The State of Western Australia v Doyle - [2022] WADC 26

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DOYLE [2022] WADC 26
CORAM:   LONSDALE DCJ
HEARD:   15 - 17 FEBRUARY 2022
DELIVERED          :   18 MARCH 2022
FILE NO/S:   IND 2427 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
RICHARD JOSEPH DOYLE

Catchwords:

Trial by judge alone - Charges of indecent dealing with a child under 14

Legislation:

Criminal Code (WA), s 183
Criminal Procedure Act 2004 (WA), s 119, s 120
Evidence Act 1906 (WA), s 31A

Result:

Verdicts of guilty on counts 1, 3, 4 and 6
Verdicts of not guilty on counts 2 and 5

Representation:

Counsel:

The State of Western Australia	:	Ms M M Yeung
Accused	:	Mr S F Rafferty

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Seamus Rafferty & Associates

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

Drago v The Queen (1992) 8 WAR 488
Liberato v The Queen (1985) 159 CLR 507
Longman v The Queen (1989) 168 CLR 79
Melbourne v The Queen (1999) 198 CLR 1
Palmer v The Queen (1998) 193 CLR 1

LONSDALE DCJ:

The accused is charged with six counts of unlawful and indecent dealing contrary to s 183 of the Criminal Code (WA), being offences said to have been committed against the complainant between 1 November 1979 and 10 February 1981.
The accused has pleaded not guilty and has denied the offending. The accused was tried before me between 15 - 17 February 2022 as a judge sitting alone.

Trial by judge alone

Section 119 and s 120 of the Criminal Procedure Act 2004 (WA) govern the principles to be applied in a judge alone trial. They provide as follows:
119Law and procedure to be applied
(1)In a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
(2)In a trial by a judge alone, the judge may view a place or thing.
(3)If any written or other law -
(a)requires information or a warning or instruction to be given to the jury in certain circumstances; or
(b)prohibits a warning from being given to a jury in certain circumstances,
the judge in a trial by a judge alone must take the requirement or prohibition into account if those circumstances arise in the course of the trial.
120Judge's verdict and judgment
(1)In a trial by a judge alone -
(a)the judge may make any findings and give any verdict that a jury could have made or given if the trial had been before a jury; and
(b)any finding or verdict of the judge has, for all purposes, the same effect as a finding or verdict of a jury.
(2)The judgment of the judge in a trial by a judge alone must include the principles of law that he or she has applied and the findings of fact on which he or she has relied.
(3)The validity of a trial judge's judgment is not affected by a failure to comply with subsection (2).

Principles of law applicable to criminal trials

I acknowledge the following principles of law to be applied in this case.
The accused is presumed to be innocent of the charges brought against him.
The burden of proving the charges is on the State.
The State must prove the charges beyond reasonable doubt. If I have a reasonable doubt as to whether the accused is guilty of one or more of the charges, then I must acquit him on any charge upon which I have a reasonable doubt.
There is no obligation on the accused to prove anything.
The verdicts must be based solely on the evidence presented at trial. I must not guess or speculate about matters that are not in evidence.
I must reach verdicts unaffected by any feelings of sympathy or prejudice I may have.
I may draw inferences from proven facts. I must not draw any inference against the accused unless it is the only reasonable inference open. The State must exclude any rational hypothesis consistent with innocence.

The indictment

The State alleges that the six counts of unlawful and indecent dealing occurred on three separate occasions. The charges read as follows:
(1)On an unknown date between 1 November 1979 and 10 February 1982 at Nedlands [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, be penetrating her vagina with his finger.
(2)On another unknown date between 1 November 1979 and 10 February 1982 at Nedlands [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, by stroking her chest.
(3)On the same date and at the same place as in Count (2) [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, by inserting his hand into her underpants.
(4)On the same date and at the same place as in Count (2) [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, by penetrating her vagina with his finger.
(5)On another unknown date between 1 November 1979 and 10 February 1982 at Nedlands [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, by rubbing her chest.
(6)On the same date and at the same place as in Count (5) [the accused] unlawfully and indecently dealt with [the complainant], a child under the age of 14 years, by penetrating her vagina with his finger.

Elements of the offences

The date and place specified in the indictment are not essential elements of the offence. The State is not required to prove that the offences occurred precisely between the dates specified or at the place alleged. However, there was no suggestion in this case that conduct might have occurred outside the relevant time frame or at another place.
The State is required to prove the following elements beyond reasonable doubt:
1.Identity.
2.That the accused dealt with the complainant.
3.That the dealing was as a result of a willed or deliberate act.
4.That the dealing was indecent.
5.That the indecent dealing was unlawful.
6.That the complainant was a child under the age of 14.

The issues

Identity was not in issue. The complainant was not challenged as to the identity of the accused.
The defence did not dispute that the conduct, if proven, would constitute a dealing; nor did the defence contend that the conduct alleged was neither a willed nor a deliberate act.
Further, the defence did not contend that the conduct alleged was neither unlawful nor indecent. In my view however, for the reasons which I will elucidate later in these reasons, there is an issue as to whether the conduct alleged in counts 2 and 5, would amount to a dealing that is indecent.[1] Ultimately, as I am not satisfied beyond reasonable doubt that the conduct alleged in counts 2 and 5 is indecent, I have concluded that the accused should be acquitted of those two counts.
[1] The term 'indecent' is not defined in the Criminal Code. The leading authority on what constitutes an indecent act is Drago v The Queen (1992) 8 WAR 488. The dealing must be unbecoming or offensive to common propriety. It must have a sexual character.
The defence did not dispute that the complainant was under the age of 14.
The sole contention by the defence was that the conduct did not occur.

Facts not in dispute

The following facts are not in dispute.
The complainant's mother RTM was at all relevant times a devout Catholic who was very involved with the Catholic Church.
The accused was an ordained Catholic priest who had met RTM when he was the parish priest in the town of Bruce Rock in the early 1970s.
RTM married a man by the name of MA in 1972. The accused had been involved in the preparation of RTM's marriage to MA. However, he had not presided over the marriage, as their wedding took place in another town.
RTM gave birth to the complainant on 10 February 1973 and to the complainant's sister JSS in 1975. The complainant and her sister are the only children of RTM's union with MA. Following RTM and MA separating in 1977, RTM moved with the children to a house in Archdeacon Street in Nedlands.
On 3 October 1979 RTM gave birth to a son RP. Six weeks after RP's birth, RTM moved with her three children into a house in Ord Street, Nedlands.
Sometime after RTM moved to Nedlands in 1977, the accused began visiting RTM at home - first at the house in Archdeacon Street and then at the house in Ord Street.
The accused visited RTM at home on several occasions; he would always visit on a Monday afternoon after the girls were home from school. He would usually stay for dinner.
The complainant alleges that, on a number of occasions when the accused was visiting them at the Ord Street house, he indecently dealt with her.
At all relevant times, the only people living at the house in Ord Street were RTM, the complainant, her sister JSS and the complainant's baby brother RP.
RP's father RM eventually moved in with (and married) RTM in 1984. The accused presided over RTM's marriage to RM. At around the time of RTM's second marriage, the accused ceased visiting.

Overview of the allegations

The complainant alleges that on several occasions when they were living in Ord Street and the complainant was aged between 6 and 9, the accused asked her to give him 'back scratches'. At first, the back scratches took place with the accused sitting in the loungeroom with his shirt on. On later occasions the accused would remove his shirt and singlet.
On three occasions, after the complainant scratched the accused's back, the accused indecently dealt with her.
On the first such occasion the complainant alleges that, after scratching his back, the accused pushed her legs apart and pushed her underwear to one side before inserting his finger into her vagina (count 1).
The second incident is said to have occurred in the complainant's bedroom. On this occasion, after giving the accused a back scratch, the accused stroked his fingers across the complainant's chest (count 2). The accused then moved his hand down to the waistband of her skirt, pulled it away from her body then inserted his hands into her underpants (count 3). He then penetrated her vagina with his finger (count 4).
On the third occasion, the accused was again in the complainant's bedroom. On this occasion, the complainant alleges that the accused tickled her, then rubbed her chest (count 5), then penetrated her vagina with his finger (count 6).

Evidence relied on by the State - overview

The State case relies principally on the evidence of the complainant. The complainant was the only witness to give direct evidence of the allegations the subject of the six charges.
The State also led evidence from the complainant of other conduct to show the relationship between the accused and her family, namely evidence of occasions at which the complainant scratched the accused's back.
The State led evidence from the complainant's mother RTM who gave evidence of the circumstances of the accused's visits to her home. Although RTM did not witness any of the conduct forming the basis of the six counts, she did witness occasions in which the complainant and her younger daughter JSS gave the accused a back scratch.
The complainant's sister JSS gave evidence that she herself had also scratched the accused's back. JSS gave evidence that on several occasions the accused had also indecently dealt with her by touching her genital area.
JSS' evidence that the accused had indecently dealt with her is relied on by the State as propensity evidence pursuant to s 31A of the Evidence Act 1906 (WA).

Overview of the defence case

The accused gave evidence in his own defence. He admitted visiting the complainant and her family in Nedlands on several occasions during the relevant period. He denied ever having received back scratches from the complainant or JSS or that he had ever indecently dealt with the complainant.

The complainant's evidence

The complainant was born on 10 February 1973.[2]
[2] ts 55.
The complainant's family were very religious. She was always very respectful and deferential to priests, but also to all adults.[3]
[3] ts 56.
The complainant came to know the accused after he started visiting their house in Archdeacon Street in Nedlands.[4]
[4] ts 56.
The complainant recalls the accused coming to the house in Archdeacon Street on more than one occasion; he would come on Mondays in the late afternoon and usually stay for dinner.[5]
[5] ts 57.
Under cross-examination, the complainant conceded that there may have been Mondays that the accused did not come but her memory was that he came very regularly on a Monday.[6]
[6] ts 108.
The complainant recalled that the accused occasionally brought things, such as a cooked chicken from a shop. Sometimes he brought chocolates like After Dinner Mints or desserts like Hazelnut Rolls or individual ice-cream tubs. She particularly recalled [the desserts] because they did not normally have them, so it was 'a standout'.[7] The complainant recalled the accused bringing them presents:; some nesting coffee tables and a cushion in dark maroon velvet for her bedroom.[8]
[7] ts 66.
[8] ts 67.
Under cross-examination the complainant agreed that, in a 32‑page statement given to police in 2019, she had not mentioned the subject of After Dinner Mints or Hazelnut Rolls (even though investigating officers had told her to tell them everything that she could remember). The complainant said that the level of detail [that she provided in her police statement] was all she could manage at the time. She agreed that she had not said anything about the accused bringing After Dinner Mints or Hazelnut Rolls until she met with the prosecutor prior to the trial.[9]
[9] ts 109.
The complainant said that, from the time when they were living at the Ord Street house, she would give the accused 'back scratches'. This started when she 'would have been 6½' and happened thereafter on many occasions.[10]
[10] ts 67.
On the earlier occasions of back scratching, the accused would be sitting on a chair in their loungeroom and wearing a shirt.[11] The complainant recalls conduct of this kind happening several times over 'several months'.[12]
[11] ts 67.
[12] ts 69.
The complainant conceded in cross-examination that she had not told police in 2019 that the back scratching with him sitting on a chair had gone on for 'several months'. She agreed that, in her police statement, she had said that this went on 'for a few weeks'. She denied however, that there was a difference between 'a few weeks' and 'several months'; her understanding of 'several months' was not that it was a specific amount of time, but it meant 'on several occasions'.[13]

The complainant's evidence as to back scratching on floor of loungeroom

[13] ts 113.

The complainant said that, after a couple of Monday [visits] the accused had begun to lie down on the floor in the loungeroom and would take his shirt off before she scratched his back. At some later point he would take his singlet off as well as his shirt. On these occasions she would scratch his bare skin from the waist up.[14]
[14] ts 69.
Under cross-examination, the complainant conceded that in her statement to police made in 2019 she had said that, when he was sitting in the armchair, he had kept his singlet on. She accepted that what was in her statement was inconsistent with her evidence that she had scratched his back on his bare skin.[15] The complainant denied that the reason for the inconsistency was because the incidents never happened.[16]
[15] ts 114.
[16] ts 115.
The complainant said that on the occasions when the accused was lying on the loungeroom floor, he would be orientated with his head closest to the fireplace and his feet closest to the glass sliding door which separated the loungeroom from the hallway.[17]
[17] ts 70 - ts 71.
The complainant recalled that when she scratched the accused's back, she scratched patterns around the moles and skin tags on his skin (because she did not like touching those).[18]
[18] ts 71.
The complainant recalls that the incidents of back scratching took place over a very long time. She did not know precisely how long because it was 'so commonplace and it felt like years'.[19]
[19] ts 72.
Under cross-examination, the complainant agreed that she had told police in 2019 that she was under the age of 8 when the back scratching first started.[20] The complainant was challenged as to why she had been 'categoric' in her evidence‑in‑chief (by saying that she was 6½). She said it was because she knew she had moved into Ord Street (in 1979) but was uncertain as to when the back scratching actually started. The complainant agreed that, when she spoke to police in 2019, she was not able to be certain as to how old she was when the back scratching started. She denied that when she gave evidence of being 6½, she was being precise in saying how old she was.[21]
[20] ts 110.
[21] ts 112.
Further, the complainant agreed that, in an email to Detective Beauchamp in May 2019, she had stated that the offending occurred over a period of 'several years' from 1979 to 1981. The complainant denied this was inconsistent with an earlier email sent to her sister and mother (also in 2019) where she had said that she 'needed to confirm the dates' [of the offending]. The complainant said that, by the time she sent the email to Detective Beauchamp, she had settled on the offending as happening between 1979 and 1981. She denied that there were no incidents after 1981. The complainant said she knew that the offending occurred before she was 9 years old because she did not yet have the Barbie doll she had been given for her 9^th birthday. She agreed that there was no mention in the email of anything happening after 1981.[22] Although the complainant could not be specific about any incidents occurring after 1981, she agreed that the accused had continued to visit the house in Ord Street up until her mother remarried.[23]
[22] ts 103.
[23] ts 104.
Under cross-examination the complainant denied having ever referred to back scratching as a 'back massage'. However, the complainant agreed that, in the email sent to her sister and her mother in 2019 (in which she had raised the possibility of making a complaint against the accused) she wrote 'the sexualised behaviour towards both [her] and [JSS] included [the accused] coercing [them] to give back massages, then back massages with [the accused's] shirt off'.[24] The complainant agreed with defence counsel's proposition that there is a difference between a 'massage' and a 'back scratch'.[25]
[24] ts 98.
[25] ts 96.
The complainant said she had used the word 'massage' as it was more 'formalised language' which she considered appropriate for using for making a complaint. She did not write the word back scratching but 'we all knew what it meant'.[26]
[26] ts 98.
The complainant said she had not used her childhood language in the email because she was writing this as an adult.[27] She now considered it an error to have tried to use 'formalised language' when she was drafting a complaint in writing. She should have written it exactly the way her memory experienced it.[28]
[27] ts 99.
[28] ts 100.
The complainant remembered three occasions with particularity on which the accused dealt with her indecently.

The complainant's evidence as to count 1

The first occasion that the complainant remembers the accused indecently dealing with her was when she was 7 years old. She was on the loungeroom floor and it was late afternoon. Only she and the accused were present. The accused took off his shirt and singlet and laid it over the armchair and she scratched his back.[29]
[29] ts 72.
After the complainant scratched the accused's back for a short while, her mother came in and said 'that's enough'. Her mother then went back to the kitchen.[30] The accused then sat up to get dressed. The complainant recalls him wearing a white singlet with very thin straps and a white shirt with a collar and dark coloured pants.[31]
[30] ts 73.
[31] ts 73.

Under cross‑examination the complainant said that her mother had come in several times saying 'that's enough'.[32] Although the complainant could not recall precisely the words her mother used, 'that was [her mother's] intention'.[33]
[32] ts 115.
[33] ts 116.
After her mother left, the complainant was sitting on the floor cross legged with the accused directly in front of her. The accused held her left leg with what 'would have been' his right hand. The accused then put his hand up her skirt to her underpants.[34]
[34] ts 74.
The complainant said the accused then tickled her on the underpants and pushed the gusset of her underpants across using his other hand to touch her between her legs.[35] The accused pushed her underpants to one side and was tickling her with the other hand on her vulva. After he tickled her vulva, he put his finger in her vagina. The complainant described her feelings as follows:[36]
I could feel his big fat finger was rough and scratchy. I didn't know what was happening. … It hurt. It was dry. It felt like digging and I was trying to get away then because it hurt and it was rough and dry and scratchy and really sore. … It was very quick. It was less than a minute. … I tried to back away. I - I kind of felt my leg was a bit pinned by his body somehow but I tried to squirm backwards away from him.
[35] ts 74.
[36] ts 75.
After the accused did this, the complainant got away and ran out of the glass sliding door into the hallway.
The complainant explained that the term 'digging' meant that the accused had used his finger to penetrate her vagina.[37]
[37] ts 75.
The complainant said this sort of thing happened often. She said tickling on the vagina happened more often than 'digging'.[38]
[38] ts 76.
Under cross‑examination, the complainant conceded she could not recall, in relation to this first occasion, whether the accused had used his left or right hand to grab her leg. The complainant agreed that, in her police statement signed in 2019, she said he used his left hand to grab her right leg. The complainant said she had many memories of many incidents and may have been confused as to whether he used the left and right hands.[39]
[39]ts 120.
Under cross-examination, the complainant also agreed that, when she spoke to police in 2019, she had not used the word 'tickling' to describe the accused touching her vagina in relation to the first occasion.[40]
[40] ts 124.
The complainant agreed in cross-examination that, after meeting with the prosecutor on 9 February 2022, she had not used the word 'tickling' to describe the accused touching her on the outside of her underwear.[41]

The complainant's evidence as to counts 2 - 4

[41] ts 125 - ts 126.

On the second occasion the complainant recalls there was an episode of back scratching that occurred in the bedroom she shared with her sister.[42]
[42] ts 76.
The complainant was in her bedroom alone. The accused came into the bedroom and asked for a back scratch. He took his shirt and singlet off, laid them on the end of the bed, then laid down on her bed with his head on her pillow. The complainant scratched his back with two hands until her mother came in and said, 'that's enough now' and she left the room.[43]
[43] ts 82.
On this occasion, the complainant was standing next to the bed and the accused was lying on her bed on top of her doona. The complainant recalls she would have been 8 years old because it was before she got her Barbie doll for her 9^th birthday. [44]
[44] ts 77.
After her mother left the room, the complainant stood there politely while the accused put his shirt and singlet back on.[45]
[45] ts 83.
The accused then held her left hand and started tickling her across the front (ie: her chest) with his right hand. The complainant then corrected herself and said he used his left hand. She said the tickling was not 'make you laugh tickling' and happened for less than a minute.[46]
[46] ts 83.
The complainant felt the accused use the pads of his fingers. It did not feel ticklish but 'rough like firm'.
The complainant was wearing a skirt and t-shirt. The accused touched her over the clothing, then pulled her skirt waistband forward towards him with his left hand, using his right hand to hold her shoulder. He then put his right hand down her underpants, all the way to her 'front bottom'. (The term 'front bottom' was the term she used as a child to describe her vulva and her vagina.)[47]
[47] ts 84 - ts 85.
The complainant described the accused penetrating her vagina as follows:[48]
It was what I call tickling, tickling which is just touching. It's not tickling like ha ha, laughing tickling, just moving around, touching me, touching my front bottom and then he started to dig, which is when he put his finger inside.
[48] ts 85.
The complainant said she could feel the accused's finger moving. She described the sensation as rough and it 'felt like a big, fat, dry, rough finger and it hurt'. She did not know how the accused's finger was moving but it was moving around 'tickling and digging'.[49]
[49] ts 85.
The complainant said that after less than a minute, she pulled away, moved back and ran away out through the sleepout door.[50]
[50] ts 86.
Under cross-examination, the complainant agreed she told police in 2019, in relation to this second incident that the accused had moved really quickly to her vagina but that 'he wasn't tickling me and his fingers weren't tickling me'.[51]
[51] ts 129 - ts 130.
She conceded that what she told police was different to her evidence. However, what she said in her evidence was told in more detail. She agreed that she had told police in 2019 that there was no tickling. However, she said:
What I've said today is the truth. There was tickling. I didn't describe it in much detail at the time. It was very distressing and I was trying to manage as best I could with the detail that was required. … That's what I could recall at the time.
The complainant denied her memory had changed and said 'It's what I could speak about at the time. It's what I could best manage to speak about'.[52]

The complainant's evidence in relation to counts 5 and 6

[52] ts 132.

The third incident that the complainant could remember in detail was when she was not yet 9, although she could not say how old she was exactly. She was in her bedroom. Her mother had moved the furniture around and the beds were orientated differently than before.[53]
[53] ts 86.
The accused got down onto his hands and knees to start tickling her. He held onto her leg and, with his other hand, started tickling her across her front and put his hand up her skirt.[54]
[54] ts 90.
The accused held the complainant's leg and, with his other hand, tickled her on her 'front bottom'. The accused's hand was up her skirt on the outside of the gusset of her underpants. He then pushed her underpants to the side, pulling the gusset across and, with his other hand, tickled her front bottom and was 'digging'.[55]
[55] ts 91.
The accused put his finger into her vagina. She described the sensation as rough, sore and scratchy and said it 'hurt a lot'. The complainant recalls this lasting less than a minute after which she tried to get away by pushing backwards towards the bedheads on the floor between the beds. The accused crawled on his hands and legs towards her, but she moved out of his reach, swung over the bed and out of the room.[56]
[56] ts 92; See also Exhibit 3.
The complainant agreed in cross‑examination that the first time she had mentioned tickling on the outside of her underpants in relation to this third occasion was in her evidence at the trial. However, the complainant denied that her memory about tickling had come to her only recently. The complainant said that, when she had recounted what had happened previously, it was all the detail she could manage at the time and she had tried to give more detail in her evidence.[57]
[57] ts 137.
Under cross‑examination, the complainant agreed she had not mentioned to police in 2019 any tickling on the outside of her underpants occurring on this occasion.[58] The complainant further agreed she had not mentioned tickling in her most recent statement to police dated 9 February 2022.[59]
[58] ts 135 - ts 136.
[59] ts 136.
The complainant denied in cross-examination she ever discussed the concept of 'digging' with her sister JSS, although they had discussed the concept of 'tickling' under the underpants. The complainant conceded she may have told JSS about the digging 'a long, long time ago'.[60]
[60] ts 137.
The complainant said that, when she had used the term tickling under the underpants in her police statement in 2019, she had used this to also mean the accused penetrating her vagina.[61]

The complainant's evidence as to other conduct

[61] ts 141.

The complainant said that there were other occasions in which the accused indecently dealt with her, but she could not remember them in detail.
The complainant recalls another occasion when she was in the bath with her sister JSS. She heard the accused say 'I'm going to say goodnight to the girls'. She recalls her mother saying 'no, the girls are in the bath' and him coming into the bathroom. She covered herself up because she had just started to develop.[62]
[62] ts 93 - ts 94.
The complainant did not recall the accused visiting after her mother RTM got married to her stepfather in 1984.[63]
[63] ts 94.

Evidence of JSS

The complainant's sister JSS was two years younger than her.
JSS recalls moving to Ord Street in Nedlands when her brother RP was a small baby.[64] She recalled the accused visiting their home before her mother married RP's father.[65]

Evidence of JSS being touched on the genital area

[64] ts 151.

[65] ts 159.

JSS had two very strong memories. The first of those memories was of the accused touching her and her sister as part of a 'tickle‑chasey' game. This was a game where they would run to get away and the accused would grab them, using a fairly firm grip with a tickle that was 'more like a poke'. JSS described feeling a hard tickle under the armpit or in the ribs and between the legs. Sometimes the accused did this over the clothing and sometimes it was under the clothing under her underwear. She recalled on more than one occasion the accused used his hands to touch JSS' genitals. This occurred in different places, including in the front loungeroom when her mother was not there.[66]

JSS evidence as to back scratches or back rubs

[66] ts 162.

JSS recalls the accused asking her and the complainant for 'a back scratch or a back rub'. Sometimes they refused and would run away, and he would ask again. JSS recalls that the accused would find a spot, usually on one of the benches in the backyard. He would take his shirt and singlet off, and lie face down with his legs trailing on the ground.[67]
[67] ts 163 - ts 164.
JSS and the complainant would move their hands around on his back. JSS did not have any fingernails because she was a chronic nail biter, so she would put her fingers on a funny angle so there would be a little bit of nail making contact with his skin.[68]
[68] ts 164.
JSS said they 'acquiesced' [to the accused's request for a back rub] because he was an adult and someone with authority. JSS said the back scratching never lasted very long (no more than a matter of minutes).[69]
[69] ts 164.
JSS described the accused's back as 'pasty white' with a lot of moles, (some with hair coming out of them). She recalls the back scratches happening regularly enough for her to remember them but not every single time.[70] JSS recalls them always happening in the backyard and out of sight. When the accused touched them however, it was always in the front room.[71]
[70] ts 165.
[71] ts 166.
Under cross-examination JSS said she remembered the accused wearing a white singlet under his shirt but could not say he always wore the white singlet.[72] Under cross-examination, JSS agreed telling police in 2019 that the accused always wore a white singlet but, she was now unsure about that.[73]
[72] ts 171.
[73] ts 172.
Under cross-examination JSS agreed she did not mention anything in her police statement about the accused taking his singlet off but, if she were to sign a statement now, she would be a bit more considered. JSS said she had not been 100% sure she would be involved in the trial until she made a decision to sign her statement. She conceded that, when she had signed the statement, she knew the matter was going to proceed [to prosecution].[74] She denied that the only back scratching that took place was when the accused had his shirt on.[75]
[74] ts 173.
[75] ts 179.
JSS had a recollection of the accused wearing a white collar when he visited but accepted that her memory of that could have been wrong. She agreed in cross‑examination that this might have been a 'corrupted memory'[76] and that memory is fragile.[77]
[76] ts 174.
[77] ts 175.
JSS agreed in cross-examination that her mother was a good mother and protective of her and her sister. JSS denied that her mother would have left them at home alone. But, she also said that her mother was never in the room when they were tickled.[78]
[78] ts 182.
JSS recalled on one occasion the accused grabbing the complainant and tickling her (but did not see his hand go under her skirt). JSS did not see the accused touch the complainant. She was more focussed on the fact that she herself was having an unpleasant physical experience under her armpits, in her ribs and between her legs.[79]
[79] ts 185.
JSS agreed that the accused never penetrated her own vagina with his finger,[80] but denied she could have been wrong about the accused touching her on the genital area.[81]

The witness JSS - observations of her credibility

[80] ts 186.

[81] ts 183.

The complainant's sister JSS to some extent corroborated the complainant's evidence as to surrounding circumstances. Although JSS did not say she saw the accused penetrate the complainant's vagina, JSS recalled back scratching by both of them and tickling by the accused.
I found JSS to be an impressive witness. Her evidence was clear and cogent. She was a careful witness who was able to distinguish between her memory and details she had reconstructed based on logic. She conceded the possibility of being wrong about some of the surrounding circumstances, describing her memory for some details as foggy or fuzzy. She conceded she could have been wrong about her mother not being in the vicinity when she was being tickled because she 'was a child'.
JSS was not a witness prone to exaggeration: she agreed that the accused had never penetrated her vagina with his finger even though she was certain that he had touched her on the genital area. She did not impress me as a witness attempting to be overly helpful to the prosecution. Indeed, her evidence was that she was somewhat reluctant to sign her statement.
There was an inconsistency between the statement JSS made to police and her evidence insofar as in her statement to police she did not say that he took his singlet off during the occasions of back scratching. In my view, this was a difference in a matter of detail which does not reflect adversely on her credibility and her reliability overall.
JSS was adamant that she recalled the accused tickling her on the genital area during a 'tickle-chasey' game at which the complainant was also present. She did not however recall the accused touching the complainant in the same way.
Counsel for the defence suggested that the inability of JSS to say that she had seen the accused touch the complainant at the same time was inconsistent with the complainant's account of events. However, it is hardly surprising, given JSS' young age at the relevant time and the fact that both girls describe any touching of their genitals as being of short duration, that she did not notice - or at least did not remember - what, if anything, had happened to her sister at the same time.
I found JSS' evidence to be inherently plausible. JSS impressed as a witness with a clear memory of the complainant and her having been asked by the accused to scratch his back. A good example of this was JSS' description of his skin as 'pale and pasty' and having a number of moles on his back and that there was hair growing out of some of them. JSS' description of the accused's back was not challenged in cross‑examination. Her description is an unusual observation and one which is, in my view, consistent with a lived experience. It is also broadly consistent with the complainant's description of the accused's back as having moles and skin tags.
I accept JSS' evidence that the accused did touch her genitals as she described.

Section 31A propensity evidence.

The State relies on the evidence of JSS as evidence of propensity.
The State submits that the evidence of the conduct described by JSS showed that the accused had a sexual interest in young girls within their family and was prepared to act on that interest when the opportunity arose.

Findings as to evidence of JSS in relation to propensity evidence

I am satisfied beyond reasonable doubt that the conduct JSS described did occur. The conduct described by JSS shows the accused had an indecent interest in young girls and a tendency to act indecently towards them.
I find that the accused's conduct in touching JSS on the genitals can only be explained on the basis that he had an indecent interest in prepubescent children. It demonstrates a tendency for him to opportunistically touch them on the genital area.
This is evidence which would increase the likelihood that he also dealt with the complainant in a way which was indecent.
I consider the evidence to have significant probative value as:
•The complainant and JSS were both young girls.
•The complainant and JSS were in the same family.
•The complainant and JSS both describe similar conduct, involving touching on the genitals.
Even though I am satisfied that the conduct occurred, it is still the complainant's evidence of the conduct of the charges that I must consider. Even though I am satisfied beyond reasonable doubt that the accused acted towards JSS as she described, I could not find the accused guilty unless I am satisfied that the complainant was honest, accurate and reliable in relation to the events the subject of the counts on the indictment and I have excluded all other reasonable hypothesis consistent with innocence. Evidence that the accused had a particular propensity to act in a certain way cannot, of itself, prove the offences with which he has been charged.

Evidence of RTM

The complainant's mother RTM said she had a strong Catholic faith which she has to this day. All of her family are baptised Catholics.[82]
[82] ts 198.
RTM met the accused when she lived in Bruce Rock and he was the parish priest.[83] The accused had prepared her and her husband MA for marriage, but they had been married in another town by the resident parish priest.
[83] ts 198.
The accused visited RTM in 1978 after she had moved to Archdeacon Street in Nedlands; he had turned up to her home one day although he had not been invited. As was the custom in her family as it concerned Catholic priests, RTM had invited him in.[84]
[84] ts 199.
RTM recalls the accused visiting quite a few times. She never told him not to come because he was a Catholic priest.[85]
[85] ts 200 - ts 201.
RTM recalls the first time the accused came she invited him to tea and they only had boiled eggs. RTM recalls on one occasion he brought chocolates and on another occasion a bag of baby's clothes.
RTM recalls one occasion the accused asked the complainant to scratch his back. She saw him take off his shirt and she saw the complainant scratch his back. She recalls this happening in the girls' bedroom with the accused lying on the bed.[86] She could not remember whether JSS was also there. RTM said she remembered the incident clearly. She remembered something similar happening on more than one occasion, in the same room and on the same bed, but cannot remember how many times.[87]
[86] ts 202.
[87] ts 207.

In cross-examination, RTM said she could not remember how many times the 'back rubs' happened, but it was a few times.[88]
[88] ts 222.
RTM denied in cross‑examination that there had ever been an occasion when the complainant was being tickled by the accused and she had come in and said 'that's enough' or words to that effect.[89]
[89] ts 224.
RTM said she would stand there because she does not like children being tickled by adults. She did not say anything to the accused but stood there as if to say 'please stop'. RTM said that, when she saw the complainant scratching the accused's back in the girls' bedroom, she went into the room intermittently to hint that the back scratching needed to stop. However, RTM had not expected anything 'untoward' or 'devious'.[90]
[90] ts 221.
RTM recalls one occasion when the accused stayed quite late. The children needed to go to school so she sent the children off to have baths. When the accused was about to leave, he had said, 'I'll just say goodbye to the children'.[91] As RTM was taking the accused out to the front door, he turned left and walked straight into the bathroom, but she had not wanted him to go in there. RTM said he had probably said goodnight [to the girls].[92]
[91] ts 208.
[92] ts 209.
When challenged in cross‑examination as to why RTM allowed the accused to keep coming to her home if she did not invite him, she said, 'if you knew my history of growing up, my parents, my grandparents would never turn away a priest and we had a lot of priests coming through on a regular basis'.[93]
[93] ts 213.
RTM agreed that the accused had presided over her marriage to her second husband.[94] RTM had apologised to the parish priest at St Thomas in Claremont for not having him marry them.[95] She thought it would have been impolite not to ask the accused to preside as he had been coming to her house for years.[96]
[94] ts 212.
[95] ts 213.
[96] ts 214.
RTM said she only knew about JSS being involved in back scratching the accused from hearing the two girls talking about it.[97]
[97] ts 219.
RTM recalled the accused tickling JSS on one occasion when RTM was in the kitchen and heard the tickling. She went out to see the accused tickling JSS on the floor of the loungeroom. RTM assumed that the accused had tickled JSS on the stomach.[98]
[98] ts 208.
Counsel for the accused put to RTM that she would not have allowed her children to scratch the back of any man, let alone a Catholic priest. RTM responded to that suggestion by saying:[99]
It depends whether you know the story of my childhood, where we would lay under the stars, on a hot night and scratch each other's backs and play a game, looking at all the stars and we would scratch each other's back. That included her mother and father who would come and lie down on hot nights and we'd turn over and scratch their backs.
[99] ts 226 - ts 227.
Although she was not happy about the complainant scratching the accused's back, she did not say anything. She thought he wanted 'tactile touch'.[100]
[100] ts 226.

Findings as to RTM's evidence

I found RTM to be an honest witness who was doing her best to recall events from long ago. She did not impress as someone attempting to exaggerate what she had seen: her evidence was that she did not consider she had seen anything 'untoward'.
RTM's evidence corroborated the complainant's evidence that there had been episodes of back scratching. I found her account of having seen the accused with his shirt off in the complainant's bedroom to be plausible and broadly consistent with the complainant's account of an occasion of back scratching in the bedroom.
It was submitted by defence counsel that the conduct alleged could not have occurred because RTM would not have permitted a semi‑naked priest to have been in her daughter's bedroom and to have permitted her daughter to touch him by scratching his back. I do not accept that submission. RTM gave a plausible explanation for why she did not say anything to the accused or put a stop to the conduct she observed. RTM trusted Catholic priests implicitly. She had grown up in a strict Catholic household where the authority of Catholic priests was not questioned. Also, she thought the accused's request for back scratching was a request for what she described as 'tactile touch'. (I infer that RTM sought to draw a comparison with what she would have regarded as 'untoward' ie: indecent or sexual touching.)
That RTM neither felt nor voiced any real concern about the accused's conduct in getting a back scratch from the children makes sense having regard to the evidence she gave of her own experience of having engaged in the pastime of back scratching within her own family. Plainly, she did not regard back scratching as sexual. She did not suspect there was anything 'devious'.[101]
[101] ts 222.
I accept RTM to be both an honest and reliable witness.

Evidence of the accused

The accused was born on 31 May 1936 in East Perth.[102]
[102] ts 236.
He was ordained in 1961. He became the parish priest at Bruce Rock in 1971 and was there until 1973. Thereafter, he was chaplain at Aquinas College and remained there until the end of 1976. The accused became the parish priest at Brentwood and then Willetton in 1981.[103]
[103] ts 237.
The accused first met RTM at Bruce Rock but did not recall having prepared her for her marriage to her first husband.[104]
[104] ts 238.
The accused remembered visiting RTM at her home in Archdeacon Street in Nedlands. He recalls seeing her two daughters when he went there as they were part of the household. He agreed that he went there on a regular basis on a Monday. The accused denied that on those occasions he would wear the 'dog collar' as [Monday] was his day off and he would not normally have worn that for a social visit.[105]
[105] ts 239.
The accused said he saw RTM because he knew her to be a woman of faith. He also knew she was really trying to be a good mother. The accused said that if a practising Catholic goes through a divorce there is generally a bit of upheaval and sometimes they feel as if they have been a failure. He felt it was his role to be a support to her at this time.[106]
[106] ts 240.
The accused did not dispute that he would take things to RTM's house from time to time. He recalls going there for meals lots of times but was unable to say how many times.[107]
[107] ts 240.
The accused denied having any memory of his back being scratched at the house in Ord Street in Nedlands. Nor did he have any memory of removing clothing from the top half of his body and laying on the loungeroom floor or the children's bed and having his back scratched. He denied that could have happened.[108]
[108] ts 241.
The accused denied that he ever touched the complainant on the vagina or stuck his finger in her vagina. He denied having stroked her on the chest or putting his hand in her underpants on an occasion in her bedroom.[109]
[109] ts 241.
The accused denied an occasion where he and the complainant were situated between the two beds in her bedroom and him rubbing her chest or putting his finger in her vagina.[110]
[110] ts 242.
In cross-examination, the accused agreed that he would visit on a Monday but denied it was every Monday. He could not be sure but thought it was every second or third week. He agreed he went there for lots of meals and he would go in the late afternoon when he knew RTM would be at home. He never went if he knew she was not going to be there. He pretty well always stayed for dinner.[111]
[111] ts 243.
The accused agreed that the visit would not be pre‑arranged but he was never turned away when he attended.[112]
[112] ts 244.
The accused agreed that he felt it was his role to provide support to RTM in the form of moral support. He did not deny that he took food on occasions but said it was not on a big scale. He conceded he could have taken a chicken on one occasion as well as chocolates.[113]
[113] ts 244.
The accused had no recollection of having taken furniture like coffee tables. He conceded that was possible. He had no recollection of having taken a cushion but again conceded that was also possible.
The accused conceded it was possible that he had been alone in a room with the complainant, but RTM would be coming and going.[114]
[114] ts 245.
The accused adamantly denied there had been any occasion when he asked the children for back scratches.[115] The accused denied playing games with the girls or tickling or chasing them and grabbing them. He denied playing chasey with them. The accused said he was mainly there for RTM and the girls were there as part of the family but denied having much to do with the girls. He denied ever having tickled them over their bodies or between their legs.[116] He denied tickling them under their underwear.[117]
[115] ts 246.
[116] ts 247.
[117] ts 248.
Under cross-examination the accused denied that the purpose of his visits was to develop a relationship of trust with the family. He thought there was a 'sort of relationship' there by him having been the parish priest in Bruce Rock. He considered he had a friendship with RTM - a professional friendship rather than any deep friendship. The accused said that the relationship with RTM was a 'pastoral sort of relationship'.[118] He agreed that he knew he would be welcomed if he turned up at her door.[119]
[118] ts 249.
[119] ts 248 - ts 249.
When challenged in cross-examination as to why he provided pastoral care without invitation from RTM, the accused said that 'a priest would call in to any Catholic family without invitation. That was … part of our work'.[120]
[120] ts 249.
The accused could not remember playing with the children. He said they could have been watching the news on the television or doing lots of things.[121]
[121] ts 250.
Under re‑examination the accused denied having any independent memory of being alone in a room with the complainant.[122]
[122] ts 251.

Approach to the accused's evidence

Because of the presumption of innocence the accused was at liberty not to give evidence. The fact that he chose to give evidence does not detract from the important principles that:
1.the burden is on the State to prove the charges; and
2.the accused is presumed to be innocent until the charges against him have been proven beyond reasonable doubt.
Even if I do not believe the accused's evidence, then I cannot find an issue against him contrary to his evidence if his evidence, or any other evidence, has given rise to a reasonable doubt on that issue.
If the accused's evidence, or any other evidence has given rise to a reasonable doubt, then the accused is entitled to the benefit of that doubt. I cannot convict him on any count on which that reasonable doubt has arisen.
Further, even if I do not accept his evidence and reject his evidence, it does not automatically follow that he should be convicted of the offences with which he has been charged.
If I do not accept the accused's evidence and reject his evidence, I should put his evidence to one side. The question that remains is: whether, on the evidence that I do accept, has the State proved its case beyond reasonable doubt on each of the counts on the indictment? Liberato v The Queen (1985) 159 CLR 507.
The accused gave a firm denial of guilt under oath. If I consider his evidence is true or might be true, then I must acquit him.
If I do not accept his evidence, I could not convict him unless I am satisfied beyond reasonable doubt as to the credibility and reliability of the complainant.
Just as for any other witness, I can accept all or part of what the accused has said.
It is not a question of whether I prefer the evidence led by the State or the evidence of the accused. I should only accept evidence which I find to be truthful, accurate and reliable.

Good character

It was not in dispute that the accused has no prior convictions.
The accused did not lead any other evidence of good character. Nevertheless, I am obliged to take this evidence into account in two ways. First, the fact that he has no prior convictions and is of good character means that it less likely that he would commit the offences with which he has been charged. Secondly, the evidence means that it is more likely that his evidence was truthful: Melbourne v The Queen (1999) 198 CLR 1 [35] [47] (McHugh J).
In the present case, the character evidence was limited to the accused's absence of prior convictions. There is no evidence of his reputation. It follows that the evidence he has no prior convictions is of limited probative value. I do not consider that the evidence of good character is so probative that I am obliged to accept the truthfulness of his evidence.
Although I must consider the evidence of prior good character, evidence of good character cannot overshadow convincing evidence of guilt.
There was evidence that the accused had been charged and acquitted of other allegations. There was no evidence led as to the details of those allegations. I have put that evidence out of my mind, being mindful that I must not be prejudiced by such evidence.

Findings as to the accused's evidence

Despite his advanced years, I find that the accused was able to give evidence intelligibly. He did not, by reason of his age claim that his memory was affected more than anyone else trying to remember events from so long ago. I accept that he could not have been expected to have remembered events in fine detail.
Nevertheless, despite the long passage of time, the accused's evidence suggested he well recalled visiting the complainant's family home and staying for dinner on a number of occasions.
Having made due allowance for the disadvantages that the accused has suffered by reason of the delay, there are reasons why I find I must reject the accused's evidence. The accused denied that there were ever any occasions of 'back scratching' involving either the complainant or her sister. His evidence‑in‑chief about that issue was that he did not recall that having happened. His evidence about whether there were any occasions of back scratching later hardened to a denial.
The accused's denial in this regard was in stark contrast to the evidence of the three witnesses for the prosecution. Each of them gave evidence that there were occasions of back scratching. Although the witnesses' accounts do not necessarily suggest they were recalling the same occasions, the combined weight of their evidence satisfies me beyond any reasonable doubt that there were occasions of back scratching.
The accused's denial that there were occasions of back scratching cannot be explained on the basis that these are occasions which he could have simply forgotten. This kind of event, even making due allowance for the passage of time, was not something that a witness in possession of his faculties (as I observed the accused to have been) would have forgotten. The accused's denial that there was no back scratching is overwhelmingly inconsistent with the other evidence which I do accept. The accused's denial that there were occasions of back scratching cause me to doubt his evidence as a whole and the remainder of his denials.
Also, I found the accused's denial that he had little to do with the children during his visits to be implausible. The evidence overwhelmingly was that, at the time of his visits, RTM would have been pre-occupied with looking after the baby, preparing dinner and performing other chores one would expect a single mother to have needed to do.
It is true that the accused's denial of the offending was a bare denial. His evidence was, in comparison to the complainant, somewhat sparse. I acknowledge that an accused who denies his offending, particularly in relation to events so long ago, can be expected to do little else. There is of course no onus upon him to prove his innocence. The fact that the accused's denials were sparse is no reason to have rejected his evidence.
I am also mindful that the accused is now 85 years of age and the complaints are of conduct said to have occurred more than 40 years ago. I have considered the delay and the disadvantages to him in terms of his presentation of the defence and his ability to remember events from so long ago.
However, I have observed that, despite his advanced years, the accused did remember the complainant's mother and the circumstances of his regular visits to her. His evidence was that he had a friendship with RTM, albeit he considered the relationship to be professional or pastoral. The accused's evidence of the circumstances of his visits was consistent with the evidence of the prosecution witnesses.
I am not obliged to accept the evidence of the accused just because he denied the offending. I have rejected his evidence because I found his evidence that he never received back scratches or had little to do with the complainant and her sister to be inconsistent with the other evidence in the case. His denials cannot be explained on the basis of him having forgotten. The events so described by the three State witnesses in combination suggest the accused was profoundly and intimately involved in the life of this family on a regular basis. His claim to have had little to do with the children does not ring true.
It follows that I do not accept the accused's evidence. I must therefore look to other evidence to see whether it satisfies me beyond reasonable doubt that the State has proven the commission of the offences.

The delay in complaint and s 36BD of the Evidence Act

The defence raise the fact that the complainant made no complaint to anyone in authority until 2019. The delay in complaint is a factor I must take into account when considering the complainant's credibility.
The evidence was that a complaint was not made to police until late 2019 although there was evidence that the complainant had spoken to JSS and her mother about the accused's conduct in broad terms when she was in her late teens.
The defence submits that the complainant's failure to complain to anyone about these events soon after their occurrence impacts upon her credibility and indicates that the alleged offending did not occur.
The complainant's failure to complain soon after the events in question is relevant in assessing her truthfulness. It is for me to consider and weigh its significance.
The fact that there was a delay, however, does not necessarily indicate that the matters complained of did not happen. There may be many good reasons for why a victim of a sexual assault does not make an immediate complaint: s 36BD of the Evidence Act.
Here the complainant was aged between about 6 and 9 years of age when the alleged offending occurred. The accused had been in a position of authority in that he was a Catholic priest, and the complainant came from a devout Catholic family where the authority of priests was not questioned.
JSS said that the first time she recalls talking about what the accused did with the complainant was when they were in their teen years (she would have been either 12, 13 or 14). She could not be specific as to what they said but they discussed how the accused was a 'dodgy' or 'handsy' priest.[123]
[123] ts 166.
JSS said the first time she and the complainant talked about it properly was when she was 16 and the complainant had moved out and was at university.[124] JSS said that the complainant had talked about the accused touching her 'inappropriately' under her underwear. The complainant had intimated to her that the accused had touched her under her underwear as part of the tickle game. They also talked about having to rub and scratch his back.[125]
[124] ts 167.
[125] ts 168.
Under cross-examination, JSS agreed that she had received an email from the complainant in 2019 in which the complainant raised the possibility of lodging a formal complaint against the accused. JSS agreed that the first time she ever heard the allegation of the accused penetrating her sister's vagina was in 2019. JSS denied the complainant had ever mentioned the accused 'digging' at her vagina with his fingers. JSS agreed in cross-examination that if her sister had told her about 'digging' she would remember it. JSS assumed the complainant's experience was the same as hers.[126]
[126] ts 176.

RTM denied that the first time she had ever heard of back scratching was in May 2019 when she had received an email from the complainant. RTM said that over the years the girls had talked about how gross scratching his back was.[127]
[127] ts 218 - ts 219.
Although there was a delay between the happening of the events and the complainant discussing the matter with her sister and later her mother, I do not consider the delay is so inexplicable that I should reject her evidence. Further, I do not consider that the failure to lodge a complaint to police in 2019 is a reason to reject her evidence.
Very long delays in complaint are now quite commonplace. This case is not one where the delay is explicable only on the basis that the complainant is untruthful.
Of course, the fact that a complaint was made to her sister and her mother many years ago and latterly to the police does not bolster her credibility. The evidence of complaint does not add to the prosecution case.

Relationship evidence

The State led evidence from the complainant of conduct which was not the subject of a specific charge. The complainant spoke of other incidents of back scratching and an occasion when the accused walked into the bathroom whilst the girls were in the bath. The evidence of the bathroom incident was corroborated by the complainant's mother.
The State led the evidence of other occasions of back scratching as contextual evidence forming part of the complainant's narrative and to show why the complainant could not be specific about the incidents. The State submits that, in addition to providing contextual evidence, the evidence of back scratching and the bathroom incident showed how the accused's behaviour was normalised and why he was able to act so brazenly without fear of being caught.
The State adduced evidence of this other conduct to place the charged offending in its proper context and to explain why the complainant was unable to be particular about other incidents of indecent touching. Thus, the evidence was led for a limited purpose and the State does not seek to rely on that evidence as tending to increase the likelihood that the accused committed the charged conduct.
It follows that I must not reason, if I find that there were incidents of back scratching that do not relate to the occasions pleaded in the indictment, that it is more likely that the accused committed the offences with which he has been charged.
In my view, the complainant's evidence as to these events does not assist the prosecution in proving the six counts on the indictment.
Whilst I am satisfied that it is likely there were occasions of back scratching in addition to the occasions pleaded in the indictment and the bathroom incident did occur, I have not reasoned that this increased the likelihood that the accused engaged in the specific conduct the subject of the offences pleaded in the indictment. It sems to me that the conduct so described is capable of innocent explanations that would not increase the likelihood that the accused committed the charged offences.

Longman direction

Given the delay of over 40 years from the time of the alleged events to the trial in 2022, I am required to direct myself in accordance with the decision of the High Court in Longman v The Queen (1989) 168 CLR 79.
The State submits that I should accept the complainant as a witness of truth. She is, of course, the only witness to give direct evidence as to the happening of the events alleged in the indictment. No other witness has corroborated her evidence as to the occurrence of the offences themselves.
Before I could convict the accused on any of the counts on the indictment, I must find the complainant to be truthful, accurate and reliable. Because of the crucial nature of her evidence and because of the seriousness of the allegations she has made, I need to scrutinise her evidence with special care.
In assessing the truthfulness, accuracy and reliability of her evidence, I bear in mind that human memory is fallible. The longer the delay between the happening of an alleged event and the trial, the greater the possibility of error in recollection of the incidents which give rise to the alleged offences.
The passage of time makes it more difficult for the witness to recall a particular incident with details. The passage of time from the alleged offending to this trial increases the possibility of the complainant being wrong in her recollection of events. In addition, I must consider that the complainant was aged between 6 and 9 at the time of the alleged events and she was 49 when she gave her evidence.
It is a matter of common experience that the longer a person believes something to have happened, the more convinced that the person can be that it has happened. This can be so even if the person is mistaken in his or her recollection. Honest witnesses can be wrong in their recollections.
The longer the delay between the alleged events and the trial, the more difficult it is for evidence relating to the incidents to be fully recalled and tested by an accused person.
In addition to the delay, the lack of factual precision in this case may make it difficult for the witnesses to recall each of the alleged offences in detail. The foregoing factors make it difficult for an accused person to examine in detail the circumstances surrounding the alleged offences.
In this case, a complaint was not lodged with police until 2019. The delay between the events in question and the trial places the accused at a disadvantage. The disadvantage arises because the usual ways of testing a complainant's evidence, ie: by reference to the surrounding circumstances or to details which, whilst not necessarily of significance in themselves, may help to indicate whether she is truthful, accurate and reliable.
In this case, the complainant was not able to provide full details of the surrounding circumstances of the offences such as, whether he had in fact visited the complainant's home every Monday or whether there were some Mondays he did not attend. The complainant did not provide any evidence of surrounding circumstances relating to the evidence of, such as, where her mother was at the time (apart from her surmising that she was in the house somewhere or what her mother and sister were doing).
I need also to bear in mind that the accused has suffered a forensic disadvantage by not being able to challenge the evidence of the complainant because of the passage of time. The specific forensic disadvantages suffered by the accused include the following:
1.the fact that the complainant had difficulty recalling the events with great precision; and
2.it was difficult for the accused to be able to recall the surrounding circumstances of the allegations.
By reason of the delay, the accused has been denied the chance to assemble or marshal evidence soon after the alleged incidents are said to have occurred. Had the complaint been made immediately or at least soon after the events in question, the accused may have been able to say what he and other potential witnesses (such as the complainant's mother) were doing, she may have been able to say whether he was in fact in the house that evening or whether, for example, the complainant's mother had been in the near vicinity.
I acknowledge that the accused has, to some degree, lost the chance to adequately test the complainant's evidence. He has also lost the opportunity to adequately prepare a defence by obtaining statements from witnesses to attest to his movements.
Had the complainant made a complaint soon after the alleged offence, the accused could have explored circumstances in detail at that time such as what RTM was doing that evening and what her movements were. The accused could have gathered or looked for evidence to throw doubt upon the complainant's evidence or to confirm his denial of the alleged offending. These opportunities are now lost.
The fairness of the trial has been impaired by the long delay.
I have taken these various circumstances into account when assessing the complainant's evidence. I remind myself that the only direct evidence produced by the State is that of the complainant herself. The passage of time is a factor in people's recollection of events and memory and recollection often dims with the passage of time.
The passage of years between the alleged events and the matter proceeding to a police investigation and then to trial for hearing raises the question of the truthfulness, accuracy and reliability of the complainant's recollections and whether or not I can safely act and rely upon them regarding the alleged events.
Because of the long delay, it would be dangerous for me to find the accused guilty of the charges presented against him unless, having scrutinised the complainant's evidence carefully and, having paid due regard to it and to the warnings which I have just explained, I am satisfied beyond a reasonable doubt as to the truthfulness, accuracy and reliability of her testimony.
If, having considered her evidence with great care and, being mindful of the matters I have set out above, I am satisfied as to the truthfulness, accuracy and reliability of her evidence on any particular matter, then I may make findings of fact based on that evidence and convict the accused.

Motive to lie

The accused has suggested that the complainant had a motive to fabricate allegations against the accused. The defence suggests two possible motives. First, the complainant could have been trying to seek to exact revenge against the accused who had been charged and acquitted of an allegation of sexual assault some years previously. It was suggested that the complainant made a false complaint in order to right what she considered to have been an injustice.
Secondly, the defence submitted that the complainant could have fabricated the allegations because she knew she might be entitled to compensation.
I do not accept the defence submission that the complainant was motivated to fabricate allegations to exact revenge against the accused and so adopted something she had read in the newspaper. The complainant expressly rejected that suggestion, and I accept her evidence in that regard.
As to the second of the two possible motives, it is true that the complainant knew she might be entitled to compensation. She had already approached the Redress scheme but that was in order to obtaining counselling. The complainant expressly denied she was motivated by money other than to obtain help to deal with the things that had happened to her as a child. I do not accept there is any credible basis on which it could be said she was motivated to fabricate allegations in the hope of receiving compensation.
The fact that there is no obvious reason as to why the complainant may have lied or otherwise given false testimony, does not mean that I should find the accused guilty. The accused is not obliged to prove that the complainant had any motive to make a false complaint: Palmer v The Queen (1998) 193 CLR 1.
The fact that I have concluded that the complainant had no obvious motive to lie or make false allegations, does not strengthen the prosecution case. I could only convict the accused on any count on the indictment if I am satisfied beyond reasonable doubt as to the honesty, accuracy and reliability of the complainant's evidence in relation to that count.

The complainant - observations of her credibility

I find that the complainant presented as an honest witness. She gave her evidence in a reasonable and measured way. She was responsive to the questions asked of her by counsel. Whilst the complainant struggled at times to retain her composure under cross‑examination, she did not impress as someone who was seeking to obtain an advantage by exaggerating or deliberately giving answers that were not responsive to the questions posed of her.
The complainant was able to give an account of the alleged offending in a reasonable amount of detail. There were parts of her evidence in which she described feelings associated with the conduct which compellingly suggests that she was talking about real rather than imagined events.
The complainant's evidence contained a visceral account of the sensations she felt when the accused penetrated her vagina on the three occasions she recounted in detail. The fact that she could recall sensations of discomfort speaks to the recounting of real events.

Inconsistencies in the complainant's evidence

The accused's counsel submits that the complainant gave evidence which was inconsistent with statements made out of court on prior occasions.
Statements made out of court are not evidence insofar as they are statements which are not made on oath or affirmation. However, I can take into account the fact that a witness has said something inconsistent with her evidence on a prior occasion. I must first decide whether there was an inconsistency as the accused contends. If I do find there to have been an inconsistency, it is a matter for me as to the extent to which the inconsistency affects my assessment of her credibility.
I have set out what the defence submits are inconsistencies which alone or in combination should cause me to reject the complainant's evidence.

Back scratches or back massages

Counsel for the accused submitted that the complainant's email sent to members of her family (including her sister JSS and mother RTM) in 2019 in which she referred 'back massages' could not be reconciled with her evidence.
Counsel for the accused submitted that the complainant was either lying about there being back scratching or that she had adopted the suggestion there had been back scratching from something she had read about the accused in the newspaper.
The complainant admitted in cross-examination that she had read a newspaper report of another case concerning the accused in which a witness had complained that she had given the accused back scratches. The complainant denied adopting details of what she read in the article.

The complainant's account of the dates of the offending and frequency of visits

The indictment specifies that the offences occurred between 1979 and 10 February 1982 (the latter date being the complainant's 9^th birthday). In her email in 2019 the complainant said the offending occurred between 1979 and 1981, but she would have to confirm the dates. The complainant said that she was unsure of the dates that the events occurred, but she knew it was before her 9^th birthday when she received a Barbie doll. She denied that the email had intended to convey an assertion that the offending had stopped by the end of 1981.
In her evidence‑in‑chief the complainant said she believed that the accused visited every week. She conceded in cross‑examination that there may have be some weeks when he did not come.

Hazelnut rolls and After Dinner Mints

The complainant conceded that she had not mentioned the accused bringing Hazelnut Rolls or After Dinner Mints until she met with the prosecutor prior to the trial.

Several weeks/months between first incident of back scratching and the first incident (count 1)

The complainant gave evidence that it was several months following the first incident of back scratching before the first incident. In cross‑examination the complainant however admitted that she had
said that it was only a matter of weeks. The complainant said she could not be specific as to how many times there was back scratching and that it happened on many occasions.

Did the accused used his right or left hand to touch the complainant on the vagina?

The complainant's evidence in relation to the first incident was that the accused used his right hand to pull her legs apart and his other hand to touch her vagina. This was inconsistent with her statement to police where she said he had used his left hand to pull her legs apart and his right hand to touch her on the vagina.

Tickling on the inside or outside of the underpants

In her evidence‑in‑chief the complainant used the word 'tickling' to describe the accused's conduct in touching her on the vulva and vagina in relation to each of the three occasions that she recalled in detail. In her statement to police in 2019 and in a further statement made after she met with the prosecutor in February 2022 she had made no mention of the accused tickling on either the inside or outside of the underpants. Counsel for the accused submits her evidence about this was inconsistent because it was recently invented.
The complainant gave evidence that on the occasion in count 1, the accused had tickled her on the outside and the inside of the underpants. She admitted in cross-examination that she had not said, in either her statement to police in 2019 or in her statement in February 2022 that he had tickled her on the outside or the inside of the underpants.
The complainant said in cross-examination that the use of the word 'tickling' to describe the accused's conduct in touching of the vagina had been used for the first time in her evidence. The complainant said in cross-examination than she had given more detail in her evidence than she had done previously (to the police or to the prosecutor in proofing).

In relation to the second incident - was the complainant sitting on the bed or standing? Did the accused tickle her on the outside of her vagina in relation to count 2?

The complainant gave evidence that, prior to the second incident, she was standing beside her bed.[128] She agreed that, in her statement to police, she said that she was sitting on her bed. When asked to explainthe inconsistency, she said 'I sat and stood'. She gave evidence that, after she had scratched the accused's back, the accused had tickled her on the outside of the vagina. She agreed that tickling on the outside of her vagina had not appeared in her statement to police in 2019.[129] The complainant said in her evidence that the term 'tickling under the undies' did not refer to penetration of the vagina. But she told police that tickling included penetration of her vagina with his finger, including penetrative and non-penetrative touching.[130]
[128] ts 128.
[129] ts 132.
[130] ts 140 - ts 141.

Inconsistencies between evidence of the complainant and her mother and sister

There were some inconsistencies between the recollections of the two other witnesses as to what they had discussed when the complainant first spoke about the accused's conduct. It is common ground that complainant spoke to both her sister and her mother about the accused's conduct when she was in her late teens.
The State conceded that in 2019 the complainant had told Detective Pracy that she had not told anyone about the incidents prior to 2019. The complainant had said in her evidence that she had told her sister about the 'digging' a long time ago.[131] JSS could not recall the complainant telling her that and RTM could not recall the complainant telling her that the accused had touched her under the underpants.[132]
[131] ts 137 - ts 138.
[132] ts 219.
It would hardly be surprising that the complainant did not retain the precise details of what she told her sister or mother many years previously. The fact that the complainant told Detective Pracy that until 2019 she had not told anyone about what happened is true in the sense that she had not made a detailed complaint to anyone in authority. Any inconsistencies as to what the complainant had said to others over time about the accused's conduct does not detract from my view that her evidence was compelling.
The fact that RTM does not recall seeing a back scratch in the living room or saying 'that's enough' on occasion when she saw an episode of back scratching is also not surprising given that RTM had never suspected anything devious.

Are the inconsistencies identified by the defence such that I should reject the complainant's evidence in its entirety?

It is not unusual for witnesses who are recalling even recent events to have an imperfect memory of the precise details of events. If I find that the complainant's recounting of the details is imprecise or that she has given accounts of events containing different details, I would not automatically reject all of her evidence.

I accept that there are some inconsistencies and discrepancies between the complainant's statements to police and her evidence. However, in my view, those inconsistencies and any discrepancies are not so significant that they speak to a lack of honesty on the part of the complainant. Nor are they so significant that I should reject her evidence about the allegations as unreliable.
The defence submission as to the significance of the complainant's use of the term 'back massage' in emails written in 2019 to describe the accused's conduct must be rejected. The evidence was that the complainant and JSS had discussed how they had given the accused 'back rubs or back scratches' many years prior to the emergence of the newspaper article. The evidence of JSS was that this discussion had taken place in 1991 when she was 16 and the complainant was at university. The complainant's mother RTM also gave evidence that she was present when that conversation took place.
The complainant gave a satisfactory explanation for the use of the term 'massage' in the email: she regarded it as a more formal description of the category of behaviour about which she was intending to make a formal complaint. Further, it is apparent that the email did not and was not intended to convey the substance of her complaint in precise detail.
Also, the witness JSS used the term 'back rub' in her evidence to describe what she and the complainant had done to the accused. This is relevant to the context in which the complainant wrote the email. The evidence was that the complainant and JSS had discussed the accused's conduct prior to the complainant writing the email. It is very possible that the complainant either consciously or subconsciously incorporated her sister's description of a 'back rub' in the early stages of her formulation of a complaint about the accused. Arguably, the 'back rub' term fits more neatly into the rubric of a 'back massage'.
When the complainant wrote the email in 2019 to her sister and mother, she had not yet spoken to police: I can infer that she would not have received any instruction about the need to be precise in her descriptions because the communication was to be used in court; nor had she been asked by anyone in authority to give a detailed description of the conduct. The email did not purport to be a full account of what the complainant says occurred. She did not swear to its truth.
It follows from the foregoing that I do not consider that any meaningful inconsistency between the language used in the email and the complainant's evidence is so significant that I should reject her evidence.
I reject the defence suggestion that the complainant's inability to be precise about the dates in the email or the frequency of the accused's visits is significant. It is quite understandable that a person remembering an event from years ago might express some uncertainty about dates. It is common even for honest witnesses to have difficulty remembering dates without thinking carefully about incidents in reference to other significant events. Plainly, the complainant was unable to be precise as to dates except insofar as she could place the happening of the incidents between other significant events in her life: the birth of her baby brother when she was 6½ and receiving her Barbie doll on her 9^th birthday. I do not consider there to be anything in the complainant's initial reluctance to be precise about dates which speaks to a lack of honesty or reliability.
The fact that the complainant was at first adamant that the accused had come every Monday before making a concession that the accused may not have come every week does not suggest a lack of honesty or reliability.
Defence counsel's highlighting of the complainant's failure to include a reference to After Dinner Mints or Hazelnut Rolls in her police statement is parsimonious. This was a matter of detail not directly related to the allegations. Any omission in the statement to police is explicable on the basis that, when she spoke to police, she had either not remembered it or had not considered it important enough to include in the statement.
I reject the suggestion that there is any material distinction between an estimate of months on one occasion or weeks on another. It is perfectly understandable, given the age of the complainant at the time, the passage of time and the fact that she has had to recount these events on a number of occasions, that she would not be able to be precise about time frames. Any inconsistency in this regard does not reflect on her reliability in any significant way.
I do not consider the complainant's difficulty in remembering whether, on a particular occasion the accused used his left or right hand should have a material bearing on either her credibility or reliability. The complainant said she had many memories of what had happened to her and she may have been confused as to what hand he used. She said that [in recounting the incident] she had tried to indicate his movements and that he had used his hand to touch the opposite side of her body.
Much was made of the complainant's evidence about what conduct fell within the definition and whether the accused tickled the complainant's vagina on the occasions in question. That the complainant provided some additional detail in her evidence not precisely in accord with her police statement is consistent with the experiences of witnesses who have had to recount distressing events over time. What is important, in my view, is that the complainant was clear about the accused touching her on the genitals and inserting his finger in her vagina on the three occasions she described. Also, the 'tickling' used to describe the conduct of a person is capable of having different meanings, depending on the intention of the person. As the complainant herself said at one stage in her evidence when describing how the accused touched her on one occasion, 'it wasn't ha ha tickling'.
The difference between a sexual tickling and other types of tickling is highlighted by other evidence. JSS gave evidence about being involved in a 'tickle‑chasey' game with the accused. I did not understand JSS to have been suggesting that a 'tickle‑chasey' game was in itself sexual. Also, RTM remembered witnessing the accused 'tickling' JSS. It is also not suggested that the tickling RTM observed was sexual.
Importantly, it was not suggested that the complainant had made any prior inconsistent statement in relation to the central allegations - namely whether there had been penetration of her vagina with the accused's finger on the three occasions she described. Any inconsistency between the term used by the complainant in her police statement and her evidence to describe an occasion when the accused touched her on the vagina, was not significant.

Why I accept the complainant's evidence as proof beyond reasonable doubt of the conduct complained of

The fact that I have highlighted several discrepancies and inconsistencies in the complainant's evidence and have only highlighted two areas of concern in the accused's evidence does not mean that I am not conscious of the onus and standard of proof.
In examining the complainant's evidence (although I have sought to focus on the various inconsistencies raised by the defence) I did not undertake that examination in a piecemeal fashion. I have considered the combined effect of the complainant's evidence and the other evidence in the case. Thus, the fact that there were inconsistencies in the complainant's evidence which concerned matters of detail does not mean I could not be satisfied beyond reasonable doubt that she was both honest and, in relation to the central allegations, reliable. I did not consider there was other evidence which required me, acting rationally to have entertained a doubt as to the accused's guilt.
As a matter of common experience in this court, it is known that a victim of a sexual assault may not remember all the details of a sexual offence in the same way each time the victim recalls the incident. Trauma and the passage of time can affect the capacity of a witness to recall the details of such events with precision. The fact that a complainant has given an inconsistent account over time does not mean I should automatically reject that account as untrue.
To the extent that inconsistencies in the complainant's evidence highlight some uncertainty concerning matters of detail and which speak to the possibility of faulty recollection, I have taken such matters into account in assessing her reliability.
Further, I have not ignored the fact that the events of which the complainant testified happened over 40 years ago.
Whilst there is no direct corroboration of the specific conduct the subject of each count on the indictment, there is corroboration for the complainant's account of surrounding details from both her sister and her mother. Both corroborate the complainant's evidence there were occasions of back scratching.
Having carefully considered all of the matters that Longman requires me to consider, I am nevertheless satisfied that the complainant's evidence was truthful, accurate and reliable.

Counts 2 and 5 - element of indecency

I am satisfied beyond reasonable doubt that the conduct the complainant described in her evidence occurred. However, I am not satisfied beyond reasonable doubt that the conduct in counts 2 and 5 (being allegations of touching on the chest) can be properly characterised as indecent. Whilst the conduct in counts 2 and 5 immediately preceded other indecent conduct, I have reservations about whether that conduct has the necessary sexual connotation to be regarded as indecent.
The complainant was under the age of 9 at the relevant time. There is no evidence she had any breast development. Touching a prepubescent child on the chest may have an innocent explanation. I could not conclude that such touching was unequivocally sexual in nature. Whilst I have a suspicion that the accused had an indecent motive in touching her by either stroking or rubbing her chest, I am not satisfied beyond reasonable doubt that the conduct itself had the necessary character of indecency.
Suspicion that the accused had an indecent motive in touching her on the chest does not equate to proof beyond reasonable doubt that the conduct was indecent. It follows that I have a reasonable doubt about one of the elements of counts 2 and 5 and there are verdicts of not guilty on those counts.
For counts 1, 3, 4 and 6 which involve touching on or near the genital area or penetration of the vagina, the conduct is clearly indecent and there will be verdicts of guilty on those counts.

Verdicts

My verdicts on counts 2 and 5 are not guilty.
My verdicts on counts 1, 3, 4 and 6 are guilty.
I enter judgments of acquittal on counts 2 and 5.
I enter judgments of conviction on counts 1, 3, 4 and 6.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JS
Associate to the Judge
17 MARCH 2022