DISTRICT COURT OF QUEENSLAND
CITATION:
R v Glassop [2020] QDC 240
PARTIES:
THE QUEEN
(prosecution)
v
STEPHEN JAMES GLASSOP
(defendant)
FILE NO/S:
58/2019
DIVISION:
Criminal
PROCEEDING:
Trial
ORIGINATING COURT:
District Court at Gympie
DELIVERED ON: 18 September 2020 (Verdicts)
24 September 2020 (Reasons)
DELIVERED AT:
Gympie
HEARING DATE:
8-9 September 2020
JUDGE:
Long SC, DCJ
VERDICTS:
Count 1: Not Guilty
Count 2: Not Guilty
CATCHWORDS:
TRIAL – JUDGE ALONE – SEXUAL ASSAULT – Where the complainant is charged with two counts of sexual assault – Credibility and reliability of the complainant’s evidence
COUNSEL: W.Slack for the prosecution
JP.Todman for the defendantSOLICITORS: Director of Public Prosecutions
Neilson Stanton & Parkinson for the defendant
Introduction
The defendant was charged on indictment, with two offences (respectively referred to as Count 1 and Count 2) and each alleging that on or about the 15th day of September 2018 at Southside in the State of Queensland, he unlawfully and indecently assaulted the same complainant.
On 6 December 2019 he pleaded not guilty to each allegation. A trial of those allegations commenced on 8 September 2020 and consequently to an order made on 13 July 2020, it was heard by a judge sitting without a jury.
On 18 September 2020, the Court delivered a not guilty verdict on each count. The following are the reasons for those verdicts.
The Evidence
The prosecution called seven witnesses. In addition, the investigating police officer was made available for cross-examination but that effectively resulted in no relevant evidence.
The central witness in the prosecution case is the complainant. Although she had celebrated her 17th birthday only a matter of a few days prior to 15 September 2018, her evidence was pre-recorded pursuant to s 21A of the Evidence Act 1977, on 31 January 2020 and when she was aged 18.
That recording was, in accordance with an order made pursuant to s 21A(2)(e), played in the trial instead of her direct testimony. That pre-recording was conducted and recorded by way of an audio-visual link to the complainant in a room remote from the Courtroom and where there was a support person with the complainant. All persons other than essential persons were excluded from the Courtroom. Also at that time the defendant had legal representation pursuant to an order made under s 21P of the Evidence Act 1977. However, subsequently and for this trial, the defendant had engaged those lawyers to represent him. Also and when the pre-recording was played to the Court all non‑essential persons were excluded from the Courtroom. As required by s 21A(8), it is necessary to note that from or because of such orders or directions as to the adoption of such measures:
(a) no inference as to the defendant’s guilt should be drawn;
(b) the probative value of the evidence is not increased or decreased;
(c) the evidence is not to be given any greater or lesser weight.
It is also to be noted that the pre-recording of the complainant’s evidence had included her adoption of a written statement provided in the police investigation, on 16 September 2018 and which was admissible pursuant to s 93A of the Evidence Act 1977 and admitted and marked as Exhibit 1.
Apart from the evidence of a police officer, as to the intoxicated and agitated state of the defendant, as observed by him when he attended at the defendant’s residence shortly after 2.00 am on 16 September 2018 (consistently with an understanding of other evidence as to his consumption of alcohol over the preceding hours and also that by that time there had been some emergence of a complaint directed at his conduct towards the complainant), the evidence of the remaining witnesses was mainly directed at the movements of the defendant and others between his residence and also at the residence of the [S’s], at Southside on 15 and 16 September 2018 and the preliminary complaints of the complainant prior to attending and providing her statement to police in the evening of 16 September 2018.
The defendant elected, as is his right, to neither give nor adduce any evidence. It is necessary to note that the fact that he so elected, is not evidence against him, does not constitute any admission of guilt, may not fill any gaps in the evidence led by the prosecution and does not change the fact that the prosecution retains the responsibility to prove the guilt of the defendant, beyond reasonable doubt.
The defendant cannot be convicted of either allegation unless the Court is satisfied, beyond reasonable doubt, that in respect of each allegation he assaulted the complainant and did so both unlawfully and indecently. The respective acts alleged to constitute the assault by the defendant are:
Count 1: Using his hand to touch her breast area; and
Count 2: Using his hand to touch her vaginal or genital area.
In each instance it is alleged that such conduct occurred when the complainant was lying in her bed at the [S] house. And it is common ground that the allegations relate to events that occurred late on the night of 15 September 2018 or in the very early hours of the next morning at the residence of the [S’s] at Southside in Gympie.
The following circumstances are established by undisputed evidence:
(a)As at 15 September 2018 the complainant was living, or staying, at the [S] residence, as her parents were “housesitting” at […] and due to her commitments to schooling and work.
(b)On the evening of 15 September 2018, [JS] had collected the defendant from his residence and after he had purchased alcohol, left him with her husband [SS] at their residence. She then went to the defendant’s residence to socialise with the defendant’s wife.
(c)This meant that at the [S] residence there were the defendant, [SS], the complainant and Mrs [S’s] mother. There are admissions before the Court that Mrs [S’s] mother went to sleep in her bedroom prior to the defendant coming to the residence and that she later heard the men talking in an area that sounded like the kitchen, when she went to the toilet.
(d)For a period, the complainant watched a football match on television with the men, but prior to the conclusion of the match, had gone to her bedroom and into the foldout sofa which she was using as a bed, wearing a khaki singlet and gym shorts. That room was situated close to the kitchen and also to a doorway from the kitchen to a hallway, from which there was access to that and other rooms including a toilet.
(e)At 12.54 am on 16 September 2018, the complainant sent a text message to her boyfriend, [R], in the following terms:
“[JS] got this friend over and he was drinking with [SS] while [JS] went to a mate’s and I went to bed early and I woke i about 5-10 minutes ago to him feeling me up in bed, I don’t know how long he was there for or how long he was doing it for but he was doing it for a while so I moved and pretend to be waking up so he left the room and then I started crying and I can’t stop.”
(f)And at 12.59 am she sent him a further message requesting that he call her and also after a missed call at 1.01 am, there was a conversation by telephone at 1.12 am.
(g)That sometime around 1.20 am, [JS] returned to her residence. She found the men standing at the kitchen table, drinking. There was then a conversation in the kitchen where she asked the men to keep the noise down as they might wake her mother and the complainant. The defendant responded that the complainant was not asleep: “you’re not asleep, are you […], something like that”, or something like “[…] is not asleep, eh […]?” She agreed that what was said was in a jovial tone and without her thinking anything of it at the time. The evidence of [SS] was that the defendant said something like “[…] would still be awake with the ruckus we’re making”. She then drove the defendant to his home.
(h)There was also evidence which will be further considered below, to the effect that after [JS] subsequently spoke with the complainant and ascertained that she was complaining about the defendant coming into her room and touching her, she returned to collect her children, who had remained at the defendant’s residence. And also that there was some telephone communication between [SS] and the defendant after he became aware of there being such an allegation.
In her statement, the complainant provided the following evidence, after describing that she had gone to bed wearing “a singlet and gym shorts that came to just above her knees”:
“6. I woke up feeling weird like someone was touching me on my chest; instantly I was alert. I was on my side facing the door cuddling the pillow. I had my right leg resting up over the pillow; that’s how I usually sleep.
7. I open my eyes and at first I saw a shadow over me. It looked like the shadow of a chubby person. I could hear a male voice making groaning and grunting noises. I knew it was Steve because he was the only chubby male person in the house. My bedroom door was open and the light from the kitchen was casting the shadow.
8. I could feel him rubbing his hand on my vagina over the top of my shorts. He was rubbing back and forth. It felt like three fingers pressed up against it.
9. I moved to pretend I was waking up; he instantly stopped. I then saw him pull his hand up and leave the room. I can’t remember which hand he had on me but I remember he had a drink in one hand and touched me with the other. I can’t remember what drink he was holding but it looked like a can of some sort.
10. I immediately started crying. About one minute later I could hear Steve and [SS] talking about an $80 bottle of cologne that was in the top cupboard in the kitchen above the stove. [SS] was telling Steve that he could have it because [JS] didn’t like it.
11. While the cologne conversation was happening, at 12:54am I message my boyfriend [R] on Snap Chat from my Apple iPhone. [the contents of the message are set out, as they are recorded above at 10(e)].
12. About five minutes after the cologne conversation, [JS] arrived home and I could hear her telling Steve that she was taking him how (sic). Steve’s voice was getting louder; I couldn’t make out what he was saying. I then heard [JS] say ‘[…] trying to sleep, she’s like my daughter, you need to respect that’. I then heard Steve say ‘she’s awake, aren’t you […]?’. I then heard her say ‘get in the car’. I heard them both leave the house and all went quiet. I got up to put some warm clothes on and at the same time I put the light on.”
In substance, this is the evidence upon which the allegations against the defendant largely depend. This is because, in the first instance, in the evidence given by way of pre-recording on 31 January 2020 and after the complainant adopted the contents of that statement as being true, and despite being asked to do so, there was little by way of development or clarification of the critical events. The following passages of the complainant’s evidence in chief may be noted:
“And you stated that you woke up feeling weird like someone was touching you on your chest?---Yes.
What was it that you actually felt?---I don’t remember.
So when you say that you said you woke up feeling weird like someone was touching you on your chest, did it feel like someone was touching or was someone touching you?---It felt like someone was touching me.
And when you say you felt like someone was touching you, that was on your chest, whereabouts - - -?---Yes.
- - - on your chest was that?---I don’t remember.
And was it on the top of your singlet or under our singlet?---I don’t remember.
Do you - you don’t remember what part of your chest was being touched?---No.
Do you – can you tell the court how it was you were being touched?---Well, when I woke up I felt three fingers rubbing back and forth on my genital areas.
So when you say when you woke up you felt that, so when you said that earlier than that you had – it felt like you were being touched on your chest - - -?---Yes.
- - - were you asleep when that happened?---Yes.
So when you woke up you said you’d opened your eyes to see a shadow over you?---Yes.
And he was making groaning and grunting noises?---Yes.
You said you knew it was Steve?---Yes.”[1][1]PRT2-8.11-42.
…
“And you said it was like three fingers pressed up against your vagina rubbing back and forth?---Yes.
And that was on top of your shorts?---Yes.
And you said you moved and that was when the touching stopped?---Yes.
Can you describe what sort of action it was when you moved?---It was like – I was in shock at first and then I just moved as if I was waking up kind of thing and I just, like, rolled over.
Do you know how long that touching happened for?---No.
Was it a long time or a short time? A matter of seconds?---I don’t – I don’t remember.
And did you consent to that touching or not?---No.
And when you described that it was like someone was touching your chest and you said that it was when you were asleep - - -?---Yes.
- - - did you consent to that touching or not?---No.”[2][2]PRT2-9.16-37.
And in reference to the photograph marked as Exhibit 5, her further evidence was:
“Can you see that document?---Yes.
And do you recognise what it is?---Yes. That’s my bedroom that I was staying in.
So this is the bedroom at [JS’s] house?---Yes.
And this is where things happened, that you describe in your statement?---Yes.
Can you point out where your – the bed is that you were sleeping on at the time?---It’s a fold out couch, because I hadn’t – because I had just recently moved in, so hadn’t unpacked my things and moved my bed in yet, but it’s the fold out couch in front of the window.
Okay. So the window is on the left-hand side of the screen?---Yes.
And the bedhead is at – on the right-hand side of where the window is? Like on the wall - - -?---Yes.
- - - behind it?---Yes.
And is that the end where your head was?---Yes.
And how was it you were lying on this bed at the time this all happened?---I was laying with my – like, I would have been facing towards the door with my leg up on a pillow. That’s how I always sleep.
So you would have been lying on your left side, was it?---I don’t remember.
If you were facing the door?---Yes.
Okay. And so would it have been your right leg on the pillow?---Yes.
And do you remember whether you had any sheets on top of you or any bedding on top of you, or what the situation was?---I don’t – I don’t remember.
Okay. When you awoke and you saw a shadow, where was the shadow?---It was standing in front of where that mirror is, facing me, and I could see from the – because the kitchen light was on, I could see the shadow of him.
So was the door open like it is now, or - - -?---Yeah. Yes. I always sleep with the door open.
So the shadow was standing in front of the – where the mirror is in the middle of the door that we can see there?---Yes.
And how close to the bed?---Very close. Like, on the edge where I was.
And could you see whether the shadow was standing you or leaning over, or what was it doing?---He was leaning over me.
Okay. And did you see him move at any point?---When I moved to [indistinct] waking up, he pulled his hand up and stopped touching me.
And when he stopped touching you, what did he do then?---He left the room.
So through this doorway here?---Yes.
And did you see which way he went to?---No.”[3][3]PRT2-12.21 – PRT2-13.30.
It is to be noted, as was a factor relied upon in the prosecution submission, that the complainant did display some signs of emotion and tearfulness as she was asked to recount the detail of what occurred in her bedroom.
In her cross-examination, it was established that after she went to bed and before the events she described, she had been asleep for some time. And she also said that although she was aware that [SS] was in the house, she did not shout out for help because she was in shock. The following passages of her cross-examination should then be noted:
“So in your statement, you said you woke up feeling weird? That’s right?---Yes.
Like you felt like someone had been touching you?---Yes.
It’s fair to say, you’re not sure someone actually did touch you or not?---I am sure, when I woke up I felt them touching me.
You had just woken up from a sleep?---Yes.
And when you woke up, you were still a bit groggy after waking up?---Well, when someone’s touching me, I’m going to wake up quite quickly and be aware of what’s happening.
Now, when you first saw this person, you only saw a shadow?---I saw the shadow of Steve, yes.
Well, in your statement, do you agree, you say you saw a shadow of someone and you say that it’s Steve because Steve’s chubby; is that correct?---Yes.
So you never say at all that you saw the person’s face?---I saw the – the shadow of him. He was the only chubby person in the house.
Well, [SS] was a little bit overweight himself too, wasn’t he?---No. Not – not – nowhere near the size of Steve.
Well, at that time [SS] had a beer gut?---I don’t recall.
And certainly [SS] would have appeared chubby as well?---Not as chubby as Steve.
Now, when you saw this person, he had a – a can in one hand?---Yes.
And you’re sure it was a can?---I’m not sure that it was a can.
And the other hand was touching you?---Yes.
And so the can always – the – the can or the object always remained in that person’s hand?---I don’t recall. I wasn’t really paying attention to it.
Okay. Now, this person leant over you?---Yes.
Olay. So this person would have had to have bent their knees to lean over you?---I don’t know.
But – but they certainly leant – when they leant over, how did they lean over?---I don’t recall.
Because you weren’t sleeping on a proper bed, it was a roll-out bed, wasn’t it?---Yeah. It was a sofa bed. Fold-out sofa bed.
And that sofa bed was lower to the ground than a normal bed?---I don’t recall but it’s like normal height.”[4][4]PRT2-15.32 – PRT2-16.35.
And further and after it was contended that the defendant was never in her room that night and had not touched her, on either her chest or vagina, with the complainant’s responses being in each instance, “he did”:
“I’m going to say to you that you made up these allegations about Steve to get [R] to pay more attention to you?---No. Not at all.
Now, the clothes you were wearing that night, they were a singlet and gym shorts?---Yes.
Do you recall sometime later having a conversation with [JS] where you said you’d washed those clothes?---Yeah. I had washed them after it happened.
But you then had a later conversation where you told [JS] that you didn’t wash the clothes and that you lied about washing the clothes?---No.And that the reason that you lied about washing the clothes was you didn’t want [R] being accused of this?---No.”[5][5]PRT2-17.26-39.
There is also evidence as to the preliminary complaints made by the complainant. Such evidence is admissible pursuant to s 4(A) of the Criminal Law (Sexual Offences Act) 1978, as far as such relates to “how and when any preliminary complaint was made by the complainant about the alleged commission of the offence by the defendant… regardless of when the complaint was made”. The term “complaint” is defined to include a disclosure and “preliminary complaint” is defined to mean any such complaint made prior to “the complainant’s first formal witness statement given in or in anticipation of a criminal proceeding in relation to the alleged offence”.
As is made clear by s 4A(4) such evidence is not to be regarded as indicative of any legal assumption that the complainant’s evidence is to be regarded as any “more or less reliable only because of the length of time before the complainant made a preliminary or other complaint”. However, this kind of evidence is admitted not as a testimony of the complainant, but for the purpose of assessing whether there is demonstrated consistency of conduct, including in what was asserted by way of disclosure and which may serve to either buttress or detract from the credibility of the complainant’s testimony, in the particular circumstances of the case.
As to her preliminary complaints and in addition to her text message, the complainant said the following, in her statement:
“13.At 12.59 am I got a message back from [R] that said [sic] ‘call mme New Me Now Please’. I called [R] … and I remember him telling me that he was coming over. I can’t recall what else we spoke about because I was so upset.
14.A few minutes later [JS] arrived back home. She came into my bedroom. She saw me crying while I was still on the phone to [R]. I ended the call and told her everything that had happened. She seemed shocked and said ‘Steve?’. I explained everything to her and she called out to [SS]. He didn’t answer so she went in to talk to him. [R] then arrived so I went to the chair outside the front door to talk to him.
15.[R] got really aggressive started crying and got really upset about it. I then saw [SS and [JS] walking towards their car, [JS] said she was going to pick up her kids who were staying at Steve’s house. They then got in their car and left.
16.I went inside with [R] and tried to calm him down a little bit. [JS] and [SS] got back a few minutes later. We all went and sat on the back patio and I told everyone again what had happened.”
Then and after making reference to [SS] making a telephone call to the defendant and her hearing the defendant loudly denying that he had done anything, the complainant described returning to her room with [R], about 5.00 am and later, at about 4.30 pm, being collected by her parents and that when they:
“ … got home [at …] I told Mum everything that happened. She got really upset, started crying and then she went and told dad.”
In her evidence in chief at the pre-recording, the complainant was unable to elaborate any further as to what she disclosed to others. The relevant passage is as follows:
“MS SHAW: Now, you – you were still in the bedroom on the phone to [R] and crying when you said that [JS] came in?---Yes.
You said you told her everything that had happened?---Yes.
What was it that you told her?---I don’t recall exactly but I told her that he’s come in and touched me inappropriately.
Would you have used those words or other words?---I don’t remember.
And you said in your statement that when [R] arrived you spoke to him, did you - - -?---Yes.
- - - you told him what happened?---Yes.
Do you remember what you told him?---No.
And you - that after [JS] and [SS] had gone out and then they’d returned and you all went out on the back patio and you told everyone what happened, what was it that you told them?---I don’t remember.
And later that day when your mum and dad called up, it was at 4.30, I think, you said that when you got home you told your mum what had happened. What was it - - -?---Yes.
- - - that – what was it that you told your mum?---I don’t remember exactly what I told her.
Do you remember any of what you told her?---I told her that he touched me inappropriately.”[6][6]PRT2-11.27 – PRT2-12.9.
She was not cross-examined at all on this topic.
[R] described calling the complainant back at 1.12 am and described her in that conversation as sounding very “sad, upset” and that “she could barely, like, spit out words, because she was crying – traumatised”. He said that he went to the [S’s] house and that he observed the complainant when he arrived to be “very distressed – she was crying, like, pretty bad… Again, couldn’t spit out words”. It is to be noted that when the prosecutor then sought to obtain further details as to the complainant’s disclosures, there was some difficulty with the witness in having him identify where he was and who was present when particular assertions were made. At one point he said “it was all a bit of a blur to me”. However that appeared to be directed at when he first arrived at the house and he then described going to the complainant’s bedroom and that “she told me that the – that Steve came over and she was laying down, left side, in the recovery position, right side over facing towards the door.” And he proceeded to explain that he meant she was describing that she had her “right leg over… in the recovery position”. He then proceeded to say:
“And said that she felt him standing in front of – in front of her – and – but she didn’t take much notice of it. And she – she said that she felt him feeling him – feeling her down there – on her vagina – at – like, on her vagina. And also feeling her breasts at the same time.”
He explained that when she said “down there”, she was motioning down there towards it. He then explained that that was the extent of what she told him and when asked “what happened when you woke in the morning”, he said that:
“She demonstrated what – how she was sleeping – recovery position and all that. And she said that when she went to sleep she had the blankets all the way up to her neck. And when she woke up, she said it was below her knees – like thighs.”
It was clarified that it was her blanket that was below her knees or thighs and went on to say that she “kind of just repeated what we said last night”. He then provided some detail about the conversation about “$80 cologne” and said:
“And they were being a bit loud. And [JS] said, ‘quiet down. You’re going to wake up […]. And Steve replied. He said, ‘don’t worry. She’s awake’.”
In addition, there was the following in cross-examination:
“Just take you to the second conversation you had with […] the next day?‑‑‑Yep.
You’ve told the court what she told you. Isn’t it true that she also said that, “She showed me that he touched her by reaching over as she was facing him”?‑‑‑Yep.And put his hands between her legs from behind?‑‑‑Yeah.”[7][7]T1-16.1-6.
[JS] said that after she’d dropped the defendant home and returned the light was on in the complainant’s room and she went in there. She described that she could see that the complainant was upset, crying. She described she was wearing black gym shorts and a khaki top and that she asked her what was wrong. The complainant said that Steve had been in the room and Ms [S’s] evidence was “I left and went and got my kids at that point. We didn’t – there wasn’t much conversation. I was just a bit worried about where that was going.” She then described returning to find the complainant outside with her boyfriend and that she and her husband went out and chatted with them. Then there is the following:
“Yes. And when you chatted with them did […] tell you anything on that occasion?‑‑‑I asked her exactly what – I said, “You need to tell me exactly what happened.”
Yes. And what did she say?‑‑‑And she said that he was – she felt – she woke up because she felt pressure on her leg.
Yes?‑‑‑And then she said she saw Steve standing there, and then he walked out.
Okay. When you say that she said that she felt pressure on her leg, did she say what leg?‑‑‑She showed me. She just said, “I felt pressure,” and she put her hand there. She said, “I felt pressure there.”
Okay. And you’re ‑ ‑ ‑?‑‑‑Right.
‑ ‑ ‑ showing pressure on your ‑ ‑ ‑?‑‑‑Right.
‑ ‑ ‑ right thigh?‑‑‑Yes.
Upper right thigh?‑‑‑Yep.
Okay. And did she tell you anything else after that?‑‑‑It was a bit hard to understand her sometimes, but we had – I don’t really honestly remember the rest of the conversation. It was just making sure she was okay ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ before we went back to bed.
Okay?‑‑‑And she was okay. She was consoled.
And when you say that it was hard to understand her, why was it hard to understand her?‑‑‑She’d – sometimes she’d cry, then she’d be okay, and then she’d start crying again.”[8][8]T1-19.23 – T1-20.7.
[SS’s] evidence was that when his wife took the defendant home, he went straight to sleep but was later woken by his wife saying that he had to come outside and hear what […] had to say as she was in a bit of a state. He described going outside with his wife to be with the complainant and [R] and to observe that the complainant was “generally upset” and “just crying a little”:
“Okay. And whilst you were outside with […], did she tell you anything?‑‑‑Only that she felt that she awoke with Steve standing over her ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ and said that she had his hand on him.
HIS HONOUR: I’m sorry?‑‑‑He had – he had his hand on her.
MR SLACK: Okay. Did she say where his hand was on her?‑‑‑Just on her leg.
Okay. Did she say what part of the leg?‑‑‑Well, she just sort of just said on her leg.
What was that, sorry?‑‑‑On her leg.
Okay. And did she tell you anything else?‑‑‑No.Okay?‑‑‑No. Not that I’m aware of.”[9][9]T1-29.1-16.
The complainant’s mother described collecting the complainant and [R] from the Glassop residence on the Sunday afternoon. She described that after arriving home and putting dinner on, she went outside to have a coffee and cigarette and then described the following:
“Yes?‑‑‑And […] approached me upset and said that she needed to speak to me and it was serious.
When you say she was upset ‑ ‑ ‑?‑‑‑Yep.
How did she appear?‑‑‑Very anxious, crying.
Yes?‑‑‑Hard for her to speak.
Okay?‑‑‑Yeah. She was very unsettled.
Okay. And, sorry, what happened from there?‑‑‑She said that she needed to speak to me ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ without dad there and that it was serious.
Yes?‑‑‑So I said okay. So we went around the side of the house, where we’ve got – there’s another little set of table and chairs.
Sure?‑‑‑So we both sat down there.
Yes?‑‑‑And, again, she was crying and very distressed, and I said to her, “What -” you know, “What’s the matter?” and she said, “Please don’t tell dad.” She said that when she was staying at [SS] and [JS], that [JS] had gone out and [SS] and his friend were watching the football, having a few drinks.
Yes?‑‑‑She was tired, so she went to bed.
Yes?‑‑‑And then she said she woke to the feel of somebody touching her and she opened her eyes and looked and saw Steve standing there.
Okay. When she said that she could feel someone touching her, did she say where they were touching her?‑‑‑Yeah, she said, “Down there.”[10][10]T1-36.1-33.
Her mother described that since she was a little girl the complainant had described her private parts in terms of “down there”. She also recounted the complainant describing hearing [SS] and Steve talking in the kitchen “about a bottle of cologne or something” and went on to say:
“So she went out to make sure that it was there and that she wasn’t – because she sleeps in a deep sleep – to make sure that it – it really was there and – and what she had just experienced had happened.”
She also referred to the complainant describing ringing her boyfriend and also hearing the conversation where [JS] told Steve to be quiet because he’d wake […] up and the response from Steve “she’s already awake”.
The complainant’s father described being aware of his daughter outside talking with his wife at their home on the Sunday evening, as he was watching TV. He described seeing that his daughter was agitated when she came back inside. And then there was the following:
“Yes?‑‑‑So I went out and asked what was going on, and she said, “You don’t want to know,” so ‑ ‑ ‑
Who said that, sorry?‑‑‑[JS] said, “You don’t want to know.”
Yes?‑‑‑And we both went into the room with […], and I said, “What’s going on,” and she told me what happened.
What did she say?‑‑‑She said that she was asleep and she got woken up and she was being touched.
By who?‑‑‑By Steve.
Okay. Did she say where she was being touched?‑‑‑She said, “Down there,” and I knew where she meant.
Okay. And how do you know where she meant?‑‑‑Well, she sort of pointed.
Okay. Did she say anything else?‑‑‑Yeah. I just said, “What did -” you know, “What was [SS] and [JS] doing?” Did they ‑ ‑ ‑
Yeah?‑‑‑ ‑ ‑ ‑ do anything?” And she said that [SS] was out the back crying. And I think – I can’t remember what she said about [JS], but ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ I was pretty angry at the time, so I sort of just blocked it out.
Okay. And was that the extent of what she told you about what Steve did?‑‑‑Pretty much.
Okay?‑‑‑I was – yeah. I just didn’t want to hear any more.”[11][11]T1-39.29 – T1-40.12.
Discussion
In this case, proof of the allegations against the defendant critically depends upon acceptance of the complainant’s evidence as to what she described as occurring in her bedroom. In that regard, it is of importance to note that, despite her subsequent assertions that it was the defendant who had been in her room and had touched her, acceptance of her evidence would not entail any acceptance of her actual identification of him as that person. Rather and as has been noted, her evidence includes only a description of “a chubby person” and “a male voice making groaning and grunting noises”. Her later assertions that it was the defendant, are explicable by the conclusion or inference she drew at the time and as expressed in her statement: “I know it was Steve because he was the only chubby male person in the house”, which position she maintained when cross-examined.
Rather, the prosecution case in identification of the defendant as the offender is a circumstantial one which depends upon proof of the same inference, as the only rational inference to be drawn from the following circumstances:
(a)the evidence of the complainant as to what occurred and she observed in her bedroom, including her description of her assailant;
(b)the relative builds of the defendant and [SS], in the context of the evidence of [SS] that he did not go into her bedroom;
(c)the opportunity for the defendant to have done so; and
(d)any implication in the defendant’s latter assertion, of some knowledge that the complainant was awake.
As to the last of the circumstances the prosecution contention is for a finding of implication not just of knowledge of the complainant being awake but that he must have been in her room to know that. The problem is in identification of any such implication in any version of the defendant’s assertion. And the real issue is whether the only rational inference is that it was the defendant who went into the complainant’s bedroom and committed the alleged offences, having regard to overall consideration of the relevant circumstances, as set out above.
Similarly and whilst it is a relevant consideration as to whether the implication in the defendant’s assertion was as to knowledge that the complainant was awake, as opposed to it being some inebriated banter in response to [SS’s] exhortation of him, her acknowledgment of the jovial nature of the exchange is to be also considered in the context of overall consideration of the circumstances, rather than a reason for immediately putting it aside as a relevant circumstance.
However, there are critical issues which arise as to what is established by the complainant’s evidence as to what did occur in her bedroom, whoever may have been the assailant. As was accepted in the submissions of the prosecution, a finding that her evidence was credible, is essential to any finding as to the defendant’s guilt. And that, as is usually observed, requires consideration of both the honesty and reliability of those essential aspects of her evidence, as they are critically relied upon in proof of the alleged offences.
As to the prosecution contention that the complainant should be accepted as an honest and reliable witness, reference is made to both her demeanour and that in the context of the preliminary complaint evidence, she also exhibited distressed condition. That is, reliance is placed upon such distress as going beyond being part of the narrative of the preliminary complaint evidence and as being probative of the alleged offending. In that respect, it is necessary to note the customary need for caution in placing any significant weight upon such evidence, particularly having regard to the ease with which such distress may be feigned or influenced by extraneous considerations. But in this case the difficulty extends beyond any concern as to the genuineness of the complainant’s distress and to any understanding as to how such distress provides any meaningful support for the reliability of the complainant’s evidence or the prosecution case more generally.
As is the prosecution submission, there is nothing in the presentation of the complainant’s evidence, including her demeanour, which detracts from or would cause concern about her honesty as a witness. It may be accepted that she displayed apparently appropriate emotion when asked to recount the more intimate detail and there is nothing in the evidence as to her conduct or demeanour in raising her preliminary complaints, which would cause concern as to any lack of genuineness in her distress. Rather, there is an indicia of consistency with a conclusion that something which had disturbed her had earlier occurred in her bedroom. It is another thing and is to be further discussed, as to the reliability of the evidence as to what did happen.
Such conclusion also tells against the submission raised for the defendant that her evidence should not be accepted because of her motive to lie. The suggestion made and rejected in the cross-examination of the complainant was that:
“I’m going to say to you that you made up these allegations about Steve to get [R] to pay more attention to you?---No. Not at all.”
As is necessarily the case, there is a degree of supposition in any such suggestion. However and to the extent that the contention is based upon inference to be drawn from evidence, it appears to be based on the following considerations:
(a)despite being aware that [SS] was in the house, the complainant did not shout out for help;
(b)her first recourse in raising complaint was to her boyfriend; and
(c)evidence elicited from [JS] that in the weeks leading up to 15 September 2018, the complainant had told her that she was having difficulties in her relationship with [R], “suspected he might have been seeing her best friend” and wanted him to pay more attention to her. That evidence was elicited in the context of the following questioning of the complainant:
“Okay. You never shouted for help?---No, because I was in shock.
Shock, As you said you had your phone with you and – and you contacted your boyfriend, [R]?---Yes.
Now, let me ask you about [R]. In the lead up to the 15th of September that night, you and [R] had been having some problems in your relationship?---No, I don’t recall.
You, in fact, you believed he’d been cheating on you?---No.”There are obvious difficulties in what was suggested to the complainant. Whilst there was, in the cross-examination, some understandable attention to her state of mind, there was no evidence elicited to support the contended motive. And in terms of reliance on the evidence of [JS], it may be noted that:
(a)there is a disconnect in terms of the language used and in what may be readily recognised as the difference between the states of mind involving suspicion and belief; and
(b)the reliance on the evidence of what the complainant had said to [JS], apparently as evidence of her true state of mind, was elicited, without objection, without regard to s 18(2) of the Evidence Act 1977 or otherwise asking the complainant whether she had made any such statements to [JS].
In any event, in the context of and consistency of the evidence of the distress displayed by the complainant in her interactions with others, in the course of making her preliminary complaints and her presentation in giving evidence, it should be concluded that her allegations are not simply concocted for the reason contended, or any other, and more likely representative of something that had occurred in her room and which led to her raising complaint. Of course, it remains necessary to consider her evidence as to what occurred, as it is critically relied upon in support of the offences which are alleged against the defendant and in order to determine whether such evidence is reliable, as well as honest.
As is contemplated by the prosecution submission, there are “potential inconsistencies” which relate to the assessment of the reliability of the complainant’s evidence.
First, and despite the rejection by the complainant of the suggestion that the defendant had not touched her chest, there is a lack of clarity in her evidence in support of Count 1. Whilst the trial was conducted on a basis that did not entail any issue as to the elements of indecency or unlawfulness, it must not be overlooked that this is because the prosecution case on Count 1 depends upon a finding that the defendant touched the “breast area” of the complainant.
As is correctly contended for the defendant, the complainant did not give evidence as to her breasts being touched. In her statement she said:
“I woke up feeling weird like someone was touching my chest”.
Even when expressly asked for clarification, in her evidence in chief at the pre-recording, her evidence remained as follows:
“What was it that you actually felt? --- I don’t remember.
So when you say that you said you woke up feeling weird like someone was touching you on your chest, did it feel like someone was touching or was someone touching you? --- It felt like someone was touching me.
And when you say you felt like someone was touching you, that was on your chest? Where abouts, --- ? --- yes.
--- on your chest was that? --- I don’t remember.”
Further and save in respect of the evidence of [R], there is the distinct absence of reference to any such touching in the evidence given by all of the recipients of her preliminary complaints. Also, in her written message to [R], there is no such distinct reference. Rather, it is that:
“… I woke I about 5-10 minutes ago to him feeling me up in bed.”
Then after describing that he was doing it for a while, she then described that she moved and pretended “to be waking up so he left the room”.
It must of course be kept in mind that leaving aside this recorded account of the complainant, the other evidence as to her preliminary complaints comes from witnesses who are asked to relate their recollections of things said some time ago, to them by the complainant, in difficult circumstances. It is in such a context that questions as to the reliability of the evidence of these witnesses may arise. However, a problematic feature of the prosecution case here, is that in the reliance upon the evidence of preliminary complaint, little assistance is provided in the evidence of the complainant as to her preliminary complaints. In the first instance, this is because in her statement (as has been noted above) the focus is upon the sequence of events rather than the content of any disclosures.
There are a number of problematic features of the evidence given by [R]. In the first instance, there was some difficulty in having him address what was said when in the separate disclosures made by the complainant, for which he was present. And at least in respect of what she initially said to him, he described that it was “all a bit of a blur to me”. As has been noted, he recounted disclosures which were made to him in the bedroom and said that:
“She felt him standing… in front of her… but she didn’t take much notice of it. And… she said that she felt him… feeling her down there… on her vagina.”
He later clarified that when the complainant said that she could feel him touching “down there”, that “she was motioning down towards there” and he agreed with the question “so she was pointing towards it”. And it was in the context of her further disclosures after some sleep that he recalled a more detailed description of the mechanism by which that area of her body had been touched and which are not repeated in the evidence of any other preliminary disclosure, or in the evidence of the complainant.
In the circumstances there are some obvious difficulties as to what to make of [R’s] evidence. It is of course necessary to note that his evidence is admitted on the limited basis, as it relates to how and when preliminary complaints were made by the complainant and not as to evidence as to what actually occurred. For present purposes, it is suffice to note that neither his evidence, nor that of any of the other preliminary complaint witnesses, provides any support for the complainant’s evidence as to the allegation in Count 1. Rather, there is a sense of detraction from it and particularly in what may be otherwise noted as an absence of any distinct reference to any touching in the area of her chest. And his recounting of a distinctly differing assertion, as to both nature and timing of the act involved, cannot assist in any favourable assessment of the complainant’s evidence.
Accordingly, and where the allegation depends upon such imprecise evidence given by the complainant as to their first being a touching of her in that area of her body and as she was awoken from sleep, it should not be concluded that there is any reliable evidence which establishes this allegation beyond reasonable doubt.
Whilst that conclusion remains relevant to any remaining assessment of the reliability of the complainant’s evidence, particularly given the difficulty of her being roused from sleep, it would not necessarily prevent acceptance of any more reliable account of some subsequent occurrence. However and as will be noted, there are further obstacles to such a conclusion.
It may first be noted, that the contention for the defendant as to “impossibility” in the described mechanics, is not one of them. This is so even if the proposition is examined from an alternative and less demanding perspective of being “implausible”. In the first instance and to the extent there is reliance upon the evidence of [R] as to the mechanism adopted, the problem is that this is not the description provided in the complainant’s evidence. Neither is there, because of the absence of any cross-examination of her on the issue, any inconsistency established. Rather, her evidence was left in the general way in which her evidence in chief was led, as an undetailed and largely bald assertion that:
“when I woke up I felt three fingers rubbing back and forth on my genital areas”.
And where she otherwise and separately described that she was lying on her left side with her right leg “up on a pillow”.
However, it is in such context of the bare and general narrative in the evidence of the complainant, as to how her assailant did what she alleges, that some particular difficulties emerge from the further preliminary complaint evidence.
As has been noted, the more detailed account as it is emerges in the evidence of [R] appears to be from conversations he had with the complainant before and after they slept the remainder of the night in her bedroom. However and as is described in the sequence provided by the complainant, prior to then she speaks twice to [JS] and on the second occasion [SS] and [R] were also present. [R] was neither specifically asked nor did he give any evidence as to what then occurred. But the evidence of the [S’s] is in significant conflict with the general assertion of the complainant that she on the first occasion told [JS] “everything that happened” and secondly “told everyone again what had happened”.
In the first instance and although [JS] described that “there wasn’t much conversation” and that she “was just a bit worried about where that was going and left to get her kids, [JS] recounts only the complainant’s assertion “that Steve had been in the room”. More importantly and making all appropriate allowance for the descriptions of the complainant’s distress (as [JS] described “it was a bit hard to understand her at times”), there is the significance of the description given by [JS] and substantially confirmed by her husband, that when the complainant was later asked to recount “exactly what happened”, when all of them including [R] were present, she said that “she woke up because she felt pressure on her leg” and when asked where, she indicated her “upper right thigh”.
As has been noted, there is nothing in substantial contradiction of the evidence of the [S’s] and no apparent reason for doubting the combined effect of their evidence. And in circumstances where this is in relation to an early assertion by the complainant and it would appear, prior to any of the further complications introduced by the recollections of [R], enough to be a disclosure as to a concerning occurrence and sufficient to cause the observed distress, but obviously problematic in terms of any sense of consistency with the allegation as to Count 2.
In addition and despite the curiosity of it, there is a further aspect of [JS’s] evidence which cannot be ignored in considering the credibility of the complainant’s evidence. In contradiction of the complainant’s denial as to having done so, [JS] gave the following evidence as to her discussion with the complainant, as to the clothes she had been wearing on the occasion in issue:
“And shorts. She had told you that she had washed those clothes, hasn’t she?‑‑‑She apparently told – she had a conversation with me that she told me that Constable Ben Morrow asked for the clothes.
Sorry, I couldn’t hear that?‑‑‑Constable Ben Morrow – she told me that he asked for the clothes.
Okay?‑‑‑And she said she’d washed them which was not true.
She later told you that she lied about that to you?‑‑‑Well, I asked her why did she lie about it, yes, and she ‑ ‑ ‑
And what did she say?‑‑‑She said she felt weird because her boyfriend, [R’s] fingerprints were on her clothes. I think she thought they wanted them to fingerprint him.”
And in re-examination:
“[JS], when you spoke to […] about the issue with the clothing, when did that occur?‑‑‑It was weeks after. I can’t remember exactly when but it was a long time after I made my statement.
Okay?‑‑‑Before – before my mother gave her statement.
Okay?‑‑‑Because I had a conversation with Ben Morrow about it.”[12]
The cross-examination of the complainant was:
“Do you recall sometime later having a conversation with [JS] where you said you’d washed those clothes?---Yeah. I had washed them after it happened.
But you then had a later conversation where you told [JS] that you didn’t wash the clothes and that you lied about washing the clothes?---No.
And that the reason that you lied about washing the clothes was you didn’t wash the clothes and that you lied about washing the clothes?---No.”[13]
[12]T1-23.22-28.
[13]PRT2-17.32-39.
The problem is not so much in any connection to her boyfriend or his interests, but rather in circumstances where there appeared to be no reason to doubt the credibility of [JS’s] evidence, in the contradiction of the complainant’s denials that she had done any such thing or more particularly, said any such thing to [JS].
Conclusion
These circumstances were such as to give rise to a reasonable doubt as to the reliability of each of the allegations made against the defendant.