The State of Western Australia v Brown [No 10] - [2020] WASC 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BROWN [No 10] [2020] WASC 476
CORAM:   DERRICK J
HEARD:   3 & 4 DECEMBER 2020
DELIVERED          :   23 DECEMBER 2020
FILE NO/S:   INS 10 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
ALWYN WAYNE BROWN
Accused

Catchwords:

Criminal law - Contraventions of requirements of supervision order contrary to s 40A(1) of the Dangerous Sexual Offenders Act 2006 (WA) (repealed) - Trial of issues - Turns on own facts

Legislation:

Criminal Procedure Act 2004 (WA)
Dangerous Sexual Offenders Act 2006 (WA)
Evidence Act 1906 (WA)
High Risk Serious Offenders Act 2020 (WA)
Sentencing Act 1995 (WA)

Result:

Findings made on facts in dispute

Category: B

Representation:

Counsel:

Prosecution	:	Mr B D Meertens
Accused	:	Mr A G Elliott

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Legal Aid (WA)

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

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425
GO v The State of Western Australia [2016] WASCA 132
Larkin v The Queen [2012] WASCA 238
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Brown [2020] WASC 300
The State of Western Australia v Brown [No 9] [2017] WASC 355

DERRICK J:

Introduction

On 7 December 2017 Corboy J made a seven year supervision order in relation to the accused (Supervision Order) pursuant to s 17(1)(b) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1]
[1] The State of Western Australia v Brown [No 9] [2017] WASC 355. The DSO Act has now been repealed and replaced with the High Risk Serious Offenders Act 2020 (WA) (HRSO Act). However, the repeal of the DSO Act, as is correctly accepted by the parties, does not affect the validity of the charges.
Condition 42 of the Supervision Order provides that the accused is not to have contact with any child under the age of 16 years unless the contact is authorised in advance by a Community Corrections Officer (CCO) and such contact is supervised at all times by an adult approved in advance by a CCO.
Condition 44 of the Supervision Order provides that the accused give details of any contact with a child under the age of 16 years to a CCO and to the police on the next occasion that he reports to that person or agency.
In January 2020 the accused was charged in the Magistrates Court with three offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 42) by having contact with a child under the age of 16 without the authorisation of his CCO contrary to s 40A(1) of the DSO Act (PE 4006/2020, PE 5193/2020 and PE 5194/2020) and two offences of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 44) by failing to advise his CCO of contact that he had had with children under the age of 16 on the next occasion that he reported to his CCO contrary to s 40A(1) of the DSO Act (PE 4007/2020 and PE 5195/2020). On 16 March 2020 the Magistrates Court transferred the five charges to this court to be dealt with. The charges were transferred pursuant to s 40B(4) of the DSO Act.
On 27 March 2020 the State filed an undated Amended Statement of Material Facts for the five charges.
On or about 3 April 2020 the accused's former counsel filed an 'Outline of Facts in Issue' dated 3 April 2020.
On 3 April 2020 the accused appeared in this court. At the commencement of the hearing the accused's former counsel informed the court that pleas of guilty would be entered to the five charges of contravening the Supervision Order, but that the facts alleged by the State in the Amended Statement of Material Facts as identified in the Outline of Facts in Issue dated 3 April 2020 remained in dispute and that a trial of issues would be required. The accused was then arraigned on the five charges. He pleaded guilty to, and was convicted of, each of the five charged offences (the contravention offences).[2]
[2] By an application dated 28 January 2020 the State has commenced proceedings against the accused under pt 2 div 4 of the DSO Act in respect of the conduct the subject of the contravention offences. These proceedings are now taken to have been commenced and taken under the HRSO Act: HRSO Act, s 124(1).
On 25 May 2020 the accused was charged with one further offence of contravening, without reasonable excuse, a requirement of the Supervision Order (condition 23) contrary to s 40A(1) of the DSO Act (PE 25222/2020) (the contravention charge). On 29 May 2020 the Magistrates Court, acting pursuant to s 40B(4) of the DSO Act, transferred the contravention charge to this court to be dealt with.
On 3 June 2020 the State filed a further undated Amended Statement of Material Facts. The further Amended Statement of Material Facts contained not only the alleged facts of the contravention offences, but also the alleged facts of the contravention charge.
On 12 June 2020 the accused again appeared in this court. During the hearing the accused's counsel informed the court that the accused would be pleading not guilty to the contravention charge.
Following the hearing on 12 June 2020 a direction was made listing the accused's trial on the contravention charge for 24 and 25 September 2020. The trial was listed to take place before me.
On the morning of what was to be the first day of the accused's trial on the contravention charge the accused raised an objection to the admissibility of the evidence of the complainant upon which the charge was founded. I upheld the objection and ruled that the evidence of the complainant was inadmissible to prove the contravention charge. I gave detailed oral reasons for doing so.[3]
[3] ts 238 ‑ 266, 24 September 2020.
As a consequence of my ruling referred to in the previous paragraph, the State applied to discontinue the prosecution of the accused for the contravention charge pursuant to s 25(1) of the Criminal Procedure Act 2004 (WA) (CPA). On 25 September 2020 I consented to the discontinuance of the prosecution pursuant to s 25(2) of the CPA and, as required by s 25(3) of the CPA, dismissed the contravention charge for want of prosecution.
The accused was ultimately remanded to appear for his trial of issues on the contravention offences on 3 and 4 December 2020.
On 23 November 2020, and in light of the dismissal of the contravention charge, I made a direction requiring the State to file, for the purposes of the trial of issues, a Further Amended Statement of Material Facts containing only the alleged facts of the contravention offences. On the same date I also made a direction requiring the accused to file a Further Outline of Facts in Issue by reference to the State's Further Amended Statement of Material Facts.
On 25 November 2020 the State, in accordance with my above referred to direction, filed a Re‑Amended Statement of Material Facts dated 25 November 2020 (the Statement of Facts).
On 1 December 2020 the accused, in accordance with my above referred to direction, filed an Outline of Facts in Issue dated 1 December 2020 (Outline of Facts in Issue).
On 3 and 4 December 2020 the trial of issues took place before me.

The alleged facts of the contravention offences

As part of his opening address counsel for the State confirmed that the alleged facts of the contravention offences are as set out in the Statement of Facts and read out the Statement of Facts. The alleged facts of the contravention offences as set out in the Statement of Facts are, so far as is relevant, as follows:
1.…
2.…
3.…
4....
PER 4006 of 2020
5.At about 5.40 pm on Saturday 18 January 2020, the accused was in his red motor vehicle, registration number 1DLF 005, near Belmont Forum Shopping Centre, Belmont. Two 10 year old girls were walking past his vehicle towards a bus stop when the accused engaged them in conversation. The accused cleared items off the back passenger seat of his vehicle, asked the girls if they wanted money, and told them to get in his car. The girls did not get in his car. At the conclusion of the conversation the accused drove away in his vehicle and the girls continued to walk to a nearby bus stop.
6.The accused drove his vehicle in the car park in the vicinity of the shopping centre. Whilst the girls were seated at the bus stop, the accused drove his vehicle past them at the bus stop on more than one occasion.
7.In his contact with the children, the accused had a sexual intention.
8.At no time was the accused authorised by his CCO to talk to the children.
PER 5193 of 2020
9.The accused drove his vehicle to a shopping complex in nearby Rivervale and parked his car in the car park close to an IGA store. He entered the IGA store and bought a tub of margarine, then returned to his vehicle and remained in his vehicle for several minutes.
10.At about 6.10 pm on Saturday 18 January 2020, the same two girls arrived at the Rivervale shopping complex on their bus, exited the bus, and began walking towards a nearby recreation park. As they crossed the road, the accused called out to them from his car and the girls stopped, looked in the direction of the accused and walked a few steps towards his car before turning away and continuing to walk towards the recreation park.
11.Shortly after, the accused drove his car from the car park outside IGA to a car bay next to the park where the two girls had walked to and engaged in another conversation with the girls. At the conclusion of the conversation, the accused drove his vehicle away from the car bay, however he hovered in the area where the girls were, and spoke to them on at least two more occasions after the girls moved towards the IGA complex.
12.In one of those conversations, the accused again asked the children to get in the car with him, suggesting that they show him where a petrol station was. He again offered them money. The children did not get in the vehicle.
13.At one stage, the accused gave one of the children a $50 note and asked her to get change for him. Whilst that child (child 1) did this in IGA (confirmed on CCTV), the accused spoke to the other child (child 2) in a parking spot close to the IGA. Child 1 returned to the accused's vehicle.
14.At about 6.42 pm, the two girls were walking in a laneway near IGA when the accused drove his vehicle towards them. CCTV footage captured the accused driving his vehicle slowly down the laneway and engaging in conversation with the children as they were walking. At one stage, the accused was engaging in conversation with child 2 through his car window. After driving slowly up the laneway, the accused drove his vehicle away.
15.In his contact with the children, the accused had a sexual intention.
16.At no time was the accused authorised by his CCO to speak with the children.
PER 5194 of 2020
17.At about 6.45 pm on the same day, child 2 walked back down the laneway on her own. At about 6.51 pm, the accused entered the laneway in his vehicle from the opposite direction and parked in an isolated vacant area to the side, out of CCTV vision. Child 2 made her way down the laneway and spoke to the accused at his car in the vacant area for approximately 3 minutes, whist child 1 waited closer to the IGA supermarket.
18.At about 6.51 pm, the accused asked the child if she wanted money and asked if she wanted to jump in his car. He told the child that if she wanted to jump in his car, she would have to do something. The accused tried to give the child $20.
19.The child ran from the location back up the laneway to her friend. The accused departed the area in his vehicle.
20.In his contact with the child, the accused had a sexual intention.
21.At no time was the accused authorised by his CCO to speak with the children.
22.The following day, the girls disclosed to a parent that a man had followed them in his red car and had offered them money to get in his car and show him where the bottle shop was. The police were informed and an investigation was commenced to determine the identity of the man.
23.As a result of an investigation, CCTV footage of the accused's vehicle in Belmont and Rivervale was obtained. On Thursday 23 January 2020, the accused was arrested by police and he participated in an audio-visual record of interview. The accused admitted to speaking to two girls at Belmont Forum Shopping Centre, and that he spoke to the same two girls near IGA in Rivervale on a number of occasions on the same day, when not authorised to do so.
24.The accused denied offering the girls money and denied asking them to get in his car.
25.The accused stated that the girls were aged 10 to 11 years of age and that one of them was heavily limping. CCTV footage confirmed that child 2 was limping that day.
26.The accused admitted that he spoke to one of the children on her own in the vacant laneway for a few minutes.
27.The accused stated that he became scared and yelled at the child. When asked why he was scared, the accused stated that he was scared of reoffending.
28.The two children were interviewed on 1 February 2020. After the police reviewed further CCTV footage, they again interviewed the accused at Hakea Remand Centre on 6 February 2020 to discuss the child witness interviews and CCTV footage. The accused declined to comment.
29.The accused was charged with breaching condition 42 of his supervision order, namely three counts of having unauthorised contact with a child under 16 years (PE 4006, 5193 and 5194 of 2020)
30.The accused was also charged with breaching condition 44 of his supervision order, namely two counts of failing to disclose his contact with the children in Belmont and Rivervale to his CCO on 21 January 2020 (PER 5195 and 4007 of 2020), the material facts for which are below.
PER 5195 of 2020
31.…
32.On Tuesday 21 January 2020, the accused attended a meeting in Perth with his CCO. He did not disclose his contact with the children at Belmont Forum Shopping Centre on 18 January.
PER 4007 of 2020
33.At the same meeting with his CCO, the accused did not disclose his repeated contact with the children in Rivervale on 18 January.
34....
35.A second interview was conducted with child 2 on 9 May 2020 where she provided additional information. The police sought a further interview with the accused by he declined to participate.
36.…
The references in the Statement of Facts to 'child 1' are references to the complainant JP. The references in the Statement of Facts to 'child 2' are references to the complainant AC.
Although it is not clearly and expressly stated in the Statement of Facts, counsel for the State made clear that the allegations made therein that the accused in his contact with the child or children 'had a sexual intention' are intended to convey that the accused engaged in the relevant conduct with the intention of performing a sexual act against or in the presence of the child or children.[4]
[4] ts 127, 3 December 2020.
Further, and although it is again not clearly and expressly alleged in the Statement of Facts, counsel for the State, in response to questioning by me, made clear that the State's case with respect to contravention offence PE 5193/2020 includes the following allegations:[5]
1.The accused drove to the Rivervale shopping complex (Rivervale shops) for the purpose of continuing to interact with JP and AC (Statement of Facts, par 9);
2.When the accused drove into the laneway at 6.42 pm towards JP and AC he did so with the intention of locating and engaging with JP or AC or both of them (Statement of Facts, par 14);
3.When the accused spoke to AC by herself while JP was changing money for him (Statement of Facts, par 13) and/or when the accused drove into the laneway at 6.42 pm and engaged in conversation with AC through his car window (Statement of Facts, par 14) the accused requested AC to meet him at the end of the laneway and offered her $20 to do so; and
4.The accused's intention in asking AC to meet him at the end of the laneway was to entice AC to a location at which he could commit a sexual act against her or in her presence.
[5] ts 124 and 126, 3 December 2020; ts 190, 4 December 2020.

The alleged facts in dispute

After counsel for the State had read the Statement of Facts, counsel for the accused confirmed that the facts alleged in the Statement of Facts that were disputed by the accused were as set out in the Outline of Facts in Issue.[6] The Outline of Facts in Issue is so far as is relevant in the following terms:
[6] ts 128, 3 December 2020.
1.By reference to the relevant paragraphs of the [Statement of Facts] the accused outlines below the facts in issue.
2.…
3.…
PE 4006/2020
4.The accused does not accept:
(a)That he first engaged the girls in conversation [5].
(b)That he cleared the back seat of his vehicle [5].
(c)That he asked the girls if they wanted money [5].
(d)That he told the girls to get into the car [5].
(e)That he drove past the bus stop (where the girls were) for the purpose of observing the girls [6].
(f)That he had a sexual intention [7].
PE 5193/2020
5.The accused does not accept:
(a)That he called out to the two girls as they crossed the road [10].
(b)That he drove to a car bay next to a park to engage in conversation with the girls [11].
(c)That he engaged/initiated the girls in further conversation [11].
(d)That he 'hovered' in the area for the purpose of speaking to the girls [11].
(e)That he again asked the girls to get in the car with him [12].
(f)That he suggested the girls show him where the petrol station was [12].
(g)That he again offered the girls money [12].
(h)That he wanted to maintain conversation with child 2 [13].
(i)That [he] entered the laneway looking for the girls [14].
(j)That he 'engaged' in conversation with the children [14] (however [he] accepts he spoke to the children at this location).
(k)That he had a sexual intention [15].
PE 5194/2020
6.The accused does not accept:
(a)That he entered the laneway looking for the girls [17].
(b)That he purposively parked his car in an 'isolated' location or out of CCTV vision [17].
(c)That he initiated contact with child 2 [17].
(d)That at about 6.51 pm (or at all) he asked child 2 if she wanted money [18].
(e)That he asked child 2 if she wanted to jump in his car [18].
(f)That he told child 2 that if she wanted to jump in his car, she would have to do something [18].
(g)That he tried to give child 2 $20 [18].
(h)That he had a sexual intention [20].
(i)That he followed the girls with his car [22].
(j)That he offered the girls money [22].
(k)That he offered them money to get in his car [22].
(l)That he asked the girls to show him where the bottle shop was [22].
PE 5195/2020 and PE 4007/2020
7.The accused does not accept:
(a)That his failure to disclose the details of any contact with the girls was because of a sexual motivation on his part.
The accused's counsel also confirmed at the commencement of the trial of issues that the additional alleged facts referred to in par 22 above were also disputed by the accused.[7]
[7] ts 128, 3 December 2020.

Burden and standard of proof

In my opinion all of the disputed alleged facts (the disputed facts) aggravate the seriousness of the accused's conduct in committing the relevant offence, that is, increase the culpability of the accused for committing the offence.[8] It follows that the State bears the burden of proving each of the disputed facts beyond reasonable doubt.[9]
[8] Sentencing Act 1995 (WA), s 7(1).
[9] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24] ‑ [27]; Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [14], [98] ‑ [99], [164]; Larkin v The Queen [2012] WASCA 238 [51]; Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 [83] ‑ [85].

The evidence adduced

The evidence adduced by the State on the trial of issues consisted of the following:
1.The Supervision Order;[10]
[10] Exhibit 1.
2.A visually recorded interview conducted with JP by officers from the Western Australia Police Force Child Assessment and Interview Team (CAIT) on 1 February 2020;[11]
3.A visually recorded interview conducted with AC by officers from CAIT on 1 February 2020;[12]
4.An edited version of a visually recorded interview conducted with AC by officers from CAIT on 9 May 2020;[13]
5.The visual recording of the evidence given by JP at a special hearing conducted on 22 July 2020 pursuant to s 106RA(1) of the Evidence Act 1906 (WA);[14]
6.An edited version of the visual recording of the evidence given by AC at a special hearing conducted on 30 July 2020 pursuant to s 106RA(1) of the Evidence Act;[15]
7.Oral testimony from Sergeant Calvin Dodson of the Western Australian Police Force, the case officer for the investigation into the contravention offences;
8.Various aerial and other photographs of locations in the vicinity of the McDonald's restaurant in Belmont, the Belmont Forum Shopping Centre (Belmont Forum) and the Rivervale shops;[16]
9.Closed circuit television (CCTV) footage of the activities and movements of JP, AC and the accused on the afternoon of 18 January 2020 obtained from various cameras in the vicinity of the McDonald's restaurant in Belmont, Belmont Forum and the Rivervale shops (the CCTV footage),[17] as well as a number of still shots taken from the footage;[18]
10.The visual recording of an interview conducted with the accused by officers from the Western Australian Police Force's Sexual Offender Management Squad on 23 January 2020;[19] and
11.Evidence of the accused's prior convictions for a number of serious sexual offences committed against young girls (the prior offences) in the form of a document, tendered with the consent of the accused, entitled 'Agreed Propensity Facts'.[20]
[11] MFI 4.
[12] MFI 5.
[13] MFI 6. The edits were made in accordance with an order made by a judge of this court on 7 October 2020 pursuant to s 106HB(5) of the Evidence Act 1906 (WA).
[14] MFI 7.
[15] MFI 8. The edits were made in accordance with an order made by a judge of this court on 7 October 2020 pursuant to s 106M(1) of the Evidence Act.
[16] Exhibits 2 ‑ 5.
[17] Exhibit 6.
[18] Exhibits 7 ‑ 12.
[19] Exhibit 13.
[20] Exhibit 14.
The visual recordings of the interviews conducted with JP and AC, and the visual recordings of the evidence given by JP and AC at the special hearings, were presented as JP's and AC's evidence on the trial of issues in accordance with orders made by the court on 3 April 2020 and 12 June 2020 pursuant to s 106HB(1), s 106R, s 106RA(1), s 106RA(5) and s 106T(2a) of the Evidence Act. As part of these orders JP and AC were declared special witnesses and consequently gave their evidence at the special hearings from outside the courtroom via CCTV in the presence of a court officer and an approved support person. I was the judge who presided over the special hearings.
The declaration of a child as a special witness, the presentation of the evidence of a child by playing a visual recording of an interview conducted with the child, and the presentation of the evidence of a child by playing a visual recording of the evidence given by the child at a special hearing are all routine procedures of the court. I draw no inference adverse to the accused by reason of the use of these routine procedures in the present case.[21]
[21] Evidence Act, s 106HB(7)(a), s 106P, s 106R(7).
The evidence of the prior offences was adduced as propensity evidence pursuant to s 31A of the Evidence Act. The evidence was adduced in accordance with a pre‑trial ruling that I made.[22] My ruling was that the evidence of the prior offences was admissible under s 31A on the trial of issues in relation to the following disputed facts:[23]
[22] The State of Western Australia v Brown [2020] WASC 300.
[23] The State of Western Australia v Brown [32], [107], [12] ‑ [122].
1.Charge PE 4006/2020: The accused first engaged JP and AC in conversation (that is, initiated conversation with JP and AC) at Belmont Forum;
2.Charge PE 5193/2020: The accused drove to the Rivervale shops for the purpose of continuing to interact with JP and AC;
3.Charge PE 5193/2020: The accused, after his arrival at the Rivervale shops, called out to JP and AC from his car as they crossed the road, drove to a car bay next to a park to engage JP and AC in conversation, engaged JP and AC in conversation while parked in the car bay next to the park, and after driving away from the car bay hovered in the area for the purpose of speaking to JP and AC;
4.Charge PE 5193/2020: At about 6.42 pm the accused drove into the laneway near the Rivervale shops with the intention of locating and engaging with JP or AC or both of them;
5.Charge PE 5193/2020: When the accused spoke to AC by herself while JP was changing money for him and/or when the accused drove into the laneway at 6.42 pm and engaged in conversation with AC through his car window, the accused requested AC to meet him at the end of the laneway and offered her $20 to do so;
6.Charge PE 5194/2020: At about 6.51 pm the accused drove into the laneway and deliberately parked his car in an isolated location with the intention of meeting AC at that location;
7.The accused engaged in the conduct specified in points 1 ‑ 4 above with a sexual intention, that is, with the intention of committing sexual acts against, or in the presence of, JP and AC;
8.The accused engaged in the conduct specified in points 5 and 6 above with a sexual intention, that is with the intention of committing sexual acts against, or in the presence of, AC;
9.The accused engaged in the conduct the subject of the disputed facts comprising charges PE 4006/2020 and PE 5193/2020 that is not specified in points 1 ‑ 6 above with a sexual intention, that is, with the intention of committing sexual acts against, or in the presence of, JP and AC.
As is apparent from the last of the points in the preceding paragraph, so far as some of the disputed conduct comprising charges PE 4006/2020 and PE 5193/2020 are concerned, my ruling was that the evidence of the prior offences was not admissible to prove that the accused had engaged in the conduct, but only to prove that the conduct, if it was proved to have been engaged in by other admissible evidence, was sexually motivated.
The accused elected not to give or adduce evidence on the trial of issues.

The evidence - summary

JP's evidence

JP was born on 26 October 2009. She was therefore approximately 10 years and 3 months old at the time of the interview conducted with her on 1 February 2020. At the time of giving her evidence at the special hearing she was approximately 10 years and 9 months old.

Interview

During the interview conducted with her on 1 February 2020 JP provided the following version of events.
She and AC went to McDonald's in Belmont Forum.[24]
[24] Prosecution Brief (PB) 56; ts 4.
After going to McDonald's she and AC were near the bus stop where the chairs and the trolleys are.[25] While they were there a man 'pulled them up', that is, stopped and parked next to them.[26] The man was in a red car which had a thick black stripe that went around it.[27] The man asked them what they were up to and where the Bottle‑O was.[28] They told the man that the Bottle‑O was in Kiara Road near the Rivervale shops.[29]
[25] PB 58; ts 6.
[26] PB 57; ts 5.
[27] PB 71; ts 19.
[28] PB 56; ts 4.
[29] PB 56; ts 4.
After the man had asked them where the Bottle‑O was he pushed everything off the back seat of his car onto the floor.[30] There were black bags on the back seat that looked really heavy.[31] The man did not say anything when he did this.[32]
[30] PB 71; ts 19.
[31] PB 72 ‑ 73; ts 20 ‑ 21.
[32] PB 72; ts 20.
AC went to walk up to the car.[33] She told AC 'No'.[34] The man pulled out $50 and said, 'I'll give you this'.[35] AC said, 'Yeah give it - can you give us that?' She said, 'No.[36] We don't take money off strangers'.[37]
[33] PB 59; ts 7.
[34] PB 59; ts 7.
[35] PB 59; ts 7.
[36] PB 59; ts 7.
[37] PB 59; ts 7.
When the man asked them what they were up to she told him that they were going home.[38] She did not tell the man where home was.[39] She did not tell the man which bus they were going to catch.[40]
[38] PB 73; ts 21.
[39] PB 73; ts 21.
[40] PB 73; ts 21.
When she and AC got on the bus they could see the man.[41] The man 'drove like behind the bus'.[42]
[41] PB 74; ts 21.
[42] PB 75; ts 22.
She and AC caught the bus to the Rivervale shops.[43] They did not know the man was following them.[44] However, she thinks that the man followed them in his car because when she and AC got on the bus the man looked at them in a weird way 'like he was trying to plan something to grab [them]'[45], because he was at the Rivervale shops when they got off the bus and because his car turned up at the spot where she and AC were at the drink fountain.[46]
[43] PB 59; ts 7.
[44] PB 59; ts 7.
[45] PB 60; ts 8.
[46] PB 60; ts 8.
When they got off the bus they went into the public toilets near the netball centre where the drink fountain is.[47] When they came out of the public toilets the man was right there.[48] The man said, 'What are you guys up to? Is this the place?'[49]
[47] PB 60; ts 8.
[48] PB 60; ts 8.
[49] PB 60; ts 8.
AC wanted to get money off the man.[50]
[50] PB 60; ts 8.
The man asked them to jump in his car to go to the petrol station.[51] AC said, 'Can both of us come?'[52] The man said, 'Okay'.[53] However, she said to AC, 'No, he knows the way'.[54]
[51] PB 61; ts 9.
[52] PB 61; ts 9.
[53] PB 61; ts 9.
[54] PB 61; ts 9.
The man drove away.[55] He did not drive to the petrol station.[56] He parked where she and AC could see him.[57]
[55] PB 61; ts 9.
[56] PB 61; ts 9.
[57] PB 61; ts 9.
The man came back.[58] He said to her and AC that he had been talking to a friend.[59] He brought out $50.[60] He said he would give the money to them for helping him.[61] AC said, 'Yeah, can you give us that'.[62] She told AC, 'No, we don't take money from strangers'.[63]
[58] PB 61; ts 9.
[59] PB 61; ts 9.
[60] PB 61; ts 9.
[61] PB 62; ts 10.
[62] PB 61; ts 10.
[63] PB 62; ts 10.
At this point the man asked her and AC to go into the shops to change some money for him.[64] The man was going to give them $10 for doing this.[65] The man said, 'You're not going to put me off are you?'[66] She said, 'No, I won't'.[67] By saying 'put me off' the man was asking her whether she was going to steal the money that he was giving to her to change.[68]
[64] PB 62; ts 10.
[65] PB 62; ts 10.
[66] PB 62; ts 10.
[67] PB 62; ts 10.
[68] PB 62; ts 10.
She went to the shop to get the money out for the man.[69] As she was walking away she heard AC and the man talking.[70] They were whispering.[71] The man was saying to AC that he would give her $20.[72]
[69] PB 62; ts 10.
[70] PB 63; ts 11.
[71] PB 63; ts 11.
[72] PB 63; ts 11.
She told AC to come with her to the shop to get the money.[73] However, the man told AC to stay.[74] AC stayed with the man.[75] She does not know what happened to AC while she went to the shops to get the money.[76]
[73] PB 64; ts 12.
[74] PB 64; ts 12.
[75] PB 64; ts 12.
[76] PB 64; ts 12.
The change that she got for the man was two $20 notes and a $10 note.[77] The man was going to give them $10.[78]
[77] PB 63; ts 11.
[78] PB 64; ts 12.
AC went all the way down to where the trolleys are where no one could see her and the man.[79] She did not go with AC because AC told her to stay.[80] AC told her that the man did not want her to know that he was going to give AC $20.[81] However, she did not stay.[82] She followed AC.[83] When she got halfway to where the man and AC were, AC came running back crying.[84] AC said she was scared and wanted to go home.[85]
[79] PB 63; ts 11.
[80] PB 66; ts 14.
[81] PB 66; ts 14.
[82] PB 66; ts 14.
[83] PB 66; ts 14.
[84] PB 63; ts 11.
[85] PB 63; ts 11.
She and AC then walked through the netball centre very near the park back to her house.[86] They did not go to the park.[87]
[86] PB 69; ts 17.
[87] PB 69; ts 17.
There was no time when the man got out of his car.[88] The man did not get out of his car once.[89] She thought that the man thought that she and AC were going to break into his car and steal off him.[90] She thought this after the man had said to her, 'You won't steal the money' at the time that he gave her the money to change.[91] After the man said this she thought that there was no way he was going to get out of his car.[92]
[88] PB 69; ts 17.
[89] PB 69; ts 17.
[90] PB 69; ts 17.
[91] PB 69; ts 17.
[92] PB 69; ts 17.
The man was really tall and really dark.[93] He was wearing a Nyoongah T‑shirt that said, 'Proud of my culture'.[94] The shirt had a Torres Strait Island Flag, an Aboriginal Flag and a New Zealand Flag on it.[95]
[93] PB 70; ts 18.
[94] PB 70; ts 18.
[95] PB 70; ts 18.
The man was wearing dark grey track pants.[96]
[96] PB 71; ts 19.
She does not remember if there was anything different about the man's face.[97]

Oral evidence given at the special hearing

[97] PB 71; ts 19.

Given that JP was under 12 years of age at the time of giving her evidence at the special hearing I was required, before she commenced to give her evidence, to conduct an inquiry under s 106B and s 106C of the Evidence Act for the purpose of determining whether she was competent to give evidence on oath or affirmation or, if she was not so competent, whether she was able to give an intelligible account of events which she observed or experienced.[98] Having conducted the inquiry, and having given counsel the opportunity to make submissions on the point, I ruled that JP was not competent to give evidence on oath or affirmation but that she was able to give an intelligible account of events which she observed or experienced.[99] JP therefore gave her evidence without taking an oath or making an affirmation.
[98] ts 81 ‑ 85.
[99] ts 85 ‑ 87.
In her evidence‑in‑chief JP confirmed that she had on the previous day watched with the prosecutor the interview conducted with her on 1 February 2020.[100] She further confirmed that what she had said during the interview was the truth.[101]
[100] ts 88.
[101] ts 89.
In cross‑examination JP said the following.
Prior to the interview she did talk to her mother about what had happened on the day in question.[102]
[102] ts 90.
On the day in question and when she went home with AC she did speak to AC about what had happened.[103] She told AC what she remembered.[104] AC told her what AC remembered.[105] AC did tell her some things that she did not know about.[106]
[103] ts 90.
[104] ts 90.
[105] ts 90.
[106] ts 90.
Apart from talking to her mother, AC and the lady who spoke to her during the interview, she did not talk to anyone else about what had happened.[107]
[107] ts 90.
During the interview she told the lady everything that she could remember.[108]
[108] ts 91.
She did not ask the man for money.[109] AC did.[110]
[109] ts 91.
[110] ts 91.
AC and the man were at IGA down the alleyway when she thinks AC asked the man for money.[111] AC told her to wait down the road.[112] She did not hear AC asking the man for money.[113] AC told her that she had asked the man for money afterwards.[114]
[111] ts 91.
[112] ts 91.
[113] ts 91.
[114] ts 91.
Before she saw the man she and AC went to McDonald's in Belmont.[115] She had some food and drinks at McDonald's.[116] She had been given the money for the food and drinks by her mother.[117] It is not true that a lady that she met at the shops gave her and AC money for the bus.[118]
[115] ts 92.
[116] ts 92.
[117] ts 92.
[118] ts 92.
After being in McDonald's she and AC decided to go home.[119] They were going to catch the bus home.[120] In order to get to the bus stop they had to walk across the big car park at the Belmont shops.[121]
[119] ts 93.
[120] ts 93.
[121] ts 93.
It was while she and AC were walking across the car park that they saw the red car.[122] The car was moving when she first saw it.[123] When she first saw the car she was pretty close to the car, 'like about 12 feets [sic] away'.[124]
[122] ts 93.
[123] ts 93.
[124] ts 93.
The man parked the car close to the bus stop near where everybody parks trolleys at the front of the Belmont shops.[125]
[125] ts 93, 98.
She and AC did not say anything to the man.[126] The man said something to them.[127]
[126] ts 93.
[127] ts 93.
Once the man had parked the car he said, 'What are youse up to?'[128] He then pulled out his money and asked, 'Do you know where the Bottle‑O is?'[129] She and AC told the man that the Bottle‑O was around the corner at the Rivervale shops.[130]
[128] ts 93 ‑ 94.
[129] ts 93 ‑ 94.
[130] ts 93 ‑ 94.
She did not see how much money the man pulled out.[131] She cannot remember whether it was a $50 note or a $100 note or what it was.[132]
[131] ts 94.
[132] ts 94.
When the man parked the car she and AC were a few steps away from the driver's side of the car.[133] There was a path and they had to walk that way to get to the bus stop.[134]
[133] ts 94.
[134] ts 94.
When the man parked the car she and AC did not pester him for money.[135] She is sure about this.[136]
[135] ts 94.
[136] ts 94.
She cannot remember if a lady who was with her children and their dad told her and AC to 'stay safe' and gave them some money for the bus.[137] She cannot remember where the money she used to pay for the bus came from.[138]
[137] ts 95.
[138] ts 95.
She paid for the bus.[139] She paid because her mum had given her a couple of dollars.[140]
[139] ts 95.
[140] ts 95.
She cannot remember if the man gave her $10.[141] She cannot remember if the man, apart from giving her money to get change, gave her any money to keep.[142]
[141] ts 95.
[142] ts 96.
When she was at Belmont the man did not say anything about giving her or AC money.[143]
[143] ts 96.
She only spoke to the man at Belmont for a short time, 'two minutes, one minute, not even that'.[144]
[144] ts 96.
When she spoke to the man at Belmont she was scared.[145] When the events were all over and she was going home she was upset and crying.[146] AC was also crying.[147]
[145] ts 98.
[146] ts 98.
[147] ts 98 ‑ 99.
After she and AC had talked to the man they went across the road to the bus stop.[148] They only had to wait for the bus for a short time.[149]
[148] ts 99.
[149] ts 99.
The red car was following the bus.[150] When she jumped on the bus the red car was following.[151] When the bus was driving she saw the red car following behind the bus.[152] This is something that she remembers.[153]
[150] ts 99.
[151] ts 99.
[152] ts 99.
[153] ts 100.
She got off the bus at the bus stop near IGA which is near the netball courts that are at the end of the park.[154] IGA is across the road from the park.[155] When she got off the bus the red car was behind the bus.[156]
[154] ts 99.
[155] ts 99.
[156] ts 99.
She knows that the red car followed the bus because when she jumped off the bus the car was right behind the bus.[157]
[157] ts 99.
When she got off the bus she saw the car drive and park near the drink fountain, near the canteen which is next to the netball courts.[158] When she saw the car near the drink fountain the man was in the car.[159]
[158] ts 100.
[159] ts 100.
After the man had parked the car at the drink fountain he started talking to her and AC.[160] The man asked, 'Is this the Bottle‑O over here?'[161] She and AC said 'Yes'.[162] The man then asked where the petrol station was.[163] She said that it was near the lights.[164] The man asked whether they could take him to the petrol station.[165] AC said that they both could.[166] However, she said 'no' and that they had to go home.[167]
[160] ts 100.
[161] ts 100.
[162] ts 100.
[163] ts 100.
[164] ts 100.
[165] ts 100.
[166] ts 100.
[167] ts 100.

After speaking to the man at the drink fountain she and AC went to the toilets.[168] When they came out of the toilets the man was still in his car in the drinking fountain car park.[169]
[168] ts 101.
[169] ts 101.
The man said that he was going to go to the petrol station.[170] However, he did not go to the petrol station.[171] He drove his car and parked on the other side of the netball courts.[172]
[170] ts 101.
[171] ts 101.
[172] ts 101.
She did not see the man go into IGA.[173]
[173] ts 102.
The man came back over in his car.[174] He did this when she and AC were walking home.[175] She and AC were still near the shops at this time.[176]
[174] ts 102.
[175] ts 102.
[176] ts 102.
The man parked in the parking spot on the side of IGA.[177] The man asked her to go and get change for him.[178] He asked her if she was going to rip him off.[179] She said, 'no'.[180] The man said he needed change for smokes.[181]
[177] ts 102.
[178] ts 103.
[179] ts 103.
[180] ts 103.
[181] ts 103.
She cannot remember if when the man got the money out AC was pestering him for money.[182]
[182] ts 103.
She remembers saying during the interview that the man took out $50 and said that he would give them the money for helping him.[183] She remembers saying during the interview that AC said, 'Yeah, can you give us that?'[184] She does not know if the man was talking about the whole $50.[185] She thinks AC was talking about getting the whole $50.[186] She said to the man something like, 'We don't take money from strangers'.[187]
[183] ts 103.
[184] ts 103.
[185] ts 103.
[186] ts 103.
[187] ts 103.
She did change money for the man.[188] However, she said 'no' to being given money.[189] The man did not give her any money.[190] AC really wanted some money.[191]
[188] ts 103.
[189] ts 103.
[190] ts 103.
[191] ts 103.
The man did not move his car after she gave him the change.[192]
[192] ts 104.
After she had gone into the shop to get the change for the man, AC told her that the man had whispered to her something about $20.[193]
[193] ts 105 ‑ 106.
AC told her that she was going to go up the alleyway to ask the man for money.[194] AC told her to wait down the alleyway.[195] AC told her to pretend that she did not know.[196] She said to AC, 'If you get grabbed, how are we meant to find you?'[197]
[194] ts 104.
[195] ts 104.
[196] ts 104.
[197] ts 104.
She waited for AC and then followed her down the alleyway because she was worried that something might happen.[198] AC came back crying.[199]
[198] ts 104.
[199] ts 104.
She only went half way up the alleyway.[200] It was only about four minutes before AC ran back up the alleyway.[201]
[200] ts 106.
[201] ts 106.
She asked AC what had happened.[202] AC said the man had 'opened a door or something'.[203] AC did not say that she got into the car or that the man had done something to her.[204]When AC was running down the laneway AC told her that the man had shouted at her.[205] AC did not tell her what the man had shouted.[206]
[202] ts 105.
[203] ts 105.
[204] ts 105.
[205] ts 112 ‑ 113.
[206] ts 113.
AC did not tell her that the man had said something like, 'Leave me alone'.[207]
[207] ts 113.
She does not think she heard the man say 'fuck off'.[208]
[208] ts 113.
When she went down the alleyway she could only see the back of the car.[209] She thinks the front of it had driven into a parking spot.[210] She does not think that she saw AC get into the car.[211]
[209] ts 105.
[210] ts 105.
[211] ts 105.
She did not go up to the car when it was up the alleyway.[212] She only went halfway.[213]
[212] ts 106.
[213] ts 106.
AC did not say why she had to pretend that she did not know about the $20.[214]
[214] ts 105.
During the interview when she said that the man was really really dark she was talking about the colour of his skin.[215] She still remembers that he was really really dark.[216]
[215] ts 106.
[216] ts 106.
She is pretty sure the man was wearing 'like jean trackies'.[217] She does not know if he was wearing jeans or trackies.[218] Her memory about what the man was wearing is not as good as it was before.[219]
[217] ts 107.
[218] ts 107.
[219] ts 107.
When the man was clearing clothes and a bag off his back seat he was parked at the drink fountain.[220] This did not happen at Belmont Forum.[221]
[220] ts 107.
[221] ts 107.
There were clothes and a big bag on the back seat.[222] It looked like there were a couple of changes of clothes.[223] The bag was a really big plain black carry bag.[224] The bag looked heavy.[225]
[222] ts 107 - 108.
[223] ts 107 ‑ 108.
[224] ts 108.
[225] ts 108.
She cannot remember if there was more than one bag on the back seat.[226] She cannot remember if the man had a backpack.[227]
[226] ts 108.
[227] ts 108.
When the man gave her the money it came from his wallet.[228] The man got his wallet from the big bag.[229] The bag was on the back seat when the man got his wallet out of the bag.[230]
[228] ts 108.
[229] ts 108.
[230] ts 109.
When the man got the money out she saw lots of other money in the wallet.[231] She thinks she saw $300 or $500 in the wallet.[232] It looked like there was some other money tipped out in the bag.[233] The money was on the back seat.[234] The man did not have any money on the front seat.[235]
[231] ts 109.
[232] ts 109.
[233] ts 109.
[234] ts 109.
[235] ts 109.
She thinks that she had a conversation with AC in which AC asked her what was in the bag.[236]
[236] ts 109.
The man had a beard and a moustache.[237]
[237] ts 109.
The man was not wearing a backpack.[238]
[238] ts 110.
Both she and AC talked to the man.[239] However it was mainly AC that talked to the man.[240]
[239] ts 110.
[240] ts 110.
She did not see any other car going up and down the alleyway.[241] There were cars going in and out of the car park at IGA.[242] There were other cars in the drinking fountain car park.[243] There were not many people in the park near the drinking fountain.[244] There were people about two cars down in a car.[245] These people were not Aboriginal people.[246]
[241] ts 110.
[242] ts 110.
[243] ts 110.
[244] ts 110.
[245] ts 110.
[246] ts 110.
She cannot remember if there was a shopping bag or butter in the man's car.[247] She does not remember seeing anything on the front passenger seat of the car.[248]
[247] ts 111.
[248] ts 111.
AC did ask the man for money.[249] The man said, 'Yes. Hold on'.[250] This was near the drink fountain.[251] The man went to his phone to do something.[252] She and AC wanted to get a drink from the drink fountain.[253] The man told them to come to him so they both went to him.[254] The man asked them if they both wanted the money.[255] It was after the man said this that he said that he was going to the petrol station and went and parked on the other side of the park.[256] There is no petrol station near the other side of the park.[257]
[249] ts 111.
[250] ts 111.
[251] ts 111.
[252] ts 111.
[253] ts 111.
[254] ts 111.
[255] ts 111.
[256] ts 111.
[257] ts 111.
She does not know if apart from the money that the man gave her to get changed, the man gave her some money for herself.[258] She does not think that she got some money and chucked it away.[259] She does not think that AC grabbed money out of her hand and chucked it in the bin.[260]
[258] ts 112.
[259] ts 112.
[260] ts 112.
When she saw the man in the car he did not seem upset.[261] He did not look like he was crying or close to crying.[262]
[261] ts 112.
[262] ts 112.
It is right to say that she or AC or both of them were pestering the man for money.[263]
[263] ts 112.
In re‑examination JP gave the following evidence.
The first person to mention anything about money was the man.[264] This happened when they were at Belmont.[265] She does not remember what the man said about money at that time.[266]
[264] ts 113.
[265] ts 113.
[266] ts 113.
The next person to mention money was AC.[267] This was at IGA.[268] This was after she had gone to get change for the man.[269]
[267] ts 113.
[268] ts 113.
[269] ts 113.
To the best of her memory, when AC came running back along the laneway AC said that he had tried to do something to her.[270]
[270] ts 114.
When the man spoke about the petrol station he asked them whether they could jump into the car and take him to the station.[271] AC asked whether both of them could come.[272] She said, 'No, he knows the way'.[273]

AC's evidence

[271] ts 114.

[272] ts 114.

[273] ts 114.

AC was born on 30 May 2009. She was therefore approximately 10 years and 8 months old at the time of the interview conducted with her on 1 February 2020, and approximately 10 years and 11 months old at the time of the interview conducted with her on 9 May 2020. At the time of giving evidence at the special hearing she was approximately 11 years and 2 months old.

Interview conducted on 1 February 2020

During the interview conducted with her on 1 February 2020 AC provided the following version of events.
She and JP caught the bus from the Rivervale shops to Belmont Forum.[274] An Aboriginal lady who was with her kids and their dad gave them money for the bus.[275] The Aboriginal lady said 'stay safe'[276] and 'don't talk to strangers'.[277]
[274] PB 29, 32; ts 5, 8.
[275] PB 30 ‑ 31; ts 6 ‑ 7.
[276] PB 30; ts 6.
[277] PB 30; ts 6.
She and JP went to Belmont Forum.[278] While at Belmont Forum they went to McDonald's.[279] After going to McDonald's they walked around and talked.[280] They spent some time playing in a playground near McDonald's.[281]
[278] PB 32; ts 8.
[279] PB 33; ts 9.
[280] PB 33; ts 9.
[281] PB 33; ts 9.
While she and JP were near the trolleys near McDonald's they saw a man.[282] The man was in a red car with black stripes down the bottom.[283] His car was parked in the car park near to McDonald's.[284] The man was looking at them weirdly, 'like he wanted to grab [them] and put [them] in the car'.[285]
[282] PB 33 ‑ 34; ts 9 ‑ 10.
[283] PB 34; ts 10.
[284] PB 35; ts 11.
[285] PB 34; ts 10.
The man was wearing a 'Deadly Choice' T-shirt 'with all the flags' and blue jeans.[286]
[286] PB 34; ts 10.
The man had long hair and a moustache, but not a beard.[287]
[287] PB 36; ts 12.
The man asked her and JP where the bottle shop was.[288] She was not near the car when the man said this.[289] They told the man that the bottle shop was near IGA.[290]
[288] PB 35; ts 11.
[289] PB 37; ts 13.
[290] PB 38; ts 14.
She and JP then caught the bus to IGA.[291] They used the money that the lady had given them.[292] She did not see the man or the man's car when she was on the bus.[293]
[291] PB 38; ts 14.
[292] PB 38; ts 14.
[293] PB 50; ts 26.
While she and JP were at IGA the man they had seen earlier was down the road from IGA.[294] He was in his car.[295] He was staring at them.[296]
[294] PB 39; ts 15.
[295] PB 40; ts 16.
[296] PB 39; ts 15.
When she was at IGA she saw that the man had a bag on his back.[297] The man was still in the car when she saw the bag on his back.[298]
[297] PB 41; ts 17.
[298] PB 41; ts 17.
JP did not get $10 off the man.[299] JP found $10 on the floor near the man's car.[300] The man dropped the $10 out of his bag.[301] When the man was looking away JP grabbed the $10 quickly.[302] She told JP to give the money back but JP would not.[303] They used the $10 to buy milk for JP's baby brother.[304]
[299] PB 43; ts 19.
[300] PB 43; ts 19.
[301] PB 43; ts 19.
[302] PB 43; ts 19.
[303] PB 43; ts 19.
[304] PB 43; ts 19.
She made a mistake when she said the $10 was picked up off the floor.[305] The man gave JP the $10.[306] She could see that the man had a lot of money in his bag.[307] The man had removed the bag from his back and put it on the other seat in his car.[308] She told JP to give the money back.[309] JP did not give the money back.[310]
[305] PB 44; ts 20.
[306] PB 44; ts 20.
[307] PB 44; ts 20.
[308] PB 45; ts 21.
[309] PB 45; ts 21.
[310] PB 45; ts 21.
She and JP walked to a park near the shops.[311] The man left.[312] She does not know where he went.[313] She did not see the man again while she was at the park.[314] She did not see the man in his car while she was at the park.[315]
[311] PB 46; ts 22.
[312] PB 46; ts 22.
[313] PB 46; ts 22.
[314] PB 46; ts 22.
[315] PB 46 ‑ 47; ts 22 ‑ 23.
The last time that she saw the man was 'on the other side where her mum always stays'.[316]
[316] PB 47; ts 23.
She and JP went to JP's house.[317] They played at JP's house.[318] Her mum then picked her up from JP's house.[319]
[317] PB 48; ts 24.
[318] PB 48; ts 24.
[319] PB 48; ts 24.
On the day she saw the man she was wearing 'these shorts, shoes and a T‑shirt which … had … a dragon on it'.[320] JP was wearing a flower T‑shirt and a flower jumper.[321]
[320] PB 49; ts 25.
[321] PB 49; ts 25.
She was with JP the whole time.[322]
[322] PB 49; ts 25.
They did not tell the man that they were going to IGA because he would have followed them.[323]
[323] PB 49; ts 25.
She had never seen the man before.[324]

Interview conducted on 9 May 2020

[324] PB 49 ‑ 50; ts 25 ‑ 26.

During the interview conducted with her on 9 May 2020 AC provided the following account of events by way of elaboration of what she had said during the interview conducted with her on 1 February 2020.
She and JP went to McDonald's.[325] When they saw the man it felt weird.[326] The man asked them if they knew where the bottle shop was.[327] JP said to her, 'Do you want to show him?'[328] She said, 'No, cos you don't know what he's going to do to us'.[329]
[325] PB 177; ts 6.
[326] PB 177; ts 6.
[327] PB 178; ts 7.
[328] PB 178; ts 7.
[329] PB 178; ts 7.
The man had a beard 'as well'.[330]
[330] PB 178; ts 7.
When she and JP saw the man at IGA he said, 'Do you want some money?'[331] She said, 'No'.[332] The man gave JP money.[333]
[331] PB 177; ts 6.
[332] PB 177; ts 6.
[333] PB 177; ts 6.
After the man had given JP money they were just standing there and the man was on the corner looking at them.[334] He was being a bit scary.[335] He then said, 'Jump in your car'.[336] She and JP said, 'No'.[337] She then 'went down there'.[338] JP was sitting 'down the other end'.[339] The man said, 'Do you want to jump in my car? If you want, go jump in my car then you have to do something'.[340] She said, 'No'.[341] She then ran away and she and JP then went to JP's mum's house.[342]
[334] PB 177; ts 6.
[335] PB 177; ts 6.
[336] PB 177; ts 6.
[337] PB 177; ts 6.
[338] PB 177; ts 6.
[339] PB 181; ts 10.
[340] PB 177; ts 6.
[341] PB 177; ts 6.
[342] PB 177; ts 6.
When the man gave JP money she told JP to chuck the money away.[343] She then grabbed the money out of JP's hand and chucked it in the bin.[344]
[343] PB 179; ts 8.
[344] PB 179; ts 8.
When she ran away after the man said 'jump in my car' she was crying.[345] She was crying because the man was laughing at her and looked at her in a funny way; in an 'ugly weird' way.[346]
[345] PB 181; ts 10.
[346] PB 181; ts 10.
The man said to her, 'Jump in the car I'll give you money'.[347] When the man said this he was giving her $20 but she then said 'no' and ran away.[348] She ran away because the man looked scary.[349] Her body told her to run away and cry.[350]

Oral evidence given at the special hearing

[347] PB 182; ts 11.

[348] PB 183; ts 12.

[349] PB 182; ts 11.

[350] PB 183; ts 12.

Given that AC was under 12 years of age at the time of giving her evidence at the special hearing I was required, before she commenced to give her evidence, to conduct an inquiry under s 106B and s 106C of the Evidence Act for the purpose of determining whether she was competent to give evidence on oath or affirmation or, if she was not so competent, whether she was able to give an intelligible account of events which she observed or experienced.[351] Having conducted the inquiry, and having given counsel the opportunity to make submissions on the point, I ruled that AC was not competent to give evidence on oath or affirmation but that she was able to give an intelligible account of events which she observed or experienced.[352] AC therefore gave her evidence without taking an oath or making an affirmation.
[351] ts 125 ‑ 128.
[352] ts 128 ‑ 130.
In her evidence‑in‑chief AC confirmed that she had on the previous day watched with the prosecutor the two interviews conducted with her on 1 February 2020 and 9 May 2020.[353] She further confirmed that what she had said during the interviews was the truth.[354]
[353] ts 133.
[354] ts 133.
The evidence given by AC in cross‑examination was not, for reasons that I will explain further below, extensive. However, she did say the following.
She does not really know what JP was wearing.[355]
[355] ts 135.
When she said during the interview that JP was with her the whole time that was not true.[356]
[356] ts 135.
After the things happened with the man she and JP went to JP's house.[357] She does not remember if she spoke to JP when she and JP were walking to JP's house.[358]
[357] ts 138.
[358] ts 138.
She did not speak to JP's mother.[359] She did speak to her mother.[360]
[359] ts 138.
[360] ts 138.
She does not know if other people said to her what they thought had happened when she was near the man.[361] She does not know if people told her that they thought that the man had done a bad thing.[362]
[361] ts 138.
[362] ts 138.
The man gave JP $10.[363] He handed the $10 to JP.[364]
[363] ts 138.
[364] ts 139.
The man did give JP $50 so that JP could go to the shop and change the $50 into smaller notes.[365]
[365] ts 139.
The $10 that the man gave to JP was not money that fell onto the ground but was picked up.[366] It is not true that JP found the money on the ground.[367]
[366] ts 139.
[367] ts 139.
The man had a backpack that had money in it.[368] She does not know how much money the man had.[369] She does not know if it was lots of money.[370] The money that she saw was in the man's hand.[371]
[368] ts 140.
[369] ts 140.
[370] ts 140.
[371] ts 140.
There was no money on the other chair in the car, but there was a big bag.[372] She does not know if there was a whole bunch of money.[373]
[372] ts 140.
[373] ts 140.
Towards the end of cross‑examination AC accepted that it was fair to say that she was saying that some of the things that she had said before in her interviews were not true.[374]
[374] ts 140.
AC was not, for reasons that I will explain below, re‑examined.

Sergeant Calvin Dodson's evidence

The evidence‑in‑chief given by Officer Dodson was in essence comprised of him authenticating and speaking to the tendered photographs, the CCTV footage and the tendered still shots from the CCTV footage.[375] It was also through Officer Dodson that the State played and tendered the interview conducted with the accused.[376]
[375] ts 135 ‑ 187, 3 December 2020; ts 190 ‑ 213, 4 December 2020.
[376] ts 214 ‑ 215, 4 December 2020.
In cross‑examination Officer Dodson confirmed that the CCTV footage adduced during the trial does not show every movement of the accused during the relevant time period on 18 January 2020, but rather comprises those pieces of footage which the police have assessed as being relevant to allegations the subject of the contravention offences.[377] Officer Dodson also gave some additional clarificatory type evidence in relation to the CCTV footage, the photographs and the still shots.[378]
[377] ts 216, 4 December 2020.
[378] ts 217 ‑ 225, 4 December 2020.
Officer Dodson confirmed in cross‑examination that as part of his investigation he examined the exterior and interior of the accused's vehicle.[379] He was not asked when he examined the vehicle and he did not proffer this information. He confirmed that the vehicle had black rubber protection strips (as opposed to black stripes) that ran down the side of the vehicle.[380] He said that he could not remember if there were any big black bags in the vehicle.[381]
[379] ts 218, 4 December 2020.
[380] ts 218, 4 December 2020.
[381] ts 219, 4 December 2020.
Officer Dodson further confirmed in cross‑examination that on his review of all of the CCTV footage there is no footage of an Aboriginal lady, or a lady and a man, giving AC and JP money.[382]

The interview with the accused

[382] ts 224, 4 December 2020.

As I have already stated, the accused was interviewed on 23 January 2020. During the interview the accused provided, in essence, the following version of events.
On Saturday, 18 January 2020 he had been with his wife to see his sister‑in‑law's body.[383] His sister‑in‑law had died about a week earlier.[384] He felt numb and lost.[385] His head was overloaded.[386] He was driving around aimlessly.[387]
[383] PB 88; ts 5.
[384] PB 88; ts 5.
[385] PB 88; ts 5.
[386] PB 108; ts 25.
[387] PB 95; ts 12.
He drove to Belmont.[388] He pulled up at Belmont Forum to have a cigarette and to spend some time on his own.[389] While he was there two girls, who were about 10 or 11 years old, were looking at him and then he was looking at them.[390] The girls came up to him while he was sitting in his car and asked him for money.[391] They both asked him for money.[392] He said, 'No'.[393]
[388] PB 88; ts 5.
[389] PB 93; ts 10.
[390] PB 90 - 91; ts 7 - 8.
[391] PB 91 - 92; ts 8 - 9.
[392] PB 92; ts 9.
[393] PB 91; ts 8.
The girls left.[394] He stayed sitting in his car for a while on his own.[395] He then left and continued to drive aimlessly.[396] He drove past a bus stop near Belmont Forum.[397] He thinks the girls were sitting at the bus stop as he drove past.[398]
[394] PB 94; ts 11.
[395] PB 94; ts 11.
[396] PB 94 - 95; ts 11- 12.
[397] PB 95; ts 12.
[398] PB 95; ts 12.
He drove to Rivervale.[399] He pulled in at the car park of IGA in Rivervale.[400] He went into IGA and bought some butter.[401] He then returned to his car.[402] As he was getting in his car he saw the two girls who he had seen in Belmont go past.[403]
[399] PB 95; ts 12.
[400] PB 95; ts 12.
[401] PB 95; ts 12.
[402] PB 95; ts 12.
[403] PB 95, 96 - 97; ts 12, 13 - 14.
He did not know that the girls were going to be at Rivervale when he drove from Belmont to Rivervale.[404] He had no idea that they were going to turn up in Rivervale.[405] He did not know that he was ever going to see the girls again.[406] He did not care.[407] He had his own problems.[408]
[404] PB 110; ts 27.
[405] PB 110; ts 27.
[406] PB 110; ts 27.
[407] PB 110; ts 27.
[408] PB 109; ts 26.
He had no idea of any bus routes or any bus numbers.[409]
[409] PB 116; ts 33.
After returning to his car he stayed sitting in his car for a little while.[410] Then he drove his car out of the car park, down the road a little way and parked by the park that is opposite and just down the road from IGA.[411] He rolled a cigarette.[412] While sitting in his car he saw the two girls sitting on the lawn about 5 or 6 m away from his car.[413] He had no intention of parking where they were sitting.[414]
[410] PB 94 - 95; ts 11 - 12.
[411] PB 95, 97; ts 12, 14.
[412] PB 102; ts 19.
[413] PB 115; ts 32.
[414] PB 119 - 120; ts 36 - 37.
The two girls saw him and approached him.[415] They asked him for money.[416] They pestered him for money.[417] He said, 'No'.[418]
[415] PB 91; ts 8.
[416] PB 114; ts 31.
[417] PB 108 ‑ 109, 120; ts 25 ‑ 26, 37.
[418] PB 102; ts 19.
While he was sitting in his car a few drunks asked him for a cigarette and some money.[419]
[419] PB 95, 97, 100; ts 12, 14, 17.
He just wanted to be left alone.[420] He therefore drove his car around to the other side of the park that was opposite IGA.[421] He parked in this location.[422] From this location he could look across the park towards IGA and see IGA.[423] He wanted to sit by himself with his thoughts.[424] However, some drunk people approached him and asked him for money.[425] He therefore drove his car back around towards IGA and reversed into a parking spot that was in a laneway that was close to IGA.[426] He wanted to sit with his thoughts and not be pestered.[427] At this time the two girls were still sitting in the park.[428]
[420] PB 101; ts 18.
[421] PB 101; ts 18.
[422] PB 101; ts 18.
[423] PB 101; ts 18.
[424] PB 101; ts 18.
[425] PB 101; ts 18.
[426] PB 102; ts 19.
[427] PB 123; ts 40.
[428] PB 114; ts 31.
Once he had parked he remained sitting in the car for a number of minutes.[429] He was still feeling numb.[430] He rolled a cigarette and had a smoke.[431] The two girls came up to him again asking him for money.[432] He told them, 'No, no I haven't got any'.[433] He then finished his cigarette and drove back onto and down the street where he had parked before, but kept going and drove to the other end of the laneway where he again parked.[434]
[429] PB 102; ts 19.
[430] PB 102; ts 19.
[431] PB 102; ts 19.
[432] PB 103; ts 20.
[433] PB 103; ts 20.
[434] PB 103; ts 20.
While he was sitting in his car at the other end of the laneway one of the two girls again came up to him and asked him for money.[435] He was getting a bit scared by this time so he yelled at the girl.[436] He told her to 'fuck off' and get away from him.[437] The girl ran away.[438] When the girl took off running this scared him too so he drove off in his car.[439]
[435] PB 103; ts 20.
[436] PB 103; ts 20.
[437] PB 103; ts 20.
[438] PB 103; ts 20.
[439] PB 103; ts 20.
He felt scared because he was 'thinking about myself, as in reoffending'.[440] He also felt scared because he had yelled at the girl angrily and he did not want to scare her or hurt anybody anymore.[441]
[440] PB 127; ts 44.
[441] PB 133; ts 50.
The girls came and asked him for money about three or four times.[442]
[442] PB 105, 117; ts 22, 34.
He never had a conversation with the girls at Belmont during which he asked them where the bottle shop was.[443] He does not drink.[444] He never said to the girls that he would give them money if they got in the car.[445] The girls were just standing there looking into his car, looking at him, asking him if they could have some money so that they could get a drink or something to eat.[446] He just kept saying, 'No, no, no'.[447]
[443] PB 108; ts 25.
[444] PB 108; ts 25.
[445] PB 123; ts 40.
[446] PB 125; ts 42.
[447] PB 125; ts 42.
From what he could see the girls were not asking anyone else for money.[448]
[448] PB 125; ts 42.
When he met with the CCO on 21 January 2020 he did not tell the CCO about his contact with the girls because he thought that 'you guys' might have thought that he was 'getting in first' and 'telling … stuff first … so it doesn't … make him look like he's … done anything wrong'.[449] This was the only thing that stopped him telling the CCO about the girls.[450]
[449] PB 129; ts 46.
[450] PB 130; ts 47.
He did not want to go home that afternoon because it was scary for him to be at home by himself with all his thoughts going through his head.[451]
[451] PB 107; ts 24.
He did not hang around IGA to talk to the girls.[452] He was numb.[453] He was just sitting there and was nearly in tears.[454] He did not know what to do or where to go.[455]
[452] PB 131; ts 48.
[453] PB 131; ts 48.
[454] PB 131; ts 48.
[455] PB 131; ts 48.
He still sometimes has sexual thoughts about children.[456] The thoughts do come up and he constantly fights the thoughts.[457]
[456] PB 131; ts 48.
[457] PB 131 - 132; ts 48 - 49.
When the girls were pestering him for money he was getting more and more angry and scared.[458]

The CCTV footage

[458] PB 133; ts 50.

I will refer in more detail to the CCTV footage in due course. For present purposes it suffices to say that the footage, which as I have already said was recorded by various cameras in the vicinity of the McDonald's restaurant in Belmont, Belmont Forum and the Rivervale shops, depicts the activities and movements of JP, AC and the accused in and around Belmont Forum and the Rivervale shops from approximately 5.09 pm when JP and AC attended the McDonald's restaurant through to approximately 6.55 pm when AC can be seen running up Jupp Lane, which is the laneway referred to in the Statement of Facts, towards IGA and the accused can be seen driving out of Jupp Lane in the opposite direction to AC. It is fair to say that the CCTV footage is generally, albeit by no means entirely, consistent with the evidence of JP and AC, as to the relevant sequence of events on the afternoon in question.

The evidence of the prior offences

The document entitled 'Agreed Propensity Facts' tendered with the consent of the accused establishes the following.

The 1999 prior offences

On 6 October 1999 the accused was convicted on his pleas of guilty of one offence of child stealing and one offence of attempted sexual penetration of a child under the age of 13 years. The facts of the offences were as follows.
On the evening of 30 July 1999 the accused, who was 29 years old, was in Broome. He spoke to a 6‑year‑old girl at a hostel and enticed her to some adjacent bushland. The child became upset and began to cry. The accused placed his hand over the child's mouth and took her to beyond a fence where he removed her clothing. At the time the accused was dressed only in a pair of shorts. The accused removed his shorts. The accused then got on top of the child and attempted to penetrate the child's vagina with his finger but was disturbed by the sound of people searching for the child. The accused picked the child up, threw her over a fence and jumped over the fence himself. The accused slapped the child on the face, pulled her hair and again put his hand over her mouth. The child kept saying that she wanted to go home. The accused threatened to slap her again. Eventually, the accused put the child's clothes back on, walked her back to the hostel and released her.
The accused was sentenced to a total of 6 years imprisonment for the offences. He was made eligible for parole.

The November 2003 prior offences

On 26 November 2007 the accused was convicted on his pleas of guilty of two offences of deprivation of liberty and two offences of indecently dealing with a child under the age of 13. The facts of the offences were as follows.
In November 2003 the two female complainants, J and L, were aged 12 years and 8 years respectively. J and L are sisters.
On the afternoon of 1 November 2003 the accused, who was 33 years old, left his residence in Dianella. He was in possession of a backpack which contained a pornographic magazine. He was in possession of the magazine because he intended to go to a public toilet to masturbate.
The accused walked to some shops in the vicinity of Rosebery Street in Bedford. He saw J at the phone box at the shops.
The accused followed J as she walked to a nearby oval. He approached J at the park. He struck up a conversation with J and asked if she would go for a walk with him. He offered J some money and asked her if she would touch his penis. He produced the pornographic magazine and showed it to J. He then coaxed J over to a small shed on the oval and sat down next to her on the grass. He again showed her the pornographic magazine.
By this stage the accused was sexually aroused and had an erect penis. The accused asked J if she knew where there was somewhere they could go. He again offered J money. The accused and J then walked towards a street in Inglewood where L joined them.
The accused, J and L walked to a set of units which were under construction. The accused walked J and L to a unit in the middle of the complex. He took them to a store room in the garage of the unit which had walls, a roof and a concrete floor. He took the pornographic magazine from his backpack and placed it on the ground. He then pulled his shorts down and exposed his erect penis. He asked J if she would like to touch it. At this point both J and L began to cry. J told the accused that she did not like looking at the magazine and was upset.
The accused moved to the doorway of the storeroom so J and L were stopped from leaving. He lubricated his hand with his saliva and began to masturbate in front of the girls.
At this stage J and L became distraught and attempted to move past the accused in order to leave the room. However, the accused told them to face the wall. He continued to masturbate for several minutes until he ejaculated. He ejaculated onto the wall and the floor of the storeroom. However, some of his ejaculate landed on J's clothing. At this stage J and L were able to push past the accused who did not to attempt to stop them. They ran away from the unit.
The accused was not charged until 2007 when his DNA was found to match the DNA found at the time of the offences. He was in prison at the time of being charged.
The accused was sentenced to a total term of 2 years imprisonment for the offences to be served cumulatively on the sentence imposed on him for the offences of which he had been convicted in 2004 (referred to below). He was not made eligible for parole.

The December 2003 prior offences

On 11 June 2004 the accused was convicted on his pleas of guilty of one offence of deprivation of liberty and one offence of sexual penetration of a child under the age of 13. The facts of the offences were as follows.
On the evening of 25 December 2003 the accused, who was 33 years old, was in Morley. The accused met a 7‑year‑old girl (the complainant) and her 10‑year‑old female friend in the complainant's street. The accused met the girls by chance. The accused showed pornographic images from a magazine to both girls before returning to his temporary lodgings in Beechboro.
On the next day, 26 December 2003, the accused again met the complainant and her friend. He met them at Arbor Park in Morley. He asked them for something to drink. The girls left and returned a short time later with water. The accused lured the girls to the position that he wanted them.
The complainant's friend rode her bike to another part of the park while the complainant approached the accused to give him the water. At this point the accused grabbed the complainant by the waist and dragged her into some nearby bushes where he threw her on the ground, removed his penis from his shorts, and demanded that she suck his penis. The complainant, fearing for her life, complied with the accused's demand for a few seconds. The accused then ran from the scene.
The accused was sentenced to a total term of 4 years and 6 months imprisonment for the offences. He was made eligible for parole.

The assessment of the evidence of JP and AC - general principles

In the case of each of JP and AC I can decide to accept all of their evidence, some of their evidence or none of their evidence. I can accept part of their evidence and reject other parts of their evidence.
In deciding whether to accept any particular aspect of the evidence given by JP or AC I am entitled to have regard to the fact that each gave their evidence without the sanction of an oath or affirmation.
The accused's counsel, for reasons that I will shortly explain, was unable to complete his cross‑examination of AC. Counsel's inability to proceed with and complete his cross‑examination of AC was in no way attributable to anything that he did. Counsel's cross‑examination, to the extent that it occurred, was entirely appropriate taking into account AC's age, the sensitive nature of the subject matter of the questioning and counsel's obligation to test the material aspects of AC's evidence. In these circumstances it is open for me to conclude that the accused has been disadvantaged by reason of the inability of his counsel to properly and fully cross‑examine AC. This is a matter I am entitled to take into account in assessing the credibility, that is, the honesty and reliability, of AC's evidence.[459]
[459] GO v The State of Western Australia [2016] WASCA 132 [62] ‑ [63], [77].

The use that can be made of the interview conducted with the accused

The statements made by the accused during the interview conducted with him are part of the evidence that I am to consider in deciding if the State has proved the disputed facts beyond reasonable doubt. I cannot find a disputed fact proved if what the accused said during the interview in relation to the disputed fact has given rise to a reasonable doubt in relation to the disputed fact. The weight that I give to the statements made by the accused during the interview is, even though they were made without the sanction of an oath or affirmation, entirely a matter for me.

The use that can be made of the evidence of the prior offences

In par 29 above I have specified the disputed facts (the specified disputed facts) in relation to which I can, in accordance with my previous ruling, have regard to the evidence of the prior offences. It is, however, before proceeding further, necessary for me to clearly state the way in which I am permitted to make use of the evidence of the prior offences (the propensity evidence) in determining if the State has proved beyond reasonable doubt the specified disputed facts.
The State contends that the propensity evidence increases the likelihood of the accused having engaged in the behaviour the subject of the specified disputed facts. The State's contention is founded on the proposition that the propensity evidence establishes that the accused has a tendency to have a sexual interest in young girls under the age of 13 and a tendency to act on the sexual interest by enticing young girls to a secluded location with the intention of sexually offending against them and then committing sexual acts against them or in their presence.
For the reasons that I gave in ruling that the propensity evidence is admissible in relation to the specified disputed facts, that is, to prove the specified disputed facts, I am satisfied that the evidence does establish the above specified tendencies, and that the existence of the tendencies does increase the likelihood of the accused having engaged in the behaviour the subject of the specified disputed facts.
Although I am satisfied that the existence of the tendencies does increase the likelihood of the accused having engaged in the behaviour the subject of the specified disputed facts, I must not reason that simply because the accused has committed the prior offences, or because he has the established tendencies, he must necessarily have engaged in the behaviour the subject of the specified disputed facts. Proving that a person acted in a certain way with a sexual motivation on prior occasions does not compel the conclusion that the person acted in the same or a similar way on a later occasion. People do not always act in accordance with all their inclinations at every opportunity.
The position is that the propensity evidence is evidence that I can take into account in determining if I am satisfied beyond reasonable doubt that the accused engaged in the behaviour the subject of the specified disputed facts. However, the evidence does not by itself prove that the accused engaged in the behaviour the subject of the specified disputed facts. The propensity evidence is not direct evidence that the accused engaged in the behaviour the subject of the specified disputed facts. The propensity evidence cannot be used as a substitute for the direct evidence that the accused engaged in the behaviour the subject of the specified disputed facts. The question for me at all times remains whether, having regard to the whole of the evidence, the State has proved to my satisfaction beyond reasonable doubt that the accused engaged in the behaviour the subject of the specified disputed facts. I cannot find that the accused engaged in the behaviour the subject of the specified disputed facts unless I am satisfied beyond reasonable doubt on all of the evidence that the accused engaged in the behaviour.

The parties' submissions - summary

The State's primary submissions may be summarised as follows:
1.In order to prove the disputed facts the State relies not only on the evidence of JP and AC, but also the CCTV footage, the limited admissions made by the accused during the interview conducted with him and the propensity evidence;
2.The CCTV footage not only corroborates certain aspects of JP's and AC's evidence. It also supplements their evidence in that it depicts certain interactions between one or both of them and the accused which neither of them described in their evidence;
3.There were 'some very serious issues' with AC's evidence. In addition, there were inconsistencies in her evidence. The court may well conclude that little weight can be placed on AC's evidence unless it is supported by JP's evidence or the CCTV footage or the admissions made by the accused during the interview conducted with him;
4.JP was a totally different witness to AC. She was an honest and reliable witness. To the extent that there were differences between JP's evidence and AC's evidence the court should prefer JP's evidence. To the extent that there were internal inconsistencies in JP's evidence these can be explained by JP's age and her memory fading due to the passage of time that elapsed between the relevant events, when she was interviewed and when she gave evidence at the special hearing;
5.The court should find that there was a period of about 1¼ hours during which the accused had contact with, and interacted with, one or both of JP and AC on at least six occasions; and
6.When the evidence is considered in its totality the court should be satisfied beyond reasonable doubt not only that the accused engaged in the conduct the subject of the disputed facts, but also that he did so with a sexual intention.

Allegations that the accused engaged JP and AC in further conversation, that he suggested that JP and AC show him where the petrol station was in return for money, that he asked JP and AC to get into his car and that he did so with a sexual intention

JP's evidence was to the effect that when the accused was parked near the park he asked her and AC what they were up to, asked them where the petrol station was, and asked them to jump in his car to show them where the petrol station was. JP's evidence was also to the effect that the accused then drove around to the other side of the park, drove back to where she and AC were situated, and told them he would give them money if they helped him find the petrol station.
The accused's version is that he did not initiate any further conversation with JP and AC and that when he parked in the parking bay adjacent to the park they approached him and started pestering him for money.
I found JP's evidence in relation to these disputed facts to be convincing. Further, her evidence that it was the accused who initiated the conversation with her and AC is supported by the propensity evidence. In addition, her evidence of what the accused said and did is consistent with my finding that the accused's intention in driving out of the IGA car park and parking in the parking bay on Gerring Court adjacent to the park near where JP and AC were situated, was to initiate and engage in further conversation with JP and AC.
I do not consider the accused's version of events to be plausible. His assertion that JP and AC approached him and started pestering him for money once he had parked in the car bay adjacent to the park is inconsistent with his subsequent conduct, that is, his conduct in driving to the other side of the park but then, a short time later, returning to the general location where he had just interacted with JP and AC and, on seeing JP and AC walking along the edge of the park, bringing his car to a stop on Gerring Court and interacting, albeit briefly, with them. If the accused was being pestered by JP and AC for money and had no interest in them, there would have been no reason for him, after having driven away from them to the other side of the park, to return to the area of his initial interaction with them. Nor would there have been any reason for the accused, upon his return to Gerring Court, to have made a point of stopping his car and again interacting with JP and AC as he did.
Taking into account my assessment of JP's evidence in relation to the disputed alleged facts, my finding as to the accused's purpose in parking in the parking bay adjacent to the park, the implausibility of the accused's account and the propensity evidence (but, in accordance with my earlier ruling, only in relation to the specific allegation that the accused initiated the conversation with JP and AC), I am satisfied beyond reasonable doubt of the following:
1.The accused, on parking in the parking bay adjacent to the park, initiated and engaged in conversation with JP and AC;
2.The accused asked JP and AC if they knew where the petrol station was and asked them to get in his car to show him where the petrol station was; and
3.The accused offered JP and AC money to show him where the petrol station was, if not during the initial conversation that he had with them then during the subsequent conversation that he had with them after he had returned from the other side of the park to Gerring Court.
Further, taking into account the propensity evidence, I am persuaded that the only inference reasonably available to be drawn is that the accused engaged in the conduct that I have found him to have engaged in with a sexual intention, that is, with the intention of committing sexual acts against JP and AC or in their presence.

Allegations that the accused 'hovered' in the area for the purpose of speaking to JP and AC and that he did so with a sexual intention

It necessarily follows from my above stated findings that I am also satisfied beyond reasonable doubt that the accused 'hovered' in the area of the Rivervale shops and the park for the purpose of speaking to JP and AC, and that he did so with a sexual intention.

Allegations that the accused wanted to maintain conversation with AC and that he had a sexual intention

The issue the subject of this disputed alleged fact is whether, while JP went into IGA and changed money for the accused, the accused wanted to continue interacting with AC or whether the interaction continued simply because AC was pestering the accused for money.
On the basis of JP's evidence that AC did ask the accused for money and really wanted some money, and in light of the accused's previous offers of money to JP and AC, I am satisfied that by this point in time AC was hopeful of obtaining some money from the accused and had conveyed to the accused her wish to be given some money by him. However, I am also, in light of what had already transpired between JP, AC and the accused, satisfied beyond reasonable doubt that the accused did, at the time that he was left alone with AC while JP went into IGA to obtain change for him, want to continue his interaction with AC. I am also satisfied beyond reasonable doubt that his reason for wanting to continue his interaction with AC was that he had a sexual interest in her, or in other words, a sexual intention.

Allegations that the accused drove into Jupp Lane looking for JP and AC, that he 'engaged' in conversation with them and that in doing so he had a sexual intention

These disputed facts arise out of the conduct of the accused comprised of him, at about 6.40 pm, driving into Jupp Lane from the direction of Francisco Street and, upon encountering JP and AC while they were walking down Jupp Lane from the opposite direction, interacting with them.
As is apparent from my earlier summary of their evidence, neither JP nor AC gave evidence in relation to this particular interaction with the accused. Further the accused did not during his interview expressly address or deal with this aspect of his conduct.
In my view, and taking account of the findings of fact that I have already made, the only inference that is reasonably available to be drawn from the accused's conduct in driving out of the IGA car park at about 6.35 pm in the direction of Jupp Lane, and then at about 6.40 pm driving into Jupp Lane from the opposite direction back towards the direction of IGA, is that he was looking for JP and AC. There is simply no other rational explanation for his conduct.
As to the disputed allegation that the accused 'engaged' in conversation with both JP and AC at this time, I am, having watched the relevant portion of the CCTV footage, unable to make a finding that it was the accused, as opposed to JP or AC, who actually initiated the conversation that occurred at the point in time that the accused and the two girls came together in the laneway. However, I am, consistently with the findings of fact that I have already made, satisfied beyond reasonable doubt that it was the accused's intention, once he came across JP and AC, to engage with them. In these circumstances, whether it was the accused, JP or AC who actually started the conversation is of little moment.
Further, and again taking into account the propensity evidence, I am satisfied that the only inference reasonably available to be drawn is that the accused, in engaging with JP and AC in Jupp Lane, had a sexual intention.

PE 5194/2020

Allegations that the accused requested AC to meet him at the end of Jupp Lane and offered her $20 to do so, drove into Jupp Lane looking for AC, and intentionally parked his car in an isolated location out of CCTV vision

AC did not give evidence that the man, the accused, asked to meet her at the end of the laneway and offered her $20 to do so.
In her interview JP did say that as she was walking away to IGA to change money for the man she heard the man and AC whispering and that the man was saying to AC that he would give her $20. However, in her evidence given at the special hearing JP said that AC had told her that the man had whispered something to her about $20, and that AC had told her this after she had gone into IGA to change money for the man. In these circumstances I am not satisfied that JP actually heard the accused say to AC that he would give her $20 and am therefore unable, on the basis of JP's evidence, to make a finding of fact to this effect (JP's evidence that AC told her that the man had whispered something about $20 being hearsay and inadmissible to prove the truth of AC's assertion).
I am, however, satisfied beyond reasonable doubt that the only explanation for AC having walked or jogged by herself down Jupp Lane away from IGA on two separate occasions, first at approximately 6.45 pm and then again at approximately 6.51 pm, is that she was looking for the accused. In my opinion this is the only inference that can reasonably be drawn from AC's conduct in venturing down Jupp Lane. There is no other rational explanation for AC to have engaged in this conduct.
I am also satisfied beyond reasonable doubt that the only explanation for AC having ventured by herself down Jupp Lane in order to look for the accused is that the accused had, either while he was engaging with AC when JP was in IGA changing money for him or while he was engaging with AC in Jupp Lane at approximately 6.40 pm, asked AC to meet him at the end of the laneway and had offered her an inducement in the form of money to do so. In my view, and even if the propensity evidence is put to one side, this is the only inference that is reasonably available to be drawn from the fact that AC wanted money and ventured down Jupp Lane by herself on two separate occasions looking for the accused. If the accused had not asked AC to meet him at the end of Jupp Lane, AC would not have known to go looking for the accused at that location. There would have been no reason for her to think that the accused would drive to, and park at, that location. The mere fact that AC had previously interacted with the accused in Jupp Lane at 6.40 pm would not have provided a basis for her to arrive at such a conclusion. Further, if the accused had not offered AC a monetary inducement to meet him at the end of Jupp Lane there would have been no reason for AC to make her way to that location for the purpose of meeting him.
If contrary to the view I have expressed in the previous paragraph, the circumstances comprised of AC's desire for money and her conduct in venturing down Jupp Lane to look for the accused on two separate occasions are not of themselves sufficient to justify the drawing of the specified inference, then in my opinion these circumstances considered in conjunction with the propensity evidence certainly are.
My finding that the accused asked AC to meet him at the end of Jupp Lane and offered her money to do so is not in any way inconsistent with JP's evidence that AC told her that she was going to go up the laneway to ask the man for money. AC's stated purpose for venturing away from IGA along Jupp Lane by herself is not inconsistent with the accused having asked AC to meet him at the end of the laneway and having offered her a monetary inducement to do so.
I have, in arriving at my above stated findings, considered the possibility (not adverted to by the accused's counsel) that AC by chance saw the accused park in the vacant area of land at the end of Jupp Lane and that this was the only reason why at 6.51 pm she jogged down the laneway to where he had parked. I have considered this possibility given that I am unable to conclude on the basis of the CCTV footage and photographic evidence that it would have been impossible for AC to have observed the accused drive into Jupp Lane from Francisco Street and park in the vacant area of land if she had at that moment in time been standing in the area of the IGA car park in the vicinity of the previously referred to cream wall.[485] However, I am satisfied beyond reasonable doubt that the possibility that AC jogged down to the end of Jupp Lane to where the accused was parked because she actually saw him park in the vacant area of land can be excluded. I am so satisfied for two reasons. Firstly, because JP did not in giving her evidence in relation to this issue make any reference to seeing the accused park in the vacant area of land at the end of Jupp Lane in the moments before AC ventured down the laneway by herself. Secondly, and perhaps more significantly, because the suggestion that AC's reason for jogging down Jupp Lane at 6.51 pm to where the accused was parked was that she had by chance seen the accused park in the vacant area of land is inconsistent with her conduct, at 6.45 pm, in walking down Jupp Lane by herself to look for the accused when he was not at that time in the laneway. That is, if AC was in a position to see the end of Jupp Lane from a position in the general vicinity of the IGA car park she would, at 6.45 pm, have been able to see that the accused was not parked in the vacant area of land at the end of the laneway and therefore would not have walked down the laneway looking for him.
[485] No evidence was adduced from Officer Dodson in relation to this issue.
It obviously follows from my above stated findings that I am satisfied beyond reasonable doubt that when the accused drove into Jupp Lane and parked in the vacant area of land he was looking for AC.
As to whether the accused's choice of parking spot was an isolated location, I am conscious of the point made by the accused's counsel that the area of vacant land where the accused parked his vehicle was relatively close to the intersection with Francisco Street. Nonetheless, it is clear from the photographic evidence that the vacant plot of land was relatively secluded, was not surrounded by residential dwellings and was well away from the Rivervale shops. It also needs to be borne in mind that the volume of traffic passing through Jupp Lane is unlikely to have been significant given that it was approximately 6.50 pm on a Saturday evening. In these circumstances I am satisfied beyond reasonable doubt that the area where the accused parked his vehicle was secluded and that the accused chose the area because of its seclusion.
Further, taking into account the propensity evidence, I am satisfied that the only inference that is reasonably available to be drawn from the accused's conduct in asking AC to meet him in the secluded location at the end of Jupp Lane and offering her money to do so, is that he had a sexual intention. I am satisfied beyond reasonable doubt of this fact.

Allegations that the accused asked AC if she wanted money, asked AC if she wanted to jump in his car, told AC that if she wanted to jump in his car she would have to do something, tried to give AC $20 and did these things with a sexual intention

I turn then to the disputed alleged facts relating to the precise nature of the exchange that took place between the accused and AC when she approached his car while parked in the area of vacant land near the end of Jupp Lane. These alleged facts are based solely on the evidence given by AC comprised of what she said in the second of the interviews conducted with her and during the special hearing.
I have expressed the view that AC was in an overall sense not a convincing witness. In addition, I have also made the point that the accused's counsel was in effect precluded from testing in any significant way by cross‑examination AC's evidence as to precisely what occurred between her and the accused when she met the accused at the end of Jupp Lane. However, AC's evidence must be considered and assessed in light of the findings of fact that I have already made, specifically that the accused, with the intention of committing a sexual act against AC or in her presence, asked AC to meet him at the end of Jupp Lane and offered her some form of inducement to do so. AC's evidence that the accused asked her to jump in his car, told her that if she wanted to jump in his car she would 'have to do something' and tried to give her $20 is consistent with my finding that the accused's purpose in asking AC to meet him at the end of Jupp Lane was to commit a sexual act against her or in her presence. Further, the evidence given by JP as to AC's demeanour and statements following AC's interaction with the accused at the end of Jupp Lane, specifically that AC came running back up the laneway, that she was crying and that she said that she was scared and wanted to go home, is consistent with AC's evidence as to what had occurred. In other words, AC's demeanour and statements made in the moments following her interaction with the accused are consistent with what she now alleges occurred and therefore, to a limited extent, support the credibility of her evidence in this respect. I am not overlooking in this context that JP also said that AC told her that the man had shouted at her, which is consistent with the version of events given by the accused in his interview. However, AC's statement to JP that the man shouted at her is not inconsistent with AC's evidence as to what occurred and in any event may readily be explained on the basis that AC did not want to disclose to JP precisely why she was upset.
I take into account that AC did not, during the first of her interviews, make any reference at all to her interaction with the accused at the end of Jupp Lane. However, this failure assumes less significance than it otherwise might when it is borne in mind that the accused, on his own account, admits that the interaction occurred. Moreover, when AC did describe the interaction during her second interview she did so without any significant prompting and as part of her initial short form recital of what had occurred between the accused, JP and her on the day in question.
Ultimately, and being conscious of the considerable caution that I must necessarily exercise before acting on AC's evidence, I am, taking into account the matters to which I have referred, satisfied beyond doubt that this aspect of AC's evidence was given honestly and is reliable. That is, I am satisfied beyond reasonable doubt that when AC met the accused in the location at the end of the laneway the accused asked her if she wanted money, asked her if she wanted to get into his car, offered her $20 to get into his car, and told her that if she got into his car she would have to do something. I am satisfied beyond reasonable doubt that the accused's account of what occurred during his interaction with AC at the end of Jupp Lane is untruthful.
Further, taking into account the propensity evidence, I am satisfied that the only inference that is reasonably available to be drawn is that the accused engaged in this conduct with a sexual intention, that is, with the intention of committing a sexual act against AC or in her presence. The accused's statement that AC would have to do something if she got in his car was quite obviously a reference to AC participating in some form of sexual activity.

PE 5195/2020 and PE 4007/2020

I do not find the explanation given by the accused during his interview for not reporting his contact with JP and AC to the CCO to be at all convincing. I am persuaded that the only inference that is reasonably available to be drawn from all of the facts that I have found to be established is that the accused's motivation for failing to disclose his contact with JP and AC was not only that he knew that his contact had been in breach of the conditions of the Supervision Order, but also that he knew that he had engaged in the contact with a sexual intent.

Conclusion

I summarise my findings as follows.
I find the following disputed facts the subject of offence PE 4006/2020 proved:
1.The accused first engaged JP and AC in conversation, that is, initiated the conversation with JP and AC, by asking them what they were up to and where the bottle shop was;
2.The accused produced money and told JP and AC that he would give them money, the clear implication being that he would give them the money if they agreed to show him where the bottle shop was;
3.The accused asked JP and AC where the bottle shop was and offered them money if they agreed to show him where the bottle shop was in an attempt to induce them to get into his car;
4.The accused engaged in the conduct specified in points 1 to 3 above with a sexual intention;
5.The accused drove past the bus stop on three separate occasions so that he could observe JP and AC;
6.The accused drove past the bus stop on three separate occasions so that he could observe JP and AC because he had a sexual interest in JP and AC.

I find that the following disputed facts the subject of offence PE 4006/2020 have not been proved:
1.The accused cleared the back seat of his car; and
2.The accused told JP and AC to get into his car.
I find the following disputed facts the subject of offence PE 5193/2020 proved:
1.The accused called out to JP and AC as they crossed Gerring Court;
2.At approximately 6.14 pm the accused drove out of a parking bay in the IGA car park to a parking bay on Gerring Court adjacent to the park with the intention of engaging in further conversation with JP and AC;
3.The accused, on parking in the parking bay adjacent to the park, initiated and engaged in conversation with JP and AC;
4.The accused asked JP and AC if they knew where the petrol station was and asked them to get into his car to show him where the petrol station was;
5.The accused offered JP and AC money to show him where the petrol station was, if not during the initial conversation that he had with them then during the subsequent conversation that he had with them after he had returned from the other side of the park to Gerring Court;
6.The accused engaged in the conduct specified in points 1 to 5 above with a sexual intention;
7.The accused hovered in the area of the Rivervale shops and the park for the purpose of speaking to JP and AC and did so with a sexual intention;
8.The accused did, at the time that he was left alone with AC while JP went into IGA to obtain change for him, want to continue his interaction with AC and that his reason for wanting to continue his interaction with AC was that he had a sexual intention;
9.The accused's intention in driving into Jupp Lane at about 6.40 pm was to look for JP and AC;
10.The accused's intention, once he came across JP and AC, was to engage with them; and
11.The accused, in engaging with JP and AC in Jupp Lane, had a sexual intention.
I find that the following disputed facts the subject of offence PE 5193/2020 have not been proved:
1.The accused drove to the Rivervale shops for the purpose of continuing to interact with JP and AC; and
2.The accused, as opposed to JP or AC, initiated the conversation that took place in Jupp Lane at about 6.40 pm.
I find the following disputed facts the subject of offence PE 5194/2020 proved:
1.The accused, either while he was engaging with AC when JP was in IGA changing money for him or while he was engaging with AC in Jupp Lane at approximately 6.40 pm, asked AC to meet him at the end of Jupp Lane and offered her money to do so;
2.At about 6.50 pm the accused drove into Jupp Lane looking for AC and intentionally parked his car in a secluded location;
3.The accused engaged in the conduct referred to in points 1 and 2 above with a sexual intention;
4.When the accused met AC at the end of Jupp Lane he asked her if she wanted money, asked her if she wanted to get into his car, offered her $20 to get into his car, and told her that if she got into his car she would have to do something; and
5.The accused engaged in the conduct specified in point 4 above with a sexual intention.
As to offences PE 5195/2020 and PE 4007/2020 I find that the accused's motivation for failing to disclose his contact with JP and AC was not only that he knew that his contact had been in breach of the conditions of the Supervision Order, but also that he knew that he had engaged in the contact with a sexual intent.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CP
Associate to the Honourable Justice Derrick
23 DECEMBER 2020