R v Rout - [2023] SADC 58

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROUT
Criminal Trial by Judge Alone
[2023] SADC 58
Reasons for the Verdict of her Honour Judge Davison
17 May 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
Jarrod Scott Rout is charged with one count of Unlawful Sexual Intercourse with a child under the age of 14 years. The allegation is that he performed an act of fellatio on a 5 year old boy. The child was seven years old when he gave unsworn evidence. The accused did not give or call any evidence. Charge proved beyond reasonable doubt.
Verdict: Guilty.
Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 9, 13BA, 28, 29, referred to.
R v K, MC [2018] SASCFC 133; Mule v The Queen [2005] HCA 49; R v Allen (2011) 109 SASR 396, considered.

R v ROUT
[2023] SADC 58
[Criminal]

Jarrod Scott Rout (the accused) is charged with one count of unlawful sexual intercourse with a person under 14.[1] It is alleged that this offence occurred between September and November 2020, when the accused performed an act of fellatio upon a five year old child (‘W’). The offence is alleged to have occurred at the home of W’s stepfather’s aunt. She is often referred to as ‘Nanna Kay’. Nanna Kay is in a relationship with the father of the accused. The accused was 21 years old at the time of the alleged offending.
[1] Criminal Law Consolidation Act 1935 s 49(1)
The prosecution case is that W and the accused were in a room at Nanna Kay’s house during the day. The accused is alleged to have pulled down W’s shorts and jocks and then put his penis into his mouth. He is then alleged to have slapped W’s penis until it became hard and bit his penis during the course of fellatio.
On 3 March 2023, the accused elected for trial by judge alone. The application was granted and the matter proceeded without a jury.[2]
[2] Juries Act 1927 (SA) s 7.
There was a preliminary matter in respect of the admissibility of the statements that had been obtained pursuant to s 13BA of the Evidence Act 1929 (SA). The primary interviews were in January 2021, when the complainant was five years old. I watched the interviews and heard argument in relation to the admissibility of them. I subsequently ruled that the interviews were not admissible in that form as I was not satisfied that the complainant was capable of giving unsworn evidence at the time of those interviews.
The prosecution then elected to call the complainant to give evidence.
The accused is charged with the offence of unlawful sexual intercourse with a person under the age of 14 years. There are 2 elements that must be proven beyond reasonable doubt. Firstly, that the accused had sexual intercourse with W. In this case, it is alleged to be the act of fellatio that constitutes the act of sexual intercourse. Secondly, it must also be proved that W was under the age of 14 years at the relevant time. W’s mother gave evidence that his date of birth was 13 April 2015, consistent with the evidence that W had given. He is still therefore under the age of 14 years.
Prior to commencing the trial, I had the opportunity to view the interviews with W. Two interviews had been conducted in 2021 and another in February 2023. At the time of the interviews in 2021, W was five years old. When he was called to give evidence, he was seven years old and turning eight years old in less than a month. As he was so young, I conducted an enquiry in relation to s 9 of the Evidence Act1929. Having viewed the interviews and spoken briefly to W, I was not satisfied that he had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. However, I permitted him to give unsworn evidence as I was satisfied that he understood the difference between the truth and a lie, I told him that it was important to tell the truth and he indicated that he would tell the truth.
General Directions
The prosecution bears the onus of proving the guilt of the accused. The accused does not have to prove that he did not commit the charged offence.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offence unless the evidence that I accept satisfies me beyond reasonable doubt of his guilt. In these reasons, if I use the word proved or established in each case, I mean to an extent that excludes a reasonable doubt.
The accused is presumed by law to be innocent of the charge unless the evidence that I accept satisfies me that each element of the offence has been proven beyond reasonable doubt. If the evidence fails to satisfy me of each element beyond reasonable doubt, the accused remains innocent and I must return a verdict of not guilty.
If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure where the truth lies, then I must find the charge has not been proved beyond reasonable doubt and the accused is not guilty.
I must assess each witness as to their truthfulness and reliability. I must determine whether I can rely upon the evidence given by a witness. I can reject or accept all or part of a witness’ evidence.
The evidence of the complainant has not been given on oath. It is therefore unsworn evidence. For the reasons that appear above, I permitted W to give unsworn evidence having complied with s 9 of the Evidence Act 1929. I also warn myself of the need for caution in determining whether to accept the evidence and as to the weight to be given to it.[3] As Kourakis J identified in R v K, MC [2018] SASCFC 133 at [3]:
The need for caution arose because the testimony of children, who do not appreciate the solemnity of the occasion, grasp the importance of a criminal trial, or understand the consequences of giving false evidence may, for those reasons, not be as reliable as testimony which is affirmed or sworn.
[3] Evidence Act 1929 (SA) s 9(4).
The accused participated in a record of interview with the police. I can take into account both the inculpatory and the exculpatory statements made by the accused. I can bear in mind that the accused has not been cross-examined as to what he said in the interview when I come to consider the weight that I give to the exculpatory statements.[4]
[4] Mule v The Queen (2005) 156 A Crim R 203 49; R v Allen (2011) 109 SASR 396.
The accused elected not to give evidence. He was not bound to give evidence. He has the right to decline to give evidence and I must not draw any adverse inference against him or the case he puts forward as a consequence of his election not to give evidence. His silence in this court does not constitute an admission against him. It cannot be used to fill the gaps in the evidence tendered by the prosecution and may not be used as a makeweight in assessing whether the prosecution have proved the charge beyond reasonable doubt.
I must bring an open and impartial mind to bear on the case. I must make my decision without sympathy, without prejudice or fear and not be influenced by public opinion in relation to this matter.
There were a number of people who could potentially have given relevant evidence but were not called by the prosecution. These people are Mr Hann and Mr King. I must not speculate as to what they would have said had they been called as witnesses.
A number of the witnesses gave evidence with special arrangements in place. I must not draw an adverse inference against the accused as a result of these arrangements and nor can I allow them to influence the weight that I give to the evidence of these witnesses.
The defence rely upon some prior inconsistent statements made by the complainant to undermine his credit and reliability.[5] These statements cannot be used for a testimonial purpose however may be used by me when I assess whether I can accept a witness’ evidence.
[5] Evidence Act 1929 (SA) ss 28, 29.
The Evidence
W gave unsworn evidence via CCTV with a court companion present. He was seven years old when he gave evidence.
He gave evidence that he went to visit his nan and pop at Nanna Kay’s house on an occasion when there were many other people present. On this day, his mother was getting a tattoo on the right side of her hip. The tattoo artist was doing this at the house in the third bedroom. On this occasion, there were many other people who were present, including his brothers and sisters, both his parents, Uncle Dave, the tattoo artist Lee Evans and Mr King.[6] W gave evidence that he went into the second bedroom, sometimes referred to as ‘the middle room’, to try on some new clothes that he had been given by Nanna Kay. When he went into the room, the accused was already there. W described standing in the room and the accused being on all-fours in front of him. He said the accused pulled down his shorts and proceeded to put his mouth over W’s privates. W described his privates as being the part he ‘did a wee with’. He said when his privates were in the accused’s mouth, the accused bit it and hurt him.[7] He was asked whether the accused did anything else. He indicated using a slapping motion with an open hand, as if slapping his privates in a back and forth motion. He said the accused used his left hand. He said the accused slapped his privates until his privates went hard. Afterwards, W put his shorts and jocks back on to go and tell Mr King. He said he then ran out of the room. He said the first person he told was Mr King. He did not say what he told Mr King.
[6] TT60.
[7] TT63.
W described looking out the window of the bedroom as the events unfolded with the accused. From the window, W said he could see the ‘tattoo man’s’ van parked out the front of the house. He described where it was parked. He also saw the tattoo man grabbing something from his van.[8]
[8] TT65.
W was shown some photographs.[9] He recognised the house as being Nanna Kay’s. He gave evidence in relation to the layout of the premises by reference to the photographs. Looking at a photograph that was said to be of the middle room, the one in which the offending had occurred, he gave evidence that a bed that is visible in the photograph was not in the same position at that time. He said the room was set up with the bed the other way around. He said there was a cupboard and a tent in front of the window and the cupboard looked like the white one that was visible in the photograph.
[9] Exhibit P1.
He identified the room in photograph 36 as being the room in which his mother was getting the tattoo.
He was cross-examined about the layout of the room and in particular where the bed shown on page 15 of Exhibit P1 was. He said the bed in the photograph was different, in that the frame holding the mattress was the same colour but the quilt was different and the bed was the other way around.
W was cross-examined about where he was when the alleged offence occurred. By reference to photograph 29 in Exhibit P1, he said he and the accused were in the middle of the room near the cupboard facing the wall on the right-hand side of the photograph. W then indicated using photograph 6 the window from the exterior of the house where he was standing. He indicated that the tattoo van was parked near the tree where the hose is visible in photograph 6.
He was cross-examined about where other people at the house were at the time of the alleged offence. He said his dad was at the front of the house. Uncle Dave, Nanna Kay and his brothers and sisters were out the back of the house but later he saw them at the front.
During cross-examination, W said that he told a number of people about what had happened. He recalled using the words ‘private parts’ and ‘whack’. He said he told his mum, Uncle Dave, nanna and pop.
It was put to W that when he was five years old, he spoke with the police. He agreed that during the course of the interview, he told the interviewer he saw Uncle Seth at the front of the house. W agreed he told the interviewer that because it was true. He agreed he saw Uncle Seth rubbing his fingers on his palm, and he agreed that he told the interviewer that Uncle Seth was doing that on the window but he was not sure which window. He said that this was at a time when the accused had his privates in his mouth.
He confirmed that the accused bit his privates. He said that hurt as the bite was very hard but he did not call out or scream.
In cross-examination, he agreed that his mother told him that it was important for him to describe what the accused did. He denied that anybody had told him what to say or what parts of his evidence were important.
It was put to him that during the interview with the police, he was shown a picture of a boy’s body and asked some questions about his private parts. He identified his ‘doodle’ as part of his private part.
W was shown a portion of the interview.[10] It was put to him that during the course of the interview, the interviewer had asked him if anything had ever happened to his private parts and he shook his head. He agreed that there would be no reason for him to shake his head if anyone asked him that question:[11]
Yep that’s another name for them. Okay, and no one should look or touch your private parts without a good reason, like a doctor or a nurse. Okay, I’ve got another one over there. And no one else should ask you to touch their private parts and no bigger person should show you their private parts, so any of their private parts and we don’t have to keep secrets about our bodies or private parts even if someone tells us to keep a secret okay? And if you get any touches that make you upset or worried or yucky you should tell someone about it, you should tell a safe person. So, now we’ve talked about bodies and private parts is there anything you want to talk to me about? Is there anything you want copper Sarah to listen to? Has anything happened to your private parts?
W shakes his head side to side
Has anyone shown you their private parts?
W shakes his head side to side
[10] TT92-93.
[11] Exhibit MFI VDP3 [471].
W was cross examined about his recollection of the alleged offence in 2023, in particular, prior to being shown his interviews with the police. He agreed the interviews refreshed his memory.
He was re-examined in relation to that portion of the video after it was shown to him. He was asked ‘can you tell us what you were shaking your head about?’. He answered ‘about the question of what she asked’. He was then asked ‘when you were shaking your head were you talking about what Jarrod had done to you’. He said ‘no’. He was then re-examined about his disclosure to his mum and dad. He said that he told his mum and dad on the same day that it happened. He confirmed that he had some recollection of the events with the accused prior to being played his interview.
W’s mother, Ms G, gave evidence that in about September-November 2020 she knew Kaylene Hann, who is also known as Nanna Kay, and would take her children to her premises about 2-3 times a week. Ms Hann regularly babysat the children and there were even occasions when the children would stay overnight. She said during this time, a man by the name of David Holden was also residing at the premises, as was the accused.
Ms G was shown Exhibit P1 and identified Ms Hann’s residence. She also identified a series of rooms including the lounge room and the middle room in which either her children or the accused slept. During the occasions her children were occupying the middle room, she said the accused would sleep in the lounge room on a fold-out bed.
Ms G was shown photograph 29 of Exhibit P1. It was her evidence that the layout of the room was different in September-November 2020. She said at that time the room had bunkbeds and another bed. The bunkbed was opposite the window on the left-hand side of the room and the other bed was on the opposite wall. The head of the bunkbed was back towards the door. She described the bunkbed running along the wall as depicted in photograph 30, with a small gap between the end of the bed and the window. The head of the other bed was on the wall opposite the window.
Ms G identified Mr Holden’s room which was referred to as the end room in photographs 35-37. She gave evidence that the layout of this room was different in September-November 2020. In photograph 37, she identified the bunkbed and said that this had been in the middle room between September-November 2020.
Ms G gave evidence that she has nine tattoos.[12] They were done by different people. She gave evidence there was an occasion she had a tattoo done at Ms Hann’s house. This tattoo was done on the right side of body starting at her breast going over her rib and down to her hip. The tattoo features an artwork containing her daughter’s name as well as a fairy and stars. She said this tattoo took approximately 4-5 hours and was completed in one sitting. The tattooing started around lunchtime and took place in the third bedroom. This tattoo was done by Mr Evans. Ms G gave evidence she met Mr Evans at Ms Hann’s house. Ms G gave evidence that Mr Evans had already done a tattoo for Ms Hann and Mr Holden prior to commencing her tattoo. She said that she arrived at the house at about 11:30am. She could not recall the day of the week. She thought it was a weekday as her children, including the complainant, were at school.[13] She said after school concluded, her partner picked up the children and brought them to the house. She was still getting her tattoo done. She said that whilst she was getting the tattoo, her children were playing out the back and running through the house. She could hear the children and saw them when she took brief breaks from the tattooing.[14] The tattoo was finished approximately two hours after the children arrived. The children stayed at the premises until the tattoo was finished.
[12] TT108.
[13] TT110.
[14] TT111.
Ms G said the accused was at the house that day. He was there when she first arrived. He went out and returned approximately 30 minutes after her partner returned to the premises with the children. After the tattoo was finished, Ms G said they stayed at Ms Hann’s house with her partner and the children for another hour, and then she and her partner left whilst the children stayed behind as they usually would. Ms G said the accused was still present when she left. The children stayed overnight and were picked up the next day.
Ms G said she had a conversation with the complainant which led her to take him to the police station on 7 November 2020. She said the conversation was about two weeks after she got her tattoo. During that time, the children had been back to Ms Hann’s house approximately 2-3 times. There were occasions when she took the children and days when she left them with Ms Hann.
Ms G gave evidence that she knows a man by the name of Mr King. She said she knew him to be the accused’s former partner. She saw him at Ms Hann’s house on the day she was getting her tattoo.
In cross-examination, Ms G said Mr King was the accused’s former partner in around September-November 2020. She gave evidence that Mr King brought the complainant to her and said ‘W’s got something to tell you’, and the complainant then made disclosures about the accused to her in Mr King’s presence. This occurred a couple of weeks after she had the tattoo done. Between the time of her tattoo and the disclosures being made, she confirmed that the complainant had visited Ms Hann’s premises numerous times and seemed happy to stay at the house.[15]
[15] TT114.
After taking the complainant to the police station, she confirmed that she told the complainant to only talk to the police about what had happened. She said she did not have any reason to worry that the complainant would talk to others about the allegations. She said she was worried that the complainant would talk to Ms Hann because she did not want the complainant to feel as though he had to change what he was thinking or feeling. She gave evidence she thought Ms Hann was trying to take her children away from her during the time the allegations were made and presently. She also thought that Ms Hann was making false notifications to the Department for Child Protection in order to have the children taken from her.[16] She said when the complainant went to appointments with Child Protection, she said to him that he needed to tell ‘nothing but the truth’[17].
[16] TT119.
[17] TT121.

Mr H gave evidence. He has been in a relationship with Ms G for eight years and is the stepfather of the complainant. They have been living as a family unit for approximately eight years. Ms Hann is his aunt. He was in contact with her in September-November 2020. They had a falling out after the complainant made disclosures to Mr H in relation to the accused.
In September-November 2020, he confirmed that he knew the accused. The accused was living at Ms Hann’s residence. During that period, he said the children would stay overnight at Ms Hann’s house. W and his other biological son slept in the loungeroom, and occasionally they slept in the middle room when the accused was not there.
Mr H identified the rooms in the house. He gave evidence that the middle room was set up differently in September-November than the photographs. He said there was a different single bed under the window and another bed on the other side of the wall. The bed under the window was an old steel frame bed. The bed that was under the window was in the same in the position as the one in the photograph. The head of the bed on the other side was against the wall where the tallboy is pictured. He said the bunkbed in photograph 37 was brought into the house after David Holden moved out.
Mr H confirmed that Ms G had a tattoo at Ms Hann’s house. This tattoo was on the right side of her body. He said that he had gone to Moonta Bay, but met Ms G at Ms Hann’s house because he knew she was getting tattooed. He arrived at about 5:00pm while she was still getting the tattoo. He said David Holden, Mr and Ms Hann, Ms G, Mr Evans the tattooist, and the accused were present along with the children. He knows a man by the name of Mr King and said he was not at the premises that day.[18]
[18] TT128.
Mr H said that he was aware that Ms G took the complainant to the police station in respect of certain disclosures that were made to her. When the complainant made the disclosures to both he and Ms G, Mr King was present. He said that the complainant went to the police station one week after Ms G got her tattoo.[19]
[19] TT128.
In cross-examination, he was asked whether he was certain it was seven days after the tattoo that the complainant went to the police station. Mr H said he could not say whether it was exactly seven days. He said he thought it was seven days because it was seven days after the complainant stayed at Ms Hann’s house that he made the disclosure. When asked whether it could have been longer than seven days, he said it was unlikely because Ms G had her tattoo done around the end of September and the complainant made disclosures around the end of September. It was put to him that he had given a statement to the police on 4 November 2022. In that statement he said, ‘I’ve been asked about a time that [Ms G] got a tattoo at Kaylene’s place, I can’t say for sure when that was but it maybe a couple of months before these disclosures came out’. He agreed he said that to the police. Mr H then said that he wanted to correct his last statement being that it was seven days after the complainant made disclosures and agreed it was a couple of months after the tattoo was done.[20]
[20] TT130.
Kaylene Hann (Nanna Kay) gave evidence. She has been in a relationship with Michael Hann for 20 years. The accused is his biological son. In about September-November 2020, she was living at a premises in Elizabeth South with her husband and the accused. She said that in about September-November, the accused was in a relationship with someone called TD. She went on to say that she knew someone by the name of Mr King who was the accused’s partner after TD.
Ms Hann confirmed that she has some tattoos and had these tattoos done at her house.[21] She was aware that there was one occasion when Ms G had a tattoo done at her premises. Ms Hann said at the time this tattoo was done, Ms Hann was living at the premises with her husband, David Holden and the accused who had come back for a couple of nights after a fight with his partner. She went on to say that the accused was in the process of moving out of his ex-partner’s house at the time and moving to her home. At that stage, he did not have his own room. He was staying in the second bedroom when the children were not there and was sleeping on the couch when the children were present.
[21] TT132.
On the day of Ms G’s tattoo, Ms Hann also had a tattoo, as did Mr Holden. She said that the tattoo artist arrived at about midday. He set up his equipment in the third bedroom and then completed her tattoo in the kitchen. Ms G had her tattoo done in the third bedroom. She said that in around September-November 2020, it was common for the children to spend time at her house. She also babysat the children from time to time. She said Ms G had her tattoo done on a weekday. She said Ms G came to the house without Mr H or the children. Ms Hann maintained that the children did not come to the premises at any point that day.[22]
[22] TT136.
She was shown photographs of the children’s room. She said it was set up differently in September-November 2020. She described it as having one set of bunkbeds and a single bed. She gave evidence that the single bed in photograph 29 was different to the one that was in the bedroom at the time but it was a single bed that was positioned on the wall near the window. She said the single bed was on the side where there is no window. The foot of the bed was towards the door, and the head of the bed was up against the wall.
She gave evidence that she could not remember what time Ms G arrived at the premises for her tattoo, but that she left at about 10:00-10:30pm. She recalled the accused being there that day but could not remember whether Mr King was there on that day.
In cross-examination, Ms Hann confirmed that she had brought the complainant to court on that day for the purpose of him giving evidence. She said she did not speak to the complainant in the car on the way to court about what he should say in court. She said she first became aware of the allegations against the accused when Mr H came over and confronted him at her premises. She said Ms G took the complainant to the police station the same day or day after that confrontation. She could not recall how much time elapsed between the confrontation and Ms G having the tattoo.
Mr Lee Evans gave evidence. He has been a tattoo artist for approximately 13 years. At the time he had a mobile tattoo business by the name of Leroy Mobile Tattoos. He confirmed that sometimes people referred to him as Leroy instead of Lee. Mr Evans gave evidence that there was one occasion he tattooed Ms G at Ms Hann’s house. He said he did not recall the exact time of the year or date when he did this tattoo. He recalled the tattoo being a pretty large tattoo that took up most of the right side of her body. He gave evidence that he did not tattoo anyone else at the premises on that day but he had on previous occasions attended the premises to do tattoos. He said he was at the premises for approximately five hours. This included him setting up and packing up his equipment. He said the tattoo took at least three hours of that time with one 10 minute break. He gave evidence he commenced the tattoo about midday and finished in the afternoon.
He said there were plenty of other people there throughout the day but just he and Ms G were in the bedroom during the tattoo session. He said there were about five adults that came and went and about two or three children present throughout the day.
In 2020, he had two vehicles a Holden Captiva and a silver Ford wagon. The Ford had signage on the back windows and two side windows. When he arrived, he parked his car in the front yard to the left of the driveway. He identified this area on a photograph. He said he had tattoo equipment in his vehicle that he brought into the premises. He did not recall going outside to the car during the time he was doing the tattoo, but said he may have gone out for a 10 minute cigarette break at some stage.
In cross-examination, he said he thought he had done a few sittings at the house that year. He had done three different tattoos on Ms Hann, one on Mr Hann, one on the accused and one on the accused’s partner, and potentially some on Mr Holden. He estimated he had been to the premises approximately 12 times. He said he parked in the same spot each time so as not to block the entrance to the driveway.
Detective Brevet Sergeant Sarah Brown gave evidence. She is the investigating officer. She confirmed that this matter came to the attention of the police when the complainant attended the Elizabeth Police Station on 7 November 2020. The police had not attempted to take a statement from him because of his age. There is a policy that he must be interviewed by Child Protection Services. A Child Protection employee spoke with the complainant on 21 January and 27 January 2021. Detective Brown also spoke with the complainant in an interview on 8 February 2023. All three interviews were recorded.
Detective Brown gave evidence that she had attempted to obtain a statement from David Holden but had been unsuccessful. She had also attempted to take a statement from Mr Hann but was unsuccessful.
She obtained a statement from Mr King. She said that initially he had refused to provide a statement. She made further contact with him and planned to obtain a statement over the phone but his phone was disconnected and she was unable to make further contact with him. In around June 2022, she finally managed to obtain a statement over the phone. She then made multiple attempts to get him to sign the statement. The statement was signed in January 2023. Since that time, she had made numerous attempts to contact Mr King. She asked for a subpoena but has been unable to locate him.
She gave evidence that she interviewed the accused on video on 15 August 2021. She then reported him for the alleged offence. The disc containing the record of interview was tendered (Exhibit P4). The transcript of Exhibit P4 is MFI P5. The interview was conducted between 12:55pm-1:26pm. The accused’s stepfather was present. During the course of the interview the accused was cautioned. At the time of the interview, the accused said that his stepmother, Kay Hann, had told him about the allegations. He was aware that the allegation was that he had touched W inappropriately. In the interview, the accused said that he was not at home that night, that he went to his friend’s house until after 11:00 pm. He said the children were asleep on the two single beds, so he got his bedding and slept on the couch because he had to get up the next day to work at the Gepps Cross Bedford doing woodwork.
He explained that he has global delay and difficulties with reading, writing, paranoia, depression and anxiety. During the course of the interview, his stepfather provided various pieces of information. I note that I have not taken into account what his stepfather said as it is inadmissible in these proceedings.
During the course of the interview, the accused said that he had lived with Ms Hann since 2015 until he moved out sometime in 2020. He confirmed that he knew Ms G and Mr H. He was aware that Ms G had five children and said that they would visit Ms Hann’s place every day after school. He said that the children asked Ms Hann if they could sleep over and that happened every fortnight. He said the children slept in the room where he would normally sleep and he slept on the couch. He was asked how much time he spent with W. He said only when he came over or when they went to visit Ms G. He confirmed that there was an occasion when a tattoo artist did a tattoo on Ms G. He said that all he heard was screaming. She came by herself for the tattoo and the tattoo artist was there until 10:00 pm that night. He said the children were with Mr H at home. He then conceded that it was possible that Mr H might have picked them up. He said that he had a memory of the children being at the house on the day the tattoo was done. They were in the backyard playing around. He was then asked:[23]
[23] Exhibit MFI P5 21 [39]-22 [37].
Q.Yep. Tell me about the time that W spent in your bedroom while [Ms G] was getting the tattoo done.
A.I was only in my room to get my clothes.
Q.You were in your room to get your clothes. And where was W?
A.He came inside and asked what I was doing.
Q.Yeh.
A.I said, I’m just grabbing my clothes, I’ll be out the back yard soon.
Q.Yep. And then what happened.
A.Then I went out the back yard.
Q.Yep. Ok. So W has talked about some other things happening in the room.
A.Yep. Yep.
Q.At that point. Ok. And he’s talked about it happening when [Ms G] was getting her tattoo done, and being able to see this Leroy fella, out in the front yard, putting things in his van or car or whatever it was that he was driving. Do you know that he drives.
A.Ford Territory.
Q.Yep. So he states that at that time you were in the bedroom, and you touched his penis.
A.No.
Q.And you put his penis in your mouth.
A.No.
Q.He used the word “doodle”. And that you played with it until it got hard.
A.No.
Q.And that it got more harder and more harder, in his words. And he said that you were on the ground on your knees.
A.No.
and[24]
[24] Exhibit MFI P5 24 [43]-26 [34].
Q.Ok. Alright. Alright, so I just want to go back to that time in the bedroom.
A.Yep.
Q.So you’re saying that you’ve gone into the bedroom.
A.Yep.
Q.To get your clothes.
A.Yes.
Q.And W’s come in and asked what you were doing.
A.Yes.
Q.You mentioned at the beginning that you knew about, the fact that W had said you touched him inappropriately, but you hadn’t done it because you weren’t there.
A.Yes, I wasn’t there that night.
Q.Yeh, what, what did you mean by…
A.I went to – about quarter to 5.00 I went to my friend Yvette and Malcolm’s house.
Q.Ok. So was that this same day that you’ve left.
A.Yes. Yes.
Q.Yep.
A.Yes.
Q.But just so I’ve got it 100% right, you’re saying that you were – before you went to that house you were in the bedroom with just you and W.
A.Yes.
Q.Yes. Ok. When W says that you put his penis in your mouth.
There was no cross-examination of Detective Brown.
The accused did not give or call any evidence.
Addresses
Mr Foundas addressed on behalf of the prosecution. He submitted that W had given a clear and concise account of the accused’s offending. He submitted that there was nothing that arose in cross-examination that should give me any concern over his honesty and reliability, particularly around the charged conduct. He submitted that there was no dispute that the accused had the opportunity to commit the offence. It was clear on the evidence as to the day on which the offending had occurred being the day his mother was getting a tattoo. There were a number of people present coming and going but no dispute that there was opportunity for W to be alone in the room with the accused. He submitted that the accused had admitted being alone in the middle bedroom with W on that day, which supports there being opportunity for the offending to have occurred.
In respect of the evidence of Ms Hann, it was submitted that she was the only person who suggested the accused and complainant were not present on the day the tattoo was obtained by Ms G. Further, it was submitted that she was clearly mistaken about that fact and that I should make that finding. It was submitted that the evidence that the complainant gave about being able to see the tattoo van through the window was a very telling and powerful piece of evidence when considered with the evidence of the tattoo artist. It is entirely consistent with where Mr Evans, the tattooist, said he parked his van and could be seen from that bedroom window. This evidence was said to be a very powerful and telling piece of evidence as to W’s honesty and reliability.
In respect of the furniture in the bedroom, it was submitted that there were various versions given by all the witnesses. The account given by W did not accord with his mother, stepfather or Ms Hann. What was clear was that the layout of the bedroom was different at the time that it appears in the photographs. It was submitted that the differences in those accounts should not cause me any concern as to W’s honesty and reliability when it came to the charged conduct. On any one of the descriptions that had been provided, there was opportunity for W to be standing in that room and the accused to be on his knees in front of W to perform the act of fellatio, just as W described, and there was opportunity for W to be able to see through the window.
In respect of any suggestion of coaching of W by any person, including his mother, it was suggested that there was nothing that turned on the fact that his mother had told W that it was important for him to tell what the accused did or what happened. There was no suggestion she told the child to be dishonest with either the police or in his evidence. To the contrary, she had urged him to tell the police what happened and was reinforcing the need for him to be honest.
It was submitted that the language that W employed in his evidence was consistent with his age and his experience rather than being a sophisticated narrative or explanation of events that might have been given had he been coached in relation to his evidence.
It was submitted that I should find that the timeframe between the offending and the disclosure that resulted in W being taken to the police station was about two weeks. Mr H’s evidence in this respect was inconsistent and I was urged to find that he was mistaken about that time period. It was also submitted that I should not place much weight on the fact that the child had returned to the house after this offending as there could be many explanations for why he had done this.
The prosecutor accepted that there was some confusion around the timing of when W told his mother, Mr King and his stepfather about the offending. On W’s account, he told them on the same day but that it was a different day to the day he went to the police. It was submitted that this was readily explained by the passage of time. The offending is alleged to have occurred over two years prior to W giving evidence. It may also be explained by the regularity of the visits to the house and the fact that people were coming and going from the house, and there were visits between the tattoo occasion and when the disclosure was made. There was no evidence before me as to the timing of the disclosure to Mr King, who on the complainant’s account was the first person he told. Of course, Mr King was not called despite the best efforts by the police officers to locate him.
In respect of the prior inconsistent statement that was said to exist as a result of the complainant having shaken his head in response to a question of whether anyone had touched his private parts, I include the entire excerpt from the interview:[25]
Yep that’s another name for them. Okay, and no one should look or touch your private parts without a good reason, like a doctor or a nurse. Okay, I’ve got another one over there. And no one else should ask you to touch their private parts and no bigger person should show you their private parts, so any of their private parts and we don’t have to keep secrets about our bodies or private parts even if someone tells us to keep a secret okay? And if you get any touches that make you upset or worried or yucky you should tell someone about it, you should tell a safe person. So, now we’ve talked about bodies and private parts is there anything you want to talk to me about? Is there anything you want copper Sarah to listen to? Has anything happened to your private parts?
W shakes his head side to side
Has anyone shown you their private parts?
W shakes his head side to side
[25] Exhibit MFI P2 [471].

It was submitted that there were three questions that were asked. The complainant was seen shaking his head. However, that is not necessarily consistent in any statement with what he is saying in court.
The next issue that Mr Foundas addressed was the question of the memory the complainant had prior to him watching the videos. It was suggested by the defence that the complainant did not remember what had happened until he watched the videos. It was submitted that this concept was vague and unclear. It does not undermine the complainant’s account of the events. It was submitted there could not be a proper suggestion that there was a false memory on the part of the complainant or that he refreshed his memory in respect of a false statement that he had made on the video. It was submitted that he was entitled to be able to refresh his memory of things said in the past, and that such a criticism was without foundation.
In relation to the prior inconsistent statement in respect of Uncle Seth being at the front, Mr Foundas accepted that the complainant’s evidence in respect of this aspect was inconsistent. On the one hand, he said he did not know anyone called Uncle Seth, and on the other, he said Uncle Seth was at the front of the house. Mr Foundas suggested a possible explanation may be that there has been some confusion about Uncle Seth in fact being the tattoo artist. However, even if I could not resolve the confusion, which may be difficult on the evidence, it was said that this piece of evidence did not undermine W’s credibility and reliability about the charged conduct.
Mr Hill addressed on behalf of the accused. He submitted that the evidence of W is unsworn evidence of a young child and requires scrutiny. He submitted that the allegations were expressed in the language of a seven year old child. He submitted that the account that W gave of the accused biting his penis was not one that would ordinarily be expected in an allegation of fellatio. The allegation in relation to the slapping of the penis is also odd. He submitted that these are inherently implausible allegations. He submitted that the location in which the act was said to have occurred, being in front of a window in broad daylight, when there were people in the front yard of whom the complainant at least has a clear view, and with people inside the house in a shared bedroom, in a relatively small, attached dwelling, renders his account implausible.
In addition to this, there was evidence from W that a person that he calls ‘Uncle Seth’ was in the front yard doing something with his hands and was close enough for the complainant to see what he was doing which must mean that this person was also very close to the window. In addition to this, his mother was in the next room when the act was performed. It was submitted that this was beyond what might usually be described as a brazen sexual act because of the number of people and the proximity of those people, due to the offending and the capacity for them to have observed what was said to have occurred.
Mr Hill also criticised the complainant’s inability to recall the layout of the room and submitted that this may cause concern. Mr Hill said there were a number of descriptions of the room and the complainant is essentially at odds with all of them. Mr Hill submitted that on the evidence in this case there is uncertainty as to the size of the furniture in the room and that therefore limits the capacity of the accused to have offended in this way, leaving sufficient room for such offending. He submitted that the only real evidence was from the photographs, but the furniture has changed in the interim.
Mr Hill also submitted that there was a significant inconsistency in the complainant’s evidence as to when he told his parents about the allegations. He submitted that this could not be easily brushed aside. He submitted that one would expect a child to have an accurate recollection of telling their parents about such an event on the day that it happened or not if it was a matter of a significant number of hours later, or even the next day, or at least the locations that they were told were the same. But, on Mr H’s evidence, it occurred a couple of months later, on Ms G’s evidence, a couple of weeks later and on the evidence of W, very close in time to the acts occurring. The evidence from W implies that he told people at the house very shortly after the acts that they had occurred. This is clearly at odds with the evidence that was given by other witnesses. If that is so, this undermines his evidence as to what occurred earlier in that day. It was also submitted that this evidence finds no support from any other source. The date of the alleged offence is unknown and when he made the disclosure in relation to the offence is unclear in terms of its proximity to the date of the offending.
It was also submitted that W’s recollection of the events was limited and fading until he watched the interviews that he had in 2021 with CPS. It was submitted that it was difficult to unravel the true recollection and what he was reconstructing as a result of watching the video. It was submitted it was difficult even for an adult to unravel the memory that they have at a particular time when they may have seen material that has then influenced them.
Mr Hill also made the submission that there was an inconsistency that was critical in respect of the credibility of W, where he denied by shaking his head that anything happened to his private parts. That is inconsistent with the allegations. He said that re-examination had not allayed any of the difficulties that arose as the question was leading and suggested the answer to W. It was submitted that in the interview with the police the accused denied the offending and he submitted that this was compelling. Although the accused was aware of the allegations at the outset and was not interviewed until August 2021, he is aware that this allegation is that something happened on the day that Ms G got her tattoo and proceeds on the outset on the assumption it would have happened at night time, or later in the day or evening and commences by telling the police that he was out that night. However, this is because he has made an assumption as to the time of day at which the alleged offending occurred.
He makes frank admissions about being in the room with W for a short time but denies anything occurring.
Assessment of Witnesses
W was a seven year old child when he gave evidence before me. He gave evidence in relation to the allegation of the offence in a compelling, candid manner. He was not shaken in relation to any of these allegations. The offending is alleged to have occurred in September to November 2020, when he was five years old. He was first taken to the police station on 7 November 2020. However, he was not interviewed at that time as protocols required that the Child Protection Service interview a child of that age. He was then subsequentially interviewed on two occasions. Those interviews do not form a part of the case presented. They were, however, relevant in respect of prior inconsistent statements alleged in this matter.
Ms G gave evidence. She too appeared to be a credible witness. Her evidence was limited to the events that occurred on the date that she had her tattoo at Ms Hann’s house, although that date was not identified. Her recollection in relation to various aspects is at odds with other witnesses. This included who was present at the house during the day, what the bedding arrangements were in the middle bedroom, and when she had the tattoo relative to the disclosure made by W. I regarded her evidence as credible. However, it lacked reliability to some extent.
Mr H gave evidence. He was a credible witness. I did not consider that he was lying or exaggerating in his evidence. However, his evidence did suffer from a lack of detail in respect of when the tattoo occurred, who was at the house that day and when the disclosure was made relative to the tattoo incident.
Ms Hann gave evidence. Ms Hann very much gave the impression that she did not wish to be a part of the proceedings. She is in a difficult position, being a stepmother of the accused. I regarded her evidence as less than credible. I do not accept her denials that the children were present at the house on the day that the tattoo was done. She has been aware of this allegation and the fact that it was linked to the date of the tattoo since November 2020. I accept the evidence given by Ms G that there is a degree of acrimony between her and Ms Hann. I did not regard Ms Hann’s evidence as credible.
Mr Evans was called. He was the tattoo artist. His evidence was credible and reliable. I accept that he was unable to recall when the tattoo had been applied but in other respects his evidence contained a significant degree of detail in relation to the day of his attendance to do this particular tattoo on Ms G and his interactions at the property generally.
Discussion
W was a child of five years old at the time of the allegations. He was seven years old when he gave evidence. He is still therefore a very young child. His evidence was unsworn. It is necessary to exercise caution in determining whether I can accept him as a reliable and credible witness in respect of the allegations. In doing so, I have taken into account the criticisms of his evidence. There were a number of criticisms made during the course of the address of Mr Hill.
The first significant criticism is that during the interview that was conducted with W on 27 January 2021, the interviewer, Ms McMahon, having engaged in a lengthy explanation to W, said “has anything happened to your private parts?”. W shook his head. I accept that W was asked that question and shook his head. Taken in isolation, this would constitute conduct that is inconsistent with his present allegations. However, in my view, this conduct needs to be assessed against the context of the circumstances at that time. This was the second such interview of W who was five years old. A viewing of the portion of the video in which this occurred shows a child who is clearly distracted; eating food, looking around the room and showing no interest in the propositions that are put by the interviewer and the questions that are asked. W appears to have shut down at that time. He does not wish to participate in the enquiry that is being made at that time. He is distracted, or seemingly so, by a number of different items and clearly focused on the food that he has been given. I do not consider the shake of his head in response to the question asked in that context to be a denial of the allegation that he has now made.
A further criticism was made of the complainant being shown the recorded interviews prior to him giving evidence. It was said that they may have contaminated his evidence in that they refreshed his memory as to a false allegation he had made at an earlier time. His evidence in court would therefore be a repetition of the false statements that he made.
The defence case is that the allegations are false. Therefore, it must be their case that whenever the complainant has made these statements, they are false. There is no reason why the memory of the complainant needs to be exhausted before he is shown the interviews in which he has participated or reads a statement that had been reduced to written form for him. The giving of evidence has never been regarded as a memory test. It is one of the reasons that statements are taken so early in the investigation. This recognises that over time the human memory becomes less acute. I do not consider the evidence of the complainant to have less weight because he has refreshed his memory from statements that were made by him.
The complainant was criticised in relation to his evidence as to the layout of the room. It was suggested that he was at odds with other witnesses in this regard. Further, it was suggested that the layout of the room may have meant that there was insufficient room for the offending to have occurred. I do accept that there is no consistency between the witnesses as to the layout of the middle bedroom in late 2020. Unfortunately, the photos were not taken until 4 November 2022. The layout had changed a number of times since the time of the allegations. However, on any of the versions that were given there was room for the events as described by the complainant to have occurred. It only required a small space for the accused to have knelt in front of a five year old boy, removed his lower clothing and performed an act of fellatio. Importantly, on the version given by the complainant he would need to have a view out the window. There is no reason to think he could not have seen through the window.
The evidence of the complainant was also said to be unreliable because he said he had told people including his parents and Mr King about the allegations at the time they occurred. This was said to be earlier than and inconsistent with other evidence. I accept that Ms G was told of the allegations in November 2020 and that following this she took the complainant to the police station. The complainant first went to the police station on 7 November 2020.
I accept that the inference to be drawn from the evidence of the complainant is that he first disclosed the allegations shortly after the events occurred. Indeed, in re-examination, he confirmed that he told his parents on the day of the events. I also accept that this did not happen and he did not in fact disclose the events to his mother until a month or so after the events occurred. It is not possible to say whether he told Mr King of the allegations at a time prior to the disclosure to Ms G, as Mr King has not been called to give evidence and there was no evidence given by the complainant on this topic.
However, for the reasons that follow I do not consider that the uncertainty as to the timing of the disclosure has affected the reliability of the evidence of the complainant as to the facts in issue. Nor do I consider a delay in the complaint has an adverse impact upon his credit.
The evidence in this case clearly discloses that there was an occasion in late 2020 when Ms G was getting a tattoo applied at Nanna Kay’s house. On that day, the tattooist, Mr Evans, parked his car at the front of the house under the gum tree beside the driveway. His car was visible from the middle bedroom. On the evidence of the complainant, he went into this room while the accused was in there. In the record of interview, the accused admits that he and the complainant were alone in that room while the accused got some clothes. There is no doubt that the opportunity for the offending arose on that day.
The account given by the complainant is replete with detail as to the actions of the accused. I do not regard it as implausible that the accused would commit an offence such as this when there were other people at the house. These types of offences are often committed in what appears to be a brazen and opportunistic fashion. It would not have taken long for the accused to have committed the actions described by the complainant.
Contrary to the criticisms made of the complainant, I do not regard the fact that the complainant describes the accused biting his penis as rendering his account unreliable or implausible. There is nothing about an account that includes such an act that could not be true. On the contrary, the inclusion of such a fact may render the account more likely as it may be unlikely that such an account was suggested to the complainant by any other person.
I do not regard the comment about Uncle Seth that was made by the complainant to undermine the account given by him. I accept that it is a curious statement as the complainant now says he does not know anyone by that name. Whether a person who is called Uncle Seth was outside the window does not mean that there is a reasonable possibility the accused did not commit the offence. There was no suggestion that the accused knew of the presence of anyone who may have curtailed the commission of the offence. I have considered whether this piece of evidence renders the evidence of the complainant as unreliable to the extent that he should not be regarded as having been an accurate historian and thus casting doubt on the allegations. I have determined that it does not. The presence or otherwise of another person outside the house is not significant. On the version of both the complainant and the accused, there were numerous people in and around the house at the time when the offence is said to have occurred.
I have carefully considered the evidence of W. He was, as I have said, five years old at the time of the allegation and seven years old when he gave evidence. He may not have understood the solemnity of the occasion when he gave evidence but he appeared to take the responsibility of giving evidence very seriously. He listened to the questions and responded appropriately. He did not appear to be deliberately untruthful. He did not appear to embellish or prevaricate in his evidence. He was clear, consistent and his evidence was cogent.
I have considered the criticisms of his evidence and the account that he gave individually and in combination.
I accept the evidence that was given by him as being truthful and reliable in respect of the allegations of the accused having sexual intercourse with him.
The accused in his interview denied the allegations. He was aware that the allegation had been made prior to his conversation with the police officers. In his interview, he said that he had been told by his stepmother Kay Hann. He admitted that he and the complainant had been in a room together on their own whilst Ms G was getting the tattoo done. There is no reason to think that the accused was not describing the same day as the complainant. In the interview, he describes Nanna Kay being in the house but in the kitchen at that time.
I remind myself that it is not for the accused to disprove the commission of this offence. It is for the prosecution to prove beyond reasonable doubt that the accused did commit the offence. The choice is not as to whether I prefer the account given by the complainant or the accused. I must be able to reject the denial given by the accused as not being reasonably, possibly true. To this extent, it is his denial that he committed an act of fellatio with the complainant that I must be able to reject. I do reject his denial. I do not find that it is reasonably, possibly true that he did not have sexual intercourse with the complainant. I am satisfied that the complainant’s account was a fulsome account with sufficient detail that enables me to reject the denial of the accused. There is opportunity for the accused to have committed the offence and I accept the evidence of the complainant beyond reasonable doubt, notwithstanding the fact that the complainant is a young child and his evidence is unsworn.
I find the accused guilty of the offence of Unlawful Sexual Intercourse with a Child under the age of 14 years.