The State of Western Australia v ML
[2021] WADC 27
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ML [2021] WADC 27
CORAM: MASSEY DCJ
HEARD: 8-10 MARCH 2021
DELIVERED : 29 MARCH 2021
FILE NO/S: IND 2125 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ML
Catchwords:
Criminal law - Trial by judge alone - One count of indecent dealing with a child under 13
Legislation:
Criminal Code (WA)
Criminal Procedure Act 2004 (WA)
Evidence Act 1906 (WA)
Result:
Accused found not guilty
Representation:
Counsel:
| The State of Western Australia | : | Mr J Chu |
| Accused | : | Mr S Vandongen SC |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Tehan Legal |
Case(s) referred to in decision(s):
Azarian v The State of Western Australia [2007] WASCA 249
DWM v The State of Western Australia [No 2] [2019] WASCA 143
Hill v The State of Western Australia [2019] WASCA 209
R v Storey (1978) 140 CLR 364
SAM v The State of Western Australia [No 2] [2016] WASCA 64
The State of Western Australia v Jackson [2019] WASCA 118
MASSEY DCJ:
ML is charged with one count on an indictment dated 6 August 2018 which alleges that:
On a date unknown between 31 December 2013 and 1 January 2015 at [N], [ML] indecently dealt with [T], a child under the age of 13 years, by touching her vagina.
The conduct is alleged to be an offence pursuant to s 320(4) of the Criminal Code (WA).
An order was made on 24 February 2021 by Judge Lemonis that, pursuant to s 118 of the Criminal Procedure Act 2004 (WA), ML's trial be conducted by a judge alone without a jury.
Trial by judge alone
Section 119 and s 120 of the Criminal Procedure Act apply. Section 119 provides that I 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, then I must take the requirement or prohibition into account if those circumstances arise in the course of trial.
Section 120(2) provides that the judgment of the court must include the principles of law that have been applied and the findings of fact upon which the judge has relied. It is not enough to simply state the principles and the factual conclusions. The judgment must reveal the process of reasoning which makes clear how conclusions have been reached. Where, in the case of conflicting evidence, the evidence of one witness has been preferred over that of another I must state why that is the case.
General principles of law
The following principles have general application to this case.
The accused is presumed to be innocent of the charge against him. This presumption is not removed unless the court is satisfied beyond reasonable doubt of his guilt.
The burden of proof is on the prosecution throughout. The accused does not have to prove his innocence or anything else. He is not obliged to give evidence or call evidence in his defence. The burden of proof never shifts to the accused.
Each element of the offence must be proved beyond reasonable doubt. The words 'beyond reasonable doubt' bear their natural and ordinary meaning. Beyond reasonable doubt is the highest standard of proof known to the law. It is a high standard, but not an impossible standard.
My determination must be made solely on the evidence without speculation. Evidence is the testimony from the witnesses called, and the materials tendered in evidence as exhibits.
I must consider the evidence dispassionately and objectively, without sympathy or prejudice. I must approach the evidence in a rational and impartial way and put aside any sympathies or prejudices. I must not be concerned about the consequences of my verdict.
The questions, statements and comments of the counsel involved in this case are not evidence. Whilst I have paid careful attention to the submissions made on behalf of the State and the accused, I am conscious that the submissions of counsel are not evidence. Whilst it is proper for me to take into account those submissions, it is ultimately a matter for me as to the conclusions I reach from the evidence.
I am the judge of the law and of the facts. I must assess the truthfulness, accuracy and reliability of each of the witnesses called. I may accept the evidence of a witness in whole or in part or reject it in whole or in part. In doing so, I am bound to consider all of the evidence presented at trial. It is for me to decide what weight to be given to the evidence.
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. I must not only decide whether a witness is honest, but whether the evidence the witness gives is accurate and reliable.
I must not guess or speculate about matters which are not in evidence, or look for theories which are not supported by the evidence.
I have taken into account s 36BD of the Evidence Act (WA). Delay by a complainant in making a complaint does not necessarily indicate that the allegation that the offence was committed is false. Furthermore, there may be good reasons why a victim of an offence, such as the one alleged in this case may hesitate in making a complaint of that offence.
The accused has a right to silence. That right commenced from his arrest and continues through the trial. The accused was not obliged to speak to the police or give evidence at his trial, but he did both of those things and adduced other evidence. I am conscious of the fact that despite the election of the accused to speak to police and give and call evidence at his trial he bears no onus of proof.
If I accept what the accused said in his interview with police or in his evidence at trial that he did not indecently deal with the complainant and, specifically, that he did not touch the complainant's vagina then I must find him not guilty. Further, if his evidence creates or supports a reasonable doubt as to his guilt he must be acquitted. If I do not accept his evidence but consider that it might be true then I must find him not guilty. If I do not accept his evidence then I should put it to one side. The question will still remain: has the prosecution, on the basis of the evidence that I do accept, proven ML's guilt beyond a reasonable doubt.
Even if I find that ML lied either in his police interview or in his testimony in court, that is not evidence of his guilt. I may however take any lies I find which were told by the accused in either his police interview or in his evidence at trial into account in my overall assessment of the credibility of his account.
I cannot draw an inference of guilt, that is, an inference adverse to the accused, unless it is the only inference reasonably open on the facts.
In this case the primary issue is whether or not the State have satisfied me beyond a reasonable doubt that the accused indecently dealt with the complainant in the manner in which she alleges.
Elements of the offence
The State must prove each and every element of the alleged offence beyond reasonable doubt.
The date and place alleged in the indictment are not elements of the offence and do not have to be proved beyond reasonable doubt.
The first element the State must prove is that of identity.
The second is that the accused dealt with the complainant. Section 319(1) of the Criminal Code defines 'deals with' to include:
doing any act which, if done without consent, would constitute an assault.
It therefore includes any act where a person touches or moves or otherwise applies some force of any kind to the person of another, whether it be either directly or indirectly.[1]
[1] Criminal Code (WA) s 222.
The third element the State must prove is that the touching was a willed act, that is, that it was an intentional and deliberate act.
The fourth element the State must prove is that any dealing was indecent. The word 'indecent' connotes conduct of a sexual character.[2] Some conduct may be regarded as so offensive to common standards of decency that it should be regarded as indecent of itself, regardless of the motivation for the conduct.[3]
[2] The State of Western Australia v Jackson [2019] WASCA 118 [56].
[3] The State of Western Australia v Jackson [59].
The fourth element the State must prove is that, at the time of the alleged dealing, T was under the age of 13 years. This is not in dispute.
It is not contended by the accused that, if it occurred, the dealing was not indecent.
The evidence
T is the complainant. The State rely principally upon her evidence. The State accept that the prosecution case depends upon my acceptance of the complainant's evidence beyond reasonable doubt as truthful, accurate and reliable. Hers is the only direct evidence of the alleged offence.
The complainant gave evidence in three stages. On 15 June 2017 she was interviewed by a person of a prescribed class as contemplated in s 106HA of the Evidence Act. That interview was visually recorded. I will refer to this as the complainant's child witness interview.
She then gave evidence in this court at a trial on 7 August 2018 and that evidence was visually recorded. Her evidence was further taken and recorded at a special hearing conducted on 18 September 2020 pursuant to s 106K of the Evidence Act.
The visual recordings of the child witness interview and of T's evidence were played during the trial as constituting her evidence.
I was provided with the transcripts of each of those hearings and of the interview between ML and the police and have had regard to those transcripts as an aid. Those transcripts are not evidence and I have used them as an aid only.
The giving of evidence by the complainant in this way is a routine procedure of the court and I have not drawn any adverse inference as to ML's guilt from the use of this routine procedure.
Apart from the complainant, the State called as its witnesses the complainant's mother, SR, and the complainant's father, MR. By consent, the statement of the investigating officer, Detective Sergeant Hamilton, was read into evidence and the edited recording of the accused's interview was played at the conclusion of the reading of that statement.
The recording of the accused's interview was edited by consent.
The accused elected to give evidence himself, and also called his partner, PY.
During the course of the accused's evidence he testified that he had no criminal record.[4] PY also testified that she had never seen any behaviour in the accused which had given her any concern in relation to young children.[5]
[4] ts 573.
[5] ts 625 - ts 626.
That evidence, which might be described as evidence of the accused's prior good character, is relevant as to whether or not ML would commit offences such as the one with which he has been charged. The evidence of his good character shows that it is less likely that he would commit such an offence. In my view, however, that evidence is not relevant to the credibility of the accused.[6]
[6] SAM v The State of Western Australia [No 2] [2016] WASCA 64.
I am mindful that people do commit crimes for the first time and I must not allow convincing evidence of guilt to be overwhelmed by the character evidence which I have heard.
Summary of Evidence
Background
There are a number of facts which are not in dispute. These are set out below and I find accordingly:
1.T's date of birth is 11 July 2004.
2.T is one of two children. She has a brother who is approximately two years younger than her.[7]
3.Her parents have lived in their current address since approximately 2000.[8]
4.The accused and PY have been in a de facto relationship for about 15 years. They have three male children, all of whom are younger than the complainant.
5.In 2010 the accused and his family moved into the house next door to the complainant and her family.[9]
6.The complainant had a very close relationship to the accused's children and to PY and, as a consequence, was a frequent visitor to the accused's house. On occasion she would swim in the accused's swimming pool with his three children.[10]
7.There was at least a good neighbourly relationship between the complainant's parents and the accused and PY for a number of years. On a number of occasions SR visited PY in her house, often spending several hours with her.
8.The complainant made her complaint to police in approximately June 2017 and the accused was interviewed by police on 3 August 2017.
Summary of evidence
[7] ts 491.
[8] ts 490.
[9] ts 623.
[10] Video record of interview (VROI) ts 13.
During the course of this summary I will not mention all of the evidence. That would be impracticable. I have had regard to the whole of the evidence in reaching my conclusions.
The complainant
At the time the child witness interview took place the complainant was 12 years of age. Notwithstanding her age, she presented as articulate and as not being discomforted by the questioning of her in this format.
Her evidence from this interview was as follows:
1.Every time she went over to ML's place he would compliment her and he hugged her and kept hugging her and then he started to make her kiss him and he would kiss her. At first it was on the cheek and then he started to do it on the lips.[11]
[11] Child witness interview ts 4.
2.As to the events the subject of the charges, she went over to the accused's house with her brother for a swim with the accused's children. The accused's partner, PY, was not home and it was just the accused and his three children who were at his house.[12]
[12] Child witness interview ts 4 - ts 5.
3.The accused took her into his room and told his boys to go away. He put her on his bed and pulled her pants down and started touching her and she heard him unzip his zipper and he kept on touching her and rubbing her in places she did not want to be touched. She said that it finished when one of his boys knocked on the door and he said: 'I'll be out in a second. Go away'. She said that he then pulled up his pants and walked out.[13]
[13] Child witness interview ts 5.
4.When he started kissing her the accused kept on asking if it was okay and if she wanted him to stop. This also occurred when she was in his bedroom during the course of the incident complained of. She did not answer because she was scared. She did not know what to say or what to think because if he was doing those things then what would he do if she refused? He did not enter her, just touched her.[14]
5.She had not gone over there since the incident happened and when she did go over she would make sure he was not there and would only go over to see PY. The accused was a fly in/fly out worker and in order to check whether he was there or not she would walk out the front of her house to see if his car was there and if it was not there she would look at the backyard to check that he was not there.[15]
6.Nothing like that had happened before or since and it had only happened on the one occasion. In clarification of what she said earlier, she said that when he put her on the bed he told her to lie face down and pull her pants down so that she only had her undies on, and then he unzipped his pants and pulled down her underwear. From what she heard he pulled down his underwear and he touched her around her bottom and area. She clarified that to mean her vagina. He then got his penis out and rubbed it on her.[16]
7.Her position while lying on the bed was that her stomach was on the bed but her legs were hanging off.[17]
8.He had one hand on her and his other hand unzipping his pants and pulling down his pants. When he had one hand on her he was touching her and rubbing her and twisting her skin. She was scared and nervous and did not know what was happening but also knew what was happening because she knew about these things and that they happened to people but that nobody thought it would happen to them.[18]
9.His fingers and penis never went inside her but he kept touching her around that area. He rubbed his penis on her lower back, her bottom, and her upper legs.[19]
10.He made some funny noises which she described as sort of like deep sighs.[20]
11.By the time the kissing of her by the accused started she had been his neighbour for six years.[21]
12.When this incident occurred her teacher was Mrs H and she was in Year 5.[22]
13.The first person she told was her friend M but she said that M had forgotten about this. She had told M about a year later that her next door neighbour was touching and was kissing her. There was no way that M would have remembered because they were young and M did not have a clue what it was about.[23]
[14] Child witness interview ts 5.
[15] Child witness interview ts 5 - ts 6.
[16] Child witness interview ts 6 - ts 7.
[17] Child witness interview ts 7.
[18] Child witness interview ts 8.
[19] Child witness interview ts 8.
[20] Child witness interview ts 9.
[21] Child witness interview ts 10.
[22] Child witness interview ts 12.
[23] Child witness interview ts 14.
At the original trial on 7 August 2018 she said as follows:
1.She had viewed the recording of her interview on 15 June 2017 on Friday immediately prior to her giving evidence.[24]
[24] ts 73.
2.Everything in that interview was true and correct except she had made a mistake when she had said that Mrs H was her Year 5 teacher, and instead she was her Year 4 teacher. She said that she was in Year 4 in 2014.
3.The kissing with the accused started when she was in Year 3.[25]
[25] ts 74.
4.When the accused hugged her he would wrap his arms around her back and he would have his hands around her bottom but his hands would not move when they were on her bottom. When he did that, as well as kissing her on the lips, he told her not to tell anyone. She said this happened on more than one occasion but not every time.[26]
[26] ts 75 - ts 76.
5.What he said made her feel uncomfortable but she followed it because she was scared of what he would do if she did not. He told her not to tell anyone in a controlling voice.[27]
[27] ts 76.
6.On the day of the incident the subject of the charge she was wearing purple leggings and was unsure about her top and was wearing underpants. She said that she was not wearing bathers.[28]
[28] ts 76.
7.She and her brother were not wearing bathers at the time they went over because they walked over to ask permission to have a swim.[29]
[29] ts 76.
8.She did not see his penis but knew he was rubbing his penis on her back because she felt his hands on her back. It did not feel the same as his hands. She did not see him pull his pants down, but said she heard him do so as well as heard the zip being undone. She said she did not see him pull up his pants but she saw him do up his belt.[30]
[30] ts 77.
9.He did up his belt after one of his children knocked on the door. She saw him doing up the belt as he was walking out the door.[31]
[31] ts 77.
10.She had not told anyone straight away because she was scared, she was unsure of what would happen, and she was not sure if anyone would believe her.[32]
[32] ts 78.
11.The incident the subject of the charge occurred at the start of 2014.[33]
[33] ts 84.
12.She had realised Ms H was her teacher in Year 4 and not Year 5 as soon as she left the child witness interview. She had not told anyone about the mistake apart from her mother and father and then the prosecutor on the Friday before she testified.[34]
[34] ts 85 - ts 86.
13.She had been undergoing psychological counselling from about six years prior to her giving evidence, which she agreed put its commencement as 2012.[35] She did counselling with one counsellor for about a year[36] but that did not work. She then started seeing a different counsellor and had done so continually since 2013,[37] having sessions about every 2 weeks.[38] She had never told either of her psychological counsellors anything about the matters the subject of the charge until after she had disclosed the allegations to the police.[39]
[35] ts 89.
[36] ts 89.
[37] ts 90.
[38] ts 91.
[39] ts 90.
14.She told her psychologist in the company of her mother, but she did not give the psychologist a full explanation but just an outline.[40]
[40] ts 91.
15.The people she had told were M in 2015, and her counsellor after she went to the police.[41]
[41] ts 91.
16.When asked if she felt she could trust the counsellor, she said she did but she did not want to tell anyone because she was scared of what would happen. She said that her counsellor was someone who had more power than other people.[42]
[42] ts 92.
17.During the years of counselling she was experiencing anxiety and depression and her school performance did not suffer as a result. She earned an A to B average in 2014 and also had an A to B average in 2015. Her school attendance was the same for both of those years.[43]
[43] ts 93.
18.She was then taken to a phrase she had used in the interview with the police, which was 'he didn't enter me'. It was suggested to her that that was a very adult way of expressing it and she said that she got that phrase from the TV and radio and just common knowledge, she guessed.[44] She picked the phrase up from school and said that that was the sort of terminology that children her age would use.[45]
[44] ts 98.
[45] ts 98.
19.She would swim regularly in the pool at the accused's place and his children would swim in the pool at her place[46] and she would visit the accused's house regularly, mostly after school.
[46] ts 100.
20.She became very upset when she found out the accused's children were changing schools and had a conversation with PY that same day,[47] but denied being present when her mother had a conversation with PY about the accused's children changing schools.[48]
[47] ts 102.
[48] ts 102.
21.She denied finding out on Christmas Eve that the accused's children were changing schools.[49]
[49] ts 102.
22.The relationship was changing because no longer would she be at school with the accused's children. She said she was very close with PY and the children.[50]
[50] ts 102.
23.She would go over there nearly every day after school and her brother would play with the boys and she and PY would do things together. She said that PY had a craft room in which she would make things and she really liked going over to the accused's house.[51]
23.She, her brother and the accused's children used to walk to school together every day.[52]
24.When she had the conversation with PY about the change of schools she was very upset and crying about the change because she felt that she would not be as close with the friends that she had made. She denied blaming ML or PY because of the change of circumstances.[53]
25.She did not see ML pull down his underwear and she never saw his penis.[54]
26.She thought that he was touching her on the buttocks with his penis because she felt two hands on her back.[55]
27.She was then taken to a passage in her child witness interview where she said 'so he had like one hand on my - and then his other hand unzipping his pants and pulling down his pants'.[56]
28.She then said 'there was one hand on my back while he was pulling his pants down'. While his penis was on her he had two hands on her back, but while he was pulling his pants down he had one hand on her back.[57]
29.After the alleged incident giving rise to the charge occurred she said that she did not go over to the accused's house very often, only when he was away,[58] and only if she needed to get something from their garden or see PY or hang out with the boys.[59] She would look for his car.
30.When asked why she would risk running into him by going over to the house where this had happened she said that she did not want to seem like she was hiding something, or that she was scared to go over, because then people would know that something was up and she did not want anyone to know. If she had run into ML then she would have gone home.[60]
31.She said that she did not go over to the accused's house at all in 2017.[61] The last time she went to the house was in late 2016, at least 18 months after the sexual incident occurred.[62]
[51] ts 102.
[52] ts 103.
[53] ts 103.
[54] ts 104.
[55] ts 104.
[56] ts 105.
[57] ts 106.
[58] ts 107.
[59] ts 108.
[60] ts 108.
[61] ts 109.
[62] ts 110.
As I have said, she also gave evidence on 18 September 2020 and that evidence was recorded. She was asked some more questions in cross‑examination which were directed to the extent of her interaction with the accused's family. Her evidence about that was as follows:
1.She denied going inside the house to meet up with the accused's children when she either walked or rode to school with them.[63]
[63] ts 394.
2.She denied in 2014 telling PY that she had been on a holiday that she did not like that much in Mandurah.[64]
[64] ts 396.
3.She did not have a conversation with PY in 2014 about going on a camping trip with the accused's family.[65]
[65] ts 398.
4.She had ridden on a motorbike before and there was an occasion when she was shown how to ride a motorbike by the accused and PY. It could have been in October 2014.[66]
[66] ts 399.
5.There was a big vacant area at the back of her house and the back of the accused's house.[67] She had ridden on a motorcycle with the accused and PY present.[68] She denied being at the accused's house prior to riding the motorbike when the accused was there and said that never happened.[69]
6.She could not remember whether she went back to the accused's house after riding the motorbike.[70]
7.She could not remember PY riding on the motorcycle.[71] When the proposition was put to her that PY rode off around the block without telling anyone where she was going but was away from the park area, she said that that had never happened.[72]
8.She could not remember the accused videotaping that exercise.[73]
9.She was not standing next to the accused when PY came back. It was then put to her that while PY was away on the motorcycle that she was alone with ML and at least one of his children in the park area and she said that that did not happen.[74] She said that in a quite definitive, emphatic way.
10.She was then played two recordings, which are exhibits 6 and 7. Those recordings have a date stamp on them of 25 October 2014. She agreed that the first video, exhibit 6, showed her riding on the motorcycle[75] and that the man next to her before she took off was the accused.
11.She was not sure if the helmet she was wearing was her helmet.[76]
12.She said that she was not sure whether the accused helped her onto the bike.[77]
13.She was then shown a second recording, which is exhibit 7, which shows PY on a motorcycle coming out of a block of land which had a house behind it which was the accused's house. She said that she did not remember this happening but it obviously happened.[78] She agreed that the video tape showed PY leaving her with the accused on her own and one of his sons[79] but said she did not remember that happening.
14.In re-examination she said that she went around there and rode motorbikes because it was fun and there were other people around so she felt safer. When she asked to clarify she said she felt safer from something happening with ML.[80]
[67] ts 399.
[68] ts 399.
[69] ts 400.
[70] ts 400.
[71] ts 401.
[72] ts 401.
[73] ts 401.
[74] ts 401.
[75] ts 402.
[76] ts 403.
[77] ts 403.
[78] ts 404.
[79] ts 404.
[80] ts 406.
As can be seen from a recitation of the above dates, the complainant gave evidence some years apart and so, by the time of her final evidence, she was 16 years of age. She presented as an articulate witness in all of the recorded evidence and also an intelligent one.
Evidence of SR
SR is the complainant's mother.
Her evidence can be summarised as follows:
1.The relationship between her family and the accused's family had been a very good one, and particularly she considered that she and PY were good friends.[81] As far as she was aware, that friendship remained the same up until she became aware of the allegation, which was in May 2017.[82]
[81] ts 492.
[82] ts 492.
2.As part of that relationship she spent approximately once or twice a week at the accused's house and the accused's family would, less frequently, visit her house.[83]
[83] ts 496.
3.Her daughter T was over at the accused's house every day or every second day and was very fond of PY.[84]
[84] ts 498.
4.In 2014 T was going over to the accused's house a lot.[85] She said that sometimes she would go over to the house next door with her children, but sometimes they would go over by themselves.
[85] ts 498.
5.The frequency of T's visits to the accused's house the year before when she was in Year 3 was the same, a lot.[86]
[86] ts 498.
6.At some point in time T's visits to the accused's house became less frequent, but she could not say exactly when that happened.[87]
[87] ts 500.
7.The accused's children changed schools in 2015 and she became aware that they were going to change schools when she and her family came back from their Christmas holiday in January 2015.[88]
[88] ts 502.
8.There was never any argument between her and PY on the subject of her children changing schools and she remained friends with PY and the accused after the boys had changed school.[89]
[89] ts 503.
9.A bundle of text messages and Facebook messages between SR and PY were then tendered in evidence which generally indicated that the relationship between PY and SR was a good one.
10.In cross-examination she said that during 2013 the complainant was a very regular visitor to the accused's house and it was probably every day that she visited, usually after school.[90]
[90] ts 519 - ts 520.
11.She was asked a question about whether or not the frequency of visits was the same in 2014 and she hesitated and she was then reminded of some evidence she gave at the earlier trial when she said 'At one stage, she was over there every day at one stage'.[91] She said that she remembered saying that and it was true, but then went on to say that there was probably a period that T might have been over there every day for a week.[92]
[91] ts 521.
[92] ts 523.
12.She was then taken to evidence that she had given at the earlier hearing in the following passage:[93]
[93] ts 521.
At one stage. Are you able to say how long ago that was that she was going every day? … Probably about 2014.
Probably. Alright? … Probably
She accepted that she said that on the last occasion and it was the truth.[94]
[94] ts 522.
13.She also accepted that she had then gone on to say that this occurred 'Probably when she was in around about Year 4'.[95]
[95] ts 522.
14.She went on to say that she was very flustered and very nervous, when she gave evidence at the earlier trial just like she was now.[96]
[96] ts 523.
15.She agreed that at the earlier trial she had testified that she felt the number of times T visited the accused's house in 2014 was becoming excessive.[97]
[97] ts 524.
16.She did not want T's visits to become annoying to other people.[98]
[98] ts 525 - ts 526.
17.She told T to tone down the frequency of her visits in 2014.[99]
[99] ts 528.
18.Up until the accused's boys changed school the children were regularly going to school together, either riding or walking. She said that this changed in 2015 because they went to different schools.[100]
[100] ts 530.
19.She did not sense any resentment from PY over the course of 2013 and through 2014 towards her and said that she did not detect any cooling of the relationship.[101]
[101] ts 533.
20.Eventually the relationship changed over time because they both got busy and things changed. PY opened an antique shop and the boys would go directly to the antique shop after school, and so the frequency of the play visits between her children and the accused's children changed.[102]
[102] ts 534.
21.She was then taken to Christmas Eve in 2014 and denied that the accused's boys brought some Christmas gifts over on Christmas Eve. She said that her family had family over on Christmas Eve.
22.A proposition was put to her as to whether the complainant got very upset when she learnt that the accused's boys were changing school in 2015 and she said that T did not become very upset, like super upset. She denied that T was crying or distraught. The following evidence ensued:[103]
[103] ts 537.
She was very upset about it, wasn't she?---No.
So can you explain to me why when you gave evidence on the previous occasion, the words that you used to describe your daughter on that occasion was:
She was very upset about that.
?---She was upset, but she wasn't, like, manically sobbing.
Well, I just asked you about her being upset, and you said 'She wasn't very upset'. Do you remember saying that just a few seconds ago? Remember saying that?---Not really, sorry.
MASSEY DCJ: You're just being asked about what he said a few minutes ago, and you were asked a question, you said she wasn't very upset. So you're just being asked whether you remember that, at the moment, what you said just a couple of minutes ago.
VANDONGEN, MR: Do you agree that's what you said last time, that she was very upset? Do you agree that's what you said last time you gave evidence, that she was very upset? I just read - - -?---Yes.
- - - it to you?---Yes, sorry, yes.
…
VANDONGEN, MR: Well, maybe I can ask you this one.[104]
[104] ts 538 - ts 539.
Page 141:
Let's break that down. You agree that you took your daughter across there?---Absolutely.
Christmas Eve, and you agree that you spoke to [the accused and [PY] about what they've told you?---Yes.
Now, having heard that evidence that you gave last time, do you agree with me, firstly, that the [accused's] boys brought over Christmas cards to your house on Christmas Eve? 2014. Do you remember that?---No, I actually don't remember that.
Do you agree that you - well, do you agree that you learnt that the boys were changing schools in a Christmas card?---Yes, I do - - -
So there was a - - -?---- - - agree.
- - - Christmas card?---There was a Christmas card.
And the Christmas card contained in it words that suggested to you quite clearly that the boys were changing school?---That's correct.
And [T] read that?---That's correct.
[T] got upset when she read that?---That's correct.
Very upset?---That's correct.
23.She was then asked about evidence she had given on the last occasion. The following passage ensued:[105]
[105] ts 541.
Last time you gave evidence, 'Absolutely'. Did you take your daughter across there?---Yes.
And was that on Christmas Eve 2014?---Yes.
I'm sorry?---Yes.
And was that because they had a change in schools?---Yes.
And because [T] was upset about it?---Yes.
When you took her across there, I've already suggested to you that you were dragging her by the arm. You - you - you disagree with that, do you?---Yes.
And what do you say to the proposition that you came through the back door without knocking and started to speak to [PY] angrily? Is that true or not true?---True.
Did you say, 'How could you do this to [T]?'?---True.
And did you say, 'Look what I'm going to have to deal with now. How could you do this?'. Did you say that to [PY]?---True.
Did you say, 'Why didn't you tell me you were changing schools?' Why are you looking at the prosecutor?---(No audible answer).
Did you say, 'How could you do this? Why didn't you tell me you were changing schools?' Did you say that to her?---Yes.
And did she respond, '[SR], we wanted to make this decision by ourselves in the best interest of our children'?---Yes.
And did you say, 'You better explain that to [T]'?---Yes.
And then you left [T] there to speak to [the accused and PY]?---Yes.
Is that right?---Yes.
And when you did that, she was in tears, wasn't she?---Yes.
That is, [T] was in tears?---Yes.
And inconsolable?---Yes.
24.Having given evidence in cross-examination about the occasion when she learnt that the accused's boys would be changing school, she was then asked some more questions in re‑examination. In re-examination she said that over Christmas 2014 the accused's family were in Esperance and did not give her children their presents at that stage.[106]
25.Her children did not get presents from the accused's boys until she and they got back from their holiday which would have been the end of January.[107] She was then asked the following:[108]
And you - you were then asked about an incident during which - well, you dragged [T] across next door - - -?---Mm hmm.
- - - and had a - a - a verbal confrontation - - -?---Mmhmm.
- - - there. Did that happen?---No. I don't do verbal confrontations.
Well, do you remember having any conversation about that with PY? About the boys changing school?---I think I had a conversation with - I would have had a conversation with her about how said it would be for the guys not to be going to school together. But not - not a nasty, heated one, no.
And do you remember whether [T] was with you when you had that conversation?---No, honestly can't.
And do you remember when that conversation took place?---No.
[106] ts 546.
[107] ts 546.
[108] ts 547.
It is difficult to reconcile SR's evidence in relation to this incident about her knowledge of the accused's boys' change of school and any confrontation which took place. SR presented as a nervous witness. She volunteered that she was nervous and that she had become flustered on the last occasion. I accept that she became confused during the course of her evidence but the combined effect of what she said at the previous trial as well as her testimony at this trial and the inconsistencies I have outlined above lead me to find her testimony unreliable.
I do not accept SR's evidence that there was no verbal confrontation about the issue of the accused's children changing schools and that any discussion about it was not heated. Her evidence, as seen from the passages set out above was changeable.
The significance of this event, if it happened, is that it places the complainant in the presence of the accused after the events complained of occurred, at a time when she said that she was taking active steps to avoid the accused. According to the evidence of the accused and PY, she then remained even after her mother had left.
Evidence of MR
MR is T's father. In summary, his evidence was as follows:
1.His relationship with the accused's family was a very good relationship, where the children would play together and he and his wife would help the accused and PY out with different things and vice versa.[109]
[109] ts 552.
2.T in particular had a great affinity with PY, but also played with the boys and the boys would come over and play with his children as well.[110]
[110] ts 552.
3.The frequency of the visitations and the interactions between the children decreased from 2015 onwards.
4.He did not give the change in frequency of T's visits much thought and put it down to the fact that the boys were not often at home straight after school and would be down at the shop with PY, as well as the fact that his children had sport. As far as he was aware the reduction in visitations had nothing to do with any issues with the accused's family.[111]
[111] ts 553.
5.His family were definitely home at Christmas 2014.
6.They became aware that the accused's children changed schools by a card that the family dropped over when they got back from holiday with some presents for the children.[112]
7.Ultimately T visited the accused's house about three to five times a week, if one excluded the fact that she went there every morning to accompany the accused's children to school.[113]
8.He and his wife were concerned about the frequency of T's visits because as parents they did not want their children imposing on the accused's family.[114]
9.They tried to pull the frequency of T's visits to the accused's house back and suggested that she not go and instead do something at their place.[115]
10.Compared to 2014, in 2015 the accused's family were not at home as much in the afternoon after school.
11.Insofar as the dates of their holidays in 2015 were concerned, he had refreshed his memory by looking at Facebook messages and text messages but he knew the accused's family went to Esperance that year and his family went to Bali because it was the year that the accused's father was not very well.[116]
12.His family did not receive a Christmas card or Christmas gifts on Christmas Eve from the accused's boys. He said that it was in late January 2015 that they received those items.[117]
13.T was upset when she found out the boys would be changing school but not quite upset.[118]
14.SR did not take T to the accused's house after she learnt of the children changing schools on Christmas Eve.[119] He believed T went over to see PY at some stage, but he was not present during the course of any interaction between them.[120]
15.SR did not take T over kicking and screaming and dragging her through the door to the accused's house.[121]
[112] ts 554.
[113] ts 558.
[114] ts 558.
[115] ts 559.
[116] ts 562.
[117] ts 562.
[118] ts 564.
[119] ts 564.
[120] ts 564 - ts 565.
[121] ts 566.
I found MR to be an honest witness. However, he was not in a position to witness some of the events personally, such as the meeting between T and PY after she found out the accused's children would be moving schools.
Evidence of Detective Sergeant Dayle Malcolm Hamilton
Detective Hamilton's statement was read in by consent.
Effectively he was the investigating officer, and obtained statements from SR and MR as well as monitored T's child witness interview with police.
He arrested the accused on a street in town and then, after providing him with his Criminal Investigation Act 2006 (WA) rights, conducted an interview which was recorded. That interview was played and received as exhibit 4.
Interview with Police
In his interview with the police the accused denied any offending.
He was told early in his interview that police had received a complaint from the complainant, who the police named. When they named her, the accused's response was to say 'shit, really?' and then 'wow, she's a neighbour'.[122] Whilst I accept that demeanour is not a reliable guide to credibility, he appeared to be stunned by the allegations and my impression was that his surprise was not feigned.
[122] VROI ts 7.
In summary he said the following:
1.As far as he was concerned he saw T like one of his own children and described the complainant and her brother as 'great kids'.[123]
[123] VROI ts 8.
2.The last time he had seen the complainant was a week and a half to two weeks prior to his interview when she was umpiring his son's hockey match.[124]
[124] VROI ts 9.
3.The last time he recalled her visiting his house was 12 months ago, 'maybe' and the last time she went for a swim at his house 'could be a couple of years ago'.[125]
[125] VROI ts 10.
4.The complainant had not associated with his children for a while because they went to different schools and she had grown older.[126]
[126] VROI ts 10.
5.He said that his relationship with the complainant's parents was '…fine, I think'. He said that they had never been close friends and he saw them as friendly neighbours.[127]
[127] VROI ts 11.
6.He was not aware of any fallouts between the two of them or of any fallouts between his wife and the complainant's parents either.[128]
[128] VROI ts 12.
7.The complainant and her brother would occasionally swim in his pool and if the children were in the pool then either he or his wife would supervise them because they did not allow their children in the pool without supervision. Their rules were that if he or PY were out of the pool yard then the kids were out of the water.[129]
[129] VROI ts 13.
8.When asked if the complainant had ever been in his bedroom he said possibly when passing through going to the craft room. There was no other way into the craft room.[130]
[130] VROI ts 14.
9.His bedroom door did shut but it was not lockable as they did not have any keys for the internal doors.[131]
[131] VROI ts 15.
10.He had never babysat the complainant and her brother, although he might have been at home when they had come over to play and his partner had been away somewhere.[132]
11.When the allegations were put to him he consistently said that they did not happen.
12.He might have kissed T on the top of the head and given her a hug, just like one of the kids and he said that he gave his boys hugs and kisses and cuddles and played with them as most parents do.[133]
13.He denied kissing the complainant on the lips and was told that the complainant had said that he had taught her to kiss like adults do. He expressed surprise and said definitely not.[134]
14.When he had seen the complainant at hockey a week and a half to two weeks ago she had looked a little bit offish, but he had not seen her for a long time.[135]
15.It would be totally inappropriate for him to kiss the complainant on the lips and denied having done so. He said that he might have given her a kiss on the cheek but denied doing anything inappropriate and said that any kiss on the cheek was in the context of giving her a hug and more by way of a greeting.[136]
16.When he was asked whether the complainant came over less frequently he said that he had noticed that, but he put it down to his children going to a different school, the complainant having different friends and all of the children getting older, plus his children were young boys and she was a couple of years older than their eldest.[137]
17.The accused reiterated that he was shocked when police had come and arrested him and that he had never been under arrest before and indicated that he was blown away by the allegations.[138]
Testimony of the accused
[132] VROI ts 16.
[133] VROI ts 21.
[134] VROI ts 21.
[135] VROI ts 23.
[136] VROI ts 23.
[137] VROI ts 25.
[138] VROI ts 28.
The accused elected to give evidence. He did not have to do so and he bears no onus of proof in relation to the matter.
His evidence is as follows:
1.He had no criminal record apart from some traffic offences from some 20 years ago.[139]
[139] ts 573 - ts 574.
2.Towards the end of 2013 he was unemployed for about three months and he was unemployed in 2014 for five to six months.[140]
[140] ts 575.
3.One could not get into the craft room shown on the plan (exhibit 3) except through the bedroom.[141]
[141] ts 576.
4.In 2014 he and his partner had personal issues with the complainant's family but they were not issues which had been communicated to the complainant's parents. The issues surrounded his and his partner's feelings that they were being used by the complainant's family and some issues with their family values. They felt used because his partner was doing some house plans for the complainant's mother.[142]
[142] ts 577 - ts 578.
5.He did not have a lot to do with T as she would come over to the house to see his partner.
6.He agreed that he would peck T on the head or put his arm around her and hug her and he said that those circumstances were if he had come back from being away for work for some time and he had not seen her for a while. He might give her a peck on the cheek as well. He did that in front of other people and did not receive any response from anybody when he did that.[143]
[143] ts 578 - ts 579.
7.When taken to a passage in the interview with police where he had said that the complainant and her brother were fairly well behaved, he said that what he meant by that was that they were behaved but they did not say thank you when they came over, or knock on the door, or clean up their mess afterwards. He said that as a consequence he did not like the complainant and her brother as much.[144]
[144] ts 580.
8.What he told the police in the interview was the truth.[145]
[145] ts 580.
9.In 2014 his family made a decision to change their children's school so they would have less and less to do with the complainant and her brother. They did that because the complainant and her brother were in their house pretty much all the time, as well as some general family issues. He said that they did not communicate the issues they had with the complainant's family when they decided to withdraw their children from the school.[146]
[146] ts 581.
10.Their interaction with the complainant's family did not change from 2014 through to 2015 in the sense that their situation changed so they had less to do with them, but the way they treated each other did not change.[147]
[147] ts 581.
11.The decision to withdraw the children from the school was conveyed to the complainant's family in a Christmas card. His boys wrote in the Christmas card and the Christmas card was then delivered to the complainant's family mid-afternoon, Christmas Eve 2014.[148]
[148] ts 582.
12.The card contained a Christmas greeting and information that the boys would be changing schools. He remembered the boys taking the card over to the neighbours and then they came back straight away. He said that they were probably asked to take the presents over at the same time but he could not recall that.[149]
[149] ts 582 - ts 583.
13.About 20 minutes after the boys returned, maybe half an hour, he was sitting at the table with his partner and looked out the side window and could see the complainant's mother dragging the complainant across the lawn by one arm, with the complainant in tears, and they came straight in the back of the house, without knocking and straight up to them. He said that he was sitting at his table in the kitchen and his partner was sitting beside him.[150]
[150] ts 583.
14.The complainant appeared distraught and she was crying. The complainant's mother pointed her finger at PY, saying words to the effect of: 'How could you do this to [the complainant]? How could you do this to us? Look what - look what you've done now, you're going to have to explain to her what you've done'.[151]
[151] ts 583 - ts 584.
15.The complainant's mother was there for about a minute and then she left but left the complainant there. The complainant stayed there for about 15 - 20 minutes while his partner talked to her. He said he was there as well but he did not say much. He said that T calmed down and then she went through the house to see the boys.[152]
[152] ts 584.
16.He was adamant that this event occurred on Christmas Eve.[153]
[153] ts 585.
17.Afterwards the neighbourly relationship continued.[154]
[154] ts 585.
18.After 2014 at Christmas he did not see T for a period of time, it could have been a few months.[155]
[155] ts 585.
19.The frequency of T's visits to the house in 2014 if one included walking to and from school was pretty much daily. He said that in 2015 the frequency dropped off. His children had changed schools and his wife had started a business and he had a new job as well as issues relating to the health of his father.[156]
[156] ts 585.
20.He was then taken to exhibits 6 and 7 (the recordings of the complainant and PY riding a motorcycle) and he said that this occurred in October 2014 as shown by the date stamp on the footage.[157]
[157] ts 586.
21.Just before the video commenced he had helped the complainant get started on the motorbike by holding on to the left handlebar, which was the clutch, and the mudflap at the back and running along with her until she took off. He said that PY recorded the video.[158]
[158] ts 587.
22.Before the incident depicted in the footage, he had been in his house when his partner asked him to get the motorbike going for their children. At that stage he, his partner, his children and the complainant were in the house. The complainant had been at their house for quite a while before he went to get the motorbike started.[159]
[159] ts 587 - ts 588.
23.After he got the motorbike started the boys came outside with T. Before T could go for a ride he told her she would need to get permission from her parents and a helmet and so she went home and got her helmet.[160]
[160] ts 588.
24.After the complainant had ridden the motorbike PY went for a ride and at one point in time was out of their view. He said that during that period of time the complainant was standing right beside him and he thought that his two older sons were there as well.[161]
[161] ts 590.
25.In 2017 the complainant came to his house about two months before he was arrested. He saw her in the craft room. She was being shown a model of the Burj Al Arab in Dubai which one of his children had completed for a school project. He walked in and said hello and then left.[162]
[162] ts 591 - ts 592.
26.He would never leave any of his boys alone in the pool area. He said in 2014 his youngest son was three years of age and he would never have left him on his own, either in the house or in the pool area, knowing that the intention of the children was to go to the pool. If he did that then the children might have a go at getting the gate open and his youngest son at that age could not swim.[163]
[163] ts 592.
27.He denied the allegations. He denied ever touching the complainant in a sexual way.[164]
[164] ts 592 - ts 593.
28.When he participated in the interview he had been arrested that day when he was doing some maintenance on his car. He was definitely in shock at the time of the interview, as he had been accused of something of which he had no idea. When he was arrested he was told that he was under arrest for two counts of indecent dealing with a child under the age of 13, but the first time he learnt the complainant's identity was about six minutes into the video when the police told him.[165]
[165] ts 593 - ts 594.
29.When asked about the complainant's allegation that the incident had finished when one of his boys had knocked on the bedroom door, he said that his family had an open door policy which was to never shut their doors and his children had never knocked on doors.[166]
[166] ts 595.
30.In cross‑examination he testified that the relationship between his family and the complainant's family was initially quite good.[167]
[167] ts 595.
31.Although he and PY had resentment towards the complainant's family, the complainant's family had not indicated any resentment towards his family.[168]
[168] ts 596.
32.He said that the issues he and PY had were with the behaviour of the complainant and her brother, where they would leave a mess at his house and not clean up and nor did they knock on the door when entering the house, that he did not like the way they interacted with his children and there was an instance about pornography. He said they made the decision to change their boys' schooling because of those issues.[169]
[169] ts 596.
33.On Christmas Eve 2014 SR came over with the complainant and launched into a verbal attack on his partner. The complainant's mother was very angry and he agreed with the proposition that it was shocking behaviour on her part. He agreed that it was not something he would forget, but accepted that he did not mention it to the police during the course of the interview.[170]
[170] ts 598.
34.He agreed that he did not tell the police about any of the behavioural issues he had with the complainant and her brother.[171]
[171] ts 598.
35.He accepted that he had told the police the complainant and her brother were great kids.[172]
[172] ts 599.
36.He accepted that he had told police that he was not aware of any fallout between his family and the complainant's family but said that he did not regard the incident on Christmas Eve, where the complainant's mother came over and verbally attacked PY, as a falling out and said that this was one small instance in seven years of neighbourly relationship.[173]
[173] ts 600 - ts 601.
37.He confirmed that he knew the importance of answering the questions carefully in the police interview because they could be used in court.[174]
[174] ts 602.
38.He was then taken to what was given to the complainant's family on Christmas Eve and he said that there was definitely a Christmas card given to them but he was not sure about presents being given to them. He accepted that this was different to the evidence he gave at the last trial where he had said that the presents had been sent over with the boys. He also accepted that he had said the same thing in an affidavit he swore in 2018. He accepted that during his testimony at this trial he had said he did not recall the presents going over and accepted that that was different to his evidence at the last trial. He said that was because he had received the text messages since the last trial which are in evidence as exhibit 1.[175]
[175] ts 603 - ts 604.
39.He accepted that the text messages show that the complainant's mother was looking after their house and chickens while they were away immediately after Christmas Eve in 2014.[176]
[176] ts 606.
40.In 2014 the complainant and her brother used to come over a lot and on some of those occasions used his swimming pool. He accepted that he was home on some of those occasions and that he was unemployed for a significant part of 2014 as well as three months from the end of 2013. He would have been home when he was unemployed at the same time the complainant and her brother were coming over all the time.[177]
41.Despite having barely any interaction with the complainant, he accepted that there were times when the complainant came over for a swim when his wife was out and that there were times when he was home alone with the children. He accepted it was not unusual for the complainant to come over and ask for his permission before using the pool.[178]
42.In 2017 the complainant came to their house in May or June. He accepted that he told the police he had seen the complainant 12 months before his arrest.[179] I note that although this proposition was put to him in this way, the words actually used in the interview were '12 months, maybe'.
43.He accepted that when he had seen the complainant at hockey about a week and a half to two weeks before the police interview, he had told the police that prior to that occasion he had not seen her for a long time.[180]
44.The allegations made by the complainant were then put to him and his response was that those events never happened.[181]
45.In re‑examination he said that he had been living with these allegations for 3 ½ years and that they had consumed him.[182]
46.He did not raise some of the issues relating to the relationship between his family and the complainant's family because they were, in effect, private issues and he and his partner did not do confrontation with people and wanted to move on as a family and did not see these as big issues to raise with the police.[183]
47.He was asked about refreshing his memory from the text messages that were provided by way of disclosure. He confirmed that they were not text messages which involved him, but were between his partner and others, and that reading those text messages assisted him in remembering that he and his partner had asked the children to take over the card and the presents. As far as he was concerned, that had happened but, as it turned out, the children did not take the presents over. He said that when he gave evidence previously he believed that the presents had been taken over.[184]
Evidence of PY
[177] ts 608 - ts 609.
[178] ts 609 - ts 610.
[179] ts 612.
[180] ts 613.
[181] ts 614 - ts 617.
[182] ts 619.
[183] ts 619.
[184] ts 621 - ts 622.
The defence then called PY, who is the de facto partner of the accused.
Her evidence was as follows:
1.The locks on the bedroom doors in the house were not in operation back in 2014 or at any time when they lived in the house because they never had the keys and the bedroom door had been painted with several layers of paint over it.[185]
[185] ts 624.
2.The house was open with bedroom doors being left open. When the boys were entering the door they did not knock back then and still did not knock and just opened the door and came in.[186]
[186] ts 625.
3.When other children came over she observed the accused's interaction with those other children to be at a bare minimum, apart from saying hello to them.[187]
[187] ts 625.
4.As long as she had known him he had never given her any cause for concern in relation to young children.[188]
[188] ts 625 - ts 626.
5.She became friendly with the complainant's family and more so with the complainant's mother.[189] Insofar as the accused was concerned she would not have said he had a relationship with the complainant's father in particular and with the complainant's mother it was a neighbourly relationship but she would not have said it was ever close.[190]
[189] ts 626.
[190] ts 627.
6.Her relationship with SR was much closer initially in the years 2010 - 2012.[191]
[191] ts 626.
7.The relationship with SR consisted of SR coming over for cups of tea and coffee and they would talk for long periods in the day, but they were not best friends, did not go on shopping trips, never went out for a coffee and never went away on weekends. It was a close neighbourly relationship.[192]
[192] ts 626.
8.Their relationship started to change as PY had some internal resentment going back to 2012 to do with a P & C issue. Through 2013 she felt that she was being taken advantage of over some kitchen renovations with which she assisted. She said that the complainant's mother was constantly whinging about issues at her home and that, coupled with her children being over nearly every day, it became too much and so resentment built up.[193]
[193] ts 627.
9.She did not communicate that resentment to the complainant's family,[194] despite the text messages, which she agreed showed a friendly neighbourly relationship.
[194] ts 628.
10.In 2013 - 2014 the complainant was coming over to her house all the time, pretty much every day after school and most of the weekends, five to six times a week and that occurred right until the end of 2014.[195]
[195] ts 629.
11.In the latter part of 2014 her children started walking and occasionally riding to school and the complainant would come over and go with her children to school, coming into the house while she was waiting, even when the accused was there. From September 2014 the accused was out of work and so was at home in the mornings.[196]
[196] ts 629 - ts 630.
12.Her relationship with T was a close relationship and they did crafts together.[197]
[197] ts 630.
13.T did not really interact with the accused apart from to say hello.[198]
[198] ts 631.
14.On an occasion, which she thought was in 2012, she saw the complainant's brother in her house at the computer with the words 'fucking vagina' typed. The complainant's brother went home and she followed after a little while. When she saw the complainant's mother she was on her way to the fence and the complainant's mother cut her off and said 'it wasn't [the complainant's brother] and that's the end of it' in a very firm manner.[199] (SR denied any such conversation occurred when this was put to her.)
[199] ts 631 - ts 632.
15.The only physical contact she had seen between the complainant and the accused was if MC had been away for work and had not seen the complainant and her brother for a very extended period of time. On those occasions there might be an arm around a shoulder or a pat on the head or he might kiss them on the top of the head.[200]
[200] ts 633.
16.The complainant and her brother came over to play in their swimming pool from time to time and her children went swimming at the complainant's pool about five to six times.[201]
[201] ts 633.
17.She and the accused had rules about the swimming pool which included never leaving children unsupervised in the pool.[202] In 2014 her youngest son was three and was not able to swim.[203]
[202] ts 633.
[203] ts 633 - ts 634.
18.She was taken to the recordings of the riding of the motorcycle which are exhibits 6 and 7. She said that it was she who was recording the footage of the complainant on the motorbike on 25 October 2014. She said that she knew the date because she had watched the video which had the date stamp printed on it.[204]
[204] ts 634.
19.Before that recording was made she was in her house and her three children and the complainant were all there, with the accused in the office, from memory, but inside the house.[205]
[205] ts 635.
20.One of her children asked if the accused could get the motorbike going and he went out and did that for a while to get it going. While he was outside the children carried on playing.[206]
[206] ts 635.
21.When he got the motorbike started all of the children, including the complainant, went outside and then down to the back and out the gate to a parkland reserve at the rear of their house.[207]
[207] ts 636.
22.The complainant told her she wanted to have a go at motorbike riding and was told by PY that she would need to ask her parents. The complainant left and then came back with her bicycle helmet.[208]
[208] ts 636.
23.The accused helped all of the children, including the complainant, by helping them get onto the bike, getting them going and letting the clutch out.[209]
[209] ts 637.
24.She noticed nothing different about the complainant during her interactions with the accused on that day.[210]
[210] ts 637.
25.After the children had a turn she had a ride on the motorcycle and for a period of time was out of sight from her children, the accused and the complainant.[211]
[211] ts 637.
26.When she left, the complainant was standing next to the accused. When she came back she remembered the complainant being next to the accused. She said that her eldest son was not very far away. The accused was recording her motorcycle ride.[212]
[212] ts 638.
27.She was asked whether she could recall any time when the complainant asked her whether the accused was home and she said that she did not.[213] The complainant had not asked her when the accused was coming home or whether he was in the house.[214]
[213] ts 638.
[214] ts 638.
28.There was a period in her life when money was tight[215] and they were worried about losing their home and so she started picking things up from verge collections and selling them.[216] People would leave money in her meter box, which explained the content of some of the text messages between her and the complainant's mother relating to the complainant's mother picking up cash out of her meter box for her.[217]
[215] ts 639.
[216] ts 640.
[217] ts 640.
29.In 2014 the sort of holidays PY's family participated in were camping holidays. She said that at one stage towards the end of 2014, in December, she had a conversation with the complainant about holidays, where the complainant expressed some dissatisfaction about a holiday she had in Mandurah.
30.The complainant said that the camping holidays taken by the accused's family seemed a lot more fun than her holidays and said that she would like to come camping with them. During this conversation the accused came into the room and participated to some extent in the conversation.[218]
[218] ts 643.
31.The withdrawal from the complainant's family came over the course of a number of years but probably half way through 2013 and more in 2014.[219]
[219] ts 643.
32.She and ML decided they would communicate the decision to change schools to the complainant's family on Christmas Eve 2014 when she had one of her children write in a card.[220]
[220] ts 644.
33.She asked the children to take the card and the presents over to the complainant's family to leave on the front door. She said the children took the card and later that night she realised they had not taken the presents.[221]
[221] ts 645.
34.Between the children taking the card and her realising that the presents had not been taken, the complainant and SR came over to their property. She said she could see SR had the complainant by the arm and was walking across and then came straight through the back door without knocking and came straight up to her and the accused. She then stood between them and launched into a verbal attack. She said words to the effect of 'How could you have done this? Why didn't you tell me? Look at her'.[222]
[222] ts 645.
35.She was totally shocked and told SR that they needed to make the decision in the best interest of their family. SR responded by saying that they could explain it to the complainant, and then stormed out of the house, leaving the complainant at their house.[223]
[223] ts 646.
36.She and the accused then spoke to the complainant, who was inconsolable and sobbing. She and the accused talked to her and after they talked to her the complainant stayed in their house for a while, going through to see the boys.[224]
[224] ts 646.
37.In 2015 the frequency of the complainant's visits to their house reduced a lot after the children changed schools.[225]
[225] ts 647.
38.In 2015 she opened a business as well which did not close until 5.30 in the afternoon. The children came to the shop after school and they did not get back until after dinner time to their house.[226]
[226] ts 647 - ts 648.
39.In 2017 the complainant came to their house only a few weeks before the accused was arrested.[227]
[227] ts 648.
40.This occurred close to the end of the first semester, which was in the middle of the year. The visit from the complainant occurred on a weekend.[228]
[228] ts 649.
41.She had not seen the complainant for quite a long time and was standing in their kitchen when the complainant walked into the kitchen without knocking, which she always did.[229]
[229] ts 649.
42.She was quite surprised to see her because she had not seen her for a while and she had grown up a lot.[230]
[230] ts 649.
43.She and the children were in the house but she did not remember where the accused was and could not say whether he was there or not.[231]
[231] ts 650.
44.They spoke about a few things to do with high school and then the complainant asked her about a quilt they had been making some time before. She responded by saying she thought she would be a little bit old for that now and the complainant said that she still really would like to do that.[232]
[232] ts 650.
45.PY did not want to do that because she had spent some time trying to separate their family from the complainant's family, so she responded by saying that life was pretty busy.[233]
[233] ts 650.
46.The complainant went into the craft room to see some rearrangements they had done in there. PY's children and the complainant's brother were in there and they were looking at Lego. One of her children had made a big model of the Burj Al Arab in Dubai and wanted to show her and her brother, which they did. After that the complainant came back through to the kitchen where they carried on their conversation for a while.[234]
[234] ts 651 - ts 652.
47.In cross-examination she said that despite the help she was getting with various things from the complainant's mother she had resentment building towards them over many things.[235]
[235] ts 656.
48.When asked whether the complainant's family had ever shown any resentment towards her family, she said there had been a couple of instances which she detailed at the request of the prosecutor.[236]
[236] ts 657.
49.She thought SR was quite jealous of her relationship with the complainant and her brother.[237]
[237] ts 658.
50.Despite those incidents SR continued to collect money from the meter box for her, over a very small period of time of probably about a week.[238]
[238] ts 659.
51.She agreed she had a close relationship with the complainant but said the complainant spent probably more time with her boys than with her.[239]
[239] ts 660.
52.Their children loved the accused and he played with them all the time.[240] He never interacted with other people's children.[241]
[240] ts 662.
[241] ts 663.
53.She trusted the accused with the supervision of her children absolutely.[242]
[242] ts 664.
54.She was asked whether she would ever leave her children alone with the accused and she said very rarely in 2014. She said she could not think of an example when that actually happened and if it did it would be an absolute rarity.[243]
[243] ts 664.
55.She was asked to explain what she meant about not liking the family values of the complainant's family. She said that she did not like lots of things, such as the way the complainant's father treated her mother, the way they dealt with the complainant's issues, and that their children had been exposed to pornography. She said the list went on and there were many reasons.[244]
[244] ts 667.
56.On Christmas Eve 2014 she asked the children to take a present over to the complainant's house with a card telling them that the children were changing schools.[245] Ultimately that was not what happened, because the present was not actually given to the complainant's family at that point in time, which she found out later that night.[246]
[245] ts 668.
[246] ts 669.
57.She was then taken to her evidence at the last trial and accepted that she mentioned nothing about the presents not being delivered.[247]
[247] ts 669.
58.She was also asked about an affidavit she swore in 2018 in the Court of Appeal where she said 'the boys ran the presents over to the front door and came straight back'. She agreed her evidence now was that she did not know whether those presents were actually delivered.[248]
[248] ts 670.
59.She was asked why, despite knowing that the presents were not delivered on Christmas Eve sometime later on the evening of Christmas Eve, she had not mentioned that at the last trial or in her affidavit sworn in the Court of Appeal. She said that she had not recalled the presents not being delivered when she wrote the affidavit.[249] In her mind, looking back all those years, she had asked the children to take the presents over.[250] At the time they had gone to Esperance the next morning, they had Christmas with the accused's father who had terminal cancer and it was an extremely emotional time.[251]
[249] ts 671.
[250] ts 671.
[251] ts 671.
60.Her recollection changed when she read the text messages which are exhibit 1 and she recalled the situation. She said that her memory was refreshed as a result of reading those text messages.[252]
[252] ts 671 - ts 672.
61.She was then taken extensively through the text messages which are exhibit 1. She maintained that the verbal attack from the complainant's mother had occurred on Christmas Eve despite the fact that, some two days later on Boxing Day, the complainant's mother sent her a text telling her that she had checked the chickens and hoped that everything was fine with her and her family.[253]
[253] ts 676.
62.She accepted that in a message sent on 28 December 2014 she had told the complainant's mother that they had presents but did not have time to bring them over. She denied the suggestion that she had never sent the boys to take the presents over.[254]
[254] ts 677.
63.She was asked about a message which said 'Sorry we haven't caught up yet since we got home from Esperance'. She was asked why she would want to catch up with SR in circumstances, where the night before she left, SR had launched a verbal attack on her. She responded by saying that everything had been resolved on Christmas Eve, and it was not an ongoing thing.[255]
[255] ts 680 - ts 681.
64.Despite the verbal attack on Christmas Eve she and SR had continued to communicate with each other and were on neighbourly terms. She agreed that the neighbourly relationship continued after Christmas Eve.[256]
[256] ts 682.
65.Despite the text messages indicating offers from the complainant's mother to pick up her children and get groceries and the like, she said that she would not agree that the families were in a very good relationship.[257]
[257] ts 688.
66.She disagreed that it would be basic manners to knock before entering within the privacy of their own home.[258]
67.She was taken to the conversation with T about camping in 2014. She agreed that the complainant was over at their house all the time but said that she recalled this conversation because it occurred at a time when the intention of her family was to distance themselves from the complainant and her family and yet the complainant was indicating she would like to come camping with them.[259]
68.It was put that she had never mentioned anything about the camping conversation at the last trial and she responded by saying that she was not asked.[260]
69.She was asked whether she had mentioned the complainant coming into their house to wait for the boys before going to school at the last trial. She said that if she had not been asked the question at the last trial then she would not have been able to answer it.[261]
70.In re-examination she agreed that at various instances she had said in cross-examination that if she had not been asked questions at the previous trial then she would not have answered or given evidence that she had given in this trial.
71.She said she never expressed any resentment in the text messages because she never showed resentment to the complainant's family and did not do conflict.[262]
72.In answer to the proposition from the prosecutor that she had not given evidence about this conversation about camping when she gave evidence at the last trial, she said that the accused had been represented by a different lawyer,[263] and that she had sat down with the accused's lawyers before the trial and told them things which ultimately were not asked of her at the earlier trial by the accused's lawyer.[264]
73.She swore an affidavit in the Court of Appeal which included reference to an instruction that she had given to the accused's then lawyers prior to the first trial that, in late 2014, she had a conversation with the complainant about her family holidays. The complainant had told her that she did not enjoy the holidays and she had talked to the complainant about their camping trips and the complainant responded by saying she would love to come on holidays with them.[265]
74.The affidavit contained her evidence that the accused had come into the dining room during the course of this conversation. She said she gave those instructions to the lawyers before the last trial and she was not asked questions about that conversation despite having given those instructions.[266]
75.She was taken to her affidavit sworn in the Court of Appeal in which she swore that she provided instructions to the accused's lawyer before the previous trial about the complainant coming over to their house prior to school and coming into the house.[267]
[258] ts 691.
[259] ts 691 and ts 700.
[260] ts 692.
[261] ts 695.
[262] ts 700.
[263] ts 700.
[264] ts 701.
[265] ts 705 - ts 706.
[266] ts 707.
[267] ts 708 - ts 709.
Specific matters of law
Forensic disadvantage
Both parties agreed that I should have regard to [40] of the decision of the Court of Appeal in DWM v The State of Western Australia [No 2] [2019] WASCA 143 which set aside the accused's conviction in this matter. I was handed an extract of that paragraph.
The areas of forensic disadvantage to the accused identified by the Court of Appeal are as follows:
(1) Bearing in mind that the alleged offences occurred during a single brief episode on an unspecified day, without any alleged uncharged acts of a similar kind, and in the context of T being a frequent visitor to the appellant's home (in order to use the swimming pool), the appellant could not reasonably have been expected to recall, in August 2017:
(a)where he was and what he did on the day he was alleged to have committed the offences; or
(b where other members of his immediate family were and what they did on the day in question.
(2)Inquiries made in August 2017 were most unlikely to have revealed where his partner, his children or T and members of her family were, or what they were doing, during the day he was alleged to have committed the offences.
(3)The appellant was unable to adequately test T's evidence by reference to the surrounding circumstances, including what she was wearing on the day of the alleged offences.
Mr Vandongen took me to a number of other forensic disadvantages in relation to delay and inability to marshal a defence on behalf of the accused. One of those disadvantages was the accused's memory and recall of the complainant's last visit when he was being interviewed by the police, and the fact that he was being criticised for the answers he gave demonstrated the extent of the forensic disadvantage. Mr Vandongen submitted that there was also an inability to test the surrounding circumstances, which is often the only way an accused can undermine the credibility of a complainant in cases of this kind.
He submitted that the cross-examination of the complainant laboured under a forensic disadvantage, that there was a reduced ability of the accused to give evidence in his own defence and a reduced ability to get evidence from other sources. He was a fly in/fly out worker for some of the period of time and it was therefore impossible for him to know or be able to say where he was, what he was doing or who he was with on any particular day during that period of time.
He submits that the date when the complainant stopped going to the accused's house when he was there could only be ascertained by the accused looking back and by people doing the best they could trying to remember what was happening at that time. It was impossible to test the evidence, in the submission of Mr Vandongen, that PY was not there on the day of the commission of the alleged offence because no one has any idea what day it was. Given that the complainant's testimony was that one of the three boys knocked on the door, the accused had lost the ability to adduce testimony from them because of the passage of time.
I accept that these are all areas of disadvantage suffered by the accused as a result of the delay in these allegations being brought to the attention of the accused.
Mr Chu accepted that I must scrutinise the evidence of the complainant with great care and take into account any facts and circumstances, including the forensic disadvantages, which have a logical bearing on the truth and accuracy of the evidence.
The alleged offence is said by the complainant to have occurred in early 2014. Her child witness interview took place on 15 June 2017. The accused was interviewed on 3 August 2017. This means that a period of up to three years and seven months elapsed before the accused was notified of the allegations. The complainant was nine years of age in early 2014, as her date of birth is 11 July 2004.
As a result of the disadvantage caused to the accused by the delay, the complainant's evidence must be scrutinised with special care. I can act upon the complainant's evidence alone to convict the accused if I am satisfied of the truth and accuracy of it, but it would be dangerous to convict the accused on her evidence alone unless, having scrutinised that evidence carefully and having considered the forensic disadvantage caused to the accused which I have specified, I am satisfied beyond a reasonable doubt of both its truth and its accuracy.
The use of uncharged acts
As I have set out above, the complainant gave evidence that the accused kissed and hugged her, and grabbed her buttocks, on numerous occasions in the lead-up to the alleged offence (the uncharged acts).
The State position is that this evidence of uncharged acts places the charged offence in its proper context. The State say the accused was grooming the complainant while testing her boundaries by asking if she wanted the kissing to stop. The fact that the complainant did not say anything, in the submission of the State, would have emboldened the accused to take the next step.
If I am satisfied that these uncharged acts occurred then I can use the evidence in that way.
However, this evidence was not led as propensity evidence. I must not reason, on the basis of the evidence of the uncharged acts, that the accused is the kind of person who is likely to have committed the charged offence, and I must not take the evidence of the uncharged acts into account in deciding whether the State have proved beyond reasonable doubt that the accused committed the alleged offence.[268]
[268] Hill v The State of Western Australia [2019] WASCA 209 [73], see also [6], [15].
For the reasons I give later in this judgment, I am not satisfied that the uncharged acts occurred and so do not take that evidence into account save in my assessment of the complainant's credibility.
Acquittal on count 2
At trial I heard that the accused was acquitted by the jury at his trial in 2018 of a second count on the indictment. That second count arose from the complainant's evidence that after he touched her on the vagina (which is the allegation the subject of the count I am to determine) the accused then rubbed his penis on her lower back, her bottom and her upper legs (the count 2 evidence).[269]
[269] Child witness interview ts 8.
I heard that evidence because it was part of the narrative and inextricably linked with the evidence relating to the count which I must determine.
I accept that the accused is entitled to the full benefit of the acquittal. The State cannot seek to lead the count 2 evidence to show that the accused was guilty of the charge upon which he was acquitted.[270]
[270] R v Storey (1978) 140 CLR 364, 387 - 388 (Gibbs CJ).
The State accept that the count 2 evidence cannot be used to challenge the verdict of acquittal.
The State position is that I cannot use the fact of the acquittal to make findings of credibility in respect of the complainant. I accept that.
If I find that I do not accept aspects of the complainant's testimony in respect of the count 2 evidence then that is relevant to my assessment of her credibility.
Prior inconsistent statements
As can be seen from the above summary of the evidence, it was suggested to T, SR, the accused and PY that they had previously made statements which, to some extent, were inconsistent with statements they had made on prior occasions. I have set out these alleged inconsistencies at length and do not propose to repeat them.
The content of the statement made on a prior occasion is not in any way part of the witnesses evidence at this trial. It is the witnesses' evidence on oath which I saw and heard them give which is the evidence I am to consider. However, if I find that a witness has previously made a statement that is inconsistent with the evidence that the witness has given, then the fact that the witness had previously made an inconsistent statement is a matter which I can take into account in considering their credibility as a witness in this trial. Whether or not it does affect the credibility of the witness is a matter entirely for me.
Submissions of the State
The State accept that the State case stands or falls on the evidence of the complainant and that I would need to be satisfied of her evidence as being truthful, accurate and reliable in its key particulars.
I accept that, in order to convict the accused, I would need to be satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant.
The State submission was that the complainant presented as a compelling witness. The State accept, and I agree, that there is no room in this case for the complainant to be mistaken about these events. This could not be said to be a case where the complainant might have misconstrued some innocent touching, as the incident described of by her involves the removal of her clothing and then touching of her vagina.
The State submit that the manner in which the complainant gave her evidence and the way in which she described the incident demonstrated the truth and accuracy of her evidence. The State say that the way the complainant described her experience, her feelings, and the sequence in which those things occurred is consistent with her recounting genuine recollection and not inventing a story. The State maintained that there is detail contained in the complainant's evidence about the incident including how she was feeling (scared), that the accused made some funny noises and kept asking her if she wanted him to stop and whether it was ok and that she did not answer.
The State say that the detail about the accused asking if the complainant wanted him to stop would be a very strange thing to make up.
The State say that T's demeanour was also a very significant feature of her evidence. The State submission is that the complainant gave her evidence in a very clear and forthright manner and was clearly uncomfortable in recalling intimate aspects of what had happened to her and speaking about them.
The State maintained the complainant was consistent throughout her evidence and was not swayed in cross-examination.
The State say that the defence can only point to one inconsistency, which is when the complainant said she felt two hands on her back during the course of the trial at page 104 of the transcript, but in her child witness interview she had told the interviewer there was only one hand on her back. The State say that, if there is an inconsistency, then it is not significant enough to have an effect on my assessment of her credibility.
The State points to the complainant saying that she did not actually see the accused pull his pants down, having only heard that, as a demonstration of her truthfulness because if she was making it up then she could have said that she saw him take his pants off.
The State say that the way in which the complainant gave her evidence should be contrasted with the manner in which the accused and PY gave evidence. The State say that the accused and PY never missed an opportunity to attack the complainant's family.
I do not accept that submission. During examination-in-chief, in my view, the accused and his partner demonstrated they were reluctant to go into specific detail about the circumstances which led to their desire to 'pull back' from the relationship with the complainant's family. It was only when they were asked in cross-examination to provide details of those things that they did so.
The State maintained that the mistake made by the complainant in her child witness interview, namely that she was in Year 5 when the incident occurred, was simply a mistake and was not significant. The State say that she corrected this mistake during the course of her evidence at trial.
In my view there is some significance in the change in this evidence. That is because her evidence was that after the alleged offence occurred she stayed away from the accused's house, particularly when the accused was there and took precautions to ensure that she did not come into contact with him. The evidence at trial from both her parents and from the accused and his partner was to the effect that there was a lessening of contact in 2015, due to a number of other factors such as the children changing schools and the accused's partner having opened a shop, with the consequence that the children were at the shop after school. The children were also getting older which was also a basis for the lessening of the contact.
If the alleged incident occurred in early 2014, which was the ultimate effect of the evidence of the complainant given at the trial, then it means that during the balance of 2014 there was still significant contact with the accused's family. The evidence of both the accused and his partner on the one hand and the complainant's parents on the other hand was that there were extremely regular visits by the complainant during this period. Mr Vandongen on behalf of the accused says this is a significant fact in assessing the complainant's credibility, and I agree with that submission.
Therefore, in my view, the change in the year ascribed by the complainant to this incident occurring does have significance.
During the course of their submissions the State reminded me of s 36BD of the Evidence Act in relation to delay in making complaint, and maintained that the complainant gave reasons for her delay which were credible and which included: that she felt uncomfortable about the kissing and hugging leading up to the alleged incident, that she was scared of what the accused would do if she did not follow what he said, which was to tell her not to tell people, that he said it in a controlling voice, and when asked why she did not complain about the alleged incident said she was scared and unsure what would happen and was not sure if anybody would believe her. Insofar as her undergoing counselling, it was not suggested that the counselling had anything to do with the making of this allegation.
The State position is that the delay is completely understandable and reminded me that I must take into account that the complainant was a very young and immature girl when these offences occurred and lacked the life experience and maturity to perhaps deal with things in a different way. The State submission is that delay is not something that would adversely impact on her credibility and in any event the delay is not substantial.
The State say that the complainant did tell her friend. However, the only evidence I have about her telling her friend comes from the complainant herself, who said that she told her friend M some 12 months after the date of the alleged incident. I have heard no evidence from M. I also found the complainant's evidence in relation to her telling her friend unconvincing, both in the manner in which she gave that evidence and in what she said. She said that she 'told M but she had forgotten'. She said 'there's no way that M would've remembered it because they were young'. She said that 'M didn't have a clue what it was about' and that she could tell that M cared but 'she didn't like take it into consideration or anything'.[271]
[271] Child witness interview ts 14.
In any event, this cannot be said to be evidence of recent complaint. On the complainant's evidence it was not made for some 12 months after the alleged offence.[272] Furthermore, a complaint cannot be proved by the evidence of the complainant alone.[273]
[272] Child witness interview ts 14.
[273] Azarian v The State of Western Australia [2007] WASCA 249 [119].
The State position is that the evidence given by the accused and his partner about the incident on Christmas Eve was a complete fabrication designed to make the complainant's family look bad.
The State say that the evidence given by the accused and his partner about the resentment they felt towards the complainant's family is not relevant to my assessment of the truthfulness of the complainant's account. In any event, the resentment was all a one way street.
The State say that the fact that the complainant continued to have some contact with the accused's family after the alleged incident does not mean that her testimony is unreliable. The State say that the complainant gave a logical explanation for maintaining contact with the accused's family, saying that she did not want to seem like she was hiding something and that she had a close relationship with PY and the boys.
However, in my view, there is significance to the complainant's continued visits to the accused's house in 2014. The evidence from MR was that the frequency of T's visitation was such that in 2014 that he and SR in effect had to tell the complainant to reduce the frequency of her visits because they felt that she might be annoying to the accused's family. The evidence before me seems to suggest that the nature and frequency of the complainant's visits to the accused's house was the same through 2014 and did not alter during 2014. In my view, that has significance bearing in mind the evidence of the complainant that the event the subject of the charge occurred in early 2014.
Mr Chu referred to the evidence of the accused and his partner that the complainant would, prior to school in 2014, knock on the door and wait inside their house. He reminded me that the complainant's evidence is that this did not occur, but that whether she went inside or not was of little relevance, because it had not been suggested that she was ever alone with the accused at that time.
However, in my view, this aspect of the evidence does have relevance. The submission ignores the evidence of the complainant that she actively avoided going to the house when the accused was there, rather than just avoided being alone with the accused. If she went there after the date of the alleged offence at a time when the accused was there, then that is in direct contradiction to her evidence that she avoided going there at all unless she was sure the accused was not there.
Furthermore, bearing in mind all of the evidence that I have heard about the complainant's visits to the house, in my view it would be extremely unlikely that the complainant would do nothing more than knock on the door in the morning prior to school and not go inside. I accept the evidence of PY on this point and reject the complainant's evidence that she did not go inside the accused's house when arriving to accompany his children to school.
Mr Chu also referred to evidence from PY and from the accused that the complainant had a conversation with PY about camping and says that this is not of significance. The complainant denies that this conversation occurred.
However, as counsel for the accused asserted, the significance of this conversation is that, if I accept that it occurred in 2014, then it is a further instance of the complainant being present in the house of the accused at the same time as the accused was present, because the evidence of PY was that the accused was present.
The complainant denies that this conversation occurred. PY says that it did. Given the issues that I will explain about the complainant's credibility and the findings I make that PY was a credible witness, I accept the evidence of PY on this point. The complainant continued to visit the accused's house regularly throughout 2014, and was close to PY. PY made admissions against herself, saying that she was feeling resentful towards the complainant's family and wanted to rub in how her family holidays were. In my view those admissions enhanced her credibility. I find that the conversation occurred in 2014 in the lead up to Christmas and so it therefore must have happened after the alleged commission of this offence.
Mr Chu on behalf of the State then turned to the significance of the recording I have of the complainant and PY riding a motorcycle. Mr Chu submits that we do not have evidence of any certainty that the video was taken after the alleged offence.
However, the evidence is that this recording occurred in October 2014. The date stamp on the recording is 25 October 2014 and both the accused and PY gave evidence that this was the date. I therefore find that the event occurred on 25 October 2014. This evidence again contradicts the complainant's assertion that she would not go over to the house if the accused was present. The evidence of both the accused and PY is that the complainant was present in the house prior to the riding of the motorcycle, that the accused was present at the same time, that she came outside and was told to get permission from her parents, and came back at a time when she knew the accused was going to be present.
Whether the accused was inside the house prior to riding on the motorbike or not, the fact is that she went over to where the accused was at a time subsequent to the events complained of allegedly occurring. This contradicts her position that she actively avoided the accused after early 2014.
Mr Chu's submission is that the recording has no significance, even if it was taken after the alleged offence. The complainant's evidence was not that she never attended the accused's house after the offence nor was that it was that she was never again in his presence. She testified that she tried to engage with other members of his family so that no one would suspect that anything had happened.
In my view, this submission is not borne out by the evidence. Her evidence was that she did not go the accused's house when he was present after the alleged offence and she checked and made sure before going over to his house that he was not present. The only exception to this was her concession that he was present when she rode the motorbike.
Mr Chu makes the submission that the testimony of the complainant was that she rode the bike because it was fun and that there was other people around so she felt a bit safer. She then went on to say 'as in safer from something happening with [ML]'.
In my view, that phrase clearly indicates that something at least must have happened with the accused prior to her riding a motorbike. Given that she gave no evidence of reducing the frequency of her visiting the accused's house as a result of the uncharged acts (the kissing and the hugging), I can therefore only conclude that when she said that she felt 'safer from something happening with ML' at the time of riding the motorcycle that necessarily means that the alleged offence must have occurred by then.
Whilst I accept that there were other people around at the relevant time, namely PY (albeit that she did go out of sight on the motorcycle for a limited period of time) and the accused's children and that the presence of others would have therefore made any repetition by the accused unlikely, the testimony still contradicts the evidence that she gave about her not having contact with the accused after the alleged incident. In my view this does impact on her credibility.
The State submit that even if she had attended the house again while the accused was there after the date of the commission of the alleged offence, it does not mean that she is not honest or reliable about the allegation itself. I am cognisant of the fact that I can accept all or parts of a witnesses testimony or reject all or parts of that witnesses testimony.
I am of the view that the evidence of T visiting the accused's house at the times when the accused was there does impact negatively on her credibility. She was quite clear about the steps she took to avoid having contact with the accused after the commission of this alleged offence. Understandably, if this offence had occurred then I accept that a person in the complainant's position would have tried to either extinguish or minimise any contact between her and the accused. The fact that the evidence indicates that there was no reduction in the extent of her visits to the accused's house after the commission of the alleged offence in early 2014 throughout the remainder of 2014 impacts on her credibility.
In my view, her evidence is that this alleged incident happened in early 2014. On all of the evidence, including that of her parents, her visits continued with the same frequency throughout 2014 and it was only in 2015 that the visits dropped off. Not only do I have the uncontradicted evidence of the complainant riding a motorcycle in October 2014, but I also have the evidence of her parents that the frequency of her visits to ML's house only dropped off in 2015, which they ascribed to other factors, and that they were concerned that the frequency of her visits to the accused's house might have become annoying to both him and PY in 2014. The evidence is that in late 2014 for a period of about five months the accused was unemployed and was home for considerable periods of time throughout that period.
For these reasons I find that the complainant did continue to visit the accused's house, frequently between three and five times per week after school or on the weekends throughout 2014, and almost every day before school during the course of a week in the second half of 2014. I am satisfied on the basis of the frequency of her visits that, because of the prolonged unemployment of the accused during the latter part of 2014, she necessarily must have visited the accused's house at times when the accused was present. I am also satisfied that she took no precautions during 2014 to attempt to ensure that the accused was not present during her visits. If she had, then she would not have gone over to ML's prior to school in the second half of 2014 at a time when ML was unemployed and would have otherwise reduced the frequency of her visits.
Mr Chu then submitted that there was nothing inherently improbable about the complainant's account of the offence. He says the offence was clearly opportunistic. It would have only taken a very short time to commit and the fact that there were other children in the house did not make it implausible that he would engage in such behaviour. The State submits that the fact that the complainant had not said anything after the earlier hugging and kissing emboldened the accused.
I accept that, on his own admission, the accused had the opportunity to commit the offence. He said that there were times when PY was not present when the complainant came to his place to play with his boys. However, as I have already said, for reasons which I will come to I am not satisfied that the uncharged acts occurred.
Mr Chu then took me to the evidence of SR and said that, although she presented as someone who was nervous and not comfortable with the process of giving evidence, she was not lying or hiding anything.
My assessment of the complainant's mother is that she presented as an honest witness, but I do not think that she gave a reliable version of events. As she said, she was flustered and nervous and she was confused about certain events. Certainly she gave contradictory evidence about the alleged confrontation at Christmas Eve, firstly denying that it occurred at all, secondly in cross-examination accepting that it did and then thirdly in re-examination denying that it did. I find her evidence on this point unreliable because of those contradictory positions within her own testimony.
Counsel for the State then turned to the accused's denial and says that it is not difficult to repeat a bare denial.
However, when I take account of the forensic disadvantages which I have already found have been suffered by the accused, I accept the submission of the accused that it is difficult when confronted with an allegation of this type some years after the event to do anything but deny the offence. One does not have access to the same types of records that one would have if allegations were made in a more expeditious way.
The State submitted that the accused's expression of surprise or shock did not come across as genuine and his denials not emphatic. Whilst I accept that I can take little from demeanour, I watched the portion of the interview with the accused very carefully when he was confronted with the allegations and could see a genuine expression of surprise on his face. In my view, those reactions were not feigned. However, as I have said, demeanour is an unreliable guide to credibility and I have placed little weight on demeanour in my assessment of the credibility of each witness' testimony.
Counsel for the State also took me to the portions of the interview where ML was asked about the last time he had seen the complainant visiting her house and he said '12 months ago, maybe'. He was then asked when the last time was that she had come over and went for a swim at his house that he saw and he said 'could be a couple of years ago'.
Counsel for the State then took me to a later passage where ML was reminded of what he said about it being a couple of years since she was last over there. Counsel for the State submitted that this was a reference to the accused saying it had been a couple of years since the complainant had last come over. However, in my view that misstates the evidence. He did not say that it had been a couple of years since the complainant last came over. His reference to a couple of years ago had been to a question about him last seeing T come over and use his pool.[274] At its highest he said that she might have been over this year and he thought they came for a swim,[275] but even that was said with a measure of uncertainty.
[274] VROI ts 10.
[275] VROI ts 27.
In my view the use the State seek to put this evidence highlights the extent of the forensic disadvantage suffered by the accused in being asked to, on the spot and without notice, provide detail of seemingly insignificant matters and then have his uncertainty used against him.
The State submitted that the accused made admissions in his police interview that the relationship with the complainant's family was fine and that there were no fallouts, he thought of the complainant as one of his own children, called the complainant and her brother great kids and referred to the complainant's parents as friendly neighbours. He made no mention of any issues with the complainant's family and on his own admission had the opportunity to commit the offence by admitting that the complainant would use his pool and that either he or his partner would supervise his children.
The State maintained that his initial answer, that he last saw the complainant 12 months before his interview, is consistent with T's account that she did not visit the accused's house at all in 2017. However, the accused did not say that she had not visited his house 12 months ago, but instead said '12 months ago, maybe', and therefore expressed a measure of uncertainty in that estimate. I accept that it was at best an estimate and I do not accept that it precludes a visit by the complainant to his house in 2017. It needs to be remembered that the accused was interviewed on 3 August 2017 and so in the latter half of 2017. In those circumstances I accept that his estimate might have been mistaken.
I note that at one stage ML said that he was trying to think back to 2014.[276]
[276] VROI ts 13.
The State also submitted that, although the accused's testimony in court was that he had multiple issues with the complainant's family and her children, he had mentioned none of those issues to the police and had said that he was unaware of any falling out.
Whilst I accept there is some force in that submission, in my view this is not inconsistent with his testimony in court. He did not testify that there had been any fallouts with the complainant's parents, but simply that he and his partner had resentment towards them which they had not conveyed to them. I do accept however that he failed to mention the incident on Christmas Eve to police and this does undercut somewhat the credibility of his answers on that point, although I repeat what I said earlier about the circumstances of the interview and the failure to mention this event may have been attributable to those circumstances.
The State say the text messages in exhibit 1 show a good neighbourly relationship which I accept to be the case. However, the fact that there was a good neighbourly relationship does not preclude one set of neighbours, in this case PY and the accused, harbouring some resentment over perceived slights. The evidence of the complainant's parents was that they were worried that, despite what they perceived to be a good relationship, the frequency of the complainant's visits to the accused's house might have become annoying by the end of 2014. This is consistent with some of the evidence given by the accused and PY as to one of the bases of their resentment and one of the reasons for the paring back of the relationship.
The State submit that the accused told lies which go to his credibility. The State did not submit that these were Edwards lies.
The State say that those lies are as follows:
1.What ML said about the nature of the relationship between two families. I have already dealt with this issue. I do not accept that the accused told lies about this in either his interview with police or in his evidence. Any inconsistency is, in my view, explicable by the circumstances of the interview and the passage of time.
2.The incident on Christmas Eve. As I have said, I do not accept SR's evidence in relation to this issue, as it went from denying that it occurred, then accepting that it did occur, then denying it again in re-examination. Although MR denied that this confrontation occurred, he was not said to be present and may not have been aware of it. I accept the evidence of the accused and PY as to the circumstances of the confrontation with MR as I found their evidence consistent and compelling in relation to this issue. Bearing in mind the contents of the text messages in exhibit 1, I cannot find that it occurred on Christmas Eve but, in my view, little turns on the date. I do find that it occurred either on Christmas Eve 2014 or sometime in January. Its relevance is as to the fact that the complainant came to the accused's house, it would seem involuntarily as a result of her mother dragging her over, but then remained at the accused's house in the company of the accused and PY and the children after the complainant's mother left and stayed for a considerable time. I therefore do not accept that the accused told a lie in relation to this incident.
The State referred to the testimony of the accused at his first trial that the boys had delivered the presents on Christmas Eve as evidence of the accused's lies. However, I accept that since he gave that evidence further disclosure had been received and that this had refreshed his memory. I do not accept that the accused told a deliberate untruth and accept that he is more likely to be mistaken about this event, having told his boys to take the presents over and relying on them to do so without necessarily knowing that they did not do so until he saw some text messages and later disclosure which clearly indicated they had not done so.
3.ML's evidence about T's visit in 2017. His evidence was that the complainant visited his house in May or June 2017, which was two to three months before his interview with police. The State say that one would have expected him to tell the police about that visit and he did not do so. The State say that this is a lie which affects his credibility.
I accept that he did not tell the police about this visit in his interview. I cannot conclude that it is a deliberate untruth. I also cannot conclude that the alleged visit did not occur. I repeat what I said earlier about the circumstances of the interview and about the qualified nature of the estimate the accused gave as to the last time the complainant was over. I accept that in those circumstances the accused may not have remembered the visit at the time of his interview with the police or might have been mistaken as to his estimate of when the complainant last came over.
The State submit that I should not accept the evidence of PY, saying that she was on the same page as the accused.
I do not think this is an accurate characterisation of PY's evidence. Whilst I accept that PY's evidence supported that of the accused, there were some differences between their evidence which would suggest an absence of collusion. Those differences included that she did not recall whether the accused was present for the complainant's visit in 2017 when she saw the Lego model, whereas the accused said that he was there. She also said that she could not recall a single occasion when the accused was left alone with the children in 2014, whereas the accused said that there were several occasions,
The submission was made that PY's credibility was affected by her testimony that she could not recall a single occasion when the accused was at home alone with the children while she was out. However, her evidence on this point was that she could not think of an example of that occurring and that, if the accused was at home alone with the children, it would be a rarity. Bearing in mind that she was being asked in 2021 to remember events in 2014 I do not think it surprising that she was unable to recall an example of this occurring. I understood her evidence not to be that she was saying that those occasions did not occur, but simply that she could not recall an occasion when it occurred.
The State submit that her version that she caught the complainant's brother, who was in Year 1 according to PY and therefore about 5 or 6 years of age, typing the words 'fucking vagina' on the computer was implausible and defied common sense.
As I understand the position, a Year 1 child is 6 or 7 years of age depending whether their birthday is before or after 30 June. Whilst it may seem unlikely, I am not able to conclude that it did not happen. That evidence had little relevance to the matters in issue between the parties and there would seem little point in making it up. I am not persuaded that this evidence impacts on PY's credibility in any significant way or at all.
The State submitted that PY came across as a spiteful and biassed witness. I do not accept that she came across as a spiteful witness. As I have said, the limited evidence she gave in examination-in-chief about her relationship with the complainant's family was only expanded upon at the invitation of the prosecutor. Whilst I accept that she is a supporter of her husband, I do not accept that her support of her husband necessarily leads me to conclude that she is biased or that her evidence should be rejected.
Submissions of the accused
Mr Vandongen submitted that the State's submission that I should believe the complainant is based solely on her demeanour and of the things that she said, coupled with her demeanour during the pre‑recorded evidence.
I did not understand the prosecutor to be submitting that I should believe the complainant only because of her demeanour. As I understood the submissions of the prosecution, it was that T's demeanour was consistent with her being a witness of the truth but that I should also make the assessment that she was a witness of the truth because of the detail given by her as to her feelings, her reaction during the course of the alleged offence, the fact that she did not waiver in cross‑examination and that the only inconsistency which was identified was relatively minor. As I understood it, the State submission was that a combination of all of these factors meant that I should be satisfied beyond reasonable doubt as to the complainant's testimony.
Mr Vandongen reminded me that I have no information about what has happened to the complainant between 2014 and 2017 when she came to give her child witness interview, and then again in 2018 when she gave her pre-recorded evidence, and in 2020 when she was cross‑examined again. Mr Vandongen makes the point, which I accept, that there is a big difference between a child of 16, as the complainant was in 2020, and a child of approximately 9 years of age, as the complainant was in early 2014.
There is no evidence before me as to the circumstances which led the complainant to make the complaint to police. I also have no evidence before me as to what had changed her mind about not complaining, bearing in mind that she had testified that the reasons the complainant gave for not complaining in 2014 were that she was scared of the accused and worried that she would not be believed.
Mr Vandongen submits that her evidence of being too scared to make a complaint is not credible because of the fact that the contact between her and the accused's family dropped off after 2015. Whilst I accept that there may be some force in this submission insofar as T being scared of repercussions, I accept that she may have other reasons not to make a complaint at that stage notwithstanding the diminished contact with the accused's family. For example, she had said that she was scared that she would not be believed.
Mr Vandongen made further submissions about the complainant's lack of complaint. She had counsellors from 2012 through 2013 and 2014 and afterwards and did not make complaint to those counsellors. One of those counsellors was someone who she had a number of sessions with and presumably had trust in that counsellor.
Mr Vandongen reminds me that this is not a case where I must ask myself which version I prefer, but that I must be satisfied that the prosecution have proven this case beyond a reasonable doubt. Mr Vandongen submits, which I accept, that the prosecution would need to satisfy me beyond a reasonable doubt that the accused's denials of wrongdoing both during the course of the interview with police and in his evidence at trial were false. As I have said, I accept this not a case where the accused could be mistaken about whether these events occurred, or where there is room for some innocent touching to have been misconstrued.
Mr Vandongen submitted that there were two differences in the evidence between the accused and PY which I could regard as touchstones of their honesty. The first was in the contrast between their evidence in relation to the issue of whether their children knocked on the door. PY said that they never knocked on the door. The accused said that although they had an open door policy if a door was closed then his children would knock.
The other difference between them which Mr Vandongen says highlights the lack of collusion between them relates to their testimony about the visit by the complainant in 2017 to their house, where the accused says he was present and where PY's evidence was that she could not remember whether he was present.
The accused can point to no motive for the complainant to lie, although of course it is not incumbent upon the accused to provide any evidence of a motive to lie on behalf of the complainant. He bears no onus of proof.
The position of the accused is that the explanations for the lack of complaint are unsatisfactory.
The accused says that the reasons given by the complainant make no sense.
Insofar as her counsellor is concerned, her evidence[277] was that she did not tell the counsellor about the sexual activity with the accused until 2017, after she had disclosed it to police. She said that she had started seeing that particular counsellor in 2013. She said that she felt that she could trust her but she did not want to tell anyone, because she was still scared of what would happen. She ultimately said that her counsellor was someone in power and had more power than someone of her own age.
[277] ts 90, ts 92.
I do have some reservations about this evidence. The fact that the counsellor had more power than someone of her own age would be a good reason to tell her about the allegations.
Mr Vandongen submits that T's explanation about hugging and kissing with the accused does not make sense. She says that the 'hugging and kissing occurred every time she went over there and just all the time'.[278] She says that every time she would go over there and then 'just all the time, mm, like make me kiss him and he would kiss me. At first it was on the cheek and then he started to do it on the lips'.[279]
[278] Child witness interview ts 4.
[279] Child witness interview ts 4.
The evidence establishes that T was a very frequent visitor to the accused's house in 2013 and 2014 and, in the submission of the accused, it does not seem possible that this could have occurred in the way in which she says in circumstances in which no one else noticed.
I find that there is a further inconsistency with this evidence. Despite saying that it occurred all the time, during her evidence at trial this moved to it occurring 'Only on some of those times'.[280]
[280] ts 76.
I find that the evidence from T, SR, MR, PY and the accused establishes that T was a constant visitor to the accused's house in 2013 and 2014 and that her purpose in going over to the house was to see either PY or the boys or both. It does not seem that, even on her own evidence, she went over to see the accused exclusively when the accused's children or PY were not present and it is therefore unlikely that she would have been alone with the accused on the number of occasions when she alleges that the kissing occurred. She gave no evidence that the accused would take her aside to kiss her in private and I think it most unlikely that she was alone with the accused for any extended period throughout the various visits leading up to the commission of the alleged offence. I therefore accept that there is force in Mr Vandongen's submission and I do not accept that the kissing and hugging detailed by the complainant occurred.
Mr Vandongen submits that the accused made admissions against his interest which enhance his credibility, such as admitting that he had the opportunity to be alone with the complainant and therefore commit the offence. He did not try to suggest that he had never been at home with the complainant on his own or with the children.
It was submitted to me on behalf of the accused that the use by the complainant of the phrase 'he didn't enter' when referring to the accused rubbing her vagina but not penetrating her vagina was very adult wording. Whilst I accept that this may have been adult wording for a 9 year old in 2014, I do not think that I can accept that the phrase 'he didn't enter' when used by a complainant who was 13 when she gave that evidence in 2017 is implausible.
Mr Vandongen submits that the first time the complainant mentioned the accused hugging and touching her bottom was during the course of her evidence at trial in 2018. Although she gave evidence of hugging in her child witness interview[281] she had not given any evidence about the accused putting his hands around her bottom during the course of her child witness interview. During trial[282] she said that he put his hand around her bottom. Mr Vandongen said that this undercuts the complainant's credibility.
[281] Child witness interview ts 4.
[282] ts 75.
I accept that the complainant did not mention the accused putting his hands around her bottom during the hugging in his child witness interview, but it is apparent from the child witness interview that although she mentioned hugging at the commencement of the interview[283] she was not then taken back to what she meant by hugging, although she was asked about what she meant by the kissing. I do not think that I can conclude that the complainant's credibility is affected by her expanding on what she said initially in the child witness interview during the course of a trial.
[283] Child witness interview, ts 4.
Mr Vandongen submitted that the relevance of the evidence about the conversation about the camping trip in 2014, the riding of the motorbike in October 2014 and the incident on Christmas Eve is that the accused was present during each of those events. Given that those events all occurred in the second part of 2014 then they must have occurred after the incident complained of allegedly occurred and at a time when T indicated that she was avoiding contact with the accused.
Insofar as the 2017 visit is concerned Mr Vandongen's submission is that it is another incident which occurred after the incident the subject of the indictment where the complainant had contact with the accused. He submits that the evidence from the accused and PY is consistent and has detail, including the fact that the complainant came over to talk about quilting, and a specific model built out of Lego which was shown to her by her son.
With respect to the evidence of the accused, Mr Vandongen, while accepting that there are limitations on the use of demeanour in relation to credibility, submits that the accused's demeanour during the course of his interview with police indicates that he was startled by the revelation that it was the complainant that has made the allegation against him and that not only what he said but his demeanour showed genuine surprise. Mr Vandongen also refers to ML's admissions against interest, which include him saying that he might have seen the complainant naked at some stage in the bath, that the children had come over and played when he had been at home and his partner was not present, the number of times that this occurred which he estimated as being up to a dozen, as well as his admissions that he would give the complainant a hug and a kiss on the head and on the cheek, as issues against which I can judge his credibility.
Mr Vandongen's submission is that ultimately there is nothing in ML's evidence which would cause me to reject the accused's evidence beyond reasonable doubt and submits that, in any event, I can believe his evidence.
Insofar as PY's evidence was concerned, Mr Vandongen submitted that she was an impressive witness, who did not argue and accepted propositions that were put to her even if adverse to the accused.
I accept that PY was an impressive witness who gave evidence in a forthright, direct manner.
My findings
In my view, the accused was an impressive witness. He did not seek to elaborate on answers he gave but simply confined his answers to the questions which were asked of him. If he did not recall something then he was prepared to say so. In my view his evidence was plausible.
His denials were both forceful and cogent.
Whilst I accept that there are some inconsistencies between the evidence which he gave at the first trial and the evidence he gave in this court, in particular as to whether or not presents were taken over on Christmas Eve by his children, I think that any inconsistencies are more to do with the passage of time and demonstrate the extent of the disadvantage suffered by the accused as a result of the delay in making complaint.
In my view his evidence as to the central issues in this trial was consistent and unwavering during cross‑examination.
As I have already commented, the complainant was an intelligent and articulate witness. However, I do think that her testimony that she, in effect, stopped going over to the accused's house after the incident if the accused was there and that she took precautions to ensure that if she did go over ML was not present, is not consistent with the other evidence adduced, not only by the accused but also by the prosecution. As I have said, the consistent evidence of the complainant's parents and the accused and PY is that she continued going to the accused's house in 2014 and through 2014 and that any lessening of contact occurred in 2015. In my view my findings that she continued to visit ML's house after 2014 regularly and at times when he was there adversely affects her credibility.
Additionally, I have some other reservations as to the complainant's testimony. These are as follows:
1.On the day of the alleged offence, she said that she went over to ask to have a swim. Despite that, she gave no evidence of asking to have a swim and her evidence as to the sequence of events when she went over there prior to being taken into the bedroom is almost non-existent.
2.The delay in her making complaint. Whilst I am cognisant of the fact that there may be many reasons why a complainant does not immediately complain and that the complainant gave evidence as to her reasons for lack of complaint, the delay in complaint is significant in my view. I have no evidence whatsoever of what changed between the time when she felt unable to make a complaint because she was scared and worried that she would not be believed and the actual making of the complaint. I simply have no evidence as to the circumstances which led her to go to the police.
3.There is an inconsistency in her description of the events:
(a)During the course of her evidence-in-chief she indicated that after the accused committed the offence complained of he then got his penis and rubbed it on her.[284] She said that she could hear him unzip his pants and then pull down his pants. She then said that when he had one hand on her he touched her and rubbed her. She said that he rubbed his penis on her lower back, her bottom and her upper legs.
(b)However, her evidence was that she was lying face down while this occurred. She was therefore not in a position to see what the accused was rubbing on her.
(c)She was taken to this point in cross-examination. She agreed that she did not see his penis but said that she knew it was his penis because she felt his hands on her back.[285] She said that it did not feel the same as his hand. This is inconsistent with her evidence in the child witness interview, which was that he had one hand on her back. Her evidence at trial was that she thought it was his penis because she felt two hands on her back.[286] She made no mention during her child witness interview or at any stage until that cross‑examination of the accused having two hands on her back.
4.Her explanation for not telling her counsellor was somewhat confusing. I have already set this out above, but the reference to her counsellor as a person who had power was difficult to understand and did not explain why she did not complain to her.
[284] Child witness interview ts 7.
[285] ts 77.
[286] ts 104.
When I add those concerns to my findings that the uncharged acts did not occur and that she continued to visit the accused's house after early 2014 I am not satisfied beyond reasonable doubt as to the truthfulness, accuracy and reliability of the complainant's evidence in relation to the events complained of.
Furthermore, when I take into account the forensic disadvantages to the accused which I have already detailed, as well as the testimony of PY I cannot exclude the accused's evidence beyond reasonable doubt. He gave evidence consistently that he did not indecently deal with the complainant. Nothing in the evidence means that I can exclude his denial of the offence beyond reasonable doubt and I would be speculating if I did so. In my view his evidence raises at least the possibility that his denials are true and therefore a reasonable doubt.
Ultimately if I think that the accused's evidence might be true, which I do, then there is enough to establish reasonable doubt and therefore find the accused not guilty.
Additionally, when I add to that the issues I have expressed in respect of the complainant's evidence then my verdict must be one of not guilty.
For these reasons I find the accused not guilty and enter a judgment of acquittal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to his Honour Judge Massey
29 MARCH 2021
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