The State of Western Australia v Impicciatore - [2017] WADC 144

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: THE STATE OF WESTERN AUSTRALIA -v- IMPICCIATORE [2017] WADC 144

CORAM: HERRON DCJ

HEARD: 31 OCTOBER & 1 NOVEMBER 2017

DELIVERED : 7 NOVEMBER 2017

FILE NO/S: IND 1979 of 2016

BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ALFRED JOHN IMPICCIATORE

Catchwords:

Criminal trial - Trial by judge alone - Sexual penetration of a child of or over the age of 13 years and under the age of 16 years

Legislation:

Criminal Code s 319(1), s 321(2), s 321(9)
Criminal Procedure Act 2004 (WA) s 118, s 119, s 120

Result:

Accused convicted

Representation:

Counsel:

The State of Western Australia : Mr J C Whalley
Accused: Mr J D Hawkins

Solicitors:

The State of Western Australia : Director of Public Prosecutions
Accused: J D Hawkins & Associates

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

Allami v The State of Western Australia [2013] WASCA 230
Dodd v The State of Western Australia [2014] WASCA 13
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Newhill v The State of Western Australia [No 2] [2015] WASCA 121
The State ofWestern Australia v Yerkovich [2004] WASC 62
The State of Western Australia v Williams [2015] WASC 347

HERRON DCJ: Alfred John Impicciatore (the accused) is charged by an indictment dated 19 May 2017 with four counts of sexual penetration of a named child of or over the age of 13 years and under the age of 16 years on a date unknown between 6 March 2015 and 13 March 2015 at Butler.
A fifth count, which alleged the accused was in possession of child exploitation material on 14 May 2015, was discontinued by the State and that (former) count has played no part and has been ignored by me in reaching the decision I have.
On 3 October 2017 Eaton DCJ ordered that the trial of the charges on the indictment be by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
The trial before me commenced on 31 October 2017. Mr Impicciatore was arraigned on the first four counts on the indictment. He pleaded not guilty to each of the four charges.
The charges on the indictment read:
(1)On a date unknown between 6 March 2015 and 13 March 2015 at Butler, Alfred John Impicciatore sexually penetrated [the child], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.
(2)On the same date and at the same place as count (1), Alfred John Impicciatore again sexually penetrated [the child], a child of or over the age of 13 years and under the age of 16 years, by penetrating her mouth with his penis.
(3)On the same date and at the same place as count (1), Alfred John Impicciatore again sexually penetrated [the child], a child of or over the age of 13 years and under the age of 16 years, by engaging in cunnilingus.
(4)On the same date and at the same place as count (1), Alfred John Impicciatore again sexually penetrated [the child], a child of or over the age of 13 years and under the age of 16 years, by penetrating her vagina with his penis.
Throughout these reasons I will refer to the complainant as 'the child' so that she cannot be identified. I will also refer to the names of people or places referred to in the evidence in such a way that the child is unable to be identified. So, for example, where I refer to the child's father, I will simply refer to him as 'the father'.
After the accused was arraigned, counsel for the State and counsel for the accused delivered brief opening addresses. Counsel for the State explained it was the State case that the accused, Mr Impicciatore, committed the offences with which he is charged on one day in March 2015 at the house in which the child was living with her father at an address in Butler. The offending occurred on a Friday night in March 2015 after Mr Impicciatore went to the house to socialise with the father. Counsel for the State explained during his opening that to prove each of the counts on the indictment the State principally relied upon the accused's admissions to the offending in his record of interview with police conducted on 14 May 2015 and acknowledged there are inconsistencies between what the child, in her child assessment interview on 8 April 2015, said happened and what Mr Impicciatore told police in the recorded interview.

Legal principles applicable to trial by judge alone

I respectfully adopt the summary of the relevant principles which guide me throughout this trial sitting as a judge alone without a jury as explained by Martino J in The State of Western Australia v Williams [2015] WASC 347 [7], as follows:
Section 119 of the Criminal Procedure Act requires me to apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. If any written or other law requires information or a warning or instruction to be given to the jury in certain circumstances or prohibits a warning from being given to a jury in certain circumstances, then I must take that requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120 allows me to make any findings and give any verdict that a jury could have made or given if the trial had been before a jury and requires me to include in my judgment the principles of law that I have applied and the findings of fact on which I have relied.
As I have noted, there are four offences with which Mr Impicciatore has been charged in this trial. I must look at each charge separately and make a decision on each charge separately. When I am considering whether the State has proved a charge, I consider only the evidence that is relevant to that charge. My verdicts do not have to be the same on each charge. If I find Mr Impicciatore guilty of one charge, it does not follow that he is guilty of another charge.
The burden of proving each of the charges is on the State. The standard to which the State must prove each charge is beyond reasonable doubt. I cannot deliver a verdict of guilty on a charge unless the State has proved each and every element of the offence charged beyond reasonable doubt. Beyond reasonable doubt is a high standard. It is the highest standard known to the law. If I have a reasonable doubt on a charge, then my verdict on that charge is not guilty. In these reasons, whenever I refer to the State being required to prove something, I am referring to the requirement that the State prove that thing beyond reasonable doubt.
When I am considering the evidence, I must remember that Mr Impicciatore is presumed to be innocent of the charges against him. Mr Impicciatore does not have to prove anything The only way that the presumption of innocence can be removed is if I am satisfied beyond reasonable doubt that evidence has been produced in this trial which proves that Mr Impicciatore is guilty of the charge that I am considering.
I must consider the evidence dispassionately. I cannot allow myself to be influenced by prejudice or by sympathy.
When I consider the evidence, I must not guess or speculate or look for theories not supported by the evidence. However, I may draw inferences from facts. Because this is a criminal trial and the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubt, before I draw an inference against him, I must be satisfied that it is the only inference that is reasonably available. In considering whether to draw an inference against Mr Impicciatore, I do not consider the facts in isolation, but I consider them as a whole to determine whether the inference is the only inference reasonably available.
Mr Impicciatore did not give evidence in this trial. It is his right not to do so. No adverse inference can or should be drawn against him from his exercising that right. It is a right we all have and if whenever we exercised it an adverse inference was drawn against us, it would mean that the right had no value. The fact that he did not give evidence, or call evidence, proves nothing one way or the other. The question for me to consider on each of the charges is whether, on all the evidence before me, the State has proved the charge beyond reasonable doubt.
I only deliver a guilty verdict if on all the evidence the State has proved the charge beyond reasonable doubt. If I have a reasonable doubt as to whether Mr Impicciatore is guilty or not guilty, then it is my duty to find him not guilty.
Mr Impicciatore participated in an interview with police, which was recorded on DVD. He did not have to but he elected to do so. The DVD of the interview was played during the trial and was tendered as an exhibit. The interview with Mr Impicciatore was conducted on 14 May 2015.
At the beginning of the interview Mr Impicciatore was cautioned, that is, he was told he did not have to say anything if he did not wish to do so and anything he did say would be recorded on camera and could be used in evidence. He was also told he could answer some questions and not others. Thereafter, during the interview Mr Impicciatore was asked questions or propositions were put to him.
What Mr Impicciatore said in the interview is part of the evidence that I must consider in this case in deciding whether or not the State has proved the charges beyond reasonable doubt. I cannot find an issue against Mr Impicciatore if what he said during the interview about that issue has given rise to a reasonable doubt on the issue.
The questions asked by the police officers or the propositions put to Mr Impicciatore by them are not evidence. It is only Mr Impicciatore's answers to the questions which is the evidence. Similarly, any statements made by a police officer, or propositions put to Mr Impicciatore by a police officer, during the interview as to what the police officer did or did not believe is not evidence. A police officer's belief in relation to a particular issue is irrelevant to my determination of whether the State has proved the charges to my satisfaction beyond reasonable doubt. So, for example, when Senior Constable Edmonds put to Mr Impicciatore that he was testing the waters to see what they knew (AJI Interview page 18) and that they had been misled once or twice today (AJI Interview page 19), or when Senior Constable Wynen put to Mr Impicciatore that she suspected he knew more than he said earlier in the interview (AJI Interview page 28), or that he was holding back on her (AJI Interview page 31), I disregard such matters because those views or beliefs put to Mr Impicciatore by the police officers are not evidence. I emphasise the statements put to Mr Impicciatore by Senior Constable Wynen are not evidence and I disregard them. Although in his verbal responses and in his reactions Mr Impicciatore appeared to be distressed by what was put to him, he did not accept what was put to him.
If Mr Impicciatore did not agree to, or in some way accept, the content of a question asked of him or a proposition put to him, the question or proposition does not become evidence against him and I disregard it.
When (AJI Interview page 35) Senior Constable Wynen put to Mr Impicciatore the following matters, I disregard them because they are not evidence:
S/CON WYNEN:   Freddy, we’re talking about a thirteen year old kid.
IMPICCIATORE: Fuck, you just spun me out.
S/CON WYNEN:   I know.
IMPICCIATORE:   Fuck.
S/CON WYNEN:   But I'm going to lay it on the line for you.
IMPICCIATORE:   Ah, god.
S/CON WYNEN:   We're talking about a thirteen year old kid that's getting prostituted out by her father.
IMPICCIATORE: Fuck.
S/CON WYNEN:   That's the bottom line here. Alright. So now ‑ ‑ ‑
IMPICCIATORE:   Just fucking [indistinct].
S/CON WYNEN:   I'm going to give you a break ‑ ‑ ‑
IMPICCIATORE:   Fucking hell.
S/CON WYNEN:   And just give you time to process that. So 8:33. We'll just have a little break.
However, Mr Impicciatore's reactions and how he responded to the statements are evidence which I can take into account when considering whether the State has proved the charges beyond reasonable doubt.
Further, if Mr Impicciatore did not respond to a question asked of him or a proposition put to him, it was his right not to respond as was made clear by the police officers by giving him the caution and telling him he did not have to say anything to police. Also, at times during the interview Mr Impicciatore responded 'No comment' to questions asked of him. It was Mr Impicciatore's right not to answer some of the questions asked of him by police or offer no comment. I do not draw an inference against him from his exercising his right not to answer questions asked of him by police. The fact that Mr Impicciatore elected not to answer some of the questions asked of him by police during the interview proves nothing one way or the other.

The elements of the offences – what the State must prove

Each of the four counts on the indictment contain the same allegation. They allege an offence against s 321(2) of the Criminal Code. To prove each count on the indictment the State must prove the following elements beyond reasonable doubt.
The first is identity, that is, the State must prove that the person who did the things that the State says constitutes the offence was the accused, Mr Impicciatore, and not someone else.
Secondly, the State must prove that on each occasion alleged in counts 1 to 4 that the accused, Mr Impicciatore, sexually penetrated the child.
Sexual penetration can take many forms:
1.Count 1 alleges the accused sexually penetrated the child by penetrating her vagina with his penis.
2.Count 2 that he sexually penetrated the child by penetrating her mouth with his penis.
3.Count 3 that he sexually penetrated the child by engaging in cunnilingus.
4.Count 4 that he sexually penetrated the child by penetrating her vagina with his penis.
The expression 'to sexually penetrate' is defined in s 319(1) of the Criminal Code (the Code) as:
to sexually penetrate means —
(a)to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with —
(i)any part of the body of another person; or
(ii)an object manipulated by another person,
except where the penetration is carried out for proper medical purposes; or
(b)to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body; or
(c)to introduce any part of the penis of a person into the mouth of another person; or
(d)to engage in cunnilingus or fellatio; or
(e)to continue sexual penetration as defined in paragraph (a), (b), (c) or (d).
Therefore, in summary, the law is that if a person penetrates the vagina of another person with any part of his body, he sexually penetrates that person. Any degree of penetration of the outer lips of the vagina is sufficient. Vagina is used in a non‑technical way.
To sexually penetrate also means to introduce any part of the penis of a person into the mouth of another person.
To sexually penetrate also means to engage in cunnilingus or fellatio.
Thirdly, the State must prove that at the time that Mr Impicciatore sexually penetrated the child she was of or over the age of 13 years and under the age of 16 years.
I need to be satisfied beyond reasonable doubt that at the time of the alleged penetration the child was of or over the age of 13 years and under the age of 16 years. Each of the counts alleges the accused sexually penetrated the child on a date unknown between 6 March 2015 and 13 March 2015. The child's birth certificate (exhibit 4) states she was born on 24 November 2001. She was thereafter aged 13 when the offences are alleged to have occurred.
During his record of interview with police conducted on 14 May 2015 Mr Impicciatore said the father told him the child was 17 and that he, Mr Impicciatore, thought she was 17 (AJI Interview pages 23 – 24). It is not a defence to the charges that Mr Impicciatore believed that the child was of or over the age of 16 years. By s 321(9):
(9)Subject to subsection (9a) it is a defence to a charge under this section to prove the accused person —
(a)believed on reasonable grounds that the child was of or over the age of 16 years; and
(b)was not more than 3 years older than the child.
Mr Impicciatore was clearly more than three years older than the child and therefore it is not a defence to the charge that Mr Impicciatore may have believed the child was over the age of 16 years. While I accept that the father may well have told Mr Impicciatore the child was aged 17, I do not accept Mr Impicciatore's explanation to police he believed she was aged 17, but because, as I have just explained, Mr Impicciatore's belief as to the age of the child is irrelevant to the matters which the State must prove, it is unnecessary for me to resolve that issue in this trial.
Also, the State does not have to prove that the child did not consent to the sexual activity alleged. That is, because by s 321 of the Code the law prohibits the sexual penetration of a child of or over the age of 13 years and under the age of 16 years whether the child consents or not.
Before I move on, I note that the date and place of the alleged offences are specified because the State is required to identify the occasion on which the alleged offences are said to have occurred with sufficient detail to enable Mr Impicciatore to meet the charges brought against him. The State does not have to prove beyond reasonable doubt that the offences were actually committed during the date period and at the place specified in the indictment.
The place where the offences are alleged to have occurred is Butler because that is where the house in which the child lived with her father is situated. The offences are alleged to have occurred at the house during a single occasion when the accused visited the house on a Friday night in March.

The evidence

Child assessment interview – 8 April 2015

The State led evidence from the child in the form of a child assessment interview conducted with her on 8 April 2015. I was informed by the prosecutor that the interview was not the only interview of the child by police. Police interviewed her in relation to allegations she had been abused by a number of different men.
In the child interview, which was played as part of the State case, the child describes a man alternately as the first man or the chubby man and the bouncer. She also referred to him as the man with the black Chihuahua (Child Assessment Interview pages 13 – 15, 19) (CAI). She could not remember the man's name. It is the State case that the man described by the child is the accused. At the date of the interview the child was aged 13. At the beginning of the interview the interviewer referred to 'the last time we spoke' (CAI page 3), which I am satisfied is a reference to an earlier interview with the child.
Throughout the interview the child talked about two different men, one of them being the man she described as chubby and another man, who she variously described as the massage guy or Joe Black, and later David, and who she described as having a type of beard which she indicated as a beard on the chin and the upper lip.
Throughout the interview the child was very quietly spoken and it was sometimes difficult to properly hear her. However, I am satisfied that with the assistance of the transcript, the accuracy with which defence counsel takes no issue, and which I am satisfied is also accurate (unless otherwise stated), I have heard and understood the evidence that the child gave during the child assessment interview.
She referred to the last time a person came to her house and something happened. She said she did not remember his name. When he came they watched TV and talked, which I accept is a reference to the man and her father. They – he - then took her into the bedroom and had sex with her. She took a shower and got dressed and went to the bedroom where the man told her to get undressed and he lay down on the bed and then got on top of her and had sex with her for about half an hour before getting dressed and talking to her father for a bit and then he left (CAI pages 3 – 5). She described the man having sex with her by telling her to get into different weird positions. He put his thing inside her, his penis, into her vagina. He did that for about half an hour. After he got dressed and talked to her father she fell asleep. It happened with that man just the once.

She is then asked to tell the interviewer about another time something happened at the house and then talks about a massage guy. She said about a month ago he started threatening her father about going to the cops and that if he did not get what he wanted he would do something. She then described him wanting a blow job and then he would leave. He said he wanted her and her dad blindfolded. Her father would be in the room blindfolded against a wall and then the man would leave. She repeated on a number of occasions that he was threatening her father and he was demanding. He told her to sniff stuff which made her feel woozy. He wanted to do stuff with her as long as she was blindfolded (CAI pages 6 – 7). She went on to describe further sexual activity with that man, including setting up a camera so that photographs could be taken of him (CAI page 11).
She later described that, because that man was threatening to come again, her father phoned the man that she first talked about, the man whose name she did not know. She described him as chubby and really bulky. She did not remember his face because she did not look at it (CAI page 13). She knew he had a black Chihuahua (CAI page 14). She later described him as a bouncer or something who worked at a club. He was chubby and had a round face. She repeated that something had happened with that man just the once (CAI page 15). She repeated that he was on top of her having sex with her (CAI page 16).
Later in the interview the interviewer returned to the chubby guy and asked the child how she knew that he had a black Chihuahua. The child explained that the man saw her dog, which was a Chihuahua, and told her that he had one as well. She said she met that man about one to two months ago. She explained that her father got that man because he wanted someone else to back him up because her father wanted to get rid of the massage guy (CAI page 19). She said that the man had sex with her in her father's bedroom. There was just the man, herself and her father. She described her father as making sure she was okay like the last time, that he always makes sure that she is okay and that the man was not too rough or too violent against her (CAI page 20). Her father was calming her down and making sure the men were not too violent or rough. Her father was in the bedroom when it was happening. In response to a question, she confirmed the man had sex with her for about 30 minutes and said that he came on her belly on the bed in her father's bedroom (CAI pages 21 – 22).
The defence did not seek to have the child cross-examined.

Police record of interview – 14 May 2015

The State also played and tendered into evidence the accused's recorded interview with police conducted on 14 May 2015 (exhibit 2). The interview was conducted over about three hours commencing at 7.47 pm and concluding at 10.45 pm.
In the initial part of the interview Mr Impicciatore admitted he knew the child by her middle name. He also knew her father. He met the father through the KIK application. The father told him he was getting hassled by a man.
Mr Impicciatore explained that he advertised on the internet through the KIK app looking for girls or women, which is how he was contacted by the father (AJI Interview pages 6 – 7).
When the police officers started to ask Mr Impicciatore more details about the communication between him and the father, Mr Impicciatore was clearly uncomfortable and asked to get back to that (AJI Interview page 7).
Mr Impicciatore went on to explain that the father told him he was getting hassled by a person and was looking for someone to give him a hand. The father did not tell him what he was getting hassled about. He was contacted by the father in about January or February of 2015 (AJI Interview pages 9 – 10). Mr Impicciatore did not help the man and the man stopped communicating with him before later again contacting him through KIK (AJI Interview pages 10 – 11). The man contacted him about two weeks after the first time they had communicated (AJI Interview page 12). He said he last heard from him about four weeks ago (AJI Interview page 12). He called Mr Impicciatore on his mobile phone, on Mr Impicciatore's old phone (AJI Interview pages 12 – 13). The father said he had got into some trouble and needed someone to talk to and wanted Mr Impicciatore to come over to his place (AJI Interview page 14). Mr Impicciatore said he knew he had a daughter, and he knew her by her second name which he referred to in the interview (AJI Interview page 15).
At this point in the interview Mr Impicciatore said he was nervous and requested a cigarette. There was then a break in the interview from 8.16 pm to 8.21 pm (AJI Interview pages 19 – 20).
When the interview resumed, Mr Impicciatore agreed that about three or four weeks before he had changed his phone. He said he damaged his phone because he ditched it after a fight with his lawyer (AJI Interview page 22). That was apparently after the father had telephoned Mr Impicciatore and said he was in trouble but did not tell him why (AJI Interview page 22).
Mr Impicciatore said that the father lived in the northern suburbs and invited him to his house. The father said the child was aged 17. Mr Impicciatore said he thought she was 17 because the father told him she was 17 (AJI Interview pages 23 – 24).
The police officers then asked Mr Impicciatore whether he was now aware the child had recently turned 13 and, after a long pause, he reacted by saying 'Wow'. He struggled to respond to the police questioning. When asked whether he wanted a break, he said 'No, I'm good'. He said he was shaking but to keep going (AJI Interview page 24).
He then responded 'No comment', to a series of questions (AJI Interview page 25).
Senior Constable Wynen, in what appears to be to some extent in anger or frustration, said to Mr Impicciatore 'We're talking about a 13‑year-old kid', to which Mr Impicciatore responds 'Fuck, you just spun me out'. Senior Constable Wynen then said that they are going to lay it out on the line for him and said 'We're are talking about a 13-year-old kid that's getting prostituted out by her father', to which Mr Impicciatore appears quite uncomfortable (AJI Interview page 25) (I have earlier set out this extract from the interview at [21] above). A further break was then taken for about nine minutes.
After the break Senior Constable Wynen put to Mr Impicciatore the allegation that they had information that Mr Impicciatore had had some sexual contact with the child (AJI Interview page 26). Mr Impicciatore responded that he was trying to digest what he had been told and would like to write a statement. The police officer again repeated that her information was that he had sex with the child at her home address. It is apparent that Mr Impicciatore becomes increasingly uncomfortable and awkward and was reluctant to respond directly to the police questioning. He appeared unsettled and rattled. There are increasingly longer pauses between the questions and the answers by Mr Impicciatore.
Senior Constable Wynen later asked Mr Impicciatore how it ever became an issue that the child would have sex with him. Mr Impicciatore said that when he spoke to the father on KIK the father was talking about sex and asked him to come over and help sort out a problem. The father said he was getting blackmailed by another man (AJI Interview page 28).
The father said the child was 17 and he was having a thing with her. At this stage Mr Impicciatore agreed he was getting stressed and asked to let him pass on a question after the police officers asked him to tell them what had happened and to let him 'digest this shit' (AJI Interview page 30).
He said the father sent one photograph of the child showing her legs and backside as she was laying down. The father said it was his daughter (AJI Interview page 30). The father sent the photograph via KIK. It was sent at the beginning of March during the second time that the father contacted Mr Impicciatore (AJI Interview page 30).
Mr Impicciatore agreed that he had seen the father touch his daughter sexually and said he wanted to write that down (AJI Interview pages 31 ‑ 32). He was, in my view, clearly uncomfortable at this point in responding to the police questions and talking about whether the father had touched the child sexually (AJI Interview page 32). Mr Impicciatore requested to have some time to himself and there was a further break for 30 minutes from 9.16 pm to 9.46 pm (AJI Interview page 33).
Following the break Mr Impicciatore appeared more able, or ready, to answer the police questions. He had little hesitation or difficulty in telling police what he saw the father do to his daughter, the child. He said the father was touching the child's breasts and navel and kissing her and then had intercourse with her, which went on for about 10 minutes. The sexual activity happened in the bedroom (AJI Interview page 33). It was around Easter. It was a Friday (AJI Interview pages 34 – 35). It was 6 or 13 March. He knew it was a Friday because it was the end of the week. He came to the house at about 8.00 pm (AJI Interview page 35).
The father kissed the child over her body while Mr Impicciatore was in the bathroom standing and watching. The father had sex with the child with him on top and her on the bottom for about 10 minutes, Mr Impicciatore then left the room and went into the kitchen. The father later followed Mr Impicciatore into the kitchen and wanted him to make plans and have a sleepover. The father spoke about having sex with his daughter, the child, and was trying to justify it. The father then asked Mr Impicciatore whether he wanted to come and have sex or come and watch.
Mr Impicciatore said that the child had a mask like a sleep mask, one of those airline things (AJI Interview pages 37 – 38).
Mr Impicciatore said about three hours elapsed from the time that they were in the lounge room before moving into the bedroom. The father showed Mr Impicciatore three photos of the other man who he said was hassling them, who was described as South African, with the child. The man had a beard (AJI Interview pages 40 – 41). The man was having sex with the child in the photos (AJI Interview pages 42 – 43).
Mr Impicciatore said that the child went into the room first with her father and then they called him in. When he went into the bedroom, the child was naked. The father became naked as soon as they went into the bedroom. Mr Impicciatore also became naked. The father then gave Mr Impicciatore a gel to arouse him (AJI Interview page 45). Mr Impicciatore then explained that the father was not having sex with the child at that stage and they had not started having sex. The father and the child were just laying on the bed and Mr Impicciatore got onto the bed with them and there was then some canoodling. Mr Impicciatore described the situation as weird and the father wanted a third person to get involved (AJI Interview page 47). The child was laying in the middle of the father and Mr Impicciatore. Mr Impicciatore was on the bathroom side. Mr Impicciatore described a set routine between the father and the daughter and the father telling her to do stuff. The daughter then put a mask over her face.
When the police officers put to Mr Impicciatore that that was when the father had sex with her, Mr Impicciatore replied 'No'. At this point Mr Impicciatore was clearly agitated, uncomfortable and awkward and found it difficult to answer the police questions. However, he had no hesitation in continuing to answer the police questions and correcting the answer implicit in the question, that that was when the father had sex with the child. The denial that the father had sex with the child when she put the mask on must be considered in the context of the earlier answers of Mr Impicciatore in which he spoke about witnessing the father having sex with the child. The police officers then asked Mr Impicciatore to 'fill the gap in'. Mr Impicciatore struggled to respond to the question. He requested a glass of water and the recording of the interview continued without any further questions being asked for a short period of time while Senior Constable Wynen left the room and returned with a glass of water. During that time Mr Impicciatore appeared to be considering how to answer the police questions and what he was prepared to tell them. He was asked 'Who had sex with [the child] first' and readily told police that the father had sex with the child. When he was further questioned about what the father did, he readily explained what the father did to the child. The father described how beautiful the child was and (AJI page 49):
… he was referring to me or to others or past or future. He was referring to, um, you know, like being, you know, doing it on a regular basis and being like best mates and, and all that sort of stuff. And it was, ah, kind of weird. It was really weird. Yeah. It was strange and he was, ah, I don’t know what, what he meant to do, for me to put, yeah. I'm not quite sure if she did or he did. They put, she put headphones on to listen to music.
Mr Impicciatore next told police that the father was talking to the child, who could not hear him because she had the headphones on, and asked her to turn the volume down and then he was coaching her. Senior Constable Wynen then asked 'And then what happened'. There was a long pause while Mr Impicciatore considered the question and reviewed what he had written on a sheet of paper. Senior Constable Wynen next asked what happened after the child had the mask and headphones on. Mr Impicciatore initially responded 'I can't even say it' (AJI pages 50 – 56).
Senior Constable Wynen later put to Mr Impicciatore what she said the child had told the police, that Mr Impicciatore had had sex with her for about 30 minutes, putting her into lots of different positions and then ejaculated on her stomach. The questioning and answers proceeded as follows:
S/CON WYNEN:   Do you want me to tell you what [the child] told us? She said that you had sex with her for about thirty minutes and that you put her in lots of different positions. And then you ejaculated on her stomach.
IMPICCIATORE:   No, I had a condom.
S/CON WYNEN:   Okay. So aside from your ejaculating, do you disagree with what she's saying?
IMPICCIATORE:   Fuck. I can't believe that [indistinct].
S/CON EDMONDS:   Did you run into the bathroom after you ejaculated?
IMPICCIATORE:   I didn't run to the bathroom.
S/CON EDMONDS:   Well, to the bathroom that was there, did you go into the bathroom after you'd finished?
IMPICCIATORE:   Yes.
S/CON EDMONDS:   Yeah. What ‑ ‑ ‑
IMPICCIATORE:   Yeah. Because ‑ ‑ ‑
S/CON EDMONDS:   What was the purpose of that?
IMPICCIATORE:   To flush the condom.
S/CON EDMONDS:   Okay. Yeah. Because that was the other thing that we, she recalled was that, she said that you ran off into the bathroom pretty soon after, that you got off and ran.
IMPICCIATORE:   I didn't run.
S/CON EDMONDS:   Either ran or ‑ ‑ ‑
IMPICCIATORE:   Like ‑ ‑ ‑
S/CON EDMONDS:   Left.
IMPICCIATORE:   I, I think I've left [indistinct].
S/CON EDMONDS:   Yeah, yeah.
IMPICCIATORE:   [indistinct] sex with her.
S/CON EDMONDS:   Yeah.
IMPICCIATORE:   [The father] wanted to do what he wanted to do.
S/CON EDMONDS:   Sorry. [The father] went after you. Was that ‑ ‑ ‑
IMPICCIATORE:   Yeah.
S/CON EDMONDS:   By, by what you've just said.
IMPICCIATORE:   Pretty much.
S/CON EDMONDS:   Pretty much?
IMPICCIATORE:   He was coaching her, ah, just [indistinct] and ‑ ‑ ‑
S/CON WYNEN:   So that's, I guess that would be my next question. So the positions that [the child has said you're, that you're putting her in several different positions, is that, was that your initiative or was Shaun telling you ‑ ‑ ‑
IMPICCIATORE:   He, he m-, made her get on top. And then he started talking about her, um, what do you call it, a better word, vagina.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   And, um, he's just said, um, 'Why don't you give like oral or fellatio of ‑ ‑ ‑'
S/CON WYNEN:   Mmhmm.
IMPICCIATORE:   F-, um, cunnilingus. And, um, so she turned around and he was like over the top of us and touching her and, mmm, rubbing her bum and all that sort of stuff and looking. And, and, ah, and then, um, she got off and then, ah, I think, ah, she may have turned on her side and I was on my side as well. And, and that was that.
S/CON WYNEN:   So what position were in when you ejaculated?
IMPICCIATORE:   Ah, side, I think. Side.
S/CON WYNEN:   Yeah. Alright. So you said that to start with [the father] made her get on top of you.
IMPICCIATORE:   Yeah.
S/CON WYNEN:   So you were on your back and ‑ ‑ ‑
IMPICCIATORE:   Yeah.
S/CON WYNEN:   She sat on top of you?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   And you had sex with her like that?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   How long do you reckon you were in that position for?
IMPICCIATORE:   Mmm. Ten, ten minutes maybe.
S/CON WYNEN:   So again, I guess out of curiosity given the age of the child that we're talking about ‑ ‑ ‑
IMPICCIATORE:   Ah, fuck.
S/CON WYNEN:   Did, like did [the child] move her body to please you or did you have to move her? Or did [the father] direct her?
IMPICCIATORE:   Um, I don't really know to be honest. Um, hem yeah. Um, I don't really know. Fuck.
S/CON WYNEN:   Well, was there enough movement for you to sustain an erection during that ten minutes?
IMPICCIATORE:   Mmm. Yes.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   Yeah [indistinct].
S/CON WYNEN:   Okay. Because you'd think if she's just sitting there with ‑ ‑ ‑
IMPICCIATORE:   I do, yeah, yeah. It is, it's like, yeah, it wouldn't be nice.
S/CON WYNEN:   No.
IMPICCIATORE:   No.
S/CON WYNEN:   Alright. So it was sexually arousing. It was enough movement and contact going on ‑ ‑ ‑
IMPICCIATORE:   Yeah.
S/CON WYNEN:   That you stayed erect while you were in the, um, in that position.
IMPICCIATORE:   I can't believe I'm talking about this.
S/CON WYNEN:   I know. But we talk about it every day so we probably get ‑ ‑ ‑
IMPICCIATORE:   Fuck.
S/CON WYNEN:   A bit flippant about the terminology. So you said that she was on top of you for about ten minutes. You're having intercourse like that. And by intercourse I m-, let's just clarify because that's a technical thing. You, your penis was in her vagina.
IMPICCIATORE:   Apparently so.
S/CON WYNEN:   Yeah. Alright. And then you said that [the father] encouraged her to spin around ‑ ‑ ‑
IMPICCIATORE:   Yeah.
S/CON WYNEN:   And for you to perform cunnilingus on her.
IMPICCIATORE:   Yeah.
S/CON WYNEN:   So do I take that to mean she turned so she was, had her bum in your face?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   And you licked her vagina?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   Yeah. For how long?
IMPICCIATORE:   Well, he was, um, so I was on the bottom. She was in between and he was on the top and rubbing her bum and watching and ‑ ‑ ‑
S/CON WYNEN:   So was she sort of still sitting on you but bent forward, or was she laying?
IMPICCIATORE:   Mmm.
S/CON WYNEN:   Like how was the position of that?
IMPICCIATORE:   Ah, she was like, ah, nah, nah. She was like, um, on her knees.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   Like it looked like, on her hands and ‑ ‑ ‑
S/CON WYNEN:   Yeah.
IMPICCIATORE:   On her knees.
S/CON WYNEN:   So when you say [the father] is over the top of her was he still standing above her?
IMPICCIATORE:   No, he was on the bed and he was like, well, mmm. He was watching and oohing and ahhing, and ‑ ‑ ‑
S/CON WYNEN:   Okay.
IMPICCIATORE:   Yeah.
S/CON WYNEN:   So he's still actively touching and ‑ ‑ ‑
IMPICCIATORE:   Oh, yeah, yeah.
S/CON WYNEN:   Carrying on? Yeah.
IMPICCIATORE:   Yeah. He was like, you know ‑ ‑ ‑
S/CON WYNEN:   Participating, we'll say.
IMPICCIATORE:   That'll do.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   For a better word.
S/CON WYNEN:   So although you're the one doing the actual, you know, at this stage you're the one having direct contact with her vagina, he's still participating.
IMPICCIATORE:   Yeah. That's ‑ ‑ ‑
S/CON WYNEN:   I'm assuming maybe fondling her breasts and all that.
IMPICCIATORE:   Yeah. He was sticking his hands on her vagina and all that sort of stuff, so ‑ ‑ ‑
S/CON WYNEN:   Yeah. And then you said it went from that to, um ‑ ‑ ‑
IMPICCIATORE:   Side to side.
S/CON WYNEN:   [The child] laid on her side.
IMPICCIATORE:   Yeah.
S/CON WYNEN:   And you're on your side?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   And you had sex with her again like that?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   For how long do you reckon?
IMPICCIATORE:   Yeah. Like five, five, seven minutes, five minutes or something.
S/CON WYNEN:   And why did that stop?
IMPICCIATORE:   Because I had an orgasm in the condom.
S/CON WYNEN:   Yeah. Okay. So you ejaculated in your condom. So did you take a condom with you?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   Or, okay. Is that, do you always carry condoms on you?
IMPICCIATORE:   No, they had them.
S/CON WYNEN:   Sorry.
IMPICCIATORE:   They had them.
S/CON WYNEN:   Oh, they had the condoms?
IMPICCIATORE:   Yeah.
S/CON WYNEN:   Do you remember what kind it was?
IMPICCIATORE:   No.
S/CON WYNEN:   No? That's alright. So at any time during this, did [the child] reciprocate? Did she reciprocate? Did she kiss you back? Did she touch you back?
IMPICCIATORE:   Didn't kiss me, no.
S/CON WYNEN:   No? Like when you were, um, when you were doing cunnilingus on her, like what was she doing? Was she doing anything with her hands?
IMPICCIATORE:   Um, she was performing fellatio on me.
S/CON WYNEN:   Okay. So she was sucking your penis while you were doing that? Yeah.
IMPICCIATORE:   That's what fellatio is.
S/CON WYNEN:   Alright. Mmm. Ed?
S/CON EDMONDS:   No.
S/CON WYNEN:   No? So you ejaculated. You went into the bathroom. And then is that where we get to the bit that you were saying you were standing near the bathroom and ‑ ‑ ‑
IMPICCIATORE:   He, he wanted me to come back and join them.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   And, um, yeah. I was kind of weirded out by the whole, whole thing but, anyway. And, um, he, um, I can't re-, I think he, um, he, ah, ah, he already had a hard on and condom. So, and then he, she was on her back. And then he had missionary with her for a while. I think about ten, ten minutes. Well, what I think of anyway.
S/CON WYNEN:   Yeah.
IMPICCIATORE:   And I went outside into the kitchen. And, and then he came out and he wanted me to stay the night and do it again. And I went, 'Look, I've', I tried to make, you know, it was uncomfortable as it was, you know.

The State tendered a bundle of six photographs (exhibit 5) taken of the bedroom of the father's house which include photographs of the open bedside drawers. The photographs were taken on 1 April 2015 during a search of the house in which the child and father lived. The house is in Butler.
The photographs numbered 2 – 4 show the open bedside drawer on the right side of the bed looking from the foot of the bed. The drawer contains a number of condom wrappers including a number of torn or open condom wrappers. The wrappers are individually labelled. In particular, my attention was drawn to the torn wrapper labelled 'MT11'.
The photographs 5 and 6 show the contents of the open bedside drawer on the left side of the bed. The drawer contains what I accept is a dotted red and white sleeping mask.
To the left of the photograph numbered 1 is what appears to be a bathroom.
The condom wrappers found in the right bedside drawer were seized by police and sent to PathWest for forensic testing. Samples of Mr Impicciatore's, the father's and the child's DNA were also taken. Those samples were sent to PathWest for comparison purposes.
A report dated 2 March 2017 (exhibit 6) analysing the results of the testing for DNA was prepared by a forensic scientist, Ms Louise King. The various items sent to PathWest for testing were tested or analysed by PathWest to determine whether DNA could be recovered from the seized items. As the report explains, there is no expectation that DNA would be found on an item. Whether DNA is recovered from an item depends upon the nature of the surface. DNA is more likely to be recovered from rough abrasive surfaces as opposed to a smooth glossy surface. Whether DNA is recovered also depends upon the strength and duration of contact. Vigorous or prolonged contact increases the likelihood of DNA being deposited on an item.
Whether DNA is able to be recovered also depends upon the environmental conditions surrounding an item. Exposure to harsh environmental conditions such as extreme heat, moisture and UV light can breakdown or degrade DNA so that it cannot be analysed or interpreted.
Also, some persons can deposit a greater amount of DNA on an item than other persons.
DNA is the actual genetic material found in a human being. Your DNA is inherited from parents. You get half from your mother and half from your father. The DNA in your body is the same no matter where you get it from, your skin, your blood or your salvia. Everyone's DNA is unique except for identical twins who have the same DNA. Virtually all cells of a human body contain DNA. In particular, you can recover DNA from skin cells or from salvia, semen or blood.
PathWest use 21 pieces of DNA to analyse a person's DNA profile. The 21^st piece tells a scientist whether a person is male or female.
If DNA is recovered from an item, the DNA is compared to the reference DNA samples sent to PathWest.
The condom wrappers, including the wrapper labelled 'MT11', were received by PathWest on 7 May 2015. From the outside surface of the condom wrapper a mixed DNA profile of four individuals was recovered. Ms King concluded that from that mixed DNA profile the child, the father and the accused, Mr Impicciatore, were all contributors. The likelihood that Mr Impicciatore was a contributor to the mixed DNA profile recovered from the outside surface of the used condom wrapper is greater than 100 billion.
The State also led evidence from Sergeant Wynen, the investigating officer, that this matter was originally listed for trial on 22 May 2017. Sergeant Wynen attended court on that date. Mr Impicciatore failed to appear at the trial and an arrest warrant was issued by the court. Mr Impicciatore was subsequently located in New South Wales and arrested. Sergeant Wynen next saw Mr Impicciatore on 29 May in the Newcastle Court when the court ordered that Mr Impicciatore be extradited back to Western Australia. Sergeant Wynen accompanied Mr Impicciatore on a flight back to Perth. Mr Impicciatore was later remanded in custody, where he has since remained.
In cross-examination Sergeant Wynen was asked whether she was aware that Mr Impicciatore was being threatened by a number of individuals. She said she was not but was made aware Mr Impicciatore had made a complaint, but he failed to attend to provide a statement or any further information about the allegation that he had made.
Sergeant Wynen was also asked whether, during the recorded interview with police, Mr Impicciatore seemed to be suffering from a significant amount of high anxiety and stress. Sergeant Wynen said she felt it was a reasonable and normal amount of anxiety for someone being questioned about these sorts of matters. She thought his reaction was within a healthy range for the situation. He did not hyperventilate or shallow breathe. She did not notice him sweating excessively. She disagreed that Mr Impicciatore was in a very distressed and anxious state during the interview (ts 303 – 304).

Closing submissions

Counsel for the State, Mr Whalley, submitted I can be satisfied beyond reasonable doubt that:
1.from all the evidence that the accused, Mr Impicciatore, only visited the home of the child and her father in Butler once and that Mr Impicciatore is the man described by the child as the chubby man or the bouncer who had a Chihuahua and who only visited the house once;
2.the photograph of the child (exhibit 3) shown to Mr Impicciatore during the record of interview, which Detective Sergeant Wynen confirmed was the child, and which the accused recognised, is of the child;
3.on the basis of the evidence of the child in the child assessment interview during which the child said the man told 'me to get into all these different weird positions' and was doing the same thing, by which she meant having sex (CAI page 4), I can be satisfied Mr Impicciatore had sexual intercourse with her in different positions;
4.that based upon Mr Impicciatore's admissions to police during the record of interview Mr Impicciatore sexually penetrated the child in the ways described in each of the counts on the indictment;
5.that Mr Impicciatore's DNA found on the used condom wrapper (MT11), confirms or corroborates Mr Impicciatore's admission to police that he sexually penetrated the child using a condom;
6.that from Mr Impicciatore's failure to appear at court when these matters were earlier set down for trial on 22 May 2017, and his flight to New South Wales, the only reasonable inference is that he did so out of a consciousness and awareness of his guilt of having committed the offences with which he is charged.
Counsel for Mr Impicciatore, Mr Hawkins, submitted that Mr Impicciatore's answers to the police questioning in the last 20 minutes of the recorded interview, in which he makes admissions that he sexually penetrated the child, are unreliable because he was suffering from significant stress and anxiety, he was tired and cold, and concerned about the questioning and answered the questions as he did only to bring the interview to an end. It is submitted that in those circumstances I cannot be satisfied as to the truthfulness and veracity of what Mr Impicciatore said in the recorded interview. That is, I cannot be satisfied beyond reasonable doubt that what Mr Impicciatore told the police was truthful and reliable and I cannot use what he said as admissions of the offending with which he is charged.
Counsel concedes that if I do accept that what Mr Impicciatore told the police was made voluntarily and was truthful, I would be satisfied beyond reasonable doubt that Mr Impicciatore admitted in the record of interview that he committed these offences and that I can use those admissions to support the State case.
Counsel also pointed to the inconsistency between the evidence of the child, in which she says the man ejaculated on her belly, and what Mr Impicciatore said in the police interview. It is submitted, in effect, that because of that inconsistency what Mr Impicciatore told police is unreliable.
Counsel also highlights what he submits is the lack of detail provided by the child as to the circumstances in which the offending against her by Mr Impicciatore is alleged to have occurred and in particular, there was no mention of her having performed fellatio on the accused and him having performed cunnilingus on her, or used a condom. That is to be contrasted, counsel submits, by the degree of detail provided by the child when discussing how she was offended against by the person she describes as the massage guy.
Counsel conceded that, based upon the earlier part of the recorded police interview, I can accept that Mr Impicciatore made admissions against interest which can be relied upon in support of the State case. So, it is conceded I can accept that based upon Mr Impicciatore's admissions against interest he was contacted by the child's father over the internet via the KIK application on two occasions, that arrangements were made for Mr Impicciatore to visit the father at their home, that Mr Impicciatore became aware the father had a daughter, and the name of the daughter, with whom the father was in a sexual relationship, and that when Mr Impicciatore visited the house he witnessed the father having sex with the child.

Findings

Turning then to each of the three elements of the offences charged which the State must prove beyond reasonable doubt. I have earlier explained what the State must prove.

Identity

In relation to the first element of identity, I am satisfied beyond reasonable doubt that it is the accused, Mr Impicciatore, who is the person who did the things the State alleges constitutes each offence with which he has been charged.
I am satisfied that the person described by the child as chubby, who was a bouncer and owned a Chihuahua, is Mr Impicciatore. Her description of Mr Impicciatore as chubby and with a round face fits, and is consistent with, his appearance before me during the trial. Her description of him as a bouncer is readily understood by the child being told by her father that he was enlisting the help of another man to deal with the other man who was offending against her who she variously described as the massage guy, Joe Black and David. The child also described him as South African (CAI page 33).
The child's evidence is confirmed by what Mr Impicciatore told police in his record of interview. He agreed the girl shown in the photographs (exhibit 3) was the child. He also agreed he remembered her having a small Chihuahua dog and that he also had a black Chihuahua which he discussed with the child (AJI Interview page 62). He agreed that the father had repeatedly told him that the father was being hassled by another man and wanted Mr Impicciatore's help. The father said the man was South African (AJI Interview page 40).
Detective Wynen gave unchallenged evidence that the person depicted in the photograph was the child.
In her child assessment interview, the child is quite clear in differentiating the occasion on which she was offended against by the chubby man and by the other man, the massage guy. When the child assessment interview commences the child is asked to explain the last time something happened which is when, she said, a man talked to her father and watched TV and then had sex with her and left. The man told her to get undressed and to lie down on the bed and he got on top of her and had sex with her for half an hour. He then got dressed and talked to her father for a bit and then left (CAI pages 3 – 4). She later talked about the massage guy and the circumstances of his offending against her. On a number of occasions when the interviewer sought to clarify with the child whether she was talking about the person she started talking about or the massage guy, she consistently clarifies it is the first person about whom she was talking which is the last occasion on which someone came to the house and had sex with her. It only happened the one time. She said the massage guy offended against her more than one time (CAI page 6).
I am satisfied that the first person that the child spoke about, which she said was the last time someone came to the house and had sex with her, is Mr Impicciatore. She has not confused him with the massage guy and has not confused the offending against her by the massage guy with the offending against her by the man who had sex with her on the last occasion, which, as I have just found, I accept is a reference to Mr Impicciatore. The details of the offending against her by the massage guy are quite distinct from the details of the offending against her by the person who offended against her on the last occasion.

Did Mr Impicciatore sexually penetrate the child?

As I have earlier outlined, the State's case against Mr Impicciatore is principally based upon the admissions to the offending the State submits Mr Impicciatore made in his recorded interview with the police. The State therefore needs to satisfy me that what Mr Impicciatore said to police in the recorded interview, especially in the last 20 minutes of the interview, are admissions to the offending which were made voluntarily and that the admissions are truthful and reliable. Although there is no challenge to the last 20 minutes of the police interview on the basis, for example, that the alleged admissions were not made voluntarily or that I should in the exercise of my discretion exclude what was said on the grounds of unfairness, the truthfulness and reliability of what Mr Impicciatore said is challenged.

Admission defined

An informal admission (as distinct from a formal s 32 Evidence Act admission) by words or conduct made by a party is admissible evidence against the party of the truth of its contents. A statement or representation adverse to the maker's case or against the maker's interests is proof of the truth of its contents in both civil and criminal proceedings as an exception to the rule against hearsay. The principle on which admissions are received as evidence against the party making them is that what a party himself admits to be true may reasonably be presumed to be so, especially if it is against his interest: Cross on Evidence (11th Aust ed [33420], [33430], [33440]).
I watched the recorded of interview during the trial before me. In the writing of these reasons for decision I have again watched the recorded interview.
I accept that throughout the interview, which occurred over a period of approximately three hours with regular breaks, Mr Impicciatore was very uncomfortable, unsettled and awkward. He often appeared rattled by the police questions and the matters they were discussing with him. He was cautious about the police questioning and in his answers. At times he appeared reluctant to answer their questions. He became increasingly stressed and anxious. There were frequently long pauses after questions were asked of him, when, in my view, Mr Impicciatore was considering the content of the question and its implications and considering how to answer the question. He was clearly upset and perturbed by what was being discussed, particularly when the police officers informed him that the child was aged only 13 and he emphasises he was told by the father she was 17. In my view, Mr Impicciatore's reluctance to talk and his feelings of discomfort and awkwardness, and his stress and anxiety, are not because he was forced to participate in the interview against his will or because he felt compelled to answer the police questions. I am satisfied he voluntarily participated in the interview and voluntarily answered the police questions. He acknowledged and clearly understood the cautions administered to him at the commencement of the interview. He took the opportunity to speak to a lawyer before participating in the interview. At times during the interview he offered 'no comment' to a question. He clearly understood his rights.
Rather, his demeanour and the obvious difficulties he experienced in answering the questions were, in my view, because of a realisation and appreciation of what he had done and a reluctance and difficulty to think about what he had done and admit it to himself and to talk about it to others. I accept that, to an extent, his stress and anxiety were because of the position in which he found himself and the questions being asked of him, but, to a greater extent, it was because of knowing what he had done and having to face up to it and whether he was prepared to admit to having had sex with a 13-year-old child. It took him time to reconcile with himself what he had done before he was prepared to make full admissions to the police. He was troubled by what he knew he had done and was wrestling with his conscience. Initially, he was reluctant to talk about having witnessed the father having sex with the child, but gradually opened up to police and, after some time, readily explained how he had witnessed the father having sex with the child. However, when he was asked about his involvement, initially he had difficulty in answering the questions. When, in the earlier part of the interview, Senior Constable Wynen said to him 'We're talking about a 13 year old kid', he responds 'Fuck, you just spun me out' and thereafter experiences considerable difficulty in dealing with what is put to him by the police officers leading to a break in the interview (AJI Interview page 25). After the break, when the questioning continued, he said 'I would really love to write all this down. Fuck, fuck, fuck.' He then said 'I don't think it's a moral dilemma. But I don't know' (AJI Interview page 27). Later in the interview just before he made the full admissions to the offending and he is asked to explain what happened after the child had the mask on, Mr Impicciatore responded 'I can't even say it' (AJI Interview page 50).
In my view, the fact that Mr Impicciatore made the admissions towards the end of the recorded interview strengthens the reliability and the truthfulness of the admissions rather than undermine them. They are not something he said to police because his will was overborne or because he wanted to end the interview by telling police what he thought they wanted him to say. He was not confused about what he was being asked and what he answered. Ultimately, his admissions were not made reluctantly. They were made after careful consideration. Nor were they boastful or fanciful, which might undermine the reliability and truthfulness of the admissions. Throughout the interview Mr Impicciatore has gradually opened up to police and gradually been prepared to tell them more about what he knew and what was his involvement with the father and the child. By the time he started to make the full admissions to the offending he had clearly given considerable thought to the questions and whether he was prepared to fully explain his involvement to police.
The fact that he disputed that he had ejaculated on the stomach of the child by saying that he had a condom and that he took issue with the proposition put to him that he ran into the bathroom (AJI Interview pages 50 – 51) reinforce, in my view, the reliability and the truthfulness of his admissions to police. He was not simply accepting what was put to him by police without properly thinking about or considering the questions. He had no hesitation in disputing or disagreeing with certain matters put to him by the police. Further, the fact that he provided greater detail as to the circumstances of his offending than that provided by the child reinforces the reliability and truthfulness of what he told police. Also, the sexual activity he described is consistent with the child's evidence, that he instructed her to get into different weird positions and that the activity occurred over about half an hour and on one occasion only.
I am satisfied beyond reasonable doubt the child was encouraged by her father to have sex with Mr Impicciatore. I am also satisfied Mr Impicciatore was encouraged by the father to have sex with the child. I am satisfied Mr Impicciatore and the father entered the bedroom together. They were clothed. The child was lying on the bed, naked. Both Mr Impicciatore and the father took off their clothes and lay on either side of the child. Mr Impicciatore was on the bathroom side. The father gave Mr Impicciatore an oral gel to assist arousal (AJI Interview page 44 – 48). Mr Impicciatore started having sex with the child.

I accept what Mr Impicciatore told police, that the father was coaching the child and participating in the sexual activity with Mr Impicciatore (AJI Interview page 51). The child, at the direction of her father, got on top of Mr Impicciatore and he inserted his penis into her vagina for about 10 minutes (AJI Interview pages 52 – 53). The child then performed fellatio on Mr Impicciatore while at, or about the same time, he performed cunnilingus on her (AJI Interview pages 53 – 55). He admitted to police he licked her vagina (AJI Interview page 53). The child then turned on her side, as did Mr Impicciatore, and he again penetrated her vagina with his penis until he ejaculated while wearing a condom (AJI Interview page 52). All the time the father was participating in the sexual activity, touching and fondling the child's breasts and vagina.
After Mr Impicciatore ejaculated, he went into the bathroom to flush the condom (AJI Interview page 51). As he was standing near the bathroom, he witnessed the father continuing with sexual activity with the child. The father encouraged Mr Impicciatore to come back and join them but by then Mr Impicciatore felt 'kind of weirded out by the whole thing' and uncomfortable and went outside into the kitchen. He was later followed by the father who tried to persuade him to stay the night and continue the sexual activity (AJI Interview page 56). When Mr Impicciatore left the house that night, the child was asleep in the bed (AJI Interview page 57).
Parts of Mr Impicciatore's account are confirmed by the child's evidence in the child assessment interview. The child said there was only the one occasion on which the chubby man had sex with her. Both before and after the sexual activity the man talked with her father. He then left. The child said she fell asleep after the activity. The child also confirmed she wore a mask during the activity. In his recorded interview Mr Impicciatore said that the child became annoyed because the father was trying to remove her mask and the child did not want the mask to come off (AJI Interview page 57).
Mr Impicciatore's account is further confirmed and supported by the DNA evidence. Mr Impicciatore's DNA was recovered from the outside of the condom wrapper. The DNA of both the child and the father were also recovered from the outside of the wrapper. In my view, the only reasonable, rational inference which can be drawn from that evidence, together with all the other evidence, is that Mr Impicciatore handled the condom wrapper when he took the condom out of the wrapper and used the condom. It confirms Mr Impicciatore's statements to police, that he used a condom which he later disposed of. Also, Mr Impicciatore said that they, meaning the father and the child, had the condoms. The used condom wrapper was located by police in the right bedside drawer together with other condom wrappers, some of which had been used, when police searched the house on 1 April 2015 and took the photographs. That was approximately two to three weeks after the offending is alleged to have occurred between 6 to 13 March 2015.
I accept there is an inconsistency between what the child told police during the child assessment interview as to the circumstances of the offending and what Mr Impicciatore described to police. However, in my view, that does not undermine or detract from the reliability of Mr Impicciatore's admissions. In my view, the child's evidence must be considered in the context of, and against the background of, her being actively encouraged by her father to participate in sexual activity with various men. Based upon what she was told by her father, she believed that certain circumstances existed, such as the massage guy was blackmailing her father and that therefore she needed to participate in the sexual activity otherwise her father would get into trouble. The father presented a false picture to her for the purposes of persuading her to engage in sexual activity with strangers. She was a child aged only 13. The activities she described were described by her in a detached, unemotional way, almost as though the activities were normal. She spoke about sexual activity in explicit language which I would not expect a 13‑year-old girl to be able to explain. She did not seek to embellish or exaggerate what had happened to her. In the interview she was being asked about a course of offending against her by different men.
I am satisfied that her account of what happened to her on the last occasion, during which she described the man as being on top of her and ejaculating on her stomach, is explained by some confusion on her part when she is being asked about a number of different occasions during which her father forced her to have sex. However, what, in my view, is clear is that she has talked about the same occasion that Mr Impicciatore talked about in his recorded interview with police. As I have previously explained, her description that the man asked her to get into different weird positions, and that it only happened on the one occasion, confirms and supports Mr Impicciatore's admissions to the police. The child was confused when she described the man as ejaculating on her stomach and when she failed to refer to the use of a condom. Again, as I have earlier noted, I am satisfied beyond reasonable doubt that from the DNA evidence Mr Impicciatore handled the used condom wrapper which is when he took out the condom and used it as admitted by him.
I am satisfied the admissions are truthful and reliable. I am satisfied that what Mr Impicciatore told police, at pages 50 – 56, which I have set out above at [71], are admissions by Mr Impicciatore that he sexually offended against the child by sexually penetrating her on four separate times during the one ongoing incident in the bedroom of her father's house. The incident happened on a Friday night, either 6 March 2015 or 13 March 2015.
In relation to those admissions which are not contested, Mr Impicciatore admitted to police that he visited the house on the one occasion, met with the father and the child, and the father told him he had a sexual relationship with the child. The father also showed Mr Impicciatore photographs of another man who was described as David or Yoni, who had a beard and who was the guy that was hassling the father and having sex with the child. Mr Impicciatore admitted he saw the father having sex with the child on the night he visited the house.
In summary, I am satisfied beyond reasonable doubt, considering each count on the indictment separately, that the accused Mr Impicciatore:
1.in count 1 sexually penetrated the child by penetrating her vagina with his penis;
2.in count 2 sexually penetrated the child by penetrating her mouth with his penis;
3.in count 3 sexually penetrated the child by engaging in cunnilingus; and
4. in count 4 by sexually penetrating her vagina with his penis.
I then turn to consider the third element that the State must prove, what was the age of the child at the time the offences are alleged to have occurred and in particular, whether the child was of or over the age of 13 years and under the age of 16 years.
I am satisfied the offences were committed on a Friday in March 2015, most likely on 6 or 13 March. As I have earlier noted, from the child's birth certificate (exhibit 4) she was born on 24 November 2001. She was therefore aged 13 in March 2015 when the offences were alleged to have occurred. There is no issue that the child was aged 13 when the offences were committed in March 2015.
Count 1 relates to when the child initially climbed on top of Mr Impicciatore at the direction of her father and Mr Impicciatore had sex with her for about 10 minutes before he then performed cunnilingus on the child while she performed fellatio on him, the subject of counts 2 and 3.
Count 4 relates to when Mr Impicciatore ejaculated while wearing a condom while having sex with the child while they were both on their sides.

Flight to New South Wales

As I have previously noted, as a part of its case, the State relies upon Mr Impicciatore's failure to appear in court when these matters were initially listed for trial on 22 May 2017 and his subsequent flight to New South Wales where he was arrested and brought back to Western Australia by police. He has been remanded in custody ever since. The State submits the evidence of the accused's conduct constitutes circumstantial evidence from which an adverse inference of guilt may be drawn. It is often described as evidence of a 'consciousness of guilt', although it is preferable to refer to that type of evidence as circumstantial evidence rather than to use the expression 'consciousness of guilt': The State of Western Australia v Yerkovich [2004] WASC 62 [132], [133].
It is circumstantial evidence which can be relied upon by the State in support of its case. The relevant principles were explained by Buss JA in Allami v The State of Western Australia [2013] WASCA 230 at [79] ‑ [81]:
It is legitimate for the State to rely upon an accused's post-offence conduct (for example, flight from justice) in support of its case. See Ciantar [44] - [45]; McKey v The Queen [2012] NSWCCA 1 [26] (Latham J, Whealy JA & Hislop J agreeing); NAD v The State of Western Australia [2013] WASCA 2 [71] (Buss JA, McLure P & Mazza JA agreeing).
In Wigmore on Evidence (Chadbourn rev 1978), vol 2, § 276(4), the admissibility of flight from justice as evidence of consciousness of guilt is discussed:
'Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. ...
It is universally conceded today that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.' (footnote omitted)
Post-offence conduct, including lies and flight from justice, is circumstantial evidence. A jury may accept and act upon evidence of post‑offence conduct without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80].
Such evidence is often referred to as Edwards type evidence requiring a direction based upon the High Court decision in Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193.
In Allami v The State of Western Australia, Buss JA (Hall J agreeing) at [78] explained the type of direction which is required to be given to a jury in the following terms:
If an Edwards direction is required, the direction must ordinarily encompass the following:
(a)the lie must be precisely identified;
(b)the jury must be told that the lie will not be evidence against the accused unless the lie was deliberate;
(c)the jury must be reminded that there are many reasons why people tell lies, apart from the realisation of guilt;
(d)the jury must be told that it cannot use the lie as evidence against the accused if it accepts an explanation for the lie that is consistent with innocence;
(e)the jury must be told that the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f)the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 - 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2006) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] - [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing).
See also Dodd v The State of Western Australia [2014] WASCA 13 [95] – [105] and Newhill v The State of Western Australia [No 2] [2015] WASCA 121 [63] – [71].
In this case there is no evidence explaining why Mr Impicciatore did not attend the first day of his earlier trial and instead fled to New South Wales. There is no evidence, for example, that he fled because he was being threatened by someone or feared retribution by someone because of the allegations of the offending. There is no evidence he thought he might not get a fair trial because of adverse publicity. Although of course Mr Impicciatore does not have to prove anything in this trial, there is no explanation offered which provides a basis for concluding that Mr Impicciatore fled from the trial and from Western Australia other than from a consciousness of guilt, that is, from an awareness that he committed the offences with which he was charged and due to be tried on and fled to avoid being tried.
Although in this case the post-offence conduct is not an indispensable link in the chain of reasoning upon which proof of guilt depends, which would normally require an Edwards type direction, I am satisfied beyond reasonable doubt that the only rational inference open from Mr Impicciatore's conduct in failing to appear at his earlier trial and by fleeing to New South Wales is out of a consciousness of guilt of the offences on the indictment. Although I am satisfied beyond reasonable doubt that Mr Impicciatore is separately guilty of each of the four counts on the indictment for the reasons I have earlier explained, without the need to consider the circumstantial evidence of his fleeing to New South Wales, in my view, that conduct and the only rational inference which can be drawn from it, that he fled from a consciousness of guilt, reinforces the findings I have already made.
In summary, I am satisfied beyond reasonable doubt:
1.Mr Impicciatore is the person who did the things the State says constitutes each of the offences on the indictment;
2.Mr Impicciatore sexually penetrated the child by:
(a)in count 1 penetrating her vagina with his penis;
(b)in count 2 penetrating her mouth with his penis;
(c)in count 3 engaging in cunnilingus; and
(d)in count 4 penetrating her vagina with his penis.
3.The child was at the time, when Mr Impicciatore sexually penetrated her, a child of or over the age of 13 years and under the age of 16 years.
The State has satisfied me beyond reasonable doubt that Mr Impicciatore is guilty of each of counts 1, 2, 3 and 4.