R v Roy De La Torre - [2014] NSWDC 89

District Court

New South Wales

Medium Neutral Citation: R v Roy De La Torre [2014] NSWDC 89
Hearing dates: 30 June 2014 - 4 July 2014
Decision date: 07 July 2014
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Guilty verdict; for orders see [175]

Catchwords: Circumstantial Crown case; tendency and coincidence evidence
Legislation Cited: Crimes Act 1900
Criminal Procedure Act
Evidence Act 1995
Category: Principal judgment
Parties: Department of Public Prosecutions (Crown)
Roy De La Torre - Accused
Representation: C Davenport (Crown)
I Todd (Accused)

File Number(s): 13/124501
Publication restriction: Order made pursuant to s7 of the Courts Suppression and Non-Publication Orders Act 2010 as to the complainant's name and those of her family

Judgment

Roy De La Torre is charged that:

"On 21 April 2013 at Coogee in the State of New South Wales he did assault SM, and at the time of the assault did commit an act of indecency on SM, a person then under the age of 16 years, namely, 6 years.

The charge is brought pursuant to s 61M(2) of the Crimes Act 1900. By consent the trial proceeded to be heard by Judge alone commencing on 30 June 2014. This judgment records my verdict and my reasons for reaching that verdict.

The elements of the offence are as follows:

(1) On 21 April 2013 at Coogee

(2) The accused did assault SM

(3) At the time of the assault did commit an act of indecency on SM

(4) Who at that time was under the age of 16 years, namely 6 years.

The Crown bears the onus of proving the charge beyond reasonable doubt. That involves proving each of the elements listed above beyond reasonable doubt. The onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. I am mindful that speculation cannot enter into my considerations and inferences may be drawn from established facts only if such an inference is a rational inference.

The Evidence

Exhibit A was a DVD of a JIRT interview conducted with the complainant, SM, on 23 April 2013. The transcript of the interview became exhibit B. SM was six years of age in April 2013. She acknowledged that she knew the difference between telling the truth or a lie. When asked what she had come to talk about to the interviewing officer she said:

"A: The man, he was tickling me around there."

She then demonstrated visually the area under her skirt between her legs.

SM and her brother CM had been climbing on a tree when she saw a man staring at her. The man was sitting on the path and was wearing a black tshirt, black pants and black shoes. He had grey hair around the side of his head and "spiky bits in the middle of his hair" and also had a black wallet. He was also carrying a black square bag and had brown eyes.

At the time, SM's father was playing soccer with her brother LM and her mother was laying down on the picnic blanket on the grass.

SM gave evidence that she told her brother CM, who was aged four, that the man was staring at them and CM said "Let's go over to him" and then the man came closer. He sat down near them and they went to talk to him. She said they wanted to talk to him to ask why he was staring at them.

CM asked the man why he was staring at them and he said "Because I want to watch you". SM then gave the following evidence:

"Q: Did you say anything to the man?

A: Yeah I told him, can you watch us climb the tree and then he said 'Can I tickle you under there', here?"

and then visually demonstrated underneath her dress and between her legs.

SM then gave the following evidence:

"A: And then my mother opened her eyes and then she, and then I came up to her and then I said, he said, 'I'm ...' " and then he, I said he was tickling me under here (VISUALLY DEMONSTRATES) so she called the Police."

After he touched her, the man went back to sit where he was sitting before.

When asked how he had tickled her, she demonstrated that he had used one hand and a finger and had touched her under her skirt.

SM demonstrated by reference to a diagram that part of her body she was touched and when asked what she did with that part of her body, she said "I wee in the toilet". She acknowledged that that was where she was touched, and that was on top of her tights. He touched her with one finger but "only a little bit".

The man had said to SM in answer to her saying "Who's the best?", that she was the best. SM gave evidence that the man took out his black wallet because he wanted to show her his money, but he did not give her any money. When asked how much money was in there she said "Six". She had told him her name.

SM drew a drawing of the park which became exhibit C and the diagram she had marked during the interview showing the relevant body part, became exhibit D.

Exhibit E was a DVD of JIRT interview with LM and the transcript of that interview became exhibit F. LM was seven years of age as at April 2013. He acknowledged that he knew the difference between telling the truth and lies. When asked what he had come to talk about with the interviewing officer he said:

"A: About the man that my brother and sister were talking to. I don't know much about him but I know a lot what he looked like."

Q: Okay.

A: And what he was doing this guy, before, he, when I was laying down with my mum and then SM called me over and said 'LM look that man's looking at me'. Then I went 'Okay' so I started playing on the tree and he was staring at SM and then I thought SM wouldn't go near him so I thought she already knew. But she did and she was ... and eventually I went off the tree and asked my mum where dad was so then I went and played soccer with my dad and CM went to the tree. And that's all that happened, I don't know anything else but I know what he looked like."

LM gave evidence of going to Coogee beach for a family picnic during the school holidays. They arrived at lunchtime.

LM gave evidence that he thought that SM wouldn't go near the man because he thought she would have known to not go near him. He described the man as sitting on something like a mat, and he had brown eyes. He described him as "He was all black and brown eyes, he was bald with grey hair on the back. He was also wearing black shoes." When asked about his face, he said that he had "light, pale skin and was wearing "like a grey jumper or jacket, I don't know which". When asked whether he was fat or skinny he said "Well he's not skinny and he's not fat. Medium".

LM also gave this evidence:

"Q: Okay, how do you know he was watching SM?

A: Because I looked at his eyes and his eyes were focussed on SM's, SM."

When asked again what he remembered about what the man was wearing he said:

"A: I remembered he was wearing a black jumper, oh there was something I didn't, he had this thing around his neck, it wasn't a necklace, but it was around his neck and he hanged his glasses on it."

Q: Okay, what kind of glasses?

A: Black I think but he wasn't wearing them.

Q: So he had black glasses around his neck?

A: Yeah."

LM then confirmed that he was wearing a grey jumper, black tshirt and black long pants with black leather shoes. He drew a diagram of the shoe. The drawings made by LM during the interview became exhibits G and H.

A DVD of a JIRT interview with CM became exhibit J, and the transcript of that interview, exhibit K. CM was four years of age as at April 2013 and when asked, he did not know what a lie or the truth was, but was able to identify a statement as being a lie in an example provided by the interviewing officer. He remembered being in the park with his family and climbing a tree with SM and that there was a man there. When asked to describe what the man looked like he said he had a black shirt, black pants and black shoes and he had a jumper which he was not wearing but was on the grass.

The man was staring at CM and his sister SM as they were climbing the tree. He went to speak to the man but could not remember what he said. He did not see the man touch SM.

He later told his mother that he spoke to the man.

Mrs M gave evidence that she and her husband took their three children to a park at the northern end of Coogee beach on 21 April 2013 for a picnic. They sat down near a tree and had a picnic lunch, after which, she laid down on the blanket. She could hear the children playing, that is, SM and CM, at a distance of approximately 5 metres from her. She was awake and could hear her children. She gave this evidence:

"Q: Did something alert your attention to what the children were doing?

A: They seemed to be laughing quite a lot and giggling and it just changed, more, so I sat up at that point.

Q: What did you see when you sat up?

A: They were just in front of the tree - they were off the tree and were slightly diagonal and they were talking to an older man. They seemed very close and cosy, comfortable. They were dropping leaves and SM, as I sat up, I heard her say "Our address is 16 Rickard Street ..."

When asked to describe the man she gave the following evidence:

"A: I did describe him yes. He was balding on top, a little bit of grey kind of prickly hair at the back of the lower neck, black shirt, black pants. His size, slightly overweight ...

Q: Was he carrying something?

A: He was carrying something that I described a bit thicker than a computer case and something like grey rolled up, I thought it might have been a jacket or a picnic blanket.

When she saw him, the man was sitting and the children were standing. She estimated his age of around 60 give or take either side of that a little. She called both of the children back, but when she did so, the man moved his body to the side but didn't look up. He stood up and slowly walked away. He was not facing her and she did not see his face. He walked down the path towards the beach. As he stood up, he made a gesture with his hand behind him. She said to SM "What did that man say to you?" and SM said, "He liked me best and he tickled me here", and as she did so, she picked up her denim skirt and pointed underneath her skirt and was pointing to her vagina. She was wearing tights or long leggings under her denim skirt. Mrs M said to her "No he didn't", to which SM replied "Yes he did". At that point Mrs M could not see the man and she grabbed her children and ran over to where her husband and LM were kicking the ball. She had a conversation with her husband and then went looking for the man, but could not find him. She returned to the car where her husband had taken her children and the Police had arrived. She marked on a google map where the picnic had taken place and that map became exhibit L.

In cross-examination Mrs M said she had marked the google map, exhibit L, by reference to a fork in the path and the clearing where her husband and son were kicking the ball. When she had sat up after laying down after the picnic, she was looking south. She had a clear vision of the male but did not see his face or facial features. She had estimated his age from the back of his head, his balding head and the skin on his head and neck. She did not see a profile of his face as he was looking down.

Mrs M was referred to her police statement made on 21 April 2013 in which she had stated "CM, SM and the male all looked over towards me", but said that the man had not looked directly at her.

Mrs M did not see a beard on the person. By the time she had spoken to CM and SM, the man had disappeared down the path. After she had spoken to her husband, she went down that path towards the beach quickly, but at the bottom of the path at the beach she did not know which way to go so she turned around and walked back. She had returned to the car in about 10 minutes. The Police were there and she and her husband were outside the car and the children were inside the car. They realised that their parents were distressed and they were getting upset and distressed. She gave this evidence:

"Q: Did you hear the children talking about descriptions like black clothing?

A: Only when I arrived back, the detectives were already there, so they were already talking to them.

Q: As in one group?

A: I think so. They were talking to Mr M and I, and then they spoke to the kids.

Q: In the car?

A: Yes, I can't remember if they got out of the car. I can't remember."

The Crown called Aftab Khan who is employed by the Corrective Services Department and in April 2013 was attached to the electronic monitoring unit which monitored offenders subject to electronic monitoring on court orders. He explained that the tracking device relied on GPS technology and was a radio frequency device whereby they were tracked via satellite. On 22 April 2013 he had been requested to provide movement maps of the accused on the day before which were referred to as "star maps". He gave evidence as to the way in which the data was collated at intervals between 15 seconds to a minute. He produced a movement map from 1.39am on 21 April 2013 to 15:39 hours on 21 April 2013. A map was produced referred to as map 2, with arrows on it which he explained as follows:

"Q: Can you explain to the Court how it is determined where the little green arrows should go?

A: Because every movement is recorded 15 seconds to one minute, it can't be depicted on one map. If it's depicted on one map there'll be thousands of errors and indications there. It's just a general idea to indicate what route has he taken, how far he has travelled, and which way he's come to his destination."

On Map 3, he identified a large green dot which indicated his location at 12.05 in the area of Dolphin Street Coogee beach. Maps 1, 2 and 3 were tendered as exhibit M.

Exhibit N was a bundle of maps, including map 4, and maps 4.1 to 4.13 which demonstrated the accused's movements between 12:05 and 14:07.

Exhibit O was a two page document depicting latitude and longitudinal references in respect of the accused's movements on 21 April 2013 between 13:56 hours and 14:49:15 hours.

Exhibit P was a bundle including map 5 and maps 5.1 to 5.6 which showed the movements of the accused between 14:09 and 14:29 hours on 21 April 2013.

Exhibit Q included maps numbered 6-13 in respect of the accused's return to the Dolphin Street area between 14:38 and 14:50 hours. During that period he returned to Dunningham Reserve. He arrived home at 15:07 hours and at 15:55 he contacted the electronic monitoring unit to advise that he was going back to Coogee to collect his mobile phone. He was permitted to return to the area for that purpose and did so between 15:57 and 16:31 hours. He later left home at 17:20 hours and returned at 18:40 hours as part of his approved scheduled daily activity for shopping.

Mr Khan was cross-examined on the various maps. He gave evidence that the arrows indicated movement at the precise time the transmitter responded. They were a rough guide to show the direction of the movement of a person wearing a transponder. The green dots on the various maps showed exact location at a particular time.

Mr Khan was asked to compare the movement demonstrated in map 4.11 and 4.12 (exhibit N) between 2pm and 2.04pm and the movement demonstrated in map 6 (exhibit Q) between 2.38 and 2.50pm and was asked whether the same or similar travel occurred in those periods, to which he replied:

"A: It's a bit different though. Similar in the sense of movements, yes, however, obviously the movements and the locations are different."

It was then put that the movement was from east to west, which was "similar to that which was shown in map 6 of exhibit Q in that top part, the Dolphin Street, Beach Street section, is that right?" Mr Khan's answer was:

"A: I believe it's different because the movements are different. There's only three arrows showing here, however, this movement is for 12 minutes. I don't know if you want similar in a sense that it's just the same movement or the locations are different, everything is different."

Q: I'm going to suggest there seems to be traversing of roughly the same area, that being Dolphin Street and where it intersects with Beach Street, or close to the intersection of Beach Street?

A: That is correct."

There was no re-examination.

Mr Andrew Hester gave evidence. He was employed by the Department of Corrective Services and in April 2013 was involved in conducting compliance checks on persons who were subject to extended services orders to ensure that they were complying with their schedules. Up to 21 April 2013 he had seen the accused on two occasions and on 20 April 2013 he saw him at his place of residence. He also visited the next day, 21 April 2013 with another officer. He spoke to the accused in his unit for 10 minutes. He gave evidence as follows:

"Q: Do you recall what he was wearing?

A: Yes, he had a black t-shirt on, black jeans and he was wearing thongs."

He had a conversation with the accused about his movements in which the accused told him he was going to the Maroubra and Coogee area. That was consistent with the schedule.

In cross-examination Mr Hester was asked whether the pants the accused was wearing were tracksuit pants rather than jeans and he replied "Jeans". He did not see him wearing black shoes on that day. When asked whether he had ever seen him wearing black shoes he said:

"A: I can't recall."

He gave the following evidence:

"Q: If I was to suggest to you, you never saw him wearing black shoes, would you agree or disagree with that?

A: I can't recall, so.

Q: What you can recall on the 21st he was wearing thongs?

A: Thongs, yes. On the 21st."

The Crown called Jacqueline Hanna who was employed by the Department of Corrective Services and in April 2013 was the acting senior compliance and monitoring officer. She had met the accused prior to 12 April 2013.

On 22 April 2013 Ms Hanna heard a radio report of an indecent assault on a child in a park at Coogee. She reviewed the schedule of the accused and requested a copy of his movement maps, following which, she contacted Maroubra Local Area Command and forwarded that material to the officer in charge.

In cross-examination Ms Hanna gave evidence that the schedule of activities of the accused had been given prior approval. She understood the foreshore area at Coogee to comprise the paved area before the beach and the strip of restaurants opposite. It did not include the beach and she gave evidence that the accused would have been issued with a direction not to frequent the beach, parks or areas where children may frequent. Field checks were carried out on such places to determine whether it was appropriate for offenders subject to monitoring to be there. She herself did not make a determination in respect of the foreshore area. She believed a prior supervisor to her would have made that determination.

Exhibit R was the weekly schedule of the accused for the week commencing 20 April 2013.

Exhibit S was a DVD of the execution of a search warrant at premises occupied by the accused at 7/14 Brodie Street Paddington on 22 April 2013. Exhibit T was the transcript of that search.

Exhibit U was the DVD of a photographic line up shown to SM on 24 April 2013. Exhibit V was a DVD of a photographic line up shown to LM on 24 April 2013. Neither child identified the accused, whose photograph appeared in a photo array (exhibit W) as photo number 11 and number 7 respectively.

The Crown called the officer in charge of the police investigation, Senior Constable Louise Rodden, who gave evidence that at 2.25pm she and another police officer responded to a police radio broadcast to attend Dunningham Reserve at Coogee Beach. At the location on Baden Street she met Mrs M and Mr M and their three children who were inside the car. Mrs M and Mr M were outside the car. The first message received by police in relation to the matter was at 14:09:16. That was the phone call made by Mr M. The police arrived at 14:35:00 hours.

Senior Constable Rodden gave evidence that she obtained CCTV footage from the Palace Hotel. On the following day, Monday 22 April 2013, she was given information from Ms Jacqui Hanna, senior compliance and monitoring officer from the Community Corrections Division of Corrective Services. That information concerned the accused and the fact that he had strict conditions to abide by and was monitored by an electronic monitoring device ankle bracelet.

Senior Constable Rodden received from Corrective Services the electronically monitored weekly schedule for the accused and two maps indicating his movements on 21 April 2013, together with a coloured photograph.

In the company of other police, she attended premises where the accused worked at 1.45pm on 22 April 2013. Her evidence was that the accused was wearing a black polo t-shirt and black jeans. He had "reading glasses attached to a string tied around his neck". She immediately recognised him as Roy De La Torre. She explained that by string she had meant a cord.

The accused was arrested and conveyed to the Kings Cross Police station. He was then informed that a search warrant had been issued for the police to search his premises at Brodie Street Paddington.

Execution of a search warrant commenced at 3.23pm in the presence of the accused. He was again issued with a caution, following which, he provided certain information to the police. He was asked what areas he had been in on the day before and said:

"I was in the foreshore area in that diagram that I just showed you. I was sitting on one of those, whatever you call them, tree planter things, concrete tree planters, where I always sit and eat my lunch."

Senior Constable Rodden was shown the sketch diagram made by the accused during the execution of the search warrant and gave evidence that when the accused used the word "foreshore", he was pointing to the area below a horizontal line drawn on that diagram, which was adjacent to the beach at Coogee. He also indicated that the planter box on which he was sitting was in a grassed area on the right side of the drawing.

The sketch diagram became exhibit X.

When asked where he had gone, the accused said:

"I then went for a walk up the hill and came straight back because I had never been up there and um, went back and sat down on the thing and I left there as my schedule says, at 2pm."

Senior Constable Rodden then gave evidence of further conversation consistent with that contained in exhibit T, the transcript of the execution of the search warrant. In that conversation the accused, when asked "How long do you think you were up there for?", meaning in the park area to the north of the beach, he said:

"I'm not sure, however long it took me to get up there and back, 15 minutes or so."

When asked whether he met anyone or spoke to anyone while he was there the accused said:

"No, no not that I can recall. I might have said hello to some people, like, like, I can't remember. People are always saying hello and, yeah, whatever."

The accused was then asked the following by Detective Sheaf:

"Q: Yeah, what about any children, did you speak to any children?

A: Nah, I don't go near any kids, ha ha, you get yourself into all sorts of trouble.

Q: So did you go off the path at all?

A: Huh? I sat down up the top, right up the top, probably about five minutes, but that was right up near the - I even took pictures, it's on my camera, of the, mmm, circley thing so I would have been up there five, 10 minutes and then went back down."

The accused said that he took the photographs either on his phone or his camera, but he could not recall which one.

After the search warrant was executed, the accused was conveyed back to Kings Cross Police station and he declined the opportunity to be electronically interviewed.

Senior Constable Rodden gave evidence that a number of items were seized as a result of the search warrant, including a black shoulder bag (exhibit Y), a black t-shirt (exhibit Z) and black jeans (exhibit AA).

An enlarged overhead photograph of the area was compiled by the police which identified by red dots the GPS locations of the accused between 12 noon and 2pm on 21 April 2013 at Coogee Beach. Senior Constable Rodden identified a parking area on the southern side of Dolphin Street. The map became exhibit AB.

CCTV footage from the Palace Hotel was played which demonstrated at 14:08:20 a figure walk towards the entrance of the hotel wearing a grey jumper, black jeans and white shoes, and having what appeared to be a strap across his body.

Six still photographs taken between 14:08:17 and 14:08:24 became exhibit AC. A further six still photographs taken between 14:11:48 and 14:12:00 became exhibit AD.

Further CCTV footage taken between 15:47:00 and 15:47:05 showed a person approaching the hotel. Four still photographs were produced from that footage and became exhibit AE.

Senior Constable Rodden thought the person shown in the photographs "would possibly be the accused". At the conclusion of the evidence the Crown in its submissions, disavowed the contention that that person could have been the accused.

The Crown tendered a bundle of photographs and descriptions which comprised sensitive material as defined in Chapter 6 Part 2A of the Criminal Procedure Act. That material was marked exhibit AF, and placed in an envelope marked "Confidential - not to be made public". That bundle contained photographs taken by the accused between 12:31:04 and 13:07:20 on 21 April 2013 and which were clearly taken on Dunningham Reserve.

Senior Constable Rodden gave evidence that the accused declined an offer to go in a line up for identification purposes. He did give a buccal sample for DNA testing, however, a certificate of analysis pursuant to s 107 of the Evidence Act 1995 (exhibit AH) established no DNA evidence of any person on the clothing of SM.

Evidence of offences committed by the accused in 1990, which were the subject of an earlier ruling as tendency evidence, was admitted as exhibit AJ.

Documents relating to offences committed by the accused in 1996, also subject of the earlier ruling, were tendered and became exhibit AK.

The CCTV evidence comprised two disks and were tendered without objection as exhibit AG.

Senior Constable Rodden was cross-examined and gave evidence that she arrived at the scene at 14:35:39. At 14:46:56 a description of a person of interest was broadcast on police radio with a description of a male person with long black pants, bald on top, overweight and included the following descriptions "Male caucasian about 50-60 years of age. Had grey hair with receding hairline. Wearing black shirt and was wearing glasses tied around his neck".

Senior Constable Rodden said that predominantly her conversation with the children was with SM, and that that took place while SM was out of the car. She also took a version from LM and Mrs M, but denied that the children were within earshot of each other as they gave their statements. She was asked whether the children had been speaking in the vehicle prior to her attendance, and answered:

"I'm not sure, but they were all in the vehicle together, the three children."

Senior Constable Rodden did not search the area herself, nor did her colleague. They stayed for 15 minutes and then drove back to Maroubra Police station where a statement was taken from Mrs M.

A grey jumper was with the accused at his workplace and had been in possession of police since 22 April 2013. Senior Constable Rodden obtained possession of the CCTV footage from the Palace Hotel within one week after the incident but did not look at it straight away. Some weeks later, in May or June of 2013, she looked at the CCTV footage. Senior Constable Rodden was aware of the evidence of Mr Khan. She gave the following evidence about the CCTV footage:

"A: When I first viewed the CCTV, that's months and months ago last year, I was looking for a man, I didn't view this lot, I was looking for a male wearing all black and that's what I was looking for, so that first lot of CCTV footage, when I viewed that, I missed what I was looking for. When I went back and reviewed it, I was, that's when I saw the male in the grey jumper with the white shoes with the black jacket and that's when ... with the black bag."

She had obtained CCTV footage between 1.30pm till 4 or 4.30pm that day. She had been looking for someone dressed in all black with black shoes, and only looked at the footage once in 2013. She was then asked:

"Q: When you looked at it the second time again were you ensuring that there wasn't someone seen all in black?

A: Well, I thought that, well, I looked at it again, thinking it would, differences arise to fresh eyes, I guess, looked at the possibility that he wasn't wearing black shoes as I reviewed, had a look at the search warrant video and saw that in that search warrant video he had different coloured shoes on, so that's when I went back and saw that, and then with the grey jumper, then I was originally looking at that this person was holding something grey, I saw a grey jumper on and thought 'that's him'".

She agreed that she had seen white shoes being put on by the accused during the search warrant video but had seized no black shoes from his property.

The witness was shown exhibit N and identified the green dot on map 4.13 as showing the accused at the roundabout at Dolphin and Arden Street Coogee at 14:07:52. She was then shown exhibit P and identified the location of the accused at 14:08:52 on map 5.1 at the intersection of Arden and Havelock Avenue Coogee. It was put to her that those two points were 850 metres distant, but at first she said it was 150-200 metres which she later revised to 400 metres. On the day in question she had been in his company from 1.45pm to approximately 7pm.

In re-examination Senior Constable Rodden was shown the search warrant which did not include black shoes as an item that was being looked for. She was therefore not looking for black shoes when she conducted the search warrant. She first became aware of that when she was reviewing the interviews conducted by the police with the children.

Crown Submissions

The Crown submitted that the case against the accused was a circumstantial case, however, there were a number of items within the case that would amount to proof beyond reasonable doubt that the person who assaulted SM was the accused.

First, the descriptions given by the children identify the accused as wearing a black t-shirt, black pants and black shoes. SM described him as having grey hair with spiky bits in the middle and carrying a black square bag and her brother LM described the man as bald with grey hair at the back. He also described the man as having a black bag and carrying a grey jacket or jumper and, importantly, having something around his neck with glasses hanging from it.

When arrested the following day the accused was wearing a black tshirt and black pants and a grey jumper was depicted in the video of the execution of the search warrant (exhibit S). Further, when Senior Constable Rodden first spoke to him, he was wearing glasses hanging on a cord around his neck.

The Crown submitted that the description given by the children was consistent with the CCTV footage from the Palace Hotel just after 2pm. Further, that evidence was consistent with what the accused admitted to the police, namely, that "sometime around 2pm he went into the Palace Hotel for the purpose of going to the toilet; it was while he was in that hotel that he lost his phone, and left his phone, he told the police in the toilet and later retrieved it that afternoon."

The hotel he described as being on the corner of Coogee Beach and was where he parked his bike, referring to his motorbike.

The Crown referred to the star maps of the offender's movements. At 12:05:00 he arrived at the Coogee Beach area. It was submitted that the maps placed the accused in Dunningham Reserve between 12:05:00 and 14:07:00. The Crown submitted that the evidence established that the first phone call made by AM to the police was made at 14:09:00 hours. Given the time taken for SM to report the matter to her mother, and for her mother to then take the children to where her husband was, and then gather the picnic up, it was submitted that the offence occurred sometime between 2pm and 2:09pm.

It was submitted by the Crown that the man walked away from the scene of the offence along the only path from Dunningham Reserve that led to Beach Street precisely at the time shown on the star maps that the accused in fact left the area and walked to the area on the corner of Dolphin Street. When he referred to the hotel on Dolphin Street, the Crown submitted that must mean the Palace Hotel.

The Crown submitted that whilst the timelines did not line up precisely, the accused's version of events of what he did is consistent with the images shown on the stills that were taken from the CCTV coverage of the Palace Hotel between 14:08:20 and 14:11:48. It was submitted that the person shown in those photographs has all the hallmarks of the accused, namely, black pants, grey jumper and bag across his body.

The Crown submitted that the accuracy of the times shown on the CCTV was unknown, however, it was within "a very clear ambit of time that the accused himself says that he went there to go to the toilet".

The star maps demonstrated that at 14:08:52 the accused was moving on Arden Street heading south and by 14:11:00 he was at Malabar Road (exhibit P, map 5.2) and by 14:15:00 he was on Anzac Parade heading north (exhibit P, map 5.3). At 14:29:12 he was further north on Anzac Parade (exhibit P, map 5.6), however, by 14:38:00 he had returned back to the Dolphin Street area at Coogee where he returned to Dunningham Reserve, leaving at 14:50:00 (exhibit Q). He returned to his home arriving at 15:07:00.

At 3.57pm he returned to Coogee to pick up his phone from the Palace Hotel (exhibit Q, map 10). He was at Dolphin Street Coogee from 4.11pm to 4.17pm to pick up his phone, but did not go to Dunningham Reserve (exhibit Q, map 11).

The CCTV footage from the Palace Hotel and still photographs comprised in exhibit AE showed a man dressed in all black with white shoes at the hotel at 15:47:00 (exhibit AN). The Crown submitted that that man who was dressed in all black with white shoes could not have been the accused.

The Crown submitted that the accused lied to police about his movements on that day. Exhibit T was the transcript of the execution of the search warrant. In that, the accused told the police he was on the headland for what he estimated was 15 minutes. In fact, he was on the headland for a period of two hours. It was submitted that that lie demonstrated a consciousness of guilt on the part of the accused. It was submitted that it was a deliberate lie because he feared that the truth might reveal the guilt of his offence. The accused had minimised his time on the headland and had told the investigating police that he had been on the foreshore which he demonstrated by a sketch drawing (exhibit X).

The Crown also relied on the tendency evidence contained in exhibit AJ relating to the 1990 offences. The manner of the offending in that case was submitted to be almost identical to the allegation made against the accused here.

Further, it was submitted that that evidence, together with the 1996 offences, demonstrated a tendency for the accused to have a sexual attraction to pre-pubescent girls and a tendency in relation to indecent assaults upon them by way of touching their genital area on the outside of their clothing. His sexual attraction to prepubescent girls was further demonstrated by the sensitive material in exhibit AF.

Further, the Crown submitted that the evidence of both the 1990 and 1996 offending demonstrated such similarities between the events presently before the Court and the previous events for which the accused had pleaded guilty, that it was improbable that the events had occurred coincidentally.

It was submitted that this was a "strand in the cable" circumstantial case. There was no particular act or event which the Court has to be satisfied beyond reasonable doubt. What has to be done is for the Court to look at each of the pieces of evidence and draw the inferences that are available in relation to each of those pieces of evidence and look at the entirety of the evidence and determine whether the only reasonable inference available on the totality of that evidence is one of guilt. It was submitted that if there was a reasonable inference available that was inconsistent with guilt, then the court must find the accused not guilty.

It was submitted on behalf of the Crown that the following factors would lead to a finding of guilt:

(1) The presence of the accused on the headland for two hours. Beyond the star map evidence, this was also demonstrated by the photographs taken by the accused contained in exhibit AF between 12:30pm and 1.07pm.

(2) The descriptions given by the children of the clothes worn by the offender and the fact that he had his glasses around his neck.

(3) The lie that he told police as to the length of time that he was on the headland.

(4) While it was not possible to place him precisely where the picnic happened, in the same way it was not possible for Mrs M to say precisely where the family were sitting from a twodimensional image of the park.

(5) The two hour period during which the accused was present on the headland included the period of time when this offence took place.

(6) The only other inference available is that there was some other paedophile on that headland at the time wearing clothes that were identical to clothes owned by the accused and whose predilections in terms of sexual behaviour was identical to the sexual behaviour of the accused as exhibited in the previous offences of which he was convicted in 1990 and 1996. In the Crown's submission that was not a possible coincidence.

Defence Submissions

Mr Todd of learned Counsel submitted that judicial notice could not be taken of the unreliability of CCTV cameras generally, and the CCTV footage at the Palace Hotel Coogee in particular, relying on s 147 of the Evidence Act. He submitted that there was a rebuttable presumption that the date and time stamps on the CCTV footage was reliable and accurate, and that that presumption had not been rebutted by the Crown.

Further, it was submitted that the evidence of the CCTV footage between 14:08:00 and 14:11:00 hours was completely inconsistent with other evidence in the Crown case as to the whereabouts of the accused. In exhibit N, map 4.12, the position of the accused is located south of Dolphin Street in an area which, by reference to the map in exhibit AB, appears to be the council car park. By 14:07:00, the accused was at the roundabout intersection between Dolphin Street and Arden Street, which clearly suggested he was in transit. By 14:08:52 he was heading south on Arden Street (exhibit P, map 5.1). On that basis, it was submitted that the man shown in exhibit AC as walking towards the Palace Hotel at 14:08:00 cannot have been the accused, even though that man had been identified by an experienced police officer as the accused.

It was further submitted that none of the descriptions of the offender given by the witnesses nominated a man with a beard, which was a description that would clearly have identified the accused as he had a beard at the time.

It was further submitted that the evidence did not establish when the offence was committed. The Court was left to reason an approximation, as there was an absence of evidence from Mr M who made the telephone call at 14:09 as to what took place before he made that call. The period before that call was submitted to be a critical piece of evidence because the Crown needed to connect the timelines, particularly those from the transponder on the accused.

Further, it was submitted that the accused could not stop the tracking device from issuing a signal, and that the signal emitted shows that he had gone by the hotel and to the roundabout at Dolphin Street. Counsel asked rhetorically, "Why is it at 14:11:48 - 14:12:00 there is no tracking device showing the movements of the accused in what appears to be a northeasterly direction; that is, back toward the headland?"

It was submitted that the evidence shows only one thing: that the accused went to a position which was the car park south of the Palace Hotel, he then gets on his motorbike and begins to leave the area. That is uncontested evidence which does not sit with the Crown's evidence contained in exhibit AD.

Counsel submitted that the officer in charge had expressed her view that the person shown in the images, exhibits AC and AD, match the description of the accused, however, this was not the accused but another person. That other person matched all of the descriptions of the witnesses, including the jumper, the age, the bag, the hair and a presence close to the scene. Therefore there was clear evidence in the Crown's own case that a person other than the accused matched those descriptions and was there at the time. Counsel went on to submit:

"The fact that the Crown thinks that it is the accused is of course wrong, but the reasoning process, which is to marry up the information he has to what she sees, is right; it is just that it is not the accused."

Further, it was submitted that the last series of images contained in exhibit AE (between 15:47:00 to 15:47:05) again largely match the description of that given by the children and their mother, absent the black shoes, which showed another person, at a time approximate to the occurrence of the offence, that could not be the accused.

On that basis, it was submitted that the Crown's circumstantial case failed.

It was submitted that it was not incumbent upon the accused to prove anything. Rather, Counsel submitted that even in the Crown's own case, particularly when reliance was placed on the tracking device and the CCTV evidence, that it could not establish that the accused was the only person in the area at the time that matched the descriptions given by the witnesses.

Counsel also referred to the evidence establishing that the police arrived at the area at 14:35:39, however, at 14:39:00, the accused returned to Dunningham Reserve and was there until 14:50:00. It was submitted that the accused always said that he was aware his tracking device will show where he was at all times. Rather than being a consciousness of guilt in any way to return to the scene to obtain the phone, that evidence showed a lack of consciousness of guilt to traverse an area almost precisely that he had traversed earlier. It begged the question, why would he return to the scene and potentially expose himself to the police?

A further reason why the Crown case that the accused is shown in exhibit AC at the Palace Hotel is incorrect, is that the tracking device does not show the accused within the confines of the hotel for any length of time. If he was in the hotel between 14:08:24 and 14:11:48, the transponder would show him there. The evidence does not establish that. On that evidence alone, the accused ought to be found not guilty.

However, there is other evidence that also does not implicate the accused. The first is the disparity as to how the accused looked and the descriptions given of the offender, principally the lack of evidence of a beard, and the evidence about the shoes. SM was asked directly whether the offender had any hair on his face, to which she replied "No".

It was submitted that the children gave honest and truthful evidence and both SM and LM showed sophistication for their age. LM was described as a compelling witness who showed intelligence beyond his years. Neither identified the accused from the photographic line up and in the case of LM, he dismissed the photograph of the accused immediately. He also described the offender as having sunglasses hanging from the neck.

Counsel for the accused accepted that Mrs M did not see the face of the offender at all. She described him as wearing black shirt and black pants, as being slightly overweight and carrying something over his shoulder, a bit thicker than a computer case, and also something grey rolled up, which may have been a jacket or picnic blanket. However, there was no evidence that the officer in charge gave Mrs M access to the photographic exhibits to see if what was seized from the accused was what she was meaning to describe. The absence of that evidence ought not be held against the interests of the accused.

Further, there was no DNA evidence implicating the accused.

As to the Crown submission that the accused lied, thereby evincing a consciousness of guilt, the Court was asked to find that what the accused had said was not a lie, but rather, in looking at the evidence as a whole, there was a degree of ambiguity in what he said about how long he had been at Coogee for and what he did there. It was submitted that he continually referred to the fact that he had a tracking device and that the police were able to ascertain his movements.

It was further submitted that the Court has knowledge that people use phrases such as "15 minutes" when the time period is far greater. On that basis it was submitted that what the accused had said was not a lie and did not amount to a consciousness of guilt, it was just an error made in the circumstances in which the accused found himself.

It was submitted that the tendency and coincidence evidence could not be relied on to overcome the onus on the Crown to prove beyond reasonable doubt that the accused committed this offence. It could not plug holes in the evidence, nor be used as a makeweight. It was submitted that in a circumstantial case such as the Crown relied on here, it was a rational, reasonable inference to infer from the evidence that the accused is not guilty. That was on the basis that there was another person other than the accused on that headland, at or around that time wearing clothes similar to the descriptions given by the children and by their mother.

In respect of the sensitive material contained in exhibit AF, Counsel submitted that it was a matter of weight to be given to that evidence, given that the accused had pleaded guilty to various matters in the past. He had now pleaded guilty to that material which was in his possession which was consistent with the way he conducted himself in judicial matters in the past. As to the use that could be made of that evidence to prove a state of mind, it was a factor to be taken into account. Counsel submitted, however, that it does not take it beyond a suggestion of guilt to the level of proving him guilty beyond reasonable doubt of the offence.

Directions of Law

Section 133 of the Criminal Procedure Act 1986 provides as follows:

"133(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."

The first direction that I give myself is in relation to the burden of proof. As this is a criminal trial, the burden of proof of the guilt of the accused is placed squarely on the Crown. That burden rests upon the Crown in respect of every element or essential fact that makes up the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute. It is of course not for the accused to prove his innocence but for the Crown to establish his guilt.

A critical part of the criminal justice system is the presumption of innocence. What it means is that a person charged with a criminal offence is presumed to be innocent unless and until the Crown persuades the Court that the person is guilty beyond reasonable doubt.

That is the high standard of proof that the Crown must achieve before I can convict the accused. At the end of my consideration of the evidence and the submissions made by the parties, I must ask myself whether the Crown has established the accused's guilt beyond reasonable doubt. In other words, I will ask myself, "Is there any reasonable possibility that the accused is not guilty?"

However, the Crown does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation that rests upon the Crown is to prove the elements of the charge; that is the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt. If the Crown has proved the guilt of the accused beyond reasonable doubt then the appropriate verdict is guilty. If not, the verdict must be not guilty.

In this trial there is evidence that the accused answered some questions put to him by the police during the execution of the search warrant of his home. That evidence is contained in exhibits S and T. He did so after being appropriately cautioned by the investigating officer. Following that search, the accused was invited to participate in an ERISP interview, which he declined. It would be quite wrong for the Court to use the fact that the accused decided to exercise his right of silence against him. The fact that the accused chose to remain silent cannot be used against him.

Direction as to Circumstantial Case

As outlined earlier, my function as a Judge of the facts in this case extends beyond coming to a conclusion as to whether any particular fact has been established by the evidence. It extends also to drawing reasonable inferences or conclusions from the facts that I find to be established. "Inference" and "Conclusion" mean the same thing. "Conclusion" refers to the line of reasoning that the Crown intends to prove by its circumstantial case. In this case, the Crown relies wholly upon what is called "circumstantial evidence". In relying upon circumstantial evidence, the Crown seeks to establish certain basic facts and then from those facts, to draw a conclusion as to the existence of further facts.

Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case, or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused.

In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken.

But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then a Court is asked to reason in a staged approach. The Crown first asks the Court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves, they cannot prove the guilt of the accused. The Court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact that the Crown asks the Court to find upon the basic facts, is that an accused person is guilty of the offence charged.

A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation) and it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that the Court approach a circumstantial case by considering and weighing, as a whole, all the facts that are established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt.

The correct approach is first to determine what facts the Court finds established by the evidence. Any particular fact can be taken into account and does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of the offence charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I would not be satisfied of guilt beyond reasonable doubt. It would follow that I must find the accused not guilty in that case.

But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts, then, before I can convict the accused I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I would not be satisfied beyond reasonable doubt of the accused's guilt.

Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

The nature of the Crown's circumstantial case is essentially the evidence relating to the star maps which emanate from the tracking device placed on the leg of the accused which established that he was on the northern headland of Coogee Beach on 21 April 2013 from 12.05:00 to 14:07:00 hours. Other aspects of the circumstantial case relied on by the Crown relate to the evidence given by the children and their mother as to what the offender was wearing, namely, black shirt, black pants and black shoes, together with a description of his hair and skin.

The defence submits that other evidence relied on by the Crown, namely, the CCTV footage taken between 14:08:00 and 14:11:00, at a time when it had been established that the accused was on his motorbike and riding away from Coogee towards his home, another person meeting the same description (but for white shoes, and wearing a grey jumper), was depicted entering and leaving the Palace Hotel. That evidence is relied upon by the defence to submit that there was another person in the vicinity of where the offence was committed, who met the description given by the witnesses, other than the accused. Therefore the defence submits that there is reasonable doubt and the Court should find the accused not guilty.

In order to be satisfied beyond reasonable doubt of the accused's guilt of the offence, the Crown must persuade the Court that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. The Crown must then prove that the only reasonable inference or conclusion that can be drawn from a consideration of all of the established facts viewed as a whole is that the accused, Roy De La Torre is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown seeks, then the Crown's circumstantial case has failed.

Direction as to Tendency Evidence

In addition to the evidence that the Crown relies upon by way of its circumstantial case establishing that the accused committed the offence, the Crown also relies upon evidence to prove beyond reasonable doubt that the accused had a sexual interest in SM, who was a six year old girl and was willing to act upon it in the way that SM alleges. The Crown argues that the accused's sexual interest is proved beyond reasonable doubt and therefore you can use it to prove the allegations in the Indictment beyond reasonable doubt. The Crown says that the Court will be satisfied that the accused had a sexual interest in SM on the basis of other acts of a sexual nature which relate to offences committed by him in 1990 (exhibit AJ) and 1996 (exhibit AK) and the sensitive material contained in exhibit AF. It is submitted that that evidence proves beyond reasonable doubt that the accused had a tendency to act in a particular way, namely, a tendency to pursue and assault young females by touching their vaginas, or near their vaginas, and a tendency to have a particular state of mind, namely, a sexual interest in young female children.

Before I can use that evidence in the way that the Crown submits I use it, I must make two findings beyond reasonable doubt. The first finding is that I must be satisfied beyond reasonable doubt that one or more of those acts occurred. In making that finding I do not consider each of the acts in isolation, but consider all of the evidence and ask myself whether I am satisfied that a particular act relied upon actually took place. The Crown relies upon the fact that the accused pleaded guilty to each of the offences as a basis for me being satisfied beyond reasonable doubt that each of the offences took place.

If I cannot find that any of these acts is proved by the Crown beyond reasonable doubt, then I must put aside any suggestion that the accused had the sexual interest in SM as alleged by the Crown and decide the case on the rest of the evidence.

If I am satisfied beyond reasonable doubt that any one or more of those acts occurred, then I go on to consider the second finding. I must ask myself whether, from the act or acts that I have found proved, I can infer or conclude beyond reasonable doubt that the accused had a sexual interest in SM as the Crown alleges. If I cannot draw that inference or conclusion beyond reasonable doubt, then again, I must put aside any suggestion that the accused had a sexual interest in SM.

So, if having found one or more of the acts attributed to Roy De La Torre to have been proved by the Crown beyond reasonable doubt, and I am able to, from the proved act or acts, infer or conclude beyond reasonable doubt that Roy De La Torre had the sexual interest in SM, I may use that fact in determining whether Roy De La Torre committed the offence charged.

The evidence must not be used in any other way. It would be completely wrong to reason that, because Roy De La Torre has committed one crime or has been guilty of one piece of misconduct, he is therefore generally a person of bad character and for that reason must have committed the offence charged. That is not the purpose of the evidence being placed before me and I must not reason that way. I cannot punish Roy De La Torre for other conduct attributed to him by finding him guilty of the charge in the Indictment. I cannot use it in any way prejudicial to the accused unless I accept the Crown's argument that it shows that Roy De La Torre had a sexual interest in SM and therefore makes it more likely that Roy De La Torre committed the offence charged against him.

Further, I must not substitute the evidence of the other acts led to prove that Roy De La Torre had a sexual interest in SM for the evidence of the specific allegations contained in the charge in the Indictment. The Crown is not charging a course of misconduct by Roy De La Torre but has charged particular allegations arising in what SM alleges was a course of sexual misconduct. I am concerned with the particular and precise occasion alleged in the charge. If I find that Roy De La Torre had a sexual interest in SM, it may indicate that the particular allegations are true, but I remind myself that I am required to find that the charge is proved beyond reasonable doubt before I can find him guilty.

The same evidence (exhibit AF, AJ and AK) is also relied upon by the Crown as establishing that the accused engaged in the conduct alleged and had a sexual interest in doing so. The Crown submits that there are such similarities between the circumstances of the prior offending of Roy De La Torre and the circumstances of the offending here, that is, the finding of a pre-pubescent girl on the headland and the touching of her in the area of her vagina, that it is improbable that those events occurred coincidentally.

That evidence is before the Court because there is such a strong similarity between the previous offending and the circumstances of the present charge, such that the Court would be satisfied that the person who did the previous acts must have done the present act. That is to say, there is such a significant similarity between the acts, and the circumstances in which they occurred, that it is highly improbable that the events occurred simply by chance, that is by coincidence. The improbability of two or more events occurring by chance, or coincidentally, may lead to a conclusion that an accused person committed the act (or had the state of mind) that is the subject of the charge. In this case, the Crown submits that provided I am satisfied that Roy De La Torre committed the offences in 1990 and 1996, then those acts, and the circumstances in which they were done, are so similar to the act alleged in the Indictment that I would conclude beyond reasonable doubt that Roy De La Torre must have committed the offence with which he has been charged.

The evidence of the pattern of behaviour can only be used in the way the Crown asks if I find two matters: first, that Roy De La Torre did the other acts; and secondly, that they are so similar to the acts giving rise to the charge, that I find that it is highly improbable that both acts were committed by a different person. If I accept those two matters, then I can use that evidence, together with the other evidence in the Crown's case, to be satisfied beyond reasonable doubt that Roy De La Torre committed the act giving rise to the offence charged on the Indictment.

However, this is the only way I can use the evidence of those other acts. I cannot reason that because Roy De La Torre may have committed the other acts he is the type of person who will commit criminal activity generally or that he is a person who is likely to have committed the offence charged. The evidence is not placed before the Court for that type of general reasoning. I cannot punish the accused for other conduct attributed to him by finding him guilty of the charge in the Indictment.

Determination

The Issue

On the whole of the evidence I am satisfied beyond reasonable doubt that three of the four elements of the offence have been established beyond reasonable doubt, namely,

(1) That on 21 April 2013 at Coogee

(2) SM was assaulted and at the time of the assault an act of indecency was committed

(3) And that at the time SM was under the age of 16 years, namely, 6 years.

The issue to be determined is whether the Crown has established beyond reasonable doubt that the accused assaulted SM.

The Facts

I find the following facts established on the whole of the evidence:

(1) The complainant and her family arrived at Dunningham Reserve before lunch, and had a picnic on the reserve where generally indicated by Mrs M on exhibit L, adjacent to a tree, and just to the north of the concrete path which leads back to Beach Road near the Palace Hotel and the eastern end of Dolphin Street.

(2) I further find that the accused was on Dunningham Reserve between 12.05:00 hours and 14:00:00 hours and, by star maps and the reference to the GPS locations shown on the overhead map (exhibit AB), spent a substantial proportion of that time in reasonably close proximity to the location of the picnic spot chosen by the complainant and her family. Those GPS locations of the accused are depicted by red dots on exhibit AB.

(3) I find that the offence took place at approximately 2pm on that day. I make that finding on the basis of the evidence that Mr M phoned the police at 2.09pm, and that before that, approximately 10 minutes had elapsed during which SM informed her mother of the assault, Mrs M took SM and CM to the place where their father was playing with their other child, the picnic site was evacuated and Mrs M conducted a search for the offender by proceeding down the path towards Beach Street and returned to meet the family at the car.

(4) I find that the offender was wearing a black t-shirt and black pants and had sunglasses hanging around his neck attached to a cord. I find the most reliable evidence of the offender came from the evidence of Mrs M who described him as "Balding on top, a little bit of grey kind of prickly hair at the back of the lower neck, black shirt, black pants. His size, slightly overweight ... and carrying something a bit thicker than a computer case and something like a grey rolled up", which she thought might have been a jacket or a picnic blanket. She did not give evidence of the shoes the offender was wearing, however, both SM and her brother LM gave evidence that he was wearing black shoes.

(5) At 14:04:48 the accused had moved from Dunningham Reserve to an area approximating the car park to the south of the Palace Hotel. His presence in that car park is confirmed by red dots appearing on the overhead photograph in exhibit AB. Also located on that same exhibit, are three red dots locating the position of the accused by way of GPS positioning on the northern side of Dolphin Street, two of which are adjacent to the southern side of the Palace Hotel.

(6) I accept what the accused told the police during the execution of the search warrant (exhibit T, p 10) that that was the pub which he went into to go to the toilet. He told the police:

"I just go in there to go to the loo. Put my phone down on the loo and walked away and I forgot about it. Came home. Where's my phone?"

(7) When asked when he went to the pub he said:

"I don't know. I couldn't tell you. It would have been half past twoish. No. It would have been before that cause I leave Coogee at 2 o'clock but it's on my schedule to leave at 2 o'clock. So it would have been about 2 o'clock, yeah."

(8) I further accept his evidence that the accused later rang his phone and it was answered by someone at the Coogee Bay Hotel. Whilst that evidence was not clarified, he was clearly referring to the Palace Hotel. He returned there at half past five, having received permission from his monitoring supervisor to return there to pick up the phone.

(9) At 14:07:52 I find that the accused was on his motorbike at the intersection of Dolphin Street and Arden Street roundabout and that he then travelled south along Arden Street to Malabar Road (at 14:11:00, exhibit P, map 5.2) until he reached Anzac Parade, when he then headed north. At 14:29:12 he was at the intersection of Anzac Parade and Avoca Street (exhibit P, map 5).

(10) I find that the accused returned to Dolphin Street Coogee, arriving at 14:38:00 and proceeded to generally retrace his steps through Dunningham Reserve (exhibit Q, map 6) before leaving at 14:50:00 hours.

(11) I find that the accused arrived home at 15:07:00 and returned later, leaving home at 15:57:00 and returning at 16:31:00 hours.

The accuracy of the tracking device, with which the accused was fitted as to place and time, was not challenged by the accused.

During the execution of the search warrant of the accused's premises on 22 April 2013, he was given a caution by the investigating officer and asked a number of questions. When he was arrested he was wearing black pants. He told the officer that he was wearing blue jeans the day before and that he had his black bag with him. When asked to describe that bag he said:

"It's a over the shoulder. You've got it, in custody. Over the shoulder black. Just a man bag I guess is what you call it."

That bag was tendered as exhibit Y.

The accused denied that he had his grey jumper on on 21 April at Coogee. He told the police that he had parked his bike on Dolphin Street near the hotel and when asked where he had lunch on Dolphin Street he said "It's the Foreshore there" (sic). He said that he sat on the concrete and watched the beach. Later, he was asked by the police what area he was in when he was in Coogee the day before. He said:

"A: I was on the foreshore area in the diagram that I showed you ... sitting on one of those whatever you want to call them, tree planter things. ... Concrete tree planters which, where I always sit and eat my lunch.

Q: Were you down the bottom or had you moved up the top or to either side?

A: I, I ... go for a walk up the hill. I came straight back cause I'd never been up there. And went, went back and I sat down on the thing and I left there, as my schedule said, at 2 o'clock or so.

Q: Okay and so, so when you say you were up there, how far did you go? So I know that that goes all the way around to Gordons Bay - so did you go around the park or?

A: So, so that's the first time I've been up there so I'm aware of that statuey thing is so. ...

Q: Alright and so how long would you have gone for a walk up there for?

A: I'm not sure ... Well just, well however long it took me down, out there and get back. You know, 15 minutes or so. It was only a slow walk. I wasn't in any hurry."

The Crown submits that the content of that interview to the effect that he walked up to the headland for 15 minutes or so was a deliberate lie. That lie demonstrated a consciousness of guilt because he feared the truth might reveal the guilt of his offence. He deliberately minimised the time that he spent on the headland and told the officer that he was in fact on the foreshore, which he demonstrated by way of diagram to be down near the beach.

I am satisfied that what the accused told the police on that occasion was a deliberate lie. It could not be explained away as a common expression of time as advocated by his Counsel. Nor was it ambiguous. It was said the day after the events in question, at a time when the accused must have known that he spent the whole of the two hour period on or about Dunningham Reserve. The statements were untrue, and the accused must have known that at the time of making them. It is a matter which relates to an issue relevant to the offence alleged against the accused here, namely, the presence of the accused on the headland at the time the offence occurred. I therefore find that the reason Roy De La Torre told this lie is because he feared that telling the truth might reveal his guilt in respect of the charge.

In respect of the tendency evidence and in particular the offences committed by the accused in 1990 (exhibit AJ) and 1996 (exhibit AK), I am satisfied beyond reasonable doubt that the accused committed the offences to which he entered pleas of guilty and was sentenced. I have had regard to the whole of the evidence including the charges, the victims' statements and the remarks on sentencing. I am satisfied beyond reasonable doubt that each of the offences took place. I am further satisfied that I can infer from the evidence, and from the evidence containing sensitive material contained in exhibit AF, that the accused had a particular state of mind, namely, a sexual interest in SM who was aged six years at the time of the offence.

I also find that there is a strong similarity between the offending of the accused in 1990 and 1996, as demonstrated in exhibits AJ and AK and the offending here. I find that it is highly improbable that the assault of SM involving an act of indecency as described above, occurred simply by chance or coincidence. I am mindful of the limitation to which such evidence may be used, as set out above.

I find as a fact that the accused did enter the Palace Hotel to use the toilet facilities there after he left Dunningham Reserve on 21 April 2013 and before he rode his bike away from Coogee. I come to that finding based on what the accused told the investigating police during the execution of the search warrant referred to above, and the evidence of the red dots shown on the overhead photograph, exhibit AB, outside those premises on the northern side of Dolphin Street, also referred to above. In relation to the CCTV footage (exhibit AG) and six still photographs taken from that footage (exhibit AC), both the films and still photographs are of such poor quality that it is impossible to be certain as to whether the person depicted therein is the accused. Whilst it does appear to be a balding man wearing a grey jumper, black pants and carrying a case with a strap across his chest, it could only be described as entirely unreliable evidence for the purposes of identification. I note however that the man appears to be wearing white shoes. I therefore make no finding that the person shown in that evidence is the accused. The same reasoning applies to exhibit AD which appears to show the same man leaving the premises three minutes later. I note however that the exposed footage is taken of the Dolphin Street entrance to the Palace Hotel in a location similar to the position shown on exhibit AB by red dots, demonstrating the location of the accused. In any event, this CCTV evidence could not be relied on to prove the person shown was present on Dunningham Reserve at the time of the offence.

Further, I make no finding in respect of the person depicted in the photographs, exhibit AE, exposed at the same location apparently at 15:47:00 hours on the same day. The Crown does not rely on those photographs as identifying the accused and in any event, they are irrelevant to the issue to be determined.

I do find that the accused returned to Dunningham Reserve at 14:38:00 hours. It was not disputed that exhibit Q, map 6, demonstrated that he retraced his steps on Dunningham Reserve. The Crown submitted that he must have at some stage realised that he lost his phone. If he left the phone on the headland, which is where he went when he returned, then clearly it would identify him and that is where he went when he came back.

The accused, through his Counsel, submitted that at the time the accused returned to that very area, the police had arrived a few minutes beforehand at 4:35:39. It was submitted that the accused said in the recorded conversations that he was aware that his tracking device will show where he was at all times, and therefore rather than being a consciousness of guilt to return to the scene to obtain the phone, it was submitted that that action showed a lack of consciousness of guilt to traverse an area almost precisely that he had traversed earlier. Counsel submitted, "Why would he return to the scene and potentially expose himself to the police?"

The accused said nothing about returning to the headland during his interview at the time of the execution of the search warrant. He did however make it clear that he had lost his phone and retrieved it by returning to Coogee later that afternoon. I am mindful that the Court cannot speculate about such matters, and must only draw inferences where they are a rational inference to be drawn from other facts. I therefore make no finding in respect of the purpose of the accused's return to Dunningham Reserve at 14:38:00, and draw no inference from it as to do so would only be speculative.

The fact that he returned to Coogee later that day to collect his phone from the hotel does however support his evidence that he in fact visited the hotel prior to leaving Coogee earlier that afternoon and left his phone in the toilet there.

I do not accept the submission made by Counsel for the accused that each of the children SM and LM gave sophisticated evidence for children of their age. Rather, in the case of SM, she gave evidence with a degree of reticence which could be regarded as typical of a young girl of her tender years. She had to be led through her evidence by the investigating officer, and by saying so, I make no criticism of the officer concerned. Her brother LM was a little older and is obviously a bright seven year old. Neither child identified the accused in the photo array, nor did they identify any other photo in the selection provided to them, however, LM did comment that a number of the photos showed a person with the same skin colour as the person he saw on Dunningham Reserve. The evidence was clearly unreliable in respect of it constituting identification evidence. Both children referred to the offender wearing black shoes, and no black shoes were located by the police during their search of the accused's premises. That was explained away by the Crown having the officer in charge confirming that she only became focussed on the allegation of the black shoes some time after the search.

SM was asked directly whether the offender had hair on his face, which she denied. That evidence alone would give rise to some doubt, however, it must be given weight in the context of it being given by a six year old girl whose evidence generally was somewhat unreliable. As set out above, the best description of the offender was given by Mrs M, however, unfortunately she had not seen the face of the offender as he had turned away from her when she intervened by calling the children over to her.

Finally, Counsel for the accused asked rhetorically, in respect of the evidence contained in exhibits AC and AD, namely, the still photographs taken from the CCTV footage at the Palace Hotel between 14:08:00 and 14:12:00 hours, namely:

"Why is it that at 14:11:48 and 14:12:00 there is no tracking device showing the movements of the accused in what appears to be a north-easterly direction, that is, back towards the headland? There is none."

Counsel went on to submit that that evidence showed only one thing - that the accused goes to a position which is the car park south of the Palace Hotel, he then gets on a motorbike and begins to leave the area. That, it was submitted, was the uncontested evidence and did not sit with the Crown's evidence contained in AD.

There is evidence, as outlined above, that the tracking device showed the accused between 14:08:00 and 14:12:00 travelling along Malabar Road towards Anzac Parade. What is not shown is the movements of the accused between 14:29:12 and 14:38:00 when he arrived back at Dunningham Reserve. However, that evidence is irrelevant for the purpose of determining the issue in this trial. For the reasons outlined above, the submission made by Counsel is not made out. The evidence of the accused established that he went to the Palace Hotel sometime after 2 o'clock. Although exhibits AC and AD may not establish beyond reasonable doubt that the person depicted at the hotel was the accused, they do not establish the presence of another person on Dunningham Reserve before and leading up to 2pm that day who bore a similar description to the accused.

Conclusion

I have had regard to the whole of the evidence before the Court and have found the facts which have been outlined above. In considering all of those facts as a whole, including the tendency and coincidence evidence referred to above, I conclude that the only reasonable inference to arise is that on the basis of those facts the accused is guilty of the offence charged and that he assaulted SM at Dunningham Reserve in Coogee on 21 April 2013 and at the time of the assault, committed an act of indecency on her when she was, at the time, under the age of 16 years, namely 6 years.

I have determined that there is no other reasonable conclusion arising from the facts as to what occurred up until just after 2pm on that day. As set out above, I am not satisfied on the basis of the CCTV evidence and still photographs taken between 14:08:00 and 14:11:00 at the Palace Hotel that the person depicted in that photograph clearly identifies the accused. However, it does accord with his own statement to the police that he went there shortly after 2pm for the purpose of going to the toilet. It explains how his phone went missing and the reason for his return to Coogee later that afternoon. It is evidence that is removed in time from the offending and does not, in my view, give rise to a reasonable inference that there was another person in the vicinity of Dunningham Reserve at or about 2pm when the offence occurred who assaulted SM. I do not accept the submission made on behalf of the accused that there was such another person who met the description given by the witnesses other than the accused, giving rise to reasonable doubt.

I therefore conclude that the only reasonable inference or conclusion that can be drawn from a consideration of all of the established facts, viewed as a whole, is that the accused, Roy De La Torre, is guilty of the offence. I therefore find the accused guilty.

Order

Mr De La Torre, you are convicted of the offence in the Indictment, namely that on 21 April 2013 at Coogee in the State of New South Wales you did assault SM, and at the time of the assault did commit an act of indecency on SM, a person then under the age of 16 years, namely, 6 years.

Decision last updated: 07 July 2014

Medium Neutral Citation:	R v Roy De La Torre [2014] NSWDC 89
Hearing dates:	30 June 2014 - 4 July 2014
Decision date:	07 July 2014
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Guilty verdict; for orders see [175]
Catchwords:	Circumstantial Crown case; tendency and coincidence evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act Evidence Act 1995
Category:	Principal judgment
Parties:	Department of Public Prosecutions (Crown) Roy De La Torre - Accused
Representation:	C Davenport (Crown) I Todd (Accused)
File Number(s):	13/124501
Publication restriction:	Order made pursuant to s7 of the Courts Suppression and Non-Publication Orders Act 2010 as to the complainant's name and those of her family