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  • Unreported Judgment

The Queen v SXW

[2020] QDC 117

DISTRICT COURT OF QUEENSLAND

CITATION:

R v SXW [2020] QDC 117

PARTIES:

R

v

SXW

(Defendant)

FILE NO/S:

DIS-5066/19(1)

DIVISION:

Criminal

PROCEEDING:

Trial

DELIVERED ON:

12 June 2020

DELIVERED AT:

Warwick

HEARING DATE:

3, 4 and 5 June 2020

JUDGE:

Barlow QC DCJ

VERDICTS:

Count 1 – Not guilty

Count 2 – Not guilty

Count 3 – Not guilty

Count 4 – Not guilty

Count 5 – Not guilty

Count 6 – Not guilty

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD – defendant charged with one count of maintaining a sexual relationship with a child – whether the Crown has proved the charge beyond reasonable doubt

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – INDECENT ASSAULT AND RELATED OFFENCES – GENERALLY – defendant charged with five counts of indecent treatment of a child under 16, under 12, under care – whether the Crown has proved a charge or the charges beyond reasonable doubt

Criminal Code Act 1899 s 210, s 229B, s 615B, s 615C

Longman v The Queen (1989) 168 CLR 79, applied

R v Markuleski (2001) 52 NSWLR 82, applied

Robinson v R (1999) 197 CLR 162, applied

COUNSEL:

Z Kaplan for the Crown

J Goldie for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Claire Hine Lawyers for the Defendant

Contents

Introduction3

Preliminary principles3

Elements of the alleged offences4

Count 14

Counts 2 to 65

The complainant’s evidence6

Preliminary matters6

The police interview6

Evidence in court9

Other Crown evidence10

Belinda Read10

Kimberley Fullson11

Jamie-Lee Moulden12

Detective Sergeant Julie Hauff12

CW212

CW113

CW314

Defendant not giving evidence14

Factors relevant to the complainant’s credit15

Overall assessment of complainant’s credit15

Motive to lie15

Preliminary complaint15

Uncharged acts16

Delay in making complaint16

Submissions17

Crown17

Defence19

Factors going to credit and reliability22

Conclusions24

Verdicts25

Introduction

  1. [1]
    The defendant is charged with six alleged offences.  Count 1 is that, between 16 July 2014 and 8 March 2015, he maintained an unlawful sexual relationship with the complainant, a child under 16 years.[1]  Counts 2 to 6 are that, on an unknown date between 16 July 2014 and 8 March 2015, he unlawfully and indecently dealt with the complainant, a child under 16 years who was under 12 years and who was under his care for the time being.[2]
  2. [2]
    The particulars of count 1 are that the defendant touched the complainant’s vaginal area with his hand.  The particulars of count 2 are that the defendant touched the complainant on the vaginal area with his hand in the complainant’s bed.  The particulars of counts 3 and 4 are that the defendant touched the complainant on the vaginal area with his hand at the dining table.  The particulars of counts 5 and 6 are that the defendant touched the complainant on the vaginal area with his hand in the car.[3]
  3. [3]
    The complainant was born on 7 June 2004.  At the relevant times, therefore, she was she was ten years old.  The defendant was in his fifties at the time.[4]
  4. [4]
    On 1 May 2020, an order was made, pursuant to s 615 of the Criminal Code Act 1899 (the Code), that the defendant be tried by a judge sitting without a jury. 
  5. [5]
    The defendant has pleaded not guilty to each count. I have conducted the trial.  It is my role to determine on the evidence whether the defendant is guilty or not guilty of each count.

Preliminary principles

  1. [6]
    In a trial by a judge sitting without a jury, the judge must apply, so far as is practicable, the same principles of law and procedure as would be applied in a trial by jury.[5]  If statute or the common law requires that information, a warning or an instruction be given to a jury, the judge in a trial by a judge sitting without a jury must take that requirement into account if it is relevant to the trial.[6]
  2. [7]
    In reaching a verdict, the judge may make any finding or give any verdict that a jury could have made or given, if the trial had been before a jury.  Any finding made or verdict given by the judge has the same effect as a finding or verdict of a jury.[7]  The reasons for the verdict must include the principles of law that the judge has applied and the findings of fact relied upon.[8]
  3. [8]
    A defendant in a criminal trial is presumed to be innocent.  The Crown has the burden of proving, beyond reasonable doubt, the defendant’s guilt of each, or any, of the charges.  Before I may find the defendant guilty on any count, the Crown must satisfy me, beyond reasonable doubt, of all the essential elements of the offence.
  4. [9]
    In conducting the trial and in considering the verdict, I also adopt, with respect, the principles set out by Smith DCJA in R v MMH [2020] QDC 70 at [10].
  5. [10]
    I must reach my verdict only on the evidence presented in court. The evidence comprises what the witnesses said from the witness box, by video link or in a video tape admitted into evidence, the admission that has been made and the other exhibits.  Nothing else is evidence.
  6. [11]
    As I have said, there are six separate charges.  I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved its essential elements.  I will return separate verdicts for each charge.[9]  The evidence in relation to the separate offences is different and so my verdicts need not be the same.

Elements of the alleged offences

Count 1

  1. [12]
    In order to convict the defendant on count 1 (maintaining a sexual relationship with a child), the Crown must prove, beyond reasonable doubt, that the defendant maintained an unlawful relationship of a sexual nature with a child under the prescribed age.  That requires the Crown to prove all the following facts.[10]
    1. (a)
      The defendant was an adult, that is, a person over 18 years of age.  That is not in doubt.
    2. (b)
      The complainant was, at the time, a child under the age of 16 years.  That too is not disputed.
    3. (c)
      An unlawful sexual relationship between the defendant and the complainant, being a relationship that involves more than one unlawful sexual act over any period.[11]

“Unlawful sexual act” means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law. 

The Crown alleges the offences of a sexual nature were the defendant touching the complainant’s vaginal area with his hand, as charged in counts 2 to 6.[12]

  1. (d)
    “Maintained” carries its ordinary meaning: that is, carried on, kept up or continued.  It must be proved that there was an ongoing relationship of a sexual nature between the defendant and the complainant.  There must be some continuity or habituality of sexual conduct, not just isolated incidents.
  2. (e)
    If I am satisfied of the defendant’s guilt of any of counts two to six, I may use those acts in my consideration of count one.
  1. [13]
    As well as relying on the specific sexual acts identified in counts two to six, the Crown relies upon sexual acts about which the complainant was not specific as to times or circumstances under which the acts occurred.  Those sexual acts described by the complainant were that the defendant touched her vagina in the same manner and circumstances (at the kitchen table and in bed) all the time: that is, on repeated occasions.
  2. [14]
    If I have a doubt about the specific offences in counts two to six, then I should only convict the defendant of count one on the basis of the evidence of the other alleged acts if, after carefully scrutinising the complainant’s evidence, I am satisfied beyond reasonable doubt that the defendant did those acts during the period alleged in the indictment.

Counts 2 to 6

  1. [15]
    In order to convict the defendant on counts 2 to 6 (indecent treatment of a child under 16), the Crown must prove, beyond reasonable doubt, all the following facts.[13]
    1. (a)
      The defendant dealt with the complainant.

“Deals with” means any act which, if done without consent, would constitute an assault as defined by the Code.[14]  “Assault” constitutes, among other things, striking, touching, moving or otherwise applying any force of any kind to the body of another person, either directly or indirectly, without the other person’s consent.[15]  It includes a touching of the child by any part of the defendant’s body.

  1. (b)
    The dealing was indecent.

“Indecent” bears its ordinary everyday meaning and is what the community regards as indecent.[16]  Indecency must always be judged in light of the time, place and circumstances.[17]

  1. (c)
    The dealing was unlawful:  that is, not justified, authorised or excused by law.
  2. (d)
    The complainant was under 16 years of age.
  1. [16]
    In order to prove the circumstances of aggravation of the offence, the Crown must prove, beyond reasonable doubt, the following additional facts.[18]
  1. (a)
    The complainant was under the age of 12 years.

This was not disputed.

  1. (b)
    The defendant, for the time being, had the child under his care.

“Under his care” is an ordinary English expression.  It means that, at the time alleged, the defendant was responsible for the control and supervision of the child.  In determining that, I should take into account such things as the age of the child, how the child came to be with the defendant and why the child was with the defendant.[19] 

The prosecution must prove that the defendant had the child under his care at the time of the alleged indecent dealing;  that is, he was looking after the child at the time. The prosecution does not have to prove that he was the only person looking after the child at the relevant time.

It is not disputed, in this case, that the defendant, as the complainant’s foster father at the relevant times, had her under his care

The complainant’s evidence

Preliminary matters

  1. [17]
    The complainant is an “affected child”.[20]  Her evidence primarily constituted a video recording of an interview that she had with a police officer on 10 December 2015[21] and a video recording of her evidence in court given on 9 December 2019.[22]  While the complainant gave the latter evidence, the courtroom was closed, the complainant was in a room separate from the court and a support person was sitting with her.  The courtroom was also closed when the video recordings of both her interview and her evidence were played before me.
  2. [18]
    The taking and playing of the complainant’s evidence in this manner are routine practices of the court and I do not draw any inference as to the defendant’s guilt because these measures were used to take and present her evidence.  The probative value of the evidence is not increased or decreased, and I do not give this evidence any greater or lesser weight, because these measures were used.[23]
  3. [19]
    In considering my verdicts, I have reviewed the transcripts of the complainant’s evidence, but I have done so only for ready reference.  The actual evidence is contained in the recordings and the transcripts are simply an aid to my understanding and recollection of those recordings.[24]

The police interview

  1. [20]
    In her interview with police, the complainant at first said very little and insisted on writing down or drawing her responses.  The police officer read out loud or described what the complainant had written or drawn.  Photographs of the complainant’s notes have been tendered.[25]  Of course, the officer’s interpretation of the words or drawings is not evidence;  it simply assists me in determining at what stage of the interview the complainant wrote or drew different things that appear in her notes.  I have formed my own views of the complainant’s notes and drawings, to which I refer below.
  2. [21]
    What was said in the interview was not in the same order as I record it, nor was it strictly chronological.  I have recorded what she said in various parts of the interview as if it were in a logical progression, in order to assist in considering the whole of her evidence.  I have mostly, but not always, distinguished between what she said orally and what she wrote.  I have corrected spelling errors without indicating the changes.  My corrections do not affect the substance or meaning of her evidence.
  3. [22]
    The complainant said she had been living with a foster family, with a number of other foster children and some of her carers’ biological children. 
  4. [23]
    The complainant wrote, “In my room and at the dinner table he would always touch my vagina and I was too scared to say stop or no”.[26]  She said that the touching started on the day, or about a month after, she moved into the defendant’s house.[27]  When asked about the first time it happened, she wrote that it was when she was asleep in her bed and the defendant tucked her into bed to sleep.  She recalled other children being at the house that day for respite.  She said she was ten at the time.
  5. [24]
    The complainant wrote that he would always go under the blankets and then down to her underwear.[28]  The defendant would put his hand down the front of her underwear.  He would stay for a while and then go.  He would squeeze it and it “annoyed the crap out of [her]”.  When asked about what the defendant would do with his hands inside her underwear she said, he “feels around and all that”.  She did not know how to explain how he did it, but she wrote that “he would feel and always like say ‘Yes’ and ‘I don’t want to stop’.”[29]
  6. [25]
    The complainant said that, during these incidents, the defendant would say “weird things”, although she could not remember what he said.  She said she was too scared to say anything other than “you have a wife”.  In response to this, the defendant said, “shut up you f-ing cunt”.  She said that he would say this whenever she asked, “don’t you have a wife?”  She later said that the defendant would also say, “Now don’t tell anyone or you’ll have to leave”.
  7. [26]
    The complainant said that, on the first occasion, she was wearing a grey, long-sleeved nightie and underwear.  She said she still had this nightie.[30] 
  8. [27]
    At one stage in her interview, she said this would happen every night.
  9. [28]
    She shared a bedroom with another child (CW1), who the complainant said was six.  The complainant described the bedroom as being small;  her bed was near the window and CW1’s bed was near the door.  The complainant’s evidence was that CW1 went to bed at 7.00pm and was asleep when she went to bed at 7.30pm.
  10. [29]
    The complainant then discussed an incident at the dinner table.  She described all the boys sitting on one side of the table and all the girls on the other.  She drew a picture of the table, showing where everyone sat.[31]  She said the defendant sat next to her and would “always” have one hand “not on the table”.  When asked about this, the complainant said, “He would like he’s did what sort of he did when I was in bed, but he didn’t but um yeah”.  She repeated a statement to this effect later in that interview, and confirmed that he did what he did in bed.  The complainant described this as irritating.  She recalled two specific incidents:  one when they had pastry pies for dinner and another when they had porridge for breakfast.
  11. [30]
    The complainant said the defendant would take her, on the back of a quad bike, to feed the animals on the defendant’s property.  She described this as being strange, because the defendant would never take any of the other children.  She said the defendant would have one hand on the steering wheel and his other hand would be behind him (where the complainant was sitting) and the defendant “would do what he did under the table … and in bed.”  She said that, on one particular occasion, they went to the very back of the property to check the water level of the dam.  She was asked if this was when the defendant touched her vagina, with which she agreed.  She drew a picture of the quad bike, with her and the defendant sitting on it as described.[32]
  12. [31]
    The complainant also described an incident in a car on the way to visit her sister.  The complainant originally recalled being in a red car[33] with the defendant and four of the boys.  She was sitting in the front seat and the boys were sitting in the back seat[34] playing video games.  The complainant said that what happened at the dinner table happened in the car.  She said she was wearing a “horse dress”[35] at the time.  She remembered that because it was “that special day for horse” when “everyone wears big things in their hair.”  She drew a diagram of her and the defendant sitting in the car[36] and described the defendant as having one hand on the wheel and, when he did not need to use the brake or change gears, “he always, yeah”.[37]  She later said he touched her on top of her underwear.
  13. [32]
    The complainant also said that this would happen in the car both when all of the boys were in the back of the car and when no one else was in the car.  She recalled a second incident in a car, when she was going to see “nan’s contact” on a Sunday, and on this occasion, she said, she and the defendant were by themselves in “the other car”.[38]  The complainant said she was wearing a black and white t-shirt with a cat and a mouse on the front and short jeans.  She said that the same thing that happened when she was in the horse dress happened on this occasion.
  14. [33]
    The complainant said the defendant would do “it” when his wife was not around.  She said the defendant told her that if she told his wife, he and his wife would not be together.  She said she was too scared to tell anyone else because the defendant also said that, if she did, he would come and kill her when she was older.  She said the defendant would say this whenever she tried to tell his wife or one of the other children.  She said that, whenever she tried to tell someone, the defendant would always say it was time to go feed the animals.  Her evidence was that she and CW1 would tell each other things in their bedroom, but whenever it came to telling CW1 about the touching, the defendant “would always quickly run into the room” and tell her it was time to go. 
  15. [34]
    The complainant said she told her two carers about the defendant’s conduct.[39]  She said that she was too scared to tell anyone else because of the defendant’s threats.

Evidence in court

  1. [35]
    In her evidence in court on 9 December 2019,[40] the complainant said she had recently watched the recording of her interview with police and confirmed that everything she said was the truth.  During the course of examination in chief, a number of photographs of the complainant’s notes and other things were tendered.[41]
  2. [36]
    In relation to the incidents that occurred in her bedroom, the complainant said the bedroom door would be open and she would be able to see around the room because the hallway light was always on. She also identified the photograph of the nightie[42] as being the nightie she wore then she lived at the defendant’s house.
  3. [37]
    The complainant gave evidence that, while on the quad bike, the defendant would either put his hand over the top of, or under, her underwear.
  4. [38]
    In relation to the incidents at the dining table, the complainant said that they would always sit at the same seats.
  5. [39]
    The complainant identified the photograph of a dress[43] as the horse dress she was wearing during the first incident in the car.
  6. [40]
    In her cross-examination, the complainant agreed that, about one month prior to her interview with police, she had told Kim Wilson and Brent Dixon[44] about these incidents.  The complainant agreed that, shortly before making this disclosure, she had been watching an episode of Home and Away that involved a young girl who had a secret and was running away from boys who were trying to find out what her secret was.  She accepted that the same episode depicted other characters being concerned about that girl.  The complainant also accepted that it was about halfway through this episode that she approached Ms Wilson and Mr Dixon and made her disclosure.
  7. [41]
    The complainant was asked whether she remembered that, on an occasion after that disclosure, she had been watching an episode of Glee and, after the episode, she had told a support worker, Jamie-Lee Moulden, that she was in a gay relationship and a boy was in love with her, but she wanted to remain with the girl.  She replied, “Kind of.”  She agreed that Ms Moulden, in response, told her that what she had just disclosed mirrored the television show she had just watched.  She denied that, in response, she smiled or smirked and said to Ms Moulden, “Like I had done with Home and Away.”
  8. [42]
    The complainant was asked about her evidence in the police interview that the defendant would touch her at the dinner table.  She agreed that there would be up to 13 people at the dinner table and confirmed that while up to 11 other people were at the table, the defendant had one hand under the table and would touch her around her genital area.  The complainant agreed that they were not allowed to start eating until the defendant’s wife sat at the table.
  9. [43]
    The complainant was asked about the incidents that she said occurred while the defendant was driving.  She agreed that, in the red car, there were two seats in the front and three seats in the back.  She agreed that, in the grey car, there were two seats in the front, three in a middle row and two seats in the back row.  She confirmed that, while in the car, the defendant’s hand was almost always around her genital area, except when the defendant needed to change gears.  It was put to her that she never sat in the front seat of either car;  she denied this.  It was also put to her that both cars were automatic;  she was not sure about this.
  10. [44]
    It was put to the complainant that when the defendant used the quad bike, all the children would have a turn and would watch each other having turns around the yard area.  She denied this.
  11. [45]
    The complainant confirmed that, on occasions when she attempted to tell the defendant’s wife about these incidents, the defendant would intervene and suggest they go feed the animals.  It was put to her that, when she tried to tell CW1, the defendant would “magically appear” and call her to help with some task.  The complainant said, “never stated that”, despite her statement in the police interview that was to that effect.[45]  The complainant denied telling CW1 about being bullied or punched or kicked.  She said she never told CW1 about the touching.
  12. [46]
    Finally, it was put to the complainant that everything she had told police about the defendant offending against her was a lie, to which the complainant responded, “That’s not true.”

Other Crown evidence

Belinda Read

  1. [47]
    Ms Read is a senior team leader with the Department of Child Safety, Youth and Women.  She is the complainant’s current senior team leader.
  2. [48]
    Ms Read gave evidence that the complainant is the subject of a long-term guardianship order, which means that it has been decided that she is unable to live with either of her parents or another family member and the Chief Executive of the Department of Child Safety, Youth and Women is her legal guardian until she turns eighteen.  Ms Read’s evidence was that this order was made on 23 May 2005.[46]
  3. [49]
    Ms Read said that the complainant had been in foster care with the defendant and his wife from 14 July 2014 to 8 March 2015, when the defendant’s wife became ill.  She said the complainant attended a therapeutic day program at Mercy[47] in Toowoomba from 8 September 2014 to 26 November 2014.

Kimberley Fullson[48]

  1. [50]
    Mrs Fullson gave evidence by a video link.  The probative value of her evidence is not increased or decreased because she gave it by video link.  Therefore, I do not give her evidence any greater or lesser weight than if it had been given in the witness box.
  2. [51]
    In 2015, Mrs Fullson was working at an organisation called House With No Steps.  In November 2015, the complainant was living at a house in Toowoomba associated with that organisation.
  3. [52]
    On 19 November 2015, she agreed that she had been at the house.  The complainant had been to Mercy Services that afternoon to have contact with her mother.
  4. [53]
    That evening, the complainant watched an episode of the television program, Home and Away.  She came to the office door and told Mrs Fullson and Mr Dixon that there was something she wanted to share.  The complainant appeared reluctant to share this information and asked to play a game of ‘hangman’ with them.  They were to guess words she would write on a notepad.  Mrs Fullson said this was a strategy that the complainant used with her counsellor to express things that were going through her mind.[49]  Mrs Fullson could not remember exactly what words she wrote, but she recalled that they included words along the lines of, “At [town] [the defendant] touched my vagina”, “stop,” “protect”.
  5. [54]
    A photograph of the hangman note was identified by Mrs Fullson.[50]  It includes additional words (not on the hangman game lines).  Put together, on my reading of it, it says, “[the defendant] always touched my vagina at [town].  I was too scared to tell, to say stop and protect myself.”
  6. [55]
    Mrs Fullson said Mr Dixon then went to the lounge room with the complainant and an iPad.  He returned later and showed her what had been written on the iPad.  She said it was similar to what was in the hangman game, but there were more things included.  She did not know who wrote those things on the iPad.[51]
  7. [56]
    During cross-examination, Mrs Fullson was asked about the Home and Away episode that the complainant had been watching.  She was unable to recall all of episode, but said it involved a girl disclosing information to someone and there was mention of some form of abuse.  She agreed that the complainant approached her and asked her to play the hangman game part way through the episode.

Jamie-Lee Moulden

  1. [57]
    Ms Moulden also gave evidence by a video link.  Again, the probative value of her evidence is not increased or decreased because she gave it by video link.  Therefore, I do not give her evidence any greater or lesser weight than if it had been given in the witness box.
  2. [58]
    Ms Moulden was a youth worker at House With No Steps.  In that role, she would help at-risk youths in residential care with their daily living tasks, such as running errands and all sorts of jobs related to their life and their care.  She was the complainant’s youth worker for about three years from about 2016. 
  3. [59]
    During cross-examination, Ms Moulden confirmed that, before coming into her care, the complainant had lived with the defendant and his wife.  She said that, in January 2016, the complainant told her that the defendant would watch her in the shower and that his wife and three other female children knew about it.  During that conversation, the complainant told Ms Moulden that the defendant had threatened to kill her if she did not do what he asked.
  4. [60]
    Ms Moulden also agreed that the complainant had told her that the defendant would get his penis out and say, “Suck it,” but the complainant did not.
  5. [61]
    Ms Moulden was asked about an incident while the complainant was in her care and had been watching an episode of a television program called Glee.  She agreed that, when the episode finished, the complainant told her something about her life that was very similar to the storyline of the episode the complainant had just watched.  Ms Moulden said that, when she told the complainant that what she had just said was similar to what she had just watched on television, the complainant smiled and said, “Just like Home and Away.”

Detective Sergeant Julie Hauff

  1. [62]
    Detective Sergeant Hauff is a member of the Queensland Police Service and was the investigating officer in this matter.  Her only evidence in chief was that, despite efforts to contact Mr Dixon, she was unable to take a statement from him.
  2. [63]
    During cross-examination, she gave evidence that she did not conduct the recorded interview with the complainant and that, although the interview was conducted on 10 December 2015, the defendant was not charged until 3 August 2018.  She agreed this was not the defendant’s fault.

CW2

  1. [64]
    This witness is an “affected child”.[52]  Counsel informed me that an agreement had been reached that she would not be required for cross-examination if the recording of her police interview were played at trial.[53]  I adopt my consideration of this type of evidence as outlined above at [18] and [19]
  2. [65]
    CW2’s interview with police occurred on 1 April 2016. She said that she lived with the defendant and his wife at the same time as the complainant.  CW2 was asked if things happened or if she saw things happen to the complainant.  She said no.
  3. [66]
    CW2 did not recall there being a quad bike at the house.
  4. [67]
    CW2 agreed that she would go for trips to Toowoomba in a car.  She said she would sit on the right side of the car, the defendant’s wife would sit in the front (apparently in front of her) and the defendant would sit on the left.  The complainant would sit in the back with CW1.[54]  There were only two seats in the back.  (She appears to be referring to a large car with three rows of seats.)
  5. [68]
    CW2’s evidence was that the defendant and his wife would sit next to each other at the dinner table.  She said the complainant did not sit beside the defendant.
  6. [69]
    CW2 was asked who put her to bed.  She said the defendant would tuck her in and say goodnight nicely. 

CW1

  1. [70]
    This witness is also an “affected child”.[55]  Counsel informed me that an agreement had been reached that this witness would not be required for cross-examination if the recording of her police interview were played at trial.[56]  I again adopt my consideration of this type of evidence as outlined above at [18] and [19]
  2. [71]
    CW1 was interviewed on 7 April 2016.  She lived with the defendant and his wife at the same time as the complainant.  CW1’s evidence was that she and the complainant were initially friends, but they did not get along later in time.  CW1 said the complainant had told her about being bullied and not having friends, and being kicked, punched and hit, but she did not tell her who did these things.  The complainant did not tell her about anybody at the house doing anything to her.
  3. [72]
    CW1 gave evidence to the effect that she would go for rides on the quad bike around the house, with the defendant driving.  She saw many of the other children doing so too.
  4. [73]
    CW1 said she and the complainant shared a bedroom.  She said usually the defendant’s wife would put her to bed, but sometimes the defendant would put her to bed if she fell asleep on the couch.  She said he would put a number of the children to bed, including the complainant, but did not see him do anything other than give them a hug and a kiss goodnight.  The complainant did not tell her about anything else happening to her when she went to bed.  She said she could see the complainant’s bed from her bed.
  5. [74]
    CW1’s evidence about who the complainant sat next to at the dinner table was unclear,[57] however she did not mention the defendant ever sitting beside the complainant.
  6. [75]
    CW1’s evidence about car trips to Toowoomba was that the complainant would sit in the middle seat of the car.  The defendant would drive.  The complainant did not tell her about anything happening to her in the car.

CW3

  1. [76]
    This witness is also an “affected child”.[58]  Counsel informed me that an agreement had also been reached that this witness would not be required for cross-examination if the recording of her police interview were played at trial.[59]  Again, I adopt my consideration of this type of evidence as outlined above at [18] and [19]
  2. [77]
    CW3 was interviewed by police on 1 April 2016.  She said that she lived with the defendant and his wife at the same time as the complainant.  CW3 said that usually the defendant’s wife would put her to bed, but sometimes the defendant would do so.  When he did, he would come close to the bed and give her a kiss and say goodnight.
  3. [78]
    CW3 could not recall where people sat at the dinner table although the boys sat on one side and the girls on the other.  She could not remember where the complainant sat.  She was not asked where the defendant sat.
  4. [79]
    Her evidence was that all the younger children would go for rides on the quad bike, with the defendant driving, and they would stand around watching until it was their turn.  The complainant never told her about anything happening on the quad bike.
  5. [80]
    She said that, during car rides to Toowoomba, she and two other girls sat on the fold out back seat, the complainant and three boys would sit in the middle seat, although this often changed.  The defendant and his wife would sit in the front seats.  None of the children would sit in the front passenger seat. 
  6. [81]
    CW3 was never told by the complainant about, nor did she see, things happening to the complainant that she did not like or that made her feel unsafe.

Defendant not giving evidence

  1. [82]
    The defendant has not given or called evidence.  That is his right.  He is not bound to give or to call evidence.  The defendant is entitled to insist that the Crown prove the case against him, if it can.  The Crown bears the burden of proving the guilt of the defendant beyond a reasonable doubt and the fact that the defendant did not give evidence is not evidence against him.  It does not constitute an admission of guilt by conduct and it may not be used to fill any gaps in the evidence led by the Crown.  It proves nothing at all and I must not assume that, because he did not give evidence, that adds in some way to the case against him.  It cannot be considered at all when deciding whether the Crown has proved its case beyond a reasonable doubt and most certainly it does not make the task confronting the prosecution any easier.  It cannot change the fact that the Crown retains the responsibility to prove the defendant’s guilt beyond reasonable doubt.[60]

Factors relevant to the complainant’s credit

Overall assessment of complainant’s credit

  1. [83]
    My general assessment of the complainant as a witness will be relevant to all of the charges, but I have to consider her evidence in respect of each charge when considering that charge.
  2. [84]
    If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one or more counts, whether by reference to her demeanour or for any other reasons, I must take that into account in assessing the truthfulness or reliability of her evidence generally.[61]
  3. [85]
    If, for some reason, I am not sufficiently confident of her evidence to convict in respect of one charge, I must find the defendant not guilty in relation to that charge.  That does not necessarily mean that I cannot convict him of any of the other charges. I have to consider why I have some reasonable doubt about that part of the evidence and consider whether it affects the way I assess the rest of the evidence, that is whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the parts of her evidence relevant to each of the other charges.

Motive to lie

  1. [86]
    In her address, counsel for the defendant did not submit that the complainant had a motive to lie in her account about the defendant’s conduct.  However, she did submit that, even though she had not identified any motive to lie, I should nevertheless consider whether the complainant may have had some such motive or reason.
  2. [87]
    Although nobody has identified any motive the complainant might have to lie about the defendant’s conduct, that does not mean that the complainant did not have such a motive.  There may be many reasons why a person may make a false complaint and the defence cannot be expected to know of all possible reasons.  Nor does the absence of an identifiable motive to lie mean that the complainant is telling the truth, nor that her evidence is reliable.  The Crown must prove that the complainant is telling the truth, as it is the Crown’s burden to satisfy me beyond reasonable doubt of the defendant’s guilt.

Preliminary complaint

  1. [88]
    The complainant told Mrs Fullson and Mr Dixon, in general terms, about her allegation that the defendant used to touch her on the vagina.  She did so on 19 November 2015.  About two months later, she made other assertions to Ms Moulder.
  2. [89]
    This evidence is only relevant to the complainant’s credibility.  Consistency between the accounts, by the people whom she told, of the substance of her complaint and the complainant’s own evidence may be taken into account as enhancing the likelihood that her evidence is true.  However, I cannot regard the things said in those out-of-court statements as proof of what actually happened; it does not independently prove anything.
  3. [90]
    Likewise, any inconsistencies between the witness’ account, or between that account and the complainant’s evidence, may raise doubts about the complainant’s credibility or reliability.  But the mere existence of inconsistencies does not mean that I must reject the complainant’s evidence.  Some inconsistency is to be expected, because it is natural enough for people who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.  This is particularly the case with young children.

Uncharged acts

  1. [91]
    The prosecution has led evidence of incidents, other than those the subject of the specific charges in courts 2 to 6, in which the complainant says that there was sexual conduct by the defendant towards her.  That evidence is the complainant’s statements that the defendant would touch her “all the time”, both at the dining table and when saying goodnight to her in bed, and that the defendant touched her when taking her on the quad bike out to parts of the farm distant from the house.
  2. [92]
    As I have said earlier, the Crown relies on the evidence about the defendant’s conduct in the complainant’s bed and at the dining table as part of the habitual sexual acts constituting maintaining a sexual relationship.  It also relies on that evidence and the evidence concerning the quad bike to prove that the defendant had a sexual interest in the complainant and was prepared to act upon it.[62] The prosecution argues that this evidence makes it more likely that the defendant committed the offences with which he is charged.
  3. [93]
    I can only use this other evidence if I am satisfied beyond reasonable doubt that the defendant did act as that evidence suggests, and that the conduct demonstrates that he had a sexual interest in the complainant which he was willing to pursue.
  4. [94]
    If I am not satisfied of those things, beyond reasonable doubt, then that may affect my assessment of the complainant’s evidence about the acts which are the subject of the offences with which the defendant is charged.
  5. [95]
    If I do not accept that this evidence proves, to my satisfaction, that the defendant had a sexual interest in the complainant, I must not use the evidence in some other way to find that the defendant is guilty of the offences with which he is charged.
  6. [96]
    If I am satisfied that one or more these other acts did occur and that this conduct does demonstrate a sexual interest of the defendant in the complainant, it does not follow that the defendant is guilty of the offences which are charged.  I cannot infer only from the fact that this other conduct occurred that the defendant did the things with which he is charged.  I must still decide whether, having regard to the whole of the evidence, any of the offences charged has been proved to my satisfaction beyond reasonable doubt.

Delay in making complaint[63]

  1. [97]
    The complainant’s delay in reporting the incidents (including those in respect of which the defendant is not charged with any specific offence) that she says happened between nine and 17 months before her complaint to the police in December 2015 has an important consequence: her evidence cannot be adequately tested or met after the passage of so much time, the defendant having lost by reason of that delay some means of testing, and meeting, her allegations that would otherwise have been available.
  2. [98]
    That delay and its consequences have been greatly exacerbated by the considerable further delay between the date of her complaint and when the defendant was informed of the complaint and charged.  The defendant was not informed until around the time he was formally charged, in August 2018:  that is, some two years and nine months after the complaint was made and three to four years after the alleged events are said to have occurred.  No explanation for that delay was given to me, although it was stated that it was not the fault of either the complainant or the defendant.
  3. [99]
    By the delay, the defendant has been denied the chance to assemble, soon after the incidents are alleged to have occurred, evidence as to what he and other potential witnesses were doing when, according to the complainant, the incidents happened.  For example, it was admitted by the Crown that none of the children who had lived at the address at the relevant times, other than the three whose police interviews were tendered, were interviewed or gave statements.  Had the complaint instead been made known to the defendant soon after the alleged events, or had the defendant been informed of the complaint soon after it had been made, it would have been possible then to explore the pertinent circumstances in detail and perhaps to gather, and to look to call at a trial, evidence throwing doubt on the complainant’s story or confirming the defendant’s denial.
  4. [100]
    The fairness of the trial (as the proper way to prove or challenge the accusations) has necessarily been impaired by those delays.  It would be dangerous to convict upon the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation, and paying heed to this warning, I am satisfied beyond reasonable doubt of its truth and accuracy.

Submissions

Crown

  1. [101]
    The Crown submitted that the complainant’s evidence was unsophisticated, but contained a great level of detail, and that she presented as a timid yet honest and reliable witness.  Given that the complainant was in foster care and was undergoing counselling and attending a therapeutic program, the way in which she made disclosures to the preliminary complaint witnesses and how she presented in the police interview are logical.  In relation to the complainant’s demeanour, the Crown submitted that the marked difference between that of her police interview compared with her evidence in court is easily explained by the almost three-year difference in time and age.  The complainant’s evidence in both her police interview and her evidence in court was consistent with her disclosures to other people.
  2. [102]
    It was submitted that an unlawful sexual relationship, being an element of the maintaining charge, can be seen in the following aspects of the complainant’s evidence:
    1. (a)
      “in my room, at the dinner table, he would always touch my vagina and I was too scared to say stop or no”;[64]
    2. (b)
      when she was in bed the defendant would “always” go under the blankets and down to her “undies”;[65]
    3. (c)
      “he did it every night”;[66]
    4. (d)
      when describing what happened at the dinner table, the complainant described the defendant as “always” having one hand under the table;[67]  and
    5. (e)
      when describing what happened in her bedroom, she stated that the defendant would always do it when the defendant’s wife was not around.[68]
  3. [103]
    The Crown submitted that the complainant’s evidence establishes an ongoing, habitual and continued course of sexual offending.  I can therefore be satisfied of his guilt on count one.
  4. [104]
    The Crown submitted that each particularised act of touching the complainant on her vagina was indecent in all of the circumstances.  If I am satisfied that the complainant is a truthful and reliable witness, the elements of each of counts 2 to 6 are made out. 
  5. [105]
    In relation to the evidence regarding the complainant having watched an episode of Home and Away prior to making disclosures to Mrs Fullson, the Crown submitted that Mrs Fullson could not recall what type of abuse the episode referred to.  There was no evidence that the episode discussed sexual abuse;  there was, however, evidence that the episode involved a girl who was having difficulty coming forward.  It is unsurprising that, after seeing a young girl disclosing something bad that had happened to her, the complainant felt comfortable enough to make disclosures to her care workers about what had happened to her.
  6. [106]
    In relation to the Glee episode, including the complainant’s reaction (as described by Ms Moulden), the Crown submitted that the complainant denied making up the allegations after watching the Home and Away episode and, in any event, there is no right way to react as a victim of sexual abuse.
  7. [107]
    The Crown submitted that I should conclude that the complainant was reliable and honest and that I can consider her honesty and reliability in respect of some counts as supportive of the other counts.
  8. [108]
    The Crown conceded that, at first glance, the evidence of CW1, CW2 and CW3 is damaging to the Crown case.  However, it was submitted that they were very young witnesses who did not give a high level of detail in their evidence and were inconsistent with each other.  The Crown also submitted that perhaps they were not aware that the complainant attended a therapeutic day program in Toowoomba, and therefore might not have been aware of other occasions during which the complainant was in the car with the defendant.  On the complainant’s evidence, there was at least one occasion when she was in the car alone with the defendant. 
  9. [109]
    The Crown submitted, in relation to the dinner table, that where the other children’s evidence was inconsistent between each other, the complainant’s evidence should be preferred given the detail she gave about who sat where at the table.
  10. [110]
    In relation to the delay in the complainant disclosing these incidents, the Crown submitted that this can be explained by:
    1. (a)
      the defendant threatening her not to tell anyone:  the defendant made direct threats that she would have to leave the foster care, if she told anyone he and his wife would not be together any more, and that he would kill her if she told anyone;
    2. (b)
      the complainant undergoing counselling, which the Crown submits helped her open up:  Mrs Fullson’s evidence was that the complainant was undergoing counselling to help express herself, which supports the fact that she had difficulties opening up;  and
    3. (c)
      the fact that the time between the complainant’s police interview and her evidence in court was the fault of neither the complainant nor the defendant.
  11. [111]
    Further, the Crown submitted that the uncharged acts described by the complainant in the police interview are supportive of the defendant maintaining a sexual relationship and also demonstrate a sexual interest in the complainant.

Defence

  1. [112]
    The defendant’s ultimate submission was that the complainant’s evidence could not be accepted as honest and reliable beyond reasonable doubt.  Ms Goldie outlined several factors that would lead me to find that I was not satisfied beyond reasonable doubt of the charges.
  2. [113]
    First, the preliminary complaint evidence of Mrs Fullson was limited and vague and does not assist the court in making any meaningful assessment of the complainant’s uncorroborated evidence.  Also, the complainant’s later account to Ms Moulden was inconsistent with her complaint to Mrs Fullson and her statement to police, which adversely affects her credibility and reliability.
  3. [114]
    Ms Goldie referred to the complainant’s evidence that she was unable to tell anyone about the allegations because, every time she went to tell someone, the defendant would come in and prevent her from saying anything.  However, Ms Moulden said that the complainant told her that the defendant’s wife and other girls knew that the defendant used to watch her in the shower.  This was uncorroborated by the girls who gave evidence and contrary to the complainant’s own evidence.
  4. [115]
    Further, Ms Goldie submitted that it was unrealistic that the complainant would complain to CW1 about being assaulted and bullied, yet did not disclose the sex offences because the defendant would always appear out of the blue.
  5. [116]
    Secondly, the defendant submitted that the delay in the complainant reporting the allegations and the further delay in the defendant being charged have made the allegations difficult to defend.  The defendant has been unable to assemble, soon after the incidents are alleged to have occurred, evidence from other potential witnesses, such as the other children in the house, and his wife who is now deceased.
  6. [117]
    Had there not been such a delay, it would have been possible then to explore the pertinent circumstances in detail, and perhaps to gather and to look to call, at the trial, evidence throwing doubt on the complainant’s story.  This is discussed in further detail below.
  7. [118]
    Thirdly, Ms Goldie submitted that the failure or inability of the defence to prove a particular motive to lie does not mean such a motive does not exist.  If such a motive existed, the defence may not know of it. There may be many reasons why a person may make a false complaint.
  8. [119]
    Fourthly, Ms Goldie submitted that the court should have a reasonable doubt about the maintaining charge.  Despite the complainant’s evidence that she was touched regularly during a period of approximately eight months, none of the children who were interviewed corroborated her evidence.
  9. [120]
    The complainant’s evidence about the quad bike is implausible, to a degree, and unrealistic.  Ms Goldie submitted that the defendant would have had difficulty operating the quad bike with one hand, while reaching behind him and placing his hand under the complainant’s underwear.[69]  Also, the complainant’s evidence that the defendant would only ever take her for rides on the quad bike is contrary to the evidence of CW1 and CW3 that all the children would take turns.  In particular, CW1 and CW3 said that the other children would be watching while waiting for their turn.
  10. [121]
    Ms Goldie submitted that, if I have a reasonable doubt in relation to count 1, this should be carried over in my assessment of the other counts.
  11. [122]
    Fifthly, in relation to count 2 (“in the bedroom”), Ms Goldie submitted that CW1, CW2 and CW3 were all interviewed by police and none of them gave any evidence which corroborates the complainant’s allegations.  This is despite the complainant saying it occurred on a regular basis.  The complainant gave evidence that the door to the hallway would be left open and there was always a light on in the hallway.  Ms Goldie appeared to place weight on the fact that, despite CW1 sharing a bedroom with the complainant and the complainant telling her about being bullied by others, she did not give any evidence which corroborates the complainant’s account, nor did the complainant tell her about the defendant’s alleged conduct.
  12. [123]
    Furthermore, Ms Goldie submitted that the complainant’s account about the defendant saying “weird things” to which she said, “You have a wife” and the defendant would respond, “Shut up you f-ing cunt” is unrealistic. CW1 would also have been likely to hear it.
  13. [124]
    Sixthly, in relation to counts 3 and 4 (“at the table”), Ms Goldie submitted that the complainant’s account was inconsistent with and uncorroborated by the other children’s evidence. 
  14. [125]
    On the complainant’s own evidence, there would be up to 13 people sitting at the dinner table.  Despite up to 11 other people sitting around the dinner table at the same time that the defendant allegedly had his hand under the table touching the complainant’s vagina, there is no corroboration of the Crown case.  In particular, the evidence was that they would not start eating until the defendant’s wife was at the table, and yet the defendant apparently “always” had his hand under the table touching the complainant’s vagina.
  15. [126]
    Further, the complainant said that all the children would sit in the same seats at the table and that her seat was always next to the defendant.  The other children’s evidence was that the complainant sat elsewhere at the table and none of them stated that the defendant would sit next to the complainant.
  16. [127]
    Ms Goldie ultimately submitted, in relation to counts 3 and 4, that the evidence of the other children is inconsistent with the complainant’s account and the lack of any corroboration, despite it allegedly occurring every time they were at the table, should cause me concerns about accepting the complainant’s account.
  17. [128]
    Seventhly, in relation to counts 5 and 6 (“in the car”), Ms Goldie submitted that these allegations were again inconsistent with and uncorroborated by the other children’s evidence.
  18. [129]
    On the complainant’s account, there were four other people sitting in the car during the first trip when the alleged act occurred.  Police did not conduct interviews with, and the Crown did not call any evidence from, those persons who were present in the car when the offences allegedly occurred. 
  19. [130]
    Ms Goldie submitted that it was unlikely the defendant would reach over and touch the complainant’s vagina whilst there were four witnesses sitting in the back seat.  In particular, it was not a fleeting touch which could have gone unnoticed;  his hand apparently remained on her vagina for the entire trip, apart from when he needed to change gears.  On this point, Ms Goldie submitted that the assertion that both the defendant’s cars were automatic has not been challenged by the Crown and is inconsistent with the complainant’s evidence that the defendant would only remove his hand to change gears or to use the brake.
  20. [131]
    Ms Goldie also drew attention to the evidence of CW1, CW2 and CW3 that, during car trips to Toowoomba, the complainant would be seated in the middle or the back row of seats with the other children.
  21. [132]
    Eighthly, Ms Goldie submitted that the evidence regarding how the disclosures occurred and the comment the complainant made to Ms Moulden a few months later give rise to grave concerns about the complainant’s evidence.  The complainant accepted that she had mirrored the episode of Glee in her conversation with Ms Moulden.  Ms Moulden said that, when she pointed this out to the complainant, her response was to smile and say, “Just like Home and Away.”  Those two aspects together raise a concern as to whether she has also watched Home and Away and mirrored that in her complaint.[70]
  22. [133]
    Finally, Ms Goldie submitted that both the Robinson[71] and Longman directions were relevant.
  23. [134]
    It was submitted that the complainant’s evidence should be scrutinised with great care because of the following circumstances:
    1. (a)
      the delay between the time of the alleged incidents (between 16 July 2014 and 8 March 2015) and the time when the defendant was made aware of the allegations (3 August 2018);
    2. (b)
      the difference in accounts between what the complainant told Ms Moulden and what she told police;
    3. (c)
      the evidence of CW1, CW2 and CW3 where it contradicts, and does not corroborate, aspects of the complainant’s evidence;  and
    4. (d)
      the evidence that the complainant mirrored a storyline of a television show and said, “Just like Home and Away” in circumstances where the first disclosure she made was half way through watching a Home and Away episode about a girl being abused in some manner.
  24. [135]
    These matters cast serious doubt on the complainant’s honesty and the reliability of her evidence. 
  25. [136]
    As to the delay, there were a number of other children (and actual, not just potential, witnesses) in the household during the relevant period who were not interviewed by police or called by the Crown.  Despite this, none of the complainant’s allegations are corroborated in any respect.
  26. [137]
    Therefore, it would be dangerous to convict on the complainant’s testimony alone unless, after scrutinising it with great care, considering the circumstances relevant to its evaluation and paying heed to the Robinson and Longman warnings, the Court is satisfied beyond reasonable doubt of its truth and accuracy.

Factors going to credit and reliability

  1. [138]
    I accept generally Ms Goldie’s submission outlined at [134] and [137] above.  I must scrutinise the complainant’s evidence with great care.  I should only act on the complainant’s evidence if, after considering it with those warnings in mind, together with all the other evidence, I am convinced of its truth and accuracy.
  2. [139]
    The complainant’s statement to the police, although given in an unusual fashion, was comparatively detailed about the alleged events.  The level of detail in some respects indicates a level of honesty and reliability, but in other respects it indicates a level of exaggeration.  In considering it with great care, of particular importance in this respect are the following matters.
  3. [140]
    First, the complainant’s behaviour in purporting to disclose to Ms Moulden a personal dilemma that simply mirrored what she had just seen in a television show is concerning, as indicating a possible tendency to relate to fictional characters and their personal problems.  By her response to Ms Moulden when this was pointed out to her (to smile and say, “Just like Home and Away”), the complainant herself linked her attempt to copy the Glee episode with the disclosures she had made after watching Home and Away about two months earlier.  This strongly suggests that, whatever the dilemma facing the character in Home and Away, it led the complainant to make up a similar story in her own life.
  4. [141]
    On the other hand, there is some strength in the Crown’s submission that the Home and Away episode was simply a catalyst for the complainant to feel that it was better to reveal her secret than to keep it hidden and therefore to feel comfortable in revealing it to her carers.  Nevertheless, the alternative explanation described above is open and means that I must be particularly careful in assessing the complainant’s evidence overall.
  5. [142]
    Similar concerns arise from the difference between what the complainant told Ms Moulder and what she told Mrs Fullson and the police.  She made no mention to the police or Mrs Fullson of being watched by the defendant while in the shower (to the alleged knowledge of others in the house), nor of being told to suck the defendant’s penis.  She apparently made no mention to Ms Moulder of the other incidents that are now relied on by the Crown.  These inconsistencies raise doubts about the reliability of her evidence.
  6. [143]
    I turn now to some other aspects of her evidence.
  7. [144]
    I have no doubt that the defendant had many opportunities to offend against the complainant in some of the ways she described.  For example, when saying goodnight to her in bed, he might well have been able to slip his hand under her blankets and touch her vagina.  As his back would have been to CW1 (and because CW1 was very young – the complainant said she was six years old), it is unlikely that CW1 would have noticed.  If CW1 was asleep, she would not have seen anything, nor heard any oral exchanges between the complainant and the defendant.
  8. [145]
    It is also possible that the defendant had opportunities to touch the complainant while they were sitting next to each other at the dining table.  However, those opportunities would have been rare, in my view, given the number of people around the table once they were all sitting down.  I do not accept that the defendant would have done that all the time, or even frequently, as it would have become very obvious to other people at the table, particularly the defendant’s wife and the older children.[72]  While some sexual offences against children are committed somewhat brazenly in the presence of other people, such a level of brazenness in the defendant’s conduct in this case is highly improbable.  There was not even evidence that there was a table cloth that might have covered the defendant’s hand while it was on the complainant.  Also, while the complainant said that she always sat at the table next to the defendant, the other three girls who gave evidence said otherwise.
  9. [146]
    The defendant may have had opportunities to offend against the complainant in a car, but I do not accept that it would happen when other children were sitting in the back seat of the sedan or in the middle seat of the four wheel drive.  While a fleeting touch might have been possible in those circumstances, I consider it highly improbable that the defendant would put his hand on her vagina (or even on her leg, if that had been alleged – which of course it was not) for a long period of time while four boys sat in the three person seat behind the complainant and the defendant.  However absorbed the boys may have been in their games, it would be inevitable that they would have noticed such conduct and therefore there was a risk that they would have talked about it in the presence of an older person.
  10. [147]
    The defendant may well have had opportunities to offend on the quad bike.  The other children’s evidence concerned only having rides around the house.  They were not asked if the defendant ever took the complainant (or any other children) on the quad bike to other parts of the farm.  It seems quite feasible that he would have done so.  If so, while they were alone and perhaps when travelling on tracks or other easily managed parts of the farm, it would have been possible for the defendant to reach back with one hand and touch the complainant’s genital area, at least over her clothes.  It seems unlikely that he would be able to put his hand inside her underwear, as she suggested (by saying he would do what he did in the bed), but I do not accept that it would have been impossible at least to touch her on the outside.  However, in considering this evidence (which of course is not one of the charged acts), I must also consider the reliability of the complainant’s other evidence.

Conclusions

  1. [148]
    The complainant’s evidence about some of the individual incidents that she said occurred appeared to me to have some degree of cogency.  In particular, the defendant had opportunity to commit the alleged offences in the bed and on the quad bike and on occasions when the two of them were alone in a car.  However, an available opportunity does not mean that the alleged act occurred. 
  2. [149]
    The complainant’s descriptions of what she was wearing in the car and how she came to remember that on the first occasion (on the “special day for horses”) support her credit.  But I have already described how improbable it is that the offence was committed on that occasion, in the presence of four boys in the back seat. 
  3. [150]
    If I were to accept her evidence of the individual acts charged in counts 2 to 6, I would have no doubt that the defendant had a sexual interest in the complainant and maintained a sexual relationship with her.  However, the implausibility of the defendant touching the complainant at the dinner table, especially on multiple occasions, and of him touching her for a long time in the presence of others in the car, are reasons to doubt that those events occurred.  The evidence that he would touch her at the table all the time seems to me to be a childish exaggeration.  While it is possible that, if it happened on more than one occasion, a childish mind may subconsciously equate those events with it happening all the time, that exaggeration also throws some doubt on the reliability of the complainant’s evidence generally.
  4. [151]
    I am also concerned by the complainant’s evidence that, whenever she tried to tell someone (even in her bedroom), the defendant would appear and interrupt.  It seems implausible, although again she may have been interrupted once, or a few times, when telling CW1 about bullying or other problems she had and she has equated this with being interrupted all the time.
  5. [152]
    These doubts are exacerbated by the complainant herself having linked her false statement that derived from watching Glee with her statements made after watching Home and Away.  The Glee episode of itself[73] indicates that the complainant may make up stories about herself that reflect, in some degree, stories she had seen or heard about other people (real or imagined).  For the complainant herself to link that episode with Home and Away (and therefore with the occasion when she first told someone about her allegations) leads to a reasonable possibility that she had a tendency to do that.
  6. [153]
    As I have said, I must treat the complainant’s evidence with great care.  I must keep in mind, in particular, how cogent that evidence appears to be.  I must consider her evidence knowing that the defendant has lost the potentially very valuable opportunity to call evidence that rebuts the complainant’s allegations.  Of most concern in this respect is that the defendant has lost the opportunity to call his wife, who may well have been ideally placed to give evidence relevant, in particular, to the allegations about the table and, perhaps, the bedtime events.  The absence of any statements from the other children present at the table, without any explanation for their absence, is also concerning.  Most concerning is the long unexplained delay in the defendant even being informed of the allegations after they were made.
  7. [154]
    Despite the cogency of some of the complainant’s evidence, given the doubts that I have set out about her evidence of many of the occasions alleged, I cannot accept her evidence about any of the offences beyond reasonable doubt.
  8. [155]
    In all these circumstances, I consider that there is a reasonable doubt that the defendant committed any of the alleged acts.

Verdicts

  1. [156]
    I must therefore find the defendant not guilty on each count.

Footnotes

[1]Contrary to the Criminal Code, s 229B(1).

[2]Contrary to the Code, s 210(1)(a), referring also to subsections (3) and (4).

[3]The particulars were marked A for identification during the trial.

[4]The complainant said he was 52:  exhibit 1, MFI B, T11:423.

[5]Code, s 615B(1).

[6]Code, s 615B(3).

[7]Code, s 615C(1).

[8]Code, s 615C(3).

[9]R v Doolan [2014] QCA 246, [39].

[10]Code, s 229B(1).

[11]Code, s 229B(2).

[12]MFI A. 

[13]Code, s 210(1)(a).

[14]Code, s 210(6).

[15]Code, s 245.

[16]R v Schneiders [2007] QCA 210, [17]-[19].

[17]R v Dunn [1973] 2 NZLR 481.

[18]Subsections 210(3), (4).

[19]R v FAK [2016] QCA 306, [64]-[87]. [129]-[138], [144]-[149].

[20]Evidence Act 1977, s 21AC.  She was 14 years old at the time.

[21]Admissible under Evidence Act, s 93A.  The recording of the interview is exhibit 1 and the transcript of the interview was marked B for identification.

[22]Pursuant to and in accordance with Evidence Act, s 21AK.  The recording of her evidence is exhibit 2 and the transcript was marked C for identification.

[23]Evidence Act, s 21AW.

[24]Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180, 188. 

[25]Exhibits 3.1, 3.2, 3.3, 3.4, 3.6, 3.7, 3.8 and 3.9.

[26]She later confirmed that “he” was the defendant.

[27]Her statement was, “it was the first day I was there.  It was it started on the first at the end of the first month that I was …”.  Exhibit 1, MFI B, T8:295-296.

[28]The complainant also drew a diagram of this: exhibit 3.3.

[29]The latter part of exhibit 3.1 is not very legible, but it was read out by the complainant in exhibit 1, MFI B, T18:754-755.

[30]A photograph of her nightie is exhibit 3.5.

[31]Exhibit 3.7.

[32]Exhibit 3.6.

[33]She said she thought it might have been a Mazda, and it was dirty with black seats.  Later in her evidence, the complainant said that, on this occasion, they should have taken another light grey car with seven seats and on another occasion, when she and the defendant were alone in the grey car, they should have taken the red car.

[34]Her evidence was that three people could sit across the back seat and all four boys were sitting in the back.

[35]Her evidence later in the interview was that the dress was pink, white and black.  A photograph of a dress matching that description is exhibit 3.10.  The complainant also initially said she was also wearing “black legging stocking things”, but later said she was wearing knee high socks. She also said she was wearing black boots, a crop top and underwear.

[36]Exhibit 3.9.

[37]The complainant did not give any further detail, apart from pointing towards her vagina.

[38]She described it as a big grey car with seven seats.

[39]One of these carers was “Kimberley” and one “Leanne”.

[40]Exhibit 2.  The transcript was marked C for identification. 

[41]Exhibit 3 in the trial.

[42]Exhibit 3.5.

[43]Exhibit 3.10.

[44]They were the complainant’s support workers at the time.

[45]Although it was not quite the same as what was put to her.

[46]At that time the complainant was not yet one year old.

[47]That is, Mercy Family Services in Toowoomba.  The program was for children who were not coping well at school due to their emotional regulation.

[48]At the time of the relevant events, her surname was Wilson.

[49]This seems also to be how she first started telling her story to the police officer in her interview, using note paper to write down or draw things that she did not feel comfortable saying aloud.

[50]Exhibit 6.

[51]No photograph or other evidence of the iPad note was tendered.

[52]Evidence Act 1977, s 21AC.  The video recording of her interview is exhibit 4 and the transcript was marked D for identification.

[53]The Crown submitted that this evidence would otherwise be inadmissible.

[54]She did not specify where the defendant sat, except that he sat on the left.

[55]Evidence Act 1977, s 21AC.  The video recording of her interview is exhibit 5 and the transcript was marked E for identification.

[56]The Crown submitted that this evidence, also, would otherwise be inadmissible.

[57]She referred to a number of different people in the household sitting beside the complainant.

[58]Evidence Act 1977, s 21AC.  The video recording of her interview is exhibit 7 and the transcript was marked F for identification.

[59]The Crown submitted that this evidence would otherwise also be inadmissible.

[60]Azzopardi v The Queen (2001) 205 CLR 50 at [34], [51] and [67].

[61]R v Markuleski (2001) 52 NSWLR 82.

[62]The quad bike evidence is not alleged to be part of the sexual relationship relied on in count one.

[63]Longman v The Queen (1989) 168 CLR 79.

[64]MFI B, T8:285.

[65]MFI B, T8:311-344.

[66]MFI B, T16:684.

[67]MFI B, T20:869.

[68]MFI B, T23:971.

[69]Ms Goldie referred to the fact that the complainant’s clothing would most likely have been taut due to her being in the seated position.

[70]Ms Goldie agreed that it was, in fact, the complainant who linked these two events.

[71]Robinson v R (1999) 197 CLR 162.

[72]CW3 described four children – X1, X2, X3 and X4 – as “kind of grown up, kind of teenager kind of kids”:  exhibit 7, MFI F:113-130.

[73]About which I accept Ms Moulden’s evidence.

Close

Editorial Notes

  • Published Case Name:

    The Queen v SXW

  • Shortened Case Name:

    The Queen v SXW

  • MNC:

    [2020] QDC 117

  • Court:

    QDC

  • Judge(s):

    Barlow DCJ

  • Date:

    12 Jun 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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