The State of Western Australia v JGB - [2020] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JGB [2020] WADC 100
CORAM:   STAUDE DCJ
HEARD:   8-11 JUNE 2020
DELIVERED          :   3 JULY 2020
FILE NO/S:   IND 971 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
JGB

Catchwords:

Criminal law - Trial by judge alone - Multiple counts of sexual offences against a child

Legislation:

Criminal Procedure Act 2004 (WA), s 118, s 119, s 120, s 120(2)

Result:

Verdicts of guilty on all counts

Representation:

Counsel:

The State of Western Australia	:	Mr M M Cvetkoski and Mr D M Harrop
Accused	:	Ms L B Black

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Legal Pathways

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

MNA v The State of Western Australia [2020] WASCA 84
Nominal Defendant v Clements (1960) 104 CLR 476
S v The Queen (1989)168 CLR 266

STAUDE DCJ:

Introduction

The accused is charged on indictment dated 5 June 2019, with 10 sexual offences alleged to have been committed against KR on six occasions between 2002 and 2005. The accused has pleaded not guilty. The trial was listed for hearing before a judge and jury before the COVID-19 public health crisis caused trials by jury to be postponed for a period of time. On the application of the accused a trial by judge alone was ordered pursuant to s 118 of the Criminal Procedure Act 2004 (WA).
At the commencement of the trial I granted an application by the prosecution to add a further count to the indictment (count 10). I was satisfied that it was in the interests of justice to do so, there being no unfairness to the defence by the joinder.

Trial by judge alone

Sitting alone, I may make any findings and give any verdict that a jury could have made or given. Section 119 and s 120 of the Criminal Procedure Act apply. Section 119 provides that in a trial by a judge alone, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial before a jury. 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, the judge must take the requirement or prohibition into account if those circumstances arise in the course of the trial. Section 120(2) provides that the court's judgment must include the principles of law that have been applied and the findings of fact upon which the judge has relied.

Directions

I note the following principles for their general application to this case. The specific application of these principles will be dealt with in the fullness of these reasons.

Presumption of innocence

The accused is presumed to be innocent of the charge against him. The presumption is not removed unless the court is satisfied beyond reasonable doubt of his guilt.

Burden of proof

The burden of proof is on the prosecution throughout. The accused does not have to prove his innocence or anything else.

Standard of proof

Each element of the charged defence must be proved beyond reasonable doubt. Those words bear their natural and ordinary meaning. They denote the highest standard of proof known to the law.
The counts on the indictment allege serious offences. They are denied by the accused. The State's case depends on the court's acceptance of the evidence of the complainant. I am required to scrutinise carefully her evidence. I need to decide whether the complainant is possibly mistaken or confused in her evidence, and, indeed, whether her evidence is a fabrication.
I do not have to accept everything the complainant has said as reliable in order to decide whether I am satisfied beyond reasonable doubt of a particular count, but in a case of this kind I could not convict the accused of any offence unless I were satisfied beyond reasonable doubt that the evidence of the complainant as to the act complained of is truthful.
The accused has denied the offences. I could not convict him of any offence with which he is charged unless I was satisfied that his denials could not, as a reasonable possibility, be true. If his denials, or any other evidence, gave rise to a reasonable doubt as to his guilt, it would be my duty to acquit.

Verdict based on the evidence

My verdict must be based solely upon the evidence presented at the trial. I may not inform myself by any other means. Neither sympathy nor prejudice may play any part in my decision making. I must consider the evidence objectively and dispassionately. I may not guess or speculate about matters of which there is no evidence. The absence of evidence proves nothing.

The evidence

The evidence is the testimony of the witnesses given in court and the documents received as exhibits. The court is bound to consider all of the evidence presented at trial. It is for me to decide what weight to give to the evidence. I may accept some, but not all, of a witness's testimony.

Evidence of special witness

The complainant in this case is now an adult, but as a child was interviewed in relation to her complaints against the accused. Her evidence consists of the recorded child witness interviews and her evidence in court given from a remote room by video link. The law allows the evidence of a witness who is a child to be given in the form of a recorded child witness interview conducted in accordance with regulations made pursuant to the Evidence Act (1906) (WA), and the evidence in court of a special witness to be given from a room away from the court room. The giving of the complainant's evidence in this way is standard procedure in cases such as this. No inference is to be drawn against the accused by reason of the evidence being given in that manner.

Accused did not give evidence

In this case the accused elected not to give evidence. It was his right not to give evidence. No inference adverse to the accused may be drawn by reason of his election not to give or adduce evidence. The fact that he did not give evidence proves nothing one way or the other.

Interviews by police

In his recorded police interviews in 2005 and 2017, the accused denied the allegations of sexual abuse of the complainant. He also made admissions as to relationship and opportunity that rendered the recorded interviews admissible in the State's case. I will deal with the substance of these interviews in due course. What the accused said in the interviews is evidence that I am to consider in deciding whether or not the various counts on the indictment have been proved beyond reasonable doubt. If I do not accept his exculpatory statements, I must put them to the side, as he does not have to prove his innocence. It does not follow from a rejection of his denials that he is guilty of any offence. As I have mentioned, if his denials might possibly be true, or if they, or any evidence for that matter, give rise to a reasonable doubt, then I must acquit. Needless to say, the questions, propositions and comments of the interviewers are not evidence.

Lies

The State submitted that the accused can be shown to have told lies in his interviews. Whether the accused told a lie or a number of lies is a matter of fact for me to decide. The fact that the accused has told a lie, if that is shown, may affect the court's assessment of the credibility of the exculpatory statements made in his interviews, but it is not evidence of guilt, and I must not reason, if I found that he had been untruthful, that he is therefore guilty of any charged offence.

Inferential reasoning

The evidence in this case is a combination of direct evidence and circumstantial evidence. The direct evidence of the charged offences is the evidence of the complainant. The circumstantial evidence in this case is the evidence of other witnesses of circumstances that surrounded the matters of which the complainant gave evidence. That evidence may support or detract from the veracity of her evidence. Such evidence may be of facts from which other facts may be inferred. The facts from which an inference is sought to be drawn must be proved on the evidence to the satisfaction of the court.
Circumstantial evidence is relevant in this case to enable the court to evaluate the critical evidence of the complainant. It provides a context in which to view her evidence. It may also explain matters that would otherwise appear curious or unlikely. It may tend to enhance or diminish the cogency of other evidence. This is the basis on which the State relies on the evidence of witnesses other than the complainant, and the physical evidence that was tendered. In the State's case the circumstantial evidence adduced at the trial is relevant to the cogency of the complainant's testimony, increasing the likelihood that it is true.
The State does not rely on circumstantial evidence in this case to prove guilt by inference. Nevertheless, before I could find by inference any fact which constitutes an indispensable link in a chain of reasoning towards guilt, I must be satisfied that that the inference is the only rational and reasonable inference, or conclusion, that can be drawn from all the facts established by the evidence. That is because the standard of proof is beyond reasonable doubt. Each of the facts supporting that inference does not have to be proved to that standard, but if the inference is adverse to the accused, it must be the only reasonable inference open on those facts, and the facts must be such as to exclude any inference consistent with innocence. The inference or conclusion must also be reasonable. For an inference to be reasonable, it must rest upon something more than mere conjecture or speculation. The facts are not to be looked at in isolation or on a piecemeal basis. Rather, I am to consider all the facts and circumstances as a whole to determine whether the particular inference adverse to the accused is the only rational and reasonable inference that the facts would enable me to draw, and that there is no inference consistent with the innocence of the accused reasonably open on the evidence.

More than one charge

There are 10 offences with which the accused has been charged in this trial. They arise from six alleged occasions. In theory there could have been 10 separate trials, but it is not practical or fair to have trials in that way. I am bound to consider and decide each charge separately. My decisions must be based on the evidence that is relevant to that count. My verdicts do not have to be the same on each charge. If I find the accused guilty of one, it does not follow that he is guilty of another. I cannot find the accused guilty of any offence unless direct evidence that he has committed that offence satisfies me beyond reasonable doubt that he did so.
Having considered all the evidence, I may find the accused guilty of all charges, some of the charges or none of them. Importantly, I must not draw any inference against the accused, or be prejudiced against him, because of the number of charges against him. My duty is to consider the evidence relevant to each charge and on the basis of that evidence determine whether the accused is guilty or not guilty.

Credibility of witnesses

It is for me as the judge of the facts in this case to assess the credibility of the witnesses and to decide what weight is to be given to their evidence. Credibility involves honesty, but an honest witness may have a poor memory or might otherwise be mistaken, so I am not only concerned to decide whether a witness is honest, but whether the evidence the witness gives is reliable and accurate.
In this case, the real issue is whether the evidence of the complainant that that the accused sexually abused her in the manner alleged in the indictment is reliable. The prosecution depends upon the court's acceptance of the evidence of the complainant. Hers is the only evidence of the alleged offences. It requires careful consideration. There is other evidence to consider, but the State's case depends on an acceptance of the complainant's evidence as truthful, that is, honest, accurate and reliable.
Deciding what evidence I accept is not an all or nothing exercise. I may accept part but not all of what a witness says. I may find that some parts of a witness's evidence are reliable and accurate and others are not.

Complaint

The court heard evidence of the circumstances in which the complainant first reported that the accused had done things to her. The complainant and her mother DR both gave evidence of this incident. On DR's evidence, the complaint was first made on 6 April 2005. No objection was taken to it on the grounds that it was not evidence of recent complaint. The State did not expressly rely upon it as such. In closing, counsel for the accused indicated that the defence did not concede that it was admissible as evidence of recent complaint. Clearly, the omission of counsel to object was a forensic decision, as it was in MNA v The State of Western Australia [2020] WASCA 84, the evidence being relevant to the complainant's credibility. The complainant did not tell her mother on 6 April 2005 that the accused put his penis in her vagina (It was put to her that this was because it did not happen).
It is not clear from the complainant's evidence when the last alleged occasion of sexual abuse occurred prior to her disclosure to DR, or to what charged offence, if any, as opposed to other conduct of the accused, the complaint would relate. On this basis I find that it is not evidence of recent complaint that would attract the usual direction as to proof of consistency of conduct that may bolster the credibility of the complainant.
The evidence of the complainant's statements to her mother on 6 April 2005 of what she said the accused did to her having been admitted, however, I am able to take into account in considering the complainant's credibility and the truthfulness of her evidence the timing of her complaint, the contents of her complaint and the circumstances in which it was made: MNA v The State of Western Australia. Of course, I cannot treat it as separate or additional to her evidence. It is not evidence of the charged offences. That she did disclose the alleged acts to her mother, thus bringing her relationship with the accused to an end, is admissible as part of the narrative of the complainant's evidence and the fact of the disclosure is relevant to delayed complaint as a credibility consideration.
There was also evidence of signs of distress being observed by DR around the time of the disclosure. Distress is capable of corroborating a sexual assault, but it was not part of the prosecution case that it should be taken into account in this case, and I do not do so.

Delay

It was not suggested to the complainant that her complaint against the accused was not made at the earliest reasonable opportunity, but given the period of time over which the alleged offences are said to have been committed and the defence position in relation to the complaint evidence, it is appropriate, in my view, to direct myself in this regard as it is potentially relevant to the credibility of the complainant. While it can go to the complainant's credibility that she did not complain to anyone earlier than she did, as a matter of law, delay in making a complaint that one has been sexually assaulted does not necessarily indicate that the matters complained of did not happen. There may be good reasons why a child who is the victim of offences such as those alleged may not complain of them promptly. Those reasons are obvious in this case.

Prior consistent statements

In the course of cross-examination of the complainant, defence counsel put to her that when she gave police a further statement in 2016 she was concerned to add more detail to the complaints that she made in her child witness interviews in 2005, having been made aware that the police thought there was insufficient evidence to charge the accused at that time. In this context it was put to her that she had had conversations with her mother since 2005 as to the detail of the matters of which she complained and that her child witness interviews did not contain all information that she provided in a statement to the police in 2016. Specifically, it was put to her that the details she provided in 2016 did not come from a genuine memory, rather that she added details enough to enable the police to charge the accused. The cross-examination went well beyond merely suggesting inconsistency.
In re-examination, the prosecution elicited evidence that in 2005 the complainant communicated information to her mother about the matters in question using words and pictures. The complainant identified seven pages of drawings and words that she had written for her mother describing the acts complained of. This evidence was elicited for the purpose of rebutting the suggestion that the complainant's 2016 statement contained details that she had later constructed of which she had no true memory. The documents were received provisionally as (exhibit 2).
I find that the drawings and words in exhibit 2 are admissible as an exception to the rule against the admissibility of prior consistent statements to rebut the suggestion of afterthought: see Nominal Defendant v Clements (1960) 104 CLR 476, 479 (Dixon CJ). The complainant's words and drawings are not evidence of the matters complained of. They are relevant only to credibility, that is, to disprove the imputation of concoction.

Cross-admissibility

The State's case is that the evidence of each count shows that the accused had a tendency to gratify himself sexually by engaging with the complainant in a sexual way. The evidence led in proof of one offence against the complainant does not prove another. Evidence that may satisfy me of the accused's guilt of one count cannot be used in substitution for evidence of another. It would be impermissible to reason that because the accused committed one offence that he committed another. I may not find the accused guilty of any offence with which he has been charged unless it is satisfied beyond reasonable doubt by direct evidence that he did in fact commit that offence.
But if, having found that the complainant's evidence of another count or other counts, is truthful and accurate, I am satisfied beyond reasonable doubt that the accused did have a tendency to engage the complainant in a sexual way, that finding is capable of supporting the evidence of another count, simply on the basis that although proof that he committed one offence does not prove that he committed another, it may show that he is the sort of person who would commit such an offence, and therefore more likely to have committed the offence under consideration. That is what is meant by propensity. Whether or not it assists the State's case is a matter for me to decide.

Relationship evidence

The complainant gave evidence of the accused sexually abusing her 'lots of times' without specifying any acts other than those that are charged in the indictment. It is relevant to the State's case as evidence tending to show the nature of the relationship between the accused and the complainant. It tends to show that the acts for which the accused is charged were not isolated or random, but occurred within a particular pattern or context. The evidence is part of the narrative of the complainant's account. It is not evidence of any of the acts charged and it is not evidence of propensity. I cannot use it to find that it is more likely that the accused committed the charged offences. The evidence is relevant to explain why the complainant had difficulty giving details of particular occasions of alleged sexual abuse, and why she did not complain to her mother earlier than she did.

Expert evidence

An expert in an area of specialised knowledge can give evidence of their opinion if they are qualified by training or experience to give an expert opinion and the facts upon which they give that opinion are proved. Dr Tracey Palmer, Dr Peter Winterton and Dr Christopher Blyth gave expert evidence of medical and physiological matters. There was no challenge to their respective qualifications or expertise in the matters of which they gave evidence. It is for me, as the tribunal of fact, to decide what weight is to be given to the expert evidence.

Longman direction

Although the purpose of the following direction is to warn a jury of risks of a miscarriage of justice of which the court is aware, but the jury may not be, such that it might be considered otiose in a judge-alone trial, it ought be recorded because of its importance.
Because of the crucial nature in this case of the evidence of KR, and because of the seriousness of the allegations made, I must scrutinise her evidence with special care. I must also carefully take into account that the alleged offences are said to have been committed 15 - 18 years ago. The passage of time is capable of eroding memory and may put the accused at a disadvantage in defending the charges.
This direction applies to each count on the indictment. I must follow this direction when considering my verdict on each of them. The complainant is, of course, the only witness against the accused as to the happening of the events alleged in the indictment. There are no independent eye witnesses. While there has been other evidence as to occasion and opportunity, no one has confirmed or corroborated the complainant's evidence as to the alleged offences themselves. Accordingly, as I have previously directed, the position is that in each case I must be satisfied beyond reasonable doubt of the truthfulness, that is, the honesty, accuracy and reliability, of the complainant's evidence, before I could convict the accused of any charge.
KR was a child of 5 - 8 years in the period in question. I will come in due course to consider her three child witness interviews given in 2005 which constitute part of her evidence, and her complaint to her mother which is not evidence of the charged offences, but relevant to her credibility. I will also consider the recorded police interview of the accused in May 2005 when what the complainant disclosed in her first two interviews was put to him. No charges were made against the accused at that time. The complainant made a further statement in 2016 and the accused was again interviewed in June 2017.
While this is not a case where allegations of wrongdoing were not put to the accused for a long period of time after they were said to have been committed, it is still necessary for the court to direct itself, in terms of the complainant's evidence at trial, that human memory is fallible and that the longer the delay the more opportunity there is for error and that is particularly the case for events occurring in childhood. An honest witness can be wrong in their recollection.
It is a matter of common experience that the longer a person believes something to have happened the more convinced they are that it did. This can be so even if the person is mistaken in their recollection. This direction is particularly apposite in this case where the defence suggests that there are material differences between what the complainant said in her 2005 interviews and what she said in court.
I have to bear in mind all the matters that might have an impact on the reliability of the evidence of the complainant. I will touch on these matters in these reasons.
I also have to bear in mind that because of the delay the evidence of the complainant cannot be adequately tested. By reason of the delay the accused has lost the opportunity to bring forward matters of defence and to test the evidence of the complainant and been disadvantaged. This self‑direction is based on the experience of courts of the difficulty that accused people have in cases such as this. The forensic disadvantages experienced by the accused I will deal with in due course by reference to the evidence.
Because of the long delay in this case between the alleged commission of the charged offences and the accused being charged with them and the matter proceeding to trial, it is particularly important that I scrutinise the complainant's evidence with special care. In these circumstances, I am bound to direct myself that I could not convict the accused of any offence on the evidence of the complainant, which is uncorroborated, unless, having scrutinised her evidence with great care, having considered the circumstances relevant to that evidence to which I have referred, and having taken full account of the risks of a miscarriage of justice to which I have adverted, I were satisfied beyond reasonable doubt as to its truth and accuracy.

The Indictment

The time periods and places set out in the indictment are particulars only. They do not have to be proved beyond reasonable doubt. They are provided because the State is required to identify, as best it can, the occasions on which the alleged offence is said to have occurred, and with sufficient detail to enable the accused to meet the charges against him.
An important aspect of the defence is a submission that the evidence of the complainant is vague as to the occasions of alleged offending, and not capable of satisfying the legal standard of proof.
The indictment pleads in each count that the alleged offence was committed at a certain locality, referable to the accused's home address at the material time, and a date range within which it is said to have been committed. The date ranges are broad: between 15 December 2001 and 1 November 2003 (count 1); between 30 September 2003 and 6 April 2005 (counts 2 ‑ 9); and between 1 November 2004 and 6 April 2005 (count 10). That form of pleading is proper where the precise date is not material: S v The Queen (1989)168 CLR 266, 272 (Dawson J).
The complainant gave evidence that the sexual acts with which the accused is charged were committed on multiple occasions. It is fair to say, particularly by reference to her child witness interviews, that she had some difficulty distinguishing the occasions of the offending reflected in the indictment. This is not an uncommon feature of a prosecution of child sexual abuse offences that are said to have been committed over a period of time in the context of an abusive sexual relationship. Further particulars may be sought where the evidence reveals a multiplicity of offences, but the defence at no time prior to or during the trial objected to the indictment on the grounds of latent duplicity, or sought a direction for further particulars of the counts on the indictment. However, relying on S v The Queen, the defence contends that the State's case at its highest proves the existence of a sexual relationship between the accused and the complainant that existed over a period of time and involved multiple acts of sexual abuse from which the offences alleged in the indictment cannot be distinguished. The defence contends that the State's case cannot prove the offences charged to the required standard for that reason.
S v The Queen was a case involving an incestuous sexual relationship over a period of years. The prosecution case was that there were continual acts of intercourse over three years. Three representative counts of carnal knowledge were pleaded. Although the complainant gave evidence of two specific occasions, there was no evidence to link either with the pleaded time periods. Her evidence was that she could not remember the details or frequency of the occasions of sexual intercourse. The trial judge, having refused to order that particulars be given, directed the jury that to convict the accused they had to be 'satisfied beyond doubt that at least on one occasion during each of these years there was such penetration'. The accused was convicted. The Court of Criminal Appeal (Brinsden and Smith JJ, Kennedy J dissenting) dismissed his appeal.
In the High Court, the verdicts were quashed and a re-trial ordered. The problem identified was two-fold: first, the prosecution was unable to specify any occasions of offending such that the indictment was embarrassing, and likely to prejudice the fair trial of the accused; and second, the counts were left to the jury on the basis that the jury had to be satisfied beyond reasonable doubt that 'at least on one occasion during each of these years there was such a penetration', meaning that the jury could reach a verdict of guilty without identifying a particular occasion of offending.
Although the evidence identifying the occasions of offending is vague, particularly as to when the offence occurred, the prosecution has distinguished between the occasions of offending, both as to the acts of the accused and the context. As I see it, there having been no objection taken to the indictment, what comes out of the submission made with reference to S v The Queen is simply that the court cannot convict the accused of any offence with which he is charged unless it is satisfied beyond reasonable doubt by direct evidence of that offence that he committed it. The court may not use evidence of offences with which the accused has not been charged in substitution for direct evidence of any charged offence.

Elements of indecent dealing - counts 1, 5 and 9

Counts 1 and 9 allege that the accused indecently dealt with the complainant by touching her vagina. Count 5 alleges the same offence by kissing the complainant on the mouth.
There are four elements of the offence of indecently dealing with a child under the age of 13 years. They are that the accused is the person to whom the complaint relates, the accused dealt with the complainant, the dealing was indecent, and the complainant was under 13 years of age at the time.
The accused denies that he did the acts alleged in counts 1 and 5, so the element of identity is in issue.
The second element is dealing. A touching of a child can amount to a dealing. It must be on purpose, that is, it must be a willed act. An accidental or inadvertent contact is not a dealing.
Indecently means in a way that is offensive to common propriety. In this case each of the acts of which the complainant gave evidence were sexual in nature, so the real issue in each count is not whether they were indecent, but whether they were committed by the accused.
It is not in issue that the complainant was under the age of 13 at all material times.

Elements of sexual penetration: counts 2, 3, 4, 6, 7, 8 and 10

Count 2 alleges sexual penetration by the accused penetrating the complainant's vagina with his finger. Counts 3 and 8 allege sexual penetration by the accused penetrating the complainant's vagina with his penis. Counts 4 and 7 allege sexual penetration by the accused penetrating the complainant's mouth with his penis (fellatio). Counts 6 and 10 allege sexual penetration by cunnilingus.
The elements are that the accused is the person to whom the complaint relates, that the accused sexually penetrated the complainant, and the complainant was under the age of 13 years.
In these counts identity is in issue as the accused denies that he did any of the alleged acts.
The verb 'to sexually penetrate' is defined to include introducing any part of the penis of a person into the vagina or mouth of another, and engaging in cunnilingus or fellatio.
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 (labia majora) is sufficient. Vagina is used in a non‑technical way. Ejaculation is not necessary for sexual penetration to have occurred.
The word cunnilingus is to be given its ordinary dictionary meaning. It includes the licking and kissing and sucking of the genital organs of a female, including the external aspects of the labia. Therefore, to prove sexual penetration by engaging in cunnilingus the State does not have to prove any actual penetration at all. However, to prove sexual penetration by cunnilingus the State must prove that the accused made contact with the complainant's vulva, that is, the external aspects of the vagina or genital organ, with his tongue or by kissing or sucking it with his mouth.

Overview of prosecution case

The complainant, KR, is the only child of her mother, DR. She was born in December 1996. DR was a sole parent. KR did not know her biological father. The two came to Western Australia in April 1999. In October that year DR purchased a residential unit at Cato Place, Lockridge where she lived with KR. While living at that address DH met TC who lived in a neighbouring unit. They were friends for a period of time before commencing an intimate relationship in about June 2001. Around this time DR met the accused who was TC's cousin. The accused lived in Wooroloo, near the border of Gidgegannup.
In October 2001, DR sold her unit at Cato Place, Lockridge and bought a house at Braithwaite Road, Lockridge. She, TC and KR lived together in this house.
The accused was a regular visitor and would stay over two to three nights per week. The accused developed a friendship with KR. He would take her out to the shops. He would buy her treats. The close relationship between the accused and the complainant was observed by others.
In 2002, DR and TC decided build a house at Lambertia Crescent, High Wycombe. The accused invited them to move to his Wooroloo home while the house was being built. DR, TC and KR stayed with the accused at his Wooroloo home from about June 2002 until about March 2003. No one else lived at the house with the accused at that time. DR and TC both worked. On occasions when they were at work or away from the home, the accused would look after KR. On a number of occasions KR was observed to be in the accused's bed. DR disapproved of KR sleeping in the accused's bed and chastised her for doing so.
Count 1 is said to have been committed on an occasion when the accused was looking after KR while DR and TC were away from the house. While the accused was in the shower with KR he washed her body and, whilst doing so, rubbed her vagina with his hand.
In March 2003, DR, TC and KR moved into their new home in High Wycombe. Later the same year, in about October, the accused moved from Wooroloo to a residence in Kookaburra Crescent, High Wycombe.
In December 2004, DR and TC separated. The accused sided with DR. He helped DR and KR move out of the Lambertia Crescent, High Wycombe home. They stayed with him for about one week before moving to DR's house at Braithwaite Road, Lockridge. Prior to and after this time DR was working as a social trainer (disability support) on a roster that included morning, afternoon and evening shifts. From December 2004 until April 2005, KR would spend a lot of time alone with the accused while DR was working, and other occasions when DR needed someone to look after KR.
The offences alleged in counts 2 and 3 are said to have been committed on an occasion when the accused was living at Kookaburra Crescent, High Wycombe with his son, R, who was 2 years older than KR. On this occasion R and KR were camping in the backyard in a tent when a storm developed, causing KR to go inside and get into the accused's bed. The accused woke up and started to touch KR. While she was on her back he put his finger in her vagina (count 2). He then pulled KR on top of him so that she was straddling him. In this position he penetrated her vagina with his penis (count 3).
On another occasion at the same place, KR was with the accused on his bed. They were alone in the house. The accused had no pants on. On this occasion, the accused put his penis in KR's mouth and, grabbing both sides of her head, pushed her head down and forced her to suck his penis (count 4). This incident came to an end when DR returned to the house. KR heard her at the front door. While DR waited at the front door for the accused to let her in (she had no key), KR ran to the toilet to get dressed. She was found there by her mother.
On a further occasion at the accused's High Wycombe home, he was watching a movie with KR while they were both sitting on a couch. There was no one else at home. On this occasion, the accused kissed KR on the mouth putting his tongue inside her mouth (count 5).
On a further occasion at the same place while alone with KR on his bed, the accused licked KR's vagina (count 6). Whilst still on the bed the accused pushed KR's head towards his penis and made her suck it (count 7). The accused then guided his penis into KR's vagina while she was on top of him (count 8). After this occurred, the accused took KR into the shower. While they were both in the shower he washed her with soap and while doing so, stroked her vagina (count 9).
On a further occasion at the same place, in the early hours of the morning, the accused entered the spare room of the house where KR was sleeping. He removed her underwear and licked her vagina (count 10).
Occasionally, the accused would give KR sleeping medication after sexually abusing her.
A good relationship existed between the accused and KR and DR until 6 April 2005. The accused would regularly babysit KR whilst DR was at work.
On 6 April 2005, DR and KR were invited to the accused's home for a barbecue. Prior to going to the accused's home, DR noticed KR to behave unusually and to be distressed. While in the car on the way to the accused's home, KR told DR that the accused had been sexually abusing her.
The matter was reported to the Child Abuse Squad. On 7 April 2005, KR was examined at Princess Margaret Hospital by Dr Tracey Palmer. Dr Palmer's physical findings on examination were normal, the examination neither confirming nor refuting the sexual acts reported to her by DR, which were attempted digital penetration of the vagina, touching of the vagina, licking of the vagina and fellatio. At the same time, Dr Palmer observed excessive discharge from KR's vagina and redness around the vaginal area extending into the perineum.
On 11 April 2005, KR tested positive to chlamydia. Antibiotic treatment was prescribed on 14 April 2005. On 28 April 2005, KR tested negative to chlamydia.
KR participated in child witness interviews with two police officers on 14 and 19 April 2005.
The accused was interviewed by the police on 2 May 2005. The accused denied the allegations of indecent dealing and sexual penetration, but told the police that KR had acted in a sexual way towards him on occasions. On 13 May 2005, the accused tested negative to chlamydia.
A further child witness interview was conducted with KR on 17 August 2005. No charges were preferred against the accused at this time.
In 2016, KR made a statement to the police. On 11 May 2017, she made a pretext telephone call to the accused who denied doing anything to her, but told her that she did 'rude things' to him.
The accused was interviewed again by police on 15 June 2017. Once more he denied the allegations that were put to him. He said that KR would come into his bedroom and touch him and rub herself against him.

The evidence

The following summary of evidence is not exhaustive. The fact that a piece of evidence is not mentioned does not mean that it has not been considered.

Child witness interviews

The transcripts of the interviews have been provided to the court by consent as an aide memoire to my viewing of that evidence. They have been marked MFI 16.
On 15 April 2005, when KR was first interviewed by two specialist child interviewers, the interview started at 2.48 pm and concluded at 5.23 pm. There were breaks during the course of the interview, the first from 3 pm to 3.56 pm; the second from 4.46 pm to 5.21 pm. The complainant had considerable difficulty in articulating the matters on which she was questioned. She was not merely reticent. Rather, she presented as being quite discomfited by the interview situation.

When asked what she had attended to talk about, she said:
A:My mummy's friend Jeffery, um, I stay at his house sometimes and when my mum was doing shift work and she stayed at work overnight and, um, I sleep in his bed because I was scared of the dark and …
There followed a long pause before she was asked:
Q:Are you finding it a little bit difficult to tell us?
A:Yeah.
The interviewers were unable to elicit any further information at that time and suspended the interview. When it resumed, the complainant was holding two teddy bears. After she was reminded of what she said earlier, she was asked if she wanted to say something more. She said:
A:And I slept in his bed and for - it - we were in Gidgegannup and then he moved to, um, Kookaburra and he did rude things with me.
She did not want to say what 'rude things with me' meant. When pressed, she asked if she could write it down. She then wrote the words: 'liked my roud part' and 'put his finger in my roud part'. She was asked to read the first phrase and told the interviewers that she had written 'licked my rude part'. She said that by 'lick' she meant with his tongue and that 'rude part' meant a vagina. She was then asked when it happened. She responded: 'When it first started'? The interviewers pressed her to remember an occasion. She said she couldn't remember the day. She remembered it happening at night-time when she was eight, and said 'He done it a lot when I was eight'. When asked if there was a reason that she remembered that she was eight, she said, 'cos he'd done it before when I was eight'; then, 'I don't get what you are trying to say'.
It was apparent that the complainant had difficulty distinguishing particular occasions. She said, 'He done it when I was six or seven. He done it when he lived in his first house'. When she was asked about the last time it happened, she said, 'that's when my mum found it - found out'. When she was asked when it happened the first time, she said, 'in Gidgegannup'. Asked if she could remember any of the times, she said, 'Sunday'. She mentioned that the accused went to work at 5 o'clock. She did not think it was during the school holidays, but said it might have been during the last holidays.
Asked whether she could remember one time, she said, 'a weekend' and 'Saturday or Sunday, and he does it when I sleep over sometimes, but he doesn't do it every single night'. Asked whether there was another time that she remembered, she answered, 'Maybe on a Friday or a Thursday or something'. She said it happened at his house and that, 'he done it on his bed and on the couch'. She did not know the days. She said that she did not know when it started and she could not remember the last time it happened. She thought it had occurred five or six times. She said she recalled it happening on the weekend because that was when she usually stayed there but she did not know which weekend it was. She said, 'it does happen on the other weekends too, or on other days', but she could not remember.
When she was asked to pick out the weekend that she remembered most clearly, she said that she could not remember. When she was asked about the occasion when she said it was night time and that she was 8 years old, she said, 'it was already happening before my birthday'.
She then recalled a Saturday night when she was in a tent with the accused's son R. She said, 'it started to rain and lightning was everywhere, so I went into his bed'. Then:
Q:You went where?
A:In [the accused]'s bed.
Q:Mm hm. What happened then?
A:We went to sleep.
Q:Mm hm. And then what happened?
A:And then I don't remember anything when he was …
Q:But you said this was one of the nights where that thing happened, that he licked her vagina? Is that right? Did I get that right?
At that point the complainant shook her head. She was then asked:
Q:And you said one of the nights was a Saturday, one of the nights we were talking about, trying to remember one particular time.
A:Oh, that wasn't one of them, I don't think, because I can't remember what happened in that one.
When she was asked if there was another time when it happened she said, 'Sunday'. She thought it was in the morning, but she said that she did not know if it was a Sunday or a Saturday. Then:
A:And it might have been in the week, I don't know, and, um, in the morning he had - he got up at 5 o'clock.
Q:Then what happened?
A:He did it.
Q:Where were you?
A:In bed, in his bed.
Q:Okay. So you were in his bed and you said he got up at 5 o'clock. How do you know that?
A:Cos that's when he gets up for work and I think he leaves at 6 o'clock.
She said, 'he done it before he got up, before he went to work, he done it'. I understood the complainant to say that on that occasion she was in bed and R was asleep. She said that her mum was at work, but then she said that her mum was on the couch. She said that he got ready by putting his uniform on. She said, 'I hopped in the spare room, I think, then before he left he done it'. She said:
A:I was still awake and, um, I think he went back - back to sleep in the other spare bedroom and it happened.
She was still in his bed when he got up. She went into the spare bedroom. She said, 'I think he went into the kitchen and made his lunch and then before he left, he done it'.
Then, when asked what happened in the spare room, the complainant was unable to give an answer. She became unresponsive. One of the interviewers then offered to leave. She then, by reference to the page that she had written on, said, 'he done that one there, he done that one there'. She was asked to read it out and she said, 'licked my rude part'.
She then drew at the interviewer's request, the layout of the house. She was asked further questions, and then:
Q:Okay. So you were in his bed and he has come into your room. How did it - how did it happen that he ended up doing this?
A:I don't know what happened.
Q:No, how did it happen, from him standing at your door …
A:He didn't stand there. He was in the kitchen.
Q:Mm hm.
A:Then he came into my room and done it and then left.
Q:Okay. And what did you do for the rest of the day?
A:This was at 5 o'clock in the morning.
A short time later, the complainant showed signs of distress. The interview was suspended for a time, and then concluded.
On the second occasion, KR volunteered that she had been on a holiday to Cunderdin with the accused one Easter. She said, 'we set the tent up out the back'. She said they went to bed and he started doing the things, trying to kiss me and that, and leaning up and down against me'. She said that was all that happened. She said this occurred 'last year', then, 'in 2004 and 2003'. She described a small orangey-red tent with a zip. Then:
Q:You said you went to bed.
A:Mm hm.
Q:What happened then?
A:He leaned up and down against me.
Q:How did he do that?
She again described the accused as leaning up and down against her in the tent. She also repeated that he tried to kiss her. She could not remember anything but she said again that his pants were down. She said she could see his underwear. Although she was pressed to say more about this incident, she said, 'I can't remember anything else because it was a really long time ago'. She then became unresponsive to the interviewers' questions. When she was asked why she was not able to say more about what happened in Cunderdin, she said, 'because I'm tired'. After a short break, the questioning resumed. She was again asked about the accused leaning up and down against her. She said, 'that's all I can tell you'. She said she did not know what exactly he was doing. She would not say what she meant by, 'leaning up and down against me'. After being pressed, she said, 'I don't want to tell youse'. Again, she became unresponsive. Then:
Q:Now, when you came in here today the first thing that you told Gabbie was about a holiday - an Easter break in Cunderdin. How did you remember that?
A:I don't know. When we were in Cunderdin [the accused] gave me sleeping pills.
Q:Who was it that reminded you about Cunderdin before you came in here today?
A:Mum.
Q:What did she say?
A:I don't remember.
Q:Well, how do you know that she reminded you about Cunderdin?
A:Because she told me.
She said her mother asked her if anything happened when she was in Cunderdin.
Q:And what did you say to her when she said that?
A:I don't know.
Q:KR, is it that you can remember what happened but you just don't like telling us?
A:(nods)
Q:Is there anything that we can do that would make it easier for you to tell us?
A:(nods)
Q:What's that?
A:Not talk about just Cunderdin.
The complainant was then asked what else she would like to say. She said that the accused gave her medication. She said she had been told this by her mother and the accused. She then mentioned an incident on a mountain bike where she was hurt and had to go to the doctor. She said, 'and then after went to the doctor, and did rude things, and he did rude things before'. She said that this was not that long ago. She had been reminded of it by her mother who had taken her to hospital. However, when she was asked if she wanted to tell the interviewers about what happened when she got back from the hospital, she said, 'I can't remember'. Then:
Q:Well, how do you know that he did rude things to you after the hospital?
A:(no audible response)
Q:KR how can you be sure?
A:Because I remember.
Q:Do you remember it happening or do you remember talking about it with your mum? Which one?
A:The first one.
Q:You can remember it happening. Can you tell us about it?
A:(no audible response)
Q:Can you tell us what happened after the hospital?
A:(shakes head)
The exasperation of the interviewers by this stage is evidenced by one of them asking her, quite inappropriately, what her mother would say if she were told that she was not able to tell them about anything that actually happened. Again, the complainant became unresponsive. Then:
Q:KR, can you help us here? We will try to help with what's going on. Do you want to go out and speak to your mum? Why did you say your mum's not going to be okay?
A:Because she knows that I can remember.
Later, after failing to respond, one of the interviewers asked, 'so what's bothering you right now, KR'? She replied that she did not want to tell them what happened. After trying unsuccessfully to get the complainant to tell them why she did not want to say what happened, the interviewers gave up. Towards the end of the interview:
Q:Do you have anything you want to ask us, KR?
A:What can you do?
Q:Sorry?
A:What can you do?
Q:For what?
A:Um pardon?
Q:About what?
A:About what he done to me?
Q:We don't know what he's done.
The interview then came to a close.
In my view, the first two interviews were conducted unsatisfactorily. KR obviously did not want to articulate orally the matters about which she had attended to be questioned upon. In the first interview, the interviewers did not give her a sufficient opportunity to express herself in writing as a preferred mode of communication. Significantly, on that occasion the interviewers omitted to ask KR about the act that she had described by the written words, 'put his finger in my rude part'. On 19 April 2005, when the complainant was next interviewed, the same interviewers were involved. This interview was also unsatisfactory in terms of the manner of questioning, though, as defence counsel has rightly pointed out, the evidence is what it is. I cannot speculate upon what evidence KR might have given had she been interviewed more skilfully.
The complainant's third child witness interview was conducted on 17 August 2005. The interviewers were different. On this occasion, the complainant was much more at ease. She was still, however, reluctant to go into detail. For example, the substantive part of the interview opened as follows:
Q:Do you know why you're here today?
A:Yes.
Q:Tell us about that?
A:Um, my mum's friend [accused's name], um, was doing rude things.
Q:Mm hm.
A:And I used to sleep over his house a lot.
Q:Mm hm.
A:And he used to buy me everything.
Q:Mm hm.
A:And I used to sleep in his bed.
Q:Mm hm.
A:And that's it.
After asking a lot of questions about the accused's appearance, the interviewer returned to the subject matter:
Q:Tell us about the rude things.
A:What he done?
Q:Mm hm.
A:Um, he licked my vagina --
Q:Mm hm.
A:With his tongue. Um, he put his finger in my vagina. He put his penis in my vagina. And I think that is it.
Asked about an occasion where the accused had licked her vagina, she said:
A:Um, in the morning's he'd get up at 5 o'clock and he'd put his … uniform on and he'd go into the spare bedroom. And he'd pull my knickers off and lick my vagina and then he'd leave.
The difficulty the complainant had in isolating a particular occasion is illustrated in the following exchange:
Q:Alright. When did this happen?
A:When do you mean?
Q: Okay, you're - you're talking about a time - where you're talking about him licking your vagina and I need you to think of one time that that's happened and we'll talk about just that one time for now. So have you got that time in your head? So when did that happen?
A:I still don't quite get what you mean?
Q:That's okay.
A:Like, do you mean on a Monday or something?
Q:Well, can you remember how old you were when this happened?
A:Well, he done it lots and lots of times, so I'd say it's 7 or 8.
She was asked again to remember one time that it had happened. She said that she and the accused were in his bedroom. It was day time. This happened when she was 8. She remembered that it was after her birthday. She thought it was 2005 but she could not remember the month or the day of the week. She was unsure what grade of school she was in, but she said that if it had happened in 2005 then she was in grade 3 that year. It happened in the spare room (also referred to as her room) at the Kookaburra Crescent, High Wycombe house while her mother was at work. There was no occasion that was different from any other.
The first time something happened was when she was 4 or 5 years old. She said she was at the accused's house in Gidgegannup. She said it was a long time ago, about 2003 or 2002.
She was then taken back to the occasion that she remembered when it happened in the spare room at 5 o'clock in the morning. She described the spare room as having two mattresses and a bed. There was an old oven. The carpet was grey/blue. There were cabinets with drawers and there was a fan. The door and the room were painted a creamy colour. She described a double bed with sheets with blue flowers and doonas and pillows. She said that it happened at 5 o'clock when the accused got up for work. She said the sky was turning blue and the sun was coming up. Then:
Q:So what were you doing in the room?
A:I think I was kind of asleep.
Q:You think you were kind of asleep?
A:And I could sort of feel it.
Q:Mm hm.
A:Alright.
Q:Tell us what you mean by that?
A:I could feel it.
Q:What could you feel?
A:Him licking my vagina.
Her answers about when this occurred were inconsistent. At first, she said that she thought it was in 2004 when she was seven. She remembered that she turned 8 in 2004. After further questioning she said that it happened after her birthday in December, but she could not say what month. She said that the accused's son, R, was staying in the house also. She said her mother would occasionally stay at the house.
The complainant said that at that time she was living at the new house in Lambertia Crescent, High Wycombe. She was sleeping over at the accused's house because her mother was working and she was going to day care. She said that she would stay there on other nights also. She was looked after by the accused and by her step-father, TC.
The complainant was then asked about her statement that the accused put his penis in her vagina. She said this happened in his bedroom. She could not say how many times it had happened, but it had happened more than once. She was asked whether she could remember a time when this occurred. She answered, 'not really'. She could not recall the very last time it happened, but she said that it happened in his bedroom in Kookaburra Crescent, High Wycombe. She was then asked how many times the accused put his finger in her vagina. She said that she did not know, but it happened more than once.
When she was asked about one occasion when the accused licked her vagina, she said it was in the spare room and agreed that that was the occasion that she had described earlier. Her evidence went on:
Q:Before he licked your vagina, what were you doing?
A:I was asleep.
Q:You were asleep. Okay. So you were asleep. Did you wake up?
A:I don't know.
Q:You don't know?
A:I think I did.
Q:You think you did? So how do you know if you were asleep, how do you know that he licked your vagina?
A:Because I could feel it.
Q:And when you could feel it, were you awake or asleep?
A:I think I was half awake.
Q:What do you mean?
A:Like, I was half awake and half asleep.
Q:Okay. So what made you be half awake?
A:Because I could feel it.
She described this occurring when she was lying on her bed in her room and the accused was near the bed, bent over her. She could not say for how long the incident lasted or what made the accused stop. When he did stop she went back to sleep. She did not give any other details.
Given the lack of detail in the complainant's accounts of incidents of sexual acts being committed by the accused, it is understandable that the investigating police officers, after interviewing the accused, who denied any wrongdoing, did not prefer any charges.

Complainant's evidence at trial

In her evidence at the trial, the complainant said that she knew the accused as the cousin of her mother's former husband, TC. She said that she did not have much of a relationship with TC and that he did not do any fatherly things with her. The accused on the other hand, she saw as a father. She said:
He would take me out with him, be there for me, give me attention, be affectionate with me, show me love. I just wanted to be around him.
She described an incident at Gidgegannup when she was alone with the accused. They were in the shower together. He started washing her body and touching her vagina with his fingers. They were both naked in the shower. There was no one else in the house.
She then spoke of the incident she mentioned in her first interview when she had been in a tent in the backyard of Kookaburra Crescent, High Wycombe with R. She agreed that in the first child witness interview she said she could not recall anything happening in that incident. However, in evidence she said that she was uncomfortable and embarrassed about what the accused had done and did not want to say it aloud to the interviewers. At that time she said she preferred to write things down and draw pictures. She said she felt absolutely ashamed. She said that she 'couldn't get the words out'. She went on:
I went into his bedroom and got into his bed and I had gone to sleep and I woke up and he was touching me. He was putting his finger inside of my vagina. And he kept doing this, putting it in and out.
Are you able to say how that felt when he was putting his finger inside your vagina? --- It's extremely painful and it burned and stinged and yeah, it was horrible.
And the position of your body on the bed when he was doing that, can you recall what position your body was? --- Initially I was lying down and then when he started doing that I rolled away from him to try and protect myself so I put my knees together. I was facing the door.
Did anything else happen after he put his finger in your vagina? --- After he was doing that for a while he then pulled me on top of him and he put his penis inside my vagina. He used his hand to put it in there and then he was pushing in and out of me, thrusting repeatedly.

The complainant said that the accused was lying on his back and she was straddling him. He was holding her waist and had a hand on her shoulder. She described the penetration of her vagina as really painful. She said that when the accused finished, he gave her two white pills from his bedside drawer that she took. The accused told her they were sleeping tablets. The complainant said that the accused would regularly, at night time, give her sleeping tablets after he had abused her.
She said that there were other incidents that occurred in the accused's bedroom at Kookaburra Crescent, High Wycombe. On one occasion, she was on his bed when the accused made her suck his penis. She described herself as, 'at the end of his legs, sort of crouched over him'. She said that he pushed her head up and down. This incident occurred during the day and ended when she heard a knock at the door. The complainant said that she panicked and went to the toilet to get dressed because she could hear her mother's voice.
She also gave evidence of another incident that occurred on the couch in the lounge room at Kookaburra Crescent, High Wycombe. She and the accused were watching a movie together. She could not recall what the movie was called, but remembered it had sex scenes in it, though it was not a pornographic movie. She said the accused kissed her on the mouth and put his tongue in her mouth and made her do the same to him.
After she watched the second child witness interview, the complainant gave evidence that she did not recall the accused giving her sleeping pills in Cunderdin, and did not remember anything of a sexual nature occurring at that time. When she was asked to explain her statement that her mother and the accused had told her that he had given her medication, she said, 'I meant that he had given me the medication and I had disclosed that to my mum that he was giving me the medication'.
After watching the third child witness interview, the complainant was asked about what the accused would buy her. She said, 'toys, lollies, take away food, anything I wanted at the time'. She also said that the accused promised to give her a ring that he kept in his bedside drawer in the Kookaburra Crescent, High Wycombe house. She recalled it as having a light blue stone.
The complainant then described another incident that occurred on the accused's bed at the Kookaburra Crescent, High Wycombe house. She and the accused were on the bed. She said that he stood her up against the bedframe and he sucked and licked her vagina. He then laid down on his back. She laid across him. She said, 'I was propped up on my knees and he put his penis in my mouth and he pushed my head down and made he suck his penis'. They were both naked. She said that the accused then pulled her on top of him and used his hand to put his penis in her vagina, moving in and out. She said this went on for a while before they had a shower together. He washed her body and stroked her vagina in the shower.
The complainant was asked about her statement in the third child witness interview that the accused licked her vagina in the spare room. She confirmed that this occurred. She said that the accused licked her vagina lots of times, 'right from when the incidents started' at Gidgegannup when she was 4 or 5 years old. She said that he would come in before work and do it. It also occurred in his bedroom.
The complainant denied that the accused ever locked her in her room or stopped her from coming out of her room. She said that he never stopped her from going into his room or locked her out of his room. Then:
Why did you sleep in [the accused] bed? --- Because that's what he wanted me to do and I wanted to do because that was the relationship we had.
So why did you want to - why did you want to sleep in [the accused] bed? --- Because I loved him and I thought that was what you do - I thought that's what love was.
Now did [the accused] at any stage tell you not to go into his bed? --- No.
Did you stop seeing [the accused] at any stage? --- Yes.
How did that come about? --- One night we were - my mum and I went in the car and we were going to a barbeque at his house and I asked her to pull over cos I was upset and she asked me what was wrong and I told her that [the accused] was doing Michael Jackson things to me and I didn't want to go there anymore.
And what happened after that? --- I never saw him again.
The complainant gave evidence of a pretext telephone call that she made to the accused on 11 May 2017. In this call she asked the accused why he had abused her, saying that she was going through counselling and needed some answers. The accused denied the suggestion that he had sexually abused the complainant and was heard to say on the recording, 'you were the one doing rude things'. The accused said, 'you couldn't keep your hands to yourself, you were doing touchy-feely stuff'. He vehemently denied doing anything wrong to the complainant. The pretext call was made on 11 May 2017. This was 12 years after the complainant was first interviewed by the police. I understood the accused's verbal responses to the complainant's questions to mean that he admitted that, 'rude things' were done by the complainant that included touching him in a sexual way.
The complainant gave evidence as follows:
And you were speaking to [the accused]? --- Yes.
Alright. He said that you were doing rude things to him? --- Yes.
Were you doing rude things to him? --- Yes.
What things were you doing to him? --- Sucking his penis, putting his finger in my vagina, him sucking my vagina, him kissing me, putting his tongue in my mouth, me putting my tongue in his mouth.
And he putting his penis in your vagina as well? --- Yes.
Why were you doing those rude things with him? --- Because that is what he told me to do. That is what he wanted.
The complainant was cross‑examined extensively as to her memory of the matters of which she spoke in her child witness interview and in her 2016 statement to the police. She accepted that when she made her statement she remembered having done two child witness interviews two years apart. She accepted that she had, in fact, done three interviews that were a matter of months apart. Accordingly, her recollection was mistaken.
The complainant accepted that she was aware that no charges were laid against the accused in 2005 because there was not enough evidence to charge him. She could not recall who told her that. She had difficulty remembering conversations that she had in 2005. She knew that she had not disclosed enough detailed information in 2005. She denied talking to her mother in order to obtain that information. She said that she had never gone into detail with her mother about what the accused had done to her and had only told her that he did Michael Jackson things to her. She said that she had talked to her mother about processes, but had never discussed the details of what the accused had done to her.
It was put to her that on a number of occasions during her child witness interviews she suggested that she had told her mother things that she was not comfortable telling the interviewers. The complainant agreed, but said that she could not recall what those things were. She agreed that she had difficulty remembering what happened in 2005. When it was put to her that she had difficulty remembering things in 2016, the complainant said that she had stated clearly what had happened without difficulty. She did not accept the suggestion that her memory had deteriorated with time. She said she could remember the offences, although she could not remember conversations with her mother about them.
It was put to her that she was willing to speak about what the accused did in August 2005 when she gave her third child witness interview, but still did not give the interviewers all the information that she provided in 2016. She accepted this proposition. It was then suggested to her that she told the interviewers in 2005 all that she could remember at that time. She denied the proposition, saying that she told the interviewers what she felt comfortable saying. It was put to her that in the August 2005 interview she told the police for the first time that the accused had placed his penis in her vagina, but was unable to give any detail of that, yet in 2016 she did provide detail. The complainant agreed. Then:
And that is because you knew that without that detail, in your mind, you thought the police would not charge, is that correct? --- No.
And what I want to suggest is that you've added detail 2016 that is not based on a true memory by you? --- It is a true memory.
She agreed that she had provided a lot of detail in 2016, but denied that it did not come from a genuine memory of events. She rejected the suggestion that she added details enough to enable the police to charge the accused. She also denied the suggestion that her mother had spoken to her about times and places in order to enable her to give an accurate chronology. She denied having any conversations with her mother in 2016 about what the accused had done to her. She could not recall whether she had spoken to her about chronological events, such as where they were living and at what school she was attending. She said that any conversations she had with her mother before she made her 2016 statement were not significant to her. She denied talking to her mother about what her evidence would be at the trial. She said that she could not recall discussing with her mother such things as dates and houses that they lived at. She said that she knew where she was living.
She was then asked about a meeting that she attended with the Director of Public Prosecutions and her mother last year. She said that she could not say whether she and her mother had a conversation about the accused before or after the meeting. She said it was not significant or relevant. She accepted, however, that they would have spoken about the trial and the accused, though she could not say specifically what things they spoke of. She said she did speak to her mother of her feelings about what was happening, but did not speak to her about what the accused did.
KR was questioned about her recollection of the first child witness interview on 15 April 2005. She remembered going with her mother, but could not recall how she got there. She could not recall what conversations she had with her mother on the way to the Child Abuse Unit. She could not recall discussing her allegations in relation to the accused. Again, in relation to the 19 April 2005 interview, the complainant said that she could not recall how she got there and could not recall any conversations that she had on the way there or before going to the interview. She recalled no conversations that followed the interview. The complainant had no recollection of how she got to the third child witness interview in August 2005 and had no recollection of any conversations that she had with her mother on that day. She could not recall when she found out that the police were not going to charge the accused following those interviews.
In relation to the first child witness interview, the complainant was asked about the first break which occurred after she had asked to see her mother. At that stage she had not told the interviewers anything. She did not recall seeing her mother during the break or anything that happened in that time. She accepted that during the rest of the interview she could not specify any particular occasions on which when things had occurred. The complainant agreed that she could not differentiate the times that things happened because 'it happened so often'. She said 'I couldn't understand as an 8‑year‑old how to differentiate the times'. Then:
So when did you recover enough memory to be able to be far more detailed? When was it that you first had all these extra memories --- As I got older.
Well, when? --- Well, I couldn't tell you.
…
So did you - what I want to know is did you have a sudden recovery of that …? --- No I didn't wake up one night and go 'oh', no.
So when? --- I couldn't tell you when. I just remember and I'll never forget them.
Except you did forget them at the time though, didn't you? --- I was 8 years old and I didn't even understand the terminology they were using.
KR said that she had had psychological counselling, but denied having any treatment to help her recover her memories. She could not recall being helped to remember things from the past and could not recall being on medication when she was receiving counselling. She did not say when she saw a psychologist for the first time, or the last. She had seen more than one.
KR maintained that she did remember in 2005 the details of the alleged offences but did not want to talk about them. It was put to her that she did in fact agree to the third child witness interviewers but she said that she was 'too embarrassed and ashamed to go into full detail about it'. She accepted that she had overcome the embarrassment she had experienced in the first two child witness interviews but said 'it was still embarrassing'. She said that she did not disclose everything to the interviewers in August 2005.
She could not recall what things she did not tell the interviewers.
The complainant said that she did not recall whether TC was living with her mother and her in 2004. She could not recall that he had been violent or that he used to watch pornography. She could not recall when she and TC split up. She could not recall the names of any of the teachers who taught her from Year 2 to Year 7.
She was cross-examined about the occasion when she was sleeping in a tent in the back yard at Kookaburra Crescent, High Wycombe when there was a storm. She accepted that she told the interviewers that nothing of a sexual nature occurred on that occasion. She did not accept that she had lied by saying that nothing had occurred. She said that she just did not want to talk about it.
She accepted that she told the interviewers in the first child witness interview that the accused had licked her vagina five or six times. She said that answer was wrong. She said that he had done so many times. She said 'it was just all the time'.
KR was then asked about the second interview where she spoke from the outset about an Easter holiday in Cunderdin with the accused. She accepted that she had been reminded of this by her mother, having watched the recording, but she had no recollection of her mother reminding her about Cunderdin. She admitted that she now had no recollection of that holiday at all. She also said that she could not recall a conversation with her mother about the accused giving her sleeping tablets, but she remembered telling her.
She was also questioned about what she told the interviewers in the third child witness interview about the spare room incident. In that interview she said that she was not sure if she was awake. The accused woke her up when he came into the bedroom. She said that she knew what was going to happen. She could give no detail of what had occurred the night before, or how she came to be at the accused's house on that occasion. She did not know what she was wearing. She did not know if the lights in the house were on or off, or where her mother was. She said she did not know who was in the house. She said she would stay at the accused's house when her mother did shift work. She did not know when she would have returned from a late shift or whether it was before or after the accused went to work.
In relation to the Gidgegannup shower incident, the subject of count 1, the complainant said that she was aged 4 or 5 and that she retained memories of that occasion. She said she was in pre-primary at school and she was living at Gidgegannup in the accused's house. She said that her mother and TC had just left in the car. She said it was something she could see in her mind. The complainant was challenged as to whether she in fact had such a memory and whether she held that memory in 2005 when she was interviewed. The complainant said she could not remember what she was thinking in 2005. In relation to that incident she could not recall what occurred after the shower. She could not recall when her mother and TC returned or whether it was a week day or a weekend. She said those things were not significant. She could not say whether it was during a school holiday or give any other details of the occasion.
In relation to the next alleged incident the subject of counts 2 and 3, the complainant was asked how she came to be in a tent in the accused's backyard with his son, R. She could not recall what led up to the tent being in the yard but she remembered being in it. She could not recall anything else about the day. She was asked why she told the interviewers that this was an occasion when nothing happened. She said that she did not want to talk about it. She was not comfortable. She was not sure whether it was possible that she did not remember it, but when it was suggested to her that nothing of a sexual nature happened on that occasion she said 'it absolutely did'.
In relation to the occasion of count 4, the complainant could not say anything about what occurred prior to the incident she described. She could not say how she came to be with the accused that day and was unable to say anything else about that day. She could not say how old she was, but thought she was 7 or 8 years old because it occurred at the Kookaburra Crescent, High Wycombe house and she was going to school.
She did not recall ever talking to her mother about dates and places.
She did not say whether the act the subject of count 4 occurred before or after the alleged occasion of counts 6 - 9, being the night of the storm. She said that the accused did the same thing on more than one occasion.
In relation to count 5, the kissing incident, the complainant remembered that it occurred in the Kookaburra Crescent, High Wycombe house. She said that the accused kissed her 'all the time' and 'whenever he had an opportunity'. However, she recalled this particular time when they were watching a sexual movie. The movie stood out because it had sexual scenes. The only details she recalled were that they were on the couch watching a movie. The accused kissed her, putting his tongue in her mouth. She did the same to him.
The complainant admitted that she looked upon the accused as a father figure and that she was affectionate towards him. She would jump on his knee whenever she could and cuddle him. She would get into his bed at night and this continued until she made her disclosure to her mother. She admitted that even after the occasions when she had experienced pain and discomfort, she continued to spend time with the accused in his bed. It was suggested to her that she would not have done so if in fact the accused had caused her pain. It was also suggested that she kept seeing the accused because he was not in fact doing anything of a sexual nature to her. She rejected these propositions.
The claimant had no recollection of engaging in sexual conduct with other children. She could not recall her mother talking to her about going into the accused's bed. She could not recall being told off for that.
In relation to counts 6 - 9, the complainant said that she could not recall when the incident occurred but it was at the Kookaburra Crescent, High Wycombe house in the accused's bedroom. Her mother was not there. She experienced pain during the incident, but not afterwards.
She agreed that she did not tell her mother at that time what the accused did. She said 'it was our little secret'. She denied that TC did anything of a sexual nature to her.
In relation to count 10, she said that she told police in 2005 of this offence. She said that it happened lots of times and that this incident was clear in her mind, although she could recall nothing else about that day. Part of her evidence was follows:
All I want to know is, is there anything that was different or specific you can remember about that time from any other time this happened? --- I couldn't tell you, no.
OK. So it was just like all the other occasions? --- Well, I couldn't tell you.
Why you couldn't tell me? --- Because I don't specifically remember this time. I don't know what makes it any different. I just have the visual in my mind and I'll never forget it.

There was no evidence to suggest that the complainant possessed any animus towards the accused prior to the point where her disclosure was made to her mother, and I discerned no feature of the complainant's evidence in her child witness interviews, or in court, that would suggest that the complainant has fabricated false allegations.
Her complaint to her mother, when it was made, the timing of it, and the circumstances in which it was made are consistent with the nature of the matters that she described and her relationship with the accused. It struck me as highly plausible that in April 2005, the complainant should identify herself with the victims of Michael Jackson whose allegations, as a matter of general knowledge, attracted great publicity around that time. I am satisfied, moreover, that the complainant in her disclosure to her mother, and in her police interviews, was not parroting reports of sexual abuse of which she may have heard in connection to that matter. Rather, the circumstances of her disclosure, including the timing of it and its terms, strongly indicate that the complainant, by that time 8 years of age, had been brought to a point of self-realisation that what had been going on was wrong and had to come to an end. Although the complaint evidence cannot be used to bolster her evidence, it is relevant to her credibility. It is consistent with the narrative of her evidence.
DR gave credible evidence of the incident in which the disclosure of the accused's acts was made by KR. She gave truthful evidence of what KR said to her on that occasion. Whilst she mistakenly said in evidence‑in‑chief that the initial disclosure on 6 April 2005 included a report of penile penetration of KR's vagina, DR quickly corrected herself in cross‑examination when she realised her mistake. DR was informed of KR's complaints over a period of time, including by means of pictures and written words (exhibit 2). I do not count that error against her in terms of her overall credibility.
While DR came across as very protective of her daughter, and very accusatory of the accused, which is understandable in the circumstances, I am satisfied that DR went no further in her conversations with her daughter in 2005 than to try to help her to isolate particular occasions of sexual abuse. The complainant's evidence in her child witness interviews and in court describes multiple acts of the kind that she described to her mother on 6 April 2005. The complainant in her child witness interviews identified Gidgegannup (Wooroloo) and Kookaburra Crescent, High Wycombe as the relevant locations. She required no assistance from her mother to do so.
Overall, DR impressed as a person who, despite the strength of her conviction that her daughter had been abused by the accused, and having a justifiable desire to see him prosecuted, did not influence KR to say anything in her child witness interviews in 2005, or her statement in 2016, that was not truthful. As I have pointed out, in 2005 she certainly suggested that something may have happened in Cunderdin, but when KR was questioned about this at some length in the third interview she said that nothing happened beyond an attempted kiss and the accused leaning 'up and down' against her. As I have observed, in her evidence in court the complainant said that she could not recall this incident at all. Indeed, I am satisfied that the complainant was not at all suggestible, and that none of her evidence reflects any input by her mother in relation to the acts or occasions of alleged abuse.
This is a significant point in the accused's defence. I have considered the likelihood that over the years the complainant and her mother did discuss the matters KR disclosed on 6 April 2005 that led to her being interviewed, yet there is nothing in the child witness interviews that in my view suggests in any way that DR was put up to making a false complaint. Furthermore, there is nothing in her court evidence that suggests concoction or afterthought. The problem with her 2005 evidence was not an inability to identify the places where things had occurred, but the occasions. That difficulty, I find, is consistent with her having being abused repeatedly over an extended period of time as she said, at a young age, by a trusted adult friend. Her evidence is that her sexual abuse by the accused commenced when they were in Gidgegannup (Wooroloo). From the evidence the family moved there in June 2002 when the complainant would have been 5 years old.
In cross-examination, the complainant was questioned at length as to the circumstances of the alleged incidents of offending. There was no suggestion that her evidence of these incidents was inconsistent with her 2016 statement which, it was suggested, contained details of which she had no actual memory. Her evidence in court was challenged on the basis that it was made up in order to ensure the prosecution of the accused which had not occurred in 2005 for the reason, among others, according to Sergeant Clever, that her child witness interviews lacked sufficient detail.
KR's evidence at trial was different from her child witness interviews in a number of significant respects. I comment on these as follows.
First, she did not tell anyone on 2005 that the accused had touched her on the vagina while they were in the shower at Gidgegannup, as alleged in count 1. This was an incident not previously recounted. Is the complainant's memory of this reliable? The evidence shows that the KR lived at the accused's house in Wooroloo for about nine months in 2002 ‑ 2003. The accused admits this fact and the fact that he, on at least one occasion, babysat KR. The complainant was seen in his bed at Wooroloo by TC and KH. The closeness of the accused's relationship with the complainant had been observed by her, TC and DR. The incident described by KR is not one that she is likely to be mistaken about. The accused was then about 44. It is the sort of thing a child would remember, but in 2005 it was of little significance in relative to the other acts she described.
Second, she recalled nothing of the Cunderdin trip, an event which featured in the third interview. Her evidence in court was that she recalled nothing of that trip. I have observed that in her evidence in 2005 suggested that something inappropriate did occur, yet the complainant, I find, honestly does not now remember that occasion.
Third, she gave an account of sexual acts committed by the accused when she got into his bed after she had been camping in the backyard in a tent with his son R and a storm came up (counts 2 and 3). When she was interviewed as a child she raised this incident, unprompted, as an occasion on which the accused licked her vagina, but then claimed not to remember what happened. I am satisfied that when interviewed as a child she could not bring herself to describe the acts committed upon her. I am satisfied that her evidence at trial recounted her actual memory of that incident. She has possessed that memory at all material times.
Fourth, the complainant did not give an account to the interviewers in 2005 of the accused kissing her in a sexual way. Her evidence at trial was that he did so on a particular occasion that she associated with being on a couch in the lounge room having watched a movie that had sex scenes in it. It is a specific memory of an event that she is unlikely to have misconstrued, or otherwise been mistaken about. Her mother's evidence that KR gave her a tongue kiss was not challenged. It is learned behaviour. It could be learned from watching television or video material of a sexual nature, but is more likely learned from experience. DR's evidence gives support to the complainant's evidence that the accused kissed her that way, at least on the occasion described in count 5. On that point, I note that Dr admitted sexualised behaviour by KR had been reported at after-school care but that evidence does not raise any doubt in my mind as to KR's truthfulness.
Fifth, she did not describe in 2005 the incident from which count 4 arises, being an occasion when the accused put his penis in her mouth that was interrupted by her mother coming to the house. The complainant's evidence of that incident accorded with her mother's evidence of a time when she went to the accused's house during the day and found the complainant in the toilet. That KR did not describe that incident during her child witness interviews is another reason to scrutinise her evidence. Did she not have a memory of this incident in 2005, or was she unable either to bring it to mind in the interview, or give expression to it? I am, after careful consideration, unable to find that the complainant invented, or might have invented this story, or was confused or possibly confused about it such that she is possibly mistaken. I have commented on the difficulty the complainant experienced in the child witness interviews. Her evidence at that time was of a series of episodes of sexual abuse that had started when she was five. In my view, it does not impugn the credibility of her evidence of this incident that she did not mention this one specifically when first interviewed.
Sixth, KR did not give evidence in 2005 that she was shown a ring, or that the accused said anything about a ring, but it was her evidence at trial that on an unspecified occasion the accused promised her a ring with a light blue stone that he kept in a bedside drawer. There is nothing to be made of this inconsistency. The accused admitted in his second interview that he kept a sapphire ring in a chest of drawers in his wardrobe and that KR knew of it, but did not admit to promising the ring to KR as she said in her evidence. The ring features in one of the drawings made by KR for her mother in 2005 that the State suggests depict the acts charged in counts 6 ‑ 9. It also features in the written account that she gave her mother at that time.
Seventh, the complainant did not state with any particularity in her child witness interviews the occasion of the commission of the acts the subject of counts 6 - 9, but they are consistent with the drawings and words in (exhibit2).
Eighth, she said in 2005 that the accused licked her vagina five or six times, but in evidence at trial she said it was 'all the time'. She could not explain why she told the interviewers something different. She rejected the proposition that she had developed a different memory. Viewing the complainant's recorded evidence, I regarded her statement that it happened only five or six times rather doubtful, as in other parts of her interview her evidence was that it occurred often. I do not find this anomaly to be material to her credibility. The overall impression she gave of frequency in 2005 is consistent with her evidence at trial of it happening 'all the time'.
I note also that the complainant admitted in cross-examination that she stated in 2016 that she was previously interviewed by police on two occasions two years apart, an obviously incorrect recollection. She was 8 years old in 2005. She was 19 in 2016. I do not consider that her mistake as to how many interviews she had, or when they were conducted, is material to her reliability generally.
I have considered the complainant's testimony carefully. While there are some features of it that bring into question the reliability of her memory of events, I am satisfied that her evidence has been honestly given and that the inconsistencies to which I have referred do not cause me doubt her veracity.
In her evidence of the various counts, she described with particularity her and the accused's body positions. She also described particular sensations, including pain, burning and stinging. She recalled what the accused was wearing. She recalled in detail the rooms where the acts were committed. These features of her evidence are consistent with memory of her actual experience, as opposed to imagined events. That she did not remember the details, such as what she did before and after can be explained by the fact that the sexual acts were extraordinary experiences against which other paled.
It is also persuasive that the first incident she remembers is having a shower with the accused and being touched on the vagina (count 1). It is the very sort of low level abuse by which a child would be conditioned to acquiesce to more serious sexual acts, as the complainant was.
The evidence the complainant gave of being given sleeping pills by the accused is significant. It would be an unusual thing for a person in the position of a carer, as the accused was, to give a 7 or 8‑year‑old child sleeping pills, even of a non-prescription variety. And unusual also that such a person would not tell the child's parent. The complainant associated sleeping pills with sexual abuse. It is entirely plausible that the accused gave the complainant sleeping pills in order to settle her to sleep after sexual activity. It is piece of evidence that in my view tends to support the complainant's credibility. The accused was a friend of DR, who he ultimately favoured over his cousin. It is unlikely that he would not have told DR about giving pills to her daughter if he thought he had a legitimate reason for doing so.
Her evidence that she was sexually abused is supported by the evidence of her diagnosis of chlamydia, though I accept that it does not prove by whom. I accept that the evidence that the accused tested negative, while not exculpatory, does detract from the prosecution case. The accused told the police he did not have a regular general practitioner and had last seen a doctor some years earlier for a flu shot. He may well have had chlamydia that cleared without treatment, or he may have obtained medication without seeing a doctor. It is not a point by which I am troubled.
The lack of evidence of damage to the hymen is another feature of this matter that tends to detract from the prosecution case. On these medical evidence, however, the absence of damage to the hymen is not conclusive. The evidence was that the hymen could heal, although it is unlikely that permanent damage would not be caused by repeated penile and digital penetration. Significantly, in my view, the evidence showed that penetration of the labia majora to the hymen would not necessarily cause damage, and Dr Palmer specifically observed that partial penetration could feel like full penetration to a child because they would feel tearing and burning. The accused told the police that the complainant would rub herself against him. He described this as 'humping' which he said was the motion of sexual intercourse. Given her age at the material time, it is highly likely, in my view, that this is what the complainant was describing, but at the accused's instigation.
The evidence of the accused buying lollies for the complainant, spending time with her and allowing her to sit on his lap is equivocal in my view. It is consistent with the accused acting in an affectionate manner, but it is not sinister in the absence of proof of abuse. It does not make the complainant's evidence more probable. I appreciate that KH, whose evidence was unchallenged, said that she observed KR to be smitten with the accused and to be 'all over him' and 'very affectionate towards him'. It can be seen that the accused rewarded and encouraged KR's affection for him. While that is relevant as relationship evidence to establish the context and background of the alleged offences, it is not evidence of propensity, as such.
The evidence of the complainant spending time in the accused's bed is of a different nature, but again, it is not evidence of propensity. The evidence of the observations of DR, TC and KH of seeing the complainant in the accused's bed was not challenged. DR said she would tell the complainant off if she saw her in the accused's bed, and would do so in the accused's presence. On the evidence, the accused acquiesced to the complainant being in his bed. I find that the evidence shows the extent to which the accused reciprocated the complainant's affections. It is not consistent with the complainant being a 'difficult child' or hard to handle, at least in the context of her relationship with the accused.
The accused has steadfastly denied any wrongdoing. I have referred to the evidence of his denials in his police interviews, in the confrontation with DR, and in the pretext telephone call. At the same time he has consistently on those occasions accused the complainant on doing things to him of a sexual nature. He told the police in 2017 that she tried to pull his pants down, touched his penis and rubbed herself against him in the manner of simulated sexual intercourse. It is argued by the defence that these admissions, potentially incriminating, are not admissions that a guilty person would make.
In considering the evidence of his denials, I am mindful that he was interviewed twice. On each occasion he participated voluntarily. He had been cautioned. He had been told of his right to speak to a lawyer. He did not avail of it on either occasion. I am also mindful of his responses to the questions asked of him about chlamydia and his agreement to get tested for infection. His response to the police on each occasion was consistent with his response to DR in June 2005 and to KR in 2017. The defence submits that these features of his responses suggest a frankness consistent with innocence.
I do not find that any of the inconsistencies between his answers from one interview to the next were lies that impugn the credibility of his denials. Yet, there are other reasons not to accept his exculpatory statements.
There is no onus on the accused to prove his innocence or anything else. If I do not accept his answers I am bound to put them aside. I also need to be able to exclude the reasonable possibility that his denials are true, before I could convict him of any or all charges. The accused's account is, in essence, that KR was a disturbed child who developed sexualised behaviours in the context of a dependent relationship with him as her carer. On his account she would come into his bed in the middle of the night, possibly sleepwalking, and try to engage in sexual activity that he would stop her doing by telling her to go back to her room, or by taking her back to her room and tying her door shut. It got the point where he locked his door, but she learned how to unlock it in order to get in.
My considered view is that the accused's account is false and cannot be accepted. I am also persuaded by the evidence as a whole that it could not be true as a reasonable possibility. Knowing that he had been observed by others over a period of time to allow KR into his bed, and knowing that KR's affection for him had also been observed, he was not able to deny that he had the opportunity to commit sexual offences against KR. So, to be credible, any answer to the allegations had to accommodate that reality. Also, projecting blame on the complainant is a means of avoiding responsibility and of neutralising otherwise incriminating evidence.
I do not find it at all plausible or believable that KR would get into the accused's bed at night, take her knickers off and attempt to engage him in sexual activity, unless she had been conditioned to do so, by a course of prolonged sexual abuse by the accused. I reject that scenario as a reasonable possibility.

Findings

Having rejected the accused's denials and his attempt to blame the complainant for compromising him, I return to the evidence that I do accept. I remind myself of the risk of a miscarriage of justice that exists in this case due to the State's reliance on the complainant's evidence as the only direct evidence of the offences, and the disadvantage at which the accused is placed in his defence by the passage of time.
Having done so, I am satisfied beyond reasonable doubt of the following facts:
1.On a specific occasion at his Wooroloo residence, on a date between June 2002 and March 2003, while DR and TC were absent, the accused showered with DR. While washing her he rubbed the outside of her vagina. This constituted an indecent dealing as charged in count 1.
2.On another specific occasion at the accused's High Wycombe residence, to where he moved in October 2003, the complainant got into the accused's bed having been frightened by rain and lightning while sleeping in a tent in the backyard with the accused's son. While she was in the accused's bed, the accused penetrated her vagina, at least the labia majora, with his finger, and then, pulling the complainant on top of him as he lay on his back, penetrated her vagina, at least the labia majora, with his penis. These acts constituted the acts of sexual penetration charged in counts 2 and 3.
3.On another specific occasion at the accused's High Wycombe residence, the accused while on his bed with the complainant put his penis in her mouth and made her suck it. This constituted the act of sexual penetration charged in count 4.
4.On another specific occasion at the accused's High Wycombe residence, after watching a movie with sexual content, the accused while sitting on a couch with the complainant, kissed the complainant, inserting his tongue in her mouth as he did so. This act constituted indecent dealing as charged in count 5.
5.On another specific occasion at the accused's High Wycombe residence, most likely between December 2004 and 6 April 2005, the accused, while on his bed with the complainant, licked the complainant's vagina before making her suck his penis. He then put his penis in her vagina, penetrating the labia majora, as she was on top of him. These acts constituted the acts of sexual penetration alleged in counts 6, 7 and 8. The accused on the same occasion, after committing these offences, took a shower with the complainant and while washing her, stroked her vagina. This act constituted the indecent dealing charged in count 9.
6.On at further specific occasion at his High Wycombe residence, most likely between December 2004 and 6 April 2005, the accused, early one morning before he went to work, went into the room where the complainant was sleeping, removed her clothing and licked her vagina. This act constituted the sexual penetration charged in count 10.

Verdicts

Accordingly, I find the accused guilty of each count on the indictment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Staude
3 JULY 2020