R v THOMSON - [2013] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v THOMSON
Criminal Trial by Judge Alone
[2013] SADC 148
Judgment of His Honour Judge Barrett
7 November 2013
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - JOINDER - JOINT OR SEPARATE TRIAL - GENERALLY
The accused was charged with one count of indecent assault in respect of the 18 year old daughter of his neighbours and one count of aggravated indecent assault in respect of that girl's 13 year old sister, nine months earlier. The accused applied to sever the two counts.
Held: The two single incidents could not demonstrate a pattern or system of behaviour so as to make the counts cross-admissible notwithstanding that the two alleged acts were almost identical.
Criminal Law Consolidation Act 1935 s 278; Evidence Act 1929 s 34P, referred to.
Hoch v The Queen (1998) 165 CLR 292; R v Liddy (2002) 81 SASR 19; R v M, BJ (2001) 110 SASR 1; R v N, SH [2010] SASCFC 74; R v Maiolo (No 2) [2013] SASCFC 36; R v Sutton (1984) 152 CLR 528; DeJesus v The Queen (1986) 61 ALJR 1; R v McDonald (1979) 21 SASR 198; R v Bolte [2010] SASC 112; Hirst v Police (2006) 95 SASR 206, considered.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The trial proceeded as a judge alone trial involving only the count alleged by the elder girl.
Held: Verdict of not guilty.

R v THOMSON
[2013] SADC 148

The accused is charged on an Information alleging two sexual offences against the daughters of his neighbours. Count 1 charges an aggravated indecent assault between 1 and 31 March 2012 on the younger daughter GA who was 13 at the time. Count 2 charges an indecent assault on about 6 December 2012 on the older daughter RA who was 18 at the time.
On application by the accused, opposed by the prosecution, I severed the two counts and proceeded to hear Count 2 alone. I have adjourned Count 1 to a directions hearing. At the time of delivering my severance ruling I indicated I would include my reasons for the ruling as part of my judgment in respect of Count 2. I now set out those reasons.
Severance Ruling
In considering the application for severance I had regard to the witness statements of the two complainants and the complainant’s two parents which both counsel invited me to read (I would not have otherwise read the witness statements in a judge alone trial).
The facts upon which I made the ruling are as follows. The complainants are the two eldest children in the family which lives next door to the accused. The girls have a younger brother who was about 11 at the time. They live with both parents.
The accused lived next door with his partner and their three children who were younger. Those children were boys aged 7 and 2 and a girl aged 3. The families were reasonably friendly. The children occasionally went into each other’s houses and sometimes the adults did too.
I refer first to the account of the elder daughter, RA, because she was the first to make a complaint. She reported the matter to her mother the morning after the alleged indecent assault. The alleged indecent assault on the younger daughter was said to have taken place some 9 months earlier, but that daughter only told her mother about it when the mother spoke to her after hearing the elder daughter’s report.
The elder daughter, RA, says that on a week day afternoon in December 2012 she was in the family lounge room engrossed in a computer game. Her mother had gone to the airport to collect a friend. Her father was out the front of the house gardening. Her brother was also out the front playing under the sprinkler. Shortly before the incident the complainant said that she was out the front herself and so was the accused. The accused threw a basketball towards her which hit her in the chest. He thought it was funny. She went inside.
While playing on the computer game the complainant said the accused came in and sat on the floor a little behind her. He then put his hand down the front of her pyjama pants. He touched her on the vagina inside her underpants. She froze. She got up to turn the game off. As she did so she realised the accused’s 7 year old son was sitting on the floor about half a metre from where she had been. She went to her room and then to the toilet. Shortly afterwards she sent text messages to a friend interstate telling him about what had happened. He told her to tell her mother. She did so the next day.
As I have said the younger sister’s report was not made until the mother asked her whether the accused had ever done anything inappropriate to her. This was straight after she had heard the elder girl’s report. The younger girl replied that the accused had put his hand in her pants on an occasion when she was over at his house. In her witness statement the younger girl, GA, said that in March of the same year she had been babysitting the neighbour’s children. She had slept overnight. In the morning she was lying on a mattress on the floor. The accused came and lay behind her on the mattress. He reached over and put his hand down the front of her pyjama pants and touched her on the vagina inside her underpants. She got up and went to the toilet.
The prosecution submitted that the two charges should be heard together. The evidence of the complainants was cross-admissible. Applying the test adumbrated by the High Court in Hoch v The Queen (1998) 165 CLR 292, there is about the alleged behaviour of the accused in respect of the two girls an underlying unity, a system or pattern that raises as a matter of commonsense and experience the objective improbability of the girls’ accounts being false (see also the expression “ascertainable unity of intent” used by Gray J in R v Liddy (2002) 81 SASR 19 at 544.
The prosecution pointed to the similarities between the two allegations. The complainants are both female, they are young and they are sisters. They are the accused’s neighbours. The allegations are of opportunistic, almost identical offending. In each case the accused is alleged to have touched them from behind on the vagina underneath their pyjama pants and underpants. The assaults were committed in the home and were brazen in the sense that there was a risk that other family members might be about at the time. Each incident was furtive and relatively brief. The accused had gained the trust of each girl as their neighbour.
The defence highlights the differences between the allegations. The girls are 4 to 5 years apart in age. One incident occurred in March in the accused’s house. The other occurred in the complainant’s house 9 months later. Each was an isolated incident. Two incidents cannot be said to form a pattern or system of behaviour or to have about them an underlying unity. Taking together the differences between the two alleged incidents, and the fact that there are only two of them, there cannot be said to be sufficient probative weight in the evidence of one to make the force of the other improbable.
As Vanstone J observed in R v M, BJ (2001) 110 SASR 1 at [28]:
The sole criterion for admission of the evidence is the strength of its probative force, rather than any judgment that one or more... labels ... is apt to fit it. The degree of probative force required has been described as such that to exclude the evidence would be further “an affront to commonsense”. (References omitted)
Section 34P of the Evidence Act 1929 is relevant to this consideration. While the section is concerned with discreditable conduct other than that charged, that is really what cross-admissibility is concerned with. Is the evidence of one incident admissible in proof of another?
Section 34P(2) read:
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
The prosecution is not seeking to lead the evidence of both counts to establish a particular propensity or disposition of the accused, so sub-s (2)(b) is irrelevant. The evidence must however meet the test laid down in sub-s (2)(a), ie the permissible use, demonstrating pattern or system or underlying unity, must substantially outweigh any prejudicial effect it may have on the accused.
The prosecution’s argument that the two alleged incidents demonstrate a pattern or system, or have about them an underlying unity, is not without force. On the Crown case the accused has sexually interfered with two girls in almost exactly the same way. The girls are sisters. They both live next door. He gains access to them and gains their trust in the same way. He is their neighbour. Members of each household are free to come and go next door. What does it matter that one is 13 and the other 18? What does it matter that the assaults are 9 months apart? What does it matter that one assault takes place in his own house and the other takes place in their house?
The defence answer to these questions is that those differences do matter. They deprive the two incidents of the probative weight that makes them cross-admissible. Two incidents, however similar, cannot make a pattern of behaviour. The dissimilarities complete the disqualification.
Ms Abbey for the accused drew attention to the case of R v N, SH [2010] SASCFC 74 where the Court of Criminal Appeal found that trials involving two complainants were wrongly heard together. In that case the complainants were aunt and niece. The alleged offending occurred years apart, but in respect of each complainant, the offending had been committed over a period of years. The first complainant was 12 to 16 at the time and the second was aged 6 to 8. In that case the accused was charged with persistent sexual abuse of each complainant. There were some features of the alleged behaviour of the accused which were common to both complainants. The offending against each had started with sexual touching, but on the breast of one, and the leg of the other. The accused was alleged to have taken pornographic photographs of each. The accused had full penile/vaginal sexual intercourse with one, but had only on one occasion put his penis on the outer lips of the vagina of the other. There was digital penetration of one but not of the other. For the most part the sexual acts took place in the accused’s house, but in respect of one complainant, acts took place in two other places as well.
The Court of Criminal Appeal concluded that the charges of the two complainants should have been severed. The court said at [54]:
In our view, the similarities between the evidence of V1 and V2 are not such as to have the requisite degree of probative force to make it just to come to the conclusion that it was improbable that V1 and V2 would tell similar stories about the appellant if they were not true. Other than the fact that there was evidence that the appellant photographed each of the victims in indecent circumstances, every other aspect of similarity as argued by the respondent is unremarkable and falls well short of the required probative force to justify cross admissibility.
In R v Maiolo (No 2) [2013] SASCFC 36 the Court of Criminal Appeal considered the question of severance where there were four female complainants, three of whom were sisters. The allegations by each were of a lengthy course of sexual offending by the accused. The court held that the trials involving the three sisters should have been heard together, but separately from the fourth complainant.
While it is not always persuasive to compare the facts of different cases to support an argument, I find that the comparison between the facts in the case of R v N above and this case do militate against joinder. Despite the similarity of the behaviour alleged by each complainant in this case, I am persuaded that the two incidents cannot be said to be probative of a pattern or system or underlying unity justifying cross-admissibility.
Before the trial began I announced that I did not regard the evidence of the two complainants as cross-admissible. I then sought submissions from counsel as to whether the trial of the two could nevertheless be held together.
Section 278(2a) of the Criminal Law Consolidation Act 1935 provides:
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a) subject to paragraph (b), those counts are to be tried together;
(b) the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
That section means that if the evidence of more than one complainant is cross-admissible, the trials should be heard together. That section does not however mandate the converse. It does not require that there be separate trials where there is no cross-admissibility.
However the High Court has held that the general rule is that where there is no cross-admissibility, particularly in the case of sexual offences, the trials should be separated (R v Sutton (1984) 152 CLR 528, DeJesus v The Queen (1986) 61 ALJR 1, Hoch v R (1998) 165 CLR 292). I note that all the above authorities concerned jury trials. Even then it is not necessarily the case that trials must be severed. The terms of s 278 (2a)(b) do not require separate trials – “The judge may order a separate trial ...” where there is not cross-admissibility.
The Court of Criminal Appeal allowed for that possibility in R v N, SH above. At [41] the court said in regard to s 278(2a):
The judge may order a separate trial (but does not necessarily have to) if evidence in relation to one count relating to another alleged victim. (emphasis added)
Nevertheless the court said at [44] that it would:
... usually exercise its discretion to order separate trials, particularly in sexual cases.
In R v M, BJ (ibid) Vanstone J pointed at [41] to the appropriateness of not severing where the defence to each count was the same, and is in a sense strengthened where the various counts are heard together. Her Honour referred to the authority of R v McDonald (1979) 21 SASR 198 where the Court of Criminal Appeal held that a joint trial was appropriate, not because the allegations of the several complainants were cross-admissible (although there were similarities), but because the counts were linked by the accused alleged confession.
I know of only one authority which discusses severance in the case of a judge alone trial. In R v Bolte [2010] SASC 112 Gray J dismissed an appeal from convictions of several sexual offences in a judge only trial. The trial involved two complainants who were sisters. It may be that his Honour did not intend to exempt judge alone trials from the general practice referred to above. His Honour may have sought to restrict his remarks to the facts of that case, or to very similar cases.
At the outset of that trial the judge had questioned the appropriateness of proceeding to hear together the evidence of the two complainants. Defence counsel did not oppose that course because it was going to be part of the defence case that there had been concoction between the two complainants. At the end of the trial the judge concluded that the evidence was not cross-admissible and he gave himself appropriate warnings. The Court of Criminal Appeal concluded that it was possible that the evidence was in fact cross-admissible although it did not so decide.
Gray J did observe that the risk of impermissible reasoning in a case involving evidence which was not cross-admissible did not arise in a judge alone trial (see [10] and [15]), however in [14] his Honour may be taken to have limited the effect of his judgment to the facts of the case. While the other members of the court agreed in the result they said nothing about that topic.
Ms Abbey pointed to the result of a Magistrates Court appeal in the case of Hirst v Police (2006) 95 SASR 260. Duggan J, with whom Doyle CJ and White J agreed, held that a magistrate should have severed counts of sexual offences involving different complainants where there was no cross-admissibility. Duggan J did not discuss whether the cross-admissibility question had any different application depending on whether the fact finder was a jury, but I accept that his Honour directed separate trials where there was no cross-admissibility.
I would have entertained full argument on whether I should proceed to hear the evidence of the two complainants together notwithstanding that I was of the view that their proposed evidence was not cross-admissible. It may be that evidence which appears on the papers not to be cross-admissible may appear differently once the evidence has been given. That is in a sense what could have happened in Bolte. On the papers in that trial the trial judge was concerned that the evidence was not cross-admissible. While at the end of the trial he concluded that it was not cross-admissible, the Court of Criminal Appeal concluded it possibly was.
I did not hear full argument on this point because, upon my telling counsel that in my view the proposed evidence of the two complainants was not cross-admissible, the prosecutor, Dr Salu, indicated he would not seek to have the trials heard together. He would proceed only with the trial involving the older sister. That is what happened. The trial proceeded on Count 2 alone. In hearing the trial of Count 2 I put out of my mind the material I have read in the severance hearing.
The Trial
The prosecution called five witnesses – the complainant, both her parents, a DNA expert and the officer in charge of the investigation.
There were six agreed facts. The accused did not give or call evidence. I draw no inference adverse to him on that account. He did answer some police questions. He denied the offending.
Evidence of the complainant
I have already mentioned in broad outline the evidence of the complainant. That outline requires amplification to highlight matters which become important in the assessment of her evidence. The complainant said that she had gone inside her house after the accused had thrown a basketball at her, hitting her in the chest. She had become engrossed in playing a computer game in the lounge. The accused came and sat on the floor next to her but a little behind her. He started talking to her about the game. He then put his hand down the front of her pyjama pants and touched her on the vagina inside her underpants. She said he did that for about 30 seconds. She froze but then stood up and turned off the computer game. Only when she stood up did she notice the accused’s 7 year old son sitting on the floor about half a metre to the right of where she had been sitting. After turning off the computer game the complainant walked over to her bed which was in a room separated from the lounge room by some sort of screen or concertina door. (There was some debate about what, if any, divider there was at the time but I find that there was some sort of divider which was open at all material times.) The complainant said that on the bed she put on earphones and listened to music to block out the accused.

She said the accused then came over to where she was on the bed. He said she was an awesome person. He asked her if she was ticklish and, with that, he proceeded to tickle her in the area of her lower stomach over her clothes. She felt uncomfortable about his presence. She told him to go away and annoy her sister. The accused went off. She went to the toilet and stayed there for an hour or an hour and a half (her father confirms that evening she was in the toilet for a very long time).
In the toilet the complainant went on Facebook to a friend, AM, in Melbourne. The circumstances of her Facebook conversation with AM assume importance in the trial. The complainant said that she estimated the indecent assault by the accused occurred at about 7.30pm. A print out of the Facebook conversation was tendered as Exhibit P3 (a copy with the pages numbered for convenient reference in court is exhibit P3A).
AM was a young man her own age whom she had met before her family moved to South Australia. They had moved to South Australia in late November 2011.[1]
[1] Mother’s evidence T83.
There are six agreed facts which relate to AM and to the Facebook conversation the complainant had with him on 6 December. The agreed facts are as follows:
1. That AM met RA in about December 2011.
2. AM has a long distance relationship with RA in 2012. When it ended they would talk to each other on Facebook messaging and by telephone text message.
3. On Thursday 6 December 2012, AM was at home in Victoria when he received a Facebook message from RA.
4. AM and RA chatted through the evening.
5. AM recalls the date of the Facebook “Chat” as Thursday, 6 December 2012 as the following day he went to the Folk Rhythm Live Festival.
6. That the Facebook “Chat” between AM and RA appears as Exhibit P3.
The Facebook printout, Exhibit P3, suggests that the conversation on 6 December began at 8.05pm. The complainant said that she fixed the time of the indecent assault by the accused by reference to the start time of the conversation. In other words, she says that she started texting AM about 35 minutes after the incident.
There is no dispute that what the complainant told AM is an initial complaint for the purposes of s 34M of the Evidence Act and that what she told her mother the following day was an elaboration of that initial complaint. She told AM[2] that the neighbour had put his hand down her pants. The next day she repeated that complaint, but in answer to the mother’s questions, she added further details. She said that the accused had sat down beside her, that the incident took place in the lounge room and that at the time she was wearing pyjama pants and a singlet top.[3]
[2] Page 2 of Exhibit P3A.
[3] T88-89.
It is not disputed that the complaint was made promptly nor that the evidence of complaint is legally capable of demonstrating consistency of conduct. The complaint was prompt and the terms of the complaint were consistent with the behaviour attested to in court.
What the accused contends is that the circumstances of the complaint to AM cast doubt on the complainant’s motives and state of mind. Ms Abbey submitted that the circumstances of the complaint do not support the case for the prosecution. Instead they support an hypothesis consistent with the accused’s innocence. Of course there is no onus on the accused to prove anything. The prosecution must prove its case beyond reasonable doubt. Ms Abbey suggested that when the circumstances of the complaint are fully analysed, the possibility arises that the complainant was not indecently assaulted by the accused but was falsely claiming that she had been so as to get some emotional sympathy from AM. I repeat that the accused bears no burden of proving this hypothesis, or anything else, but I set out the way in which the hypothesis is developed.
The complainant was 18. She had met AM before moving to Adelaide. The two had carried on a long distance relationship in the year or so since the complainant’s family had moved to South Australia. The relationship had ended. Ms Abbey put to the complainant that AM had ended the relationship. The complainant denied that, but she conceded that AM had decided that the long distance nature of the relationship was too difficult, whereas she would have been prepared to carry it on.[4]
[4] T70.
The complainant acknowledged that a few nights earlier they had had a conversation about which the complainant felt awkward. Exactly what had made her feel awkward was not explored, but the complainant accepted that she was feeling awkward about what she had said. She said she felt in some ways she had “gone too far”, and on 6 December she was being somewhat apologetic for what she had said earlier. I will not relate what the very first message by the complainant was on the night, but it was certainly to that effect. There is then a brief exchange between the two on that topic. Then on page 2 of the transcript the complainant relates the complaint about the indecent assault.
The conversation goes on for almost three further hours. It finished at 10.54 pm
During the balance of the conversation the complainant seeks, and AM gives, support. The complainant says she is scared. She does not know whether the accused is still in the house. She speaks of dying.[5] She said that day “started off shit”. She said that her girlfriend K had tried cheering her up. It is unclear when she had spoken to K or what they had discussed. She said that she chose to contact AM about the assault before K because K could be “a bit immature”. The complainant said that she could not be alone. AM said that he would stay on Facebook to comfort her. She wrote “Shakes” and he wrote back “Hugs” and “Hugs tighter”.
[5] Exhibit P3A p 5-6.
She revisits the topic of the conversation some nights earlier. She said she had “made an idiot out of myself”. AM apologises.[6] She said that she thought she was “over” AM, but added “obviously not”.[7] She said at one stage that she wished she could “freeze this moment” because “hugs are really quite nice...”.[8] Towards the end of the conversation, at about 11 pm, she says “Hugs back really hard and lies on Alex”.[9]
[6]    p 16.
[7]    p 16.
[8]    p 27.
[9]    p 28.
The defence hypothesis is that the complainant was preoccupied with her relationship with AM. He had broken it off. She had not wanted to break it off. The tenor of the long Facebook conversation is that she is anxious to excite AM’s sympathy and his affections. She has used a false claim of indecent assault to excite those responses from him. She begins the conversation talking about the awkwardness of the “going too far” conversation a few nights earlier and dramatises her position to get AM’s sympathy and support. He gives both. The bulk of the conversation is really about the relationship between them. Paradoxically if she has been the recent victim of an indecent assault, she wants to “freeze the moment”. The moment she wants to freeze, according to the hypothesis, is the affection from AM. Throughout the conversation AM tells the complainant that she should tell her parents about what has happened.
The gravamen of this hypothesis was put to the complainant in cross-examination. She denied any falsehood and said that she needed a friend such as AM to confide in. It was put to her that part of her motivation for falsely reporting the assault was to engineer her family’s return to Melbourne where she had more friends and where she was happier (the complainant’s mother agreed in cross-examination that the incident had made the parents consider whether they should leave South Australia and return to Victoria). The complainant denied any such motivation.
It was put to the complainant that she had told the accused about the awkward phone call to AM a few nights beforehand. Ms Abbey put to the complainant that she had told the accused about that phone call when the accused came to her bed after she had left the computer game. The complainant denied telling the accused anything about AM.[10]
[10] T78.
I think it is plain that the complainant did in fact tell the accused something about the awkward conversation with AM. It is not entirely clear when she might have done so, but I think she must have done so. I say that because when the accused was spoken to by the police on 17 December he mentioned such a conversation. In the police car on the way from the accused’s house to the police station, the accused answered police questions. Exhibit P4 is the audiovisual tape and Exhibit P4A is the transcript.
The accused said that at about 7.30 pm on 12 December he was playing basketball out the front of the neighbour’s house. Shortly afterwards he went into the lounge of the house. He sat on the couch and watched the complainant playing a computer game. He said the complainant was sitting on the floor and his 7 year old son was sitting next to her. He said he watched for a couple of minutes and then went outside and then, after playing a bit more basketball, went home.
The police then put the complainant’s allegations to him. He denied the allegations. He was asked if he had any conversation with the complainant while she was on her bed (the conversation about the complainant being ticklish and the allegation about the accused tickling her on the bed were not put to him because the complainant had not told the police about it in her initial statement).
The accused said that he had had a conversation with the complainant while she was on the bed. He said she had told him “how she was texting her friend saying that she hoped she did not make him feel bad”. She mentioned having “gone too far”. This is really esoteric knowledge. I see no way of the accused being able to speak of that conversation unless the complainant had in fact told him about it. She must have told him something of the gist of the conversation she had with AM several nights before. When she told him is less clear. The accused use of the present tense “...she was texting her friend...” suggests she told him while she was actually beginning to have the Facebook conversation with AM on 6 December. In other words she did not begin the Facebook conversation with AM after she fled to the toilet, but she had begun it on her bed and while the accused was nearby. She was on the bed telling the accused about the text she was beginning to send to AM. It is of course possible that she told him at another stage, but it seems more likely that she must have told him while she was on the bed.
The accused’s hypothesis is that the complainant was on the bed texting. The hypothesis goes on to suggest that the accused was in some way annoying to the complainant. She then went to the toilet and made the false report to AM. It is not clear how the complainant at one point finds the accused’s presence annoying, so annoying that she was motivated to make a false report of indecent assault, yet shortly before that, to be confiding in him that she had “gone too far” in an earlier conversation with AM. On the other hand it is not clear how she could be confiding in the accused while on the bed almost immediately after he had indecently assaulted her.
It is conceivable that the complainant told the accused about the earlier conversation sometime before 6 December. That seems unlikely, given that the accused volunteered to the police that it occurred that night, and that appears to be the only occasion when the complainant texted AM talking about the earlier awkward conversation.
I think it is highly likely that as the complainant was either beginning the Facebook conversation, or was about to begin it, when she had the conversation with the accused. I really think that it is more likely that she had already begun the conversation.
The complainant denies confiding in the accused. Dr Salu submits that she has simply forgotten the conversation. She is truthful but mistaken. Ms Abbey submits that the denial is untruthful. There is a plausible reason why the complainant might falsely deny the conversation. The conversation is difficult to reconcile with her having been so recently being indecently assaulted by the accused.
It would be somewhat surprising that she would tell the man who had just indecently assaulted her that she was texting a friend with whom she thought she had gone too far in an awkward earlier conversation.
However it is also somewhat surprising for the complainant to have confided in these terms with her neighbour, then, within moments, made a false report on Facebook of his having indecently assaulted her. I am unable to resolve the question about whether the complainant was mistaken or untruthful when she denied having the conversation with the accused. What I am reasonably sure about is that she did have the conversation with the accused. The similarity between the terms of the complainant’s Facebook conversation with AM on 6 December and the accused’s account of it on 17 December is too great for it to be a coincidence.
It is the fact of that conversation which causes me unease about the complainant’s account of the indecent assault. How could it be that she had such a conversation with a man who had just indecently assaulted her?
I accept that it is dangerous to rely on what might be regarded as stereotypical reactions by victims of sexual offending. The courts have long ago come to understand that it is unwise and dangerous to make assumptions about how victims of sexual offending might respond. People react differently and few can claim to have a comparable experience. Nevertheless I cannot ignore the unease I have mentioned.
There was evidence that the complainant has a distinctive psychological characteristic. Her mother explained that she has been given a diagnosis of Evasive Developmental Disorder Not Otherwise Specified. Apparently the condition is on the autism spectrum. The complainant’s mother explained that for many years no specific diagnosis was attributed to the complainant, but aspects of her behaviour gave rise to parental and then medical attention. The mother explained that the complainant tends to be somewhat reclusive and that at times of stress she becomes flustered and overwhelmed.
I do not consider that evidence assists me in evaluating the complainant’s evidence. I have heard no expert evidence on the topic and the limited evidence of observation by the parents does not help me assess the evidence. The accused told the police that the complainant’s manner was generally somewhat reclusive. I would not be willing to conclude from that that he saw her as an easy target for sexual assault. Equally I would not be willing to conclude that she was more likely on that account to make up false stories.
I have spent some time analysing the evidence of the complainant’s Facebook conversation with AM because in my view it is a striking piece of evidence which is relevant to my assessment of the cases for the prosecution and for the defence.
There are other topics raised by the evidence and by both counsel in their helpful addresses. I discuss them now but I do so in less detail than the Facebook conversation. That is because the other topics are, in my view, less significant in my overall assessment of the evidence and they tend in opposite directions.
Other topics
The prosecution submitted that one factor contributing to the complainant’s credibility is her reporting that when she got up to turn off the computer game she noticed that the accused’s 7 year old son was sitting just half a metre from where she had been. Dr Salu submitted that if the complainant was lying about the indecent assault she would be unlikely to include that fact because the very presence of the child so close where she had been would militate against the assault occurring. I agree that is a factor in support of the complainant’s credibility. Ms Abbey submitted in reply that the complainant may well have known that other witnesses would be in a position to testify that the child was certainly in the house and so it is not so remarkable that the complainant should include that fact in her account. Notwithstanding that reply I think the complainant’s account does gain credibility from the prosecution’s submissions.
Dr Salu emphasised the mother’s evidence where she said that she had noticed that the accused was on occasions playing on the computers with her own children in their house. That suggests perhaps an unhealthy attraction to the children. I do not think that is so strong an argument. Ms Abbey emphasised that the father had not seen the accused ever playing with the children. However it may be that, as events occurred, only the mother was present.
Dr Salu drew attention to the evidence of the father who says that after he moved the gardening equipment from the front yard, where he was working, to the back yard, he went past a window which looked into the lounge room where he could see the accused. The accused flinched when he noticed the complainant’s father outside. I do not think this evidence particularly supports the prosecution case. It is unclear exactly when that incident occurred and the accused might have been surprised seeing the complainant’s father without that being evidence of his guilt.
Ms Abbey noted that when the complainant first gave her statement to the police she did not know which hand the accused had used when he committed the offence but in a later statement she remembered it was the right hand. She said nothing about the tickling incident in her first statement. I do not think these matters adversely affect the credit of the complainant. They are relatively minor matters which the complainant might not have thought of when she first spoke to the police.
Ms Abbey submitted that it was remarkable that the accused should attempt so brazen an offence in the family home of the complainant when members of her family and of his might have come upon them. Unfortunately offences of this sort are committed furtively and quickly when other people might be about. I do not think that is a particularly forceful submission. On the other hand it would be remarkable if the accused were to commit the offence with his son sitting so near to the complainant. It is unclear whether the son might have been preoccupied doing something else or he might not have had a clear view of what was going on. This matter is not unimportant in support of the defence case, but, as against that, it is remarkable that if the complainant was lying, she would admit that the accused’s child was so close.
Ms Abbey submitted that the complainant is unlikely to be reliable when she alleges that the indecent assault lasted for 30 seconds. I do not think that is a significant criticism of the prosecution case. It is notorious that people overestimate the duration of such incidents.
Ms Abbey submitted that it was significant that the accused was so shocked when spoken to by the police. I do not think that is indicative of innocence at all. I think it is neutral.
I should mention that the DNA expert said that there was no discernible DNA of the accused on the clothing of the complainant. I do not think that is remarkable. I think that evidence is neutral, supporting neither case.
In conclusion I find that there is nothing in these topics which very distinctly makes the prosecution case or the defence case more probable. The issue of greater significance to me in the trial is the evidence of the Facebook conversation. I have already discussed that topic. The evidence on that topic leaves me with some unease about the prosecution case. There was nothing about the complainant’s account that is inherently unlikely and there was nothing about her demeanour that would suggest that she was lying or unreliable. But the objective evidence of that conversation and the accused’s mentioning it to the police leave me in a reasonable doubt about the evidence of the offence. While it seems to me unusual that the complainant might confide in the accused about an earlier conversation with AM and then moments later make a false allegation of indecent assault, I am unable to understand how she could have had such a conversation with the accused so very shortly after he indecently assaulted her.

In those circumstances I am left with a reasonable doubt about the prosecution case. I do not find the prosecution case proved beyond reasonable doubt.
Conclusion
I find the accused not guilty of the charge of indecent assault. I dismiss Count 2 on the Information.