R v Valiente
[2025] SADC 9
•11 February 2025
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VALIENTE
[2025] SADC 9
Judgment of her Honour Judge Matteo
11 February 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES-INDECENT ASSAULT
The defendant is charged with aggravated indecent assault. The defendant elected to be tried by judge alone.
On the prosecution case, the defendant is alleged to have indecently assaulted his daughter's 13-year old friend during the course of a sleepover by touching her on the area of her upper inner thigh over a blanket while the child was pretending to be asleep.
Held: the prosecution has not excluded as a reasonable possibility that the defendant's touching of the complainant was incidental to an act of moving, fixing or otherwise adjusting the blanket which was covering her.
Verdict: not guilty.
Criminal Law Consolidation Act 1935 (SA) s 56(1), s 57(3); Summary Offences Act 1953 (SA) Part 17 Division 3; Evidence Act 1929 (SA) s 13BA(1), s 13BA(5), s 34M(3), s 34P, s 34P(2)(a),s 34P(2)(b), referred to.
MAK v Police [2008] SASC 342; R v M, RB [2020] SADC 173; The Queen v Trimboli (1979) 21 SASR 577; R v Spencer [2019] SASCFC 70; R v Grills (1910) 11 CLR 400; Mule v The Queen [2005] HCA 49; Nguyen v The Queen [2020] HCA 23; Kane (A Pseudonym) v The King [2024] SASCA 70, considered.
R v VALIENTE
[2025] SADC 9Introduction
The defendant is charged on an information with the offence of aggravated indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The particulars of the offence are as follows:
Particulars
Alvaro Valiente, between the 18th day of January 2023 and the 20th day of January 2023, at Murray Bridge, indecently assaulted [CPMC] by touching her groin.
Circumstances of aggravation
It is further alleged that [CPMC] was under the age of 14 years at the time of the offence.
The defendant pleaded not guilty and elected to be tried by judge alone.
The matter in overview
The complainant, CPMC, was born on 19 October 2009, and was aged 13 at the time of the alleged offence. On the prosecution case, the alleged offence occurred on an occasion when CPMC and her 11-year old sister, MH, slept over at the house of the defendant’s former partner and shared a bedroom with the defendant’s daughter. On the prosecution case, the defendant had been present at the house earlier in the night, and entered the bedroom in which the complainant, her sister and the defendant’s daughter slept. It is alleged that whilst in the bedroom, the defendant touched CPMC’s groin over a blanket which was covering her, and while CPMC pretended to be asleep. On the prosecution case, the defendant’s presence in the bedroom was witnessed by MH, to whom CPMC made an immediate complaint as soon as the defendant left the room.
The following day (or later that day) when CPMC and her sister returned home, CPMC disclosed the matter to her mother, and her mother returned to the house of the defendant’s partner where she confronted the defendant. The defendant denied touching CPMC. On the prosecution case, the defendant subsequently admitted to his former partner that he had gone into the bedroom to check on the children.
The prosecution tendered audio-visual recordings of out-of-court interviews conducted with CPMC and MH, both of whom gave further evidence and were cross-examined. The prosecution also called the mother of CPMC and MH, RC, and the defendant’s former partner, Cherise Valiente, and presented a number of agreed facts.[1] The defendant presented one agreed fact.[2]
[1] Exhibit P10 – Agreed Facts.
[2] Exhibit D11 – Agreed Fact.
The issues in the case are whether the touching as alleged by CPMC occurred and, if so, whether it occurred in circumstances of indecency.
Principles of law to be applied
The defendant is presumed to be innocent of the offence. The defendant bears no onus. The prosecution bears the onus of proving the guilt of the defendant beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the defendant is possibly or probably guilty. The prosecution must exclude as a reasonable possibility any matter raised by or on behalf of the defendant which might affect proof of the charge.
I am to bring an open and unprejudiced mind to my consideration of the evidence and the ultimate question of whether the charge is proved by the prosecution beyond reasonable doubt. I am to consider the evidence and arrive at a verdict without sympathy for, or prejudice against, any party involved in the proceedings.
In assessing the evidence given by witnesses in the trial, I am to consider both their truthfulness and their reliability in determining whether I can rely upon the evidence given. I may also consider how the evidence of a witness fits with other evidence I find proved. I may accept or reject all or part of a witness’s evidence.
In respect of the witnesses who gave evidence with special arrangements in place, I did not allow those arrangements to influence the weight that I gave to the evidence of those witnesses, nor did I draw any adverse inference against the defendant from the fact that those arrangement were in place.
I draw no inference against the defendant for exercising his right to remain silent at trial. I do not treat the defendant’s silence as constituting any admission or as a makeweight for the prosecution’s evidence.
I shall indicate further specific principles of law which I am to consider and apply in the course of my consideration of the evidence.
Elements of the offence
In order to prove the defendant’s guilt of the offence of aggravated indecent assault, the prosecution must prove each of the following elements of the offence beyond reasonable doubt:
1.The defendant touched CMPC’s groin.
2.The defendant intended to touch CPMC’s groin.
3.CPMC did not consent to the touching.
4.The touching occurred in circumstances of indecency.
5.CPMC was under the age of 14 at the time.
The first and second elements may be amalgamated such that the prosecution must prove that the defendant intentionally touched CPMC’s groin. ‘Groin’ is defined as the fold or hollow where the thigh joins the abdomen (anatomical); the area of the genitals (colloquial).[3] The prosecution’s case is more accurately that the defendant touched CPMC’s upper inner thigh area. For ease of reference, and consistent with the manner in which the trial was conducted, I will use the term ‘groin’ to include the area of the upper inner thigh.
[3] Macquarie Dictionary on line.
No person under the age of seventeen years is capable of consenting to an indecent assault, subject to an exception which is not applicable here.[4]
[4] S 57(3) CLCA.
A touching is indecent if it involves a sexual connotation. I am to determine whether a touching is indecent by reference to prevailing community standards of what is considered to be indecent. I pause to note that it was not advanced on behalf of the defendant that a touching of the kind described by CPMC is not indecent; that is to say that there was no dispute that, if proven, a touching of the groin of a 13-year old girl in the circumstances as alleged by the prosecution is indecent. Nor was there any dispute that CPMC was under 14 years of age at the time of the alleged touching, which would make out the alleged circumstance of aggravation.
The primary issue in contention in the trial, and therefore for my determination, is whether the prosecution has proved beyond reasonable doubt that the defendant intentionally touched CPMC’s groin.
The prosecution case
Evidence of CPMC
The evidence of the complainant, CPMC, comprised of evidence in the form of an audio visual record pursuant to Part 17 Division 3 of the Summary Offences Act 1953 (SA) (SOA) and admitted pursuant to s 13BA(1) of the Evidence Act 1929 (SA) (EA),[5] and further examination and cross-examination with permission given under s 13BA(5).[6]
Audio visual record of interview of CPMC[7]
[5] Ruling 2 April 2024, T16.
[6] Rulings 2 April 2024, T17, 20 and 3 April 2023, T48.
[7] Exhibit P1.
CPMC was interviewed by a police officer, Senior Constable Cooper, on 5 February 2023.
Introductorily, CPMC stated that when she was sleeping at a friend’s house a couple of weeks earlier, she was still awake at 2.00am when her friend’s father came in and “started like touching [her] leg and stuff” because he thought she was asleep. He then started touching her hand, and she could “feel his hands rubbing up and down [her] legs”.
In response to further questioning, CPMC elaborated that her friend’s name was [H], H’s house was at 77 Standen Street, and her mother and H’s mother were friends. CPMC said that H, H’s mother and two younger brothers lived at the house, but that H’s father did not live with them. She said that H’s father would “always visit a few times”. H’s father’s name was Alvaro.
CPMC said that on the day of the incident she had described, H’s father and H had picked her and her sister, MH, up and taken them to the house at about 4.00pm. She said H’s father stayed for a couple of minutes and then left, before coming back later. When H’s father, came back to the house, he hung around in the lounge room with H’s mother and brothers. CPMC said that she, MH and H spent time between H’s bedroom and the outside of the house.
At 9.00pm or 10.00pm the defendant took the three girls to Hungry Jack’s, which they ate when they got back to the house. The three girls then laid in bed in H’s bedroom and played on their phones. The defendant and H’s mother were in H’s mother’s bedroom next door at the time.
CPMC said that H went to sleep at about 12.30am, while she and MH remained awake and on their phones. The bedroom door was closed. The house was quiet. There was some light in the bedroom from a night light.
CPMC drew a plan of the layout of H’s bedroom, inclusive of the positions which the three girls occupied on the bottom of a bunk bed.[8] CPMC occupied the position closest to the door, H occupied the middle position and MH occupied the position closest to the window.
[8] Exhibit P2.
CPMC said that at exactly 2.10am the defendant came into the room. She knew the time because she was awake and on her phone. She said she almost fell asleep but then she woke up. CPMC said she thought that H’s mother had come into the room a couple of times earlier to fix the blankets and check that they were not cold. On the topic of her belief that H’s mother had entered the room earlier, CPMC gave the following answers:[9]
[9] Referable to points indicated in transcript, Exhibit P1A.
Q143. How well could you see the person that came in to fix the blankets?
A: Um, I couldn’t see them because I was closing my eyes.
Q144. Mmhmm.
A: But when they, when I heard her turn around…
Q145. Mmhmm.
A: I could see it was her.
Q146. And you’re saying they came in two times?
A: Yep. I don’t know if it was her both times they might’ve been her just the first.
Q147. Mmhmm so you’re not sure…
A: Yeah.
Q148. But someone came in twice?
A: Yes.
CPMC said that when the defendant came in, he shut the door behind him. CPMC put her phone down. The defendant stood near the door and “just watched [them]” for about a minute. He then came over to the bed and sat on the corner of the bed closest to CPMC’s feet. At that time, the blankets were over her body but not her feet. It was a hot night, and they had the fan on.
CPMC said that the defendant started fixing the blanket and putting it on her feet, and he started touching her feet by rubbing his hands on them. Her feet were on top of each other. The defendant mostly touched the top foot. He touched her feet for roughly 30 seconds. CPMC said that while this was happening, she was “just laying there…and moving intentionally like to get him off [her]”. The interviewer asked, “So flicking?”, to which CPMC agreed. She did this “to get him off just in case like if he thought [she] would wake up he would leave sooner”.
During the foot touching, CPMC said that her eyes were “sort of open”, but she didn’t move her head so she could not see anything. She said she was “just trying to figure out who it was because like [she] wasn’t quite sure but then [she] did figure it out” and she did not want to panic.
CPMC said that the defendant then moved over to her sister and started touching her sister’s leg. She opened her eyes to see where the defendant went and saw him standing there touching her sister’s shin while there was no blanket covering her leg. The defendant stopped and stood in front of the fan for about five minutes, and she could hear him “breathing really heavy”. She said that she could tell where he was going without even seeing.
At this juncture I mention the question and answer at Q218 of the interview, in which the interviewer asked, “How are you feeling?”, to which CPMC replied, “Um, I don’t know nervous kinda.”. Objection was taken by defence counsel to the admissibility of this question and answer on the basis that it is not clearly referable to CPMC’s description of events, as opposed to how she was feeling at the time of the interview. My impression of the passage is that it is most likely referable to the description of events, however, I find myself unable to safely conclude that that is the case given the change in tense by the interviewer and what I interpret as a slight hesitation on the part of CPMC before answering. Accordingly, I have excluded Q218 and the answer from my consideration of the evidence of CPMC’s account, and I have not relied upon it for any purpose.
CPMC said that the defendant came back over to the bed and took up a position standing in front of H, before leaning over and starting to touch her (CPMC’s) legs. The lower part of CPMC was covered by blankets, and the defendant touched her over the blankets on her right side.
CPMC described the touching as follows:[10]
[10] Referable to points indicated in transcript, Exhibit P1A.
Q231. Over. And where can you show me on your legs where he was touching?
A: He started touching here and went down in here. [DEMONSTRATION 1]
Q232. Right. So touching over the blankets?
A: Yes.
Q233. Can you describe the touching how would you describe that?
A: Um…
Q234. What was his hand doing?
A: It was just like firm on my thighs.
Q235. Mmhmm was it moving or standing still?
A: It was moving, it was feeling around.
Q236. Yep and you said so you showed me it was your upper, upper thigh?
A: Yep.
Q237. And where were the blankets when this part was happening?
A: They were covering my legs.
Q238. Mmhmm and what part to you call that like, like he was would you say that was your inner leg up in your groin area?
A: Yeah he went down.
Q239. Yeah?
A: Yeah.
Q240. And what did you feel when his hand went down?
A: Ah, I could just feel him moving his finger trying to get down further but he[11] didn’t because I flicked him off like I just flicked his hand off and moved my hand to cover over the, over my legs.
[11] Transcript Exhibit P1A records ‘I’, whereas I hear ‘he’.
Q241. How were you lying on the bed?
A: I was laying on my side.
Q242. Do you know what side?
A: I was on my left side and my right was on top.
Q243. Mmhmm so the blankets that you have over you can you tell me more about those were they like…
A: We had one fluffy blanket on us.
Q244. How would you describe was it thick or thin?
A: It was thick.
Q245. Mmhmm.
A: It had no cover on it.
Q246. Alright was it one hand or two hands?
A: Just one.
Q247. Just one hand?
A: The other he was leaning on the bed with because I could feel the dip down from my knees.
Q248. So you flicked his hand off?
A: I just moved my hand to flick him.
Q249. Mmhmm and where was your hand when he, when you did that?
A: It was over my legs trying to cover so he wouldn’t move my hand.
Q250. Mmhmm.
A: But then he tried to move my hand.
Q251. And when you, when you said you had covered can you, can you tell me more about where your hands were what were you trying to cover?
A: I was just so I was sleeping like this…
Q252. Mmhmm.
A: My hand was covering there. [DEMONSTRATION 2]
Q253. Across your legs?
A: Yep.
Q254. Okay and was your hand over or under the blankets?
A: Um, wait over.
Q255. And you said he tried to move your hand?
A: Yeah.
Q256. And what happened when he tried to move your hand?
A: He was just feeling my hand and just keep touching my hand for a little bit and then he tried to pull it off but I kept my arm there.
Q257. And what happened then?
A: Then he, then he rubbed down my leg one more time and then just stopped leaning on the bed.
Q258. Which leg was he rubbing down?
A: The exact same leg my right.
Q259. And when you say he rubbed down where did he start from?
A: The, he started from here because I was still covering. [DEMONSTRATION 3]
Q260. Mmhmm.
A: So, he just went down.
Q261. Right so from about your knee?
A: Yeah.
Q262. And again where were the blankets?
A: Still covering my legs.
CPMC said that the defendant watched them a little longer before leaving the room.
CPMC said that at the time she was wearing shorts and a long t-shirt.
The demonstrations made by CPMC as indicated in paragraph [33] involved her making physical movements as follows:
·In demonstration 1 CPMC touched her upper right thigh when saying, “here”, and touched the inner aspect of her upper right thigh when saying, “down here”.
·In demonstration 2 CPMC had her knees together and her right arm across the front of her thighs at an approximately 45-degree angle.
·In demonstration 3 CPMC touched from her right knee down the front of her shin to her ankle.
CPMC said that after the defendant left the room, she and her sister “started talking about where he touched [them]”. They stayed awake and could not get to sleep.
When they woke up (it is unclear whether CPMC went to sleep) the following morning, the defendant was not at the house, however, he did turn up to take them to the mall, before walking to his work. CPMC described activities at the mall, but not the journey there. After the mall, CPMC, MH and H went back to H’s house. CPMC and MH packed their things and walked home.
CPMC said that when she got home, she straight away told her mother “exactly what happened” and “went and showed her”. A few hours later, her mother told her they had to go talk to the defendant’s wife, and they returned to H’s house. The adults were speaking in another language, and she could not hear “the full thing”. Her mother called the police.
CPMC estimated that she had previously slept over at H’s house five or seven times.
Further examination and cross-examination of CPMC
CPMC identified a plan[12] and photographs[13] of the premises at 77 Standen Street, Murray Bridge; the photographs depicted the room which she slept in on the occasion of the sleepover. The photographs, Exhibit P4, also showed the bunk beds and the same mattress that was on the bottom bunk. The mattress was a double bed size mattress on a single size bunk, and it hung off the edge of the bed. She indicated the relative position of the fan on the night.
[12] Exhibit P3.
[13] Exhibit P4.
When asked in further examination how many times she had slept at H’s house, CPMC said it had to be more than 50, and that most of the time she slept in the bedroom shown in P4. She said that prior to the incident involving the defendant touching her, she had last been there for a sleepover the week before. She stayed over frequently around that time. The occasion of the incident involving the defendant touching her was the last time.
As to the alleged second touching by the defendant, that is, where she was touched on the leg and groin area, CPMC said that the defendant touched her for about five minutes. By reference to the answers which she had given in the audio-visual record of interview (at Q231 to A240), CPMC said that the defendant touched those areas, being her inner leg and groin area, for about a minute or two. The discrepancy between about five minutes and a minute or two was not addressed or resolved.
As to the alleged attempt by the defendant to move her hand, by reference to the answer which she had given in the audio-visual record of interview (at A256), CPMC said that the defendant was trying to move her hand for “like a minute. It wasn’t that long.” As to the further touching of her lower leg, the defendant touched her for a minute or two.
The defendant did not say anything while in the room.
CPMC was asked how she knew that the person in the bedroom was the defendant, to which she replied that at one point he turned around and she saw “his figure…an old man’s body shaped, like, and he was short”. It looked nothing like a lady; H’s mother was taller and had more curves than the defendant. When the defendant was trying to move her hand, she could feel wrinkles on his hands, whereas H’s mother’s hands were smooth.
In cross-examination CPMC agreed that her mother and H’s mother were Filipino. CPMC spoke English, not Spanish (she agreed the defendant spoke “a different language” to her). CPMC was aware that the defendant lived in a separate house to H and H’s mother and brothers, but that he would drive them around in his van.
CPMC agreed that on the occasion of the January 2023 (last) sleepover the defendant did not speak to her much. The defendant was quite a bit older than her own father, and he had quite a loud voice when he spoke. She agreed that she was a bit shy of the defendant as an older man.
CPMC agreed that when she stayed over at H’s house, H’s mother encouraged people to use a bucket for toileting at night-time, and that this was a bit unusual and different to what she was used to at her own home. CPMC agreed this made her a bit uncomfortable about staying at H’s house, and further that it made her expect that there were some strange things about that house.
CPMC agreed that her mother and H’s mother were no longer friends, and that had been the case as at the time of the last sleepover.
By reference to her plan of the layout of H’s bedroom, Exhibit P2, CPMC confirmed that she had marked the position where the defendant sat on the bed with an ‘X’ closest to the figure representing herself, which was marked with a ‘C’. Relating that position to the photographs Exhibit P4, photograph 2, CPMC did not agree that a person sitting in the position marked by the ‘X’ would end up on the ground, even though there was no bed under that part of the mattress. CPMC did not agree that she might have made a mistake about that.
CPMC said that she had a mobile phone in January 2023 which she used to play games, look at videos on the internet, make videos and send messages and videos to friends. She played the game Roblox almost all the time. Roblox can be used to create games of different kinds, some with adult characters and some violence. At age 13 she was able to access all rating levels on Roblox.
When it came time for bed on the night of the sleepover, CPMC and her sister were both lying in bed using their phones. They went to bed at around midnight, but did not go to sleep. She spent about two hours using her phone, including playing Roblox and looking at videos. CPMC agreed that looking at a screen for a long time could make her feel tired, particularly in a dark room without much light.
On the occasion of the sleepover, CPMC was in her first year of high school. H was younger, and attending a different school to her. The sleepover was a good opportunity for them to catch up because they had not spent a lot of time together in 2022, and she was excited. Between 4.00pm when she was picked up for the sleepover and 2.00am when she put her phone down, there was a lot going on. CPMC did not agree that she knew that it was going to be difficult for her to sleep that night, even though she was in a different house and sharing a bed with two others. By 2.00am, when someone entered the bedroom, she was tired.
Having had her memory refreshed by reference to her audio-visual record of interview, CPMC agreed that the defendant fixed the blanket on her feet and started touching her feet, and that this made her feel uncomfortable. Specifically, the following exchange occurred in cross-examination:[14]
[14] T79, L5-23 (emphasis added).
Q.[C], the person that fixed the blanket was an old man.
A.Yes.
Q.It was a man who didn't speak much English.
A.Yes.
Q.A man who's not your family.
A.Yes.
Q.And that must have made you feel uncomfortable.
A.Yes, it did.
Q.It’s possible, isn't it, that because you were feeling uncomfortable that you assumed that he touched you in other ways.
A.Yes.
Q.To be clear, it's possible, isn't it, that you have made a mistake about him putting a hand in your groin area.
A.No.
Q. It's possible that you have made a mistake about him rubbing your leg.
A.No.
As to her positioning when she put her phone down to go to sleep, CPMC said that she was curled up while lying on her side, and she was in that position when she felt the blanket being fixed, her leg being rubbed and when there was a hand in her groin area.
Evidence of MH
The evidence of MH, the complainant’s younger sister, comprised of evidence in the form of an audio visual record pursuant to Part 17 Division 3 of the SOA and admitted pursuant to s 13BA(1) of the EA,[15] and further examination and cross-examination with permission given under s 13BA(5).[16]
Audio visual record of interview of MH[17]
[15] Ruling 2 April 2024, T23.
[16] Rulings 2 April 2024, T34-35, 3 April 2023, T49 and 4 April 2023, T106.
[17] Exhibit P5.
MH was interviewed by a police officer, Senior Constable Cooper, on 5 February 2023.
MH was born on 10 March 2011 and was 11 years old at the time of interview.
MH described the occasion when she and her sister went to H’s house for a sleepover. She said that at about 9.00 or 10.00pm they went to Hungry Jack’s; they ate the food and were playing Roblox or watching YouTube. H’s mother told them to go to bed by no later than 1.00am, but they went to bed later than that. H went to sleep at about 2.00am, but MH and CPMC couldn’t sleep. She said they turned off their phones and about five minutes later someone came into the room.
The person who entered the room placed a blanket on her as she had no blanket and started touching her leg before moving over to CPMC. She did not know what the person was doing. The person stood next to the fan for about ten or 20 minutes watching them sleep and heavy breathing. When the person left, CPMC said her name and they “started talking about it”. MH then used her own mobile phone to make recordings in the event that the person returned. MH showed these recordings to the interviewer.
In answer to further questioning, MH stated that when the person initially entered the room and placed the blanket upon her, she thought it was H’s mother. She demonstrated the manner in which the person had touched her leg for about five seconds by moving her hand up and down her right shin to ankle. MH went on to distinguish between the feel of the person’s hands, which she described as “crusty and wrinkly”, and those of H’s mother.
As to MH and CPMC “talking about it”, the prosecution points to aspects of MH’s audio-visual interview as containing evidence of CPMC’s initial complaint of the alleged offence.[18]
[18] S 34M(3) EA.
In summary, MH stated that CPMC told her that:
·She was laying down and the defendant was “touching her around up here”, which MH demonstrated by placing both of her hands between her inner upper thighs with her fingers pointed downwards.
·Then she moved and put her hands “here”, which MH demonstrated with her hands in between the middle of her thighs, and the defendant was lifting up her hands.
·She was under the blanket.
·She tried to move so that the defendant could not “go back closer…where she was”, and she decided that if she put her hand there, he would not be able to do much, but he was trying to move her hand without waking her up.
MH said that the defendant stood next to the fan for about 10, 20 minutes watching them sleep before leaving the room.
MH said that CPMC was really scared and wanted to leave the house through the window to walk home. CPMC was going to cry and wanted to walk home. MH told her no, because H’s mother would worry and probably call the police, so they stayed.
On the topic of other sleepovers at H’s house, MH said that she and her sister had stayed over more than 20 times. MH said that they usually slept in H’s mother’s bedroom, and that the last sleepover was their first time sleeping in H’s bedroom. Prior to the last sleepover, they had last stayed over about four or five months earlier.
MH stated that she and CPMC had stopped staying at H’s house because “they had it’s weird ways” and explained that H’s mother would require them to use a bucket for overnight toileting.
MH said that H’s father was aged “in his sixties or something” and his name started with an ‘A’.
MH’s account of the events of the day after the sleepover was received de bene esse. In particular, that aspect of MH’s account was as follows: the following day, the defendant drove MH, CPMC and H to Hungry Jack’s again. During the car trip, MH said, “It’s a bit creepy if someone comes in your room at 2am and you feel them touching you” (the “creepy” comment). The defendant turned around and looked at them, then continued driving. MH said that she made this comment “to see if it was him” (who had entered the room), and that CPMC got mad at her for saying it. The prosecution sought to rely on this evidence as evidence of an implied admission on the part of the defendant.
Further examination and cross-examination of MH
In further examination MH identified various videos recorded on her mobile phone after the defendant had entered the bedroom,[19] as shown to the interviewer who conducted her audio-visual record of interview.
[19] Exhibit P8.
Exhibit P8 consists of a video recording of four short movie files playing on a mobile phone screen. Each file is of short duration. The first recording shows a purple light, a fluffy bed covering and a child’s hand. The second recording shows the same bed covering, the corner of a pillow, the underside of a top bed bunk and a child’s ear; the audio component includes the words, “lean over me”, but is otherwise indecipherable. The third recording shows MH’s face and an indecipherable whisper is audible. The fourth recording is very dark, showing some indecipherable movement.
MH said that she made the first of the recordings because CPMC told her to “take one just in case he came back in", and the balance of the recordings for the same reason – in case he came back inside.
MH was further examined on the topic of the car trip the following day (which was received de bene esse), by reference to what she had said in her interview. MH said that the car trip occurred in daylight, before she and CPMC went back home. MH was seated in the back seat “more into the boot”, which she explained was a reference to a third row of seats in the vehicle. Also in the car at the time were the defendant, who was driving, CPMC, H, H’s mother and H’s two younger brothers. She described the positioning of each: the three girls were in the third row, while H’s mother and brothers were in the second row. There was no one in the front passenger seat.
When MH made the “creepy” comment, she was facing forwards, though she could not recall if she was facing forwards straight on or to the side. The volume of her voice was normal. MH described the defendant’s action of looking back as follows:[20]
Like when you are driving and you just turn your head to look in the back seat.
[20] T117, L22.
MH firstly said she did not recall where the defendant was looking at the time, then answered in the affirmative to a leading question as to whether he looked at her at the time. She said he looked at her for maybe a couple of seconds. Other than CPMC telling her to shut up, no one else in the car said or did anything in response to MH’s comment. She could not recall if people were talking or if there was any other noise in the car at the time she made the “creepy” comment.
In cross-examination MH agreed that the reason for the trip to Hungry Jack’s on the night of the sleepover was that H wanted that food for dinner. MH said that trip occurred at around 10.00pm.
MH agreed that the defendant spoke Spanish, and that he did not say much on the trip to Hungry Jack’s.
MH agreed that on the night of the sleepover, H’s mother was in her bedroom next door to H’s bedroom when the three girls went to bed.
When the person came into H’s bedroom, MH closed her eyes and pretended to be asleep. She continued to pretend to be asleep the whole time the person was in the room. MH agreed that sometimes things can feel much longer than they really are, and that it was possible the person was in the room for a much shorter time than ten to 20 minutes. MH did not agree that it was possible that the defendant came into the room just long enough to walk up to the bed, pull up the blanket and walk out past the fan in the room.
Evidence of RC
RC is the mother of CPMC and MH.
In January 2023, Charise Valiente lived at Standen Street, Murray Bridge and the defendant lived in Hawke Road, Murray Bridge.
In evidence in chief RC stated that her daughters sometimes had sleepovers with H at Standen Street, starting when CPMC was about seven years old. CPMC and MH had been to Standen Street for a sleepover on 18 January 2023. In evidence which I found to be somewhat confused, RC said that prior to 18 January 2023, her daughters had not slept over at Standen Street for four years because RC and Charise Valiente’s friendship was “falling apart”. RC said that from the age of seven CPMC slept over once a month, but that MH never slept over prior to 18 January 2023.
The 18 January 2023 sleepover took place during the school holidays. RC did not know what time her daughters went to Standen Street or how they got there.
On 19 January 2023, when CPMC and MH came home, CPMC said that she was not going back to Charise’s house anymore. RC subsequently became aware of CPMC’s allegation that the defendant had touched her.
RC gave evidence that that afternoon she went to 77 Standen Street with her daughters and her friend, Maricone. Charise Valiente and her daughter, H, were home at the time. Charise telephoned the defendant, who then arrived at the house.
RC said that she confronted the defendant saying, “Did you swear to your life you didn’t touch my daughter?” The defendant did not say anything straightaway, but after a minute he said, “No.” There was no further conversation between them.
RC reported her daughter’s allegations at the Murray Bridge Police Station about one week later, after her sister-in-law explained the reporting process to her.
As to her confrontation of the defendant on 19 January 2023, in cross-examination RC initially denied that the defendant said that he went to check on the kids. RC accepted that in a statement given to police on 10 February 2024 she said that the defendant had said, “No, I went into the kids room to check on the kids”, and that that had happened.
Evidence of Charise Valiente
Charise Valiente gave evidence with the assistance of an interpreter, though most of her evidence was proffered in English.
Ms Valiente was born in the Philippines and moved to Australia in 2012. She is married to the defendant; however, they are separated and have lived separately since 2013. Following the separation, Ms Valiente has continued to see the defendant regularly. She said that she and the defendant communicated in English, the second language of both of them. The defendant would sometimes drive her and their children around.
In January 2023 Ms Valiente lived at Standen Street, Murray Bridge with her daughter, H, and her two younger sons. The defendant lived in a unit in Hawke Road, Murray Bridge. The defendant never lived in the house at Standen Street, but he would visit often. He would sometimes come over in the evening to spend time with his children. He did not sleep over. Ms Valiente said that the defendant “maybe” had a key to her house, because he would sometimes open the house.
Ms Valiente said that CPMC and MH would often sleep over in the two years prior to the last occasion when they did so, and that they always stayed in H’s bedroom and shared a double bed mattress on the bottom bunk, which she identified in Exhibit P3.
Ms Valiente and RC had fallen out about one year prior to January 2023. During the period of their falling out, CPMC and MH did not sleep over at her house.
CPMC and MH attended a sleepover at Standen Street on 18 January 2023. The defendant came over on that occasion and took the girls to Hungry Jack’s because H called asking him to take her to buy food. This was at nighttime.
Between about 7.00 and 8.00pm the defendant was at the house playing with his sons in the lounge room, before going to Hungry Jack’s. The girls ate the Hungry Jack’s in H’s bedroom. She went into the bedroom at one stage and the girls were playing on their tablets or phones.
Ms Valiente said that she went to bed at her usual holiday bedtime, which was 10.00 to 11.00pm – “maybe like 10”. When she went to bed, her sons were in her bed and the defendant was still at the house. The witness gave extensive evidence in chief on the topic of the defendant’s whereabouts at the time she went to bed, which was difficult to follow. As the evidence is not easily accurately summarised, I shall set it out in full:[21]
[21] T149, L31 – T151, L7 (* not through interpreter).
Q.What happened that evening after you went to your bedroom at 10 p.m.
A.* That time because first we'll go now. That is always said 'I will go now'. I'm just sleeping in my bedroom.
Q.Do you know what time Alvaro told you he was leaving.
A.* May be that is, because I'm sleeping that look like may be 10.30, something like that, yeah.
Q.Did you speak to Alvaro about the girls at all at that time.
A.* Nothing.
Q.Did you see him leave at 10.30.
A.* Yes, because he said to me that 'I will go now', yeah. I wanted to sleep in. So I saw him. He just go up from the door.
Q.You were in your bedroom and you stayed in your bedroom.
A.* Yeah.
Q.Did you hear any noises after 10.30.
A.* Because I'm already, you know, sleeping. Yeah, I'm already sleeping at that time, yeah.
Q.I might repeat the question. Did you hear any noise after 10.30 p.m.
A.* I cannot really, because that time when he said 'I go' I'm already sleeping. Yeah, I'm already sleeping.
Q.Were the two boys in your bedroom at that time at 10.30.
A.* Yes, yes.
Q.Were they asleep or awake at 10.30.
A.* Sleeping.
Q.The boys normally slept in your bedroom.
A.* Yes.
Q.Did they sometimes wake up during the night.
A.* No. No.
Q.I am not talking about 18 January 2023. I mean any time would the boys sometimes wake up during the night.
A.* Sometime my younger son sometime is very grumpy. Like, he wake up, it is natural for our child, yeah grumpy.
Q.But that night did either of your sons wake up during the evening at all to your knowledge.
A.* No, they are sleeping.
Q.When was the next time that you saw Alvaro -
HER HONOUR: Before you go on.
HER HONOUR
Q.You said to me that you saw Alvaro just go out from the door. What did you see.
A.* Yeah, he just go. He said' I will go home now'. 'I will go home now'.
Q.Where was Alvaro when he said that.
A.* Still in my bed. Still in my bed and he said 'I go home now'. I said 'Okay', yeah.
Q.Did you see him leave your bedroom.
A.* Yes, yeah I saw.
Q.Did you see him again that night.
A.* No, no. When he said he leave he leave, yeah.
Ms Valiente said that at 8.00am the following morning she telephoned the defendant to ask him to drive them to the food bank and Hungry Jack’s, which he did. Regarding that car trip, Ms Valiente said that the persons who went were the defendant, herself, her three children and CPMC. MH did not go with them. She said that MH had telephoned her father to pick her up, which he did before they left for the food bank. Ms Valiente did not recall any conversations in the car that morning.
Ms Valiente said that after they got home, CPMC telephoned her father to come and pick her up, and then left the house.
Later that afternoon, RC came to the house and made her aware of an allegation involving the defendant and CPMC. Ms Valiente then telephoned the defendant and asked him to come to the house.
Ms Valiente said that when the defendant came to the house, RC was very angry. She said that RC held up her middle finger to the defendant, swore at him and said some variation of, “Alvaro, you molested my daughter” or “child”. The defendant responded, “I did not do anything to your child.” RC and her friend, Maricone, left soon thereafter.
Ms Valiente gave evidence that while the defendant was still at her house, she then had a conversation with him in which she asked him what was happening. The defendant said, “I did not do anything.” Ms Valiente gave the following evidence of what the defendant said next:[22]
… Alvaro said to me that that time he go in, he said that he go, go in the room, and he checked the kids. He checked the kids, if they are sleeping. If they are sleeping, and he like, you know the, the legs, the legs, after that he, he lift up the blanket (INDICATES).
[22] T156, L5-10.
The witness demonstrated the defendant’s demonstration made that at that time by using her right hand to tap her left upper leg above her knee.
The witness’s evidence in chief on this topic continued as follows:[23]
Q.Did Alvaro say anything about the legs, or what words were used.
A.* He just said to me that he looked at the legs if they are sleeping and he covered the blanket.
Q.Sorry Ms Valiente, I want to be really clear.
A.* Yes, yeah.
Q.Exactly what words were said at that time in that conversation.
A.* At that time he said to me that he, he go to their room, he checked the girl, if the girls is sleeping, and he, he like that the legs, if they are sleeping, and he covered the blanket (INDICATES).
[23] T157, L2-13 (* not through interpreter).
In cross-examination, Ms Valiente agreed that the defendant had returned his key to Standen Street to her before January 2023. She confirmed that she had a bucket in her bedroom for toileting because the bathroom was far away at the back of the house.
Ms Valiente agreed that on the occasions when the defendant would visit he would stay until their sons had fallen asleep, and that the defendant would sometimes fall asleep in the bed which she shared with her sons, before getting up and returning to his own home. She said that on the night of the sleepover, the defendant lay in her bed and told her that he wanted to go. She confirmed that she was sleeping when the defendant said that. When asked whether it was possible that the defendant said he was going home closer to 2.00am, Ms Valiente said that she did not really know because she was already sleeping. In a later answer she said that it was 10.00 to 11.00pm because she was “already sleeping”. She did not look at the time when she woke up. The witness’s final answer in cross-examination acknowledged that she could not be sure what time the defendant said he was leaving.
All told, the witness’s evidence on the topic of the time when the defendant stated that he was going home was confusing and unclear. I infer from the fact that the witness said she was sleeping when the defendant left and that she telephoned him at 8:00 am the following morning that she woke in daylight hours. I am satisfied that at some time after the witness went to bed and to sleep, the defendant told her that he was going home, however, I am unable to say when, in between her retiring to bed between 10.00/11.00pm and waking in daylight the following morning, that occurred.
Agreed facts
The agreed facts covered formal matters including the complainant’s date of birth, and details pertaining to exhibits and addresses.
It was an agreed fact on the defence case that the defendant’s criminal history comprises of driving unregistered in 1999 and 2007.[24]
[24] Exhibit D11.
The defence did not lead any other evidence to demonstrate that the defendant is a person of good character.
The proposition that a mere absence of prior convictions is evidence of good character is open to doubt.[25] Acknowledging the competing position that an absence of (in this case, significant) prior convictions may stand as evidence of good character, I will bear the agreed fact in mind in evaluating the defendant’s denials and in assessing the probability of the defendant committing the offence of indecent assault.[26] In respect of both considerations, I ascribe some but little weight to the evidence of an absence of (significant) prior convictions.
[25] MAK v Police [2008] SASC 342, [27]-[28] (Kourakis CJ); R v M, RB [2020] SADC 173, [68] (Kimber DCJ, as he was).
[26] The Queen v Trimboli (1979) 21 SASR 577.
Discreditable conduct evidence
The Director of Public Prosecutions filed a notice of intention to adduce discreditable conduct evidence,[27] described as ‘uncharged conduct of the defendant touching [MH] on the leg, at a time contemporaneous to the charged offending’ for what was said to be a permissible use that relies on a particular propensity or disposition of the defendant, namely, that ‘the defendant had an interest in his daughter’s friends’, making it more likely that he indecently assaulted CPMC.
[27] Notice of intention to adduce discreditable conduct evidence per s34P(4) EA, filed 20 October 2023.
I declined to admit the evidence for a use that relies on a particular propensity of the defendant pursuant to s 34P(2)(b) of the EA as I considered the evidence of the touching of MH’s leg was incapable of establishing a particular propensity or disposition on the part of the defendant.[28]
[28] Ruling 12 April 2024, T189.
Both parties proceeded on the basis that the evidence of the touching of MH’s leg was discreditable conduct evidence and, therefore, that the question of its admissibility was governed by s 34P of the EA. The prosecution advanced that the evidence was admissible pursuant to s 34P(2)(a) for permissible uses which did not rely on any propensity on the part of the defendant, those uses being to establish the identity of the defendant as the person who entered the bedroom at the relevant time, to complete the narrative as to the defendant’s actions within the bedroom, to rebut any suggestion of accidental touching of CPMC and to support an inference that the defendant was “testing the waters”, as the prosecution put it, by ascertaining whether the children in the room were asleep and whether any reaction might be forthcoming before touching CPMC. An act of “testing the waters”, the prosecution submitted, was capable of rebutting any suggestion of accidental touching of CPMC and of bearing upon whether any touching of CPMC occurred in circumstances of indecency.
I am not convinced that the touching of MH’s leg constitutes evidence of discreditable conduct.
In Kane (A Pseudonym) v The King [2024] SASCA 70, Doyle JA observed that discreditable conduct is not limited to conduct which constitutes a criminal offence, and that it connotes conduct which is wrongful or morally repugnant in some way, such that it reflects poorly upon the defendant (and is of a level of seriousness or consequence that it might cause a jury to engage in impermissible reasoning).[29]
[29] At [50].
In my view, the touching of a sleeping 11-year old girl on the shin and ankle by a known adult who is in a supervisory or care-giving position in relation to the child, occurring in isolation, is not inherently or self-evidently wrong or morally repugnant particularly where, as claimed by MH, that touching is preceded by the adult fixing the bedcovers. Against that, on the evidence of MH, the defendant was not a close adult in her life. The defendant did not reside at the premises. It was the early hours of the morning and MH was one of three female children sleeping (or who were meant to be sleeping) in a bedroom with the door closed. The defendant appears not to have touched his own daughter in any way.
Acknowledging the limited potential for a touching of the kind alleged by MH to be characterised as wrongful and therefore discreditable, I was and am satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant. In so determining, I have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use of the evidence so as to remove any appreciable risk of the evidence being used for that purpose.
I direct myself in the following way with respect to the touching of MH’s leg.
If I accept that the defendant touched MH’s leg (which I do), then I may use that evidence in determining whether the defendant is proved to be the person who was in the bedroom at the time of the alleged touching of CPMC, and to rebut any suggestion of accidental touching of CPMC in the sense that the defendant was capable of, and engaged in, purposeful, willed conduct. I direct myself that these are the only permissible uses of the evidence of the touching of MH’s leg. These are the only ways in which I have used the evidence of the touching of MH’s leg. I have not used the evidence in support of a conclusion that the defendant was “testing the waters”, that is, to support a conclusion that the defendant was in effect checking to see whether MH was awake, or would awaken, as conduct preparatory for an indecent touching of CPMC.
I direct myself that I must not reason that because the defendant touched MH’s leg, he is a bad person or a person of bad character and that he is therefore more likely to commit a crime or more likely to have committed the offence of indecent assault upon CPMC. I must not reason that because the defendant has committed an act of touching of MH that he is therefore the sort of person who commits such acts of touching of young girls and is therefore more likely to have committed the offence against CPMC.
Complaint and distress
Evidence of the making of an initial complaint by CPMC to MH was given only by MH.
This evidence is admissible to inform me as to how CPMC’s allegation first came to light and as evidence of the degree of consistency of conduct of CPMC. Evidence of the degree of consistency of conduct of CPMC may assist me in evaluating the degree of consistency as between CPMC’s allegation and her conduct in making a complaint to her sister when she did and in the terms she did.
This evidence is not admissible as evidence of the truth of what CPMC alleged to her sister, by words or actions or both.
I direct myself that there may be varied reasons why CPMC made a complaint to MH at the time and in the circumstances she did. I am to determine the significance (if any) of the evidence of CPMC’s complaint to MH in the circumstances of this case.
There is a high degree of consistency between CPMC’s account of the touching of her groin by the defendant, and the complaint which she proffered to MH shortly after the defendant left the room. The timing and content of CPMC’s complaint to MH are matters to which I attach significant weight in assessing CPMC’s credibility. The making of a complaint to her younger sister, who she believed to be awake, is entirely consistent with conduct I would expect of a 13-year old girl in CPMC’s situation. The weight of the complaint evidence is not diminished by a lack of evidence of the content of the complaint from CPMC.
It may be inferred from the evidence of MH that after the defendant left the room and in the course of making her initial complaint, CPMC was distressed. I accept that CPMC exhibited distress when speaking to MH by stating that she was scared and wanted to leave.
CPMC’s distress at that time is relevant in my assessment of whether CPMC acted in a consistent manner. I consider that CPMC’s distress, in conjunction with the immediacy and terms of her complaint to MH, supports her credibility. I direct myself that distress on CPMC’s part is not evidence which independently supports her allegation that the defendant touched her groin.
Admission by silence – the “creepy” comment
I turn to the evidence of MH about the making of the “creepy” comment in the car on 19 January 2023. As a preliminary matter I find that there was a car trip on that day in which the defendant drove Charise Valiente, her three children, CPMC and MH to locations which included Hungry Jack’s. I accept the evidence of MH that such a car trip took place involving those persons. I found MH’s evidence on this topic to be clear, consistent and compelling. MH’s evidence about a car trip fitting this description is also broadly supported by the evidence of Charise Valiente. Insofar as Charise Valiente gave evidence that MH was not in the car, I do not accept that aspect of her evidence. I consider that she is likely mistaken in this regard, and I prefer the evidence of MH as to the circumstances of that car trip. Charise Valiente’s evidence that MH had earlier telephoned her father to pick her up struck me as being somewhat vague; moreover, it was devoid of any explanatory detail as to why one sibling would return home while the other would remain in her care. It is an account which is unsupported by, and inconsistent with, the evidence of RC as to the timing and circumstances in which her daughters returned home on that day, and which I accept for its evident memorability to the witness given the disclosure and events which transpired upon her daughters’ return. I am not assisted by the evidence of CPMC on this topic, as her account is limited to being driven to the mall, which may or may not relate to the same occasion. The evidence is unclear.
An accused person’s silence in the face of an accusatory assertion by another may constitute evidence of guilt where the accused person admits the truth of the assertion or otherwise acknowledges the correctness of the assertion.[30] Acknowledgement of the correctness of the assertion may be made “in an infinite variety of ways”:[31]
There may be express and unqualified admission, or there may be a guarded admission, or there may be no direct but merely an implied acknowledgement or there may be conduct, active or passive, positive or negative, from which, having regard to the ordinary workings of human nature, a total denial may be considered by reasonable men to be precluded, because, if innocence existed, an unequivocal or unqualified denial would in such a situation be expected.
[30] R v Grills (1910) 11 CLR 400 at 422 per Isaacs J.
[31] Ibid.
In R v Spencer [2019] SASCFC 70 the Court of Criminal Appeal set out the applicable principles concerning admissions by silence at [35]-[39]. I have had regard to those principles, in particular the following:[32]
[35] An allegation or assertion is not admissible in evidence against an accused person unless the circumstances are such as to leave it open to the jury to conclude that the accused, having heard the statement and having had the opportunity to explain or deny it, and the occasion being one upon which he or she might reasonably be expected to make some observation, explanation or denial, has, by his or her silence or conduct, substantially admitted the truth of the whole or some part of the allegation made. It is not that what is said to an accused can of itself be evidence against an accused, but his response may be if his silence or conduct may amount to an admission of the truth of what was said.
…
[37] Whether an inference can be drawn depends on the coalition of a number of facts. They include questions such as whether the accused heard or received the subject statement, whether he or she understood it and whether the facts contained in the subject statement were within the personal knowledge of the accused.
[38] The next step is whether the circumstances were such that a dissent would, in ordinary experience, have been expected by the accused. …
(emphasis added; footnotes omitted)
[32] R v Spencer [2019] SASCFC 70 at [35]-[39] per the Court (Nicholson, Lovell and Hinton JJ).
The only evidence of the “creepy” comment comes from MH. I am prepared to accept that MH made the comment, and that it was her intention to direct the comment to the defendant. However, I am wholly unable to find as a matter of fact that the defendant heard and understood the comment.
At the time MH made the comment which, on the prosecution case, constituted an accusatory assertion, the defendant was driving a van with three rows of seats carrying six passengers in addition to himself. Five of the passengers in the vehicle were children, aged thirteen and under. MH was in the third row of seats and, therefore, one row of seats removed from the defendant with other passengers in between. The vehicle was moving. MH spoke in English at a normal volume. English is the defendant’s secondary language. To the extent that the defendant turned his head and looked at MH, MH said it was “[l]ike when you are driving and you just turn your head to look in the back seat”.[33] MH did not remember if she could see where the defendant was looking at that time, other than to say, in response to a leading question,[34] that he looked at her. The eliciting of that response by a leading question diminishes the weight which can properly be attributed to it.
[33] T117, L22.
[34] T117, L26.
The evidence does not enable me to find that the defendant heard the “creepy” comment. It follows that I am not satisfied that the defendant’s actions following on from the comment were responsive or referable to it. The prosecution has not established that the defendant made any admission or acknowledgement of offending or entering the bedroom in the course of the car trip on 19 January 2023, and I have not had regard to the evidence on this topic in my consideration of the case against the defendant.
Alternatively, the prosecution advances the “creepy” comment evidence in support of an inference that the defendant’s later denials were pre-prepared with the benefit of being aware of an allegation of inappropriate touching. It follows from my finding about the defendant hearing and understanding the “creepy” comment that the evidence is incapable of bearing this alternate use. I have not used this evidence to diminish the weight to be afforded to the defendant’s denials or exculpatory statements.
Mixed statements by the defendant
I deal now with the evidence of the events at Standen Street on 19 January 2023 when RC attended there after becoming aware of CPMC’s allegations.
Firstly, dealing with the evidence of RC’s confrontation of the defendant, it may be recalled that the defendant made a denial when confronted with an allegation of “touching” or “molesting” RC’s daughter. In cross-examination, RC agreed that the defendant also said, “I went into the kids’ room to check on the kids”.
I direct myself that the accusatory assertion by RC is not evidence of the truth of that which was asserted, and that it is only the defendant’s response which constitutes evidence. The assertion is admissible to properly contextualise the events which followed and to inform the defendant’s state of mind at the time of those events (being the secondary confrontation by Charise Valiente).
The secondary confrontation by Charise Valiente also involved a denial by the defendant of having “do[ne] anything”. On the evidence of Charise Valiente, which I found to be forthright and credible, and which I accept on the topic, the defendant made an admission to entering the bedroom and advanced an exculpatory account, namely that he checked if the girls were sleeping, including by a tapping on the upper leg.
Each of the initial and secondary confrontations involved the defendant making mixed statements admitting to being present in the bedroom (on which the prosecution relies) but denying wrongdoing and advancing an exculpatory account for any touching (on which the defence relies).
All of the defendant’s statements are available for my consideration, but I am not obliged to give the same weight to everything that he said. I may have regard to the fact that the exculpatory statements by the defendant were self-serving, not made on oath and not subject to cross-examination.[35]
[35] Mule v The Queen [2005] HCA 49; Nguyen v The Queen [2020] HCA 23.
The defendant’s exculpatory statements are capable of standing as an innocent or reasonable possible explanation for any touching of CPMC. In this context I remind myself that, in order to establish the guilt of the defendant beyond reasonable doubt, the prosecution must exclude the accused’s denials to RC and Charise Valiente as a reasonable possibility.
Consideration
The evidence of CPMC, MH, RC and Charise Valiente allows me to conclude that on the afternoon/evening of 18 January 2023, CPMC and MH attended a sleepover at Standen Street, Murray Bridge, and that this was the last occasion on which both or either of them attended a sleepover at those premises.
The evidence of CPMC, MH and Charise Valiente further allows me to conclude that on the afternoon and evening of 18 January 2023, the defendant was at Standen Street, Murray Bridge for at least a period of time. During the evening the defendant drove H, CPMC and MH to Hungry Jack’s, and then back to Standen Street. Following the trip to Hungry Jack’s, H, CPMC and MH spent the balance of the evening in H’s bedroom, wherein they shared a double mattress on the bottom bunk of a two-storey single bunk bed. CPMC occupied the position closest to the door, H occupied the position in the middle and MH occupied the position closest to the window (on the opposite side to CPMC). The three girls lay in positions perpendicular to the length of the mattress.
I am unable to determine at what time Charise Valiente went to sleep, nor at what time the defendant indicated to her that he was leaving the house.
I find that at some time around 2.00am on 19 January 2023, the defendant entered the bedroom occupied by H, CPMC and MH. I find that CPMC and MH were awake at the time the defendant entered the bedroom. I am satisfied beyond reasonable doubt that the defendant entered the bedroom based upon an acceptance of the evidence of CPMC and MH, which is mutually supportive, about their observations of the older male person in the room, and from the defendant’s admissions to having entered the bedroom.
I am unable to make a finding about how long the defendant was in the bedroom.
On the evidence of CPMC, aggregating her time estimates, the defendant was in the bedroom for between 91/2 and 141/2 minutes. On CPMC’s evidence the defendant stood at the fan for 5 minutes. On the evidence of MH, the defendant was in the bedroom for a minimum of 10 to 20 minutes, being her estimate of how long he stood at the fan. She conceded in cross-examination that it could have been shorter.
I make allowance for both witnesses being children and, particularly in the case of MH, potentially imprecise with estimates of time. The discrepancy between CPMC and MH as to their estimates of how long the defendant stood at the fan is significant in the context of the episode they describe. Although MH conceded the possibility of a shorter time frame, her initial estimate raises in my mind the risk of both children overestimating time frames in the aftermath of an event which both found to be unusual and uncomfortable at the least. Ultimately, I consider it unlikely that the defendant was in the room for as long as 20 or even 141/2 minutes.
I find that the defendant touched the legs of each of CPMC and MH in some manner. I am unable to determine whether the touching of CPMC or MH was connected to an act or acts of moving, fixing or otherwise adjusting the blanket which was covering them. Specifically, as to the defendant’s touching of CPMC, I am unable to exclude as a reasonable possibility that the touching was incidental to an act of moving, fixing or otherwise adjusting the blanket which was covering her.
I have been required to carefully scrutinise the evidence of CPMC.
I found CPMC to be an impressive witness. Both in her audio-visual record of interview and while answering questions in court she seemed to me to be earnestly concentrating and thoughtful in her responses. I considered that she was doing her best to give truthful evidence.
A central point of my evaluation of CPMC’s evidence about the events in the bedroom is her account of the groin touching which she attributes to the defendant and which, on the prosecution case, constitutes the charged act. In the absence of a clear verbalisation of what that touching consisted of, one is required to piece together CPMC’s statements and demonstrations in the interview to understand her allegation of touching in the area of her upper inner thigh. There is in my view not a clear, unequivocal assertion as to where the touching occurred, by which I mean, where precisely in the area of the upper inner right thigh. The high point in the interview is the words “he started touching here and went down in here” (A231), in conjunction with the demonstration of touching the upper inner right thigh generally. The interviewer purports to summarise that that was CPMC’s “inner leg up in [her] groin area”, to which CPMC agrees. I am not critical of CPMC for not being more specific, however, I am required to assess the detail of her evidence, the intrinsic likelihood of her account and the existence of room for misapprehension.
It is difficult to easily appreciate how touching of that area while CPMC was laying curled up on her left side with a thick, fluffy blanket covering her legs could have been achieved and reliably felt by CPMC.
It is significant in my assessment of CPMC’s reliability in regard to her experiencing, processing and recalling the touching that she described that on her own evidence she had been awake through to the early hours of the morning against the background of an exciting, busy day. She had been in a mostly dark room focussing upon a mobile phone screen and, when the defendant entered the room, she pretended to be asleep. I infer that pretence was to avoid it being discovered that she was still awake and that she must have held some degree of apprehension in that regard. I infer that CPMC did not expect the defendant to enter the bedroom. The defendant was a man who she agreed was old and not a family member, and the house in which she was staying was one which she considered to be strange. I accept as a reasonable possibility, albeit one that is consistent with CPMC’s honesty, that the circumstances of the situation combined so as to place her into a heightened state of arousal and unease.
I have noted above that, in answer to a question in cross-examination about the possibility of her having assumed in her state of discomfort that the defendant had touched her in other ways (other than fixing the blanket), CPMC agreed with that possibility. Whilst she followed that response with a denial of the possibility that she was mistaken about having been touched to the groin (or rubbed on the leg), I did not consider CPMC’s acknowledgement of the possibility of assumption about the touching to have been nullified. Listening to the evidence, I had no reason to doubt that CPMC understood the question about the possibility of assumed touching, and her response struck me as a frank one. To the extent that her answers gave rise to an ambiguity, it was not one which was resolved or qualified. CPMC’s assent to the proposition that she possibly assumed that there was touching other than fixing the blanket causes me to entertain a doubt about whether the touching of her occurred in the area of her groin or inner thigh area.
There is another facet of CPMC’s evidence which I have difficulty accepting, and it relates to the defendant sitting on the corner of the mattress in the relative position as she marked it on exhibit P2 at the time of touching her feet. That position correlates to corner of the mattress which, as shown in photographs 2 and 3 of exhibit P4, hung freely and unsupported over the base of the bottom bunk. Charise Valiente gave evidence, which I accept, that if someone tried to sit on the corner of the mattress it would, in effect, fold downwards. CPMC’s response to the proposition that a person sitting on the corner of the mattress would end up on the ground was to disagree and she did not accept the possibility that she might be mistaken in this regard. That answer, unqualified as it was, gave me the impression that CPMC was slavishly adherent to the narrative which accompanied her drawing of the room plan. That she did not acknowledge the possibility of mistake in the face of a visual contraindicator to her account caused me to have some doubt about the reliability of her account in some of its important detail. It is a doubt about reliability which I also attribute to the circumstances which I have noted, including tiredness, apprehension about being caught still awake and perhaps surprise at the defendant being in the room at all, as opposed to any intent to deceive.
I consider it reasonable that these physical and emotional factors which were operating on CPMC at the time the defendant entered the room continued to operate upon her after he left. And I consider that it reasonably follows that these same factors were operating upon CPMC at the time of making her complaint to MH. I consider it to be reasonably possible that by the time of making a complaint to MH, CPMC had formed a genuine belief that the defendant had behaved in the manner which she went on to allege, however, the reliability of her perception of the conduct which informed that belief was affected by a tired and strong emotional response.
The timing of CPMC’s complaint to MH, which is supported by MH’s action in setting up the mobile phone to record, provides evidence of consistency of conduct in the sense that CPMC made a complaint at a time when it would be expected to be made, that is, almost immediately to her sister who she believed to have been both awake and the herself subject of a touching by the defendant. So too is there consistency in terms of what was complained about, that is, the defendant touching her upper inner thigh and trying to move her hand to achieve that touching. In my assessment, the complaint to MH is supportive of CPMC’s credit insofar as CPMC was raising an alarm as to the fact of a touching by the defendant in the area of her upper inner thigh. It is consistent with CPMC genuinely believing that she had been touched in that area. The complaint evidence is not evidence of the truth of CPMC’s assertion to MH. The complaint evidence does not resolve the doubt I have about the reliability of CPMC’s experience and perception of the location and nature of the touching.
MH did not herself purport to have seen the defendant’s conduct towards CPMC, thus her account does not provide support for the critical issue in the case, that is, what that conduct (or touching) comprised of.
I found MH to be a forthright witness and I considered that in both her audio-visual record of interview and evidence in court she was alert, responsive and honest. I gained the impression, particularly from MH’s interview, that she was disconcerted by the defendant’s conduct in entering the bedroom and touching her and her sister in any manner. MH’s reaction was natural and entirely understandable. Like her sister, MH had had an excitable and long day, and was awake into the early hours focussed upon a mobile phone screen. Like her sister, MH thought the defendant’s family had “weird ways”. As I have said I accept MH’s evidence as to the terms and circumstances of CPMC’s complaint and that this led MH to set up the mobile phone recordings. However, my satisfaction that MH was moved to set up the mobile phone recordings in response to CPMC’s complaint (and the touching of her own leg), cannot logically prove that the defendant touched CPMC’s groin, nor can it support CPMC’s reliability in this critical aspect of her evidence.
The accounts of CPMC and MH are mutually supportive of one another in relation to the circumstances in which the defendant entered the bedroom, and as to him approaching each child and making some adjustment to the blanket which was covering them. However, there is not precision or even general consistency between the evidence of CPMC and MH as to, for example, which child the defendant approached first or how many approaches were made to CPMC. I am unable to reconcile the evidence of CPMC and MH as to the order of events once the defendant entered the bedroom.
As is set out in my summary of the evidence, CPMC’s evidence was that the defendant approached and touched her foot first, then approached and touched MH’s shin, then stood at the fan, then approached and touch her (CPMC’s) inner thigh, then touched her shin. MH’s evidence was that the defendant approached her first to adjust the blanket and touched her shin, before moving to CPMC and then standing at the fan.
Both girls were pretending to be asleep and it is unremarkable that there should be differences of detail in their accounts, including as to the sequence of events. I found both witnesses to be credible. However, given the discrepancies in their accounts as to sequence, I find myself unable to make a finding as to what conduct the defendant engaged in in the bedroom, or in what order, beyond finding that he touched the legs of each of CPMC and MH. I find also that the defendant’s touching of the legs of each of CPMC and MH was connected in time to him making some action with the blanket that was covering them. In these circumstances, the defendant’s act of touching MH’s leg (which I have treated as discreditable conduct evidence) does not ultimately assist me in determining whether the defendant’s touching of CPMC was non-accidental, in the sense of being purposeful and unconnected to an act of adjusting the blanket.
The defendant’s denials in conjunction with his exculpatory assertions of checking to see if the children were sleeping by a tapping on the upper leg are plausible. I am of that view due to the combination of the following pieces of evidence, which I accept:
1.On the evidence of Charise Valiente, the defendant was regularly present at the house and would sometimes stay until his sons had fallen asleep. In those circumstances it is neither inherently suspicious or unusual that the defendant would be at the house in which he did not reside at around 2:00 am. On the day and night of the sleepover, the defendant engaged in activities which involved exercising some level of care and supervision of his daughter, CPMC and MH, including collecting CPMC and MH from their home to drive them to the sleepover and later driving the girls to Hungry Jack’s. On the evidence of MH, the defendant would monitor what electronic content his daughter was exposed to, and what CPMC and MH were viewing.[36] Such conduct is generally consistent with the defendant legitimately and innocently entering the bedroom for the purpose of checking whether the children were asleep.
2.I have found that the defendant told Charise Valiente that the was going home sometime after Charise Valiente retired to bed and before waking in daylight. As a matter of common human experience, a parent is likely to make some gesture of checking on their child or saying goodnight before leaving the place where the child is sleeping. In this respect, I do not accept as persuasive the prosecution suggestion that the defendant may have left the premises at 10:00 or 11:00 pm and returned at 2:00 am. I find it to be a speculative, bare possibility which is contradicted by the evidence that the defendant no longer had a key and involves an improbable stretching of the likelihood that a person in the defendant’s position would go to that effort. I take into account in this regard the absence of any evidence indicative of the defendant planning to commit an offence against CPMC or any evidence of a sexual interest in her.
[36] Exhibit P5A, pp 24-25.
As I am not satisfied beyond reasonable doubt that the defendant intentionally touched CPMC’s groin, it is unnecessary for me to determine whether the touching occurred in circumstances of indecency. Had I have been satisfied that the touching as alleged by CPMC occurred as a result of an intentional act of the defendant to touch her groin, I am inclined to think that it is very likely that I would have found that the touching occurred in circumstances of indecency.
Because of how inherently honest and impressive I found CPMC to be as a witness, I consider that it is possible, and perhaps even probable, that the defendant touched her on the area of her upper inner thigh over the blanket which was covering her at the time. However, as there is a plausible and lingering doubt about that in my mind, and as the law obliges me to give the defendant the benefit of the doubt, I do not find the offence proved beyond reasonable doubt.
My verdict is that the defendant is not guilty.
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