R v Rideout
[2023] SADC 104
•4 August 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIDEOUT
Criminal Trial by Judge Alone
[2023] SADC 104
Reasons for the Verdicts of her Honour Judge Fuller
4 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
Accused charged with two counts of unlawful sexual intercourse against BS and one count of maintaining an unlawful sexual relationship with a child, (AJS) between 1 January 2016 and 15 August 2020. The complainants were two sisters and the accused was in a relationship with one of their older sisters (SM). Alleged offending disclosed after SM saw the accused 'about to touch' AJS. The complainants were interviewed by police on 16 August 2020 and the accused arrested on 17 August 2020. Accused denied offending in record of interview. Offending occurred during sleepovers at a number of locations in which SM and the accused lived.
AJS alleged only two occasions of offending in first interview - two years later she was re-interviewed and alleged multiple occasions of offending before and after occasions described in first interview -no explanation proffered for failure to mention more extensive allegations in first interview. AJS sent a Facebook message to the accused between first and second interview. AJS could not recall sending message and could not explain it.
BS gave evidence of observing accused make AJS put her hand on his penis in a caravan in which the accused and SM lived - account inconsistent with account of AJS of similar offending in caravan and inconsistent with evidence of SM of an occasion when accused and AJS lying on bed in caravan together. Evidence admissible under s 34P (2) (a) and (b) Evidence Act.
Evidence of conversations between BS and AJS and other members of the family, including SM, about allegations before report to police.
BS alleged two instances of unlawful sexual intercourse on the one occasion. No case to answer found on count alleging penetration of labia majora. Verdict of not guilty entered at close of prosecution case. Prosecution application to amend count after verdict to substitute charge of indecent assault. Application refused.
Held: Unsworn evidence of AJS undermined by significant prior inconsistent statements by omission, internal inconsistencies and conflicted with other evidence accepted as reliable and credible. Central feature of BS' account of offending contradicted by evidence of SM. Possibility of contamination of account not excluded beyond reasonable doubt. Evidence of offending against BS and AJS not cross-admissible on similarity of account or propensity basis. Accused's denials in record of interview compelling and could not be rejected.
Verdicts: Not guilty of all charges.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1), 75; Criminal Procedure Act 1921 (SA) ss 128; Evidence Act 1929 (SA) ss 9, 12A, 13BA(3), 13BA(3)(b), 13BA(5), 13(7), 34CB, 34KA, 34M, 34M(4); Juries Act 1927 (SA) ss 7, 7(4), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50; R v Weetra (2010) 108 SASR 232; R v Bilick & Starke (1984) 36 SASR 321; Questions of Law on Acquittal (No 2 of 1993) (1993) 61 SASR 1; R v Omond [2022] SADC 62; R v J, JA [2009] SASC 401; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v Haak (2012) 112 SASR 315; R v Mattsson [2011] SASCFC 114; R v MJJ; R v CJN [2013] 117 SASR 81; NH v DPP [2016] HCA 33; MDM v The Queen [2020] SASCFC 80; R v C, CA [2013] SASCFC 137; McPhillamy v The Queen [2018] HCA 52; Des v The Queen [2020] SASCFC 32; Harrison (a pseudonym) v The Queen [2020] VSCA 157, considered.
R v RIDEOUT
[2023] SADC 104Criminal
The charges
The accused, James Anthony Leonard Rideout, is charged on Information with the following offences:
Count 1
Offence Details:
Unlawful Sexual Intercourse with a Person under 14 years (Section 49 (1) of the Criminal Law Consolidation Act, 1935.
Particulars
James Anthony Leonard Rideout between the 1st day of April 2017 and the 8th day of June 2017 at Mansfield Park, had sexual intercourse with [BS], a person under the age of 14 years, by penetrating her labia majora with a finger.
Count 2
Offence Details:
Unlawful Sexual Intercourse with a Person under 14 years (Section 49 (1) of the Criminal Law Consolidation Act, 1935.
Particulars
James Anthony Leonard Rideout between the 1st day of April 2017 and the 8th day of June 2017 at Mansfield Park, had sexual intercourse with [BS], a person under the age of 14 years, by penetrating her labia majora with his penis.
Count 3
Offence Details:
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50 (1) of the Criminal Law Consolidation Act, 1935).
Particulars
James Anthony Leonard Rideout between the 1st day of January 2016 and the 15th day of August 2020 at Elizabeth South, Birkenhead, Mansfield Park and other places, maintained an unlawful sexual relationship with [AJS], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Inserting a finger between her labia majora on more than one occasion;
(b) Touching her genital area on more than one occasion;
(c) Causing her to touch his penis on more than one occasion; and
(d) Causing her to view pornography on more than one occasion.
The plea
The accused pleaded not guilty to all charges before me on 4 July 2023 and at his election I heard his trial without a jury.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in several authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[1] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused elected not to give evidence but called his mother as a witness. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[2] The accused’s record of interview, and his denials and any admissions I find contained therein, is evidence in the case that I can take into account in determining whether the charge has been proved beyond reasonable doubt. There is no onus on the accused to prove anything he said in his record of interview.
[2] Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].
Elements of the offences
To prove the charges of unlawful sexual intercourse with a child under the age of 14 the prosecution must prove beyond reasonable doubt:
·The accused had sexual intercourse with the complainant;
·The complainant was under the age of 14.
Sexual intercourse is defined as including the penetration a person’s vagina, labia majora or anus by any part of the body of another person.
To prove the charge of maintaining an unlawful sexual relationship with a child, the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, he was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged are as follows:
·Unlawful sexual intercourse: particular (a).
·Indecent assault: particular (b).
·Compelled sexual manipulation: particular (c).
·Act of gross indecency: particular (d).
As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
Indecent assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. There was no dispute in this case that if I found the assault proved, it was committed in circumstances of indecency.
Act of gross indecency
It is an offence to commit an act of gross indecency towards or in the presence of a person under the age of 16.
To prove the charge of gross indecency, the prosecution must prove beyond reasonable doubt that the accused committed an act with, towards, or in the presence of the complainant in circumstances which make it grossly indecent. It must be proved that the complainant was under 16 years of age at the relevant time. It must be something more than minor or trivial indecency. The conduct must be such as to be characterised not only as indecent, but as grossly indecent.
It must be proved that the accused performed an act (in this case causing the complainant to watch pornography) and that he performed the act intentionally with, towards or in the presence of the complainant.
It must be proved that causing a child to watch pornography in the circumstances is not only indecent, but grossly indecent.
Indecency carries with it a sexual connotation. ‘Indecency’ means some form of sexual conduct which is indecent having regard to the complainant’s age, the accused’s age, the circumstances of the alleged conduct and the contemporary standards of morality and decency of right-thinking members of the community. It must be proved that the proved act was not only an indecent act but was a grossly indecent act. In this context, the word gross means something that is more than minor. It must be grossly indecent by reasonable, contemporary standards.
It was not disputed that if the conduct alleged was proved, the acts were grossly indecent.
Compelled sexual manipulation
This offence has four elements. In this case, the elements are:
·The accused compelled a person to engage in or continue to engage in an act of sexual manipulation of the accused (in this case masturbating the accused’s penis).
·The accused did this for a prurient purpose.
·The other person did not consent to engaging in the act or had withdrawn consent to the act.
·The accused knew or was recklessly indifferent to the fact that the other person did not consent.[3]
[3] It was not disputed that if I found the accused performed the act alleged, this was an act of compelled sexual manipulation.
Issue in dispute
The only issue in dispute was whether the accused committed the unlawful sexual acts alleged.
Overview of the prosecution case
It is the prosecution case that the accused engaged in unlawful sexual acts with the two sisters of a woman (SM) with whom he was in a relationship. One sister, BS, born 22 June 2006, alleged that the accused, on one occasion, engaged in two acts of unlawful sexual intercourse with her involving digital and penile penetration of her labia majora. The other sister, AJS, born 30 January 2008, alleged that the accused performed a number of unlawful sexual acts in the course of his relationship with her. Those unlawful sexual acts were comprised of more than one occasion of unlawful sexual intercourse (digital penetration of the labia majora), indecent assault (touching of her genital area) compelled sexual manipulation (forcing her to touch his penis) and an act of gross indecency (causing her to watch pornography).
The offending against BS occurred at one of the homes in which the accused and SM were living. The offending against AJS occurred in a number of different houses, depending upon where the accused and SM were living at the time. The offending occurred in each case when BS and AJS were sleeping at the relevant location overnight. The offending came to light when SM saw the accused about to touch AJS on an evening in August 2020 when she was sleeping over at the house SM was sharing with the accused. BS and AJS were interviewed by police on 16 August 2020 and the accused was arrested on 17 August 2020. He participated in a record of interview and denied the allegations.
The evidence
I turn now to a summary of the evidence given in the trial.
Complainant – AJS
The recordings of the interviews between AJS and prescribed interviewer Detective Brevet Sergeant Sarsha Zacher on 16 August 2020 and 1 June 2022 were admitted pursuant to s 13BA (3) of the Evidence Act 1929: Exhibits P4 and P5. The transcripts of those interviews were marked for identification and used by me as aide memoires. I was satisfied that the statutory conditions for the admission were met, in particular, s 13BA (3)(b) EA. I note that parts of those interviews were redacted by agreement between counsel.
In considering the answers of AJS in each of the prescribed interviews, I have not drawn any inference adverse to the accused from the form of this evidence, nor have I allowed it to influence the weight to be given to the evidence.
Prescribed interview – 16 August 2020
AJS was interviewed for 33 minutes. She was 11 years of age. She was asked what she had come there to talk about, and she said, ‘My sister’s boyfriend but they’re not dating anymore, and he touched me.’[4] AJS said he had touched her more than once and Detective Zacher then asked her to tell her everything that happened on the last occasion the accused touched her. AJS said this occurred at a house that her sister had just moved into, and she had stayed overnight and slept on the floor on a mattress at the foot of another mattress on which her sister and the accused slept.
[4] MFIP4A: A 52.
AJS described an incident during which she was asleep but woke to hear her sister saying, ‘what the ‘f’ are you doing’ and the accused ‘was ready to touch me but then he quickly ran to the toilet and said that ‘he felt sick’’.[5] AJS then confirmed that this was the last time she recalled something happening.
[5] MFIP4A: A 78.
AJS was then asked to tell Detective Zacher about the first time something happened and to start at the beginning. AJS said:
Mm. It was in the caravan like with, out the front of my house, no it was…it happened in there and then it happened at Michael’s house.[6]
[6] MFIP4A: A 96.
AJS said that she was sleeping in the caravan next to her sister, SM and the accused was on the other side of SM. It was nighttime. She said, ‘and then he went in the middle and then yeah touched – me’.[7] AJS went on to explain that the accused put his hand on the outside of her pants, but she did not move because she was scared. He then started putting his hand slowly inside her pants but not in her underwear. Later he put his hand in her underwear. When his hand was on the outside he was rubbing and playing with her ‘rude spot’- her vagina. She said, ‘he tried putting his finger in’ and then said, ‘he put his finger in my vagina’ and said, ‘it’s okay, it’s okay don’t tell anyone’. She described the accused wiggling his finger around on the inside and outside of her vagina. AJS said, ‘and then when he seen [SM] move he quickly stopped’.[8] AJS explained that SM was on the other side but went to roll over.
[7] MFIP4A: A 100.
[8] MFIP4A: A 142.
AJS said she thought the first incident occurred in 2019 and that SM was pregnant with R. AJS then said she did not think it was 2019 because R was now three years old. AJS said that when they first went to bed, she was next to SM and the accused was on the other side of SM. AJS thought the accused told SM to move and she did. It was then that the accused touched her. AJS was wearing pyjamas comprised of a button up top and pants.
AJS said that when the accused was touching her vagina she did not say or do anything because she was scared. It felt ‘weird’, ‘like creepy’ when the accused had his finger in her vagina. She did not tell anyone about what happened in the caravan. She could not remember anything else about that time in the caravan.
AJS then described the occasion at Michael’s house. She said there was a mattress on the floor for SM and the accused and AJS were asleep on the big couch. The accused put his hand up on the couch and ‘did the same thing again’.[9] This time the accused ‘went straight in my pants…and straight in my knickers…and he put his fingers in…my vagina.’[10] AJS said the accused put two fingers in her vagina and was wiggling them around. He did not say anything to her. He was lying on his back. He did that ‘for a little bit’ and then stopped and went back to sleep. This happened at nighttime. R was one or two years of age. AJS was asked what happened after that and she said ‘nothing’. She was asked if she told anyone about it and she shook her head. She was then asked:
So, we talked about the last time that you remember and then the time in the caravan and the time at Michael’s house. Are there any other times that you can remember?[11]
[9] MFIP4A: A 192.
[10] MFIP4A: A 194-200.
[11] MFIP4A: Q 231.
AJS shook her head.
AJS was asked whether she told anyone at the time what happened, and she said, ‘only when Mum came and talked and then [SM] came to the neighbour’s house and talked to me as well’. AJS was asked if she had told anyone about what the accused did to her at Michael’s and in the caravan and she shook her head. She said she only told them ‘about what happened at the house’ which was the last time and when SM woke up.
AJS was asked whether there was anything else that she could remember about any of these times that she had not told Detective Zacher and she shook her head.
Prescribed interview – 1 June 2022
AJS was 13 years of age at the time of the second interview. The interview lasted 1 hour and 3 minutes. Before the interview commenced, AJS was shown the video of her first interview. AJS was reminded that in the first interview she had spoken of the two occasions when she had been touched by the accused – in the caravan and at Michael’s house. She was also reminded that she was asked whether anything else had happened with the accused but she was not reminded of her answer. Detective Zacher then asked, ‘has anything else happened with James that you haven’t told us about?’ AJS responded:
AJS: Not that I can remember.
Det Zacher: Nope?
AJS: Not that I can remember.
Det Zacher: Okay. And what do you mean by that?
AJS: I can’t remember anything that I haven’t said.[12]
[12] MFIP5A: Q & A 23-28.
Detective Zacher again asked ‘so you only remember those two times?’ and AJS nodded. Detective Zacher reminded AJS that she said in the first interview that it first started when SM was pregnant and asked her whether that was the time in the caravan or another time. AJS then replied:
I think ah there was one, there was one time when she was pregnant in the caravan and there was another time when she was pregnant and wasn’t in the caravan…when she used, like when she was staying with us. They were sleeping in my room, and it was in my room’.[13]
[13] MFIP5A: A 30, 32.
AJS was asked if that was a time that she had not talked about and she nodded. She then explained that there were two mattresses on the floor so they could all fit. She was on the edge; the accused was in the middle and SM was on the other side of the accused. She then said:
And he like touched me while I was asleep and then so I’m like shuffled away a little bit. And then like he did it again. So, I got up and I went and I slept next to [SM] for the rest of the night.[14]
[14] MFIP5A: A 40.
AJS explained that he touched her through her pants but did not get enough time to ‘go in’ because she moved away quickly. He started rubbing her vagina over her pants and underwear. He went to ‘go in the pants’ but she moved away. This happened in the house that she was living in at the time of the interview. She said this occasion was before the time she had described in the caravan when SM was pregnant. The accused did not say anything at the time, and she did not tell anyone what had happened. SM asked her if she had had a bad dream and she said yes.
AJS was then asked if that was the first time, she recalled the accused doing something to her and she said:
No that would have been the seventh or eighth.[15]
[15] MFIP5A: A 92.
AJS was then asked to think about the first time anything happened, and she said she thought she was 9 years old, and SM and the accused were still living at her mothers in the end room. She explained:
Cos when I was younger, I always used to hang around [SM] in, in her room and I just remembered there being a bunk bed when I was younger. And on the bottom bunk he would watch cartoons with me. And while I’d be watching cartoons on the phone, he would touch me.[16]
[16] MFIP5A: A 98.
AJS said she thought it was her mother’s phone because she was too young to have her own. She thought she was having a ‘sleepover’ in their room. The accused crawled into the bed and went under the blanket with her and touched her. He put his hand on the outside, was rubbing and touching her vagina on the outside and then went inside her underwear and was rubbing her vagina with two fingers. She was lying on the middle of the bottom bunk. Initially SM was in the bed, but she got up and then it was just her and the accused. It occurred during the day. She said, ‘he never did anything when [SM] was around. It was always as soon as [SM] left the room or as soon as she went to sleep’.[17]
[17] MFIP5A: A146.
AJS did not tell anyone about this occasion and the accused did not say anything to her. However, AJS went on to explain:
…but there was sometimes that he would, like, ‘if I had told anyone then something would happen to [SM]’ or, or. And then when [R] was born it was, it moved from [SM] if something like ‘if I told anyone then something would happen to both of them’.[18]
[18] MFIP5A: A 168.
AJS was asked if she could recall exactly what the accused said to her and when he said it to her. She replied:
It would either be just before or after he finished doing what he was doing. He would say ‘if you tell anyone about this then something bad is gonna happen to [SM] or [R] or ‘[SM] will get hurt and we don’t want that’.[19]
[19] MFIP5A: A 170.
AJS was then asked whether she could recall the next time after this and she said, ‘Not really’. She then said:
Think it was in the same bed. I think it happened in that bed for a couple of times until [SM] moved beds…she got rid of the bunk bed and got a new bed…and he still kept doing it and..[20]
[20] MFIP5A: A 180 - 186.
AJS said the accused kept touching her but sometimes just on the outside. She was asked if she remembered any of the times after SM changed beds and she shook her head but said ‘I just remember it still kept happening’ and although she could not remember those times it was ‘non-stop’.[21]
[21] MFIP5A: A 194-202.
She said it happened at least five times in the other bed because she knew there were five different times she went into that bed and every time she did, it would happen. She was then asked what the next thing was that she could remember. She said, ‘I can’t remember after that.’ She was asked if there were other times before the time in her bedroom apart from the one she talked about and she said, ‘not really’. She was asked if it happened more than one time in her bedroom and she said:
It could have been…I don’t know. Cos they were in there for a couple of weeks, and it was like, like he would do it every night’.[22]
[22] MFIP5A: A 214.
SM and the accused were in her bedroom because BS was in the end room and there was nowhere else to stay, and she was close to SM when she was young and wanted SM in her bedroom. AJS said that before SM and the accused went to the accused’s mother’s house, they stayed in her room for about two weeks, and it happened every night. She said:
He would touch me. Sometimes it would be like in the pants, just in the pants. Sometimes it would be in my undies. Or sometime…there was a time that he like even pulled my pants down while I was asleep just to do it…I woke up to my, like my pants down and him still asleep. So, like I don’t know, I didn’t think anything of it, I just pulled them up quickly and went back to sleep…there was some nights that he would just go in my pants, not in my undies. Or the other nights he would just like, just go in both.[23]
[23] MFIP5A: A 230-234.
AJS said that there was a time when the accused touched her on the inside of her vagina, but it was towards the end of the time they were staying there. She then said:
He sat up to look around if [SM] was awake or if anyone was in the house – obviously. And then laid back down and then started touching me…and there was sometimes where he would grab my hand make me like do stuff to him with his hand on my hand cos I wouldn’t want to do it, I wouldn’t do it. So, he’d grab my hand and make me do it forcefully.[24]
[24] MFIP5A: A 242-244.
AJS was asked when and where those occasions when he would make her touch him forcefully and she said:
Well, some in my room. It happened at Michael, Michael’s a couple of times. And at [SM]’s old house a couple of times.[25]
[25] MFIP5A 248.
AJS was asked to describe the first time this happened, and she said:
He, I was laying in my bed, and I don’t know, he just grabbed my hand, like pulled my hand and then just made me start doing stuff to him…like he grabbed my hand, and he made me grab his thing and like do that with him. But cos I wouldn’t do it, like he would grab my hand and made me do it cos I wouldn’t want to do it and I was.[26]
[26] MFIP5A A 250, 254.
When giving this answer AJS was using a hand motion forming a ring with her fingers and thumb and moving her hand up and down. She was asked what she meant by ‘his thing’ and she said his penis. She was asked what made it stop and she said ‘I think I eventually got up and just moved after a while. Cos eventually I, I clicked on to know that it was wrong and started getting up.’[27]
[27] MFIP5A: A 262.
AJS was asked if the accused said or did anything when he was making her rub his penis and she said, ‘no just nothing’. She was asked if anything happened with his penis and what it felt like and she replied:
No. I can’t really remember cos I didn’t want to be there doing it. So, I just – yeah paid attention and waited for it to be over…
AJS was reminded that she said it happened in her bedroom the first time and she replied:
It happened at Michael’s a couple of times. It happened in the caravan once and that’s all I can remember – yeah it happened in the caravan and Michael’s.[28]
[28] MFIP5A: A 274.
The sequence of occasions when she was forced to rub the accused’s penis was in her bedroom and then Michael’s and then the caravan. She was asked to describe the occasion at Michael’s, and she said:
Well, I was like, there was one time where I was asleep on the couch, and he made me like go on the mattress – and I was young, so I didn’t know what for. So, I just went and laid on the mattress and he made me do it. And then there was another time where I slept down like opposite end of the bed, like on the mattress, so on the floor and he moved down the other end while [SM] was asleep up the other end. And then he did it again.[29]
[29] MFIP5A: A 280.
AJS was asked if on any of those occasions the accused was saying or doing anything while she was rubbing his penis and she shook her head. She was asked if she remembered anything about his body or his movements and she said no. AJS said that the occasions when the accused made her rub his penis were different from the days he touched her. She said she slept at Michael’s every weekend, so she thought the two occasions when it happened was one weekend after the other. She then said:
304: AJS: …And I used to go there like just to see if anything would be different. Hoping it would be different, and nothing would be different – he’d still do it.
305: Det Zacher: What would make you think that it was going to be different [AJS shrugs]. Was he saying anything to you?
306: AJS: I just thought maybe he’d click on it, and you know that it’s not normal.[30]
[30] MFIP5A.
AJS said that she was ‘maybe’ 10 or 11 years of age when this happened at Michael’s house. She was reminded that she was 11 when she had the first interview and said, ‘so maybe ten’.
AJS then described an occasion in the caravan when she was lying on the caravan bed with SM and the accused and she fell asleep and she ‘woke up again to him doing it, like I woke up to it’.[31] She said R was a newborn then because there was a little bed that she was on. She said that the accused grabbed at the inside of her leg and then made his way up and inside her pants and underwear. AJS said he tried to put his fingers in but because it hurt, she pushed him away and moved away. She woke up to him trying to put his fingers in. He did not put his fingers inside her vagina. SM did not say anything to her about why she had moved. AJS said that SM ‘always thought it was a bad dream cos I said it like one time. But she thought every time I moved it was a bad dream.’[32]
[31] MFIP5A: A 320.
[32] MFIP5A: A 346.
AJS then said she could not recall when the occasion was that the accused made her touch his penis in the caravan but ‘it must have been the same night as that, he did that like earlier before I went to sleep. And then later when I was asleep, he tried doing that’.[33] AJS said that when she was awake:
He touched my inner thigh again and then grabbed my hand and made me do what he made me do before…he made me go like that with his penis [AJS formed her fingers and thumb in a ring and moved her hand up and down].[34]
[33] MFIP5A: A 350.
[34] MFIP5A: A 352, 354.
AJS said that it did not go on for long because ‘[SM] started tossing and turning so he stopped’.[35]
[35] MFIP5A: A 356.
AJS did not tell anyone about any of these other occasions because she was too scared. She was then asked whether there were any other times that she could remember or anything else that he had done to her that she had not told Detective Zacher about. AJS said ‘not that I can remember apart from them’ and ‘not that I can remember’.[36]
[36] MFIP5A: A 360, 362.
Detective Zacher then told AJS that she knew that some of these things were really hard to talk about and was there anything else that happened that upset her or made her feel funny. AJS then said:
There was a time that he would make me like watch porn on his phone as well.[37]
[37] MFIP5A: A 366.
AJS went on to explain that this occurred in SM’s old house because there were stairs and AJS was bringing the washing down from upstairs. She walked into SM’s room to grab the washing and the accused asked her to come and lie down. He had porn on his phone and made her watch it. She said there ‘must’ve been two times cos I remember him watch, made me watch a girl and a girl and like and then a girl and a guy once with him’.[38]
[38] MFIP5A: A 374.
When asked whether the accused was doing anything, saying anything or getting AJS to do anything while watching porn she shook her head and said, ‘just laying’. AJS described the second occasion as occurring when she had R’s mattress on the floor next to the bed and the accused ‘came down on the mattress with his phone and made me watch it’. She then got up and slept next to SM again and when she woke up in the morning he was still down there.[39] On the second occasion, the porn she watched was a guy and a girl. She could not recall what the people in the videos were doing. She was pretty sure these occasions occurred at the Waller Street home.
[39] MFIP5A: A 382.
AJS said that the first person she told about what happened with the accused was SM. She then said that the first person she ever told was her best friend D. She did not tell her everything but told her about one of the ‘caravan ones’. When asked if she told D everything that happened in the caravan, she shook her head and said she told D that ‘he touched me’. She did not talk to D any more about the things that the accused had done.[40] She told her in year 5 or 6, ‘way before’ she spoke to police. She told D because they were really close, and she could trust her not to go blabbing. She just needed to get it out and tell her. D couldn’t really say anything; she was just in shock and upset.
[40] MFIP5A: A 412-428.
AJS was then asked about the time at Michael’s house. She said Michael was in his room and SM, R and the accused were sleeping in the lounge room. AJS said that when the accused told her that something would happen to SM or R if she told anyone what was happening that made her feel like she could not tell anyone, because if she did, she would put her sister and niece in danger.
AJS said that the accused would always be nice to her, and she would ‘snob’ him because she did not like him after she was old enough to realise what was happening. She said she ‘clicked on’ that it was not right on the occasion in the caravan when R had not yet been born. She said she started moving away every time and nodded when Detective Zacher asked her if she did not want to be around him. She was then asked why she was spending so much time with the accused and SM, and she said:
It was more because I wanted to be with [SM] because like we were never allowed to see them there anymore because of him. So, when I was allowed to like I, like over-used it because I just wanted to be with [SM]…and each time I went there I, I went there more to like ah, I was hoping each time it would be different. But it was never different.[41]
[41] MFIP5A: A 518, 520.
It was then put to AJS that after the first interview she had sent the accused a message and she was then shown a Facebook messenger message. She said she did not remember the account and did not remember contacting the accused after what happened. She could not remember why there would have been any reason to contact him.
Oral evidence
I granted an application by defence counsel to further examine and cross-examine AJS on enumerated topics, having satisfied myself of the matters set out in s 13BA (5).
I then conducted an inquiry pursuant to s 9 EA to determine whether AJS could give sworn evidence. In light of her responses to my questions, I was not satisfied that she had the capacity to give sworn evidence.[42] I was satisfied that she could give unsworn evidence and permitted her to do so. I have exercised caution in determining whether to accept this evidence and the weight to be given to it because AJS did not demonstrate an understanding of the obligation to be truthful entailed in giving sworn evidence.
[42] AJS clearly understood the difference between telling the truth and telling a lie. AJS could also articulate the consequences to her of doing an act that was illegal (in this case the example was driving a vehicle without a licence, and she said if she did that she would be in trouble with the police). However, when asked what would happen if she did not tell the truth in court, the only consequence AJS could articulate was that everyone would think she was a liar: T 42-44.
AJS gave her evidence remotely. The court was closed during her evidence, and it was recorded by audio-visual means. Pursuant to s 13A (12) EA I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to AJS’s evidence.
AJS said that when she first spoke with a police officer it was on 16 August 2020. She said she told her the truth and agreed that she was trying to help the police officer understand what had happened. She said she wanted to tell the police officer all of what happened to her.[43]
[43] T 54.
AJS agreed that in the first interview on 16 August 2020 she told the police officer two things that had happened; the first was in a caravan at her mother’s house and the second one when she stayed with the accused and her sister, SM, when they were living with a man called Michael Jones. She also talked about a time when she saw the accused crouching over her.[44]
[44] T 55.
AJS agreed that when the police officer asked her in the first interview whether there was anything else she wanted to tell her she shook her head. AJS also agreed that in the second interview, she was asked if anything else happened with the accused that she had not mentioned and she replied, ‘not that I can remember’.[45]
[45] T 56.
AJS agreed that in the second interview she told the police officer about lots of other times that things happened. When asked why she said ‘no’ in the first interview when asked if there were other things that happened, she said ‘I can’t remember’.[46] AJS agreed that this was wrong but could not remember why she got it wrong.[47]
[46] T 56.
[47] T 56.
AJS agreed that she told the police officer in the first interview that the last thing that happened was when she was at the Jones house on a couch and the accused was asleep on a mattress and he reached up and touched her. She then agreed that in her second interview she talked about occasions after this one when the accused touched her when he was staying at her mother’s house. She said she could not recall why she told the police officer in the first interview that the last time the accused touched her was at the Jones house. She agreed this was wrong, but she did not know why she got that wrong.[48]
[48] T 57-58.
AJS agreed that in the first interview she said that when she was touched by the accused in the caravan, SM was pregnant with R. AJS then agreed that by the time that SM lived in the caravan, R had already been born.[49] AJS agreed that when she told the police officer that SM was pregnant when the accused touched her in the caravan this could not be correct.[50]
[49] T 58.
[50] T 59.
AJS agreed that after R was born, SM and the accused moved into a caravan out the front of her mother’s house in Elizabeth South. They then moved into the Jones house and after living there, returned to her mother’s house. They did not live in a caravan the second time. They then moved into a house at Bowden and later to a house in Elizabeth Downs. AJS said she was 11 years of age when SM and the accused moved into the house in Elizabeth Downs.[51]
[51] T 60-61.
AJS said that when the accused and SM were staying at her mother’s house the second time, the accused touched her a few times. AJS agreed that she told the police officer in her second interview that it happened every night for two weeks. However, AJS could not explain why it was that she said in the first interview that the last time the accused touched her was at the Jones house or why she did not tell her about all of the later times.[52]
[52] T 62.
AJS could not explain why she did not say in her first interview that the accused made her touch his penis or that he threatened her if she told anyone what he had done.[53]
[53] T 63-64.
AJS said that she slept over with SM and the accused at the following houses: Waller Street, Mead Street, Drayton Street and McKenzie Road.[54] She went to all of those houses because she wanted to see SM.[55] She was asked whether she thought there was a risk that the accused might keep touching her if she went to stay at a house in which he was living and she said ‘I had a thought…about it’ but said that when she went to stay at their house after they had moved out from her mother’s, ‘I thought it would be different’.[56]
[54] T 65.
[55] T 65.
[56] T 66.
It was put to AJS that by this time she expected him to try and touch her at night. She said that was wrong and she did not expect him to do this but did not know why she thought this.[57] I asked AJS whether she was worried that the accused might do this again and she said yes.[58] She continued to go because she wanted to see her sister.[59]
[57] T 66-67.
[58] T 67.
[59] T 72.
AJS said that after SM and the accused moved out of her mother’s house, they would visit her at her mother’s house every weekend, if not sometimes during the week.[60] Sometimes SM would come on her own with R, but they would never stay overnight.[61]
[60] T 72.
[61] T 73.
AJS said that after the first and second time the accused touched her when she visited him and SM after they moved out of her mother’s house, she expected that he would not touch her. She could not explain why she thought this. The accused touched her another 2-5 times on different days after this.[62] She said she continued to go over because she wanted to see her sister. AJS said there was never a time when she was alone with the accused.[63]
[62] T 74.
[63] T 75.
AJS agreed that she did not mention in her first interview that the accused showed her pornography. She was asked why she did not mention this, and she said she did not know.[64]
[64] T 76.
When the accused and SM (and R) were staying at her mother’s house, they shared her room. The other people living in the house were her mother and her sister BS.[65] Her mother and BS had their own rooms.[66] When the accused and SM were sharing her room, they had two mattresses put together.[67]
[65] T 76-77.
[66] T 77-78.
[67] T 78-79.
The accused would touch her when she was watching cartoons. It happened when SM left the room.[68] Sometimes the light would be on and other times it would be off. SM would leave the door open when she left the room. There were times when her sisters were home when the accused touched her.[69]
[68] T 79.
[69] T 80.
It was when the accused and SM were living at her mother’s house that he made her touch his penis for the first time.[70] AJS agreed that she told the police officer that he tried to touch her every night and it would happen every time she got into bed. AJS said that most of the time he would also get her to touch his penis.[71]
[70] T 80.
[71] T 81.
AJS said that there were times when the accused would touch her when he and SM were living in the caravan outside her mother’s house, and he tried to make her touch his penis once.[72] This one time occurred during the day. AJS said it was not even five steps from the front door of the house to the door of the caravan.[73] AJS agreed that it would only take a few seconds for someone coming out of the house to walk into the caravan.[74]
[72] T 81-82.
[73] T 82.
[74] T 82-83.
AJS said there were times when SM was inside the caravan when the accused tried to touch her on the vagina.[75] On those occasions, SM was asleep next to her. SM was close enough for AJS to be able to reach out and touch her.[76]
[75] T 84.
[76] T 84.
AJS said the accused only tried to touch her once at the Jones house.[77] AJS said she was sleeping on the corner part of an L shaped couch which was only big enough for one person to sit on. She slept with her legs tucked up wearing pyjamas facing towards the mattress that the accused and SM were on.[78] She had a pillow and a blanket over her. The accused reached up with his arm and touched her on the skin of her vagina.[79] Before doing this he had tried to pull her pants down and in doing so moved her legs.[80] Her legs straightened out and were nearly hanging off the edge of the couch. She pulled her pants back up the first time and went back to sleep, but he tried to pull them down a second time with one hand and she woke up.[81] She felt her pants going down and she pulled them back up.[82] She rolled over and faced the couch. It was during the first time that the accused tried to pull her pants down that he touched her vagina.[83]
[77] T 85.
[78] T 86-87.
[79] T 88.
[80] T 89.
[81] T 90.
[82] T 91.
[83] T 92.
She could not recall the accused making her touch his penis at the Jones house.[84]
[84] T 93.
AJS said she had not discussed with BS what she told the police officer. In November 2021, between her first and second interviews with police, her mother came to her and asked her if she was holding anything back that she had not told the police. AJS told her mother that she was not holding back anything.[85]
[85] T 93-94.
After AJS spoke with the police officer for the first time she was scared of the accused, did not like him, did not want to be around him and did not want to talk to him. AJS said she could not remember trying to contact the accused on Facebook.[86] AJS was shown a screenshot from Facebook Messenger and agreed that it was her Facebook profile and showed a message she sent to the accused in which she wrote ‘Oi James’: Exhibit D6. AJS did not know the date she sent the message but said it was after she talked to the police officer for the first time. She could not recall why she sent that message.[87]
[86] T 94.
[87] T 95-96.
AJS said she was not sure whether she and BS stayed overnight at the same time at the Waller Street home. She agreed that SM and the accused lived there with a housemate named Isaac.[88] She said there were two bedrooms and only two beds in the house. There was a couch in the loungeroom.[89]
Re-examination
[88] T 97.
[89] T 98.
Pursuant to s 13BA (5) EA I permitted Mr Tate to ask AJS questions on two discrete topics in re-examination.
AJS said that she could not recall whether she slept in the caravan out the front of her mother’s house. AJS said that she never liked the accused because of the way he treated her sister.[90] AJS did not want to be around the accused because she knew what he did to her, and BS told her what the accused did to her.[91]
[90] T 106.
[91] T 107.
The complainant – BS
The recording of the interview between BS and prescribed interviewer Senior Constable Victoria Nitschke on 16 August 2020 was admitted pursuant to s 13BA (3) EA: Exhibit P1. The transcript of that interview was marked for identification and used by me as an aide memoire. I was satisfied that the statutory conditions for admission were met, in particular, s 13BA (3)(b) EA. I note that parts of that interview were redacted by agreement between counsel.
Prescribed interview – 16 August 2020
BS was 14 when she was interviewed. The interview lasted one hour and five minutes.
BS said she was sleeping at SM’s house when she was pregnant with her niece and AJS was there as well. AJS had to sleep in the bed with SM because she was pregnant. The accused used the excuse that the three of them could not fit in the bed, so BS slept in a single bed with the accused. She then described what happened next:
And then I woke up to him like pulling my pants down and I didn’t really know what to do so I just like kind of – not just sat there but like didn’t know what to do so I kind of froze. And then he started to like touching down there. And then he stopped for a while and I think I fell asleep because then I woke up again and like I felt him trying to like put you know, his penis in and like so I just like clenched my legs in really really tight and I just pretended I had to go to the toilet. And then I climbed in bed with [SM]. But like it was a lot more that happened, but I don’t know how to say it.[92]
[92] MFIP1A: A 78.
BS said she had been sleeping at SM’s house in Waller Street. SM was ‘big pregnant’ with R at the time. BS said that when she woke up to the accused pulling her pants down and sliding his hand on her knee she did not think anything of it at first because her family was a cuddly family, and she slept with her mother and father sometimes. However, when the accused actually started touching her vagina she froze. He then gave her his phone which had YouTube on it and asked her, ‘do you like that?’. She did not know if he was talking about YouTube or what he was doing, and she did not say anything. She then said:
So, like I kind of tried to go to sleep and hoped it stopped. And then like when I woke up the second time, I could like feel him trying to put it inside me I guess if that makes sense.[93]
[93] MFIP1A: A 128.
BS said she was lying on her side at the time and the accused was behind her. His hands were on both sides when he was pulling her pants down. His hand then went under her pants on the top part of her vagina ‘like kind of like near the clit if that makes sense…’[94] She then felt some of his fingers on the side of her inner thighs. She could not remember anything after that and thought she fell asleep.
[94] MFIP1A: A 160.
BS then said that when she woke up a second time ‘he was like trying to put it in’. She said ‘it’ was his penis. She said the accused kept putting his head down near his penis and it felt like he was ripping something off. He was behind her at the time. BS said she had one leg behind the other one:
But then like when I started to feel his penis going[95] like closer I like put it like with my legs crossed and just clenched.[96]
[95] In MFIP1A the transcript records ‘go in like closer’. Upon reviewing P1, the words that were in fact said were ‘going like closer’.
[96] MFIP1A: A 188.
BS said she felt his penis ‘like going in, not in but like around that area [inaudible word] if that makes sense…like generally the vagina hole I guess I don’t know how to explain it…like I felt the…not the tip but like the tip kind of like start going in – so I like clenched[97]… my legs like I just shut them like.[98]
[97] In MFIP1A the transcript records ‘like on, not in but like around that area #### if that makes sense…like generally the vagina hole I guess…I don’t know to…like I felt the…not the tip but with the tip kind of like start going in – sort like I clenched’. Upon reviewing P1, the words that I heard being said were as set out above.
[98] MFIP1A: A 190-196.
The accused then told BS not to tell anyone and she then got up, went to the toilet and then climbed into bed with AJS and SM. She was wearing a blue singlet dress and black leggings.
BS drew a picture of the layout of the house: Exhibit P2.
BS was asked to describe again what the accused was doing with his hand and fingers when he touched her vagina. She was given an empty glove box and she demonstrated where his hands were and said, ‘I just remember like, like going like all around like…even up my thigh…just rubbing everywhere’.[99] BS can be seen on the footage moving her hands around the outside of the opening on the glove box.
[99] MFIP1A: A 377-382.
BS said she thought the dance show ‘Next step’ was playing on YouTube.
BS was asked to demonstrate with the glove box where she felt the accused’s penis. She did so and said that she felt his penis ‘like all around the sides…of the hole like and obviously I wasn’t gonna let him…and then like, I just like kind of not rolled over but like rolled over and just like put my legs together and just clenched.’[100] BS placed the left side of her palm on the glove box and her right hand on the other side. Although she can be seen to be moving her right hand on the glove box, it is not possible to see precisely what she was doing as the view of her hand was largely obscured by her left hand.
[100] MFIP1A: A394-398.
BS said that the accused’s penis was on the outside of her hole. She then said:
Like when I started to feel like it started like hurting, I guess cos like it started[101] not hurting but not even stinging but like just a weird feeling down there so like I just clenched, like I didn’t know what else to do.[102]
[101] On the audio recording BS can be heard to say ‘started’. The transcript records ‘sort of’ which is incorrect.
[102] MFIP1A: A 406.
BS was asked if she told anyone about what happened, and she replied:
No…oh besides me and like [AJS] we like had a little talk about it cos I thought I saw him do it to her, so I just asked her about it and like she didn’t really tell me much, but I know I saw it. And then like she’s not really open about it but I saw him take her hand and put it on his thing – his penis…this was like not recent but recent. [R] would’ve been like one and they were living in a caravan in our front yard.[103]
[103] MFIP1A: A 412, 414.
BS said that after she saw this, she got out of bed:
…and me and [SM] were mucking around and like I was like hoping this would like give us something, I was like, ‘should I pull the blanket’ like mucking around and she’s like ‘yeah do it’. And we like ripped it off and James’ hands went like this and like Andrea went like like this. So, like I remember that I was asking [SM] she remembered pulling off the blanket and she said, ‘she remembers goofing around like that’. But like I didn’t tell her why I wanted to pull it off cos I was kind of hoping that she’d see something and then it could’ve come out then but…[104]
[104] MFIP1A: A 428.
BS explained that she was in the bed with AJS and the accused when she saw him take her hand and put it on his penis. BS was lying on her back next to AJS who was lying on her back next to the accused. SM was on the couch part of the caravan. She thought she saw the accused touching AJS, but she was not ‘a hundred percent on that’. She then saw him grab her hand and make her hold his penis. AJS had been holding the accused’s phone with two hands. The accused put his knees up and then grabbed AJS’ right hand with his hand. All of this happened when the three of them were under the blanket which was over their heads. BS said she could see the whole of the accused’s penis. She was asked to describe it and she said ‘a penis. I don’t know’.[105] She said this happened either early, like 11am or after school time. BS drew a picture of the layout of the caravan: Exhibit P3.
[105] MFIP1A: A 540.
When BS and SM pulled the blanket off AJS and the accused, his hands went up, but his penis was not out. BS said, ‘we all just played it off as a joke like…I know what I saw but I just kind of kept it to myself’.[106]
[106] MFIP1A: A 642, 644.
BS said her sister CH was the second person she told about it. The first was her boyfriend, CP. She told him a week or two before the interview. BS and CP were on the messenger call at 4.00am and they were talking about a Facebook post that BS had made about the release of girls who had killed their rapists and she said to him, ‘…until stuff like that’s happened to you like you don’t not agree with me like is, as a joke, like we just joke around like that. And then like he was like ‘wait have like what’s happened to you’ and like I don’t know it just came out I don’t know.’[107] After that CP told her that it would be better if she told someone, and he would support her if she wanted.
[107] MFIP1A: A 678.
BS said that her sister CH told her that SM had told her that she might have seen the accused do something to AJS, ‘like touch her or something or hovering over her while she was asleep’.[108] BS said she then broke down and started crying and then BS told her. CH told BS that they had to tell SM and CH told SM.
Sworn evidence
[108] MFIP1A: A 716.
BS was 16 when she gave evidence. Pursuant to s 13BA (5) EA I conducted an inquiry into her capacity to give sworn evidence. Following her answers to questions by me I was satisfied that she understood the difference between the truth and a lie and an acceptance of the moral and legal sanctions that flow from not complying with the declaration to tell the truth.
The court was closed during her evidence, and it was recorded by audio-visual means. A one-way screen was erected between BS and the accused. Pursuant to s 13A (12) EA I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to the BS’s evidence.
BS said that in August 2020 she spoke with a police officer and described two occasions that the accused touched her. The first occasion was when the accused touched her vagina. She said that he touched her vagina, ‘from the top to the bottom, like my pubic area, my lips I guess, my – just my vagina’.[109] BS said that her reference to her lips was ‘the clit area, like all the – everywhere except the hole’.[110]
[109] T 113, 23-24.
[110] T 113, 27-28.
BS said that when the accused was touching the outer lips of her vagina his fingers went in between them.[111]
[111] T 119.
BS said that the second incident she described to the police involved the accused’s penis. She said he was behind her and ‘it was trying to go into my vagina’.[112] BS said she felt his penis around her ‘hole’ but said it did not go inside her vagina.[113]
Cross-examination
[112] T 124, 6-7.
[113] T 124.
Pursuant to s 13BA (5) EA I permitted cross-examination on topics identified by Mr Marcus in his application. The application was not opposed by Mr Tate.
BS said that the accused touched her at the house at Waller Street Mansfield Park. He was living there with her sister SM.[114] BS agreed that a man named Isaac also lived there after R was born which was after the accused had touched her.[115] The accused touched her in the spare bedroom at night-time. She was in a bed with the accused and SM was in the bedroom with Andrea; a bedroom she usually shared with the accused. SM was pregnant at the time. [116]
[114] T 124-125.
[115] T 125.
[116] T 125-126.
BS agreed that when she was interviewed by a police officer she did her best to tell her the truth and to tell her everything that happened, and she made sure she did not make any mistakes. BS agreed that she told her that the accused touched her vagina with a finger and then with his penis on the same night. She told the police officer that when the accused started trying to touch her vagina, he handed her a mobile telephone to watch a YouTube video. She was wearing a blue dress with black tights.[117] She was wearing knickers but did not recall wearing a bra.[118]
[117] T 127.
[118] T 128.
When BS felt the accused’s hand going down her knee and then went underneath her underwear and tights. She did not try to stop him because she was petrified. He had handed her the mobile telephone before the touching started.[119] The first time he touched her, she rolled over to go to sleep. He said, ‘do you like that’ while he was touching her.[120] BS could not recall when his hand came out of her underwear.[121]
[119] T 129.
[120] T 130.
[121] T 130.
On the second occasion, BS did not actually see the accused’s penis. She had her knees curled and was clenching her legs together going to sleep.[122] When she woke up the accused was pulling her tights and underwear with his hand by pulling on the left and then on the right. She was lying on her side.[123] The accused was able to pull her tights down on the side she was lying because she would jolt when he pulled them down on her left side.[124] She did not try to stop him pulling her tights down.[125] When asked why not, she said, ‘I just clenched. I was 11’.[126]
[122] T 131.
[123] T 132.
[124] T 133.
[125] T 134.
[126] T 135, 2.
BS said her tights came down to just above her knees which were on top of each other.[127] Her underwear came down with her tights. The accused did not say anything to her the second time.[128]
[127] T 135.
[128] T 136.
The first incident did not last longer than ten minutes. During this time, she was watching a video while the accused’s hand was inside her pants. The second incident lasted about the same time.[129]
[129] T 137-138.
BS agreed that there were times when she and AJS would fight when they were visiting SM and the accused. SM and the accused did not want the two of them together at their house because they would fight over R. SM and the accused told her and AJS that they could not stay over together at their house, but this was never implemented.[130]
[130] T 139.
BS said it was the accused’s idea to sleep in the bed with her on the occasion he touched her, because SM was heavily pregnant. The accused told her that SM and AJS would fit in one bed.[131]
[131] T 140.
BS agreed that her father would not let her and AJS stay in the caravan overnight. Her parents did not like the accused, so she was not allowed in there.[132]
[132] T 140.
BS said she had not spoken to AJS about what the accused had done and AJS had not told her anything the accused had done to her. Other than the two people she talked to about what happened, she had not discussed it with anyone else.[133]
[133] T 141.
BS said that after the touching at the Waller Street house, the accused and SM moved into the caravan at her parents’ house. They then moved in with Michael Jones in a house near Port Adelaide. She never stayed overnight at that house but would visit the house.[134] The accused and SM then lived with the accused’s mother for a while. BS also visited SM there but did not stay overnight. The accused and SM then moved to a house at Bowden. BS stayed overnight there. At a later stage, the accused and SM moved back in with her family and stayed in a caravan again out the front of the house.[135]
[134] T 143.
[135] T 143-144.
When the accused and SM were living in the caravan the first time R had just been born. The second time she was a toddler. The accused and SM moved out of the caravan the second time and into a house at McKenzie Road, Elizabeth Downs. BS visited them there.[136]
[136] T 144.
BS stayed overnight at the Bowden address. When she did so there were other people there, either the accused’s siblings or AJS. BS said that she continued to visit the houses that the accused lived in for multiple reasons, including protecting her niece, seeing her niece and family and because she did not understand how wrong the accused’s behaviour was. When she slept overnight, she slept in the loungeroom on a lounge.[137]
[137] T 145.
BS agreed that she told the police officer that when she was in the caravan she saw the accused making AJS touch his penis on a bed under a blanket. She was under the blanket as well. She and SM then decided to rip off the blanket as a surprise. When they ripped off the blanket, she did not see the accused’s penis.[138]
[138] T 146-147.
SM – sister of complainants, ex-partner of accused
I granted an application for SM to give evidence with a one-way screen between her and the accused. Pursuant to s 13 (7) EA I direct myself that this arrangement does not permit me to draw any inference adverse to the accused and nor does it influence the weight to be given to the SM’s evidence.
SM was 29 years old when she gave evidence. In addition to BS and AJS, her other siblings were three sisters, K, B and C. Their mother, MA died in March 2023. SM had one child, a daughter R, born 8 June 2017. Her father is the accused. She was in a relationship with the accused for 8 years from 2011 to 2020.[139]
[139] T 152-153.
SM lived with the accused in a number of different houses over the course of their relationship. They lived at Waller Street, Mansfield Park from late 2016 to 2017 or 2018 in a private rental. Rachel was born during the time that they lived at that address.[140]
[140] T 153.
A floor plan of the Waller Street premises was tendered on which SM had marked the bedroom she shared with the accused: Exhibit P7. Bedroom 2 was a spare bedroom.
SM said her mother lived at Harvey Road, Elizabeth South from 2011. SM lived there with the accused in a caravan in 2018 or 2019. At the time her sisters BS, AJS and C were living there.[141] After this she and the accused lived at a house on Mead Street, Birkenhead. That house was occupied by a friend of the accused’s family, Michael Jones.[142] SM could not recall when it was that they lived with Michael Jones, but it was after R was born and for a couple of months.[143]
[141] T 156.
[142] T 157.
[143] T 157-158.
SM said, of all of her sisters, she was closest with AJS. There were occasions when AJS stayed in the caravan, at Michael Jones’ house and the house in Waller Street.[144] AJS stayed overnight at the Waller Street house about three or four times a week. When she stayed over, she either slept with SM or on the couch. She also visited them at Waller Street without staying the night. AJS did not stay overnight in the caravan but was in there during the day. While they were living at Waller Street, SM could not recall visiting AJS at her Elizabeth South home.[145]
[144] T 158.
[145] T 159.
AJS also stayed over at the Jones house. She would sleep on the couch in the loungeroom while SM slept on a mattress on the floor with the accused. The couch was L-shaped. AJS stayed at the Jones house about the same number of times as she did the Waller Street home. The couch was very close to the mattress, about one foot away.[146]
[146] T 160-161.
SM said that AJS and the accused seemed to get along ‘fine’. BS visited the Waller Street home but not very often. She slept over once in bedroom 2. SM was pregnant with R at the time.[147] BS slept over on the night that SM had a baby shower.[148] No one else slept over that night and AJS never slept over the same time as BS at that address.[149]
[147] T 164.
[148] T 165.
[149] T 162.
SM said that there were a couple of times when the accused slept in the loungeroom if they had an argument, but she could not remember where he was the night that BS stayed over. BS never stayed overnight in the caravan because her father would not allow it. BS never stayed overnight at Michael Jones’ house, but she did visit sometimes.[150]
[150] T 163-164.
SM said that after she went to bed on the night that BS stayed over in bedroom 2, BS woke her up and got into her bed, telling her she had a nightmare. She slept with SM for the rest of the night in bedroom 1.[151] The accused was in the bed before BS came in but was not in the bed when BS came into her bed. She did not recall him returning to the bed that night.[152]
[151] T 165.
[152] T 166.
When AJS came over to stay, that was arranged by SM and on three or four occasions by the accused when they were living at Michael Jones’ house and on Waller Street.[153]
[153] T 166.
The caravan in which they lived at her mother’s house was rented by the accused. Photographs of caravan similar to the one they lived in were tendered: Exhibit P8.[154]
[154] T 167.
When the accused and SM were living at Waller Street, a friend, Isaac was also living there. He moved out a few months before R was born because SM wanted the room empty for R. After Isaac left, it was just the three of them living there.[155]
[155] T 173.
The caravan they lived in at her mother’s house was not very big; it had a table, bed but there was hardly any room to walk. There was a television with an X-box in the caravan in front of the bed.[156] SM did not say when the television was put in the caravan. The accused would often use the X-box and television, five to six hours a day, possibly more. SM could not recall the television being used to watch normal channels but was mainly used for video games.[157]
[156] T 173.
[157] T 174.
SM shared a bed with the accused in the caravan and R slept on another bed on the other side of the caravan. BS would come in and hang out with SM during the day for a couple of hours. The accused spent a lot of time in the caravan. He went into the house to go to the toilet or have something to eat. SM would also go into the house. When BS came into the caravan she would play with R or watch television. She did not stay overnight because her father would not allow it. AJS also visited in the caravan during the day and spent a bit more time there than BS. She was often on the bed or playing with R. She never slept in the caravan because she was not allowed to.[158]
[158] T 174-175.
SM said there was a time when she walked into the caravan, and she saw the accused and AJS lying next to each other on the bed.[159] There was a blanket over them. It was the afternoon. When SM walked in, BS was with her. SM gave this evidence:
I actually had [BS] with me. We walked in. I seen them two on the bed and I said, ‘What have youse been doing’ and nobody answered me. So, I just didn’t think anything of it.[160]
[159] T 176.
[160] T 177, 19-22.
When SM walked into the caravan, BS was behind her. SM could not recall if R was in the caravan at the time. The blanket over the accused and AJS was a big white thick blanket.[161] They were covered from the waist down by the blanket. They were both wearing clothes.[162] The accused and AJS did not reply to SM, but AJS got out of the bed and looked as if ‘she got busted…like a guilty look’.[163]
[161] T 177.
[162] T 178,
[163] T 179, 19-21.
SM’s relationship with the accused ended two days before his birthday on 16 August 2020. It ended because SM ‘caught him about to touch my sister’.[164] This occurred in a house that she was not living in with the accused, but he was spending time there. AJS and the accused had spent the night there and SM and the accused were sleeping in SM’s bedroom on the floor on a mattress. AJS was sleeping on a little mattress at the end of her bed where her feet were.[165]
[164] T 179.
[165] T 180.
SM heard the accused go out of the room and come back and she then saw him leaning over AJS. This occurred around 4 or 5am in the morning. He was leaning over with his left hand about to go under the blanket. SM said, ‘what are you doing’ in an angry concerned voice and he ‘just froze and then got up and went to the bathroom’.[166]
[166] T 181, 33-34.
SM followed him to the bathroom, knocked on the door and when he opened it she said, ‘what was that?’. He said he was feeling sick. She asked what he was doing and then went back to bed and ignored him for the rest of the day. AJS stayed in bed and when she woke up the next day the two of them went to her mother’s house.[167] SM did not see the accused again after her conversation with him in the bathroom.[168] It was that day that SM found out what the accused had done to her two sisters.[169]
[167] T 182.
[168] T 182.
[169] T 183.
During the course of their relationship, SM said that the accused:
A…would ask me things like would I have a threesome with them, if – when they’re older – and stuff like that.
QYou said a threesome with them. Did he ever talk about a particular sister.
AMainly [AJS].
QDid he ever talk about [BS] in that way.
AA couple of times, but it was more [AJS] he mentioned.
QWhat, if anything, did you ever say to that.
AI would tell him no, I would not do that.
QWas that something that happened once or more than once.
AMore than once.
HER HONOUR
Q[SM] when you said that Mr Rideout said those things – he said – he asked whether you would have a threesome when they were older, did he give a – did he say what age or did he just –
ANo, he wasn’t specific…from what I can remember.
QWhat did you understand what – that to mean,
ANo I asked like as in adult…but –
QAs in-
AAnd like as an adult.
QAs an adult, thank you.[170]
[170] T 183, 24 – 38; T184, 1-9.
SM described the couch at the Jones house. It was L-shaped with four single couch seats put together. It was three quarters the length of the bar table.[171]
Cross-examination
[171] T 185.
SM confirmed that she was not pregnant at any time when she was living in the caravan at Harvey Street Elizabeth South.[172] By that time R had been born.[173]
[172] T 185.
[173] T 186.
SM said that Isaac lived at the Waller Street home for about half the time that she and the accused lived there. He was not living there when BS or AJS stayed over. He had moved out before then. SM agreed that sometimes BS or AJS would sleep on the couch in the lounge or with her in her room and not the spare room. However, SM said that BS stayed overnight in the spare room once.[174]
[174] T 186.
SM agreed that she and the accused lived in the caravan for about six to eight weeks. They then stayed at the accused’s mother’s house for a couple of weeks and then moved to Michael Jones’ house at Birkenhead.[175]
[175] T 188.
Michael Jones’ house had two bedrooms. SM and the accused stayed in the second bedroom which was initially full of Mr Jones’ possessions.[176] There was only enough room in the loungeroom where the four-piece couch was for a mattress to go on the floor.[177]
[176] T 189.
[177] T 190.
SM said that when AJS slept over they all slept in the loungeroom. R was either next to SM or on the couch with AJS. SM said that AJS and BS never slept over at the same time, although they did visit together.[178] She and the accused stayed at the Jones house for a few months and then moved back into her mother’s house.[179] They then moved to a house on Drayton Street in Bowden for six months. AJS would regularly stay overnight there. During the school holidays it was three or four days in a row. SM would also visit her mother and take R with her. Most of the time this was without the accused. After living in Bowden, they then moved to a house on McKenzie Road which is where she saw the accused leaning over AJS. AJS was visiting with the same regularity when they lived at McKenzie Road and SM was visiting her mother’s house at this time.[180]
[178] T 191, T 206.
[179] T 192.
[180] T 192-194.
SM agreed that BS and AJS would argue and fight a lot. This was the main reason that they would not stay over together at the Waller Street address.[181]
[181] T 191.
SM said that her sister CH told her what BS had said the accused had done to her. AJS told SM, CH and their mother about the things that the accused had done to her. SM discussed with CH and their mother what BS and AJS had said. SM did not talk to AJS about what she knew BS had said.
CH – sister of complainants
CH said that AJS had always been very close with SM and as a result was around the accused a lot.[182] AJS often slept over at the places SM and the accused were living. BS did so, but not as often.[183]
[182] T 209.
[183] T 210.
In August 2020, CH became aware of allegations made by BS and AJS against the accused. CH explained how she came to learn of the allegations:
No, so what happened was, first, [SM] spoke to me at what she had seen one of – like, the night, that she’s seen it, and then after that – so [SM] didn’t tell me anything further from there because obviously it wasn’t out yet. And then after that, when we found out more, it was from the girls, so [AJS] yeah. So, it wasn’t from [SM] or Mum about the allegations, it wasn’t from them directly; it was – I found out through [BS], yeah, if that answers that.[184]
[184] T 210, 30-38.
CH explained that BS told her about the allegations and then later she spoke with AJS about her allegations. When CH spoke with AJS, BS was in the house but not in the loungeroom where they were talking about it. It was that same day that her mother called the police.[185]
Cross-examination
[185] T 212.
CH said that she learned about the allegations made by BS and AJS before they went to the police. CH was then asked:
QDid you ever have a discussion with [BS] about what [AJS] had said had happened.
AI’m sure we did, yeah.
QDid that happen before they went to the police.
APotentially before and definitely after. Yeah, I think me and [BS] obviously spoke about it a lot, but – can you repeat the question?
QYes certainly, asking if you had a conversation with [BS] –
AYeah.
Q– about the things that [AJS] had said James had done.
ALittle bits. So maybe every now and then something, either something new would come up or – before going into the police station I didn’t know the full – like as much as what I have later found out if that makes sense. So yes, me and [BS] have spoken about it. yes.
QSpoken about things [AJS] said happened, is that right. I’m just trying to understand what you said.
AYeah, yeah. We’ve spoken about everything so yeah, I assume so.[186]
[186] T 213, 12-33.
CH said that she was not sure whether these conversations occurred before going to the police station, but this was possible. It was definitely discussed after the girls went to the police station.[187] CH then said she did not think she would have spoken to AJS about what happened to BS before they went to the police but she thought ‘after everything had settled after I think we had that discussion’.[188] CH said she spoke to AJS about what happened to BS after they went to the police station the first time.[189] CH gave the following evidence about the discussions that occurred:
…We had had a lot of, in our family, a lot of discussions, and whether the girls are there or not, I barely remember. It’s a big house, a lot of people. I’m not sure.
HER HONOUR
QSo, when you say you’ve had lots of conversations, who had been involved in those conversations.
AMum.
QOkay, and who else.
A[SM], [BS], [AJS], myself. Not, definitely not after mum got sick, it really didn’t get brought up much at all. But before mum was sick, it was probably like the worst thing going on, so it was spoken about from time to time, yeah.[190]
[187] T 214.
[188] T 215, 31-32.
[189] T 217.
[190] T 217, 36-38; T 218, 1-11.
CH said her mother became sick about a year and a half ago.[191]
Re-examination
[191] T 218.
CH said that the conversations with BS and AJS and others about the allegations were conversations that did not go into too many details. CH said that she did not discuss times and dates but she ‘definitely tried to get them to talk about it’ and said she was referring to the physical conduct that occurred. The conversations were quite general.[192]
[192] T 221.
Michael Kenneth Jones
Mr Jones said he had lived at Mead Street Birkenhead for almost nine years. It is a two-bedroom house with a large front door. Mr Jones had known the accused for many years and first met him when he was bailed to his house through the youth justice system.[193]
[193] T 224.
The accused stayed in Mr Jones’ house for about four months in 2020 with SM and R. They slept in the top bedroom which was his hobby room. R sometimes slept with SM and the accused, but sometimes they would put her down on a huge lounge that took up all the space in the loungeroom.[194]
[194] T 225.
I have given consideration to the submission by Mr Marcus that I should warn myself that it is unsafe to convict on the uncorroborated evidence of AJS. The prohibition in s 12A EA does not apply in a trial by Judge alone.
In R v Haak[263] Kourakis J (with whom Sulan and Stanley JJ agreed) observed that section 12A EA should be construed against the background of the common law under which there was a discretionary practice, not a rule of law, that judges would often warn juries that it was unsafe to convict on a child’s uncorroborated evidence although they may do so if convinced that the witness is truthful and reliable. Nevertheless, the authorities that have considered the application of s 12A EA and when the warning is to be given are instructive on the question of whether this is a case where I ought to reason that it is unsafe to convict on the uncorroborated evidence of AJS.
[263] (2012) 112 SASR 315.
In R v Haak, Kourakis J observed:
In my view, the warning required by s 12A of the Act is that it is unsafe to convict on the particular child witness’s evidence because there are cogent reasons, “apart from the fact that the witness is a child”, to doubt the reliability of his or her evidence because of his or her state of cognitive development, psychological immaturity, susceptibility to influence, or other youth related circumstances. Inconsistences between the accounts given by a child, a paucity of detail, or the inclusion of fanciful details all may, depending on the circumstances, raise the prospect that the child’s testimony is affected by such factors. It is not possible to be definitive about the features of a child’s evidence which will engender that concern. However, only when cogent reasons to doubt the child’s testimony are related to the juvenile immaturity to which the child witness warning alerts juries must a judge warn the jury that it is “unsafe to convict on a child’s uncorroborated evidence”.
Other inconsistencies, improbabilities or weaknesses, which are not related to the developmental factors which may detract from the reliability of a child’s testimony, may call for a special comment or warning in the circumstances of the particular case. That, however, is another matter altogether and is entirely within the discretion of the trial judge.
…
In this particular case, C was very young at the time of the offending and when she gave evidence. I accept that some aspects of C’s evidential accounts which the appellant contends give reason to question her reliability reflect her limited cognitive development. However, for reasons elaborated below in relation to the unreasonable verdict ground of appeal, properly understood, those features of C’s evidence do not give any cogent reason to think that her evidence of the offence itself might be the false product of her still developing, juvenile cognitive capacity.[264]
[264] At [31] – [32], [35].
In R v Mattson,[265] Sulan J (with whom David and Stanley JJ agreed) said:
The question of what amounts to “cogent reasons” will depend on the circumstances in each case. The fact that a young child, giving evidence some years after the event, may have given inconsistent accounts about matters peripheral to the actual events do not, of themselves, amount to cogent reasons. The fact that there are some issues for the jury to consider, and even for the jury to be concerned about, does not mean that there are cogent reasons to justify a warning in terms of s 12A. For cogent reasons to exist, they should be compelling, convincing and powerful. What amounts to such reasons will depend on the circumstances of each case. An error in the date or time when events occurred may, in some cases, be crucial, whereas, in others, it may be of less significance. In some instances, the exact description of where an offence is alleged to have taken place may be of great importance to the assessment of the child’s reliability, whereas, in other cases, it may throw little light on that issue.
In my opinion, the complaints about the complainant’s evidence do not amount to cogent reasons to doubt the reliability of her evidence. The fact that inconsistencies existed is not sufficient to constitute cogent reasons requiring a warning to be given. As I will come to discuss, the inconsistencies were not so pervasive as to constitute powerful or compelling reasons to doubt the complainant’s evidence.[266]
[265] [2011] SASCFC 114.
[266] At [20] – [21].
The submission made by Mr Marcus overlooks the fact that there is, on the prosecution case, some corroboration of AJS’ evidence. BS gave evidence that she saw the accused put AJS’ hand on his penis in the caravan. If I accept this evidence, AJS evidence is not entirely uncorroborated.
In any event, if I did not accept the evidence of BS on this topic, I do not consider that the evidence establishes developmental factors which may detract from the reliability of AJS’ testimony. In my view the other inconsistencies, improbabilities or weaknesses relied upon by Mr Marcus, which are not related to the developmental factors which may detract from the reliability of a child’s testimony, may call for a special comment or warning should I conclude that AJS’ evidence is attended by those deficiencies.
Assessment of witnesses and accused’s record of interview
Mandy Rideout
Ms Rideout was a nervous witness. I accept her unchallenged evidence about her efforts to contact Isaac and her conversations with him. I have not used the evidence of what Isaac said to her for testimonial purposes, but for the limited purpose of explaining the actions of Ms Rideout in response to requests by the accused’s legal representatives.
I accept her evidence of the occasions she attended Waller Street and saw Isaac there. However, it became clear in cross-examination that her evidence that Isaac lived at Waller Street was based on information given to her by her son. Clearly, as a non-resident and a visitor, Ms Rideout could not confirm that Isaac was living there and occupying bedroom 2 for the duration of the period that SM and the accused lived there or that he was sleeping in bedroom 2 on any occasion when SM or BS stayed overnight.
Accordingly, Ms Rideout’s evidence provides some support for the account given by the accused in his record of interview that Isaac was living at the premises (because she saw him there on occasion), but her evidence goes no further than that.
Detective Hogan
I accept the unchallenged evidence of Detective Hogan. No criticism can be levelled at the police for the inability to take statements from the recipients of the initial complaints. No questions were asked of Detective Hogan regarding what inquiries, if any, were made to locate Isaac Balto or Dylan Robeson. In those circumstances, I cannot make any finding regarding the adequacy of the police investigation as it related to those potential witnesses.
The accused’s record of interview
The interview was played in court after all the prosecution witnesses had given evidence and the interviews of AJS and BS had been played. I found the accused’s reaction to the allegations put to him and his responses singularly compelling. His visceral reaction to being accused of child sexual abuse struck me as genuine, as did his fervent denial of the allegations. Whilst I accept that an emotional reaction to an allegation of a crime is not necessarily a reliable indicator that a person has been wrongly accused, in this case, I formed the view that the accused was genuinely horrified by the allegations because they were not true, and it was unfathomable to him that he could be accused of such conduct. He gave a believable explanation for why he would not commit such a crime.
The accused’s interview is not evidence on oath and has not been subjected to cross-examination. By the time of the interview, he had been confronted by SM with allegations that he had shown BS his penis and had been ‘fucking’ AJS. Whilst those allegations differ from the allegations put to him in the interview, he was clearly on notice that BS and AJS were alleging that he had committed offences of a sexual nature against each of them.
Notwithstanding these matters, based on the interview alone, there was nothing that caused me to doubt the accused’s denial of having committed the offences then alleged against him. Of course, the further details of offending he is alleged to have perpetrated against AJS were not available to Detective Hogan at the time and the accused did not have an opportunity to answer those allegations.
In his interview, the accused did not attempt to downplay the closeness of his relationship with AJS or how often she stayed over or the opportunities for him to offend in the manner alleged. He gave the full names of his house mates at Waller Street to Detective Hogan when he explained that there was no bedroom for AJS to sleep in at Waller Street. His assertion that the girls never slept over together was supported by the evidence of SM. His assertion that the girls were not allowed to sleep in the caravan was supported by the evidence of SM and the statement of MA. His assertion that R had been born by the time he and SM were staying in the caravan outside MA’s house was supported by the evidence of SM and the statement of MA.
Given the confusion on the part of Detective Hogan in questioning the accused about the location of the couch in Michael Jones’ house, the accused’s assertion that there was no couch in the bedroom he shared with SM is of no significance.
The accused denied that AJS had slept over at the Jones house. This is at odds with the evidence of SM and Michael Jones and the statement of MA. However, the accused’s explanation that MA did not let the girls stay over at the Jones house but that AJS, BS and MA visited on SM’s birthday on 9 April 2020 accords broadly with MA’s assertion that she told AJS that she could not go to the Jones house and that BS did not stay at his house. SM gave evidence that BS never stayed at the Jones house. SM said she could not really remember how many times AJS stayed at the Jones house. AJS recounted multiple occasions when she stayed at the Jones house.
Given the number of houses in which the accused lived and his admissions that AJS would stay over a lot, I consider it likely that he had a faulty recollection of whether AJS ever stayed over at the Jones house. This was probably a product of his understanding of MA’s position regarding sleepovers at that house. I do not consider that this was a deliberate attempt to mislead or to suggest there was no opportunity for him to offend.
Nor do I consider the accused’s assertion that there was never a television or gaming console in the caravan a deliberate attempt to mislead. The presence of a television and gaming console is not a matter which the prosecution must prove beyond reasonable doubt. It is not a central feature of any of the charged or uncharged offending that is alleged to have occurred in the caravan.
AJS
I have approached the evidence of AJS with some caution, given my conclusion that she was not capable of giving sworn evidence.
Prior inconsistent statements
There were a number of inconsistencies in the evidence of AJS that caused me concern together with the lack of any adequate explanation for them:
·AJS could not give an adequate explanation for her failure to mention in her first interview the significant number of serious allegations of sexual offending by the accused that she made in her second interview. The technique and manner of questioning of the interviewing officer in the first interview could not be faulted and the failure to mention these matters is not attributable to the manner of questioning. In the first interview, AJS was asked to describe the first and last occasion of offending that she could recall. She recalled the occasion when she was woken by SM confronting the accused about what he was doing and said this was the last occasion she could recall. She then described two other occasions when the accused touched her sexually and pinpointed the first as occurring in the caravan when SM was pregnant with R. AJS described the identified occasions in some detail, including the location, the persons present and whether R had been born. She was asked if there were any other times she could recall. She shook her head.
·Almost two years later, in the second interview, AJS said that accused had touched her on the vagina 7-8 times before what she had previously described as the ‘first’ occasion in the caravan when SM was pregnant. She then said the ‘first’ time was when she was 9 years old, and the accused and SM were living in MA’s house. She was in the room occupied by the accused and SM, and he touched her while she was watching cartoons on the phone. AJS then alleged the accused threatened her that something would happen to R and SM if she told anyone what he had done. She was able to recall the words he used. AJS then said the touching was ‘non-stop’ after that for a couple of weeks. AJS then alleged that in her bedroom, at Michael Jones’ house and in the caravan at SM’s ‘old house’ he made her touch his penis. AJS described an occasion when she was sleeping over with the accused and SM in the caravan, but R was a newborn. The accused tried to put his fingers in her vagina and then made her touch his penis the same night. Despite saying that there was nothing else she could remember the accused doing to her, she then went on to say that the accused made her watch porn on his phone twice in the Waller Street home. In that interview, AJS was shown a Facebook message that she had sent to the accused between the dates of the first and second interview and she said she could not remember the account or contacting the accused. She could not think of a reason why she would have contacted him.
·AJS said in her second prescribed interview that the accused made her rub his penis twice at the Jones’ house. She said they were different occasions from the occasion when the accused touched her at the Jones’ house. In evidence, AJS was asked if there were any times that the accused tried to make her touch his penis at the Jones house and she said, ‘Not that I can remember’.
·The duration and nature of the further offending alleged by AJS in her second interview was such that the failure to mention it cannot be explained by way of poor memory or a later recollection of further detail.
·In the witness box, AJS did not proffer any explanation for omitting to disclose in the first interview the allegations she made in the second despite agreeing that she wanted to tell the police officer all of what happened to her. When asked why she answered ‘no’ when asked in the first interview whether other things had happened, she said she could not remember.
·AJS could not explain why she said in the first interview that the last thing that happened was when she was at Michael Jones’ house but in the second interview said that other touching occurred later when the accused was staying at MA’s house. She could not explain why she did not tell the police officer this in the first interview.
·AJS agreed in evidence that when she said in her first interview that SM was pregnant when the accused touched her in the caravan this could not be correct.
·AJS could not explain why she did not mention in the first interview the fact that the accused made her touch his penis or threatened SM and R if she told anyone what he had done. She said she did not know why she did not mention in her first interview that the accused had shown her pornography.
·AJS said in her evidence that the accused tried to make her touch his penis once in the caravan and this occurred during the day. In her prescribed interview she said the accused made her touch his penis when she was in bed with him and SM, and SM was asleep.
·AJS gave inconsistent answers in her interview and in evidence regarding the reason she continued to visit the accused and SM, despite the frequency with which the accused was touching her. At one point she said she thought things would be different when the accused and SM moved out of MA’s house and that she did not expect the accused to touch her again. She then said she was worried that he might touch her again, but she kept visiting because she wanted to see her sister.
Account not supported or contradicted by other evidence
Uncharged act of compelled sexual manipulation
The account AJS gave of being made to touch the accused’s penis in the caravan was internally inconsistent and, different from BS’ account of the occasion she said she saw the accused grab AJS’ hand and put it on his penis:
·In her second prescribed interview AJS said she was in the caravan and the accused and SM were also in the bed. It was nighttime. Before she fell asleep the accused grabbed her hand and made her touch his penis. This did not last long because SM started tossing and turning and he stopped. She said MA and BS were inside the house. In evidence, AJS said that the accused ‘tried’ to make her touch his penis once in the caravan and this was during the day.
·In contrast BS said it was either 11.00am or after school and she was under the blanket in the bed with the accused and AJS and SM was on the couch with R. After she saw the accused put AJS’ hand on his penis, she and SM ripped off the blanket.
The differences between their respective accounts are sufficiently significant for me to conclude that they could not have been talking about the same occasion. In addition, SM gave evidence of walking into the caravan one afternoon, followed by BS and finding AJS and the accused under a blanket on the bed. SM said that AJS and the accused were wearing clothes and got out of the bed after SM asked them what they had been doing.
Sleeping arrangements - caravan
SM said that AJS never slept in the caravan because she was not allowed to, but she would spend time there during the day. MA said in her statement that AJS and BS were not allowed to stay in the caravan overnight. I prefer the evidence of MA and SM on this topic. I reject the evidence of AJS that there were occasions when she slept overnight in the caravan in the bed with SM and the accused. AJS was clearly wrong when she said that SM was pregnant when she and the accused stayed in the caravan outside MA’s house.
SM and the accused living in the caravan on two occasions
AJS asserted that there was a second time that the accused and SM stayed in the caravan by which time R had been born. BS said the accused and SM stayed in the caravan twice; the first time R was newborn and the second time she was a toddler.
Neither SM nor MA said there was a second occasion when SM and the accused lived in a caravan outside MA’s property. There is no evidence of a second occasion upon which the accused rented a caravan.
Sleeping arrangements – Michael Jones’ house
AJS gave evidence that she slept over at the Jones house a number of times. When she did so she slept on a couch in the loungeroom, and SM and the accused were on a mattress on the floor. SM said that she and the accused had their own room for most of the time they stayed at the Jones house. However, she said that when AJS slept over they moved their mattress into the loungeroom. Michael Jones said that AJS slept overnight at his house on one occasion only and on the couch in the loungeroom with R. He saw them both at 4.00am in the morning. SM and the accused slept in the front room. For reasons I will explain, I prefer the evidence of Michael Jones over SM and AJS on the topic of the sleeping arrangements and how often AJS slept overnight.
SM and the accused living in MA’s house
AJS said in her second interview that when SM was pregnant but before she lived in the caravan whilst pregnant, SM and the accused were sleeping in her room in MA’s house. AJS then said that there was an earlier time when SM and the accused were staying in the ‘end room’ at MA’s house. She then said that they moved into her bedroom for two weeks because BS was in the end room and there was nowhere else to stay. It was in these locations that AJS alleged that a large number of occasions of offending occurred, including digital penetration, indecent assaults and compelled sexual manipulation.
Neither SM, MA or BS gave evidence about a time when SM and the accused moved into MA’s house and stayed in the end room or shared a bedroom with AJS. CH said they lived at MA’s house ‘multiple times’ when not in a caravan. MA said that SM moved in with her for 5 weeks after living at the Jones house the second time until the accused ‘convinced’ SM to go back to him. There is no evidence from any other witness regarding the occasion when the accused and SM lived in MA’s home in either the ‘end room’ or AJS’ bedroom. AJS’ account of the living arrangements of accused and SM when in MA’s family home was not corroborated by the evidence of any other witness.
Brazen nature of offending
There was no evidence of grooming. The offending alleged by AJS was incredibly brazen and often occurred within arm’s reach and eyesight of SM (should she have woken up or looked to see what the accused was doing). The risk of detection was high.
Despite this, SM did not give evidence of noticing anything suspicious or untoward in the interactions between AJS and the accused. Her evidence of the ‘blanket’ incident in the caravan reveals that the accused and AJS were clothed, the blanket was covering their waists down and SM’s description of what she saw was such that no inference can be drawn that she had stumbled across the accused behaving inappropriately towards AJS. She did not suggest that the accused and AJS lying together fully clothed under a blanket in the caravan was unusual or untoward. The fact that SM interpreted AJS’ reaction as ‘guilty’ or as if she had ‘been busted’ is not a sound basis to infer that AJS had just been touched sexually by the accused.
The cumulative effect of the following matters leaves me with a considerable sense of disquiet about the evidence of AJS:
·The unexplained prior inconsistent statements on material matters;
·Internal inconsistencies in the prescribed interviews and evidence;
·Unexplained subsequent contact via Facebook with the accused;
·The significant forensic disadvantage occasioned by the death of MA in testing the unsupported assertions of AJS regarding living arrangements[267] and the undisputed evidence that AJS and BS had spoken with each other or in each other’s presence about what the accused had done.[268]
·The unlikelihood of the accused offending in the manner alleged and avoiding detection.
·The accused’s record of interview and the compelling denials of offending against AJS.
[267] Even if the evidence of AJS that the accused and SM returned to live in MA’s family home was accepted, this would not make a material difference to my conclusion regarding the existence of a significant forensic disadvantage by reason of MA’s death. Nor would that bare fact provide any support for her account of offending at those premises, other than by reason of the opportunity to do so.
[268] AJS said that she never liked the accused because she knew what he had done to her and she said BS told her what he had done to BS. BS said that she and AJS had ‘a little talk about it cos I thought I saw him do it to her, so I just asked her about it and like she didn’t really tell me much…’ CH found out about the allegations before BS and AJS went to the police. There were conversations in which CH tried to get BS and AJS to talk about the physical conduct that had occurred, but the conversations were quite general. There is no evidence of what was in fact discussed but the topic of conversation was what the accused had done to AJS and BS.
As mentioned, the prosecution has not excluded the possibility of the contamination of the accounts of AJS and BS by reason of the conversations that took place between them and amongst the family. In those circumstances, I am not prepared to accept that the evidence of BS of observing the accused put AJS’ hand on his penis was the product of her own memory, uncontaminated by anything she had been told by AJS or anyone else in the family. Accordingly, this evidence does not corroborate or support AJS’ account.
BS
BS presented as a thoughtful and careful witness. However, a central feature of her account of the offending against her (count 1 and the uncharged offending that initially formed the basis of count 2) was that the accused told her she had to sleep in a single bed with him because AJS was sleeping in the bed with SM who was pregnant at the time and there was not enough room for him. It was whilst they were in bed together that the accused put his finger between her labia majora and later tried to put his penis into her vagina. After this occurred, she got into bed with AJS and SM.
SM said that BS slept over once in bedroom 2 on P7. On other occasions, BS would sleep on the couch in the lounge or with her in her room. She said no one else slept over the night BS slept in bedroom 2 and AJS never slept over at the same time as BS at that address. SM said BS woke her up and got into bed with her telling her she had a nightmare. Before BS did this, the accused had been in the bed with SM, but he was not in the bed when BS came into the room.
AJS did not give evidence of any occasion that she stayed at Waller Street with BS, let alone an occasion when she slept in the bed with SM and BS slept with the accused in the other bedroom until she joined AJS and SM in their bed.
There was nothing about SM’s account on this topic that would lead me to reject her evidence. She was able to pinpoint the night that BS stayed over as coinciding with her baby shower. Whether AJS was or was not there may not have been a material feature of BS’ account, but for her evidence that the accused used AJS’ presence that night as the reason why he had to sleep in the same bed as BS. Further, BS said AJS was in the bed with SM when she climbed in.
In addition, there is the evidence of MA, Ms Rideout and the accused that Isaac was living in the Waller Street home and occupying the other bedroom. On the other hand, SM said that Isaac lived there for half the time they were there but had moved out before either BS or AJS stayed over.
I have taken into account the significant forensic disadvantage to the accused occasioned by MA’s death in evaluating BS’s evidence of the sleeping arrangements on the night of the alleged offending and whether Isaac was or was not living there.
Although I formed an otherwise favourable view of BS’ evidence the conflict between her evidence and that of SM on this topic, coupled with accused’s compelling denials in his record of interview, has caused me to entertain a doubt about the evidence of BS that the accused offended against her in the manner and circumstances alleged.
The prosecution has not excluded the possibility of the contamination of the accounts of AJS and BS by reason of the conversations that took place between them and amongst the family. In those circumstances, I am not prepared to accept that the evidence of BS of observing the accused put AJS’ hand on his penis was the product of her own memory, uncontaminated by anything she had been told by AJS or anyone else in the family.
SM
I formed a generally favourable impression of SM as a witness. She gave her evidence in a frank and forthright manner. Where her evidence conflicted with that of AJS regarding SM’s living or sleeping arrangements with the accused, and the places at which AJS and BS did or did not stay the night, I prefer the evidence of SM. However, on the topic of sleeping arrangements at the Jones’ house I prefer the evidence of Mr Jones for the reasons that I set out below. SM said that she and the accused had their own room for most of the time they stayed at the Jones house. However, she said that when AJS slept over they moved their mattress into the loungeroom. I consider it improbable that SM and the accused would move their mattress into the loungeroom when AJS slept over, particularly as they had a young child.
In evaluating SM’s evidence I have taken into account the possibility of subconscious bias against the accused borne out of a belief that he had sexually molested her sisters. It was apparent that SM was convinced that she had seen the accused about to touch AJS in what she considered to be such an inappropriate manner that it caused her to end her lengthy relationship with the accused immediately. After this she spoke with both BS and AJS and they told her what the accused had done to them. As a result, I have also taken into account the possibility of contamination of account.
I consider that this subconscious bias was demonstrated in SM’s description of AJS’ reaction when she found her and the accused lying together under a blanket in the caravan.
Having ruled that SM’s evidence of the ‘threesome’ conversation is not admissible pursuant to s 34P EA it is not strictly necessary for me to make a finding as to whether that conversation in fact occurred. Nevertheless, I have done so. Whilst I consider it possible the accused discussed having a threesome with SM, I am not prepared to accept SM’s evidence that the discussion was couched in the terms she described. Had the accused, on a number of occasions when BS and AJS were children, expressed an interest in having a threesome with SM and AJS or BS, even if contingent upon them reaching adulthood, I would have expected SM to react in the way commensurate with her reaction to seeing the accused about to touch AJS. Instead, her response was simply to tell him ‘I would not do that’.
CH
CH gave her evidence in a straightforward manner. Her evidence was largely undisputed. She agreed that she had spoken to both BS and AJS about the allegations and that there had been discussions within the household about what had happened, both before and after going to the police. I accept her evidence that the allegations were discussed within the family. On the basis of her evidence, I am satisfied that the prosecution has not excluded the possibility of contamination of account.
Michael Jones
He was at times a prolix witness. He gave his evidence in a somewhat dramatic fashion. Nevertheless, there was nothing about the manner in which he gave evidence that would lead me to reject it. His evidence that AJS and BS did not stay the night together at his place was supported by the evidence of SM and MA. His evidence that BS and AJS fought like cat and dog was supported by the evidence of SM and Mandy Rideout.
However, his account that AJS stayed the night at his house only once was at odds with the account of SM and AJS. Mr Jones recalled that occasion in some detail. He said that AJS slept on the lounge with R, and he saw them at 4.00am in the morning when he went to the kitchen. He was quite clear in his evidence that SM and the accused slept in the front room and that there was no room in the loungeroom to fit a mattress on the floor.
I prefer the evidence of Mr Jones on this topic over that of SM and AJS. MA’s statement does not make it clear whether AJS stayed at the Jones house on only one or more than one occasion but it is clear that MA told AJS that she could not stay over there. As I have observed, I consider it improbable that the accused and SM would move the mattress from their bedroom into the loungeroom simply because AJS was staying over. I consider it much more likely that they would allow R to sleep with AJS in the loungeroom, given her clear affection towards her niece.
Conclusion
It is my task to determine whether the prosecution has proven the accused’s guilt beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s record of interview.
The findings I have made regarding the evidence of BS and AJS and the acceptance of other evidence where it conflicts with their evidence, has left me in a position where I have a reasonable doubt regarding the credibility and/or reliability of material aspects of their evidence. The compelling nature of the accused’s denials have fortified that reasonable doubt.
It follows that I am not satisfied beyond a reasonable doubt that the accused committed any of the offences charged.
Verdicts
Having already found the accused not guilty on count 2, I find the accused not guilty of counts 1 and 3.
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