The State of Western Australia v Dr
[2020] WADC 101
•21 JULY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DR [2020] WADC 101
CORAM: LEMONIS DCJ
HEARD: 30 JUNE - 2 JULY 2020
DELIVERED : 21 JULY 2020
FILE NO/S: IND 1376 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
DR
Catchwords:
Criminal law - Trial by judge alone - One count of indecent dealing with a child under 13 years of age
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty
Representation:
Counsel:
| The State of Western Australia | : | Mr C Henderson |
| Accused | : | Ms K Kumar |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Kaminni Kumar |
Case(s) referred to in decision(s):
De Silva v The Queen [2019] HCA 48
Longman v The Queen (1989) 168 CLR 79
R v DRG (2004) 150 A Crim R 496
The State of Western Australia v Jackson [2019] WASCA 118
LEMONIS DCJ:
The accused, DR is charged with one count on an indictment dated 26 September 2019, which is that:
On a date unknown between 31 May 2016 and 1 January 2017 at Darlington, [DR] indecently dealt with [C], a child under the age of 13 years, by massaging his genitals.
The alleged conduct constitutes an offence under s 320(4) of the Criminal Code (WA), which section applies in respect of a child under the age of 13 years: s 320(1).
On 15 May 2020, Chief Judge Wager made an order pursuant to s 118 of the Criminal Procedure Act 2004 (WA) that the trial of DR be by a judge alone without a jury.
Pursuant to s 119(1) of the Criminal Procedure Act, I must apply as far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury.
Further, pursuant to s 120(1) of the Criminal Procedure Act, I may make any findings and give any verdict that the jury could have made or given if the trial had been before a jury. In addition, pursuant to s 120(2) my judgment must include the principles of law that I applied and the findings of fact on which I relied.
Principles of law
The following principles of law apply.
DR is presumed to be innocent of the charged offence.
The burden of proving the charged offence is on the State. It never shifts to DR; it remains on the State at all times. DR does not have to prove anything. DR does not have to give any evidence and she does not have to adduce any evidence.
The State must prove each and every element of the charged offence. The standard of proof is beyond reasonable doubt. It is the highest standard known to the law.
My verdict must be based solely on the evidence adduced at the trial. The evidence consists of:
1.The witnesses' answers to questions under oath or affirmation.
2.The answers given by C and his sister S in their visually recorded child witness interviews and visually recorded evidence given prior to trial. These recordings were played during the trial.
3.The exhibits tendered during the trial.
DR participated in an interview with police officers on 13 August 2018. The interview was visually recorded. The visual recording of the interview was played during the trial. The disc containing the recording was tendered by the State as an exhibit; it is exhibit 8. I was provided with the transcript of the interview as an aid.[1] The transcript is not evidence.
[1] MFI 9.
Counsels' questions are not evidence. Counsels' submissions, comments or observations are not evidence. Further, the questions and comments of the specialist child interviewers during C and S's visually recorded interviews, and the questions and comments of the police officers during DR's visually recorded interview, are also not evidence.
I must not be concerned about the consequences of my verdict. I must reach my verdict without prejudice or sympathy. I must not speculate or guess about matters that are not in evidence, or look for theories that are not supported by the evidence.
I may accept or reject the whole or part of the evidence of a witness.
DR elected not to give evidence in the trial. No adverse inference can be drawn against DR as a result of her electing not to give evidence. DR is not obliged to give evidence and does not have to prove anything. As I have said, DR is presumed innocent of the charge and the burden of proof remains on the State at all times.
I cannot use the fact that DR elected not to give evidence to fill in any gaps or deficiencies in the State's case.
DR's answers given in the visually recorded interview are evidence in this matter. This evidence is to be assessed in the same manner as evidence of a witness. In assessing that evidence, I am entitled to take into account that the interview was not under oath and DR was not subject to cross‑examination in court.
If I accept what DR said in the visually recorded interview to the effect that she did not touch or massage C's penis and testicles, then I must find DR not guilty. Further, if I do not accept DR's account, but consider that it might be true, then I must find DR not guilty. Finally, if I do not believe DR's account in her interview, I should put that to one side. The question will remain: has the prosecution on the basis of the evidence that I do accept, proved DR's guilt beyond reasonable doubt.[2]
[2] De Silva v The Queen [2019] HCA 48 [4] - [12].
Even if I find that DR told lies during the interview, that is not evidence of her guilt. It is a factor that I may take into account in my overall assessment of the credibility of DR's account given in the interview.
In assessing the evidence of each witness, I must assess whether that evidence is honest, accurate and reliable. I take account that an honest witness doing their very best to assist the court can be mistaken and inaccurate. On the contrary, a dishonest witness setting out to mislead the court can be convincing. I must consider and assess the credibility of each witness and the weight to be given to their evidence.
In accordance with s 36BD of the Evidence Act 1906 (WA), I take account of the warning that delay by a complainant in complaining does not necessarily indicate that the allegation that the offence was committed is false. Further, there may be good reasons why a victim of an offence such as that alleged may hesitate in making a complaint of that offence.
I am not satisfied that in this case a Longman[3] type direction is required. The delay between the alleged offending and DR being interviewed is a period spanning approximately 1 year and 7½ months to 2 years and 2½ months. It is not an extensive period. Furthermore, this is not a case where DR could give or adduce evidence demonstrating that she did not have the opportunity to offend in the manner alleged, for example that she was elsewhere when the alleged offence occurred. In that respect, as will be made clear from my observations below, DR accepted that she would massage C and while doing so C would be wearing underwear only. The critical issue in this case is directed to what occurred within the context of that massage, not to whether the massaging by DR of C occurred at all.
[3] Longman v The Queen (1989) 168 CLR 79.
I appreciate that even though a Longman type warning is not required, on occasion a direction in respect of the forensic disadvantage to an accused still needs to be given. I have had regard to the decision of the South Australian Full Court in R v DRG.[4] DRG addressed alleged sexual offending against a child in circumstances where the opportunity to offend is admitted or proved.[5] In the judgment of Doyle CJ (with whom the other members of the court agreed), his Honour referred to the need to bring to the jury's attention:[6]
… the disadvantageous position of the defence when opportunity to offend is admitted or proved, and the defence can do little to answer detailed allegations other than simply deny that what is alleged did occur.
[4] R v DRG (2004) 150 A Crim R 496.
[5] DRG [38].
[6] DRG [38].
The alleged scenario here is however different to that which presented in DRG, as here C's evidence is that S was in the room when the alleged offending occurred. I address below C and S's evidence in this respect. In the circumstances of this case, I consider I do not need to bring to specific attention any particular disadvantage of DR. However, to find DR guilty of the charged offence I must be satisfied as to the honesty, accuracy and reliability of C's evidence as to the incident which is alleged to constitute the charged offence.
The defence pointed to there being a forensic disadvantage by reason of C and S not having been interviewed earlier by specialist interviewers. However, as I have explained, I do not consider the period of delay to be significant. Moreover, the resultant effect of the delay is that C and S were able in their interviews, and in their evidence, to express themselves in a more advanced manner than they would have if they had been interviewed earlier, because they were more advanced in their learning development.
Elements
I now turn to the elements of the offence. As I have observed, the State must prove each and every element of the charged offence beyond reasonable doubt.
The elements are as follows.
First, that DR dealt with C. Section 319(1) of the Criminal Code defines 'deals with' to include:
doing any act which, if done without consent, would constitute an assault
It therefore includes any act where a person touches or moves or otherwise applies some force of any kind to the person of another, whether it be either directly or indirectly.[7]
[7] Criminal Code s 222.
Second, that any such dealing was a deliberate act on the part of DR.
Third, that any such dealing was indecent. The word indecent in the context of s 320(4) connotes conduct of a sexual character.[8] Some conduct may be regarded as so offensive to common standards of decency that it should be regarded as indecent of itself, regardless of the motivation for the conduct.[9]
[8] The State of Western Australia v Jackson [2019] WASCA 118 [56].
[9] The State of Western Australia v Jackson [59].
Fourth, that at the time of the alleged dealing, C was under the age of 13 years. C was born in May 2012; he therefore is yet to turn 13 years of age.
The date and place alleged in the indictment are not elements of the offence. They do not have to be proved beyond reasonable doubt.
The State's case and matters in issue
The State opened its case on the basis that the count charged was a representative charge. The State's case is that the alleged dealing is constituted by DR massaging C's penis and testicles. The State says this was a deliberate act by DR and it is indecent of itself.
DR denies that she touched C in the manner alleged. Whether or not I am satisfied beyond reasonable doubt that DR did so is the critical issue in this trial.
If I am satisfied beyond reasonable doubt that DR touched C in the manner alleged, DR accepts that such touching of itself is indecent.
There is no issue in respect of C being under the age of 13 years at the time of the alleged incident, given C is yet to turn 13.
The evidence
The principal evidence relied on by the State was that of C. As is explained below, C's evidence is the only direct evidence of the commission of the offence the subject of the charged count.
On 26 July 2018, C participated in a visually recorded interview conducted by a person of a prescribed class as referred to in s 106HA of the Evidence Act. Pursuant to s 106HB(1), the interview is admissible as the whole or part of C's evidence‑in‑chief.
On 14 October 2019, C's evidence was taken at a special hearing conducted pursuant to s 106K of the Evidence Act. C confirmed during his evidence that he had participated in the visually recorded interview and what he said in the interview was true. The disc containing the visual recording of C's interview was marked for identification, being MFI 1. Further, C's evidence taken on 14 October 2019 was visually recorded in accordance with s 106I and s 106K of the Evidence Act. The USB containing the visual recording of C's evidence is MFI 2.
In addition to C's evidence, his sister S also participated in a visually recorded interview, and S's evidence was taken at a special hearing held prior to trial. Like C, S's evidence was visually recorded. S's interview, and the taking of her evidence, occurred on the same day as C. The disc containing the visual recording of S's interview was marked for identification, being MFI 6. The visual recording of S's evidence is contained on the USB which is MFI 2.
Both C and S gave unsworn evidence at the special hearing in accordance with s 106C of the Evidence Act, the presiding judge being satisfied from his review of the transcripts of their interviews and his Honour's questioning of each of them, that each was able to give an intelligible account of events which they had observed or experienced.
The visual recordings of C's interview, and of his evidence, were played during the trial as constituting C's evidence. The visual recordings of S's interview, and of her evidence, were played during the trial as constituting S's evidence.
I have had regard as an aid to the transcripts of C and S's evidence, and of their interviews. Such transcripts are not evidence and I have used them as an aid only.
The giving of evidence by C and S in the manner which I have described is a routine procedure of the court. I should not draw any inference as to DR's guilt from the use of this procedure.[10]
[10] Evidence Act s 106P.
The State called at trial the following witnesses: C's mother LB, his father LG and the investigating officer, Detective Frederic Volpi. The investigating officer was called for the purposes of tendering into evidence the visually recorded police interview of DR.
DR called Ms RP, Ms HB and Ms JC. Each gave what is commonly known as character evidence. Each gave evidence to the effect that DR has a general reputation for integrity, which I take to include honesty. They also gave evidence that the allegations in this case are not at all consistent with DR's general reputation. DR has no prior criminal record.
This evidence is relevant in two ways. First, evidence of good character is relevant to whether or not DR would commit offences such as the one with which she has been charged. The evidence of her good character shows that it is less likely that she would commit such an offence.
Second, the evidence of DR's good character is relevant to her credibility. It tends to show that she is a person whose account in the interview can be accepted and relied upon.
However, in assessing the weight to be given to the character evidence, I must take account that people do commit crimes for the first time and that evidence of good character cannot prevail against evidence of guilt which I find to be convincing.
Summary of evidence
Background
The background to the alleged offending is largely uncontroversial and I find as follows.
Both of C's parents work. C's mother LB is a clinical and counselling psychologist[11] and C's father LG is an electronic technician.[12] C was born in May 2012. S was born in September 2009. S is therefore approximately 2 years and 8 months older than C.
[11] ts 87.
[12] ts 131.
DR has a background in nursing, which included being a senior clinical nurse at Princess Margaret Hospital, caring for babies.[13]
[13] ts 158 - ts 159.
In 2016, LB and LG were both employed and worked externally from the family home. A need arose for child care on Tuesday afternoons.[14] LB and LG decided to engage a babysitter for a couple of hours every Tuesday. DR applied for the position through a website known as 'findababysitter.com'.[15] As part of DR's application, she provided the requisite regulatory documents plus a letter of reference from a family for whom she worked.[16] DR's application was successful and LB and LG engaged her as their babysitter.
[14] ts 88.
[15] ts 88.
[16] ts 99.
As part of her role, DR would pick up S from school and C from day care.[17] She would take them home, being there for around two hours before LG would get home, it usually being the case that he got home first.[18]
[17] ts 88.
[18] ts 89.
Prior to June 2016, the family had lived in Helena Valley. In June 2016 they moved to a house in Darlington, which LB described as being a bigger and nicer house. The principal reason in moving house was to provide for separate bedrooms for the children as they got older.[19]
[19] ts 89.
Upon moving to the new house, initially C and S were to have separate bedrooms, however LB and LG realised they were still too young and C and S reverted to sharing the one bedroom.[20] Initially C and S slept on a double bed in that room. This only lasted for a relatively short period and then two single beds were purchased. They were pushed together in the bedroom and C and S slept on these beds.[21]
[20] ts 89.
[21] ts 89.
By the time C made his complaint regarding the conduct the subject of this matter, the sleeping arrangement of having the two beds pushed together was still in place.[22] I am satisfied this was the arrangement in the bedroom during the period that DR conducted massages on the children in the Darlington house.
[22] ts 91.
In terms of DR's role as a babysitter, she was permitted to take the children out on excursions. While LB said she did not encourage DR to do this, she did say it was appreciated.[23] LB also quite openly said that DR did a lot of beautiful things for the children and she trusted DR.[24]
[23] ts 98.
[24] ts 98.
When C was a very young boy, only 12 days old, he had open‑heart surgery.[25] Fortunately, the surgery was successful and C does not have any long‑lasting effects either from the surgery, or the underlying medical condition for which he required surgery.[26] In addition, C does get dermatitis which LB described as likely to be a genetic condition, as she also suffers from the same condition.
[25] ts 100.
[26] ts 100.
In respect of C's development as a child, LB described his speech as being very good by the age of 5 going on 6[27] and to her observation, C did not suffer any language delays. LB said that C started speaking at around 12 months[28] and could complete full sentences by 3 years of age and by 4 was able, mostly, to clearly communicate.[29] LB said that S had in effect the same development trajectory.[30] As to the relationship between C and S, LB said that they adore each other, love each other and have a close relationship.[31]
[27] ts 102.
[28] ts 102.
[29] ts 102.
[30] ts 103.
[31] ts 103.
In their role as parents, LB gave evidence that she engaged with C as a mother and it was made known to both C and S that their parents valued things the children had to say and generally speaking the children were able to raise matters of concern with their parents.[32]
[32] ts 105 - ts 106.
S was a protective older sister to C.[33]
[33] ts 104.
LB also described in evidence that the children had been taught protective behaviours from an early age, being approximately 2 years of age.[34] In this respect, C knew that no one was to touch his penis and to tell his parents if someone did touch his penis.[35] LB described that C tended to use the word penis, not privates.[36] Similarly, LB had also told S about protective behaviours.[37] On occasion this was just with S on her own, but also on occasion it was with C present.[38]
[34] ts 130.
[35] ts 118.
[36] ts 123.
[37] ts 122.
[38] ts 122.
In respect of the occasion which I will describe below where LB observed DR massaging C whilst he was only wearing his underpants, LB discussed this with C. In doing so, she applied the protective behaviours concept to that occasion.[39] C did not report anything to LB at that point in time.[40]
[39] ts 117 - ts 119.
[40] ts 119.
LB and LG were impressive witnesses. On my assessment, they are plainly troubled by the allegations the subject of these proceedings, as is to be expected. They are also concerned as to the potential impact on C and S by them having to participate in these proceedings by way of giving an interview and then giving evidence by way of the prerecording. Overall, my assessment of LB and LG is that they are very devoted, loving and insightful parents. I accept LB and LG's evidence, subject to the qualifications I have observed below regarding DR's statement in her interview that C kissed her on the mouth in front of his parents, and regarding DR's massage of C in March 2018 which LB observed.
In summary, I find that C and S have grown up in a very loving and respectful environment, which encourages each of C and S to bring to their parents' attention any concerns they may have about how people have dealt with them. Further, both C and S were taught protective behaviours. C knew that no one was to touch his penis other than if he needed help and he was to tell his parents if anyone had touched his penis.
The evidence of C
In relation to the alleged incident itself, C's evidence given by way of his interview was as follows:
1.He and S were in S's room together.[41]
[41] C's interview, page 7.
2.They were lying on two separate beds which were right next to each other.[42]
[42] C's interview, page 7.
3.DR massaged his penis and massaged his whole body without his clothes on.[43]
[43] C's interview, page 5.
4.She was massaging his penis for a long time or something like four minutes.[44]
[44] C's interview, page 5.
5.It was not very nice so he asked her to stop but she did not.[45]
[45] C's interview, page 5.
6.Prior to massaging his penis, she was massaging his legs.[46]
[46] C's interview, page 6.
7.He did not have any clothes on at all when this was happening.[47]
8.DR massaged the bit of his penis where the wee comes out of and the ball bits where all the balls stay.[48]
9.She massaged everywhere that she can get there on his penis.[49]
10.He did not really like it.[50]
11.DR used her hands.[51]
12.When DR's hands were on his 'ball bits' they were squishing it a bit and it hurt him.[52]
13.DR then continued on massaging him and started massaging his tummy.[53]
14.He was on his back when DR massaged his penis.[54]
15.He repeated that his sister S was on the bed next to him at the time this occurred.[55] This was in response to a question which started: 'So this day where you had no clothes on and you were in [S's] room …'.
16.He told LB of this incident when he was 4 years of age, but 'she didn't listen … because I don't think she heard'.[56]
[47] C's interview, page 7.
[48] C's interview, page 8.
[49] C's interview, page 8.
[50] C's interview, page 8.
[51] C's interview, page 8.
[52] C's interview, page 8.
[53] C's interview, page 9.
[54] C's interview, page 10.
[55] C's interview, pages 11 and 19.
[56] C's interview, pages 19 - 20.
C also said that after the massage S said to him:[57]
C, did you know that [DR] actually massaged my bum? And - and I said stop.
C said he said 'no' to S. The context to this questioning is referable to the time that C said DR had massaged his penis.[58]
[57] C's interview, page 14.
[58] C's interview, page 14, first 2 lines.
In addition to these matters, C initially said DR had touched his privates more than one time,[59] then when asked whether there was another time where DR had massaged his penis he said 'no'[60] and finally he said there was more than one time DR massaged his penis.[61] He also described how DR would massage him and S progressively, moving from one to the other as the massage progressed on different parts of the body.[62]
[59] C's interview, page 5.
[60] C's interview, page 12.
[61] C's interview, page 17.
[62] ts 26.
In C's pre-recorded evidence, he said that:
1.Everything he said in his interview was true.[63]
2.When DR gave him and S a massage, he was always wearing his underwear.[64]
3.He knows that a minute is 60 seconds and that a second is quite short.[65]
4.When he told DR to stop massaging his penis, he said it loudly to her.[66]
5.S was in the room at the time. If he reached out with his hand, he could touch her.[67]
[63] ts 12.
[64] ts 27.
[65] ts 19.
[66] ts 26
[67] ts 26.
The evidence given at point 2 above was given in cross‑examination. In re-examination the following questions were asked and answers given:[68]
You said to one of the questions which Ms Kumar asked you that when you were having a massage you were always wearing your underwear?---Yeah.
Where did [DR] touch you on your penis?---When I was having a massage.
Where were your underwear?---[DR] was - so I think I was sort of like dozing off and then [DR] suddenly just tried to pull them down.
I see. So you started off with your underwear on, did you?---Yeah.
[68] ts 32.
Evidence of S
S's evidence given by way of her interview was as follows:
1.She was there to talk about their babysitter touching C's privates.[69]
2.DR gave her and C massages more than one time.[70]
3.C usually just wears his undies;[71] C always had his undies on.[72]
4.When DR was massaging C while S was in the room, it never happened that C had no clothes on.[73]
5.DR had not massaged S's bottom but had massaged the area above it.[74] S asked DR to stop.[75]
6.DR would sometimes tell them to close their eyes during the massage but then they would not really be closed and they would laugh and stuff.[76]
[69] S's interview, page 4.
[70] S's interview, page 5.
[71] S's interview, page 5.
[72] S's interview, page 9.
[73] S's interview, page 8.
[74] S's interview, pages 7 - 9.
[75] S's interview, page 5.
[76] S's interview, page 12.
Further, my assessment of S's evidence by way of the interview is that it is to the effect she did not observe DR massaging C's penis or his testicles. I consider this arises from the following questions and answers:[77]
Q.Okay. And did you see what was happening when she massaged your brother?
A.No.
Q.No.
A.Well, I always seen him, um, but it's – I – I've never seen it happen before. But sometimes he's been on his own with Dawn.
[77] S's interview, page 8.
I am satisfied the answer 'I've never seen it happen before' is a reference to the allegation that DR touched C's penis. I do not consider this reference should be understood as conveying that S did not observe how C was being massaged in a general sense. In that respect, S makes clear in the interview that during the massages she was able to see C and also that he always had his underwear on.
In S's pre-recorded evidence, she said that:
1.She and C would be lying next to each other when DR was massaging them. They were able to touch each other.[78]
2.DR would swap between her and C while massaging them.[79]
3.C always kept his underwear on during the massage.[80]
4.S would tell her parents anything interesting or anything she did not like.[81]
[78] ts 45.
[79] ts 45.
[80] ts 46.
[81] ts 48.
LB's evidence
In addition to the matters I have referred to above, LB gave evidence that:
1.She came home early from work on a day in March 2018.[82]
[82] ts 91.
2.S was not there. When she came into the house and went into S and C's room, she observed DR giving C a massage while he was wearing only his underpants.[83]
3.LB felt uncomfortable because C was only wearing his underwear.[84] She remembered the incident because she felt very uncomfortable.[85]
4.DR said 'we always keep our undies on, don't we C'.[86]
5.LB then asked what was happening, to which DR said something to the effect of just giving C a massage.[87]
6.Within an hour of DR leaving, LB spoke to C.[88] LB asked C what had happened during the massage and he told her.[89] She asked him if there was anything about the massage that made him feel uncomfortable.[90]
7.At the point in time of the conversation, C knew about protective behaviours.[91] Specifically he knew that he was to tell LB if anyone had touched his penis.[92] LB used this occasion to emphasise to C the importance of telling her if there was any touching.[93] C did not report anything to LB at that point.[94]
8.On or about 11 July 2018, LB was lying in between C and S on the two beds in their bedroom.[95] LB recalls it was a Wednesday.[96] C told her that DR had done something to him.[97]
9.On the Sunday, LB and LG called DR.[98]
10.After considering what to do for about a week, LB initially called the Department of Child Protection and then the police.[99]
11.C told his school class about the incident, although LB did not know the words that were used. This occurred prior to C's interview with the specialist child interviewer.[100]
[83] ts 91.
[84] ts 114.
[85] ts 110; see also ts 130.
[86] ts 114.
[87] ts 114.
[88] ts 116.
[89] ts 117.
[90] ts 117.
[91] ts 118.
[92] ts 118.
[93] ts 118.
[94] ts 119.
[95] ts 91.
[96] ts 92.
[97] ts 91.
[98] ts 92.
[99] ts 92.
[100] ts 129.
LG's evidence
In addition to the matters I have referred to above, LG gave evidence that:
1.He remembered one specific incidence of having observed DR giving the children a massage at the new house when they only had their underpants on and further, he may have seen this at the old house.[101]
2.C and S were very receptive to DR babysitting them.[102]
3.When he returned home from work, C and S would tell him of their activities and would tell him if they did not enjoy doing anything.[103]
[101] ts 133 - ts 134.
[102] ts 135.
[103]ts 135.
DR's interview
DR gave a lengthy interview with police which lasted approximately 2 hours and 40 minutes.
A specific difficulty with the interview is that the police officers put to DR that the alleged offending happened on a Tuesday in July 2018.[104] As I have noted above, in his interview C said he told LB about DR's conduct when he was 4 years of age. As C was born in May 2012, the period when he was 4 years of age ended in May 2017, thus well before July 2018. Further, the State's case as particularised is consistent with the offending having occurred when C was 4 years of age, it being alleged the offending occurred between 31 May 2016 and 1 January 2017. Accordingly, large parts of the interview deal with an event different to that alleged in this trial.
[104] D's interview, page 5.
In the context of that qualification, while I have had regard to the interview as a whole, I summarise the following matters arising from it:
1.It was clear that DR had great affection towards C and S and that their welfare was very important to her.
2.She described C and S as being lovely little kids and they would look forward to seeing her.
3.She described C as being an emotional little boy who did tell fibs so he does not get into trouble, however lots of kids do that.[105]
[105] DR's interview, pages 28 and 31.
4.She said that massaging the children was something that she had learnt while being employed at the hospital.[106]
[106] DR's interview, page 36.
5.She explained that a substantial part of her working life had been working with children.[107]
[107] DR's interview, page 15.
6.She spoke positively of LB and LG.[108]
7.She volunteered that there were times when she was alone with C when S did not come along.[109]
8.During the massages, DR would massage the children progressively by the part being massaged, so for example, feet, hands.[110] The children would giggle and laugh and say 'do me next'.[111]
9.While she told the children to close their eyes, they did not, instead giggling, laughing and fooling around.[112] However, C did at times 'doze off'.[113]
10.In respect of the phone call where LB and LG confronted her about C's allegations, I assess DR's answers as being a mature response. While she denied the incident, she said she would also believe her children if she was in that situation and she felt saddened by it and did not want to get angry.[114]
11.She described C as being very talkative. She also described him as being very fragile emotionally when she started looking after the children however this improved as he got older. She described S as being shy.[115]
12.She volunteered that S may have said that she did not want to get her lower back massaged.[116]
13.The allegations made were totally wrong and she would never harm C and S.[117]
14.My impression of DR in the interview was that she found the allegations made against her to be quite overwhelming.
15.DR accepted in the interview that the incident involving C as put to her could not have been an accident.[118]
[108] DR's interview, pages 17, 22 - 23.
[109] DR's interview, page 53.
[110] DR's interview, pages 38, 40.
[111] DR's interview, page 42.
[112] DR's interview, page 40 and 42.
[113] DR's interview, page 42.
[114] DR's interview, pages 10, 54 and 59. DR does not have any children: ts 172.
[115] DR's interview, page 28.
[116] DR's interview, pages 26 and 42.
[117] DR's interview, page 55.
[118] DR's interview, page 55.
Findings
As I have explained, a critical aspect of this matter is my assessment of C's evidence, including the reliability of C's evidence. In assessing C's evidence, in my view, I need to take account not only of his presentation during the interview and his visually recorded evidence, but also the consistency and plausibility of C's version of events as described in his evidence.
C, S and DR were all consistent that the massaging occurred in a progressive manner such that DR would move between C and S while massaging them. I find to this effect.
There is an apparent discrepancy between C's evidence and S's evidence regarding whether S told C that DR had massaged her bottom and S told DR to stop. C in his interview said that S asked him whether he knew DR actually massaged her bottom and S said stop. S was not asked in her interview or in her evidence whether she told C this. S in her interview described in some detail how DR had massaged above her bottom, not her bottom itself. Further, as I have set out at [80](12), DR accepted that S may have said she did not want to get her lower back massaged.
I consider the discrepancy between C and S's evidence is most likely explained by there being a misunderstanding on C's part that S was referring to her bottom, rather than the part above S's bottom. I accept S's evidence that DR did not massage her bottom. I am also satisfied S did not tell C that DR massaged her bottom. I am however satisfied that S did tell C that she had asked DR to stop massaging a particular area in proximity to her bottom.
C's evidence
The State submitted that it was implausible that C would come up with a story to the effect of the allegations made against DR. In that respect, the State says that such allegations would not go through the mind of a 6‑year‑old boy. The State points to DR accepting in her interview that 'a 6 year old boy isn't going to normally think about these things'.[119]
[119] DR's interview, page 56.
The State says it is far more likely that C was describing events that had happened. The State also said that C was very credible in his evidence, very matter of fact and provided detail about key matters. In that respect, the State referred to the detail in which C described the incident. The State also referred to C saying that he did not enjoy the part of massage where it is alleged DR touched his penis, the State saying this has the ring of truth to it. The State also pointed to C's precision as to when S was turning 9 years of age, which I separately address below.
The State submits that C took the interview seriously and sought to clarify matters, the State pointing to the example where C said to the interviewer that he did not understand what she was saying.[120] While my impression of C during the interview was that he was attentive, at times he was distracted by the camera. However, in my view this is not unusual given his age.
[120] C's interview, page 8.
The State says, correctly in my view, that the substantive difference between C's evidence, and DR's account in her interview, regarding the massages is whether or not DR touched C's genitals. The State submits that because C's evidence regarding the massages in a general sense is accepted by DR, this adds to C's credibility. However, effectively I see this as a neutral effect. The critical issue is DR's alleged touching of C's genitals, which is disputed. Concurrence between C and DR regarding the surrounding circumstances of the alleged touching does not to my mind give more credit to either position as to whether the touching itself occurred.
The State in conclusion submitted that C's allegation was a product of something that had happened and it was extremely unlikely that a 6‑year‑old boy would make up such an allegation.
In response to the State's submissions, the defence says that the detail described by C was not of such a nature that it could only be explicable by C having lived through the event he described. I accept this submission. The event as described is not of such a nature that C would only know of the detail through having lived the experience. In that respect, the alleged event is substantially to the effect of DR massaging C's penis and testicles and also squeezing his testicles, which events are not of such a particular that C must have lived through them, to be able to describe them.
In addition, C's awareness of having a penis and the name for it are matters which were explained to him while being taught protective behaviours by his parents.
The defence pointed to a number of possible scenarios as to how it was that C came to make the allegation against DR, including that he could have transposed something that S had said earlier about asking DR to stop massaging a particular area, or he felt compelled to continue with the allegation given that he told his class prior to being interviewed by the specialist interviewers. I do not consider I can elevate such matters to anything more than possible explanations for C's allegation not being true. However, it is important for me to keep in mind that DR is not required to establish an explanation for C making the allegation consistent with her innocence.
The defence submitted to the effect that the affection which C and S showed to DR was inconsistent with DR having engaged in the alleged conduct. On the evidence, I am satisfied there was an affectionate relationship between DR, C and S. However, I do not see the existence of such affection as being inconsistent with the alleged offending behaviour having occurred. It is plausible that consistently with the alleged offending, C still viewed his relationship with DR overall as being positive.
Overall, I consider the State's concluding submission that it is extremely unlikely that C would make up such an allegation puts the position too high. While I accept that the prospect that C would construct such an allegation is a relevant consideration in my overall assessment of his evidence, I consider that my assessment of such a prospect is very much intertwined with my assessment of C's evidence as a whole, including the plausibility and consistency of C's evidence. In addition, as the defence has pointed out, the event as described is not of such a nature that C would only know of the detail through having lived the experience.
In respect of the duration of the alleged incident, as I have set out, C said in his interview that the alleged incident took 'something like four minutes'.[121] I am not satisfied this evidence conveys a precise description of the time period during which the alleged conduct occurred. The State pointed to C being precise, and accurate to within a day, in saying when S's birthday was. However, I consider there are two difficulties with this analysis. First of all, it is not clear whether C had calculated those days himself, or was told them by someone else. Second, the calculation of a number of days to a birthday is a different conceptual exercise to the accurate measurement of time, without a time device such as a watch. Overall, I interpret C's evidence as being to the effect that the alleged offending was not momentary and was of a sufficient length in time such as to allow multiple acts of massaging to occur on his penis and testicles.
[121] C's interview, page 5.
In addition, I also find that C's evidence is to the effect that the request he made to DR to stop was in a loud voice and was associated with pain he was suffering from the alleged offending.
I am satisfied that the overall effect of C's interview is he was saying that during the incident, he had no clothes on at all, that is he did not have any underwear on. In this respect, I point to the following matters:
1.In his interview, C said that when DR was massaging his penis she then massaged his whole body without 'my clothes on'.[122]
2.When questioned as to what he was wearing, C said he was wearing nothing and then when asked whether he had any clothes on at all, said no.[123]
3.C then described how DR was massaging his legs and the very next thing that happened after she was massaging his legs 'she went under the peenie'.[124] This passage conveys that C is saying that he was wearing nothing at all, that is no underwear, in particular when regard is had to him saying that the very next thing that happened after DR was massaging his legs was that she went under the peenie. There is no reference to there being any intervening act by the removing of underwear to allow this act to occur.
4.Finally, in questioning, the interviewer takes C back to the day where 'you had no clothes on' and refers to S being on the bed next to him. C was then asked what S was wearing and he refers to S wearing shorts 'with her knickers'. He therefore in this passage is making a distinction between having no clothes and wearing underwear.[125]
[122] C's interview, page 5.
[123] C's interview, page 7.
[124] C's interview, page 7.
[125] C's interview, page 11.
In my view, when regard is had to these passages, the effect of what C is saying in the interview is that at the time of the alleged offending he was naked. This is to be contrasted with C's pre-recorded evidence, where he says he started with his underwear on and then DR suddenly tried to pull them down.[126]
[126] ts 32.
On this analysis, I consider the difference between what C said in the interview, and in his pre-recorded evidence, is a matter of significance. I consider there is a material difference between C saying he was naked throughout, compared to C starting with his underwear on, which were then pulled down by DR during the course of the massage.
If contrary to this analysis, the effect of what C was saying in the interview was he had underwear on, C does not descend to any detail in the interview as to how it was then possible for DR to go from massaging C's legs to massaging under the 'peenie'.
During his interview, C gave a visual demonstration as to how the alleged conduct occurred. My impression of the motions used by C during this visual demonstration is that they are more consistent with the general massaging of his body, as opposed to the massaging of his penis and his testicles, and squeezing of his testicles.
S's evidence and the effect of S not observing the alleged conduct
I have found that S's evidence is to the effect she did not observe DR massaging C's penis or his testicles.[127] This is consistent with C's evidence; C does not suggest that S observed DR's alleged conduct. I am satisfied that S did not did not observe DR massaging C's penis or his testicles.
[127] [74] of these reasons.
I am also satisfied that during the massages which DR gave to C and S, they were situated on adjoining beds within sufficient proximity that they could touch each other. Further, as I have already explained, C and S had a loving sister/brother relationship, with S being a protective older sister. I am satisfied that S would have been concerned if anything was happening to C which was causing him pain.
The State submitted that I could find that S may have been asleep during the alleged incident. In this respect, the State points to DR saying in her interview that she would tell the children to close their eyes.[128] However, DR in the interview then proceeds to say 'they wouldn't be' which I take to be a reference that the children would not close their eyes. This is consistent with DR saying the massages would be a bit of fun and the children would giggle between each other. DR does say in her interview that at times C would 'just lie and just doze off'.[129] In addition, during re‑examination, C gave evidence that he 'was sort of like dozing off' when DR pulled down his underwear.[130] However, neither C's evidence, nor DR's interview, suggests that S fell asleep.
[128] DR's interview, ts 38.
[129] DR's interview, page 42.
[130] ts 32.
Further, S's evidence was not to the effect that she would go to sleep. S said that her and C's eyes 'would not really be closed and they would laugh and stuff'.[131] This evidence, which I accept, is to the effect that if S did close her eyes, it was only for a very short period of time.
[131] S's interview, page 12.
Furthermore, the State's submission to the effect it is plausible that S closed her eyes and thus did not observe the alleged incident, does not address C asking DR loudly to stop, such a matter being of an audial, not visual, nature.
Additionally, in respect of S, the State pointed to there being a number of matters that she did not recall, referring in particular to pages 43, 44, 45, 48 and 49 of the transcript of her pre-recorded interview, thus suggesting her memory was not strong. However, in my assessment the matters referred to by the State are more of an incidental nature directed to day‑to‑day activities, which are of far less significant consequence than the alleged incident involving DR. I include within this S's evidence that she cannot remember that sometimes in the car C would have a big tantrum,[132] which is a matter that is not of any significant consequence. In addition, S's evidence as to whether or not the alleged offending conduct occurred was 'I've never seen it happen before',[133] which is much more definitive than not recalling. Further, S also said in her interview that C had 'always had the undies on'.[134] Overall, I consider that S not having recalled the matters referred to by the State does not diminish the force of S's evidence that the alleged conduct did not happen.
[132] ts 44.
[133] S's interview, page 12.
[134] S's interview, page 9.
Further, the defence points out that the evidence does not suggest there were any distractions which would result in S not observing what was happening in respect of C. I accept this submission. It is also consistent with the interactive way in which the massages were carried out between DR, C and S. Furthermore, I have found that C's evidence is to the effect that the alleged offending was not momentary and was of a sufficient length in time such as to allow multiple acts of massaging to occur on his penis and testicles.[135]
[135] [85] of these reasons.
When regard is had to the entirety of the matters I have described at [102] ‑ [108] above, I am satisfied it is likely that if the offending occurred in the manner alleged by C, S would have observed the offending behaviour, either at the time it was initiated, or by being drawn to observe it by reason of C's loud request for DR to stop.
Furthermore, I am satisfied that if S had observed the alleged offending behaviour, she would have taken steps to intervene to protect C.
I should also say that while the State did rather faintly propound an alternative thesis for its case based upon C being alone with DR at the time of the alleged conduct, in my view, such an alternative case would be in respect of a different event to that described by C's evidence. That is, an integral part of C's evidence is that S was present throughout. While the State did suggest in opening that the charged offence was a representative count, in my view this does not permit a case to be put that is fundamentally different to C's evidence. I therefore am of the view that the evidence does not arguably support a proposition that the alleged offending occurred while C was on his own with DR.
Delay
In assessing delay in making a complaint, it must be kept in mind that at all times C was a very young boy and would not have a developed sense of what to raise with his parents.
In this case, I consider delay arises predominantly for consideration in respect of three separate matters. The first is immediately proximate to the alleged offending when C was 4 years of age. The second is when LB walked in on DR massaging C when he was only wearing his underwear, which occurred in March 2018. The third is in respect of C's interactions with S.
In respect of the time frame when C was 4 years of age, C said in his interview that he told LB however, 'she didn't listen … because I don't think she heard'.[136]
[136] Interview, page 20.
LB gave evidence that she had no memory of C raising the matter with her when he was 4 years of age, which I accept.[137] I do not consider that delay attributable to C not raising the matter when he was 4 years of age is a matter that affects the reliability of his evidence. On C's evidence, it is plausible he thought it was a matter he had raised with LB and need not be concerned about.
[137] ts 120, ts 122.
In respect of the second matter, LB gave evidence that in March 2018 she had come home early and that upon entering the house, observed DR with C on his own in S's room, with C laying on the bed in his underpants getting a massage.[138] She gave evidence that she felt very uncomfortable.[139] Within an hour of DR leaving, LB spoke to C, the content of which I have summarised at [76].
[138] ts 91.
[139] ts 110.
In my view, LB's conversation with C provided a substantive and distinct opportunity for C to raise with LB the alleged conduct the subject of the charged count. The conversation took place in the context of DR having just massaged C, LB asking C if there was anything about the massage that made him feel uncomfortable and LB using the conversation to emphasise for C the importance of him telling her if any one touched his penis.
In respect of the third matter, I have found that S told C she had told DR to stop massaging a particular area in proximity to her bottom. C's evidence is to the effect that the conversation occurred at the conclusion of the massage in which the alleged conduct occurred.[140] Further, as I have found, C and S have a close, loving relationship and S was protective of C. I consider S's conversation with C provided him with a substantive and distinct opportunity to raise with S the alleged conduct the subject of the charged count.
[140] C's interview, page 14.
C did not make any complaint regarding DR's conduct during either of the opportunities referred to at [117] and [118]. I consider C not doing so is a matter that adversely affects the reliability of C's evidence in respect of the alleged conduct the subject of the charged count. In coming to this view, I have reminded myself of s 36BD of the Evidence Act.
DR's interview
Alleged lie
The State submitted that DR lied in her interview by saying that C had kissed DR on the mouth in front of his parents. The State says this affects the credibility of DR's version of events given in her interview.
Before turning to the specific evidence, in order for what DR said in the interview to be a lie, I must be satisfied that it is false and that it is deliberately false.
In her interview, DR said in response to a question as to her having mentioned that C kissed people on the mouth:[141]
Well, that's just what he does. He, he'll give you, and he's done it to me in front of his parents I might add. Um, he, hugs people and he'll kiss them on the mouth and it's not uncommon for him. He kisses people on the mouth. You know, he gives people a big hug and he kisses them on the mouth. It's, it's just that's what [C] does so you don't, you don't, sort of, make a big deal of it. You just move on.
[141] DR's interview, page 57.
LB in her evidence said that C had kissed her on the lips, but this happened rarely.[142] She was asked whether she had she ever seen C kiss anyone else on the lips to which she answered 'not from memory, no'.[143]
[142] ts 92.
[143] ts 92.
LG gave evidence that he did not recall seeing C ever kiss anyone on the lips apart from rarely with LB or himself occasionally.[144]
[144] ts 134.
As the recitation of these matters demonstrates, there is an apparent disparity between what DR said in the interview, and LB and LG's evidence. However, I consider the evidence is at too high a level of generality for me to be satisfied that what DR said was false. The circumstances in which DR suggested C had kissed her on the mouth were not explored in the interview. In my view, such circumstances are very much pertinent to whether or not C's parents would recall observing such an event. For example, if while DR was holding C in LB or LG's presence, he made a swift movement towards her resulting in him kissing DR on the mouth, that is an event which C's parents may not recall. In that respect, the effect of both LB and LG's evidence is to the effect that they do not recall it happening, not that it did not happen. For these reasons I am not satisfied that what DR said in the interview is false.
DR's interview - Additional matters relied on by the State as affecting her credit
The State pointed to LB's evidence of the March 2018 massage where DR said to the effect that C always had his underwear on as reflecting that DR was defensive upon LB entering the room. The State said this reflected that DR was giving a massage of a different character to those massages which LB and LG had known about. As I understand it, the essence of this submission is that DR was defensive because the massage was of an ostensibly inappropriate nature. The State says that DR did not need to be defensive if the massage did not have such a character.
In addition to LB's evidence of the 2018 massage, LG's evidence was that on one specific occasion he had observed DR giving the children a massage when they only had their underpants on and further, he may have seen this at the old house.[145]
[145] ts 133 - ts 134.
I consider that what DR said to LB is properly characterised as DR seeking to assuage a potential concern which she perceived LB to have regarding the massage. It was clear from LB's evidence that she was concerned as to what she observed. DR's response to this concern was to assure LB that C kept his underwear on. In addition, LB's evidence is that she did not voice any concern to DR, apart from asking what was happening. In this overall context, I am not satisfied DR pointing out that C kept his underwear on can be properly characterised as DR being defensive because the massage being given was of an inappropriate nature.
The State also submitted that DR in her interview stated that LB and LG knew of the massages and approved of them, and that the massages happened in front of LB, whereas the State says the nature of the massages C received when LB was not there appeared to be a little different. Implicit in this submission is that what LB and LG approved of was different to what was occurring. The difficulty I have with this submission is that both LB and LG observed DR massaging C when he was only wearing his underwear, and while in respect of the March 2018 occasion LB did ask what was happening, DR was not told to cease massaging C, either completely, or with only his underwear on.
Concerns regarding reliability of C's evidence
Having reflected on the matters raised above, and having regard to the entirety of the evidence, the following matters give me cause for concern in respect of the reliability of C's evidence as to the conduct alleged against DR the subject of the charged offence:
1.S not observing the alleged conduct, in circumstances where I am satisfied that:
(a)it is likely that if the offending occurred in the manner alleged by C, S would have observed the offending behaviour, either at the time it was initiated, or by being drawn to observe it by reason of C's loud request for DR to stop; and
(b)if S had observed the alleged offending behaviour, she would have taken steps to intervene to protect C.
2.The differences in C's evidence given in the interview, and in his pre-recorded evidence, regarding whether or not he was wearing underwear during the alleged incident.
3.My impression of C's motioning during his interview of DR's alleged acts is that they are more consistent with the general massaging of his body as opposed to the massaging of his penis and his testicles, and squeezing of his testicles.
4.That C did not make any complaint to LB during, or shortly after, their conversation in respect of the March 2018 massage.
5.That C did not make any complaint to S after she told C that she had told DR to stop massaging a particular area in proximity to her bottom.
The matters set out at points 1, 2 and 3 of [130] are directed to substantive aspects of the alleged offending. Point 1 addresses the unlikelihood that S would not have observed the alleged conduct. Point 2 addresses what I consider to be a substantial inconsistency between C's description of the alleged event as given in his interview and in his evidence. Point 3 addresses C's visual demonstration of the alleged conduct, which I consider to be more consistent with massaging of a general nature, as opposed to the alleged conduct.
The matters set out at points 4 and 5 of [130] are directed to delay in complaint. The reason I consider point 4 to be of significance is because of the circumstances and content of C's discussion with LB as I have set out at [76], [116] and [117]. The circumstances are directly related to DR massaging C. The content of the conversation was to the effect of LB asking C if there was anything about the massage that made him feel uncomfortable, LB using the conversation as an opportunity to emphasise for C the importance of him telling her if any one touched his penis.
I consider point 5 to be of significance because of C's evidence of its proximity to the alleged incident and further, C's close relationship with S.
Overall, the combination of the matters set out at [130] causes me to have a reasonable doubt as to the reliability of C's evidence as to DR's alleged conduct the subject of the charged offence. This causes me to have a reasonable doubt as to whether DR engaged in the conduct the subject of the charged offence.
For these reasons, I am not satisfied beyond reasonable doubt that DR engaged in the conduct the subject of the charged offence. Accordingly, I find DR not guilty of the charged offence and I will enter a judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CM
Associate to Judge Lemonis21 JULY 2020
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