R v T, RR - [2020] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, RR
Criminal Trial by Judge Alone
[2020] SADC 25
Reasons for the Verdict of Her Honour Judge Chapman
20 March 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with Maintaining an Unlawful Sexual Relationship With a Child between 2015 and 2018 contrary to Section 50 of the Criminal Law Consolidation Act, 1935. The alleged victim is his daughter.
Held: Unlawful sexual acts not proved beyond reasonable doubt. Verdict of not guilty.
Criminal Law Consolidation Act, 1935 s 50, referred to.

R v T, RR
[2020] SADC 25

The accused is charged with one count of maintaining an unlawful sexual relationship with a child contrary to Section 50 of the Criminal Law Consolidation Act, 1935. The alleged victim of his offence is his adopted daughter, MS. It is alleged that he committed the offence between 25 September 2015 and 25 February 2018 at the family home at Woodville North. The complainant was then aged 13 to 16 years old.
The accused pleaded not guilty and elected for trial by judge alone.
Elements of the offence
The prosecution must prove each element of the offence beyond reasonable doubt. There is no onus on the accused to prove anything. The prosecution must prove the following four elements beyond reasonable doubt:
1.The accused knowingly maintained a relationship with the complainant.
There is no dispute regarding this element. At the relevant time, the complainant was the accused’s adopted daughter. They were living together as a family under the same roof with the complainant’s mother and brothers.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant. The prosecution alleges the accused committed two or more unlawful acts, namely:
a)     touching her vagina underneath her clothing;
b)     touching her vagina on the outside of her clothing on more than one occasion;
c)     touching her breasts on the outside of her clothing on more than one occasion;
d)     kissing her on the mouth on more than one occasion;
e)     pressing his erect penis against her body; and
f)     masturbating in her presence.
3.     The accused was an adult during the period of the relationship.
There is no dispute the accused was an adult during the period of the alleged offence. He was born on 7 October 1968.
4.     The complainant was a child during the period of the relationship.
There is no dispute that MS was a child during the period of the alleged offence. She was born on 14 December 2001.
The defence case is that the unlawful sexual acts did not occur. The issue is whether the prosecution has proved the second element of the offence beyond reasonable doubt.
The prosecution called the complainant and her mother. The prosecution also tendered various exhibits including a statement of agreed facts[1], videos sent via Facebook Messenger from the accused to MS[2] and the interview between the accused and the police which took place on Saturday, 24 February 2018[3].
[1]    Exhibit P9
[2]    Exhibit P8
[3]    Exhibits P6 (CD) and P7 (transcript). The audio/visual recording is the evidence of the interview. The transcript is merely an aide. To the extent that there are some discrepancies between the audio/visual recording and the transcript, the audio/visual recording takes precedence.
The accused did not give evidence. He tendered bank statements in his defence[4].
[4] Exhibit D10
The accused comes to this court with a presumption of innocence. He is regarded as innocent unless the prosecution proves his guilt beyond reasonable doubt. The onus of proving the charge is on the prosecution. The accused is not required to prove anything. He has a legal right to remain silent and I draw no inference adverse to him from his exercise of that legal right. In choosing to tender bank statements, he took on no onus of proof. The onus remains on the prosecution to prove the offence beyond reasonable doubt.
Through his counsel, the accused suggested the possibility of a motive for the complainant to lie, or at the very least, to make otherwise innocent behaviour seem sinister. It was submitted the complainant was motivated by her mother and the promise of financial benefit. The complainant’s mother had not wanted a relationship with the accused for years. She used him to leave Poland. She later achieved permanent residence in Australia. On the evening of the accused’s arrest, she transferred over $70,000 from the accused’s bank account into the complainant’s bank accounts. Shortly after that, she was in a relationship with another man to whom she is now married.
A motive to lie is relevant to the assessment of the credibility of the complainant, and her mother. Even if I reject the alleged motive, that does mean that the complainant’s evidence is truthful. The rejection of the proffered motive does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason. It is not for the accused to provide a motive for the complainant to lie. The prosecution must establish beyond reasonable doubt that the complainant was telling the truth.
Background
The complainant was born in Poland. When the complainant was five, the accused married her mother in Poland. The accused and the complainant’s mother had two sons. The accused legally adopted the complainant.
The complainant had a happy childhood in Poland. She described her relationship with the accused during that time as a ‘pretty normal’ father and daughter relationship; he treated her well and showed her affection.
In August 2013, the family moved to Australia. By that stage, the relationship between the accused and the complainant’s mother was strained. The accused knew the complainant’s mother had had an affair with a man in Tunisia. The complainant’s mother gave evidence that their plan for Australia was to ‘start again’[5].
[5] T212
The family initially lived at the accused’s brother’s house and then moved to another house just down the street.
In July/August 2015, the family moved to a house in Woodville North.
The complainant’s mother worked in disability services. The accused worked as a tradesperson, renovating houses.
A change in the relationship between the accused and complainant
The complainant gave evidence that her relationship with the accused began to change when she was a teenager.
Talk about masturbation
The complainant said that when she was 13, in year 8[6] and the family was living just down the street from her uncle, there were about four or five occasions when the accused told her she was old enough to touch herself; that she should do it. He asked if she was touching herself. He would use hand gestures to try and show her how to do it. She understood he was talking about masturbation. She told him she did not want to talk about it. He said it is normal, nothing to be ashamed of and that everyone does it.
[6] It is an agreed fact the complainant was in year 8 in 2015.
The complainant’s mother gave evidence that in 2017 when she was sitting in the kitchen at Woodville North with the accused, the complainant and her eleven year old son, the accused talked to her about masturbation in front of the children. He said the complainant was supposed to start masturbating and needed to go to a sex shop. He said he would take her there because she should start using toys. In the same conversation, the accused said their son should be taken to a prostitute. The accused said those things many times. She got angry and told him the kids were small and it was not for their ears.
Favouring the complainant
The complainant gave evidence that the accused started favouring her over her brothers when they moved to the house at Woodville North. He would buy her things and take her places. He did not do that with her brothers. He bought her a car, a laptop, a phone, books, clothes and a guitar. She heard her mother challenge him about why he was not buying those things for his sons.
The complainant’s mother gave evidence that the accused only give gifts to the complainant; whatever she wanted he would buy[7].
[7] T203, 228
Evidence of unlawful sexual acts
The complainant gave evidence that the accused started to touch her inappropriately once they moved to Woodville North.
Around the house
The complainant said the accused touched her ‘pretty much every day’[8] when she passed him in the house. He touched her on her breasts and bottom. She pushed him away and told him to stop it. She said sometimes he would try to justify it saying that it was normal and that everyone does it. Other times he would get mad that she pushed him away. She said there was never anyone else present when he did that. It made her feel ‘really weird’[9] because he was her dad. Her evidence of being touched on her breasts is evidence of unlawful sexual acts (indecent assaults) as charged on the Information at (c).
[8] T128
[9] T128
The complainant gave evidence that in 2016 the accused started to kiss her on the lips. On the first occasion, he called her into his room to give him a kiss. He was sitting on his bed. She sat down in front of him and he gave her what she described as a ‘smooch’ (kiss on the lips)[10]. He tried to do it again and hold her arms, but she pushed him away and left the room. When she pushed him away, he told her it was normal, that is how every father kisses his daughter.
[10] T140
She estimated the accused kissed her on the mouth about five or six times up until the first half of 2017. In the first half of 2017, he called her into his room from the kitchen. She went into his room, sat down in front of him and he tried to put his tongue in her mouth. He was holding her to him. She had to use a lot of force to get out of his hold. She walked out and told him that it is not normal. Her brothers were home at the time. She was not sure whether her mother was home. This is evidence of unlawful sexual acts (indecent assaults) as described in (d) on the Information.
Sometime in 2016, the complainant said there was an occasion when she had a shower and walked out through the kitchen with a towel wrapped around her. The accused tried to pull the towel off her. She held onto it and turned away so that he could not pull it off. The accused was laughing. No-one else was around. That occasion is an uncharged act.
In the accused’s bed
The complainant gave evidence the accused touched her inappropriately in bed.
By the time the family moved to Woodville North, the complainant’s mother and the accused were sleeping in the same room, but in separate beds. The accused slept in a king size bed. The complainant’s mother slept in a queen size bed. The complainant’s mother confirmed the relationship was such that they were sleeping in separate beds at Woodville North. The complainant had her own bedroom. The two boys shared another bedroom. The parents’ room was the only room in the house which had air conditioning for the hot weather and a heater for the cold weather.
The complainant gave evidence that she slept in her parents’ room when it was hot during summer, cold during winter and when they had visitors staying. She slept in the accused’s bed; never in her mother’s bed. The complainant’s brothers also slept in that room. They slept in their mother’s bed or on a mattress on the floor. One of her brothers sometimes slept in the accused’s bed[11]. The other brother sometimes brought his own mattress in.
[11] T155
The complainant’s mother gave evidence the complainant slept in the accused’s bed every night during summer. She said there were only a few nights when the complainant would sleep in her own bedroom. In winter time, the complainant slept in the accused’s bed ‘quite often’. She could not recall her youngest son ever sleeping in the bed with the accused. She said her eldest son asked to sleep with the accused, but the accused told him no. The accused would not allow the two sons to sleep in his bed.
The complainant gave evidence that the first time something happened in the accused’s bed was during summer in the first half of 2016. Her mother was also in the room. She could not say how long after she had gone to bed that night that it happened. She was wearing an oversized t-shirt, shorts and underwear. She was lying with her back facing the accused. As he was scratching her back under her shirt, he started moving his hand down between her legs. She pushed him away. He tried to do it again but she pushed him away again. He then turned around and stopped. This is an uncharged act. There is no evidence he touched her vagina on that occasion.
After that, he touched her vagina on top of her clothing when they were in bed at night once or twice every two to three weeks. Most of the time her mother was in the bedroom. The complainant’s evidence of being touched on her vagina over her clothing is evidence of unlawful sexual acts (indecent assaults) as charged on the Information at (b).
There was one occasion when she was asleep and woke up to find the accused touching her. He was touching her vagina with his hand under her clothing. She pushed his hand away. She could not recall whether anyone else was in the room at the time. That was the only time that he touched her underneath her clothing on her vagina. This is the occasion alleged on the Information at (a).
The next time she could recall was around September / October 2017. The accused was scratching her back. He moved his hand down near her vagina, but she pushed him away. On that occasion, he did not touch her on the vagina. This is an uncharged act.
There was a time in June or July 2017 when the accused was scratching her back and moved his hand down between her legs but did not touch her vagina. This is an uncharged act. She pushed him away. She then took her quilt and pillow and walked out of the room. The accused told her to stay in the room and said nothing was happening. She walked in to the living room. Her mother was watching television and asked if anything was wrong. The complainant told her it was too hot in there and she went to sleep in her own bedroom.
There was an occasion in November 2017 when the complainant woke up in the middle of the night. She described the quilt moving and the accused making ‘really weird noises’. She asked him about it the next morning. He said ‘Oh, nothing wrong was happening. I will just try and do it quieter next time’.[12] She said that he was making grunting noises. She was not sure if there was anyone else in the bedroom at the time. The prosecution relies upon this evidence to prove the particular at (f) on the Information, namely, the accused masturbating in her presence (gross indecency).
[12] T138
In late 2015 to early 2016, there was a time when the accused and the complainant were in his bed. She was lying on her left side. The accused gave her a hug from behind. She felt his erection against her bottom. She said it was like a really full on hug, he was almost on top of her. She was around 14. The prosecution relies upon this evidence to prove the particular at (e) on the Information.
In the complainant’s bed
The complainant gave evidence about occasions when the accused came into her bedroom and lay down next to her, either on top of the quilt or under the quilt. She did not want him in her bed. It made her feel really uncomfortable. She told him to leave. He would try and stay for as long as possible, but she told him over and over again to leave. He did not touch her when he was in her bed.
The complainant’s mother gave evidence about an occasion in winter 2017 when she woke up in the middle of the night and the accused was not in his bed. She went to look for him and found him lying next to the complainant in the complainant’s bed under the covers in the dark. She started to scream at him and asked him what he was doing. He got out of bed, wearing only his underpants. He put on his bathrobe which was lying on the bed. He told her she was being silly, they were just talking. He asked the complainant what kind of talks they have in the middle of the night. The complainant was quick to say she was sleepy and asked her mother to turn off the light.
The complainant gave evidence about a family holiday to Poland in November 2017 through to the start of January 2018 when they stayed with her maternal grandmother. Her mother remained in Australia. One night, they went out to the accused’s friend’s 50^th birthday party. The accused gave her alcohol. The accused was really drunk. She went to bed in her room, but woke up in the middle of the night to find the accused in her bed. She could not recall any inappropriate touching on that occasion, or at all while she was in Poland with the accused.
Videos sent via Facebook messenger
From 31 December 2017 to 19 February 2018, the accused sent the complainant a number of videos via Facebook messenger. She told the accused she felt uncomfortable about getting the videos. He said to her ‘oh, they’re a joke. They’re supposed to be funny.’[13]
[13] T145
Prior to trial, the accused sought an order that the videos be excluded. On behalf of the accused, Mr Marcus submitted they were irrelevant or should be excluded on the basis they were more prejudicial than probative. They were irrelevant because they do not advance the prosecution case on whether the indecent assaults in fact occurred, but are simply videos which are crass, of poor taste and contain bad humour and are for shock value. They are prejudicial because of their capacity to offend and disgust. For the prosecution, Mr Mulvihill submitted their probative value was in them being the sort of videos one would not expect a father to send his teenage daughter. They were probative of a sexual interest in the complainant.
Although the prosecution did not rely upon the videos as evidence of propensity, I considered the probative value of the evidence satisfied each of the tests in s34P(2)(a) and (b). They all had a sexual theme and were relatively contemporaneous with the offending in that they were sent by the accused in the two month period prior to the complainant making her complaint. The permissible use lay in demonstrating the nature of their relationship and the accused having a sexual interest in the complainant.
Books
The complainant received books from the accused. The first book was entitled ‘The Study of Sexual Practices in Witchcraft and Black Magic’. She said he just walked into her room ‘really happy’[14] and handed her the book. She gave it to her mother.
[14] T146
He also gave her the Fifty Shades of Grey trilogy. She said he came home with the books and put them on the desk in his bedroom. He said they were for her because he knows that she likes to read. He left the books there. She did not read them. It is an agreed fact that the trilogy is a series of three romance novels of an erotic nature.
Prior to trial, the accused sought an order that evidence of the books be excluded on the basis they were more prejudicial than probative. Submissions similar to the submissions regarding exclusion of the videos via Facebook Messenger were made. I declined to exclude them on the same basis.
Sunburn
The complainant’s mother gave evidence that in January 2018, she took her mother and the complainant to the beach. They all got sunburnt and could not sleep. Later that night, the complainant was in the accused’s bed. In the middle of the night, the accused turned on the light because the complainant could not sleep and tried to put balm on her back for the sunburn. He told her to take off her bra. Her called her ‘Rybka’, which was the name he called the complainant’s mother at the beginning of their marriage. When the complainant’s mother questioned him about it, he was embarrassed and said ‘it’s my daughter, I’m just really very sorry for her, she suffered that much’[15]. She told him the complainant was going to sleep in her bed. He agreed to that.
[15] T205
Complaint

The complainant’s mother gave evidence that on Wednesday, 21 February 2018, she went to the accused’s bed to wake the accused for work and the complainant for school. She saw they were lying very close to each other. The accused was moving his hand in the area around the complainant’s ribs, under her breasts. While still sleeping, the complainant grabbed the accused’s hand and pulled it away. The complainant’s mother then woke the accused. She did not say anything at that time. She spoke to the complainant later that afternoon.
She told her what she had seen that morning and that the complainant would not be sleeping in the accused’s bed anymore. The complainant did not say anything; she did not look at her mother but started to cry.
The complainant gave evidence that on Wednesday 21 February 2018 her mother said she was noticing that something was going on and she was worried. The complainant gave evidence she brushed it off and told her mother that everything was fine.
On Friday, 23 February 2018, the complainant’s mother went to use her laptop but saw that the accused was already logged in. She described seeing ‘on the bottom part three or four conversations already open and in every conversation, was porn videos’[16]. She said he was also sending videos to the complainant. She said she told the complainant that she was going to go to the police station because she had to talk with someone after all this. She said the complainant then said she would go with her.
[16] T207
The complainant gave evidence that on Friday her mother went through her phone and said that the videos the accused had been sending were basically sexual harassment. Later that night, her mother said that she was taking her to the police tomorrow because she did not know what was happening and the complainant could tell them everything that was going on.
On 24 February 2018, the complainant’s mother took the complainant to the police station in Port Adelaide. The complainant gave evidence she spoke to the accused before she went to the police. He rang her and asked her to look for some receipts in his drawers. In between his sentences, he whispered ‘watch out for your mum and grandma, they are plotting something against us’[17].
[17] T149.
The complainant gave evidence that she told the police about ‘the whole sleeping situation, the touching around the house and in his bed and that was everything I told in my first statement’.[18] This was the first time she told anyone about what the accused had been doing.
[18] T148.
The prosecution tendered the statement of Probationary Constable Katelyn Newman, dated 6 March 2018. She was the first person to whom the complainant made a complaint. She took the complainant and her mother into an interview room then asked her mother to wait outside. The complainant then told Probationary Constable Newman that her father had been touching her in between her legs with his hands and on her chest but not underneath her clothing. It had been going on for three years. It happened when they were in bed together; he touches her chest when he walks past in the hallway. He also sent her pornography via Facebook messenger.
A further statement was then taken by another police officer on 8 March 2018. The prosecution did not tender that statement as an elaboration of the complaint, although there was evidence she did then tell the police about the touching of her breasts and bottom, kissing and touching of her vagina under her clothing[19].
[19] T173
The evidence of complaint is admissible as evidence of how the allegations first came to light. It may be used as evidence of the degree of consistency of conduct of the complainant. It is not admitted as evidence of the truth of what was alleged. There may be varied reasons why a complainant makes a complaint at a particular time or to a particular person. Here, MS made the complaint after her mother took her to the police station, having spoken to her about the videos sent to the complainant by the accused. The evidence is not evidence of a complaint in regard to the unlawful sexual acts the subject of (a), (d), (e) or (f) on the Information.
Police interview
The accused was interviewed by the police on 24 February 2018. He spoke in Polish. An interpreter was present.
Admissibility
Prior to trial, the accused sought an order for the exclusion of the recorded interview. I declined to make such an order.
First, the accused submitted the interview was involuntary. He gave evidence on the voir dire that he was dealt with harshly by the police in Poland and because of that past experience, he believed he had no choice but to answer their questions. He would be met with violence if he did not cooperate. I believed the accused’s account of his past experience, but do not consider that made the interview involuntary. The interview was not preceded by an inducement, violence, threat or promise on the part of the police or anyone else in authority[20]. I viewed the video. I do not consider his will was overborne by his own past experiences in Poland. He had been with the police for over two hours by the time of the interview, without incident. Once made aware of the reason for being arrested, he appeared to want to tell the police about the family situation.
[20] Sinclair v The Queen (1946) 73 CLF 316, 322 (Latham CJ)
Second, the accused submitted the interview was conducted unfairly. Mr Marcus submitted the accused was not given sufficient information about the allegations at the outset[21]. The police told him at the outset that ‘earlier today your daughter has come to the police station with your wife. And she’s alleged that you’ve been assaulting her in an indecent manner. This has been going on for allegedly three years’[22]. Part of that was translated as ‘and she said that you attacked her, abused her in a sexual way’. It was not until later that the accused was told that his daughter ‘has told the police that you’ve been having um performing sexual acts with her’[23]. Then later, he was told his daughter has said that every fortnight he has put his hand over her and deliberately touched her vagina on the outside of her clothes, then she has pushed him away[24].
[21] R v Szach (1980) 23 SASR 504, 583 (King CJ)
[22] Exhibit P7, page 7
[23] Exhibit P7, page 12
[24] Exhibit P7, page 15
I do not consider there was unfairness on the part of the police by not giving the more detailed allegation at the outset of the interview. The accused was told at the outset that it had been alleged he indecently assaulted his daughter over a number of years. He was made aware of the nature of the crime alleged[25].
[25] R v Szach (1980) 23 SASR 504, 583 (King CJ)
Third, the accused submitted the interview was unfair because of the problems of translation. The defence tendered a translation of the interview by another interpreter. It was submitted that the interpreter at the interview had not adequately interpreted the police questions or the accused’s answers. At times, there were differences between what was actually said and what was then interpreted. Having considered the differences, I do not consider there was any significant failure in interpretation at any stage which would lead to unfairness in the interview now being tendered at trial. The interview will need to be assessed bearing in mind those difficulties arising from communicating in two languages.
Fourth, the police acted unlawfully or improperly in conducting the interview with the particular interpreter after being made aware he knew the accused’s family. On the voir dire, the interpreter gave evidence that at the outset, he told the police he had met the accused’s father and mother back in 2006. They became friends. He met the accused on two occasions. One was when he was passing by a church and by chance, the accused’s father introduced the accused. The other occasion was at the accused’s father’s funeral. He did not feel conflicted. He did not ever have lengthy conversations with the accused. At the funeral, they might have shaken hands and he may have expressed his condolences.
Mr Marcus referred to the SAPOL General Order in regard to Interpreters dated February 2019. Paragraph 3[26] states that ‘The interpreter must be independent of the people involved, professionally trained and formally qualified. Do not use a fellow employee of the suspect, victim or witness or a member of their family’. I do not consider there was a breach of the General Order. The interpreter was sufficiently independent of the accused and his family. He had only very briefly met the accused twice; the first time to be introduced and probably the second time, to express his condolences. There was no impropriety on the part of the police which would give rise to a basis for an exercise of the Bunning v Cross discretion.
[26] Exhibit VDD5
The accused’s account to police
In assessing the interview, I take into account that it was conducted via a Polish interpreter, which may affect the way questions or statements were understood by the accused and the use of words/construction of sentences in recorded answers when translated into English. In assessing the weight of the answers given by the accused, I bear in mind that they were not made on oath nor the subject of cross‑examination. With that in mind, what the accused told the police is to be assessed in conjunction with all the other evidence.
The accused told police his wife went to Tunisia to betray him and his daughter saw it. She changed her faith and was in love with someone else. He had already bought tickets for them all to come to Australia. His wife said everything will change in Australia. They argued about her change of faith. Things were not good between them; they were together for the sake of the children. He is very close to his children. His daughter trusts him. His children can talk to him about anything in a free way, including sex and politics.
He denied any sexual acts with the complainant. He said they would often lie together and he would pat her on her head or back. The family slept together when it was hot or cold; the children would sleep with him or his wife. Sometimes when the complainant was sleeping, she would tell him that he put his arm on her and on her breasts. He said to her that he works 10 to 14 hours a day and when he lies down he is unconscious. He apologised to her if anything wakes her up. He could have accidentally rolled over or touched her. Once his wife woke them up because they were cuddled together. He said he was earning the money for them but now he was at the police station she can take that money and do with it whatever she wants. Sometimes he and his daughter were fooling, dancing around and the fact is that she has big breasts. She would walk by and there is a reflex. It was silly behaviour but not sexual.
In relation to the Facebook messages, he said his friend started sending him crazy video clips and he has shared them around. His wife and his mother in law knew about them.
The defence case
The defence case is that the prosecution has not proved that the unlawful sexual acts occurred. The prosecution has not excluded the possibility that some of the touching in the bed could have occurred accidentally when the accused was asleep. The defence suggested the complainant has made something out of what was otherwise innocent occurrences for a financial motive at the behest of her mother.
The defence tendered bank statements of the complainant’s bank accounts held at the National Australia Bank. They show that the sums of $68,500 and $5,900 were transferred from the accused’s bank account to the complainant’s two bank accounts (ending 9215 and 8047 respectively) at 7:46pm and 7:47pm on 24 February 2018. This was the date the complaint was made to police and the accused was arrested.
In cross-examination, the complainant’s mother said the accused had a savings account in which there was tens of thousands of dollars for a house deposit. She agreed that after she had been to the police station with the complainant, she transferred all the money out of the accused’s account into the complainant’s account. She denied she did that in order to convince the complainant to make these allegations. She said she made the transfer ‘because those moneys supposed to pay for kids’[27]. When asked why the money did not go into her account, she said ‘because those money are savings, I don’t need to keep them on my account’ and ‘because those money are for kids and their own future and should be own kids’ account’[28]. She said ‘I just transferred for – on her account, just to secure their future. I was sure that he will lock out of his account and they will stay without any savings’[29].
[27] T238
[28] T238
[29] T240
In cross-examination, the complainant denied she was paid to make up the allegations. She knew her mother was making the transfers. Her mother did not really explain why she did this[30]. She knew the money was in the accused’s account for a house. The complainant initially denied spending the money on things she wanted to buy. She then agreed she did start to spend that money.
[30] T183
There are no withdrawals from the bank account into which the $68,500 was deposited (ending 9215) until 5 April 2019. By that date, the sum of $5,900 that had been deposited into the complainant’s other bank account (ending 8047) had been spent. On 5 April 2019, the sum of $15,000 was transferred from the complainant’s bank account (ending 9215) to the complainant’s other bank account (ending 8047). It was spent by 23 April 2019.
Closing addresses
I have carefully considered the closing addresses of both counsel. The following is a summary only.
Prosecution address
For the prosecution, Mr Mulvihill submitted the complainant was not on a mission to impugn the accused’s character. She spoke of him as an affectionate and supportive father. She made appropriate concessions. Any deficiencies in her complaint to the police on 24 February 2018 are explicable on the basis that it was a short statement taken at a time when she was in shock, upset and crying.
The accused’s admissions during the police interview support some of her allegations. The accused admitted to observing her breasts and playfully interacting with them. He had opportunity to touch the complainant in bed, including times when his wife was working late. His admission that there could have been accidental touching in bed, lacks credibility given it was a king size bed. He did not expressly admit touching her between her legs. He introduced the topic of inadvertent touching in bed, not the police.
Any suggestion that the accused did not know the nature of the Sexual Practices book lacks credibility in light of the graphic photos in it. The books demonstrate his sexual interest in her. The videos sent by him to the complainant contain sexual activity or nudity.
The defence suggestion of financial reward as a motive for the complainant to lie has a number of difficulties. The $68,500 sat idle in the complainant’s bank account for over a year. It accrued interest, which is consistent with it remaining an investment for the family’s future. The spending of the $5,900 from the other account is hardly a spending spree. The transfers left a paper trial, which would have been known to the complainant’s mother who was responsible for online banking. This makes it unlikely to be part of a pre-meditated reward to her daughter for lying. The piecemeal disclosures by the complainant sits uncomfortably with this being a pre-rehearsed set-up.
Defence address
For the defence, Mr Marcus submitted there were difficulties with the evidence of the complainant’s mother. On the one hand, she gave evidence of suspicious and concerning behaviour on the part of the accused. On the other, she did nothing about it. This lacks credibility in light of her awareness that the complainant was sexually abused by her biological father at a very young age.
The complainant’s allegations are vague and lacking in detail. The touching could not have happened a few times a week every two or three weeks as alleged because the sleeping arrangements were only in place in summer and winter. The nature of her allegations does not fit with her evidence about having her own quilt when in the accused’s bed. She failed to mention many of her allegations when she made her initial complaint to the police. Other people were in the house but did not see the accused touching her or hear him calling out for a kiss. There was no conversation between them in which the accused told her to keep it secret. She kept on going back to sleep in the same bed as the accused rather than stay in her own bed or take a mattress into the room.
The accused made no admissions in the interview. He says any touching in bed would have been accidental. The videos he sent to the complainant are crass and, in some instances, distasteful jokes. He did not just send them to the complainant, but also to his wife and mother-in-law. They do not demonstrate a sexual interest in her. They were sent in early 2018 and, on the complainant’s evidence, there had been no indecent touching since mid-2017. She was given the Sexual Practices book in the presence of her mother. That is unlikely to be done if his purpose was grooming. Similarly, he could not read Fifty Shades of Grey (as it was in English) and said he did not know what they were about.
Mr Marcus submitted that the complainant’s mother was unable to give a satisfactory explanation for the transfer of the money. It should be viewed in the context of her having an affair with a man in Tunisia, exchanging rings with him, changing her religion and wanting to leave Poland, but realising that her only chance of leaving Poland was to come to Australia with the accused. After she was granted permanent residency in mid-2017; she seized upon the opportunity to leave the accused. She kept photos of the Sexual Practices book on her phone and then, when the accused was arrested, she transferred the money out of his account. She began a relationship with a work colleague to whom she is now married.
There also remains a real issue of whether the accused was asleep when the touching is alleged to have occurred in the bed. The complainant’s mother saw him touching her but said he was asleep. That confirms what the accused said to police.
Discussion
The assessment of the complainant’s evidence is crucial in determining whether the prosecution has proved the offence beyond reasonable doubt.
I turn first to the evidence of the context in which her evidence of the charged unlawful sexual acts are said to have occurred.
It is not in dispute that the accused and the complainant shared a king size bed at times during the summer, winter and when there were visitors at the house; that the accused sent the complainant the videos via Facebook messenger; and that the accused gave the complainant the books. That evidence, the evidence of the uncharged sexual acts and the evidence of the accused sharing the complainant’s bed, may be used as evidence of the nature of the relationship between the accused and the complainant, particularly as evidence of a sexual interest on the part of the accused toward the complainant. The evidence must not be used to reason that the accused is a bad person or the type of person to commit the offence and therefore committed this offence.
The sleeping arrangements that were in place (a father regularly sharing his bed with his teenage daughter over a few years) were unusual. That said, in the circumstances of this case, I do not consider much can be made of that fact. I do not find the fact of those arrangements to be indicative of a sexual interest on the part of the accused toward the complainant. The complainant’s mother was aware of the arrangements and condoned them. Her sons slept in her bed. She was also aware the complainant had been the victim of sexual abuse perpetrated by her natural father many years earlier. She gave evidence she did not see any danger in the accused and the complainant sleeping in the same bed[31]. While unusual, in the context of that family, the sharing of beds was not anything out of the ordinary.
[31] T232

The videos sent by the accused via Facebook messenger are generally crass, distasteful and childish. A few are child pornography, but none involve an adult engaging in sexual activity with a child. It was definitely inappropriate for the accused to send those videos to his teenage daughter and, in the case of the child pornography, illegal. However, the evidence does not establish that he sent them solely to the complainant. Rather, it is open on the evidence that he sent the videos to others, including his wife and mother in law. That tends to dilute the suggestion that they are demonstrative of a sexual interest on his part toward the complainant. So too does the timing of the messages. They were sent by the accused almost six months after the last occasion when, according to the complainant, he had deliberately touched her in a sexual way. I do not consider they indicate grooming on his part.
The books were not a suitable gift from the accused to the complainant. However, I accept the complainant’s evidence he gave her the Sexual Practices book in the presence of her mother and thought it was a joke[32]. Just like the videos he sent via Facebook Messenger, the provision of that book to the complainant in the presence of her mother suggests to me that the accused had an immature attitude to sexual matters and a problem with boundaries generally, rather than a specific sexual attraction to the complainant. I accept the evidence that the accused could not read the Fifty Shades of Grey books (because they were in English) and did not know what they were about. I accept the complainant’s evidence that he said as much at the time to the complainant’s mother[33], although the complainant’s mother denied that during her evidence[34].
[32] T165
[33] T182
[34] T223
I take the same approach to the evidence about the discussions on the topic of masturbation. The complainant’s evidence was that in 2015 the topic was brought up by the accused with her alone. The complainant’s mother gave evidence of discussions on the topic in 2017 in the presence of the complainant. Although the complainant’s mother did not mention anything about those conversations to the police until February 2020, and the complainant did not give any evidence about being present with her mother and brother in 2017 when the topic was discussed, I accept the conversations did take place. The occurrence of the conversations in 2015 as described by the complainant does not exclude the occurrence of conversations in 2017 as described by the complainant’s mother, and vice versa. Like the sleeping arrangements, videos and books, the fact the accused talked about masturbation in 2017 in the presence of the complainant’s mother reinforces my view that he is immature and has a problem with boundaries regarding sexual matters, rather than a particular sexual interest in the complainant.
I take the same approach to the evidence of the accused asking the complainant to remove her bra so that he could apply balm to her sunburnt back in the middle of the night. The request shows poor judgment but not a sexual interest in the complainant. This is because I find that on the evidence, he made that request after turning on the light in the bedroom knowing that her mother was there.
The accused called the complainant ‘Rybka’, which means ‘little fish’ in Polish. Although the complainant’s mother suggested in her evidence there was something untoward about the accused calling the complainant by that name[35], the complainant agreed in cross-examination that it was a term widely used in the Polish community as a term of affection and a common term an adult would use toward a child[36]. I accept the evidence.
[35] T205
[36] T159, 182
I find that the accused gave the complainant gifts and showed her favouritism over his sons. I do not consider there is anything sinister in that. The complainant was given a car after her 16^th birthday, when she was able to get a licence. There was a five and nine year age gap between the complainant and her two brothers so she would need different things to them. The complainant conceded there were times when her brothers were alone with the accused and so she does not know what he gave them or how he spoke to them.
I have considered the evidence of the sleeping arrangements, videos sent via Facebook messenger, the provision of books, the conversations about masturbation, the ‘sunburn’ occasion, the accused’s use of the name ‘Rybka’ and the ‘favouritism’ separately and as a whole. On both approaches, I do not find the evidence demonstrates a sexual interest on the part of the accused toward the complainant and I do not use the evidence in that way. I have not reasoned that because of that evidence (either individually or as a whole), the accused is a bad person or the sort of person who would commit this offence. I have not placed any weight on the evidence he gave her alcohol in Poland. I have not engaged in ‘bad person’ reasoning in relation to that evidence.
I have some concerns about the complainant’s evidence regarding the occurrence of unlawful sexual acts around the house. She alleged the accused touched her breasts and bottom around the house on an almost daily basis. However, when she first complained about the accused’s conduct, she did not mention this aspect at all. Despite her explanation that she was in shock at the time she first spoke to the police, it is odd that she failed to mention something that she alleges had been happening almost all the time. In his interview, the accused said he may have accidentally touched her breasts when fooling around or dancing. The complainant’s mother gave evidence she saw the accused slap the complainant on the bottom like in a game[37], although she had never previously mentioned to the police that she had witnessed such conduct. I am concerned the complainant may have been making more of this in her own mind than was the case. In light of what I have found to be the accused’s immaturity regarding sexual behaviour and boundaries generally, that is understandable on her part. I am unable to exclude as a reasonable possibility the accused inadvertently touched her breasts when he was ‘fooling around’.
[37] T224
The complainant’s evidence was that the accused would yell out from the bedroom for him to go there and give him a kiss[38]. She was not sure if her mother was home, but her brothers were home. The complainant’s mother gave evidence there were many times the accused called the complainant and told her to sit on his lap, to hug him, to give him a kiss, to touch his face. The complainant’s mother told him many times that they have two sons and why didn’t he want to hug them as they also need both parents. He said ‘love to daughter is different than to boys’[39]. It is possible the occasions the complainant described were in addition to the occasions described by her mother, that is, the accused calling out for the complainant to give him a kiss. It is possible he kissed her inappropriately on the occasions he called out to her and her mother was present elsewhere in the house. However, again, the fact he engaged in the behaviour of calling for a kiss in front of the complainant’s mother tends to detract from the account given by the complainant when considered in the context of his other immature behaviour. She did not mention the kissing when she initially complained to the police. She gave an explanation that she thought it was normal, however, she agreed in cross-examination that she knew it was not normal because she claims to have said as much to the accused at the time about the kissing[40].
[38] T186
[39] T203
[40] T172
One of the troubling aspects of the complainant’s evidence about the touching in the bed is that she continued to sleep in the same bed with the accused. There was no suggestion she was being coerced to sleep in the accused’s bed. She had her own bed in her own bedroom. Apart from the occasions when two guests were staying, she had a choice. There was one occasion when she took her quilt back to her own bed, which demonstrates she was capable of choosing to sleep elsewhere, regardless of hot or cold temperatures. Further, one of her brothers brought his own mattress into the bedroom to sleep on. She agreed she did not do that[41], but gave no explanation about why not.
[41] T156
On the totality of the evidence, I am unable to exclude the possibility that some touching in the bed may have been accidental or occurred when the accused was asleep. The complainant’s mother gave evidence about a time she observed the accused lying close to the complainant and touching her around her rib/breast area when he was asleep. She had to shake the accused awake[42].
[42] T229
I am unable to find the unlawful sexual act alleged at (f) on the Information as proved beyond reasonable doubt. The complainant did not see the accused masturbating. Whilst it is possible or probable that the accused was masturbating, I am unable to find that proved to the necessary standard.
The transfer of the accused’s funds by the complainant’s mother and the acceptance of that money by the complainant is troubling mainly because of the way each of them responded in court to questions on the topic. The complainant’s mother did not really answer the question about why she transferred all the money into her teenage daughter’s bank accounts, rather than her own. If the money was intended to be for the benefit of the children (including her sons) as she suggested, it would make sense for any transfer to be into her account. The complainant was unsettled about the topic; initially she denied spending the money but then agreed that she had spent some of it. She said her mother did not really say why she was transferring the money. That is odd and difficult to accept in light of the amount of money transferred to her.
I do not consider the complainant set out on a premeditated and deliberate plan with her mother to lie about the accused’s conduct for financial reward. I do consider she may have felt she was under some pressure from her mother to go to the police and tell them about the accused’s behaviour. The accused’s conduct in relation to talking about masturbation, sending her the ‘funny’ videos, giving her the books, allowing her to sleep in his bed, asking her to remove her bra so he could apply balm to her sunburnt back and trying to remove her towel was all undoubtedly inappropriate on his part. His immature behaviour left him open to the complainant thinking about his conduct in a certain light once her mother told her it was time to go to the police. It is understandable the complainant began to view his behaviour in a sexual way. However, I am unable to exclude the possibility the complainant has (quite justifiably) made more of his behaviour than was in fact the case. The result is that I am unable to be satisfied to the standard of beyond reasonable doubt that the accused committed the unlawful sexual acts as alleged.
I find the accused not guilty.