R v Phillis - [2018] SADC 37

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PHILLIS
Criminal Trial by Judge Alone
[2018] SADC 37
Reasons for the Verdict of Her Honour Judge Tracey
27 April 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused is charged with one count of indecent assault alleged to have occurred in 1996.
Verdict: Guilty
Criminal Law Consolidation Act 1935 (SA) s 56, referred to.

R v PHILLIS
[2018] SADC 37

The accused is charged with the following offence on an Information dated 31 May 2016.
Statement of Offence
Indecent Assault (s56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Kevin Ronald Phillis, between the 31^st day of December 1995 and 1^st day January 1997 at Port Lincoln, indecently assaulted CS, a person under the age of 12 years, by rubbing her legs and kissing her.
The accused elected for trial by judge alone.
Indecent Assault
The offence of indecent assault consists of two ingredients, each of which must be proved by the prosecution beyond reasonable doubt before an accused person can be found guilty of the offence.
The first ingredient is that the accused assaulted CS. An assault is the intentional and unlawful application of force or violence to another person. It must be intentional, so purely unintended or accidental touching would not be sufficient. Consent is not an issue in this case.
The second ingredient is that the assault must be accompanied by, or occur in, circumstances of indecency, which are to be determined by reference to reasonable contemporary standards. In this context, the indecent circumstances must involve a sexual connotation.
General legal directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly with the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a suspicion of guilt or even to demonstrate probable guilt. Before I could convict the accused of the charge, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the charge.
·I must assess each witness, including the accused, as to their truthfulness and their reliability, and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
·I remind myself that the accused was not bound to give evidence and could have remained silent. I should assess his evidence and the weight to be attached to it in the same way in which I assess the evidence of the other witnesses whose evidence I have heard in this trial.
·I remind myself that it is not a question of preferring one version over the other, but rather to determine whether the prosecution has proved the elements of the offence beyond reasonable doubt. If I am unable to say where the truth lies then I must find the accused not guilty.
Overview of the prosecution case
The complainant in this matter is CS, who was born on 28 April 1988. The prosecution case is that the accused indecently assaulted her by rubbing her legs and kissing her in 1996 when she was around the age of eight years old and the accused was around the age of 45 years. The accused was a family friend of CS’s parents. CS’s family and the accused’s family socialised together. Both families were members of the same church and lived on rural properties on the Eyre Peninsula.
It is alleged that when CS was about eight years old, in approximately 1996, she attended the accused’s family farm with her family for a barbeque. On this occasion, CS came from the backyard where everyone was socialising into the house to go to the bathroom. On her way out of the bathroom, she was met by the accused who ushered her into the lounge room. He sat on the couch and she sat down next to him. The accused proceeded to rub CS’s legs, kiss her neck and then kiss her on the lips, kissing her with an open mouth and inserting his tongue into her mouth. It is alleged that the accused only stopped kissing and touching CS when a voice could be heard in the vicinity of the house. The accused then left the lounge room and went outside to join the others. CS did not tell anyone about the incident at the time.
The accused is also alleged to have behaved in a way similar to the charged act, whilst in Queensland. That uncharged subsequent act is alleged to have occurred a few years later when CS and her family had moved to Queensland and the accused and his wife visited. On the prosecution case it was during this visit that the accused again touched and kissed CS. The prosecution did not seek to rely on the uncharged act for purpose of propensity, but rather to provide the context and the complete narrative to the charged offence. Even if I am satisfied that the uncharged act occurred, that does not absolve me from the task of determining whether the offence with which the accused has been charged is made out. I must not reason that because I am satisfied of the uncharged act by the accused that therefore he is the sort of person who would commit the offence with which he has been charged.
Sometime later, on another visit by the accused and his wife to Queensland, CS first complained to her mother, KD, about the accused’s behaviour.
The prosecution witnesses
The prosecution called CS and her mother KD.
CS’s evidence
CS was aged 28 when she gave evidence. She and her family moved to Queensland from South Australia in 1998. Prior to this she lived with her family on a farm on the Eyre Peninsula not far from Port Lincoln. She grew up with her parents and three brothers.
Her parents are now divorced. They both still live in Queensland where she also lives. When her family lived in South Australia they belonged to a church known as the Friends Church. She described the accused as a family friend, who was a member of the same church. As she grew up, her parents were best friends with the accused and his wife Christine Phillis (Mrs Phillis), and they would often go to their house. The accused’s family lived just outside of Port Lincoln on a rural property. CS’s family and the accused’s family would socialise, having barbeques and dinners, and sometimes they would sleep over.
On the day when the alleged offending took place, CS and her family were at the accused’s house for a barbeque lunch. She remembered going inside the house to use the bathroom. As she was walking up the hallway towards the kitchen to go back outside, the accused walked in through a door and started walking down the hallway as well. He grabbed her by the arm, pulling her into the lounge room and on to the couch. He put his hands on her legs, moved his hands up and down her legs and then kissed her neck. He slowly kissed her neck, working his way up from her collar bone to her mouth. He was slowly kissing her mouth with his open lips on her bottom lip and then opened his lips on her top lip. She said she remembered thinking that it was just like “pashing”. He was putting his tongue in her mouth. She said the accused started touching her at her knees and then moved his hands up and down from her knees to the top of her inner thighs so his fingertips would have been touching her underwear. He kept doing that over and over as well as kissing her. CS said she remembered looking around the room trying to find a way to distract the accused as she was petrified. She looked at a coffee table in front of them and there was a magazine that was opened to a story about an obese woman. She remembered saying something to the accused like “I wonder how much it would cost for her to eat all the food she needs” or “imagine how expensive it would be to pay for all her food”. She said she was trying to distract the accused or stop him from doing what he was doing but he did not respond and kept going.
The kissing and touching stopped when she heard the door to the kitchen open and shut. The accused suddenly stopped, jumped up and walked out, and CS followed him. She recalled that when outside she saw the accused sit down and bump his head on a tree branch, scraping the top of his head. She remembered smiling and being glad he hurt himself.
CS said that she did not tell anyone what had happened. She was scared and confused. She did not know why the accused had done what he did. She just knew that it was wrong and she did not want to get into trouble for it.
CS described a second incident involving the accused when she and her family had moved to Queensland and were living in Mudgeeraba. The accused and his wife visited CS’s family. She remembered being alone with the accused in the kitchen. The accused put his fingers on his lips and said “shoosh”. Her mother was just outside. The accused lifted her up on to the bench in front of him and he opened her legs and stood between them. He started from her knees, feeling her legs again, just as he had on the first occasion. He started at her collar bone, kissing her up her neck, and slowly kissed her mouth using his tongue. She thought that this time was not as long as the first. When she heard the door open the accused quickly grabbed her off the bench and stood her up. The accused had moved his hands up her thigh and back down in the same manner as in the first incident.
In comparing this incident to the first, she said that during the first incident the accused was a lot slower and calmer when kissing her neck and it had dragged on for a lot longer. The second occasion involved the accused kissing her lips, starting with an open mouth on one lip and putting his tongue in her mouth in more of a “pashing style”. He seemed to be rushing. CS said she froze and tried to think of something to stop the accused. She was in fear and did not move.
She did not tell anyone about the second incident for the same reason she did not tell anyone after the first. She said she did not know how to handle it and was scared. She thought she would get into trouble.
CS remembered being anxious knowing that the accused and his wife were coming for another visit to Queensland. CS described an occasion during their third visit when she went with her mother to the Pacific Fair Shopping Centre. The accused and Mrs Phillis accompanied them in the car. Her mother had to “pop” in to get something quickly and told her to stay in the car. She remembered the accused saying that he would also stay in the car. She said she felt instant panic and sickness. Her mother had already started walking away from the car when she got out and ran after her. She yelled out to her mother and told her what the accused had done and that she was scared to be in the car with him alone. She told her mother she was scared of the accused and that he had touched her. CS said that she knew she did not tell her mother the details of exactly what happened. She did not remember saying anything about kissing, just that the accused had touched her. She told her mother that it had occurred on two occasions and where it had happened. She described calling out to her mother as being in a panic. After she told her mother, they got back into the car and went home. She did not see the accused after that. She provided a formal statement to police in April 2015.
In cross-examination, CS agreed that her parents’ relationship with the accused and his wife was very close. She said she got on well with the accused’s wife who would often give her a kiss and a cuddle. The accused would do the same. She agreed that the accused and his wife treated her and her brothers like their own grandchildren.
It was put to CS that she had not told police that the accused had put his tongue in her mouth. It was CS’s evidence that when she used the words “pash” to police, that meant the same thing. She agreed that she had never told police that the accused touched her underwear. She said she did not go into that much detail with police as the questions asked of her were not detailed.
In the trip to and from Pacific Fair Shopping Centre, she could not remember where the accused was sitting. She could not remember if her brothers were there but said that one of them may have been. CS denied that the accused’s wife was with her mother when she ran to her at the shopping centre. She agreed that she was not crying at the time and said that as she ran to her mother, she was more in a state of panic. She thought she started crying when her mother asked her what was wrong. She did not know where the accused’s wife was when she was talking to her mother.
CS disagreed that she had had a conversation with a friend at school about the accused and that friend’s mother then spoke with CS’s father about the matter.
It was suggested to CS that the accused and her mother were having an affair. CS said she did not recall occasions where she saw her mother alone with the accused nor any occasion when she saw the accused kissing her mother. She disagreed that she blamed the accused for any disharmony between her parents and said she did not believe that the accused and her mother were having an affair. She did not recall occasions when she would be in the back seat of the car with her brothers while the accused and her mother were in the front seat of the car. She did not recall occasions when her mother would drive to various locations to meet the accused.
KD’s evidence
KD is CS’s mother. She said her marriage to CS’s father, JR, ended 13 years ago. When they lived in South Australia, her family belonged to the Friends Church. The accused was a good family friend. The accused and her husband met through the Church and it was about one or two years into her marriage when she met the accused. She described the relationship at the time as really close friends, mixing together approximately once a month. JR and the accused got on very well.
KD denied there were occasions when she would meet up with the accused alone without her family. She noticed nothing about the accused’s relationship with CS. She thought he was affectionate in the same manner to her as he was to the rest of her children.
When asked about the Pacific Fair Shopping Centre trip, she said that the accused, his wife and CS were going to Pacific Fair as she had an appointment at a solarium. When they arrived, she went to her appointment and the accused’s wife said that she wanted to quickly duck into Target. She left CS in the car with the accused, not thinking anything of it. As she was going down the escalators to Pacific Fair towards where she had to go to the appointment, she heard CS screaming out her name. She turned and saw CS running towards her crying. At this time, the accused’s wife had gone to Target which was in a different direction. She did not believe that the accused’s wife would have known that CS had run towards her. CS was crying uncontrollably. Her whole body was shaking and straight away KD detected something was wrong. CS told her she did not want to be left alone with the accused and proceeded to tell her what he had done. CS told her that the accused had put his tongue in her mouth and his hands up her skirt. The exact words CS used were “he put his tongue in my mouth trying to kiss me and he put his hand up my skirt”.
KD said that she was in shock. Her reaction was of confusion and she did not know what to do. She rang her husband and he advised her to get back in the car, go home and wait for him to get home. They all got back in the car and drove home. CS had told her as they were walking to the car that she did not want to sit next to the accused so she sat in the front seat and the accused and his wife sat in the back. KD did not remember whether anyone spoke. As soon as she got home, she rang her sister and told her to come and pick up CS.
In cross-examination, KD denied that she did not tell the accused or his wife that she was going to the solarium. She said she allowed CS to return to the car where the accused was as she was in such a shock. She said she should have told the accused to get out of her car and to leave, but she took them home as she did not know how to deal with the situation. Her sister picked up CS from their home. When her husband got home, she told him that she did not want to be in the room when he had the discussion with the accused, so she went to another room with her sons. She did not see the accused or his wife after that.
KD denied that she had received a phone call from the mother of one of CS’s friends and then told her husband about that conversation. She denied that after the shopping centre there was a dinner with everyone present except for CS. She agreed that the accused was on a long phone call but disagreed that when she went to bed the accused was still on the phone. She could overhear a conversation between her husband and Mrs Phillis. KD said her husband came and told her that the accused and his wife were leaving in the morning. She said she did not want to see them again and stayed in her room until they left.
KD denied that she had an affair with the accused or that they would on occasion meet up whilst her children were with her in the back seat of the car. She denied there was ever any doubt as to whether her husband was the father of CS. She disagreed that she would meet the accused on a side track 10 kilometres south of Lock regularly over a six year period, sometimes with the children in the car.
In re-examination, KD agreed that regardless of the exact words used by CS at the Pacific Fair Shopping Centre, she recalled CS saying something about tongue kissing. KD agreed that she and the accused would flirt with one another.
Kevin Phillis
The accused gave evidence. He was born in 1950 and lives on a farm on the Eyre Peninsula. He is married with two children. He and his wife have been married for almost 45 years. He said he has known CS since she was born. He said he was good friends with CS’s family and would socialise with the whole family.
The accused said he developed a sexual relationship with KD, which started in 1986 and lasted for about nine years. He said he told his wife about the affair after the allegations were made by CS. He and his wife are still together.
CS was born approximately 12 months after the affair commenced. There was a question as to whether he was her father. KD had called off the relationship for approximately two years. After that time they got back together for another six years. During those six years he would see KD, meeting on the side of the road when she would have her children with her. She would bring them as she had no other option. They would meet at the side of the road near Lock and in Port Lincoln carpark. The meetings in Port Lincoln were when KD went there for appointments. The children were not present on those occasions. He said it was rare she would meet him without the children. He said he would show signs of affection such as kissing and cuddling, and that they had a sexual relationship, but did not believe the children witnessed any part of it. The children would have been witness to the kissing, cuddling and handholding.
He recalled one particular occasion after CS had started school when KD had spoken to him on the radio and met up with him on another property. He said CS would have been seven or eight years of age. When they met, KD arrived in a car with CS in the rear seat. On this occasion they held hands. They had a brief kiss and a conversation in front of CS. There was another occasion where they met briefly on the way to Port Lincoln where something very similar occurred when CS was present.

The accused said that there was an occasion at his house when he believes that CS witnessed something, but said that he could not be sure. CS would have been seven or eight years of age. He and KD were on the side verandah kissing and he heard a noise. He investigated the noise and saw CS disappearing into the house from around the corner. He suspected that she saw what happened.
The accused denied tongue kissing CS, caressing her legs or touching her underpants. He denied ever doing anything which could be interpreted as sexual. He described their relationship as grandfather-grandchild, the same as it was with her siblings. He did not remember a barbeque where he hit his head.
The accused denied indecently assaulting CS on the trip to Mudgeeraba. In relation to the shopping trip to Pacific Fair, he said that it was KD’s idea to go to the shopping centre. KD and his wife went into the shopping centre together and he remained in the car with CS. He believed they remained in the same sitting positions as when they arrived. CS left the car a few minutes after his wife and KD left. They returned together approximately 10–15 minutes later. They were all together and no-one appeared upset.
After they returned, he was on the phone for approximately 45 minutes to his son regarding farming matters. He then went to his bedroom and spoke to his wife who appeared upset. His wife told him that JR had told her about the allegation that he had kissed CS passionately and that JR was going to speak to the accused in the morning. He understood JR said that CS had told a school friend about the allegation. The school friend then told her mother, who then rang KD.
The next morning he had a conversation with JR in which he denied the allegations. JR had said it was his duty to follow up on the allegations and that it would be best for all concerned if the accused and his wife left.
In cross-examination, the accused said that the affair with KD finished around the time of the move to Queensland in around 1997. He said that KD became interested in someone else. There was no particular conversation between them about ending their relationship, rather it was a gradual thing. He said he would not describe KD as being aggrieved by the relationship ending. He said he was a little concerned about the children witnessing what happened in their presence. They did not hide the kissing from the children. He did not speak to the children, including CS, about what they may have seen. He was not worried it would get back to CS’s father as he did not believe they were old enough to repeat it.
The accused denied that he told his wife about his affair with KD to deflect attention from the allegations and because he needed her help in relation to the proceedings. He said her reaction to the affair was one of mild surprise. He was not sure if the details of the affair came out in the same conversation as when they discussed the allegations, but said that it was a “follow on” conversation, either that same day or the following days. He said he decided to be honest with her about it. He agreed he thought it was a good idea as he believed the affair was partly involved with the allegations. This was because he believed that CS would have witnessed something which could have precipitated the allegation.
The accused said that while the affair had ended by the time KD moved to Queensland, they still had “coming togethers”. He said “if there was a chance to have kiss in the hallway, we did”. There were he said one or two “coming togethers” in Queensland.
The accused said that when JR came to speak with him the following morning, they talked about the matter and their discussion was quite amicable. He did not tell his wife about the affair at that point because he did not feel it was necessary. He said he and KD would normally have sexual intercourse in the car at a railway track near Lock. The children would either be playing on a rope or in the car.
Christine Phillis
Mrs Phillis said she had never observed anything which made her concerned about the relationship between her husband and CS.
She did not remember anything unusual about the shopping trip to Pacific Fair. She did not notice CS being upset during the trip. There was no mention at the time of KD going to a solarium. She did not recall what they did but said they would have been shopping for groceries as she regularly helped KD do so. On the way back they were sitting in the same seats as when they arrived. She could not recall what they did when they returned home.
At some stage, her husband received a phone call from their son about the farm. Whilst her husband was on the phone, JR approached her and said that it had come to their attention through one of CS’s friends at school, that CS felt uncomfortable in the presence of the accused. He told her that he had a duty as a father to follow that through. She understood that what was said was that CS generally felt uncomfortable around the accused and he was too close to her.
She said both she and her husband were in disbelief and devastated about the matter. She said that JR was very amiable, but that she and the accused agreed that it would be best if they left.
She said the full extent of her husband’s affair was revealed to her about 18 months before she gave evidence, but that she had her suspicions as the accused and KD were very close.
In cross-examination, Mrs Phillis agreed that it was possible there were times at their property that both CS and the accused were not in her presence. She agreed that it was possible that she left KD at some stage during the shopping trip, but said that she did not return to the car at a different time to KD.
The accused told her about his affair with KD a few months before trial. When she found out about the affair she said she was upset and surprised. She said she felt deceived by both of them.
Mrs Phillis said that CS’s father approached her and said that he had something to discuss with her. He said that a friend of CS’s mother had seen fit to ring KD to say that CS had said she felt uncomfortable in the presence of the accused. The conversation was to the effect that generally CS felt uncomfortable around the accused and that he was too close to her. She described the conversation she had with JR as a “normal” conversation.
Counsel Addresses
The prosecutor Ms Holt submitted that careful analysis of CS’s evidence revealed that there was no indication of fabrication, collusion or vengeance on her part. Rather, CS gave a credible, reliable and compelling account. Despite the brief nature of the incident, CS was able to describe clearly and in some detail the circumstances of the offending. Her account was devoid of any exaggeration or embellishment. There was nothing to indicate that it was designed to “stitch up” the accused. It was clear that during her evidence CS was drawing upon her recollection of how she felt at the time. In particular, her recollection of the accused re-joining everyone at the barbeque and hitting his head on a tree was a particular observation and a memory that has remained with CS through the years. Ms Holt submitted that it would be a strange detail for CS to recall, that is, that she was happy that the accused hurt himself and scratched his head.
The initial incident was an opportunistic act by the accused and having gotten away with it, serves to explain why the accused was emboldened on the second occasion in Queensland.
With respect to CS not telling police specifically about the accused’s tongue in her mouth, the description CS gave, consistent with her evidence, of “pashing” was appropriate and there was no inconsistency. Nothing, Ms Holt said, turned on the fact CS did not give police the detail of the accused touching her undies. In her evidence she described the touching as grazing the top of her undies, but that it was not like a feeling of groping. CS made appropriate concessions about the limitations of her memory. She did not seek to fill in the gaps.
As regards the differences between the accounts given by CS and her mother of the Pacific Fair shopping trip, Ms Holt submitted that rather than this being an indication of the fabrication of the complaint and some form of collusion between the mother and CS, it showed the contrary. If there was collusion, they would have very similar recollections of the events.
The evidence that CS gave about her complaint to her mother demonstrated consistency between the wording of the complaint and the conduct she alleged, and consistency of conduct given the making of the complaint occurred when it did. CS gave an entirely plausible account of why it was that she had made no complaint earlier.
As regards the evidence of Mrs Phillis, Ms Holt drew attention to the apparently patchy memory of what went on at the shopping trip as opposed to her certainty that when everyone got back into the car there were no issues.
Ms Holt submitted that the version given by Mrs Phillis as regards the discussion she had with JR is not a reliable, let alone credible, alternate complaint theory and that no reliance should be placed on it. Furthermore, the accused’s description of the affair with KD was implausible and I should have serious doubt as to the reliability and credibility of the accused’s account.
Ms Holt submitted that there is no explanation for why, if there was some motive to lie, the complaint did not take place for such a long period of time. It is fanciful to suggest that as a child CS knew of the affair, did not say anything, sat quiet until years later and plotted a plan to get back at the accused, even though her parents were not separated as at the relevant time.
Finally, Ms Holt asked me to question why it was, if the allegations against the accused were fabricated, they were not more serious.
Mr Lyons submitted that for any real weight to be given to the discrepancy between the evidence of the accused and his wife regarding the conversation the accused’s wife had with JR, it should have specifically been put to Mrs Phillis.
Mr Lyons submitted that the accused has been put under a forensic disadvantage because the length of time in the matter coming to trial created difficulties for witnesses to be specific. Mrs Phillis, Mr Lyons submitted, came across as somebody who was trying hard to tell the truth and where she was not certain about her memory would say so. Full credit, Mr Lyons submitted, should be given to her for her attempts to try to be honest and accurate.
Mr Lyons said there were significant inconsistencies between CS’s evidence and what she told police regarding the tongue in her mouth, the accused touching her undies and being in her school uniform when the incident took place in the kitchen in Queensland. Mr Lyons identified discrepancies between the evidence of CS and that given by her mother regarding the shopping centre trip. In particular, he noted that CS’s mother had said CS was crying whereas CS said she did not start to cry until after she started to talk to her mother. According to KD, CS was extremely distressed, crying and still upset when they returned to the car, yet neither the accused nor Mrs Phillis noticed anything.
Mr Lyons made much of the solarium visit planned by CS’s mother. It was, he submitted, highly improbable that she would be taking people to a shopping centre to have such a visit, expecting others to wait for her. Importantly, he suggested, there was no mention, according to Mrs Phillis and the accused, that she was going to a solarium.
Mr Lyons noted that JR was not called to give evidence despite still living close by to CS and her mother.
Mr Lyons offered some criticism of KD in allowing her daughter, if her daughter had made the compliant to her as alleged, to get back in the car with the accused.
Mr Lyons reminded me that Mrs Phillis was adamant she did not say anything about her husband having previously behaved as had been alleged.
Mr Lyons suggested that CS had a motive to lie. Even though the accused might not have thought it at the time, the relationship between the accused and KD would have ill effect on CS at an early age and she may well have, as a consequence, deep feelings of hatred towards the accused.
Discussion
Complaint
As set out above, CS said she told her mother about the incidents with the accused at the shopping centre and her mother’s evidence corroborated that evidence.
Mr Lyons was critical of the evidence given by both CS and her mother. I have considered the inconsistencies Mr Lyons has raised. In my view, there is no meaningful inconsistency between the versions of the complaint as described by CS and her mother or any that detrimentally affect the credibility of either witness. The complaint that CS made to her mother was spontaneous and made at a time when she was concerned at being left alone in the accused’s company.
The evidence of CS’s complaint can be used to show how the allegations first came to light and as evidence of consistency of conduct on the part of CS. I remind myself that the evidence of complaint is not to be used as evidence of the truth of CS’s statement to her mother about the accused’s conduct.
Motive to lie
In this case it was suggested that there is evidence from which it could be inferred that CS has a motive to make false allegations against the accused. The defence case is that CS fabricated the allegations and colluded with her mother to cause harm to the accused in payback for the affair the accused alleges he had with CS’s mother. Any such motive is relevant to her credibility.
I have rejected the motive put forward by the defence. It is implausible. Even accepting the accused’s evidence that he had a sexual relationship with KD, it would not give credible support to the alleged motive. It would seem from the accused’s evidence that from both his and KD’s perspectives, neither were particularly aggrieved when the relationship came to an end and it would seem not to have played a part in the breakdown of KD’s marriage to JR, which occurred some years later. KD had entered a new relationship when her marriage broke down and remarried five years later.
I remind myself that having rejected the alleged motive for CS to lie, does not mean that I would find that she is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.
Forensic disadvantage to the accused
CS first made a complaint to police in April 2015, that is, approximately 18 years after the offending is alleged to have occurred and there has been some further delay before the matter has come to trial. Despite on the defence case the accused being aware that there was at least an allegation that he had kissed CS “passionately” and was said to have complained to a school friend that she felt uncomfortable around the accused, which was of sufficient concern for him to leave the house, I have directed myself that the delay has resulted in a significant forensic disadvantage to the accused.
In particular, given the delay, the accused has been unable to test the account given by CS in detail. There is a danger in the memories of all witnesses having been distorted and particularly in the case of CS who was a child at the time the alleged events took place. While the accused does not have to prove anything, a prompt complaint would have allowed him and his wife to be in a position to remember back to the relevant time and remember what, if anything, happened so as to be able to produce evidence discounting the evidence of the complainant. Had there been a prompt complaint, there would have been an opportunity for the accused to interview potential witnesses, particularly anyone involved in the complaint CS allegedly made to her school friend.
I have taken into account the forensic disadvantages faced by the accused in considering whether or not the prosecution has proved its case beyond reasonable doubt.
Findings
Evidence of CS
I found CS to be a careful and honest witness. She gave her evidence in a manner that did not display any defensiveness and did not seek to make her evidence more impressive or dramatic by having a complete memory of the events.
The spontaneous complaint she made to her mother was telling. Her evidence as to why it was that she had only made this complaint some considerable time later, can readily be accepted. The confusion and fear she experienced when the offending took place, both in South Australia and in Queensland, could have led to hesitation on her part in disclosing the events. That she did not complain until she was confronted with another opportunity for the accused to be alone with her is entirely reasonable.
Evidence of KD
That KD allowed the accused to remain in the vehicle while they drove home from the shopping centre after CS’s complaint, was, in the circumstances as she described them, understandable. She and her husband had been friends with the accused and his wife for a long time. That she was shocked and uncertain of what to do, is not surprising.
Mr Lyons sought to make much of what he said was an inconsistency in KD’s evidence and what she had told police when she gave her statement in 2016.
In court, KD said that she overheard conversation between her husband and Mrs Phillis to the effect that she could not believe her husband had done it again. In her statement to police she had said “JR later told me that Kevin denied doing anything to CS, but his wife Christine said something like, ‘I can’t believe you’ve done it again’ ”.
In my view, there is ambiguity in the statement to police such that I cannot exclude that KD told police she had overheard what Mrs Phillis said, rather than it having been something her husband told her. Further cross-examination of KD did not resolve the issue either way, such as to permit a finding that there was any meaningful inconsistency on KD’s part.
Details of the sexual relationship alleged between herself and the accused were not put to her in any precise detail in cross examination. It was clear, however, that from her short, blanket denials of any improper relationship, the suggestion of such a relationship was vehemently denied. That KD was prepared to concede there had been “flirting” between the two of them was an indication that she was being honest about the nature of her relationship with the accused.
The accused’s evidence
I do not accept the accused’s evidence as regards the affair with KD. His evidence on this topic lacked detail and was given without any real conviction on his part. He was unable to give specific details of the relationship he was said to have been having with KD and unable to describe the so called “comings together” in any meaningful way. The accused initially said that the affair ceased as early as 1997 before KD and her family moved to Queensland in 1998. He then described much later in his cross examination a further “coming together” incident during the first visit to Queensland.
His evidence as regards the affair was in many respects totally implausible. He gave a very general description of the presence of KD’s children during his sexual encounters, saying he was only “a bit worried” about the relationship getting back to CS’s father, even though he suspected the children may have seen “something”. In cross examination, he said he was not more worried because he felt the children were young enough that they would not repeat what they had seen. He went on, however, to concede that CS would not, at age seven or eight, have been too young for her to have known what she had seen. The accused said he and KD made efforts to disguise their acts of affection, yet he made no inquiries of his own or of KD as to whether CS had seen anything, even though he said he thought that she may have. The accused conceded that his impression of KD, when their relationship finally ended, was that she was not aggrieved in the slightest way about what happened between them.

I have examined the accused’s evidence and his demeanour at trial and found no explanation for the lack of detail in his descriptions due to embarrassment or feelings of dishonour. I find that the evidence the accused gave as regards his sexual relationship with KD was fabricated to provide an explanation for CS having made up the allegations. The timing of his disclosure of the affair to his wife supports my findings in this regard.
I found the accused to be an unsatisfactory witness.
Evidence of Mrs Phillis
I accept that Mrs Phillis’s recollection of certain aspects of the trip from the shopping centre was somewhat at odds with her inability to recall much else that went on before or during the trip, and was of sufficient concern to me to conclude that Mrs Phillis was not always doing her best to be truthful in her evidence.
The accused said in cross examination that his wife told him JR had accused him of kissing CS “passionately”, as distinct from what Mrs Phillis said she recalled of the conversation she had with JR. While I accept that it was not specifically put to Mrs Phillis whether the version of what the accused said he was told was accurate, she was given every opportunity to give any further information as regards what JR had said. She dismissed the suggestion that there was any chance there were other details that JR had given which she had left out, saying “No, I’m sorry. As a registered nurse by profession, we don't get things wrong. I’m sorry, that was as it was”. Her dismissal supported the impression I had from her evidence that she was seeking to underplay the gravity of what she had been told.
I found there was an element of rehearsal in the way in which Mrs Phillis gave her evidence, and at times she was defensive and argumentative.
Conclusion
KD rejected the suggestion that the genesis of the decision by the accused and his wife to leave her house was a conversation KD had with a concerned parent. I find implausible, given the apparent strength of the relationship between the accused and his wife and KD and her husband, an apparently mutual decision was made, without more, for the accused and his wife to leave, if the conversations with JR were as benign as the accused and his wife suggest.
However, even by Mrs Phillis accepting that the conversation between Mrs Phillis and JR occurred as alleged, and indeed even accepting there was a call from a concerned parent as has been described, there is, in my view, nothing inconsistent between those matters and the allegations that CS and her mother have made as to the events during the visit to Queensland or the allegations of indecent assault alleged by CS. To the contrary, such a phone call would be entirely consistent with the complaint that CS made to her mother that she did not want to be left alone with the accused.
I have found the accused to be an unsatisfactory witness and have rejected his denials. I reject the evidence of the accused that he did not kiss CS or rub her legs in circumstances of indecency as alleged in respect of both the charged offence and the uncharged act in Queensland, and I do not accept his denials as reasonably possibly true. I have reminded myself that having rejected the accused’s denials does not mean I am able to find him guilty. I must be satisfied beyond reasonable doubt of the charged offence. Having scrutinised CS’s evidence with care, and bearing in mind the forensic disadvantage suffered by the accused, I have accepted that CS was honestly trying to tell the truth and was a reliable witness. I am satisfied beyond reasonable doubt that the accused is guilty of the offence of indecent assault.
I find the accused guilty.