R v SAL
[2022] SADC 148
•15 December 2022
District Court of South Australia
(Criminal)
R v SAL
Criminal Trial by Judge Alone
[2022] SADC 148
Reasons for the Verdict of his Honour Judge Muscat
15 December 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The defendant is charged with maintaining an unlawful sexual relationship with his daughter when she was aged seven years.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Evidence Act 1929 (SA) ss 13BA, 34M, 34P, 34R, referred to.
R v SAL
[2022] SADC 148Charge
SAL (‘the defendant’) is charged on an Information with the following offence:
Statement of Offence
Maintaining an Unlawful Sexual Relationship. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
SAL, between the 1st day of January 2019 and the 7thth day of January 2020 at Parafield Gardens and other places, being in a position of authority in relation to B, a person under the age of 18 years, maintained an unlawful sexual relationship with B, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) touching her thighs on more than one occasion;
(b) touching her vagina on more than one occasion;
(c) touching her hip on more than one occasion;
(d) touching her chest on more than one occasion; and
(e) touching her buttocks.
Trial by judge alone
The defendant has pleaded not guilty to the charge and has elected to be tried by judge alone.[1]
Legal principles
The defendant is presumed to be innocent of the charge. He is not required to prove anything. The obligation is upon the prosecution to prove the charge and to do so beyond a reasonable doubt. The prosecution must also exclude as a reasonable possibility any matter raised by the defendant that might affect proof of the charge.
Elements of the offence
[1] Notice of Election to be tried by Judge Alone made pursuant to s 7(1) of the Juries Act 1927 dated 13 September 2022.
The offence of maintaining an unlawful sexual relationship with a child is comprised of the following elements, each of which must be proved beyond reasonable doubt by the prosecution:
1.The defendant was an adult throughout the relevant period particularised in the charge.[2] This is not in dispute. The defendant was born on 13 June 1972.[3]
[2] See s 50(12).
[3] Agreed Fact 4.
2.The defendant was in a position of authority in relation to B. This is not disputed as the defendant is B’s biological father.
3.B was under the age of 18 years throughout the relevant period encompassed in the charge.[4] This is also not in dispute. B was born on 26 June 2012.[5]
[4] Section 50(12).
[5] Agreed Fact 2.
4.There existed a relationship between the defendant and B. This is not in dispute as the defendant is B’s father.
5.The defendant engaged in an unlawful sexual relationship with B. An unlawful sexual relationship is a relationship in which an adult engages in two or more sexual acts with or towards a child over any period alleged in the particulars.[6] An unlawful sexual act means any act that constitutes, or would constitute (if particularised), a sexual offence.[7] The prosecution has alleged sexual acts in the particulars which would amount to the offence of aggravated indecent assault.[8]
The prosecution must prove that the defendant committed two or more of any of the particularised unlawful sexual acts.
[6] Section 50(2) and (5).
[7] See definition of unlawful sexual act in s 50(12).
[8] In order to prove this offence, the prosecution must establish, beyond a reasonable doubt: (a) that the defendant assaulted B (which is an intentional and unlawful application of force); (b) the assault was committed in circumstances of indecency (namely circumstances that offend the community’s contemporary standards of propriety or decency and which has a sexual connotation or overtone to it), and (c) that B was aged under 14 years at the relevant time (which makes the offence an aggravated one).
6.The defendant knowingly maintained the unlawful sexual relationship with B. In this context ‘maintained’ has its ordinary meaning; that is ‘carried on’, ‘kept up’, or ‘continued’. In other words, there must be some continuity of sexual conduct and not merely isolated sexual acts. For example, it would not be sufficient if two or more sexual acts occurred on the same occasion.
Issues in dispute
The defendant is alleged to have indecently assaulted his seven-year-old daughter, B, in his bed when B stayed overnight at the house the defendant lived at with his partner, J, in Parafield Gardens. The issues in dispute involve, first whether the alleged touching was indecent and secondly, if it was, whether it occurred as B stated.
Background
The defendant is the biological father of B. The defendant and B’s mother, BH, met in 2008. At that time, BH had a daughter, H, from another relationship. H was born on 4 March 2005.[9]
[9] Agreed Fact 1.
BH and H moved in with the defendant at his home in Modbury North. After about six months residing with the defendant, BH and H moved out[10] following some relationship difficulties between BH and the defendant.
[10] According to BH this would have been around Christmas of 2010.
By September of the following year the defendant and BH reconciled, and she and H moved back in with the defendant by December of that same year.[11] At that time BH was already pregnant and she gave birth to B on 26 June 2012.
[11] This would have been in 2011.
The defendant and BH married on 14 October 2012.
The defendant and BH separated on 31 July 2019 and were divorced on 10 December 2020.
Following the separation, the defendant moved in with J, with whom he had been having an affair. J lived in Parafield Gardens with her two children R and Ra.
BH and the children, H and B, continued to reside at the Modbury North home.
After the separation the defendant had contact with B, whenever B chose to see him. The defendant desired more contact with B, and this resulted in some conflict between him and BH. As suitable contact arrangements could not be agreed, the defendant and BH engaged in mediation, with the result that the defendant was allowed overnight contact with B every second weekend and for a period of one week during the Christmas/New Year school holidays.
BH stated that B’s first overnight contact visit with the defendant was from Friday 30 August to Sunday 1 September 2019. B stayed at the house the defendant was living at with J and her children in Parafield Gardens. All overnight contact took place at that address.
BH said that B also spent the following weekends with the defendant at J’s Parafield Gardens home, namely: between Friday 18 October to Sunday 20 October 2019; Friday 8 November to Sunday 10 November 2019; Friday 20 December to Sunday 22 December 2019 and half of Christmas Day and most of Boxing Day 2019. B also stayed with the defendant from 31 December 2019 to 6 January 2020, which was the longest B had stayed with the defendant. This week long visit corresponded with the agreement that had been reached during mediation.
BH said that B did not want to spend weekends away from home. She said there were difficulties getting B to go with the defendant on the weekends he had contact visits with B. BH said that B was always happy to return home on each occasion.
BH said B had told her that the last stay over during the New Year was too long for her.[12] BH said that B used to tell her that she did not want to stay overnight with the defendant because she missed BH, H and later, the family kittens (which had been purchased just before Christmas 2019). In her evidence B also confirmed that these were the reasons she did not want to stay overnight with her father, although B said the primary reason for not wanting to stay at J’s Parafield Gardens home was because she missed her mother. It is quite apparent on the evidence that B has a very close relationship with her mother.
[12] That is, between 31 December 2019 and 6 January 2020.
BH said that B’s next overnight contact visit with the defendant was to be the weekend of Friday, 17 January 2020 but that did not take place as B did not want to go. When the defendant arrived to collect B that Friday, he was told by BH that B did not want to go and stay the weekend with him. BH and the defendant argued over this in front of B and H and eventually the defendant left without B. Thereafter, B did not visit the defendant at J’s Parafield Gardens home nor did she have any face-to-face contact with him, until B told her mother, in early 2021, that she was missing her father.
From then the defendant only had supervised contact with B when B chose to see him. On those occasions BH’s stepmother, JO, was always present during contact. This supervised contact occurred either at Hungry Jack’s or at the defendant’s parents’ home and never at the Parafield Gardens house the defendant was living at with J and her children.
B’s evidence
B’s evidence was comprised of two prescribed interviews conducted by Detective Sherratt with B on 13 and 20 January 2022,[13] admitted pursuant to s13BA(3) of the Evidence Act 1929 and some additional evidence given by her in court.[14]
[13] Exhibits P1 and P2.
[14] Pursuant to s13BA(5) of the Evidence Act permission was granted for B to be examined and cross-examined on limited identified topics.
In the prescribed interviews B told Detective Sherratt about occasions when the defendant locked her inside the kitchen pantry when she was staying with him at the Parafield Gardens home and of occasions when he had inappropriately touched her when in his bed at that home. B identified three separate and very specific occasions when she was locked inside the pantry and described a number of specific occasions when she was touched inappropriately by the defendant, although B said that she was touched inappropriately on many other occasions when she stayed overnight at the Parafield Gardens home.
B’s evidence of being locked inside the pantry clearly amounted to discreditable conduct. It has no relevance to proof of the charge and would have been excluded had the defendant not indicated that he had requested the evidence be led by the prosecution, as he considered there to be a forensic benefit to his case, later submitting that the evidence undermined B’s reliability and credibility generally and therefore her evidence as to the charged sexual conduct.
If I were to accept B’s evidence about the pantry incidents, I direct myself that I am not to reason from this evidence that because the defendant has behaved badly in locking his daughter inside the pantry that he is more likely to have sexually interfered with her. That is not why the evidence was before the court. As indicated, the relevance of this evidence arose only on the defence case when assessing the reliability and credibility of B’s evidence that the defendant touched her inappropriately, the subject of the charge.
B said that after her parents’ separation the defendant gave her a mobile telephone to enable her to communicate with him and J. B also used the telephone to contact her mother when she was staying at J’s house. There is no issue on the evidence that B had the mobile telephone with her while staying overnight with the defendant at the Parafield Gardens home.
First occasion of being locked inside the pantry
B said that on her 8th birthday she was over at J’s house. B said that she was going to get her birthday cake that the defendant had left in the pantry for her. When she was in the pantry, B said the defendant told her that he wanted to take a photograph of her with the birthday cake. B described the cake as decorated with flowers. She could not recall whether the defendant took a photograph of her with the cake because she was never shown a photograph, but she said that he held his phone in a position that indicated to her he was taking a photograph.
B said that while she was inside the pantry holding her birthday cake the defendant locked the pantry door. B said that the defendant, J and Ra and R then drove to the shops, leaving her locked inside the pantry for around 30 minutes. B said she was screaming for help and to be let out of the pantry.
B said that when the others returned from the shops, they had some food. B said the pantry door was then unlocked so that she would stop screaming. B said she was then sent to her room to play with R. B said that upon being unlocked from the pantry J was laughing.
Second occasion of being locked inside the pantry
B said that around 4:00pm sometime in July 2020, and about a month after first being locked inside the pantry, she was locked inside the pantry for the second time. On this occasion, B was in the pantry looking for some food when the defendant closed the pantry door and asked J to lean on the door while he looked for the key to lock the door. B said that J then used the key to lock the pantry door. B said she was locked inside the pantry for about 30 minutes on this occasion.
B said that the ‘car didn’t take off’ on this occasion but that the others all went outside and were skating while she remained locked inside the pantry. B said she knew that J had locked the pantry door on this occasion because she could hear J’s voice and her laugh. B said that she also knew the others were skating outside because she heard them say ‘let’s do skating without B, because she sucks at it’.
B said the pantry door was later unlocked by J and she was then sent to bed without dinner.
B said she called her mother at about 5:00pm to come and collect her. B also said that she tried to persuade the defendant to take her home but neither occurred.
B said she told her sister H about ‘all the times’ that she had been locked inside the pantry,[15] although she did not tell anybody when she went home after being locked inside the pantry on the second occasion because she did not know if anyone would believe her, and she did not want the defendant to hate her.
[15] I consider that B’s evidence that she told H about being locked inside the pantry occurred much closer to when B was interviewed by Detective Sherratt and not contemporaneously with being locked inside the pantry incident. H was not called by the prosecution to give evidence.
Third occasion of being locked inside the pantry
B said that the third and last time she was locked inside the pantry occurred when she was staying at J’s house for about a week over Christmas/New Year in 2019/2020. B said that all the children were being given early Christmas presents and so they were all blindfolded before being handed their presents as a surprise. B said that the other children were given their surprise presents but that she was walked into the pantry and then locked inside it. B said she was asking to be let out, but ‘they did not listen to [her]’.
B said that on this occasion she was locked inside the pantry for about 20 minutes while the other children were opening their Christmas presents and everyone was watching TV in the loungeroom.
When asked whether she told anyone about this third occasion B said that she had told H and her mother. Specifically, B said that she told them that she used to ‘get like locked in the pantry’. B said she did not tell her mother the details of each occasion, but she did tell her mother that she had been locked inside the pantry on three occasions.
It is unclear on B’s evidence whether she had told her mother or H about being locked inside the pantry after each incident or at some later point in time. I gained the distinct impression from the interviews that B disclosed the pantry incidents at a much later point and after she had already stopped attending at J’s house for overnight visits with her father.[16] H was not called to give evidence and BH was not asked any questions on this topic.
[16] Very likely shortly before B was interviewed by Detective Sherratt.
I will return to discuss the defendant’s submissions in relation to B’s evidence that she was locked inside the pantry later.
I will now detail B’s evidence in relation to the conduct that is the subject of the charge.
First incident of alleged inappropriate touching (Springtime after divorce of parents)
B said that the first incident of inappropriate touching occurred at J’s house after her parents had divorced.[17] B said on this occasion she was crying because she wanted to see her mother and sister. She said that the defendant told her to come to his bed and he would ‘comfort her’. B said she went into the bedroom where the defendant and J slept.
[17] I consider that B’s reference to her parents’ divorce is in fact their separation.
B said that she was wearing a t-shirt and some shorts. B said that she and the defendant had been in bed for about five minutes when the defendant said, ‘come closer I want to give you a hug’. B said that the defendant then, and in order, touched her waist, her hip, her thigh and then her vagina, with all of the touching occurring underneath her clothing.[18]
[18] Although in relation to being touched on the vagina that is not alleged to have been underneath B’s underwear.
B said the defendant then fell asleep with his arm around her waist.
B said that during this incident J was sleeping on the couch in the loungeroom as the defendant had told J to sleep there instead of the bed because there ‘wasn’t enough room’ in the bed with B there.
Second incident of alleged inappropriate touching
B said that the second incident of inappropriate touching occurred on a Thursday night at around 7 o’clock after she and the defendant had watched a movie. B said that she knew it was a Thursday because they always watched movies on Thursday nights. She said they got dressed into matching pyjamas. When they got into the defendant’s bed, B said that he started touching her near her hip, then her thigh, and then her ‘girl parts’. B clarified that she was referring to the defendant touching her vagina underneath her ‘trackies’ but over the top of her underwear. After the defendant touched her vagina, B said that he moved his hand to her hips and then her chest but above her clothing. On this occasion B said the defendant did not touch her ‘boob’.
B said the defendant then fell asleep with his arm resting on her ‘vagina sort of area’ and that they both went to sleep.
B also recalled that the defendant had touched her on the buttocks on one occasion, although she could not say if this occurred on the first or second occasion she described.
Alleged inappropriate touching around Christmas
B said that when she stayed at J’s house for a week over Christmas the defendant touched her inappropriately. B said that generally when she would sleep in the defendant’s bed, he would tell her that he would ‘comfort her’. On this occasion he touched her around the thigh, hip and chest area and that it made her feel uncomfortable.
B said that she would often call her mother or set alarms on her mobile telephone so that she would remember to call her mother who worked different shifts. B said she had to sleep with the defendant so that she would not wake the other children up when she was speaking with her mother over the telephone or through the phone alarm going off.
On a specific occasion over this Christmas period, B said that the defendant told her to sleep in his bed. B said that she got dressed for bed in the bathroom while the defendant was waiting for her in his bed. B said she was wearing some ‘trackies’ and a t-shirt or tank top and the defendant was wearing only underwear.
B said the defendant then began to read her a story because that is what they ‘always did’. B said, however, that the defendant was not focused on reading the story. She said that he put the book down and said to her ‘get closer to me’. B said the defendant then proceeded to roll over and put his hand on her upper thigh area on the outside of her ‘trackies’. She said he then moved his hand to her hip before lifting her top up. B said that he ‘let his hand stay on her hip underneath her clothing, moving it in a rubbing motion for about three minutes’.
B said that the defendant then moved his hand to her face and chest area and when he went to put his hand inside her top, she said to him, ‘could you please not do that’ but he proceeded to touch her ‘boob’ and chest area on top of her clothing, her cheek and then her ‘girl area’. B said that he then stopped touching her and fell asleep with his hands wrapped around her waist.
B related the incidents of alleged touching to the occasions when she had been locked in the pantry. She said that ‘it also happened when I was also like the weeks when I was locked in the pantry, like it also would happen like when um it was those weekends’.
Last time alleged inappropriate touching occurred
B said that the last occasion she was touched inappropriately was about six months after her parents divorced.[19]
[19] I have already indicated that I consider B’s reference to her parents’ divorce is in fact when they separated.
B said that she and the defendant had watched a movie together in the loungeroom with J. B said that J’s children were in bed as it was about 10 o’clock. B said that around midnight she and the defendant went to bed. B said she was wearing ‘trackies’ and a tank top at the time and did not have a bra on. B said that they were in bed for about five minutes before the defendant started touching her near her hip, then her leg, and then her chest. B clarified that the touching of her hip was ‘a sort of rubbing’ and ‘squeezing’ underneath her clothing but over her underwear. B said that they were both under the blankets at the time.
B said that about three minutes later the defendant started to remove all his clothing, including his underwear. B said she could hear the clothes dropping onto the floor. She said that he was naked. She said this made her feel uncomfortable and so she left the bed and went back to her own bedroom.
B also said that the defendant had his hand on her chest for about three minutes and then stopped. She said the defendant ‘went to bed cos he was tired’, which she clarified as meaning that he went to sleep. Later, B said that after the defendant moved his hand away from her chest, he was holding her hand and that they went to sleep, which was inconsistent with what she said about the defendant undressing causing her to return to her bedroom.
B said J had slept on the couch on this occasion. B said J had told her that she thought if she slept in bed with B and the defendant, that it would invade their privacy if they all slept in the same bed together and J thought that would make B uncomfortable.
Shower/Bath/Toilet Incidents
B also gave evidence of occasions where she was in the shower, bath, toilet or getting changed, when the defendant would randomly walk in and stare at her for a couple of seconds before being told by her to go away.
Specifically, B said the defendant would sometimes open the shower door and touch her ‘hand and stuff’. B also said that the defendant, when walking in on her in the shower or bath, would grab her hand and say ‘I love you’ or ask her if she needed any help washing herself, and when she said that she did not, he would walk away.
B said that this occurred for about two years when she was aged between seven to nine years and almost every occasion B had a shower when she and the defendant were by themselves. B said that this occurred both at her home in Modbury North and at J’s house in Parafield Gardens.
This conduct is uncharged. It amounts to evidence of discreditable conduct and was admitted pursuant to s 34P(2)(b) as evidence of the defendant’s sexual attraction to B. If I were to accept B’s evidence about these incidents, then the evidence may be used when considering whether it is more likely that the defendant has acted on that attraction by committing the offence charged.
I must not use this evidence, if I accept it, to reason simplistically that because he was staring at B as she has alleged on those occasions, and therefore was sexually attracted to her, that from that conduct alone he must have committed the offence. It is only part of the evidence to be considered but is of itself insufficient to prove the offence charged.
Complaint evidence
B gave evidence that the first person she disclosed her father’s inappropriate touching to was her school friend, S.
B said that she told S that the defendant used to touch her inappropriately when she was in bed.
B said that she knew that type of behaviour had also happened to S and so she wanted to support S by telling her what happened to herself.
This disclosure amounts to evidence of complaint pursuant to s 34M(3) of the Evidence Act.
The evidence is relevant as informing when and how B’s allegations that the defendant indecently touched her first came to light and as evidence of the degree of consistency of her conduct.[20] B’s disclosure to S is not evidence of the truth of what she disclosed to S about being touched inappropriately.[21]
[20] Section 34M (4)(a) Evidence Act 1929.
[21] Section 34M (4)(b) Evidence Act 1929.
S was not called to give evidence, as her parents declined to permit their daughter to be spoken to by the police.[22] The absence of any evidence from S as to the making of the complaint by B does not affect the admissibility of B’s evidence that she complained to S or the use to be made of that evidence.[23] However, the weight to be accorded to B’s evidence of the complaint is affected, as it becomes difficult to make a proper assessment of B’s ‘consistency of conduct’ in the absence of evidence given by S.
[22] Agreed Fact 5.
[23] See R v Duell [1964] QLR 451; R v P,S (2016) 261 A Crim R 329.
In the circumstances, I do not place much weight on B’s evidence that she disclosed to S that she had been touched inappropriately by the defendant, particularly as B said she made that disclosure to S because she wanted to support S who she knew had similarly been touched inappropriately.
B’s Google search and discussions with H
B gave evidence that a few weeks before she was interviewed by Detective Sherratt she decided to Google the names of her family members.
B said that when doing so she came across an article that stated her father had been charged with having sex with a minor. She said that when she read the article, she began to think to herself whether something had happened to her.
B said that she worked out that the minor referred to in the article could have been her sister, H, because her mother had told B that the defendant had broken some rules.
B said that she then spoke to H, who confirmed that the defendant had touched H inappropriately in bed. B said that H had also told her that the defendant would walk in on H when H was in the shower.
B said what H disclosed made her concerned about the nature of the touching the defendant had engaged in with her.
Defendant’s evidence
The defendant elected to give evidence. He did not dispute the contact arrangements over B nor that she was often reluctant to spend nights away from home, although he said that once they left BH’s house B settled.
He said he gave B a mobile telephone so that she could keep in contact with him, although she could use the telephone as she wanted. He said B was able to call anyone whenever she wanted to.
The defendant denied that B was ever locked inside the pantry.
He admitted that on at least two occasions while B was staying with him overnight at Parafield Gardens, that she had come to his bed to be comforted. He denied touching B inappropriately on those occasions or at any other time.
The defendant said the first time B came to his bed, J was also in bed with them. He said B was upset so he comforted her by letting her sleep next to him. He said he placed his arm around her while comforting her. He recalled the second occasion being around Christmas, as he believed J was packing away the Christmas tree. He remembered that J’s children were not present as they had spent the night at J’s sister’s house. On this second occasion J slept in the loungeroom. He said on this second occasion B had come to his bed because she was upset. Again, he comforted her by allowing her to sleep next to him and he had his arm around her when they fell asleep.
The defendant denied that B was ever at J’s house on her 8th birthday, as by then all contact with B had ended.
He admitted entering the bathroom when B was bathing or showering, both while he was living at Modbury North and later at Parafield Gardens but denied that he did so to look at B while she was naked. He said that he only entered the bathroom to set the hot water for B or to check on her as any parent would do for a child of that age.
Consideration
As the prosecution case depended entirely upon B’s evidence, it is important that her evidence be scrutinised with care.[24] In order to find the defendant guilty I must accept that B’s evidence of having been indecently touched by her father on at least two occasions satisfies the high standard of proof required in a criminal trial. Obviously, B’s reliability and credibility are essential in determining whether the prosecution has proved the charge beyond a reasonable doubt.
[24] Murray v R (2002) 211 CLR 193.
Furthermore, as the defendant has given evidence, I would necessarily have to reject what he said as being a reasonable possibility before I could be satisfied of B’s evidence beyond a reasonable doubt.
There were a number of issues with B’s evidence that have affected her reliability and credibility.
In relation to B’s evidence that she was locked inside the pantry, I have decided that I am unable to accept that occurred as she detailed.
B did not provide any reason for why she would have been locked inside the pantry. She did not suggest that she had been misbehaving and was locked inside the pantry to be disciplined. I simply do not accept that the defendant and J would have locked her inside the pantry while they and the other children went to the shops or skated outside as B claimed. That B would have been locked inside the pantry when she and the other children were receiving their early Christmas surprise appeared incredulous. To have blindfolded a child and then locked the child inside a pantry when that child believed they were being given an early Christmas present, would not only have been an incredibly cruel thing to do to a young child, but also an extremely traumatising experience for B. One would have expected B to have immediately disclosed this to her mother, especially given their close relationship and the fact that on B’s evidence, the other children received their presents, and she did not.
Further, if B had been locked inside the pantry so many times as she claimed, then there was nothing stopping her from using her telephone to call her mother from the pantry, or if she did not have her telephone with her at the time, to have later called her mother to tell her what happened and ask to be collected, especially as B said she did not enjoy staying overnight at J’s house and that she was always on the telephone to her mother asking to be collected and taken home.
Additionally, B’s evidence of having been locked inside the pantry on her 8th birthday has been shown to be demonstrably false. B was never at J’s house on her 8th birthday. All overnight contact visits ended after B refused to go to J’s house on 17 January 2020. It was suggested by the prosecutor that B must have been confused as to her age when that incident occurred and that she was aged seven years at the time. I reject that submission, as when B turned seven years of age the defendant and BH had not yet separated. The defendant was still living in the family home at Modbury North. He did not move into J’s house at Parafield Gardens until over one month after B turned seven. B had stayed overnight at J’s Parafield Gardens home for the first time at the end of August 2019, two months after her 7th birthday.
The defendant’s counsel submitted that during B’s prescribed interview, B appeared to give a compelling and detailed account as if recalling a real memory of being locked inside the pantry, including such details as to it being her 8th birthday, the decorations on her birthday cake that was inside the pantry, and that the defendant told her he wanted to take a photo of her with the cake. Yet, that apparent confident account, when assessed against the objective evidence, has been shown to be demonstrably false. It is also concerning that B linked the second occasion of being locked inside the pantry to have occurred one month after the first occasion. Considering BH’s evidence of when B stayed overnight at Parafield Gardens, this could not have occurred when B said it did.
Moreover, given that it is accepted that the defendant and BH had an acrimonious separation, with the defendant having to engage BH in mediation to gain contact with B, that he would risk that contact by locking B inside the pantry for reasons which are not apparent to me on B’s evidence. I would have expected BH to have asked B, either during the multiple times B would call her when staying at J’s house or upon returning home from overnight visits to J's house, how B’s visit went, and yet there was never any mention by B of having been locked inside a pantry.
B’s reliability, and in my view, it closely follows, her credibility, has been seriously damaged by this evidence, such that it has caused me to doubt her evidence of being touched inappropriately by the defendant, particularly as B has clearly linked the inappropriate touching to the occasions she was locked inside the pantry.
There is another matter emphasised by the defendant’s counsel that affects B’s reliability in relation to the inappropriate touching. B said that the second time she was touched inappropriately in the defendant’s bed occurred on a Thursday night as that was the night that she and the defendant would watch movies together at J’s house. Clearly, B’s memory of this occasion is linked to watching a movie on a Thursday night. However, the evidence reveals that B was never at J’s house on a Thursday night, except for that period between 31 December 2019 and 6 January 2020, which was not the occasion B was describing in relation to this incident.
The defendant submitted that there exists a reasonable possibility that B has confused being touched by the defendant as inappropriate or that she has mistaken, imagined or innocently concocted in her mind that the defendant may have touched her inappropriately some two years earlier. In support of this submission, the defendant’s counsel pointed to B’s evidence that she knew that S had been touched, submitting B may have been wanting to support S by telling S that the same thing happened to her as well. B also became aware that the defendant was charged with committing a sex offence as a result of reading the article following the Google search of her father’s name. B said that she then worked out that the defendant had abused H. B agreed that she then spoke to H about that, who then told B that the defendant had not only touched her inappropriately in bed but that he had also walked in on her in the shower, which are the same allegations that B then made against the defendant.
While I do not find that B has necessarily deliberately lied, there clearly are some important matters that seriously affect the reliability and credibility of B’s evidence as a whole. Further, I find that I cannot exclude as a reasonable possibility that B has confused what may have happened when she was in the defendant’s bed, or that her memory has been influenced or infected by what she has been told by others.
I have carefully considered the defendant’s evidence. There was nothing in his presentation that suggested he was not being truthful nor was what he said in evidence implausible.
The defendant did not embellish nor exaggerate his evidence and he made appropriate concessions, agreeing many of the marital difficulties that followed his separation from BH and the issues surrounding B not wanting to stay overnight at J’s house.
I do not accept the prosecutor’s submissions that the defendant was evasive or that he was ‘tweaking his evidence’ in an attempt to make him ‘sound good’ or to give his evidence a ‘gentle shove towards B’s evidence’. That was not my impression of the defendant’s evidence. Indeed, if he was so minded, he could easily have denied that B ever slept with him, just as he denied B was ever locked inside the pantry, and that evidence would not have been contradicted, other than by B’s evidence.
I am not in a position where I can reject the defendant’s evidence as being a reasonable possibility, if not true.
Having assessed and considered all of the evidence presented to the court, I am left with a reasonable doubt that the alleged indecent touching detailed by B occurred.
Verdict
It is for these reasons that I am not satisfied beyond a reasonable doubt that the charge has been proved.
I find the defendant not guilty.
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