R v Tunbridge - [2017] SADC 77

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TUNBRIDGE
Criminal Trial by Judge Alone
[2017] SADC 77
Reasons for the Verdict of Her Honour Judge Davison
19 July 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
Accused charged with two counts of indecent assault on his stepdaughter alleged to have occurred some 20 years before when she was aged between nine and 13. Issues of motive to lie, forensic disadvantage and general demeanour of complainant discussed.
Verdict: Prosecution failed to discharge its onus of proof. Not guilty on both counts.
Criminal Law Consolidation Act 1935 (SA) s 56; Douglass v The Queen (2012) 86 ALJR 1086, referred to.

R v TUNBRIDGE
[2017] SADC 77

The accused is charged with the following offences on an Information dated 11 July 2017:
First Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter James Tunbridge at Elizabeth East between the 2^nd day of June 1994 and the 18^th day of February 1998, indecently assaulted [ACF] by inserting a finger into her vagina.
Second Count
Statement of Offence
Indecent Assault (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Peter James Tunbridge at Elizabeth East between the 2^nd day of June 1994 and the 18^th day of February 1998, indecently assaulted [ACF] by inserting a finger into her vagina.
The accused elected for trial by Judge alone. This application was granted and I heard the trial without a jury.
General legal directions
The prosecution bears the onus of proving the guilt of the accused at all times. An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt. The accused does not have to prove that he did not commit the offences charged.
The standard of proof is beyond reasonable doubt. The accused cannot be found guilty of the offences unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt. In these reasons if I use the words ‘proved’, ‘established’, or ‘satisfied’, in each case I mean to an extent which excludes a reasonable doubt.
If I am satisfied that there is an explanation consistent with the innocence of the accused or I am unsure where the truth lies, then I must find that the charge has not been proven beyond reasonable doubt, and the accused to be not guilty.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence given by each witness. I can reject or accept all or part of that witness’s evidence.
The accused is charged with two separate counts on the Information. Both counts must be assessed by me separately. Only the evidence that is relevant to the individual count can be considered in determining whether I am satisfied that each element of the offence has been proven beyond reasonable doubt.
The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course which he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness.
I also note that it is not a question of preferring one version over another. My sole task is to determine whether the prosecution has proven the elements of each charge, considered separately, beyond reasonable doubt. If I am unable to say where the truth lies, then it inevitably means the prosecution has failed to prove that charge.
I must bring an open and unprejudiced mind to this case. I must make my decision without sympathy or prejudice, and not be influenced by public opinion in relation to this matter.
ACF gave evidence with special arrangements in place. I must not draw an adverse inference against the accused as a result of these arrangements nor allow them to influence the weight I give to her evidence.
Indecent Assault
There are two elements of the offence of indecent assault. Each must be proven beyond reasonable doubt:
·that the accused assaulted ACF. An assault is the intentional and unlawful application of force or violence to another person. That application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. It must be intentional, so purely unintended or accidental touching would not be sufficient;
·the assault must be accompanied by, or occur in circumstances of, indecency. It is a matter for me to consider whether the behaviour of the accused is proven and could only be described as indecent by reference to reasonable and contemporary standards. I must be satisfied that the conduct had a sexual connotation.
The conduct that was alleged to have occurred in the complainant’s bed is Count 1. The conduct alleged to have occurred in the accused’s bed is Count 2.
Evidence
The complainant
The complainant, ACF, was called to give evidence. She is 33 years old, having been born on 3 June 1984. Her parents separated when she was a young child and her mother subsequently married the accused. She was unsure of her age when her mother met the accused, but thought it was when she was three years old.[1] They later married, and she was a flower girl at their wedding. Her older sister was also in the wedding party.
[1] T 6.
Her first memory is living at a house in Opal Avenue, Paralowie. When she was halfway through Year 4 at primary school, they moved to a house at Balch Court, Elizabeth East. At that house she initially shared a bedroom with her older sister, who then moved out. The accused and her mother shared the main bedroom, and there was also a spare bedroom that was occupied for a short time by the accused’s son. ACF gave evidence that in her bedroom there was a single bed and a television. She marked these on a plan that was tendered.[2]
[2] P1.
The complainant gave evidence that when she was a child, she and the accused got along well together. She said he was not always horrible and described him as being strict, but not nasty.[3]
[3] T 13.
She said that sexual incidents had occurred between her and the accused on more than one occasion, but that she was unable to say which was first in time. Her recollection was that she was aged 10, 11 or 12 at the relevant time and that the family was living at the Balch Court address. She said her sister had moved out of the home by that stage.
The incident that stands out in her mind is when she was in her mother’s bedroom in the bed with her mother, watching television. She described herself as lying with her head towards the foot of the bed watching television while her mother lay at the head of the bed reading a book. Her mother said to her that she would have to go to bed as it was late. She whinged because she did not want to go to bed. The accused came into the bedroom and by that stage, ACF was pretending to be asleep because she wanted to keep watching television. She thought that if she was asleep, her mother would let her stay longer in the bed.
When the accused came into the bedroom, he stumbled because he was drunk and made a lot of noise. He got into the bed next to ACF, pulling the blankets over his head, and then lay on the pillow facing her mother. At that time ACF was wearing a nightie and knickers. The accused then rolled over facing the window and both he and her mother moved down on the bed as if to go to sleep. Within a few moments, he rolled back over and then ACF felt his hand on her bare leg moving towards her knickers on the inside of her knee. She did not react in any way. She then felt him moving his hand towards her knickers and she tried to wriggle towards her mother to get away from him. He then put his fingers through her knickers, and inside her vagina and moved it up and down.[4] She then tried to lift her bottom into the air so that it would be more difficult for him to reach than when she was lying flat. He still had his finger inside her vagina at this time. She then heard her mother say ‘Look Peter how she’s sleeping with her butt in the air’.[5] That is the last thing she remembers about that incident. This is the subject of Count 2.
[4] T 18.
[5] T 19.
ACF then went on to recount another incident that occurred when she was seated in the lounge room with her mother. At that time the accused was seated at the dining table in the chair that he always sat in, facing towards the television in the lounge room. He was drinking draught beer. Her mother left the lounge room to go to bed after giving ACF permission to remain in the lounge room for a short time.
ACF wanted to change the channel so she turned around to ask the accused if she could do so. When she did, she saw him still seated at the dining table facing the lounge room with his pants around his ankles. She could not see his hand, but she could see his arm making an up and down motion. He was naked from the waist down, but she was unable to see his penis. He changed his body position so he was facing her with his legs apart. She turned back and felt scared. She later went into her bedroom.
The next memory is being in the bed, feeling very scared and trying to think of a way to protect herself in case he came into the bedroom.[6] She said she was not allowed to close the doors at home and that the hall light was still on. She had a mosquito net suspended above her bed. She got under the blankets and tucked her blankets in around the bed. She then moved the mosquito net so that the opening that had been on the left-hand side of her bed was now at the foot of the bed, with the openings crossed over. ACF then got under the blankets and later fell asleep.
[6] T 22.
She woke to feel something in her pants. She was half asleep and it took her a couple of moments to realise she was not dreaming, as she could feel something warm and wet. She was startled, so she sat up and screamed ‘Dad’. She saw the accused in the room, kneeling beside her on the floor. He had his hand in her pants and his finger in her vagina, moving it up and down. When she screamed ‘Dad’, he was alarmed, and took his finger out and tried to stand up. Her mother came into the room, walked up to him, grabbed him and said ‘Peter, you silly dickhead, you’ve come to the wrong room. Come to bed’.[7] ACF went on to say that her mother took the accused to bed because he was drunk. This is the subject of Count 1.
[7] T 25.
She recounted another incident that occurred around Mother’s Day. She thought that she was aged between 10 and 12 at this time and the incident happened on a day when her mother had gone to work. She recalled it being about lunch time. She went into the kitchen to get a drink. The accused was sitting in his chair at the dining table, drinking alcohol. His pants were around his ankles and he was naked from the waist down. She saw his arm moving up and down. When she saw this, she felt scared and angry with herself that she had gone out to get a drink. The accused did not say anything to her.
ACF returned to her bedroom and remained there for about one to two hours. Her mother had organised for her to go to the next-door neighbour’s house to make homemade Mother’s Day cards. When she left her bedroom intending to go to the neighbour’s, she saw the accused sitting at the computer. She had to walk towards him to get out of the front door. As she did so, she glanced at the computer and saw a photo or still image on the screen. There was no sound. The photo was of four to five females in white lingerie posing on a bed. The accused said ‘Where are you going, honey?’ She replied ‘Don’t you remember, I need to go next-door because me and Pat are making Mother’s Day cards’. He said ‘Okay, I'll make you a deal. I’ll let you go next-door if you show me what they're showing me’, indicating to the computer. She felt scared and tried to get through the gap between the couch and the chair. She said to him ‘Don’t be silly, Dad’, pushed him on the shoulder and ran through the gap to the front door. She then left the house.
She did not tell anyone about the actions of the accused at the time they were happening. She does not recall any other incidents of a sexual nature occurring with the accused.[8] She reported the incident to the police in April 2015 because she was sick of having nightmares and just woke up one day thinking ‘I need to tell my mum and I need to make him accountable’. She spoke to her mother on the same day that she went to the police.[9]
[8] T 29.
[9] T 31.
She was cross-examined. She agreed that she was not sure how old her sister was when she moved out of home, but by reference to the schools that she had attended at the relevant time, thought she was about 12 or 13. She agreed that her mother and the accused got married in the back garden of the home at Balch Court, but was unsure when the wedding was. She recalled the accused working as a security officer and generally remembered his employment. She said that while they were living at Balch Court, there was a period of time when he was unemployed.
She gave evidence that her mother worked shift work on Saturday and sometimes Sunday. When it was suggested to her that her mother never worked on Sunday, she disagreed with that.
A bundle of photographs was produced to her. She identified most of the photographs, but was uncertain when they had been taken. She confirmed that there had been a holiday on a houseboat on the River Murray and a holiday at a holiday park near Mannum. She gave evidence that when she was at primary school she had had her hair permed, and that when looking at the photographs, this provided something of a guide to her age. She said that she was unable to be specific about her actual age in the photographs because her appearance did not change greatly between the ages of 10 and 12.
A bundle of cards was produced to her. Looking at the cards, ACF said that she did not think she would have written her full name in the cards as she referred to herself by an abbreviated version of her name at all stages. She had no recollection of sending or giving cards with her full name, but identified the cards with the abbreviated name as having come from her. In relation to a card inscribed to ‘Daddy’, ACF said that she would not have written that name in relation to the accused as she did not refer to him in that way.
It was put to her that the incident in the bedroom with both her mother and the accused present did not happen, as there was only one occasion when she had slept in the room, and that was after she had been frightened by the accused’s son. She denied that she had ever been frightened by the accused’s son in the manner described.
The complainant was cross-examined at some length about debts that were owed to her uncle. She agreed that she had borrowed the sum of about $110,000 over a period of time, and that when she reported the incident to the police, much of that debt was still outstanding.
She conceded that her mother made allegations of theft against her in November 2014, and that she had been spoken to by the police in March 2015 regarding these matters.
It was suggested to her that when she went to tell her mother about the allegations of sexual abuse, she had attended with her stepsister. She agreed with that. When it was suggested to her that during the course of this conversation with her mother, she had mentioned victims of crime compensation, she denied making such statements. Further, she denied that she had asked her mother to drop the charges in relation to the theft. She said that she has not applied for criminal injuries compensation and does not plan to.[10]
[10] T 86.
She accepted that she has used methylamphetamine in the past and that she has been diagnosed with a bipolar disorder.
KLC
KLC was called to give evidence. She is the stepdaughter of the complainant’s biological father and lived with him when she was growing up. The complainant and her sister spent every second weekend or so at KLC’s house. She left home when she was about 15 years old and kept in contact, on and off, with the complainant.
In early 2015, KLC had a conversation with the complainant about the accused. Following this conversation, she went with the complainant to the complainant’s mother’s house. She was present when the complainant gave her mother details in relation to the allegations against the accused. She denied that during that conversation, anything was said about victims of crime compensation or the charges that had been laid against the complainant by her mother.
She was cross-examined. She described the atmosphere of that conversation as being highly emotionally charged. Whilst she conceded that it was a possibility that there was a conversation in relation to victims of crime compensation, she said that she does not recall anything like that being said and was pretty sure that there was not.[11]
[11] T 93.
In relation to the demeanour of the complainant’s mother, she said that she was ‘Very - just sort of shut down, she wasn’t having none of it’. She did not want to hear it and was not interested in what the complainant had to say.
Statement Tendered
The statement of PA, the complainant’s uncle, was tendered.[12]
[12] P6.
Agreed Facts
There were a series of agreed facts:
1.[Complainant’s mother] reported an alleged theft committed by [the complainant] upon her on 30 November 2014;
2. [The complainant] was arrested for the above allegation of theft on 26 March 2015;
3. [The complainant] first reported these allegations to police on 23 April 2015;
4. Police charged [the accused] for these allegations on 9 September 2015;
5. The three theft charges against [the complainant] were withdrawn by police on 19 January 2017;
6. The certificate of record accurately records the court dates set out therein.
7.Records from the Craigmore Family Practice show that Dr Innocent Muchenje diagnosed [ACF] with Bipolar in November 2013.
The Accused
The defence called the accused. The accused is 65 years old. He married the complainant’s mother on 1 October 1995 at the home in Elizabeth East. He first got to know her in 1983/84 as she was a friend of his ex-wife. When he commenced the relationship with her, she had two daughters. They moved to an address in Paralowie and remained there for about three years before moving to Elizabeth East. Initially at Paralowie, the accused was working with a security firm, and he then got a job with the Federal Government. Whilst they were living at Elizabeth East, his son lived with them for a very short time, perhaps a couple of weeks.
He looked at the plan P1 that had been drawn by the complainant and agreed generally that that was the layout of the house, but said that at no stage was there a television in the complainant’s room. He further stated that there had been no television in the bedroom that he shared with the complainant’s mother until 2003. He said that at that stage, he was working for a security firm and they got the television through that job. He said it was mounted on the wall.
He agreed that when sitting at the dining table, he was able to watch the television that was in the lounge room. He said that at some stage they had a rear‑projection television, and that he could not have seen the television properly unless the room was darkened. He did not identify the time at which they had a rear-projection television.

He looked at the bundle of photos[13] that had been tendered by the defence. He identified some of the individuals in the photographs, but was uncertain as to the time frame over which they were taken. He said that one was taken on a houseboat. They had had two holidays on a houseboat, and had also stayed at a holiday village at Mannum.
[13] D3.
He was shown the cards, D4. He said he had no recollection of actually receiving the cards, but that ‘they did lots of cards and things like this and bearing in mind also my other kids, they used to do the same, you know, like birthday cards, Christmas cards, Father's Day cards. We got [sic] a whole drawer full of these at home. The wife kept them all’.[14]
[14] T 108.
He was unable to identify the handwriting of the complainant.
He said that he generally referred to the complainant by the shortened version of her name, and it was only when she had done something wrong that he used her full name.[15]
[15] T 109.
In relation to the access arrangements with the complainant’s father, he said that in the early days, the complainant and her sister went to their father’s every week. However, because her father was unable to afford to have them every week, they began visiting every fortnight instead. On the weekends he saw his own children once a fortnight, generally on a Saturday.
He said that his wife worked part-time at the Morphettville races on a Saturday and that at a later stage, she worked at various race meetings around the State and sometimes interstate.[16]
[16] T 115.
He was then led through the chronology of his work history from a CV that he had prepared earlier. At the relevant time in this trial, from 1994 to 2000, he worked for Asset Services and DSTO.
The accused denied any sexual assaults upon the complainant at any stage. He denied masturbating in her presence at any stage. He said that at one stage, he did have a colostomy bag. He thought that that was whilst he was working in the electronics shop, which from the chronology would have been 2000 to 2001. He said it was possible that the complainant had misinterpreted him adjusting the colostomy bag as him masturbating at the table.[17]
[17] T 119.
He denied ever having any photos or videos of women in lingerie on his computer. He said that in those days, that type of computer was not capable of anything like that. He added that there was no internet in their home either.
He recounted an occasion when the complainant slept in the bed with him and her mother. He said that this occurred after his son had frightened her in the middle of the night, and she had then asked whether she could come into the bed. The complainant’s mother asked for his permission, and he said ‘on one condition, she stays at your side of the bed’. By that he meant not between him and the complainant’s mother, but on the other side of her mother. He said that because he does not agree with having children of a young age in the same bed as their parents, and at that stage he did not wear pyjamas.
He was then cross-examined. He agreed that the complainant could have been as young as three when he moved into the family home and said that she started to call him ‘Dad’ straightaway. He said that he thought of her as his own daughter[18] and that she treated him like a father figure, although he had not told her to do so. He agreed that his role as her stepfather had included looking after her if she hurt herself, such as when she cut her finger on a fence.
[18] T 124.
He said that the reason he did not have children sleeping in his bed was because that was the way he was brought up. He went on to volunteer that there were occasions when he was away for work, and his wife would allow the children to sleep in the bed with her. He said there were no occasions when the complainant came into the bedroom or sat on the bed for a while talking to her mother whilst they were in the bedroom. He was firm that he simply disagreed with young children sleeping in bed with their parents.
In relation to a television in the main bedroom, he adamantly denied that there had been a television in the bedroom until he had worked for the RAA sometime in the early 2000s. This included any portable television. He went into some detail as to how he had obtained the television that ultimately ended up on the wall in the bedroom.
In relation to the computer, although he initially said that it was only used by him to access a bulletin board where he would go to download software, games and the like, as that at that stage there was no internet that he could rely upon, he ultimately gave evidence that by the mid-to-late ’90s, he did have a computer that could access the internet. It seems that he has always had an interest in electronics, and his experience in relation to computers appears to have been quite extensive.[19] He denied ever looking at or having images of women wearing underwear on his computer.
[19] T 142.
In relation to the topic of alcohol, he conceded that he was a big drinker at the relevant time, but said that there were no occasions when he would stumble into bed in the manner described by the complainant. He explained that when he had had too much to drink, he would normally go to bed because he had to go to sleep.[20] He said that he started drinking spirits during the time that he went to Woomera, and that is when he was working for Asset Services and DSTO. He denied that there was ever an occasion when he had gone into the wrong room while intoxicated where his wife then had to take him out.
[20] T 145.
Accused’s Wife
The accused’s wife gave evidence. She said that she and the accused married on 1 October 1995. She had two children, the complainant and her sister, from a previous marriage and they lived with the accused and herself. She said that the accused’s son came to live with them for a short time, probably six to eight months, when he was around 12 to 12½. He had been born in 1983.
She said that the complainant’s older sister moved out when she was 13½ years old and that after that, the complainant had the bedroom on her own. The bedroom was then redecorated by the complainant’s mother.
In relation to the bedroom doors, she contradicted the complainant and said because the complainant had tended to be scared of the dark, she had wanted to sleep with a light on. She said that if the light was on in the complainant’s room, then the door should be shut. The accused’s wife said that she always slept with her own bedroom door open, and that she was a very light sleeper who would hear what was going on in the house.
She gave evidence that the complainant went on holidays with her and the accused and that some of the photographs in D3 show these holidays. She went through the photographs and described what they were.
She confirmed that the complainant called the accused ‘Dad’ from very early in the relationship. She denied that the complainant had a television in her bedroom when she lived at the Balch Court address. She also denied that she and the accused had a television in their room at any stage whilst the complainant was living at home.
She gave evidence that there was only one occasion when the complainant slept in her bed, and described this in similar circumstances to that of the accused.
She gave evidence that she had worked on Saturdays for the TAB and that at that stage, race meetings were not held on Sundays.
In respect of the accused’s consumption of alcohol, she said that when he drank excessively on weekends, he might drink half a bottle of spirits and maybe half a dozen beers.[21] She described his behaviour around the house after he had been drinking and said that he vented, but did not yell. She described the way his consumption of alcohol put strain on the relationship and caused arguments between them to the extent that she came ‘pretty close’ to leaving him on a couple of occasions.
[21] T 159.
She said that after the complainant left home, she maintained contact with her. At one stage, she and the accused mortgaged their house to assist with the purchase of a hair salon that the complainant wanted. She was generally aware that the complainant had some financial difficulties.
She said that in November 2013, she was with the complainant when she was diagnosed by the general practitioner with bipolar disorder.
She described a circumstance in November 2014 when the complainant came to her home, and that she thought some items were missing during that visit. She said that she went to the police station to report this incident the next day.
She described the complainant and KLC coming to her place in May 2015 to have a conversation about the accused. She said during that conversation, the complainant mentioned victims of crime compensation, saying ‘When this goes to court I’ll get all this money from Victims of Crime and I’ll take care of you’.[22]
[22] T 165.
In relation to the allegation of theft, she said that the complainant had said to her ‘Mum you better drop the charges against me. It won’t look good for me when I tell you what has happened’. The complainant then went on to say ‘I’m sorry with what I did. I was out to get him. I shouldn’t have taken all your stuff. I can buy it back if you give me time’.[23]
[23] T 166.
She said that after the complainant moved out of home, the complainant’s children came to stay overnight on occasions.
She was cross-examined. She said that she has not had a conversation with the complainant since the allegations of sexual abuse were made. Prior to that time they had had a close relationship, but after her conversation with the complainant, she was in shock and needed to come to terms with what had been said. When she processed what had been said, she thought that it could not have happened in that way. In particular, she referred to the complainant as having told her that one of the incidents had occurred whilst the complainant was in the mother’s bedroom watching Star Trek on television. She said that she realised then that that was not right because there was no television in the bedroom at that time.
She agreed that she had read through the complainant’s statement and explained the circumstances. She was adamant that there was no television in the complainant’s bedroom at any stage. She said that in the master bedroom, prior to the large television on the wall, there had only ever been a very small portable television that had been brought into the room when she had been ill with bronchitis.
She was adamant that the complainant only slept in her mother’s bed when the accused was away for work and when she had been scared in the middle of the night by the accused’s son. She supported the accused’s version of events in relation to why children were not allowed in the bedroom.
When cross-examined about the alcohol consumption of the accused at the relevant time, she said that when things were bad with his drinking, he was argumentative, arrogant and liked to yell.[24] She said he did not really get disoriented, although there were some occasions when he came stumbling to bed.
[24] T 175.
She gave evidence confirming that at the relevant time, they had a next-door neighbour called Pat, and that the children used to go to Pat’s house to make cards.
In relation to the computer, she said that at the relevant time in the mid-90s she was computer illiterate and did not even know where the button was to turn the computer on.
Counsel Addresses
Both counsel addressed. Ms Spencer, for the prosecution, submitted that the complainant had been a reliable and credible witness whose version had not wavered and had been consistent throughout her evidence. She said ACF had given a significant amount of detail in relation to each of the charged counts and the uncharged acts. She submitted that the conduct of the accused, although appearing to be quite brazen, could be explained by the fact that he had consumed alcohol on each of the occasions, and that may have had a disinhibiting effect upon him.
She said that the accused’s version was implausible and that where it contradicted that of the complainant, I should accept that he and his wife had attempted to give evidence that was untrue in order to discredit the complainant.
In respect of the motive to lie, it was submitted that the evidence of KLC supported the evidence of the complainant that at no stage during the conversation with her mother had the issue of victims of crime compensation nor dropping the charges of theft been raised. Ms Spencer said although the complainant did appear to have financial troubles, there is no reason to think that she had lied in order to alleviate these difficulties and that, in all, she had been a credible witness.
Ms Luu addressed on behalf of the defence. She tendered a document headed ‘Chronology’ and also an outline of her address that covered various topics, including what she called inherent improbabilities associated with the allegations. These inherent improbabilities included the good relationship between the complainant and the accused, the description of the mosquito net incident, the events that were said to have occurred in the accused’s bedroom and the physically difficult manoeuvre that was described by the complainant in order to achieve sexual intercourse, and the fact that in later life she allowed her children to stay with the accused and her mother.
She submitted that the evidence of the complainant had been contradicted in respect of when her sister moved out and, importantly, on the presence of the televisions in the various rooms at the premises. In addition to this, the complainant’s evidence had been contradicted as to whether her mother had worked on Sundays.
In support of the submission of a motive for the complainant to lie, she pointed to the debt that was owed to the complainant’s uncle, the use of methylamphetamine that contributed to these financial problems, the repossession of her home in February 2015, the conversation with her mother as recounted by her mother asking her to drop the theft charges, and her going to the police station to report the accused in an attempt to pressure her mother into dropping these charges.
Ms Luu submitted that the accused and his wife had been candid in their evidence and that although he could not remember various dates, the accused had done his best. Where he was uncertain, he had been frank in relation to that. She submitted that his evidence was supported by his wife in material aspects; in particular, the issue of whether there was a television in their bedroom at the relevant time that was central to the allegation being made by the complainant in respect of Count 2.
Motive of the complainant to Lie
In this case, it has been suggested that there is evidence from which I might infer that the complainant has a motive to make false allegations against the accused. There was evidence that she had been in financial difficulties for a number of years prior to the allegations being made. She had, as a result of these difficulties, taken out a loan from her uncle that she had been unable to repay. Allied to this was said to be an addiction to methylamphetamine that had placed her under further financial stress. In evidence, the complainant said that her home had been repossessed as a result of her financial difficulties, which included her addiction to methylamphetamine.
In addition to this, there was an incident that was said to have occurred in November 2014 that resulted in the complainant’s mother reporting her to the police for the offence of theft. The complainant was spoken to by the police in March 2015 and then subsequently reported the allegations of sexual abuse in April 2015.
The motive was said to be a combination of a need or a wish to get money from ‘Victims of Crime’ and an incentive for her mother to drop the charges of theft that had been laid.
In assessing the evidence in this case, I must consider the possibility of a motive for the complainant to lie. A motive for her to lie is clearly relevant to her credibility. However, even if I reject the alleged motive of the complainant to lie, that does not mean that I would necessarily find that she has been truthful. The absence of a motive does not strengthen the prosecution case; it is neutral. Crucially, it is not for the accused to provide a motive for the complainant to lie. At all times, the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.
Forensic Disadvantage
The events in this case are said to have occurred between 1994 and 1998. At that time, the complainant was nine to 13 years old. There was no evidence before me that the accused was aware of these allegations at any time prior to 2015, when the complainant spoke to her mother in relation to them. At that time her mother was, and remains, living with the accused.
I accept that this delay has resulted in a significant forensic disadvantage to the accused. This disadvantage presents itself in challenging and responding to the allegations made in respect of events that were said to have occurred so long ago. Specifically, the disadvantages to the accused are in a clear recollection of what occurred over 20 years ago: whether his wife was working on particular occasions; whether he was alone with the complainant on those occasions; what computer he had at that time; what computer access he had at the time; and an ability to challenge the complainant in respect of her recollections and perhaps call other witnesses who may be able to support his version or discredit the complainant.
When scrutinising the evidence for the prosecution, I will take into account the forensic disadvantages to the accused. I will also take these disadvantages into account when assessing whether the prosecution has proved its case against the accused.
Initial Complaint
There was no evidence led of any complaint made by the complainant. Although it was not led as complaint evidence, I have taken into account that the complainant first spoke to her mother in relation to these allegations in April 2015 and then went directly to the police and reported it.
Uncharged Acts
In this trial I have heard evidence of other acts and conduct allegedly committed by the accused on the complainant. These acts are not the subject of any charges. These acts are said to be, firstly, an incident that occurred around Mother’s Day in a year that was not specified. On that occasion, the complainant was at home alone with the accused. She came out of her bedroom to get a drink from the kitchen. In the kitchen, she saw the accused at the table with his pants around his ankles and his hand making movements suggestive of him masturbating. Thereafter, she saw him on the computer looking at material that in all probability was pornographic material, and in response to her wanting to leave the house to go to her next-door neighbour, he said that she could if she performed the acts displayed on the computer.
Secondly, it is alleged that prior to the conduct that is the subject of the first count on the Information, the complainant was in the lounge room and turned towards the accused, who was seated at the dining table, to observe his pants around his ankles and him making an action as if to masturbate.
These acts are led by the prosecution so that I may understand the way in which it is said that the charged offences came about. Although it is not clear from the evidence what the chronology of these events was, it does tend to explain why the complainant acted in the way that she did on these occasions and why it was that the accused may have been emboldened to act in such a particular way, especially when he had been consuming alcohol. Ultimately, it will be a question for me as to whether I can accept that any of this evidence has been proven to the requisite standard by the prosecution.
I remind myself that the fact that allegations have been made about a number of other events does not absolve me from the task of determining whether an actual charge is made out. Further, it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. The evidence of the uncharged incidents is only admissible to assist me in evaluating the evidence going directly to the charges.
Discussion

The prosecution case in this matter rests solely upon the evidence of the complainant. I must be able to find that she is a credible and reliable witness in order to find the charges proven. Her evidence is, in some respects, supported by the evidence of the accused and her mother, such as that she was living there at the time, that there was a computer, that they had a neighbour called Pat, that she made greeting cards with this neighbour, that the accused consumed excessive amounts of alcohol on occasions, and the set-up of her bedroom generally. However, there are also areas where the defence takes issue with the evidence of the complainant.
I found the complainant to be clear and concise in her description of events. She was very nervous whilst giving evidence, appeared jumpy and became emotional at times, but I was impressed with her level of detail and her ability to differentiate between what she knew from her own memory and what she had been told by others. However, I had a very strong impression that she was reconstructing to a significant extent, rather than remembering events that she was then recounting. This may have been as a result of having repeated these allegations on many occasions prior to giving evidence in court, or because she does not have a complete memory and is attempting to explain her behaviour and that of the accused by reference to some degree of logic.
I was not left with the impression that the complainant was being deceitful, telling lies or being vindictive in relation to the accused or her mother. She was appropriate at all times in the witness box. However, the burden of proof is a high one. I must be satisfied beyond reasonable doubt of her allegations. In some important aspects, her evidence was not supported or explained.
In respect of Count 2, an integral part of her account related to an acceptance that she was in her parents’ bedroom watching television and lying in the bed in the way that she explained. This would only really be possible if there had been a television mounted on the wall in the way that she explains.
Both the accused and his wife gave evidence that although there had been a small portable television in the room at a time that was not specified, they had not had a television of the type described by the complainant until many years after these events were said to have occurred. The explanation given by the accused and his wife about this television does not appear to be unreasonable, exaggerated or untrue.
In addition to this, there was evidence given by the complainant in respect of the computer and a photograph or still image that was displayed on the computer. This was said to have occurred during the charged period, being 1994 to 1998. There was much discussion by the accused in relation to computers and his knowledge of them. Ultimately, he conceded that by 1994 he probably had internet access. However, the evidence was limited to this admission by him. It is not clear from the evidence exactly when it was said that this image was seen by the complainant, other than that it was a time around Mother’s Day. I am left with a feeling of unease in relation to this evidence as to whether the accused had in fact had access to this type of material at this particular time.
There was also evidence given by the complainant that she had a television in her room at the relevant time. The evidence from both her mother and the accused was that there was no such television in there at all whilst she was living in the house.
On the evidence of the complainant, she had what would otherwise (that is, other than the sexual abuse) be described as a normal relationship with the accused. She treated him as a father figure and she appears to have had no particular issues in relation to him. The defence tendered a series of photographs and cards that were said to establish that the complainant was a happy child who presumably loved the accused. As I said during the course of submissions, I regard this evidence as doing no more than supporting the complainant’s evidence that her childhood was otherwise happy. A representation of photographs selected by the accused’s wife to establish that the complainant looked happy as a child aged 10 to 12 does nothing to inform me as to whether she was the victim of sexual abuse.
It is well known that children who have been subjected to sexual abuse often do not complain and must continue to live in the home with the perpetrator. I do not think anybody would suggest that they spend the rest of their lives looking miserable and not smiling in photographs, particularly photographs such as this, when it was said the complainant was on holidays or had caught her first fish.
In the same way, cards[25] sent by a child to her father or stepfather for Father’s Day or a birthday that express love are a very normal part of a child’s life. It goes no way to supporting an assertion that the child was not being sexually abused. It is well known that even children who have been sexually abused over a long period of time can still love the perpetrator of the crimes. Submissions such as this ignore the fact that when a child has not complained, they must continue to live within the family unit and try to behave normally, adding another tragic level to this type of offending.
[25] D4 and D5.
I have considered the evidence that is said to give rise to a motive for the complainant to lie. I find that none of it causes me to find that the complainant has deliberately told untruths. I accept the evidence of the complainant and KLC that at no stage during the complainant’s conversation with her mother in which she disclosed the allegations did she mention compensation or request that the theft charges be dropped. I find that this conversation must have been very confronting and shocking for the complainant’s mother, and that she is mistaken or confused about the exact conversation. It may also be that she hopes to shield her husband in relation to the allegations.
As I said, this case relies upon an acceptance of the evidence of the complainant beyond reasonable doubt in respect of the charged events. These events are said to have occurred many years ago when the complainant was a young child. I find that she is mistaken, or may be mistaken, about some aspects of her evidence. I have little evidence that supports the complainant in any material particular. I must also take into account the forensic disadvantage to the accused.
I cannot find the evidence of the accused to be implausible or untruthful. In other words, I cannot say that it is not ‘reasonably possibly true’.[26]
[26] Douglass v The Queen (2012) 86 ALJR 1086.
I am therefore unable to be satisfied beyond reasonable doubt. It is an exacting standard. I am left with a reservation in relation to the allegations. I must give the benefit of this doubt to the accused.
Conclusion
I therefore find the accused not guilty of both charges.