s house on the day of the alleged offending. She confirmed that she dropped them off around 10.30am and returned at 3.00pm. When she came to pick them up that day, she walked up to the accused’s bedroom and SMP was already walking towards the kitchen. She said MB had an iPad in her hand and a cheeky look on her face. NB said that she grabbed the iPad and opened the Photobooth application and saw approximately five photos. She said that one of the photos taken was of SMP with her bottom poking out. A few in between were distorted, and another was of SMP standing up with her red dress pulled up and her knickers pulled to the side. NB gave evidence that after seeing the photos, she said “what were you doing?” in an authoritative voice and seized the iPad. MB responded “it wasn’t me. It was both of our ideas.” NB gave evidence that she responded “that’s inappropriate, that is ridiculous, you’re not having the iPad anymore” and took it.[68] On the way out, CP asked her what she was yelling for and NB told her that the girls were taking ridiculous photos on the iPad.
[68] T 236.
NB gave evidence that about 7.45pm that night, the accused phoned her and asked her what happened. They decided that the girls were not allowed to use the iPad anymore and next time SMP came to the house they were going to speak to the girls about it. She gave evidence that she told the police about the photos when they spoke to her about the allegations involving MB however her husband had deleted photos by that time.
She said that the accused interacts with the complainant in a father/daughter manner and that he shows her affection by cuddles, forehead kisses and making her laugh. NB said she has never seen the accused kiss SMP on the lips.
NB was cross-examined by Ms Dunlop. She gave evidence that she is aware of the allegations against the accused including the allegations of the complainant being made to wear a dummy and nappies. She said she has spoken about the allegations with the accused and he has told her that the allegations are untrue. She said that the complainant was never in trouble at the accused’s house and if she was told off there was never any yelling or smacking.
Carol Hartlett was also called as a character witness. She said she has known the accused for five years. He works for her. Ms Hartlett said that the people who know the accused of whom she is aware, say that he is a trustworthy, hardworking, honest employee and he is very well regarded by his co-workers and acquaintances.
That concluded the defence case.
Counsel addresses
Ms Dunlop said that the prosecution case rests on the complainant’s evidence. She submitted that I should accept the complainant’s unsworn evidence as both reliable and credible and that I could be satisfied as to her account of the alleged sexual touching by the accused. Ms Dunlop addressed on Mr Ey’s suggestion that the iPad incident was the catalyst for the allegations made by the complainant. She said that even assuming that NB has given an accurate account of the iPad incident, SMP was not spoken to about the event prior to making the complaint about the sexual offending to her mother. She submitted that SMP was not yelled at or told she was in trouble in response to the iPad incident. As there were no consequences in the four hours following, there is no reason that a six year old would regard this incident as a significant event and therefore no reason to make up an allegation to cover it. She went on to say that the fact SMP was not spoken to about the event is consistent with her evidence that she does not remember it 18 months later when cross-examined on it. Ms Dunlop further submitted that on the evidence, SMP liked going to the accused’s house and was indulged by her grandmother. She said that it is implausible to think that a six year old would lie about allegations such as these if she did enjoy going to the house.
It was further submitted that the complainant’s description of the assault is consistent with the language that would be used by a child of that age. The prosecutor submitted that the fact that the complainant described the accused’s penis as “slimy, slimy slime and wet” is something that an adult would understand but a six year old would not, making her description reliable and truthful. Ms Dunlop submitted that SMP engaged her sense of smell in describing that the accused smelled like cigarettes when he put his tongue in her mouth, further making her evidence a reliable personal account. The prosecutor went on to say that the complainant’s capacity to describe her feelings and what particular acts felt like in an age-appropriate way, rebuts the submission that she has been prompted or told what to say. She further addressed the suggestion raised by Counsel for the accused that the allegations arose due to the animosity between the accused and the complainant’s mother, by saying that the disclosure came at a time of general stability in terms of the custodial arrangements.
Ms Dunlop submitted that the accused had the opportunity to commit this offending whether the accused’s parents were home or not as the accused and complainant could be in his room for a sufficient period of time for these allegations to have occurred. She submitted that I should accept that there were times on 23 April 2014 that SMP spent time alone with the accused in his bedroom. She went on to address the risk for the accused to do what is alleged by the complainant by saying that the accused knows the complainant’s disposition and was in a good position to entertain how she may react in certain circumstances. Further, it was a circumstance that if he was caught, he could explain away in the context of innocent father/daughter interaction.
Ms Dunlop further submitted that if I am to accept SMP’s evidence from the CPS interview, the charged act was not the only time this offending occurred and if that is accepted, the accused took that risk to commit these offences prior to 23 April. The prosecutor referred to the uncharged offending, particularly SMP’s evidence in the record of interview that the touching happened more than once. Similarly, when giving evidence, the complainant said that “he puts his tongue in when he kisses me,”[69] referring to ongoing conduct.
[69] T 252.
Ms Dunlop addressed the initial complaint by saying that a spontaneous utterance is something that you may expect from a six year old. She also made reference to the timing of the disclosure as it came within 15 minutes of the complainant arriving home on the day of the alleged offending. The complainant’s mother’s evidence about the way things progressed following the disclosure is also consistent with someone whose daughter has disclosed something of this nature.
In relation to the fact that the complainant initially lied about the fact that MB was involved, Ms Dunlop submitted that I should accept that she was scared she would get in trouble. Ms Dunlop went on to say that SMP was “testing the waters” to see what the reaction would be which is understandable given the circumstances of the alleged incident. The complainant’s mother gave evidence that once she was assured she would not get in trouble, SMP quickly recanted the lie and continued to give consistent accounts about what happened.
In relation to the further inconsistency about whether SMP was wearing pants, as asserted in the complaint, or a dress, as described in the CPS interview, Ms Dunlop said that the complainant wore both leggings and dresses and she highlighted again that SMP remained consistent about her account of the assault. Ms Dunlop submitted that the complainant clearly understood the difference between a truth and a lie and gave an honest answer when she said that she sometimes told lies when she was assessed for her ability to give sworn evidence.
The accused gave evidence that there was no opportunity for this offending to have taken place and the prosecutor went on to say that the evidence does not bear that out. He said in his evidence that he agreed with his mother that he would not be alone with SMP due to the possibility of allegations being made against him, however, Ms Dunlop argued that this was not entirely consistent with his mother’s account as she said she was always around for the reason that she enjoyed spending time with her grandchildren.
Ms Dunlop further submitted that the evidence of the accused’s mother and sister was of limited assistance as they support and believe in the accused’s innocence. They also both gave evidence that they had discussed the allegations with the accused in detail and he has told them that the allegations are not true. Further, she said the fact that CP and NB did not see SMP wearing nappies does not mean that it did not happen. She also said that the character evidence given by the accused’s employer is also of limited assistance as people of apparent good character can have a dark side that is kept hidden from their professional life.
The prosecutor reinforced that the complainant gave an accurate account of what happened and there is nothing about her presentation or demeanour that should cause me any concern. She went on to say that SMP gave a genuine account of the events as they appear to a six year old and that account could only be described by a person who has experienced those things.
Mr Ey addressed on behalf of the accused. He submitted that for me to accept the prosecution case beyond a reasonable doubt I would have to reject the accused’s evidence. He said that two significant pieces of evidence which can be used by me to conclude that the prosecution has not proved the case beyond reasonable doubt are SMP’s original disclosure that MB was involved, and the photographs that were taken by the girls on that day. He said that the account from the witnesses that the girls had taken photos that day can be regarded as accurate, as NB and CP both told the accused about this incident before charges were ever laid.
Mr Ey submitted that the allegations should be viewed in the context of an acrimonious background of refusal of access over a number of years. The Family Court proceedings and the use of the communication book, in addition to the evidence that the complainant’s mother criticised the accused for having “poor parenting skills,”[70] support the suggestion that the allegations were made in the context of a longstanding custody battle. Mr Ey went on to address the inappropriate photos which were taken on the day of the alleged offending. He said that given the accused, NB and CP were not challenged as to the truthfulness of their evidence in relation to the photos being taken, this should be accepted as a truthful account of the events as they occurred.
[70] T 268.
Mr Ey submitted that the retraction by SMP that MB was initially involved cannot be disregarded. He further addressed the inconsistency that at the initial disclosure, SMP said that it had never happened before, however at the CPS interview she said that it had. He then explored the inconsistency of the complainant saying that she was wearing a dress and the accused pulled her knickers down to later saying that she was wearing pants. He also referred to the complainant’s evidence where she was unable to answer whether she was wearing a nappy that day. Similarly, she originally said that she was poked six times and MB was poked five times, to reflect their ages. Knowing that MB was not involved, this is blatantly an untruth, and he submitted that that level of detail in the lie is not insignificant.
Counsel for the accused raised that he complainant gave various answers about when she wore the nappies and whether her grandparents saw them. NB gave an explanation about the bibs and she and CP said that they never saw the complainant wear nappies. Mr Ey submitted that it is incredible to suggest that the accused was making the complainant use dummies and wear nappies and that his mother and sister would not have seen it. He submitted that I should conclude that the complainant lied about that, and that should lead me to have concern as to the reliability of her evidence generally.
Mr Ey further suggested that the complainant’s behaviour has been coloured by her mother, in the context of her relationship with the accused. He reinforced that she sat in on SMP’s phone calls to her father and lied about confronting the accused about making the complainant wear nappies in the communication book. He suggests that she gave evidence with the intention of bolstering her daughter’s allegations, and her evidence contained undercurrents of her view of the accused.
Mr Ey reinforced that the accused was not compelled to give evidence and was unshaken in his cross-examination. He submitted that the accused gave evidence in a straight-forward manner and explained that he had no opportunity to commit the offending with which he is charged. He said the accused denied the offending and put forward an explanation consistent with his innocence. Counsel submitted that the case has not been proven against the accused beyond reasonable doubt, and therefore, I should return verdicts of not guilty in relation to both counts.
Discussion
The complainant gave her evidence in a calm and dispassionate manner. She was age appropriate and thoughtful. However, she purported to have little or no memory of various events. This was not necessarily surprising as the events occurred 18 months prior to her giving evidence, when she was only 6 years old. However, this case rests entirely on the reliability and the credibility of the complainant. Without an acceptance of her version of events given to her mother, the social worker, and in court, these charges cannot be proven to the requisite standard.
The evidence of SMP was unsworn. Naturally, all of her out of court statements admitted pursuant to S 34CA were unsworn. While it is not necessary for there to be corroboration of her evidence it is still necessary to for a degree of caution in assessing her evidence and the statements made by her.
In any case of this nature there will be inconsistencies and a failure to recite the allegations in the same way on each occasion. However in assessing the evidence and determining what I am prepared to rely upon and what I cannot, these factors must be considered.
The evidence in this matter has left me with a reasonable doubt in respect of both charges. I am concerned that SMP made allegations in relation to her cousin that she then admitted were lies, has given varying versions about the clothing she was wearing at the time, has given inconsistent accounts about the number of occasions on which the alleged offending occurred, and has given an account of the accused’s behaviour towards her, including making her wear nappies and use a dummy when she was six years old that cannot be substantiated.
The evidence in relation to use of the iPad by SMP and her cousin and the discovery of it by CP and NB has also caused me concern. I accept the evidence of CP and NB about these events. I accept that the children were caught behaving inappropriately by their grandmother. I also accept that NB raised her voice when she was telling MB off and that CP could hear this from the kitchen. I am satisfied that SMP was aware that NB had located the photographs and had expressed her displeasure. CP’s evidence that the children asserted they were doing ‘nothing’ when asked, and NB’s evidence that MB had a ‘cheeky grin’ and said “it was both of our ideas,”[71] indicates that they were aware that their conduct was inappropriate. SMP purports not to recall these events. I do not accept this assertion. It is most unlikely that SMP does not recall these events and that they were not playing on her mind when she returned to her mother’s house that night.
[71] T 236.
There was nothing to suggest that the accused knew about this situation until later that evening, and when he found out, his reaction was unremarkable given the circumstances.
The accused gave his evidence in a straightforward and convincing manner as did the other defence witnesses. This case has clearly been the subject of much discussion within his family. I do not find this surprising as the original allegation made by SMP included an allegation about the accused also assaulting his niece. It would have been a most unusual family that did not discuss the allegations and the evidence in such a matter.
There appears to be very little opportunity for the offending as described by SMP to have occurred in this modest suburban home during an occasion when both her grandparents were present. I note that in evidence, SMP was unsure whether anyone else was at home at the time of the events described. In this regard, I accept the defence evidence that CP was at home and the accused’s father is nearly always at home and spends most of his time in the garden. I think it is unlikely that the accused would spend much time alone in his bedroom with the complainant without CP being aware of it. I also think it unlikely that SMP was wearing nappies in the manner she described without CP being aware of it. The dummy would be clearly visible if it was used in the way SMP described, however, no-one else noticed it.
I have taken into account the arguments of Ms Dunlop that I found to be both considered and complete, however I am not swayed by them in this case.
Conclusion
A finding of guilt can only be made when the prosecution presents evidence in proof of an offence, or offences that satisfies me to the extent that excludes a reasonable doubt. That is a very high burden but one that exists in our criminal legal system for very good reason. I am unable to reject the account given by the accused, and therefore, the prosecution has failed to satisfy me of the accused’s guilt beyond a reasonable doubt. Consequently, I find the accused not guilty of both counts on the Information.
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