The Queen v TF[2018] QCHC 26

CHILDRENS COURT OF QUEENSLAND

Background

1. [1]
   The defendant was charged with two counts of indecent dealing with a child under 16, under 12 under s 210(1)(a)(3) Criminal Code 1899 (Qld) between 1 December 2016 and 1 February 2017.

2. [2]
   On the first day of trial the Crown entered a nolle prosequi with respect to count 2 on the indictment. The defendant was arraigned on count 1 and entered a plea of not guilty.

3. [3]
   Both the defendant and the complainant are female children. They are step cousins^[1].

4. [4]
   The defendant was born on 14 January 2003 and the complainant was born on 21 April 2008^[2]. During most of the period alleged, the defendant was 13 years old. She turned 14 on 14 January 2017. The complainant was eight years old.

5. [5]
   The Crown case is that during a sleepover at the complainant’s house during the Christmas school holidays, the defendant touched the complainant on the outside of her underwear on the vagina.

6. [6]
   Because the conduct is at the less serious end of the range for this offence, had the defendant admitted the act, it is likely that the police may have considered a less formal resolution appropriate, and elected to caution the child or refer her to a restorative justice process.

7. [7]
   That did not occur. The defendant denied the allegations. The Crown exercised its discretion to prosecute.

8. [8]
   The defendant child elected under section 98(2)(a) Youth Justice Act 1992 to be committed for trial before the judge sitting without a jury^[3] and has not withdrawn the election under section 103(3). As a result, a Childrens Court judge must sit without a jury to try the child for an indictable offence: s 102 Youth Justice Act 1992.

9. [9]
   The trial proceeded over 4 days.

10. [10]
    The issues at trial were whether the prosecution had rebutted the presumption of incapacity under s 29(2) of the Code, whether the defendant touched the complainant as alleged, whether the prosecution excluded the defence of accident and whether any touching was indecent.

11. [11]
    I am satisfied that the prosecution has rebutted the presumption of incapacity, that the touching did occur, that accident has been excluded, that the touching was indecent and that the defendant is guilty. These are my reasons for those decisions.

Burden and standard of proof, and elements of the offence

12. [12]
    The burden rests on the prosecution to prove the guilt of the defendant. There is no burden on the defendant to establish any fact, let alone her innocence. The defendant is presumed to be innocent. For the prosecution to discharge its burden, it must prove beyond reasonable doubt each element of the offence charged and exclude any relevant defence.

13. [13]
    The prosecution must prove beyond reasonable doubt that:

1. the defendant dealt with the complainant. (The term “deals with” includes a touching of the child);

2. the dealing was indecent.  (The word “indecent” bears its ordinary everyday meaning. That is what the community regards as indecent. It is what offends against currently accepted standards of decency.  Indecency must always be judged in the light of time, place and circumstances.);

3. the dealing was unlawful. (That is, not justified, authorised or excused by law.);

4. the complainant was under 16 years; and

5. circumstance of aggravation: the complainant was under the age of 12 years.

14. [14]
    The complainant’s evidence is that the touching occurred in the course of playing a game initiated by the defendant. The defendant was standing, the complainant’s legs were wrapped around the defendant’s waist, and the complainant was leaning backwards towards the floor and then coming back up.

15. [15]
    The defendant did not give or call evidence at the trial, as was her right. She bears no onus of proof. She is not bound to give or to call evidence. The fact that the defendant did not give evidence is not evidence against her. 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. I did not consider her election not to call or give evidence when deciding whether the prosecution had proved its case against her.

16. [16]
    The defendant’s interviews with police were tendered without objection. In them, she denied doing the acts alleged.

Presumption of criminal incapacity

17. [17]
    As a child over the age of 10 years but under the age of 14 years, the defendant is presumed in law to be incapable of bearing criminal responsibility for her acts: s 29(2) of the Code.

18. [18]
    The defendant did not admit capacity.

19. [19]
    The onus is on the prosecution to rebut the presumption in s 29(2) by proving beyond reasonable doubt that the defendant had the capacity to know that she ought not to do the act with which she is charged.^[4]

Principles

20. [20]
    The mere commission of the offence is not, in itself, evidence sufficient to rebut the presumption^[5]. No matter how obviously wrong the act constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of that act^[6]. However the more obviously wrong the act is, the easier it is to rebut the presumption^[7].

21. [21]
    In contrast to the common law test, it is not necessary under s 29(2) for the prosecution to prove actual knowledge that the act was wrong, only the capacity to know that the person ought not to do the act^[8].  The closer the child is to 14 years of age, the less strong the evidence need be to rebut the presumption^[9].  But it would be wrong to assume that children mature at a uniform rate. Rebutting the presumption directs attention to the intellectual and moral development of the particular child^[10].

22. [22]
    To rebut the presumption, the prosecution may call relevant evidence. That can include evidence of previous convictions if probative of capacity, evidence of the questioning of the child by police about prior offences, and evidence of previous dealings by the defendant with police of the kind sought to be proved in the instant case^[11].

23. [23]
    Evidence of an allegation of an incident which the defendant denied may be relevant to show that it had been drawn to the defendant’s attention on a previous occasion that conduct such as this was serious conduct and can show that the defendant would know thereafter that such conduct was wrong^[12].

24. [24]
    Inferences capable of rebutting the presumption can also be drawn from the defendant’s age when considered with her education, the surrounding circumstances of the offence (including what the defendant said or did before or after the act), answers given by the defendant in the course of a police interview^[13] or observations of her speech or demeanour^[14].

Evidence relied upon to rebut presumption

25. [25]
    There was no direct evidence with respect to the defendant’s family environment, medical history or education. However in her interviews with police on 4 February 2017 and 6 April 2017 the defendant said she was in grade nine at high school, had no difficulty reading and writing,^[15] did not suffer from any illnesses and was not taking any medication.

26. [26]
    Assuming an average level of maturity, the defendant’s closeness in age to 14 would ordinarily mean that less strong evidence was required to rebut the presumption. However that must be balanced against the fact that in this case the act constituting the offence is not so “obviously wrong” or so serious when compared with other sexual offending, such as rape. It is common enough for children to engage in forms of sexual play and to endeavour to keep it secret, since even very young children may appreciate that it is naughty to engage in such play^[16].

27. [27]
    The prosecution relied upon the following evidence to rebut the presumption of incapacity.

28. [28]
    First, answers given by the defendant in police interviews on 4 February 2017 and 6 April 2017, shortly after the alleged offence^[17]. Particularly in the second interview, the defendant was asked a series of questions which went to the question of capacity by exploring her ability to distinguish between right and wrong, and specifically whether she knew that touching someone “on their private parts” was the wrong thing to do and would be considered an offence. The defendant’s answers demonstrated a general understanding of right and wrong, as well as an understanding that touching someone’s private parts was wrong, was considered an offence and that there were consequences if you did that^[18]. She said she knew that because she had been told that her mother a long time ago. The defendant presented as intelligent. She spoke confidently and without hesitation. She was able to understand the warnings police gave her and to articulate them in her own words. The defendant consistently denied the alleged offending. I relied upon this evidence in assessing her level of comprehension and maturity.

29. [29]
    Second, the prosecution relies upon evidence given by a police officer, Detective Sergeant Hall, about interviewing the defendant in February 2016 (10 to 12 months before the alleged offence) in relation to an allegation that the defendant had digitally raped a four year old girl.

30. [30]
    The Crown submitted that that evidence could be used to assess the defendant’s capacity. It was relied upon to show that it had been drawn to the defendant’s attention on an earlier occasion that conduct such as this was serious conduct and that the defendant would know thereafter that such conduct was wrong^[19].  The defence objected to the admission of that evidence on the basis that it was not sufficiently probative of the issue of capacity and was prejudicial in nature.

31. [31]
    On the basis of the authorities referred to above, I overruled the defendant’s objection and allowed the evidence to be admitted. The police officer gave evidence^[20]. He said that in February 2016 he was investigating an alleged digital rape of a four year old girl. He spoke to the defendant about an allegation that she had put her finger in the child’s vagina. The defendant was interviewed at the police station in the presence of her mother. The allegation was put to her. The defendant denied it, saying she was not in the offence location with the child. She specifically denied touching the child’s vagina. That police investigation ceased because there was no complaint from the victim. The defendant was not warned or cautioned.

32. [32]
    The evidence of this earlier investigation is irrelevant to, and I do not take it into account when deciding on the evidence, whether the defendant is guilty or not of the charge. I draw no inference against the defendant because of the evidence of the earlier investigation. That evidence was not adduced as propensity evidence and is not admissible on any ground other than to rebut the presumption of incapacity.

33. [33]
    Third, the prosecution relies upon the circumstances of the commission of the offence, including its clandestine nature (in removing the complainant from the rest of the group, taking her to a bedroom and closing the door), the defendant’s conduct in blaming the complainant for instigating the conduct when the complainant’s older sister entered the room, and the defendant’s conduct in asking the complainant to pretend that nothing had happened.

34. [34]
    The defence submitted that I would find the evidence of Detective Sergeant Hall and the defendant’s police interviews of most assistance in assessing her capacity, and that the circumstances of the offending did not provide much assistance in this case. Defence counsel conceded that the evidence showed that the defendant knew that the conduct alleged was wrong, but submitted that the court may have some lingering concerns about whether she knew it was “seriously wrong”.

35. [35]
    I found the circumstances of the interview for the earlier investigation and the answers given by the defendant in the police interviews for this alleged offence particularly persuasive in forming the view that the defendant did have the requisite capacity. I infer from those interviews and the context in which they occurred, that at the relevant time the defendant had the capacity to know that touching an eight year old girl on the genital area was wrong and that she ought not do it.

36. [36]
    In my view, the evidence relied upon by the prosecution, together with the defendant’s age and maturity, is more than sufficient to rebut the presumption of criminal incapacity.

37. [37]
    I am satisfied beyond reasonable doubt that the defendant had the requisite capacity.

Evidence

38. [38]
    The evidence comprised testimony, exhibits and admissions.

39. [39]
    The complainant was interviewed by police at her home in early February 2017, shortly after the alleged offence. That interview was recorded and admitted into evidence pursuant to s 93A of the Evidence Act 1977 (Qld) (the s 93A statement).  Her evidence at the trial was later recorded and admitted pursuant to section 21AK of the Evidence Act 1977 (Qld) (the s 21AK evidence).

40. [40]
    The complainant’s s 93A interview was recorded on a police body-worn camera.^[21]  I listened to and viewed that evidence.  The quality of the audio and the video was poor. In parts, the voices were indistinct. As a result, a separate audio-only recording with better sound quality was tendered by consent and also played. I took into account the importance of not giving the complainant’s evidence undue weight by virtue of its repetition, and of the need to consider all of the other evidence.

41. [41]
    In the s 21AK evidence, the complainant gave evidence by an audio visual link between a separate room and the courtroom. There was an independent support person sitting in the room with her, and no other person. The complainant was unable to see the defendant who was present in the courtroom at the time. The court was closed and all non-essential persons were excluded during the taking of the s 21AK evidence and when that evidence was played during the trial.

42. [42]
    In considering the pre-recorded evidence, I took into account the matters in s 21AW of the Evidence Act 1977 (Qld).

43. [43]
    All of the other child witnesses gave their evidence in the same way. Part of their evidence was comprised of their conversations with police, which were recorded and played.

44. [44]
    The presenting of the children’s evidence in this way comprises the routine practice of the Court, and is adopted in every case involving children.

45. [45]
    I had regard to the transcripts of the recorded evidence. I took into account that the evidence was what I heard and saw in the recordings, and that the transcripts were not evidence but merely an aid to my understanding.

The complainant’s evidence

Section 93A interview

46. [46]
    During the s 93A interview police asked the complainant to tell them what she had come to talk to them about. She immediately volunteered: “About [defendant]. And what she did to me.” She said^[22] that her cousins were sleeping over, they went out, started to play a game, went into the pool, came inside, and watched a movie. She said that the defendant then asked to go into the complainant’s room, they went into that room, the complainant asked the defendant if she wanted to play Shopkins^[23]. The complainant continued:

“Complainant: And she said no, how about we play a different game? And I said, what was that? And she said um, choose a spot, the bed, the middle of the room or near the door^[24] and I said, in the middle and she said to put your legs around her waist, and I did it, and then she said to lean back, and put your hands on the ground, and then she pulled my pants down and touched my rude part. [count 1]

Constable: Okay. And then what happened?

Complainant: And then um, she pulled me back up and, after that she put a blanket on my face.

Constable: Okay.

Complainant: And she um, wanted to hold me and she was spreading my legs apart.

Constable: Okay.

Complainant: And she touched me there again. [count 2]

Constable: Okay. And tell me what happened then.

Complainant: And then [ES] came in. And then [defendant] said, [ES], I need to talk to you, and yeah. I don’t know what happened then.”

47. [47]
    Later in the interview she said that the defendant had touched her front “rude part”, which was used for going to the toilet. She said:^[25]

“Um, well she touched me um, for a short amount of time and, and then she took her hand off, and put me down. And after that, she put um, she said to go onto the bed, and she said to find something, ah and she said that I need to find something, to cover your face and then she found something, and then she said to spread my legs apart and then she touched me there. … It was just like that. [she gestured, indicating a touch or poke with one finger].  And then she took it off.”

48. [48]
    The complainant confirmed that the defendant touched her with “just one finger”^[26].  When asked why the defendant had covered the complainant’s face, she answered “I don’t really know. She just said that she was going to find something to cover my face.”^[27]  She said it was covered and then “she said spread my legs”.

49. [49]
    The complainant said that when her older sister, ES, returned to the room after speaking with the defendant, the complainant told ES what had really happened. ES then got SF, the defendant’s older sister, and they [all] went into another room. She said “We talked about it, and ES and SF went out of the room, … and then [defendant] said, can you just say that nothing really happened? And I said no, [defendant], you have to tell the truth.”^[28]

50. [50]
    After further discussions with ES and SF, the complainant and the defendant apologised and they all went out into the lounge room and watched a movie. She said that at the time it happened, her parents were in bed and the other children were in the loungeroom.

51. [51]
    When asked “Has anyone told you not to tell anyone about this?”, the complainant replied “Yes. … [ES], she came up to me at school yesterday and said, have you told anyone about this, and I said, no.”

52. [52]
    The alleged offence came to light when rumours began circulating at school about the incident and the children were spoken to by teachers.

Section 21AK evidence

53. [53]
    During cross-examination, the complainant gave a consistent account of the alleged offence that forms count 1: that she played a game where she put her legs around the defendant’s waist, that the defendant told her to lean back to put her hands on the ground, that “Before she swung me back up, she pulls my pants down a little and touched my rude part.”^[29]

54. [54]
    The complainant also readily admitted that she did not remember certain things^[30]. 

55. [55]
    The complainant rejected a number of suggestions put to her by defence counsel. They included that it was the complainant and not the defendant who wanted to play a “different game”^[31], that when they went into the bedroom it was daytime rather than night time^[32], that they played another game in the bedroom putting T shirts over her head^[33], and that while the complainant was lying on the bed they had talked about the holidays^[34].

56. [56]
    In relation to count 1, counsel for the defendant suggested to the complainant that when she swung down during the game, the defendant’s hands were holding the complainant’s waist, but the complainant said she could not remember^[35]. She accepted that to play the game, “someone has to pull you back up again”.

57. [57]
    Counsel for the defendant suggested to her that the defendant did not touch her rude part, but she replied “Before she swung me back up, she did”^[36]. When it was suggested to her again later in cross-examination that the defendant had never touched her, the complainant repeated: “No, she touched me when she told me to put my legs around her waist and she put me down. That’s when she touched me.”^[37]

58. [58]
    In relation to the incident on the bed, defence counsel suggested that when the defendant was sitting on the bed she never pulled the complainant’s pants down and never touched her “down there”. The complainant replied: “She did pull my pants down and then she said to me “Open your legs wider”. So I did it and then she touched – she then – and then she was about to touch me and then my sister [ES] came in.” Defence counsel asked: “So she didn’t touch you?” and the complainant replied “No, but she was about to.”^[38]

59. [59]
    That evidence that there was no actual touching during the incident on the bed was inconsistent with the complainant’s s 93A statement. As a result, the prosecution entered a nolle prosequi with respect to count 2.

60. [60]
    During cross-examination, the complainant admitted that she spoke to her parents a few days later, after the rumours at school, that that conversation occurred in the company of her sister ES, and that she had had lots of conversations with her parents since then about this. She agreed that ES was very upset because of what had been said about her at school and that ES had done most of the talking in that conversation.

61. [61]
    The complainant confirmed in cross-examination that when ES went out of the room, the defendant said to her “Can you just say nothing had happened?” and the complainant replied “No, [defendant]. You have to tell the truth.”^[39]

62. [62]
    In re-examination, the complainant said (with respect to count 2) that the defendant had not put something over her head while she was lying on the bed^[40]. That was inconsistent with her s 93A statement.

63. [63]
    The complainant’s evidence on count 1, if accepted, proves the defendant dealt with her in the way alleged and that the dealing was indecent.

64. [64]
    The prosecution relies upon the evidence of the sexual conduct on the bed (formerly count 2) to prove that the defendant had a sexual interest in the complainant and was willing to give effect to that interest, and to rebut the defence of accident. I can only use this evidence if I am satisfied beyond reasonable doubt that those acts occurred. If I do not accept that any of those acts occurred, that finding may affect my assessment of the complainant’s evidence with respect to count 1. If I do not accept that those other acts occurred, then I must put that evidence to one side, and decide the case based on my consideration of the rest of the evidence. If I do accept that those other acts occurred, I can only use this evidence if I am satisfied beyond reasonable doubt that it demonstrates that the defendant had a sexual interest in the complainant and that she was willing to give effect to that interest.

Evidence of the other witnesses

65. [65]
    There was evidence from four other children and the complainant’s parents.

66. [66]
    Each of the child witnesses participated in an interview with police shortly after the alleged offence (in February 2017 or April 2017), which was recorded, and they later gave evidence and were cross examined in court (on 26 April 2018), which was also recorded.

ES, the complainant’s older sister

67. [67]
    ES was complainant’s older sister. She was almost 12 years old at the time of the alleged offence, 12 years at the time of her s 93A interview and 13 years at her pre-recorded evidence. She said^[41] that the defendant and her sisters came over for a sleepover during the school holidays. They were all in the pool, they came out, dried themselves, changed and watched a movie in the lounge. It was night. Her parents were asleep in their bedroom. During the movie she noticed that the defendant and complainant were not there. She looked for them. They were not in the other bedrooms. The door to the complainant’s room was shut. She went in and saw the complainant lying flat on the bed, clothed, with her legs open or apart.  The defendant was sitting on the edge of the bed, and was trying to hide her face, “she was like full on trying to not look me in the eye”.  ES had a feeling that something was going on. The defendant immediately pulled or took ES out of the room, took her into ES’s room and told her that the complainant had told the defendant to come into the room and pull her pants down.  ES then went into the complainant’s room, shut the door and spoke to complainant. She asked the complainant  “What happened? Did something bad happen?” The complainant replied “yes” and appeared about to start crying. ES said “Did she touch you anywhere or do anything?” The complainant said “she touched me down there”.

68. [68]
    ES immediately went to get SF, the defendant’s older sister. SF was the oldest child, 15 years old. ES told SF what had happened and what she saw. They brought the defendant and the complainant into CS’s room. The four of them had a discussion about what had happened. The complainant and the defendant “had different sides”. The defendant was crying, saying that she had done absolutely nothing, whereas the complainant was saying she had. ES and SF then spoke together outside the room. They didn’t know what to do. When they returned, they told the complainant and the defendant to just apologise to each other, “hug it out” and put it in the past, so they hugged and said sorry.

69. [69]
    That night or the next day, the complainant told her older sister ES that while in the room the defendant had said to her “can we just forget about it and just pretend nothing’s happened” and that the complainant had replied “No, because it’s true, you did do that”.

70. [70]
    When ES went to school, there were rumours about something happening. ES was upset. She and the defendant each spoke to a teacher, who contacted the parents. ES and the complainant spoke with their parents at home. Their parents went to the defendant’s house.

71. [71]
    In cross-examination^[42], ES accepted that when she entered the complainant’s bedroom she was suspicious that something was going on, the defendant was not looking her in the eye and she had asked the complainant “did [defendant] touch you” or something like that.  She confirmed that the defendant had said she had done nothing wrong and that she did not know who to believe. She agreed with the suggestion that she and SF decided not to tell their parents because the mothers didn’t always get along and they did not want another big drama, because they were getting along at that time.

72. [72]
    ES was not cross examined about her evidence that the defendant immediately pulled her out of the room and accusing the complainant, saying that the complainant had told the defendant to come into the room and pull her pants down.

LM, the complainant’s friend

73. [73]
    LM was the complainant’s friend. She was nine years old at the time of the alleged offence, and at the time of her s 93A interview and 10 years old at her pre-recorded evidence.

74. [74]
    She was at the sleepover but did not see what happened.

75. [75]
    She gave evidence of preliminary complaint. She said that the complainant later told her that when they went into the room, the defendant said to the complainant “do you want the bed, the corner or the floor … and [complainant] picked the floor… [defendant] said take your pants off, and [complainant] didn’t want to, … so [defendant] just pulled them, and poked her private part, and then um, lifted her up and wrapped her legs around her waist and swinged her around. And she also told [complainant] to spread her legs … and also, [ES] walked in and seen her”. She said that the complainant said the defendant told her not to tell anyone, but the complainant and LM were best friends and they told each other everything. The complainant had told her this before the rumours at school.

76. [76]
    Her evidence did not change in cross-examination, although she was not cross examined about the preliminary complaint evidence.

SF, the defendant’s older sister

77. [77]
    SF was the defendant’s older sister. She was 15 years old at the time of the alleged offence, and her s 93A interview and 16 years at her pre-recorded evidence.

78. [78]
    She said^[43] that she and her sisters (the defendant and a younger sister CF) were at the complainant’s house for a sleepover a few months before (that interview was conducted in April 2017). Later in the night they didn’t see the defendant and complainant for about 15 minutes. ES came rushing to her looking concerned. SF told the two younger children to stay where they were. ES spoke to her. SF then asked the defendant if it was true. The defendant was crying, say “no, I didn’t, no I didn’t, and then we got two different sides of a story. That [defendant] was only playing a game earlier.” She said the complainant described the game involving the complainant on the defendant’s waist, with the defendant laying the complainant down and then putting or throwing her back up.  SF said “[defendant] was explaining that her pants had fallen down, not on the bed, but when they were doing that, and she went to go pull her up, and it must have brushed there.”  Then the complainant described them being on the bed, she thought she said she had her pants down and that the defendant was going to do a magic trick and then the defendant “touched her down there” (on her “private area” or vagina), and then ES had walked in.  SF asked the complainant to demonstrate on her leg and the complainant had poked her lightly. The complainant looked very shaken and the defendant had burst into tears. The defendant said “I haven’t done anything, I didn’t touch her there.” SF didn’t know who to believe, “So we told ’em to just say sorry to each other and hug it out, cause we’re not like counsellors or anything.”  SF told ES that they should not tell their mothers because in the past the mothers had bickered a lot but at that time they were getting along and she did not want to “stir the feud up again”. The complainant’s parents were asleep at the time. 

79. [79]
    In cross-examination, SF said they started watching movies about 8pm and then ES came to her. She gave the same account of what occurred. She confirmed that the defendant had admitted playing the game with the complainant on her waist.

CF, the defendant’s younger sister

80. [80]
    CF, the defendant’s younger sister, was 12 years old at the time of the alleged offence, and her s 93A interview and 13 years at her pre-recorded evidence.

81. [81]
    She was present at the sleepover but did not see anything^[44]. She saw ES, SF, the complainant and the defendant go into ES’s bedroom but they would not let her into the room and would not tell her what was going on.

82. [82]
    She was at home later when the complainant’s parents came to her house. They yelled at the defendant, told her never to come near their kids and said they would make her go to jail.

The complainant’s parents

83. [83]
    MS, the complainant’s father, said that he became aware of the incident by a telephone call from his brother on 1 February 2017. He went home and, with his wife, spoke to the complainant and ES together. He said^[45] that the complainant told them about something that had happened about two and a half weeks earlier, in January:

“And [defendant] had suggested to “[complainant] that – that they go into [complainant]’s room and play a game.  [complainant] said that she – she agreed at that point.  [defendant] and [complainant] went inside, went into – went to [complainant]’s room.  [complainant] recounted that she – that she’d suggested that they play she – Sylvanians or Shopkins – some – some toys that she had there – some games that she had.  [complainant] recounted that [defendant] wasn’t interested in playing those games and – and she suggested that they play a different game.  [complainant] said “Oh” – [complainant] responded, “What – what’s that?”  And [complainant] then recounted how [defendant] then – [defendant] then took her, put her legs around her waist – put [complainant]’s legs around [defendant]’s waist.  They were on the floor at that point.  [complainant] – [complainant] was – had leaned back during the – the nature of that action and [defendant] then proceeded to – to touch [complainant]’s genitals through her underwear.  She could – [complainant] recounted how she could feel [defendant] was – was touching her – he private parts.” 

84. [84]
    The complainant also told them about an incident on the bed:

“At that point, [complainant] said that her and [defendant] hopped – ended up on – on the bed.  [complainant] then said that [defendant] wanted to – wanted to put something over her face.  [complainant] said that she didn’t want anything on her face.  [defendant] then – [complainant] then said that she – [defendant] reached for what she thought was a pillow, put that over her face.  And, at that point, too, [complainant] did say that when she hopped onto the bed, she squeezed her legs together really tightly and clenched her legs.  She said that when [defendant] had put the – let the pillow over her face, [complainant] then said that she felt – she felt her legs being prised open.  And, at that point, she felt [defendant] pulling down her – her pants and touching her on – on her genitals.” 

85. [85]
    SS, the complainant’s mother, gave evidence in similar terms to the complainant’s father.

86. [86]
    In cross-examination, both parents agreed that ES was protective of her younger siblings, that ES and the defendant did not always get on, that in their conversation with both girls ES did most of the talking, and that they then asked ES to leave the room and they spoke to the complainant.

87. [87]
    Immediately after that conversation, the complainant’s parents went to the defendant’s house and confronted the defendant. The complainant’s mother was emotional and upset. She yelled at the defendant, telling her to stay away from her kids. The defendant said she didn’t do anything. The exchange stopped when the defendant’s stepfather intervened.

88. [88]
    The complainant’s parents then made a complaint to police.

Assessing the preliminary complaint evidence

89. [89]
    I have considered the preliminary complaint evidence only as it relates to the complainant’s credibility. I take into account consistency between their accounts and the complainant’s evidence as possibly enhancing the likelihood that her testimony is true. However the preliminary complaint evidence is not proof of what actually happened and it does not independently prove anything. I considered whether inconsistencies between the preliminary complaint witnesses and the complainant’s evidence cause me to have doubts about the complainant’s credibility or reliability.

90. [90]
    Inconsistencies as between the witnesses and vis-à-vis the complainant’s evidence do emerge in the accounts of what happened at the house. But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence. Some inconsistency is to be expected, because it is natural enough for people (especially children) who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.

91. [91]
    None of the other witnesses was present in the bedroom during the alleged offence. Only one witness, ES, entered the room and gave evidence of what she saw at that moment. The other witnesses’ evidence is limited to what happened before or after the alleged offence, and their accounts of preliminary complaint by the complainant.

92. [92]
    The accounts of ES, LM, SF and the complainant’s parents are generally consistent with the complainant’s evidence, including the details of the game with her legs around the defendant’s waist, her pants being pulled down and the defendant touching or poking her “private part” or “down there” with a finger.

93. [93]
    However there are some inconsistences. In cross examination about the bed incident, the complainant’s resiled from her account of actual touching and whether she had something over her face. SF said that when they went on the bed the defendant pulled her pants down and touched her on the private area. The complainant’s mother said that when they were on the bed the defendant put something over the complainant’s face and started to take her underwear off and touch her. The complainant’s father said that when they were on the bed the defendant put a pillow over the complainant’s face and she felt her legs prised open and the defendant pulling down her pants and touching her.

94. [94]
    The timing of the preliminary complaints varies. ES spoke to the complainant alone immediately after the alleged offence. Her account of preliminary complaint is likely to be the most reliable. ES and SF then spoke to the complainant and the defendant together. SF did not speak to the complainant alone and her only evidence of the preliminary complaint was in the group discussion. LM was not present in the group discussion. She said the complainant told her what happened during a later sleepover. The complainant’s parents were told weeks later during a group meeting with the complainant and ES (although they did speak to the complainant alone after that). All of the witnesses later discussed the complaint amongst themselves.

95. [95]
    The fact that a number of group discussions occurred, and that the witnesses discussed the matter amongst themselves later, affects the reliability of those preliminary complaint witnesses.

96. [96]
    The language the parents used to describe the complaint was consistent with each other’s account but not with the language the complainant had used. For example, in her evidence the complainant was clear that the defendant had asked her to spread her legs and she had done so, whereas the parents said she told them the defendant had “prised her legs apart”. Another factor that is relevant in assessing the parents’ evidence of preliminary complaint is the long delay (14 months) between the alleged offence and when they gave evidence at the trial.

97. [97]
    The accounts given by the complainant, ES and SF shortly after the alleged offence in February 2017 are likely to be the most reliable.

Defendant’s police interviews

98. [98]
    The defendant was interviewed by police on 4 February 2017 and 6 April 2017^[46].

99. [99]
    These interviews were admitted without objection and formed part of the prosecution case. In the interviews the defendant denied the offending.

100. [100]
     The interview on 4 February 2017 was in the presence of both the complainant’s parents.

101. [101]
     Her account^[47] of the events at the sleepover before the alleged offence was consistent with the complainant’s. With respect to the alleged offence, she said that she and the complainant were playing Shopkins in the complainant’s bedroom and talking, and then the complainant was lying on her bed and she was sitting on the end of the bed and then ES walked in, said “what are you guys doing? And then we said, nothing and then she took, went and spoke to [SF], and then I don’t know what she said to [SF], but then she told me and [complainant] to wait in her room, and then when her and [SF] came in, she asked us again what we were doing and we said nothing, and then [ES] said it didn’t look like nothing and then [complainant] and I said we weren’t doing anything, and then [ES] kept questioning us.” 

102. [102]
     She said that “nothing really happened.” and that she and the complainant did not do anything while in the room.

103. [103]
     The defendant said that the complainant had been putting shirts on her head to see how many would fit, before lying on the bed. When asked to describe how the complainant was lying on the bed, she said^[48] “She was lying on her pillow and then her legs were together, and then her arms were lying on her belly.”

104. [104]
     The defendant did not mention playing the legs around the waist game at all.

105. [105]
     Towards the end of the first interview the defendant became upset, saying that she kept getting blamed for things she had not done. She referred to the rumours at school that she had touched the complainant’s vagina and denied any knowledge of it.

106. [106]
     She said that the complainant’s parents came to her house and started yelling at her, saying she was not welcome at their house, accusing her of lying, and that the complainant’s father had said “you’re lucky you’re not in jail too, that’s where you’ll be, in there”^[49]. They also said that they had let all the teachers know that the defendant was not allowed to go near the complainant or her siblings.

107. [107]
     When the police advised the defendant that they had a statement saying the defendant put the complainant’s legs around her waist, the defendant started crying and put her hands over her face, saying “I didn’t do anything. Ah, stop with all this. I don’t want any more questions”.

108. [108]
     The defendant was interviewed again by police on 6 April 2017, in the presence of her mother.

109. [109]
     This time the defendant said^[50] that when ES walked into the bedroom, the complainant was sitting at the top of her bed, on her pillow, with her legs crossed.

110. [110]
     Again, the defendant did not mention playing the legs around the waist game at all.

111. [111]
     She said that they had played Shopkins and that nothing else had happened.

112. [112]
     She gave the same account of what had happened after ES came into the room. She did not refer to taking ES out of the room and speaking to her alone.

113. [113]
     She denied telling ES or SF anything else. She said that she and the complainant were both crying because they didn’t know what was happening. She said^[51] “I was crying because I didn’t really know what [ES] was thinking that happened, ‘cause nothing really happened, and then I don’t know what she said to [SF], or what she was gonna do …[the complainant] and I told her nothing happened”.

114. [114]
     When asked about what the complainant had said to ES and SF, the defendant initially said that she could not remember. She later said “she told her side of the story, I can’t remember.”

115. [115]
     When asked why ES would have said “it doesn't look like anything”, the defendant said “I don’t know, I’m not [ES]”.

116. [116]
     The defendant volunteered that when ES and SF went outside to talk “[complainant] and I were left in the room, and we didn’t say anything to each other”.

117. [117]
     When asked how old the complainant was, the defendant said “I would not know” but later said “I think she’s in year three”.

118. [118]
     When asked about the specific allegations, the defendant denied^[52] playing a game with the complainant putting her legs around her waist, denied touching the complainant during the game, denied touching the complainant while she was lying on the bed, denied asking the complainant to say that nothing happened, denied hiding her face when ES came into the room and denied playing any game that involved physical contact with the complainant.

119. [119]
     When it was put to the defendant that she had said to ES that the complainant said to pull her pants down, the defendant was non-responsive, saying “I never went into [ES’s] room until [SF] was in there.”

120. [120]
     Towards the end of the second interview, police asked the defendant “Did anyone remove anyone else’s clothes?” and the defendant said “No”. She was then asked “Whilst playing, at any time did anyone’s clothes accidentally become loose?” The defendant said: “Um, when [complainant] was on her room, when she went to get off her bed, her um, pants fell down a bit, but they didn’t, you didn’t see anything, they were only like that much.”^[53]  She then sought to embellish that by suggesting that when the complainant got off the bed she was “dragging on the bed, so that’s probably why they came down a bit.”^[54]

121. [121]
     At the end of the interview, the defendant repeated her earlier evidence about being confronted by the complainant’s parents at her house. She said that the complainant’s mother accused her of touching the complainant, told her she was no longer welcome at her home, that she was not allowed to speak to her step cousins, and that she would let all the teachers know. The complainant’s father told the defendant she would be going to jail and that there would be consequences for her actions.

122. [122]
     Where the defendant was silent or did not answer questions when being asked by police about things, that is not evidence against her. The warning given by the police to the defendant expressly advised her that she was entitled to remain silent. So it would be wrong to reason that because she was silent or refused to answer questions that she must have something to hide or be guilty of some offence.

Inconsistencies

123. [123]
     There are a number of internal inconsistencies in the defendant’s account as well as between the defendant’s accounts and other witnesses.

124. [124]
     The defendant’s denial of the alleged offence is directly inconsistent with the complainant’s evidence.

125. [125]
     With respect to the complainant’s position on the bed, in her first interview the defendant said the complainant was lying on her pillow and “her legs were together”. In her second interview, the defendant said the complainant was sitting on the bed with her legs crossed. These accounts are both internally inconsistent and inconsistent with the evidence of both the complainant and ES, who said the complainant was lying on the bed and her legs were spread, or apart.

126. [126]
     The defendant’s initial account that she and the complainant both said nothing had happened is inconsistent with the defendant’s later account that she did not remember what the complainant had said. Both accounts are difficult to reconcile with her evidence that ES and SF did not know who to believe.

127. [127]
     The defendant’s evidence late in the second interview that the complainant’s pants had accidentally fallen down a bit as she got off her bed is not mentioned anywhere in her earlier accounts and is inconsistent with the evidence of the complainant.

128. [128]
     The defendant did not mention taking ES out of the room straight after she entered, and speaking to her. That is inconsistent with the evidence of both the complainant and ES.

129. [129]
     The defendant did not mention the complainant telling her to come into the room and pull her pants down. This is inconsistent with the evidence of ES, who said that the defendant had accused the complainant, saying that the complainant had told the defendant to come into the room and pull her pants down.

130. [130]
     The defendant said that in their joint meeting the complainant told ES and SF that nothing happened. This is inconsistent with the evidence of the complainant, ES and SF who all say that the complainant said the defendant touched her “down there” or “touched her private”.

131. [131]
     The defendant denied touching the complainant accidentally during the game. This is inconsistent with the evidence of SF, who said that “[defendant] was explaining that her pants had fallen down, not on the bed, but when they were doing that, and she went to go pull her up, and it must have brushed there.”

132. [132]
     The defendant maintained that when ES walked in, the complainant had said “we didn’t do anything”, or “we weren’t doing anything” and that the complainant had repeated this when the four girls were speaking together in ES’s room later. This is inconsistent with the evidence of the complainant, ES and SF.

133. [133]
     The defendant said that when she and the complainant were alone in the room after ES and SF had gone out, she and the complainant did not say anything to each other. This is inconsistent with the complainant’s evidence that the defendant said to her “Can you just say nothing had happened?” to which the complainant replied “No, [defendant]. You have to tell the truth.”

134. [134]
     The defendant was articulate. However her answers were self-serving and at times, implausible or evasive. Her accounts of what occurred were, in parts, internally inconsistent as well as inconsistent with the evidence of a number of other witnesses, including her own sister, SF. Her evidence about the complainant’s pants coming down accidentally when she was getting off the bed smacked of recent invention. When the specific allegations were put to her in the first interview, she became upset and would not answer further questions.

135. [135]
     I have formed the opinion that in her interviews with police, the defendant was not telling the truth when she denied the alleged offending and denied the incident on the bed.

136. [136]
     That she did not tell the truth is perhaps unsurprising given that shortly before the interview, the defendant was confronted and yelled at by the complainant’s parents, who told her that she would be going to jail. It is unfortunate that the defendant was subjected to this. If it had not occurred, her account may have been different.

Defence of accident

137. [137]
     There is evidence from the defendant’s sister, SF, that the defendant told her that during the playing of the game that the complainant’s pants had fallen down and that when she went to pull the complainant up, “it must have brushed there”^[55], raising the possibility that the defendant had touched the complainant on the genitals by accident.

138. [138]
     That evidence raises for my consideration the possibility that neither the defendant nor an ordinary person could reasonably have foreseen that the touching would occur.

139. [139]
     The prosecution must also prove that the defendant intended that the touching of the complainant’s genital area should occur or foresaw it as a possible consequence or that an ordinary person in her position would reasonably have foreseen the event as a possible consequence.  In considering whether the defendant did foresee it, or an ordinary person would have, I focus on whether the touching was foreseeable as something which could happen, disregarding possibilities that are no more than remote or speculative. 

140. [140]
     If the defendant did not intend or foresee the touching of the complainant’s genital area as a possible consequence of her actions in asking the complainant to play that game, and if an ordinary person in the position of the defendant would not have foreseen that as a possible consequence of those actions, then the defendant would be excused by law, and I would have to find her not guilty. It is not for the defendant to prove anything. Unless the prosecution proves beyond reasonable doubt that an ordinary person in the position of the defendant would reasonably have foreseen the touching as a possible consequence of her actions, or that the defendant intended or foresaw that, I must find her not guilty. Even if I reject the defendant’s account of what happened, I must consider the possibility that the event occurred unforeseen and unintended. I am aware that the defendant is under no obligation to prove any matters, and before I could convict her I must be satisfied beyond reasonable doubt, either that the touching was an event which the defendant intended or foresaw as a possible consequence or that an ordinary person in the defendant’s position would reasonably have foreseen it.

Consideration

141. [141]
     The prosecution cases rests largely on the evidence of the complainant. My assessment of her credibility and reliability is relevant to the decision.

142. [142]
     I have considered all of the submissions made by counsel during addresses. Defence counsel emphasised in particular:

1. the inconsistencies in the complainant’s evidence during cross-examination about the bed incident (formerly count 2), ie. that the defendant did not actually touch her but was about to when her sister came in, and that the defendant had not put something over her head;

2. the inconsistences in the preliminary complaint evidence;

3. the defendant’s police interviews;

4. the possibility that during the game the complainant’s pants came down by accident; and

5. the implausibility of the defendant during the game being able to hold the complainant, have her lean back and with one hand pull the complainant’s pants down.

143. [143]
     I have already dealt with those matters above, save for the implausibility argument. At the time of the alleged offence, the defendant was nearly 14 years old and the complainant was eight. The defendant was a large girl, and more physically mature than the complainant, who was quite small. In my view, it was not physically impossible for the offence to have occurred in the way alleged by the complainant. I do not accept the submission that the complainant’s account was implausible.

144. [144]
     The complainant was aged eight years at the time of her s 93A statement and 10 years at the time of her s 21AK evidence. She presented as an intelligent, articulate and forthright child. Her older sister, ES, described her as “smart”. That is consistent with my impression of her.

145. [145]
     In her s 93A interview^[56], she immediately volunteered her account of what occurred. She did so in an unrehearsed and forthcoming way, without pausing or the need for prompting. When she did not know things or could not remember, she readily admitted it^[57] and did not seek to embellish her evidence. 

146. [146]
     When police misrepresented what she had said, she corrected them. For example, in response to the question about the incident on the bed, “How did [defendant] pull your legs out a little?”, the complainant replied “Well, she didn’t. She just said to me, put your legs out a little. So I did it. … like they were closed, and then she said to move them out, so I did it.”^[58]

147. [147]
     During the s 93A interview, the complainant gave a consistent account of the alleged offence a number of times^[59]. She repeated unusual details, for example, the expression “how about a different game?”, the description of the game, and the description of the touching “a short amount”.

148. [148]
     The complainant gave her evidence in a clear, frank and spontaneous way, and presented as a witness of truth.

149. [149]
     During the s 93A interview and in her evidence, she was appropriately responsive. When asked by police how she felt when this happened, she said “a bit sad, um and nervous a little.”

150. [150]
     Taking that into account, and the fact that the older girls had told the complainant not to tell her parents, it does not undermine her credibility that she did not complain to her parents about the incident when it occurred.

151. [151]
     The inconsistencies between the complainant’s s 93A statement and her s 21AK evidence relate only to the bed incident which was formerly the subject of count 2, although they may be taken into account in assessing her credibility and reliability with respect to count 1. In my view, those inconsistencies are understandable given the long period of time that had elapsed since the complainant’s s 93A interview (14 months) in the context of her young age. It is unsurprising that a child when asked to tell what happened multiple times, may give a slightly different version of events each time.

152. [152]
     Importantly, the evidence of the complainant about count 1 remained consistent between her s 93A interview and her s 21AK evidence.

153. [153]
     The evidence of ES is also important. It was consistent with the complainant’s evidence about all of the preceding events. ES found the complainant in a position on the bed consistent with the complainant’s account about the bed incident. The complainant made an immediate complaint to ES and was visibly distressed when doing so. The evidence of ES about what the complainant later told her – that the defendant said to her “can we just forget about it and just pretend nothing’s happened” and that the complainant had replied “No, because it’s true, you did do that” – is also consistent with the complainant’s evidence. The evidence of ES overall enhances the likelihood that the complainant’s account is true.

154. [154]
     It is true that ES asked the complainant leading questions. However that is not surprising given her evidence that when she walked in, the complainant was lying on the bed with her legs open or apart, the defendant was sitting on the edge of the bed, and was trying to hide her face, she had a feeling that something was going on and that the defendant immediately took ES aside and accused the complainant of sexual conduct. It is also true that ES and the defendant did not always get on. I do not consider that their past relationship casts any significant doubt on her evidence of what she saw and what the complainant told her.

155. [155]
     I am satisfied beyond reasonable doubt that the acts on the bed occurred as described by the complainant. That is, that the defendant asked the complainant to go onto the bed, to spread her legs apart and that the defendant was about to touch her vaginal area when the complainant’s older sister, ES, walked into the bedroom. I am also satisfied beyond reasonable doubt that the acts demonstrate that the defendant had a sexual interest in the complainant and that she was willing to give effect to that interest.

156. [156]
     The age disparity between the defendant and the complainant was significant in terms of their respective maturity. A child victim who is much younger is less likely to overtly resist an adolescent offender, because of the inherent authority the older adolescent has in that relationship.

157. [157]
     In my opinion, the complainant was a truthful witness. She was cross examined in detail about the alleged incident and was consistent in her accounts about count 1. The only inconsistencies related to count 2, the incident on the bed, which led to the prosecution not proceeding with count 2 on the indictment after the defendant was arraigned on count 1. In my view, that inconsistency does not create a reasonable doubt about whether the touching during the game occurred and whether it was indecent.

Verdict

158. [158]
     I have considered all of the testimony, exhibits and admissions and all of the submissions of counsel, although I have not referred to every piece of evidence or the submissions in these reasons.

159. [159]
     Having scrutinised the complainant’s evidence with great care, I accept the complainant’s version of events with respect to count 1.

160. [160]
     I am satisfied from all of the evidence, including the circumstances surrounding the offence, that the defendant intentionally touched the complainant on the outside of her underwear on the vagina, with her finger. It was a brief touch or poke. But the touching was both deliberate and indecent, and not mere childish sexual curiosity or experimentation.

161. [161]
     I am satisfied that the prosecution has proved beyond reasonable doubt each of the elements of the offence.

162. [162]
     It follows that I find the defendant guilty.