R v RCV

DISTRICT COURT OF QUEENSLAND

1. The defendant is charged that on a date unknown between the 1^st day of August 2017 and the 26^th day of June 2018 at Mansfield in the state of Queensland he unlawfully and indecently dealt with Kate (a pseudonym), a child under 16 years, and that Kate was under 12 years.  He says he is not guilty, and it is my role now to determine whether he is guilty or not guilty by reference to the evidence.  Now, I will obviously sum the case up in the sense that I ordinarily would, recognising however that this is a judge alone trial.  I have, of course, in the period since we retired yesterday until this morning, considered the evidence that has been placed before me.

2. Of course, it is my role to determine the facts of the case, and my determination of the facts will be founded upon the evidence and only the evidence that has been placed before me in the course of the trial.  It involved me determining what evidence I accept, applying the evidence to the law as I will explain it in the course of my summing up here and reasons, and by that process I have arrived at my verdict.  In this case, the evidence is largely what I have heard witnesses give from the witness box.  That includes the recorded material.  It also includes quite a number of photographs which have been placed before me, a house diagram, and some admissions.

3. So far as the admissions are concerned, they are these: it is admitted pursuant to section 644 of the Criminal Code 1899 (Qld) that –

1. The complainant’s father, Adam (a pseudonym), provided a statement to police on 26 June 2018.  In his statement, Adam gives the following evidence; 

(a)   Adam and his family lived at 123 Street since the middle of August 2017.

(b)   On 25 June 2018, Adam was at home with his children.  He was in the loungeroom alone when Sophie came in.  She told Adam about a conversation she had just had with Kate.

(c)   After the disclosure, Adam asked Sophie to bring Kate into the loungeroom.

(d)   Kate sat on Adam’s lap.  She looked sad, teary and distressed.  The following exchange took place:

Adam:  “What’s wrong?”
Kate:  “About what?”
Adam:  “About what you’re telling Dada in the room?”
Kate:  “Oh, yeah.  I was telling her about Grant touching my privates.  He would put his finger in my privates.”
Adam:  “How does this start?”
Kate:  “When we go to Grant’s house, he removes his pants and then asks me to remove my pants as well.  Then I refuse, and I want to go out but he will block my way.  Then he will take my pants down by force and start putting his finger in me.”
Adam:  “Why don’t you scream or cry when this happens?”
Kate:  “I’m very scared.”
Adam:  “But you’re supposed to scream when something like that happens to you so other people can come.  Remember I told you, if anything happens to you, someone hits you, bullies you just scream for help or just come home and tell us straight away.”
Kate:  “I was scared to tell you because you told us not to go over there.”
Adam:  “How many times has this happened?”
Kate:  “Many times.”
Adam:  “How many times in numbers?”
Kate:  “Maybe 10 times.”
Adam:  “When was the last time he touched you?”
Kate:  “Not today, not yesterday, but last time.”.
Adam:  “What do you mean by that?”
Kate:  “The other day”.

4. Those matters, having been admitted, I can at least accept those as facts proved. Of course, I have not taken into consideration anything that I have learned about this case outside this courtroom. Indeed, I have learned nothing about this case beyond what I have heard in this courtroom. The only matters that have come before me and that I am aware of prior to the trial were the section 93A recording and the section 21A recordings, which had been provided to me as part of the Crown’s depositions. No other material had been provided prior to this trial. I have regard only to the testimony and the exhibits that have been placed before me during the course of the trial, and of course the admissions that have been made. I am conscious to ensure that no external influence plays any part in my deliberations.

5. I’m also conscious that a number of things that have occurred during the course of the trial are not evidence.  In particular, the opening by the Crown was not evidence, nor were questions and suggestions put to witnesses that were not adopted by witness’s evidence, and then of course the addresses by both the Crown and the defence were not evidence.  Of course, I have taken those matters into consideration in the course of my deliberations.

6. So far as evidence is concerned, of course, evidence falls broadly into two classes.  There is direct evidence, evidence of things that people say they saw, heard or did, and then of course there is indirect evidence or circumstantial evidence, which is basically evidence drawn by deduction based upon facts that are established or found in the evidence.  I am conscious of that, and conscious of the limitations available when it comes to inferring matters and facts.  That is, that there must be a logical and rational connection between facts as established and any conclusion or deduction which I wish to draw.  What I must not do is engage in the process of the use of intuition or guesswork to address any deficiency in the evidence when seeking to draw a conclusion.

7. So far as the burden of proof is concerned, the burden rests upon the prosecution to prove the guilt of the defendant.  There is no burden upon the defendant to establish any fact, let alone his innocence.  The defendant is presumed to be innocent, and he may be convicted only if the prosecution establishes that he is guilty of the charge in question.  For the prosecution to discharge its burden of proof, the prosecution must prove that he is guilty of the offence in question beyond reasonable doubt.  That means that in order to convict, I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged, and I will address the elements in a short time.

8. I’m conscious that beyond reasonable doubt is the highest standard of proof known to law, and it is to be contrasted with the lowest standard of proof that applies in civil cases, where cases are determined on what is basically referred to as the balance of probabilities.  That is, the case is proved to be more likely than not.  I recognise that in a criminal trial such as this, the standard of satisfaction is much higher.  The prosecution must prove the guilt of the defendant beyond a reasonable doubt.  It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence, and of course if I am left with any such  reasonable doubt about guilt, it is my duty to acquit.  That is, to find the defendant not guilty.  If I am not left with any such doubt, then of course it is my duty to convict.  That is, to find the defendant guilty.

9. In undertaking this task, of course, I dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against any particular party who has been involved in this proceeding.  No such emotion has any role to play in the decision making process.  I approach this duty dispassionately, deciding the facts upon a consideration of a whole of the evidence that has been placed before me.  Of course, in this case, matters which are – and I will turn to submissions in due course – particularly critical are matters of credit and reliability.

10. Credibility and reliability are different.  Credibility concerns honestly.  Reliability, of course, is different.  A witness may be honest enough, but have a poor memory or otherwise be mistaken about the matters of which the witness has spoken in evidence.  But it is for me to decide whether I accept the whole of what a witness says, part of what a witness says and, indeed, none of what a witness says.  I am permitted to accept or reject such parts of the evidence as I think fit.  Ultimately, it is for me, as judge of the facts in this case, to determine whether I think a witness is telling the truth, and if so, whether the witness accurately recalls the matters about which the witness is testifying.

11. Of course, there are many factors that might be taken into consideration in determining what evidence I accept. In particular, I take into account the presentation of the witnesses in the witness box. I’m conscious that witnesses, particularly in these sorts of cases, are not accustomed to giving evidence and might find the environment distracting. I am conscious that at the time of the complainant child giving evidence, she was initially six years of age when she gave her 93A statement, and about eight years of age at the time of giving her evidence in her section 21AK evidence. I take into account also the likelihood of particular witnesses’ accounts, whether the evidence of a particular witness seemed reliable when compared to other evidence that I accept, and of course general matters of memory.

12. I also take into account the ability that a witness had, and the opportunity a witness had to see, hear or know of the things the witness spoke of.  And of course, I take into account the prospect of inconsistencies.  That is, whether something that has been said by a witness at a later time differs materially from something that was said at an earlier time.  Obviously, a witness who says something in respect of one subject matter at a later time which differs from something said on the subject matter at an earlier time might bring that particular witness’s credit or reliability into question.  But of course, when considering such inconsistencies or discrepancies where I find them, I also consider whether there is a satisfactory explanation for such a discrepancy, such as, for instance, a discrepancy or inconsistency occasioned by material falsehood, or perhaps something innocent such as a failure of recollection, or something more mischievous such as a material falsehood.

13. For instance in this case, a number of minor inconsistencies appear.  I note, for instance, an inconsistency addressed in the course of cross-examination of the complainant concerning her estimation of times.  For instance, she spoke of the defendant living next door for nine weeks.  She was prepared to accept in cross-examination that it may have been something longer.  That inconsistency, for instance, might be explained by her relative immaturity.  Likewise, it was suggested there is an apparent inconsistency, which I will talk to in a short time, concerning when she says these events occurred.  I note for instance in her complaint evidence speaking to police, she said things had happened yesterday.  A matter of moments later, when yesterday was identified as a Monday, she recanted to say that it was Monday “a while ago”.  Again, they are features that may be explained by the age and sophistication of a six year old girl.

14. In any event, where such discrepancies or inconsistencies are apparent, I have carefully evaluated the test and in light of any other evidence which I have accepted. Now, so far as the evidence itself is concerned, let me just talk about some particular parts of the evidence. First, the evidence of the complainant, Kate and her sister Sophie. Each of them, of course, gave statements to police at the police station. I’m conscious of the circumstances in which those statements were made, which became the section 93A recordings were undertaken in an entirely conventional way. No prejudice or adverse inference is drawn against the defendant because of that entirely routine process of taking initial statements from those two witnesses.

15. Subsequently, those witnesses presented to the court, and their evidence was taken in accordance with the provisions of section 21AK. That occurred on 17 June 2020. At that time, each of those children gave evidence from a remote room within this courthouse. The room was connected by way of audio-visual link, and there was a support person sitting in the room and no other person. When each of those children gave evidence, all non-essential persons were excluded from this courtroom, and at the time the defendant was present in the courtroom but positioned so that neither of those witnesses could see the defendant on the monitor or at all while they gave their evidence.

16. The evidence and matters on that occasion was recorded, and I have seen it replayed in the course of the trial. At the time the trial was being undertaken, this courtroom was closed and all non-essential persons were excluded from the courtroom while that pre-recorded evidence, including the section 93A material, was played. I’m conscious of my requirements under the Evidence Act 1977 (Qld) to note that all the measures that I just outlined for the taping and showing of the children’s evidence was routine for taking the evidence of those children, and that I must not draw any inference as to the defendant’s guilt because the routine measures were employed. Furthermore, that the probative value of that evidence is neither increased nor decreased because those measures were employed, and further that the evidence is not to be given any greater or lesser weight because those routine measures were employed.

17. Turning to a body of evidence which is broadly described as discreditable conduct.  As I have noted, the defendant is charged with only one offence, the particulars of which are that the defendant touched the complainant’s face and/or ear with his penis.  Although it is difficult to precisely pinpoint the occasion complained of, notwithstanding the date range provided in the indictment, the event complained of appears to be an event that occurred some time shortly before complaint was made by the child to her sister and her father.  However, there is a considerable body of material in statements made by the complainant to police which suggests other conduct.  Early in her statement to police, she told police that “he”, being a reference to the defendant, “always – was like always touching me, and I’m telling him, ‘I need to go home’, but he says I can’t because it’s not 10 o’clock”.

18. On another occasion, she related how the defendant gave “us lollies a bit”, “like trick-or-treat.  He says have a good Halloween”.  She said that walking past his house, “he’s like waiting for me, at like down his like walking pathway”, at which occasion she noted that “he pulls me and then it hurts my arm”,  ”sometimes he is saying, ‘come here’”.  Later on in her statement, she said that “When we come past and say hi, he has, like, a bag of lollies behind his back, and he is, like, dropping them on the floor when he opens the door.  He like, says, ‘Close your eyes’, and then I turned around and closed my eyes, and then, um, he drops the bag of lollies and he thinks it is a magic trick, but he is just joking”.

19. When she was asked to relate the first time, she said, “He like, he carries me and like squeezes me like this”.  She demonstrates how she is held, “like holding me, like squeezing my tummy, and it hurts.  When I, like, went on into his house and then say hi, and then he, like, he carried me and squeezed me”.  She was asked why did you go into the house at that time.  She said, “I wanted to say hi, and then he said hi, and then he , like, he carried me, then he throwed me, and then, like, got me back and squeezed me”.  A little later on, she related an event where she was then taken back by police to explain in some greater detail.  Police asked, following up on her earlier statement that Grant showed you his private parts, she was asked, “You told me and Marc that Grant showed, has showed you his private parts”.  She answered, “Mmm, when I didn’t go to his house”, she continued on, “because I was just riding, like, see, if this is Grant’s house, and I was like… I was just riding like here, and I like accidentally couldn’t control my bike.  I crashed it, and then fell down in there,” she was demonstrating, “and I ended up in his place.”.  “You ended up at his place when you crashed your bike?‑‑‑Mmm.”  She was asked:

Who else was there?‑‑‑No one else.

It was just you?‑‑‑Yeah, and my little brother.

20. Then there was some further discussion, and she said, “We’re not allowed to, like, pass this line”, being a reference to the notional place where she was not to be, and she continued a little later on, “He,” that is, Grant – “like, made Grant say, ‘What is that noise’, and then he came outside, and said I think that’s a visitor’.  She continued that he said “‘You’re not getting up anymore, you must, like, stay in my house until 10 o’clock… and he’s always like, saying I can’t go until 10 o’clock.”  She was then asked, “All right,  you were talking about his private part… do you know what the private parts called?”, and she said, “No”.  She was then asked, “Okay, and I asked you to point whereabouts his private part was, and you said here,” and she gestures towards her groin.  And then she is asked, “Okay, and you talked about it being alian and slimy?”, she said, “Yeah”, “And you said it was big with hair and it was squishy, okay”.  She goes, “Mmm”.  “And you said he put it all over you”, and then she gestured towards her chest.

21. I might note that I refer to that event as “the bike event”.  It’s not the subject of a charge, but it appears to have some greater particularity than most of the other discreditable conduct.  She was asked a little later, after relating the event the subject of the charge, “How many times has Grant done that to you?”  She said, “I think 10”.  She was asked, “Why do you think that it is 10?”  She said, “Because he has done it, like, one, two, three, four, five, six, seven, eight, nine, 10 – 10 times.”  She was asked, “How are you counting them?  What are you doing to count those times?”  She said, “Because one day I did, he like, did it, and then another day he did it, so those were two days, and then he did it again, three, and then another day, four, and then he did it five, and then six, eight, nine, 10 times.”

22. When she came to give evidence, she was asked in evidence in chief whether she remembered telling police that Grant was always showing her his private part and making her touch his private part, and she said, “Yes.”  She was asked, “Did it happen more than once?”  She said, “It did.”  She was asked, “So you say that it happened more than once, but you can’t say specifically when, is that right?”  She said, “Yes, that’s right.”  In cross-examination, she was taken to that incident I referred to earlier as the bike incident.  And she was asked these questions:

Grant pulled you from there to his house?‑‑‑Yes.

Okay.  How did you get from the backyard of your house to his house?‑‑‑I got off the trampoline, and went to go get my bike, and he came out of his house and got my hand and dragged me to his house.

So did you go out the front of your house to ride your bike?‑‑‑No, it was in the backyard.

Okay.  How did Grant get into your backyard?‑‑‑There was a gate closing, and he opened it and started dragging me.

Do you know where your mother and father were when this happened?‑‑‑No.

Okay.  And did he take you to his house and put water on your face that day?‑‑‑Yes.

23. So that was the evidence of the complainant.  But in addition to the complainant’s evidence, there is also this evidence from her sister who gave evidence of seeing an event.  She said that she was coming home from school, and she said, “And he was, like, her clothes were – were on and stuff like that.  But he was, like, blowing onto her butt and stuff like that.  And he was kind of awkward, and so I was like, ‘We need to go home’ and stuff like that.”  She said, “But then that wasn’t the first time I’ve seen him do something weird.”  A little later in her 93A statement, she was taken back to that event, and she was asked this questions:

    Tell me – tell me more about – you said once from school you saw him blowing onto her butt?‑‑‑Yeah, like her clothes were on though.

    Tell me about that.  So where were you at that time?‑‑‑So there’s, like, a massive entry into our unit.  Cause I walked – I walk from the bus stop to home.

    Yep?‑‑‑Every day, and his house is, like, the first house we see.  And they were, like, on the pole. 

    The pole out the front?‑‑‑Yeah.

    They were at the pole?‑‑‑Yeah, he was trying to pick her up, but he was, like, kissing her butt.

    Okay?‑‑‑But did I say that right?

    Yep?‑‑‑He was, like, kissing onto it and then – and then, like, I saw them and then I talk and then I told them to come, like Kate and the boys.

24. A little later in her 21AK cross-examination, she described “Kate,” that is the complainant, “was facing away from Grant, and he was kind of like holding her as if lifting her up… and kissing onto her butt.”  She said that, “He was holding her by the waist up… and she was against the pole.”  She was asked this question:

    Well, if I can put it this way:  Sophie, without Kate having told you what she told you, you thought there was nothing wrong going on that day?‑‑‑I just didn’t think about it.  I mean, I did tell them to leave because it did look really weird, and he shouldn’t have been doing that.  So that’s why I told them to leave, and I didn’t tell anyone because I just – I just brushed it off my mind.

25. Now, that body of evidence was led by the prosecution to demonstrate sexual interest by the defendant in the complainant, and furthermore that that sexual interest was such that the complainant would act upon it.  The prosecution contends that the evidence makes it more likely that the defendant committed the offence with which he is charged.  I can only use this other evidence if I am satisfied beyond reasonable doubt that the defendant did those acts, as the evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue.

26. If I am not satisfied of those things beyond reasonable doubt, then that might affect my assessment of the complainant’s evidence about the acts which are the subject of the offence with which the defendant is charged.  If I do not accept that evidence proves, to my satisfaction, that the defendant had a sexual interest in the complainant, I must not use that evidence in some other way to find the defendant guilty of the charge.  If I am satisfied that one or more of those other acts occurred, and that that conduct does demonstrate a sexual interest of the defendant in the complainant, it doesn’t follow that the defendant is guilty of the offence which he is charged with.  I cannot infer only from the fact of this other conduct having occurred that the defendant did the thing with which he is charged.

27. I must still decide, whether having regard to the whole of the evidence, the offence charged has been proved to my satisfaction beyond reasonable doubt.  Further, because the evidence of these other acts was tendered for the purpose of demonstrating both sexual interest and a relationship, in order to put the events in question in context and make the allegations more understandable – that is to say that these events are something that didn’t simply occur out of the blue – I  remind myself that the prosecution says if I am satisfied that these other acts occurred, they would also assist in my understanding of the background to the incidents which are the subject of those offences.  But still, it is for me to decide whether the evidence assists me in that way, and I cannot use the evidence at all unless I am satisfied beyond reasonable doubt that the other acts occurred, and I cannot infer only from the fact that the other acts occurred that the defendant did the things with which he is charged.

28. If I can turn now to the complaint evidence.  When the complainant was spoken to by police, she was asked who she had told about these events.  She said that she had told her father and her sister, Sophie.  Chronologically, she told her sister Sophie first.  Sophie then reported her complaint to her father, and the complainant then spoke to her father.  So far as Sophie’s evidence is concerned, I will summarise it very broadly for reasons I will explain in a moment.  She says that on a particular night “just out of nowhere”, the complainant started telling her things about what her neighbour did.  She said that, for instance, the defendant removed her pants and his, and was touching her.  They would just mess around with their pants down.

29. She said that this happened a couple of times, and that he would always remove her pants by force, and then remove his pants by force and try and make her touch, or she said, “do I have to say”, and she then proceeded to say “his penis”.  She continued to say that, “He would always, like, try and get her to touch it, but she never did.  And then she -” that being a reference to the complainant – “said that she said that he’s always trying to make her touch her around, and when he does that he doesn’t like my brothers  - they’re,  like, younger as well.  He doesn’t let my brothers, like, leave and stuff like that.”  She says that the complainant complained that the defendant did not let the brothers go inside when things were happening, that if she was inside, she could tell the brothers to stay outside on the pole, and that she, that is the complainant, “always trying to get out,” but the defendant would say no.

30. She made multiple complaints of that kind to her sister.  One other matter she complained of related to an occasion when she said to her sister, that is the complainant said to her sister, that he, being the defendant, “always like, trying to touch her butt and, like, kissing it and stuff like that.”  That material came in largely as preliminary complaint material.  It was very general, it came out of nowhere, it did not appear to have any narrative, and the complaints were of generalised touching.

31. Some of the complaints bear some resemblance to the complainant’s evidence, but the complaints that were reported by Sophie of complaints made by the complainant bear no timeframe.  They were couched in very broad terms, such as, “he sometimes removes her pants,” “he is always touching her,” “they mess around with pants down,” “he is always trying to touch her, her butt, like, kissing it,” “sometimes he won’t let her go home,” “sometimes he gets her to touch his penis.”  None of the complaints that were reported by the complainant to Sophie relate to the charged offence, in particular the particularised offence which I have just outlined before.  They are not evidence of preliminary complaint, and I do not use them for that purpose, although I acknowledge the defence submission of the forensic value of that evidence as it applies to the complainant’s credit.  But beyond that, it has no value.

32. The other complaint evidence is evidence of a complaint made to her father.  In her 93A statement and 21AK evidence, she states she spoke to her father.  Her father reported events this way:  after having been informed by Sophie of something, he then called Kate to speak with him.  Kate sat on his lap. He observed that she was sad, teary and distressed.  He asked, “What’s wrong?”  She said, “About what?”  He asked, “What about you’re telling Dada in the room?”  The complainant replied, “Oh yeah.  I was telling her about Grant touching my privates.  He would put his finger in my privates.”  Her father questioned, “How does this start?”  She answered, “When we go to Grant’s house, he removes his pants and then asks me to remove my pants as well.  Then I refuse and I want to go out, but he will block my way and he will take my pants down by force and start putting his finger in me.”  A question, “Why don’t you scream or cry when this happens?”  Answer, “I’m very scared.”  Question, “But you’re supposed to scream when something like that happens to you so other people can come.  Remember I told you, if anything happens to you, someone hits you, bullies you, just scream for help or just come home and tell us straight away.”  Question, “I was scared to tell you because you told us not to go over there.”  Question, “How many times has this happened?”  Answer, “Many times.”  Question, “How many times in numbers?”  Answer, “Maybe 10 times.”  Question, “When was the last time he touched you?”  Answer, “Not today, not yesterday, but last time.”  Question, “What do you mean by that?”  Answer, “The other day”.

33. Of course, that body of material could be seen to relate to other discreditable conduct, but given the nature of its description, she appears to be describing an event that occurred a short time before that conversation.  That conversation, of course, occurred on the 25^th of June, which is the day before she presented to police and gave her section 93A statement. Now, that evidence may only be used as it relates to the complainant’s credibility. Consistency between the account of her father, who was the preliminary complaint witness, and of the complainant’s complaint and her evidence, is something that I might take into account as possibly enhancing the likelihood that her testimony is true.

34. However, I cannot regard the things said in those out of court statements by the complainant as proof of what actually happened.  That is, the evidence of what she said on that occasion may, depending upon the view that I take of it, either to bolster her credit because of consistency, but it does not independently prove anything.  Likewise, any inconsistencies between the account that she gave to her father and her evidence might cause me to have doubts about her credit or reliability.  Whether those consistencies or inconsistencies impact upon credit or reliability, of course, is entirely a matter for me.

35. Here there is a conflict between the version of the complainant and that given by her father as evidence of the complaint reported to him.  There are factors that are relevant to the assessment of the evidence, such as the passage of time between the date of the conversation when the witness was first asked to recall it, the age of the complainant, her later inconsistency concerning when the event occurred – that is in her 21AK she had no express recall when the charged event occurred – and the significant difference of description of the touching; that is touching as sworn to by the complainant as opposed to a complaint of penetration, which was reported to her father.

36. That conflict does require an assessment by me of the reliability of the complainant and the preliminary complaint witnesses, one of either or both of them could be wrong in their recollections.  They are all matters that are thrown into the mix.  But inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are, of course, a matter for me to consider in the course of my deliberations, and have been considered by me.  I take into account that the mere existence of inconsistencies does not mean that out of necessity I must reject the complainant’s evidence, because some inconsistency is to be expected as we all appreciate.  It is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time to tell a slightly different version on each subsequent occasion.

37. Now, throughout the body of the material, including that last occasion of complaint to the father, there are instances of complaints of distress.  That evidence of distress by the complainant really comes out as part of a narrative of events which it is alleged surround the allegations against the defendant.  It is not led in support of the complainant’s evidence that she was offended against in the manner alleged, and I don’t use it for that purpose.  It has no relevance to the defendant’s guilt.  There may be many innocent reasons for her condition at the time, such as distress occasioned by unhappy interactions with her brothers.

38. On one occasion there is distress evidence in the night-time.  It may be occasioned, for instance, by a bad dream or some other unsettling event, or some other issue entirely unrelated to the sexual activity alleged against the defendant.  Of course, it can be that her condition is feigned or exaggerated, and many other factors might come into play in relation to why it could be that the child was evidently distressed on the occasions reported.  So I disregard the evidence of distress condition, except to the extent that I note it is part of the narrative of the events of the day.

39. Now, so far as the complainant herself is concerned as a witness, I’m conscious that I need to exercise and scrutinise her evidence with great care before I can arrive at a conclusion of guilt.  That is particularly so because to some extent the delay between the alleged incident and the time when the defendant was told of the complaint, and of course the lack of opportunity to disprove the allegation by, for instance in this case, some medical examination, particularly if she was penetrated as was stated by the complaint witness.  It might be that early medical examination may have revealed whether or not there was something in that complaint.

40. In addition there, of course, is the age of the complainant when the alleged event occurred.  It seems that she was somewhere between the ages of five and six, although more likely closer to six.  There was, of course, the difference of the accounts given by the complainant, and that includes also the confused way in which the accounts have come out.  The bike account and the trampoline account have some similarities, but involve allegedly different styles of offending.  The former, of course, is not the subject of any formal charge, but exacerbates, to some extent, the confusion in which the evidence has come out.

41. There are, of course, concessions by the complainant that many material things related in her evidence are the subject of imagination.  For instance, the sand incident is conceded to be something that may have been imagined, the prickle incident is something that may have been imagined.  She is quite adamant, however, the hot water incident occurred, and that the bag and the muddiness incident occurred, all factors that she described in her evidence.  She is certain that what is described as the boogers in the mouth incident occurred, but accepted that perhaps her imagination had coloured her evidence in respect of the expired chocolates.  Likewise, the cartwheel incident is something that could have been imagined, as is the incident involving her being kept at the house until 10, although she was quite adamant that the standing on the foot event occurred.

42. That, together with the way in which her evidence unfolded, also is a matter which requires particular care in its consideration.  In her 21AK material, a summary of her complaint was put in these terms:

    So you also spoke to police about a time when you were on the trampoline, and Grant pulled you out.  You went to his house in his loungeroom.  He pulled your clothes off, he pulled his pants down, pulled his private part, and touched your face and your ear with his private part, do you remember telling police that – and it happened at Grant’s house?

43. Her answer was, “Mmm,” that was an acknowledgment.  When she was cross-examined she gave evidence in these terms:

Okay.  As you sit here today, looking back, Kate, from what you can remember, do you know if anything did happen the day before you went to speak to police?‑‑‑No.

Okay.  I want to suggest to you, Kate – and you can tell me if I’m right or wrong when I say this – that you didn’t even go to Grant’s house the day before you went to the police.  What do you say about that?‑‑‑That’s right.

Okay.  You’ve told the police about this, about the time where you say Grant showed you his private parts?‑‑‑Yes.

Now, do you know when that happened?‑‑‑Not exactly.

Do you know why you were at Grant’s house that day?‑‑‑Well, I wasn’t exactly at Grant’s house.  I was riding my bike at my house.

44. And then a little later on:

    And do you say that Grant came into your yard somehow?‑‑‑Well, my brothers went inside and I was still playing.  And then I got out of the trampoline and I wanted to go inside, and then Grant started running to me, and then grabbed my hand and went – and went and dragged me to his house.

    Could this also be something which came from your imagination, Kate?‑‑‑I don’t think so.

    When you say, “I don’t think so,” does that mean you’re not sure?‑‑‑Yes.

    Okay.  So just on that question on that occasion, is it from your imagination, and I want you to tell me if I’m right or wrong, but you said, “I don’t think so” as your first answer, but you agree that you’re not sure if it came from your imagination?‑‑‑Yes, that’s right.

45. Those matters that I have identified must be considered, and it follows I should only act on the complainant’s evidence if, after having considered it bearing that particular matter in mind together with all the other evidence, I am convinced of its truth and accuracy.

46. Now in this case, the defendant has not given or called evidence.  That is his right.  He is not bound to call or give evidence.  He is entitled to insist that the prosecution prove the case against him if it can.  The prosecution bears the burden of proving the guilt of the defendant beyond a reasonable doubt, and the fact that the defendant did not give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct, and it may not be used to fill any gaps in the evidence led by the prosecution.  It proves nothing at all, and I must not assume that because he did not give evidence that in some way adds to the case against him.  It cannot be considered at all when deciding whether the prosecution has proved its case beyond reasonable doubt, and it most certainly does not make the task confronting the prosecution any easier.  The prosecution retains the responsibility of proving the guilt of the defendant beyond a reasonable doubt.

47. Now, the defendant is charged with only one offence:  that is an offence of indecent treatment.  The elements of the offence are not in contest, and they are these:  the defendant dealt with the complainant.  The term “deals with” includes touching of the child.  It doesn’t have to be a touching of the child by the defendant’s hand.  Any part of the defendant’s body touching the child will suffice.  The dealing must be indecent.  Indecency, of course, bears its ordinary, everyday meaning.  It is what the community regards as indecent.  The dealing must be unlawful, that is not authorised, justified or excused by law.  The complainant must be under 16, and of course in this case as a circumstance of aggravation, the complainant is under 12.

48. Her evidence in relation to these matters broadly, if accepted, will satisfy each of the elements.  It is,  - and I will summarise it, because this is not in issue - she was on the trampoline, Grant pulled her off or pulled her out of the area where the trampoline was, which was in the rear of the house.  He pulled her out into his loungeroom, which was in the house adjacent over the street.  He pulled her clothes off.  He then pulled his pants down.  He pulled out his penis, and he touched the complainant on her face or ear with his penis.  That body of evidence, if I accept it, plainly demonstrates a dealing with; that is a touching of the complainant with a part of the defendant’s body.  It was plainly indecent, there is no issue about that in this case.  It was plainly unlawful, there is no issue of authority, justification or excuse.  The complainant was plainly under the age of 16 years, I have evidence of the mother’s birth to that matter.  And of course, it follows that she was also under 12.

49. As the Crown contends in its submissions, it all comes down to whether I can act upon the evidence of the complainant.  The Crown submits that accepting the complainant as a credible and reliable witness is critical to the outcome of the trial, and if I do accept her, then I can convict.  As the Crown submitted, there is no issue about the date, no issue of consent or indecency.  It all comes down to a matter of assessment of the complainant as a witness.  The Crown openly concedes that there are imperfections in her evidence, but also strengths.  But so far as the imperfections are concerned, the Crown submits they are imperfections which can be expected, particularly having regard to the age of the child at the time, and that in all of the circumstances they would not be unexpected.

50. That includes adverse concessions by the complainant about her imagination.  It was submitted that of course it would not be unusual for a six year old to have some element of imagination.  But it was submitted that she was quite adamant about what she said the defendant did to her.  She was open and honest about those matters.  It was reinforced by what she said almost two years after in her 21AK statement, and on that basis I ought be confident in accepting that when she says the defendant showed her his penis and put it on her, that that is indeed what happened.

51. It was submitted that when she was being cross-examined in particular about her recollection of that event, I should be conscious that at the time of that cross-examination she was tired and frustrated, and that I should not allow myself to be overwhelmed by those answers in that context.  The trampoline incident was plainly – in the Crown’s submission –  the precipitant for complaint because it is that event which upset her, leading her to make her complaints to her sister and her father.  The complaint to her father was an instance where she told everything, but it might be that she was mistaken or confused in the course of that disclosure.  In any event, it was submitted that the inconsistency in that disclosure is not of such a magnitude as to bring into mind any doubt about the defendant’s guilt.

52. Broadly, the Crown contends that she has been entirely consistent about the trampoline event.  She was on the trampoline, the defendant came and, as described, he jumped over the fence.  It was entirely consistent with the mother’s evidence of where the situation was, and she effectively kept the house such that the children were in the back of the house, not available to the street.  Then in turn, the complainant’s evidence about how she was then taken from her enclosed garden across to the defendant’s property where he dealt with her in the manner described.  She pointed to the complainant’s description of the defendant’s penis and submitted that, of course, enhances her credibility, although in fairness she does have a father and two brothers, which may give her some insight into the male anatomy.

53. The Crown also pointed to other evidence of sexualised activity, and submitted that that plainly evidenced sexual interest by the defendant in the complainant.  That evidence, it was submitted, of sexual interest plainly was acted upon by the defendant in the instance charged.  There was also the other event, which was of interest beyond that complained of by the complainant herself, which is evidenced by the child Sophie.  However again, I’m careful not to infer too much, as it could have been capable of an innocent explanation, particularly given Sophie’s concession that it was not sufficiently egregious.  It was seen to be, by her submission, be egregious at the time as to not warrant any further comment by her or action by her.

54. There is also evidence of the lollies.  Of course, that can be explained perhaps by Halloween, or perhaps just something innocent that occurred.  That itself I think is not sufficient.  Ultimately, the Crown contends that having considered all those matters I can accept the complainant as a credible and reliable witness and on that basis convict.

55. Mr Wilson for the defence was very critical of the complainant’s section 93A material. He described it as vague and confusing, and in part quite implausible. The defence case is essentially one which is maintained on the basis that, while the complainant might be an honest witness, she is entirely unreliable, and on that basis cannot be acted upon.

56. In particular, the defence points to her evidence in her 21AK material, and says that the Crown case almost pulls up there.  I’m not going to restate the matters that I have earlier outlined, but in particular he made submissions that in the context of the complainant’s imagination, she was not able to provide an unequivocal repudiation of the prospect of her imagination being evident in relation to the timing when these events are said to have occurred.  That is important in a case like this, when it seems from a temporal perspective the subject charged occurs at a short time before the first complaint to police on the 26^th of June 2018.

57. He highlighted also the need, of course, to take into particular consideration the age of the complainant at the time, her inconsistencies and the prospect of imagination interfering with her true recollection.  So far as corroborating evidence in the Crown case was concerned, the only instance of direct corroboration could be found – apart  from preliminary complaint which I will come to -  found in the evidence of her sister Sophie in relation to one instance of discreditable conduct.  Otherwise, the remaining discreditable conduct has its foundation only in the evidence of the complainant.

58. He submitted that even to accept Sophie’s evidence as being corroborative would be generous, particularly given her observations that it was only with hindsight that she now reflects that the event was one which warranted comment.  It is, in his submission, not a matter which, I could be satisfied beyond reasonable doubt, and ought not to act upon it.  He submitted that in this case, while there might be some evidence to support a complaint, the complaint is couched in significant doubt.  It is insufficient to think that something may have happened.  The court needs to be satisfied beyond reasonable doubt something did happen, and that is something which is alleged against the defendant.

59. He pointed to, in particular, material inconsistencies which he submitted would lend support to unreliability, together with other aspects of the complainant’s evidence which were implausible.  He was at pains to point out that he is not submitting that the complainant was dishonest, but that simply she was unreliable, perhaps as a function of age.  And that was perhaps most evident, it was submitted, in the absence of any narrative in the manner which she spoke to police.  Her statement to police constituted, in the defence’s submission, a series of implausible allegations, and I won’t go through them again, but such things as involving the “bad water,” putting her bag in the mud, hot water on the face, sharp nails event, boogey in the mouth event, and so on.

60. Likewise, the way in which she says she was offended against on 10 occasions smacks of implausibility, although in relation to that matter I’m less inclined to accept that submission having regard to the age of the child.  I’m plainly seeking to provide some empirical answer was an effort at describing something she thinks happened many times.  Ultimately however, the description of the trampoline event suggesting that the defendant removed some of the clothes in the back garden is something that the defence submits presents as a difficulty with the narrative.  In particular, the defence relies upon the inconsistent description given by her as reported by her father in the complaint made to him.  It is entirely inconsistent, he submits, and something more than a slip.  Ultimately, it was submitted that, by reason of those matters collectively, I would be left with a reasonable doubt, and on that basis the defendant is entitled to that doubt, and he is entitled to be acquitted.

61. So far as the case is concerned, the complainant here was six years of age at the time of her initial complaint, and she was eight at the time she gave her evidence in court.  I’m conscious, of course, that there are no rules as to how people who claim to be sexually offended might react, and there are no rules, of course, as to how people that commit sexual offences conduct themselves.  There is no rulebook at all, and accordingly I do not allow myself to be influenced by any delay in the complaint.  But the defendant is charged with a specific offence, and in this case I’ve come to the view that the various features of this case do give rise to a reasonable doubt.  In saying that, I do accept that the complainant was essentially an honest witness, but I think she was inherently unreliable.

62. Plainly, something probably happened, but me reaching that conclusion is simply not good enough.  I do not need to know precisely what happened, but I need to be satisfied beyond reasonable doubt that the charged event happened, and I cannot reach that high a standard.  The complainant’s evidence was to some extent confusing, even allowing for the two year delay in her evidence after her 93A statement.  Her 93A statement was most confusing, as it came out initially.  For instance, when hearing it on the first occasion, it was difficult to understand whether it was the bike event or ultimately the trampoline event which was the object of the charge.  In either event, they were both expressed in a fairly confusing way.

63. When she did complain, then that too came out in a most confusing way.  The best that can be said is that something happened sometime before the day of her complaint.  Of course, the fact of the complaint occurring on a particular day is not an element of the offence.  But the confusing way in which it came out, again, occasions me grave concern about her reliability.  Critically in this case, the event that she described is significantly different to the complaint made to her father.  Her father is an adult.  He at the time was studying, and I’m not doing any more than inferring he was undertaking some form of education.

64. The parents struck me as careful people.  I saw the mother give evidence.  I infer that she is in a functional relationship with the complainant’s father.  They were caring parents, and the mother struck me as intelligent, and the father too in his complaint evidence struck me as intelligent in his approach.  One would expect him to have had a more accurate recall of the conversation than the child.  The absence of that complaint of penetration, in my view, is a telling factor.  It is something about which the complainant couldn’t be mistaken.  Penetration, if it occurred, is something I doubt a child would forget.  In any event, it is a most concerning feature of the evidence in this case.  The complainant can’t really recall the event, and even allowing for time and its confused muddle, and her imagination, I still find it difficult, having accepted that she made a complaint of penetration to her father that she would not remember that matter either, if not initially in the 93A statement, later on when she came to give evidence two years down track. 

65. As I said, the criminal standard is high, but it is not an impossible standard.  But, in my view, the evidence here has not achieved the standard and I find the defendant is entitled to the benefit of a reasonable doubt and in turn a verdict of not guilty.