R v R, PA
[2016] SADC 85
•26 July 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v R, PA
Criminal Trial by Judge Alone
[2016] SADC 85
Reasons for the Verdicts of His Honour Judge Tilmouth
26 July 2016
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
Consideration of the requirements for making an order for trial by Judge alone.
R v Birlut (1995) 39 NSWLR 1; R v Haydon (2000) 76 SASR 265; W v R (2001) 124 A Crim R 545; Juries Rules 1996 (SA) r 42(5), referred to.
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY
Evidence not admitted as of insufficient probative force.
Evidence Act 1929 (SA) s 34C(3), s34P(2)(a), s 34P(3), s 34P(4); IMM v The Queen (2016) 90 ALJR 529; R v Finn (2014) 119 SASR 207; R v W, PK [2016] SASC 5; R v C, CA (2013) SASCFC 137, referred to.
CRIMINAL LAW - EVIDENCE - MISCELLANEOUS MATTERS - STATUTORY PROVISIONS RELATING TO EVIDENCE OF CHILDREN
Examination of the admission and weight to be given to statements of children aged 8 and 10 years at the time of trial, video recorded and admitted into evidence pursuant to s 34CA of the Evidence Act 1929 (SA).
Evidence Act 1929 (SA) s 4, s 34CA, s 34CA(1), s 34CA(3), s 34CA(4), s 34CA(5), s 34D, referred to.
R v Byerley (2010) 107 SASR 517; R v Cheng [2014] SASCFC 189; R v PMT (2003) 8 VR 50, applied.
CRIMINAL LAW - EVIDENCE - COMPETENCE AND COMPELLABILITY - OATH - COMPETENCE TO TAKE
Circumstances in which an enquiry should be undertaken as to whether complainants may give sworn or unsworn evidence.
Evidence Act 1929 (SA) s 9, s 9(4)(a), s 9(4)(b), s 12A(1), s 13(7), s 34C; R v Morgan [2009] VSCA 225, referred to.
R v Frernch (2012) 114 SASR 287; R v Climas (1999) 74 SASR 411; R v J, AP (2012) 113 SASR 529; R v Lomman (2014) 119 SASR 463; R v Cheng [2014] SASCFC 189, applied.
R v GW (2016) 90 ALJR 407, distinguished.
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
Discussion of the admission and use of evidence of complaint.
Evidence Act 1929 (SA) s 34M(3), s 34M(4)(a)(i), s 34M(4)(a)(ii), s 34M(4)(b); R v Place (2015) 124 SASR 467, referred to.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT
Consideration of the elements of the offence of aggravated indecent assault of a person under the age of 14 and of the alternative verdict available.
Criminal Law Consolidation Act 1935 (SA) s 5AAA(e), s 56, s 75(b); R v Pfitzner (1976) 15 SASR 171; R v Markuleski (2001) 52 NSWLR 82; R v MAS (2013) 118 SASR 160; R v D, WD (2013) 116 SASR 99, referred to.
R v C, M (2004) 246 A Crim R 21, applied.
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Discussion of the elements of the offences of unlawful sexual intercourse with a person under the age of 14 years.
Criminal Law Consolidation Act 1935 (SA) s49(1); R v Abraham (1998) 70 SASR; R v Murphy (1988) 52 SASR, referred to.
R v R, PA
[2016] SADC 85Table of Contents
The Proceedings
The Charges - Particulars
Trial by Judge Alone
Summary of Prosecution Allegations
Discreditable Conduct Evidence
Trial EvidenceStatement of Protected Witnesses
Unsworn evidenceFundamental Legal Principles
The Defence Case
The EvidenceCount 1
Count 2
Count 3
Cross-examination of RD
Count 4
Count 5
Cross-examination of CDThe evidence of Senior Constable Dempster
The evidence of the complainants’ grandmother
The evidence of the complainants’ mother
The evidence of Detective Grayshon
The ‘complaint’ evidence
Discreditable conduct noticeChild’s underwear
The events of 2006The Interview of RD
The Interview of CDElements
The Charges - AnalysisCounts 1 and 2
Count 3
Counts 4 and 5Conclusion and Orders
Appendix A
Appendix B
The Proceedings
The accused PR pleads not guilty to two aggravated counts of indecent assault (counts 1 and 2) and three counts of unlawful sexual intercourse (counts 3, 4 and 5).[1] His trial proceeded over seven sitting days in late June 2016.
[1] Here and later letters are used so as to avoid the risk of revealing the identity of the alleged victim(s), in accordance with s 71A(4) of the Evidence Act 1929 (SA).
The charges involve two complainants, RD on counts 1, 2 and 3, and her elder sister CD, on the remaining two counts. PR is their uncle. An aggravated indecent assault is an offence under s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA), whereas unlawful sexual intercourse is an offence under s 49(1) thereof.
The Charges - Particulars
The particulars of the five charges on the Information of 20 April 2015 on which the accused was arraigned and went to trial, were these:
First Count
Particulars of Offence
[PR] between the 1st day of January 2013 and the 15th day of October 2014 at Willaston indecently assaulted [RD], a person under the age of 14 years of age, by touching her vagina.
It is further alleged that [PR] knew the victim of the offence was, at the time of the offence, a child of 7 or 8 years.
Second Count
Particulars of Offence
[PR] between the 1st day of January 2013 and the 15th day of October 2014 at Willaston indecently assaulted [RD], a person under the age of 14 years of age, by touching her vagina.
It is further alleged that [PR] knew the victim of the offence was, at the time of the offence, a child of 7 or 8 years.
Third Count
Particulars of Offence
[PR] between the 1st day of January 2010 and the 1st day of October 2012 at Brahma Lodge had sexual intercourse with [RD], a person under the age of 14 years of age, by inserting his fingers into her vagina.
Fourth Count
Particulars of Offence
[PR] between the 13th day of September 2009 and the 12th day of September 2011 at Brahma Lodge had sexual intercourse with [CD], a person under the age of 14 years of age, by inserting his fingers into her vagina.
Fifth Count
Particulars of Offence
[PR] between the 13th day of September 2009 and the 12th day of September 2011 at Brahma Lodge had sexual intercourse with [CD], a person under the age of 14 years of age, by inserting his penis into her vagina.
The range of dates pleaded with respect to counts 1 and 2 are fixed by reference to an interview given by RD on 18 October 2014, in which she said at one point, the events to which those counts relate, occurred earlier that year. In that interview she related the events the subject of count 3, to have occurred when she was four. She turned four on 9 March 2012, hence the dates particularised on count 3.
The dates supplied on counts 4 and 5 stem from allegations made by CD in an interview on the same day RD was interviewed, as occurring when CD was five or six. As she turned five on 13 September 2009, the dates pleaded represent the two years during which she was five and six years of age.
The suburb of Willaston referred to in counts 1 and 2, relate to the home of the sisters where they lived with their mother WC at relevant times. The accused was a frequent visitor and often stayed overnight. WC separated from the girls’ father when the girls were infants. She has two sons born later, fathered by another man.
The Northern Adelaide suburb of Brahma Lodge referred to in counts 4 and 5, refer to the home of the girl’s maternal grandmother, the witness MR. MR also happens to be the mother of the accused, and a half-sibling of WC, as their fathers are different men. The accused was living with MR for most of the period between 2008 and 2011. The girls were frequent visitors to their grandmother’s home, often staying for sleepovers during this period of time.
In 2011 MR moved interstate with her partner DK, leaving the accused to arrange alternative accommodation. During 2013 and 2014 he lived at Smithfield with the witness ND. ND is the brother of the complainants’ biological father. The accused was aged 26 at the time of the trial. RD was 8 at trial and CD was 10.
The particulars of aggravation on counts 1 and 2, namely that the accused knew RD was ‘a child of 7 or 8 years’ has its origin in s 5AA(e) of the CLCA, rather than s 56 of the CLCA which provides:
56—Indecent assault
(1)A person who indecently assaults another is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 8 years;
(b)for an aggravated offence—imprisonment for 10 years.
(2)If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.
This anomaly was drawn to the attention of counsel after judgment was reserved. The matter was called on in open court to debate the issue. As a consequence the particulars of counts 1 and 2 were amended by consent to delete the further allegation in each count. This was done as defence counsel professed no embarrassment, prejudice or forensic disadvantage: Ayles v The Queen.[2]
[2] (2008) 233 CLR 410.
The particulars pleaded in counts 3-5 inclusive, derive from s 49(1) of the CLCA which provides:
49—Unlawful sexual intercourse
(1)A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.
Trial by Judge Alone
This trial was assigned by the Criminal Registry of the Court in the belief that an order for trial by Judge alone was made in June 2015. When the matter was called on for trial on Tuesday 21 June 2016, preliminary argument proceeded on the assumption that this was the case.[3] Matters proceeded on that express basis at the commencement of the trial, as the following exchange makes clear:[4]
[3] T10.10, 24.6, 27.10.
[4] T28.1-.7.
HIS HONOUR: Are we ready to start the trial?
MR POWELL: Yes please.
HIS HONOUR: Nobody has a problem about the election for trial by judge alone, I take it Mr Powell?
MR POWELL: No.
HIS HONOUR: Mr [PR] can be arraigned.
The trial proceeded to a conclusion as such through to the mid-afternoon of Wednesday 29 June 2016, when verdicts were reserved. During the course of drafting these reasons, it became apparent that in fact no such order was ever made. An investigation of the course of the proceedings revealed that on 16 June 2015, counsel for the accused indicated during the course of a directions hearing, that an election for trial by Judge alone was sent under cover of letter, but not received as of then. Counsel indicated another copy would be forwarded. At the same time counsel for the DPP indicated he was not opposed and had no submission to make with respect to it.
The fact of the matter is that the election was filed on 13 May 2015 together with an application for an extension of time in which to do so, and again on 16 June 2015. The matter was then listed by the Registry in the court system as a trial by Judge alone. However it was not at the same time referred to a Judge to formalise matters by making an order, or relisted for that purpose, as it should have been. The matter came before another Judge for directions on 9 October 2015 when the presiding Judge simply noted with the acquiescence of all counsel ‘(T)his matter is trial by judge alone?’
As a consequence of these revelations the matter was called into open court on 8 July this year, to discuss the future course of the proceedings, given the strict requirement for compliance in making such elections. The circumstances were such that the trial might have been a complete nullity, for which an order for a venire de novo might issue: R v Birlut,[5] R v Haydon,[6] W v R.[7] After some discussion with counsel, it was resolved by consent on both sides, to ‘cure’ the defect by adjudicating on the application afresh, re-arraigning the accused, receiving the evidence given beforehand and inviting any further submissions.
[5] (1995) 39 NSWLR 1.
[6] (2000) 76 SASR 265.
[7] (2001) 124 A Crim R 545.
I duly made an order abridging the time in which to make the election and make an order for trial by Judge alone, because that was always the course the accused desired to pursue, it was a course accepted by the prosecution without demur, and because it was neither in the interests of the accused or the child complainants to be put through another trial. All things considered, there were clearly ‘special reasons’ for making those orders, and it was clearly in the interests of justice to so proceed within the meaning of r 42(5) of the Juries Rules 1996 (SA).
Summary of Prosecution Allegations
The occasions the subject of counts 1 and 2, occurred during a visit by PR to the Willaston home in 2014. The first happened in the lounge room when the accused allegedly placed his hand inside the tights of RD, coming into contact with her vagina, which he touched and rubbed with his fingers (count 1). At one point her mother called out from another room for her to put her pyjamas on, so she got off the couch and went to her bedroom. The accused followed and entered the bedroom. As RD crawled under her bed, he grabbed her by the leg, pulling her from under the bed. He then pulled down her pyjama pants and touched her again, placing his hand inside her pyjama bottoms, coming into contact with her vagina by touching and rubbing the area (count 2).
The incident charged in count 3 occurred a couple of years earlier when RD was four, this time at the home of her grandmother in Brahma Lodge. The incident took place at night in a bedroom she and her sister shared on sleepovers. Her sister was asleep in the other single bed in the room. At some stage the accused entered the room and inserted his fingers into her vagina, after putting his fingers into his mouth.
Counts 4 and 5 relate to CD. They occurred at the same house in Brahma Lodge, on another visit by the two girls. On this occasion, CD was in the bedroom when the accused entered the room, removed her clothes, then pushed her onto the bed, and restrained her before inserting his fingers into her vagina (count 4). Afterwards he inserted his penis in her vagina (count 5).
These events went unreported until September 2014, when RD made a disclosure to her grandmother MR, at a caravan park in Tanunda during the course of a sleepover. MR did not take this any further until returning home days later, when she eventually spoke to police about what she was told by RD. The South Australian Police were notified, leading to the interviews of both sisters on 18 October 2014. On 31 October 2014 the accused was spoken to, arrested and charged with these offences.
Discreditable Conduct Evidence
Two further uncharged incidents were led by the prosecution, both the subject of notice as required by s 34P(4) of the Evidence Act 1929 (SA). With the consent of counsel, this evidence was led provisionally, with questions of admissibility and use, left for determination in the course of deliberating on the verdicts.
The first relates to an incident notified to the police in 2006 involving CD. She was then around two years of age and living in a house at Nuriootpa in the Barossa Valley. At this time the accused was visiting the house, possibly staying overnight. He and CD were allegedly in an unspecified room together alone for an unspecified period of time. Afterwards WC noticed the pants worn by CD to have suspicious stains on them.
She questioned the accused about it and then reported the incident to the Nuriootpa Police Station at about 2pm on 21 September 2006. She conveyed her suspicion that there may have been sexual contact between CD and the accused. The pants were seized and eventually submitted to the Forensic Science Centre for analysis. Inexplicitly, no reference sample was obtained from the accused for DNA comparison purposes. No further police investigation of the incident followed, apart from two interviews with the accused. No charges were laid.
PR voluntarily attended for interview on 16 October 2006 and again on 14 November 2006. On the latter occasion he told the police he masturbated onto a bed in a bedroom of the house whilst visiting his sister, and somehow that led to the deposit of the semen stain onto CD’s pants. This evidence is examined in greater detail later.
Following the investigation in relation to the present charges, a DNA reference sample was obtained from the accused. A comparison was then made between that and the stain on CD’s pants examined in 2006. This turned out to match the DNA profile of the accused. Admission is sought on the basis that this affords evidence of a sexual encounter between the accused and CD, and therefore as evidence of a sexual interest in her.
The second item of disputed evidence emerged soon after the two girls were interviewed in October of 2014. As a result, investigating police went to the residence of the accused at the house of the witness and Uncle of the girls ND, in Smithfield Plains on 10 November 2014. A week or so afterwards ND was tidying up the room used by the accused, after he moved out. Either between the mattress and wooden slats supporting the mattress, or under the bed lying on a pair of slippers on the floor, ND claimed to have found a pair of female child's underpants. ND contacted the police. Police came to the house and took photographs of the underwear in the position they understood ND found them, and then seized them. They showed the photographs to WC, from which she purported to identify the underpants as belonging to her daughter, RD. Admission of the evidence of the possession of the underpants located by ND was initially pressed by the prosecution as indicative of a particular sexual interest in RD by the accused.
It will be necessary to consider the admission of both strands of evidence later, however it is now necessary to focus on the evidence given at trial before doing so.
Trial Evidence
Statement of Protected Witnesses
Because of the young age of each complainant, preliminary issues arose as to the manner in which the prosecution should be permitted to present its case. At the outset, the DPP applied for both statements as ‘protected witnesses’ to be presented to the court under s 34CA of the Evidence Act.[8] Section 34CA(5) defines a protected witness to include a ‘young child’, that is to say a child under the age of 12 years: s 4 Evidence Act. Both complainants obviously satisfied that requirement, as CD was born in September 2004 and RD in March 2006.
[8] Since repealed by s 15 of the Statutes Amendment (Vulnerable Witness) Act, No 16 of 2015 (SA), from 1 July 2016 with retrospective effect. Note that s 1(2) of Schedule 1 thereto provides that ‘(A)n order made by a court under the Evidence Act 1929 as in force immediately before the commencement of this clause will remain in force according to its terms’. And see s 2(5) and s 27 of the Statutes Amendment (Attorney-General's Portfolio) Act 2016 (SA).
In order to duly take this course, it was first necessary to embark upon the inquiry required of s 34CA, as follows:
34CA Statement of protected witness
(1)A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a) the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b) (i) the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii) the court gives permission for the protected witness to be cross-examined on matters arising from the evidence.
For the purpose of the necessary inquiry, both complainants were made available at the outset for cross-examination, so that the precondition contained in s 34CA(1)(b)(i) was met as well. For the purpose of compliance with s 34CA(1)(a), both interviews were played in closed court, counsel were then invited to make submissions as to the appropriate course to take, which they did in brief terms. Thereafter an order was made admitting the statements having regard to the circumstances in which they were taken and on being satisfied each held sufficient probative value to justify admission: R v Byerley.[9] These became Exhibits P1 (RD) and Exhibit P2 (CD). It will become self-evident when these are examined in detail later, that this further pre-condition of admission was undoubtedly satisfied in each instance.
[9] (2010) 107 SASR 517, [22]-[26].
Having so determined, Mr Weir counsel for PR was given permission to cross-examine both girls on matters arising from the evidence, in accordance with s 34CA(1)(b)(ii) of the Evidence Act, with the exception that he was not permitted to ‘fish or probe’:[10] R v Byerley.[11] Once so admitted, the statements became admissible to prove the truth of the facts asserted therein: s 34CA(3). However given the limited nature of Mr Weir’s instructions together with the limited capacity of PR to instruct (as will become apparent), it is entirely appropriate to scrutinise the statements with particular care, because they were not tested to the full extent that might have been ‘in the usual way’: s 34CA(4). Moreover those statements are not to be afforded the status of evidence (sworn or unsworn): R v Cheng.[12]
[10] T67.32-68.2.
[11] (2010) 107 SASR 417, [31]-[32].
[12] [2015] SASCFC 189.
Still further those statements are to be weighed in the manner required by s 34D of the Evidence Act:
34D—Weight to be attached to evidence
(1)In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.
(2)For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible as evidence by this Act shall not be treated as corroboration of evidence given by the maker of the statement.
Unsworn evidence
Having reached this point, the next step was to resolve the qualification of the complainants to give evidence. Their capacity to give sworn or unsworn evidence is controlled by s 9 of the Evidence Act which provides so far as presently relevant:
9—Unsworn evidence
(1)A person is presumed to be capable of giving sworn evidence in any proceedings unless the judge determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
(2)If the judge determines that a person does not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence, the judge may permit the person to give unsworn evidence provided that—
(a)the judge—
(i)is satisfied that the person understands the difference between the truth and a lie; and
(ii)tells the person that it is important to tell the truth; and
(b)the person indicates that he or she will tell the truth.
Each complainant was informally examined separately, immediately before her ‘evidence’ was taken, to ascertain if she had a sufficient understanding of the obligation to be truthful in giving sworn evidence, that she understood the importance of telling the truth, of the difference between the truth and lies, and so to secure an indication she would tell the truth: R v French.[13] Having completed that inquiry, the prosecution wisely did not press for either to give sworn evidence. Being satisfied of the remaining requirements, each was individually permitted to give unsworn evidence: R v Climas.[14] Defence counsel did not object to that course.
[13] (2012) 114 SASR 287, [35].
[14] (1999) 74 SASR 411.
Having taken that course, it remains necessary to bear steadily in mind when assessing the material so presented, the reason why the evidence was unsworn, namely that neither complainant possessed a sufficient understanding of the obligation to be truthful entailed in giving sworn evidence: s 9(4)(a) of the Evidence Act and R v J, AP,[15] as well as the additional need for caution over and above that required under s 34CA(3), in determining whether to accept the evidence and the weight to be given to it: s 9(4)(b) of the Evidence Act.
[15] (2012) 113 SASR 529, [38]–[42].
These considerations necessitate the exercise of due caution when deciding whether to accept the material, and to bear in mind there is a significant difference in the weight to be attached to unsworn evidence (as distinct from sworn evidence), by reason of the degree of moral and legal solemnity involved and of the consequence by way of sanctions that follow giving false evidence: R v Lomman.[16] Nevertheless it is unnecessary to proceed on the basis that it is unsafe to convict on a child’s uncorroborated evidence unless that approach is warranted in the particular circumstances for ‘cogent reasons’: s 12A(1) Evidence Act, even when a statement of a child is admitted pursuant to s 34C thereof: R v J, AP.[17] Even then it remains necessary to scrutinise the evidence and the non-evidentiary material with care: R v Cheng.[18]
[16] (2014) 119 SASR 463, [41]–[43].
[17] (2013) 118 SASR 150, [4].
[18] [2015] SASCFC 189, [136].
These requirements differ from the common law position in as much as there was no obligation to warn a jury of the need for caution in the case of unsworn evidence, or to direct a jury to take into account the differences between sworn and unsworn evidence in assessing its reliability, or for that matter to inform the jury of the findings made by the trial Judge, as the High Court points out in R v GW.[19] As the unsworn evidence was given when the complainants were accompanied by a support person, it is not open to draw from that fact any inference adverse to the accused and does not influence the weight to be given to such evidence: Evidence Act s 13(7).
[19] (2016) 90 ALJR 407, [46], [53], [56].
Bearing these principles and statutory directions in mind throughout, it is now appropriate to identify the evidence given in respect of each count.
Fundamental Legal Principles
Before analysing the evidence, it is as well as to establish the fundamental principles applying to an assessment of the evidence. Because of the need to understand and assess each interview in their entire context, they are reproduced in full as Annexures A (RD)[20] and B (CD)[21] respectively, rather than to quote extensive portions in these reasons.
[20] MFI P1A
[21] MFI P2A
The constituent elements of each charge require proof beyond reasonable doubt. The accused comes before the court with the presumption of innocence in his favour, so that he is entitled to the benefit of any reasonable doubt: Woolmington v DPP.[22] He is not required to prove his innocence: R v Reeves,[23] Pryor v The Queen.[24] Accordingly, if the evidence raises a reasonable doubt about guilt, the accused, is entitled to an acquittal: King v The Queen.[25] It is not enough that an offence might have been committed by him or even that it is more likely than he committed an offence: R v WG.[26]
[22] [1935] AC 462, 482.
[23] (1992) 29 NSWLR 109, 117.
[24] (1969) 43 ALJR 388, 388.
[25] (2003) 215 CLR 150, [18].
[26] (2010) 199 A Crim R 218, [49].
As a general proposition, each offence must be considered separately on the evidence admissible solely with respect to that offence: R v Schlaefer.[27] The accused is entitled to an impartial and detached consideration of the charges without letting matters of sympathy, prejudice, sentiment or emotion to play any part in the fact finding process: Murphy v The Queen.[28]
[27] (1984) 37 SASR 207, 210.
[28] (1989) 167 CLR 94, 100.
The Defence Case
The accused elected not to give evidence. As he is not required to do so, or to call any other evidence, his failure to do so is not evidence against him, does not constitute an admission, may not be used to fill gaps in the prosecution case, and may not be used as a make-weight in assessing whether the prosecution has proven its case beyond reasonable doubt in respect of each count: Azzopardi & Davis v The Queen.[29] Because this is his legal right, no adverse inference is to be drawn against him or the care he puts forward from the exercise of that right: RPS v The Queen.[30]
[29] (2001) 205 CLR 50, [51].
[30] (2000) 199 CLR 620, [43].
The accused did however tender without objection (without conceding relevance) a report of the psychologist Dr Robyn Young dated 17 March 2015, Exhibit D6. This report followed an examination of PR on 16 March 2015 with regard to mental competence and fitness to stand trial, within the meaning of these expressions in Part 8A of the CLCA. A summary of this report reveals so far as relevant:
… I believe he could … instruct his lawyer and be guided through the proceedings. This too is marginal. Mr [PR] has autism spectrum disorder and problems with his poor adaptive skills. His ability to look after himself is significantly impaired. He may not present well in court. His rocking and poor eye-contact may be perceived poorly by the court and in particular a lay jury. Should this matter go to trial a jury should be educated in autism and its presentation.
The body of the report explains the accused ‘was only able to offer limited information to explain his situation and only when pressed’, that he ‘has borderline comprehension and very poor processing speed’, and that ‘he would struggle to follow the proceedings should words be used beyond that of a 12 year old capacity’.[31] This report was principally put forward by his counsel Mr Weir on the footing that it explains why he elected not to give evidence. On the basis of the above authorities that would not appear to be necessary. It does however have some marginal relevance in as much as it serves to prevent impermissible speculation as to why he did not give evidence, given the standard direction sanctioned by the High Court in RPS v The Queen:[32]
… there may be many reasons why the accused did not give evidence and you should not speculate on those reasons.
[31] Exhibit D6, p 9.
[32] (2000) 199 CLR 620, [43].
This material is further relevant as to the question of the limited capacity of defence counsel to effectively cross-examine the complainants, as contemplated by s 34CA(4) of the Evidence Act, as well as going to the potential for forensic prejudice. These two aspects of the case are discussed in the context in which they arise later in these reasons.
The Evidence
Count 1
The primary source of the material on this count is to be found in the interview of RD by Senior Constable Dempster at the Gawler Police Station, commencing at 11.35 am on Saturday 18 October, over some 45 minutes. A transcript of this is marked MFI P1A.[33] As both counsel referred to the transcript of the interviews with RD and CD in making closing submissions, it is convenient to employ these as the most sensible means of illustrating the approach given to assessing the weight of this material, in the manner required by s 34D(1) of the Evidence Act, and in applying the necessary warnings and cautions applying thereto, as discussed above. It remains for the court as the tribunal of fact to determine for itself by listening to the recordings of the interviews, to ascertain what was said and how it was said: R v Morgan.[34]
[33] Appendix A
[34] [2009] VSCA 225, [51].
It can be discerned from the Annexure A, that the pith and substances of the allegations on count 1 are these:
·Her uncle the accused was the perpetrator;[35]
[35] Transcript of Interview Annexure A, P7 L269–P8 L282.
·This was a time when her mother, brothers and her sister RD were about the house but not in the lounge room or her bedroom;[36]
[36] Annexure A, P14 L537-P15 L574.
·This was the last time he slept over ‘this year though’ at their house in Willaston;[37]
[37] Annexure A, P9 L332–L342.
·He touched and rubbed her ‘naughty parts’, confirmed by reference to the body chart Exhibit P1B, to the vaginal area with his fingers beneath her underwear for ‘a little while’;[38]
·This was on a couch, when she wore a white top and purple shorts with white love hearts on it, whilst watching television at ‘night time’, after playing ‘chasey’ and he had tickled her foot;[39]
·As her mother called out for her to change into her pyjamas, he took his hand out of her pants and she went to her room;[40]
·At about this time she told him to stop but he wouldn’t so she grabbed his arm and pulled it out, then she ran to her [bed]room to put her pyjamas on.[41]
Count 2
·After running into the bedroom she got under the bed, he pulled her out by the leg next to the bed, pulled her pants down and started touching ‘it again’, ‘the naughty part’ with his hand and fingers on ‘the top’;[42]
·During this she was screaming, causing him to put his hand over her mouth;[43]
·She tried to stop him by attempting unsuccessfully to push his arms ‘out of the way’;[44]
·After he stopped, she returned to the couch, when her mother told her to go to bed.[45]
[38] Annexure A, P8 L298–P9 L329, P9 L344–L526.
[39] Annexure A, P9 L344-P14 L529.
[40] Annexure A, P15 L549–L552.
[41] Annexure A, P14 L530-L535,P15 L556-L562.
[42] Annexure A, P15 L558–L560, P15 L583-P16 621.
[43] Annexure A, P16 L595–P16 L596.
[44] Annexure A, P17 L625–L633.
[45] Annexure A, P17 L652–P18 L672.
Count 3
The statement of RD with respect to this count may be distilled into the following:
·When sleeping at her grandmother’s in Brahma Lodge, he touched her when she was ‘littler’, ‘when I was about 4’, an estimate fixed by reference to when CD was almost 6, [CD would turn 6 in September 2010];[46]
·This occurred when she was in bed trying to go to sleep, and when he came in wearing a mask and took a blanket off, when a nightlight was on in the room and when she was wearing pyjamas;[47]
·This occurred in a room shared with CD who was asleep;[48]
·She saw him put his fingers in his mouth and on his tongue and then touch her ‘naughty part’ with his fingers (indicating two fingers) and then ‘put them in the inside’ her ‘naughty parts’, ‘just a little bit’, whilst nodding assent to the question ‘you could feel his fingers go in’.[49]
[46] Annexure A, P17 L654–P18 L672.
[47] Annexure A, P18 L678– L688.
[48] Annexure A, P19 L704–P20 L745.
[49] Annexure A, P19 L704–P20 L747.
Cross-examination of RD
As mentioned earlier, Mr Weir was constrained by limited instructions and hence as to the extent he could effectively cross-examine ‘in the usual way’. The following series of questions and answers were put and given with respect to counts 2 and 3:[50]
[50] T82.32-83.26
QDo you remember speaking to Nicolle about something that happened on the couch at your house at Willaston.
AYes.
QWhat do you remember about that.
AI'm not sure.
QDo you remember telling Nicolle about something happening on the couch and then you going to your bedroom to put your pyjamas on.
AYes.
QDo you remember anything about that.
AYes.
QWhat do you remember.
AThat I was on the couch and then he started touching me.
QWho is 'he'.
AUncle [PR].
QDo you remember what happened when you went to the bedroom.
AI got my pyjamas on.
QDo you remember what happened after that.
AI went back on the couch and then he started touching me again and I said 'Stop' and then I went to my room and went under the bed.
QBefore you told Nicolle about this, did you speak to mummy about it.
AI'm not sure.
QApart from when you first spoke to nanny at the caravan park, did you speak to nanny again before Nicolle spoke to you.
AI'm not sure.
QIf I say to you that Uncle [PR] did not touch you on the couch or in your bedroom at the Willaston house, what would you say to that.
AThat you're lying.
Mr Weir then directed his questions to count 3:[51]
[51] T83.27-84.8.
QApart from what happened at the Willaston house, do you remember saying to Nicolle that something happened somewhere else when you were a little bit younger.
AIt was at nanny's old house and he touched me again.
QWho touched you.
AUncle [PR]
QDo you remember what you told Nicolle about where he touched you.
AIn my naughty parts.
QWhereabouts on your naughty parts.
AI don't know how to explain it.
QDo you have another word for 'naughty part'.
NOT ANSWERED
QCan you point on your body where you say your naughty part is.
AI'm not sure.
QAgain, if I was to say to you that Uncle [PR] did not touch you on your naughty part at your nanny's place, what would you say to that.
AYou're lying again.
Count 4
Count 4 relates to the eldest sister CD. The core particulars of this allegation as gleaned from Exhibit P2 (referenced to MFI P2A the transcript, Annexure B) can be identified as follows:
·CD was unable to remember when this occurred or how old she was;[52]
·She was sitting in her [spare] room at her Nanny’s when her Nanny and younger sister were at the shops, playing an electronic game when he came in and locked the door, turned off the television, threw away the computer game, as she protested for him to ‘turn them back on’;[53]
·After putting what might have been a door jam or a door dog against the door claiming that ‘I’ll hear if you move’, he started touching her on a part of her body of which she could not remember but which she indicated in two places on a body chart,[54] she described as that part where ‘you go to the toilet and do a wee wee with it’;[55]
·He started rubbing ‘his tummy’ using his hand before they were in a position of ‘tummy … against … tummy’, he then turned her over face down whilst ‘moving around a bit’ facing the mattress, a few minutes later pulling his pants down before leaving to have a shower as apparently her Nanny came home;[56]
·When he thought her Nanny was coming he pulled his pants down again, turned her over and sat her up, jumped on the bed, took off her clothes turned her over rubbing against her with his head shaking it around, ‘he had spiky hair, it was very spiky’ around her bottom rubbing the outside whilst she was pinned to the bed, eventually putting his fingers on the outside and then on the inside of her vagina.[57]
[52] Annexure B, P5 L185–L191.
[53] Annexure B, P8 L302–P9 L330, P11 L405-L524.
[54] Exhibit P2B.
[55] Annexure B, P6 L208-P7 L260, P14 L515-L579.
[56] Annexure B, P16 L601-P20 L745.
[57] Annexure B, P20 L758–P27 L1040.
Count 5
The statement of CD then proceeds:
·He ‘used his bit’ inside her, describing it as a ‘woodle’ by using his hand ‘holding it and made sure it went where he wanted it’, by ‘putting it on the inside [of her vagina] and then he just sat it there for a little bit’;[58]
·He then made sure ‘he didn’t hear Nanny’ and told her ‘I’m not going to be allowed to tell her’, stopping after a few minutes before she got back and then went and had a shower.[59]
[58] Annexure A, P28 L1070–P30 L1131.
[59] Annexure A, P30 L1133–P31 L1172.
Cross-examination of CD
Here once again, although defence counsel was constrained in what he could put to CD, she did concede she had not complained to anyone else about her Uncle before speaking with the police on 18 October 2014.[60] When it was put to her that her Uncle did not touch her on the ‘naughty bits’, she responded ‘I would say that I am not lying’.[61]
[60] T94.27-.37.
[61] T94.3-.8.
There was also a very brief exchange concerning the much earlier events in Nuriootpa:[62]
QWhen you spoke to Nicolle in front of the camera, you mentioned something about something similar happening to you when you were much smaller, do you remember saying that.
AYes.
QBefore you spoke to the police officer in front of the camera, had your mummy or your nanny or anyone spoken to you about that.
ANo.
[62] T93.32-.94.2.
The evidence of Senior Constable Dempster
Senior Constable Dempster was attached to the Family Violence Unit of the Barossa CIB when she interviewed both girls on 18 October 2014, at the Gawler Police Station. RD was brought there by her mother. Dempster resolved after interviewing her to interview CD, having formed the judgment that it was ‘best to do it fairly promptly for the children to be able to discuss’.[63] She therefore arranged for their mother to collect CD, who was attending a birthday party at Evanston a nearby suburb, at the time.[64]
[63] T48.34-.36.
[64] T199.8-19.
These interviews were prompted because of what was described in the evidence as an ‘intake’ received by the police from Families SA in the nature of a disclosure under Part 4 of the Children’s Protection Act 1993 (SA). The information SC Dempster had received was that this came about as a result of a complaint made by RD to her grandmother.
Dempster conducted the interviews of 18 October in a commendable, unimposing, gentle, calm, and softly spoken manner. There are a few qualifications to these general observations, identified and analysed later. These interviews were played once in court and they were replayed again and reviewed several times in Chambers for the purpose of assessing their weight and relevance.
The evidence of the complainants’ grandmother
MR now resides interstate. Beforehand she resided in the house at Brahma Lodge, referred to earlier. She confirmed that the accused lived with her and had his own bedroom in her home at Brahma Lodge for a period of three or four years before she moved interstate.[65] MR further confirmed the girls would visit and stay with her, sometimes ‘for weeks’. When they did, they would either sleep in her bed or on the lounge with her and that once a border she had moved out, she made up a third bedroom for them with a single bed for each.[66]
[65] T106.22-107.17.
[66] T106.3-.21, T107.20-108.11.
The evidence of the complainants’ mother
The complainants’ mother WC gave evidence that after separating from their father when they were just infants, she became their primary carer. She affirmed the visiting arrangements including that the accused visited and stayed at Willaston, where she lived with the children for several years, but that he otherwise resided with her mother at the Brahma Lodge address. She said the girls generally shared a room with single beds, and the accused later went to live with the brother of her former partner, the witness ND in Smithfield Plains after his mother moved interstate. She was unaware of the complaints made to her mother until after the police interview with RD.[67]
[67] T200.12-.23.
The evidence of Detective Grayshon
Detective Grayshon was and is stationed at the Barossa CIB. He received information concerning RD by way of an intake from Families SA, at the Barossa CIB office on 14 October 2014. He initiated contact with the family by attending the Willaston home on 18 October and by arranging for WC to bring RD for interview that day.
Detective Grayshon attended the residence of the accused on 31 October, where he was then living, where he was arrested and conveyed to the Elizabeth Police Station for processing.
The ‘complaint’ evidence
There is no evidence of ‘complaint’ with respect to counts 3 and 5. There is evidence of that kind put forward in relation to counts 1 and 2 with respect to RD. It begins with the account of MR and arose from an occasion when she was visiting South Australia, and when she and her partner DK were staying in a caravan park in Tanunda. They arranged for the sisters to have sleepovers with them ‘one child at a time’, and it was RD who was brought to them first for that purpose.[68] A bed was made up for her in the tent which they shared.[69] It appears this was during the school holidays of September 2014.[70]
[68] T111.6-.24.
[69] T111.1-.29.
[70] T111.31-.33.
A discussion was initiated by MR in the communal showers as to the sleeping arrangements when the grandchildren stayed with their Uncle ND. She did so because RD had ‘started weeing in the bed and everything else, I knew something was wrong was going on and I wanted to get to the bottom of it …’.[71] RD told her they slept in ND’s bed, and he slept in the lounge room.[72] MR then inquired ‘well, does anybody touch you in wrong place?’, and she responded ‘yes Uncle PR’. Next asked ‘well where does he touch you?’ she ‘pointed down at her fanny’.[73] MR then stood up and hugged her, stating ‘Nanna is so sorry, darling … it’s not your fault it’s Uncle PR’s fault’, whilst RD was crying.[74]
[71] T112.32-.35.
[72] T112.26-.31.
[73] T113.4-.7.
[74] T113.10-.15.
They returned to the tent where MR spoke to DK and discussed what she was told. When asked further questions ‘RD started clamming up getting really funny and then she just rolled over because she had already climbed into bed …’.[75] As a result of this DK took a walk with RD the following morning. He questioned her a little, recording it on his phone. It is rightly conceded by the prosecution that this material is not relevant or admissible for any purpose, other than perhaps to confirm an occasion like that the day before deposed to by MR, did in fact occur.
[75] T114.2-.9.
The following day the girls’ mother dropped CD off. Both girls spent that day at the caravan park. MR resolved not to say anything to the girls’ mother ‘because I was still in shock … I was still trying to deal myself with what RD had to say to us’.[76] Some days later they returned home and then spoke to a woman in the local hospital and were provided with assistance in reporting the matter to police. This chain of events ultimately led to the referral to Detective Grayshon.[77]
[76] T114.26-115.6.
[77] T115.1-116.14.
This incident at Tanunda was also alluded to in the interview of RD by Constable Dempster on 18 October 2014. Almost at the outset, after a few formalities were dispensed with, Dempster announced:[78]
… okay it’s just that I’ve heard that something happened to you and I want to find out about what happened to you, okay so I heard that you said something to Grandma that that someone is doing something to you that you don’t like. Can you remember having a chat with, or you call her Grandma or Nanna?
She replied ‘Nanny’ namely MR.
[78] Annexure A, P2 L57-61.
The topic next came up when Dempster introduced the suggestion ‘No, OK has Uncle P ever done anything naughty to you’, when she can be seen to nod in apparent assent, but when immediately pressed ‘Do you want to tell me about that?’, she shook her head.[79] Dempster continued ‘Okay because I heard that Uncle P did something to you that you didn’t like,’ to which again she nods in assent, and when quizzed ‘… can you remember who you told?’, the reply was ‘Nanny’.[80]
[79] Annexure A, P8 L280 – L283.
[80] Annexure A, P8 L280 – L285.
RD herself brought up the topic in the general context of staying with her grandmother much later, in this manner:[81]
[81] Annexure A, P23 L885 – P24 L909.
AI camped with Nanny once it was this year and it wasn’t that long ago.
QThat this happened?
ANo, he wasn’t with them, they were just staying in the tents for a little while so we could come down and see them because they weren’t that far away
QOh that was this year? Was that the last time you saw Nanny?
ANo
QWhen you stayed in the tents with them?
AYeah
QAnd when you stayed in the tents with Nanny is that when you had a chat to her about what Uncle P
AThat was when we were in the shower
QOkay so you’ve told me about the time when you think you were about four at Nanny’s house when he did this to you and that’s when he put his finger inside you, then you told me about a time this year that he did it to you?
AIt wasn’t this year I think it was maybe last year.
RD told Dempster she remembered speaking to her Nanny about Uncle PR at the caravan park, but she could not recall the context.[82]
[82] T79.38-81.2.
The question now arises as to the admission and proper use of this material in respect of counts 1 and 2. It can be seen there is no complaint of an act of vaginal penetration, referrable to count 3. Section 34M(3) of the Evidence Act, renders ‘… evidence related to the making of an initial complaint of an alleged sexual offence … admissible in a trial of a charge of the sexual offence’. A complaint must be referrable to the offence charged to render it admissible, although it need not be entirely consistent or referable in all specific details to so qualify: R v Place.[83]
[83] (2015) 124 SASR 467.
In this instance the complaint evidence is generally referable to the conduct alleged in counts 1 and 2, although it is not possible to distribute it to one or other (or both), but that is as far as it goes. Accordingly this evidence is admissible in the first place to inform ‘as to how the allegation first came to light’: Evidence Act s 34M(4)(a)(i), and in the second to a very limited extent as evidence of the consistency of conduct of RD on both counts 1 and 2: Evidence Act s 34M(4)(a)(ii).
Otherwise it is not admitted or taken to be evidence of the truth thereof: s 34M(4)(b) Evidence Act. It must be born in mind that there may be many reasons why RD made no complaint any earlier, or to any particular person, so it is otherwise a matter for the jury (and in this case the trial Judge), to determine the significance (if any) of the evidence in the circumstances of the particular case’: Evidence Act s 34M(4)(b) and (c). On this topic, RD did explain to Dempster that she was ‘too scared to tell mum’ as ‘she might tell Uncle PR and get upset at him’,[84] and CD told Dempster ‘I forgot to tell Nanny because I was too into the game …’ and ‘I went to tell Nanny but then … I had a favourite show’.[85]
[84] Annexure A, P26 L997-L999.
[85] Annexure B, P31 L1168-L1171, P32 L1215-1217.
Discreditable conduct notice
As recorded earlier, the prosecution relies upon two discrete events justifying admission as uncharged acts, pursuant to s 34P of the Evidence Act.
Child’s underwear
It is to be recalled that the accused resided at Smithfield Plains after vacating his mother’s home. Shortly after his arrest, he left this residence even though ND was his carer at the time. After about three weeks, later ND began cleaning ‘rubbish and junk’ from the room occupied by the accused.[86] He claims to have noticed a pair of his niece’s underwear on the bed used by the accused. He further claimed to have found them under the bed on top of a pair of slippers, which he purported to recognise ‘straight away’.[87]
[86] T166.4-.14.
[87] T166.20-.28.
He immediately telephoned Detective Grayshon who came to the house and took photographs. According to ND, he moved them with a pen, by placing them on top of the slats to the bed thinking ‘there may have been some DNA …’ on them, not wishing to interfere with the investigation.[88] These photographs became Exhibit P4, taken on 10 November 2014.
[88] T167.10-.14.
Regrettably these photographs rather than the original underwear, were shown to the girls’ mother WC. She identified them around this time as RD’s underwear. When the original itself was produced in court, she recognised the underwear as CD’s. The underwear in question was tendered as Exhibit P5. She admitted that when shown the photographs she thought they were RD’s, but that she now knew them to be CD’s, as ‘RD’s a little girl they are not going to fit on her’.[89] In this state of affairs it is not possible to relate this evidence to either count 1 or count 2 with any degree of certainty.
[89] T205.9-.15.
More significantly, Detective Grayshon was motivated to take the photographs ‘in situ’ on the slats in which ND had given him to understand they were originally found.[90] Detective Grayshon gave evidence that he was never told by ND they were found on a pair of slippers under the bed, or on the floor or anywhere in that vicinity, or that ND had used a pen to move them so as to avoid contamination.[91] Nor did ND tell Detective Grayshon that he immediately recognised them as his niece’s underwear, only that they were a pair of ‘child’s underpants’.[92]
[90] T221.31-.222-.6.
[91] T222.7-.21.
[92] T222.22-.27.
It is not surprising therefore given the doubts about exactly where the underpants were found, together with the confusion in WC’s mind as to which child they belonged to, that Mr Powell did not press admission of this material for any permissible purpose, owing to the substantial doubts as to provenance, quite apart from probative value.[93]
[93] T242.9-243.10.
The events of 2006
The second item of uncharged evidence sought to be introduced by the prosecution relates to the incident concerning CD occurring in 2006. Her mother gave evidence during the course of the trial, that at the time they were residing in Nuriootpa, in the Barossa Valley when RD was a baby. Her evidence-in-chief about that was this:[94]
QWhat happened.
AMany years ago but I remember she'd come into my room and she had semen on her pants and I remember questioning her and she said something about [PR], something about, but I can't remember what she said but she just mentioned his name and then I found myself at the doctor's surgery and the police station reporting it because, I don't know, it happened too fast and just what happened.
QDid you say you noticed something about her pants.
AYes.
QWhat did you notice.
ASomething that looked like semen on it, that's yeah.
[94] T203.4-203.16.
She explained under cross-examination that the police never advised or asked her to take CD for a medical examination in relation to those allegations. With the consent of the defence, the prosecution tendered a statement of Sergeant Casey, who in September 2006 was stationed at the Nuriootpa CIB.[95] In this statement he records that at 2.00pm on 21 September 2006, he spoke with WC at the front counter of the Nuriootpa Police Station, when he was handed a blue pair of child’s pants she stated belonged to her daughter CD. The pants were seized and taken to the Forensic Science Centre for examination. They were examined for the presence of DNA. As no DNA reference sample was taken from the accused, the matter was taken no further.
[95] Exhibit P10.
When re-tested in February 2016 by the Forensic Science Centre, the accused was identified as a contributor to three mixed samples, one single profile source of semen stains on the front left leg and rear left leg of the pants, with a probability ratio of 100 billion to 1. This forensic evidence was admitted in documentary form with the consent of defence counsel.[96]
[96] Exhibit P9.
Returning to the statement of Detective Casey, he reports that on Monday 16 October 2006, PR was interviewed at the Nuriootpa Police Station in the presence of his mother MR. A second interview took place on 14 November 2006, again in the presence of his mother. In the first Casey put to him an allegation concerning an incident occurring at about 11.30am on Tuesday 21 September 2006 at the Nuriootpa home. He responded that he was ‘staying up at Balaklava with my mate that day’.[97] He went on to explain that he could not understand how his ejaculate was on CD’s clothing and that he had not ejaculated in the house that day. This was obviously a lie going at least to his credit and possibly exhibiting evidence of guilt: Zoneff v The Queen.[98]
[97] Interview 16 October 2006, P2 L52.
[98] (2000) 200 CLR 234, [16], [23].
During the second interview of 14 November 2006, the accused conceded under caution, masturbating in a spare room at the back of the house whilst laying on a bed.[99] He explained that CD was not in the room at the time and in fact had left it beforehand. He later expressed the opinion in this second interview, that CD ‘must have climbed on the bed or something I don’t know’.[100] It is this incident which most likely CD was adverting to towards the latter part of the interview with Senior Constable Dempster.[101]
[99] Interview 14 November 2006, P2 L60 – P3 L80.
[100] Interview 14 November 2006, P4 L104.
[101] Appendix B, P33 L1241-P34 L1288.
Mr Powell urged admission of this evidence in relation to counts 4 and 5, on the footing that it was capable of proving a sexual interest by the accused in CD. Before it can be admitted for that or any other permissible purpose, the court is required to be satisfied the ‘probative value’ of the evidence … substantially outweighs any prejudicial effect it may have on the defendant’ under s 34P(2)(a) of the Evidence Act. Mr Powell did not press admission for a propensity or disposition purpose, pursuant to s 34P(2)(b) thereof.
There can be no doubt that if received, the permissible and impermissible uses can be safely kept ‘sufficiently separate and distinct … so as to remove any appreciable risk of the evidence being used for that purpose’ in conformance with s 34P(3) of the Evidence Act. The ultimate consideration is then whether this proposed evidence has sufficient probative value to outweigh prejudicial effect. This assessment of the probative value of this evidence is to be determined on the assumption that the evidence will be accepted: IMM v The Queen.[102]
[102] (2016) 90 ALJR 529, [38]-[39].
The prejudicial effect is obvious, because the material is suggestive of some kind of sexual encounter between the accused and CD which inherently conveys a sexual interest in her. The difficulty with this evidence is in proving the underlying primary facts upon which that inference might properly be drawn. There is no satisfactory evidence of exactly where the accused was, in which [bed]room, or that CD went into the room in which he was at the time.
Accordingly, there is an absence of the kind of detail required to demonstrate that some kind of illegal activity of a sexual nature occurred involving both. It is a reasonable even if a highly suspicious possibility that PR did masturbate and somehow the ejaculate innocently came to be deposited on CD’s pants, but the problem remains of proving the underlying facts.
The position might be adequately explained in this way. If the accused was charged with an indecent assault, the prosecution would struggle to make out a case to answer, for the very reason that there is insufficient evidence to prove the actus reus. The inescapable conclusion is that the evidence in its present state, is of insufficient probative value to justify admission under s 34P(2)(a) of the Evidence Act, and must therefore be excluded.
Even then there is the additional question of forensic disadvantage. Although perhaps not directly engaged here, s 34C(3) of the Evidence Act generally requires a trial Judge to explain and take into account forensic disadvantage when ‘scrutinising the evidence’: R v Finn.[103] There is no reason why this is inapplicable to the evidence of uncharged acts sought to be introduced as ‘discreditable conduct’ evidence. An appropriate direction to the facts of this case, borrowed from that suggested in R v W, PK,[104] would be along the following lines:
There are a number of examples of the forensic disadvantage which must be considered and assessed in this case. The girls’ mother and other adults about the house at the time might have been in a position to give a statement to the police as to the precise movements of CD and the accused at the very time of these events. The girls’ mother could have related the conversation she had with the accused shortly after the suspicious stain was seen. This might have exonerated him. The failure to take such statements, together with the passage of time has denied the accused the possibility of exploring such matters so as to gain support for what he told police in the second interview or to adduce or elicit evidence favourable to his position.
[103] (2014) 119 SASR 207, [117].
[104] [2016] SASC 5, [47].
Having reached this conclusion, it is regrettable to say the least, that the investigation of the 2006 events was not taken further. It is completely unfathomable why a reference sample was not taken from the accused, as police held sufficient information to justify taking a forensic sample for that purpose. It is of further regret that proper contemporaneous and detailed statements were not taken from the girls’ mother as to the precise events, and from anybody else of sufficient age who might have been about the place. It is understandable to an extent that there was some hesitancy in furthering the investigation given that CD was barely two years old and could hardly have herself given a statement. All the same the situation deserved a much better investigation than it received.
The Interview of RD
It appears that RD was taken to the Gawler Police Station at relatively short notice without her knowing what it was about. This was a brief few minutes drive from Willaston. It commenced at 11.48am on this Saturday morning. The nature of the core allegations are recorded earlier. Save for the observations to be made shortly, RD is internally consistent in the accounts she gives. She also provides reasonable detail of the surrounding circumstances, such as where things occurred and what was worn and what was done, for instance. For the most part her answers are quite spontaneous and unqualified. She appears to understand what Senior Constable Dempster says to her and her responses were context appropriate.
On the other hand certain reservations about her reliability emerge. The exchange between lines 38-50 appear to be about the arrangements to bring her to the interview, rather than about complaint, so that matter is of no significance. RD indicated an understanding that she did not have to say anything if she didn’t want to, as she nods a clear assent after ‘that’s fine’.[105] In contrast when asked ‘I heard that you said something to Grandma that someone is doing something to you that you don’t like’ she spontaneously and noticeably shakes her head in disagreement,[106] during a long pause.
[105] Annexure A, P2 L54.
[106] Annexure A, P2 L58-61.
The interview then proceeds by RD providing accurate details as to her family, during which Senior Constable Dempster obviously gains her confidence. There was nothing wrong in that. The subject soon turns to her Uncle PR, a persona introduced by RD herself.[107] Her response that he didn’t do ‘something naughty’, appears to be attributable to something other than of a sexual nature and it was more likely a reference to whatever it was her other Uncle had apparently gone to gaol for.[108]
[107] Annexure A, P2 L242-265.
[108] Annexure A, P7 L260-P8 L278.
Of greater concern is the suggestive ‘has Uncle PR ever done anything naughty to you’.[109] This was very leading in context, since there was no suggestion at that point that he had. More than that, it was suggestive of the fact that he, as opposed to someone else, had done so. The questions were therefore leading in two significant respects. Matters were compounded because RD shook her head in dissent at the proposition, but then apparently assented shortly afterwards to the further prompt ‘I heard that Uncle PR did something to you that you didn’t like?’.[110] There was an inducement of sorts soon after, to the extent that Senior Constable Dempster assured her ‘(B)ecause if you tell me what, what happened we can try and make it a bit better for you’.[111]
[109] Annexure A, P8 L280.
[110] Annexure A, P8 L281-282.
[111] Annexure A, P8 L288-289.
A further difficulty with respect to counts 1 and 2 lies in the shifting accounts as to when they might have occurred. It might be recalled that RD was about 8 and a half years when interviewed, so she was 8 in the middle of the year and at Easter of 2014. She was 7 for the greater part of the 2013 year, and aged 6 for the greater part of 2012. It is on this subject that she is most inconsistent.
The account given in respect of count 3 is a different matter altogether. The response to the question ‘Is this the only time Uncle PR has done something like this to you?’,[112] was instantaneous and to outward appearances, genuine. The details she provides are very consistent. The knowledge that ‘he put his fingers in his mouth before he did it’ and ‘he just put them on his tongue’, furnishes the very kind of esoteric knowledge that one so young is unlikely to hold, unless her account was a true one.[113] RD would have been 4 years old for the greater part of 2010, and CD was approaching the age of 6 in early September of that year. The question of penetration of the vagina on this earlier, as suggested by RD, is discussed later.
[112] Annexure A, P17 L650-660.
[113] Annexure A, P22 L821, P19 L704.
The Interview of CD
As noted earlier, CD was brought from a party for interview at short notice and without her knowing what it was about. The interview commenced at 2.05pm and concluded at 2.55pm. She appears to understand the process, but she was more animated and fidgety than her younger sister. She confirmed that each sister stayed on separate and consecutive nights with their grandmother in the caravan park.[114] She was quite spontaneous when indicating on the body where ‘there was two’ touching in the vaginal area.[115] And she provided a significant amount of highly unusual detailed behaviour, more than likely to be true than imagined.
[114] Annexure B, P3 L112.
[115] Annexure B, P6 L210-P7 L235.
A more complex issue is that of the identity of the perpetrator. RD at first consistently maintained that nothing untoward had happened to her at all, even by ‘anyone in [her] family’.[116] Immediately thereafter RD grew more guarded and indirect. At first she failed to comply with the suggestions ‘we need to know if something has been happening to you’, and ‘maybe you should tell a grown up about it?’.[117] But then, for no obvious reason that is apparent from watching the video, she volunteers ‘I think there is something, I just can’t remember … the name though’. She continues then to prevaricate for a time on the subject of identity, whilst providing further details of the alleged events.
[116] Annexure B, P4 L120-156.
[117] Annexure B, P4 L135-137.
Senior Constable Dempster returned to the question ‘Do you think you could tell me who this person was?’, and very soon thereafter came the response ‘Oh now I do, my Uncle PR.[118] So far as one can tell, this revelation was quite genuine and spontaneous. It is not however possible to discern whether this response was explicable on account of a genuine lapse of memory, or came about by an intuitive or natural resistance to implicate a close relation.
[118] Annexure B, P9 L336-342.
Elements
An indecent assault contrary to s 56 of the CLCA, is an assault accompanied by, or committed in circumstances of indecency. The offence of an aggravated indecent assault consists of three essential ingredients, each of which must be proven by the prosecution beyond reasonable doubt. These are:
Firstly that the accused assaulted RD. An assault is the intentional, deliberate and unlawful application of force to another person. Such force need not be great or cause any injury, so that any touching or handling of the breast or of the vagina is sufficient. There can be no doubt that if the allegations as related by RD are proven to the requisite degree, that this element is satisfied as to both counts.
Secondly the assault must be accompanied by, or occur in circumstances of indecency, that is the indecent circumstances must involve a sexual connotation: R v C, M.[119] Indecency occurs when the kind of conduct involved is by any reasonable contemporary standard, indecent. Here again once the facts are proven as alleged, this element is satisfied as to each count.
[119] (2004) 246 A Crim R 21.
Thirdly the circumstance of aggravation, namely that RD was under the age of 14 years at the time of each alleged offence must be proven. There is no contest that this was the case here.
There is no obligation on the prosecution to prove the accused knew or was reckless as to whether RD was under the age of 14 at the time now that the additional feature of aggravated was deleted in counts 1 and 2 of the Information. Given his close relationship with the family, there could be no doubt in any event that he knew as much.
There are two ingredients of the offence of unlawful sexual intercourse under s 49(1) of the CLCA, each of which the prosecution must prove beyond reasonable doubt. First, that the accused had sexual intercourse with the complainant, and secondly, that at the time the complainant was under the age of 14 years. Sexual intercourse includes penetration of the vagina or labia majora by any part of the body of the accused: s 5 CLCA. Intercourse is sufficiently proven upon proof of penetration: s 73(1) CLCA. Any degree of penetration is sufficient but there must be penetration, and penetration for the slightest period of time is sufficient: R v Abraham,[120] R v Murphy.[121] Consent on the part of the complainants is no defence to this charge and is therefore irrelevant.
[120] (1998) 70 SASR 575.
[121] (1988) 52 SASR 186.
The second ingredient of the charge to be proven beyond reasonable doubt, is that the complainant was under the age of 14 years at the time the sexual intercourse occurred. As seen, this is not in dispute.
The Charges - Analysis
Counts 1 and 2
The analysis undertaken earlier demonstrates that RD was for the most part consistent in her account of the events to which these charges relate, the places where they occurred and the nature of contact with the general genital area on the lounge and in the bedroom at the Willaston home. The one exception of consequence is that she added, more as an afterthought, that there was another touching to the genital area, in the lounge room after she put her pyjamas on and before she returned to the bedroom. This was before the allegation on count 2 is said to have occurred. It is surprising that she did not refer to this earlier as she had canvassed the events in some detail, during the course of the interview.
Of more significance is the degree of variance as to the dates when these events occurred. The circumstances are not referable to any particular event or other temporal circumstances. At first they were said by RD to have been earlier in 2014. That later changed to 2013 and perhaps even 2012. The vague references to Easter or Christmas fit awkwardly with RD’s other references in point of time.
Of course proof of the precise time or date is not an element of any of the charged offences. Nonetheless it remains necessary for the prosecution to clearly identify and prove the particular occasion before a finding of guilty is returned: R v Pfitzner.[122]
[122] (1976) 15 SASR 171.
There is no corroboration of either charge. There is a degree of forensic disadvantage given the capacity of the accused to provide limited instructions, especially when the allegations are capable of encompassing distant rather than recent events. The evidence of complaint to the grandmother is broadly consistent with touching to the genital areas, but it is not so specific as to relate to one charge or the other. It would be of more weight had RD confined herself to allegations earlier in 2014, and hence proximate to September 2014 when her complaint first came to light.
The accumulative effect of the above deficiencies in the material available in proof of counts 1 and 2, raise substantial questions as to its reliability in proof of these two charges. An appreciable degree of caution is required because that material was for the greater part given by way of a statement, falling short of ‘evidence’ as such, with the balance unsworn. The additional necessity to scrutinise the material with special care, particularly when there is an issue of contemporaneity with the alleged occurrences as is the case here, leave the court with such unease that it cannot be satisfied beyond reasonable doubt these two charges, separately considered, are proven.
Count 3
The same kind of material and the same need for caution and circumspection applies when it comes to an analysis of count 3. At the same time it is necessary to take into account the above considerations in assessing the truthfulness and reliability of RD when it comes to count 3: R v Markuleski,[123] R v MAS.[124]
[123] (2001) 52 NSWLR 82, [186].
[124] (2013) 118 SASR 160, [86]-[94].
Even so the material available in proof of this count is different in material respects to that just referred to, in that here there was no suggestion of leading. This allegation emerges completely spontaneously without any sense of prompting or encouragement. It did not require teasing out as it did with respect to counts 1 and 2. As mentioned earlier, the reference to moistening of the fingers, is barely something a child of these tender years (at the time of the events and at interview) could make up or imagine. There is nothing inherently unreliable or intrinsically untenable in the account of RD. Even though there is no corroboration, the material available here does not suffer from the infirmities that infect proof on counts 1 and 2. The doubts engendered with respect to those counts owing to faulty, or inaccurate or inconsistency, are not present on count 3 and do not therefore infect RD’s truthfulness or reliability with respect to it: R v PMT.[125]
[125] (2003) 8 VR 50, [31].
The evidence of complaint is on the other hand incomplete on the issue of penetration. As to this issue, the statements of RD were somewhat vague and imprecise, as might be expected of one so young. Taken at its highest, the assertion she ‘could feel his fingers … go inside … just a little bit’, is incapable of supporting the fact of penetration beyond doubt.[126]
[126] Annexure A, P20 L340-374.
This conclusion is reinforced by the fact that RD was not medically examined. It is entirely possible that such an examination would prove neutral or inconclusive. By the same token, it could have just as easily proved conclusive of penetration, if for example the hymen was ruptured. The unexplained failure to conduct an examination, and consequently that no such evidence is forthcoming, therefore forensically disadvantages the accused on the issue of penetration.
Despite the misgivings in respect of the material on counts 1 and 2, the material available in proof of count 3 is much more persuasive and convincing, to the point that there can be no reasonable doubt the accused handled the external vaginal area of RD in the period between which she was 4 years old and when CD had turned 6, at the Brahma Lodge address. On this basis he is found not guilty of the charge of unlawful sexual intercourse, but guilty of an aggravated indecent assault of RD between 9 March and 13 September 2010, by placing his fingers on her vagina pursuant to s 75(b) of the CLCA: R v D, WD.[127]
[127] (2013) 116 SASR 99.
Counts 4 and 5
The material in respect of these counts requires separate consideration, because of the different means of penetration alleged in each. As already noted, CD was forthcoming with considerable detail of a kind that was not likely to be within her knowledge, unless such events had in fact taken place. The question of dressing in strange clothes is more puzzling.
The critical antecedent question is however, the identity of the perpetrator. When one examines carefully the way in which the disclosure against the accused unfolded, a significant doubt continues to linger over whether it was the accused who committed these acts upon her.
Of course her inability or reticence to name him might be attributable to fear, or even an unconscious or even deliberate impulse rendering her reluctant to blame her Uncle. Then again, she did not suggest during the Dempster interview any particular difficulty in doing so, but rather that ‘I forgot to tell Nanny because I was … too into the game …’.[128] As suggested earlier, it is not possible to separate the options.
[128] Annexure B, P31 L1171-1172.
The inescapable fact is that the accused was so well known to the family, and so well known to CD, that there is insufficient reason to explain why she did not, or was not prepared to nominate him at the outset. She had already opted to speak out about what occurred to her. The ostensibly spontaneous change of mind when she appears comfortable with the situation, is as equally attributable to the truth of the matter as it is with a false allegation, for reasons unknown directed to her Uncle. The number of times and the period over which she continued to be unable to name him, are so significant that they do not permit the conclusion beyond reasonable doubt that the accused committed these acts upon her. Expressed in another way, there is a reasonable version of the events consistent with innocence, even though the other evidence did not point to any other perpetrator.[129]
[129] T81.34-82.24, T93.27-.31, T164.34-165.11, T211.2-.30.
It is even more inexplicable why CD was not medically examined than it is in the case of RD, because of the more extensive allegations of penetration. The consequent forensic disadvantage is potentially significant, but that need not be considered any further given the above conclusions. In light of this conclusion, the occasion does not arise to evaluate whether ‘as a matter of human experience the levels of similarity between the complainants might be expected if the complainants … had independently concocted or imagined the offending …’: R v C, CA.[130]
[130] [2013] SASCFC 137, [65].
Conclusion and Orders
For the above reasons, the considerable doubts that emerge and the need to assess the material in respect of counts 1 and 2 carefully, there must be acquittals on these counts. Significant doubts remain as to the identity of the perpetrator in respect of the events on counts 4 and 5, so that the accused is entitled to be found not guilty of these counts as well. Despite these misgivings, and despite the necessary degree of caution engaged, the accused is found guilty on count 3 of the alternative verdict of aggravated indecent assault. Verdicts are to be entered accordingly.
APPENDIX A
1 INTERVIEW OF: [RD]
2
3CONDUCTED BY: SC1C Nicolle DEMPSTER
4
5at GAWLER Police Station
6
7on Saturday, 18 October 2014
8
9Q It’s 11.35 on Saturday, 18th October, 2014. Nicolle DEMPSTER, Family Violence Intervention Officer for GAWLER Police. I’m at the GAWLER Police Station and I’m sitting with [R]. [R], I’ve got the camera going now like I told you because I’m going to record our talk today. Because I’m recording can you talk up in a nice loud voice when we speak so we can hear you on the camera and can you tell me your whole name?
15
16A [RJD]
17
18Q [RJD], can you talk in a nice loud voice for me, yep and just move your chair forward for me a bit, then we can, that’s right now we can see your face up on the camera. Okay so [RJD] and how old are you, [R]?
21
22A Eight
23
24Q You’re eight and do you know your birthday?
25
26A March the ninth
27
28Q March 9th
29
30A March the ninth
31
32Q Can you talk a little bit louder, you show me your loud voice, tell me your name in your loud voice for me?
34
35A [R]
36
37Q [R] ok I’ll move that a little bit forward so we can hear you. Okay now [R], Mummy has bought you to the Police Station today do you know why she brought you to the Police Station?
40
41A Um, I think I said something school
42
Page 1 of 30
43Q You think you said something at school?
44
45A That’s what she told me
46
47Q Do you know what you might have said something about?
48
49A No
50
51Q No, okay, so I’m going to take some, I’m going to be doing some writing while we’re talking and I’m going to be asking you some questions and I’m going to be writing down your answer and it’s going to be on the camera as well. If I ask you something and you don’t want to tell me that’s fine, all right or if I ask you something and you don’t understand what it is that I’m asking you, it’s okay for you to say I don’t understand or I don’t get it because you’re not in trouble okay it’s just that I’ve heard that something happened to you and I want to find out about what happened to you, okay so I heard that you said something to Grandma that that someone is doing something to you that you don’t like. Can you remember having a chat with, do you call her Grandma or Nanna?
62
63A Nanny
64
65Q Nanny and what’s, do you know what Nanny’s name is?
66
67A [M]
68
69Q [M] and Nanny, is Nanny married?
70
71A No but she’s getting married.
72
73Q She’s getting married, who is Nanny getting married to?
74
75A [D]
76
77Q To [D], okay, so you’ve got Nanny is [M] and she’s marrying [D] and who else is in your family, who, who do you live with?
79
80A Mum and my Stepdad, [R]
81
82Q So what’s Mum’s name?
83
Page 2 of 30
84A [W]
85
86Q And your Stepdad is [R]?
87
88A Yes
89
90Q And who else lives in your house?
91
92A My Sister, [C]
93
94Q [C] and how old is your Sister, [C]?
95
96A She is ten
97
98Q And how old are you?
99
100A Eight
101
102Q You’re eight, so there is two years between you and [C]?
103
104A She turned ten this year
105
106Q Did she?
107
108A I wasn’t there for her birthday I went to my friend’s birthday party
109
110Q Oh and you weren’t there for your Sister’s birthday?
111
112A No
113
114Q Did [C] have a party?
115
116A Not really
117
118Q No?
119
120A She just has a little party that we do every year
Page 3 of 30
121
122Q Okay
123
124A With the family
125
126Q Little family party, it’s nice to have family parties isn’t it? And you’ve got any other brothers or sisters apart from [C]?
128
129A Um, I got [L] and [J], [L] is 2 and [J] is 4
130
131Q Hhm hhm and do they live with you?
132
133A Yes and my Poppa that use to live with Nanny lives there and so does my dog, Buddha, which is my, used to be my Mum’s dog and now it’s my Poppa’s dog.
136
137Q And so Poppa, what’s Poppa’s real name if you’re not calling him Poppa?
138
138A Um, we can’t call him his real name but it’s [M]
140
141Q It’s [M]. Yeah, it’s right that you call him Poppa, but I couldn’t call him Poppa could I? No so that’s fine and he lives with you and Mum and [R]?
143
144A Yeah
145
146Q And do you know where you live?
147
148A [WILLASTON]
149
150Q [WILLASTON] and do you go to school?
151
152A Yes
153
154Q Yep, whereabouts do you go to school?
155
156A [GPS]
157
158Q And what year are you in?
159
Page 4 of 30
160A Year 3
161
162Q Year 3, do you like school, (nodded) yeah, who is your teacher?
163
164A Miss [A]
165
166Q Miss?
167
168A [A]
169
170Q [A], can you talk up a little bit louder for me, do you think, Miss [A] and what’s your favourite subject?
172
173A Um, I don’t know
174
175Q Don’t know, do you like maths?
176
177A A little
178
179Q What about spelling?
180
181A Sometimes
182
183Q Are you a good reader?
184
185A Not really
186
187Q Do you like reading?
188
189A Sorta
190
191Q It’s a bit hard to get the hang of isn’t it. (nodded) All right so anyone else in your family?
193
194A Um, I don’t think so well
195
196Q Do you have any?
197
Page 5 of 30
198A Well my real Dad he doesn’t live with me
199
200Q Your real Dad?
201
202A Yeah
203
204Q What’s your real Dad’s name, do you know?
205
206A [T]
207
208Q [T]
209
210A My brothers and Sis, um, my brothers he doesn’t, um they call him [T]
211
212Q [T]?
213
214A Because they weren’t alive, they weren’t alive when he was like lived with us
215
216Q Okay so your Dad, [T], is he your Dad and who else’s Dad?
217
218A [C]’s
219
220Q [C]’s but he’s not [L]’s or [J]’s Dad?
221
222A No
223
224Q And do you have any other brothers or sisters?
225
226A I have a stepsister and her name is [C] and I have a cousin named [I].
227
228Q And how old is [C] do you know?
229
230A No I think she’s a little bit older than [C]
231
232Q Do you
233
234A We usually don’t see her
Page 6 of 30
235
236Q You don’t see her a lot?
237
238A No
239
240Q No okay and do you have any Aunties or Uncles that you see?
241
242A Yes, Uncle [N] and Uncle [P]
243
244Q Okay
245
246A And I’ve got [B] and [A], they’re my Aunties, which is [R]’s Sisters
247
248Q So [B] and?
249
250A [Abby],
251
252Q They’re [R]’s Sisters, yeah, so tell me about Uncle [N] and Uncle [P], where do they live?
254
255A I don’t know I don’t really know but I know that I’ve got a cousin, [B], which is Uncle [N]’s son and I’ve got two dogs, Jady and Patch
257
258Q Whose got the dogs?
259
260A Uncle [N], Uncle [P] lives with him though, he’s going to jail for maybe about a year because he did some naughty stuff
262
263Q Uncle [P] is going to jail?
264
265A No, Uncle [N]
266
267Q Oh okay, do you know what naughty stuff Uncle [N] did?
268
269A It was Uncle [P]
270
271Q So [N] is going to jail for something that Uncle [P] did?
272
Page 7 of 30
273A No, Uncle [N] just said some naughty words and he got in jail for a little while from the Police
275
276Q Oh okay and did Uncle [P] do something naughty?
277
278A No
279
280Q No, okay has Uncle [P] ever done anything naughty to you, (nodded) do you want to tell me about that? (shake head) Okay because I heard that Uncle [P] did something to you that you didn’t like? (nodded) Yeah and that you said when you told, can you remember who you told?
284
285A Nanny
286
287Q You told Nanny and Nanny said that she would try and make it stop, (nodded) well that’s part of why I’m talking to you. Because if you tell me what, what happened we can try and make it a little bit better for you. Will you trust me to tell me what happened?
291
292A Mmmm
293
294Q Yeah?
295
296A He was touching me
297
298Q He was touching you? Can you tell me where he touched you?
299
300A In my naughty parts
301
302Q Okay now because I’m not quite sure what you mean by naughty parts, because everyone has different words for different parts of their body I’ve got a picture here, it’s not a really good picture, it’s a picture of a little girl, do you think you could tell me, you could show me with the pen where your naughty parts are? (nodded) Yep
307
308A There and there (indicated on drawing)
309
310Q Can you put a mark there, maybe a cross or something there, okay, now can you write your name?
312
313A Yeah
Page 8 of 30
314
315Q Yeah oh that’s good writing.
316
317A I did it wrong.
318
319Q Okay all right so do you know any other names for that part of the body? What do you normally call that part of your body?
321
322A The naughty part
323
324Q Naughty part, have you heard anyone else call it another word? (nodded) Yeah, what other word have you heard?
326
327A I can’t remember
328
329Q You can’t remember, all right, so can you tell me a little about when Uncle [P] touched you in your naughty part?
331
332A On the last time he slept over.
333
334Q When was that?
335
336A On, I can’t remember it was this year though
337
338Q This year okay so he slept over where?
339
340A At our house
341
342Q At your house and what happened?
343
344A I was just sitting on the couch next to him and he put his hands down my pants.
346
347Q So he put his hands down your pants? Can you remember what you were wearing?
349
350A My pyjamas
351
352Q Your pyjamas, what sort of pyjamas were they?
Page 9 of 30
353
354A They, it was a white top with a cupcake on it and I think it was purple shorts with white love hearts.
356
357Q Purple shorts with white love hearts, they sound pretty?
358
359A I don’t have them anymore they got too small.
360
361Q Okay so you don’t have the anymore, do you know where they went?
362
363A Um, I think they went to maybe [S]
364
365Q Who is [S]?
366
367A She’s my friend, she’s, her Mum is sort of like my aunty
368
369Q Okay so you think maybe Mum gave your too small clothes to her?
370
371A Yeah and or maybe it went to [M] which is [H] and [J]’s, [H]’s Sister and [H] is [M]’s Sister and and and [M] is [M] Sister as well I mean brother as well and [J] is their Mum and [M] is their Dad.
374
375Q So you were sitting on the couch at home, whereabouts is the couch?
376
377A It’s the tv is it’s the tv is in front of it there and then the couch is there
378
379Q Okay?
380
381A And it goes up like that as well
382
383Q What do you mean up like that?
384
385A It goes like that
386
387Q Oh so the couch is in an L, like an L shape, goes around the corner?
388
389A Cause we’ve got lots of people in our family
390
Page 10 of 30
391Q So is it a big couch? (nodded) So you just nodded yes for me then didn’t you? So because we can’t hear your nods on the camera, do you think instead of nodding you can say yes or no for me for the camera? Yes?
394
395A Yes
396
397Q So you said that Uncle [P] was sitting on the couch next to you, so how close together were you sitting?
399
400A Um, I can’t remember
401
402Q You can’t remember and what time of day did this happen?
403
404A Close to night time
405
406Q Close to night time, so because you already said you were wearing your pyjamas, so can you tell me what had happened that night had?
408
409A Um, I can’t remember
410
411Q Had you had tea?
412
413A Um, I think so
414
415Q You think so
416
417A I’m not sure
418
419Q And you were sitting next to Uncle [P] (nodded) and what did he do then?
420
421A He um he our friends were over and then I was playing chasy in the house and then he tickled my foot
423
424Q Sorry you were playing chasy?
425
426A In the house and then he tickled my foot
427
478Q Yeah he tickled your foot? (nodded) Yep where were you when he tickled your foot?
Page 11 of 30
430
431A I was on the couch as well
432
433Q On the couch and what did he do after he tickled your foot?
434
435A Um, I think then he kept tickling
436
437Q And did he keep tickling?
438
439A Yeah
440
441Q Yep and what happened then?
442
443A And then he put his hands in my pants.
444
445Q Was that while you were sitting down?
446
447A Ahuh but I didn’t have my pyjamas on yet
448
449Q You didn’t have your pyjamas on yet?
450
451A No
452
453Q So what were you wearing when?
454
455A I was wearing my day clothes
456
457Q Okay and what day clothes did you have on?
458
459A I think it was some tights and I can’t remember what top I had on, it was pink tights
461
462Q Pink tights, did you have anything over the tights?
463
464A No
465
466Q No just tights and a top?
467
Page 12 of 30
468A Yeah
469
470Q And when Uncle [P] put his hands down your pants what did he do?
471
472A Um, he touched it
473
474Q Touched it, so what do you mean by it?
475
476A He touched the naughty part
477
478Q Can you tell me how he touched it?
479
480A He just touched it with his hands
481
482Q Okay what part of his hands touched it?
483
484A His fingers
485
486Q And did he do anything with his fingers?
487
488A Not really he just rubbed his fingers on it
489
490Q Rubbed his fingers on it, did, did he, his fingers touched your skin or did you have undies on?
492
493A Mmm
494
495Q So did he touch on your undies or under?
496
497A Under
498
499Q Under your undies, so his fingers were on your skin. (nodded) And did his fingers stay on top of your rude bits or did his fingers go anywhere else?
501
502A No he just rubbed them around
503
504Q Rubbed them around, can you tell me what you mean by that?
505
Page 13 of 30
506A He just rubbed them around
507
508Q Okay how long did he do that for?
509
510A A little while
511
512Q Did he say anything to you?
513
514A No he doesn’t like talking that much
515
516Q Did you say anything?
517
518A No
519
520Q Did you like what he was doing, (shake head) did you try and do anything or say anything?
522
523A Not really
524
525Q No. So he had his fingers and he was touching you and he was rubbing them around, what did he do then?
527
528A Um like Mum told me to get my pyjamas on and I went to my room and got my pyjamas on.
530
531Q Where was Mum when he was touching you?
532
533A In her room
534
535Q Was there anyone else around when you and Uncle [P] were sitting on the couch? (shakes head) But there were other people in the house? (nodded) Who else was in the house?
538
539A Mum and [R] and [C] and [J] and [L]
540
541Q So everyone was home?
542
543A Yeah
544
Page 14 of 30
545Q So it’s [J] isn’t it, [J]?
546
547A Yeah
548
549Q Okay what did Uncle [P] do or say when Mum told you to put your pyjamas on, did he say or do anything then?
551
552A He just took his hands out of my pants and then I went to my room
553
554Q So you put your pyjamas on (nodded) and then you said to me that earlier that when you were wearing your pyjamas he put his hands down your pants, (nodded) can you tell me about that time?
557
558A Um well then I told him to stop it and he didn’t and I, I grabbed his arm and pulled it out and then I ran to my room under the bed and then he just pulled me out and pulled my pants down and then started touching it again.
561
562Q So that was when you had your pyjamas on so that was, was that the same night?
564
565A Um, yes
566
567Q So, so he did it to you while you had your day clothes on (nodded) and then you put your pyjamas on (nodded) and it was a little bit later that night was it and he tried it again and did he actually touch you that time before you pulled his arm out?
571
572A No
573
574Q So you grabbed his arm and you told him to stop it (nodded) and you ran to your room, (nodded) so what happened when you went to your room, what did you do?
577
578A I went under the bed and then he pulled me out.
579
580Q So he went to your room too did he? (nodded) And what did he do, how did he pull you out from?
582
583A He grabbed my leg
584
585Q Which leg?
Page 15of 30
586
587A Um I don’t know
588
589Q And he pulled you out? Where did he pull you to?
590
591A Um next to the bed
592
593Q And what did he do then?
594
595A He pulled my pants down and I tried screaming and then he put his hand over my mouth and then he was touching me again.
597
598Q So when you say he touched you again, so what did he touch?
599
600A The naughty part
601
602Q And what did he touch your naughty part with?
603
604A His hands
605
606Q What part of his hands?
607
608A His fingers
609
610Q And can you tell me what he did when he touched it, with his fingers?
611
612A He just rubbed it around
613
614Q Did he only touch the top of your naughty part or did he touch any other part of your body?
616
617A Only the top
618
619Q The top do you know how long he did it for?
620
621A No
622
623Q And what were you, did you do anything while he was touching you?
Page 16of 30
624
625A Um, no I tried to stop him
626
627Q Yeah how were you trying to stop him?
628
629A I was trying to push his arms out the way
630
631Q And did you, did you manage to push him out the way?
632
633A No
634
635Q What happened then?
636
637A Then he did it and then he stopped and then I went back out on the couch and he didn’t do it again and then Mum told me to go to bed.
639
640Q So you told me that when he pulled you out from under the bed that he pulled your pants down, (nodded) what did he do with your pants?
642
643A Um he, he only left them on a little bit.
644
645Q So he still had them on your legs, (nodded) yeah, can you remember what Uncle [P] was wearing?
647
648A Um, his day clothes, he doesn’t have pyjamas.
649
650Q Is this the only time Uncle [P] has done something like this to you?
651
652A No I, when I sleep, when I sleeped at my Nanny’s he did it to me.
653
654Q He did what to you?
655
656A He touched it
657
658Q Was that time before or after the time you just told me with your pyjamas?
659
660A No it was when I was littler
661
Page 17 of 30
662Q When you were littler, can you remember that time?
663
664A Yeah
665
666Q Yeah can you tell me about that time, how old do you think you were?
667
668A Um, I think I was about four
669
670Q What makes you think that you were about four?
671
672A Because [C] was almost like six
673
674Q What happened that time at Nans, was that Nanna [M]’s house?
675
676A Mmm, she doesn’t live there anymore she lives at the snow up in NSW
677
678Q Okay so whereabouts at Nanna’s house did that happen?
679
680A In my room where me and [C] slept
681
682Q Sorry?
683
684A Where me and [C] slept
685
686Q Okay
687
688A [C] was asleep
689
690Q So [C] was asleep so do you know what time it happened?
691
692A No
693
694Q No, was it day time or night time?
695
696A Night time
697
698Q Night time how long after going to bed?
Page 18 of 30
699
700A Um I can’t remember
701
702Q Tell me what you can remember?
703
704A That he put his fingers in his mouth before he did it
705
706Q So you saw him put his fingers in his mouth, what did he do then?
707
708A He touched it
709
710Q He touched?
711
712A The naughty part
713
714Q What did he touch your naughty part with?
715
716A His fingers
717
718Q How many fingers do you think he used?
719
720A Two
721
722Q Do you know which fingers?
723
724A These two
725
726Q What did he do with his fingers?
727
728A He just touched it and he put them in the inside
729
730Q Put his fingers in the inside, what do you mean by inside?
731
732A The inside of the naughty part
733
734Q So how do you know it was inside?
735
Page 19 of 30
736A The inside of it
737
738Q You could feel that could you, you could feel his fingers go, go in, mmm, how far inside your naughty part did it go?
740
741A Just a little bit
742
743Q Sorry?
744
745A Just a little bit
746
747Q Did he say anything to you?
748
749A No
750
751Q No, did you say anything to him, no, what were you, were you doing anything while he was doing that to you?
753
754A I was just sitting there
755
756Q You were sitting, where were you sitting?
757
758A On my bed
759
760Q Okay how did you come to be sitting on your bed, can you tell me, were you and [C] already in the room and he came in or what?
762
763A Um, no, before he did it um well and then me and [C] were in our beds and then he was wearing a mask and then Nanny wasn’t and they ran in the room and he scared us and then they came to say goodnight and then I was trying to get to sleep and then he came in and took the blanket off and me
767
768Q So he was wearing, he and Nanny came into the room and he was wearing a mask and then he wasn’t, what sort of mask can you remember?
770
771A Um, no
772
773Q You said that he scared you, was it a scary mark or a funny mask?
774
Page 20 of 30
775A It was sort of like a funny and scary mask.
776
777Q Okay can you remember colours or anything?
778
779A It was brownish it sort of looked like a monster funny face
780
781Q Do you know why he had the mask?
782
783A No
784
785Q No was there anything special that he had the mask for?
786
787A No
788
789Q No so he came in the room, scared you and then he and Nanny left and you were trying to get to sleep but you couldn’t?
791
792A Hhm hhm
793
794Q Okay so he came in and took the blanket off you?
795
796A Mmm
797
798Q Was the light in the bedroom on or off at the time?
799
800A It was off
801
802Q It was off?
803
804A But the little light was on
805
806Q The little light, what’s the little light?
807
808A A night light
809
810Q A night light and the night light was in your room, was it?
811
812A Hhm hhm, it was in between the bedside cupboards
Page 21 of 30
813
814Q And could you see much by the light?
815
816A Sorta
817
818Q Because you told me that you saw him put his fingers in his mouth can you tell me what he did with his fingers?
820
821A He just put them on his tongue
822
823Q Do you know why he did that?
824
825A No
826
827Q No, can you remember what he was wearing?
828
829A No
830
831QNo, okay and can you remember what you were wearing?
832
833A My pyjamas
834
835Q Can you describe your pyjamas to me?
836
837A I can’t remember it was a long time ago
838
839Q Were they, do you have summer pyjamas and winter pyjamas? Do you know whether you had your summer pyjamas or winter pyjamas on?
841
842A I think I was wearing the summer ones
843
844Q Okay can you remember anything else about that day, what time of year it was or what else can you remember anything else happening?
846
847A No
848
849Q No, can you remember why you were staying at Nan’s house that night?
850
Page 22 of 30
851A No, we stayed there for a long time though
852
853Q You did?
854
855A Yeah
856
857Q At that time?
858
859A Mmm
860
861Q Do you know why you stayed there for a long time?
862
863A No we did have a house though we had the same house that we are in now
864
865Q Okay
866
867A I’ve only lived in that house
868
869Q So did, was anyone else that you and [C] staying did Mum stay at Nanna’s at the same time or was it just you and [C] stayed at Nanna’s for a long time?
871
872A Yeah and they had their dog and I can’t, I think it was maybe Brownie or um it wasn’t Bootie or Lulu because they’re their new dogs
874
875Q Not Bootie?
876
877A No and not Lulu
878
879Q Bootie and Lulu
880
881A They’re really crazy dogs
882
883Q Are they?
884
885A I camped with Nanny once it was this year and it wasn’t that long ago
886
887Q That this happened?
888
Page 23 of 30
889A No, he wasn’t with them, they were just staying in the tents for a little while so we could come down and see them because they weren’t that far away
891
892Q Oh that was this year? Was that the last time that you saw Nanny?
893
894A No
895
896Q When you stayed in the tents with them?
897
898A Yeah
899
900Q And when you stayed in the tents with Nanny is that when you had a chat to her about what Uncle [P]
902
903A That was when we were in the shower
904
905Q Okay so you’ve told me about the time when you think you were about four at Nanny’s house when he did this to you and that’s when he put his finger inside you, then you told me about a time this year that he did it to you?
908
909A It wasn’t this year I think it was maybe last year
910
911Q What, when you had those pyjamas on?
912
913A Yeah that other one the other page that was a couple of years ago
914
915Q The time that you told me that you had your cupcake pyjamas on?
916
917A No the other one
918
919Q The other one, yeah, when you were at Nanny’s?
920
921A Mmm
922
923Q Yeah so you’ve told me about a time at Nanny’s and that was a few years ago?
925
926A Hhm hhm
927
Page 24 of 30
928Q And then you’ve told me about a time this year when you had your cupcake pyjamas on so when do you think this year when you had your cupcake pyjamas on, when do you think that that happened, can you remember it, can you think of what time of the year that was?
932
933A It was, um, it was close to Christmas or Easter
934
935Q What makes you think that it was close to Christmas or Easter?
936
937A Um, because it was sort of after the middle of the year
938
939Q Okay has Uncle [P] ever done any other things to you, no, so it was just those times? What about, has he ever done anything to [C]?
941
942A No
943
944Q No, have you ever seen him do anything like this to [C]? Did you ever tell [C] about it?
946
947A No I think I only told her once
948
949Q Okay so can you tell, I’d like to try and work out when it happened this year, when you had your cupcake pyjamas on?
951
952A It was last year
953
954Q It was last year? So how old do you think you were?
955
956A Um, seven
957
958Q When you were seven?
959
960A I turned eight this year
961
962Q Okay so you were seven
963
964A I think so or six
965
Page 25 of 30
966Q And that was at your house and you were sitting on the couch. Can you remember anything else happening around that time, did you go anywhere or did something happen?
969
970A No
971
972Q No, do you know what day of the week it might have been?
973
974A No I think it was maybe the weekend because I did go to school
975
976Q You didn’t go to school?
977
978A I did, I went to school
979
980Q When did you go to school?
981
982A Monday, Tuesday, Wednesday, Thursday, Friday
983
984Q Okay so it didn’t happen on a day that you were going to school?
985
986A I think it didn’t
987
988Q Okay and how did it make you feel?
989
990A Um, um I can’t remember
991
992Q Can’t remember? Because Nanny told us that you weren’t happy about it happening and you wanted it to stop and I’ve been told you’re too scared to tell Mum? (nodded) Yeah, are you too scared to tell Mum? (nodded) What, what do you think Mum might say?
996
997A Um, she might tell Uncle [P] off and get upset at him
998
999Q Do you think Uncle [P] needs to be told off?
1000
1001A I think so
1002
Page 26 of 30
1003Q Yeah the time of the cupcake, because you said the time when you were at Nanny’s when he put his fingers inside, he put his fingers inside you, the time of the cupcake did he put his fingers inside you that time?
1006
1007A No
1008
1009Q No because he did it to you, he touched you twice that day didn’t he?
1010
1011A Hhm hhm
1012
1013Q Did he put his fingers inside you any of those times?
1014
1015A No
1016
1017Q No, so he’s done it to you, he’s touched you three times?
1018
1019A Actually four
1020
1021Q Four times, yeah, when was the fourth time?
1022
1023A When I was, I ran up to my room
1024
1025Q When you ran up to your room?
1026
1027A Mmm
1028
1029Q Okay you want to tell me about that one?
1030
1031A No well when I ran up to my room, I tried to go into the backside of the under the bed
1033
1034Q Was that when he pulled you out by the leg?
1035
1036A Yeah
1037
1038Q So he did it once to you at Nanny’s house and then when you were at your house on that night, once when you were on the couch and when you went into your room?
1041
Page 27 of 30
1042A No, actually twice on the couch
1043
1044Q Twice on the couch. Okay so that would be the fourth time, so I’ve got one time on the couch after he was tickling you and when you had your pink tights on
1047
1048A That’s when he was tickling me
1049
1050Q That’s when he was tickling you and he touched you, put his hands down your pants and touched you that time and then Mum told you to get your pyjamas on and you went there, that’s right and then you told me that you’ve gone back to the couch afterwards with your pyjamas on?
1054
1055A Yeah
1056
1057Q Yeah. That’s where I was confused, so one with tights on and you went and got your pyjamas on and he did it again and then you’ve run to your bedroom and he’s pulled you out from under the bed, is that right, have I got it right now?
1061
1062A Yeah
1063
1064Q I’m glad you’re switched on,
1065
1066A We went to school yesterday
1067
1068Q You went to school yesterday,
1069
1070A Friday
1071
1072Q what did you do at school yesterday?
1073
1074A We were finishing off homework and we did a spelling in the morning then we while I can’t really remember what we did after that
1076
1077Q Okay have you not been at school this week?
1078
1079A I have, I’ve been at school all week
1080
1081Q All week
Page 28 of 30
1082
1083A I can’t really remember though
1084
1085Q Okay have you told anyone else about what Uncle [P] has done to you?
1086
1087A No. Next Friday is sports day
1088
1089Q Is it, do you have houses or teams?
1090
1091A Yeah I’m in the red team
1092
1093Q You’re in the red team?
1094
1095A Which is Sturt
1096
1097Q I hope the red team wins sports day, are you in any races?
1098
1099A Um, I think so, yeah there’s a race where you win a ribbon for first place, third place and last I think.
1101
1102Q Okay
1103
1104A I didn’t win one last year
1105
1106Q Okay is there anything else that you think that we need to know about Uncle [P]?
1108
1109A No I don’t know
1110
1111Q Has Uncle [P] ever tried to get you to touch him?
1112
1113A No
1114
1115Q No, he’s just touched you, yeah, and when he’s touched you he’s had his clothes on? It’s just him putting his fingers in your rude part on your skin?
1117
1118A Yeah
1119
Page 29 of 30
1120Q Yeah okay anything else that you want to tell me about? Okay it’s 12.20 and that concludes this interview.
Page 30 of 30
APPENDIX B
1INTERVIEW OF: [CD]
2
3CONDUCTED BY: SC1C Nicolle DEMPSTER
4
5 at GAWLER Police Station
67on Saturday, 18 October 2014
8
9Q The time is 2.05pm on Saturday, 18th of October, 2014. I’m Nicolle DEMPSTER, Senior Constable First Class, Family Violence Intervention Officer for BAROSSA Police. I’m at the GAWLER Police Station and I’m sitting with [CD]. [CD], I’ve got the camera going and that’s recording our conversation today and I’m also going to be making a few notes as we go along just so I can remember what you’re saying. So because I’m videoing I need you to talk in a nice loud voice for me so we can hear what you’re saying and instead of nodding or shaking your head can you actually say yes or no for me, yep, can you say yes or no? Yes. If I ask you something that you don’t want to answer it’s okay for you not to answer it you just tell me you don’t want to or if you don’t understand any of my questions just tell me that you don’t understand and I’ll try and ask it in another way so that you understand?
22
23A Yep
24
25Q Okay all right so let’s find out a little bit about you first, can you tell me your full name?
27
28A [CA]
29
30Q [CA], do you have any other names? What about R?
31
32A [CAR]
33
34Q And how old are you, [CD]?
35
36A Ten
37
38Q Ten and what is your date of birth, do you know?
39
40A Two thousand and fourteen
41
42Q Okay I’ll just check this camera. And who is in your family?
43
Page 1 of 34
44A My Sister, I’ve got two little Brothers, Mum and my
45
46Q And what’s your Sister’s name?
47
48A [R]
49
50Q [R] and do you live with your Dad?
51
52A Not my actual Dad
53
54Q No, who do you live with?
55
56A My Stepdad
57
58Q Your Stepdad and what’s his name?
59
60A [R]
61
62Q [R] and what’s Mum’s name?
63
64A [W]
65
66Q And we’ve got [R] and what’s your two little Brother’s names?
67
68A [J] and [L]
69
70Q Okay all right so do you know why Mum’s brought you to the Police Station today?
72
73A No
74
75Q No, you’ve got no idea at all?
76
77A Uhuh
78
79Q No, okay, well I had a chat earlier today with [R]. Mum brought her into the Police Station because [R] told something to your Grandma, Grandma [M], Nanna [M]?
Page 2 of 34
82
83A Nanny
84
85Q Nanny [M] when Nanny [M] was in Adelaide a little while ago
86
87A Okay
88
89Q Can you, so you remember Nanny [M] and [D] coming and you and [R], I think you both stayed?
91
92A I stayed one night and [R] stayed the other.
93
94Q Okay so you and [R] didn’t stay at the same time?
95
96A Nup
97
98Q So you call her Nanny, is it?
99
100A Nanny
101
102Q Nanny and do you call [D] anything or is he?
103
104A Mmm, we just call him [D]
105
106Q [D], [D] or [D]?
107
108A [D]
109
110Q [D] okay and whereabouts did you stay with Nanny?
111
112A Caravan and Tourist Park
113
114Q Caravan, so while [R] had her sleepover with Nanny, she and Nanny had a bit of a chat about something that’s been happening to [R] that [R] wasn’t very happy about and we need to know if something’s been happening to you?
117
118A Okay
119
Page 3 of 34
120Q If someone has done something to you maybe that you’re not happy about. So has, has something happened to you that you think maybe you should tell a grown up about?
123
124A Not really
125
126Q Not really, not really or not at all?
127
128A I do not know
129
130Q You don’t know? Okay, so do you know the difference between good touching and bad touching?
132
133A No
134
135Q No, has anyone ever touched you where maybe they shouldn’t touch you?
136
137A No
138
139Q No? Not, no one has ever touched you on your, what do you call your bits and pieces?
141
142A I don’t know
143
144Q Do you, [R] used a word, her naughty parts.
145
146A I don’t know what I call it.
147
148Q You don’t know, you don’t have a name for that part of your body?
149
150A No
151
152Q No, has anyone in your family put their hand there and touched you?
153
154A No
155
156Q No, no one at all?
157
Page 4 of 34
158A No. I think there is somebody, I just can’t remember the, can’t remember the, um, I can’t remember the name though.
160
161Q Can’t remember the name of what?
162
163A Of who it was.
164
165Q Okay who do you think it was?
166
167A I’m not sure, umm I don’t remember the name.
168
169Q So you can’t remember the name of the person?
170
171A Yeah
172
173Q But a person has touched you on your rude parts before?
174
175A Yeah
176
177Q Yeah was that person in your family?
178
179A Yeah
180
181Q Yeah and do you know who that person is?
182
183A Yeah I just can’t remember their name.
184
185Q Okay and when did that happen?
186
187A Um, um, I cannot remember. I can’t remember.
188
198Q Do you know how old you might have been because you’re ten now?
190
191A Yeah I can’t remember how old I was as well.
192
193Q All right but can you tell me what happened that time?
194
Page 5 of 34
195A I was sitting in the room playing a game and then, can’t remember the name of the person, but they came in as well.
197
198Q Mmmm?
199
200A And then locked the door.
201
202Q They locked the door?
203
204A Yeah
205
206Q Yeah and what happened after they locked the door?
207
208A They started touching there.
209
210Q Okay and whereabouts did they touch you?
211
212A Um, I can’t remember.
213
214Q You can’t remember, did they touch you on a part of your body?
215
216A Ahuh
217
218Q Yeah, what part of the body did they touch you on?
219
220A Can’t remember.
221
222Q Okay I’ve got a picture here, it’s a little boy actually so apologies for that because I didn’t get a little girl printed off but you’ve almost got the same bits and pieces haven’t you?
225
226A Mmmm
227
228Q So would it make it easier for you if I gave you the pen and you could maybe put a cross on the part of your body that that person?
230
231A Um
232
233Q Touched
Page 6 of 34
234
235A There was two
236
237Q Two okay so you want to put a cross for both of them
238
239A There and there
240
241Q Right so then this is a little boy so you don’t have that part of your body do you?
243
244A Mmm
245
246Q No, do you know what that part of your body is called, where the pen is at the moment?
248
249A No
250
251Q No, so you’ve just got a cross on that part of the body? What, what, do you know what that part of your body is used for?
253
254A Ahuh
255
256Q Can you tell me what you, what you do with that bit in the morning?
257
258A You got to…, you go to the toilet and do a wee with it.
259
260Q Okay yeah that’s right, just so I know it’s the same because different people have different names and things about their body
262
263A Yeah
264
265Q Now can I get you to write your name on that bit of paper so we know that that’s the bit of paper that you drew on for me, okay, so you’ve drawn a cross on the part of your body and I, I call that breasts, is that a word that you know?
269
270A Mmmm
271
272Q No, did you have a word for that part of your body?
Page 7 of 34
273
274A No.
275
276Q No, okay, so we’ve got a cross there and one there. So you’re in a room with this person, what sort of room was it, what?
278
279A Um, it was, it was dark with only the tv on and then the tv got turned off.
280
281Q Okay so there was a tv in the room, where, where was the room? Was it at someone’s house or what?
283
284A Um, it was where that person lived with Nanny.
285
286Q Okay so, so that person lived at that house with Nanny (nodded) and that was Nanny [M]? (nodded) So whose house, was it Nanny [M]’s house? Okay and was it that person’s, what, what, what was the room, was it a?
289
290A It was
291
292Q Was it a bedroom or a lounge room or?
293
294A It was a bedroom
295
296Q It was a bedroom and was it that person’s bedroom?
297
298A Um, no
299
300Q No, was it someone else’s bedroom?
301
302A It was a spare bedroom
303
304Q Spare bedroom okay so and you were already in that room playing a game?
305
306A Yeah
307
308Q What sort of game was it?
309
310A Um, there, I was, I was playing a DS, there was a DS as well and I was playing the DS as I was watching a cartoon.
Page 8 of 34
312
313Q Okay all right so you were playing the DS touching, watching the cartoon so that was while the tv was on?
315
316A Yep
317
318Q Okay but the person when they came in, did that other person?
319
320A They came in and started putting the dog out.
321
322Q Sorry came in and?
323
324A Came in, made the dog get out and then turned off the tv, threw away the DS, like threw it and then shut the door and locked it.
326
327Q Okay what was your reaction to him doing that, doing these things, coming in and turning off the tv?
329
330A Um, I said stop turn them back on.
331
332Q Okay and did this person say anything to you?
333
334A Nope
335
336Q Okay. Do you think you could tell me who this person was?
337
338A I still can’t remember the name.
339
340Q You can’t remember the name?
341
342A Oh, now I do, my uncle [P]
343
344Q It was Uncle [P], okay, so you said to Uncle [P] stop, turn them back on, did he say anything to you?
346
347A All he said was no
348
349Q What happened then, [C]?
350
Page 9 of 34
351A I just started to trying to turn it back on and he kept turning them back off and then he tried, he pulled out the switch and he put the DS out the window and then shut the curtain.
354
355Q Put the DS out the window?
356
357A Yep, he just placed it down there.
358
359Q Okay what happened then?
360
361A He started touching my bits.
362
363Q Okay do you know what you were wearing, can you remember?
364
365A I was wearing shorts and a long sleeve tshirt.
366
367Q And can you remember when this happened? What time of year?
368
369A It was the start of the year.
370
371Q Start of the year and start of what year, start of?
372
373A Um, I can’t remember the year.
374
375Q Okay can you remember how old you were?
376
377A Um, I think I was about five or six.
378
379Q Okay so you’re ten now, so it was a little time ago?
380
381A Hhm hhm
382
383Q So you can still remember this, this time?
384
385A Hhm hhm
386
387Q What makes it, what makes you be able to remember this, what was it about it?
Page 10 of 34
389
390A Um
391
392Q Stuck in your mind?
393
394A Yeah
395
396Q Do you know why it stuck in your mind?
397
398A No
399
400Q So you think you were about five or six?
401
402A Mmm
403
404Q Was there anyone else in the house at the time?
405
406A Um, no, Nanny had to go out.
407
408Q Nanny was out?
409
410A Hhm hhm
411
412Q Okay, was [R] there?
413
414A She went out with Nanny
415
416Q So what she left you and Uncle [P] at the house?
417
418A Mmmmm hmm
419
420Q Do you know where Nanny went?
421
422A No, I think she went to the shop.
423
424Q Okay all right so you were wearing shorts and a long sleeve tshirt?
425
Page 11 of 34
426A Hhm hhm
427
428Q Can you remember what Uncle [P] was wearing?
429
430A Um, he was wearing pants and a, a jumper.
431
432Q What sort of pants, long pants, short pants?
433
434A Long pants.
435
436Q Long pants, so he’s turned everything off and you’ve had a bit of a ‘turn it on, turn it off, turn it on, turn it off’?
438
439A Hhm hhm
440
441Q And then he started touching your bits?
442
443A Hhm hhm
444
445Q Can you tell me a little bit more about him touching your bits?
446
447A Um
448
449Q What, what did he do to you?
450
451A Um, I can’t remember. Um I can only remember a little bit.
452
453Q That’s all right, you tell me what you can remember.
454
455A That he put, that he pushed me against the bed.
456
457Q So there was a bed in the room?
458
459A Hhm hhm
460
461Q So when you say he pushed you against the bed?
462
463A He pushed me like when so I was lying down on the bed.
Page 12 of 34
464
465Q Oh so you were lying down on the bed and were you lying down on the bed which way?
467
468A At first it was front up and then it was the other way.
469
470Q So first so that you were front up and then you say the other way so then so you were on your tummy?
472
473A Hhm hhm
474
475Q Okay so what happened when you were front up so the bed was against your back, is that what you mean?
477
478A Yep
479
480Q And so, what, what happened when you were lying on your back with your front up?
482
483A Um, he started to get something, I don’t know what he got
484
485Q Where did he get the something from?
486
487A Um, it was in a cupboard
488
489Q And what was the thing that he got?
490
491A I can’t remember what it, well I didn’t see what it was.
492
493Q Okay what do you think, can you describe it?
494
495A No, because I didn’t see it at all.
496
497Q Okay and what did he do with that?
498
499A Um, he put it against the door.
500
501Q Okay and what did that do? What was it doing against the door?
502
Page 13 of 34
503A It was just leaning against the door.
504
505Q Okay do you know how big it was, can you describe it?
506
507A No but it was very little.
508
509Q Okay do you know the shape of it or?
510
511A No I didn’t get to see what it was but it was very little.
512
513Q Okay so he just took it from the cupboard?
514
515A And put it against the door
516
517Q Whereabouts on the door did he put it?
518
519A He got it and then had it against the bottom bit of the door
520
521Q Against the bottom bit of the door, okay. If you had to guess at what it might have been would you guess what you thought it might be?
523
524A I can’t remember what them long bits are against from where you put it against a door, they’re sort of like a snake.
526
527Q Oh okay so you think it might have been one of those snake things?
528
529A Like it was a long round thing.
530
531Q Okay so what did he do after he put the thing against the door?
532
533A He came back and start he started doing it again.
534
535Q Okay so what was he doing to you?
536
537A He just started touching them and umm
538
539Q When you say touching them, what, what, what was he touching?
540
Page 14 of 34
541A He touched, he got something and then he got it and put it against the bed and it was sort of like the same thing against the door.
543
544Q And what is when you say he put it against the bed, where exactly did he put it?
546
547A He put it at, he put one all around the bed so like he had a few of them, so he put one on the side and then another one on the side and then one at the bottom bit.
550
551Q On the bed or on the floor?
552
553A On the bed and floor
554
555Q And you were still on the bed?
556
557A Hhm hhm
558
559Q And they were these, you describe it as a long snake?
560
561A Yeah
562
563Q Sort of thing?
564
565A And he got one and put it against my tummy.
566
567Q While you were on your back?
568
569A Both
570
571Q Okay so this snake thing was on your, across your tummy?
572
573A Yep
574
575Q Okay did he say anything to you when he put that on you?
576
577A He said make, he said I’ll hear if it moves, if you move.
578
579Q I’ll hear if you move?
Page 15 of 34
580
581A Because he had to get, plug part of the tv back in.
582
583Q Okay and you said that he touched you, where did he touch you?
584
585A He touched me there, there and there.
586
587Q Okay so you’ve just, you’ve said there, so you’re indicating that the first cross and there was where you indicated and then you just grabbed my other bit of paper which shows the back of a girl and can you put a mark on that bit of paper. Okay and can you write your name on that one again for me like you did on the other one. So when he touched you here and you don’t know what this part of the body is called?
593
594A I don’t, I don’t call it anything.
595
596Q You don’t call it anything? So when he touched you on this part of your body, what part of his body did he use to touch you with?
598
599A His hand
600
601Q His hand and what did he do with his hand?
602
603A He just sat it there and then started rubbing it.
604
605Q Did he just rub one side?
606
607A Both
608
609Q Both sides and what sort of action was he doing when he rubbed it, can you show me what sort of movement he made?
611
612A No
613
614Q No?
615
616A I’m not quite sure because all I, all I felt was that. (moved hands)
617
618Q Okay so you felt the hands moving?
Page 16 of 34
619
620A Hhm hhm
621
622Q How many hands did he use?
623
624A He done both at once
625
626Q And then what did he do after he touched you, I call that part of the body breasts, so once he touched your breasts with both hands what did he do then?
629
630A He went to the next bit
631
632Q And what was the next bit?
633
634A That (pointed to drawings)
635
636Q Okay and what did he do with that bit?
637
638A He done the same thing but with one hand.
639
640Q So when you say he’d done the same thing?
641
642A He just kept rubbing it.
643
644Q Okay and what was he using, what part of his body was he rubbing?
645
646A He used his hand and then he went to his, um, his, what was it, umm tummy.
647
648Q He went to his tummy?
649
650A Yeah and started rubbing
651
652Q Started rubbing his tummy?
653
654A No, started he rubbed his tummy on them two bits at once
655
656Q Okay so first he used his hands
Page 17 of 34
657
658A Hands
659
660Q And then he put his tummy on?
661
662A Yeah and when he turned me over he put his hands on it on me and then he went to his tummy again.
664
665Q Okay so I’m just trying to catch up this with the writing. So his tummy was against your tummy was it?
667
668A Hhm
669
670Q So his tummy was against your tummy when you were on your back?
671
672A Yep
673
674Q And then you said to me that he turned you over?
675
676A Yep
677
678Q So when, when he turned you over which way were you facing on the bed?
679
680A So I was that way first and then I was that way. (indicated on drawings)
681
682Okay so after he turned you over you had your face?
683
684A My face was down but I lifted up my head.
685
686Q Okay and so we’ll jump back to when you were on your back and he touched you on your breasts and then he moved his hand down and he touched you with his, with one hand and then he lied, was he lying on top of you when his tummy was on top of you?
690
691A Yep
692
693Q Okay and when he was lying on you can you describe how he was lying on you?
695
Page 18 of 34
696A He was just lying on me for a little bit and then he started moving around a bit
697
698Q Moving around a bit?
699
700A Mmm
701
702Q On you?
703
704A Yep
705
706Q Did he say anything while he was moving around on you?
707
708A No, he didn’t say anything until he heard Nanny coming back, but he thought it was Nanny.
710
711Q Okay so he did this to you while you had your back against the mattress and he laid on top of you and then can you tell me how he, how you went from that position with him on top of you to being in the other position?
714
715A He, he got, he got up and then turned me over (indicated with hands)
716
717Q Okay so he used his hands to turn you over?
718
719A Yeah
720
721Q So that you were facing to the mattress?
722
723A Mmm
724
725Q And you told me that he touched you? Can you point again to the bit of the body?
727
728A There
729
730Q And what part of his body did he use to touch you there?
731
732A Hand and then he used his tummy again
733
734Q Okay so when you say he used his tummy did he lie on you then?
Page 19 of 34
735
736A Yep
737
738Q Yeah
739
740A And then a few minutes after he pulled his pants down and
741
742Q Okay?
743
744A And then after that Nanny, Nanny was at finally she needed to be and then he quickly had a shower and she was nearly back.
746
747Q Okay so when he first was on your front and then he was on your back he had his clothes on?
749
750A No
751
752Q No okay so what?
753
754A He had his jumper on though
755
756Q Okay what did he do with his pants?
757
758A Um he just pulled them down
759
760Q And when did he pull his pants down?
761
762AUm, he done that at the start and then he pulled them up when he thought Nanny was coming and then he pulled them down again
764
765Q And what position were you in when he thought that Nanny was coming and he pulled his pants up?
767
768A I was still, he turned me over and sat me up
769
770Q Okay when he pulled his pants down, which, by pants what do you mean?
771
772A He just, he just got them and pulled them down
773
Page 20 of 34
774Q So by pants, was that, what sort of pants was he wearing that he pulled down?
776
777A He was wearing jeans
778
779Q Jeans, did he have on anything else other than his jeans?
780
781A No
782
783Q On his bottom half?
784
785A No
786
787Q No so when he pulled his jeans down was he wearing anything on his bottom half?
789
790A No
791
792Q No and did you see any part of his body?
793
794A No because he um he started with me like that and then he turned me over and then jumped on the bed
796
797Q Okay could you feel any part of his body on yours?
798
799A Not really
800
801Q No. And you told, did you tell me what you were wearing? You were wearing shorts and a long sleeve tshirt?
803
804A Yep
805
806Q Did you, did your clothes stay on?
807
808A No, he took them off
809
810Q When did he take your clothes off?
811
Page 21 of 34
812A He took them off as he, so first he took off my tshirt and then he took off my pants.
814
815Q Okay so what were you wearing when you were lying on your tummy?
816
817A I was, he didn’t put anything back on
818
819Q Okay so he, so you were lying on your tummy on the bed and you didn’t have any clothes on?
821
822A I didn’t when, because first he took off my tshirt and then he took off my pants and then he just turned me over
824
825Q Okay and he was lying on you and rubbing his tummy against you?
826
827A Yeah
828
829Q And you couldn’t feel any other part of his body rubbing against you?
830
831A Sort of
832
833Q Sort of, what, what do you mean by sort of?
834
835A I felt a little bit
836
837Q Can you tell me what you felt?
838
839A I felt a little bit of there and there (indicated on drawings)
840
841Q Okay and what was it that you thought you felt?
842
843A That um I don’t know
844
845Q I know this is hard for you, you just tell me what words you can
846
847A I can’t um I don’t know how to say it
848
849Q All right is there do we maybe have a picture of that part of the body somewhere?
Page 22 of 34
851
852A He done first he put his head there and there (indicated on drawings) and then he put that bit on me and then that bit
854
855Q Okay so when you say he put that bit on me is that?
856
857A (indicated on drawings) There and there but at first he done it with his head
858
859Q Okay so he put his head on this part of your body? (indicated on drawings)
860
861A Um, no
862
863Q No? He put his head on this part of your body? (indicated on drawings)
864
865A Yeah
866
867Q Okay and what did he do when he put his head on that part of your body? (indicated on drawings)
869
870A Um, he just shaked his head around.
871
872Q Shook his head around?
873
874A Hhm
875
876Q Okay while it was touching your body?
877
878A Hhm hhm
879
880Q What did that feel like?
881
882A Um, he had spiky hair it was very spiky
883
884Q Did you feel anything else on, on that part of your body?
885
886A No
887
888Q No and did you then say that he put his head on that part?
Page 23 of 34
889
890A Yeah
891
892Q And do you have a word for that part of your body?
893
894A Bottom
895
896Q Bottom, so he put his head on your bottom when you were on your tummy?
897
898 A Yeah
899900 Q And did he do anything with his head?
901902A He done his, he just shook it around and then he started rubbing it, I’m not sure what bit of it.
904
905Q Rubbing it, sorry rubbing your bottom?
906
907A And I’m not sure which bit with his head because he done it with his head still and he done the same thing as that bit
909
910Q Sorry did what?
911
912A He did the same thing like rubbing it rubbing his head but I’m not sure what bit he rubbed it with.
914
915Q What part of his head he rubbed it with?
916
917A Yeah
918
919Q Oh okay did, what other sensation, did it feel wet or cold or warm or?
920
921A Felt warm
922
923Q Warm okay so when you were on your tummy he put his head against your bottom rubbed his head against your bottom?
925
926A Yep
927
Page 24 of 34
928Q And then he used his hand on your bottom as well?
929
930A Yep
931
932Q And then when you were on your back?
933
934A He did
935
936Q He touched your breasts with his hand?
937
938A Mmm
939
940Q But he put his head against your
941
942A Yep
943
944Q Now I call that part of the body the vagina. Have you heard a word about that used for it?
946
947A Yeah
948
949Q Yeah so that would be the right part of your body that I’m talking about?
950
951A Yeah
952
953Q So he put his head against that part of your body and rubbed his head against it?
955
956A Hhm hhm
957
958Q Well his head or his, which part of his head?
959
960A Um, the bit I felt of his head was that bit but on my bottom I’m not sure where I felt it
962
963Q Okay but he touched you with your hand as well or his hand against your skin?
965
966A Yep
Page 25 of 34
967
968Q So his hands his fingers were against
969
970A Yep
971
972Q Your skin and his head and he didn’t say anything to you while he was doing this?
974
975A No
976
977Q No, did he do anything else with his hand or his fingers?
978
979A Um, he just all he did was rubbing it
980
981Q And was he rubbing just the outside?
982
983A Um, no
984
985Q No, what other bit did he rub or what else did he do?
986
987A He grabbed my arms and legs and made sure that I didn’t move them
988
989Q How, can you tell me about that, how did he grab your arms?
990
991A He just grabbed both my arms like he went like that and then he put them down against the bed on the sides of the bed and then he put my feet through the end bit of the bed because he made my feet be flat first because then up because I couldn’t fit my feet through there it went up
995
996Q So what, what sort of, can you describe the end of the bed?
997
998A Yeah it was, it was straight it was like a rectangular shape and it had some little circles on the top bit and then it had a line and it had very, then it had little boxes
1001
1002Q So when you say that he put your feet through the end of the bed so he’s sort of wiggled your feet around and poked them through the metal
1004
Page 26 of 34
1005A Well what I wasn’t I kept my feet like up and then he and then he got them down like that and then he done it and then I lifted them up again because I thought I could be would able to get them out
1008
1009Q Could you get them out?
1010
1011A He just made sure for a little bit and then he and I couldn’t so then he kept doing the stuff
1013
1014Q Okay and when he was doing the stuff you didn’t have any clothes on because he’d taken them off?
1016
1017A Yeah he kept his jumper on the whole time
1018
1019Q But no pants?
1020
1021A No pants
1022
1023Q So could you feel his skin against your body?
1024
1025A Yep
1026
1027Q Did he do anything else with his hands to your body?
1028
1029A No
1030
1031Q No did he put his fingers on the outside of your vagina or did he put his fingers inside?
1033
1034A Both
1035
1036Q Both, okay can you tell me about him doing both?
1037
1038A It was felt really weird and I and I was trying to get my feet out but I couldn’t so then I tried moving my hands but he had done something with my hands so I couldn’t because I was trying to get them out.
1041
1042Q What had he done to your hands?
1043
Page 27 of 34
1044A Um, I couldn’t tell
1045
1046Q So where were your hands?
1047
1048A They were down both sides of the bed.
1049
1050Q So your hands were down by your sides?
1051
1052A Hhm hhm
1053
1054Q Did it feel like they were tied up or there was something on them?
1055
1056A It felt like they were tied up and then there was something on them.
1057
1058Q Okay so tell, tell me what he did with his fingers?
1059
1060A Um he just did it like like this and then slightly moved them as he went down
1061
1062Q Down
1063
1064A So he like went down like that but he went like this as well
1065
1066Q Okay so he was moving his fingers along your body?
1067
1068A Yep
1069
1070Q And when he got to this part of your body you said that he went inside?
1071
1072A Yep
1073
1074Q Can you tell me about that a little bit more information about that?
1075
1076A I don’t know how to explain it.
1077
1078Q Okay so what part of his body did he use to do that?
1079
1080A His hands, and then he used his bit of that as well
Page 28 of 34
1081
1082Q Inside you?
1083
1084A Ahuh
1085
1086Q So the part of the body that you just, can you point to the part of the body that he used to put inside you?
1088
1089A There
1090
1091Q Do you know a word for that part of a boy’s body?
1092
1093A Mmm at home we call it a woodle
1094
1095Q A woodle?
1096
1097A Because that’s what the boys say
1098
1099Q Okay that’s all right so he put his woodle in you did he?
1100
1101A Mmmm
1102
1103Q Can you tell me how he did that?
1104
1105A He used his hands
1106
1107Q Yeah what did he, what did he do with his hands?
1108
1109A He I can’t explain that either
1110
1111Q Just try, just try now you’re doing a really good job
1112
1113A He held it he was holding it and made sure it went where he wanted it
1114
1115Q So he held his woodle
1116
1117A And then he held my bit
1118
Page 29 of 34
11191Q So he had a hand on his woodle?
1120
1121A Yeah
1122
1123Q And then he had another hand on your, so we’ll call yours the vagina, do you know what the vagina is?
1125
1126A Ahuh
1128Q Yep okay so he held his woodle and then he held your vagina and what did he do with his woodle?
1130
1131A He started putting it on the inside and then he just sat it there for a little bit
1132
1133Q Okay was he doing anything while he sat it there?
1134
1135A He just made sure he didn’t hear Nanny because at the start he said that I’m not going to be allowed to tell her and I and when she got when she got back I he stopped after a while he stopped a few minutes before she got back and then and then he got in the shower because he had just had a shower and he had a shower and made sure I because he said that if I did he would make sure I smell and then I had the shower after that
1141
1142Q So he made you have a shower too?
1143
1144A Yep and
1145
1146Q Why, why did, why did he say you smelled?
1147
1148A Because he thought he knew that I would’ve told Nanny but after a while once I had a shower I got redressed and I put on different shorts and I’ve gotten a short sleeved tshirt
1151
1152Q Do you know what he would have what you would have smelled of?
1153
1154A No
1155
1156Q Did he tell you that you smelled?
1157
Page 30 of 34
1158A Yep and then I was back to playing with the DS because he got it back and the tv, turned the tv back on and
1160
1161Q Do you know why he had a shower?
1162
1163A Because he said that he would, he needs to smell better than he did before
1164
1165Q Okay so when he had his woodle inside you and he just held it there did he say anything or do anything when it was inside you?
1167
1168A He said that after he finished after he knows my favourite shows finished he would have a shower and then I’d have to have one after otherwise I’d smell he said and then I went back to playing it and I and I forgot to tell Nanny because I was too I was too into the game because I liked the game and then
1172
1173Q Did, did any part of your body hurt after this?
1174
1175A Um, no
1176
1177Q No, okay, so nothing was sore?
1178
1179A Nup
1180
1181Q And did we say how old you thought you were, you said that you were about five or six at Nanny’s, where was Nanny’s house, can you remember?
1183
1184A No, I can’t
1185
1186Q No, can you remember anything about Nanny’s house?
1187
1188A That it had a big lounge room
1189
1190Q Hhm hhm?
1191
1192A three small bedrooms
1193
1194Q Yeah?
1195
1196A One big bedroom
Page 31 of 34
1197
1198Q Hhm hhm?
1199
1200A And a very small toilet as well and then a medium sized kitchen.
1201
1202Q Okay do you know what colour the house was?
1203
1204A It was, it was a browny greeny colour, browny reddy colour and it had green over the window bit like that kind you would have on over a um greenhouse thingy
1207
1208Q Okay so has Uncle [P] ever done anything else to you?
1209
1210A Um, other than that, no but when I was younger he had he did it but I can’t remember well he did sort of the same things
1212
1213Q How do you know that?
1214
1215A Because I could remember then and I went to tell Nanny but then because when I was really little I had a favourite show as well but that was a baby show
1218
1219Q Yeah?
1220
1221A And I was busy watching it and I couldn’t really talk
1222
1223Q Okay so we think that this one happened when you were about five or six?
1224
1225A Hhm hhm
1226
1227Q Do you know what time of year maybe or can you remember anything else about what was happening around that time?
1229
1230A It was, I was staying at Nanny’s and it’s the start of the year
1231
1232Q Okay was it school holidays or weekend?
1233
1234A It was in January from the school holidays
1235
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1236Q Okay how do you know it was January?
1237
1238A Because that cause I remember that’s where near where he done it when I was a baby as well
1240
1241Q Okay do you think there is anything about this that you haven’t told me, anything else that you can remember?
1243
1244A That he tried putting something in my mouth I can’t I couldn’t tell what
1245
1246Q Okay when was that?
1247
1248A That was, that was when I was a baby and when I was about five or six
1249
1250Q At the same time that you’re telling me about?
1251
1252A Yeah
1253
1254Q Okay so what can you remember about this time when you were about five or six?
1256
1257A Um that he he tried putting something in my mouth when he did that he was holding my arms down and he was standing on my legs he made sure I couldn’t move my head and standing there because I had a fringe no I didn’t have a fringe he he had to put my hair over my face so no, so he didn’t know so he couldn’t so he didn’t remember to take it out he did, because he didn’t remember
1263
1264Q Okay so what was it that he tried putting in your mouth?
1265
1266A It was sort, it was something tied with a rubber band.
1267
1268Q Something tied with a rubber band?
1269
1270A Yeah
1271
1272Q How big was it?
1273
1274A It was sort of about that big
1275
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1276Q Do you know what shape?
1277
1278A It was, it was sort of round
1279
1280Q Okay and did he get it in your mouth?
1281
1282A He eventually held my mouth open because and then he put it with one hand like this and then with and then he put it in with the other hand
1284
1285Q Okay and what was it for do you know?
1286
1287A So I wouldn’t scream or anything because the dogs knew because the dog knew how to unlock the door and I don’t know how
1289
1290QYou don’t know how what, oh the dog?
1291
1292A Yeah the dog gets something because the dog uses something to open it
1293
1294Q Okay all right so anything else that we haven’t spoken about? No? All right so it’s 2.55 and that concludes this interview.
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