R v CPG[2020] QDC 251

DISTRICT COURT OF QUEENSLAND

TABLE OF CONTENTS

Overview3

General principles of law4

Onus and standard of proof4

Separate consideration of the charges4

Assessment of evidence5

The elements of the offences and the prosecution’s particulars5

Alternative charges6

The issues in contest7

The evidence adduced by the prosecution7

Evidence of affected children7

Audio-visual link evidence8

The defence case8

How should the evidence of the defendant be treated?8

The defendant’s good character9

Consideration of the defendant’s evidence9

The complainant’s evidence in the police interview12

Count 1: Robot Movie12

Count 2: In the car13

Count 3: Sorting the erasers14

Count 4: TV time14

The complainant’s evidence in Court14

The other evidence15

CB’s evidence15

CM’s evidence16

CF’s evidence18

CGM’s evidence19

Detective Senior Constable Ashton’s evidence19

Preliminary complaint evidence19

Has the prosecution proved its case on each count beyond reasonable doubt?21

The defence submissions about the complainant’s evidence21

Count 1: watching a “robot movie” in the bedroom21

Count 2: In car driving around the yard23

Count 3: sorting the erasers in the bedroom23

Count 4: watching television in the bedroom24

General comments about the complainant’s evidence24

My findings about the complainant’s evidence26

Conclusion27

Verdicts27

Overview

1. [1]
   At times during the period between 28 August 2018 and 8 November 2018, the complainant, together with her brother and mother, lived with her paternal grandparents while her dad started a new job in Cairns.  On 8 November 2018, the complainant moved to Cairns with her father, mother and brother.  A short time later, the complainant spoke to her mother about interactions with her paternal grandfather that she said occurred while they had been living with them. 
2. [2]
   On 31 July 2020, a no jury order was made.  When arraigned before me on 28 September 2020, the defendant entered a plea of not guilty to each of counts 1 to 4, and each of the alternative charges.  They were all in the following terms:

Counts 1-4: That on a date unknown between the twenty-eighth day of August, 2018 and the eighth day of November, 2018 at Glen Aplin in the State of Queensland, [the defendant] raped [the complainant].

And the offence is a domestic violence offence.

ALTERNATIVELY

That on a date unknown between the twenty-eighth day of August, 2018 and the eighth day of November, 2018 at Glen Aplin in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant], a child under 16 years.

And [the complainant] was under 12 years.

And [the complainant] was, to the knowledge of [the defendant], his lineal descendant.

And the offence is a domestic violence offence.

3. [3]
   The trial proceeded with me sitting without a jury under Chapter 62 Division 9A of the Criminal Code.  As such, my role is to determine on the evidence whether the defendant is guilt or not guilty of each of the charges.
4. [4]
   In undertaking my role, I am required to apply, so far as is practicable, the same principles of law and procedure as would apply in a trial before a jury.^[1]  This includes taking account of any warning or instruction that would be required to be given to a jury.  Section 615C(3) of the Criminal Code requires that I record the principles of law that I have applied and the findings of fact on which I have relied.  I have done so below.
5. [5]
   For the reasons that follow, I am satisfied beyond reasonable doubt of the guilt of the defendant on counts 1 to 4 – rape. 

General principles of law

6. [6]
   Before considering the evidence, there are some general principles of law that apply to all criminal prosecutions that I must consider.  I set them out below.  In this case, there are some additional principles to which I must have regard.  I also set them out below, in some instances where dealing with the relevant evidence.

Onus and standard of proof

7. [7]
   The prosecution has the onus of establishing each offence charged beyond reasonable doubt.^[2]  There is no onus on the defendant.  The defendant is presumed to be innocent.  This means that in order to convict of an offence, I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged.  To convict of the more serious offences alleged, the prosecution must satisfy me of each circumstance of aggravation beyond reasonable doubt.

Separate consideration of the charges

8. [8]
   A number of charges have been brought against the defendant.  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 must return separate verdicts for each charge.
9. [9]
   The evidence in relation to the separate offences is different.  I understand that my verdicts need not be the same. 
10. [10]
    My assessment of the complainant as a witness will be relevant to all counts, but I must consider her evidence in respect of each count when considering that count.  If I have a reasonable doubt concerning the truthfulness or reliability of the complainant’s evidence in relation to one of the counts, whether by reference to her particular demeanour or for any other reason, I must take that into account in assessing the truthfulness or reliability of her evidence generally.  If I am not sufficiently confident of the evidence of the complainant to convict on one count, I must find the defendant not guilty in relation to that count.  That does not necessarily mean I cannot convict of any other count.  I have to consider why I have some reasonable doubt about that part of her evidence and consider whether it affects the way I assess the rest of her evidence.  I must consider whether my doubt about that aspect of her evidence causes me also to have a reasonable doubt about the part of her evidence relevant to the other count.^[3]

Assessment of evidence

11. [11]
    In arriving at a verdict, I must act impartially and dispassionately and only on the evidence properly admitted during the trial.  The issues that exist must be resolved by taking into account all of the evidence.  That does not mean that I have to resolve all of the questions or inconsistencies that may have been raised by the evidence or which conceivably arise about the facts.
12. [12]
    The evidence that I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression that he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or in the pretext call, and my assessment of other evidence including documents and other material.
13. [13]
    It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it.  I might reject parts of the evidence of a witness if I find it unreliable or because I consider the witness had some motive to conceal or embellish that part of the evidence that he or she gave, or to distort the truth.  The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence.  I may accept parts of it if I think it is worthy of acceptance.  If I conclude that particular evidence is not truthful or reliable, I will not take that evidence into account in determining whether the prosecution has established guilt. 
14. [14]
    In the case of conflicts, it is for me to decide whether they are important to resolve, or unnecessary, given the views that I reach about other parts of the evidence when I assess the evidence and the cases which the parties have advanced. 
15. [15]
    In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence.  I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.
16. [16]
    There is a difference between honesty and reliability.  A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what was heard or seen.  This might become apparent when other objective evidence is considered.

The elements of the offences and the prosecution’s particulars

17. [17]
    The particulars for each of counts 1 to 4 relied on by the prosecution are that the defendant penetrated the complainant’s vulva and/or vagina with his finger. 
18. [18]
    Count 1 is referred to as the robot movie time.  It is said to have occurred in the defendant’s bedroom while the complainant and the defendant were watching a DVD with cartoon robots.  Count 2 is referred to as the time in the defendant’s car.  It is said to have occurred when the defendant took the complainant for a drive around the yard in the white car with gold interior.  Count 3 is said to have occurred when the complainant and the defendant were sitting on the defendant’s bed sorting coloured erasers.  Count 4 is said to have occurred in the defendant’s bedroom when the complainant and the defendant were watching the cartoon “All Hail King Julian” on ABC Me.
19. [19]
    Section 349 of the Criminal Code provides that any person who rapes another person is guilty of a crime.  A person rapes another if, amongst other things, the person penetrates the vulva or vagina of the other person to any extent with a part of the person’s body that is not a penis without the other person’s consent.
20. [20]
    For the defendant to be found guilty of each of counts 1 to 4, the prosecution must satisfy me beyond reasonable doubt that the defendant:

    1. (a)
       penetrated the complainant’s vulva or vagina,
    2. (b)
       to any extent,
    3. (c)
       with his finger,
    4. (d)
       without the consent of the complainant.
21. [21]
    Section 349(3) of the Criminal Code states that a child under the age of 12 years is incapable of giving consent.  The birth certificate of the complainant demonstrates that she was born on 9 September 2011.  As such, she was under 12 years of age at the time of the alleged offending.

Alternative charges

22. [22]
    With respect to each of counts 1 to 4, the prosecution has preferred an alternative charge, namely indecent treatment of a child under 16, under 12, who is a lineal descendent.  As they are alternatives, I cannot find the defendant guilty of both.
23. [23]
    The particulars of the alternative charge for each of counts 1 to 4 relied on by the prosecution are that the defendant touched the complainant’s vaginal area with his finger.
24. [24]
    Section 210(1) of the Criminal Code provides that any person who unlawfully and indecently deals with a child under the age of 16 years is guilty of an indictable offence.  Pursuant to s 210(3), if the child is under the age of 12 years, the offender is guilty of a crime and is liable to imprisonment for 20 years.  Similarly, pursuant to s 210(4), if the child is, to the knowledge of the offender, his or her lineal descendant, the offender is guilty of a crime and is liable to imprisonment for 20 years
25. [25]
    For each of the alternative charges, the prosecution must prove each of the following matters.

    1. (a)
       The defendant dealt with the complainant.  The term “deals with” includes a touching of the child. 
    2. (b)
       The dealing was indecent.  The word “indecent” bears its ordinary everyday meaning.  It 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.  In this case, this element is not in issue.  It is accepted that, if I am satisfied that the touching occurred as alleged, that dealing was indecent.  I agree.
    3. (c)
       The dealing was unlawful.  Unlawful means not justified, authorised or excused by law.  There is no justification, authorisation or excuse to be considered in this case.
    4. (d)
       The complainant was under 16 years.  The birth certificate of the complainant proves this.
    5. (e)
       Each of the alleged circumstances of aggravation, namely:

       1. the complainant was under the age of 12 years.  The birth certificate of the complainant proves this; and
       2. the complainant was, to the knowledge of the defendant, his lineal descendant.  The birth certificates of the complainant and CF demonstrate that the complainant was a lineal descendant of the defendant.  During his evidence, the defendant gave evidence that CR was his son and the complainant was his granddaughter.

The issues in contest

26. [26]
    In this case, the only issues in contest in the trial are whether the alleged acts occurred and, if so, whether there was penetration.  Consequently, the prosecution’s case largely rests on an assessment of the credibility and reliability of the complainant’s evidence. 

The evidence adduced by the prosecution

27. [27]
    The evidence adduced by the prosecution in this case was comprised of photographs the defendant’s house and car,^[4] the birth certificates of the complainant and her father,^[5] and the evidence of six witnesses. 
28. [28]
    The witnesses called by the prosecution were:

    1. (a)
       the complainant;
    2. (b)
       the complainant’s older brother, CB;
    3. (c)
       the complainant’s mother, CM;
    4. (d)
       the complainant’s father, CF;
    5. (e)
       the complainant’s paternal grandmother, CGM; and
    6. (f)
       the investigating officer, Detective Senior Constable Simon Ashton.

Evidence of affected children

29. [29]
    Part of the complainant’s evidence is comprised of her conversations with police at the Gordonvale police station on 26 January 2019.  Similarly, part of CB’s evidence is comprised of his conversations with police at the Cairns police station on 5 February 2019.  These conversations were recorded and the recording was played to me.^[6]  The presenting of the children’s evidence in this way comprises the routine practice of the Court. 
30. [30]
    A transcript of the recordings was provided for my assistance.  I do not regard the transcripts as evidence.  It is the sounds that I heard from the tape recording that I regard as the evidence.
31. [31]
    The balance of the evidence of the complainant and CB was given from a room separate from the courtroom.  Their evidence was given by the use of an audio-visual link between the room in which each was seated and the courtroom.  When the complainant and CB gave their evidence, there was a support person in the room with them.  For the evidence of each of the complainant and CB, the courtroom was closed and all non-essential persons were excluded from the courtroom itself.  The defendant was present in the courtroom, but he was positioned in such a way that the complainant and CB could not see him on the monitor or at all while they gave their evidence.  The children’s evidence was recorded as it was given and the recording was played to me during the trial.  The courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the children was played.  That procedure for taking the evidence of the complainant and CB was in accordance with a court order made on 24 October 2019. 
32. [32]
    I do not draw any inference as to the defendant’s guilt from the order or the manner in which the evidence was given.  The probative value of the complainant’s evidence is not increased or decreased because of those matters.  I have not given it any greater or lesser weight because of the order or the manner in which the evidence was given.

Audio-visual link evidence

33. [33]
    On application by the prosecution, I permitted the evidence of CF and Detective Senior Constable Ashton to be given by audio-visual link from the Cairns courthouse.  I do not give that evidence any more or less weight, and I do not draw any inference adverse to the defendant, simply because that evidence was given by audio-visual link.

The defence case

34. [34]
    The defendant denies ever touching the complainant inappropriately.  He subjected himself to cross-examination at trial.  His response to the allegations was a definite and resounding denial of the allegations.

How should the evidence of the defendant be treated?

35. [35]
    While the defendant does not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence, he chose to give evidence.  That he has done so does not mean that he assumed a responsibility of proving his innocence.  The burden of proof has not shifted to him.  His evidence and that of the other witnesses called for the defence is added to the evidence called for the prosecution.  The prosecution retains the burden of proving each of the elements of the offence beyond reasonable doubt, and it is upon the whole of the evidence that I must be satisfied beyond reasonable doubt that the prosecution has proved the case before the defendant may be convicted.
36. [36]
    The issues for determination are not resolved by choosing between the complainant’s evidence and that of the defendant.  The prosecution case depends upon me accepting that the evidence of the complainant was true and accurate beyond reasonable doubt despite the sworn evidence by the defendant.^[7]  
37. [37]
    Where, as here, there is defence evidence, usually one of three possible results will follow.  First, if I find the defence evidence is credible and reliable, and it provides a satisfying answer to the prosecution’s case, the verdict will be not guilty.  Second, if I find the defence evidence was not convincing, but it nevertheless creates a state of reasonable doubt in my mind as to what the true position was, the verdict will be not guilty.^[8]  Third, if I find that the defence evidence should not be accepted, that does not lead to an automatic conclusion of guilt.  If I find the defence evidence unconvincing, I must set it to one side, go back to the rest of the evidence, and ask myself whether, on a consideration of such evidence as I accept, I am satisfied beyond reasonable doubt that the prosecution has proved each of the elements of the offence in question.^[9]

The defendant’s good character

38. [38]
    The defence submits that the defendant is a person of otherwise good character.  He is 64 years of age and has been married for 45 years.  He has many children, grand-children and great-grand-children.  He has been employed as a bus driver for many years.  He has never had any convictions, or even allegations, of a sexual nature made against him in the past.  The evidence to this effect is part of the evidence to be taken into account in deciding whether I am satisfied beyond reasonable doubt of his guilt.  The influence that this evidence has on me is a matter for me.  It is relevant in two respects.
39. [39]
    The first is in considering whether a person with this kind of reputation would do the acts alleged by the prosecution.
40. [40]
    The second is in considering the credibility of the defendant’s evidence. When considering his evidence, I should consider whether I think that his general reputation adds weight to his evidence.
41. [41]
    Evidence of general reputation, like any other evidence, is simply part of the framework within which I reach my decision.  I am to consider it in the context of the other evidence.  How much weight I give it is a matter for me.

Consideration of the defendant’s evidence

42. [42]
    The defence submits that the defendant never tried to deny being alone with the complainant in the bedroom or taking her for the drive in the Pajero around the yard. It submits he was upfront and honest about his interactions with the complainant and that this is a testament to his honesty and credibility. 

43. [43]
    I do not accept the defence submissions.  Despite the defendant’s good character, for the reasons that follow, I do not find the defendant’s evidence credible and reliable.  I consider that it should be set to one side. 

44. [44]
    First, I do not accept the defendant’s evidence that when he and the complainant watched television in his bedroom, CB was present too.  In his evidence-in-chief, the defendant was reluctant to say he spent any time watching television in his bedroom alone with the complainant.  He suggested that, when he and the complainant watched television in his bedroom, CB was present too.  When cross-examined about the matter, he initially said that if CB was not present, it would only be for brief moments.  He gave the example of CB using the bathroom.  The defendant gave evidence that CB was present in the room while they watched the complainant’s movies, which the defendant said were only four Barbie movies and Frozen.  The defendant said those movies would generally go for an hour to an hour and a half. 
45. [45]
    That evidence given by the defendant is inconsistent with the evidence of CB during his interview with police.  CB said that he mainly watched television in the lounge room because it was bigger than the one in the defendant’s bedroom.  He said the complainant mainly watched television in the defendant’s bedroom.  He said that the complainant liked to watch the television show “All Hail King Julian” and that he did not really like watching the shows that the complainant liked to watch.  CB said his favourite show on television was cricket and that he did not watch the complainant’s movies and that her “Sweet Dreams” movie was “a girl one” and “It sucks”.  When asked whether he watched television shows with anyone, CB said that he did watch the news with the defendant in the defendant’s bedroom and that the complainant was in the room at that time also, but she was not watching the news.  CB said that CGM would be either cooking dinner or playing on her phone or iPad at the dining table.  CB also gave evidence that when the complainant was watching television in the defendant’s bedroom, the defendant was usually in there with her.  They would both be on the bed with the complainant on “nanna’s side”, being the side closest to the door, and the defendant on the window side, which is the side furthest from the door. 
46. [46]
    CB was nine years old at the time he was interviewed by the police.  During the interview, CB evidence presented as the frank evidence of a child.  The only occasions where he seemed uncertain about his answers was when he was asked about whether the television in the lounge room had a DVD player attached and whether there was a DVD player attached to the television in the defendant’s bedroom.  He paused for a long time before answering those questions.  He answered, “yes” to both questions but the tone of his answer was uncertain.  The defence never suggested to CB that he was wrong about his observations of the defendant watching movies with the complainant in the defendant’s bedroom, or that he would watch the complainant’s movies in the bedroom with the defendant and the complainant.  I accept the evidence of CB.
47. [47]
    The defendant’s evidence about the presence of CB in the defendant’s bedroom while the defendant and the complainant watched the complainant’s movies is also difficult to reconcile with the evidence of CM that CB was a child who did not like to sit still for long.  I accept her evidence. 
48. [48]
    Second, the defendant’s evidence about the robot movie changed in a way that causes me concerns about the credibility and reliability of his evidence generally.  He seemed eager to provide evidence based on matters that were said by others, of which he had no personal knowledge, in order to demonstrate the falsity of the complainant’s account.  The relevant exchange during cross-examination was as follows:

“All right.  Now, you say that you’ve never seen a robot movie?‑‑‑I’ve never, ever seen a robot movie.  The robot movie was up in a box, packed up with their stuff that we stored in the shed [indistinct]

Did you put the robot movie in that box in the shed?‑‑‑We packed all their stuff out of their house in the boxes.  And the only movies she had out of boxes was the Barbies movies and Frozen.

So you accept [the complainant] owned a robot movie?‑‑‑No, I never, ever seen the robot movie.  I never known that she had a robot movie.

Then how do you know it was in the shed?‑‑‑Because [H] said it was in the shed.  [H] told – in his statement, the robot movie was in a box packed in the shed.  I do listen.

Okay?‑‑‑There’s nothing wrong with me hearing.

So you just say the robot movie was in the shed because you say [H] said that at some point?‑‑‑That’s right.

All right?‑‑‑We never had no robot movie in the house.  There never, ever was a robot movie in the house.  Never, ever.”

49. [49]
    Third, it was only through further cross-examination, and after the defendant had accepted he spent time with just CB for longer periods watching television in the lounge room, that he ultimately appeared to accept he may have done so with the complainant in his bedroom.  These changes in the defendant’s testimony also cause me concern about the credibility and reliability of his evidence generally.
50. [50]
    Fourth, it seems implausible that someone with the defendant’s driving experience could not drive the car seen in Exhibits 11 and 12 at 5 to 10 km/hr with only one hand on the steering wheel, even allowing for the wobbly steering described by him.  The defendant also seemed overly eager to say that while on his bed he had his arms crossed in a way that he demonstrated.  This struck me as an attempt by the defendant to remove any opportunity to commit the offences.  Applying common sense, it is difficult to accept his evidence on these matters. 
51. [51]
    I accept the prosecution’s submission that the defendant’s evidence in general was not compelling.  It was internally inconsistent.  His version of events changed during cross-examination when it appeared he realised the lack of realism in his accounts.  I do not accept his evidence, nor does it cause me to doubt the complainant’s evidence.  As such, it is appropriate that I set it to one side and consider the balance of the evidence.

The complainant’s evidence in the police interview

52. [52]
    The complainant was seven years and four months old when she participated in the police interview on 26 January 2019.
53. [53]
    The complainant told police about four occasions that the defendant put his “pointy finger”, up to the first knuckle of his index finger, in her “private parts” or “‘giney”.
54. [54]
    The complainant gave evidence that the offending occurred after her father moved up to Cairns, probably around the start of September.  The complainant said that she and CB and CM stayed at the defendant’s house until CF came down at the start of November.  The complainant told police they left for Cairns before CB’s birthday.
55. [55]
    The complainant told police that the offending happened at the defendant’s house, in his bedroom and outside in the car. 
56. [56]
    The complainant said that after each occasion the defendant told her to keep it a secret, and consequently she did not say anything until she told her mother when they got to Cairns.
57. [57]
    The complainant gave the following evidence about each count.

Count 1: Robot Movie

58. [58]
    The complainant said she and the defendant were alone in his bedroom watching her Robot movie DVD.  CB and CGM were in the kitchen, “colouring in or something”.  She and the defendant were on the bed that the defendant and CGM shared.  She was laying down on the bed, on her belly, facing the television and the defendant was on her left side.  The defendant was laying on his back.  She thought that it might have been morning when this happened and she thought that it was the weekend because her mother was at work.  Twice during the interview she described she was wearing a dress. She was also wearing underwear.
59. [59]
    The complainant said that she started to sit up and went out and asked CGM if she could have a water ice block.  When asked what happened after she had the water ice block, she said “Um, I went back into the, so we paused the movie and then we went back into the room.”  She says that she had closed the door.  She says that she was laying on her back and the movie started again.  Her and the defendant were both on top of the blankets on the bed.  The defendant told the complainant to pull her shorts, or skirt, and her undies to the side and “then he put his finger in my ‘giney and wiggled it”.  She had earlier described her “‘giney” as the part that she wees out of.  She gave evidence that the defendant “put his finger in my, the part where I wee out of”.  She described he put it in “until that line”.  She was not able to describe the word knuckle, but she was demonstrating the first knuckle on her index finger.  She did not know why the defendant stopped doing it.
60. [60]
    The complainant said that she did not feel anything.  She denied that it hurt.  She said that she told the defendant, “stop doing it pop”.  She initially told police the defendant did not say anything in response and continued doing it, but later said that he said “no”.  This is the only real internal inconsistency in the complainant’s evidence.  I consider it to be of little moment.  She estimated he did this for “only like one minute”.  She was asked “and then what happened afterwards?” and she replied “um, nothing”.

Count 2: In the car

61. [61]
    The defendant had an old white car with what the complainant described as a “gold” interior.  The defendant admitted that he took the complainant for a drive in it.  The complainant and the defendant both gave evidence that he was driving and she was in the passenger seat.  The complainant could not remember what she was wearing on this occasion.  The defendant was using one hand to drive and used his other hand to “put his finger in my ‘giney and he, he wiggled his finger”.  She said she told him “don’t do it pop”.  She said he did not listen and kept doing it.
62. [62]
    When the complainant was describing the incident in the car, she originally told the police the defendant was using his right hand to touch her.  However, it was clear from her reaction when asked to demonstrate how he was holding onto the steering wheel that she realised that she had mixed up her left and right hands and she appeared keen to correct that mistake by demonstrating the true position through use of her hands.   
63. [63]
    The complainant said that it happened in the car “only a few”, which she said meant three or two.  Later in the interviews, the following exchange occurred:

“SCON BANFORD: He didn’t do what you said.  Were there any other times in the car?

COMPLAINANT: No.  Just, well he did it a lot of times while we were going around in circles, but he did it the same way.

SCON BANFORD: Same way?

COMPLAINANT: Yes.

SCON BANFORD: Yep.  Was there any time that it was different that it happened in the car?  Can you tell me about another time that it ha-, happened in the, so we talked about one time in the day, tell me about another time in the car?

COMPLAINANT: There’s no other time in the car.

SCON BANFORD: There’s [INDISTINCT] or--

SCON ASHTON: So, did he do it the one time in, did you have the one time in the car, but he did it more than once that one time?

COMPLAINANT: Yes.

SCON ASHTON: Okay.  Whilst he was driving ‘round?

COMPLAINANT: Yes.”

64. [64]
    The complainant said that the car was not registered.  She remembered that CB did not want to go in the car, that it was day time, and the defendant had asked her and CB if they wanted to go for a drive in that car.

Count 3: Sorting the erasers

65. [65]
    The complainant gave evidence that count 3 happened in the defendant’s bedroom when they were sorting coloured novelty erasers, which the complainant calls “rubbers”.  The complainant gave evidence that the erasers were usually kept in the kitchen and she asked CGM if she could sort out the rubbers and she said yes.  The complainant said she took them into the defendant’s bedroom.  She said the defendant was on the bed.  She said that he asked her to move her undies aside and he put his finger in her “‘giney” and wiggled it.  She asked him to stop and he did.  She continued to sort out the erasers and he helped.  The door to the bedroom was open.  She said CGM was in the kitchen with her CB.  She says CM was at work.

Count 4: TV time

66. [66]
    The final time the complainant mentioned was when she was watching a television show called “All Hail King Julian” on ABC Me.  It was in the afternoon.  She says she was sitting on the bed and the defendant was to her left.  She said he used his right hand to “put his finger in my ‘giney and wiggled”.  She said she told him to stop and he did. 

The complainant’s evidence in Court

67. [67]
    The complainant was eight years and one month old when she gave her evidence on 24 October 2019 pursuant to s 21AK of the Evidence Act.
68. [68]
    In her evidence-in-chief, the complainant confirmed that she had watched the video of her interview with police recently.  When asked if she had made any mistakes when talking to the police, she said she made a mistake about the date of CB’s birthday.
69. [69]
    During her evidence-in-chief, the complainant also identified photographs depicting the relevant areas of the defendant’s house she had described and the car she was in during count 2. 
70. [70]
    It is apparent from exhibit 9 that you cannot see into the defendant and his wife’s bedroom unless you are standing in the kitchen.  The defendant accepted this during cross-examination.
71. [71]
    The complainant was cross-examined.  The following matters are evident from her cross-examination.
72. [72]
    The complainant was asked about where CGM would sit.  She identified the location and that the chair was able to swivel.  She said that CGM was a little bit slow on her feet, so would be in her special chair or in the kitchen.  The complainant agreed the floor did not squeak when you walked on it.  It was not suggested to her that you could not hear people walking about.
73. [73]
    It was suggested to the complainant that during the incident the subject of count 3, she had told police that CB and CGM were in the kitchen.  The following exchange occurred:

“You told the police that [CGM] and [CB] were in the kitchen?---Yeah.

So when you were on the bed and you were being touched, [CGM] and [CB] were just through that door in the kitchen area; is that right?--Yeah, they were in there.  They were actually in the dining room.

Actually where, sorry?--In the dining room.

Do you remember telling the police that they were in the kitchen?  This is the eraser time?---Yeah.”

74. [74]
    The complainant had described to police that they were colouring. The evidence is that activity happened at the dining table.  Given the proximity between the dining room and the kitchen, this difference is insignificant. 
75. [75]
    The complainant agreed that neither CB nor CGM came in when she told the defendant to stop.  This is not surprising.  A child saying those words is not evocative or concerning.  They are certainly not memorable. 
76. [76]
    In relation to count 2, the complainant agreed that the defendant was driving and committing the offence at the same time.  She said she remembers seeing CGM as they drove past the house.  CGM was on the veranda. 
77. [77]
    It was suggested to the complainant that she did not say anything to CGM before she left to move to Cairns, nor to her other grandparents.  She agreed.  She was not asked why she said nothing to them. 
78. [78]
    It was suggested to the complainant that the defendant never touched her around her vagina.  She promptly said “He did.”
79. [79]
    Notably, during the cross-examination, it was not suggested to the complainant that:

    1. (a)
       the defendant never watched movies alone with her in his bedroom, or that CGM or CB were always with them;
    2. (b)
       CM never worked on Saturdays while they stayed with the defendant;
    3. (c)
       the complainant never played with erasers in the defendant’s bedroom, and in fact was not allowed to; and
    4. (d)
       the complainant never watched a robot movie at the defendant’s home.

The other evidence

CB’s evidence

80. [80]
    CB was 9 years of age at the time he spoke to police.  He told police that the defendant had a car that looked like a white Triton.  He said the defendant asked the complainant and him if they wanted to go for a drive.  He said that the complainant said yes and he said no.  CB said the defendant took the complainant and Titan (the dog) in the car.  CB watched from the kitchen window.  He thought that happened one afternoon after school.  CB did not go with them because he thought it was boring as they only drove around the house and around the back of the shed.
81. [81]
    CB told Detective Senior Constable Ashton that at the house he would colour in things that CGM would print off the computer.  He would also play on the iPad or phone with CGM.^[10]  CB would play outside, running around the yard, playing with the dog and playing trucks and cars if he had them here.  He would watch television and fight on the bed with the defendant.
82. [82]
    CB said he would usually watch the television in the lounge room because it was bigger.  When he was asked, “Where did [the complainant] used to watch TV?” he replied “in [CGM] and [the defendant’s] room most of the time” and that he did not really like watching the shows that she liked to watch.  He told Detective Senior Constable Ashton “She would rather use the lounge room but she always uses [the defendant’s. So she can play with him.”  He said that he would watch the news in the bedroom with the defendant. The complainant would be in there but not watching the news.  CGM would be either cooking dinner or playing on her phone or iPad at the dining table.  He confirmed they would watch DVDs and that the complainant had one with cartoon robots in it.  He said it was in a box in the shed.  CB said that she would watch her movies on CGM and the defendant’s television.  CB said he did not want to watch those movies and the defendant would watch them with the complainant.  He said CGM would go in and ask if the complainant wanted something to eat.
83. [83]
    CB also gave evidence that CM got home from work between 5.30 and 6.00 pm.  He said CM or the defendant would take him to school, and CGM or the defendant would pick him up.
84. [84]
    During his pre-recorded evidence, CB told the court he had also gone onto the patio while the defendant was driving the complainant around in the white car.  He showed where this was on a photograph (Exhibit 15).  His cross examination was limited to confirming that he was both in the kitchen, and on the patio, while this occurred.
85. [85]
    During cross examination, it was never suggested to CB that:

    1. (a)
       he was wrong about his observations of the defendant watching movies with the complainant in his bedroom, or that he would watch these movies in the bedroom;
    2. (b)
       he or CGM were always in the room when that occurred; or
    3. (c)
       he knew what complaints the complainant had made about the defendant, or the circumstances surrounding them.

CM’s evidence

86. [86]
    CM gave evidence as to her children’s date of births and where they went to school.  She explained that they moved out of their home, into the defendant’s, on 29 August 2018.  That same day CF travelled to Cairns for work.
87. [87]
    CM said that she worked during the week, and the occasional Saturday.  She could not remember what Saturdays she worked while they stayed with the defendant, but thought that she had worked some as she was trying to earn extra money at that time.  During the week she would return home between 5.30 pm and 6.00 pm.
88. [88]
    During the first week they stayed at the defendant’s, CM said she also spent time at their previous home cleaning and packing.  If she was at work or their previous home, and the children were not at school, they would be with the defendant and CGM.
89. [89]
    She described staying a fortnight each between the defendant and CGM’s house and the home of her parents.  The children spent the first week of the school holidays with the defendant and CGM while she worked.
90. [90]
    CM said this about the activities she had cause to observe;

“Can you tell us what those would be?‑‑‑Yeah.  So a lot of the time [the complainant] would lay in bed with [the defendant], and [CB] as well.  Sometimes – and watch TV, because they had a TV up on the cupboard in the bedroom, so they watched TV and movies and stuff like that.  And then they would colour-in out on the dining table and things like that with [CGM] and [the defendant] would often be there, yeah, as well.”

91. [91]
    Later she said:

“When you would come home, whereabouts in the house would [CGM], [the defendant] and the children be?‑‑‑Often, [the defendant] would be with [the complainant] on the bed and [CB], but depending because he liked to – he didn’t like to sit still for long.  So – and [CGM] would normally be out on the computer desk, which was in the next room.”

92. [92]
    CM said they moved out and left for Cairns on 6 November 2018, after CF returned on 2 November 2018.  After they returned to Cairns, the complainant told her of the offending.  She said the conversation that she had with the complainant about the defendant was not long before Christmas in 2018.  She said:

“Yes, I was putting [the complainant] to bed and – sorry.  So – sorry.  I haven’t even started.  So she – I was giving her kisses, just like on our arms and – just, like, giving her general kisses, and she said, “You kiss me everywhere, Mum,” and I said, “Yes, but not on your private parts,” and she said – I said, “No one should touch your private parts because they’re your own,” and she said, “Poppy does.”  And I said, like, “What,” you know.  …  And she said, “Poppy puts his finger there and tickles me.””

93. [93]
    CM said there was more that the complainant told her but she does not remember as she wanted to get out of the room before she broke down.  CM said that when the complainant told her the above matters, she pointed to her vagina.
94. [94]
    CM said that she spoke to CF about the matter that night and that she spoke to the complainant about the matter again the next morning.  She said that CF was present for that further conversation.  She said she asked the complainant if her underpants were on and the complainant said that they were.

CF’s evidence

95. [95]
    CF gave evidence that he moved to Cairns on 29 August 2018 for the purpose of work.  He remained there until he flew down on 2 November 2018, with he and his family returning to Cairns on 8 November 2018.
96. [96]
    Prior to his move he gave the following evidence about observations at the defendant’s home:

“All right.  Did you ever see [CB] or [the complainant] using the one in your Mum and Dad’s room?‑‑‑Yeah, all the time.

Would [CGM] or [the defendant] ever be in there with the kids while they were using that TV?‑‑‑Yeah.  Yep.

Together or individually?‑‑‑Depends, yeah, most of the time Dad would be in there watching movies or watching TV and that.  Occasionally, Mum would go in there and lay on the bed as well with the kids and – yeah.

All right.  And what about [the complainant], would she ever go in there when your Dad was in there on the bed?‑‑‑Yep.”

97. [97]
    CF said he became aware of the offending following a conversation with his wife.  CF gave evidence that about a week before Christmas, and a few days after CM had a conversation with him about something that the complainant told her, CF spoke to the complainant.  He said that CM and CB were out shopping and the complainant and he were playing in her bedroom.  CF gave the following evidence:

“And yeah, we had the conversation where I said, “Look, we need to talk about what you told Mummy, what Poppy did;  and she said, “I don’t want to talk about it, Dad.”  And I said, “Ah, look I need to know what Poppy did, you know, like” – because we call Dad “Poppy” – and she said, “Poppy touched me, Dad.”  And I said, “Where did he touch you, darling?” And she said, “I don’t want to talk about it, Dad.”  And I said, “That’s okay, darling.  But, you know, I need to know what’s going on with, you know – what happened, you know.  And she said, “He touched – touched me down here” and pointed to her – her private parts.  And so, “Okay.  That’s not good.”  And I said, “Did he touch you on the inside of your undies, [the complainant], or the outside?”  And she said, “On the inside, Daddy.”  I said, “Can you show me what Poppy did?”  She said, “I don’t want to, Daddy.”  And I said, “Well, I need to know.”  You know, like, the look of fear in her face, and stuff, but I – I said, “I need to know what Poppy did, you know.  Did he touch you on the inside or the outside of the undies?” So – and then she hopped up on her knees, she said, “Poppy said, ‘Pull your undies aside’ and rubbed his finger down” – like, she rubbed her finger down her vagina, like Poppy did.  And I said, “Did he touch you on the inside, or it was just on the outside?”  She said, “No, just on the outside;  rub and tickle, Dad.”  And, “So why didn’t you yell out to Nanna if you didn’t like it?  Or anyone?”  She said it just made her feel weird and she didn’t know what to do.  And then I – then I said something else to – I can’t remember what I said to her, and she said, “I don’t want to talk about it any more, dad.”  I said, “That’s okay, darling,” and we just kept playing.”

98. [98]
    CF also said that he spoke to the complainant again about a week or so later.  He said that the complainant told him the exact same thing on that occasion.

CGM’s evidence

99. [99]
    CGM gave evidence that the defendant was, and remains, her husband.  The defendant confirmed they have been married for 45 years.  The flavour of her evidence was to suggest that the defendant was never alone with the complainant, except while they were briefly in the car together and during which time she kept them within eyesight.
100. [100]
     CGM’s evidence about the defendant and complainant being alone was:

“Did [the defendant] ever spend time in the bedroom with [the complainant] watching TV?--- Probably, if I went to the toilet or something, but not any other time, as far as I know.”

101. [101]
     I do not accept that evidence.  It is not consistent with the evidence of CB to which I have referred already.  It is also not consistent with the ultimate concessions made by the defendant, nor with the evidence of CB.
102. [102]
     Further, I do not accept it as I have reservations about the reliability of CGM’s evidence generally.  I am not suggesting that she was deliberately dishonest in her evidence, but she struck me as an unreliable historian and as someone who was not particularly observant of the actions of others in the house.  For example, there were inconsistencies between CGM’s evidence and that of both the defendant and CB about the use of the lounge room television.  CGM said it was not used, as far as she knew.  As I have already noted, CB gave evidence that he used it.  The defendant also said he watched television with CB in the lounge room, or that CB would go use the lounge room television if he wanted to watch something different to the complainant. 
103. [103]
     CGM also gave evidence that she and the defendant were keen to spend time with their grandchildren, but suggested that while the complainant was watching videos, CB was left to his own devices for what must have been extended periods.  This strikes me as odd.

Detective Senior Constable Ashton’s evidence

104. [104]
     Detective Senior Constable Ashton gave evidence about the dates in which he interviewed the complainant and CB and the date the photographs were taken at the defendant’s home.

Preliminary complaint evidence

105. [105]
     The evidence of CM and CF about what the complainant told them about the alleged sexual offending is preliminary compliant evidence.  I do not regard the evidence as proof of what actually happened.  It is not evidence of the truth of the out of court statements.  It can only be used by me as it relates to the complainant’s credibility. 
106. [106]
     The defence submits that CM’s evidence of the preliminary complaint given to her is relatively vague.  The defence says the limited details given are inconsistent with the complainant’s later interview with police as there was no complaint about penetration or putting his finger inside.  I do not regard that as an inconsistency that reflects poorly on the complainant’s credibility given CM gave evidence that she was told other things but could not recall them because she was upset at the time and was trying to leave the complainant’s bedroom before she broke down.  I accept CM’s evidence in that regard.
107. [107]
     The defence submits that the preliminary complaint given to CF is also inconsistent with the account she later gave to police.  CF says he asked the complainant, “Did he touch you on the inside, or it was just on the outside?” and that the complainant’s response was: “No, just on the outside; rub and tickle, Dad.”  Defence counsel submits that this demonstrates an inconsistency as there was no allegation of penetration given to CF. 
108. [108]
     During her cross-examination, the exchange with defence counsel was as follows:

“Do you remember that after you told your um that your dad asked you some questions about what you say Pop did?---Yeah.

And do you remember your dad asked you, “Did Pop put his finger inside?” Where he was talking about - - -?---Yeah.

- - - your vagina? Do you remember him asking that question?---Yeah.

And you remember that you replied, “No.  He rubbed and tickled it”?---Yeah.

Is that what you told your dad?--- Yeah.”

109. [109]
     The complainant was questioned about this during re-examination.  The following exchange occurred:

“So, [the complainant], you told police that your Pop put his finger inside your ginny and wiggled it around? ---Yeah.

And you’ve told – and then you just said to – to David – to Mr Jones, that you told your dad that he just touched your ginny? ---Yeah.

Which one actually happened?---The one that he put his finger in my vagina and wiggled it.

I’m sorry, what was that?--- The one that he put his finger in my vagina and wiggled it.”

110. [110]
     Whether these two accounts are, in fact, inconsistent, was not explored with the complainant.  She was not asked to accept that both statements could not be true.  She was not asked to explain what she thought “inside” meant.  The complainant was also not asked to explain why she said what she did to her father. 
111. [111]
     Assuming there is an inconsistency, the inconsistency does not cause me to doubt the complainant’s credibility given her evidence in re-examination.  At that time, she had no hesitation when answering what “actually happened”. 
112. [112]
     The defence submits that it is surprising that there was not a preliminary complaint to CGM.  I do not find this surprising given her evidence about the brief nature of the incident and her description of how it affected her, i.e. it made her feel “weird” but was not said to involve pain.  It is also understandable that the disclosure only occurred when it did given the defendant had told the complainant to keep it secret and having regard to the organic circumstances in which the disclosure was ultimately made.

Has the prosecution proved its case on each count beyond reasonable doubt?

113. [113]
     Both parties identified that the prosecution case for each of the charges, and each of the alternative charges, depends on me accepting the evidence of the complainant to be credible and reliable.  It is common ground that there is no other evidence that is capable of proving the charges.

The defence submissions about the complainant’s evidence

Count 1: watching a “robot movie” in the bedroom

114. [114]
     The defence submits that the complainant’s evidence about count 1 is not reliable having regard to nine matters.
115. [115]
     The first is the evidence of CB that whilst the complainant did own a movie about robots, this movie was in her bundle of DVDs which was packed away in a storage box and that he never saw that movie being played at the defendant’s house.  This does not cause me to doubt the complainant’s evidence.  It is conceivable that CB did not know the DVD about the robots was in the house.  It is apparent from his evidence that he was not always in the defendant’s bedroom when the complainant and the defendant were watching movies.
116. [116]
     The second is the evidence of CGM that they did not own a movie about robots, nor did she ever see the complainant watching a movie about robots.  CGM only ever saw the complainant with her own barbie movies in the house.  I do not regard the evidence of CGM to be reliable for the reasons provided in paragraphs [99] to [101] above.
117. [117]
     The third matter raised by defence is the evidence of the defendant that he never saw a DVD about robots in the house.  I do not accept his evidence for the reasons provided in paragraphs [42] to [51] above.
118. [118]
     Fourth, the defence submits that the complainant said that this occurred on a Saturday morning while her mother was at work.  It notes that CGM definitively said that they never cared for the children on a Saturday and that the defendant confirms this.  The defence submits CM could not say either way whether the children were ever there on a Saturday or not.  I do not accept these submissions.  The evidence of the complainant was only that she “thought” it was a Saturday.  She was not definitive about that.  As I have already noted, I do not regard the evidence of CGM or the defendant to be reliable.  The evidence of CM does not detract from the credibility of the complainant on this issue.
119. [119]
     Fifth, the defence submits that the complainant was inconsistent with what she was wearing at the time.  It submits that initially the complainant said that she couldn’t recall what she was wearing at the time.  The defence submits that at another stage of her interview she said she was wearing shorts, at another point she said she was wearing a skirt, and later she said it was a dress.  She also said later in her interview that she was wearing underwear which was aqua in colour and had love hearts on it. 
120. [120]
     I do not accept the submission that the complainant “initially” said she could not recall what she was wearing.  Even the footnotes in the defence submissions indicate that this was after the evidence where the defence submits that she said she was wearing shorts.  As for the evidence that she was wearing “shorts”, I do not consider that the transcript is accurate in that regard.  The transcript records the relevant answer as “I was pulling my shorts on my dress that way.”  The complainant’s evidence was very quiet at that point and the word she said prior to her dress is hard to hear.  It is possible that she said the word “skirt”.  This is consistent with her later interrupting the police officer to correct him that she had said her skirt not her shorts.  Her answer that she did not remember what she was wearing is consistent with her manner of responding to questions does not cause me particular concern in the context of the conversation overall.  The complainant had already said what she was wearing and it seemed to me that she could not otherwise provide further details such as which of her dresses (unlike the situation with her underwear where she gave details of colour and pattern). 
121. [121]
     Sixth, at one stage during her interview, the complainant said that when the allegation occurred, she said, “stop doing it pop”.  The defence submits that later in her interview, the complainant said that she didn’t say anything at all at the time.  Defence counsel did not identify the evidence to which it refers.
122. [122]
     Seventh, the defence refers to evidence of the complainant that the defendant did not say anything to her at the time and then to her evidence a short time later when she was asked what happened afterwards and she said, “nothing”.  The defence also refers to later in her interview when the complainant said that after every occasion, the defendant told her to keep it a secret.  These matters do not cause me to doubt the complainant’s reliability.  The context of the questioning is slightly different on each occasion such that the differences in the answers are understandable, particularly given the age of the complainant.  Taking the complainant’s evidence as a whole, and having regard to the surrounding context when each answer was given, it struck me that the complainant was explaining that she told the defendant to stop, he did not immediately say anything in response, nothing of note happened afterwards in that she just kept watching the movie,^[11] but at some point the defendant told her to keep it a secret.
123. [123]
     The eighth matter the defence relies on is the inconsistency between the complainant’s evidence that the door was closed and that of CGM that she never saw the door closed or noticed the complainant and the defendant alone together in the bedroom with the door closed.  This does not cause me to doubt the complainant’s evidence.  The door was not visible from all locations in the house.  It may be that CGM was not in a position to see the doorway at the relevant time, particularly as you could not see into the bedroom from the dining table.  Further, as I have already said, I do not regard CGM’s evidence as reliable.
124. [124]
     Finally, the defence relies on the fact that the floors were made of tiles and vinyl and did not make any squeaking noises such as to warn the approach of another.  This does not cause me to doubt the complainant’s evidence. 

Count 2: In car driving around the yard

125. [125]
     The defence points to three matters that it says make the complainant’s evidence about count 2 unreliable.
126. [126]
     First, the defence submits that the allegation in the Pajero appears to be implausible to a degree and does not appear realistic.  That is because it says it would be difficult for the defendant to operate a defective vehicle with one hand whilst driving through the paddock and to also reach across with his right hand and insert a finger inside the complainant’s vagina.  I do not accept this submission.  Human experience suggests that, having regard to the speed and location of the drive and the defendant’s extensive driving experience, this is something that was not implausible.^[12]  
127. [127]
     Second, the defence submits that the complainant’s account of events is implausible.  It says the complainant initially said that the defendant was driving with his left hand and touching her with his right hand.  The car was not stationary.  The defendant was still driving while this was occurring.  To add to the difficulty, there was a large dog with his head resting between them at the time as well.  I do not regard this as an accurate summary of the evidence.  It ignores the demonstration given by the complainant of the actions made by the defendant while driving and the matters referred to in paragraph [62] above.

128. [128]
     Third, the defence submits that the account given by the complainant also appears implausible in that it is inherently unlikely that the defendant would commit such an offence whilst CGM and CB were watching.  This matter does not cause me doubt as the photographs of the car^[13] suggest that the defendant could have performed that act without observation from those outside the car.  Further, I find that the vehicle was not always in sight of CGM and CB. 
129. [129]
     I accept that the ride was of very short duration.  On that basis, I find that the period of the offending was also of very short duration.  It was likely for only a fleeting moment.

Count 3: sorting the erasers in the bedroom

130. [130]
     The defence points to three matters that it says make the complainant’s evidence about count 3 unreliable.
131. [131]
     First, despite the complainant telling the defendant to stop, and CGM and CB being in close vicinity, CGM specifically says that she never heard the complainant say “stop”.  This is something that CGM said she would have remembered.  CT’s evidence also does not give any corroboration or support for this allegation. 
132. [132]
     Second, despite the offence occurring with the door open, and facing directly into the kitchen where there were two witnesses present at the time, no one saw anything which could support the complainant’s allegation.  At no time did CGM witness any inappropriate behaviour from the defendant towards the complainant. 

133. [133]
     These matters do not cause me to doubt the complainant’s evidence.  The words said are not such that one would necessarily expect them to draw particular attention.  There is no suggestion that the word was yelled by the complainant.  She was softly spoken during her evidence.  In any event, as I noted in paragraph [75] above, a child saying “stop” is not evocative or concerning.  Further, there was no apparent reason for CGM or CB to be unusually attentive or eagle eyed to the activities of the defendant and the complainant. 

134. [134]
     Third, the defence relies on the evidence of CGM that the erasers were contained in a “surprise box” of things in the house.  She only ever saw the complainant with those rubbers on one occasion when she was sitting at the kitchen table with the complainant and they were using them for counting.  The defence also relies on the evidence of the defendant that he never played with the erasers in the bedroom with the complainant.  He only ever saw the complainant playing with the erasers at the dining table.  As I have already said, I do not consider the evidence of CGM and the defendant to be reliable.

Count 4: watching television in the bedroom

135. [135]
     The defence points to two particular matters that it says make the complainant’s evidence about count 4 unreliable.
136. [136]
     First, the defence notes that the complainant said that this incident occurred in the afternoon.  It also notes that CGM said that generally when the complainant was watching television of an afternoon on the school holidays, CGM would also be in the bedroom with her having a rest at the same time.  As I have already said, I do not consider the evidence of CGM and the defendant to be reliable.
137. [137]
     Second, the defence again relies on the absence of corroboration from CGM and CB about the fact that the complainant again said “stop” to the defendant with the door open.  For the reasons provided in paragraph [133] above, this does not cause me to doubt the complainant’s evidence.

General comments about the complainant’s evidence

138. [138]
     The defence points to five matters that it says make the complainant’s evidence in general unreliable.
139. [139]
     First, the complainant told police that she could not remember the first time it happened or the last time it happened.  She was asked how many times it happened and the complainant said “twenty”.  After giving details about four occasions where she said things occurred, she was asked at the end of the interview whether there were any other times in the defendant’s room and she said “no”.  The complainant was then asked whether there were any other times anywhere else inside the house and the complainant said, “no”.  She also said there were no other times in the car. 
140. [140]
     This evidence does not cause me to doubt the complainant.  Her estimation is consistent with the evidence referred in paragraph [63] above, where she gave evidence of more than one time within a single occasion.
141. [141]
     Second, the defence notes that the complainant told police that on each occasion the defendant put his finger inside her vagina and wiggled it around.  Defence counsel submits that her evidence as to penetration is not consistent with what she previously told her mother and father (i.e. that he did not put his finger inside her vagina, but rather “rubbed” and “tickled” her vagina).  I do not accept there are inherent inconsistencies with this evidence given the age of the complainant and the difficulties that would likely present in her describing actions of this type.  The description is consistent with a penetration of her vulva, as opposed to her vagina, by the defendant’s finger which he uses to rub and tickle the area by wiggling it around.  This is consistent with her description of it feeling “weird”, and the absence of any suggestion of it hurting her. 
142. [142]
     Third, the defence notes that this was not the first occasion that the complainant had stayed with the defendant and CGM.  The defendant had cared for the complainant on occasions since she was a young child.  It notes there is no evidence of any grooming or gradual escalation of offending over time.  The offending on the complainant’s version was committed with the risk of at least two other people walking into the room at any stage, or hearing things said inside the room.  The defence says such conduct is completely incompatible with self-preservation.  I put little store in these matters.  With any offending, there will always be a first instance.
143. [143]
     Fourth, the defence notes that the complainant agreed in cross-examination that she knew that the allegation was something that would get the defendant into trouble.  The failure or inability on the part of defence to prove a motive to lie does not establish that 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. 

144. [144]
     In this case, the mere absence of evidence that a complainant has a motive to lie does not prove the non-existence of any motive to fabricate an allegation.  The mere absence of proof is neutral on the question of the existence of a motive to lie.  The absence of motive to lie on the part of the complainant does not necessarily mean that I should regard the complainant as truthful.  It remains necessary for me to satisfy myself that the complainant is truthful.

145. [145]
     Finally, the defence relies on the evidence at the end of the cross-examination of the complainant when it was put to the complainant that the allegations did not occur.  The defence says initially the complainant did not give a response to this question.  The question was asked a second time to ensure that the complainant understood the question.  The defence submits that the complainant’s response of “he did” was unconvincing and said with hesitation in her voice. 
146. [146]
     These submissions do not accord with my impression of this evidence.  The “first question” posed by the defence counsel was:

“[the complainant], I know the prosecutor’s spoken to you about this, and please tell me if you don’t understand this question, but, [the complainant], I’m saying that Pop never touched you in the way you told police.”

147. [147]
     The complainant was a child of just eight years of age.  Her nature was such that she did not tend to volunteer information, or make assumptions, but took statements literally.  It struck me that she did not understand this to be a question.
148. [148]
     The defence counsel appeared to appreciate the complainant’s difficulty in comprehending his “question” so he simplified it.  He said:

“I’ll say it a different way, okay?  [the complainant], I’m saying that Pop never touched you around your vagina?”

149. [149]
     The complainant then immediately answered, “He did”.  I did not find her answer to be either unconvincing or to be said with hesitation in her voice.
150. [150]
     Overall, none of the matters raised by the defence cause me to have a reasonable doubt about the allegations or the truthfulness of the complainant’s evidence in relation to any of the counts. 

My findings about the complainant’s evidence

151. [151]
     The complainant presented as careful and considered.  She did not rush to volunteer information, but she was also not just going along with the flow of the conversation.  For example, she corrected the police officer when he suggested that she had referred to her shorts.  She interrupted him to correct his statement.  She said it was her skirt.  That correction was consistent with her earlier evidence she was wearing a dress and pulled aside the skirt on her dress. 

152. [152]
     The complainant also presented as a child commensurate with her age.  A simple example of that was when police asked her why she was at the defendant’s house.  She responded “cause at our house, someone was going to get to live there”.  She is clearly talking about her parents renting out their home and the tenants moving in.      
153. [153]
     The complainant presented as a person who was relaying her actual memories of events.  Her evidence included details that would be unlikely to come from a young girl unless the offences had happened to her, such as that the defendant was rubbing the inside of her “‘giney” with his “pointy finger” and her demonstration of pulling her skirt and underwear to the side for this to occur.
154. [154]
     The complainant did not guess at answers.  She was asked what lead up to the offending, and she said she did not know.  This is not surprising, but it reinforces my impression of her as someone who was not rushing to volunteer information, not guessing at answers and otherwise only relaying her actual memories.  Other examples of her evidence that gave me that impression was that she told police she could not specifically remember the first or last time something happened, but was clear in recalling four occasions that she could remember.  The rich detail and cogency of the complainant’s evidence about what surrounded the offending, and which were generally supported by her brother who presented as an honest witness, demonstrate the truthfulness of her accounts in that regard. 
155. [155]
     The complainant did not present as malicious, defensive or confused.  When asked to describe the defendant she told police “He’s pretty old and he had a heart operation. We play a lot, normally watch movies and play lego and play blocks”.  When she was describing count 1, she was firm in telling police that she was the one to shut the bedroom door.  She did not describe any violence or threats from the defendant.  That fits with the tenor of their relationship.  It also reconciles with her lack of immediate complaint.  CF gave evidence that he asked “So why didn’t you yell out to Nanna if you didn’t like it?  Or anyone?”  She said it just made her feel weird and she didn’t know what to do.”  That is a fair response that sits comfortably with their relationship and her age. 
156. [156]
     The complainant was reliable in her evidence as to when they stayed at the defendant’s home, the arrangements between both sets of grandparents, and the description of the house.  Her evidence in that regard was consistent with that of the other witnesses.  She was careful in the pre-record to indicate that, having watched her interview with police, she had told them the wrong date of CB’s birthday and corrected it. 
157. [157]
     The complainant’s evidence of the surrounding circumstances of the offending, as they related to opportunity, was consistent with the evidence of CB.  It was also generally supported by the evidence of her parents about her relationship with the defendant and about the activities they would engage in.
158. [158]
     The complainant gave evidence that the defendant asked her to pull her own underwear to the side.  The complainant was consistent in telling CF that this was a part of the offending.  She also told CM that her underwear was on at the time.
159. [159]
     For the reasons provided above, I am satisfied that the complainant’s evidence of the alleged offending is credible and reliable.

Conclusion

160. [160]
     For the reasons provided above, I am persuaded, beyond reasonable doubt, that the defendant penetrated the complainant’s vulva or vagina with his finger on each of the four occasions described by her.  It follows the defendant should be found guilty of each of the four counts of rape.

Verdicts

161. [161]
     In relation to count 1, a charge of rape, I find the defendant guilty.
162. [162]
     In relation to count 2, a charge of rape, I find the defendant guilty.
163. [163]
     In relation to count 3, a charge of rape, I find the defendant guilty.
164. [164]
     In relation to count 4, a charge of rape, I find the defendant guilty.