The State of Western Australia v JRB
[2020] WADC 31
•13 MARCH 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- JRB [2020] WADC 31
CORAM: BRADDOCK DCJ
HEARD: 5-9 MARCH 2020
DELIVERED : 13 MARCH 2020
FILE NO/S: IND 469 of 2019
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JRB
Catchwords:
Criminal law - Trial by judge alone - Sexual penetration of a child under 13 - Indecent dealing with a child under 13 - Procuring a child under 13 to engage in sexual behaviour
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty
Representation:
Counsel:
| The State of Western Australia | : | Ms S Kavanagh |
| Accused | : | Mr B Tyers |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Legal Aid Perth |
Case(s) referred to in decision(s):
Drago v R (1992) 8 WAR 488
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Longman v The Queen (1989) 168 CLR 79
BRADDOCK DCJ:
JRB was charged on an indictment, together with WM and SAL, which included a large number of charges involving the complainant, EJF. This indictment, number 469 of 2019, comprised a total of 62 counts.
JRB was charged only in relation to counts 23 - 26 and counts 46 ‑ 53. In the first group, he was charged jointly with SAL and the second group jointly with WM and SAL.
The charges against JRB are:
(23)On another unknown date between 30 November 2012 and 1 January 2015 at Beckenham SAL and JRB indecently dealt with EJF, a child under the age of 13 years, by showing her a pornographic film.
(24)On the same date and at the same place as in count (23) SAL and JRB sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of TC into her mouth.
(25)On the same date and at the same place as in count (23) SAL and JRB again sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of JRB into her mouth.
(26)On the same date and at the same place as in count (23) SAL and JRB again indecently dealt with EJF, a child under the age of 13 years, by using a vibrator on her genitals.
…
(46)On another unknown date between 1 November 2013 and 1 January 2015 at Beckenham WM, SAL and JRB encouraged EJF, a child under the age of 13 years, to engage in sexual behaviour, by encouraging her to sexually penetrate TC by penetrating his anus with her fist.
(47)On the same date and at the same place as in count (46) WM, SAL and JRB again encouraged EJF, a child under the age of 13 years, to engage in sexual behaviour, by encouraging her to sexually penetrate JRB by penetrating his anus with her fist.
(48)On the same date and at the same place as in count (46) WM, SAL and JRB again encouraged EJF, a child under the age of 13 years to engage in sexual behaviour, by encouraging her to sexually penetrate WM by penetrating his anus with her fist.
(49)On the same date and at the same place as in count (46) WM, SAL and JRB sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of WM into her mouth.
(50)On the same date and at the same place as in count (46) WM, SAL and JRB again sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of TC into her mouth.
(51)On the same date and at the same place as in count (46) WM, SAL and JRB again sexually penetrated EJF, a child under the age of 13 years, by introducing the penis of JRB into her mouth.
(52)On the same date and at the same place as in count (46) WM, SAL and JRB procured EJF, a child under the age of 13 years, to do an indecent act, by procuring her to use a vibrator on the genitals of SAL.
(53)On the same date and at the same time as in count (46) WM, SAL and JRB indecently dealt with EJF, a child under the age of 13 years, by engaging in sexual activity in her presence.
In relation to the 12 charges, JRB has pleaded not guilty.
Trial by judge alone
An order that these charges be heard by judge alone, pursuant to s 118 of the Criminal Procedure Act 2004 (WA), was made by his Honour Chief Judge Sleight on 20 June 2019.
Brief overview of the State case
EJF is the daughter of SAL, who was in a relationship with WM. EJF believed WM to be her father. EJF has a brother by the name of OF.
SAL and WM have been convicted of a series of charges arising out of a long term course of conduct of offending against EJF, some of which involved the participation of other parties. Not all charges involved both SAL and WM.
SAL and WM pleaded guilty in this Court, they were recently sentenced for many sexual offences against EJF.
An agreed statement of facts was tendered in evidence[1] at trial detailing the conduct of SAL and WM. This conduct extended over a period between 1 December 2011 and June 2015.
[1] Exhibit 1.
The State case against JRB arises out of disclosures made by EJF in February 2018 and March 2018 when she was interviewed by the police. Counts 23 - 26 were said to have occurred on one occasion at the house of JRB, when EJF was aged 5 or 6 years old. The State allegations involved JRB, SAL, and a man called TC, alleged to be the brother of JRB.
The State alleged that on that occasion, at a house in Beckenham, all parties showered, smoked a pipe of some substance, then watched a pornographic movie in TC and JRB's bedroom. The State alleged that SAL performed fellatio on TC and JRB and required EJF to do the same thing. The male offenders got some 'coloured sticks', which the State allege were vibrators, they used the vibrators to 'tickle' EJF's and her mother's 'wee spots'.
The State alleged, in relation to counts 56 – 53, that on a second occasion said to be EJF's seventh birthday, further offending occurred at TC and JRB's house. The State allege that SAL, WM, TC, JRB and EJF took showers. WM gave EJF a pipe to smoke. A 'sex movie' was shown and they all lay on the bed. There, the adults all engaged in sexual activity with each other in EJF's presence. EJF was encouraged by WM to put her fist into the anuses of TC, JRB and WM. The State allegation is that she did penetrate the anuses of the three men. Subsequently, EJF was required to perform fellatio on each of the men. She also 'tickled her mum's wee spot' with a stick, said to be a vibrator by the State.
No complaint was made until February 2018 and March 2018, when EJF was interviewed on a number of occasions by a child witness interviewer and recorded.
Principles of law
In a trial conducted under s 188 of the Criminal Procedure Act 2004 (WA), the judge is required to apply the same law and procedure as would be applied if the trial had been heard by a jury.
Therefore, as a matter of law, the following principles apply.
JRB is presumed to be innocent of all charges brought against him and the State bears the burden of proof in relation to each charge. Each element of each offence must be proved beyond reasonable doubt.
JRB does not need to prove anything.
Although the 12 charges are being tried together, the legal effect is that there are 12 separate trials and the evidence in relation to each must be considered separately.
In a criminal trial, a determination must be made solely on the evidence without speculation. Evidence is the testimony from the witnesses called, and the materials tendered in evidence.
The evidence must be considered dispassionately and objectively. Nothing said by counsel either in eliciting evidence, cross-examining or submissions constitutes evidence.
I am the judge the law and the facts. I must assess the credibility and reliability of each witness. The evidence of a witness may be accepted in whole or in part or rejected likewise. In making that assessment, everything about the witness may have a part to play.
JRB did not give evidence in this trial. It was his right not to do so and no adverse inference may be drawn against JRB for exercising his right to silence.
JRB gave an interview to the police, under caution, when he was arrested on 26 April 2018.[2] That interview forms part of the evidence which I am to consider in determining the question of whether the prosecution case has been proved beyond reasonable doubt.
[2] Exhibit 6.
Pursuant to s 36BD of the Evidence Act 1906 (WA) , I am bound to warn myself that the absence of complaint or the delay in complaining on the part of a complainant does not necessarily mean that the allegations are false. I must inform myself that there may be good reasons why a person in the position of the complainant may hesitate in making or refrain from making a complaint.
EJF's testimony is the only evidence of the commission of the offences on the indictment. I must accordingly be satisfied beyond reasonable doubt of its truthfulness, accuracy and reliability.
I must scrutinise EJF's evidence with special care, taking into account that the allegations are of serious sexual offending alleged to have been committed approximately between five and eight years ago when EJF was very young. There is no evidence of prompt complaint. There is no corroboration or confirmation of the evidence of EJF as to the commission of the offences.
There was no early investigation of the allegations in relation to JRB. In these circumstances both the quality of EJF's evidence and the forensic disadvantage suffered by JRB warrant careful consideration.[3]
[3] Longman v The Queen (1989) 168 CLR 79; DWM v The State of Western Australia [No 2] [2019] WASCA 143Error! Bookmark not defined.Error! Bookmark not defined..
I must remember that EJF was a young child at the time of the alleged offences, between 5 and 8 years of age. She was still young when she spoke to the police in February 2018 and March 2018.
I must direct myself that human memory is fallible and the longer the delay in a case the more opportunity there is for error. It is a matter of experience that over a period of time a witness may be convinced that a mistake in recollection is true.
The passage of time upon the memory is of particular significance in relation to young witnesses. A number of matters that bear upon the reliability of EJF's testimony will be considered in detail later in this judgment.
JRB was not notified of any charge until 26 April 2018. It will be necessary to consider the extent to which JRB has been disadvantaged in his defence, by reason of matters such as his own loss of memory, as well as the opportunity to adduce evidence in his defence.
Whilst I may act upon the evidence of EJF to convict, I could not safely do so, unless having scrutinised her evidence with great care and having considered the passage of time and forensic disadvantage suffered by JRB, I was satisfied beyond reasonable doubt of its truth and accuracy.
The elements of the offences
The allegations against JRB involve four types of crime against a child under the age of 13 under the Criminal Code Act Compilation Act 1913 (WA) (the Code): indecent dealing, s 320(4), sexual penetration, s 320(2), encouraging to engage in sexual behaviour, s 320(3); and procuring an indecent act, s 320(5).
The date and place upon which it is alleged an offence occurred do not require proof beyond reasonable doubt, being particulars not elements of each charge.
Before considering each of those offences separately, I note that every criminal charge requires proof by the State of identity, that is proof that it was JRB who did the acts that constitute the offence in question and not someone else.
Involvement in a criminal offence is dealt with in s 7 of the Code. The State alleges that JRB was involved as a principal offender pursuant to s 7(a) of the Code. There was no dispute about this at trial. In effect, it is alleged JRB either did the acts himself or was involved directly in the acts of others constituting an offence.
Counts 23, 26 and 53 allege that JRB indecently dealt with EJF contrary to s 320(4) of the Code. To prove the offence of indecent dealing the State must prove the following:
(i)identity;
(ii)a dealing;
(iii)that was indecent; and
(iv)that the child was under the age of 13.
In relation to children under the age of 16, no issue of consent, or lack of it, arises in relation to any charge under s 320 of the Code.
Section 319(3) of the Code provides that:
a reference to a person indecently dealing with a child or an incapable person includes a reference to the person -
(a)procuring or permitting the child or incapable person to deal indecently with the person; or
(b)procuring the child or incapable person to deal indecently with another person; or
(c)committing an indecent act in the presence of the child or incapable person.
To deal with a child includes any act which, if done without consent, would constitute an assault. It includes any form of physical contact, directly or indirectly administered to the child. Dealing is defined in the Shorter Oxford English dictionary[4] as, inter alia:
mode of acting towards others, treatment of others' conduct, behaviour.
[4] Shorter Oxford English dictionary, 6th ed, 2007.
Indecency is not defined in the Code. Indecency is a concept involving the proprietary of the conduct. It is any conduct which, judged by the standards of ordinary people would be regarded as offensive to ordinary standards of behaviour, improper or inappropriate in a sexual context.[5]
[5] Drago v R (1992) 8 WAR 488.
There was no issue in this trial that EJF was, at all relevant times, a child under the age of 13. Her birth certificate was tendered in evidence[6] and reveals that she was born on 1 December 2006.
[6] Exhibit 3.
Counts 24, 25, 49, 50 and 51 are allegations of sexual penetration of EJF without her consent. Specifically, by introducing the penis into her mouth.
Section 319(1) of the Code provides:
to sexually penetrate means -
(a)to penetrate the vagina (which term includes the labia majora), the anus, or the urethra of any person with -
(i)any part of the body of another person; or
(ii)any object manipulated by another person,
except where the penetration is carried out for proper medical purposes; or
(b)to manipulate any part of the body of another person so as to cause penetration of the vagina (which term includes the labia majora), the anus, or the urethra of the offender by part of the other person's body; or
(c)to introduce any part of the penis of a person into the mouth of another person; or
(d)to engage in cunnilingus or fellatio; or
(e)… (omitted)
To prove sexual penetration under s 320(2) of the Code the State must establish:
(i)identity; and
(ii)sexual penetration, as defined above;
(iii)of a child under 13 years.
Counts 46, 47 and 48 are allegations of procuring a child under the age of 13 to engage in sexual behaviour, contrary to s 320(3) of the Code. To prove these offences the following elements must be proved:
(i)identity; and
(ii)that there was encouragement; and
(iii)the encouragement was to engage in sexual behaviour; and
(iv)that the child was under the age of 13 years.
These three charges relate to the allegation of EJF penetrating the mens' anuses with her fist.
Section 319(4) of the Code provides that:
a person is said to engage in sexual behaviour if the person -
(a)sexually penetrates any person …
Count 47 is an offence contrary to s 320(5) of the Code. To prove this offence the State must establish:
(i)identity;
(ii)a procuring;
(iii)to do an indecent act;
(iv)of a child under the age of 13 years.
An indecent act means:
an indecent act which is -
(a)committed in the presence of or viewed by any person; or
(b)photographed, videotaped, or recorded in any manner …
The conduct in question is alleged to be the instigation of EJF to use a vibrator on the genitals of SAL.
The defence position
Counsel for JRB indicated that many matters were not in dispute. The defence position was that whatever occurred, JRB was not present and not involved in the conduct.
There was no dispute that JRB had met EJF when she and her family stayed at the house in Beckenham at TC's invitation.
The agreed facts show that there was no issue, but that EJF had been offended against by her parents, over a long period, in a very serious manner.
The evidence
The offending against EJF by her parents' conduct formed the background to the charges against JRB. The details of that conduct were set out as already mentioned in an agreed statement of facts.[7] From those agreed facts, it is clear that some of the offending alleged against JRB bears a marked similarity to those offences committed against EJF by her parents from the age of about 5 years onwards.
[7] Exhibit 1.
It was not in dispute that EJF knew a witness JME, who made a report to the police on 12 May 2015 about the family. JME had known the parents of EJF, at that point, for about two years. JME had not been served with her summons. By consent, certain portions of her evidence were read to the court at trial.[8] This included a complaint by EJF that 'daddy and sex with her'. And that another man had sex with her, who JME said was the son of a man who used to live with her parents. 'His dad had an arm and had been burnt. He had a hook as a replacement arm'.
[8] Trial ts 531.
JRB gave an interview to the police on 26 April 2018,[9] which was introduced into evidence without objection. The officer in charge of the investigation, Sergeant Basden gave evidence confirming the electronic record of interview, producing the birth certificate of EJF,[10] and photographs of the premises at which it was alleged the offending had occurred.
[9] Exhibit 6.
[10] Exhibit 3.
EJF's evidence
The evidence of EJF comprised three child witness interviews recorded on 9 February 2018 (CWI 'A'), 9 March 2018 (CWI 'B') and 26 March 2018 (CWI 'C'), admitted pursuant to s 106HB of the Evidence Act (the pre-recorded evidence). EJF's evidence and cross‑examination had been pre-recorded pursuant to s 106I of the Evidence Act. These materials comprised the evidence-in-chief of EJF, and her cross‑examination, in the pre-recorded evidence.
In addition, two further portions of EJF's interviews were played. These had been referred to during the cross-examination of EJF on 15 November 2019.
They comprised a portion of an interview conducted on 13 February 2018 (CWI 'E'), concerning allegations of offending by her parents and persons named as Daniel and Amy (the Daniel and Amy allegations) and a further portion of the interview of 9 March 2018 (CWI 'F'), which was not included in CWI 'B' including an allegation about a woman by the name of Kate (the Kate incident).
EJF's evidence in chief in on counts 23 26 was contained in CWI 'C'. EJF had adopted a practice of writing a note on some occasions either prior to or in the interview. In relation to these first alleged offences, she had written such a note. The note was introduced into evidence.[11] It reads: 'No:1 when mum and OF were out dad decided to have sex. So I had to listen'. It then has the names, 'me, dad, OF' circled. Beneath this are the words 'Bella' and 'Jack' and the words 'dad only' each circled. Off to one side are the words 'TC' and 'John' circled with an arrow pointing from the word 'Jack' outside the circle into the circle surrounding the words 'TC' and 'John'.
[11] Exhibit 2.
In her interview, EJF was asked whether there was something about TC she wanted to tell the interviewer, to which her response was, 'and it involves John'. She went on to say that[12] they all went for a shower. TC and John went for a shower together, her and her mum went for a shower together. Then they all got out, they took the pipe, went into the bathroom, got undressed, then went back into TC and John's bedroom. They watched one sex movie 'at the start and the end' and then 'we got straight into it'.
[12] CWI 'C' ts 24.
She said that first her mother had to 'suck TC's doodle and then John's doodle' and then she had to 'do the same as her mum'. She repeated that she had to suck TC and John's doodles. At this point she paused stating 'what have I said?' The interviewer then questioned her in detail about her disclosure.
Later EJF is asked, 'what was the very next thing that happened after John chose you?' She responded by saying that, 'they had started tickling our wee spots, then TC tried to shove it up mum's front part then but John didn't do the same to me, cos I was very young'.
EJF said after that they went for showers. They then watched another sex movie and smoked another pipe. She said she went to bed and in the morning TC drove her to school with OF in Carlisle. She said she was living at TC and John's house and that she was aged 5 or 6.
EJF was questioned about the movie. She said it 'involved a mum, a dad and their child' but she 'didn't see it' because she 'was still in the shower'. She said mum was going to show her later, but she 'didn't watch the movie'.
She said she had to film the part where her mum was sucking TC and John's doodle and then her mother filmed her when she did the same. She said she never got to see the recordings and 'nor did TC and John'.
My observation of EJF in giving this evidence, particularly the portion quoted above[13] where she gives a narrative, was different from her earlier interview. The first portion of the narrative was given extremely quickly and sounded like a recitation of a list. It concluded with the words, 'am I doing well?'
[13] CWI 'C' ts 24.
It is appropriate to note that in this interview and the earlier interviews the interviewer praised her on a number of occasions. On this occasion the question 'am I doing well?' elicited the response to keep talking and that she was doing a good job.
The second part of that narrative[14] was also something of a recitation. One view of it was that this was something that she had deliberately sought to remember and reproduce, but her presentation was, to my observation, odd and over confident. When more specifically questioned about parts of it, she was not sure of what people were doing.
[14] CWI 'C' ts 26 bottom of page.
Later in the same interview,[15] she speaks of another time she wanted to talk about that involved her mother and TC. The behaviour detailed was uncannily similar, involving a shower, a sex movie, her mother sucking TC's doodle, her sucking TC's doodle and then TC getting one of the sticks to 'tickle' her mother's 'wee spot'. The incident did not involve WM or JRB. She said that John was out with his girlfriend. She said that she was 7, she stayed the night and went to school at Carlisle in the morning.
[15] CWI 'C' ts 38.
The interview on 9 February 2018 (CWI 'A') contained much material that was evidentially irrelevant to the allegations against JRB. It appeared that EJF wished to talk about a 'Jack' at the Carlisle house but the interviewer wished to speak about it until later.
She was asked about a man called TC who 'came to the Scarborough house' (one of the residence she had mentioned in which her family had lived). She disputed that TC was at Scarborough. She did not say where he lived, but volunteered that he had a brother called John. She said that TC had babysat her at John's house. She did not remember where it was. She said she had spent nights there. She said that 'mum and dad had lived there' and that TC had let her watch adult (not in the pornographic sense) movies.
I found her demeanour in the pre-recording difficult to read. I was conscious in assessing her of the trauma that she has undoubtedly suffered at the hands of SAL, WM and TC. Her responses in relation to her father giving her 'the order' for 'fisting' the men, knowing their identities by the texture of their skin, was given, in my view, very glibly. When viewed in the context of what she had said when interviewed in detail in CWI 'B', I was unable to accept her as a witness of truth about those matters. It was clear to me that she had been 'caught out' by saying that the room was dark and was extemporising to recover her position.
The interview CWI 'A' does not include any allegation against JRB.
The significance of CWI 'A' is twofold. Firstly, EJF said that TC has a brother called 'John'. More significantly, what she said about TC and guests coming over was disclosed to the prosecutor immediately prior to the pre-recording of her evidence on 15 November 2018, to be false and confirmed as a lie in evidence.
Another factor of significance is the manner in which she was questioned about TC and his brother.[16] She said that John was watching a movie in his room, that nothing happened and she ran out of the room. She was insistent that neither TC nor John were naked. The interviewer asked her whether there was any time she had no clothes on and she said 'no'. She was asked whether there was any time that TC had no clothes on and she said 'no'. She was asked whether there was any time that John in that room had no clothes on. She said 'no, apart from showering'. When asked about the showering she said 'it was a normal shower'. She was asked whether she saw John with no clothes on in that room, she said 'no'. She was asked if there were any other times that she wanted to say about being naked with TC and she said 'no'. She was then asked, 'OK is there any other times that you want to tell me about being naked with John?' The answer was, 'no times at all'. Up until that point there had been no evidence that EJF had said to the interviewer that she had ever been naked with John.
[16] CWI 'A' ts 48 - ts 50.
CWI 'B' on 9 March 2018 contains the evidence in chief in relation to counts 46 - 53.
In this interview she wanted to talk about TC, her mother, her father, herself and JRB. She said she needed to 'write this down'. She had clearly said something in a break in the interview, and when asked, said 'dad forced me to put my fist up his bum'. She then wrote on paper at length.
The interviewer then questioned her about it. She said that they 'went for a shower, they smoked a pipe, they watched a sex movie and it was her birthday'. When asked how old she was on that birthday, she said she 'was 7'. When asked did she turn 7, she said 'yes'.
EJF said that everybody's clothes were off, they were lying down watching a movie and that her mother sucked WM's doodle, TC's doodle and JRB's doodle, not all at the same time. From the notes, she said that WM was sucking TC's doodle, John's doodle and also was licking mum's vagina, as well as tickling her vagina, with a stick. When she was asked to describe what her mother was doing at the time, EJF said that she was laying with her legs apart on the bed and 'she always does that'. At which point she pulled a face. She had written that JRB was licking mum's vagina and tickling mum's vagina and sucking dad's doodle and sucking TC's doodle.
In interview CWI 'B' she said she was forced to put her fist up TC's bum, John's bum and dad's bum. She said that her father forced her. She could not explain further than that. Her response was 'he just put it up, I guess'. She said that TC was the last one that she did, and then she went to have a shower.
She was questioned in detail about this, but was not sure what happened before she put her fist up TC's bum. She did not remember who was first. When asked what happened when she put her fist up John's bum she said 'the same as TC'. When asked to describe how John was on the bed she said 'the same as TC'. When asked what John did when she put her fist up his bum she said 'nothing'. Her account was that SAL, WM and TC were watching a movie. She said that after she took her fist from John's bum she put it into TC's. Later on she said she had to suck John's doodle, but only one time.
EJF said this happened at TC's house in TC's bedroom. Her brother OF was in bed.
It is in the course of a part of the interview on 9 March 2018, admitted separately,[17] that EJF also made an allegation of sexual conduct involving Kate, the babysitter. She again wrote down what she wanted to say. She said that on this occasion they had a shower, watched a movie, it was a sex movie, in mum and dad's bedroom and that her mother told her to go and suck dad's doodle and she did. She said that at the time dad was tickling mum's vagina. She also said that dad was licking Kate's vagina, and that she sucked dad's doodle. This evidence was elicited by reference to the notes that she had written. The allegation included her tickling mum's vagina with the stick. She described the stick as purple, soft and squishy. When everybody had finished, she had a shower and went to bed. She said that Kate stayed the night. EJF said that she was 6 years old at the time.
[17] CWI 'F'.
During this interview, she refers to her notes and answers by nodding or shaking her head and pointing to the notes as she gives some description of Kate.
In the pre-recorded evidence, EJF is obviously older, at almost 13 years old. She still appears friendly, but somewhat more wary. She said she 'hasn't lived with her parents since she was 9', and her 'brother is now 11'. She gives an account of the houses that the family lived in, as far as she can remember.
She says that in CWI 'A', the parts about TC and the guests was not true. She did not know why she had said that.
She confirmed that TC is John's brother. She met TC through her mum and dad and lived with TC in his house once. She said that she liked TC and John. He had been burnt, lost an arm and had a hook.
She confirmed that what she said relevant to charges 46 - 53 in CWI 'C' was correct and true.
She said that she remembered some of what happened in relation to counts 23 - 26. She appeared to have trouble remembering what she told the interviewer. She thought that some things were untrue, specifically the 'sticks' being involved.
She said it had been five years since she had last seen JRB, and that she met him when she was about 7. The incident where her birthday was mentioned (counts 46 - 53) was her eighth birthday and they left John's house not much after that.
In cross-examination, she confirmed that what she said in CWI 'A' about TC and the guests was made up, that the names of the guests were made up and she did not know the people. She could give no explanation as to why she said it, but that she knew it was untrue at the time.
EJF did not remember saying it was her seventh birthday in CWI 'B' but she remembered that it was her eighth birthday. She agreed that JRB was not present much. When he was present he was in his room watching movies. After some enquiries as to how long she had known JRB, she concluded that there was a period of two weeks between when she first and last met JRB. EJF was unclear as to where the alleged second incident occurred, whether it was in TC or John's room.
She said that it was dark in the room at the time she was fisting the men. She said she could not see their bums. She said that her father gave her the order in which to do it and guided her. She also said that she knew them by the texture of the skin.
She said that she had seen fisting in sex movies. She denied that it was anybody other than JRB. She denied that she had made up a story about the fisting. She was unable to explain why she made things up about Kate, who exists, but nothing sexual happened involving her.
The electronic record of interview with JRB
The electronic record-of-interview[18] was played during the course of the trial. I have also reviewed that recording for the purpose of preparing these reasons.
[18] Exhibit 6.
JRB was arrested at the Port Haven Mining Camp in Port Hedland on 26 April 2018 and conveyed to the South Hedland Police Station where he was interviewed. After being cautioned by Detective Cotton, and the usual preliminaries, he was advised (briefly) of the matters which the officers wished to interview him in connection with. His immediate response was that he could not tell them anything about it. He knew it had to do with his brother and the people that stayed at his place for a couple of days. He said he had kicked them out.
The officers then took JRB through his antecedents, his background and asked him about his property in Beckenham. He said that his brother, TC, lived there with him for about two years. He had other boarders. He said they were all working. He said his sons moved in and he got sick of TC's antics.
He said that TC had asked him, whilst he was working away, if some people could come and stay for a while. He said he permitted the family to stay. He was working fly in/fly out, on a four weeks on, one week off basis. He told TC that the people could stay for a couple of weeks, not longer. When he got home he found them still to be there and that their stuff was in his garage. He asked them to leave. He did not know precisely when they moved in because he was away. He said the family left after WM got a container and moved all of the stuff out of the garage, three days after he asked them to leave. He agreed that they were there at the same time with him for about one week.
It is not in dispute that that the people who stayed were SAL, WM and their children.
The view JRB expressed in the interview was that they were taking drugs, the kids were not going to school and he did not want them in the house. He had also had enough of TC, who he said was also doing drugs and had 'turned into a deviate' and would watch a lot of porn in his room.
He was asked about his injury and gave the police officers full details of his accident in New Zealand in 1991. Of the family of visitors he said 'they weren't very nice people'. She was a prostitute and they were junkies. When asked by the officers how old the children were, he described them as 'little tackers': the girl probably 7 or 8 and the boy was due to start school, 'he was not sure, he was only little, he'd be 6 or 7'.
Well into the interview, the officers put the allegations made by EJF directly to JRB. His response to all of the allegations was in the negative. He said 'it didn't happen'. When asked whether there was anything else he wanted to say he said 'it's all lies. The whole lot.'.
The issue
In opening for the defence, counsel said there were two issues:
1.did it happen; and
2.was JRB involved.
In both opening and closing, counsel for the State accepted that the prosecution case was totally dependent on EJF.
The issue in this case is therefore whether, on the evidence presented by the State, including the police electronic record‑of‑interview with JRB, I am satisfied beyond reasonable doubt of the veracity and reliability of EJF on the elements of the relevant offences on this indictment.
State submissions
The State case was that JRB was criminally liable as a principal offender under s 7(a) of the Code. In some counts, he was said to 'do the act' that constituted the offence, on other counts he was said to be 'acting together with' others present and 'playing a role'.
Counsel conceded that, in relation to count 23, the evidence was unclear about what role, if any, JRB played in the showing of the movie. The submission was that it could have been any of the adults who put the movie on, that there was no direct evidence, but that JRB participated.
The main submissions went to credibility. Counsel addressed the question of delay. She relied upon the normalisation of abuse that EJF had been subjected to by her parents and others. EJF had stopped living with her parents in 2015, and was reluctant, even in 2018, to talk about the abuse.
Counsel noted the evidence that EJF had not said anything about JRB in earlier interviews in October 2015 and May 2016. She submitted that little weight should be placed upon that, in the context of the overall picture. She made the submission that, in reality, JRB was a minor player involved in only two incidents and only one of the people who the State said the parents permitted to abuse EJF. Thus, the current matters would not have been foremost in her mind.
As to the lies admittedly told by EJF, counsel sought to contrast the manner in which EJF presented the accounts that she now said were untrue with those that she maintained, at the pre-recording, were true.
Counsel accepted that there was a mistake made by EJF, on the evidence, in relation to coloured 'sticks', (count 26). EJF said that she was not sure whether sticks were involved.[19] She said they were a mistake and it might have been another incident. Counsel for the State rightly accepted this was a major inconsistency.
[19] ts 322 and ts 356, 15 November 2019.
On identity, the State's submission was that it was not realistic to say that she had misidentified JRB. Counsel accepted that EJF had described him and had met him, but also accepted that there was no reference to his disability in the account of the offending behaviour.
Counsel addressed issues raised by the prior statement by EJF to JME. She said it was not necessarily irreconcilable. JME may have drawn a conclusion that the man EJF was referring to was the son of JRB. The court should discount the possibility of JRB's son being involved.
Counsel also addressed other inconsistencies in the evidence, and emphasised that there was clear evidence of opportunity.
Defence submissions
Counsel for the defence submitted that the evidence of EJF was unreliable. He pointed to the particular forensic disadvantage[20] that the lack of precision as to dates constituted in terms of marshalling a concrete defence.
[20]Longman v The Queen; DWM v The State of Western Australia [No 2].
On identity, was that it came as no surprise that EJF could describe JRB, because she had spent time in his home when, for some of the time, JRB was present.
Counsel submitted that the lies admitted by EJF were serious, and accepted as deliberate. Those lies were in relation to the 'Daniel and Amy incident', the 'Kate incident' and TC and the (non-existent) guests. His submission was that the lies which were told were difficult to distinguish by demeanour and detail from other disclosures that EJF now maintained were true. His submission was that the only reason it was known they were lies was because EJF said so. There was no explanation for the lies.
Counsel submitted that the issue of the general timeframe of the allegations had not been resolved. The first incident was said to have occurred when EJF was 5 or 6. That evidence had not been subject to any change. In the second incident, EJF said, at first, she was 7 in CWI 'B' but at the pre-recording, said that she was 8. In addition, in her evidence at the pre-recording, EJF accepted that between the time she first met JRB and last saw him, was a period of two weeks. That time difference contrasted with the evidence of the two incidents being separated by months or years, according to the indictment, and her earlier evidence.
Counsel referred to CWI 'B' where EJF gave little description about the 'fisting', although it was clear that the interviewer was trying to elicit such detail. In the pre-recording, she gave additional details, such as the room being dark, her father giving her an order, (for the offending) and differentiating the men by skin texture. In CWI 'B'[21] she said her father did not talk to her, which was strikingly different to the pre recording.
[21] ts 53, child witness interview, 9 March 2018.
Counsel submitted that the disclosure to JME was significant in that the disclosure was about somebody other than her father and mentioned a one armed man. However, was not the allegation that EJF had engaged in sexual activity with the one armed man. EJF did not remember making such a disclosure.
Counsel submitted that JRB's interview with the police was appropriate, that he tried to assist the police, and gave clear and appropriate denials. Counsel pointed to his reaction when it was suggested he had engaged in fellatio with TC.
Counsel dismissed the description of the house and of JRB as being of no particular assistance, because JRB readily accepted that the family had stayed with him. Counsel noted that EJF's description of one of the bathrooms did not accord with the photographic evidence.[22]
[22] Exhibit 5.
His ultimate submission was that there was significant doubt about whether such incidents had occurred and whether JRB was involved.
Evaluation of the evidence
In this case, the prosecution rests upon the evidence of EJF. It is significant in assessment of her evidence that she:
(a)was a child who had been grossly abused by her parents over an extended period of time, some of which conduct bears a marked similarity to the conduct alleged in this case;
(b)when she first spoke in February and March 2018 of the events relevant to this trial, was aged 11 and speaking of events which occurred when she was either 5 or 6 at the earliest and when she was 8 at the latest; and
(c)in November 2019 in the pre-recording, was speaking of the interviews that she had given, then 21 months previously.
I do not find that the delay in complaint alone has any bearing upon my view of the credibitility of the evidence.
It is no cause for surprise that a child of nearly 13 years old would have difficulty recalling precisely what she had said some 21 months previously. Many adults, even having the benefit of having seen such interviews would have that difficulty.
There are considerable difficulties for anybody in remembering and recounting events which have occurred four to six years previously. That much accords with human experience and applies equally to adults and children. The perception of time and power of recollection in young children can be different from adults. That is not to say that a child of the age of 11 is incapable of remembering what occurred many years previously, particularly a traumatic event.
These matters in this particular case fall to be considered in the circumstances of this particular child. A significant matter is that she had undoubtedly experienced repeatedly the type of offending that she describes at the hands of her mother, father and others, quite independently of the current allegations.
To my mind, the possibility of EJF being mistaken in relation to individual instances of abuse, as to what occurred, who was present and who was involved must be high. The behaviour was normalised by its extent and repetition.
My view is borne out by EJF's acceptance at the pre-recording, that she made a mistake in relation to 'sticks' being involved because 'it could have been another incident' or something 'she had forgotten'.
It is also borne out by my assessment that the effort it clearly cost her to remember incidents in the child witness interviews was significant. The evidence was that these interviews were part of a series where she was interviewed about offending against her on 11 occasions.
EJF frankly admitted, to her credit in her pre-recorded evidence, that she had made up three incidents. Those incidents involved TC and some guests. The guests were specifically named by EJF and details about them were given. In both the 'Daniel and Amy' incident and the 'Kate' incident a significant degree of detail was given. I accept that there were aspects of her testimony in relation to each of those incidents which might be described as childish or far-fetched, but there were also many aspects of her testimony upon which it would cause no surprise for a prosecution to have proceeded.
I would not expect a child of 13 necessarily to be able to account for why she said something 21 months previously, in ordinary circumstances. However, the absence of any explanation from her as to why she told lies cannot be ignored.
It is not for me to speculate why she might have told lies, save to note that she was involved in a protracted series of interviews and subjected to extensive questioning about these matters. It is, however, clear to me that she was praised repeatedly for remembering things.
I find that EJF told unexplained, elaborate and extensive lies about three incidents, in circumstances where she was aware that she was expected to speak only of things that 'really happened'.
I do not accept that there is a rational way to distinguish the accounts given in relation to the false incidents from evidence of offending in this trial.
I am unable to distinguish, by EJF's demeanour, between her true and false accounts, with the exception of some childish things, such as her exaggerated description of an 'ice cream fight' in the 'Daniel and Amy' incident, or an ambulance being called.
I am satisfied that at the time of the pre-recording EJF knew the difference between truth, lies and mistakes. She impressed me generally as a bright child, reasonably articulate for her age in both the child witness interviews and the pre-recording.
One aspect of her evidence at the pre-recording was of particular concern. In CWI 'B' she was asked to describe parts of the incident, and she was questioned deftly and extensively about the allegations of 'fisting' the men. Especially what happened before and after and whether anything was said about it. She was unable to give any information about anything said or what happened before or after. When directly asked 'did anyone talk to you about that before?', she shook her head in a clear negative response.[23]
[23] CWI 'B' ts 53.
In her pre-recorded evidence, she said that the light was switched off before the 'fisting' occurred. She said she had seen the people at the time she went into the room the light went off after 10 minutes and their voices were different. After the light was off, she could not see the people's bums. She then said that her father gave her the order where people would be lying and detailed the positions. She said also that she could feel that their skins had different textures. She said she had touched their skin before, when they were not naked, and that it was basically the same feel.
This evidence was significantly inconsistent with CWI 'B' where she was given every opportunity and prompted by relevant specific questions to elicit material of that kind. In my view at the pre‑recording she was extemporising in the face of the difficulty with her evidence that it was dark when the offending occurred.
I accept the submission from defence counsel that it is impossible to reconcile the time scale of the indicted incidents with the evidence of EJF that from meeting JRB to the last time she saw him was two weeks. It would mean that all counts occurred within weeks of each other. This is inconsistent with the indictment and the work roster of JRB, which I accept was four weeks at work and one at home.
There were other inconsistencies of detail in EJF's evidence, such as the order of fisting the men. In CWI 'B' she said clearly that TC was last, but in the pre-recording it would appear he was first.
I found JRB's interview with the police to show a man who was being frank and direct about his personal background and circumstances when questioned by the police. I found his account of how the family of EJF came to stay at his property in Beckenham to be cogent. His comments on and assessment of his own brother TC and his visitors were credible.
I entirely put to oneside the questioning of JRB about what it was alleged that his son had said to the police when they searched JRB's premises in JRB's absence. JRB did not accept the matters that were put to him, and no evidence was otherwise led to establish those assertions. They are irrelevant.
JRB's response to the detailed allegations were firm denials, given verbally, and consistent visual reactions to what was put to him.
JRB did not deny having met EJF. He was able to name and describe her. In my view, the time scale of his description and the age of the children when the family stayed at his house for a short period suggests this was when EJF was about 8. I accept JRB's account that the period for which the family would have been there might have been around four weeks, during only one week of which was he resident at the house.
In these circumstances, the fact that EJF can describe JRB's injury and his prosthetic arm carries no weight in proof of the charges laid. It proves only that she had met him and knew the story of his arm. She has not, in that sense, misidentified him.
Conclusion
I accept that some inconsistencies in detail are almost inevitable in these circumstances. I accept that the demeanour of a child being interviewed will vary greatly, due to the attention span, distractions, discomfort and fatigue.
Even taking all those matters into consideration and not forgetting the specific background of EJF referred to above, I am unable to accept her as a reliable and truthful witness as to the involvement of JRB in the alleged offending, for the following principal reasons:
(a)she has, on her own admission, lied to make false accusations of sexual offending against known and fictional people on three occasions; and
(b)she has also accepted that she may be mistaken about 'sticks' being used (in count 26); and
(c)more importantly, she said in relation to the 'sticks' that it might have been 'another incident' which renders it a real possibility that she constructed her account out of other memories of abuse; and
(d)in my view she made up details, on oath, at the pre-recording; and
(e)the time scale given on oath is impossible to reconcile with the span of the alleged offending.
JRB's responses and the information given to the police was persuasive. That of itself raised real doubts in my mind about the accuracy and reliability of EJF.
I am not satisfied beyond reasonable doubt that the State has established that JRB was present or in any way involved in the allegations set out in counts 23 - 26 and 46 - 50 on this indictment, for the reasons given above.
Accordingly I find JRB not guilty on all counts. Judgment of acquittal will be entered on all counts.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to her Honour Judge Braddock13 MARCH 2020
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