R v Sweeney
[2025] SADC 41
•24 April 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v SWEENEY
Criminal Trial by Judge Alone
[2025] SADC 41
Reasons for the Verdict of her Honour Judge Schammer
24 April 2025
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - STATEMENTS MADE IN PRESENCE OF ACCUSED AND RELATED CONDUCT - PARTICULAR CONDUCT
The accused, Darrell Leonard Sweeney, is charged on Information dated 29 October 2024 with one count of unlawful sexual intercourse (count 1) and two counts of aggravated indecent assault (counts 2 and 3) against BA, a person under the age of 17.
The offending is alleged to have occurred during one incident at Salisbury Downs on a date between 15 May 2023 and 15 June 2023.
At that time, BA was aged 16 and the accused was aged 38. BA and the accused were known to each other, as they both frequented the home of ‘Bob’ where BA and her friends, of a similar age to her, were given and smoked, cannabis.
BA alleges that on an occasion after she had been at Bob’s home with some of her friends (including AC) and had smoked cannabis, she and those friends travelled by train to Salisbury. Shortly after alighting the train in Salisbury, they saw the accused, outside a shop, rolling cigarettes. They approached the accused and asked him for a smoke. After spending some time together as a group, the accused and BA left the group and walked together, alone, towards a service station, where they intended to steal various items.
BA alleges that as they walked towards the service station, the accused took her behind a wall and pushed her down to her knees. She alleges that he then forced her to perform fellatio on him (count 1), caused her to masturbate his penis (count 2) and kissed her on the mouth (count 3).
BA claims that thereafter they returned to the group, at which time she disclosed the offending to a friend, ZB. ZB was not called to give evidence. BA claims she told AC about the offending, later that night. AC gave evidence that BA did disclose the offending to her, but that she did so on the day after the offending and at a time after BA had been to the police station to report the offending.
AC’s mother, JC, who was in an on again/off again relationship with the accused at the time of the alleged offending, gave evidence that some time thereafter, BA showed her where the alleged offending had occurred. The location identified by BA to JC differed from the location BA identified to police. JC also gave evidence of alleged conduct and comments made by the accused relied upon by the prosecution as evidence of implied admissions and/or a consciousness of guilt.
BA’s account of the day of the alleged offending differed in material ways from AC’s account. BA acknowledged her memory of what occurred on the day of the alleged offending was poor due to her consumption of cannabis on that day. At trial, BA did not recall many of the details ancillary to the alleged offending that she had disclosed in a prescribed interview which was admitted as evidence at trial.
Verdict:
Not guilty as to counts 1, 2 and 3.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 5, 13A(12), 49(4)(b)(i), 49(4)(b)(ii), 57(3)(b); Evidence Act 1929 (SA) ss 13A(12), 13BA, 13BA(3), 13BA(5), 13BA(6), 34M, 34M(6), 34P(2)(a), 34R; Summary Offences Act 1953 (SA) s 74EB, referred to.
R v Spencer [2019] SASCFC 70, considered.
R v SWEENEY
[2025] SADC 41[Criminal]
Introduction
The accused, Darrell Leonard Sweeney, is charged on Information dated 29 October 2024 with one count of unlawful sexual intercourse and two counts of aggravated indecent assault against BA,[1] a person under the age of 17.
[1] BA identities as female and goes by the name AA. I have referred to her throughout this verdict as BA to reflect her name on the Information.
The offending is alleged to have occurred during one incident at Salisbury Downs on a date between 15 May 2023 and 15 June 2023.
The accused elected to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1927.
The Charges
Count 1
Offence Details
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Darrell Leonard Sweeney between the 15th day of May 2023 and the 15th day of June 2023 at Salisbury Downs, had sexual intercourse with BA, a person under the age of 17 years, by causing him to perform an act of fellatio upon him.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2
Offence Details
Aggravated Indecent Assault. (Section 56(1)(c) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Darrell Leonard Sweeney between the 15th day of May 2023 and the 15th day of June 2023 at Salisbury Downs, indecently assaulted BA, a person under the age of 17 years, by causing him to masturbate Darrell Leonard Sweeney’s penis.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 3
Offence Details
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
Darrell Leonard Sweeney between the 15th day of May 2023 and the 15th day of June 2023 at Salisbury Downs, indecently assaulted BA, a person under the age of 17 years, by kissing him on the mouth.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
This may be a ‘presumptive disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Elements of the Charged Offences
Count 1 - Unlawful Sexual Intercourse
The elements of the offence of unlawful sexual intercourse, which must be proved beyond reasonable doubt, are:
1.That the accused had sexual intercourse with BA; and
2.BA was under the age of 17 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
‘Sexual intercourse’ is defined in s 5 of the Act to include any activity consisting of or involving fellatio.
The offending is alleged to have occurred between 15 May 2023 and 15 June 2023. BA was born on 21 February 2007.[2] The accused’s date of birth is 20 February 1985.[3]
[2] Exhibit P4 at [1].
[3] Ibid at [2].
I am satisfied that BA was under the age of 17 years at the time of the alleged offending and that she was aged 16 at the time.
The accused was over the age of 17 at the time. No defence is available pursuant to s 49(4)(b)(i) of the Act. However, pursuant to s 49(4)(b)(ii) of the Act, it is a defence to the charge if the accused can prove, on the balance of probabilities, that he believed on reasonable grounds that BA was of or above the age of 17 years.
The accused did not seek to rely on that defence. Rather, the accused’s position was that the incident simply did not occur.
Counts 2 and 3 -Aggravated Indecent Assault
The offence of aggravated indecent assault comprises three elements which must be proved beyond reasonable doubt:
1.The accused assaulted BA. An assault is the intentional and unlawful application of force (directly or indirectly) to another person;
2.The assault occurred in or was accompanied by circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. The conduct must have a sexual connotation; and
3.BA was under the age of 17 years at the time.
Pursuant to s 57(3)(b) of the Act, it is a defence to the charge if the accused can prove, on the balance of probabilities, that he believed on reasonable grounds that BA was of or above the age of 17 years. Again, the accused did not seek to rely on that defence.
Witnesses and Exhibits
The prosecution called evidence from the following witnesses:
1.The complainant, BA;
2.AC, who was called to give complaint evidence;[4]
3.JC, who gave evidence of the accused’s conduct, in her presence, after the allegations came to light, being conduct relied upon by the prosecution as evidence of the accused’s consciousness of guilt and/or an implied admission of the offending by the accused; and
4.Brevet Sergeant Wauchope, the Investigating Officer.
[4] See discussion at [242]-[244] herein as to the admissibility of this evidence.
There were also Agreed Facts.[5]
[5] Exhibit P4.
A disc containing an edited audio-visual recording of an interview conducted between BA and Detective Brevet Sergeant Sarah Brown (DBS Brown) on 23 September 2023 was admitted pursuant to s 13BA(3) of the Evidence Act 1929 (the Act) (the prescribed interview). BA was aged 16 at the time of the prescribed interview. There is no dispute that the recording was made in accordance with s 74EB of the Summary Offences Act 1953 (SOA).
I must not draw any inference adverse to the accused because of this, nor allow the admission of the evidence in that form to influence the weight given to that evidence.[6]
[6] Exhibit P1; s 13BA(6) of the Act.
An edited transcript of the interview was provided.[7] When referring to BA’s evidence given in that interview, I will refer to the relevant page number of the edited transcript, for ease of reference.
[7] MFI P2.
Permission was granted for BA to be further examined, cross-examined and re-examined on specific topics pursuant to s 13BA(5) of the Act. BA was 18 when she gave her evidence at trial.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged.
As to each count, the accused is presumed by law, to be innocent of the charge unless and until the evidence that I accept, satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
There are three counts on the Information. I must assess these counts separately and only take into account the evidence that is relevant and admissible to the count under consideration.
As to each count, it is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of an offence, I must be satisfied that the prosecution has proved, beyond reasonable doubt, each element of that offence. I must reject, beyond reasonable doubt, the accused’s denial and any explanation(s) proffered by him.
BA gave her evidence via audio-visual link from outside of the Court room. She was accompanied by both a court companion and a canine companion, her evidence was recorded and the Court was closed during her evidence. Both AC and JC gave their evidence via audio-visual link from outside of the court room and the Court was closed during their evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[8]
[8] Section 13A(12) of the Act.
The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of the offence beyond reasonable doubt.
I must assess each witness as to their truthfulness and reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
BA’s evidence is critical to the prosecution case as to each count. I must carefully scrutinise her evidence before I can be satisfied, beyond reasonable doubt, of its truthfulness and accuracy.
BA and AC both gave evidence about what occurred on the day of the alleged offending. They described interactions with several other people during that day, both before and after the alleged offending. Those others included BA’s friends, ZB, ‘Lisa’ and ‘Latoya’. They also included a person by the name of ‘Bob’ apparently known to BA, AC, JC and the accused. None of those persons were called to give evidence. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
There was evidence that both BA and AC had consumed cannabis in the hours immediately prior to the alleged offending.
Although there was no expert evidence on this specific issue, it is a common experience that intoxication by a drug can have an adverse bearing on a person’s recollection of events and/or a person’s subsequent recall of relevant events. It is also a common experience that intoxication by a drug may reduce a person’s inhibitions, it may cause them to be more relaxed or more outgoing, and it may cause them to do things they may not do if they were not intoxicated.
As such, the intoxication of a witness by cannabis may affect the proper assessment of their reliability as a witness. It is a matter for me to make findings, based on the evidence that I have heard, as to the extent to which a witness may have been affected by cannabis and what effect that has had on their general reliability. This is particularly important in the case of BA’s evidence, as her evidence is critical to the prosecution case.
As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and must not be influenced by public opinion in relation to this matter.
Initial Complaint
Evidence was led and admitted under s 34M of the Act, ultimately without opposition, of a conversation BA and AC had, during which BA disclosed the alleged offending to AC.[9]
[9] Noting that BA gave evidence that the first person she told about the alleged offending was ZB and that she told him simply that the accused had sexually assaulted her. BA gave evidence that she subsequently told AC the exact same thing. However, AC gave evidence of as more detailed conversation she had with BA during which she disclosed additional details of the alleged offending. As to whether this evidence was evidence of ‘initial complaint’, within the definition at s 34M(6), see the discussion at [242]-[244] herein.
I will discuss this evidence in more detail hereunder, and address whether, in fact, the evidence was evidence of ‘initial complaint’ as defined at s 34M(6).
Evidence of initial complaint is admitted to inform the trier of fact as to how the allegations first came to light. It gives a more complete picture of the complainant’s account. The evidence is also led as evidence to demonstrate the degree of consistency of the complainant’s conduct.
The evidence is not admitted as evidence of the truth of the allegations and cannot be used as some form of independent evidence to prove what happened, as only the complainant’s evidence is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is a matter for me as the trier of fact to determine the significance, if any, of this evidence in the circumstances of this case.
Implied Admission/Consciousness of Guilt
JC gave evidence of an occasion when she was with the accused and AC in the kitchen of her home, when AC was on the phone to BA. When AC raised the allegations, JC said to the accused, ‘What the fuck did you do, DJ?’. The accused reacted by taking off, out the door.
The prosecution relied on this conduct as evidence of the accused’s guilt.
If I accept JC’s evidence as to this conduct, I may not take it into account to draw an inference of guilt, unless, having regard to all of the evidence, I am satisfied that there is no other reasonably possible explanation for the accused’s conduct, save for a realisation or consciousness of guilt.
Even if I am so satisfied, I must still consider all of the evidence when determining whether the prosecution has proved the accused’s guilt of any or all of the offences, beyond reasonable doubt.
JC also gave evidence of a conversation with the accused which was admitted as an exception to the hearsay rule, insofar as it was said to be evidence of an implied admission by silence by the accused. The evidence was admitted over the objection of the accused.[10]
[10] See discussion hereunder at [52]-[53] herein.
As the trier of fact, I must determine whether any admission was made and if so, what was the subject matter of the admission. I must also determine the significance of the statement(s) made by the accused and consider any (other) possible explanation(s) for what was said.
I must consider whether the accused understood what was being said and whether the circumstances are such that as a matter of commonsense and ordinary experience, one would expect the accused to have responded to what was said by way of dissent?[11]
[11] R v Spencer [2019] SASCFC 70 at [35]-[38].
The prosecution also relies on this evidence as demonstrating the accused’s consciousness of guilt.[12]
[12] See earlier direction at [39] herein.
Uncharged Acts/Discreditable Conduct
BA gave evidence that both prior to and after the alleged offending, she was walking with the accused when he grabbed her on the bottom. She also gave evidence that after the alleged offending, as she and the accused walked back to meet ZB and AC, the accused was masturbating himself.
This evidence was led without objection.
This evidence was relevant and admissible for permissible non-propensity purposes, namely, to put the evidence into context, so that the Court could better understand how the alleged offending started and ended, and, insofar as BA alleged the accused touched her bottom before the offending, to rebut any argument that the offending was improbable insofar as this evidence demonstrated that it did not come ‘out of the blue’.
AC gave evidence that on the day of the alleged offending, the accused had encouraged her, BA, ZT and Latoya to participate in a ‘servo rack up’ and that in exchange, he gave them cigarettes. A ‘servo rack up’ involves the theft of various items from a service station. AC also gave evidence that on the night of the alleged offending, when she left BA, she told BA not to stay with the accused as he was ‘not that good’ and ‘a bit dangerous’.
This evidence was relevant and admissible for a permissible non-propensity purpose, namely, to provide additional background to the Court as to the parties’ movements and activities prior to (and at, or about the time of) the alleged offending, and to assist the Court to assess the reliability and credibility of BA’s evidence as to the circumstances in which the alleged offending was said to have occurred.
Both BA and AC gave evidence that they would smoke cannabis at Bob’s house and that at times, the accused was present (and by necessary inference, acquiesced in their smoking of cannabis, notwithstanding they were minors).
This evidence was relevant and admissible for permissible non-propensity purposes, namely, to put the evidence into context, so that the Court could better understand how it was that BA knew the accused and how they had interacted prior to the alleged offending.
JC gave evidence of a conversation she had with the accused at her home, after she had become aware of the allegations. She claimed that she confronted the accused and told him that she had spoken to BA’s mother and to the police and that he was going to go to gaol. JC gave evidence that in response, the accused said to her, ‘I don’t care [JC], if I’m going to gaol because I get three meals a day and I get whatever I want in there anyways’.
The accused objected to the admission of the evidence on the basis that it was evidence of discreditable conduct (that is, from the evidence it could be inferred that the accused had previously spent time in custody). I admitted this evidence pursuant to s 34P(2)(a) of the Act, over the objection of the accused, on the basis that its probative value outweighed any prejudicial effect it may have on the accused. The evidence was relevant and admissible for a permissible non propensity purpose, namely, as an alleged implied admission by silence insofar as the accused responded in this way when confronted by the allegations, rather than denying any wrongdoing. It was further relied upon to demonstrate a consciousness of guilt. I am satisfied that any prejudice by the admission of the evidence can be adequately addressed by the Court directing itself in the terms as required by s 34R of the Act and then acting accordingly.
If I accept some or all of this evidence, it being evidence of discreditable conduct, I must only use the evidence that I have accepted for the permissible purpose(s) as specified. I must not use that evidence to reason that the accused is more likely to have committed any of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit any of the alleged offences. Further, as to each item of evidence, if it is essential to the process of reasoning leading to a finding of guilt, the evidence in question cannot be used unless I am satisfied that on the whole of the evidence, the facts in proof of which that evidence was admitted, are established beyond reasonable doubt.[13]
[13] Section 34R of the Act.
Motive to Lie
BA was cross-examined as to whether she had concocted the allegations at the behest of JC. She denied this.
Although there was no submission ultimately advanced by the defence to this effect, I must consider the possibility of a motive (or motives) for BA to lie, as this is relevant to BA’s credibility.
If I reject the existence of any alleged motive to lie, the absence of any such motive does not strengthen the prosecution case, rather the position remains neutral.
BA’s evidence is critical to the prosecution case as to each count. As such, I must be satisfied that her evidence is both true and accurate. It is not for the accused to demonstrate or prove to me that she is wrong or lying. There may be many reasons that a witness may lie and I must not speculate about those.
I must not treat BA’s evidence as being more credible or more believable simply because there is no evidence to provide a reason for why she might be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to her credibility and reliability.
Prosecution Case
Complainant’s Evidence
Background Matters
BA gave evidence that she was born a male but transitioned to female in December 2022. She now goes by the name of AA and identifies as a female.[14]
[14] T 20.12-23.
BA completed Year 10 but dropped out of school near the beginning of Year 11. She moved out of home when she turned 16 and was homeless at the time of the alleged offending.
In the prescribed interview, BA said the alleged offending occurred during a period of two weeks when she was living on the streets and staying with a friend, Lisa, every so often.[15] While living on the streets, she occasionally slept in a tent.[16] In cross-examination, she confirmed that at the time of the offending, she was no longer living in the tent but was couch surfing at friends’ houses.[17]
[15] MFI P2 at p 6.
[16] Ibid at p 13.
[17] T 49.12-36.
BA returned home to live with her mother shortly prior to conducting the prescribed interview. At the time of trial, BA was living with her mother and two half-sisters.[18]
Relationship with AC, JC and ZB
[18] T 20.5-9.
BA gave evidence that she met her friend, AC, through friends and had known her for at least a year or two before the offending.[19] AC is JC’s daughter.
[19] T 21.34-22.4.
When BA was couch surfing, both around the time of the offending and shortly thereafter, she spent some time staying at JC’s house.[20]
[20] T 49.23-50.15.
BA gave evidence that although she did not see JC often, she was close with her at or about the time of the offending and had always been very close to her.[21] She was aware that JC knew the accused but was unaware that they were in a relationship at the time of the alleged offending.[22]
[21] T 101.7-9.
[22] T 85.26-86.6.
BA gave evidence that she did not really talk with AC anymore, although she wished she still did. She did not speak to JC often either and that had not spoken to her since the last time she was living with them, which was at least six months ago.[23]
[23] T 101.10-35.
BA gave evidence about another friend, ZB, who was 15 at the time of the incident. She met ZB as she was dating his best friend and he was dating her best friend.[24]
Meeting the Accused
[24] T 22.10-18.
BA gave evidence that she met the accused, who she knew as ‘DJ’, at ‘Bob’s house in Broadmeadows’, about two months before the offending.[25] Around the time of the offending, she was going to Bob’s place almost every day, where she would smoke ‘weed’ and sit on the couch. She explained that she smoked weed to stop feeling everything that had happened with her ex-boyfriend and that she had smoked weed for two weeks straight, after the break-up with her ex-boyfriend. [26]
[25] T 52.34.
[26] MFI P2 at pp 6-7; T 22.23-38.
BA had not seen the accused often at Bob’s. She had never had a proper one-on-one conversation with the accused prior to the day of the alleged offending, with her conversations with him limited to essentially saying ‘hello’.[27] She did recall having several conversations with Bob where she had made it clear to Bob that she was only 16, by saying words to the effect of, ‘Hey, I’m 16’. She was fairly sure the accused was present for one of those conversations.[28]
The Alleged Offending
[27] T 54.16-26.
[28] T 23.7-24.
The offending is alleged to have occurred a few months prior to the prescribed interview, which was conducted on 22 September 2023.[29]
[29] MFI P2 at p 6.
BA gave evidence that earlier on the day of the offending, she had been at Bob’s place. Although she could not say what time she arrived at Bob’s place, it was light and she estimated that it was probably around 12, or 12 onwards. She could not recall how long she was at Bob’s place, or how many cones she smoked there, but said, quite frankly, ‘I was off my face earlier in the day.’[30] BA later confirmed that the last time she had smoked cannabis that day was before she left Bob’s place.[31]
[30] T 55.1-2; T 56.29-57.15.
[31] T 97.22-24.
BA gave evidence that after leaving Bob’s, she went to AC’s house. Both AC and ZB were with her there. She did not know what time she had gone there. She said, at first, that it was dark at that time, but then said, ‘I think it was partially light. I’m not sure’.[32] She could not recall how long she stayed at AC’s house but said they left ‘not long after, maybe an hour or two.’[33] It was thereafter that they had bumped into the accused at Martin’s Plaza. She agreed that she found it hard to keep track of time when she was stoned.[34]
[32] T 57.23.
[33] T 57.25-26.
[34] T 57.27-29.
BA could not recall why she, AC and ZB left AC’s house.[35] She was asked if the reason they had gone out was to do a ‘servo run’. BA had earlier explained that a ‘servo run’ was simply going into a service station and grabbing items and then leaving without paying for them. She acknowledged that at or about that time, she was frequently going out and stealing things from service stations. She said she was pretty sure that was not the reason why they had gone out that night but agreed that it could have been. However, another reason may have been for them to go for a ‘bump run’ which involved looking for discarded cigarette butts, so that they could smoke the used tobacco.[36]
[35] T 57.35.
[36] T 58.10-25; T 59.15-29.
BA gave evidence that it was dark when she first saw the accused and that at that time, she was still under the influence of the cannabis she had smoked earlier.[37]
[37] T 55.3-9.
The accused was sitting at a table out the front of a shop. She remembered him rolling smokes. She, AC and ZB approached the accused and she asked him for a smoke.[38] The accused rolled them some smokes.
[38] T 58.26-59.5.
BA gave evidence that the four of them went for a walk together. BA described walking with the accused, next to, but behind ZB and AC. While they were walking, the accused kept ‘grabbing at my arse’.[39] She said, ‘Every time I tried moving away he just came closer and grabbed it ... over and over again’.[40]
[39] MFI P2 at p 4.
[40] Ibid.
BA gave evidence that this made her feel uncomfortable. She could not recall how many times the accused had grabbed her arse but it was more than once. He had not said anything to her when he did that, nor had she said anything to him.[41]
[41] T 27.4-14.
While they were walking, they came across a multi-storey house that was being built near Hollywood Plaza (the half-built house). She said that AC and ZB were going to go and wait at that house, while she and the accused ‘did a servo run’.[42] The service station in question was the one near the Parafield Train Station.[43]
[42] MFI P2 at p 4.
[43] MFI P2 at p 8.
In cross-examination, BA confirmed that she, the accused, ZB and AC went to the half-built house together and it was there that she first mentioned doing a servo run.[44] She could not recall how long she was there at that time but it was not long.[45] She denied a preposition put to her that as they had walked to Hollywood Plaza, she, ZB and AC had done a servo run together, that the accused waited for them to do that and then they all walked together to the half-built house.[46] She disagreed that she had gone to a service station that day or night with AC, ZB and the accused.[47]
[44] T 60.6-28.
[45] T 68.18-20.
[46] T 61.3-13.
[47] T 68.17-20.
BA said that while she and the accused were walking towards the service station,[48] the accused went behind a wall and she followed him. The wall was located near Hollywood Plaza Shopping Centre, two bus stops and two roundabouts. She identified the wall as the angled red wall depicted on the right-hand side of the photograph at page 3 of Exhibit P3.[49]
[48] Noting BA said the accused did not touch her on the bottom during this walk.
[49] MFI P2 at p 8; T 28.5-27.
When they were behind the wall, the accused used his hands to push her gently down to her knees.[50] He then pushed her head towards his dick, such that all of a sudden, it was in her mouth.[51] The accused got her to ‘give him head’. He had his hands on the back of her neck and was pushing her head forwards to give him head. She tried to move her head away, but he kept pushing the back of her head down. She wanted to scream for help as they were right in front of a house.
[50] T 29.1-7.
[51] MFI P2 at p 9.
BA could not remember for how long the accused’s penis was in her mouth but estimated it was five minutes at the most.[52]
[52] T 71.26-30.
When asked in the prescribed interview if the accused’s penis was hard or flaccid the first time she saw or touched it, she said:[53]
AI can’t remember, I’m pretty sure it was hard.
QYeah. And what makes you say that.
AThe feeling of it in my mouth.
QYeah. And how did that feel.
AIt didn’t feel soft at all, it felt hard.
QMm Hm.
AOr maybe it was soft, I can’t remember exactly.
[53] MFI P2 at pp 13-14.
In cross-examination, when BA was asked if the accused’s penis was hard or soft when it was in her mouth, she said that it was hard.[54] When asked if she was certain of that, BA said, ‘It was either hard or at least getting hard.’[55] When it was suggested to her that this was different to what she had said in the prescribed interview, BA agreed. She acknowledged that she no longer had a good memory of the accused’s penis being in her mouth but disagreed that was because this might not have happened. She maintained that it had happened but acknowledged that she could now not recall if the accused’s penis was hard or soft.[56]
[54] T 71.31-35.
[55] T 71.37.
[56] T 71.38-73.20.
BA was asked if she could remember where the accused’s pants were while she was sucking his dick. She said, ‘No, but they would have been down at least’. As to why she said that she explained that she remembered ‘at least his dick being out, I don’t remember where his pants were or anything’.[57]
[57] T 80.34-81.1.
BA explained that she was scared to say no to the accused, as he was much bigger, stronger and taller than her and could have hurt her if he wanted to. She did not say anything to him.[58]
[58] T 30.9-14.
BA gave evidence that she was able to pull her head away and get the accused’s penis out of her mouth. While she was still on her knees, the accused got her to ‘jerk him off’.[59] She explained that he reached down to her arm, grabbed her hand and put it on his penis. Her hand was moving backwards and forwards, in a masturbating movement, while on the accused’s penis.[60] She said, ‘I was just moving my hand just so that he would leave me alone’.[61]
[59] MFI P2 at p 9.
[60] T 31.1-15.
[61] MFI P2 at p 10.
In cross-examination, BA gave evidence that she stood up after she was able to pull her mouth away from the accused’s penis and that she was standing up when he put her hand on his penis to masturbate him.[62]
[62] T 81.6-22; T 82.6-9.
BA was asked whether she used one or two hands when masturbating the accused. She said she used one hand and that ‘it would more than likely have been my right hand’. As to why, she explained that this was her dominant hand. She acknowledged she could not now remember which hand she used.[63]
[63] T 79.36-80.7.
In cross-examination, BA was asked whether she could recall if the accused’s penis was hard or soft while she was masturbating him. She said that she was ‘pretty sure’ that it was hard.[64] When asked why, she said, ‘Because by the time it would have been – I was doing stuff, of course it would have been hard.’[65] BA subsequently agreed that she could not now remember if the accused’s penis was soft or hard at that time. She disagreed that this was because the accused had never put her hand on his penis.[66]
[64] T 73.30.
[65] T 73.35-36.
[66] T 78.8-13.
During the prescribed interview, BA told DBS Brown that she could not remember what she was wearing that night but that she was ‘pretty sure’ the accused was wearing shorts and a tank top, ‘like usual’ and a dark coloured cap.[67]
[67] MFI P2 at p 12.
BA was asked in cross-examination if she could remember what pants the accused was wearing and she said no. She could not remember if he had pulled down his pants or if she had pulled down his pants or when his pants were pulled down. She could not remember when he took his pants off.[68] She was ‘pretty sure’ the accused was wearing his shirt the whole time.[69]
[68] T 78.34-79.6; T 79.23-24. Noting BA was never asked if the accused ever took his pants off.
[69] T 79.25-31.
BA estimated that she was masturbating the accused for about five minutes.[70]
[70] T 78.27.
In the prescribed interview, BA said that after she stood up, the accused grabbed her and made out with her. She said, ‘He had stuck his whole tongue in my mouth and was just, kept kissing me’.[71] She could not remember how many times he had kissed her but it was more than once. He was kissing her for about five minutes, maybe a little longer. She tried to pull away but he kept pulling her forward. She was too scared to do anything or tell him to stop.[72]
[71] MFI P2 at p 10.
[72] T 31.22-23; T 78.14-20.
BA could not remember if the accused was wearing his hat at the time he was kissing her.[73]
[73] T 79.32-33.
In cross-examination, BA was asked how she went from masturbating the accused to him kissing her. She said she could not remember.[74] She then gave the following evidence:[75]
[74] T 82.21-23.
[75] T 82.24-83.4.
Q.Did you do it at the same time or was it after.
A.I can't remember, but I'm pretty sure it was at the same time.
Q.You're pretty sure it was at the same time, what makes you say that.
A.I'm not sure, it's just something I normally do with most guys I hook up with anyway, but -
Q.It's the case, isn't it, that you don't remember what happened on this night and you're trying to fill in the gaps, aren't you.
A.With my own memories, yes.
Q.Not your own memories of what happened on this night, are you.
A.Yes, I'm trying to fill in the gap.
Q.You're trying to fill in the gaps.
A.Yes.
Q.From what you've just given evidence of about what you usually do.
A.Yes.
BA could not remember how long she was behind the wall with the accused but it was not long.[76] As to how the alleged offending ended, she said:[77]
Eventually I was, like, we gotta go back to [AC] and [ZB] so we went back and just to get him to stop, I had to promise to go back to the tents he was going to be staying at that night so that he could, we could do some stuff just to get him to stop.
[76] T 31.29.
[77] MFI P2 at p 4.
BA explained that when she was living on the streets, she and two of her friends set up three tents in a field, off an opening off Burton Road, near Deacon Court. She slept in one tent, two of her friends slept in another and the third tent was for guests. She told the accused he could stay there that night or for as long as he wanted to, as they were not using them anymore.[78] She promised to show up at the tents later that night, in order to put an end to the offending.
[78] MFI P2 at pp 10 and 13.
When asked during the prescribed interview if anything else happened at that point, BA said:[79]
[79] MFI P2 at p 14.
AOther than him continually touching my arse.
QYeah. Did DJ ejaculate.
AUm, I’m pretty sure he did, just not on me.
QOkay.
AHe kept jerking off while we were walking, and then finished -
QOkay
AWhile we’re walking to – we were meant , we were gonna head to the servo but we went, turned around and he had finished after.
QOkay. So you still went to the service station.
ANo.
During her evidence-in-chief, BA was asked more about the accused ejaculating, when they were walking, after the offending. BA said that she could not remember that happening. In cross-examination, she reiterated that she now could not remember the accused ‘jerking off’ as they walked back to the half-built house. When it was suggested to her that this was because that did not happen, BA said that she was not sure and agreed that it might not have happened. However, she maintained that what she had told DBS Brown during the prescribed interview was the truth.[80]
After the Alleged Offending/ Complaint to ZB and AC
[80] T 37.11-17; T 74.12-75.5; T 77.1-32.
BA gave evidence that after the alleged offending, she and the accused walked back to the half-built house, where AC and ZB were. It took about five to 10 minutes to walk to the house, during which there was no conversation.[81] The accused did not touch her on the bottom during this walk.[82]
[81] T 37.6-20.
[82] T 61.33-38.
BA gave evidence that when she and the accused got to the half-built house, she and ZB climbed a ladder up to the top floor, while the accused remained downstairs with AC, rolling smokes for them. When she was upstairs with ZB, she told him that the accused had just sexually assaulted her. These were the words she had used. She did not give ZB any details because if she did, she would have started crying.[83]
[83] MFI P2 at p 11.
BA was asked in cross-examination for how long she was at the half-built house at this time. She said:[84]
A.We weren't there - we weren't there for overly long, but we weren't there for a short time either.
Q.Can you give a rough estimate.
A.I would say about 20 minutes at most. Maybe a little bit more.
[84] T 63.33-37.
In the prescribed interview, BA told DBS Brown that she, AC and ZB then walked with the accused to the tent. She said they left the accused at the tent. It was the middle of the night at this time. BA said she told AC about the alleged offending after they left the accused at the tent. ZB was present during that conversation. As to what she had told AC, BA said, ‘I told her the exact same thing’ as she had told ZB.[85] She could not remember if she told AC any more details about the offending.[86]
[85] MFI P2 at p 11.
[86] T 37.32.
BA told DBS Brown that thereafter, she and AC went back to Lisa’s house. She did not go back to the tent to meet up with the accused as she had promised.[87]
[87] MFI P2 at pp 10-11.
In cross-examination, when being asked to confirm precisely when the accused had touched her on the bottom, other than on the initial walk to the half-built house, BA said:[88]
When we were walking into the tents that I was originally staying at. We were showing him where the tents were so that he knew where they were. He was touching my arse on the way there and on the way back to that spot.
[88] T 62.2-6.
BA remembered ending up at Lisa’s house. She then gave the following evidence:[89]
Q.So was he touching you on the bottom the whole time from the tent walk to Lisa's house.
A.He wasn't with us from the tents to Lisa's.
Q.Okay. I might have misunderstood your evidence, but I thought that you just gave evidence that he was touching you on the bottom on the way to the tents and back.
A.After we dropped him off at the tents that's when I went to Lisa's. We went to the tents and then back to the house, and then we went back to the tents to drop him off and then we left.
[89] T 62.15-24.
She said that when they first walked to show the accused where the tents were, they were at the tent for about five minutes. She was ‘pretty sure’ that they then walked back to the half-built house, where they stayed for about10 minutes.[90] When asked if they then walked back to the tents (a second time), BA gave the following evidence:[91]
[90] T 64.14-18.
[91] T 64.20-32.
A.That's the only part that I'm not sure about. It's either we walked him back to the tents to drop him or or we didn't. I can't remember. Not clearly.
Q.Was your bottom being touched.
A.Yes, I'm pretty sure it was.
Q.So, you don't remember if this walk actually happened but you remember your bottom being touched.
A.It was either from that moment or from earlier on and I can't remember. It's very blurry.
Q.And then you go to Lisa's house.
A.Yes.
Q.And you say the accused is not with you then.
A.He's not.
Shortly thereafter, in cross-examination, BA gave the following evidence:[92]
[92] T 65.29-66.11.
Q.I'll take you specifically to the time that you say you are not sure about whether you walked from the house being built back to the tents, and that was before you went to Lisa's house. Do you have that in your mind.
A.Yeah.
Q.And you've said you are not sure if you actually walked from the house being built to the tents. Do you agree that's what you said.
A.Yes.
Q.But you are sure that your bottom was touched.
A.I'm not sure about it, but I'm sure it did happen throughout the night at some point.
Q.At some point.
A.Yes. At several times.
Q.But you are not really sure when, are you.
A.No.
Q.And that's because you were highly under the influence of marijuana, weren't you.
A.Yes.
Q.So you don't really remember any of this, do you.
A.I don't remember a lot of what happened, no.
Later, in cross-examination, BA gave the following evidence:[93]
[93] T 69.34-70.14.
Q.Now, we'll turn firstly - we have spoken about this a bit, but firstly to the accused touching you on the bottom. That - you can't recall that actually happening, can you.
A.I can recall it happening but I don't know how many times it happened.
Q.And you don't know where it happened.
A.I know it happened on the - on at least the first walk.
Q.So when you say 'at least the first walk' do you say it might have only happened once.
A.No.
Q.But you don't know how many times.
A.I don't know how many times.
Q.I suggest to you that, because you were so under the influence of drugs, you can't be certain that it happened, can you.
A.The arse grabbing I can't be certain.
Q.You can't be certain that that happened.
A.Not the arse grabbing.
In re-examination, BA maintained that she had a recollection now of the accused touching her bottom, while they were walking, when they were walking to the tents or when they were walking to the half-built house.[94] She maintained a recollection of going to the tents with the accused, AC and ZB to show the accused where they were, so that he could stay there. When asked when they did that, in reference to the alleged offending, she said, ‘Pretty sure it’s prior’.[95]
[94] T 105.19-24.
[95] T 99.37.
It was suggested to BA that she had seen the accused later that night when she went back to JC’s house. BA was adamant that she had not seen the accused later that night and was pretty sure she did not go back to JC’s house, as she spent most of the night at Lisa’s. She thought that she had been at Lisa’s house for about an hour before she sobered up.[96]
[96] T 84.1-37.
BA acknowledged that she had tried to ‘fill in the gaps’ from the night but denied that she could be thinking about someone else.[97] She gave the following evidence:[98]
Q.But you do agree that you have a lot of gaps, don't you -
A.Yes.
Q.- in your memory.
A.Yes.
Q.And you've tried to fill them in but, at the end of the day, you can't really be certain about what happened, can you.
A.No.
[97] T 88.4-11.
[98] T 88.12-20.
In re-examination, BA frankly acknowledged the failings of her memory:[99]
A.I've always had difficulties with my memory. Even before 2023 I barely remember what happened in 2022, I can barely remember what happened last year.
[99] T 100.29-31.
She confirmed that her memory of the offending was much better at the time she gave the prescribed interview, than when she gave evidence in Court.[100]
[100] T 100.32-35.
Contact with the Accused after the Alleged Offending
BA gave evidence that after the alleged offending, she saw the accused on occasions when she went with AC, to JC’s house.[101] At first, she had not even realised the accused would be there. She had seen the accused at JC’s house quite often after the incident, but at no time did she have any interaction or conversation with him.[102]
[101] MFI P2 at p 7.
[102] T 39.16-40.16.
In the prescribed interview, BA said:[103]
Every time I saw him I’d have a panic attack. Every time I heard his name or even was told about sexual assault, I wanted to have a panic attack.
[103] MFI P2 at p 5.
BA acknowledged that AC would have been with her at such times but said AC would not have realised she was having a panic attack.[104] BA explained that when she had a panic attack, she would usually go silent and was not very communicative. She said, ‘I’m trapped inside my brain’.[105]
[104] T 85.8-25.
[105] T 100.8-18.
BA agreed that JC had told her that she did not like the accused. She denied that JC had told her to make up the allegations. [106] She disagreed that she had gone with JC after the alleged offending, at all, to Windsor Grove. She disagreed that while there, JC had told her she should tell the police.[107]
[106] T 86.11-23; T 87.27-33.
[107] T 87.344-88.3, noting ‘Windsor Grove’ is the name on the wall at the location of the offending as identified by BA; Exhibit P3.
BA gave evidence that she reported the alleged offending to police about a week or two after it had happened.[108] She identified the accused as the offender in a Police Photo ID procedure conducted on 27 February 2024.[109]
[108] MFI P2 at p 12.
[109] Exhibit P4 at [3]-[5].
AC’s Evidence
Background Matters
AC gave evidence that she was currently 15 years of age and attending school one day a week to participate in the ‘FLO’ program. She met BA about two to three years ago at a time when she (AC) had run away from home and was living on the streets. She had now returned home to live with her mother, JC and some of her siblings. [110]
[110] T 107.28-108.19.
AC knew the accused (to whom she referred as ‘DJ’) because of his relationship with her mother and because he was her younger brother’s paternal uncle.[111]
Day of the Alleged Offending
[111] T 108.20-30, noting AC described the accused as her stepdad’s brother.
AC gave evidence that she was with BA on the day of the alleged offending. She described what happened that day, in the following general terms:[112]
That was the time when we met up with DJ, we saw him, and I was with myself, [BA] and I was with Latoya and a couple girls. And that's when we went to the servo and stole a couple of things and DJ gave us a smoke and then pretty much from there we went to the house.
[112] T 109.14-18.
AC gave evidence that before they saw DJ, she had been with BA, Latoya and another girl at Bob’s house, smoking weed. She explained that she had been at Bob’s house on other occasions, without BA and that Bob would give her weed.
AC said that at this time of her life, she was smoking weed ‘probably like every day’. On this day, she would have smoked three bongs but denied that she was feeling affected by it.[113]
[113] T 115.34-116.7.
When asked what time she got to Bob’s house, AC said:[114]
A.It would have been like, because - it would have been like about 10 or 11-ish.
Q.Is that the morning or in the night.
A.Afternoon. Like morning, but afternoon, I'm pretty sure. Yeah, afternoon. It was still sun, sun out, sunlight.
[114] T 113.8-13.
AC said she stayed at Bob’s house for about 10 to 15 minutes.[115] She, BA and Latoya then started walking from Bob’s house to the Broadmeadows Train Station. In response to specific questioning, AC confirmed that ZB was also with them.[116] They had walked straight to the station and had not gone to AC’s house in between.[117]
[115] T 113.16.
[116] T 113.17-38.
[117] T 120.1-4.
They then caught the train to Salisbury which was about a five to 10 minute journey.[118] They got off the train at Salisbury. That was when they saw the accused, sitting near the 411 and 405 bus stops, near the Salisbury pub.[119]
[118] T 120.21-25.
[119] T 114.2-11.
In cross-examination, AC agreed with a proposition that they had got off the train at Salisbury as they were intending to do a ‘rack up’.[120] She described a ’rack up’ as being where you ‘go to a servo and take stuff without paying for it’.[121]
[120] T 120.32-35.
[121] T 114.21-24.
AC said that she, BA, ZB and Latoya walked up to the accused and asked him if he had a smoke. He told them that he would give them a smoke, if they proved to him that they could do a rack up. They all then walked to the Parafield Service Station. The accused did not go into the service station with them or participate in the ‘rack up’. She, BA, ZB and Latoya went into the service station and ‘grabbed a bunch of stuff’, most of which was chocolate.
AC said it was about ‘6 or 5 o’clock’ when they were at the service station.[122]
[122] T 117.38.
They walked out of the service station and started walking to the half-built house.[123] AC gave the following evidence:[124]
[123] T 114.36-115.5; T 121.12-18.
[124] T 115.13-33.
Q.Who was on that walk.
A.It was me, [ZB], [BA] and Latoya, she ended up leaving.
Q.And on that walk where - I withdraw that. When you were walking where was DJ and [BA].
A.DJ and [BA], right, so me - I was at the back and DJ and [BA] were about the middle, front-ish.
Q.When you say 'the middle front-ish' can you describe what you mean by that or -
A.So [BA] was more in the middle, all right, and DJ was more at the front.
Q.Were you walking all together or separately.
A.All together.
Q.And when you were walking did you see anything happen between DJ and [BA].
A.No.
Q.Can you recall any of the conversation when you were walking to the house.
A.All the conversation was, all right, was [BA] was saying that she can do good rack ups and all that. That's all I remember the conversation saying. And then pretty much we walked to the house.
When they got to the half-built house, they unloaded all the stuff they had taken from the service station and put it on the ground. The accused took a couple of chocolate bars and gave them smokes in exchange.[125] It was still light outside.[126]
[125] T 116.11-16.
[126] T 121.25-26.
AC gave evidence that she stayed at the half-built house for about 10 minutes and then left and went back to her house. At that time, BA, ZB and the accused were still at the half-built house.[127] She estimated that she left at about 7 or 7:30pm as it was still light but getting dark.[128] She did not return to the half-built house that night, nor did she see the accused again that night.[129] She did not go with the accused to show him where the tents were, at any time during that day.[130]
[127] T 118.2-4; T 116.27-28, T 117.26-27.
[128] T 117.30-35.
[129] T 117.8; T 122.17-18.
[130] T 122.8-16.
AC gave evidence that before she left the half-built house, she asked BA to come with her, as she was heading home. BA told her that she wanted to stay there longer. She remembered saying to BA that it was not good to stay with the accused and that ‘he is not that good, he is a bit dangerous’. BA had told her it was all good and that she would be safe. AC then left and went home.[131] She did not speak again to BA that night.[132]
[131] T 116.19-28.
[132] T 123.29-31.
AC gave evidence that neither BA nor the accused left the half-built house, during the time she was there.[133]
Complaint made by BA
[133] T 116.31-38.
AC gave evidence that the ‘next day’, when she was at home, BA told her that ‘she got sexually assaulted from DJ’.[134] When AC was asked whether BA had used any other words to describe this, AC said:[135]
She told me that he hurt her in an inappropriate way. She told me that she made him – pretty much he made her do something to his dick.
[134] T 109.7-13; T 109.27.
[135] T 109.38-110.2.
AC was asked if she could recall any other words BA had used to describe what had happened with the accused. She said:[136]
A.That he touched her body in weird ways. She didn't want him to touch.
Q.And is that all.
A.Yep, pretty much.
[136] T 111.26-29.
As to precisely when BA had told her this, AC confirmed:[137]
That was the next day after she got hurt and then she went to the cops and then she came and told me.
[137] T 110.9-10.
AC explained that BA had messaged her, via Snapchat, from the police station, that she needed to talk to her later about something important. BA came over to her house around lunchtime, they went into her (AC’s) room and BA told her ‘everything’. She said BA was in tears, crying and sad. No one else was present during this conversation. Her little brother was at home, but he was asleep. Her mother was not at home.[138]
[138] T 111.3-112.5; T 119.16-19; T 123.29-125.8.
In cross-examination, AC explained that BA sent her a photograph of her feet, taken while she was at the police station. The text accompanying that photograph said, ‘at the police station, got to talk about something’. When she replied to ask BA what had happened, BA had simply said, ‘DJ’. AC had then asked her what had happened and BA’s response was ‘talk later’.[139] BA came over to her house later that day and told her everything that had happened. When asked if what she had described earlier was ‘everything’, (ie he had hurt her in an appropriate way and made her do something with his dick), AC said:[140]
Then, she also said he touched her body in weird ways that she didn’t want him to touch.
Subsequent Events
[139] T 124.15-24.
[140] T 124.37-38.
AC gave evidence that BA visited her house about two weeks after she told her what the accused had done to her. BA did not stay overnight, as her (BA’s) mother would not let her.[141] AC gave evidence that after BA disclosed the alleged offending to her, there was never an occasion when BA was at her house while the accused was also there.[142]
[141] T 118.16-23.
[142] T 119.3-7.
AC gave evidence that she never observed a confrontation between her mother and the accused about something that had happened to BA.[143]
[143] T 118.38-119.2.
JC’s Evidence
Background Matters
JC is AC’s mother. She gave evidence that she was in an on again/off again relationship with the accused from around 2018 to 2023. As at mid-2023, although they were not really in a relationship, and the accused was not living with her, they were intimate at times.[144]
[144] T 128.4-14.
JC knew BA as one of AC’s friends. BA used to stay over at her house.[145]
[145] T 128.16-19.
JC gave evidence that she knew Bob, who had lived around the corner from her in Parafield Gardens. She gave evidence that the accused encouraged AC to go to Bob’s house. She denied that she had ever gone to Bob’s house except to get AC out of there one time.[146]
[146] T 133.12-28.
JC acknowledged that she smoked weed. She denied that Bob would give her free weed. She denied ever paying Bob to supply her with weed.[147]
[147] T 133.29-36.
JC acknowledged she had used meth in the past, but denied still using it, or having used meth, or other drugs, with Bob.[148]
[148] T 133.37-134.8.
JC specifically denied having used meth on the day she gave her evidence. She explained that she was feeling relaxed when giving evidence as she had taken Lyrica (being a drug prescribed to her) and one Valium.[149]
Accused’s Post Incident Conduct
[149] T 134.7-134.12; T 136.1-2; T 137.2-18.
JC gave evidence of an occasion when she and the accused were in the kitchen of her home, at the sink, when AC came into the kitchen and said, ‘You’re in trouble DJ’. JC remembered saying to the accused, ‘What the fuck have you done?’. AC sat on the lounge in the kitchen and started to call BA. While AC and BA were talking, the accused reacted by running out the door.[150]
[150] T 128.24-36; T 129.35-130.32; T 130.27-131.33; T 134.33-135.11.
When JC was first asked about this occasion, she added that in response to her asking the accused, ‘what the fuck have you done’, and as he ran out the door, the accused said, ‘I don’t care what they say’. When asked if he said anything else before he left the house, JC said the accused said to her, ‘he doesn’t care if he goes to gaol or not because he gets three meals a day and he gets what he wants anyways in there’ (the gaol comment).[151]
[151] T 129.1-23.
During later questioning, JC that confirmed that the accused made the gaol comment on a different (later) occasion to that when he ran from the house. She could not now remember if the accused had said anything on the occasion that he ran from the house.[152]
[152] T 129.38; reiterated at T 130.33-36.
JC then gave evidence that the accused made the gaol comment about three to four days later, during another conversation, when only she and the accused were present. She said the accused made the gaol comment in response to her telling him that she had spoken to AC, to AC’s mother and to the police and that he was going to gaol. When he made the gaol comment, the accused’s tone of voice was as if it did not bother him or faze him at all. He just brushed it off.[153]
[153] T 132.6-33; T 135.12-23.
In cross-examination, JC denied a proposition that what the accused had said to her on that occasion was, ‘I don’t care, I’ll take them to trial’.[154]
[154] T 135.24-28.
JC gave evidence that she was using weed at the time of these two occasions but denied she was using methamphetamines.[155]
Going with BA to site of alleged offending
[155] T 135.33.
JC gave evidence that during the occasion she had described when the accused had run from the house, she spoke to BA on the phone. A day or two later, BA came over and they went for a walk so that BA could show her where ‘it happened’, that is, where the accused had hurt her.[156] They walked to a park near the golf course.[157] She said, ‘there’s the pub on this side and then the golf course on this side’.[158]
[156] T 138.35-139.2; T 139.18-27.
[157] T 137.19-38.
[158] T 138.4-5.
When JC was asked to describe the ‘park’ further, she said, ‘[w]ell, you might as well say it’s a park, yeah. Big mob of trees around, a creek’.[159] She said:[160]
It's basically - it's just a big mob of council land, right, that's got like a little creek and lots of trees, grass - it's just - yeah, it's just bushland, yeah, behind the - you know, behind the houses, I don't know.
[159] T 138.7-8.
[160] T 139.32-35.
JC gave evidence that while they were there, BA showed her where it happened and said that it was hurtful and emotional for both her and BA.[161] She described BA as being scared, upset, crying and hurt.[162]BA had told her everything about what the accused had done, ‘and asked her to come back for cuddles afterwards’.[163]
[161] T 139.6-8.
[162] T 140.2-15.
[163] T 138.19.
In re-examination, JC gave the following evidence:[164]
Q.And during the course of [BA] telling you about what had happened, then being a discussion about going back to that area for cuddles.
A.Yes, later that night, after.
[164] T 139.36-140.1. This evidence was not admitted as complaint evidence. Rather the evidence was led to provide the court with an understanding as to why BA took JC to this location and what, it was, that was relevant about this location.
Police Evidence
The investigating officer, Brevet Sergeant Wauchope was called to give evidence.
He did not prepare any handwritten notes in relation to his involvement in the investigation. Instead, he made a digital record of his activities on the Occurrence Enquiry Log (OEL), at a time when those activities were fresh in his memory. He chose to record his notes in this manner, as he was generally sitting at his desk, in front of his computer, when undertaking aspects of the investigation.[165]
[165] T 150.13-16; T 153.31-33; T 154.32-155.22.
Officer Wauchope confirmed that BA reported the alleged offending to police on 16 June 2023. In the absence of there being any notification of an assessment being made, he did not believe that she had attended the Elizabeth Police Station on any earlier date.[166]
[166] T 148.31-149.4.
Officer Wauchope gave evidence that on 30 October 2024, he went with BA to a location at 5-11 Burton Road, Salisbury, identified by her as the scene of the alleged offending. At that time, Officer Wauchope took the photographs tendered as Exhibit P3.[167] He marked the location of the alleged offending on the Google Map (page 4 of Exhibit P3). [168]
[167] T 146.3-13.
[168] T 147.31.
By reference to the Google Map, Officer Wauchope described Hollywood Plaza as being located to the south of the building marked ‘Pet Stock Hollywood’, on the southern side of Winzor Street. He believed that Martin’s Plaza was located further to the north-west, on Martins Road. He identified two bus stops, near the site of the alleged offending, on Burton Road.[169]
[169] T 147.34-148.30.
Officer Wauchope first spoke to JC in relation to the matter in July 2024 and obtained a statement from her in October 2024. He confirmed that when he obtained JC’s statement, she identified, on a map, a location for the offending which differed to that as described by BA.[170] He did not conduct enquiries as to the existence of any CCTV footage at either location, as too much time had passed (over a year) for any to be available.[171] He explained that he did not know the exact location of the alleged offending until BA took him there in October 2024 (being after he had spoken to JC) and at that time, he ascertained there were no cameras in the area and across the road was a paddock.[172]
[170] T 145.19-32; T 167.11-18.
[171] T 167.22-26.
[172] T 168.9-169.1.
Officer Wauchope spoke to ZB in February 2024. ZB was unwilling to provide a statement.[173]
[173] T 145.33-38; T 161.15-19.
Officer Wauchope conducted checks to attempt to locate and speak to ‘Bob’ but was unable to identify this person. He had not made a record of those enquiries in the OEL.[174]
Closing Submissions
Prosecution
[174] T 149.25-34; T 159.31-160.4.
Uncontroversial Matters
The prosecutor submitted that if the Court was satisfied beyond reasonable doubt as to the reliability and credibility of BA’s account of the offending, then it would also be satisfied beyond reasonable doubt as to the elements of the three offences as charged.
BA’s date of birth was agreed. When BA gave her prescribed interview on 22 September 2023, she said the alleged offending had occurred a few months ago and a week or two before she first went to the police. BA first reported the offending to police on 16 June 2023. As such, the Court could be satisfied beyond reasonable doubt that BA was aged 16 and therefore under 17 at the time of the alleged offending.
No relevant defence was raised. BA identified the accused as the offender. She described the accused subjecting her to acts which at law, amounted to an act of sexual intercourse (fellatio – count 1), an indecent assault (placing her hand onto his penis and forcing her to masturbate him – count 2) and another indecent assault (kissing her on the mouth -count 3). In such circumstances, the Court could be satisfied beyond reasonable doubt as to the elements of each offence as charged.
There was no contest that BA and the accused knew each other or that they were with each other on the day of the alleged offending, giving rise to the opportunity for the offending to occur.
Assessment of each witness’s evidence
The Court was reminded of the frailty and vagaries of human memory, such that it was to be anticipated that two witnesses may have a different recollection of the same event, depending on each witness’s own experience of that event, how the event had impacted them and on other matters individual to the witness such as their age, background and upbringing.
Both BA and AC were young witnesses, who had endured difficult upbringings and had consumed cannabis on the day in question. It was submitted that given the trauma BA claimed to have experienced that day, it may be expected that her memory of those events may be different to that of AC, for whom the day was of little moment.
The prosecutor acknowledged that there were inconsistencies in the accounts given by BA and AC as to what occurred on the day of the offending (and in particular, what occurred after BA, AC, ZB and the accused first went to the half-built house). However, she submitted that the Court may prefer BA’s evidence, as her account of what had occurred made sense and added up. Conversely, it was suggested that AC’s account (or timeline) was likely inaccurate and incomplete. This was demonstrated by considering her evidence as how long she remembered staying at Bob’s, the time taken to get to Salisbury and her estimate as to how long was spent on each activity that day. When AC’s evidence was analysed, it was clear that there was a large amount of time which was simply unaccounted for.
However, BA’s account, which included a lengthy period spent at Bob’s, followed by her account of the various things the group did after encountering the accused, simply made more sense in terms of the timeline.
As to the inconsistencies in the accounts given by BA and AC as to whether they completed a servo run that day, the Court was reminded that BA readily acknowledged having participated in numerous servo runs, indicative of her being upfront about her involvement in this type of conduct. The fact she may now not recollect having done so on the day of the offending, could be explained on the basis that as this was something she did so frequently, it was not unusual to the night of the offending, and therefore not necessarily something important or a feature of what occurred that day. As such, it was submitted this evidence did not detract from BA’s credibility, nor did it demonstrate inherent unreliability in her account per se.
It was submitted that BA had been completely frank as to the fallacies of her memory. Although BA no longer had a clear memory of certain aspects of the evening, including the order in which events occurred and precisely when the accused had touched her on the bottom, her evidence was that her memory of events was much better when she gave the prescribed interview.
In the prescribed interview, BA was clear as to the order of events and importantly, clear as to what the accused had made her do behind the wall. It was suggested that there were inherent difficulties faced by a witness such as BA, when giving their evidence on discrete topics, many months (or years) after going through the process of being taken, chronologically and step by step, through a prescribed interview. That process was one which necessarily served to prompt one’s memory of events, being something which also occurred when a witness was taken through the whole of their evidence in the ordinary course rather than simply being further examined on discrete topics under s 13BA.
It was submitted that BA was a patently honest witness, who had acknowledged where she now had no memory of something, to her detriment (an example being her lack of any current memory of the accused jerking off when walking back to the half-built house after the offending).
BA had been similarly honest during her evidence when she acknowledged she was now no longer certain when the accused had touched her on the bottom. However, it was submitted that when all of her evidence was carefully considered, it was clear that BA did maintain a recollection of the accused touching her on the bottom during the first walk to the half-built house. She also maintained a clear recollection of the accused pushing her to her knees behind the wall and of the things he had made her do. She had not sought to embellish or exaggerate her account (examples being BA’s description that that she simply followed the accused behind the wall and that thereafter he had pushed her gently, not forcefully, to the ground).
It was submitted that BA’s recollection of having promised to meet up with him at the tents later that night, in order to stop the offending from happening, made sense. BA had been too scared during the offending to tell the accused to stop or to do anything. He was bigger and stronger than her. She was afraid what he would do if she resisted. She had done what she could to end the offending without upsetting him. Her account rang true.
As to where the offending occurred, it was submitted that the location identified by BA to Officer Wauchope in October 2024, was entirely consistent with her description of it in her prescribed interview – that is – behind a wall, near two bus stops and two roundabouts, a short distance from Hollywood Plaza and Martin’s Plaza.
As such, while it was conceded BA’s memory of events was now imperfect, both due the effects of the passage of time and her consumption of cannabis at the time, on salient and critical matters it had remained both clear and consistent.
It was submitted that the very fact BA had consumed cannabis on the day of the offending rendered the offending more plausible insofar as she was vulnerable and provided an explanation as to why the accused was emboldened to offend at that time.
Complaint Evidence
The prosecutor acknowledged that there was a difference in BA’s account as to what (and when) she told AC about the offending and AC’s recollection of this, being relevant to the weight that could be attributed to the complaint evidence.
However, it was submitted that this did not detract from the fact that there was a disclosure of the alleged offending to AC, described by AC as including specific details (the accused had hurt her, he made her do something to his dick and touched her body in weird ways) being an elaboration of the account of the offending that BA recalled she gave earlier to ZB.
It was submitted that AC’s complaint evidence did demonstrate consistency of conduct insofar as BA had described offending including fellatio and forced masturbation. Similarly, AC’s recollection that BA told her the accused had touched her body in weird ways was not inconsistent with BA’s account of being forced to touch the accused’s penis and him forcefully kissing her.
On a related topic, it was submitted that JC’s evidence, of BA taking her to a park and explaining that this was where the offending occurred, likely arose out of a miscommunication, given the emotional state they were both in at that time. It was submitted that the Court could infer, from all the evidence, that the location described by JC was in fact identified by BA as being where the tents were, in order to explain how the offending stopped (that is, the location where BA had promised to go for cuddles with the accused later that night).
It was submitted that JC’s evidence on this topic was, in any event, unclear and that any inconsistency in that evidence and BA’s account was explicable on account of a miscommunication or misunderstanding on JC’s part.
Motive to Lie
It was submitted that any suggestion that BA had lied about the allegations at the behest of JC could be safely discounted by the Court. Although BA acknowledged that she had always been close with JC, they did not see each other often and had not seen each other for many months. BA no longer spoke to AC. They had no familial relationship. The relationship between BA and JC was simply not such as to provide the foundation for the telling and maintenance of such a serious lie.
Further, JC first spoke to police about the allegations almost a year after the alleged offending. IF JC was the source of the allegations, one would have expected her to have injected herself into the investigation at a much earlier point in time and/or provided much more evidence to corroborate BA’s account.
Implied Admissions/Consciousness of Guilt
The prosecutor submitted that the Court could be satisfied that the occasion JC described when the accused ran from the house occurred on a different day to that when he made the gaol comment.
It was submitted that AC’s evidence that she never observed JC confront the accused about the offending, was not inconsistent with JC’s account of the occasion when the accused ran from the house. It was submitted that what JC had described was not a confrontation as such, because the accused had simply run off and out of the house rather than participating in any ongoing discussion about the alleged offending with JC. This explained why AC did not recall observing any such confrontation.
The Court was urged to use JC’s evidence, that the accused had simply run out of the house, rather than denying the offending, as indicative both of a consciousness of guilt and an implied admission by silence.
Further, AC was not present when JC did confront the accused about the alleged offending and when so confronted, rather than deny the offending, he had made the gaol comment, being an acceptance of the allegations, rather than a rejection of them.
General Observations
The prosecutor acknowledged that there were differences in the accounts given by both BA and AC, and BA and JC, on relevant issues. It was submitted that those differences could be explained, on the basis of the particular difficulties each witness was going through at the time of the offending.
Both BA and AC were teenagers, living on the streets, skipping school and regularly consuming cannabis. When giving her evidence at trial, BA had been upfront about her inability to remember much of that time in her life. However, she had given a cogent and detailed account in her prescribed interview and remained clear and consistent in terms of her memories of the traumatic features of the offending.
The accused was known to her and there was clear opportunity for the offending to occur. When all of the evidence was carefully considered, the Court was urged to find that BA’s account of the offending was both reliable and credible and that there was no reasonable possibility that she was mistaken or had not told the truth about the offending, such that it should return a verdict of guilty to each count.
Defence
Counsel for the accused submitted that the evidence as presented fell far short of demonstrating the accused’s guilt, beyond reasonable doubt, with respect to any of the offences.
Deficiencies in the Evidence
It was submitted that there had been multiple flaws in the investigation of the alleged offending, which had meant there were more questions than answers arising from the evidence.
Numerous witnesses had not been called (and/or sufficient attempts made to locate and speak to those witnesses). There was no evidence from Bob, ZB, Lisa or Latoya. ZB was a critical witness insofar he was alleged to have been the first person who BA told about the alleged offending and was apparently present throughout the course of the evening in question. Lisa was an important witness as BA claimed to have gone to her house after the offending. She could have shed light on whether this in fact occurred, if BA was accompanied by AC (as BA claimed) and to what extent BA was under the influence of cannabis when she arrived there.
In addition, no attempts had been made to retrieve CCTV evidence from the locations identified by either BA or JC and there was no independent evidence to support BA’s account.
Inconsistencies in the Evidence – Between Witnesses
There were multiple and significant inconsistencies in the evidence given by BA and AC as to what had occurred during the day of the alleged offending.
BA had acknowledged that she had very little memory of what happened that day and that the memory she did have was blurry. She was not only affected by cannabis on the day of the alleged offending but had been so affected for a period of around two weeks at that time. She acknowledged that she found it difficult to keep track of time when smoking cannabis.
Conversely, AC had given evidence that although she had consumed three cones on the day of the alleged offending, she was not affected by cannabis. As such, the Court should not approach the inconsistencies in their evidence by simply preferring BA’s evidence on the basis that it must be preferable, as BA had been the alleged victim of trauma. There was no evidence as to the impact of trauma on memory and simply no basis for the Court to prefer BA’s evidence over that of AC.
Further, the differences in the evidence given by BA and AC were significant and went far further than the timeline of events. AC had given very clear evidence wherein she had described her, BA, ZB and Latoya undertaking the servo run and of them all being with the accused at the half-built house when they unloaded the gear they had stolen. BA had denied participating in any servo run that night. It was a critical component of BA’s account of the offending that it had occurred in the context of her and the accused leaving the others at the half-built house in order to undertake a servo run. On her version, the offending then occurred, while they were alone away from the group, and the servo run was never undertaken. This was important evidence as it provided the opportunity for the offending to occur. If AC’s evidence was accepted, there was simply no opportunity for the offending to have occurred.
Further, AC was adamant that she left the half-built house at around 7 or 7:30pm and had not returned. She had not walked with BA and the accused to the tents nor stayed at Lisa’s house. She had not observed anything happen between the accused and BA when they were walking to the half-built house.
There were inconsistencies in the evidence given by BA and AC as to when (and what) BA had told AC about the offending. AC had been very clear in her recollection of the circumstances in which BA told her about the offending and what she told her. Why would the Court prefer BA’s evidence in such circumstances and if it did not, how could it otherwise be satisfied of the reliability of BA’s account?
There were also inconsistencies in the evidence of AC and JC. AC gave evidence that she had never observed a confrontation between JC and the accused about the alleged offending, whereas JC described AC as being present on the occasion that the accused ran from the house in response to her (JC) yelling at him, ‘What the fuck have you done?’.
The Court was asked to reject JC’s evidence in circumstances where she gave inconsistent evidence as to whether this alleged incident occurred at a different time to the occasion when the accused allegedly made the gaol comment.
It was submitted that despite her evidence to the contrary, JC was clearly affected by drugs when she gave her evidence. It was submitted that JC had lied about her drug use and had sought to downplay it, such that the Court should be very hesitant in accepting her evidence as being either reliable or credible.
It was submitted that the only aspect of JC’s evidence on which she was clear was her recollection of BA taking her to the area where she claimed the offending had occurred and of it being near a park – being a different location to that described by BA. The Court was asked to reject the submission made by the prosecutor to the effect that the location identified by BA to JC was the area where the tents were located, and where she had promised to go with the accused ‘for cuddles’ in order to stop the offending, in circumstances where BA had not given any evidence to this effect.
Inconsistencies/Gaps in BA’s Evidence of the Incident
It was submitted that although BA had given consistent evidence of having been forced to suck and masturbate the accused’s penis and of him having kissed her, her memory of the details of those alleged events was poor. She could not remember where the accused’s pants were, how his penis got out of his pants, where his hands were, whether his shirt was on, whether his cap was on.
Notwithstanding BA had identified the accused in the photo identification procedure, this was of little note as she knew him independently of the alleged offending. It had been dark during the offending. The description of the incident given by BA had not included sufficient details for the Court to be satisfied that it was the accused who had done these things she had claimed.
BA had admitted during her evidence that she was trying to fill in the gaps of the evening with her memory of what she thought had happened, based on other experiences. The Court was asked to find that by her evidence, BA had acknowledged that she was now not sure if the accused had touched her bottom, at all, that evening, notwithstanding it had been a salient feature of her account in the prescribed interview. In addition, she had no memory of the accused ‘jerking off’ on the walk back to the half-built house, after the offending, being a relevant feature of the prescribed interview.
Assessment of the Evidence
Police Evidence
Counsel for the accused was extremely critical of the manner in which the investigation had proceeded and of Officer Wauchope’s evidence.
I accept Officer Wauchope’s evidence that he made his notes of the steps he took with respect to the investigation when those steps remained fresh in his memory. In accordance with best practice, Officer Wauchope should have made handwritten notes of the steps taken in the investigation. However, the fact he did not, and instead, entered those notes directly onto the OEL, did not, in my view, detract in any way from the adequacy of the investigation, nor did it impact on my assessment of Officer Wauchope’s honesty or the accuracy of his evidence. I accept his evidence.
Officer Wauchope gave evidence, which I accept, that there were no CCTV cameras in the vicinity of the location identified by BA as being the scene of the offending. Although BA reported the incident to police in June 2023, it was not until September 2023 that she participated in the prescribed interview, notwithstanding Officer Wauchope’s earlier attempts to contact her to arrange that interview. Even if there were CCTV cameras in the area identified and BA had been taken by police to the location at a date proximate to that interview, rather than a year later, it is unlikely that there would still have been footage available from any such camera.
Further, by the time JC identified the different location to police, this was over a year after the alleged offending. Again, even if there had ever been CCTV footage available from cameras in that location from the night of the alleged offending, it is extremely unlikely that footage would still have been available so many months after the relevant date.
There were several potential witnesses who did not give evidence. The Court can only act on the evidence before it. It cannot speculate as to what those absent witnesses would have said, had they given evidence. In a matter such as this, where the evidence of BA was different in many critical aspects from that given by AC, the absence of any witness who could have given evidence to support BA’s version of events was to the detriment of the prosecution case, rather than being prejudicial to the defence.
JC’s Evidence
When JC gave her evidence, she presented in a manner which was consistent with her being under the influence of a substance or substances. Aspects of her evidence were confused and confusing. She appeared fidgety and spoke with a slurred speech. Whether those substances were confined to Lyrica and Valium as claimed by JC is uncertain. I cannot make a positive finding that JC was lying when she gave evidence that she had not consumed any illicit drugs that day. However, her presentation was such as to immediately cause a doubt in my mind as to whether her evidence could be relied upon as being accurate. Further, it was my impression that JC deliberately downplayed the extent of her drug use (and the extent of her previous interactions with Bob) during her evidence, being matters which may have otherwise reflected poorly on her.
JC’s description of the occasion when the accused apparently ran from the house after being confronted by the allegations, while AC was present, was at odds with AC’s evidence that she was never present during any confrontation between JC and the accused with respect to the offending. Although I have significant doubts as to the accuracy of AC’s evidence, which I will explain hereunder, the fact AC did not corroborate JC’s account of that incident was important, given JC’s initial uncertainty as to whether that incident occurred at the same time or on a separate occasion to the ‘gaol comment’.
While I do not doubt that JC was doing her best to recall and recount events to the Court, both the manner in which she gave her evidence and how she recounted these incidents (initially conflating them) does cause me to have serious concerns as to the reliability of her evidence.
As such, I cannot accept JC’s evidence, either about the accused apparently running from the house, or about the ‘gaol comment’.
Had I accepted JC’s evidence that the accused ran from the house when AC was on the phone to BA (and in response to JC saying, ‘What the fuck have you done’), in my view, I could not, in any event, have drawn the inferences as sought by the prosecution.
On BA’s account, she saw the accused at JC’s house several times after the alleged offending, albeit she did not interact with him there. Although the timing of the incidents described by JC is unclear, the accused’s alleged behaviour on that occasion, if indicative of a consciousness of guilt, is seemingly inconsistent with him continuing to attend at JC’s house thereafter and being present on occasions when BA was there. On AC’s account she learned of the offending the day after the offending. On BA’s evidence she told AC about it on the night of the offending. On either version, it seems likely that if anything similar to what JC described as having occurred in the kitchen did, in fact, happen, that the accused had no concern with continuing to attend at JC’s house thereafter. His subsequent behaviour is at odds with him trying to flee from the scene to avoid the accusations because he knew he was guilty of such accusations.
It is arguable that had this incident unfolded as JC described, the accused’s reaction, in running out of the house, rather than denying culpability, may be indicative of an admission by silence. However, I simply do not have enough reliable evidence before me to make such a finding.
As to the alleged ‘gaol comment’, I accept JC’s evidence that at some point in time, when she confronted the accused about the allegations, he responded by making a comment to the effect that he did not care, as he got what he wanted in gaol and also appeared somewhat flippant. However, given my concerns as to the reliability of JC’s evidence, I cannot find that, during this same conversation, the accused did not say anything else, to deny the allegations. As such, I cannot reason, from this evidence, that the accused’s reaction was an implied admission of the offending and/or demonstrative of a consciousness of guilt.
JC may well be confused about what BA was showing her when they went to the location that she described as being in or near a park. However, from JC’s description of what occurred there, BA must have been showing her a place connected to the alleged offending. They were both very emotional at the time. This makes sense, as JC was in an on again/off again relationship with the accused at the time the alleged offending occurred.
BA was not examined about this but denied ever going with JC to Windsor Grove. It is most unusual that BA would take JC to show her the tents, but not to the place where the alleged offending occurred.
I am satisfied that the location described by JC is not the location BA identified as being the scene of the offending, as photographed by Officer Wauchope. As such, this aspect of the evidence does shed some doubt on the reliability of an important feature of BA’s account, namely where the alleged offending occurred.
AC’s Evidence
I have considerable reservations as to the reliability of AC’s evidence.
AC gave evidence that on the day of the alleged offending, prior to seeing the accused, she, BA, Latoya and some other girls had been at Bob’s house. She said she was only there for 10 to 15 minutes. However, she also gave evidence that she smoked three cones that day. Although not specifically questioned as to where she smoked those cones, having regard to AC’s personal circumstances at the time, she is unlikely to have had the means to pay for cannabis. I consider it likely that the only cannabis she was smoking was that given to her by Bob. As such, I find that the three cones she smoked that day, were smoked at Bob’s. This immediately puts into doubt the accuracy of AC’s timeline of events, as it is extremely unlikely that AC would have consumed three cones of cannabis in 10 to 15 minutes.
Further, although AC claimed to be a regular cannabis user at the time, it is unlikely that her consumption of three cones of cannabis would not have had any impact on her memory of the events of that day, notwithstanding her evidence to the contrary.
Whereas BA was honest about the impact of cannabis on her memory, I consider it likely that AC was not, or, at the very least that AC was simply oblivious to the impact of the consumption of cannabis on her memory.
As emphasised by counsel for the accused, there were several important differences in AC’s evidence from that given by BA as to what occurred on the day (and night) of the alleged offending.
While I am not satisfied that AC’s account of events is necessarily reliable, AC gave very clear evidence of participating in a servo run with BA, Latoya and ZB on the (only) day they met up with the accused in the circumstances she described. She had a very clear recollection of them all opening their bags to show what they had taken from the service station, and of the accused taking something from that haul, in exchange for giving them smokes. This aspect of AC’s account had a ‘ring of truth’ about it. It is an account at odds with BA’s version and in an important way, as BA was insistent the offending occurred when she and the accused went off alone to do a servo run, which never eventuated.
AC also gave evidence that she had only been to the half-built house on this one day. She was quite adamant she left that house alone to go home when it was starting to get dark. Again, notwithstanding my doubts as to the accuracy of AC’s memory, this account contradicts BA’s account in a very important way. Even if AC is mistaken in her memory, the fact is, her account on this important aspect, simply does not support BA’s account.
There were inconsistencies in AC’s account and that given by BA, as to what BA told her about the alleged offending and the circumstances in which that disclosure was made.
AC gave no evidence of having been told by BA of anything about the alleged offending on the day of the offending. She claimed she was first told about it the day after the offending. It may be that that what AC is describing is a subsequent conversation to that BA described as having with AC at the half-built house and that AC has simply forgotten about that earlier conversation, given it did not include details of what occurred. However, BA was not questioned about any subsequent conversation she had with AC wherein she disclosed any details of the alleged offending to AC.
The details AC recalled BA telling her about the alleged offending were somewhat consistent with the allegations. That is, that the accused had hurt her, touched her in an inappropriate way and made her do something with her dick.
However, AC appeared to have a very good memory of the circumstances of BA’s disclosure to her – it having occurred in the context of BA sending her a Snapchat message when she was at the police station. On AC’s version, BA disclosed the offending to her later that same day, in other words, after she had attended at the police station.
There was no record of BA having reported the alleged offending to police on a day prior to 16 June 2023.
If AC’s recollection of the circumstances of this conversation is accurate, her evidence of that conversation was not admissible as complaint evidence under s 34M of the Act. What she described could not have been an elaboration of any initial complaint made by BA either to her or to ZB, as any such elaboration had already occurred earlier that day at the police station. Any subsequent disclosure of the alleged offending by BA to AC later that day, can neither inform the Court as to how the allegations first came to light nor demonstrate consistency of conduct by BA.
In such circumstances, I have not relied on AC’s evidence of this conversation. If the evidence was appropriately admitted as complaint evidence under s 34M, it could only demonstrate modest consistency of conduct on BA’s part, both as to the timing of the complaint and its content, insofar as aspects of what AC recalled BA telling her were not otherwise inconsistent with BA’s account.
Complainant’s Evidence
BA impressed me with her honesty. I do not doubt the credibility of her evidence.
BA gave her evidence openly and frankly. She readily acknowledged that she now no longer had a detailed memory of the events that occurred on the day of the alleged offending, albeit she was certain the three offences had occurred and that the accused was the offender.
BA made numerous concessions as to the failings of her memory which she must have known were contrary to her interests.
She made no attempt to exaggerate any aspect of her evidence.
She acknowledged that she had engaged in servo runs in the past and therefore that she had engaged in dishonest behaviour. She acknowledged the extent to which she was taking cannabis both on the day of the offending and for a two-week period around that time. Importantly she acknowledged the impact her consumption of cannabis had upon her perception of time and on her memory.
BA denied that she had been told by JC to make up the allegations. I have no hesitation in accepting her evidence to that effect. I reject any suggestion that BA has concocted the allegations, knowing them to be false.
However, for the prosecution to establish the accused’s guilt, I must be satisfied not only that BA is an honest witness, but that her recollection of the alleged offending is accurate, and I must be satisfied of this beyond reasonable doubt.
BA admitted she had been ‘off her face’ earlier on the day of the offending and that she only started to sober up some time after arriving at Lisa’s house. This was, on BA’s account, sometime after the alleged offending. She acknowledged that her memory of events was blurry and that she could not remember a lot of what had happened.
I accept that BA’s memory of events at trial was not as good as it was at the time of the prescribed interview. However, the prescribed interview occurred several months after the alleged offending. BA’s inability to recall matters now related not only to the passage of time, but to the fact that she had consumed cannabis heavily both on the day of the alleged offending and for a period of about two weeks at or about the time of the offending. Those same factors may have necessarily impacted on the accuracy of BA’s memory of events as at the time she gave the prescribed interview.
I acknowledge that BA’s intoxication by cannabis on the day of the alleged offending may have made her vulnerable to the offending and emboldened the accused to act in the way BA alleges. It may also explain some of the internal inconsistencies in her evidence and some of the differences in her recollection as compared with AC. However, it is also reasonably possible that some of those differences are the product of BA erroneously filling in some of the gaps in her memory. Alternatively, it is reasonably possible that those differences are the product of BA’s memory for events being inaccurate as at both the time of the prescribed interview and at the time of trial.
I accept that BA’s evidence as to the salient features of the offending remained largely consistent throughout. The fact that BA cannot now remember how the accused’s penis came to be out, whether his pants were undone or pulled down by her, or whether he was wearing a hat when he was kissing her, are not details one would necessarily expect her to remember, particularly given the fact she had been smoking cannabis earlier.
However, there were some inconsistencies in BA’s account.
During her prescribed interview, BA described masturbating the accused when she was still on her knees. She said that after she stood up, the accused grabbed her and kissed her. In her evidence at trial, BA said that she had been on her knees during fellatio, but that she was able to pull her mouth away from the accused’s penis when she stood up and that she was standing up when she was masturbating him. This was an important inconsistency as it went to a core aspect of the offending.
There were other apparent inconsistencies in the responses given by BA to specific questions posed of her as to whether the accused’s penis was hard or soft at various times. My impression was that BA was guessing in terms of her responses to those questions. She acknowledged that she had attempted to fill in the gaps of her memory by reference to other situations she had experienced.
As emphasised in the closing address made by defence counsel, there were several inconsistencies in the evidence BA gave about the circumstances in which her bottom was allegedly touched by the accused.
During the prescribed interview, BA described the accused touching her bottom on the walk to the half-built house before the offending. This evidence was important as it gave context to the offending, which allegedly occurred shortly thereafter and demonstrated that the offending did not otherwise come out of the blue.
BA made numerous concessions in cross-examination about her inability to recall the accused touching her bottom. Although she gave evidence in re-examination that she said she could clearly recall the accused touching her on the bottom, she said this occurred either when they were walking to the tents or to the half-built house.
In the prescribed interview, BA had described walking with ZB, AC and the accused to show him where the tents were, after the alleged offending. In re-examination, she said, for the first time, she was ‘pretty sure’ this walk was prior to the offending. Her evidence as to whether there were one or two walks to the tents that night, with the accused, was also unclear.
The evidence BA gave about walking to the tents with the accused was also important as it was relevant both to the circumstances in which she claims she told AC about the alleged offending and was incidental to her evidence about how she was able to put a stop to the alleged offending, that is, by promising to go back to the tents with the accused.
I accept that as BA did not give her evidence in chief in full, in chronological order, and instead was examined on only discrete issues, she did not go through a process prior to cross-examination, which necessarily prompted her memory of when and how events may have occurred. However, the Court can only act on the evidence before it. As stated earlier, BA’s evidence is critical to the prosecution case. I must be satisfied beyond reasonable doubt that BA is both an honest and accurate witness.
I have already discussed some of the differences in the evidence of BA and AC as to what occurred on the day of the alleged offending. Their evidence differed on the following matters:
·how long BA and AC (and the others) were at Bob’ place;
·whether they went straight from Bob’s place to catch the train to Salisbury (as per AC’s evidence) or first went to AC’s house (as BA recalled);
·whether BA, ZB and AC (and Latoya) participated in a servo run after meeting up with the accused. BA was adamant she did not participate in a servo run that day, whereas AC gave a detailed account of her having done so;
·whether anything untoward occurred between the accused and BA on the walk to the half-built house;
·whether BA and the accused ever left the half-built house alone, leaving AC and ZB there;
·whether BA told AC about the alleged offending at any time during the night of the offending;
·whether (and when) BA and AC walked with the accused to show him where the tents were;
·whether AC went back to Lisa’s house with BA that night.
Some of these differences are more important than others and related to critical features of BA’s account of the offending.
If AC’s recollection is accurate, then she left the half-built house when it was nearly dark and did not return there. She did not see BA and the accused leave the house at all when she was there. On her version, there was simply no opportunity for the offending to have occurred in the way BA described. BA said it was dark at the time of the offending. On BA’s account, AC was still at the half-built house after the offending and then accompanied her to the tents with the accused (and thereafter to Lisa’s).
The two versions simply cannot sit together.
As previously stated, I have several concerns with the reliability of AC’s evidence. It is possible that BA’s recollection of the various events that occurred that night and their sequence is accurate and that AC has simply forgotten these events or misremembered them.
I do not doubt BA’s honesty.
I consider it likely that what BA told DBS Brown in the prescribed interview, and what she reiterated in her evidence at trial, namely that the accused forced her to suck his penis and to masturbate him and that he kissed her, was both true and accurate.
However, I cannot overlook the significant inconsistencies in the accounts given by BA and AC, who was the only witness called to support BA’s account of what occurred on the day of the offending, the most important of which was as to the opportunity for the alleged offending.
BA has admitted to having been heavily intoxicated by cannabis on the day of the alleged offending and in the weeks around that time.
She acknowledged having only a very blurry memory of what had occurred.
I consider it likely that something untoward occurred between BA and the accused on the night in question. However, after carefully considering all of the evidence, I cannot exclude as a reasonable possibility that both at the time she gave her prescribed interview, and at the time she gave her evidence at trial, BA was either genuinely mistaken as to her recollection of the alleged offending and/or her memory so impaired by the effects of her consumption of cannabis at the time, as to render her recollection of events unreliable.
I simply cannot be satisfied, to the very high onus required, of the reliability of BA’s account of what occurred on the night of the alleged offending.
In such circumstances, I cannot be satisfied of the accused’s guilt, as to any of the counts, beyond reasonable doubt.
Verdict
I find the accused not guilty of each count on the Information.
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