R v Vongphakdy - [2004] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v VONGPHAKDY
Judgment of His Honour Judge Muecke
27 July 2004
CRIMINAL LAW
Disputed facts hearing - accused pleaded guilty to three acts of penile/vaginal sexual intercourse on a 9 year old girl - accused disputed certain aggravating features of the offending alleged by the crown - those aggravating features found proved beyond reasonable doubt - accused's evidence that the victim initiated and was a willing and enthusiastic participant in the acts of sexual intercourse rejected.

R v VONGPHAKDY
[2004] SADC 103

A disputed facts hearing was conducted as to certain circumstances surrounding three offences of unlawful sexual intercourse which, by pleas of guilty, the accused admitted that he committed on a person under the age of twelve years between 28 October 2002 and 28 November 2002 at Parafield Gardens. The three acts of unlawful sexual intercourse each involved penile/vaginal intercourse by the accused on K. It is not clear whether K was eight years old or nine years old at the time of the three offences. The record of her interview with a police officer on 8 December 2002 refers to the month of her birth as August or November (Exhibit P1, page 1). A medical report prepared by the Child Protection Services of the Women’s and Children’s Hospital dated 31 December 2002 (Exhibit P3) refers to K’s date of birth as 28 August 1993. I proceed on the basis that K was nine years of age when each of the three offences were committed on her by the accused.
By Information of 3 March 2003 the accused was charged with three counts of unlawful sexual intercourse with K between 28 October 2002 and 28 November 2002 at Parafield Gardens. On 11 June 2003 he pleaded guilty to each count and he was committed for sentence in this court. He was arraigned on 14 July 2003 and he pleaded guilty to each count. The court was informed that there was to be a dispute as to certain aspects of the offending. Disputed facts hearings set for 4 November 2002 and 17 December 2003 did not proceed for one reason or another. A hearing before me ultimately commenced on 21 April 2004. K, her mother Ms B and the accused gave oral evidence at the hearing. Each was cross-examined. I reserved my decision on the matters in dispute on Friday 14 May 2004. There were further brief attendances on 18 and 28 June 2004.
Background to the disputed facts hearing
During some of November 2002 the accused stayed at Ms B’s house at Parafield Gardens. He moved in on Monday 11 November 2002. Ms B and her three children lived in the house with her. At that time K was nine years old. Her brother and her sister were younger than she was. Two boarders, Kelly and Shane, lived in the back shed on the property. They had moved in about a month before the accused moved into the house. During the time the accused was there he slept in the lounge room of the house, although he slept in Ms B’s son’s bed once or twice. When that happened Ms B’s son slept with her.
It is not clear precisely how long the accused stayed at the house. It was probably until late November 2002 or early December 2002. It was no more than two or three weeks in total. The circumstances whereby the accused left the house was the subject of evidence before me. I deal with that later.
After the accused left the house a young girl, Jessica, moved into Ms B’s house to live with her and her children. She had been there for about a week when, on what I find was the evening of 5 December 2002, K and Jessica were talking in Jessica’s room. It was probably about 11pm. K told Jessica that Kaeno had pulled down her pants, pulled down his own pants, and ‘rubbed his, on me’. K had ‘wiggled her finger when she said ‘rubbed his’’. K told Jessica that ‘he was on top of me on the couch and he tried to do stuff to me’. She said Kelly was ‘out the back in the shed’. Jessica said that K ‘didn’t really want to talk about it’. K made Jessica promise that she would not tell K’s mother. (See statement of Jessica, page 2, part Exhibit P6.)
The next morning, 6 December 2002, Jessica told Ms B that K had told her that K had had sex. Jessica told Ms B that K had asked her (Jessica) if it was wrong. Jessica told Ms B that it was with Kano. (‘Kaeno’ and ‘Kano’ were names used to describe the accused.) Ms B immediately spoke to K. She told her daughter that she needed to know if it was the truth. K was crying and she told her mother that she would never lie. She asked K why she hadn’t told her and K said that Kano had threatened to hurt her mother and herself. She also said that she didn’t want to give her mother any more problems to deal with because she thought she might have another breakdown. Ms B went to a neighbour’s house and rang Crisis Care. She took her daughter to the Women’s and Children’s Hospital on the afternoon of 6 December 2002. (See statement of Ms B, page 6, Exhibit P2.)
K was interviewed by a police officer on 8 December 2002. The interview lasted 40 minutes. A transcript of the interview is Exhibit P1. The interview was video taped and the video is Exhibit P1A.
During this interview K said that Kaeno had done something to her. K was asked what Kaeno did. She told police that he had told her to pull down her pants, but she didn’t want to. She was wearing underwear. He then pushed her on the lounge ‘and done it’. Kaeno pulled down her pants himself. He then ‘tried to rub his umm, penis, he like, rubbed his penis down there.’ K told police that she did not know what the part of her body where the accused put his penis is called, but she pointed between her legs. She said that this occurred in the lounge room. Kelly and Shane were at the back at the shed but they couldn’t hear her when she called them, ‘they wouldn’t come’. She didn’t think they could hear her and the accused shut the lounge room door. She was yelling but they wouldn’t come. She thought they were listening to music in the shed. She thought the accused did what he was doing for ‘about 15 minutes’. He then heard a door open. He then stopped and told her not to tell her mother ‘or else I’ll do something’. K said that she had forgotten what the accused ‘told me to say’. When the accused was doing what he was doing to her she felt ‘kind of like, that was a place that I didn’t want anybody to touch’. She said that this occurred around two o’clock ‘or something’ because that was the time her mother usually left for her medicine.
K said that the accused pushed her onto the lounge. She was watching TV after her bath. She said the incident happened about three weeks before she was interviewed by police, around about the time that the accused left the house. It was two or three days before then.
K said that when the accused was rubbing his penis on her he was holding her hand so she couldn’t push him off. Her arms were above her head and he was holding her hands. She thought he stopped because he heard the back door. She said he put his penis in her body. It felt ‘a bit yucky’. It hurt between her legs for a while. It hurt the next day. His penis was kind of hard. She didn’t know whether anything had come out of it.
K told police that the accused had done this three times. He had done it twice in the lounge room and once in her mother’s bed. She said the time before the occasion she had first described was in her mother’s bedroom. The same thing happened. She wouldn’t pull her pants down. The accused did so. She was calling out, and that time she tried kicking the accused off because she knew that Kelly and Shane had left. The accused had pushed her up against her mother’s cupboard and then pushed her back on to the bed and pulled down her pants. She was lying on her back.
K said the first time it happened was in the lounge room. She was reading a book. It was a magazine. It happened in the afternoon because that was when her mother left. The accused had come home and she had let him in the house. She went back to reading her book. The accused pushed her down on the lounge and ‘he’s done the same’. She didn’t know if there was any slimy stuff on any of the three occasions.
K said that Jessica had moved into the house after the accused had left. She had told Jessica about what had happened four days before her interview with police on 8 December 2002.
K was examined at the Women’s and Children’s Hospital in the evening of 6 December 2002. A medical report dated 31 December 2002 (part Exhibit P3) indicates that ‘K was reluctant to talk about the sexual assault during the medical examination (on 6 December) but did state that Kaeno had pushed her onto the lounge, and pulled her pants down. She then did not want to talk any further about the incident.’
A statement of the accused, taken at Yatala Labour Prison on 13 May 2003 and signed by him on 14 July 2003, had been provided to the court on 26 September 2003. It is Exhibit P7 in the disputed facts hearing.
In his statement the accused said: ‘I will plead guilty to having put my penis in the vagina of (K) twice in the lounge and once in the bedroom during the period 28 October to 28 November 2002.’ The statement describes the first occasion as having occurred in the early morning. The accused states that the night before he, K, her sister and her mother slept the night in the mother’s bed. The accused wore jeans to bed that night. K grabbed his jeans where his genitals are. K was hugging him in bed. At some stage in the early hours of the morning he went into the lounge room and slept on the sofa. K came into the lounge at about 7am or 8am. She asked him is she could lie next to him and when the accused agreed K lay down next to him. At her request he gave K a kiss. He asked K ‘You want sex?’. K just smiled. He stated that as K lay on top of him he pulled his jeans down and then pulled her track pants down. When his penis went into her vagina K was lying on top of him. She did not scream. He sat up. He then grabbed K around her hips and put her on top of him. She seemed to enjoy it. At no stage did she indicate that she wanted to stop what was happening or get away from him.
The statement goes on to say that the second occasion occurred after the accused had come home from work about 2pm. K let him in and he went into the lounge. He asked K to get him a drink, which she did. K said she wanted to have a shower, which she did. She appeared a short time later wearing a pink nightie and lipstick. He had not asked for that. K came into the lounge and said to him ‘give me a kiss so you can taste my lipstick’. K and he then had sex on the sofa, which she appeared to enter into with enthusiasm. At first K was on top but later he shifted to be on top of her. At no stage did she scream or indicate any discomfort or pain.
The accused’s statement indicated that the next day K came to him, seemingly with sex on her mind. He suggested that they go into her mother’s room. K was happy to go in there. It was clear they would have sex in her mother’s room. K was always a willing participant.
The accused’s statement indicated that on each occasion he and K had sex he was stoned on one or more of a number of drugs and K came to him and was physically affectionate.
The facts in dispute
It has not always been clear what precisely the dispute was about. It is unnecessary here to set out what was said before other Judges at earlier hearings. When the matter commenced before me Ms Boord, of counsel for the DPP, said that the crown was relying on K’s record of interview of 5 December 2002. She referred to having received the accused’s statement in about May 2003. She said that the main dispute appeared to be as to whether K had instigated sex with the accused, partook in it without any complaint, and on one occasion appeared in a pink nightie and some lipstick instigating sex and then enjoying having sex with the accused.
Mr McKenney, of counsel for the accused, then said that ‘despite the repeated and strident assertions to the contrary by the crown, the defendant has never alleged he was provoked or seduced by the child. He has merely denied the truth of certain aggravating features of the offending as alleged by the crown’. Mr McKenney then specified the kind of aggravating behaviour that is referred to in K’s statement (to police, Exhibit P1). He said:
… It is such things as that she was pushed, in other words physically restrained, and that she called out in distress and that the defendant told her not to tell anyone and made threats or implied threats in doing so. That the defendant was in fact kicked out of the home with the clear implication obviously that the offending might still be going on if he hadn’t been kicked out. Of him holding the child’s hands, of her indicating pain, of him forcibly pulling down her underpants and that she tried to kick him off. That he pushed her against furniture into the bedroom or pushed her into bed.
Mr McKenney submitted that these were aggravating features of the accused’s offending and because they could not be agreed that had led to a disputed facts hearing.
Following the evidence at the disputed facts hearing Ms Boord addressed first. She said:
Just to be plain; as the Crown sees the dispute, there is a dispute on the statements of (K) and her mother (Ms B). The disputes that the defence have raised are that the victim grabbed the accused where his genitals were when they were hugging in the bed and that the victim was hugging him in the bed. It’s further disputed that an act of sexual intercourse then took place after that incident when they were all in the bed. That’s not what the complainant said in her record of interview. She talks about the act of intercourse taking place at a time when her mother is at the chemist.
It’s disputed that during that incident (K) requested that the accused kiss her and that when – I’m going from the statement that has been supplied by defence – the accused asked the complainant ‘You want sex’ she just smiled. There is a dispute on all three counts as to whether or not the victim cried out and tried to get the accused off her. There is a dispute that she was pushed on the couch on two occasions, and on the bed on one occasion. And there is a dispute that she initiated the sexual contact with the accused.
Finally, there is a dispute as to how it was that the accused came to leave the family home; whether he left of his own accord or whether he was kicked out of the home by (Ms B), the girl’s mother.
In his address Mr McKenney said that it was never the defence case that the child initiated sexual conduct. The defence case was
… simply what the defendant has said in the witness box. And he has said that because the facts as put forward by the prosecution were that an aggravating feature of the offending was that this child was grabbed and held down and forced to submit to this sexual conduct. I say that it wouldn’t make sense for the defence to just simply say ‘No, that didn’t happen’ and shut up about it. It only makes sense for them to give what the defence says is the factual alternative to that lie.
The defence stands by, basically, what the accused has said about the touching on the genitals, the hugging and the physical affection.
Mr McKenney submitted that the hearing occurred ‘because there are aggravating features of the offending which the accused says didn’t happen.’
I have already referred to what K told police happened on the three occasions when the accused performed what he has admitted to be acts of sexual intercourse on her. These references included aggravating features of the offending.
In his evidence before me the accused said that he was born in Laos on 4 July 1979. He came to Australia in 1988. He said that he was addicted to heroin, marijuana and speed for a year before he was put in prison on these matters.
The accused said that he stayed at Ms B’s house for two to three weeks. One night while he was there he lay on Ms B’s bed. He was wearing trousers. After half an hour he got up because K was cuddling him. She was touching him in the area of his penis. He left the room to go to sleep on the sofa. In the morning K came to him while he was there. She tried to touch him. He was asked what he meant by that. He replied:
AI mean she have sex in her mind, she come flirting around with me early in the morning. I still was being poisoned by the drug that she put in the drink for me before that night, that’s why I couldn’t sleep for two days in the house. And I ask her to have sex early in the morning and I believe that I not in my own mind. And I also say that we all hear the noise, someone come knocking on the door, I open, I feel like a spirit in the house. That’s what happened. Then things just go wrong. I can’t explain it myself. I only know the truth.
QYou can’t explain it to yourself, did you say.
AYes. Because I was worried that the people thinking that I got mental problem and no-one is going to believe me with what I’ve said. All I can say at that time I’m not in my own mind. That’s all I can say.
(These were the accused’s first answers he gave in English. Thereafter he gave a good part of his evidence in English. I also note here that I understood that the accused was saying that Ms B, not K, had put something in his drink.)
The accused said that K told him she wanted to lie down next to him. He agreed. He said: ‘What happened was we just have sex there in the morning.’ He said K was lying on top of him and on the side. He said that K did not call out, scream, indicate distress in any way, try to get away or escape, or indicate in any way that she wanted him to stop. He said that he did not hold K, or in any way prevent her from leaving. K seemed happy, ‘like telling joke’. The accused agreed that K seemed to think it was funny. The accused said this was the first time that he had sex with K.
He thought the second occasion that he had sex with K was the next day. He came home at one or two o’clock in the afternoon. K opened the door for him. She then got a drink for him. He was sitting on the sofa drinking his drink when K tried to touch him and hold his hand. She tried to cuddle him. She didn’t say anything. He asked her whether she wanted to sleep with him. He said: ‘Then we had sex’. He said: ‘She’s holding my hands and she give me body language that told me that she want to have sex with me and she hold my hands, lead me into her mum’s room and we have sex in her mum’s room, that’s what happened’. It was on the bed in her mother’s room. K did not scream or call out at any stage, or indicate pain or discomfort. He did not grab her or otherwise prevent her from leaving.
On the third occasion he had sex with K he was on the sofa in the afternoon and K put her lipstick on and she asked him if he would ‘give her a kiss, try her lipstick’. He could tell that ‘she really wanted to have sex with me’. This was roughly the next day or the day after the second occasion. On this occasion K was ‘wearing pink, like a sleeping clothes sort of thing’. She did not scream or call out or indicate discomfort or pain of any kind. He did not hold her or otherwise restrict her movements. He did not stop her from leaving.
The accused said that K seemed happy on both the second and third occasions when he had sex with her.
The accused said that over the two or three weeks that he was in the house they felt like a family. He felt that K was part of the family.

The accused said that he used heroin or other drugs nearly every day in the time that he stayed at Ms B’s house.
The accused denied that on any occasion he pushed K into the lounge, or pushed her at all. He said that they had both taken off K’s underpants. He said: ‘I asked her to take it off, then I helped her to take it off’. He said he helped her to take her pants off by pulling them down. She was pulling them down as well. He said he never forced K and she never kicked him or tried to push him away. He denied pushing her against any cupboard or onto a bed. He denied ever threatening her or her mother.
He was asked why he had left the house. He said he realised that what happened with K was wrong and he didn’t feel comfortable to live there. He said that in addition K’s mother accused him of stealing her money. When he was examined further about the circumstances of his leaving the house he described a statement that he said Ms B made to him on the day that he left. She had said to him: ‘you thinking you are not guilty, didn’t you?’. The accused said that that was when it clicked ‘into my head that she been planning all along, and plus the first time that I had sex with her daughter, your Honour, her daughter said I had to stay with her mum forever. I hope you understand your Honour’. He explained:
HIS HONOUR
…
AThat I know that I’ve been poisoned in the drink because – the reason I knew because I can’t sleep two days and a half, first of all, and how can 9 years old girls know how to say things like that, I had to stay with her mum forever. It seems like to me that her mum tell her what to do all along. That’s what I feel. That’s what I think.
QIncluding having sexual intercourse with you.
AYes.
…
QAre you saying that at the time you had sexual intercourse with this 9-year-old girl three times, each time you believed her mother had, in some way, put her up to it.
AYes.
The accused made it clear that his evidence was that K’s mother was aware each time that he slept with her daughter, or she appeared to be aware of that. He believed that K’s mother had somehow encouraged her child to have sex with him.
Under cross-examination by Ms Boord the accused said that when he was having sex with K he was ‘not in my own mind’. He was not in his own mind because he was on drugs, and weak with heroin and cannabis. He said: ‘That’s when the evils can take onto my body.’ He agreed, however, that he was capable of working, of riding his motorbike to work and of talking to people whilst he was on drugs.
The accused said that he didn’t know why he had sex with K, ‘it just happened’. He was asked why it happened. He replied: ‘It was the surrounding area’. He explained that the surrounding area was that he was on drugs and that he was not in his ‘own mind’. He said he would put it this way: ‘I go into evil house and I’m not the one that is going to her, she come to me. I’ve been possessed by the evil’.
He said there was a difference in him having sex with an eight year old girl and having sex with a nine year old girl. He said the difference was that the nine year old girl was older.
He said that K had ‘come flirting with me, holding my hand, come sleep with me, wake me up in the middle of the night, come and sleep with me. Ask if she can sleep with me.’ He agreed that her asking him to sleep in the same bed as him did not mean ‘come and have sex with me’. He said that he never wanted to have sex with K, it just happened because she came to him. He was on drugs and he was ‘being attacked by evils while I live in that house there’. The accused said that K wanted to have sex with him. She gave him ‘the signal’ and ‘the body language’. She flirted with him, she hugged him and kissed him on the lips. She grabbed his penis. He said that sometimes he told her to go away. He said that after he had sex with her the first time K said to him that he could stay with her mother forever. He felt like he was trapped. She was flirting with him all the time. He said he never went to her.
The accused said that he didn’t tell K’s mother what she was doing because he was ‘too stoned’ and ‘too scared’. He said that he realised after three times that it was wrong. It took him three acts of intercourse with K to realise that it was wrong. He didn’t realise it was wrong the first time because he was on drugs and was stoned and didn’t know what he was doing. He said he was stoned the second time and the third time. He was asked, if that was the case, how he realised it was wrong after the third time. He answered: ‘because now I’m straight, that’s why I know’. He said, however, that he was still using drugs when he left the house. He said he realised it was wrong because he was ‘off and on the drug’.
The accused agreed that he knew that Ms B went to the chemist every afternoon to get her medication. He agreed that at least on two of those occasions he had sex with her little girl. It was put to him: ‘When she was at the chemist’. He answered: ‘I don’t know, maybe she’s already back in front of her house’.
The accused said that he had ejaculated after he had sex with K. He said he did not wipe K. He said she probably went to the toilet although he didn’t know because he was on drugs.
He said he didn’t know whether, when his penis went inside K, it seemed to hurt her. He said: ‘It’s never hurt her because she never scream, she never cry’, or cry out. She never asked him to stop. He said he didn’t ask her whether it was hurting when he inserted his penis into her vagina. He was asked whether he thought about whether the size of his penis going into such a small girl would hurt her. He said: ‘I’m too stoned to know all that’.
The accused said that it seemed to him that K’s mother knew all along what was happening. He said, in his mind ‘it seems like I’ve been set up’.
Conclusions
I have considered K’s interview with police (Exhibit P1A) and her evidence with great care. She was only nine years of age when the events which are the subject of the three charges occurred and when she spoke to police. She was only ten years of age when she gave oral evidence before me.
I am satisfied beyond reasonable doubt that the events which are the subject of these three charges occurred no more than two weeks prior to when K told Jessica about what had happened to her. K was interviewed by a police officer the day after she told Jessica. That was on 8 December 2002. In those circumstances, it is not necessary for me to do other than to consider K’s interview and evidence with great care.
I have also considered the evidence of Ms B carefully. Whilst Mr McKenney submitted at various times in the hearing before me that he put Ms B’s character in issue, I do not consider that the topics upon which her evidence differed from the accused’s were particularly relevant or important to the issues that I have to decide on the hearing that was conducted before me. There was a deal of evidence about what the accused said was Ms B’s drug taking during the two to three weeks that he stayed at her house and about the circumstances surrounding his leaving the house. There was also cross-examination of Ms B about witchcraft, tarot cards, and gifts she and K allegedly gave to the accused.
The accused’s drug taking at the time that he was at the house and the effect it had on him, may be a matter that is relevant to his sentence. I deal later with what I find about whether the accused was affected by drugs when he committed these offences. I do not consider, however, that Ms B’s drug taking at that time is relevant to any issue I have to decide on this hearing. I also do not consider that the evidence as to tarot cards and the evidence associated with that topic is relevant to any issue here.
The circumstances which led to the accused leaving the house may bear upon whether or not the accused had any feelings of remorse or guilt about performing acts of sexual intercourse on the nine year old daughter of the person who had accepted him into her home. I deal with that later in these reasons. I do not consider, however, that the topic is relevant to decide the disputed facts.
In his final address, Mr McKenney ultimately placed great reliance on a passage in Ms B’s Statement of Witness dated 7 March 2003 (Exhibit P2). At page six of that statement the following appears:
… Jessica told me that she asked (K) how it happened. I can’t remember exactly what she said. She told me that it was with Kano. I pulled (K) aside and said Jessica told me what you said to her. I told her I needed to know if it was the truth. I was shocked. (K) was crying and told me that she would never lie. She looked scared. (K) said to Jessica that she had betrayed her. Jessica was crying herself and said that there is somethings you can keep a secret and there are somethings you have to tell. I hugged (K) and hugged Jessica because she was crying and thinking she had done the wrong thing by telling. I asked (K) why she hadn’t told me and she said Kano threatened to hurt me and (K) and she also said she didn’t want to put any more problems on me to deal with and she thought I might have another break down. She also told me that she didn’t think anything was wrong with what she had done. She said that’s what everybody does and I said no, that what adults to.
Mr McKenney relied on the last two sentences of this passages. He had cross-examined Ms B as to those sentences. That passage of cross-examination commences at page 84 of the transcript and continues to page 94. Ms B explained that her daughter was crying all the time. Ms B said she wanted to know whether K was telling the truth because the allegations were very serious and ‘once I ring the police, that’s it’. She said it was about twenty minutes at least before she went and phoned to report what she had been told. Her daughter was not specific with her as to what the accused had done. Her daughter did not know whether it was right or wrong or if she had done something wrong. K had asked her if the accused had raped her because she didn’t know whether what he had done was wrong or not, or whether he was allowed to do that. Ms B said that her daughter was too scared to tell her exactly what had happened because she thought that she (Ms B) might end up back in hospital or have a break down, because she had been suicidal after her son died some time earlier. Ms B explained to her daughter that what the accused had done was really wrong. No-one should touch her there when she was that age, and it was right that she had been told.
The two sentences at the end of the passage I have referred to were put to Ms B for her comment. She said:
Yes, I said that she didn’t do anything wrong. That’s (sic) it’s not her fault that she (sic) touched her, that he’s the one that’s wrong, he’s the adult. He shouldn’t have bloody touched her. That’s what I meant. And isn’t it true; she’s only a child and he’s an adult and he shouldn’t have touched her like that?
I have not had regard to K’s complaints to Jessica, her mother, or to the doctor at the hospital as evidence of the facts about which she referred in describing to those persons what had happened. I have, however, had regard to these matters when considering K’s credibility and reliability in what she described in her interview with police and in her evidence before me. In that regard I am satisfied that K did not tell her mother that ‘she didn’t think anything was wrong with what she had done’ or that K said ‘that’s what everybody does’. I am satisfied that Ms B was trying to describe a conversation she had had with her daughter at the time she was speaking to her at the house and before police were involved in which she told her daughter that she had done nothing wrong and that the accused should never have touched her. I am satisfied that Ms B was trying to assure her daughter that what had happened was not K’s fault. I am satisfied beyond reasonable doubt that Jessica, K’s mother, and the doctor at the hospital accurately described K’s complaints to them, with the qualification to which I have just referred regarding Ms B’s evidence.
I was very impressed with K’s evidence and the simple and straight-forward manner in which she answered Mr McKenney’s questions. I reject completely the submissions that K was ‘a pretty cool customer’ and that she had given her evidence in a way that was ‘beyond her years’. I consider that K gave her evidence in a very careful and disarming way. I did not consider her to be exaggerating in any way, and I considered that she was at all times giving her best recollection of the events which surrounded this offending. I saw no hint of any anger or resentment towards the accused in the way K recounted the events and answered Mr McKenney’s questions.
I have not resolved any of the issues before me by reflecting upon or asking what motive K might have in being untruthful in her evidence before me or in what she told police on 8 December 2002.
I considered that much of the accused’s evidence about the events surrounding the three acts of sexual intercourse was unconvincing and untruthful. His various explanations as to why he had sexual intercourse on three separate occasions with K were completely unconvincing. There was an inherent contradiction in some of them. If he was so much under the influence of drugs each time it is a wonder he could recall the detail surrounding the three occasions when he performed an act of sexual intercourse on K.
In reaching these conclusions I have borne in mind that English is not the accused’s first language. There were times in his evidence that he appeared willing, even anxious, to explain certain things in English. There were other times when he sought assistance from the interpreter who was at his side during the whole of his evidence. I accept that the accused was at some disadvantage by language in giving his evidence. I was satisfied, however, that he well understood what was being put to him on the vital matters concerning the three acts of sexual intercourse which are the subject of the charges to which he has pleaded guilty.
Far from thinking, as was submitted, that there was a sense in which K’s evidence was ‘too good to be true’, I am satisfied beyond reasonable doubt that K’s account of the three acts of sexual intercourse that constitute the three charges is a true and accurate account. I am so satisfied notwithstanding the fact that K did not tell her mother or Jessica all the detail surrounding each of the three occasions when the accused performed an act of sexual intercourse on her. I do not find that at all surprising in the circumstances. I also do not find it surprising that K did not tell the doctor who examined her at the Women’s and Children’s Hospital the full details of each event. I accept that K was reluctant to speak about the details to the doctor (the doctor noted that in the report) and was also reluctant to give the details to her mother and to Jessica. I believe Ms B’s evidence that she has not pressed K to tell her about the details.
I am convinced that the accused was untruthful in his account of the three incidents, both in his statement taken on 13 May 2003 and signed on 14 July 2003 (Exhibit P7), and in his oral evidence.
I am satisfied beyond reasonable doubt that on each of the three occasions when the accused performed an act of sexual intercourse on K he held her down, thereby restraining her, and that he knew, by her struggling, crying out, or attempting on one occasion to kick him, that, on each occasion, she was an unwilling participant in each act of sexual intercourse. By being so satisfied, I do not find that the accused used violence on K. My finding is that he restrained her on each occasion so that he could perform an act of sexual intercourse on her. I find that he could, and did, easily restrain her in that way because K was so young and slight in build. I am satisfied beyond reasonable doubt that each act of sexual intercourse was painful to K and that the accused either knew that at the time or that he did not care to know. I am satisfied beyond reasonable doubt that on each occasion the accused removed K’s pants and underpants before entering her vagina with his penis. I am satisfied beyond reasonable doubt that the accused told K not to tell her mother or anyone else about what he had done. I am not able to be so satisfied that the accused threatened to hurt K or her mother if she did tell. I am satisfied beyond reasonable doubt that on each occasion that the accused performed an act of sexual intercourse on K he did so when he was sure that K’s mother was not in the house, and when he thought that she would not be likely to return until after he had completed the act of intercourse on K.
I specifically reject the accused’s evidence that K flirted with him and indicated by any action (such as hugging or kissing), signal or body language that she wanted to have sex with him. I specifically reject the accused’s evidence that on each occasion K seemed happy and was a willing and enthusiastic participant in the acts of sexual intercourse. I specifically reject the accused’s evidence that on each occasion K came to him wanting sex. I specifically reject the accused’s evidence that K at any time grabbed his penis and that K took her own pants or underpants off before any act of sexual intercourse.
Insofar as it is necessary or relevant for me to decide, I am satisfied beyond reasonable doubt that Ms B did not use illicit drugs during the time that the accused stayed at her house in late 2002; that the only drugs she used at that time were those drugs prescribed for her to assist her abstaining from the use of illicit drugs; and that the accused and Ms B did not share drugs together in the house nor in the presence of K. I reject the submission on behalf of the accused that both he and Ms B were living in ‘a drug-induced fog’ during the time that the accused was at Ms B’s house.
Insofar as it is also necessary or relevant for me to decide, I am satisfied beyond reasonable doubt that the accused left Ms B’s house because she asked him to when she believed that he had stolen money from her. I make no finding as to whether or not the accused stole money from Ms B. I am satisfied beyond reasonable doubt only that Ms B believed that he had, and having that belief she asked him to leave. I am not satisfied that it is probable that part of the accused’s reason for leaving was guilt he felt about what he was doing to K.
I am also not satisfied that it is probable that the accused committed the three acts of sexual intercourse on K when he was possessed by spirits, spaced out on drugs, or not in his own mind. He may well have been using drugs during the time that he was staying at Ms B’s house, but I am not satisfied that his use of drugs probably had anything to do with this offending.
I shall sentence the accused for these offences on the basis of my findings set out in these reasons.