R v Withall - [2011] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WITHALL
Criminal Trial by Judge Alone
[2011] SADC 50
Judgment of His Honour Judge Stretton
13 April 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - GENERALLY
The accused was charged with four counts of indecent assault. There are two complainants, aged between 5 and 8 at the time of the allegations.
Held: There were aspects of concern arising from the complainants’ parents’ evidence and the evidence of both complainants. The accused denied the allegations to police and on oath at trial, with indirect evidential support from his mother. A reasonable doubt exists and accordingly the accused is acquitted.

R v WITHALL
[2011] SADC 50
Introduction

The accused Adrian John Withall is charged with four counts of indecent assault. It is alleged that between 16 February 2001 and 16 February 2002 he indecently assaulted a person who I will describe as C1, who was aged six at the time. He is further charged with indecently assaulting a person I will describe as C2 on three occasions. Firstly, when she was five years of age, between 22 August 2002 and 22 August 2003, secondly when she was six or seven years of age, between 22 August 2003 and 22 August 2005, and finally when she was seven or eight years of age in 2004 to 2005.
It is alleged that these offences occurred during a time when the accused was living with his brother and his brother’s family, and that the accused took advantage of that opportunity to indecently assault two of his brother’s children by on each of the charged occasions, rubbing his penis on the outside of their vaginas.
In 2006 the accused, after having lived with his brother for many years on and off, left and returned to reside with his mother. In February 2010 the accused’s brother took his two children to police where they complained of the alleged indecent assaults.
The accused is a disability pensioner who suffers from tourette syndrome. He answered police questions in full and denied the allegations. He gave evidence at trial repeating those denials.
The accused elected to be tried by judge without a jury.
Principles
The accused is presumed innocent unless and until the prosecution has proved each element of the offence beyond reasonable doubt.
I apply all the principles I would explain to a jury concerning the appropriate approach in assessing witnesses, credibility, reliability and the drawing of inferences.
The accused in this matter gave evidence on oath in his own defence. I give him credit for that, in that he adopted a course he was not obliged to adopt. His evidence is therefore to be assessed in the same way as any other witness.
In particular I bear in mind the particular rules of evidence applicable in sexual cases as reflected in Division 2 of Part 3 of the Evidence Act 1921.
The offence
The accused is charged with four counts of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935.
To commit this offence, firstly the accused must assault the complainant.
An assault is an unlawful application of force to another person. Any touching or handling is sufficient. It must be intentional, such that an unintended or, for example, accidental touching would not be sufficient. It must also be unlawful, that is without lawful justification or excuse.
The second element is that the assault must be accompanied by or occur in circumstances of indecency. That is, conduct which by any reasonable contemporary standard can only be described as indecent. Consent is not an issue, in that a person between the age of five and eight cannot consent to an act of indecency.
The prosecution case
The prosecution case is that the accused was the uncle of the two complainants. For a number of years, at the behest of his brother, he lived with his brother’s family. There were five children, two of which were the complainants.
It is alleged that on four occasions when the children’s parents were out and the accused was babysitting, he called one of the two complainants away from the others, asked them to undress, and then rubbed his penis on the outside of their vagina.
The defence case
The defence case is that nothing of the kind occurred. The defence case is that the accused was an invalid pensioner who was exploited and victimised for years by the complainants’ family, forced to perform all the menial domestic services, and hand over his pension in its entirety. Finally he moved back in with his mother and could no longer be directly financially exploited. In these circumstances it is put that the accused’s brother may have put the complainants up to making false allegations for the purposes criminal injuries compensation, or that the complainants made the allegations at a time when they were doing badly at school for the ultimately successful purpose of avoiding school for several months.
Evidence
Prosecution case
C2 was called and gave evidence on oath. She was 13 at the time of trial. She gave evidence that her uncle, the accused, had lived with her family until about four years ago.
She said that there was an occasion when she was aged five, when her parents had gone out. Her brothers and sisters and uncle were there. She said her uncle went into the backyard and called out her name and she “went to him”. She said he took her to the back of the shed, told her to take her clothes off, as did he, whereupon he picked her up with his hands under her armpits off the ground and pushed her up and down with her “fanny touching his penis”. She said she did not see his penis and did not know what a penis was at that time. After that, she put her clothes on and went back inside. She said she did not tell anyone but did not know why.
She said there was another occasion when she was about seven years old. Counsel for the prosecution asked C2 how she knew she was seven, and she said “because it was the last time I seen him”[1]. She said that on that day, her parents were not at home and she was playing basketball with her brothers. She said her uncle called to her to go to him, he being inside the house. She said “I went to him” through the back door and they went into the bathroom.
[1] Transcript p.13 line 18.
She said she was again told to take her clothes off, lifted with his hands similar to the first occasion and again her fanny was touched by his penis, with her being moved up and down for four to five minutes. Afterwards she said she didn’t tell her brothers as she didn’t know what was going on.
Finally, she gave evidence that on an occasion when they were living at a house at Newton, when she was about six her uncle did something again. She said she was in the lounge room colouring in and watching T.V when her parents went out. She said her uncle went to the back door and called her name whereupon she “went to him” in the backyard. She said her uncle was there on the grass, then she said “I got that wrong” and that there was no one there. She said he was in fact calling from somewhere near the shed whereupon she “went to him”.
She said he again told her to get undressed, again lifted her up with his hands under her armpits and her fanny was touching his penis. She said she felt it against her and it was soft. She said it felt the same as the other two times. Again, she said he held her for about 10 minutes, moving her up and down with her fanny touching his penis. Again, she said she got dressed and went inside. She said that he told her that if she told anyone he would stab her dad, and that she was scared that he was going to do that.
C2 was then cross-examined extensively. I will not repeat the majority of it. I will mention some matters that defence counsel emphasised.
C2 conceded that her father was a very big man, bigger and stronger than her uncle and that he would tell her uncle what to do every week. She agreed her uncle would do funny things like shake his head, shake his own hands, and also swear when there was no reason to do so, and that she thought he was silly because of those things. She said that despite this, neither she nor her brothers and sisters made fun of or teased him.
She said she enjoyed climbing on the roof and would do that quite often when her parents were not home, because she was not allowed to. She said her uncle sometimes told her off for that, which would make her angry. She said she and the other kids would throw dirt. She said uncle Adrian would tell her off about things which she didn’t like and which would make her angry. She agreed she thought he was a silly man. She denied telling her parents that her uncle had told her off.
She agreed that her father got angry with her uncle a lot. She remembered her dad yelling at her uncle and said that her dad was not scared of her uncle. She denied seeing her father use violence towards her uncle. She denied her father had ever thrown a fork or a steak knife at her uncle. She denied telling on her uncle to her father or lying about him. She denied her father ever threatened to or did hit her uncle so that he would perform any tasks.
In examination in chief, C2 had been asked about when she disclosed her allegations. She said that when she was young, she had asked C1 if her uncle had done anything to her and she said yes, and that then in February 2010 she told the police about what had happened. Her father’s evidence is that she disclosed her allegations to her father in 2010 and that he took her to the police station on that same day.
In cross-examination the following passage occurred;
QIf your uncle Adrian had picked you up and rubbed his penis on your fanny as you’ve described it, I suggest that you would have told your dad about it, you would have told your dad about that a long time before you spoke to the police, would you agree with me.
AYes.
QSorry.
AYeah.
QThat’s because (C2) you knew your father was in no way frightened of uncle Adrian, isn’t that right.
AYes.
QYou agree with me.
AYep.
QYou knew that no way could your uncle Adrian do any harm to your father, would you agree with me.
AYep.
QThat’s correct, isn’t it (C2).
AYep.
QAnd in fact at no time did your uncle Adrian say that if you told anybody anything he would stab your father, do you agree with me.
AYep.
These answers had some significance, for obvious reasons. It was plain that she had not told her father about the sexual allegations at the time they are alleged to have occurred[2]. She had said in examination in chief that the reason she did not, was in part due to her fear that the accused would stab her father. These answers during cross-examination were in direct contradiction to her evidence in chief that her uncle had threatened to stab her father if she disclosed the allegations.
[2] This has no probative significance in itself, as section 34M of the Evidence Act 1929 makes clear.
In her next question and answer, defence counsel repeated his suggestion that her uncle never threatened to stab her father, and she reverted to her evidence in chief, then saying he had said it.
She then said that her uncle was indeed very frightened of her father[3], which was incongruous in light of her evidence in chief, and her responses in cross-examination, both to the effect that she never saw her father making any threats or exhibiting any violence whatsoever towards her uncle.
[3] Transcript p.47 lines 31-36.
Then C2 was cross-examined about her initial contact with police.[4] It emerged that on the day she saw police there were three taped interviews. During the first two interviews she refused to speak with the detectives or make allegations about the accused. During the second interview she agreed both her parents were telling her to talk to the police but that she wouldn’t. Only on that third occasion did she make allegations about the accused. Between each interview, her father took her away and spoke to her separately.
[4] Transcript p.49-50.
Later in re-examination counsel for the DPP returned the witness to that topic. In the meantime counsel for the accused had suggested that perhaps the reason C2 had repeatedly refused to make the allegations to the police was that she knew the allegations were not true, in other words, that nothing had actually happened. The evidence in re-examination proceeded as follows;[5]
[5] Transcript p.60, line 14 to p.61, line 17.
QYou were asked some questions about when the police officer Mike Wilson came to speak to you and they recorded some interviews with you. Why didn’t you talk to the police until the third go, until the third try, why didn’t you talk to the police.
AI don’t know.
HIS HONOUR
QCan you have a think back please and just tell us what you remember from that time. Remember you were there and the police officer was speaking to you, he was obviously wanting you to answer questions and so forth, and you obviously, you know, didn’t want to do that, just think back now and if you could tell me why you didn’t say anything and you can tell me whatever it was the case. You don’t have to be embarrassed, jut say why it was that you didn’t want to say anything to him.
NOT ANSWERED
QIt’s been a little while since I asked you that question, can you remember back when the police officer was speaking to you.
NOT ANSWERED
QIf you can remember I would like you to tell me. If not you tell me that as well. I would like you to try and tell me whatever is the truth about that.
NOT ANSWERED
QIf you’re worried about anything, you can tell me what that is as well. I would like you to try and tell me if you could.
NOT ANSWERED
MS ABBEY:
QMight I ask a couple of questions and perhaps try and come back to it?
HIS HONOUR
QDo you want to say anything about that. You’re shaking your head; does that mean no.
AYes.
QIs it that you are embarrassed about telling me why. You are shaking your head again. It’s important that you just tell me the truth, whatever it is, you can say. Whatever the truth is you can say it.
NOT ANSWERED
During the course of this exchange C2 became very upset.
Several observations might be made. Whilst C2 had previously told counsel for the DPP that she did not know why she did not want to talk to the police, when I asked her, she simply did not answer, became very upset and left long silences. In particular, she had not been visibly upset at any stage prior to being asked those questions by the court. She had not been upset when recounting the allegations of indecent assault, nor in her evidence in chief when suggesting her uncle had threatened to stab her father, nor at any stage of a lengthy cross-examination which included numerous accusations that she was lying.
It is plain from the final answer she gave me, that she clearly did not wish to answer the question I was asking her. One possibility is that whilst she was prepared to be less than frank with the lawyers, she was unwilling to be less than frank to the judge. If the real answer was that she had been put up to make these allegations, or that for some other reason they were not true, to answer the questions truthfully would have involved admitting to the Judge fabricating evidence to the police and to the court.
If there was another answer to the question, such as “I don’t remember” or that she just didn’t want to get her uncle in trouble, it would have been easy to give such an answer.
Overall, the cross-examination and re-examination on this topic left me with a strong sense of unease. In particular, the fact that this topic, alone of all she was asked, caused the witness to become very upset and cry, but not the extensive previous evidence about three indecent assaults, caused a distinct sense of unease.
Overall, I had a sense of unease at the conclusion of C2’s evidence. Whilst her evidence was relatively straightforward, I noted that she used nearly identical terminology to describe key aspects of each of the three alleged offences. Further, during the course of cross-examination C2 admitted that she retained a copy of her statement to police, which she had been at pains to memorise.[6] I was also concerned with the witness’s demeanour. As her evidence progressed, she became slumped and seemingly more and more reluctant, gazing down and avoiding facing the camera and screen that were set up at the remote location from which she gave evidence.
[6] Transcript p.56 lines 20-21.
In all, whilst I did not conclude that she was necessarily lying, I was not fully convinced as to the accuracy and reliability of her presentation.
The other complainant, C1,was then sworn and gave evidence on oath.
C1 gave evidence that she was 16 years of age. She also gave evidence that her uncle lived with the family at a number of different addresses over time, with her last seeing him a few years ago, when they were living in Gilles Plains and she was still at primary school.
C1 gave evidence that something happened when she was six years old. At that time her parents, her uncle and her brothers and sisters were living together. One day, around dinner time, her parents went out. She said her uncle called her and she “went to him”. C1 said he told her they were going to do something fun and she agreed, as she liked to climb on the roof and thought they were going to do that. She said she went outside with her uncle to a garage that contained a pool table. C1 said her uncle told her to pull down her pants, which she did. She said he asked her if she was wet, and she said she replied to her uncle that she didn’t know what that meant. She said that she was told to get onto the pool table, which she did and then she lay down with her legs hanging over the side. She then said he came over to her, pushed himself up and brushed up over her, explaining that “he brushed his penis over my vagina”. She said she was laying on the pool table and he was over her. She said she thought he was standing on the ground but didn’t know. She didn’t remember what his penis felt like and whether it was hard or soft, and that she didn’t understand what was going on. She said she needed to go to the toilet, got up and went out.
C1 said she didn’t tell anyone at that time because she was scared no one would believe her. She did say that she told her sister “do not go to uncle Adrian, whatever you do, do not go there” and to her brothers also. She then said that she was going to tell her parents, but because her family was close to her uncle she didn’t think they would believe her.[7]
[7] Transcript p.70-72.
C1 was then cross-examined extensively. Again I will not mention all of the evidence. I will mention some salient points.
C1 agreed that her uncle had lived with them for many years at different houses, finally leaving for good in August 2006. She agreed her father was a very big and tall man, much bigger and stronger than her uncle. C1 said that her father didn’t tell her uncle what to do, nor give him any orders or boss him around. She said her uncle was not scared of her father, that they used to muck around and have play fights. She agreed that her uncle did have funny habits, like shaking his head, saying ‘fuck’ at times, but that he didn’t shake his own hands or continually put his head on its side.
C1 stated that neither she nor her brothers and sisters ever teased or made fun of her uncle, nor did they ever treat him as a joke. She agreed her uncle would regularly babysit the five children. She denied that her uncle would tell her off for climbing on the roof, and said that whilst the younger children would fight, she did not. She denied any suggestion of throwing dirt or damaging the garden or the tap, or that anything was ever thrown at her uncle.

C1 gave evidence that she liked the accused as a family member, but disliked the things he did. She said her father would get angry at her uncle a few times if he had a reason to. When her father did get angry, he would yell at her uncle. She said that her father did not hit her uncle but that there were play-fights between them. She denied that her father threw either a fork or a steak knife at her uncle. She denied that she lied to her father to get her uncle into trouble, or that she did anything like that. She denied that her uncle did whatever her father told him to do.
C1 was then cross-examined about the indecent assault that she had alleged.
She was cross-examined about the conversation she alleged had occurred at the time;[8]
[8] Transcript p.97 line 17 to line 29.
QYou say that uncle Adrian asked you if you were wet and you said to him “I don’t know”- “I don’t know what that means” is that right.
AYeah.
QSo you do remember saying to him “I don’t know what that means”.
ANo I didn’t know what it meaned, I didn’t say anything.
QDid you say to him “I don’t know what it means”.
ANo, I didn’t say anything.
QYou say you did not ask him what that means.
ANo.
QYou did not say to him “I don’t know what it means”.
ANo.
This evidence directly contradicted her evidence in chief on that topic.
C1, during cross-examination, said she recalled her grandmother coming around on one occasion. She denied that on any occasion, including when her grandmother was there, being bossy or teasing her uncle, nor saying that they were going to tell on him to their father.
Overall, C1 gave evidence in a clearer and a more confident way than her sister. There were some similarities in description of the alleged events and in her use of terminology.[9]
[9] For example the use of the phrase “I went to him”.
I was concerned that in cross-examination she flatly denied telling the accused that she did not know what being wet meant, when she had plainly given that evidence without equivocation in examination in chief.
Then, the complainants’ mother was called to give evidence.
She gave evidence that she had been the de facto partner of the complainants’ father for 17 years, producing four children including the two complainants. The accused was her partner’s brother and she had known him for 19 years. The accused had lived with them on and off for that entire period until about five years ago. She said he would stay with them to get away from his mother and to help them out financially. She gave evidence that they all had an alcohol problem and the three would tip in and regularly drink. She said the accused would also give them money fortnightly, also chipping in with chores, such as dishes, washing clothes, cooking and baby sitting.
She said that about five years ago, she and her de facto jointly performed a courier job, but before that she was occupied with home duties. When she and her partner would go out, she said the accused would be asked if he minded babysitting. She and her partner would then go to a track or a dog meeting for a few bets, for example.
She gave evidence that over the years the family lived at a large number of different addresses.
She gave evidence that she did not get along with the accused, indeed she hated him and did not like him being there. She said that the reason the accused was there was simply because her partner wanted him there for the money. She said when he finally left, she was just glad to see the back of him.
The complainants’ mother was extensively cross-examined. At the outset she agreed that the accused was only with them for the money and the babysitting, and that she did not enjoy his company. She agreed that they would often go out during the week and leave him babysitting the five children. She agreed he cooked and cleaned as well, although she said that he was not the only person who did that. She agreed that the accused had tourette syndrome with “ticks” such as shaking his head and involuntarily making noises with his mouth.
She agreed with the suggestion that her daughter C1 saw these and thought of him as silly. The children used to laugh at him as they didn’t understand, but she said they did not torment or bully him.
She agreed with the suggestion to her by defence counsel that her partner would accompany the accused to the ATM and the accused would hand his money over. She agreed that her partner knew the accused’s ATM card password. She agreed they were all heavy drinkers and that the accused drank every time they drank. She agreed that over the ten years he was there he kept leaving and then coming back to stay. She agreed that whenever he left they would lure him back, essentially for his money.
She said that the accused had an obsession with her and so she would only have to say hello to him and he would come back. She said she was prepared to have him there, but only for the money, although she was not entirely happy with it.
She was asked about the courier job that she and her partner had between 2004 and 2006. She said her partner was the driver and that they both did the job. She said the accused also helped.
She agreed with the suggestion that there were issues between her partner and his mother. She said she heard from her partner that he had thrown a fork at the accused on an occasion when he was frustrated.
She agreed that the accused’s mother had taken out a restraining order against her partner over the accused. She was not sure how long that lasted. She agreed that her partner’s mother visited their house on several occasions.
She said that she did not think that her kids liked the accused and that they laughed at his head shaking and his mannerisms. She said that her daughter C1 hated the accused, but they all got along with him.
On one occasion when the accused had left to go back to his mother’s, she agreed that she and her partner had agreed to lie to the accused, saying that her partner was in hospital, in an effort, successful as it turned out, to lure the accused back to their house for the money.
She gave evidence that in August 2006 the accused left for the final time and that they had not had contact with him since then. She said that they didn’t try to get him back as her partner was doing so well at online poker, they no longer needed the accused’s money. She denied the suggestion that in 2008 she rang the accused to try to get him to come back, perhaps, it was suggested by defence counsel, as the online poker had stopped being as lucrative.
Ultimately, she denied that they had got daughters C1 and C2 to lie and make up the allegations to extract compensation.
Then the accused’s brother was called. He is the father of the complainants. He gave evidence that he had four children with his de facto partner including the two complainants. He gave evidence that his brother was the accused. He said that he asked the accused to come and live with him a long time ago, to help out with his rent. He was aware that his brother had a disability pension from Centrelink for tourette syndrome.
The accused’s brother gave evidence that around that time he regularly moved house as he often had outstanding warrants for his arrest and he was keen to avoid the police.
He gave evidence that the accused would stay with them for between four and eight months, go home and come back later. He did not know why the accused would regularly leave and indeed, he was shocked every time the accused left. He said he would wait for a couple of weeks and then he would go and have a beer with his brother, sort it out and then his brother would come back.
His brother would live in a room with his boys or sometimes on the couch. He agreed that his brother did things around the house such as cook meals, clean the dishes and babysitting. He said his brother got on with the kids and that there were no problems. He said his brother would pay $140 to $160 per fortnight for board.
He said his brother left their house for the last time five years ago and has not been back. On that occasion he thinks he did try to contact him, as he said his brother owed him money. He went around to his mother’s house, where his brother had gone, and the next moment the police were there and then he left.
The accused’s brother gave evidence that his relationship with his mother was non existent and recounted an incident where he said his mother bought a whole series of presents for the children, showed them to the children prior to Christmas, then returned them to the shop when she gambled everything away. He gave evidence that he had left home at 15 years of age, and that his relationship with his mother was, indeed, non existent.
He described how the allegations came to light. In February 2010, C1 was in trouble at school and didn’t want to go to school. In the course of saying to her that she had to go, she said to him that the accused had touched her. He said he spoke to C2 and that he took both girls to the police station where they made the allegations.
The accused’s brother was then cross-examined.
In cross-examination, he agreed that after C1 had disclosed the allegations, she didn’t go back to school for months. He said that was the same with C2. He said that ultimately they did go to school, but very rarely.
The accused’s brother was cross-examined extensively about his relationship with the accused
He agreed that the accused would pay board and also money for alcohol, cigarettes and groceries. He denied that they would take all the accused’s money. He denied that he would hit or bully his brother. He denied that he would tell his brother that items were “on the bill” and in particular denied that “the bill” would always equate to or exceed the accused’s pension. He agreed taking his brother’s first saved $500, but said he took it as a loan and paid it back at a later stage. He denied manipulating his brother.
He did agree that he would accompany his brother to the ATM each fortnight when his brother would get his pension money out. He did agree that a few times he did take the accused’s ATM card and take money out himself.
He denied threatening, bullying or hitting his brother, or putting the complainants up to manufacture accusations to obtain criminal injuries compensation.
He agreed that his brother, at the behest of his mother, had taken out a restraining order against him. He agreed that on one occasion his brother had to go to Centrelink for an interview and that he went with him, but just sat outside the room.
The accused’s brother was asked about the courier job. He gave evidence that his wife didn’t help on any occasion, unless perhaps when his brother wasn’t there, but that his brother did go with him and help him in an unpaid capacity on most days.
He agreed that he had hit the accused in the past but denied doing that regularly. He agreed he hit him once in front of the children but denied that he threatened to stab him. He said he punched his brother three times in all. He said he would also play-fight with his brother including grabbing him, and on one occasion, throwing him against the window. He agreed he did throw a fork at the accused in anger, hitting him in the ear, although he said he could not recall why he did that.
The accused’s brother repeated that he had a bad relationship with his mother, that relationship now being non-existent. He said he did not know why the restraining order was put out on him, as he had not been violent. He said that neither C1 nor C2 hated the accused, instead they treated him like a brother.
He repeated that his brother was not scared of him at all and that they used to have fun all the time. He said that when his brother would leave, it did not take much to get him back, usually just a phone call would do. He said he missed having his brother around, and yes he did miss the money. He said that after the restraining order issue, he got his partner to speak to the accused and get him to come back. He said he told her to lie and say that he was in hospital, to get the accused back.
He said that by 2006 he was making enough money by playing internet poker, and that his partner didn’t want his brother in the house anymore, so when the accused left on that occasion they did not try to get him back after that. He denied an incident put to him whereby it was suggested he got angry and yelled at his brother to make his mother a cup of tea when in fact she said she did not want a cup of tea.
There was much more cross-examination.
In general, the accused’s brother denied any wrongdoing towards the accused. In re-examination he agreed he drinks a large amount of alcohol and does not have a good memory. He denied he was aggressive when drunk. He repeated he had only punched his brother in anger on three occasions. He agreed he punched him in the head on those three occasions.
Overall, the accused’s brother presented his evidence in a relatively straightforward way. Even on his own evidence however, his attitude to and his relationship with the accused was plainly far from straightforward. As mentioned, he admitted both violence and dishonesty towards the accused and that one of the primary reasons they wanted the accused living with them was to get his money.
A record of interview with the accused was then led. This was an amended record of interview, as portions of it were apparently exercised by agreement between counsel. I received only the amended version and I am not aware of the original contents.
The accused was spoken to by police on 11 March 2010 at the Adelaide City watchhouse. The accused was fully cooperative with police although he wanted his mother present. She was unavailable as she was at hospital with his father who was suffering leukaemia at the time. He was fully co-operative with police and went ahead with the interview without his mother. He answered questions extensively and ostensibly frankly and responsively.
Police initially asked about the relationship with his brother. I set out some of his answers;[10]
QYeah. We’ll come, we’ll come back to that, I’ve got a list of addresses that I’ll run by you in, in due course, jut to probably assist you. What, what has your relationship been like with, with (accused’s brother), tell me about that.
ANot very good really, in the end. See it was, see it was a case of when I first moved in, moved with him I was only sixteen (16) and I didn’t, I didn’t know what I was doing. And I just kept coming back and back and forth, back and forth, back and forth, and I really didn’t know what I was doing. And my relationship with (accused’s brother), well he used to, he used to, he used to, he used to hit me, a fair bit for no reason. I don’t know why, just because he probably got angry, got angry for some reason, I don’t know why, just because he felt like hitting me, I don’t know exactly why, but, but then, so I left. But then I, I left and went with my mum, lived with my mum and then, excuse me, went back about eight (8) months later, and then the things got heated again and then left again. Then six (6) months later I went back again, I mean because he just kept on pestering me to go back. And in the end that’s, six (6) months later I went back and then about six (6) months after I went back I left again, but that I said no more, that’s it, no going back. And that’s, and that’s, and that’s how things ended.
QWhy did he pester you to go back.
AFor money, coz I’m on a pension, and he thought it was easy money. Coz he used to, he used to take my money all the time. This is just absurd, absolutely absurd, I don’t even know why I’m really here, because it’s just absurd. Accused of molesting, touching my own family, I mean its just absurd, absolutely absurd. Can’t believe it. It’s just, just a dream, can I wake up now. I mean, this is just ridiculous, I mean the family, the family feud between (accused’s brother) and my family has been going on for years, absolute years. I’m talking twelve (12), fourteen (14) years. A long time. And this is just another way of just getting, he used to, he was at my mum but then he, but then he had no other reason to go for my mum because he’d done everything to her, and now he’s starting on me because I used to live with him and, and, and, and the family and, I mean this is just absurd. I’m sorry but I just can’t believe this. I’m still trying to get my head around this sort of thing, you know, because it’s just absolutely absurd. Just can’t believe it.
[10] Questions 39 and 40 and the two answers, from page 5 of R.O.I tendered.
Then the allegations were put to the accused and he responded that he couldn’t believe that such things were being alleged and that it was absolutely absurd. He said he would not sexually assault his own family and that he did not do any of what was being alleged.
At question 81, at the suggestion that he had told C2 that he would stab her father if she told, he said;
AMy brother is twice the size of me. He used to, he used to hit me, he used to hit me for no reason. Why would I want to stab him? I mean that might not, that might sound a little bit absurd, but I mean but you, you try to, I was scared of him. I was literally scared of him, I had an AVO against him, he was that fierce against me.
The accused continued to deny what was being put to him, saying at question 95;
ANo way. I used to watch the kids, they used to go out all the time, I used to watch the kids and then wait till they come home. I used to go to the football, to the SANFL football, come home, then they used to come out and I used to have to stay home and watch the kids. I don’t know where, why this allegations has been made against me, I just don’t understand it, I really don’t. Its really, I’ve got nothing to hide, I’ve done nothing, I’ve done nothing. No I don’t know, I’m still flabbergasted. I used to just be forced to watch the kids because they felt like going out, I said “No”, they said “We’re going anyway”. I don’t know.
I have scrutinised carefully the video of the accused’s record of interview. There is nothing about the record of interview that is incriminatory in any way. His denials were repeated, seemingly spontaneous and emphatic. They are consistent with the responses of an innocent person, faced with sudden and untrue allegations.
That was the close of the prosecution case.
Defence case
The accused was called to give evidence.
He gave evidence that he is now aged 35 living with his mother and his other brother. The accused gave evidence that he suffers from tourette syndrome, diagnosed when he was seven years old. As a result, he has had a range of ticks, including shaking his head, his hands, involuntary swearing and tensing up. He said he suffered those from when he was very young. When he was young he used to bark like a dog as well, although he recalled this stopping at around 12 or 13 years of age. Over time, the shaking of his hands and his head stopped, although he says he still tenses up and occasionally swears.
The accused gave evidence that he got to Year 8 in school. He was a slow learner. He left school at 16 and commenced receiving a pension because of his tourette syndrome. When he first got the pension, he saved some $500 from it. He showed his mother and his brother his bankbook, whereupon his brother borrowed the money and never paid it back. In due course, his brother asked him to live with his brother and his partner. The accused gave evidence that he lived with his brother for over 10 years. He said he would live with his brother for about four to six months and then go back to his mother as he was sick and tired of how he was treated by his brother, essentially in being hit and having his pension taken.
He said when he first moved in, there were two children, and he recited a number of different addresses that he remembered them living at. He said over time his brother treated him as a joke. His brother would find excuses, he said, each fortnight, to create “a bill” which would inevitably equate to his pension. His brother would go with him to the ATM and he would have to hand his entire pension to his brother. He said he had to give his ATM card password to his brother.

He said his brother would hit him if he didn’t give him the money.
He said he initially received $350 per fortnight. Over time this rose to $650. He recalled an occasion when his mother had complained about this to Centerlink and as a result Centrelink organised an interview for him. He then received a letter, which his brother opened and read first, saying that he needed to go the interview because his mother was concerned. His brother told him that he had to tell Centrelink everything was fine, and if he didn’t his brother would kill him.
On the day, the accused said his brother went with him to the interview and tried to come into the interview room was but was prevented from coming into the interview room. He told Centrelink that everything was alright, but only because he had to. In fact, everything was not alright, because his brother was taking his money. The accused cited a number of examples of how he would be charged excessively for cigarettes, alcohol and other items, which would inevitably mean that at the end of the fortnight the “bill” would equal or exceed his Centrelink payment.
I will not repeat all of the examples given by the accused of how he was treated by his brother over such issues, but there was a depressing consistency about them.
The accused gave evidence as to his brother’s courier business. He gave evidence that he had to help his brother five days per week, every day, for no pay. I will not repeat that evidence, but it had a similarly depressing ring of truth about it.
On the topic of babysitting, he said he had no choice about this either. The accused said his brother and partner would go out three or four times per week, depending on if they had money. He would help to watch the children. He also said he had to do all the cooking and the cleaning. He also did some of the washing but that his brother’s partner did help with that on some occasions.
I questioned him about the circumstances surrounding how he would find this all too much and leave, only to be pressured back. Essentially, the accused said that his brother had a way of going on and on at him and never letting up until he felt he had to give in under pressure. Again, the accused’s evidence on this topic had a depressing ring of truth about it.
The accused’s evidence about the relationship with his brother is also consistent with the tenor of his record of interview with police.
The accused described an incident leading to taking out a restraining order against his brother. On that occasion something had occurred and he simply ran from the house to escape his brother. He said his brother chased him to his mother’s house and he burst in whereupon his mother called the police. The accused said that before they arrived, his brother tried to kick the door in. The police eventually got his brother to leave and the restraining order was issued. He recounted detailed circumstances whereby, coerced by his brother, he said he was forced to withdraw the restraining order.
The accused told the court how when his brother and his partner would go out, the children would behave badly. If he told them off, they would then abuse him and tell their father on his return that they had been told off, whereupon he would often be abused and hit by his brother. He recounted an occasion when his mother came over and his brother told him to make his mother a cup of tea which he recalled her not wanting, but his brother yelled that he had to “make her a fucking cup of tea” and hit him.
I will not recount any more of the accused’s evidence about the relationship. Suffice to say, the evidence had a relentless, depressing and consistent quality to it.
The accused gave evidence that he finally left the house for good in August 2006. He said he was absolutely fed up, particularly because on the previous occasion the accused’s partner had promised to kick his brother out of the house if he continued to take his money and hit him. His brother had continued to take his money and hit him, but nothing had been done.
He said that in April 2008 his brother’s partner phoned, sounding drunk, again trying to get him to come back, but that he rejected that. C1 was then put onto the phone and she tried to convince him to come back, but he said he was not coming and hung up. He said that was the end of his contact with his brother and his family.
He denied doing anything sexual to either C2 or C1 at any time.
The accused was cross-examined extensively about these events and he essentially repeated, sometimes expanding upon his answers, what he had said in examination in chief. He gave more details about the financial arrangements and how much money he had to pay to his brother. He added that part of his tourette syndrome was that he was slow and that, as he understood it, he had a brain that was younger than his years. He said he was not good under pressure and would often give in as a result.
In relation to the final occasion when he left, he said he knew he could not go back to his brother’s house again because his mother had also said that if he went back again he could no longer come back and live with her. He said that at the very beginning he did enjoy living there, but after his brother started hitting him and taking his money it got bad. He explained the frustrations and the difficulties he had, both there, and in trying to stay away and resist his brother’s pressure.
He reiterated his denials of any offending. He repeated the difficulties with the children, the way that they would complain about him to their father, and the way he would then be hit and mistreated.
I closely scrutinised the accused’s evidence. As I have already observed in part, it had a relentless, depressing, consistent, and potentially convincing ring to it. He gave evidence well, despite his obvious limitations.
The accused’s mother was called to give evidence. She is also the mother of the complainants’ father. She told the court about the accused’s history, and in particular his diagnosis with tourette syndrome at an early age. She described her son’s learning difficulties and she said that at school he had been teased unmercifully. Ultimately, she said, he left school at he age of 16 and was placed on a disability support pension.
The accused’s mother told the court that her son gave in easily to pressure. She said the accused’s brother, from an early age, would boss him about. She said she had had a lot of trouble with the accused’s brother and he had gone into a foster home, then Magill home for boys, at one stage.
The accused’s mother supported the accused’s evidence that he had lost the first $500 he saved, although she did not know at the time what had happened to it. She said the accused’s brother was very dominant and would never leave the accused alone. She said he would keep at the accused and would never take no for an answer from him. She said the accused moved to her son’s house some 16 years ago, but would regularly return to her house.
The accused’s mother gave evidence that after the accused first moved in with his brother, he seemed to become very confused. When she asked him what was wrong, the accused told her that his brother was “taking his money”.
The accused’s mother gave evidence that she went around to the accused’s brother’s house on three occasions over time, when the accused was living there. On each occasion, the accused’s brother and his partner were out and the children would tease the accused, swear at the accused and throw things at him. She told the court of one occasion when the accused tried to reprimand C1 for putting wet cutlery in a drawer, at which C2 told the accused to “get fucked’ and that she was going to tell her father on him. The accused’s mother said she saw C1 tease the accused, and if the accused tried to tell her anything, C1 would say “get fucked” and stamp her feet, and say that she would tell her dad.
She said the children behaved like this on all three occasions when she went around there. She said that C1 did not appear scared of the accused at all. She said that none of the children appeared frightened of the accused and that they were okay to him except when he told them to do anything. She said that on each occasion when the accused’s brother and his partner got home, and the kids complained to him about the accused, the accused’s brother said “I’ll deal with him later”.
She said when the accused periodically returned to her house to live, he would be confused and distressed. She recalled one day when the accused came running back to her house calling for help, with his brother in pursuit. She said the accused’s brother tried to rip the front door open and so she called the police. She said she took the accused to the police and organised a restraining order against his brother.
The accused’s mother said she was so concerned about the fact that the accused’s money was being taken, that she organised a Centrelink interview. Centrelink arranged for the accused to be interviewed but she was called and told that everything was alright. She recounted an incident where the accused’s brother insisted that the accused make her a cup of tea, even though she didn’t want one. That involved the accused’s brother raising his voice and insisting, despite the fact she did not want a cup of tea. She said the accused’s brother was like that, that when he set his mind on something, that is what would have to happen.
She also saw the accused’s brother hitting him with a clenched fist to the side of his knee. She said she thought the accused’s brother was a sick animal, and that she had told him so on that occasion.
The accused’s mother gave evidence that on one occasion when she had bought the accused’s brother’s children presents, the accused’s brother looked at them, gathered them up and threw them back at her saying “Take them back to the second-hand shop”. She denied the accused’s brother’s accusations about her gambling.
The accused’s mother said that finally she was at the end of her tether and she said to the accused that if he went back to his brother’s again, her door would no longer be open to him. She said the accused had been living with her ever since.
The accused’s mother was cross-examined. She repeated much of her evidence in chief, expanding on how the accused’s brother and his partner would utilise strategies to get the accused to go back and live with them.
She told how she tried to protect the accused, but that it wasn’t until the last occasion when she told the accused that if he went he could not come back, that the accused had stopped going back to live with his brother.
She agreed there had been a feud between her and the accused’s brother for at least 10 years, and described many of the events which caused her to have a low opinion of the accused’s brother.
Overall, her evidence was consistent with her evidence in chief and I formed a provisionally positive impression of her as a witness.
That was the close of the evidence.
Addresses of counsel
Counsel for the DPP emphasised that the prosecution case relied entirely on the evidence of the two complainants. She reviewed their evidence and summarised the Crown case. She argued that it was open to the court to find the counts proved beyond reasonable doubt. I will not repeat the prosecution address in detail but I have taken into account all that was put.
Defence counsel emphasised the concept of reasonable doubt and that it is not a question of oath against oath. He argued that the allegations were simple, easy to make and hard to disprove. He emphasised the way the complainants’ parents had treated and regarded the accused and went in some detail through the evidence concerning that.
He argued that whilst it is not for the defence to prove innocence, it may well be that the violent and manipulative brother of the accused, who had treated the accused as a “cash cow” and “a house slave”, had come up with a further method to make money from him when he had been unable to lure him back and gain access to his Centrelink pension. He also suggested that both complainants had secured an absence of at least a month from school, on the basis of the allegations they had made. The complaint arose after only other attempts not to go to school had failed.
He emphasised some inconsistencies that he said C2 gave in her evidence about the events, the roller door, and emphasised the repetition of key words such as “sometimes” in her evidence. He emphasised a range of inconsistencies in evidence between the two complainants, which I take into account but do not repeat.
He emphasised a number of inconsistencies between the accused’s brother, his partner and the two complainants over issues such as whether the accused was laughed at and treated as silly, whether the complainants’ mother helped at all with the courier business, and over a range of other issues.
Discussion
In this matter both complainants variously gave evidence that the accused rubbed his penis on their vaginas. The allegations were relatively straight forward. I do not conclude that either of them were necessarily lying or unreliable. There are nonetheless concerning aspects surrounding their evidence.
They used similar terminology to describe certain aspects of their allegations. The explanation given by C1 as to why she did not inform her father of the events at the time was unconvincing. I have already discussed the reasons for that.[11]
[11] I do not discount their allegations in any way because of the failure to complain at the time, as the law makes clear that there may be many valid reasons why a person does not complain at the time.
I found C2’s responses to questioning about why she repeatedly refused to make allegations against the accused to the police disconcerting and concerning, for the reasons earlier discussed.
The complainants’ evidence was not supplemented with any other evidence indicative of guilt.
It is plain that for over a decade the complainants’ parents repeatedly lured and pressured the accused, a disability pensioner suffering from tourette syndrome, to their house to live with them for the primary purpose of regularly extracting some or all of his pension from him. These strategies included agreeing to lie to him to secure his return. I note that the complainants’ father, the accused’s brother, admitted punching the accused in the head on several occasions. There were a number of inconsistencies between the complainants’ parents on several issues. They were not convincing witnesses.
The accused gave evidence on oath in his defence categorically denying the alleged offending. That evidence was straightforward and potentially credible.
Overall, I prefer the accused’s evidence supported substantially by his mother to that of his brother and brother’s partner as to all the events comprising the history of their relationship. I am therefore of the view that both the accused’s brother and partner were less than frank to the Court about their treatment of the accused
The accused bears no onus to point to or establish a motive for the complainants to lie. In this case, the accused’s counsel has pointed to two potential motives.
Firstly, it is clear that the accused’s brother and partner wanted the accused’s money and went to significant effort over time to get it. The accused’s counsel suggests that once they were unable to lure him back, and once a supposed winning streak at online poker may have come to an end, that they put their two daughters up to fabricating these allegations for the purposes of criminal injuries compensation payments. Normally such a suggestion would be readily discounted, but not so easily so in this case, given their proven efforts over time to obtain the accused’s money, their violence and dishonesty towards him, and their less-than-frank evidence to this Court.
Secondly, the accused’s counsel points to the fact that the evidence discloses that the complainants seemingly made their disclosures to their father at a time when at least one of them was attempting to avoid going to school, and that as a result of making the allegations they were able to achieve that end and evade school for at least several months.
The accused was interviewed by police and was fully cooperative, despite his obvious difficulties and limitations, and gave detailed seemingly spontaneous responses and denials to the allegations that were put to him.
I remind myself that in this case, there are two bodies of evidence that cannot stand together. The complainants clearly assert facts which if proven amount to indecent assault. The accused flatly denies any of those events ever occurred. It is not a case where both versions of events could be true. But it is not a matter of either/or.
The ultimate question is whether the prosecution has proven the case beyond reasonable doubt.
In the final analysis, taking into account all the matters I have discussed, there is in my view a reasonable possibility that the accused is innocent.
Conclusion
As a result of the forgoing, there is a reasonable doubt as to the accused’s guilt of each of the offences charged. Accordingly, a verdict of not guilty will be entered.