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  • Unreported Judgment

R v Brian Trevor Harris

 

[2020] QDC 28

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Brian Trevor Harris [2020] QDC 28

PARTIES:

THE QUEEN

v

BRIAN TREVOR HARRIS

(Defendant)

FILE NO/S:

23/19

DIVISION:

District Court of Queensland

PROCEEDING:

Judge only trial

ORIGINATING COURT:

District Court at Dalby

DELIVERED ON:

9 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2020 – 19 February 2020

JUDGE:

Loury QC DCJ

ORDER:

Guilty on counts 1 and 2 of the indictment.

CATCHWORDS:

JUDGE ALONE TRIAL – INDECENT DEALING OF A CHILD UNDER 16 – AGGRAVATED OFFENCE – EVIDENTIAL ISSUES – where the defendant is accused of two counts of indecent treatment of a child under 16, under 12 – whether evidence of one complainant is admissible in the case against the other

Evidence Act 1977

COUNSEL:

C BIRKETT for the Prosecution

TA RYAN for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Prosecution

Fisher Dore Lawyers for the Defendant

Introduction

The defendant pleaded not guilty before me to two counts of indecent treatment of a child under 16, under 12.  The complainant in each count was different.  His trial was conducted in accordance with a ruling made by Horneman-Wren DCJ that it be determined by a judge sitting alone without a jury. 

  1. [1]
    It falls to the Crown to prove the guilt of the defendant beyond reasonable doubt.
  1. [2]
    My verdicts are based upon the evidence and only the evidence. The evidence has consisted of testimony from the following witnesses:
  1. T.
  2. K.
  3. Mrs M, T’s mother.
  4. Mr L, T’s father.
  5. Mrs G, K’s mother.
  6. Detective Senior Constable Kristel Hawes.
  7. Officer P.
  8. Detective Sergeant Michael Forrest.
  9. The defendant.
  10. Margaret Koehler, the defendant’s sister.

The prosecution case

  1. [3]
    The two complainants were close friends when they lived together in a small country town. That town had a population of approximately 500 people according to the evidence of the defendant. T moved from that country town to another in November 2012. She remained friends with K and remained in contact with her principally through social media platforms. Each of T and K allege that the defendant touched her on the vagina on a single occasion. T was present when the incident involving K occurred. K was not present when the incident involving T occurred. Issues of contamination and collusion arise for my consideration. The real issue in the trial is whether I am willing to accept the evidence of T or K in its essential parts beyond a reasonable doubt. For the reasons which follow I do so find.

T’s complaint and the witnesses relevant to her evidence

  1. [4]
    T was interviewed by Detective Senior Constable Hawes on 20 July 2017 when she was 15 years of age.[1]  She said that when she was aged 10, 11 or 12 she was in the car with her mother.  They were driving through town when they saw her father and the defendant walking to the bowls club.  Her mother offered them a lift.  Her father got into the front passenger side of the car and the defendant got into the back of the car on the passenger side.  T said that she was eating chips in the car.  The defendant leant over and touched her on the vagina on the outside of her clothes for five to ten seconds.  T told her mother either that same day or the following day “when we were in the back of the car going back to the bowls club Brian started touching me down there”. 
  1. [5]
    T said that her mother went and spoke to K’s mother about the defendant. She said that she was not sure if she told K herself.
  1. [6]
    T was cross-examined at a hearing pursuant to section 21AK of the Evidence Act 1977 when she was 17 years of age.  She agreed that she left the country town when she was 10 years of age, at the end of year 5.  She said that the incident involving the defendant occurred when she was 9 or 10 years of age.  She said that she told K about what had happened to her prior to anything happening to K. 
  1. [7]
    The defendant’s case as put to T was that he was never in the car with her and that he never touched her vagina.
  1. [8]
    Mrs M, T’s mother gave evidence. She testified that she knew the defendant as he worked with her husband, Mr L, for the shire council. She recalled a Christmas break-up party held at the town hall for the council workers. She was driving her car with T in the back seat when she saw the defendant and Mr L on the street. She knew they would be walking to the bowls club because it was a Friday afternoon and many people in the town would socialise at the bowls club. She offered them a lift to the bowls club. Her husband got into the front seat and the defendant got into the back seat. She drove them to the bowls club and dropped them off before driving home. Once they pulled up at home T said to her that Brian had touched her. She could not remember the precise words that T used but she said that T indicated that he touched her “down below like in the lower region”
  1. [9]
    The defendant’s case as put in cross-examination to Mrs M was that there was never an occasion where she gave the defendant and her husband a lift to the bowls club.
  1. [10]
    It was established in cross-examination that Mrs M recalled being told by T on a couple of different occasions that “Brian touches K’s breasts”.   Mrs M wasn’t certain as to when this conversation occurred but thought it was prior to T’s complaint about the defendant touching her vagina.  Mrs M thought that the conversation occurred a couple of years prior to their leaving the country town in November 2012.  Importantly, as a result of T telling her this information, Mrs M spoke to K’s mother, Mrs G, and informed her of the allegation that the defendant touched K’s breasts. She did this a couple of days after she learned of the allegation herself.  T, in cross-examination denied that she ever told her mother that K was touched and confirmed that she had never seen the defendant touch K on the breasts. 
  1. [11]
    Mrs M could not recall whether she told her husband about T’s allegation that the defendant touched K’s breasts but she did not go to the police and report T’s allegation that the defendant touched her in the car. When asked why she did not go to the police she said that she wasn’t sure why she didn’t report it to the police but there were rumours that the policeman was friends with the defendant so she probably wondered whether he would do anything about it.
  1. [12]
    In cross-examination Mrs M said that the defendant got into the passenger side back seat of her car. It was proven that in her statement to police she said that the defendant got into the back driver’s side passenger seat. When the inconsistency was drawn to her attention she said that it was such a long time ago that she wasn’t 100 percent certain of where the defendant sat in the car. She volunteered that she had asked T the night before she gave evidence where T was sitting in the car. T told her that she was sitting behind her mother. She did not seem aware of the dangers associated with discussing her evidence with another witness and could not recall having been told by any police officer not to discuss her evidence with another witness. She confirmed that she herself could not recall where the defendant was sitting other than being definite he was in the back seat of the car.
  1. [13]
    Mrs M said that she told her husband of T’s complaint when he got home that evening or the following morning.
  1. [14]
    K’s mother, Mrs G, testified that she recalled Mrs M coming to her and telling her that the defendant had touched K but she could not remember what actual words she used. She could not recall the year that she was told this by Mrs M. At best she estimated that it was 10 or 11 years previously. In her statement to police given in 2017 she said it was about five years ago. She did not raise this allegation with K nor did she make a complaint to police. Her reason for not making a complaint to police was that the defendant was “in the SES and with the police as well” and they lived in a small community.  K never complained to her mother as to what the defendant did to her. 
  1. [15]
    Mr L, T’s father testified. He recalled a council Christmas party at which the defendant was present. He said that the two of them were walking to the bowls club after leaving the party when his wife, Mrs M offered them a lift to the bowls club. He thought that it was roughly around 2010. He got into the front seat of the car and the defendant got into the backseat of the car with his daughter. He noticed movement from the defendant in the backseat of the car. Around two or three days later he asked T a number of questions. She revealed that the defendant had reached over and touched her on the vagina. He said that the defendant sat behind him in the car.
  1. [16]
    Mr L also testified that on one occasion when he was at the bowls club he saw the defendant lean over K and put his hand down her top, in the vicinity of her breasts. He could not remember whether this was before or after the disclosure from T. In cross-examination Mr L accepted that despite witnessing this outrageous behaviour from the defendant he did not say anything to him, he did not report it to the person who ran the bowls club and he did not report it to police. He said in re-examination that, at the time he thought it was none of his business and that the police would not believe him. When asked in cross-examination whether he reported what he saw to K’s mother, he responded “my wife did”.  He said he informed his wife of what he saw either that night or the next morning and was aware his wife spoke to Mrs G. 
  1. [17]
    Mr L, in cross-examination, said that he’d spoken to his wife about his evidence in the two or three days prior to giving evidence. He said that he’d asked her what year it was that this incident happened because he wasn’t sure and was concerned about getting the dates and years correct. Apart from dates however he did not discuss anything further with his wife about his evidence. It was established in cross-examination that in Mr L’s statement to police given in July 2017 he wasn’t sure which side of the car that the defendant sat. He said that he’d spoken to his daughter and she had told him which side of the car the defendant sat. Mr L did appear confused as to when he acquired this information however it seems likely that he spoke to his daughter about where she was sitting in the car in the same way that his wife did.

K’s complaint and the witnesses relevant to her complaint

  1. [18]
    K first spoke to Officer P on 14 December 2016 when she was 14 years of age. He was one of two police officers in the small town. He made notes in a notebook as she spoke to him.[2]  K said that she was riding her bike with T heading towards the bowls club. The defendant was walking towards them.  They stopped to speak to him.  T said “don’t speak to him”.  K said “he’s my mate”.  K spoke to the defendant.  A car approached them, the defendant grabbed K’s bike by the seat and handlebars and pulled her and the bike off the road.  As he was talking to her he rested his hand on her stomach and undid her pants button and zip.  He then put his hand down her pants and into her underpants and told her to “shoosh”.  He touched her vagina and moved his fingers around.  K pulled his hand from her pants.  K said that there was no more interaction between the defendant and herself after this incident although she would see him around and he tried to give her money.  Officer P passed this information onto a criminal investigation branch as he was not qualified to conduct an interview with a child witness.  Officer P did not recall ever telling K not to speak to other witnesses about the case.  In fact in cross-examination, Officer P did not appear to appreciate the reason why it might be important to caution a witness in K’s circumstances to not speak to another witness about the case.
  1. [19]
    K was formally interviewed by Detective Sergeant Forrest on 17 June 2017.[3]   K was 15 years of age.  She said she was riding her bike around town with T. The defendant had come from the bowls club and was walking home.  T had previously told her what the defendant had done to her but K did not believe her as the defendant was a “good guy” and was nice to her.  She could smell beer on his breath.  A car was approaching and he grabbed the seat of her bike and pulled it and K off the road.  As he grabbed the seat he touched her on the backside.  He then undid the button and zipper on her jeans and put his hand down her pants into her underwear and moved his fingers around touching her vagina.  She asked him what he was doing and he said “shoosh”.  T was off to the side around two or three metres away.  T did not speak to the defendant.  He stood to the right side of K and used his left hand to touch her vagina for five or ten seconds.  K grabbed his hand and pulled it out. She and T rode away.  She did her jeans up when she got back to the bowls club.    She thought this happened when she was 10 or 11 years of age. 
  1. [20]
    K said that the only person she had told what had happened to her was her school principal whom she had told one week before the interview of 17 June 2017. She had not spoken to her mother about it although she said that T’s mother told her mother. The day following the disclosure to her mother, her father asked her what happened with the defendant and she told him that he put his hand down her pants. She was told not to go near the defendant. K’s father was not called to give evidence in the trial.
  1. [21]
    K said that T had told her that she was sitting in the back seat of her mother’s car when the defendant put his hand on her vagina and rested it there. T told her this around three days before the defendant touched K.
  1. [22]
    K also said that a few weeks after the defendant had touched her she was at the bowls club when he put five dollars on the table and slid it towards her. She didn’t take it so he grabbed it and walked home. M, a boy aged 15 was present when this occurred.
  1. [23]
    T gave an account of what she witnessed of this event in her interview with police. She said one night she and K were riding their bikes. They saw the defendant leaving the bowls club. T said to K to keep riding but they stopped. She thought the defendant yelled out K’s name or said something to her which caused them to stop. T was on her bike by herself. The defendant came over to K and stood very close to her whilst she was still on her bike. He had his back to T as he was standing next to K’s bike so she could not see what was happening. She heard K say “stop” and “why is your hand there?”   She could not hear whether the defendant said anything.  She did not remember anything further that happened.  The two girls rode away.  She thought this event occurred the same year that the defendant touched her.  She thought that she had told K what the defendant had done to her and that he was a creep.   T said that not long after witnessing this event K told her that the defendant put his hand down her pants. 

Discussions between K and T

  1. [24]
    K was asked if she had spoken to T about these events and she confirmed that she’d had a discussion with her on facebook. Photographs of the messages that passed between the two girls were tendered in evidence. Those photographs were taken by Detective Sergeant Forrest on the day he interviewed K. The conversation commenced on 14 December 2016 at 12:53 pm. This was only a half hour after K first spoke to Officer P. The conversation commenced with K indicating that she needed to speak to T about the defendant. K provided her telephone number to T with T indicating that she would move to somewhere quiet and call her.
  1. [25]
    At 1.33 pm the conversation via messenger continued. (emoji’s omitted from text)

T: Hey, you okay?
Just wondering where is Brian in jail now(
?*

K: I honestly have no idea which jail he’s in sorry

T: That’s fine, don’t be sorry haha was just wondering
If Bill wants to talk to me about it, would a video link / chat be fine? Not sure when I will be in [small town]

K: I’m actually curious too it might be bill or phill or someone from the courts but they will year most likely do a video chat or phone call

T: Oh okay, that’s finehope everything will work out bc it’s unfair he is able to just go out, really

K: Thanks so much for your help

T: Okay thanks a lot, I’m happy to help really
So I will tell him that night at the bowls club?

K: Yeah tell him what happened that night and also what he did to you

T: From my point of view I didn’t hear what he said and stuff but yeh, I did see him touching your butt and stuff
And putting his hands down there and stuff

K: Yeah that’s all the evidence I need, thanks!

T: And yeh okay, should I say what happened to me tho or? Bc I don’t have any evidence
No problem, I am happy to help if it goes towards making him stay away longer

K: You don’t need evidence

T: Oh okay

K: Yeah so just tell him everything, no pressure tho only if you’re comfortable with it
So what’s your dob? 5th may 2002?
And middle name

T: 8th of may 2002, And my middle name is [E]

K: Aw close!

T: And yeh okay I will tell him, is he aware of the others that Brian touched
Yeh haha

K: Yeah he’s trying to get in contact with them

T: Oh okay sounds good

K: Cheers

T: How is everything with Jure
[N]** sorry

K: Yeah really good

T: Damn wtf /
Hopefully we can. I didn’t get any contact form bill by the way

K: yeah probably in January hopefully soon cause of Christmas and stuff

T: Ohh yeh, that’s okay
He doesn’t deserve to be out

K: He wasn’t in there for long

T: And he obviously couldn’t live in [small town] anymore tho I’m guessing
Yeh I know it’s. Messed up

K: I think he does

T: ::/

K: Very messed up
Cause Margie looks after his house

T: Oh okay
Ughh

K: Yeah

T: Still no idea where he got out from?

K: I sent a screenshot to you but it won’t send, no idea sorry I’ll ask bill tho

T: Ohh okay
That’s fine
Was just wondering if he comes back to [small town] then he probably won’t last long till someone belts him up

K: Are you friends with Patricia holder on facebook? Yeah that’s what I think too! So many people don’t believe it happened tho
Because of his fake act

T: Uhh no I don’t think I am / whys that sorry? And yeh but messed up, with so many people owning up they should believe he did it

K: Yeah that’s exactly right
Well this is what she posted ..‘A young man who was convicted of a terrible crime and has spent time in prison is out of prison with all charges being dropped. I am so proud of this young man knowing he would not do this crime. To the vindictive person whom did this Karma has come back to bite you on the rear end’
Fucking scum

T: What the fuck… that’s real messed up. He obviously did it!!
Just bc he’s out doesn’t mean he’s innocent? He should have more time too

K: Exactly! He was supposed to go away for 2 years! That was his sentence! But he’s out now he wasn’t even in there for a year! Must’ve been good behaviour or some bullshit

T: Yeh I guess so, that’s still not fair at all. If he’s in for some shit like that even if it’s good behaviour he shouldn’t be let out wtf, he should ever be

K: Exactly! This shit is serious! He’s a creep!

T: Yeh exactly
Worse than a creep

K: Yep!! I don’t care what the other people thing he IS a pedophile

T: Yeh defiantly he IS
Definitely *

  1. [26]
    The parties made a series of admissions which provide a context for this conversation. On 21 March 2016 the defendant was convicted in the Dalby District Court of an offence of rape upon a child. He was sentenced to two and one-half years imprisonment. On 28 October 2016 an appeal against conviction was heard by the Court of Appeal. On 19 December 2016 the Court of Appeal allowed the appeal against conviction and ordered a retrial. The defendant was granted bail on 22 December 2016 following the successful appeal.
  1. [27]
    As can be seen, K’s complaint to police was made after the appeal had been heard but before judgement was given. Her concerns revealed in the messages that the defendant had been released from gaol were not justified as he was still in gaol and would be for a further eight days. Her belief that he had been released from gaol clearly comes from the inaccurate facebook post which she quoted in these messages to T.
  1. [28]
    It is apparent that there is a message or messages missing in this conversation. The exchange which commences with “how is everything with Jure” is not completely captured by the screenshots taken of the mobile phone.  K acknowledged in her evidence that there was some conversation missing.  T also acknowledged that there was some conversation missing.  T recalled that she thought that what followed this message was K telling her that [N] was pregnant.  Because that was an unfortunate circumstance she responded “damn”. 
  1. [29]
    Detective Sergeant Forrest said in his evidence that he looked through the chain of messages between K and T on K’s phone and photographed those that related to the investigation of the defendant. Whilst he could not indicate what date he had looked back to on the phone he agreed that he satisfied himself that there were no other messages on the phone between K and T about the matter other than those he photographed. I accept the evidence of Detective Forrest about this. He gave the impression of being a capable and committed officer who undertook the investigation to the best of his ability given his distance from the town where the offences allegedly occurred, his distance from where K and T lived and the difficulties associated with the extensive area of regional Queensland for which his office was responsible and the lack of staff he had available to him to investigate the matter.
  1. [30]
    Detective Forrest was criticised in cross-examination for the delay he took in interviewing K. It was six months after K spoke to Officer P that she was interviewed by Detective Forrest. Detective Forrest accepted that whilst he took on responsibility for the investigation on 25 January 2017 it took him until June 2017 to interview K. He explained that he was responsible for an area that covered one-third of regional Queensland. For a significant part of a five and one-half year period, the one position in the Child Protection Investigation Unit was vacant. As he had been trained in interviewing children he took on responsibility for this investigation in the absence of an officer available in the Child Protection and Investigation Unit. He immediately conducted a risk assessment of K and determined that she was not at imminent risk of harm. He also considered that there was no risk of any loss of evidence in light of the delay that had already occurred. This investigation he “triaged down the list” as a result.  He said that it was a significant distance to travel to the small town to interview P and in order to maximise the use of the limited resources available to him he waited until he had a number of matters to investigate such that he could justify spending a day or two in the small town.  The first opportunity he had to attend that small town was in June 2017.  It is indeed unfortunate that due to resourcing issues that there was a delay in the interviewing of K however I do not consider that Detective Forrest was in any way derelict in his duty.  As indicated, he appeared to me to be a dedicated investigator who was hampered by a lack of resources.  Despite that, he conducted in my view, a thorough investigation.  I accept his evidence that he satisfied himself that there were no other relevant messages on K’s phone that had passed between K and T. 
  1. [31]
    K in her evidence said that she spoke to T about the defendant on occasions when they were together. When T left the small town in which they lived she agreed that she sometimes had further “text chats or actual conversations” with T about the defendant.  Those conversations occurred in between T leaving the small town in November 2012 and K making her complaint to police in December 2014.  K, in cross-examination said that she did not herself remove any of the messages captured on messenger between herself and T.   She said that there would have been other messages on her phone between herself and T but she did not recall what they were.  She recalled giving her phone to Officer P and he went through them and photographed them.  She was clearly mistaken as to who the police officer was who took the photographs but that does not impact upon her credibility or reliability.  It is a minor discrepancy explained by the passing of time. 
  1. [32]
    K was asked about the conversation she had with T on the telephone on 14 December 2016. She said that they would have spoken about what the defendant did to them. She said that she told T that if she wanted to help support her that she could come forward herself but that if she didn’t want to, that was fine too. She agreed that she most likely discussed with T how unfair it was that the defendant was out of gaol. When asked why she thought it was unfair she answered “because he did do these things to us”.  Whilst she knew that the defendant was getting out of gaol she did not know why and did not know that he had appealed his conviction. 
  1. [33]
    K said that she had heard that the defendant was in gaol for touching [X] inappropriately. She said that wasn’t really the reason she decided to make a complaint to police but rather that she had seen him whilst she was working in a supermarket after he was released from gaol. It was suggested to K in cross-examination that the reason she went to see Officer P was because she wanted the defendant to stay in prison. She “somewhat agreed” with that suggestion.  That K had seen the defendant in the supermarket does not provide an explanation for her approaching Officer P and disclosing the abuse to him.  That is because at the time she spoke to Officer P the defendant was still incarcerated.  However at the time that K was interviewed by Detective Forrest the defendant was no longer in gaol.  She said to Detective Forrest that she had last seen the defendant two months earlier when she served him in the supermarket in which she worked.  She further said that she used to work on weekends and would often see him in the store.  She resigned as a consequence.  Whilst this might have become her reason for making the complaint to Detective Forrest it does seem to me that her initial motivation was her belief that the defendant had been released from prison. 
  1. [34]
    T said in cross-examination that she spoke to K about what had happened as soon as each of the incidents occurred. They otherwise didn’t really discuss it. She said that once she left the small town she didn’t really talk about it with K until she sent the messages informing T about the situation. T said that most of their conversations were via text messaging. Nothing was mentioned about the defendant until recently. In the telephone call that occurred on 14 December 2016 T said that K said to her “He has got out of gaol and I want to get him back in gaol and I need help.  Can you help meCome forward and be a witness to what happened.”  T said “yes”.  T said that she did not know that the defendant had been in gaol. T said that K did mention the reason why he was in gaol but she couldn’t remember what it was although she accepted that it was some kind of touching.

The defendant’s evidence

  1. [35]
    The defendant gave evidence and called a witness. He gave evidence denying each of the offences. He said that the council Christmas parties were usually held on a Thursday not a Friday as described by Mrs M and Mr L. He denied ever having been given a lift in a car driven by Mrs M. He said that after a Christmas function people would usually walk to the bowls club. He remembered walking with Mr L to the bowls club but always with other people.
  1. [36]
    The defendant produced a bank statement from which he could say that on 12 December 2011 he purchased a pool table which he put on his veranda. He recalled occasions where K would come to his house and play pool. He said that there was an occasion after a funeral in 2014 for a person who had been shot when K came to his house.
  1. [37]
    In cross-examination the defendant accepted that he knew most people who lived in the town, it being a friendly town. He agreed that people would help each other out and that a person might offer a ride to another if they were going to the same venue. He denied that if he was offered a ride by Mrs M or Mr L that he would have accepted it saying he usually walked. If Mrs M offered him a lift he would have rejected it. Whilst he accepted a lift from some people to get to the bowls club he never accepted a lift from Mrs M or Mr L. I do not consider that the defendant was being candid when he gave this evidence. The absence of a reasonable concession by the defendant about this innocuous proposition suggests to me that he was trying to distance himself from T and her family. This impacts negatively on his credibility.
  1. [38]
    The defendant also conceded that K never attended his house to play pool by herself. She was always with other children. K, when asked about attending the defendant’s house to play pool with a group of people said that she thought that occurred before the defendant had touched her. The pool table was purchased by the defendant when K would have been 9 years of age. It is possible that any such visit to his house did occur prior to her being touched by the defendant. Nothing turns on this evidence. K’s evidence was that she definitely did not attend the defendant’s house and discuss the shooting of another person with him. The defendant argues that his evidence disproves K’s evidence on these two points. That however depends on my accepting his evidence. I found K to be an honest and compelling witness and I preferred her evidence on these matters.
  1. [39]
    The defendant agreed in his evidence that he occasionally shopped at the supermarket where K worked. He knew that she worked there but could not recall having seen her in the store. He specifically denied ever having been served by her. Again I consider that the defendant was trying to distance himself from K. The fact that he could not recall seeing her at the supermarket would have no impact upon his credibility. However his categorical denial that she had ever served him is not believable. Something as innocuous as who served him in a supermarket is not the sort of information likely to be retained in a person’s memory to the point where they could make a categorical denial.
  1. [40]
    The defendant also called a witness, his sister, Margaret Koehler. She owned a house in the small town. She issued her tenants with an eviction notice in November 2016. She, at that time learnt that K had been staying at the house. She said that after she issued the eviction notice she was contacted by K asking if she could rent the house. She made some inquiries with the rental bond authority and told K that she wasn’t able to stay there. The purpose to this evidence was to undermine K’s credibility. K said that she had stayed with a person named Margaret for two weeks. Margaret then received an eviction notice. K was asked if she wanted to stay on at the house and she responded “no”.  It was suggested that the eviction notice caused K a degree of bitterness.  She denied that.  K said that she returned to live at home with her parents.  She was not specifically asked about the conversation with the defendant’s sister. 
  1. [41]
    It seems to me that this evidence was collateral to the real issues in the case. It is a matter which even accepting Mrs Koehler’s evidence (which was not challenged) has no bearing upon the credibility or reliability of the evidence of K in relation to the material facts.

Directions

  1. [42]
    Proof of the defendant’s guilt falls upon the prosecution to the standard of beyond reasonable doubt. As the defendant gave evidence I must be cognisant that he has not assumed the burden of proving any fact or his innocence. The burden of proof has not shifted. I did not find the defendant to be a credible witness. His evidence does not provide an answer to the prosecution’s case and does not leave me in a state of doubt as to the true state of affairs. I do not accept his evidence. Accordingly I will return to the remainder of the prosecution evidence to determine whether the defendant is guilty of either of the two offences appreciating that there is more to my deliberations than simply choosing whose evidence I prefer.
  1. [43]
    Each of the two complainants gave evidence in accordance with the provisions of the Evidence Act 1977 relating to the giving of evidence of affected child witnesses.  I draw no inferences as to the defendant’s guilt because these very much routine measures are used. 
  1. [44]
    I have ignored the prejudice which arises from my knowledge of the defendant’s previous conviction and acquittal for the rape of a child in reaching my verdicts other than as providing an explanation and possible motive for why the complaints by K and T were made. I have also ignored the prejudice which arises from the suggestion that the defendant has acted appropriately towards other young people in the community.

The elements of the offences

  1. [45]
    The prosecution must prove each of the elements of the offence beyond a reasonable doubt. Those elements are the same for each offence:
  1. The defendant dealt with the relevant complainant;
  2. That the dealing was indecent;
  3. That the dealing was unlawful; and
  4. That the complainant was at the relevant time under 16 and under 12 years of age.
  1. [46]
    The real issue in the trial relates not to the elements of the offences but rather to whether the evidence of each or either of T and K ought to be accepted in their material particulars beyond reasonable doubt. A matter that impacts upon my consideration of the evidence of each of the two girls is whether the evidence of one is admissible in the case of the other girl.

Cross-admissibility

  1. [47]
    The defendant argues that the evidence in relation to each child is not cross-admissible because it does not possess the high degree of cogency that is required to transcend its prejudicial effect.[4]  Before the evidence of T or K can be admitted in the case against the other it must satisfy the test referred to in Pfennig v The Queen, that is, there is no other rational view of the evidence consistent with the innocence of the defendant. 
  1. [48]
    The defendant argues that a reasonable view of the evidence consistent with innocence is that whilst the defendant might have been prepared to touch K on her vagina in the darkness without other adults present, it doesn’t follow that he would have touched T on the outside of her clothing in the vicinity of her vagina for a brief period in the backseat of a car in which her parents were travelling.
  1. [49]
    The prosecution argues that the evidence of each of K and T is admissible in the case against the other because it proves that the defendant formed a sexual attraction to young girls whom he knew from living in the same small town; that he took opportunities arising from contact with them to act upon his sexual attraction and that he would offend against each complainant even when others were present.
  1. [50]
    There is a high degree of probative force in the evidence of each of K and T in the case involving the other because the evidence of K or T strongly supports proof of a tendency that the defendant has a sexual interest in young girls which he was willing to act upon even when he was at significant risk of being detected. The feature that the defendant would offend against each complainant even when others were present serves to highlight the defendant’s willingness to act upon his sexual interest in young girls even when he was at real risk of detection. The defendant I find, had a tendency to act in a predatory manner towards young girls when the opportunity presented itself notwithstanding that there was a real risk of detection by another person whether that be an adult or another child.
  1. [51]
    That tendency or propensity to act in that sexual way towards young girls is unusual as a matter of ordinary human experience. The defendant’s disregard for the real risk of another person seeing what he was doing is another unusual feature. The evidence therefore does much more than prove a disposition to commit offences of this sort.
  1. [52]
    The defendant’s case is that the conduct did not occur, that one or other of the complainants is lying and the other has colluded or embellished her account to support the other. On its own the evidence of T might seem inherently unlikely because of the risk of discovery by the parents of T who were present in the car when the conduct occurred. That to court such a risk when the conduct is so abhorrent to ordinary sensibilities and particularly so to the parents of the young girl, might suggest that T’s evidence lacks plausibility. The same can be said of K’s account when the conduct occurred on a public street not far from a bowls club where townspeople socialised, and occurred in the presence of another child, T. Proof of the defendant’s tendency to engage in sexual activity with young girls opportunistically despite the significant risk of detection is capable of removing a doubt which the brazenness of the conduct might otherwise raise.
  1. [53]
    The probative force of the evidence of K and T in the case involving the other lays in the common, underlying pattern that, as a matter of common sense, increases the objective improbability of each event occurring other than as alleged. The pattern lays in the defendant taking advantage of opportunities that arose opportunistically in the same small town to express in a similar way (by touching them on the vagina for a short time) his sexual interest in young girls around 10 years in circumstances where the risk of discovery was significant. There is a temporal connection in the timing of these events, both occurring within days of each other. Both offences occurred at a time when the defendant was drinking alcohol, the first being at a party and the second at the bowls club. That underlying unity bears no reasonable explanation other than the inculpation of the defendant.
  1. [54]
    I consider that the very substantial probative force of the evidence is sufficient to overcome its prejudicial effect. I am cognisant that I cannot convict the defendant because he is discreditable and deserving of conviction, that is I must still consider the evidence relevant to each offence separately and deliver a verdict on each separate offence.
  1. [55]
    In those circumstances I find that the evidence of K and T is cross-admissible in the case concerning the other and as such is capable of supporting the evidence of the other.

Concoction/Collusion

  1. [56]
    Before I can use the evidence of either T or K in support of the other I must be satisfied that the evidence of T and K is independent of the other. I have to be satisfied that there is no real risk that T and K have together concocted the similar complaints.
  1. [57]
    The defendant relies upon a number of pieces of evidence to make good his submission that there is a real risk that T has been less than willing to disclose the full extent of her contact with K and has minimised the extent of contact she had with K. Because of that lack of candour there is, it is argued, a real risk that T and K have colluded together to make their complaints.
  1. [58]
    K’s evidence was that after T left the small country town and before she went to the police they communicated sometimes by “text chat” and sometimes by actual conversations.  K said that “they were on the phone, on snapchat, just throughout the years”.  She was unsure whether they used messenger.  T’s evidence was that they mostly conversed via messenger.  They did not talk on snapchat.  T said after she left the small town that they didn’t talk about what occurred over text.  It was brought up when K sent her the messages on 14 December 2016.  It is quite apparent, despite K’s evidence, that one platform used by the girls to communicate was messenger. 
  1. [59]
    I found T to be an honest and compelling witness. It was clear to me that she moved from the small town when she was quite young and did not know of any reputation of the defendant. I accept that she did not know that he had been convicted of any offences relating to [X] until K told her on 14 December 2016. I further accept her evidence that she and K did not really talk about the defendant after she left the small town until it was brought up by K in the messages. T also said that she didn’t call K herself and the contents of the messages themselves reveal that K gave T her phone number on 14 December 2016. The conduct that occurred was intensely personal and not the likely subject of extensive conversation between two young girls. That they did not discuss the defendant is consistent with how I would expect children who had been sexually offended against to act.
  1. [60]
    I also found K to be an honest and compelling witness. It is clear to me that she is an unsophisticated young woman who was telling the truth as best as she could remember it. K was asked in her second section 93A statement if she’d spoken to T about these events and she said “yeah on my phone when I went and told [Officer P]”.  Again that is consistent with the evidence before me that the two girls had a telephone and messenger conversation on 14 December 2016 about these events but not otherwise once T left the small town.  In cross-examination she was asked if she and T had texted each other about the defendant before she went to the police and she said she didn’t remember it.  A little later she agreed that she communicated with T via text and actual conversations about the defendant “sometimes”.  She said that the conversations were on the phone and on snapchat.  She couldn’t remember whether any were via the messenger application.  Quite clearly there was a significant conversation via the messenger application.  K’s lack of sophistication and the lapse of time explains her poor memory about the conversations.  I consider that there is a degree of unreliability in K’s memory particularly in relation to when things occurred and the sequences in which they occurred. An example of that is that K said in cross-examination that the first person she told about what happened (other than T) was her school principal.  In fact police investigations ascertained that K told the school principal a short time before she was interviewed by Detective Forrest, which was quite some significant time after she first disclosed to Officer P.  Indeed K, when interviewed by Detective Forrest, said that the only person she had told about what happened was the school principal who she spoke to one week prior to the interview.  K had to be reminded that she told Officer P.   
  1. [61]
    I am satisfied that whilst the two girls discussed the defendant and what he had done to them on 14 December 2016 that they did not concoct their complaints or collude together to embellish one or other or both of them. I am further satisfied that there is no contamination of the account of either K or T as a result of the conversations between them. I do not accept that T deliberately failed to disclose the full extent of their conversations as argued. The accounts of their contact with each other whilst different did not give rise to any concern on my part that any significant conversations occurred about the defendant that might suggest that they have concocted their complaints. Until a decision was made by K to go to the police it is unlikely that there would have been significant conversation about the defendant. Once K went to the police I am satisfied by the evidence of Detective Sergeant Forrest that he ascertained the entirety of the conversations between them relevant to the defendant which were contained on K’s phone.
  1. [62]
    K was criticised by counsel for the defendant for not being more forthcoming in her evidence when questioned about her communications with T on 14 December 2016. It is submitted that it is unlikely that she would not have remembered on the day she went to police when she spoke to T. As indicated above I considered K to be an honest witness with a poor memory as to the details of when certain events occurred. Her inability to remember where she was when she sent the messages to T does not impact upon her credibility and lead me to believe that she wasn’t forthcoming about the conversations.
  1. [63]
    It is also argued that by K not telling Officer P that the reason she was making the complaint to him was because she wanted the defendant back in gaol, that some suspicion arises as to her credibility. K was not asked by Officer P why she had decided to make a complaint. Officer P’s account of his conversation with K is contained in a notebook statement which he took contemporaneously. It is unsurprising to me that a 14 year old girl would include, as part of the first disclosure she made, details of her motivation to make the complaint, in the absence of a question from the officer.
  1. [64]
    During cross-examination K said that she was unaware that the defendant had successfully appealed his conviction. She said that she had heard that he had touched [X] inappropriately and had gone to prison for that conduct. When asked if that had anything to do with her reasons for going to the police she said “not really” but agreed it did have some relevance.   A little later she “somewhat agreed” to the proposition that she went to Officer P because she wanted the defendant to stay in prison.   I do not consider that these answers demonstrate a lack of candour on the part of K.  The messages between K and T make clear that shortly after speaking to Officer P, K expressed concern that the defendant was out of gaol.  By the time she came to be interviewed by police some months later the defendant was back in the same small community and was attending the store where K worked.  That was clearly a concern to her when interviewed by Detective Forrest. As indicated, K did appear to have a poor memory for timings and sequences. The defendant’s attendance at the store became part of her motivation to continue with the complaint and readily explains these answers in cross-examination.
  1. [65]
    The defendant also argues that T was being less than candid in saying that she did not know that the defendant was in gaol until K told her in the phone call on 14 December 2016. K, in her evidence, said that they both knew he was in gaol before the phone call. Whilst there is an inconsistency in their evidence about this I prefer the evidence of T. She appeared to have the better memory. K was unable to say how T came to know about the defendant’s conviction. T had moved away from the small town and had not lived there for some years so it is unsurprising that she would not know of the defendant’s conviction and imprisonment.
  1. [66]
    There was a further body of evidence which came from a Detective Hawes of discussions between Mrs M and K and T. In September 2019 (after both girls had given evidence at the section 21AK hearing) Detective Sergeant Forrest received a request from the defendant’s legal representatives sent to him through the prosecution. The request that was made of him was to “download the phones” of T and Mrs M and K to see if there was any chance that they were concocting their stories.  He objected to doing so because he believed he would need a search warrant and he had no suspicion that any of them had committed any offence.  He said as a consequence he telephoned K and told her of the request indicating that she did not have to hand over for phone for that purpose.  Nonetheless, she agreed to the request. He arranged for her to drive to a nearby police station where an officer attempted to “download her phone”.  Difficulties were experienced so that officer took some photographs of the relevant messages and emailed them to Detective Forrest.  A copy of those photographs was tendered in evidence.  The conversation which occurred on 16 July 2019 was via text message or messenger.  It is between T and K.  The conversation is about the court process.  T indicates that she is feeling nervous and is querying how long the video link (a reference to the section 21AK hearing) will take.  K indicates that she is scared that defence counsel will drag things out all day and try to deem them unreliable.  She says “They don’t care we are children. T asks if at court, she is just to talk about herself or “about you and me that night near the bowls club?  The conversation continues eight days later where K asks T if her pre-recording was cancelled as well?  T responds “yeah til August”.   K comments “yeah looks like they are trying to buy time”.  T responds “yeah, it’s kinda annoying. I just want to be done with it already”.  K responds “Me too, so over it!”
  1. [67]
    That conversation does not suggest to me that K and T have colluded together. T is initially seeking information on the court process and indicating how she is feeling about the process. They are both expressing their annoyance with the delay that has occurred in the section 21AK hearing being adjourned. They express quite unsurprisingly that they just want it all over and done with. The two girls were in a similar situation where they were having to face the experience of their evidence being challenged and tested by cross-examination in relation to an intensely personal matter. That they sought comfort in each other is not surprising and does not lead me to consider that there was a real risk that they were colluding with each other.
  1. [68]
    Detective Kristel Hawes gave evidence about her approach to T and Mrs M and her request to them to produce their phones to her. I found Detective Hawes to be a most unimpressive witness. She was entirely unprepared for giving evidence in the trial. I permitted her to give evidence via video-link. She did not know the date that she was tasked to interview T. She was unable to even estimate if she was tasked one day, one week or one month prior to the interview she conducted with T on 20 July 2017. She had no access to any material which would have assisted her in giving evidence. She had read over her statement but otherwise had done nothing to prepare herself for giving evidence including examining any records about her involvement. She had clearly not reviewed the interview she conducted with T nor even a transcript of it. She had little memory of the contents of the photographs of the messages that passed between T and K which she had access to during her interview. She agreed that she had little recollection of what T said to her in her interview. She had no recollection of even taking a statement from Mr L in circumstances where clearly she was the officer who did so. When asked if she cautioned T against speaking to other witnesses in the case about her evidence she said that she did so. In light of her lack of preparation and lack of memory as to what T said in the interview, I’m not prepared to accept her evidence that she did do this. It seemed to me that she was reconstructing her evidence in a way that she thought would minimise any criticism over her.
  1. [69]
    Detective Hawes agreed that she received a task from Detective Forrest to obtain and examine T’s phone. She telephoned T on 2 September 2019 for that purpose. It was suggested to Detective Hawes that T told her that she’d had no contact with K since she provided her statement in 2017. Detective Hawes agreed. It was suggested to her that she told T in the phone call why she needed to examine T’s phone. She agreed that T was not willing to provide her phone to Detective Hawes. Detective Hawes when asked to recount what it was she told T said “I just explained to her that the court had requested that we get her phone to download that, to get any conversations that happened between her and K, even if they hadn’t had conversations, I explained that would still be helpful to the court”.  Quite clearly the court made no such request of the police at all.  What Detective Hawes said to T, if this is an accurate account, is entirely misleading.  If it’s not accurate then little weight should attach to the evidence of her recollection.
  1. [70]
    It is quite apparent however that T and Mrs M did not wish for their telephones to be examined by police. That is entirely unsurprising. They were each entitled to privacy. There would be vast amounts of material on their respective phones that may be completely irrelevant to the police investigation and over which they were entitled to privacy. Such things might include photographs of matters personal or intimate as an example. It is further unknown how long the police intended to keep the phones for the purpose of their analysis. I am not willing to draw a conclusion that either of them was deliberately attempting to avoid police becoming aware of any communications they had with K when such an inference rests on the acceptance of the memory of a most unimpressive witness.
  1. [71]
    Mrs M was cross-examined about a conversation she had via text with K on 21 July 2019. She agreed she was asked to give her mobile phone to Detective Hawes. She remembered telling the officer that she didn’t want to give her the phone but could not remember why she did not want to give her the phone. She denied that the reason for not giving her phone to the police officer was to avoid the police seeing the messages between herself and K. Her evidence was that she didn’t remember having a conversation via messenger with K in mid-2019. The conversation which was tendered in evidence is innocuous. Mrs M asked K how she was, told her to be careful living in the city and to text her whenever she wanted. It is unsurprising that Mrs M did not remember the conversation. I do not consider that she was deliberately attempting to conceal her conversation with K from police.
  1. [72]
    I do not consider the body of evidence acquired after T and K gave evidence gives rise to a real risk of concoction or collusion. The conversation between K and T was recovered despite T having declined to give her phone to police. Because this event occurred after the complainants were cross-examined there has been no opportunity for T to explain her decision to not give her phone to police. In any event I consider that her decision was perfectly reasonable and not one from which I draw an inference against her.
  1. [73]
    T’s virtually immediate complaint to her mother when she got home acts as a buttress to her credit. I consider her to be an honest and compelling witness. Her account of what she witnessed between the defendant and K supports the credit and reliability of K’s evidence. I also consider that the evidence of Mrs M and Mr L provides some support for the evidence of T at least to the extent of there being an event where the defendant travelled in the backseat of their car with T.
  1. [74]
    K was the second youngest of her eight children of Mrs G. It wasn’t K herself who complained to her mother but rather Mrs M who told her that the defendant had touched K. Mrs G could not remember what was said by Mrs M other than that the defendant touched K. She did not speak to K about the allegation. I accept that there is a vagueness to Mrs G’s evidence. She was not asked why she did not raise the allegation with K so I am left without her explanation. Whilst however her evidence was vague it does not detract from K’s evidence or Mrs M’s evidence.
  1. [75]
    Mrs M said that she told Mrs G that the defendant had touched K’s breasts. This is information she said that she got from T. The defendant argues that this is a false complaint. Either upon T’s evidence or K’s evidence there was no touching on the breasts so accordingly the fact that a false complaint was made by one of them that resulted in Mrs M speaking to Mrs G gives rise it is argued, to a reasonable doubt. T herself said that she never told anyone what K had told her occurred on the bike. She never saw the defendant touch K on the breasts.
  1. [76]
    Important to a consideration of this evidence is that of Mr L, who said that he saw the defendant touch K on the breasts and, he told his wife that he saw the defendant touch K on the breasts. It was argued that I should completely reject his evidence as he was attempting to deliberately and falsely bolster T’s allegations. It is argued that it strains credulity that he would not have done anything about what he saw if it were true. Whilst I accept that he did discuss some aspects of his evidence with T and his wife that does not give me concern that he was falsely attempting to bolster T’s allegations. His concern was about getting dates and years correct. It is perhaps unsurprising that after the passing of such a period of time that witnesses might speak to each other about when events occurred. That they have done so does not point to a deliberate attempt to falsely bolster evidence. What he discussed with T was where the defendant was sitting in the back of the car. I do not consider that this impacts upon his honesty. Whilst his memory of where the defendant sat might be unreliable the fact that he sat in the back of the car with T is what is essential to my consideration of the verdict.
  1. [77]
    Mr L accepted that he did nothing about seeing the defendant touch K, that is he did not confront the defendant or advise the management at the bowls club. He did however advise his wife who clearly told K’s mother of that particular allegation of a touching of the breasts, even if she attributed it to T.
  1. [78]
    I found Mr L to be an honest witness doing the best he could to remember events that took place a long time ago. He accepted he didn’t initially believe T’s complaint. He accepted he did not report either allegations to the police. His explanation which is consistent with that of Mrs M and Mrs G is that he thought the police would not believe him.
  1. [79]
    A reasonable explanation for Mrs M’s complaint to Mrs G of a touching on K’s breasts is that she has confused what she was told by her daughter with what she was told by her husband. Mr L said that he saw the defendant touch K’s breasts either the day before or the day after the defendant and he were offered a lift to the bowls club by Mrs M. All of these events as such occurred at around the same time. It is reasonably possible that Mrs M’s memory of who told her about K is mistaken and that what she told Mrs G in fact came from Mr L.
  1. [80]
    Whilst quite clearly there have been conversations between K and T and between T and her parents about the evidence, I am satisfied that there is no real risk that the complaints of K or T have be concocted or that one or the other has colluded with the other to embellish a complaint. I consider that each of Mrs M and Mr T were honest witnesses. They presented as unsophisticated but compelling in their honesty.

Conduct of the parents

  1. [81]
    The defendant points to the failure of all four parents to have done anything about the allegations when they came to their knowledge at or around the time of these events. Whilst it might seem on the face of it, surprising that nothing was done to bring these matters to the attention of police, there was a consistency in the individual reasoning of each of the three who gave evidence. The explanation for their failure to do anything was because there was a concern that the defendant was close to the police and by inference would be protected by police and they not believed. Given that they all lived in a small country town, that they were concerned that they would not be believed in circumstances where they considered that that the defendant had some connection to the police is not at all surprising. Mr L conceded that he didn’t believe T himself when he first became aware of her complaint. I do not consider that the failure of the parents to act in a way protective of their daughters gives rise to any concern as to the truthfulness or reliability of either T or K or even as concern as to the truthfulness or reliability of Mrs M and Mr L. They were, as I have described, unsophisticated witnesses.

Inconsistencies and discrepancies

  1. [82]
    There are a number of inconsistencies in the evidence of T and K which it is argued give rise to a doubt as to the reliability of their evidence. The defendant has pointed to K’s evidence in her interview with police in June 2017 that she was touched on the backside by the defendant when she was moved from the roadway on her bike. The account she gave Officer P did not include this detail. The defendant argues that given this was something mentioned by T to K in the messages that took place between them on 14 December 2016, that there is a real risk that K has simply adopted something that T has said as a consequence of their discussions about this matter. It is argued that K’s evidence has become tainted and therefore is unreliable. The impression I gained from K’s account in her interview with police is that the touching on the backside was unintentional. She said in cross-examination that she thought that she had told Officer P this detail. It is apparent that she did not. Given that K was told very early in the interview in June to “start from the beginning and tell me everything he did from the very beginning to the very end” it is unsurprising that there is a more fulsome account of the event by her in that interview.  Officer P said that he had not been trained in techniques to employ in interviewing children.  The approach that is routinely taken by police who are trained in such techniques is to adopt the use of these very words when commencing the interview. K had little memory of her conversation on messenger with T.  I do not consider that K’s evidence has been tainted by what she’s been told by T in the messages and that her memory of the event is an independent one. 
  1. [83]
    K told Officer P that the defendant rested his hand on her stomach before her pants were undone. She did not include this detail in her interview in June 2017. I consider this to be a minor inconsistency explained by the passing of time.
  1. [84]
    The defendant argues that K, having been informed by T that the defendant had touched her should have been on notice to avoid letting the defendant anywhere near her. However K explained this in her June interview by saying that she believed the defendant wouldn’t do such a thing because he was so nice to her. That is an explanation consistent with her young age at the time. She was not of an age where she would have known how to protect herself from the potential of an unwanted sexual advance.
  1. [85]
    The defendant argues that K’s account is improbable because knowing what she did from T and having felt the defendant touch her backside that would have been enough for her to want to keep a safe distance from the defendant and ride away. However again she was a young child who would not have been anticipating that the defendant might sexually touch her on the roadway. It is argued that it would be expected that she would have resisted the defendant in those circumstances however it is equally as likely that she might have frozen rather than entered the flight or fight state of mind. Ordinary experience would indicate that many adult women who are sexually assaulted freeze rather than flee or fight. K wasn’t cross-examined about her lack of reaction so there was no opportunity for her to explain her reaction. In any event it is a reaction not unexpected in such circumstances by a young child sexually offended against by an adult man.
  1. [86]
    It is further argued that the lack of an admonition from the defendant to not tell anyone also affects her credit. I do not accept this. The defendant’s conduct was brazen. He was undeterred by the presence of another child nor the possibility of passing motorists or pedestrians. He told K to “shoosh” according to the evidence of K.  That was sufficient for her not to say anything further.  The lack of any further comment by the defendant silencing K does not impact upon the credibility or reliability of her evidence. 
  1. [87]
    It is also argued that K did not complain to her mother and that such a failure to disclose to her mother affects her credibility. I do not accept that argument. It is not uncommon for a person to wait many years, even decades before disclosing this very sort of sexual abuse. It is argued that the absence of a complaint to her mother warrants an examination by me of the reasons for her not complaining to her mother when there was an opportunity for a prompt complaint. The difficulty with that argument is that K was not cross-examined at all about her failure to complain to her mother. Such an explanation would not be admissible in evidence-in-chief as it goes to the credit of K only. It is only in re-examination that such an explanation could be explored. In the absence of any cross-examination of her about her failure to complain to her mother there could be no re-examination on the topic. Accordingly I consider this to be an unfair argument which cannot be countered by the prosecution in light of the absence of any cross-examination. I place no weight on the absence of an explanation for her failure to complain. In any event it is consistent with ordinary experience that children who are sexually offended against rarely make an immediate complaint.
  1. [88]
    It is argued that K’s evidence that the defendant placed five dollars on the table and slid it towards her at the bowls club without saying anything to her is unlikely and unsupported by the evidence of a child, M who was present at the time. Detective Forrest provided an explanation for the absence of any evidence from M. He was spoken to and did not want to provide a statement. M indicated to police that he didn’t recall seeing a five dollar note. I have not speculated as to what L might have said if he was called and have acted upon the evidence called before me. I do not consider that K’s account is unlikely. Whilst it is not supported I consider her to be a compelling and honest witness although there is some degree of unreliability with respect to her memory of when events occurred and the sequence in which events occurred. Support for her evidence is therefore of importance to my deliberations.
  1. [89]
    It is also argued that this event is inconsistent with K’s evidence that her father told her to stay away from the defendant. On K’s evidence it was the defendant who approached her whilst she was sitting at a table at the bowls club and it is unsurprising that a child of tender years would not act in a way to protect herself from the predatory nature of an adult man. It is also unsurprising that she would consider it necessary to protect herself from the defendant whilst in a public place such as the bowls club.
  1. [90]
    The defendant also argued that there is an absence of particularity as to when the event involving K occurred and that what she does say is inconsistent and unreliable. It is argued that in the absence of an adequate description of the time and other circumstances that are capable of identifying the occurrence of this event means that it is not possible for a finding to be made beyond a reasonable doubt that the offence occurred as described by K. In her June interview K said she was “11, 10 sort of in-between”. When cross-examined she said she was 11.  If T was present as both girls state, then this event could not have occurred when K was 11 as T no longer lived in the small country town.    As indicated earlier in these reasons I consider that K’s memory as to the timing of events to be unreliable.  However I do not find that T’s memory as to the timing of events to be unreliable.  For that reason I find that this event occurred at the time that T described being a few days after she herself was touched.  The incident involving T is readily linked to an objective event being the council Christmas party.
  1. [91]
    There is also the inconsistency between the evidence of Mr L and the evidence of K as to the incident he described of seeing the defendant put his hand down K’s t-shirt at the bowls club. K said that there was never an occasion where the defendant touched her breasts. It is reasonably possible that what appeared to Mr L to be the defendant putting his hand onto the breast/s of K was not in fact the case. It is reasonably possible that he put his hand inside or near her t-shirt in such a way that it appeared to Mr L that he was touching K’s breasts. Whilst accepting the evidence of Mr L I do not use this evidence to reason that the defendant had a sexual interest in K which he was willing to act on. The prosecution have not relied on it in this way. It is relevant only so far as it suggests an inconsistency with K’s evidence.
  1. [92]
    Whilst K is unreliable as to her timing of this event I do not consider that she is unreliable in her recollection of what the defendant did to her. I find she was giving an honest account to the best of her ability of what occurred. Her evidence is supported by T’s evidence and provides a possible explanation for Mrs M’s comment to Mrs G.
  1. [93]
    The defendant argues that there are inconsistencies or discrepancies in T’s account of events. He points to the differences in her use of language. In her interview with police she used the words “he tried to start touching me down there”.  It is argued that similar language was used in her complaints to her parents.  The defendant argues that her use of language accords with the possibility that the defendant leaned over her and made some physical contact with her which she interpreted to have involved an attempt to touch her on the vagina.  Her description, it is argued, raises a reasonable doubt as to whether proof of the offence as particularised by T has been achieved.  In addition, it is argued the absence of any description as to what T was wearing by either her mother or T herself means that I could not be satisfied that she’s not simply describing contact with some part of her body close to but not in fact her vagina. 
  1. [94]
    T in her interview with police was asked the question “where was he actually touching you?” to which she responded “just down there” as she indicated with her hand, her vagina.  There is no doubt that she was describing an actual touching of her vagina albeit on the outside of her clothes.  Her choice of language cannot be isolated from her physical actions in pointing to where she was touched.   Further in cross-examination, consistent with her description to police, she described a rubbing motion of her vagina. No reasonable doubt arises because of her use of language.
  1. [95]
    The defendant argues that the complaint T made to K is inconsistent with her description of what occurred in that she disclosed to K that the defendant “put his hand on her vagina and rested it there”.  I do not consider that this inconsistency, if it be one, is of any great moment.  It is the consistency in the essential features, that the defendant touched her vagina whilst sitting in the back of her mother’s car which acts as a buttress to her credit.  I do not consider that anything of significance turns on whether the defendant touched her vagina, rested his hand on her vagina or rubbed her vagina. These are minor inconsistencies readily explained by the passing of time.  
  1. [96]
    It is argued that the evidence of T is improbable in that the likelihood that the defendant would touch T in the way she described whilst in the backseat of the car for a very short period of time, with her parents present is inherently unlikely. There is some force in that argument however proof of the defendant’s tendency to engage in sexual activity with another young girl in circumstances where there was also a significant risk of discovery, removes any doubt that I have which the brazenness of the defendant’s conduct might otherwise have raised.
  1. [97]
    The defendant also points to the unreliability of T's evidence as to when the event in the car occurred. In her interview with police she said that she was 10, 11 or 12. When cross-examined she said that she was 9 or 10. T’s family left the small town in November 2012 when she would have been 10 years of age. This sort of discrepancy is not unusual in children attempting to recall an event from a number of years earlier. I am satisfied that the event occurred when she was 9 or 10 years of age as alleged in the indictment.
  1. [98]
    The defendant also points to inconsistencies in the evidence as between T and K about the incident involving K. In particular T did not describe the presence of a car as did K. This is a minor inconsistency which does not impact upon the credibility and reliability of the evidence of T.
  1. [99]
    The defendant argues that there is an inconsistency in the descriptions of where the defendant was standing in relation to K. Whilst K describes the defendant standing in front of her, T described both herself and K facing the same direction and the defendant standing in such a way that she could not see what he was doing. Such an argument depends on the precise positioning of each of the girls and the defendant. If T was on her bike a couple of metres ahead of K she would still be facing the same direction and not able to see what the defendant was doing to K if his body was between them. I do not consider that any inconsistency arises.
  1. [100]
    The defendant argues that T’s account of what she witnessed in the 14 December 2016 messages is vastly different to her account to police. In the messages she says that she saw the defendant touching K’s “butt and stuff” but didn’t hear what he said.  In her evidence she said that she didn’t see what the defendant was doing but heard K say “stop, why is your hand there?”   T’s explanation for this was that she assumed that the defendant was touching K in an inappropriate place.  She confirmed that she did not see him touch her backside or put his hand down her pants. I consider her explanation adequately addresses the difference in her account to what she said in the messages.  It also serves to demonstrate that she has not colluded with K but rather in an interview with police has been careful to describe only what she heard and saw.
  1. [101]
    The defendant points to T’s evidence that she heard K say “stop” but that K did not give this evidence herself.  I consider that this is a minor inconsistency and of a nature that I would expect to occur between two people both giving an honest account of events that they either saw or experienced.  That one child was the subject of the conduct and the other witnessed it is sufficient to explain such a minor inconstancy. 
  1. [102]
    The defendant also argues that it is difficult to believe that K would not have spoken to T immediately that this event occurred. I do not consider that to be so. K made clear in her evidence that she spoke to T fairly soon after this event occurred. That initially they both rode away from the defendant before discussing what had occurred is unsurprising. That K could not recall the detail of precisely what she said to T is unsurprising and not unexpected of a witness recounting a conversation from a long time ago.
  1. [103]
    There is a further discrepancy between the evidence of the two girls as to when Mrs M spoke to Mrs G. According to T the sequence was that her mother spoke to K’s mother after the car incident and before the bike incident. K’s evidence was that her mother was spoken to by Mrs M after the bike incident. I do not consider that anything turns on this discrepancy. If Mrs M is mistaken as to who told her that K had been touched on the breasts it matters little when precisely she told Mrs G. It is readily apparent that all of the incidents occurred within a few days of each other. That after such a long period of time that there is no precision as to when Mrs M spoke to Mrs G is unsurprising. The defendant’s argument is really prefaced on a finding that the complaint to Mrs G was a false one which occurred because of what T had told her mother. As indicated earlier in these reasons I do not consider that T made a false complaint to her mother. The discrepancy is readily explained by a mistake on the part of Mrs M.
  1. [104]
    The defendant also argues that T’s apparent lack of memory as to how the incident involving K ended gives rise to unreliability on her part. I do not consider that her lack of memory on this point demonstrates her evidence to be unsatisfactory. On her account she could not see what the defendant was doing to K so it is unsurprising that she did not know what caused the defendant to stop touching K.
  1. [105]
    The defendant relies upon what is described as a cryptic reference to a girl named C by K. At the very end of her June interview with police K said “when dad asked me what happened, C was also there, the girl that was across the road”.  The defendant argues that this may be a reference to C being present across the road when the incident occurred.  It is more likely in my view that it is a reference to C being present when her father spoke to her.  In any event there was no cross-examination about this with a view to establishing the presence of another witness to the event.  I do not consider that any concerns arise about this statement.  It has a reasonable explanation consistent with the questions that she was being asked at the time and does not give rise to any concerns to me that K was indicating that C was present when the incident occurred.

Motive

  1. [106]
    It is argued that both K and T gave evidence from which I would come to a conclusion that they each had a motive to make a false complaint. Both K and T made clear that they did not think that the defendant ought to have been released from gaol. T also said in cross-examination that K had said to her that there were other girls who might not come forward. That was the reason she needed T’s help in going to the police. It is argued that because these were young girls and that the defendant’s release from gaol was weighing upon their minds, that this would explain the inconsistencies in their descriptions of contact between each other and would also lead me to conclude that their allegations are unreliable.
  1. [107]
    I accept that K’s belief that the defendant had already been released from prison was in part her motivation for going to the police. I also accept that once T became aware of the defendant’s incarceration and apparent release from gaol that it motivated her to provide what support she could to K. But I do not consider that that motivation means that their allegations are false or unreliable.
  1. [108]
    In considering the weight to be attached to the section 93A statements of each of T and K I have had, in addition to my having heard their evidence, had regard to the fact that their statements were not provided contemporaneously with the events they have described. I have also considered as referred to in these reasons whether either or both of them had any incentive to conceal or misrepresent the facts.[5] 
  1. [109]
    I consider that each of K and T gave an honest and compelling account of unwanted sexual touching by the defendant towards each of them. The differences in their accounts of the event involving K are what I would expect of honest witnesses recounting an event that they each had experienced in different ways. If their accounts were identical I would be more inclined to consider them untruthful. The fact that there are differences in their account is what lends credence to each of their evidence about that event.
  1. [110]
    I consider that K’s evidence provides strong support for T’s allegation in that it demonstrates that the defendant had an unnatural sexual interest in young girls of around her age which he was willing to act on despite the very real risk of being detected by another either adult or child.
  1. [111]
    I also consider that T’s evidence provides strong support for K’s allegation in the same way. It removes any lingering doubts as to the reliability of K’s memory as to the timing and sequence of events.
  1. [112]
    Whilst K, in particular was clearly distressed by the defendant’s release from prison I do not consider that this has led her to make a false complaint. I also consider T’s motivation in making a complaint was to support her friend. Her evidence in her section 93A statement that she did not in fact see what the defendant did to K suggests to me that she was not at all attempting to conceal or misrepresent the facts.

Longman v The Queen (1989) 168 CLR 79

  1. [113]
    In coming to this conclusion I have taken into account the forensic disadvantage that the defendant has been subjected to as a result of the long delay between when the events occurred and when he became aware of them in October 2017. The defendant has lost the opportunity of meaningfully testing and meeting the allegations by evidence that might otherwise have been available, evidence such as when the council Christmas party occurred, who else was present and might have seen how he travelled to the bowls club, evidence as to where he might have been at the time that K says she and T came across him on their bikes, evidence as to when the defendant left the bowls club, evidence as to whether anyone drove past the two girls at the time that they were riding their bikes. It is said that there is an absence of a complete record being available of all of the communication girls despite being aware of inappropriate conduct by the defendant at around the time between K and T from the time that T left the small town, given their use of multiple social media platforms and potentially actual conversations on the phone. I also factor into this consideration the fact that the parents of these two that these events occurred did nothing to investigate the matters themselves or draw them to the attention of police. That is particularly so with respect to Mrs G given her failure to even speak to K about the allegation when she became aware of it.
  1. [114]
    These are all matters which impact upon the fairness of the trial although I note that there would never be an occasion where there was a complete electronic record of all conversations whether by electronic means or by telephone between any two people. Nonetheless I factor all of these considerations into my assessment of the evidence and direct myself that it is dangerous to convict on the unsupported evidence of either T or K unless after scrutinising their individual evidence with great care, and keeping in mind this warning I am satisfied beyond reasonable doubt of the truth and accuracy of each of them.
  1. [115]
    As indicated through these reasons I have scrutinised the evidence of all of the witnesses but particularly that of K and T carefully. T’s evidence is supported by that of her mother and father who recall an occasion where the defendant was in the back seat of their car with T; and K against whom the defendant offended in a similar way. Her immediate complaint to her mother acts as a buttress to her credit. I find that K’s evidence is supported by T’s evidence of what she witnessed and her evidence as to what happened to herself.
  1. [116]
    In relation to each of the counts I am satisfied beyond reasonable doubt of the essential features of the evidence of each of K and T and therefore of the elements of each of the offences.

Verdicts

  1. [117]
    I find the defendant guilty of counts 1 and 2 on indictment number 225 of 2019.

Footnotes

[1]Recording admitted pursuant to section 93A of the Evidence Act 1977.

[2]This statement was admitted pursuant to section 93A of the Evidence Act 1977.

[3]Recording admitted pursuant to section 93A of the Evidence Act 1977.

[4]Pfennig v The Queen (1995) 182 CLR 461; Phillips v The Queen (2006) 224 ALR 216; R v MAP [2006] QCA 220; R v McNeish [2019] QCA 191.

[5]Section 102 of the Evidence Act 1977.

Close

Editorial Notes

  • Published Case Name:

    R v Brian Trevor Harris

  • Shortened Case Name:

    R v Brian Trevor Harris

  • MNC:

    [2020] QDC 28

  • Court:

    QDC

  • Judge(s):

    Loury QC DCJ

  • Date:

    09 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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