The State of Western Australia v Baldwin - [2020] WADC 51

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BALDWIN [2020] WADC 51
CORAM:   BOWDEN DCJ
HEARD:   7 - 9 APRIL 2020
DELIVERED          :   22 APRIL 2020
FILE NO/S:   IND 1575 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

MITCHELL BALDWIN

Catchwords:

Criminal law - Trial by judge alone - Sexual penetration without consent

Legislation:

Criminal Procedure Act 2004 (WA)

Result:

Not guilty

Representation:

Counsel:

The State of Western Australia	:	Mr A M Dungey
Accused	:	Mr B Standish

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	David Manera Barrister & Solicitor

Case(s) referred to in decision(s):

Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Domican v The Queen (1992) 173 CLR 555
Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349
Festa v The Queen (2001) 208 CLR 593
FGC v The State of Western Australia [2008] WASCA 47
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394
NAD v The State of Western Australia [2013] WASCA 2
Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996)
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Piccolo v The State of Western Australia [2007] WASCA 149
R v Baden‑Clay [2016] HCA 35
R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479
R v Merritt [1999] NSWCCA 29
Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 281
Weglewski v The State of Western Australia [2020] WASCA 28

BOWDEN DCJ:

It is alleged that on an unknown date between 1 January 2014 and 1 April 2015 at Clarkson Mr Baldwin sexually penetrated Ms A without her consent by penetrating her anus with his penis.

Trial by judge alone

An order that the trial be heard by judge alone was made by her Honour Judge Wager on 1 April 2020 pursuant to s 118 of the Criminal Procedure Act 2004 (WA).

Brief overview of the parties' cases

The State's case is that Mr Baldwin anally penetrated Ms A without her consent with his penis when her father, Mr C, took her to Mr Baldwin's home.
The defence case is that neither Ms A nor Mr C visited Mr Baldwin's home and that he did not sexually penetrated her.

Principles of law

The trial proceeded on 7 ‑ 9 April 2020 at the Perth District Court.
The law and procedures applying to this trial is the same as would have applied had the trial been before a jury pursuant to s 119 of the Criminal Procedure Act.
As a matter law the following principles apply.
Mr Baldwin is presumed to be innocent of the offence.
The burden of proving his guilt rests on the State and never shifts to Mr Baldwin. Mr Baldwin is not required to prove anything or to give or call evidence in his defence.
The State discharge its burden by proving each and every element of the offence. Proving some elements but not others does not suffice. Mr Baldwin is to be acquitted if there is a reasonable doubt as to any of the elements of the offence.
The standard of proof is proof beyond reasonable doubt. That is the heaviest burden of proof known to law. Establishing that guilt is more likely than not or it is possible that Mr Baldwin is guilty or probable that he is guilty does not suffice. Proving strong suspicion does not suffice.
The State do not need to prove beyond reasonable doubt each and every thing that their witnesses says but they must prove beyond reasonable doubt each and every element of the offence.
The verdict must be based solely on the evidence presented at the trial. The evidence consists of the witnesses' answers to questions under oath or affirmation and the exhibits. Counsel's questions, submissions, comments and observations are not evidence. Police officers' comments as to the accuracy of a victim's statements and other comments and observations made in the process of questioning during an electronic records of interview is not evidence of the truth of those observations, comments or the victims statements.
Any publicity about Mr Baldwin or anyone or anything connected to this case must be ignored.
The verdict must be reached without prejudice, sympathy, speculation or conjecture and based solely on the evidence.
The court must not speculate or guess about matters or look for theories not supported by the evidence.
Mr Baldwin elected not to give evidence or to adduce evidence in the court in his defence. No inference against or adverse to Mr Baldwin can be drawn as a result of his election not to give evidence under oath or call evidence in his defence. He is not under any obligation to give evidence or call witnesses in his defence. He does not have to prove anything. He is presumed by law to be innocent and the burden of proof at all times remains on the State.
I cannot use the fact that Mr Baldwin elected not to give evidence or to call evidence to strengthen or add to the State's case or fill in any gaps or deficiencies in the State case.
I may draw inferences from proven facts. An inference is a logical deduction from the facts that have been proven. In drawing inferences I do not consider the facts in isolation but consider the combined weight of the facts which I find proven.
In a circumstantial evidence case I can only be satisfied of guilt if the combined weight of the circumstantial evidence establishes beyond reasonable doubt that only one inference can be drawn, and that inference is that Mr Baldwin is guilty of the offence: Shepherd v The Queen (1990) 170 CLR 573; (1990) 51 A Crim R 281.
In such a case guilt must not only be a rational inference but the only rational inference that the circumstances enable me to draw: R v Baden‑Clay [2016] HCA 35. The State must exclude all reasonable hypothesis consistent with innocence before I could convict: R v Baden‑Clay.
It is not for the defence to establish that some inference other than guilt can or should be reasonably drawn from the evidence or prove particular facts that would tend to support such an inference: Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82, 105; R v Baden‑Clay [62].
The bare possibility of innocence should not prevent a finding of guilt if the inference of guilt is the only inference open to a reasonable man upon consideration of all the facts established by the evidence: Barca v The Queen, R v Baden‑Clay; Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 661.
When looking to see if there is a hypothesis consistent with innocence the hypothesis of innocence must be more than mere speculation or conjecture: R v Baden‑Clay [55]. The hypothesis to be reasonable must possess some degree of acceptability or credibility and not be fanciful, impossible, incredible, not tenable, too remote or too tenuous: Parker v The Queen (Unreported, WASCA, Library No 960740, 20 December 1996); Piccolo v The State of Western Australia [2007] WASCA 149 [281].
The individual facts from which inferences are sought to be proven by the State do not have to be proven beyond reasonable doubt unless that individual fact is an element of the offence or an indispensable link in the chain of reasoning towards the inference of guilt: Shepherd v The Queen; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Edwards v The Queen (1993) 178 CLR 193; (1993) 68 A Crim R 349; Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389.
The standard of proof of the individual facts which are not elements of the offence or indispensable links in the chain of reasoning towards the inference of guilt has been described as a 'different but unexplained standard': R v Merritt [1999] NSWCCA 29.
The court must find those facts proven before they can be considered in combination with other facts: NAD v The State of Western Australia [2013] WASCA 2 (the direction to that effect being approved by the Court of Appeal) or, put another way, the individual facts from which the inferences are sought to be proven must be proven to the courts satisfaction: R v Kotzmann (No 2) [2002] VSCA 21; (2002) 128 A Crim R 479; Minniti v The Queen [2006] NSWCCA 30; (2006) 159 A Crim R 394. A submission that such facts need to be proved on the balance of probabilities were rejected in Kotzmann [492].
I may accept or reject the whole or part of the evidence of a witness.
In determining whether I am satisfied beyond reasonable doubt of Mr Baldwin's guilt I must not be concerned with the consequences of my verdict one way or another.
Mr Baldwin's answers in the electronic record of interview (EROI) tendered by the State is evidence both for and against him. His evidence is to be assessed in the same manner as evidence of the witness'. I can accept all that has been said. I can reject all that has been said. I am entitled to take into account that the evidence he gave in the electronic record of interview was not under oath and was not subject to cross‑examination in court.
If I accept Mr Baldwin's evidence contained in the EROI which is essentially that he did not commit this offence then he must be found not guilty. Even if I have difficulty in accepting his evidence but find what he said might be true or a reasonable doubt is raised in my mind by any of the evidence adduced at the trial, Mr Baldwin must be found not guilty. Even if I do not believe what Mr Baldwin had to say, that does not mean by that fact alone I find him guilty. I put his testimony to one side and ask myself whether, based on the evidence that I do accept, the State has proven guilt beyond reasonable doubt.
If I reach a conclusion that Mr Baldwin has deliberately lied that is not evidence of the guilt of Mr Baldwin of this offence. It is not evidence that it is capable of supporting an inference of guilt but it is a factor I may take into account in assessing the credibility of his evidence.
I should only accept evidence which I find to be truthful, that is, honestly given, reliable and accurate. The court must be aware that an honest witness doing their very best to assist the court can be mistaken and inaccurate. A dishonest witness setting out to deliberately mislead the court can be convincing. The court must consider and assess the credibility or believability of each witness and the weight to be given to their evidence.
It is not a question of whether I prefer the evidence presented by the prosecution over the evidence of the defence. It is quite possible to prefer the evidence of the prosecution over that of the defence but still have a reasonable doubt. I can only convict if I am satisfied that Mr Baldwin is guilty of the offence beyond reasonable doubt and that is only established if the State prove beyond reasonable doubt each and every element of the offence.
By consent I was provided with transcripts of Ms A's child witness interview and pre‑recorded evidence, Mr Baldwin's EROI and transcript of the witness' evidence. The evidence is not the transcripts which are simply an aide de memoir, but the viva voce evidence of the witness.

Elements of the offence

The date and place alleged are not elements of the offence. They do not have to be proven beyond reasonable doubt. They are simply particulars given to Mr Baldwin so he knows the date and place where the offence is alleged to have occurred.
The elements the prosecution must prove beyond reasonable doubt are as follows.
Firstly the State must prove beyond reasonable doubt that Mr Baldwin sexually penetrated Ms A by penetrating her anus with his penis.
Ejaculation is not required but the State is required to prove that some part of Mr Baldwin's penis penetrated Ms A's anus.
Secondly, the State must prove beyond reasonable doubt that the penetration was without consent.
Consent means a consent freely and voluntarily given and consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means. A failure to offer physical resistance does not of itself constitute consent.

The evidence

The State called four witnesses: Ms A, Mr C, Detective Miley and Detective Evans. The defence did not call any witnesses. In total 12 exhibits were received into evidence.

Ms A

The evidence of Ms A consisted of a child witness interview (CWI) conducted on 21 June 2018 (MFI 1), a digiboard identification procedure of 12 July 2018 (exhibit 1) and the pre‑recording conducted on 7 February 2020 (MFI 2).
The giving of evidence by way of a child witness interview and pre‑recorded evidence taken from the remote room and transmitted to the court room by way of CCTV is a routine practice of the court and applies in all cases of this nature. As a matter of law I cannot draw any inference against or adverse to the accused as the result of the court adopting this standard procedure.
Edits pursuant to an order of the court or an agreement by the parties were made to both the child witness interview and the pre‑recorded evidence. As a matter of law I cannot draw any inference against or adverse to the accused as the result of those edits.

Ms A's evidence of the location and house where the offence occurred

Ms A says her father drove her to the house where the offence occurred. In one part of her evidence she said it took about 5 ‑ 10 minutes to drive to that house. In another part of her evidence she said she did not remember how long it took. She said it was not far from their house but she did not know the route they had taken to get to the house. She says the offence occurred in summer time when she was either 12 or 13 (ts 25 - ts 27) and she thought she was wearing shorts and a shirt.
She said they drove south and they did not go close to the beach or cross the freeway (ts 38). She said they could not have driven east or west because the 'suburbs surrounding would not fit in with the characteristics from what she remembered' (ts 28).
She said the house was either a corner house or next to a corner house. I do not attach any significance to the fact that she was unsure in her evidence as to whether the house was a corner house or next to a corner house. When they arrived it was still daylight although it later became dark and pitch black.
She did not see any house number but said it was a white house with grass and she remembered what it looked like. She said she was at the house for about an hour.
She said that there was a pole outside the front door made of concrete or a hard material, not a pipe but like a construction pole (CWI ts 14, ts 21, ts 22). When she walked through the front door, down the hallway there was a mirror on the wall and to the left a door to a bedroom. On the right side there was a double door to a theatre or front room. In cross‑examination she agreed that the doors were not opened and it was simply her guess or assumption as to what was behind the doors based on her belief that a lot of the houses were the same.
Down the hallway was a kitchen that lead to the main lounge area. There was a couch in the lounge room which she felt was grey. There were glass doors that linked to the outside and a pool on the side where chairs where. She said the pool was out the back to the left. She said the living room was attached to the outside part and there was a garage on the right side.
Ms A said the offender was 'doing construction' and that there was a 'bit of construction going on'. She said it was the outside of the house that was being changed and she was shown around the construction bit which was on the side (CWI ts 3, ts 12, ts 13, ts 14, ts 36) and there was a garage on the right side.

Ms A's evidence about the offence

Ms A said that when she and her father entered the house through the front door she sat down on the couch and a chat occurred involving her father and the man. She said that the man showed them around the house.
She said her father told her to undress and she did so. She said she was crying. Her father had a chat with her. The other male undressed and had anal intercourse with her. The intercourse took place either in the living room or on a lounge chair, later saying that she was leaning over the lounge chair and the male was on top of her.
She said her father was in the room. She was crying and fighting the other male, telling him to stop and was hysterical. Her father was trying to calm her down.
Her father became angry that she was not doing what he wanted her to do and went outside and had a smoke. She felt bad because he was angry and also went outside.
She said this was the first time she had anal intercourse. She did not want it, did not like it and hated it.
After talking to her father outside they went inside and then left the residence because she was just a mess.
She said no‑one else was at the home and it was the first and last time that she saw the man.

Ms A's evidence about the man who anally penetrated her

Ms A first described the man who had anal intercourse with her in the child witness interview of 21 June 2018 which was approximately 3 years, 2 months to 4 years, 6 months after the incident. She was describing a man she had never met before or since. Ms A said she did not know his name and there was nothing about his eyes or teeth that drew her attention to him. She said she did not remember what his face looked like. She never looked at his face. She kept her head down because she did not want to look at his face said that obviously there were times when she did.
She said she had been trying to block out the memory of what occurred as much as she could.
She said the offender was '40 ‑ 45 ‑ 50', British with a strong British accent, later saying it was an English accent. He had grey, 'sort of like light grey to dark grey hair', 'short, grey black hair' and his hair 'like, stood up like grass like it was spikey'. She said his hair went from grey to dark. She remembered parts of it being light grey and it being spikey hair.
She said he was a little bit stocky, tall and had white skin. She could not say how tall the man was and could not say if he had any significant features.
In her digiboard identification conducted on 12 July 2018 she said she 'would say' image number 2, which is Mr Baldwin's image, having prefaced her identification with the remark that she was 'leaning' towards photograph 2.
She agreed under cross‑examination she was not saying that this was actually the man who did these things to her, but of all the photos he was the one that most closely resembled her description of the offender and said that image looked the closest to the memory she had of the offender. She said she was not sure about the offender's identity (ts 32).
Neither Ms A's evidence describing the offender nor her digiboard identification is capable in law of amounting to positive identification evidence of Mr Baldwin and such evidence is circumstantial identification evidence that Mr Baldwin has some characteristics that closely resembled the person who abused her.
I accept that Ms A was doing her best to assist the court. She has been the subject of horrific sexual abuse over a number of years at the hand of at least eight males including her father.
There was a delay in Ms A reporting this matter to the police. No complaint was made by Ms A about this matter until 21 June 2018, a delay of between 3 years, 2 months and 4 years, 6 months after the offence occurred. A police investigation was commenced on that day by the taking of a child witness interview.
As a matter of law the delay in making a complaint that a sexual assault has occurred does not necessarily indicate that the sexual assault did not occur. A person who is sexually assaulted may have a good reason for not complaining.
At the time of the incident Ms A was aged approximately 12 - 13. The person who sexually assaulted her did so with the approval and encouragement of her father. At the time she was not living with her mother or her father's new partner but alone with her father. There is no typical, proper or normal way for a person to react to a sexual offence being committed against them. Some people may never complain, some may complain immediately and some may not even realise that an offence has been committed against them.

The delay in the complaint is taken into account by me however notwithstanding the delay, I am satisfied beyond reasonable doubt by Ms A's evidence that she was anally penetrated without her consent by a man who her father had taken her to. I accept her unchallenged evidence in this regard.
Her father's evidence that on the way home she said that the man 'tried to put it in my bum, dad' is evidence of recent complaint, which is not admissible to prove the truth of what was said but admissible to show the consistency of her conduct. Even accepting that she made those remarks to her father, it does not cause me to doubt her evidence. There may be many reason why a 12 or 13‑year‑old girl would be reluctant to tell her father, who was already angry at her, that anal penetration had occurred.

Mr C

Background matters not in dispute

Mr C is 47 years of age and is the father of Ms A. He said his memory was not good, describing it as pretty bad and shocking and said he spent the last five years trying to put the incident behind him and he chose not to remember specific details.
He is currently serving a 23 year period of imprisonment for 68 offences of child sexual abuse against Ms A. He had been introducing his daughter to men so that they could sexually abuse her and he took her to a number of different locations for that purpose.
Some of those offences to which he pleaded guilty relate to procuring men to sexually abuse his daughter, others relate to his own sexual abuse of her.
Mr C said he pleaded guilty to a number of offences that he had not committed because he could not recall every incident and he did not want his daughter to go through a trial so he just 'owned' it.
One of the charges to which he pleaded guilty was that between January and November 2014 at Clarkson he procured another to sexually penetrate Ms A's anus with their penis.
As a matter of law the fact that Mr C pleaded guilty to that offence is not evidence in any shape or form whatsoever that Mr Baldwin is guilty of this offence.
Mr C's plea of guilty does however mean that he is an accomplice to the alleged offence committed by Mr Baldwin. As a matter of law an accomplice's evidence does not need any corroboration or independent support before it can be relied upon. The fact that Mr C is an accomplice is no reason in itself to reject his evidence.
However because Mr C has admitted to being involved in the criminal offence for which Mr Baldwin is charged I bear in mind when considering his credibility that he may have a certain degree of self‑interest in giving his evidence and seek to justify his own conduct so as to limit his involvement and shift blame to Mr Baldwin. In this regard I note however that he has already been sentenced for his involvement in that offence. Although I find Mr C not credible on certain issues, that is, for reasons other than him being an accomplice.
Mr C denied he was guilty of penile penetration of his daughter's vagina when she was 10 years of age and doing her bodily harm, notwithstanding that he pleaded guilty to that offence. He said that it was a false charge but he was not prepared to take the matter to trial. He was taken to four other charges to which he pleaded guilty in 2019 and said he was guilty of two of them but not the other two.
Mr C said that in 2013 to 2014 he became involved in sexual offences against his daughter. He said he had gone through a separation and did not have any friends, was a workaholic and lonely and was looking for people to have a beer with. He used an online application known as 'craigslist' which had a public forum upon which you could advertise.
Mr C said he placed advertisements on craigslist along the lines of 'single dad looking for people to meet up with'. He said there were nothing in the ads that he placed that specified his daughter, he never referred to his daughter in the ads and at no stage did he advertise his daughter for sexual pleasure. Under cross‑examination this was demonstrated to be totally incorrect, the full and graphic details of which I need not recount. (ts 270 – ts 272) His statement to one person who replied to his ad that 'no one will ever touch my daughter in real life' (ts 251) was demonstrably incorrect.
The State rightly accepted that Mr C was not particularly frank or forthright and minimised the extent he advertised his daughter's access, the extent to which he made her available to others and the extent to which he sexually abused her.
Mr C said many people responded to his advertisements. Some of those who responded wanted to meet Ms A and do things to her but nothing came to pass because either he or they backed away from meetings and at some meetings nothing sexual occurred.
Mr C said people would respond to his ads by email. He explained that craigslist had their own internal email system and as I understood it, he received email responses via the craigslist application. The response received in this way would identify the responder with a craigslist designator and then show their message. In this way the responder's true email address was not disclosed. As I understood the evidence, some responders would include in their message there Kik (another social media online messaging application) username and email. Mr C said the craigslist email service was not very reliable so when he received responses to his ads he would generally move to communicating with the responders via Kik.
Mr C said that that Kik was almost inevitably the only form of communication that he used to respond to those who answered his ads.

Mr C's evidence about the location and house where the offence occurred

Mr C said he had a memory of two specific incidences which occurred in locations reasonably close to where he lived in Butler. His daughter was sexually abused at one of those locations, but not at the other.
He said the offence definitely did not occur in 2015 and his daughter was 12 or 13 at the time of the incident.
He remembers someone who responded to his ad with the username glen456 or glen‑something. He corresponded with that person and that led to a meeting at the address given to him by that person. He went to that meeting with his daughter. He could not recall how long after communicating with that person the meeting occurred but said it would have been no more than one or two days.
He said he did not remember the street name but he remembered that the address was in Clarkson a couple of minutes from Connolly Drive. He recalled the house being around about 10‑years‑old and on a corner block. He said it was just an average house and there was nothing particular about the house from the outside. He said he did not pay a lot of attention to the outside of the house.
He said they were at the house for about two to three hours. He gave various times for arriving at the house including about 6.00 pm, 7.00 pm or 8.00 pm possibly.
He said the interior of the house was nice and clean and tidy. There was a big open area. He said he thought there was an L‑shaped leather couch which was black and there was a games room that had had some work done to it. He said there was a bar in the games room with either a timber base or panelling and the games room led to an outside area. He also said in evidence that there was a spa at the bar (ts 279).
He said he did not go outside but he could see the outside through the glass door and there was an outdoor pool, although it was not a large pool. On 27 February 2018 he drew a diagram for the police of what he recalled of the house (exhibit 3). The diagram does not show any outdoor pool (ts 348) and at that time he could not recall if the garage was out the front of the house (ts 418). I do not attach any significance to these points as the diagram does not purport to go into details.
Mr C said while they were in the house they had general chit chat conversation about marriage breakup and the house. The man said that he had done a lot of work around the house including on the bar area. He recalled drinking beer and going to the toilet.

Mr C's evidence about the offence

Mr C said that a sex act took place between his daughter and the man. He described the act as the man trying to anally penetrate his daughter on the lounge. He said it did not last for long. In one part of his evidence he said that he was not watching. In another part he said he looked for a couple of minutes and could not bear it anymore and walked outside. He said he was getting frustrated at what occurred and went outside for a cigarette and his daughter was not far behind him.
Mr C said on the way home Ms A said the man 'tried to put it in my bum, dad'.

Mr C's evidence about the offender

Mr C called the person he met at the house Glen and said no‑one else was there. He described the man as being middle‑aged, 45 - 50, tidy, well spoken with an English accent, grey hair, was not overly tall, an average build, a little above, bit above average, but not thin or overweight.
On 4 July 2018, some 3 years, 3 months to 4 years, 7 months after he saw the man for the first time he participated in a digiboard identification procedure (exhibit 6).
During that procedure he said it was such a long time ago that he could not even make a guess. He told the police that the one image that came to mind was probably image nine, maybe because he 'is the most clean cut looking guy there'. When he picked image nine he said he could not be 100% sure but there was just something about his face.
When Detective Miley put it to him that he had identified number nine as a person involved he replied 'as possible'. When asked why he replied 'I don't know, just something about him. I don't know clean cut, hair'. When ask if there was any reason why, he replied 'no' and when asked why that person stood out he replied 'there was something about his face, maybe I have seen someone similar to him'. He told the officer he was not '100%'.
When specifically asked whether his possible selection was in relation to something that happened with the man and his daughter he replied 'something about his face' and when the officer asked if this was from some incident that he clearly remembered he replied 'No, definitely not'. He 'just stood out. Whether I have worked with a guy similar or met him in the past similar to that just something about him'.
When asked if it was possible that was the 'fella we are talking about' Mr C replied 'there is a slim chance. Just trying to picture the guy. I just cannot picture the guy'.
This digiboard evidence is not capable in law of amounting to a positive identification of Mr Baldwin and at its highest it is circumstantial identification evidence that Mr C recognises the face of image nine.
His identification was not from any incident that he clearly remembered and could be because he had worked with or met a similar person in the past. Mr C said at the time that he could not picture the guy who the police were interested in.
Mr C's evidence effectively was that he selected Mr Baldwin's image because he could have worked with or met a similar person in the past.
As a matter of fact, given the matters I have referred to, I give Mr C's digiboard evidence little weight as circumstantial identification evidence.
Mr C's description of the offender is not positive identification evidence however it is circumstantial identification evidence that Mr Baldwin has some characteristics that resembled the person who committed the offence.
There are a number of significant difficulties in relation to Mr C's evidence that the man who offended against his daughter was the person with the user name glen456 or something similar.
Mr C has made a number or prior statements that are inconsistent in material particulars with his evidence. A prior statement made out of court by Mr C, which is inconsistent with his evidence, is not evidence of the truth of that statement unless that prior statement was adopted by Mr C in his evidence.
If a prior inconsistent statement is established it does not mean by that fact alone Mr C's evidence is necessarily unreliable: FGC v The State of Western Australia [2008] WASCA 47.
However, whilst the contents of Mr C's out of court statements are not evidence of the truth of those statements, the fact that a prior inconsistent statement has been made can affect Mr C's credibility. Whether and how it affects his credibility is a matters of fact.
On 4 July 2018 when being formally interviewed by police Mr C was told that his daughter had complained about an act of penile sexual penetration (ts 296), although not told it was anal penetration. He was told by the police that his daughter said she was taken to two locations near his house. Mr C then told the police about a residence in Clarkson which was a townhouse rented by a council worker which had high visibility gear hanging up. The person had no accent, was Australian and Mr C said this daughter was never left alone with that man and nothing sexual happened.
When told by the police that his daughter was talking about a person in Clarkson and the house was on the corner he told the police about a visit he and his daughter made to a man with an English accent, a large house, a bar, an L‑shaped sofa and who said he had done a lot of work to the house himself. He told the police that 'that nothing serious happened and 100% no penetration, nothing like that'.
Mr C's previous statement that nothing serious happened is clearly inconsistent with his 2020 evidence that the man tried to anally penetrate his daughter.
On 4 July 2018 he was specifically asked by the police if he could remember the username of the person and replied 'he did not'. When Detective Miley said 'if I were to say the name Glen 456 or just Glen' he replied 'not 100 percent sure, no' (ts 249).
Notwithstanding his evidence in 2020 that he believed the man at the house with the English accent was the person with the username glen456 in 2018, Mr C did not link glen456 to that incident, despite being specifically asked.
In addition the evidence of Mr C and Detective Miley established that on 1 August 2018 a statement was obtained from Mr C. He had been informed by the police that he had sent email to another user called glen456 on 10 January. In his statement Mr C told the police he did not recall those emails sent to glen456 by his hotmail account and he did not recall the true identity of glen456. His statement said the name Glen rang a bell but did not know why it did. The statement said he did not recall what the emails were about and that he was not sure where or how he meet this user and that he did not remember meeting the glen456 person (ts 414 – ts 415).
Further, the evidence of Mr C and Detective Miley established that on 27 February 2019 Mr C was informed that his daughter was alleging an act of anal penile penetration had occurred at that incident (ts 281, ts 299). He could not recall the man's name and it is not disputed that at no time did he refer to knowing glen456 or Glen in connection with that incident (ts 313, ts 314).
Mr C and Detective Evans' evidence establishes that the police saw Mr C again on 27 March 2020 at the request of the DPP. Mr C already knew that the 'guy was on charges'. Detective Evans' evidence, which I accept, was that he was contacted by the DPP and asked to visit Acacia Prison to speak to Mr C over an identity issue in relation to glen456.
Detective Evans said to Mr C 'I am here to talk to you about a person you know as glen456'. He said Mr C then disclosed what he recalled about his dealings with a person with that username. Mr C's statement of that date said 'We stayed at his house for a couple of hours, two hours at the most. I don't remember much else, as it was a long time ago and it was definitely in Clarkson' (ts 268).
The statement made no mention of any sexual abuse occurring in that house. Mr C agreed he never said anything about what happened at that house and just told the police that he was at a house in Clarkson with someone called glen456 (ts 269). The statement of 27 March 2020 is not treated by me as a prior inconsistent statement as it is clear that Mr C was being asked about glen456 and not asked about what happened at the house.
However the fact remains that Mr C positively stated in 2018 and 2019 that he did not know the identity of the username glen456 in circumstances where he was aware that was an issue the police were interested in. He also told the police nothing serious happened. His evidence in 2020 is that he recalls now that glen456 is the person whose house they went to and that a sex act took place with his daughter when the man tried to anally penetrate her.
Mr C's explanation for his prior inconsistent statements were that he made the connection between the man at the house in March 2020 because he had thought about the incident more, had done a lot of deep thinking and when the police mentioned glen456 he was able to link it because it was clearer. He said he had no proof but it just 'made sense' and he remembered the glen456 username because on the way home from meeting with glen456 his daughter said the man tried to put it up her bottom.
The remarks made by his daughter were known to him in 2018 and 2019 when he was denying knowing glen456. Mr C, on his own admission, has a bad and shocking memory, and had been trying to forget these matters and yet suddenly remembers the glen456 connection when the police mention it just before the trial.
His explanations lack plausibility. He was adamant in 2018 that he did not recall glen456. In 2019 he did not connect glen456 with this incident. He is now making the connection approximately 11 days before the trial in circumstances where he knows a man has been charged. The numerous prior inconsistent statements cause me to doubt his evidence on this point.
How unreliable Mr C's ability to recall matters is illustrated by his answer to the question of when the most recent statement was taken from him. Mr C replied in around February 2019 and did not recall until specifically prompted that the police came to see him on 27 March 2020, only 11 days before he gave that evidence.
When asked who came and saw him he replied 'the same officer that initially interviewed me about this case' and agreed with the proposition that it was Detective Miley who came to see him (ts 238, ts 239). This is demonstrably incorrect. Detective Miley was self‑isolating and did not attend the prison. Detective Evans was the officer who attended and spoke to Mr C. Mr C was mistaken in his evidence as to who visited him and when he had made his last statement to the police. This graphically illustrates the unreliability of his recollection over some matters.
Mr C was not frank or forthright and minimised the extent he advertised his daughter access, the extent to which he made her available to others and the extent to which he sexually abused her. He has admitted to having memory problems. He has been shown to incorrectly recall when and to whom he made his last statement only 11 days previously and has shown to have made prior inconsistent statements over crucial matters.
I do not find Mr C a reliable witness on this issue due to those matters. I find his evidence that the man he visited used the user name glen456 unreliable and as explained, there is no other evidence that establishes that man he visited is glen456.
There are some discrepancies between Ms A and Mr C's descriptions of the house. Ms A thought the couch was grey. I note that Mr C said he was sure the couch was black and was L‑shaped. The photographs show Mr Baldwin had a light coloured L‑shaped couch. In that regard there is no evidence when it was first placed in Mr Baldwin's house. The plans are of no assistance and I would not infer that, as it was there in 2017, it was also present in 2014 or 2015. The State have not proven to my satisfaction that the L‑shaped sofa was at Mr Baldwin's house in 2014 or 2015. I mention this merely out of completeness as the presence or non‑presence of a generic L‑shaped sofa makes no difference to the strength of the State's case.

Mr C said the offender's house had a bar with a timber base or panelling. Ms A made no mention of this. In relation to this conflict I prefer Mr C's evidence. It is a matter more likely to be noticed by an adult who was drinking at the premises than a 12 or 13‑year‑old child. Mr Baldwin's house had a similar bar in 2017 although we do not know when it was installed or if it was in the house when he purchased it. I infer from its presence in the house in 2017 and Mr Baldwin's statements to the police that he did renovation work shortly after he moved into the house in August 2012 and that the bar was present in 2014 and 2015.
In relation to Mr C's description of the offender and the house, I have scrutinized his evidence with care, bearing in mind the issues I have previously referred, however I accept it as it is generally supported by Ms C's evidence.

Detective Miley

Detective Miley is a police officer attached to the Child Exploitation Unit of the West Australian Police Force. I found him a truthful witness and accept his evidence.
On 21 June 2018 he became aware that Ms A had made further disclosures of sexual abuse. Up until that time she had made disclosures of sexual abuse carried out towards her by her father and seven other men. However on 21 June 2018 she alleged that she was offended against by another two persons, one at a house near her house and one at a more distant location in Perth.
I have summarized elsewhere Detective Miley's interview with Mr C on 4 July 2018, Mr C's statement of 1 August 2018 and the contact with Mr C on 27 February 2019.
On 21 November 2018 Detective Miley attended Mr Baldwin's workplace and arrested him on suspicion of this offence.
A search warrant was executed and the photographs taken on 21 November 2018, at least 3 years, 8 months to 4 years, 11 months after the offence is alleged to have occurred (exhibits 7.1 ‑ 7.36).
Detective Miley said he had visited the house in April 2017 in connection with another matter and the house was much the same as it was when photographed. I accept this evidence. As a matter of law the fact that Detective Miley had prior dealings with Mr Baldwin is irrelevant (other than to establish that the house was in April 2017 in the same condition as shown in the photographs) and cannot cause me to be prejudiced against Mr Baldwin.
Detective Miley said that there were no mirrors in the public area of Mr Baldwin's house when he attended in November 2018. There were two mirrors; one in the master bedroom and another in a bedroom off the hallway.
He said in November 2018 Mr Baldwin's house had a swimming pool out the back and an L‑shaped couch within the living area and generally confirmed with the description given by Ms A of the house where the offending occurred.
Exhibit 8 is the Shire approved plans for the houses construction in 2007 and exhibit 9 is a plan for a swimming pool which was approved in 2008.
Detective Miley conducted an electronically recorded record of interview with Mr Baldwin on 12 November 2018 (exhibit 11). Edits pursuant to an order of the court or an agreement by the parties were made to this interview. As a matter of law I cannot draw any adverse inference against the accused as the result of those edits.
During the interview Mr Baldwin said that he had lived at the address in Clarkson since August 2012. He said he had done renovation work to that property himself, including replacing the pool fence, putting the patio doors on and the blinds on not long after he moved in.
Mr Baldwin told the police that the exterior of the house was the same colour and same rendering that it had been when he moved in.
He said there had never been any mirror in the hallway or the living room.
He said that he had a username glen_456 which was a Kik username but was not an email address.
Mr Baldwin said he chatted with many people online. He had used craigslist 'many years ago' for adult sexual fetish material that did not involve children.
He denied that any man had brought a child to his house or that he had sexually penetrated any child on the patio. He said he had no memory of that. Later he said that he could not really remember and said he had a good memory. He asked the police to provide specific dates of the alleged offence and said he could remember most things by dates and times but needed to know times so he could put things within a timeframe. He told the officers that 99% of the time he can normally track back and figure out what he was doing at any particular time if he was given the time and date.
He said there were occasions where he did not remember things when he had had a lot to drink. He described an incident where he had blacked out when he was drunk and when he woke up he was in Lancelin but he could not recall how he got there and did not know what he had done all day or night.
I reject the suggestion by the State that Mr Baldwin could have committed this offence and not remember doing so due to intoxication. Whilst it is true that Mr Baldwin told the police he had alcohol induced blackouts there is absolutely no evidence from Ms A or Mr C that the offender was intoxicated or affected by alcohol.
At no stage during the interview did Mr Baldwin admit committing the offence.
Detective Miley said that when the police arrested Mr C they seized his telephone and accessed his email account. Detective Miley said that other officers had downloaded Mr C's phone and he had access to the interrogation of phone reports (ts 421).
When he examined the sent folder of Mr C's telephone they located, in an online account accessed by Mr C's telephone 10 purported emails addressed to glen456 on 10 January 2014 between 4.01 pm to 7.34 pm. Detective Miley said he assumed they had been sent. He agreed that there was nothing to show that these purported emails had been sent from Mr C to Mr Baldwin or received by Mr Baldwin.
The precise email address that these purported emails were sent to could not be ascertained. None of the purported emails could be downloaded. When Detective Miley attempted to download them by clicking on glen456 no message appeared (screenshots of what Detective Miley observed are exhibits 12.1 and 12.2). When he then tried to access them by use of the police department's secure wifi, each purported email displayed the words 'this message has not been downloaded from the server' (screenshots of what was observed when undertaking this procedure are exhibits 10.1 ‑ 10.2).
The police were not able to ascertain the content of the purported emails nor their subject heading or the email address to which they were sent. There is no evidence that they were received or sent (ts 379).
There is no evidence from any expert as to why, when the officer clicked on the username glen456 on the purported emails, the email address did not appear nor was there any expert evidence as to whether the phrase 'this message has not been downloaded from the server' means that the message has been sent to the intended recipient but could not be retrieved because it could not be downloaded from the server, or whether the email had not been sent to the intended recipient because it had not been downloaded from the service.
Detective Miley agreed that the police had access to Mr C's hotmail account and could have, but chose not to, access Mr Baldwin's hotmail account because of the lapse in time (ts 422, ts 423). This is a forensic disadvantage suffered by Mr Baldwin.
Detective Miley explained that because hotmail and craigslist were overseas based online application providers, an application under the Mutual Assistance Regulations had been made for access to the electronic accounts held by those bodies. That request requires approvals from the Governor General and United States Authorities which have not at this stage been granted (ts 347, ts 403).
Detective Miley said the police had seized all Mr Baldwin's electronic devices being his phone, laptop and hard drives in 2017 before these allegations against were made and the police could not find any evidence of Mr Baldwin communicating with Mr C (ts 364, ts 403). He agreed that Mr Baldwin had constantly denied any communication with Mr C.
The police were unable to establish whether any email from Mr C to glen456 were received by Mr Baldwin (ts 365). Nor were they able to establish any reply by Mr Baldwin or glen 456 or similar descriptors to any craigslist advertisement placed by Mr C (ts 379, ts 380) or that any email was sent from Glen or glen456 to Mr C, nor that Mr C had Mr Baldwin's email address (ts 377).
This evidence shows that the user name glen456 appears on the purported emails in the sent section of on online application accessed on Mr C's phone. In view of my rejection of the reliability of Mr C's evidence in relation to his knowledge of, and dealing with, glen456 and the absence of any expert evidence dealing with the issues, I have referred to means that those purported emails merely establishes that Mr C had knowledge of the username glen456.
Detective Miley said that he did not prepare the digiboard. His role was to advise the designated officer who prepares the board of the person he wants included on the board and then the designated officer would select the other 11 images. The photo of Mr Baldwin on the digiboard was from his driver's licence.
Detective Miley agreed that the digiboard consisted of nine photographs of people in their 30's, one person who was 44 and one person whose age was not given at the time the photographs were taken. He agreed that many of the images did not have persons with grey hair and a few images did not have hair that was spiked up.
I agree with the State's submission that it is not the age of the persons whose images are displayed on a digiboard that is relevant but whether they all look to be of similar age and appearance.
Many of the images do not have persons with grey hair and a few images did not have hair that was spiked up but it does not seem to me that it can fairly be said that the images are all so dissimilar or there is any feature of the digiboard make‑up that automatically draws the attention of the viewer to Mr Baldwin's image.
Detective Miley said Mr Baldwin's house was yellow and agreed that there was no evidence to show the exterior colour had been changed. He said Mr Baldwin's house was not unique and was not a house that would stand out and it does not stand out from the rest. He agreed that there were many swimming pools in houses associated within the metropolitan area but could not say how many were in the Clarkson area.
Detective Miley was cross-examined to the effect that he ran the investigation with a closed mind and with tunnel vision. There is no substance in these allegations. Detective Miley investigated Mr Baldwin in connection with this offence. Other persons whose communications were located on electronic devices seized from Mr C were investigated by other officers which is not an uncommon police procedure.
I reject the assertions that Detective Miley had made his mind up or he investigated only with tunnel vision.
I accept that Detective Miley had suspicions in relation to Mr Baldwin. I also accept that his interview with Mr Baldwin was quite robust (exhibit 11). For example, he put to Mr Baldwin there was email correspondence between himself and Mr C when in fact there were not (ts 363). Detective Miley agreed that he had told Mr Baldwin that the victim had described him very well in circumstances where he knew the victim and said she had no recollection of his face and had only given a description of his hair and his house (ts 365). Detective Miley said he had misspoke when he said the victim had described Mr Baldwin's features, when she had said she could not describe his features. At the end of the day nothing turns on these matters.

Detective Evans

I found Detective Evans to be a truthful witness and accept his evidence.
Detective Evans' evidence has previously been summarized by me when dealing with the events of 27 March 2020.
In addition to those matters Detective Evans also took 12 photographs on A4 size paper to that interview. The photographs were of houses and included a photograph of Mr Baldwin's address. Detective Evans said he laid the photographs on the table but Mr C could not identify any particular house.

Mr Baldwin

Mr Baldwin election not to give or adduce evidence under oath or affirmation in his defence. I repeat [17] and [18] in relation to that decision.
There is however evidence from Mr Baldwin before the court. That evidence consists of the answers he made to the questions put to him in the electronic record of interview, the contents of which have been summarized in Detective Mileys' evidence (exhibit 11). I repeat [30] ‑ [32] in this regard.
Whilst it is true that Mr Baldwin was not subjected to cross‑examination in court, it is fair to say that he was robustly questioned and his answers robustly challenged by the police. He was questioned at a time that was closer to the events which allegedly occurred although even though that was still some 3 years, 8 months to 4 years, 11 months after the alleged offence.
The manner in which Mr Baldwin answered some questions was somewhat unusual, in particular, his lack of emotion when confronted with these horrendous allegations. Demeanour is not an accurate guide to reliability. However he made no admissions as to the offence and none of the answers he gave about anything to do with his house, his user name and email address have been shown to be incorrect.

Conclusions

I am satisfied beyond reasonable doubt that Ms A was anally penetrated without her consent when she was aged 12 or 13. I found her evidence in this regard compelling and accept it as truthful.
In relation to the identity of the offender, the crucial issue in this trial, the State's case is circumstantial.
The State rely on the description of the offender by Ms A and Mr C and their digiboard identifications as circumstantial identification evidence to establish that the offender and Mr Baldwin share several similar physical characteristics.
The State rely on the description of Ms A and Mr C of the location and the offender's house as circumstantial identification evidence, establishing a striking similarity between that house and Mr Baldwin's.
The State rely on the evidence of the purported emails as supporting Mr C's evidence that he had communicated with and taken his daughter to the house of a person with the username glen456 or something similar.
The State rely on Mr Baldwin's admissions in the electronic record of interview that he used the username glen_456 in electronic communications as providing support for the inference that he was the offender.
The State rely on Mr Baldwin's admission to the police that he used the internet to chat about sexual matters and lived alone in the area where the offences occurred and had the opportunity to commit the offence.
The State say the combined weight of these factors means that I can be satisfied beyond reasonable doubt that Mr Baldwin is the offender.
As a matter of law circumstantial identification evidence of a person or an innate object is treated the same. Circumstantial identification evidence neither requires nor excludes a Domican v The Queen (1992) 173 CLR 555, 561 - 562 type warning. As a matter of law I am obliged to consider whether a warning is required.
What calls for a judicial warning is the court's knowledge based on the experience of courts of the possibility that an honest but mistaken witness may very convincingly, but wrongly, identify an accused or an object associated with the crime giving rise to a perceptible risk of miscarriage of justice.
Before a warning is required the circumstantial identification evidence of either a person or object must be at least a significant part of the proof of the guilt of the accused and there must be some feature of the evidence in respect of which the court has special knowledge, experience and awareness that may adversely affect the evidences reliability and may not be evident to a trier of fact about which a tribunal of fact needs to be warned: Festa v The Queen (2001) 208 CLR 593 (McHugh J); Weglewski v The State of Western Australia [2020] WASCA 28. Both factors are present in this case.
Whilst there is no distinction in principle between visual identification or persons of objects it has been said that the possibility of mistake plays the greater part in relation to the identification of a person and the lack of distinctiveness will usually play the greater part in relation to the identification of an object: Weglewski.
As a matter of law I warn myself that honest and confident witnesses can give evidence relating to identifying features of an offender or object which can be inaccurate. Neither a witness' honesty nor confidence guarantees the reliability of the evidence. An honest witness can be mistaken, a convincing witness can be mistaken, and a number of honest and convincing witnesses may be mistaken. Proven miscarriages of justice have occurred in the past as a result of mistakes in identifying persons or objects. The circumstantial identification evidence of Mr Baldwin and the house may be relied upon only after it is examined with care, bearing in mind the warning that I have referred to, and the reasons behind it.
I find that both Ms A and Mr C were doing their best to describe the offender and his house however in both cases they were first asked to recall identifying features between 3 years, 2 months and 4 years, 6 months after the alleged offence. In addition both gave evidence a further 20 months after that and neither had previously met the offender and saw him on this occasion for what appears to have been about an hour.
Ms A's description of the offender is summarized at [63] ‑ [64] and her digiboard evidence is exhibit 1. I accept her evidence in this regard.
Mr C's description of the offender is summarized at [99]. I accept his evidence in this regard.
Mr C's digiboard evidence is exhibit 6. As a matter of fact I give Mr C's digiboard evidence little weight, even as circumstantial identification evidence, in identifying the offender for the reasons expressed in [101] ‑ [107]. Mr C's digiboard identification must be considered in the context of his remarks that the person he identified was from any incident that he clearly remembered and it could be that he was identifying the image because he had worked with or met a similar looking person in the past and is therefore of little weight. However the totality of Ms A and Mr C's circumstantial identification evidence must be considered.
Ms A and Mr C's description of the offender and their digiboard evidence satisfy me that the offender had several physical characteristics that, whilst not unique, are similar to Mr Baldwin's physical characteristics.
The State has proven to my satisfaction the primary facts that the offender was white skinned, aged between 40 ‑ 50, had an English accent, shortish light grey to dark black hair which was spikey, his build was a bit stocky, little bit above average but not thin or overweight and he could be described as tall but not overly tall and he was tidy and well spoken.
I am satisfied that Mr Baldwin shares these characteristics as can be seen from his photograph on the digiboard and his appearance in the EROI and in court.
Ms A's description of the house where the offence occurred is summarized in [46] - [52]. Mr C's description of the house where the offence occurred is summarized in [91] - [95]. I accept that both Ms A and Mr C were doing their best to describe the house and other associated objects.
In relation to Ms A's description of the offender's house there are some matters that require consideration. Ms A has described two distinctive features of the offender's house that did not exist in Mr Baldwin house in 2017.
The first significant esoteric feature of the offender's house was that Ms A said there was construction going on when the offence occurred which was 2014 or 2015. She says the offender was 'doing' construction and she was shown around the construction 'bit' (CWI ts 3, ts 12, ts 13, ts 14) and even told the interviewers the side where the construction was occurring. She said that construction work was going on outside (ts 36). Mr C, who on his own admission has a shocking memory, made no mention of construction work going on at the time of the visit, although he referred to the man saying he had done some of the work himself. In relation to this conflict I prefer Ms A's evidence because of the detail she provided and as it was one of the very first things she said to the police when describing the incident (CWI ts 3).

Mr Baldwin told the police that he had done renovation work to that property himself including replacing the pool fence, putting the patio doors and blinds on and decking on the roof pretty much straight after he moved into the house which was in August 2012. He told the police that renovations and decorating were an ongoing thing since he moved in but went on to explain that in the context of referring to shelving, and decking at his girlfriend's and changing the colour of the interior walls and decorating the rooms (EROI ts 6 - ts 8). He did not agree that construction/renovation work was occurring at the beginning of 2014 to mid-2014, saying that he did not remember (EROI ts 13 ‑ ts 16).
The delay in reporting the matter means that Mr Baldwin is prejudiced in that he has lost the opportunity of having the his house inspected shortly after the alleged offence by the police to show that construction work was not occurring and therefore support his denial that the offending took place at his house.
Another esoteric feature of the offender's house is that Ms A described the house as having a pole filled with concrete at the front of the house, 'not a pipe like a construction pole'. Mr Baldwin's house, as shown by the 2007 plans and photographs taken in 2018, does not have such a pole. It has a portico. The State say that Ms A was referring to the portico area. Ms A's description of a pole, a construction pole even one filled with concrete, does not meet the description of a portico consisting of brick pillars. Ms A's demonstration during her evidence of what she was describing did not add any clarity to the matter. The delay in reporting the matter prejudices Mr Baldwin in a similar manner.
Ms A has also described distinctive features of the offender's house that differs from Mr Baldwin's house. Ms A has consistently maintained that the house was white. She told the police in 2018 that the house was white. In 2020 she agreed that she had a very clear recollection of the house being white. It is not in dispute that Mr Baldwin's house is yellow as shown in the photographs (exhibits 7.3 - 7.6) taken in 2018 and Detective Miley said the house was the same in 2017 (ts 405).
Ms A said it was daylight when they arrived at the house and that she had a clear recollection that the offender's house was white. The State say the 2018 photographs show that the house has a white garage and a white coloured roof and this may have been why Ms A described the house as white. This overlooks the fact that Ms A said she had a clear recollection that the house 'itself' was white (CWI ts 13, ts 28).
Mr Baldwin said in his EROI that the front of the house had not been painted since he moved in. There is no evidence to show that the house was not that colour in 2014 - 2015. It has not been proven to my satisfaction that Mr Baldwin's house was white at the time of the offending.
Another feature of the offender's house is that Ms A said it had a mirror in the hallway.
Mr Baldwin said in his EROI that there had never been a mirror in the hallway of his house. Photographs taken in 2018 show there was no mirror in the hallway of Mr Baldwin's house. The State point out that there were mirrors in the main and other bedroom. Ms A did not give any evidence that she had gone into either bedroom nor did Mr C.
Detective Miley's evidence was that the 2018 photographs show the house as he saw it in 2017 at least 2 years, 9 months to 3 years after the offence occurred. If the alleged offence had been reported without delay then Mr Baldwin's house could have been examined by the police contemporaneously with the offence.
Mr Baldwin has suffered a forensic disadvantage as a result of the delay in making a complaint as he has lost the opportunity to have the result of that contemporaneous examination and is prejudiced because he cannot have independent evidence establish that his house did not have a mirror in the hallway at the time of the offence and thereby strengthen his denials that the offence occurred at his house.
The State has proven to my satisfaction, from the evidence of Ms A which I accept, and from the evidence of Mr C which I accept, on these points the primary facts that the house was on a corner or next to a corner, south of and not far from Ms A's residence in Butler and could be reached without crossing the freeway or going close to the beach.
From the evidence of Ms A and Mr C, which I accept on these points, the State has proven to my satisfaction the following primary facts that the offender's house had in common with Mr Baldwin's house in 2017: there was grass at the house, there was a hallway with a single door to the left and a double door to the right, the hallway lead to the kitchen and lounge or living area which were close together, a sofa or L‑shaped lounge, the house had a bar with a timber base or panelling, a games room, there was a pool outside on the left, a garage on the right, glass doors leading outside and there was an alfresco area outside and the house was generally clean, neat and tidy.
I infer from the plans and Mr Baldwin's evidence that he made alterations shortly after he moved in 2012 that those features existed in 2014 to 2015. Whether the couch was an L‑shaped lounge or sofa makes no difference.
The State has also proven to my satisfaction that glen_456 is a username used by Mr Baldwin and that Mr Baldwin and Mr C had access to craigslist and Kik at a time approximating the offence.
The State has proven to my satisfaction, as I accept Mr C's evidence on this point which is common ground, that he placed ads on the craigslist app and the responses were received by way of the craigslist app. He would then almost inevitably move communicating with the responders by way of Kik. The State has proven to my satisfaction that Mr C had knowledge of the username glen456.
The State has also proven to my satisfaction that Mr Baldwin had the opportunity to commit this offence in that he lived alone in a house in the general location of the offending and used the internet to chat about sexual matters.
For reasons previously expressed the State has not proven to my satisfaction Mr C's evidence that the person he took his daughter to was the man who used the username glen456.
I do not accept the States submission that the general features described by Ms A could have only be described by a person who had entered the house. Ms A agreed that every house 'kind of looks similar' and a lot of houses are the same and houses in that area look similar. Detective Miley said there was nothing unique about Mr Baldwin's house and it did not stand out from the rest of the houses and had no stand out feature. He said that houses in that general area looked the same. Mr C's evidence was that the houses in the Clarkson/Ridgewood/Butler/Merriwa area were all somewhat similar.
I find that the description of Ms A and Mr C of the offender's house bears a strong resemblance to Mr Baldwin's house in many respects.
However the house described by Ms A and Mr C is of generic construction and design. The features that Mr Baldwin's house had in common with the offenders house such as grass, a hallway that has a single door on the right and double door to the left, leading to a kitchen and lounge or living area which were close together, a games room, a couch or L‑shaped sofa, a bar with a timber base or panelling, a pool outside on the left, a garage on the right, a glass door leading outside, an outside area, a neat, tidy and clean interior are generic features of many houses.
There is nothing distinctive about those features individually or in combination. The distinctive features of the offender's house were the ongoing construction occurring at the house at the time of the offending and the construction pole at the entrance. In addition the offender's house was a different colour to Mr Baldwin's house and had a hallway mirror.
How generic some modern houses are is graphically illustrated by Ms C's assumption that there was a bedroom on the left‑hand side and a theatre room on the right‑hand side of the hallway doors. She agreed said this was just a guess and complete speculation on her behalf as the doors to those rooms were closed and she was not shown those rooms (ts 35). The State point out that the theatre room doors are glass and she could have seen into that room. That was not her evidence. She agreed that she guessed or speculated about what rooms were behind those hallway doors. She did not say the double doors were glass and did not refer to them as glass doors. She is capable of distinguishing glass doors as in other parts of her evidence she described glass doors which lead to the outside. In any event even if she saw through those double glass doors she still 'guessed' what room was behind the other closed door. Her guess or speculation, which turned out to be accurate, show how generic house design has become as she was clearly describing what she seen in other house rather than what she saw in the offender house. In any event I have not relied on any part of her evidence as to what rooms she assumed were behind closed doors.
As a matter of law the substantial delay in making the complaint and the prosecution of this matter effect results in forensic disadvantage been occasioned to Mr Baldwin in respect of adequately testing the allegations and marshalling a defence compared to the position he would have been if the complaint was made reasonably contemporaneously.
The forensic disadvantages include that as the allegation relates to an unspecified day over a 15 month period, Mr Baldwin could not reasonably be expected to recall where he was on each of those days and therefore has been deprived of the ability to establish an alibi by showing that he was not home or there is a reasonable doubt as to whether he was on the day that the offence occurred.
Mr Baldwin was unable to adequately test Ms A's evidence in circumstances where he would have been if the matter had been reported contemporaneously. In relation to the two distinctive features of the offender's house, being the construction pole outside the front entrance and the construction work going on (ts 36) at the time of offending Mr Baldwin has been prejudiced in his defence as he has lost the opportunity to have independent evidence to establish that his house did not have those features.
If the matter had been reported contemporaneously issues such as whether there was a mirror in the hallway, the colour of the couch, the contents of this hotmail account could also have been investigated.
Mr Baldwin has made no admissions in relation to the offence and none of the answers he gave about anything to do with his house, his user name and email address have been shown to be incorrect.
It is not a question of examining each fact that I find proven to my satisfaction, individually or in a piece meal fashion, and drawing inferences from each individual fact but of asking from the combined weight of all the facts I find proven, am I satisfied beyond reasonable doubt that only one inference can be drawn, and that inference is that Mr Baldwin is guilty of the offence.
Ms A's clear evidence that the offender's house was white, with a construction pole outside the front entrance and construction work ongoing outside, and of much less significance that there was a mirror in the hallway, coupled with the prejudice caused to Mr Baldwin by the delay in reporting this matter creates a reasonable doubt that he was the offender.
The combined weight of the State proving that Mr Baldwin lived alone in the area where the offence occurred; and had the opportunity to commit the offence; used the internet to chat about sexual matters; had access to both Kik and craigslist; and had a user name very similar to a user name known by the victim's father; and shared several physical characteristics similar to the offender; and lived in a house with several generic features which strongly resemble the offender's house does not satisfy me beyond reasonable doubt that he was the offender.
The combination of the matters I have referred to cause me to have a reasonable doubt as to Mr Baldwin's guilt.
The suspicion is that Mr Baldwin was the offender. That suspicion has not escalated to proof beyond reasonable doubt. Detective Miley was criticized by the defence for investigating with tunnel vision. I have rejected that criticism for reasons previously expressed. There is a world of difference between a person who has been unfairly targeted by the police and a person suspected by police on reasonable grounds whose guilt cannot be proven beyond reasonable doubt.
I am not satisfied beyond reasonable doubt that the only inference to be drawn from the combined weight of the primary facts proved to my satisfaction by the State is that Mr Baldwin was the offender.
I am not satisfied that the State have excluded all reasonable hypothesis consistent with innocence.
For these reasons I find Mr Baldwin not guilty.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AO
Associate to Judge Bowden
22 APRIL 2020