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R v MRB[2021] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

R v MRB [2021] QDC 294

PARTIES:

The Queen

v

MRB

FILE NO:

 

DIVISION:

Criminal

PROCEEDING:

Judge only trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

23 November 2021

DELIVERED AT:

Southport

HEARING DATE:

2 and 3 November 2021

JUDGE:

Dann DCJ

ORDER:

Not guilty on the count of indecent treatment of a child under 16, under 12, who is a lineal descendant

CATCHWORDS:

CRIMINAL LAW – JUDGE ONLY TRIAL –  PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES  – VERDICT – where the defendant is charged with one count of indecent treatment of a child, under 16, under 12, who is a lineal descendant – where the defendant was previously acquitted by a jury of the other count on the indictment   where the complainant is the defendant’s daughter – where the defendant and the mother of the complainant were separated at the time of the offending and shared custody of the complainant  – where the alleged offending occurred in 2019 when the complainant was staying with the defendant– where the nanny employed by the defendant went into the complainant’s bedroom one morning and the defendant was in bed with the complainant cuddling her and waking her up   whether the complainant was in a distressed condition when the nanny came into her room  where the nanny later questioned the complainant about her and the defendant in bed   whether the nanny pushed the complainant in the questions she asked her with a potential for the complainant to be led – whether the complainant had a motive to lie – whether the complainant’s evidence of the touching is reliable – whether the defendant is guilty or not guilty of the charge 

LEGISLATION:

Criminal Code Act 1899 (Qld), s 615B, s 615C

Evidence Act 1977 (Qld), s 93A, s 21AK, Division 4A

CASES:

R v GJL [2021] QCA 175 cited

R v Pentland [2020] QSC 231 cited

COUNSEL:

S J Gallagher for the Crown

S W Zillman for the Defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Qld) for the Crown

Sibley Lawyers for the Defendant

 Introduction

  1. [1]
    This is a judge only trial before me on 2 and 3 November 2021. This court granted the application for the trial to be conducted by judge alone on 27 July 2021.  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.
  2. [2]
    The defendant (MRB) is charged with the following offence:

That on the twenty-ninth day of April 2019 at Gold Coast in the State of Queensland, [the defendant] unlawfully and indecently dealt with [the complainant] a child under 16 years.

And [the complainant] was under 12 years.

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

  1. [3]
    The crown particulars of the offence are that there was touching of the vaginal area over the clothing with the hand.
  2. [4]
    The defendant pleaded not guilty.
  3. [5]
    The defendant contends that there are two issues. The first is whether the defendant touched the complainant (ELB) as particularised by the Crown. The second issue is, if I determine that he did, whether that is a deliberate touching, so as to be indecent.

Elements of the offence

  1. [6]
    To prove the offence of indecent treatment of a child under 16, under 12, who is a lineal descendent, the crown must satisfy me that:
    1. (a)
      The defendant dealt with a child;

“deals with” includes a touching of the child, by any part of the defendant’s body and the touching of the defendant by the child.

  1. (b)
    The dealing was indecent;

“indecent” bears its ordinary every day meaning; that is, what the community regards as indecent.  It is what offends against currently accepted standards of decency.  Indecency must always be judged in the light of time, place and circumstances.

  1. (c)
    The dealing was unlawful;

“unlawful” means not justified, authorised or excused by law.  No justification, authorisation or excuses arise for consideration.

  1. (d)
    The child was under 16 years of age;

ELB’s birthday was the subject of a joint admission in the trial. For these reasons it suffices to say the parties admitted the complainant was nine years old on 29 April 2019. Consequently, it is apparent that ELB was under 16 at the time of the alleged offence.

  1. (e)
    The child was under 12 years of age;

As for (d), it is apparent that ELB was under 12 at the time of the alleged offence.

  1. (f)
    The complainant was, to the knowledge of the defendant, his lineal descendant.

Lineal means being in the direct line of descent from an ancestor. It was jointly admitted in the trial that ELB was, to the knowledge of MRB, his lineal descendant.

Factual background

  1. [7]
    ELB was born in September 2009. MRB is ELB’s biological father. At the time of the alleged offending, the defendant and ELB’s mother (CDG) were separated and not living together. MRB and CDG had an approximately equal share custody arrangement of the complainant and her younger sister (JNB).
  2. [8]
    On Saturday 27 April 2019, whilst under MRB’s care, ELB stayed at a friend’s house. The next day, Sunday 28 April 2019 both ELB and her sister were back with MRB. ELB stayed at the defendant’s house that night and woke up in her bed the next morning on Monday 29 April 2019. The charge arises out of events said to have occurred on the morning of 29 April 2019 when the defendant went into ELB’s bedroom and got into her bed to wake her up.
  3. [9]
    The defendant employed a nanny (CHL) who lived on the property to assist him with ELB and her sister (JNB). CHL was in the kitchen of the home on the morning of 29 April 2019 making breakfast.  MRB told her he was going into ELB’s room to wake her up.  About 10 minutes later CHL went into ELB’s bedroom, got ELB, (there is an issue in the trial as to how CHL got her and ELB’s level of distress), completed the morning routine and dropped the children to school. She had a conversation with ELB that morning.  At the end of that school day ELB and JNB returned to their mother’s house.  On Thursday 1 May 2019  ELB returned to stay overnight with MRB after school. On 2 May 2019 in the morning before school CHL instigated a further conversation with ELB in MRB’s absence about events on the preceding Monday morning.  MRB took ELB to school (it was crazy socks day).  As a consequence of the conversation CHL had with ELB, ultimately, later that day, CDG took ELB to a general practitioner and thereafter to the police station where her first interview with the police was recorded.  CDG and CHL each gave the police written statements that day.
  4. [10]
    In March 2021 the defendant was tried before a jury in respect of the count currently before me and a count alleging indecent treatment of the complainant on an unknown date between 26 December 2018 and 29 April 2019. The jury acquitted the defendant of the latter count and was hung on the count which is now before me.

Relevant principles/directions

General application

  1. [11]
    In R v Pentland [2020] QSC 231 Martin J conveniently collected a number of general principles applicable in any criminal prosecution which I have applied and reproduce as follows:

“[12] The prosecution has the onus of establishing the offence charged beyond reasonable doubt.  There is no onus on the defendant.

[13] In arriving at a verdict I must act impartially and dispassionately and only on the evidence received at the trial.

[14] 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.

[15] 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.

[16] 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.

[17] 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.

[18] 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.

[19] The defendant has not given or called evidence. That is his right. He is not bound to do so. The burden on the prosecution does not change and the fact that the defendant did not give evidence is not evidence against him. It proves nothing at all.  ...”[1] 

Reasonable doubt

  1. [12]
    For the crown 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 offence charged.  Proof beyond reasonable doubt is the highest standard of proof known to the law.
  2. [13]
    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.

Principles specifically relevant

Section 93A statements

  1. [14]
    The complainant is a child.[2]  Her 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 take into account that presenting children’s evidence in this way comprises the routine practice of the Court and is adopted in every case involving children such as the complainant.
  2. [15]
    The recordings were tendered, and I was 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 not evidence and are merely an aid. It is what I heard on the recordings that matters, not what is in the transcripts.  In coming to the conclusions in these reasons I have had specific reference to the recordings of the complainant’s evidence.

Pre-recorded evidence

  1. [16]
    The complainant[3] 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:
    1. (a)
      at the time the child gave evidence, she was in a room which was separate from the courtroom;
    2. (b)
      the evidence was given by use of an audio-visual link between the room in which the child was seated and the courtroom;
    3. (c)
      at the time the child gave evidence there was a support person sitting in the room with her, and no other person;
    4. (d)
      whilst the child gave evidence, all non-essential persons were excluded from the courtroom;
    5. (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;
    6. (f)
      the child’s evidence was recorded as it was given and that is the recording that was played during this trial;
    7. (g)
      the courtroom was closed, and all non-essential persons were excluded while the pre-recorded evidence of the child was played;
    8. (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.
  2. [17]
    As with the s 93A interviews, I was provided with the transcript of the recording. I instruct myself in the same way in respect of this transcript as for the transcripts of the 93A interviews. 
  3. [18]
    There were some obvious places in the various recordings where editing occurred.  I do not draw any inference adverse to the defendant as a result of this.

Motive to lie

The complainant

  1. [19]
    In cross-examination, ELB was asked questions concerning a motive for her to lie in her account concerning the conduct of the defendant. 
  2. [20]
    This motive had two main aspects:
    1. (a)
      She was prepared to tell lies about her father to her mother if she did not get what she wanted.  This was what she said to her father; and
    2. (b)
      Whilst she wanted to sleep in her Dad’s bed, her Mum had told her she was not allowed to and ELB was worried her Mum would get mad if she did.  She also knew her Mum was critical of how her Dad looked after her and wanted to take her away from him.
  3. [21]
    I have set out this evidence below. It was not expressly put to ELB that she lied about the allegations because of either of these aspects of the evidence.
  4. [22]
    If I reject the motive to lie put forward on behalf of the defence, that does not mean that ELB is telling the truth.  If there was a motive, the defendant may not know of it.  There may be many reasons why a person may make a false complaint.  Even if I am not persuaded that a motive to lie is established, I have to satisfy myself ELB is truthful.

Distressed condition

  1. [23]
    I have evidence before me of ELB’s distressed condition when CHL went in to get her from her bedroom on the morning of 29 April 2019.  I can use this evidence in support of the evidence that ELB was assaulted by MRB. It is a matter for me whether I accept the evidence relating to ELB’s distressed condition. If I do, then I have to ask myself: was the distressed condition genuine or was the complainant pretending? Was she putting on the condition of distress? Was there any other explanation for the distressed condition at the time? I recall the warning that I ought to attach little weight to distressed condition because it can be easily pretended. If I find that the distress was genuine then I may use it as evidence that supports ELB’s account.

Preliminary complaint evidence

  1. [24]
    In this case there is evidence of the complainant’s preliminary complaint to each of CHL, CDG, Dr Tanchev and JNB.  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 to be used as evidence proving what occurred.
  2. [25]
    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 ELB’s 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.
  3. [26]
    First is the preliminary complaint to CHL.  She said that she had a conversation on the morning of 2 May 2019 with ELB when they were taking out the rubbish.  She said that she asked ELB whether Daddy makes her feel uncomfortable when he is in her bed.  CHL says that ELB said “Yes, and I don’t like it.”  Then CHL asked ELB “Has he ever touched your privates?” and she says that ELB said “Yes, and I don’t like it.”  CHL did not give evidence of hearing a conversation in the car park. CHL gave evidence of a conversation later on 2 May 2019 between CHL, ELB and CDG which took place at the park, where ELB’s mother asked ELB what had happened, and ELB said that Daddy had touched her front privates.  CHL said that ELB’s mother then asked ELB “Has it happened before?” and ELB said “Yes.”  CHL said that ELB said it happens sometimes in the mornings before school, and that it usually hurts when she is at school and sometimes for a couple of days.   
  4. [27]
    The next preliminary complaint was that to the complainant’s mother, CDG.  CDG gave evidence that she had a conversation with ELB at the carpark of the school on 2 May 2019.  CHL was present for the conversation.  She says that after CHL said to ELB that you can tell Mummy, ELB then told her that she did not know that parents were not allowed to touch your private parts.  CDG responded that no one is allowed to touch your private parts.  CDG says that ELB then said, “even the doctor” and she said “no – no-one is allowed to touch you.”  CDG said that she then took ELB to the park down the road and ELB had lunch and they had a further conversation.  CHL was present.  She says that ELB said it happened in her bedroom, and it had happened many times. ELB told her it was a touching on the front part of the private parts and that she was not wearing underpants but was wearing her pyjamas.  The defendant was wearing boxer shorts. CDG said the front part of her private parts was a reference to the vagina.  CDG then said that she then took ELB to see Dr Tanchev.  She said she was present for the conversation between ELB and Dr Tanchev, and that ELB:
    1. (a)
      showed the doctor on the fluffy bunny what occurred which was on the front part of the bunny between the legs;
    2. (b)
      said that it hurt. Whilst Dr Tanchev asked her for specifics about how it hurt, ELB said “it just hurt”; and
    3. (c)
      said it happened many times.
  5. [28]
    The next evidence of preliminary complainant was to the complainant’s sister, JNB.  JNB gave evidence that ELB said to her, on 2 May 2019, that their father had “done something” to ELB and that he had been “touching her private parts”. ELB said to JNB she said stop, but the other day she woke up early and she went on the couch and Dad went into her room.
  6. [29]
    The final preliminary complaint was to Dr Donna Tanchev.  Dr Tanchev gave evidence that on Thursday 2 May 2019, she had a consultation with ELB, in the presence of CDG.  Dr Tanchev said that during that consultation, ELB told her that she was up early that morning to avoid cuddles with her Dad because he usually would come into her bed in the morning for cuddles and she pointed to her genitals as the site of the touching or cuddling.  Dr Tanchev gave evidence that ELB told her it happened “yesterday morning” whilst she was awake in bed.  Dr Tanchev also gave evidence that ELB indicated that her father would touch her over and under her clothes in her bed with the covers over both him and her and that the touching was with his hands.  Dr Tanchev says that ELB told her that it happened before, but she couldn’t quantify. ELB told Dr Tanchev that it hurt at the time and afterwards.  “Touching” was the word ELB used.
  7. [30]
    Whether consistencies or inconsistencies impact on the credibility or reliability of the complainant is a matter for me.  I remind myself that inconsistencies in describing events are relevant to whether or not evidence about them is truthful and reliable, and the inconsistencies are a matter for me to consider.  But the mere existence of inconsistencies does not mean that of necessity I must reject the complainant’s evidence.  Some inconsistency is to be expected, because it is natural enough for people who are asked on several different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.

Special scrutiny required (Robinson)

  1. [31]
    I must scrutinize ELB’s evidence with great care before I can arrive at a conclusion of guilt of the offence. This is because there are some features of ELB’s evidence which suggest a risk that ELB’s evidence, or aspects of her evidence, may not be reliable. They are the impact, on her, of the animosity between her parents which was known to her before the alleged offence and the manner in which the complaint arose.
  2. [32]
    As to the first, ELB accepted that she told her stepbrother (MOR) before the alleged offending that “Mummy wants to take us away from Daddy” and that “She says that Dad doesn’t take good care of us”.  ELB also accepted that she told MOR “Mummy says he doesn’t spend enough time with us”. It is apparent from these statements that, prior to the offending, ELB was aware there was conflict between her parents about her being with her father and about how he is managing her in his house. There is also the statement she volunteered that her mother said she wasn’t allowed to sleep with her father and that her mother would get mad about it.  ELB also gave evidence she said to her father she wanted to go to her mother’s house when he would not let her go swimming on an occasion and that her father wouldn’t get her things. I find that ELB’s view that her mother would get mad if she was sleeping with her father (ie in the same bed), could, of itself, be a matter that may have made her anxious and, to some extent, distressed, when her father got into bed with her on the morning, particularly when they were observed by CHL.
  3. [33]
    As to the second, the complaint was not a spontaneous complaint first made by ELB to any person.  The complaint arose because of enquiries by CHL, and persistent and leading questions asked by CHL. 
  4. [34]
    The first suggestion that there was any touching of ELB’s privates was not made by ELB, it was made by CHL. CHL gave evidence that ELB said it happened in response to a pointed question by CHL about whether it had happened immediately after her question about whether Daddy made her uncomfortable.  That also followed a conversation a few days earlier where CHL’s evidence was that on the Monday morning when she was brushing ELB’s hair getting her ready for school she asked ELB did she feel uncomfortable with Dad coming into her bed and ELB said “Yes”.  CHL’s evidence was that ELB “was very shut down and did not say much at all”. CHLs evidence was that she asked ELB if he had done anything else to make her feel uncomfortable, touched her in an inappropriate way (though she could not remember her exact words) and ELB was kind of distressed and sort of just shrugged but didn’t say.   This was 15 – 20 minutes after getting ELB out of bed. 
  5. [35]
    Noting that children who are young may be more easily led and inclined to adopt suggestions I should scrutinise the evidence of ELB with great care before I could arrive at a conclusion of guilt because of these circumstances.  So, I should only act on the evidence of ELB about the alleged acts if, after considering it with those warnings in mind, and all the other evidence, I am convinced of its truth and accuracy. 

Previous acquittal and a modified Markuleski direction

  1. [36]
    MBR has undergone a jury trial in respect of this count and another count on the indictment arising from these matters.  In that trial the jury found him not guilty of count 1 on the indictment, which was a count of indecent treatment of a child under 16 under 12  who was a lineal descendent.  This is a retrial on the other count, on which the jury was unable to reach a verdict. 
  2. [37]
    The effect of an acquittal in law is, relevantly in this trial, that the defendant is taken to be entirely innocent of the offence of which he was previously acquitted.[4]

In this case the whole of ELB’s evidence was before me in respect of the count MRB was acquitted of as well as the count being tried. Both parties submitted this is to assist me to assess ELB’s credibility. The Crown accepted that MRB was entitled to the full benefit of the acquittal and that none of the evidence ELB gave in respect of the acquitted count could be used to bolster her evidence concerning the count before me. The defence submitted that I should modify the standard “Markuleski” direction[5] for the particular circumstances.

  1. [38]
    I direct myself that as the whole of ELB’s evidence is before me, if I have a reasonable doubt concerning the truthfulness or reliability of ELB’s evidence in relation to either (or both) counts, whether by reference to her demeanour or for any other reasons, I  must take into account in assessing the truthfulness or reliability of her evidence generally.  
  2. [39]
    I also consider her evidence in respect of the specific count before me when considering the merits of that count.
  3. [40]
    Noting that the jury acquitted in respect of count 1, that does not necessarily mean I cannot convict of the count before me.    I have to consider why I have some, if any, 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 the current count.

Evidence

Complainant’s first section 93A statement

  1. [41]
    ELB first participated in an interview with police on Thursday 2 May 2019.[6] ELB had a quite large, two legged soft toy bunny rabbit with her in the interview. 
  2. [42]
    ELB told police that she lives at home with mum.  ELB said that she had come to talk to the police about Dad, he’s sometimes mean, sometimes annoying, and sometimes she doesn’t like him.  When asked the reasons for those thoughts she said to the police officer: “because when he goes in my bed and gives me cuddles, he touches my private parts and I don’t like it, I keep on whacking him and he doesn’t stop.
  3. [43]
    She told the police officer she could not remember the first time something happened. She said the very last time she remembered Daddy hopping into bed and touching her privates was ‘yesterday’. She knew it was her Dad in bed with her because she saw his face.
  4. [44]
    When the police officer asked her to tell her everything about yesterday and to start at the beginning the complainant said “I was telling him to stop, and he wouldn’t stop, and I was whacking him to get him to stop and last time my nanny CHL … she came straight away …. She came barging in and Dad … and CHL said come on … and I didn’t like it, so she said come on (ELB) let’s go have breakfast and she got me out of there because I didn’t like it in there.
  5. [45]
    The complainant’s evidence was that she sleeps in her own room at her Dad’s house, which has a bed and bunks; she sleeps in the bed and the bunks are for her friends, although she’s never had friends over.
  6. [46]
    In response to the police officer asking her to tell her everything she remembered from when she woke up in her bed yesterday the complainant’s evidence was: “He came to give me cuddles and he did that and they wouldn’t stop”, she could not remember everything that happened when Dad first came into her room but “I can remember that I didn’t like it” and “He was touching my privates and he wouldn’t stop”.  The complainant did not know another word for her privates, but she said the part of her body which was her privates was ‘the front’ and she used her privates for peeing.   When she said the front her gestures indicated her front pubic region.
  7. [47]
    She said he used his hand and ‘he doesn’t use anything else though’. When asked by the police officer to tell what he does with his hand, the complainant made a gesture where she held her palm out flat with the fingers apart and brought them down in a flat motion onto the head of the toy bunny.   When asked to “show me on bunny what he does” the complainant touched the rabbit with a flat hand in the front pubic area where the legs joined the body.
  8. [48]
    When asked how she knew it was his hand and not something else, she replied “because it felt like his hand and I didn’t know that it was his hand and I think it was his hand”. Her evidence was that “after that it started hurting, it hurt here, it started hurting and stinging, … it just stinged a lot … it just stinged for the rest of the day” and when asked which part stung the complainant put her hand on her own front area pubic region.  She said when she went to the toilet it hurt.
  9. [49]
    He evidence was she was wearing a singlet and shorts and underwear and when asked if Dad’s hand was on top or under her underwear she responded “I’m not sure, they feel the same to me … I don’t know”.
  10. [50]
    When asked to tell the police officer about whacking Dad she said “I was doing this .. on his back”.  She gestured by slapping the toy rabbit hard on its back with her hand.
  11. [51]
    When she was asked what Dad would do, she said, “it would stop and then CHL came in and then her…” and when asked if Dad said anything to her, she said “no”.
  12. [52]
    She said she was in the bed that’s on its own and she was laying down and Dad was next to her even though it’s only one little bed.  The complainant’s gesture demonstrated her lying flat on her back as she gave this evidence, and she patted the sofa with her right hand when explaining where the defendant was.  ELB said nobody else sleeps in the room with her.   JNB is next door.
  13. [53]
    When she was asked to tell the police officer about another time that Dad touched her privates when he goes into her bed and cuddles her that she could remember she said, “I can’t remember.” When she was asked if it ever happened before yesterday, she said “no because I was at mummy’s then”.
  14. [54]
    When asked “… is there anything else that Daddy’s done … did you think that about him before yesterday” her evidence was “Mm Yes because he did that I think another time, but I can’t remember when it was”.
  15. [55]
    She said she remembered him doing “the same”  and “It was the same and I didn’t like it”. She said on the other time she got out of bed and ran to the kitchen. CHL made her breakfast and Dad made himself a coffee.
  16. [56]
    When asked if she said anything to CHL the complainant said: “Yes she was asking me that today before school and we went outside to take the bins out and when Dad was um … in the house having a shower we went outside and talked about it”.  This was about 7.20 or 7.30 that morning.
  17. [57]
    The other time she didn’t tell anyone after that, she didn’t remember what had happened about the other time.
  18. [58]
    ELB volunteered that “… my Mum said I’m not allowed to sleep in Dad’s bed”. When asked to tell the police officer everything about sleeping in Dad’s bed she said, “he did the same thing and I didn’t like it”. When asked what used to happen in Dad’s bed, she said, “he did the same thing as last time and  I didn’t like it” and “he did the same as um – he touched my privates still” but when asked to tell about the time she remembered Dad touching her privates in his bed her evidence to the police officer was “No I can’t remember I think it was like a month ago”.  She remembered that “I did not like it” (said with some emphasis) and she was wearing the same thing. She didn’t remember when it was, and she thought her sister was on the couch because she wakes up and goes on her iPad. On the day that Dad touched her privates in his bed she woke up “because I kept on hearing the beat noises and I couldn’t really sleep any longer so I just woke up and went on the couch”.
  19. [59]
    When asked about how Dad touched her privates the time in her bed her evidence was Dad did it “the same”. When asked how he did it on the time in his bed, what he actually did, her evidence was “the hand” “I think it was the hand” and that Dad touched “the front” of her body and she said, “I think it was his hand but I’m not sure”.  ELB was not sure why it stinged and it stinged on that time in Dad’s bed as well. The stinging was “it was burning it was like pinching me” and it started “after he did it ... it started once I got to school”. It was the top of her private that was burning and stinging.  ELB pointed on the rabbit to the front area between her legs.  Her evidence was that she didn’t tell anybody about that time “but I did tell CHL though” but she could not remember when she told CHL. 
  20. [60]
    When asked how it made her feel, ELB said “I’m not sure… I just didn’t like it”. She told the police officer that she did not talk to anyone else about what happened. 
  21. [61]
    The complainant said she told Donna at the Broadbeach hospital, but she didn’t remember what she said to Donna because Donna wrote it all down. She also said that “I said to her that if I keep on saying it all, I’ll forget it because normally when I say things too many times I have to forget it … I will forget it … because I won’t remember the words that I’ve been saying and I’ll say different things like a lollipop or something.” 
  22. [62]
    Before she told her mum, or CHL or the doctor, her evidence was that she didn’t really want to stay at Dad’s house cause she was scared, and she didn’t want him to do it anymore.  At this point ELB’s voice on the recording is extremely soft and she is looking down. 
  23. [63]
    Other than the time he did it when she slept in his bed, ELB said to the police there were no other times that Dad did it. There was nothing else she could think of with Dad “but I know more things about Bunny”.  At this point ELB became animated when talking about features of the soft toy.  To my mind, appreciating that ELB was very young, this indicates she does not fully appreciate the gravity of the allegations which the police are speaking with her about.  
  24. [64]
    ELB said her sister’s room was down the hallway next to her.  ELB also said that Dad comes in and gives JNB hugs, but he doesn’t do that[7] to JNB because JNB told her that when ELB told her in the car what had happened.
  25. [65]
    She didn’t have the pain that she talked about in her privates because she didn’t let him do it to her this morning, she got out of bed early and went onto the couch and stuck her legs together. At the time that the complainant gave this evidence, she could be seen on the video to cross her legs. She saw her Dad this morning and she said, “He said oh I was about to go give you cuddles and I’m like oh I woke up early today”.
  26. [66]
    Her evidence was that she never talked to Dad about what he did. She also said she did not get along with Dad “that well really” normally because “ he’s always like .. I’m not sure”.   Her voice was very soft, she was looking down and she shrugged her shoulders.
  27. [67]
    She sees her nanny CHL in the morning but lately CHL’s been coming with another nanny to pick her up. She sees her Dad at 6pm at night and she’s not sure who puts her to bed because she normally falls asleep on the couch and somebody puts her in bed. She could not describe what normally happened when she woke up at her Dad’s house or if she had a normal routine at Dad’s house.
  28. [68]
    She said that the stuff that’s been happening with Dad has made her feel bad, she didn’t like it and in response to being asked how her tummy, or her heart has been feeling ELB says “uncomfortable”.

Complainant’s second section 93A statement

  1. [69]
    As a consequence of statements which ELB made in a conference with representatives of the prosecution prior to the prerecord of her evidence pursuant to s 21AK of the Evidence Act about the possible frequency of alleged offending by the defendant, ELB participated in a further recorded interview with police on 21 May 2020.
  2. [70]
    In that interview she said her Dad was an idiot because he’s mean and he kicked her.  When she was asked “has there been any other time ….. when we last spoke you told me what Dad did to you in your bed and you told me what Dad did to you in his bed did anything like that ever happen any other time” she said “no” and then “he only did it twice I think .. .he did it twice in my bed and twice in my wait no twice in his and twice in mine I think.” Her evidence was that she did not remember the other time in Dad’s bed, she was not sure it was twice, she just thought it was.
  3. [71]
    When she was asked “so last time you told me about how Dad um touched you on your private part how many times do you think that happened” and she said “um, not sure, twice”.
  4. [72]
    In response to the question “Twice … you said before it was twice in your bed and twice in Dad’s bed can you remember it happening any where else” she said “no”. She told the police officer she did not remember how many times in a week it happened, she could not remember any other times
  5. [73]
    She recounted an incident where she said that her Dad had locked her in her room  because she said she wanted to go back to mum’s after she said she wanted to get her swimmers to go into the pool and he would not let her. She said she snuck out of her room and into her brother’s room and to the then nanny (someone preceding CHL).
  6. [74]
    She said she used to feel horrible when she stayed at Dad’s house, they would never get anything, and he’d always get his girlfriend clothes and they would never get anything.
  7. [75]
    When she woke up at Dad’s house, CHL would come.
  8. [76]
    She slept in Dad’s bed when she was scared, he put her to bed on her bed but when she got scared at night she would just go to his. 
  9. [77]
    When she was asked what Dad would do twice in his bed and twice in her bed, she said, “the same thing” and “I can’t remember”.  She said to the police officer nothing else ever happened with Dad that was like they had talked about before. 
  10. [78]
    She agreed that she remembered telling the ladies at the court that it happened lots of times but when asked what she meant when she said that to them ELB responded, “like twice or something I said lots and then I said like just twice or a couple of times after that”.
  11. [79]
    She said yes to the suggestion “it was only twice or a couple of times.” ELB said there was nothing else she would like to talk about. 

Complainant’s section 21AK evidence - 24 August 2020

  1. [80]
    ELB confirmed to the prosecutor in her 21AK evidence on 24 August 2020 that everything she had told the police was the truth, there was nothing she wanted to change and that another word for private parts was vagina.
  2. [81]
    When asked about how many times her Dad touched her on the private parts in her bed, after a long pause when ELB looked up to the ceiling and then down to the table, ELB somewhat hesitantly gave evidence she thought it was once or twice that her Dad touched her private parts in her bed.  She could remember the time she had told the police officer about when CHL came into the room.  After another long pause she said she didn’t know what had happened the different time.  She could not remember the different time from when CHL came into her room.
  3. [82]
    In cross examination the complainant agreed that at the times she was speaking about her Mum and her Dad not living together and she spent some of her time at Mum’s place and some of her time at Dad’s place.  It was the same for her sister.
  4. [83]
    ELB confirmed she and JNB had been with her Dad the weekend before she spoke to the police officer, she went with her sister, her Dad and his girlfriend to the St Hilda’s fete. She agreed that she stayed at her friend Skye’s place that Saturday night. She agreed there was discussion between her Dad and Skye’s mum about whether she would be allowed to stay over and that she was getting upset, cranky that she might not be allowed to stay over.
  5. [84]
    The following exchange then occurred:

“Now, do you remember there was some discussion involving Skye’s mum and your Dad whether you’d be allowed to stay?   Yeah.

over at Skye’s that night.  Do you remember that?   Yes. All right.  And you were – can I suggest – getting upset, cranky, that you might not be allowed to stay there?   Yes.

And can I suggest you said about whether you can stay or not;  you said to Dad?   Yeah.

If I can’t stay, I’m going to tell mummy lies about you.  Mummy likes it when I tell lies about you.  Do you?   Yeah.

accept that that’s what you said, trying to stay over at Skye’s place?   Yeah.

Okay.  And that was in front of Skye’s mum.  You know Skye’s mum?   Yeah.”

  1. [85]
    The complainant agreed:
    1. (a)
      On the Sunday she and her sister were back with the defendant and, that day, they were being introduced to a new nanny.  That nanny was there at bedtime and she and her sister went to sleep on the couch with her;
    2. (b)
      The next morning she was in her bed;
    3. (c)
      Her Dad came in to give her a cuddle;
    4. (d)
      This was a regular thing that he would come in and give her a cuddle in the mornings;
    5. (e)
      The defendant lay down beside her, and gave her a cuddle;
    6. (f)
      She remembered her Dad saying, “I have to wake a princess up gently in the morning” (At this point I observe her eyes were downcast and she appeared very subdued);
    7. (g)
      It would often happen that she would be in the defendant’s bed when she was scared of the dark, the shadows and the trees and things she could see outside;
    8. (h)
      Often, she would get into her Dad’s bed, sometimes her sister would get into the defendant’s bed too and the three of them would be in the bed.
  2. [86]
    The following exchange then occurred:

Right.  Now I want to pause, there, and put this to you, [complainant name]?   Yes.

At no time did your Dad ever touch you inappropriately.  Do you know what that word means?  Inappropriately?   Yes.

Wrongly, or in some sort of sexual way.  I’m saying in no time did Dad ever touch you in that way?   Yeah.

Do you agree with me?   Yes.

Well, let’s make sure we’re on the same page, here.  You’ve said on some other occasions that your Dad had touched you on your private parts when you were either in your bed or in his bed?   Yes.

But that didn’t happen, I’m saying to you, did it?   No.

It didn’t?   He did.

He didn’t.  Do?   He did.

you agree with me?   Yeah.”[8]

  1. [87]
    I note I have set out what the transcript records and I will deal specifically with this passage of audio later.
  2. [88]
    ELB agreed:
    1. (a)
      MOR was sometimes living with the defendant at that time.  He had a girlfriend (STE).  The complainant said she did not remember asking to sleep with MOR and STE;
    2. (b)
      A few weeks before she first spoke to the police, she had gone out on a Saturday night with MOR and STE to a Japanese restaurant and then back to the defendant’s;
    3. (c)
      MOR said he and STE were going to sleep in the media room that night.  She said she didn’t remember saying to him “No, can you sleep in here tonight?”;
    4. (d)
      He said, “Why don’t you go and sleep with Dad” and she said, “No I’m not allowed”.  He said, “what do you mean, you can always go and sleep with Dad when you are scared”.  ELB replied, “My mum said I wasn’t allowed to”.  I note that ELB volunteered this before being asked about it;
    5. (e)
      MOR said that was rubbish and, if she was scared, she was allowed to go and give Dad a cuddle;
    6. (f)
      She replied, “I want to but Mummy will get mad”. (At this point in the recording I observe that the complainant was nodding firmly in an affirmative way);
    7. (g)
      MOR said “well Mummy isn’t here. That’s silly. You’ll be fine. You’re a big girl” and he told her that he loved her and said good night;
    8. (h)
      He turned her lamp off and was walking out the door and he said, “Sleep with Dad” and she said “No I’m not allowed, mummy won’t let us”;
    9. (i)
      The next day, in talking to MOR they had the following conversation:
      1. she said something like “I wish Daddy didn’t have to leave for work”;
      2. he said to her “Yeah I know it can be hard sometimes”; and
      3. she said, “Mummy wants to take us away from Daddy.”;
      4. He said, “Why does she want to do that? that’s horrible” (At this point I observe that ELB’s eyes were very downcast.  The presiding judge intervened and asked ELB if she understood and agreed with what was being asked and ELB said she did);
      5. She said “She says that Dad doesn’t take good care of us (Again ELB’s eyes were downcast);
      6. She said “Mummy says he doesn’t spend enough with us”; and
      7. He said, “He’s looked after you, sometimes he works too much”.
  3. [89]
    Moving to when she first spoke to the police officer, ELB agreed:
    1. (a)
      It was a special day at school being crazy sock day. (At this point I note ELB’s voice was much calmer and clearer);
    2. (b)
      She was wanting to be dropped off by CHL and the defendant said he’d drop off herself and her sister;
    3. (c)
      They were each dressed up in special socks and the defendant gave her some money for cupcakes and or a donation at the school;
    4. (d)
      On the way they stopped at the old Tallebudgera post office, she sat on the front steps of the old post office and MRB took a picture of her wearing her crazy socks;
    5. (e)
      This photograph was taken on the very morning she said she spoke with the police officer for the first time;[9]
    6. (f)
      At the school she ended up seeing her mother and CHL. (At this point I note ELB had started to become restive in the chair);
    7. (g)
      After that she went to see a doctor;
    8. (h)
      After that she went to see the police lady; and
    9. (i)
      That was really the last time she saw the defendant because she and her sister had been living with Mummy ever since.
  4. [90]
    ELB remembered speaking to the police officer the first time, which was recorded.  ELB agreed she spoke to a prosecutor on 10 March 2020. She recalled she told that prosecutor that Dad had touched her on her private parts in his bed “a billion times, like 10 times”.  She said no to the question whether he did anything different and when asked where this had happened, she said “I think my bedroom when staying with Dad”.  
  5. [91]
    ELB remembered speaking with the police officer the second time, which she agreed was recorded. ELB remembered speaking to another prosecutor about 10 days prior to the day she was giving evidence. She agreed she told this prosecutor she didn’t want to change anything having watched the recordings.
  6. [92]
    In an exchange with the cross examiner ELB accepted she had said ‘a number of times’ to the prosecutor in conference 10 days before the first trial.  Relevantly, in respect of the count before me, ELB confirmed she had told the crown prosecutor in conference prior to the trial:
    1. (a)
      the things happened in her bed before JNB’s birthday;
    2. (b)
      there was only a week or so between them;
    3. (c)
      the first time something happened was in her bed and the second time was in the defendant’s bed;
    4. (d)
      the time in her bed first, he touched her privates;
    5. (e)
      that was the time CHL went into her room;
    6. (f)
      that was not the only time he touched her in her bed.  The next time might have been a couple of days after or like a week;
    7. (g)
      there might have been two or three times, she wasn’t sure, but later on she said twice;
    8. (h)
      that on the time CHL walked in, CHL saw her face and said to her “ELB do you want to come and have some breakfast?”  ELB had breakfast, then CHL asked her to come outside and asked her if anything had happened and said she (ELB) could tell her (CHL).  ELB told her and said the defendant had told her not to tell anyone; and
    9. (i)
      the time she ran out into the kitchen might have been the same time.
  7. [93]
    In re-examination ELB said she knew what touched inappropriately meant and:

“…that time in your Dad’s – where he touched you on the front private part in your Dad’s bed:  is that true or not true?   True.

And the time in your bed where CHL barged into the room – into your bedroom and he touched you on the front private part:  is that true or not true?   True”

ELB’s voice was very firm, and she was looking down.

The complainant’s sister [JNB] 

  1. [94]
    JNB, the complainant’s younger sister also spoke with the police on 2 May 2019. 
  2. [95]
    The relevant matters in the 93A interview she had are:
    1. (a)
      After ELB and her mother had spoken in the park, ELB told JNB “has Dad ever done something wrong”. ELB told JNB that Dad’s done something wrong to her (ELB);
    2. (b)
      JNB said ELB said that Dad’s been touching her private parts, she said stop, the other day ELB woke up early and went on the couch and Dad went into her room and she didn’t see her there so then he went into the living room and ELB was there and ELB said to him that she woke up early;
    3. (c)
      JNB was having breakfast and did not see ELB on the couch;
    4. (d)
      JNB said Dad’s pretty nice to her, he’s never touched her private parts, he hugs her and stuff in bed when she comes into his bed and he always lets her come into his bed; sometimes she sleeps in Dad’s bed which she likes, it’s safe because there are no trees around;
    5. (e)
      JNB said ELB sleeps in her own bed and said ELB had slept in Dad’s bed with her. When all three of them used to sleep in the bed together it was a bit squishy, she didn’t always sleep in the same place, but Dad had to separate them because she (JNB) kicks and ELB does not, so when they are together they hurt each other so Dad sleeps in the middle;
    6. (f)
      JNB said “Mum says we can’t sleep in Dad’s bed”;
    7. (g)
      She and ELB don’t have a routine at their Dad’s house; she wakes up, has breakfast then gets changed and does her teeth and so does ELB. JNB has her own room;
    8. (h)
      Dad wakes ELB up and hops into ELB’s bed and she knows Dad normally goes into ELB’s room and wakes her up because she comes into ELB’s room and Dad’s waking ELB up, he’s not actually shouting but he’s just saying time to wake up and stuff like normal Dads do;
    9. (i)
      JNB hadn’t heard about that other thing and didn’t know that MRB was touching ELB’s private parts;
    10. (j)
      When asked by the police officer how she feels around Dad JNB says “Well he seems really safe”. (When she says this she appears very focused and is looking at the camera).
  3. [96]
    JNB also gave brief pre-recorded evidence. She stated her date of birth and the date being 31 March[10].  She confirmed the contents of her interview with the police were true. JNB was not cross examined.

The nanny - [CHL] 

  1. [97]
    CHL was a nanny employed by the defendant to assist looking after the complainant and her sister. She worked for the defendant for two periods. The first period started in January 2018 through to about September 2018, then, after a break CHL started work again in March until the end of April or early May 2019.
  2. [98]
    As the nanny, she would prepare for school in the mornings. She or the defendant would drive them to school. She would attend to house cleaning duties, pick the girls up from school, prepare dinner, general childcare duties. She lived at the defendant’s house and her evidence was she knew the two girls quite well.
  3. [99]
    CHL knew that custody of the complainant and her sister was shared fifty fifty between MRB and CDG. Her evidence was that she wouldn’t say that she knew the complainant’s mother, they would connect, mainly via text message about sports things or little bits and pieces: day to day things to do with the kids.
  4. [100]
    On the morning of 29 April 2019, CHL said she was doing a regular routine to get the kids ready for school. JNB was not out of bed. ELB was in bed. CHL’s evidence was that the defendant had got up while she was preparing breakfast, which was unusual, and he said to her he would wake the complainant up and went into her room. CHL said “for me”.  MRB was wearing just boxer shorts when he went to the complainant’s room.
  5. [101]
    She said between MRB going into ELB’s bedroom and her going into ELB’s bedroom was close to 10 minutes.  When she went into ELB’s bedroom, she saw MRB lying in bed, under the covers with ELB.
  6. [102]
    The layout of the complainant’s bedroom is that her bed is right opposite the door, length ways, on the opposite side of the room. There is another little table at the end of the bed and around to the right was a set of bunk beds.
  7. [103]
    CHL’s evidence was that ELB was positioned laying on her back closest to the wall, furthest away from the door.  MRB was laying alongside her, closest to CHL.  MRB was facing ELB, on his side. Both ELB and the defendant were under the covers, which were pulled up to their shoulders and their arms were under the covers.
  8. [104]
    CHL gave evidence that ELB sat straight up when she walked in and called out to her. ELB called out CHL’s name in quite a distressed manner. She gave evidence ELB held her arms out for CHL to come and get her. She said it was distressed, like a desperate cry. ELB seemed distressed and not happy when she had walked into her bedroom. She said ELB’s voice and her face were what indicated to the nanny that she was distressed. ELB held her arms up for CHL to come and grab her. ELB’s arms were straight out, above shoulder height.
  9. [105]
    She said that when she walked in, the defendant had turned over to her and said, “you have to wake her up gently because she is a princess”. She said she didn’t respond to the defendant, she picked up ELB and carried her out to the kitchen. ELB was wearing her pyjamas.
  10. [106]
    She said there were no lights on, it was day light, the room had curtains and she believed they were open.
  11. [107]
    Once she was out of the bedroom, CHL prepared ELB’s breakfast and  brushed her hair to get ready for school. Whilst doing that she spoke with ELB about the defendant. She said she asked the complainant how that made her feel, “did that make you feel uncomfortable with Daddy coming in your bed” and the complainant said ‘yes’. Her evidence was ELB didn’t say much at all, she was very shut down. She asked the complainant if the defendant had done anything else to make her feel uncomfortable or touched her in an inappropriate way and the complainant was  kind of distressed and shrugged.  CHL could not remember the exact words she used with the complainant.
  12. [108]
    Between grabbing her from the room and that conversation was approximately 15-20 minutes and that was the only conversation that day about it.
  13. [109]
    CHL gave evidence that ELB and her sister went back to their Mum’s house that afternoon and on the night of 1 May 2019 they came back to the defendant’s house. She briefly saw the girls on that evening but then again on 2 May 2019 in the morning.
  14. [110]
    That morning CHL did not have to get ELB out of bed, ELB was on the couch in a different sitting area from the loungeroom, crouched down so low that CHL had walked past ELB without noticing her there.
  15. [111]
    Later on whilst they were getting ready CHL asked ELB to come outside and help whilst she was doing something with the bins. There were things that concerned CHL that morning that related to ELB and the defendant. 
  16. [112]
    CHL said outside with ELB and asked her what had happened on Monday morning, 29 April 2019. She asked the complainant again if it made her feel uncomfortable, ELB responded, “yes and that I don’t like it”. She asked the complainant “does he ever touch you under your clothes, does he ever touch your privates” and the complainant said, “yes and I don’t like it”. She said that the complainant said that without any hesitation. She said there was then a conversation about the complainant telling her mother and being brave and doing something about this because it isn’t right.
  17. [113]
    The defendant dropped ELB and her sister at school that day.
  18. [114]
    CDG then called her, and they had a conversation about what the complainant had said that morning. She and the complainant’s mother then went to the school and took the complainant out of school. The complainant’s mother had a conversation with the complainant that CHL was present for.
  19. [115]
    CHL’s evidence about that conversation was that the complainant’s mother asked what happened and ELB said that the defendant had touched her on her front privates. CDG asked if this had happened before and ELB said yes, it happens sometimes in the mornings before school and it usually hurts at school and sometimes for a couple of days. ELB called the area that hurts her front privates.
  20. [116]
    A number of things were explored with CHL in cross examination.
  21. [117]
    CHL’s evidence was that usually her communication with CDG was by text message, though there was the occasional phone call. Her evidence was there were a few phone calls before the call on the morning. She told the court she did not recall saying the last time she gave evidence that the first time she’d ever spoken to CDG was on 2 May 2019, just after ELB’s disclosure. When she was taken through the transcript of her evidence on the earlier occasion, where she had expressly given evidence that it was the first telephone call she explained the discrepancy on the basis that perhaps she misunderstood.
  22. [118]
    As to her evidence that ELB sat straight up when she walked into the room that morning, it was put to CHL that she said nothing about that in her police statement which she gave on 2 May 2019.  It was also put to her that she said nothing in her police statement about ELB putting her arms out. Her explanation for this was that she wasn’t asked specifically what the complainant was doing with her arms. After being reminded that she had in fact volunteered the information in a conference with the Crown Prosecutor prior to the first trial, CHL’s evidence was that she imagined the police officer would have asked her what she saw when she entered the room, and she didn’t know why she didn’t refer to ELB firstly sitting up and secondly putting her arms out. It was correct, she said, that the first time she said anything about this was very close to two years after the event, adding “It was not something I would forget in a hurry”.
  23. [119]
    CHL said it was not the case that ELB got out of bed and came over to her. When her police statement where she had said that ELB got out of bed and came to her was put to her CHL said perhaps there was something left out in the moment, she may have been misinterpreted and ultimately, her evidence was that her police statement was wrong.
  24. [120]
    The cross examiner then turned to the morning of 29 April 2019 when CHL was brushing the complainant’s hair and had asked her if she felt uncomfortable when the defendant came into her bed and if the defendant touched her in an inappropriate way.  CHL denied the suggestion that she was pushing the complainant, specifically stating  “I asked her those two questions and left it at that”.
  25. [121]
    When it was put to her that in conference with the Crown Prosecutor in March 2021 there she had said that “I was pushing her specifically” her evidence was “that was an incorrect choice of word” and she didn’t know why she had said it. CHL accepted that, without her questioning, ELB had not volunteered anything herself on the Monday morning. CHL also accepted that the complainant had not volunteered anything on the Thursday; again she was the one who had introduced the topic. She confirmed what occurred with the complainant as follows:

“You said to her out near the bins, “I’m really concerned about Monday morning when I saw Daddy in your bed”;  is that what you said to her?   Yes.

That’s in your statement, isn’t it?   Yes.

And she said, “Yes, I don’t like it.”  That’s her response?   That’s correct.  Yes.

And then you said, “Has he ever touched you on the private parts that no one is ever to touch you on?”  You asked her that question, you put that to her;  is that right?   Yes.  Yes, it is.

And she said, “Yes, and I don’t like it”;  is that right?   That’s correct.  Yes.

Okay.  So that’s what I put to you earlier.  You see, she never, as it were, spontaneously volunteered things.  It was in relation to your questioning of both the Monday and the Thursday that, ultimately, she said that;  do you agree?   Yes.” 

  1. [122]
    CHL confirmed that when she was in the park with ELB and CDG, CDG said she had to go and see her solicitor.  CHL was aware that she did that and that later CDG took ELB to a doctor for a physical examination.  CHL did not go to the solicitor or the doctor but was at the police station after that.
  2. [123]
    CHL was not aware of the complainant having ongoing issues with urinary tract type infections or vulva irritation.
  3. [124]
    At the conclusion of the oral evidence admissions were made jointly by the parties as follows:

“All matters put to CHL in cross-examination as statements she had made previously were correct.” 

And

“CHL gave evidence in court on the 15th of March 2021.  During cross-examination, she disagreed that she had used the word “pushed” in a conference with the Crown prosecutor on 12 March 2021.” 

Dr Donna Tanchev

  1. [125]
    Dr Donna Tanchev gave evidence that she was working as a general practitioner in 2019. She saw the complainant on 2 May 2019 when she came in with her mother. She made notes of that conversation and gave her evidence with leave to refer to her notes.
  2. [126]
    The complainant said she was up early that morning, 2 May 2019 to avoid cuddles with her Dad because he would usually come into her bed for cuddles and pointed to her genitals as the site of the touching.
  3. [127]
    She said that the complainant had said it happened in the morning and she just pointed to her vagina. She said the complainant said the defendant touched her with his hands and that it had happened before, but she couldn’t quantify how many times. 
  4. [128]
    Dr Tanchev said the complainant said it hurt and that it hurt at the time and then afterwards and that the complainant indicated the touching happened both under and over the clothing. She said the complainant said she was in her bed when the touching occurred and said the covers were covering both the defendant and her. She said the complainant said that her pyjamas would stay on, the defendant would put his hands under them and that the complainant did not go into detail in terms of anything else, just that no instruments were used and no other body parts, only his hands.
  5. [129]
    Dr Tanchev said she offered to examine the complainant but the complainant wasn’t keen to hop up on the bed and so they left it.
  6. [130]
    In cross examination Dr Tanchev confirmed she saw the complainant around 1pm on 2 May 2019 and the complainant was a new patient to her. The complainant was brought in by her mother and she spoke with the complainant’s mother as well. Dr Tanchev’s evidence was that CDG had said that the complainant had told the nanny that morning that the Dad was touching her inappropriately.  The nanny told CDG.  CDG sought legal advice, which was to bring her in to the doctor’s office.
  7. [131]
    Dr Tanchev confirmed the complainant told her the incident had happened “yesterday morning” when she was awake in bed, so the information she had was that the incident had occurred on 1 May and the complaint was that she was lying in the bed and the defendant was touching her private parts with his hand. The doctor confirmed she recorded “That it hurts all the time when he was touching her and for the rest of the day”. Dr Tanchev confirmed the complainant gave no indication of the form of the touching. The complaint to Dr Tanchev did not extend to rubbing or poking or inserting a finger or fingers, “touching is the word she used”.
  8. [132]
    Dr Tanchev’s evidence was that the complainant reported to her that she had raised the issue of the touchings with the defendant. Dr Tanchev confirmed she made a file note as follows:

“[The complainant] says that she’s been told by her mum to say ‘No’ to anyone touching her private parts and [the complainant] tells her Dad this, and he laughs and calls her a police officer.” 

  1. [133]
    Dr Tanchev also gave evidence that CDG did not tell her (i.e. the doctor) that CDG had told ELB that morning that no one was to touch her private parts, including doctors.
  2. [134]
    Dr Tanchev confirmed that she was unable to carry out an examination. The complainant pulled up the skirt she was wearing, and was not wearing underwear, but she did not want to be touched or examined. The doctor could not see any bruises or scratches. That was as far as the examination went as ELB declined a full examination she would otherwise have conducted of the genital area.
  3. [135]
    Dr Tanchev saw the complainant on two further occasions, after 2 May 2019 when she had complained of vulval irritation and the doctor confirmed she took swabs, which involved the complainant lying on the bed. The external skin was irritated and to take the swab, the doctor rubbed the swab over the irritated area. The complainant’s mother was present on each of these occasions and present for the examination. Swab analysis was no infection indicated and there was nothing visible to see; the complainant complained of itching. She confirmed the swabs were referred to in a certificate dated 17 July 2019.

The complainant’s mother [CDG]

  1. [136]
    CDG gave evidence that she and the defendant met in 2008 and were married in 2012. They were living together until they separated in 2013. Once she and the defendant separated their daughters spent time about fifty fifty between the two of them.
  2. [137]
    She said at 2 May 2019, she knew the nanny, CHL.  She said on this day she called CHL about ELB and during the conversation CHL told her things that ELB had said to her. She said she and CHL went to ELB’s school. CDG asked CHL to collect ELB and she was in the carpark. She heard CHL say to ELB “it’s okay, you can talk to mummy now, you can tell her”.  In the car park ELB came towards her crying and she said, “I didn’t know that your parents were not allowed to touch your private parts”. CDG said her instant response was “no one is allowed to touch your private parts. Absolutely no one”. ELB then said, “well what about the doctor, is that ok” and CDG responded “no one is allowed to touch you”.
  3. [138]
    I have set out at [27] CDG’s evidence about her conversation with ELB. 
  4. [139]
    CDG’s evidence was that she thought the incident took place the day or the day before that.  When ELB was talking to her, she was talking at one stage about a particular occasion and CDG thought that was about 48 hours beforehand.
  5. [140]
    After they left the park, they went back to the school and later that same day, CDG took the complainant to the general practitioner, with the intention, perhaps, to have ELB examined.
  6. [141]
    CDG was present for the conversation ELB had with the doctor and I have set out that evidence at [27].
  7. [142]
    In cross examination CDG said from 2013 that point there was a shared custody arrangement essentially on a fifty fifty basis.  She had re-partnered and her household comprised herself, her new partner and the three girls. 
  8. [143]
    CDG agreed that by 2019, the relationship between she and MRB was worsening, she had concerns about certain elements, there was a level of bickering and she had asked MRB not to contact her.  CDG said she would contact the nannies for day to day tasks.
  9. [144]
    CDG confirmed a lot of the contact between she and MRB was in text messages as she requested.  A lengthy series of text messages passing between CDG and the defendant as put to her and she accepted those messages as accurate and that they had been exchanged. The important parts to take from the text messages are:
    1. (a)
      On 13 March 2019 CDG had asked MRB to refrain from messaging her unless it related to the kids;
    2. (b)
      On 16 March 2019 MRB’s text to her asked her to be more personable as he wanted the kids to see them getting along and she replied “Huh”;
    3. (c)
      There were a significant number of text messages exchanged on 25 March 2019. As at that date and into Aril 2019, CDG’s evidence was that she had no reason to believe the girls were being sexually interfered with. 
  10. [145]
    The messages of 25 March 2019 included the following[11]:

CDG: You also tell them they’re not allowed to eat certain foods because they get fat.  [JNB] has a complex about her tummy.  Please, stop it, and don’t touch them inappropriately.  They are girls and take things the wrong way.  You’re there to nurture them, not give the complexes.”

CDG: “You put them in their own beds and stop touching their tummies as a joke.  And joking about their boobs growing is not on either.

CDG: ELB told me you were joking and touching her chest.”

CDG: “Buy food, buy clothes that fit, buy a TV.  Even the poorest children have a TV.  And if you’re incapable of having them, then I will have them.  You’re heading down a heavy path.”

CDG: I’m not speaking to you.  You need to accept that you can’t do this.  Stop hiring bullshit nannies and let me have those girls.  Simple.

CDG: You walk and no cost to you.  I’ll pay for everything for those girls.”

MRB: Over my body

CDG: This fifty-fifty arrangement is not working.  Anyone can see that.

MRB: Any judge will challenge that.  I need to work, as do you.

CDG: And those girls are not to sleep with you.[12]

CDG: My path may be heavy, but I don’t walk it alone.

CDG: I will fight for those girls so that I don’t have to listen to this rubbish anymore.

CDG: You better pull your head in real quick and rectify what’s wrong

MRB: Bullshit.  I will work through any issues with you calmly and rationally.  ELB has insisted on being in my bed, as do my boys at a young age.  There’s nothing wrong with it.

CDG: She’s a girl. It’s not appropriate.

CDG: You have to pay better attention to this, because they tell me Daddy doesn’t care.

MRB: That’s crazy, and you know it.

CDG:    The arrangements are not working. The children need counselling.  The whole thing needs reviewing.

MRB: No, they don’t. 

CDG: Yes, they do, and they will.

CDG: I’ve had to have big talks to the girls about private parts and personal boundaries lately and about sleeping adult’s beds.

MRB: I only have the girls’ best interests at heart and love them both dearly, and you know that.  No one touches their private parts.  What are you saying?

CDG: You put them in their own beds and stop touching their tummies.

MRB: There’s a lot you don’t know.  Try and take my girls away and you’re in for a battle.

CDG: Start looking after them properly, and maybe, no one would have to look at taking them away.

MRB: The girls are well-cared for.  This is bullshit drama created by [nanny X].” 

  1. [146]
    CDG agreed she spoke with CHL on the morning of 2 May 2019 and met CHL at the school. CDG agreed she heard from ELB a report that ELB had been inappropriately touched by her father. CDG agreed ELB was crying at the time. After asking to see her QPS statement she accepted there was no reference in it to ELB crying and that it was something that occurred to her since she made her statement.
  2. [147]
    CDG confirmed ELB did not say the incident had happened 48 hours prior; CDG said she assumed that because the last time that MRB had had them was 48 hours prior although she conceded that MRB had had the children that morning, so her evidence was that she was told it happened two days before. She said that ELB had told her the touching didn’t happen on Thursday morning.
  3. [148]
    CDG said she could not recall ELB telling the doctor that it happened “yesterday morning” and she had not seen or heard ELB’s interview with the police where she told them it happened yesterday morning.  ELB had been at her house on Wednesday 1 May 2019 and on the Tuesday morning.
  4. [149]
    CDG’s evidence was she had been telling ELB for a very long time that no one was to touch her private parts. CDG could not recall when that conversation took place, but her evidence was she had taught her that from a very young age. CDG’s evidence was that ELB had told her that ELB had told her father that no one was to touch her private parts, but she also confirmed that ELB had said on the morning of 2 May 2019 that ELB said to her “I didn’t know that your parents weren’t allowed to touch your private parts”.
  5. [150]
    CDG agreed that she had said to ELB that no one can touch her private parts, even the doctor (although she had not told her that before 2 May 2019) and that she felt no one should be touching her children.
  6. [151]
    CDG gave evidence that she didn’t know how Dr Tanchev would handle the situation with ELB and she took her to the doctor because she had been advised to do so on the advice of her solicitor. CDG’s evidence was that she assumed this was for a physical examination, but she was not sure because it may depend on how recent an event took place. CDG confirmed she understood it was fairly recent and that ELB had made complaints that it as stinging and hurting, so a physical examination might have found something. CDG said she never advised the doctor not to do a physical examination, it was ELB’s choice.  Her evidence was that ELB refused to take her clothes off to be examined.
  7. [152]
    CDG confirmed that ELB suffered vulval irritation and her evidence was that she took ELB back to Dr Tanchev on one occasion for this. ELB would not allow Dr Tanchev to examine her, even though CDG encouraged her. CDG’s evidence was that swabs were not taken and she denied there were two occasions and that swabs were taken on each occasion. 
  8. [153]
    Whilst CDG gave evidence she called Child Safety and then her solicitor, in the QPS statement the sequence she had set out was that she called her solicitor, who advised her to take ELB to a doctor and then CDG called Child Safety.  CDG’s evidence was that there were a few phone calls to Child Safety, she had called them from the school, they could not help her and so she panicked and called her lawyer. Then Child Safety called her back and told her to remove JNB from the class, so she collected JNB when she returned back to the school.  After that, they went to the doctor and then to the police station: Dr Tanchev had advised what to do, had called the Child Protection Police and told her where to go.

 The parties’ submissions

Submissions on behalf of the Crown

  1. [154]
    The Crown submitted that, taking the second of the defence arguments first, if the Court was satisfied that the touching occurred, it would be satisfied that it was indecent.  The vaginal area is, inherently, an indecent area of a young child to touch in the absence of a specific reason, such as application of a cream. The touching occurred in the complainant’s bed under the covers. In the circumstances, the Court could infer that it was a sexual touching.
  2. [155]
    The significant issue in the case is, the Crown submitted, whether the touching occurred. The standard of satisfaction, which is beyond reasonable doubt, is satisfied in the Crown’s submission for a number of reasons: the distressed condition of the complainant, the timing of the complaint and the consistency of aspects of the evidence across the witnesses.
  3. [156]
    The complainant’s distressed condition was immediate and involved her sitting up, putting her arms out and calling her nanny’s name. CHL used words like “desperate cry” and gave evidence she could tell from ELB’s face and tone of voice the distress. As a nine year old, the Crown submitted such distress is a difficult emotion to fake. Whilst cuddling frequently took place, the events of that morning was an abnormal reaction to a normal scenario. That CHL never spoke to the police about ELB putting up arms or the difference between lifting ELB out of bed and ELB getting out of bed herself was sufficiently explained by a description of ELB scooting to the bottom of the bed and her taking her from there. This logically flows from how ELB was positioned in the bed.  That CHL was not cross examined about an absence of distress completely permits the Court to infer that CHL was always consistent about that. Distress is a logical explanation for why CHL raised the concern with ELB about what was happening with ELB that day.
  4. [157]
    Turning to timing, the Crown submitted the complaint was fairly immediate upon her father doing something that made her uncomfortable. The immediacy gives legitimacy that this happened to ELB. The Crown accepted ELB was not volunteering that these things had happened, but these circumstances are not unusual where the complainant is a young child, the complaint is of sexual offending and the offending is committed by a family member. Young children may feel overwhelmed by this.  Whilst the complainant only complains when pushed, the questions that were asked did not suggest a specific answer.
  5. [158]
    ELB did not present as a liar. Her demeanour at the beginning of the s 93A interview was lively, showing off her bunny. She became withdrawn, which was consistent with discussing the offending, that naturalness to her emotions showed honesty. In giving her evidence ELB used actions to show what the defendant did. This is a hallmark of a witness remembering something as it occurred to them.  Whilst ELB was reluctant to give specific detail about the offending she was specific about the peripheral issues and what was occurring, the types of details which a young child would not think to include that. She spoke of trying to get him to stop, she spoke about the pain that it hurt and was quite specific about the way she described the pain as “stinging”. When ELB spoke about the next time she was at Dad’s house, she got up early to avoid cuddles, she had her legs crossed and described that action; this is logical to a child who has been offended against in the bedroom. This is a feature she thought to include but would not be one if this was made up.
  6. [159]
    The Crown submitted ELB’s evidence with respect to the count before me was stronger and more detailed than for the count on the acquittal and there were aspects to that offending supported by other evidence, being the immediacy of the complaint and the distressed condition that are missing from the other count.
  7. [160]
    Discrepancies about when the offending occurred regarding the date are not fatal to ELB’s reliability. ELB was being shuttled back and forth between parents and whilst she made it clear to Mum that it was yesterday, she might be confused with the “last” time she was at Dad’s place. Whilst her evidence about how many times the touching happened was inconsistent, ELB was firm in her evidence on the count before me. Whilst she seemed reluctant to go over the details and try and distinguish the different occasions, it does not follow that she was dishonest.
  8. [161]
    As to the exchange in cross-examination about whether the touching occurred, this was a confusing and difficult exchange for a young girl.  There was some room for her to be confused about what she was saying and what was being asked. When asked by the prosecutor whether the allegations were true or not true, ELB was unequivocal that they were true. 
  9. [162]
    As to the motive to lie, whilst it was apparent from her evidence, the complainant was willing to do this to get something that she wanted, this was demonstrative of a young girl to tell lies to be self-serving. This is a different scenario from lying about offending that involves her father with very serious circumstance.  That she agreed she said that goes to her general honesty.  There were things going on in the background about a tv, things they were eating.  The comment “Mummy likes me to tell lies about you” doesn’t mean telling a lie about a sexual complainant.

Submissions on behalf of the Defendant

  1. [163]
    The Crown case, that a natural father was interfering with a sexual way with his natural daughter of whom he had had care, in an about fifty/fifty arrangement since 2013 and on an unspecified basis before that, is the exception for this type of offending.
  2. [164]
    To convict the defendant I would have to be satisfied beyond all reasonable doubt as far as ELB is concerned, there is no other evidence on which a finding of guilty may be based. ELB’s evidence is supplemented by CHL and CDG. Both witnesses were unimpressive.
  3. [165]
    It is clear that the relationship between the parents had deteriorated and CDG was most unhappy with the defendant’s care of the children.  CDG wanted custody of the children.  The defence submitted I should pay particular regard to the text message exchange and ELB’s evidence where she accepted she had made certain comments about CDG’s wishes.   The defence submitted that in a passage there is an acknowledgement that ELB is concerned about the expressions of disapproval by CDG and then following that almost immediate were questions regarding the issue of custody “Mummy wants to take us away from Daddy”. ELB certainly knew of CDG’s wishes.
  4. [166]
    The issue of telling lies appears in ELB’s evidence as ELB smiled when that was being put to her. ELB was a young girl who was prepared to tell a lie where her mother was seemingly happy with that situation. The defence submitted it was arguable that in telling an untruth to CHL and CDG later about what is said to have happened was a lie and said without an appreciation for how serious the allegation was.   Once ELB had told the lie, she was then locked in, in a difficult position.  It would be more difficult to recant what was said.  ELB seemingly did recant in cross-examination. ELB did agree to the proposition initially that it hadn’t happened.  The defence wanted to make it absolutely clear and that is why the suggestion was repeated.   ELB accepted that it didn’t happen.   The defence submits that it wasn’t confusing.
  5. [167]
    ELB gave wildly differing accounts of how many times she alleged she was ever sexually touched both in her bed and her father’s bed. Her final position is somewhat telling because it was given in her 21AK evidence “In total how many times did he touch you in your Dad’s bed – once. In total in your bed, once or twice”. This was to be contrasted with other statements including “many, 10 or a billion”.  In her 93A interview ELB indicated that the offending happened with a flat hand. There was no suggestion of rubbing or the use of fingers in any way. She basically indicated the placement of an open hand on her genital area, such a description might be an indication of a child who doesn’t understand what inappropriate touching was.
  6. [168]
    The defence also submitted that when the alleged conduct occurred was an issue for the Court. At 9.5 years of age, a child knows when “yesterday” was.  On Thursday 2 May 2019, ELB told the doctor that it happened “yesterday morning”.  Yesterday morning was Wednesday 1 May 2019 when she was at her mother’s. She told the doctor and the police that. There are other inconsistencies too, including that ELB told Dr Tanchev that she told him to stop but when asked by the police if she had ever asked to Dad about what he did she said no.
  7. [169]
    ELB told Dr Tanchev that she had been told to say no to anyone about touching her privates, she had told her Dad this and he had called her a police officer. This is inconsistent with CDG’s evidence about what ELB said to her in the carpark: “I didn’t know your parents weren’t allowed to touch you on your privates”.  It is a further inconsistency in what she was telling the doctor.  If I accept she told the doctor that, the defence submitted that she clearly appreciated that no one is to touch her.
  8. [170]
    The defence also submitted that if there had been the revelation made that morning, it seems odd that ELB would then pose for a photograph for crazy sock day. 
  9. [171]
    How the complaint was made is of great concern that it was made by leading questions and suggestion.  ELB was aware of the acrimony between her parents and was wanting to please her mother.  The defence submitted I may accept in these circumstances that it may have been easier to go along with CHL’s suggestion than to resist it.
  10. [172]
    The evidence of each of CHL and CDG was combative.  Neither wished to accept that might reflect either on their testimony or the crown case.  CHL’s evidence was remarkable in the story that she came into the bedroom and ELB immediately sat straight up and called her name, then CHL added the bit about putting her arms out and getting her (instead of ELB getting out of bed and coming toward her). The most disturbing of all was CHL’s denial at the last trial that she had pressed ELB specifically on the issue of sexual abuse.  CHL was reluctant to accept any matter put to her which might reflect on her credibility.  There was the further remarkable circumstance that CHL was about to call CDG, and CDG rang. If I accept that there had been some talks or text communications between CHL and CDG, it may have indeed been the case that CHL was on “the look out” to see if there was anything suspicious and ready to read something wrong into any situation she came across because the timing is too coincidental to put to one side.  There was in any case a level of brazenness for the offending to have occurred whilst CHL was in the kitchen. 
  11. [173]
    CDG had issues relating to her former husband.  This is an illustration of her willingness to fight on the issue.  Both CHL and CDG wanted to make speeches, talk over the top of others and add things all unfavourable to the defendant. 
  12. [174]
    The court is entitled to take the acquittal into account with respect to the credit of ELB and to adapt the Markuleski direction in that respect. 
  13. [175]
    ELB’s demeanour is an unreliable guide to credit worthiness. The content of ELB’s evidence is important and her track record. She was prepared to lie for her own benefit or for her mother.
  14. [176]
    Factually there is a reference made by ELB to telling her father to stop and whacking him. Firstly, there is no reference to how big the house was.  Secondly there is no reference to CHL hearing “stop it, stop it”.  Her evidence was that the covers were pulled up.   Whacking would be a more difficult exercise to achieve if their arms were under the covers. There was no reference to pushing, it was whacking.
  15. [177]
    As to indecency, the defence submission was that if I found the touching occurred and was deliberate, (pain, a request to stop multiple times and distress) there would be no defence.  However, if I was left with a factual finding that there was a touching with an open hand without rubbing, fingering or movement of fingers, then the issue of indecency arises.  If the touching was not deliberate, it can’t be indecent.

Consideration

The complainant’s evidence

  1. [178]
    The first issue to resolve is what ELB said when it was put to her in cross-examination that it didn’t happen.  I watched and listened to this aspect of her evidence very carefully a number of times. At the time that she answers the questions “It didn’t?” and “He didn’t?”, she shakes her head a little as if to indicate ‘no’.  This gesture is consistent with her answer to the questions being “I didn’t” and “He didn’t” on each occasion. What I hear on the audio of the recording is “I did” and “He did”. I find these are the words ELB used. These answers are, however, inconsistent with her answers to the questions immediately before and after these two questions and inconsistent with her gestures.  ELB was quiet and not particularly forthcoming in this particular section of the recording.   She had, however, not long before this passage, been responding to questions put to her and in questions just after this passage of evidence was plainly following the questions because she was able to  volunteer information relevant to the questions it was asked of her.  Thus it was not apparent she was confused. 
  2. [179]
    I find ELB’s evidence in this passage of her evidence is unreliable because of the inconsistent verbal exchange and because her gestures don’t correlate to the words I heard her use.
  3. [180]
    ELB was consistent in a number of areas of her evidence, being:
    1. (a)
      Her gestures about the location and manner of the touching were consistent – a flat open palm being placed on the pubic region;
    2. (b)
      the preliminary complaint to Dr Tanchev was that the touching happened “yesterday” which was what she told police in her first interview;
    3. (c)
      she told each of Dr Tanchev and JNB that she was up early on the morning of 2 May 2019 to avoid cuddles. She told Dr Tancheev that her Dad would usually come into her bed for cuddles. She told JNB that she went on the couch;
    4. (d)
      CHL and Dr Tanchev each gave evidence ELB told them that it hurt;
    5. (e)
      CHL’s recall of what ELB said to CDG in the park was that MRB had touched her front privates. CDG also gave evidence that was ELB’s complaint. JNB said ELB told her dad had touched her private parts. ELB demonstrated to Dr Tanchev on the bunny that what occurred was on the front part of the bunny between the legs. OF course, all ELB’s references to her privates arise after CHL had asked her if MRB had ever touched her privates; and
    6. (f)
      ELB told Dr Tanchev that the covers were covering her and MRB. This is consistent with what CHL said she saw when she went into the bedroom.
  4. [181]
    ELB was very soft and often hesitant when she was speaking about the alleged conduct. She frequently looked up or down, avoiding eye contact. ELB was more emphatic in her evidence in cross-examination when speaking about subjects that did not touch upon the alleged offending.  For example:
    1. (a)
      She was stronger and more forthcoming in her memory about crazy sock day;
    2. (b)
      She was thoughtful about her responses to the questions about discussions she had with her step-brother, giving some evidence she didn’t recall things put to her and some evidence that she agreed things were said;
    3. (c)
      She volunteered that her Mum said she wasn’t allowed to sleep with Dad.
  5. [182]
    Whilst the prosecution’s submission about how I should assess ELB’s demeanour is one which is open on the evidence, to my mind it is not the only assessment of her demeanour which is open. The hesitancy and downcast eyes could also be consistent with a child who was going along with the suggestion, first made to her by CHL, as the defence submitted.
  6. [183]
    I say this after considering a number of concerning features of ELB’s evidence. 
  7. [184]
    Firstly, her original comments on the issue which ultimately outlined the complaint to the police were in response to ongoing questions from her nanny.  What ELB said to CHL on each of 29 April and 2 May 2019 was limited to “Yes” and “I don’t like it”.   This reluctance to say what happened to her was also evident in the police interviews.  She frequently would say ‘I did not like it’ and ‘the same’ but only infrequently used the words “privates” or “private parts”.  In her second s 93A interview she said he did ‘the same thing’ but when asked what the same thing was, after a big pause and looking up to the ceiling ELB’s evidence was “I can’t remember”. This is problematic when, not long thereafter, she confirms that her 93A statements are true.
  8. [185]
    Secondly, ELB said to the police on 2 May 2019 the incident the subject of Count 1 happened “Yesterday” (which would be 1 May 2019).  She was not at the defendant’s home on that day. There are other problems with her evidence as to timing which cause me to regard the reference to ‘yesterday’ as concerning:
    1. (a)
      Her statement to the Crown Prosecutor in conference then the conduct happened before JNB’s birthday is significantly inconsistent with the date of the alleged offence;
    2. (b)
      Her evidence that the first event in time was in her bed, whilst the second in time was a week or so later in her Dad’s bed cannot sit with her evidence that it happened “yesterday” (even if one could accept that a “yesterday” was the Monday before crazy sock day Thursday and she was not with her father “yesterday”);
    3. (c)
      Her evidence in conference to the prosecutor was that the time the subject of the present count was not the only touching in her bed, with “the next time” being a couple of days after, or a week. This is fundamentally inconsistent with her other evidence.
  9. [186]
    Thirdly, her evidence as to the frequency of the alleged touching in the preliminary complaint is significantly varied:  
    1. (a)
      To Dr Tanchev, she said it happened before, but she could not say how many times;
    2. (b)
      To CDG on 2 May 2019, she said it had happened many times;
    3. (c)
      With CHL on 2 May 2019, there was no specific discussion of the frequency; To the police on 2 May 2019 she said when asked if there was another time, she could not remember but there was another time, but she could not remember when.  Ultimately that interview landed on two times, one in her bed and one in his bed;
    4. (d)
      To the Crown Prosecutor in March 2020 she said ‘A billion times, maybe 10 times’;
    5. (e)
      To the police on 21 May 2020 she said twice in each bed, or only twice or a couple of times;
    6. (f)
      To the Crown Prosecutor prior to the first trial, she said two times in Dad’s bed, but the first time was in her bed and the second time in Dad’s bed.

The mixing of sequences, coupled with the very different version as to frequency gives me concern that ELB cannot independently identify the particular occasion the subject of the count before me.

  1. [187]
    Fourthly, ELB gave evidence that she was prepared to tell a lie about her father on another occasion.  I accept the prosecution’s submission that the particular circumstances in which ELB agreed she was prepared to lie are not as serious as those before the Court. 
  2. [188]
    In a text message to the defendant on 25 March 2019, CDG wrote:

I’ve had to have big talks to the girls about private parts and personal boundaries lately and about sleeping in adults’ beds.”

  1. [189]
    Thus, the evidence indicates that CDG was raising concerns with the girls in the weeks leading up to the alleged incident about being in their father’s bed. There was evidence from each of ELB and JNB that they were scared and went to their father’s bed on such an occasion. JNB in fact gave evidence that she likes it in Dad’s bed because it’s safe because there are no trees around. JNB also said “Mum says we can’t sleep in Dad’s bed”.
  2. [190]
    ELB presented as an intelligent child who was somewhat hostile to her father about things unrelated to the alleged offending, such as not having had friends over to sleep in the bunks in her bedroom, her father not buying her things and not being allowed by her father to go swimming. She had been witnessed in a bed with her father by the nanny, something which she knew her mother strongly disapproved of and had told her she was not allowed to do. I am satisfied that in this particular combination of circumstances, ELB had a motive to lie about what occurred in her bed that Monday morning.
  3. [191]
    Fifthly, ELB’s evidence of stinging and burning is an improbable consequence of the touching she has demonstrated consistently on a number of occasions, being the application of a flat open palm onto the pubic region. This is particularly so when within a short time after the alleged offences, ELB is being treated for vulval irritation.
  4. [192]
    Sixthly, ELB said to the police on 2 May 2019 that her Dad didn’t say anything to her at the time of the alleged offence.  However, she told the Crown Prosecutor in conference just before the trial that she had said to CHL “He told me not to tell anyone”.  CHL did not give evidence that ELB had said this to her.  I regard this as a particularly significant discrepancy in her evidence.  It first appears almost two years after the event, it is a matter she was specifically asked about on 2 May 2019 by the police and which she did not tell them in response, it is the type of comment that, if made, one would have thought she could have said without embarrassment – along the lines of her repeated comments “I don’t like it” and “the same”. It does not involve any reference to “privates” or “private parts” which might have been embarrassing.  If it is accepted that the defendant said this, it makes the case worse for the defendant.
  5. [193]
    Seventhly, ELB told Dr Tanchev that touching happened over and under her clothing, where she told the police on 2 May 2019 she was not sure, she didn’t know.
  6. [194]
    Eighthly, in respect of the preliminary complaint evidence, no preliminary complaint witnesses gave evidence ELB told them that she was whacking MRB. ELB gestured quite forcibly to the police on the bunny how she had whacked her father. The Crown submitted her use of gestures could support her version. I regard the failure to tell the preliminary complaint witnesses about alleged whacking, given this was a matter ELB told the police about at the start of the interview and demonstrated with the bunny, is a significant inconsistency.
  7. [195]
    Ninthly, for the reasons set out below in respect of CHL’s evidence, I do not accept the evidence of distressed condition given by CHL as to putting her arms out and calling out.
  8. [196]
    In the face of these concerns as to ELB’s reliability and the inconsistencies in analysing all of ELB’s evidence, including consistencies in her evidence, I am not persuaded that her evidence is reliable in respect of the count before me. 
  9. [197]
    I am not persuaded that the Crown has established, beyond reasonable doubt, that the touching ELB alleges occurred.

Dr Tanchev

  1. [198]
    Dr Tanchev, who gave telephone evidence, impressed me as straightforward and honest.  She had no knowledge of any of the people involved prior to seeing ELB on the day of the incident.  In that regard I note the following features of her evidence about what ELB told her:
    1. (a)
      Her Daddy would usually come into her bed for cuddles;
    2. (b)
      She pointed to her genitals as the site of the touching;
    3. (c)
      It happened in the morning and it happened before but ELB could not quantify how many times;
    4. (d)
      The touching happened both over and under the clothing;
    5. (e)
      It hurt at the time and then afterwards;
    6. (f)
      She was in her bed and the covers were covering both her and the defendant;
    7. (g)
      Her pyjamas stayed on and the defendant put his hands under there;
    8. (h)
      The incident happened “Yesterday morning”, which was 1 May 2019; and
    9. (i)
      “Touching” was the word used.
  2. [199]
    I accept Dr Tanchev’s evidence that ELB would not agree to a full examination, but from a visual examination of ELB (who pulled up her skirt and was not wearing underwear), Dr Tanchev could not see any bruises or scratches.
  3. [200]
    Dr Tanchev’s evidence which I also accept is that CDG did not tell her she’d told ELB that morning no one was to touch her private parts, not even a doctor.
  4. [201]
    I accept Dr Tanchev’s evidence that ELB told her that ELB had been told by her mum to say “No” to anyone touching her private parts and ELB told her Dad this and he laughed and called her a police officer.
  5. [202]
    I accept Dr Tanchev’s evidence that she saw ELB on two occasions after 2 May 2019 and before 17 July 2019 for vulval irritation, conducted an examination, took swabs and that CDG was present on each occasion for the examination.

CHL

  1. [203]
    I found aspects of CHL’s evidence troubling.  To my mind, CHL did not sufficiently explain in her evidence before me how, in the first trial, her evidence was that the first time she spoke on the phone with CDG was on the morning of 2 May 2019, whereas before me her evidence was that they had had a few phone calls before that morning.  The previous questions put to her about this were in clear and simple terms.
  2. [204]
    I also note that the reference to ELB sitting up and putting her arms up was not in her statement to the police given on 2 May 2019 when, presumably, the incident was most fresh in her mind.  Her explanation that it was not there because she was not specifically asked about it sits uncomfortably with the fact that she first raised the incident in a conference with the crown prosecutor shortly prior to the first trial in circumstances where she volunteered that information without being specifically asked a question about it.  I note, though, she has been consistent about her recollection of this aspect from just prior to the first trial until now.
  3. [205]
    Her further evidence before me that ELB did not get out of bed and come over to her, was inconsistent with her police statement given on the afternoon of 2 May 2021.  This is a significant inconsistency. “Wriggling down to the end of the bed” does not equate to “getting out of the bed and coming over to me”.  Accepting that recollection fades with time, where her evidence has become more detailed I am troubled about the reliability of these aspects of her evidence.
  4. [206]
    Given these reservations, I am not prepared to accept her evidence that ELB sat up and put her arms out to be collected or that CHL went over and got her out of the bed on the morning of 29 April 2019.
  5. [207]
    The most telling part of her evidence, to my mind, however, was her rejection of the suggestion that she had been pushing the complainant about what had happened when she spoke with her on 29 April 2019.  CHL told the Crown Prosecutor that is what she was doing in conference in March 2021. In her evidence before me she said she used “an incorrect choice of word”. It’s plain to my mind that CHL was pushing ELB in the questions she was asking of her.  To my mind, a more credible and reliable response would have been to accept the suggestion that she was pushing and to explain why that was so in the particular circumstances.  CHL’s approach to evidence on this issue gives me concerns that she was tailoring her evidence to some degree because she perceived that to have agreed with the suggestion that she was “pushing” may have been seen in a negative light.  I accept that CHL was pushing ELB in the questions that she asked her on 29 April and 2 May 2019 and this is concerning given ELB’s age and potential to be led, particularly given the conflict between her parents which CHL was aware of.
  6. [208]
    Another aspect of CHL’s evidence which struck me as having some significance was about the events of the morning of 29 April 2019.  CHL’s evidence was the defendant had got up and had told CHL he was going into wake ELB.  In other words, the defendant told CHL where he was going and what he was going to do. CHL’s evidence was it was daylight in ELB’s bedroom, she could see and the curtains were open.  CHL gave no evidence that she saw ELB whacking the defendant or telling him to stop. There was no evidence of a closed door when CHL went into ELB’s bedroom some 10 minutes later.  There was nothing in the evidence to suggest that there was any limitation on CHL’s movement in the house at any time.  There would be a level of brazenness to the conduct ELB alleges occurred on a Monday morning, on a school day, where the adult nanny who was well known to the children was involved in the ordinary routine of preparing the children for school in the defendant’s home.  This makes the offending, as ELB alleges it, inherently improbable.

CDG

  1. [209]
    As ELB’s mother, a heighted state of anxiety about ELB’s welfare is understandable and I make some allowances for that. However, CDG presented as an argumentative and defensive witness in cross-examination and a number of aspects of her evidence concerned me. Some parts of CDG’s evidence strained credibility:
    1. (a)
      The suggestion that ELB was crying when she saw her at school on 2 May 2019, which was not in her police statement of 2 May 2019. That statement was made on the day that she first saw ELB at school. One would have expected that CDG making a statement on the day of these events, would have told police ELB was crying if that was in fact so. (I observed CHL gave evidence she was present at this occasion but CHL gave no evidence that ELB was crying);
    2. (b)
      That she had been telling ELB for a long time no one was to touch her private parts, and that ELB had told her she had told her father no one was to touch her private parts.  Yet her evidence is ELB had said to her in the car park at school on 2 May 2019  “I didn’t know your parents weren’t allowed to touch your private parts”;
    3. (c)
      That she had told ELB on 2 May 2019 no one, not even a doctor, could touch her private parts but when ELB refused a clinical examination “it was her choice”. This is in circumstances where Dr Tanchev’s evidence was that CDG did not tell her that she (CDG) had told ELB about not even doctors being permitted to examine her privates; and
    4. (d)
      That ELB had not been examined by Dr Tanchev when she had been taken in consultations with her about ELB subsequent to 2 May 2019; which was especially contradicted by Dr Tanchev.
  2. [210]
    Given these matters I do not accept CDG’s evidence that ELB was crying when she saw CDG in the carpark at school.

Conclusion

  1. [211]
    My conclusion is that I am not satisfied the Crown has proved the case to the required standard.
  2. [212]
    Accordingly, the verdict is not guilty.

Footnotes

[1]R v Pentland [2020] QSC 231 at [12]-[19].

[2]I apply the same general observations about the complainant’s younger sister.

[3]I apply the same general observations about the complainant’s younger sister.

[4]R v GJL [2021] QCA 175 at [53].

[5]Supreme and District Court Bench book No 34.

[6]I have set out the whole of ELB’s evidence in the s 93A that deals with her allegations against MRB.

[7]‘That’ was the word ELB used; in context, I understood ‘that’ to be a reference to the alleged offending.

[8] Transcript 1-18, L20.

[9]The photograph was Exhibit 4 in the trial.

[10]I have excluded the year because that is not relevant for the purposes of the issues in the trial

[11]CDG at the start of the message means CDG was the author; MRB at the start of the message means MRB was the author

[12]CDG’s evidence was she meant sleep in his bed

Close

Editorial Notes

  • Published Case Name:

    R v MRB

  • Shortened Case Name:

    R v MRB

  • MNC:

    [2021] QDC 294

  • Court:

    QDC

  • Judge(s):

    Dann DCJ

  • Date:

    23 Nov 2021

Appeal Status

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

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