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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
R v Perry (a pseudonym)  QDC 102
PERRY (a pseudonym)
455 of 2020
Judge only trial
District Court at Southport
11 June 2021
27 April 2021, 28 April 2021, and 29 April 2021
Judge Jackson QC
Count one- maintaining a sexual relationship with a child: not guilty
Count two- rape: not guilty
CRIMINAL LAW – JUDGE ONLY TRIAL – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES –VERDICT – where the defendant is charged with one count of maintaining a sexual relationship with a child and one count of rape – where the complainant is the defendant’s biological daughter – where there was a serious episode of domestic violence by the defendant against the complainant’s mother two days prior to the complainant’s disclosure – where, on the day of the complainant’s disclosure, her mother found out about the defendant’s infidelity – where there are suggestions of coaching – where the complainant could not recall the offending at the s 21AK hearing – where there is a need to scrutinize the complainant’s evidence with care –whether the complainant’s evidence is reliable – whether numerous witnesses had a motive to lie – whether the defendant is guilty or not guilty of the charges
Criminal Code Act 1899 (Qld), s 615B, s 615C
Evidence Act 1977 (Qld), s 21AK, s 93A, s 102, Division 4
R v Allen (a pseudonym)  QCA 233, cited
R v LAS  QCA 65, cited
R v Pentland  QSC 231, cited
J Guy for the Crown
S Kissick for the Defendant
Office of the Director of Public Prosecutions (Qld) for the Crown
Karsas Lawyers for the Defendant
- This is a judge only trial. The application for the trial to be conducted by judge alone was granted on 18 December 2020. Section 615B of the Criminal Code Act 1899 (Qld) (“Criminal Code”) provides that so far as is practicable the same principles of law and procedure are to be applied as would the case in a jury trial. Section 615C (3) of the Criminal Code requires these reasons to include the principles of law that I have applied as well as the findings of fact on which I have relied.
- The defendant is charged with two offences to which he has pleaded not guilty:
- (a)Count one: that between the thirtieth day of April 2018 and the second day of March 2019 at Gold Coast in the State of Queensland, [the defendant] being an adult maintained an unlawful sexual relationship with [the complainant] a child under 16 years.
- (b)Count two: that on the first day of March 2019 at Gold Coast in the State of Queensland, [the defendant] raped [the complainant].
- The prosecution has particularised count one as:
Maintaining a sexual relationship with a child
In addition to the particulars for Count 2 the defendant:
- The prosecution has particularised count two as:
The defendant inserted his penis into the complainant’s anus.
Attempted rape (pursuant to s 583(1) of the Criminal Code)
The defendant attempted to insert his penis into the complainant’s anus
- The prosecution case as to count two was put on the basis that if I was not satisfied that the defendant had penetrated the complainant’s anus to any extent I might be satisfied that he attempted to do so and had thus committed the offence of attempted rape.
Elements of the offences
- In order to prove the offence of maintaining a sexual relationship with a child, count one, the prosecution must satisfy me that:
- (a)The defendant was an adult, that is, a person over 18 years of age.
There is no dispute that the defendant was over the age of 18.
- (b)The complainant was, at the time, a child under 16 years of age.
There is no dispute that at the time the complainant was under the age of 16.
- (c)The defendant maintained an unlawful sexual relationship with the complainant.
An unlawful sexual relationship is a relationship that involves more than one unlawful sexual act over any period. “Unlawful sexual act” means an act that constitutes an offence of a sexual nature which is not authorised, justified or excused by law. 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.
The Crown relies upon sexual acts about which the complainant was not specific as to the times or circumstances under which the acts occurred in addition to the rape allegation as to which she was specific.
I must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship with the child involving unlawful sexual acts existed.
- In order to prove the offence of rape, count two, the prosecution must satisfy me that:
- (a)The defendant had carnal knowledge of the complainant.
The prosecution must prove penetration of the complainant’s anus to any extent by the defendant’s penis.
- (b)Without her consent.
A child under the age of 12 years is incapable of giving consent. There is no dispute that at the time the complainant was under the age of 12.
- In order to prove the offence of attempted rape, an alternative to count two, the prosecution must satisfy me that:
- (a)The defendant attempted to have carnal knowledge of the complainant by penetration of her anus by his penis.
An “attempt” is established where a defendant intends to commit the offence and engaged in some action with that purpose.
- (b)Without her consent.
A child under the age of 12 years is incapable of giving consent. There is no dispute that at the time the complainant was under the age of 12.
- My role is to determine whether the defendant is guilty or not guilty of each of the offences.
- In this judgment, pseudonyms have been used to identify the relevant family members.
- I will now set out the factual background, then the directions I have given myself, followed by a summary of the evidence and rival submissions and my comments on each. I have italicised my comments for ease of reference.
- The complainant was aged between six and seven years of age at the time of the alleged offending and is the defendant’s biological daughter. The complainant’s mother is Alanna. Alanna and the defendant have three children together: the complainant, Lucas who was aged five to six at the time and Baxter who was aged two to three. The defendant and Alanna were in a relationship for about nine years. Alanna also has a son, Jordan, from a previous relationship and he was aged 12 at the time. The defendant also has a son, Leo, from a previous relationship who was seven to eight at the relevant times. Leo’s biological mother is Diana. All of these children lived with the defendant and Alanna. Alanna’s mother and the complainant’s maternal grandmother is Fern. Fern lived with her oldest daughter Katherine. The defendant’s mother and the complainant’s paternal grandmother is Violet. Leo has since the events described elsewhere in this judgment lived with his maternal grandmother, Julia. The offending is said to have occurred at the family home situated at Upper Coomera (“the house”).
- On 9 March 2019 there was a serious episode of domestic violence at the house. Alanna came home from work and she and the defendant argued. That escalated into the defendant smashing Alanna’s phone and hitting her numerous times to the head and arms. He then poured accelerant of some kind in the lounge room and over her car. He set her car alight. Some of the children saw this, including the complainant. The complainant described that the defendant: “wanted to kill mum and take care of us kids”. She also described the defendant dragging her mother across the floor by her hair and smashing her phone and punching her in the head, arms and body. The complainant said that she was screaming “dad friggin stop” really loudly and that she was “crying so bad” because she loves her mother and she did not want her to die.
- After the defendant set Alanna’s car alight, he left the house. He was arrested by police on 11 March 2019, taken into custody and charged with the conduct relating to that domestic violence episode. He subsequently pleaded guilty to the offences arising from that conduct.
- In R v Pentland  QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:
“ The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the defendant.
 In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.
 The issues that exist must be resolved by taking account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
 The evidence which 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 which 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 at the committal, and my assessment of other evidence including documents and other material.
 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. 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’ evidence. I may accept parts of it if I think it is worthy of acceptance.
 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.
 I also bear in mind that 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 they heard or saw. ...”
- For the prosecution to discharge its burden of proving the guilt of the defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged. I have set out the elements in paragraphs  to  above.
- It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences. If I am left with a reasonable doubt about guilt, I must find the defendant not guilty. If I am not left with any such doubt, I must find the defendant guilty.
- Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the balance of probabilities. That is, the relevant matter must be proved to be more likely than not.
- In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the defendant beyond reasonable doubt.
Principles specifically relevant
Section 93A statement
- The complainant, her older half-brother, Jordan, her half-brother, Leo and her brother Lucas are each children. Their evidence included the statements given to police and admitted pursuant to s 93A of the Evidence Act 1977 (Qld) (“Evidence Act”). The recordings were played during the trial. I am conscious and take into account that the presenting of children’s evidence in this way comprises the routine practice of the Court. This measure is adopted in every case involving children such as the complainant and these other witnesses.
- The recordings were tendered, and I have also been provided with transcripts which were marked for identification. I have had access to these recordings and the transcripts. I keep in mind that the transcripts are someone else’s impression of what was said during the recorded interviews. They are not evidence and are merely an aid. It is what I heard on the recordings that matters, not what is in the transcripts. Having said that, there was no suggestion as to any material inaccuracies in the transcripts. These comments apply equally to other relevant transcripts.
- I do have other witnesses’ evidence in recorded or written form, in that I have the defendant’s police interview recording, its transcript and the trial transcript. I have nonetheless been careful not to place undue weight on the complainant’s evidence because I would be able to hear and read it more than once.
- The complainant, Leo and Jordan gave evidence which was pre-recorded under Division 4A of the Evidence Act. I take into account the usual directions applying to each child that:
- a)at the time the child gave evidence, he or she was in a room which was separate from the courtroom;
- b)the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
- c)at the time the child gave evidence there was a support person sitting in the room with him or her, and no other person;
- d)whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
- e)at the time, the defendant was present in the courtroom but was so positioned that the child could not see the defendant on the monitor, or at all;
- f)the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
- g)the courtroom was closed and all non-essential persons were excluded while the pre-recorded evidence of the child was played; and
- h)all of these measures, used for the taking and showing of the children’s evidence, are the routine practices of the court for taking and showing evidence of children in a case such as this and I must not draw any inference as to the defendant’s guilt because these measures were used. The probative value of the evidence is not increased or decreased because these measures were used, and accordingly, the evidence is not to be given any greater or lesser weight because these routine measures were used.
- I was not told of editing of any of the recordings, but if there were any, I would not draw any inference adverse to the defendant as a result of this.
Record of interview / defendant giving evidence
- As to the defendant’s recorded police interview, there is no real dispute as to the contents. I bear in mind the above comments as to transcripts.
- In this case the defendant gave evidence. He did not have to give evidence, or call other people to give evidence on his behalf, or otherwise produce evidence. That he did so does not mean that he assumed a responsibility of proving his innocence. The burden of proof has not shifted to him. His evidence is added to the evidence called for the prosecution. The prosecution has the burden of proving each of the elements of the offences 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.
- This is one of the category of cases sometimes described as “word against word”. In a criminal trial it is not a question of making a choice between the complainant’s evidence and that of the defendant. The proper approach is to understand that the prosecution case depends upon my accepting that the evidence of the complainant was true and accurate beyond reasonable doubt, despite the sworn evidence by the defendant; thus I do not have to believe that the defendant is telling the truth before he is entitled to be found not guilty.
- Where, as here, there is defence evidence, there is usually one of three possible results:
- I may think the defence evidence is credible and reliable, and that it provides a satisfying answer to the prosecution’s case. If so, my verdict would be not guilty; or
- I may think that, although the defence evidence was not convincing, it leaves me in a state of reasonable doubt as to what the true position was. If so, my verdict would be not guilty; or
- I may think that the defence evidence should not be accepted. However, if that is my view, I must be careful not to jump from that view 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 do accept, I am satisfied beyond reasonable doubt that the prosecution has proven each of the elements of the offence in question.
Separate consideration of charges
- There are two separate charges. I need to 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.
- The evidence in relation to the separate offences is different, although the Crown rely on the particulars of count 2 in relation to count 1, so my verdicts need not be the same. Also, I am conscious that the elements are different and so my verdicts also might logically be different for this reason.
- 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.
- While my general assessment of the complainant as a witness will be relevant to all counts, I am also conscious that I have to consider her evidence in respect of each count when considering that count.
- It may occur in respect of one of the counts, that for some reason I am not sufficiently confident of her evidence to convict in respect of that count. A situation may arise where, in relation to a particular count, I get to the point where, although I am inclined to think she is probably right, I have some reasonable doubt about an element or elements of that particular offence.
- Of course, if that is so 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 will 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, that is 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 any other count.
Motive to lie
- In cross-examination, the complainant was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant.
- As set out below in my evaluation of the evidence, I accept that the complainant had a motive to lie as put forward on behalf of the defence on the basis that:
- (a)she was angry with the defendant following the events of 9 March 2019;
- (b)she was angry both in respect of the defendant cheating with Diana and in respect of the resultant hurt caused to her mother.
I have also had regard to the terms of s 102 of the Evidence Act in this respect.
- In cross-examination, Leo was asked questions concerning a motive for him to lie in his account concerning the conduct of the defendant resulting from the fact that his disclosure of any evidence of any complaint surrounding the defendant only came at a time when a court was about to determine whether or not the defendant would have access, he did not want that and had been told if he was a witness for the complainant, he would not have to see the defendant.
- As set out below in my evaluation of the evidence, I accept that Leo had a motive to lie on the basis submitted for by the defence and set out in the above paragraph. I have also had regard to the terms of s 102 of the Evidence Act in this respect.
- In cross-examination, Alanna was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant and the alleged disclosures by the complainant to her.
- As set out below in my evaluation of the evidence, I accept that Alanna did have a motive to lie on the basis put forward on behalf of the defence; that is that she was angry with the defendant because he had been cheating on her with his ex-partner Diana.
- The existence of a motive can be an important factual issue. It can, if accepted, tend to explain something that is otherwise odd or unlikely.
Preliminary complaint evidence
- In this case there is evidence of the complainant’s preliminary complaint to Alanna, Fern, Jordan, Leo and Dr McCollow. I have addressed that evidence below. I bear firmly in mind that this evidence may only be used to assess the credibility of the complainant’s account in the sense that consistency between her account of events and that which she told each of the preliminary complaint witnesses may enhance the likelihood that her account is true. Those out of court statements are not however to be used as evidence proving what occurred.
- Similarly, any inconsistency between the preliminary complaints I find and the complainant’s evidence as to what occurred may cause me to have a doubt about her credibility or reliability. I must consider whether any such inconsistencies are of such a nature as to affect her credibility or reliability or whether they are matters that are explicable in all the circumstances. Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me to determine.
Special scrutiny required
- I must scrutinize the evidence of the complainant with great care before I can arrive at a conclusion of guilt of either offence. This is because there are a number of features of the evidence which suggest a risk that the complainant’s evidence, or aspects of her evidence, may not be reliable. They are:
- a.there is no evidence of any injury or complaint of pain during the period of offending despite the complainant’s evidence that she was anally raped on a very large number of occasions;
- b.there is no evidence that at any time prior to the events of 9 March 2019 there was any reluctance from the complainant to sitting on the defendant’s lap or otherwise having close contact with him. There is evidence to suggest that she continued to seek her father out. The complainant also wanted to sleep in the defendant’s bed on the night that Alanna went to Melbourne. I am conscious in saying this that the Crown submit that this is not remarkable in any sense and the relationship is complicated. However, on balance, I consider this to be an unusual feature given the extent and nature of the alleged conduct;
- c.her young age at the time of the alleged offending, when reporting it and when she was interviewed by police;
- d.there was a suggestion of possible coaching of her by Alanna made by Violet , which although I place little weight on it is of some concern particularly given the timing of the complaint to police;
- e.her complaints were made soon after she had learned that the defendant had been cheating on her mother with his ex-partner, the mother of Leo. I accept that there was a rapid change in the complainant’s mother’s attitude to the defendant once that circumstance was disclosed and that the complainant was immediately aware of this;
- f.following this, the complainant first began to refer to the defendant by his first name and then adopted her mother’s reference to him as the “sperm donor”. I am conscious of both the extent of this broken relationship between she and the defendant and also the extent of influence of Alanna;
- g.the fact that when speaking to police on the second occasion, she demonstrated a lack on memory of events she had referred to in her first discussion with police;
- h.the fact that when she spoke to Bravehearts on 16 July 2020 she had no memory of any of the alleged offending;
- i.the fact that by the time of the pre-record, the complainant claimed to have no memory of any of the alleged offending such that her version previously given could not be tested appropriately;
- j.upon rejection of Leo’s evidence, there is no corroboration for the defendant’s conduct.
- I must scrutinize the evidence of Leo with great care before I can arrive at a conclusion of guilt of either offence. This is because there are a number of features of the evidence which suggest a risk that Leo’s evidence, or aspects of his evidence, may not be reliable. They are:
- a.his evidence is not supported by any other witness;
- b.his disclosure only came at a time when he was told a court was about to determine whether the defendant was going to have access to him, he did not want that and had been told that if he was a witness for the complainant, he would not have to see the defendant.
- There was expert evidence from Dr McCollow and Dr Kamalanathan. Medical practitioners have specialised knowledge with allows them to express their opinions on relevant matters within the field of their expertise and outside the experience of ordinary members of the community, including me. Other witnesses may usually only speak as to facts – what they heard or saw or otherwise had direct experience of.
- It is also important to remember that an expert’s opinion is based on what the expert witness has been told of the facts.
- In the present matter there is no challenge to the expert evidence. I would be slow in such circumstances to not accept the opinions offered
Complainant’s first section 93A statement- 12 March 2019
- The complainant first participated in an interview with police on 12 March 2019 when she was seven years old. She did not give any detail about the alleged sexual offending until the male police officer who had been present left.
- The complainant said that “daddy has been doing rude stuff to me all these times when mum went to work”. She initially said that she could not remember when the alleged offending stopped but that it started when her mother began doing ‘beer work’, which is a reference to working in a bottle shop, which commenced in May 2018. She later recounted that the alleged offending stopped after her mother went to Melbourne on 28 February 2019. She said that she thinks the defendant was doing rude stuff for “300 days”. She said that she thinks the defendant has put his penis in her bottom “like 100 times” and in her mouth “50 times”. She said that the defendant told her that he would smack her if she told anyone about the alleged offending.
- When asked what the rude stuff is, the complainant responded ‘X’ and it was suggested to her that she was trying to describe ‘sex’ and she agreed. She said that the defendant has been putting his ‘D’ into her, which was suggested to be his penis, and she then motioned to her mouth and bottom using her hands. She did not say the words ‘penis’, ‘mouth’ or ‘bottom’ when initially describing what had happened and appeared to be very uncomfortable saying those words. When asked if the defendant had ever put his penis in her vagina the complainant responded no. She said that the defendant “does put spit on his ‘D’ and on her bottom.”
- She then recounted one of the specific times that she says this had happened. She said that it was when her mother went to Melbourne about 10 weeks ago and the defendant ‘did X E X’ to her that morning. When asked what she meant by ‘X E X’ she said “he put his D in there” and pointed to her bottom. This is the incident of rape charged as count two on the indictment. She said that she slept in the bed with the defendant that night and that the defendant woke her up the next morning because she “took over the bed” and that he told her not to take over. When further questioned about what the defendant said to her when she woke up she said he said nothing and that “nan was there, but in my room sleeping”. When asked if he put anything on his penis, the complainant said no and when asked if he spat on his hand the complainant said “not again when mum left no”. She said that she felt very guilty when it happened and that it “feeled weird every time he did it and he put it right in and it hurts that’s why I’m telling him to stop”. That seemed a strange emotion to describe in the context of her age in relation to this alleged offending.
- She recounted another specific time where the alleged offending occurred in her bedroom. When asked what happened in her bedroom she said “I told him dad stop cause it hurts and he went into the front lounge room and did it and I was keep on moving and he told me to stop moving then he went into my room and I was keep on moving, if I keep on moving that’s how he actually doesn’t do it if I keep moving”. She said that she moves because it “has hurt”. She said that he put his ‘D’ and then pointed to her bottom.
- She also recounted a time in the shed, which is a reference to the garage attached to the house. She said that the defendant picked her up and put her in the shed and “this is scary this part…because he has like softly bit me on the ear… and it feeled funny”. She then said that “he never kisses me on the lips he only does it when he does XEX kisses me on the lips”. She explained that he first kisses her on the lips and then he does the other thing, being “having, doing XEX”. She said that she feels guilty when the defendant kisses her on the lips. Again, that seems to me to be an odd description for a young girl to use to describe what is said to have been occurring.
- The next incident she recalled was in the shower. She said that the defendant sometimes tried to put his ‘D’ in her mouth. She then described how the defendant puts her stomach over the side edge of the bath/shower. She appeared to be uncomfortable when talking about this and did not actually say what happened but agreed with the police officer’s questions suggesting that the defendant put his penis in her bottom. After being reassured that none of that is her fault the complainant said “its dad’s because he feels guilty and he really wants…to have XEX with mum but mum doesn’t feel like having it”. She said that she was not told this by the defendant but that she heard her mum telling him to stop when she put her ear to the door. She then said “dad doesn’t feel like doing it to me anymore because he actually has a new wife”. The reference to new wife is to the defendant’s ex-partner and the mother of Leo, Diana. I found the reference to the defendant not wanting to do it to her anymore to be a very odd way of describing what was allegedly occurring.
- After discussing the alleged offending by the defendant, the complainant said “that’s what he did and I kept it a secret but Leo has did it and then I told mum and dad so that’s good.” When asked what she meant she said “…he had clothes on and did it that’s my dad’s son…He went um, doing what dad did but not put it in my mouth or butt… He did XEX.” When asked to explain what he did, the complainant said “he has put his ‘D’…in my butt but I told mum and dad smacked him and why would dad smack him when he was doing it too.” She said that Leo would do this when the defendant was at work and he did it “like 3000 days ago”. She said that he put his penis in her bum “like only 20 or 10 or 30” times. She said that he would do it in his room under his bed and that her other brother Lucas was on the top of the bed. She demonstrated with her hand that Leo would grind on her. When asked if he was grinding on her when he had his penis in her bottom the complainant said “no…He only had his clothes on”. The officer said to the complainant “oh he had his clothes on so he hasn’t actually put his penis in your bum?” and the complainant said “not very much he only did it like 10 or 15 times”. She then said that he did it under and on top of the bed and that “he always had his clothes on but like 5 or 7 or 10 times he had his pants like down”. When asked where his penis was she motioned to her bottom.
- She then told the officer about a rash she had on her vagina “like 2000 weeks ago” and said that Violet had a look at the rash. When talking about the rash earlier in her interview she said that she had a rash on her vagina not because the defendant did something but because of the sun. She then said “…but I have got a rash on my [bottom] before” and she said that she thinks it may have been from “dad spitting or putting cream”. Even taking account of the complainant’s very young age I was concerned by the references she made to the number of times things allegedly happened or how long ago they were in this paragraph and the previous paragraph. I was left with concerns as to the reliability of such evidence.
- During the interview the complainant asked how long the defendant would be in jail for and suggested that he should be kept in jail for “3 days or 50 days” or “60 days or 100 days” because he “blew up the car and did all this rude stuff”. At the end of the interview she expressed that she was sorry for her mum that this happened and that “she can’t be sorry for me I should be sorry for her…Dad is a monster…I’m never going to see him again”. I was concerned when considering this evidence that it was driven by what I perceived to be a feeling of anger at the hurt caused to her mother by the defendant having cheated with Diana, more so than any alleged offending against her.
Complainant’s second 93A statement- 15 April 2019
- The complainant participated in a further interview with police on 15 April 2019 when she was seven years old.
- Similar to what she said in the first interview with police, the complainant recalled the domestic violence incident that happened on 9 March 2019. When talking about this incident the complainant said “he is a woman killer you need to tell the judge that, that he’s a woman killer” and that “he can’t be with a woman… you have to make sure that he can’t be with a woman”. Again, this evidence seemed to me to be driven much more by perceived injustices to her mother and the anger she felt as a result rather than any alleged offending against her.
- She also said that the defendant has been doing rude stuff to her. She again said that the alleging offending started when her mother commenced working at the bottle shop. When asked about the rude stuff she said that she did not want to say the name for the defendant’s rude part and instead used the word ‘D’. The complainant motioned to her mouth and to her bottom and agreed with the officer that he put his rude part in her mouth and in her bottom. She then said “because maybe you know how the yellow stuff in my throat…might be from dad putting his D in my M… that’s how I get all the yellow stuff I think”. This seemed a strange reference, particularly when unsolicited, for a young girl to make when she was reasonably clearly speaking of phlegm and also where it was raised for the first time in this interview, which postdates the train/tram ride with Violet.
- As in the first 93A interview, she recalled that the last time the defendant allegedly offended against her was “this morning when he was leaving and he did the stuff to me before he went on a holiday with mum”. This appears to be a reference to the morning in question for count two being the Melbourne trip. She said that it was in the morning and Violet was asleep in her bedroom. She said that she slept with the defendant and that in the morning she woke up and the defendant said “stop kicking me you’re taking over the bed” and then “he did the rude stuff to me and then he left”. She said she was wearing undies, pants and a shirt and that the defendant pulled her pants down. She said that he then “put his D in my B”. She said that this happened “next to the telly” in her Mother’s room and that he was standing up on the floor and she was on the bed. She demonstrated that she was lying on the bed with her bottom up and her body leaned downwards. She said the defendant said to her “don’t tell mum or I’ll smack you”.
- With respect to this incident she added further details and said that after it happened she had a shower. She said she had a shower to “wash all of the yucky stuff off me…What he did all the slobber”. She said that “all the slobber in my butt was gross” and that “it came out when I washed it with soap and water”. She then said that the defendant told her to wash her face which she thinks is so that “mum doesn’t know about me kissing him on the lips maybe, cause he kisses me on the lips when he does stuff to me”. I am concerned as to this evidence given the timing of showering with her mother which was effectively conceded to have occurred between the two police interviews.
- She again recounted a time where something happened in the shed/garage. In this interview she added that the rude stuff in the shed happened on the freezer and that the defendant “sitted on the freezer and put me on his lap” and that he kissed her on the lips. She first motioned to her lips and then said the word when prompted by the officer. She said they were facing each other. This evidence was concerning given the apparent detail of it (including the reference in the first 93A to her ear being gently bitten, which was not mentioned in the second interview) but the fact that there is no freezer in the garage.
- The complainant described a time where the defendant did things to her on the computer chair. The only details she gave were that he put her on his lap and kissed her.
- In this interview she described a time on the couch in the lounge room. She said that the defendant hugged her by putting her body on his body and kissed her. She described that she would put her belly on his belly and her legs on his legs when lying down.
- She again recounted a time where something happened in the shower/bathroom. She said that the defendant puts her on the edge where the towels hang up and puts her next to the shower and holds her there and does rude stuff to her. When asked to describe the rude stuff she said, “I don’t know what rude stuff I forgot about, forgot what rude stuff he did to me, but he did kiss me”. She said that he put her on the towel edge to do the rude stuff and demonstrated that she was face down. She described that “my tummy was hurting” because her tummy was leaning on the edge and he was pushing downwards on her. She said, “he was like pushing me so bad my stomach was about to burst it was hurting”. As shown in the photographs of the shower that became exhibits 9 and 10, the complainant was describing a shower bath. She said that this happened about “100 times.” I consider this apparent lapse in memory from the earlier interview as unusual particularly given the alleged number of occasions.
- She recalled a time where something happened in her room. When asked what happened in her room she said “…I forgot about the rude part but I remember about him doing it in the room but I don’t remember him um doing that sex in the room I don’t know what rude part he used I forgot”. When asked what she means by sex the complainant said “like rape or humping”.
- When the officer asked the complainant about what Leo has done to her she said that “he pulls my pants down a tiny bit…puts his D in my pants”. She said that is the only thing he does and sometimes he jumps on her on the bed and humps her with his clothes on. When asked what she meant by “puts his D in my pants” the complainant said “puts his D dick in my pants and it touches my bum”. She said that she told her mum and the defendant about this and that “dad flogged Leo, I should of told on dad as well when I was telling mum that Leo did it to me…I shouldn’t of told dad, I should of told mum that dad was doing it too”. She said that the incidents with Leo happened before the defendant ever did anything sexual to her.
- Similar to the first interview, the complainant seemed uncomfortable saying words like penis or vagina and referred to them as “yucky words”. However, she went on to say words such as ‘dickhead’, ‘fuck’, ‘cunt’ and ‘slut’ without hesitation.
- In this interview she mentioned the defendant not wanting her mother to make money, that he wanted all the money for smokes and food and that the defendant smokes weed and it is gross. Again, in this interview she was concerned about keeping the defendant in jail. At the end of the interview after the officer thanked the complainant for speaking with her, the complainant said “now youse [sic] can keep him in jail and I might get money from mummy…” This was said in an excited tone. The reference to receiving money from her mother was odd, but I don’t place any great weight on it. Again, though, the evidence as to Alanna’s work seemed to me to be generally driven much more by perceived injustices to her mother and the anger she felt as a result rather than any alleged offending against her.
Complainant’s section 21AK evidence 29 March 2021
- The complainant gave evidence in court on 29 March 2021 when she was nine years old.
- She said that everything she told the police on 12 March 2019 and 15 April 2019 was the truth. She went on to identify pictures of her parents’ bedroom, her bedroom, the front lounge area, the shed and the bathroom at the house which were marked as exhibits 6-13.
- In cross examination she accepted that she was very angry with the defendant about the domestic violence incident that happened on 9 March 2019 and that she has decided, independent of her mother, to no longer use the defendant’s surname. She accepted that she now calls the defendant the ‘sperm donor’ and that she got that term from her mother. She said that neither her mother nor Violet told her what sperm is and that she does not know what it is and has never seen sperm. The complainant accepted that before the domestic violence incident she got along really well with the defendant. I found this evidence particularly odd. It was not clear to me that she could know that she had never seen sperm and yet not know what it is.
- She accepted that she loves and believes what both her mother and Violet tell her. She also accepted that she wanted to help her mum out because the defendant was naughty to her. I found this evidence quite consistent with what I see as a pervading theme for her evidence being the desire to assist her mother and the clear level of regard she has for her mother and not for the defendant, but only following the events of 9 March 2019.
- She agreed that if her mother was at work after school, the defendant would take care of her at night. She rejected that the defendant would help her in the shower. She rejected that after having a shower she would get in trouble for watching shows that would depict boys and girls kissing. She agreed that she was not scared of the defendant and would sit on his lap every night and seek out his attention on the couch.
- In relation to the computer, the complainant agreed that when the defendant was using the computer she would sit on his knee and watch him do stuff. She rejected that this happened all the time and said that it happened some days. She said that before the domestic violence incident she enjoyed that time with the defendant. It was suggested to the complainant that “dad never did any rude stuff to you while you were sitting at the computer, did he” and she responded “no”. It was then suggested that “if he did, you would never have gone back and sat on his knee, would you” and she responded “no”. This evidence does not appear to have been given as a result of any memory lapse but seemed instead to indicate that nothing had happened on the computer chair. I note in any case the only allegation by the complainant of anything happening at the computer chair was kissing and it is unclear whether that was sexually inappropriate in nature.
- In relation to the lounge room, she said that she would sometimes sit with the defendant on the couch and watch TV but rejected the suggestion that she would lie on the defendant. She agreed that she loved being close to the defendant before ‘this bad thing happened.” Although I accept that the relationship between the complainant and her father could well be sufficiently complicated that she would still give evidence to the effect that she enjoyed his company notwithstanding the alleged offending, this is difficult to reconcile with anything like the extent of alleged sexually violent offending in this case.
- In relation to the defendant’s bedroom, she agreed that she slept in the defendant’s bed from time to time and that her mother was often in there and Baxter was always in there. She said that in relation to the incident when her mother was in Melbourne, she was the only one that slept in the defendant’s bed, not her brothers as well. When it was suggested to her that “nothing bad happened to you that night, did it?” the complainant responded “no”. When it was then suggested that “nothing bad happened to you that morning, did it?” the complainant responded “yes”. She agreed that when she woke up in the morning the defendant had already gone to work and that Violet was awake. It was suggested to her that she had a shower on her own and that “you weren’t washing any yucky stuff off or anything like that, were you” the complainant said “no” and further said that she had never had to do that. Again, this evidence does not appear to have been given as a result of any memory lapse but seemed instead, on one view, to indicate that this alleged offence did not occur. If that is not an accurate view to take, then, at the least, on any view, her evidence in relation to the alleged offending the subject of count two is quite unclear.
- In relation to the shed/garage incident, she rejected the suggestion that nothing ever happened between her and the defendant in the garage. She agreed that she had no memory of anything happening in the garage. She rejected that the chest freezer was in the laundry. She said she could not remember if she told the police that one of the places the defendant did s-e-x with her was on the freezer in the garage. At this point the complainant had her head in her hands and was looking down. She rejected that her mother helped her remember places that s-e-x might have happened and that her mother had told her that she and the defendant had had sex on the freezer.
- The complainant rejected that her mother or Violet had told her about ‘lubrication’ or spitting on the hand. In the context of the spitting, when it was put to her that “you don’t remember that happening with [the defendant] …” the complainant interrupted mid question and said “no”. When answering the questions about the spitting the complainant gave quick and short responses of ‘no’ in an angry tone. After being reminded to think about the question it was put to her “you don’t remember anything like that, that is, [the defendant] spitting on his hand and touching on the private area”, she responded “no”. It was then put to her that “that didn’t happen, did it… [complainant’s first name]?” The complainant paused and did not answer the question and said that she did not want the question to be asked again. She went on to respond “I don’t know. It was two years ago”. Although I am conscious of the phenomenon that very young children’s memories of events tend to fade quickly, the extent and type of offending alleged renders this much less likely in my view.
- She agreed that soon after the domestic violence episode Violet took her on a train/tram ride. She agreed that on that trip Violet asked her questions about ‘s-e-x’, but that she cannot specifically remember the questions and she denied that Violet told her things about ‘s-e-x’. She agreed that Violet was helping her remember the things that she told the police the defendant did. This is alarming given the way the complaint closely followed Alanna becoming aware that the defendant was cheating on her (and the complainant becoming aware of that almost immediately after) together with the fact that the complainant had been to the police only three days earlier and was subsequently further interviewed. It is also concerning that the complainant says Violet was helping her remember the things she told the police the defendant had done when Violet was not actually present for any of the alleged offending or, perhaps more importantly, in the police interview. She rejected that Violet suggested to her that the rash she once had on her vagina was caused by the defendant.
- It was put to the complainant that “you don’t remember [the defendant’s first name] the sperm donor sexing you, do you?” to which she said “no”. It was then suggested to her that “there was never a time when [the defendant] sexed you by putting his D or dick into your B or Butt; that is true, isn’t it? Isn’t it… [complainant’s first name]?” There was a long pause from the complainant at this point and she did not respond to the question. The learned judge presiding over the 21AK hearing asked the complainant whether she understood the question and after more delay the complainant said “no”. It was then put to her that “you don’t remember the rude stuff?” and the complainant agreed. It was also put to her that “today sitting there, you don’t remember your dad doing any s-e-x or rude things to you” and the complainant responded “yep”. The complainant agreed that she had no memory of the defendant doing any rude things to her. However, when it was put to her that what she told her mother, Violet and the police was not true she said “no”. She also disagreed with the suggestion that she was only saying those things because she was angry. It appears that she agreed she could not then remember but did not accept that what she had told others was not true. As I have said I find this evidence that she could not recall concerning in a case where there is this alleged extent of offending and the offending was as sexually violent as repetitive oral and anal penetration of a very young girl by her father.
- She agreed that if “these things” happened to her then she would have told her mother or Violet or someone else ‘straight away’. She also agreed that when she spoke to someone from Bravehearts on 16 July 2020 she told them that she had no memory of the defendant ‘sexing’ her or putting his D in her bottom. She agreed that she had never complained to her mother about having pain in the bottom or that she had ever bled from the bottom.
- She said that she never told Leo about the defendant doing rude things to her when they were on the trampoline. She did not appear to be expressing any lack of memory in this respect but rather appeared to give evidence that from her point of view it simply had not happened.
- She said that she could not remember telling the police officer that “I might get money from mummy”. The complainant was asked whether her mother had ever promised her money to talk to the police and she responded “no, no”.
Leo’s section 93A statement
- Leo spoke to police on 4 May 2020 when he was nearly ten years old. He also recounted aspects of the domestic violence incident that happened on 9 March 2019 and said that he does not want to talk to the defendant or ever see him again and that he hates him. Leo said that he hates the defendant because he is mean. He specifically referred to the fact that the defendant set the car alight and hit Alanna.
- He said that the defendant was doing ‘naughty’ stuff with the complainant. Leo said he saw the defendant sitting on the computer chair and the complainant was sitting on his lap and that the defendant grabbed her hand and put it on his private part and started rubbing it. No other witness refers to this matter. Also, as I have mentioned the complainant appeared to agree in cross-examination that nothing had happened on the computer chair.
- Leo said that one day himself, the complainant and Lucas were on the trampoline and the complainant told them that “dad was having S E X with her”. He said that the defendant saw that the complainant told them something and said to them that he would smack them if they told Alanna. No other witness refers to these matters. As I have said, the complainant appeared to believe that there was no such conversation. Lucas also could not recall any such conversation.
- Leo said that “[the defendant] went into the room sometimes and had sex with [the complainant]”. He said that both the complainant and defendant would walk into the room and the door was shut so he could not see what was happening, but he could hear the bed moving. Again, there is no evidence about any of this from any other witness and it just speculation on his behalf.
Leo’s section 21AK evidence
- Leo gave evidence in court on 29 March 2021 when he was ten years old.
- He said that everything he told the police on 4 May 2020 was the truth. He could not remember what house the trampoline was at and had trouble identifying a photo of the trampoline that was shown to him.
- In cross-examination he agreed that on 12 September 2019 he went to Brisbane with Julia and spoke with a lady who was assisting the court to make a decision about where he was to live. He agreed that Julia had told him that the court was going to make a decision about him seeing the defendant. He also agreed that he did not want to see the defendant and said that he previously declined to have phone conversations with the defendant, who was in prison, because he did not want to talk or see the defendant ever again.
- He agreed that he knew that the complainant was complaining about the defendant and that he knew this before he spoke to the police and that he mentioned this to the lady assisting the Family Court. It was then put to him “and you certainly weren’t saying you had witnessed your-your dad touching [the complainant] before you went to the police. That’s true, isn’t it?” to which he responded “yes”. It was then put to him that “your grandmother [Julia]…told you that if you were a witness…for [the complainant] then you wouldn’t have to see your dad…” to which he responded “yeah” and then it was put to him “and then you remembered that you had seen your dad touch… [the complainant] at the computer” and he responded “yeah”.
- Those questions were put to him in the context of “dad touching [the complainant]” which is not what Leo said that he saw. In fact, when it was later put to him “…you didn’t really see your dad touching [the complainant] under a skirt did you?” he responded “no”. After it was brought to defence counsel’s attention, it was instead put to him “you never saw him take her hand and put it on her private part, did you?” to which he responded “yeah. I only saw him put her hand in his private part”. What I can make of his previous responses to the questions is limited given that he clearly knew of the distinction between the two acts. On one view his previous answers have nothing to do with the evidence he otherwise gave, given the distinction drawn.
- He agreed that Julia told him that if he was a witness for the complainant then he wouldn’t have to see the defendant. He also agreed that he never came forward about seeing the defendant make the complainant touch his rude parts until Julia told him that if he was a witness he would not have to see the defendant and that he came out with it to avoid seeing the defendant.
- He said that he does not know if he saw the complainant sitting on the defendant’s knee at the computer at any other time. He said that he thinks he has seen the complainant laying on the defendant on the couch when they were watching television. This is surprising given the complainant gave evidence that she sat on the defendant’s lap at the computer very regularly.
Lucas’s section 93A statement
- Lucas spoke to the police on 28 May 2020. The only evidence of relevance that he gave was in relation to Leo’s account of the complainant’s disclosure on the trampoline.
- He said that he could not remember a time where the complainant had told him something on the trampoline or a time where Leo was on the trampoline with them. He also said that he cannot remember Leo living with them. He said he could not remember the complainant telling Leo or himself that the defendant was having ‘S-E-X’ with her.
Jordan’s section 93A statement
- Jordan spoke to the police on 31 August 2020 when he was 14 years old. When the officer asked Jordan to tell him about the defendant he said that: “he is a bad person, abusive, childish and selfish. And he used to be mean to us all the time”.
- He said that the defendant and the complainant were in the shower ‘a lot’, about every second day. He said that the defendant would individually have showers with the complainant, Baxter and Lucas and that this would happen only when Alanna was at work. He said that the defendant would always lock the door and that one time he went to open the door and he heard a rush and quickness in the bathtub and the defendant or one of the children would hold the door shut. He said that after having a shower the complainant would always come out with at least five dollars, but also said that the defendant gave money to Lucas and Baxter as well for what he understood to be having a shower. No one else gave evidence to this effect.
- He said that the defendant liked holding the complainant, meaning sitting on the defendant’s lap. He said that the defendant would put the complainant on his lap on the couch and cuddle her and that this happened when Alanna and the other children were around.
- He said that he was there when the complainant told Alanna about the alleged offending. He said that the complainant said to Alanna “[the defendant] used to do stuff to her in the shower. Like play with her bum and that.” He said that this disclosure was made a day after the car fire and at Katherine’s house. He said that the complainant was outside with Alanna, Fern and Katherine and that he was in ‘the room’ playing a game with his cousin. He said he walked out and ten minutes later the complainant made the disclosure. This is inconsistent with Fern’s evidence to the effect that the complainant whispered in her ear and then Alanna’s.
Jordan’s section 21AK evidence
- Jordan gave evidence in court on 29 March 2021 when he was 15 years old. He said that everything he told the police was true.
- In cross examination he agreed that he never liked the defendant and that when he spoke with police he was trying to think of things he could say that were bad about the defendant.
- He agreed that the children, being the complainant, Lucas and Baxter, were really small and needed a hand getting showered. He agreed that sometimes when Alanna was home she would tell the defendant to just shower the kids. He agreed that the complainant would sit on the defendant’s lap all the time including over at the computer when he was working, and that the complainant used to seek the defendant out for attention all the time before the domestic violence incident.
- In cross examination he said that he thinks he heard about the complainant’s disclosure from his mother “because [he] was in the room…when that happened…and then [he] came outside”. In re-examination he clarified that he was present when the complainant was telling Alanna about things that the defendant had done to her. He went on to say that “I came out at the end when mum started, like, little scream… I came out to see what was going on.” He said “I came out… at the time when she was saying that he touched her bum in the shower and that”. In further cross-examination he said that “I came in halfway during the sentence” and that what attracted his attention was Alanna’s reaction being ‘like a little cry’. He said that after the complainant told Alanna, she started crying, then sat up against the car and that is when Fern came over to see what was going on and Alanna told Fern and he was there when that happened.
- The immediate problem in terms of the reliability of this evidence is that Fern gave evidence that the communications were whispered in their ears. Also Fern’s evidence was that the complainant spoke to her first.
- Alanna gave evidence by video link on 28 April 2021. She gave evidence about who lived in the house at the relevant time and the layout of the house. She said that there was never a freezer in the shed/garage, instead that it was in the laundry. She said there was a trampoline at their house. She said that on 28 February 2019 she went to Melbourne and that the defendant and Fern were flying out to Melbourne the following day on 1 March 2019.
- She says that she started work at a bottle shop around 25 May 2018 and did between five and six shifts a week. The majority of the shifts were a closing shift and they would start at 3:15pm or 5:00pm and she would finish and get home by 9:30pm. On Saturdays she would usually do a day shift from 8:00am and she would get home at 5:45pm. She said that the defendant would work Monday to Friday, leaving home around 5:30am and returning any time between 2:00pm and 4:00pm. She said that in March 2019 the defendant would get the children to have shower at night-time when she was at work. She says that all the children, except Baxter, could shower themselves.
- She gave evidence about the domestic violence episode that occurred on 9 March 2019. She said that on the night of 9 March 2019 Fern picked her and the children up and took them back to Katherine’s house. She said that she was aware that the defendant had been charged with the offences and that he had fled the state. She said that on 11 March 2019 one of the detectives called her and told her that the defendant was back in police custody.
- In cross-examination she agreed that on 10 March 2019 at around 5:13pm she had an 11 minute and 45 second phone call with the defendant. She said that during this call the defendant’s brother, Sam, was at the house and that the three of them (the defendant on the phone) were organising the collection of some of the defendant’s property from the house. She agreed that at the time of this phone call she was unaware that the defendant was with Diana, but was aware he was in New South Wales. She did not ever tell police about this telephone conversation. She agreed that after the phone conversation with the defendant, a detective informed her that the defendant was in fact with Diana.
- She rejected that she told the complainant that her ‘bastard father had a new girlfriend’ or anything like that, after she learned that the defendant was with Diana. She said that she just told the complainant that her father had been arrested and he was getting help. She said that she told the complainant about her father having an affair after the complainant had already made the disclosure to her, and before the complaint was made to police. She agreed that when she found out about the ex-partner, her focus had gone from help. She agreed that the property was no longer going and a real dispute was developing. It is clear that by the time the complainant was seen at the hospital on 11 March 2019 she was aware of this.
- She says that on 11 March 2019 at roughly 8:30-10:00am she went somewhere to sign a lease with her brother and that around 3:00pm she went to the doctors to get her arm checked out. She says that after the doctors she went back to Katherine’s house and that she sat at the front having a smoke with Fern. She said that Jordan and the complainant were out the front playing. She then said:
“[The complainant] kept asking where Daddy was because I told her that he had been locked up and that he was getting help and that he won’t be home for a long time and that’s when she said to me, she said, I’ve got something to tell you, Daddy told me that it was our little secret and that she wasn’t allowed to say anything about it to anyone otherwise he was going to flog her. I can’t recall if she told me first or not, but it was just clear – it’s clear as day, and it’s played over in the back of my head, just over and over and over again for the last two years. Just the way she said it when she said Daddy was going to flog her if she said anything. Then she’s told me that Daddy had been doing rude stuff to her. That he put his D in her mouth. Then she went on to say that he’s put his D in her bum, that he spat on his fingers and wiped it on her bum. I asked – I asked her how many times that had happened. And she told me 20 to 30, 40 times, 50 times. And then I went on and asked her when was the last time it happened. I asked her if it happened in that week coming back from Melbourne and she said no. Then I asked her did it happen, the morning I flew out to Melbourne, and she said yes, Mummy, it happened in your bed. He pulled my pants down – he pulled my pants off. Pulled my undies down to my ankles and he spat on his fingers and rubbed it in my bum and put his D in my bum. He said – she said, “Mummy it hurt”.”
- She said the complainant told her that it happened in the defendant’s bedroom, her bedroom, the lounge room, at the computer desk and in the shower. She said the complainant told her it started happening when she started work at the bottle shop. She said that Fern was sitting right next to her and that she cannot remember whether other children were still outside. She said that this conversation lasted about 30 minutes.
- In cross-examination she agreed that she reported to the hospital that she was showering with the complainant and she said that in the shower the complainant was washing herself with soap and said “it felt yucky, like what daddy did to [me]”. There was significant cross-examination about the timing of this shower episode to the effect that Alanna initially said that this shower and conversation happened before the complainant made any disclosure to her mother on 11 March 2019 and then she corrected that to be on the night of the 11th after disclosure had been made.
- She agreed that she spoke to police on 11 March 2019 after the disclosure of the alleged offending and then took the complainant to the Gold Coast University Hospital. She said when they were at the hospital the complainant was screaming and crying and that she would only let one nurse examine her.
- It was put to her that when speaking with Dr McCollow “[the complainant] was reporting, in your presence, ‘he was cheating on mummy all the time’” to which she said “no…not that I recall…she had not mentioned any of that”. The following exchange then occurred:
“MR KISSICK: All right. You see, [Alanna] you became incensed, I suggest, more than the violence on you, when you discovered that he was in a motel room with [Diana] in New South Wales. Correct?---
[ALANNA]: Yes. I was upset. Yes. I was.
MR KISSICK: And you told your daughter all about that straight away?---
[ALANNA]: I may – I may have done. She might have heard everything, but I can’t be certain because I don’t remember.
MR KISSICK: And in these showers you were having with her, I suggest – was it more than one, before you went to the police?---
[ALANNA]: No. I did not have a shower with her before I went to the police. She did not disclose any of that to me until after she disclosed what she said at the front of my sister’s house, when my mum was sitting there.
MR KISSICK: And I suggest you put words in her mouth, didn’t you?---
[ALANNA]: No. I did not.
MR KISSICK: And you did it intentionally, I suggest?---
[ALANNA]: I don’t think so. No. There’s no way in the world I’d ever put my child through this horrific thing. Ever. I wouldn’t have wished it upon anyone.
MR KISSICK: All right. And I suggest, as I’ve put to you, that this is all about Diana and the defendant?---
[ALANNA]: That’s the least of my worries. All I’m concerned about is what he did to my daughter, and I want him to do the time for it.”
- Fern gave evidence by video link on 28 April 2021. She said that she would babysit the children when Alanna was at work. She said she would pick them up from school two or three days a week and take them to her house until the defendant would come and pick them up.
- She also gave evidence about the domestic violence incident on 9 March 2019. She said that she went to Alanna’s house that night and took her and the children back to her house. She said that on 11 March 2019 she was looking after Alanna’s boys while Alanna and the complainant were at the doctors, in relation to Alanna’s arm. In cross-examination she said that her and Alanna became aware that the defendant was with Diana on 11 March 2019, but that they did not know this at the time Alanna went to the doctors with the complainant or when they returned. Clearly though Alanna and the complainant knew about this when they went to the hospital later on 11 March 2019 because Dr McCollow gave evidence of being told about it.
- She said that Alanna and the complainant came back to her house in the afternoon and that she and Alanna sat out the front of her house talking. She said that the complainant was reassured that the defendant was locked up for what he had done, and that the complainant then sat down and whispered in her ear that the defendant has put his ‘doodle’ in her mouth. She said that she then told the complainant to get her mother and tell her what was going on. She said that the complainant whispered in her mother’s ear and then the complainant and Alanna walked out to the front of the house and had a talk that lasted ‘maybe one hour’. She said that she could not hear what the complainant whispered to her mother and that other children were in the front yard at the time, but she cannot remember who. Given the reference to the complainant being reassured that the defendant was locked up, this conversation must logically be alleged to have occurred after the police told Alanna they had apprehended the defendant and thus after she was told that he was with Diana.
- In cross-examination it was put to her that paragraph 18 of her police statement signed on 13 March 2019 said “[Alanna] told her that Dad has been with [Leo’s] mum, that they would not be getting back together” and that paragraph 19 said “[the complainant] has then said to us, ‘I have a secret to tell you’.” She said that she remembers that and confirmed that she was there when Alanna told the complainant that Leo’s mum and the defendant were together.
- In cross-examination she agreed that there was another person involved in questioning the complainant on 11 March 2019 after the disclosure had been made. She said that after the complainant and Alanna spoke at length at the front of the house, her younger sister named Stephanie was put on the phone. She said that the complainant walked away and spoke to Stephanie on the phone and that she cannot remember for how long. She said it was after this that they either went to the police station or Alanna called police. None of the witnesses told the police of Stephanie’s involvement it would seem.
- Julia gave evidence in court on 28 April 2021. She said that there is a Family Court order that gives her sole parental custody of Leo and that came into effect in August 2020. She said that on 29 April 2020 there was a court date to finalise the orders but that it was adjourned to 27 May 2020. She said that after 27 May 2020 she spoke to Leo about having phone contact with the defendant and as a result of their conversation, she contacted someone from the Logan Child Protection unit.
- She said that there was a family report commissioned in this process and that she took Leo to speak with a lady who was involved in the course of this process.
- Violet gave evidence in court on 28 April 2021. She said that when Alanna started working at the bottle shop she would look after the children three to five days a week after school until either the defendant or Alanna got home. She said that she initially remained at the home until 9:30pm but that eventually changed to 7:30pm. She said that usually by the time she left the defendant was asleep but sometimes he was awake and was the one looking after the kids. She said that the children would sleep in their own beds, except Baxter who would sleep with Alanna and the defendant. In cross-examination she said that she always made sure the children were asleep before leaving.
- She said on 28 February 2019 she picked the children up from school and took them back to the house. She said that Alanna had gone to Melbourne earlier that day and that she stayed the night to help look after the children. She said that she slept in the complainant’s bed that night and that the complainant slept with the defendant. She also said that “all the kids”, being the complainant, Lucas and Baxter, slept with the defendant that night.
- She said that the next morning she heard a door slam and the complainant came into the room and they had a conversation. She said she was calm, her hair was in a ponytail and she was in her school uniform. She said that she did not see the defendant that morning and that she then took the children to school. In cross-examination she said she thought the defendant would leave for work at 7:00am every morning and that was when she heard the door slam. She rejected the suggestion that he started work at 5:00am. She agreed that she never told the police about the door slamming at 7:00am and the complainant coming in.
- She said that she took the complainant on a tram/train ride on 15 May 2019 (which appears to be accepted to have been intended to be a reference to 15 March 2019) after both the domestic violence incident and having found out that the complainant was making allegations about the defendant. She said that they had a conversation about the defendant. In cross-examination she said that she did not raise sexual things with the complainant, but that the complainant told her about “the rooms”. Contrary to this evidence and somewhat alarmingly, as I have said, the complainant gave evidence that Violet had asked her questions about sex. Although she could not specifically remember the questions, she agreed that Violet was helping her remember the things that she told the police her dad did.
- In cross-examination it was put to Violet that on 21 April 2021 she had a phone conference with the prosecutor and asked without prompting “what happens if it gets found out [in relation to the complainant’s statement] that she might have been coached to say stuff?” She agreed that she asked that question. It was also put to her that she spoke to another son of hers on 27 April 2021 and tried to explain that question away by accusing others of helping Leo and Lucas have fake memories. She said that this was because she was not sure if those two children were telling the truth.
- In cross-examination the following exchange took place:
“MR KISSICK: You know something about coaching. And you’re worried about your own circumstances, aren’t you?‑‑‑
[VIOLET]: I’m not worried about my circumstances. I’m worried about [the defendant] getting charged for things that he actually didn’t do, like, you know, if this much is the truth, and that much is made up, I’m concerned about that he might go to jail for more time than he deserves.
MR KISSICK: Why did you say that on the 21st?‑‑‑
[VIOLET]: Well because I was wondering if – if you know, stuff comes out that somebody had coached them, like, [Alanna] might have, you know ‑ ‑ ‑
HIS HONOUR: Coached who, [Violet] ‑‑‑
[VIOLET]: Like, coached [Lucas], [Leo] and maybe [the complainant] . Maybe part of her case. Because of different things that, I suppose, [Alanna] has said to me over the time. I started to think, it doesn’t seem right with different things. “
- In re-examination Violet agreed that she had no direct knowledge of Alanna or someone else coaching the complainant, Leo or Lucas. However, she said that she ‘just felt something wasn’t quite right’.
- Dr McCollow gave evidence by phone on 28 April 2021. He is a doctor at the Gold Coast University Hospital. He says the complainant attended the hospital at 5:00pm on 11 March 2019 and that she said to him “daddy put his D in my bum. Put his D in my mouth in the shower and in my room. He would spit on his fingers and on his D, he put his D in my bum”. He said that the complainant told him it started when her mother went to work, and the most recent time of sexual abuse was when her mother went to Melbourne. He said that the complainant told him there had been between 30-50 incidents over a 10 month period. He said that initially the complainant was quite shy and was whispering to her mother rather than responding directly to him, but that after a short period the complainant was speaking quite freely.
- It seems odd that during this discussion the complainant was able to refer to a period of 10 months rather than 2000 or 3000 days or weeks, although this may be influenced by the fact that the complainant is said to have been whispering, initially, into Alanna’s ear and then Alanna has given the history.
- He said that the complainant told him “Daddy broke up with mummy because they were fighting” and that he was “cheating on mummy all the time”.
- He said that he did not examine the complainant’s genitals or anus.
- Dr Kamalanathan gave evidence by phone on 28 April 2021. At the relevant time she was a child protection paediatrician at the Gold Coast University Hospital. She said that on 14 March 2019 she completed an examination of the complainant. At the time of her examination, she was aware of the allegation that the defendant had put his penis in her anus and into her mouth approximately 30 to 50 times over a 10-month period.
- She said she was unable to complete the examination on the complainant as she refused, so a clinical nurse completed the examination which was video recorded, and she was able to review the footage and provide findings. Her findings were that the examination of the complainant’s genitals was normal, including her hymen and anus. She said that the absence of injury does not tell her anything with respect to whether or not the sexual assault occurred as some injuries heal quickly over time. She said it was not unusual to have a normal examination at the time of seeing a child. She said the absence of injury could also be due to a child’s inaccurate disclosure of the extent of penetration.
- In essence her evidence was that she could not confirm or exclude any injury occurring to the area of the complainant’s anus.
- In cross-examination it was put to her that there was no transient injury within the 10 month period, such as bleeding, pain, mucus or discharge from a genital or anal area, reported. She agreed that there were no reported symptoms during that period from what has been documented but said that they did not directly ask the complainant any question relating to these kinds of injuries and the history that was provided was provided by Alanna.
- In cross-examination she was asked whether the absence of injuries could exclude penetration to which she responded that it does not. After further questioning in the same vein she said that she could not determine what kind of penetration, if any, had occurred and that she could only explain whether she observed any injury at the time of examination.
- In cross-examination she agreed that Alanna told her that the complainant had been showering with her and had said: “it feels yucky behind because of daddy”.
- The defendant participated in a record of interview with police on 12 March 2019. When informed that the purpose of the interview was for a sexual assault complainant by his daughter he said “…you’re making me absolutely sick and disgusted that someone would say that about [my] own daughter”. He went on to say that “this is the exact same thing that happened to [my] brother with his kids…with his ex-misses and they were all found out in court to be [lying]…I half expected this to happen anyway.”
- He said that his kids are his absolute world and that they get along, but do not really do much because he is always working. He said that he works six to seven shifts a week, getting up to go to work at 5:00am and returning to the house between 5:00pm and 7:00pm. He said that the times he looks after the children after work he either picks them up from Fern’s house or Violet comes to his house to help. He said that he only has one shower a day and that is at night.
- He said that the children do their homework and then they shower. He said that Baxter and the complainant will usually shower together. He said they then have dinner and go to bed at 8:30pm. He said the children, except Baxter, usually sleep in their own rooms. He said that the complainant sometimes sleeps in another room with one of her siblings and mentioned that he remembered all of the children sleeping in his bed the night that Alanna went to Melbourne.
- Regarding the night and morning relating to the Melbourne trip, the defendant said that Violet came over to help him with the children that night. He said that Baxter, Lucas and the complainant slept in his bed, Baxter positioned next to him and then the complainant on the other side of Baxter. He said that in the morning he woke up at 5:00am, went outside for a cigarette, had a coffee and then went to work. He said that the children were asleep when he left and that he did not speak to any of them that morning. The police officer put to him that on the day he flew to Melbourne he anally raped the complainant and then made her have a shower and got her ready for school. The defendant said that was absolutely disgusting and not true and that it does not make sense because he did not have a shower that morning and Violet got the kids ready for school. He said there was never any sexual interaction between himself and the complainant in the shower and that she has never touched his penis.
- It was put to him that when Alanna was at work, he anally raped the complainant in the shower, the shed, the living room, his bedroom and her bedroom. He said that this never occurred and the only reason he thinks those accusations have been made is because “she’s just being nasty…doing the exact same thing that [my brothers] partner did to him when he ran out of money”. This appears to be a reference to Alanna, rather than to the complainant.
- When he was told that part of the allegations is that he spat on his fingers, rubbed it on the complainant’s bottom and put his penis in her bottom. He said “…don’t you think that my kids would be crying or screaming, there would be blood everywhere and something would have been done about this a long time ago?”. He further said that nothing had occurred.
- He said that there have been times where the complainant has been exposed to sexual intercourse occurring between himself and Alanna. He said that the children have all been exposed when they open the door and walk in. He said that they tell them to go away and that the complainant “knows what’s going on”, which seems to be a reference to the fact that the complainant knows what sexual intercourse is. He also said that the complainant has seen sexual scenes in television shows and movies that himself and Alanna watch.
- He said that he never threatened the complainant not to tell anyone what happened between them.
The parties’ submissions
Submissions on behalf of the crown
- The crown submitted that the complainant’s young age, being six to 10 at the relevant times, should be taken into account in a significant way. In making this submission the crown relied on R v LAS  QCA 65 where it was highlighted that witnesses of such young age are not likely to be reliable historians and that discrepancies, inconsistencies and later extraction of extra information are a product of youth rather than suggesting unreliability and ultimately a rejection of their account. However, as I have commented above, I was left concerned as to the complainant’s reliability after making appropriate allowance for her young age.
- The crown submitted that there are seven features of the complainant’s evidence that support its acceptance. It is convenient to deal with the first two features together, being her demeanour and that she was a frank witness.
- The crown contends that the complainant was an honest and reliable, albeit restless, witness. It is submitted that she would pause and cast her mind back to remember certain details and that she used gestures to explain herself but also different positions she was in when the alleged offending occurred. The crown submitted that the complainant was strong willed and that her reluctance to speak about the offending at some points is understandable in the context of the subject matter she was recounting and also in light of immaturity leading to avoidance techniques in children when being questioned. The crown submits that nothing should be made of the leading questions used in her first s 93A statement because the complainant volunteered that the defendant was “doing rude stuff to her”, because she later responded to open questions with great detail and because her account is consistent with other witnesses. The extent of consistency in accounts is something that concerns me given the timing of the complaints, the suggested motive for it and the (albeit weak) suggestions of coaching. I am also concerned as to the purpose of the train ride in this respect.
- With respect to frankness the crown submit that the complainant agreed she was angry with the defendant, that she now calls him ‘the sperm donor’ and that she admitted in the s 21AK hearing that at that time she had no memory of her father doing “SEX or rude things to her”. The crown submits that these frank admissions demonstrate honesty, but also the imperfections in a person’s memory especially in respect of children. The crown submitted that there was a long time, two years and 17 days, between the complainant’s first s 93A statement and the s 21AK hearing, and that the complainant’s s 93A statements should be considered the best evidence. The crown submits that despite her lack of memory at the s 21AK hearing, the complainant confirmed the truth of the s 93A statements and rejected certain propositions that were put to her suggesting that the offending never occurred. The crown submitted that other concessions were made by the complainant, including that she was close to her father before the domestic violence incident and that Violet had asked her questions about SEX on the train and that she was helping her remember things. In respect of their close relationship, the crown submitted that the relationship between father and daughter is complex and that it is understandable that a young child who loves her father would want to be in his company despite the offending. In respect of the train ride, the crown submitted that any implication of coaching should be rejected because there is no evidence of it from the complainant and Violet said that she did not raise sexual things with the complainant.
- In my view there are multiple difficulties with this submission. As I have already said, the absence of memory in respect of sexual offending of such a prolonged and violent nature is not something dealt with in R v Allen (a pseudonym). Secondly, the basis upon which the complainant could logically confirm the truth of the 93A statements when she had no memory of the underlying offending is unclear. Thirdly, as I have mentioned above, her closeness to the defendant, including seeking him out when he was working at the computer and choosing to sleep in his bed the night before he went to Melbourne, is very difficult to explain in respect of such prolonged alleged offending and in particular, offending of such a sexually violent nature. Finally, the submission as to the implication of coaching in relation to the train ride proceeds on the basis that Violet should be accepted when she says that she did not raise sexual things with the complainant. However, the complainant’s evidence was to the effect that Violet had helped her recall what she had told the police.
- The crown submitted that the third reason I should accept the complainant is because there was a presence of details of the offending that are indicative of a genuine account. The three examples referred to in the crowns outline are as follows:
“3.20. One of those details was provided in the first 93A interview when the complainant described that “this is the scary part … because he has like softly bit me on the ear.” A detail like that defies fabrication.
3.21. During that same interview the complainant explained that “I was keep on moving and he told me to stop moving then he went into my room and I was keep on moving, if I keep on moving that’s how he actually doesn’t do it if I keep moving.” Again that is a detail that speaks of something experienced.
3.22. The most telling detail was the complainant’s evidence that her father would spit on his hand and his penis before putting it into her bottom. A child of 6 – 7 years of age would not know about this type of conduct unless it had been experienced. The defendant will likely make the argument that the complainant’s mother provided her with this detail, this should not be accepted for the reasons outlined at [3.38] – [3.39] and [3.41].”
- I do not accept that those examples defy fabrication and that is particularly so in circumstances where there are well-founded allegations in this case as to the curiosity in relation to the timing of the complaint coming not after the appalling domestic violence of 9 March 2019, but only after it was found that the defendant had been cheating on Alanna with Diana. Not only was the complainant told about that seemingly immediately, there was also a marked change in Alanna’s attitude from that time. I am also conscious that this is a matter in which it is suggested, again not without any basis, that some kind of coaching might have taken place. There was a train ride enjoyed by the complainant and her paternal grandmother where the complainant conceded that her grandmother was helping her to remember what she had told the police. Whilst Alanna wished to dispute whether or not the complainant was aware of the cheating with Diana prior to the visit to the hospital on the evening of 11 March 2019, she was obviously made aware of that as is clear from Dr McCollow’s evidence. Whilst it is true that Alanna accepted this, that was not her evidence as originally given. Nor do I find it particularly persuasive that she gave evidence that she would not put her child through what she now knows to be the very difficult experience of a criminal trial. I consider that the three matters identified may well be, at least in part, consistent with the complainant being helped to remember what occurred.
- The fourth reason the crown submit that I should accept the complainant as honest and reliable is because of what is submitted to be the logical progression of how the complaint came to be known. The crown submitted that delay in the complainant’s complaint should not be criticised and that the disclosure she made to her parents regarding Leo’s behaviour is a completely different situation to telling someone about the defendant’s behaviour. Further, the crown submit that the complainant told Alanna and Fern in circumstances where she now felt loved and safe because she was assured that the defendant was in jail and not coming home for a long time. In that respect they rely on the complainant’s evidence in the 93A that “…if he goes to jail that’s when I’ll tell mum and it happened yay it happened yeah he’s in jail for doing that stuff.” I do not accept the submitted logical progression of how the complaint came to be known. In my view, it is illogical by reference to the events of 9 March 2019 and is instead explicable by reference to the rapid and marked change in attitude of Alanna once she found out that the defendant was cheating with Diana. The complaint was rapidly made thereafter with the complainant spending much of her time focusing on that issue rather than anything else. The complaint was also made after a lengthy conversation between the complainant and Alanna and also between the complainant and Stephanie. The apparent detail or amount of time spent in each of those conversations only emerged in cross-examination.
- The fifth reason the crown contend I should accept the complainant’s account is because her disclosures to others show consistency in her account. The crown submitted I should find that Leo’s account corroborates the complainant’s because the letters “S-E-X” were used by both of them when explaining the conduct and the fact that nothing about disclosure to Leo was asked of the complainant in her 93A interview. The crown submits that her lack of detail in disclosure to Leo is due to her age and that I should accept Leo’s account of the disclosure and reject that of Lucas. To rely on Leo’s evidence as preliminary complaint it must be “about the alleged commission of the offence” and the crown contends that his evidence is about the alleged maintaining offence because it related to the period where Alanna was doing “beer work”.
- As I have already identified I have some concern as to the consistency between the complainant’s account and the evidence given by Alanna having regard to the matters, I have already set out concerning the genesis of the complaint and the involvement of Violet. As to Leo’s account, I reject the submission that his account corroborates the complainant’s because he in fact gives evidence of an alleged event which the complainant gives no evidence of. Also, his evidence as to the disclosure of the complainant on the trampoline is not corroborated by anyone. Further, I am concerned as I have already identified as to his reliability in circumstances where he had a strong motive to raise matters relevant to the complaint for the first time well over a year after it was made.
- It is contended by the crown that Fern’s account is consistent with the complainant’s evidence and that its lack of detail is explained by Fern directing the complainant to speak to Alanna.
- With respect to Alanna, it is submitted that there is a significant degree of consistency between what Alanna gave evidence of and the complainant’s evidence. It is submitted that the kind of offending disclosed by the complainant to her is consistent with what she told police in her s 93A statement, including details such as the spitting, the places that it happened and the specific details comprising count two. The crown submits that one difference in the two versions is how many times the offending was said to have occurred, which should be disregarded given a young child’s inability to accurately estimate numbers combined with the habitual nature of the alleged offending. With respect to coaching, the crown submitted that Alanna’s rejection of these suggestions in cross-examination was compelling and reasonable especially where she also made concessions that are not in her favour. It is further submitted that Violet had no actual grounds for suspecting coaching and that the complainant also denied being coached when cross-examined about it. In terms of the motive to lie, the crown submitted that it was never put to Alanna that she promised the complainant money to talk to the police. The crown submitted that the fact the complainant said she might be getting money from her mother at the end of a long interview should not be given great weight especially where she had received pocket money in the past and was only seven years old.
- I have already dealt above with what I see as potential explanations for the degree of consistency between what Alanna gave evidence of and the complainant’s evidence. That, in my view, is a matter which causes me concern rather than comfort. Although, as I have said, I give Violet’s evidence as to potential coaching very limited weight, I am very concerned as to the genesis of the complaint and the potential for coaching. I am simply not in a position to tell to what extent any coaching arising out of the long conversations before the complaint was made to police, the genesis of the complaint and from the train and tram trip during which Violet assisted the complainant to recall what she had told the police, might actually affect the evidence.
- The crown submitted that Jordan’s evidence corroborates the complainant’s as he recounted that the complainant said that the defendant would do stuff to her in the shower, like play with her bum and that. The crown submitted that the lack of detail in his account was due to him only hearing part of the conversation and that he provided his evidence over a year after he heard the disclosure. The crown submitted I should accept Jordan’s evidence as he was frank in making concessions. I am concerned as to Jordan’s evidence because he was quite frank in the level of dislike he felt for the defendant and also because, if the evidence of Fern is to be accepted as the crown submits it should, it is difficult to see how he could heard the conversation or if you accept Alanna’s evidence, he heard much more of it.
- The crown submitted that Dr McCollow’s account of what was disclosed by the complainant to him is significant because it is consistent and because he is an independent witness. I do not accept the submission that Dr McCollow’s account is of any great significance given its consistency and his independence. First, the communication to him comes soon after what I have described in detail above as to the development of the complaint and the circumstances in which that occurred. Obviously for that reason one would expect consistency. Secondly, it is not at all clear which parts of that conversation with Dr McCollow were said to consist of Alanna communicating to him what was said to have been whispered in her ear by the complainant. Overall, this consistency does not give me any comfort.
- The sixth reason that I should accept the complainant, as submitted by the crown, is because her account is corroborated by other witnesses. The crown submitted that the complainant’s account of count two is supported by the evidence of Alanna, Fern and to a degree the defendant and Violet. With respect to the maintaining count, the crown relies heavily on the evidence of Leo. It is submitted that his evidence corroborates the complainants as:
- (a)He described that when the defendant cared for the children he would go into his room with the complainant and close and lock the door; and
- (b)He saw the complainant sitting on the defendant’s lap at his computer and the defendant grabbing the complaint’s hand and rubbing it on his private part. The crown acknowledges that this is not corroboration in a traditional sense because it is related to offending that the complainant did not describe. It is submitted that his account of this was genuine and that the complainant’s acceptance during cross examination that nothing happened at the computer chair was related to her poor memory. I have already addressed the submissions as to corroboration by Alanna, Fern and Leo. I do not accept that the evidence of the defendant or Violet corroborated the complainant’s evidence in any relevant respect. In any case, I am concerned as to the timing of the complaint to police and coaching as I have already mentioned.
- The last reason that the crown submitted I should accept the complainant is because the defendant had the opportunity to commit the offences. The crown submitted that when Alanna was at work it was the defendant’s job to look after the children and that the way defence case was put to the complainant demonstrates it is not contested that the defendant had the opportunity to offend. With respect to Violet’s evidence that she would stay at the house until the children were asleep, the crown submits that it is strange that the defendant, a father of five, had essentially no alone time with the children despite his wife having multiple night shifts.
- The crown submitted that they rely upon the admissions against interest made in the defendant’s record of interview to the extent they relate to his opportunity to offend against the complainant. The crown submitted that the defendant had the opportunity to offend during the maintaining period based on his statement that he looked after the children sometimes two or three times a week. It is also submitted that he had an opportunity on 1 March 2019, which is the alleged occasion of count two, to offend against the complainant. The crown also points to inconsistencies in his evidence regarding the morning of 1 March 2019 given that he first said he could not remember if the children were asleep when he woke up and then later said that they were still asleep when he left for work. Having regard to the matters I have identified already in my comments on the evidence and submissions, I do not regard it as of any particular significance that the defendant had the opportunity to commit the alleged offences.
Submissions on behalf of defence counsel
- Defence counsel made submissions regarding the high standard of proof that applies in this case and noted that even if the court considered that the defendant might be guilty; was probably guilty or that the court had a strong suspicion about guilt, the verdict should be not guilty.
- Counsel for the defendant submitted that I should doubt the reliability of the complainant and the crown’s evidence as a whole, pointing to several aspects of the crown case. I have addressed most of those as I have considered the evidence and the submissions for the crown, but I will also make comments on the defence submissions in the following section.
- Defence counsel submits that the complainant’s evidence is uncorroborated. It was submitted that I should accept the defendant’s evidence given in the record of interview as the defendant:
- (a)did not try to distance himself from the complainant and confirmed that she and other children had slept in his bed the night before he went to Melbourne. In this vein it was submitted that every father has the same opportunity and evidence of opportunity is irrelevant;
- (b)provided persuasive statements;
- (c)was upset by the allegations and considered Alanna to be behind them;
- (d)made the statements in circumstances where he was clearly tired after the events of 9 March 2019 and his arrest. It was submitted that he was clearly weary, but not disinterested and that there was nothing in his demeanour consistent with lying; and
- (e)gave answers to the questions in circumstances where the nature of the complaints was not known to him.
- Ultimately it was submitted that there is simply no reason to reject his statements and they raise reasonable doubt.
- Regarding the way in which the complaint developed, defence counsel submits that the following chronology should be accepted: the domestic violence incident occurred on 9 March 2019, on 10 March 2019 Alanna spoke amicably with the defendant regarding property (a conversation she did not tell police about), on 11 March 2019 Alanna then became aware that the defendant was with Diana and there was a change in her attitude and then disclosure was made by the complainant. Defence counsel submits this account is supported by Fern who said, contrary to the evidence of Alanna, that the complainant told her, then her mother and then the complainant and Alanna had an approximately hour-long conversation alone and then the complainant had a conversation with Stephanie. Defence counsel submitted that this chronology puts a significantly different and disturbing light on the circumstances giving rise to the complaint and it is significant that Alanna does not refer to it in this sequence. It was also submitted that Fern gave evidence that the complainant was told by Alanna that the defendant had been with Diana before making the disclosure. Ultimately, it was submitted that the complaint was not made spontaneously upon becoming aware that the complainant was ‘safe’ from the defendant. Rather, the complainant was likely quizzed at length by two important and influential people. Defence counsel submits that Alanna was angry, and the court should assess her attitude at the time the complaint arose, therefore dismissing her statement at trial that she would not put her daughter through this.
- As I have already addressed, I have significant concern about the timing of the complaint, the length of conversations with the complainant prior to it being made and that it appears to have been related to Alanna finding out that the defendant was cheating with Diana and communicating that to the complainant.
- The first disclosure beyond Fern and Alanna occurred to Dr McCollow at the hospital. Defence counsel submitted that Alanna was present for that and the complainant’s account focussed on how the defendant was cheating on Alanna. I accept that submission.
- It was submitted that any ‘consistency’ between Alanna’s account and the complainant’s account is a plain and obvious demonstration of the influence Alanna had on the complainant and her questioning of her.
- Defence counsel made numerous submissions about the complainant’s evidence and how I should assess it. While they are lengthy it is more convenient to simply quote them rather than summarising them. They are as follows:
“THE EVIDENCE OF THE COMPLAINANT
- The evidence of the complainant consisted of two 93A recordings – 12/3/2019 and 15/4/2019 and he evidence pursuant to Section 2AK taken on 29 March 2021.
- The delay between 93A and 21AK should not disadvantage the defendant when the court considers the evidence of the complainant generally.
- As I have submitted above and will further develop the child’s lack of memory was apparent from the start. This is a case where her lack of memory at 21AK is very significant. I make that submission fully appreciating that a child is not just a small version of an adult and has different memory capacities. However, even taking that into consideration this lack of memory is particularly disturbing.
- Your Honour will direct yourself in respect of the taking of children’s evidence; Section 93A and Section 21AK. Your Honour will also direct yourself in terms of Section 102 of the Evidence Act regarding the weight to be given in respect of this evidence, particularly as to whether the complainant had any incentive to misrepresent facts.
- The first 93A was conducted at 11.05am on 12 March 2019: By that time she had been spoken to at length by her mother; showered with her mother and spoken to [Stephanie].
- She begins by telling the police about the incident that led her father to leave the house and after speaking about fuel in her dad’s boat she tells the police that, which in my submission is foremost in her mind and comes from her mother, that ‘he’s been cheating on my mum’, (6 of 18). She details significant information about the ‘junkie’; not wanting a step mum etc. She has further information about [Leo’s] nan which she puts in these terms “my brother has to live with my nan, with his nan, not my nan and she has done nothing wrong cause she told my mum what happened. (7 of 18).
- Her focus is clearly, as it was when she spoke to Doctor McCollum, on her father’s infidelity and its impacts on her mother.
- Importantly she is still referring to the defendant as Dad: Her mother’s continuing influence on her is obvious at the 21AK where he is called by the complainant ‘the sperm donor’.
- At about this point she asks the male police officer to go and gives some insight into her own ‘snooping and listening’ conduct when she talks about putting her ear to the door. (8 of 18)
- Following her account of her father’s cheating with the ‘junkie’ she gives the account (in my submission the only account of the alleged interference).
- In respect to Count 2 she asserts that she is in the bed; that she took over the bed and asserted that the brother wasn’t there. This is of course not consistent with the evidence of [Violet] or the defendant’s record of interview.
- She initially seems confused about insertion of the penis into the vagina and asks to see ‘Nanny’. (11 of 18)
- She is asked where he does this (seemingly the S.E.X) and she nominates his room, he does it in the shower, he does it in the shed and he has done it in the front lounge room.
- She at no time makes any allegation or assertion consistent with the much belated assertions of [Leo] that he placed her hand on his penis at the computer.
- That he would S.E.X her in the lounge is inherently improbable: The court has photographs of the open plan layout; the house is full of other children; and [Violet] was usually there until 9.30pm on the nights that [Alanna] worked.
- Despite assertions from [Alanna] the suggestion that this complaint arose because dad wasn’t going to be around anymore isn’t necessarily born out in the first 93A. She appears to be wanting ‘dad’ (as he then was called) to be put in jail for 3 days or 50 days, or 60 or 100 days (11 of 18)(13 of 18)
- When the complainant asserts that her dad told her that if she told she would be smacked it is my submission that her presentation is particularly unconvincing. (14 of 18).
- Of particular importance to my later submissions, she asserted in this first 93A that he softly bit her on the ear and kissed her on the lips. Seemingly in the shed.
- When asked about whether she was sore afterwards, the interviewing officer confirms she demonstrated no as the answer (10 of 18).
- She then goes on a train and tram ride with [Violet] and enjoys some treats.
- On 15 April 2019 she is further interviewed pursuant to 93A. He mother is present at the police station.
- (i)She commences by saying that dad punched mum and pulled her hair and smashed her phone and that the police officers “should be writing about the stuff that dad did to me”. (3 of 16);
- (ii)She suggests that yellow stuff (phlegm clearly) might be from dad putting his D in my M. (4 of 16);
- (iii)She is asked about the last time ‘when he was leaving he did the stuff to me before he went on a holiday with mum (4 of 16). She seems to equate this time to dad hiding in a hotel with my brother’s mum – and she returns to the theme of ‘cheating on mum’ (5 of 16) She then indicates that she calls him [the defendant’s first name] cause he is not her father any more. (5 of 16)
- (iv)She says in the morning he ‘did that stuff to me’. She seems to say that initially that he didn’t put the D in there when it happened that day’. She then returns to the theme of the defendant being a woman killer and he can’t be with a woman. (6 of 16).
- (v)This is the first time (on 15/4/2019) that she articulates an assertion ‘if he goes to jail that’s when I’ll tell mum’. There is nothing spontaneous about that assertion (7 of 16).
- (vi)When asked about the bed she said he leaned my butt up so he could do it “and then when asked “what happened then? And she replies Nothing he left” (8 of 16).
- (vii)She then gives an account of washing slobber from her butt which was gross. (8 of 16). Such evidence has no reliability once it is established that the complainant’s mother was showering with her and no doubt questioning her. None of this was said by the complainant to the police in her first 93A.
- (viii)she talks again about him kissing her on the lips (8 of 16). She asserts he kissed her on the lips on a freezer in the shed/garage. (9 of 16). There was no freezer in the shed/garage.
- (ix)The complainant then talks about kissed at computer and on lounge and he puts ‘me on his body’ (9 of 16). There is no suggestion of anything occurring as alleged by [Leo] more than a year later.
- (x)She is asked about the shower (10 of 16) and it is from this time that she says:
“I don’t know I’ve forgot all about the rude stuff but not about the stuff where he did it; Rude stuff to me, I don’t know what rude stuff I forgot about, forgot what rude stuff he did to me but he did kiss me; I forgot about the rude part but I remember about him doing it in [her] room but I don’t know what rude part he used I forgot. (11 of 16)
- (xi)At 10 of 16 she returns to the theme about dad hating mummy for working and having money.
- (xii)She gives an account in the shower and says it’s so he can do ‘rude stuff’ but doesn’t say what he did that was ‘rude stuff’.
46.1 In that second 93A she displays a continuing attitude of strong support for her mother about the defendant cheating; gives no actual detail of any events other than to say ‘rude stuff’ ; asserts she can essentially recall where it happened but not what happened; and demonstrates a poor memory.
In respect of being in the bath, other than some assertions about positions she makes no allegation of any sexual act.
46.2 The assertions she makes about slobber on her butt take on a different complexion once it’s established that her mother was showering with her. Particularly in consideration of the information the child has regarding the defendant’s infidelity and its effects on her mother.
I note, most importantly, this allegation of ‘slobber’ and washing in the shower was not made in the first 93A.
46.3 From the perspective of Count 2 it seems that complainant when first asked about the morning when it is alleged to have happened said “No he didn’t put the D in there when it happened that day’. (6 of 16)
46.4 The police officer gives a summary of the extent of her memory about allegations at (15 of 16) from the third question: Do you remember any details about the first time with dad? (she shakes her head NO at this time. That questioning continues until Q: You said it happened in your room as well? A. Yeah Q But you don’t remember? Yep
- What she is asserting is kissing on the lips.
- During cross examination at the 21AK the complainant confirmed that she had spoken to a person at Bravehearts and she truthfully told that person (a lady) that she had no memory of her dad S E X’ing her or putting his D into her butt. That conversation occurred on 16 July 2020.
- That lack of memory in non-police surroundings is of particular concern as to the truthfulness and reliability of the complainant’s evidence.
- The 21AK hearing took place on 29 March 2021. She demonstrates no memory either in evidence in chief or cross-examination. This is not an allegation of a one-off incident but an allegation of a continuing relationship with variously described incidents ranging from 10’s to 100’s.
51.1 A pivotal point in this trial is the complainant’s response to a question from Mr. Mitchell for the crown in the evidence in chief. This requires a further viewing of her visual response to the question.
51.2 The question follows the tender of exhibit 9 in those proceedings. The question is “you told Kushla that [the defendant] bit you softly on the ear and kissed you on the lips in the shed or garage area. Do you remember that? A. No.
51.3 The child’s reaction to the suggestion that her father, the defendant, ever acted in that way is enlightening and sufficient, quite frankly in and of itself, to raise quite a significant doubt about the case as a whole: When confronted with the allegation her eyes become wide open like saucers and she is clearly stunned at such a suggestion.
51.4 Despite having recently watched herself and asserted the truth (without independent recall of the alleged events) she is simply stunned at the allegation.
51.5 The whole of her 21AK bears close watching: quite the contrary to the crown’s suggestion of her demeanour being somehow consistent, in my submission the opposite is revealed.
51.6 Throughout the interview she drops her eyes and takes long pauses. Some examples are:
1-24: (re count 2) When you woke up that morning, [complainant’s first name].. Your dad had already gone to work, hadn’t he” Hadn’t he, [complainant’s first name]? Yep (she takes a long pause here)
1-25: when talking about the train trip with [Violet] and she first confirmed and then denied that [Violet]told her things about sex; then was asked, what questions did she ask you? (Long pause) I don’t remember.
1-25 (line 12) And she was helping you remember the things that you told the police your dad did. That’s true, isn’t it? … Yeah
` 1-25: (line 30) It’s fair to say, isn’t [complainant’s first name], that today, sitting there, you don’t remember your dad doing any s-e-x or rude things to you. That’s true, isn’t it? Yep; You don’t remember it, do you? You agree with that? (drops eyes) Yep.
51.7 At that time she confirms that she was telling police in her second 93A that she didn’t remember what happened and specifically about Count 2 (1-25, line 43) So you were telling the police that nothing happened on that day, and that’s true, isn’t it? Yep. [It is not clear to me that a confirmation that the complainant didn’t remember what happened specifically about count two equates to the complainant having told police that nothing happened on that day.]
51.8 She reaffirms on 1-27, line 19 that she has no memory of the defendant doing any rude things to her.
- She confirms that she told Bravehearts on 16 July 2020 that she had no memory about the defendant sexing or putting his D in her butt. She agreed that that was the truth. (1-31, line 25).
- I took the complainant to the time before the defendant had caused damage and injury to her mother. This begins at 1-15, from line 12. It demonstrates a different picture entirely than that which is presented in the 93A’s. He never did anything bad that would make her call him [defendant’s first name] or sperm donor or change her surname; she got on really well with him. She confirmed she would sit on his knee at the computer and, importantly, confirmed that he never did any ‘rude stuff’ stuff to her at the computer and she would not have gone back and sat on his knee if he had. (1-22, from line 1)
- She confirmed (1-22, line 30) that she would share a couch with him; lie on him on the couch; loved being close to her dad. There is nothing sinister in this as dad and daughter, quite the contrary.
- There is simply no evidence that there was any change in behaviour; clinginess to her mother; not wanting to sleep in dad’s bed (quite the contrary); no distancing herself from him. Any suggestion by the Crown that a lack of such behaviours isn’t relevant is wrong: it’s often the first submission made by the Crown to demonstrate consistency.
- At 1-24, line 22 the complainant confirms she has never washed yucky stuff off, and [Violet] did her hair on the morning when count 2 is alleged to have occurred.
- Consistent with her second 93A she confirms that nothing happened on the morning when the alleged rape is said to occur. Count 2 must fail and have serious impact on the way the court views the other un-particularised particulars of the alleged maintaining.
SUBMISSIONS GENERALLY ABOUT THE COMPLAINANT
- By the second 93A he was [defendant’s first name], not dad
- By the 21AK she had adopted her mother’s name for the defendant: the Sperm Donor.
- The most influential person in this complainant’s life at the time of the complaint was her mother. Other influential people were [Fern] and [Stephanie].
- The Court would direct itself in respect of a Motive to Lie. Of course if rejected that doesn’t establish guilt.
- The court would be very concerned with the way the complaint developed and the anger that the mother had and the impact of that on the complainant. This has continued and has included dehumanising the defendant in the eyes of the complainant.
- The court would be very concerned regarding the 1 hour chat with her; and the chat with [Stephanie]. The court would be very concerned with the mother showering with the child; the developing (second 93A) story about slobber; and the mother’s exposure of the child to adult concepts and anger.
- It may be that the child said silly things to help her mother. It may be that the mother influenced the child and [the complainant] wasn’t fully aware of the things she was saying. [As I have said elsewhere, I am very concerned about the way in which the complaint developed and the apparent absence of memory despite the alleged events being sexually violent and prolonged.
- The court would be concerned that the defendant and child’s relationship before the fire event was not consistent with abuse.
- The Court would accept that it was [Violet] that did her hair on the morning of count 2; that dad was gone before she woke and that the other children were still in the bed; and that the complainant confirmed nothing occurred.
Once that doubt is clear it brings into real focus what has occurred when mother and complainant have showered together.
- The 21AK doesn’t just show some acceptable memory fail of a single event some time before: It is not consistent with the events actually occurring and she is clearly expressing a lack of real memory even by the second 93A.
- I again refer to her response of stunned amazement at the suggestion that the defendant bit her ear and kissed her on the lips.
69.1 At the end of the 93A she made the extraordinary (well perhaps not in terms of this case) statement: Now yous can keep him in jail and I might get money from Mummy.
69.2 The crown suggests that her account has a ring of truth. In my submission it does not. It is inconsistent within itself and over time, and even she is stunned by the kissing allegation (that’s an interesting one because she listens at doors and has accidently seen some contact between mum and dad – so her first account about S.E.X included that assertion)” (underlining in original)
- Defence submitted that there is limited use to be made of the preliminary complaint evidence in this case given the way in which the complaint arose and the fact that the complainant had knowledge of Alanna’s anger. Defence submitted that where manipulation and influence is strongly suggested, initial inconsistencies would be unlikely and the true highlight of this is the complainant’s rapid reduction of memory of abuse. As I have mentioned, I see no great significance between any consistency between the preliminary complaints and the complainant’s complaints given my concerns as to the timing and genesis of the complaints. I accept the submission that one would not expect any inconsistencies.
- With regard to how I should evaluate the evidence of the other witnesses, the following submissions were made:
- a)Leo: first, that it was never the complainant’s evidence that the defendant made her touch his penis and his account of this does not corroborate anything. Further, it was a regular occurrence that the complainant would sit on the defendant’s knee at the computer. Second, Leo has a motive to lie because he did not want to spend time with the defendant, and he was told that the court would not make him if he was a witness for the complainant. Thirdly, he got the description of the trampoline wrong and neither the complainant nor Lucas agrees that any disclosures were made on the trampoline. Ultimately, it was submitted that Leo’s evidence should be rejected as there is no corroboration. As I have already identified, I do not accept Leo as a reliable witness.
- b)Jordan: he did not like the defendant and tried his best to suggest something sinister in the normal workings of the house including bath time and the provision of pocket money. He also confirmed that Alanna first called the defendant a ‘sperm donor’ and then the complainant adopted that expression. I accept those submissions. In addition, Jordan had very little opportunity on the face of other evidence to have heard anything.
- c)Violet: that her concern over the complainant’s statement should be the courts concern as well given that she is not a stranger to the matter. Specific attention was drawn to the train/tram ride and the conversations that occurred, which was after the first 93A statement, but before the second 93A statement and that she was regularly at the house meaning she would have been well aware of the defendants limited opportunity to offend as alleged. Defence submitted the court would accept that Violet did the complainant’s hair the morning the defendant went to Melbourne. I have already mentioned that in relation to Violet I give the suggestion of coaching very limited weight, however, I cannot exclude that as a possibility particularly having regard to the timing and genesis of the complaint and the degree of consistency between Alanna and the complainant. I am also concerned as I have elsewhere identified about what occurred during the train and tram ride. Both matters alone leave me with reasonable doubt as to whether the prosecution has proved the defendant’s guilt of the charges.
- d)Medical evidence: that the medical evidence is not neutral because of a normal presentation at investigation. The absence of any injury, or any evidence of even transient injury, over the period of time- such as complaints of pain, toileting issues, blood in underwear- is completely inconsistent with any suggestion of adult male penile penetration of the anus of the complainant, a small child. The difficulty with that submission is it tends to assume without any medical basis that some injury at some time would have been found.
- I have set out above comments on the evidence and the submissions made for both the crown and the defence.
- I am not satisfied that the complainant’s evidence was reliable. I am particularly concerned as to the timing of the complaints to police. I do not accept that the complaints were made after the complainant felt safe following the domestic violence incident on 9 March 2019. Instead those complaints were made very rapidly after Alanna had become aware that the defendant had been cheating with Diana and after she had advised her young daughter as to that. While I am concerned as to these matters, I do not find that the complainant deliberately lied even though I found that she had a motive to lie.
- As to coaching, while I give very little weight to the evidence of Violet on this, I am concerned, as I have attempted to set out above, as to, the timing and genesis of the complaints as well as the very lengthy conversations which appear to have preceded the complaints being made. Having regard to the actual content of the complaints, it is difficult to imagine what those very lengthy discussions were about if they were simply reciting what is alleged to have occurred. Equally, I am concerned as to the tram and train trip during which the complainant said that Violet was assisting her to recall what she had told the police.
- As to issues of preliminary complaint, I have dealt with what I consider to be the unreliable nature of Leo’s evidence above. I also do not consider, again as I have set out above, that Jordan was in a position to have overheard what the complainant was discussing with Fern or Alanna. I am also concerned that he had a clear dislike for the defendant and agreed that he had been trying to think of bad things to say about him.
- Further as to the evidence of Leo, I note that it took a great deal of time before he gave any statement to the police and he did so in circumstances where he plainly wanted nothing further to do with the defendant. There is no support at all in the evidence of others as to Leo’s version of the alleged disclosure to him on the trampoline. Likewise, there is no corroboration at all for Leo’s evidence of an alleged sexual touching to which the complainant does not refer. Even though I found that Leo had a motive to lie, I do not find that he lied, rather I find him an unreliable witness for the reasons I have expressed.
- As to Alanna’s evidence, I am, as I have identified, very concerned as to her complete change in attitude towards the defendant and I am concerned that she did not mention that to the police. I note again the correlation in time between the awareness of Diana being with the defendant, the communication of that to her daughter and the complaints being made shortly thereafter. I thought she sought to distance herself from the affair being a significant feature when it is obvious that it was. I am also concerned at the length of the alleged conversation between Alanna and the complainant and the conversation with Stephanie which was not identified to the police. As I said above, I consider Alanna to have had a motive to lie. Ultimately, I need not find that she did lie, because at the very least I find her evidence unreliable for the reasons I have expressed.
- As I have mentioned, in relation to the complainant’s absence of memory at the time of the s 21AK hearing, this is not an absence of memory of some one-off event. The events alleged to have occurred are sexually quite extreme having regard to the complainant’s age in particular and are repeated many times.
- Finally, I found the defendant’s evidence credible and reliable.
- My conclusion is that the evidence as a whole (including the defendant’s sworn denials) does not prove the case to the required standard. Accordingly, the verdicts are not guilty.
 The particulars are MFI “B”.
 The particulars are MFI “B”.
 The admissions document which became exhibit 18 set out the specific charges that the defendant pleaded guilty to and how long he was remanded in custody for.
 R v Pentland  QSC 231 at -.
 R v Allen (a pseudonym)  QCA 233.
 R v LAS  QCA 65, .
R v Allen (a pseudonym)  QCA 233, .
  QCA 233.
 Defence counsel outline of submissions paragraph 25-68.
 Compare this with the submission in paragraph 45(vii) which appears to be based on showering in between the two dates.
- Published Case Name:
R v Perry (a pseudonym)
- Shortened Case Name:
R v Perry (a pseudonym)
 QDC 102
Judge Jackson QC
11 Jun 2021