R v MK[2020] QDCPR 118

15. [15]
    On 22 March 2019 D was sentenced to 13 years imprisonment for four counts of rape of Wendy; one count of distributing child exploitation material; and eight counts of indecent treatment of a child under 12 who is a lineal descendant. The complainants are the applicant’s three children. The conduct which formed the basis of those counts was depicted in the photographs or videos seized by police in addition to two counts of anal rape which arose from the interview undertaken with Wendy on 2 December 2017, one of those said to have occurred when the family were camping. One photograph/video depicted sexual activity occurring between Tom and Wendy.
16. [16]
    On 9 April 2019 the applicant pleaded guilty to an offence of exposing a child to an indecent act for her conduct in continuing to engage in sexual activity with D in the presence of Mary, such activity being depicted in a photograph seized on 1 April 2017. The applicant was sentenced on 16 April 2019 to two years’ probation without a conviction being recorded.
17. [17]
    Tom’s grandparents, D’s parents, were present in court at the sentencing of their son and at the sentencing of the applicant. Initially it was alleged (consistent with Wendy’s interview with police) that the paternal grandparents were present on the camping trip when Wendy was anally raped by D. However D was not sentenced on the basis that the grandparents were present.
18. [18]
    Proceedings under the Child Protection Act 1999 were on foot at the time of the sentencing of the applicant. The final hearing to determine the long-term guardianship of the applicant’s three children was listed for 17 and 18 June 2019. The applicant was contesting that the children go into the long-term care of the paternal grandparents.
19. [19]
    On 23 May 2019 the applicant swore an affidavit for use in the proceedings relating to the guardianship of the children. Whilst that affidavit was not available to the prosecution, a portion of it had been disclosed in an outline of argument which was served on the prosecution for the purpose of some pre-trial legal argument which took place on 28 August 2020. The prosecutor who appeared on that date was not the same prosecutor who appeared on this application nor was he the same prosecutor who was briefed to appear at the pre-recording of Tom and Wendy’s evidence.
20. [20]
    In that affidavit the applicant stated:

“I would describe by relationship with the Paternal Grandparents as a strained relationship. It always has been, even before Tom, Wendy and Mary were placed in their care.

Since then I try to ignore them when I see them. I feel [the paternal grandfather] tried to intimidate me by staring at me like he is trying to stare me down.

The [paternal grandmother] ignores me.

I feel that the Paternal Grandparents are deliberately setting out to ensure my relationship with my children is destroyed. For example,

Tom and Wendy used to call me “mum” or “mummy”. I understand they now refer to me by my first name “[the applicant]”.

I am also concerned about what the children are being told about my current circumstances. I have no way of knowing what has been said to them.

I am very distressed that Tom, Wendy and Mary think that I abandoned them.

I have read the report prepared by Ms Dickson. In that report Ms Dickson recounts her interview with Tom and Wendy. During that interview Tom tells Ms Dickson “naughty kids go back to naughty parents”. I strongly feel this is something Tom has heard and is repeating.

During the same interview Ms Dickson interviewed Wendy and asked her if she would be angry if she had to see me. Ms Dickson reports that Wendy said that she “might touch my private parts”.

Again, I strongly feel this is something that Wendy has heard and is repeating.”

21. [21]
    On 28 May 2019 the paternal grandmother telephoned the Department of Child Safety, Youth and Women and advised of a disclosure that Wendy had made to her husband. She signed a statement on 4 August 2019 in which she says that her husband told her that Wendy had told him about something which had happened with the applicant although she did not then recall the details.
22. [22]
    The paternal grandfather does not mention any such disclosure by Wendy in his statements to police.
23. [23]
    On 30 May 2019 Wendy said to her teacher “I have a very bad mum and a very bad dad, [the applicant] and [D], they are bad because he put his penis in my bum”. A few weeks later Wendy said “Today is the day that I have to tell the police what [the applicant] and [D] made Tom put his penis in my bottom. [The applicant] and [D] made him.”
24. [24]
    On 11 July 2019 Tom and Wendy were each again interviewed by police. Tom was eight years of age. Contrary to how he presented in the earlier interviews, he was well behaved and sat quietly answering all questions in a responsive manner. Like Wendy he referred to his parents by their first names.
25. [25]
    Tom said that he was talking to police about “something that [the applicant] and [D] did to me”. He went on to say that “[the applicant] left me with [D] and didn’t help me with the wrong thing that [D] did”. The complainant disclosed that [D] had told him to put his penis in his sister’s “butt”. He described an incident when he was five years of age when “[the applicant] left me with [D] and never came to help and she was shopping. And then she came home and saw it happen. And she didn’t stop it. She saw [D] putting my penis into Wendy’s butt and that was hurting my penis.” The account the complainant provided of this event was quite detailed. He described D pulling the skin off the part of his penis where urine comes out and putting his penis into Wendy’s bottom. He described it hurting. He said that D did this two times in the lounge room of the house in front of their white couch. He described the applicant coming home from shopping and seeing it. He said that she didn’t stop it. She was just leaving it to happen.

26. [26]
    Tom described a second occasion where he and his two sisters went to a river with the applicant and D. He described the river being close to a waterfall. He said this incident occurred the next day. They all travelled to the river in D’s car. The applicant and D got out of the car. The applicant pulled her pants down. She got down on the ground like a tiger. D opened the car door and told Tom to put his penis in the applicant’s “butt”. Tom yelled no. D closed the car door leaving Tom, Wendy and Mary in the car. He then put his own penis in the applicant’s “butt”. Tom described his parents at the rear of the car which was a ute. He said that Wendy was watching his parents as well as himself. She was also in the backseat of the car. Tom said he told his grandmother about both incidents.
27. [27]
    Wendy was also interviewed on 11 July 2019. She was six years of age. She again referred to her parents by their first names. She said that D was her mean dad and the applicant, her mean mum. She said “I saw [D] put his penis into [the applicant]’s bum.” She was four at the time. She went into the kitchen. The applicant was standing holding the kitchen bench. Her back was bending. Her pants were at her feet. D was standing behind her and his pants were at his feet. He was putting his penis into the applicant’s “butt”. He was moving from left to right. She said that D saw her enter the kitchen and told her to go away. Wendy described a further incident in relation to her brother. She said that it occurred in the bathroom whilst they were in the bath. She said “[the applicant] said to [D] so Tom could put his penis into my butt”. She confirmed that the applicant said “put Tom’s in your butt”. She went on to describe herself, Tom and Mary being in the bath together. She said that the applicant and D did not come into the bathroom. She could not remember anything more of what the applicant said to D. She later said the applicant was in her bedroom. She appeared to become confused from the questioning which became leading. The police officer misunderstood what she was saying which added to the confusion.
28. [28]
    Wendy was asked whether she remembered going to a river where there was a waterfall and crocodiles. She did not. When asked if she had spoken about these matters with anyone else she said “grandma and granddad”.
29. [29]
    Tom and Wendy were interviewed by a Crown Prosecutor on 18 September 2020 in preparation for the pre-recording of their evidence which was listed for 21 September 2020. A contemporaneous note of the conference (prepared by an employee of the Office of the Director of Public Prosecutions) was in evidence before me as was an affidavit affirmed by the Crown Prosecutor. He was called to give evidence at the hearing before me. In the affidavit he confirmed that prior to his conferences with Tom and Wendy they each (separately) watched the recording of their respective interview with police undertaken on 11 July 2019. He could not recall who he conferred with first in time. He did not view the interviews with either of the children but rather left each of them to view the recording with a volunteer from the organisation, Protect All Children Today.
30. [30]
    The Crown Prosecutor then spoke to Tom and confirmed through questioning that he remembered speaking to the police (assumedly the police who conducted the interview of 11 July 2019) and what he told them was the truth. The Crown Prosecutor then directed the complainant’s attention to each of the incidents that he had described in the interview by asking him if he remembered telling the police about particular matters. The manner in which he did that was to ask the complainant quite leading questions. An anonymised copy of the contemporaneous note is attached to these reasons for ease of reference.^[4]

31. [31]
    The Crown Prosecutor said in evidence that the timing of when the applicant walked in during the incident in the lounge room was important as it determined her criminal liability. That is why he approached the questioning of Tom in the manner in which he did. He accepted in cross-examination that the manner in which Tom had made his allegation to police by saying “the applicant left me with [D] and didn’t help me with the wrong thing [D] did” was rather unusual. The Crown Prosecutor could not recall whether he was aware that the allegations made by Tom to his grandparents had occurred in the immediate lead-up to child protection proceedings. Such a suggestion was clearly made in the outline of submissions that the applicant had filed in the earlier pre-trial hearing. The Crown Prosecutor could not recall whether he had read that document. He was not made aware of the applicant’s affidavit expressing her concern about the influence of the grandparents on her children, despite it being incorporated into an outline of argument.
32. [32]
    The Crown Prosecutor said that the viewing of the recording and his conferring with Tom occurred in the one meeting. That suggests that Tom firstly spent approximately 45 minutes watching the recording before conferring with the Crown Prosecutor. It is unknown how long the conference took however the notes suggest that it went for some significant period of time. That was a long time for a child as young as nine years to have focussed on this matter. The Crown Prosecutor said that he perceived that there was a degree of confusion on Tom’s part at times. Sometimes he responded to questions with a thumbs-up gesture. On other occasions he shrugged in response to questions. Sometimes it took him an unusually long period of time to respond to questions. Unfortunately the Crown Prosecutor could not recall which questions Tom delayed his response or about which he appeared confused. The contemporaneous note does nothing to reveal the points in time when Tom was confused.
33. [33]
    The Crown Prosecutor was aware of the vulnerability of children to suggestion and the importance of not asking leading questions as a general statement. He considered that he was being careful with Tom when he conferred with him on 18 September 2020. The questioning of Tom was in my view, not only leading but also repetitive. He was asked on nine occasions whether the applicant was present when D put his penis into Wendy’s bottom. The Crown Prosecutor explained his having asked this question so many times because he was not clear as to when Tom was saying that the applicant had walked into the room. He was attempting to get Tom to differentiate between the first occasion when D put his penis in Wendy’s bottom and the second occasion which on my watching of Tom’s interview all occurred as part of the one transaction. There was no utility, in my view, in labouring the distinction particularly with a nine year old boy. The Crown Prosecutor also explained that he had no specific memory as to when Tom paused before answering questions which is likely what prompted him to ask the same question again in a slightly different way. Unfortunately the Crown Prosecutor did not, in reviewing the contemporaneous note on the day the pre-recording was adjourned, make any notes of his own as to when the complainant paused or appeared confused in answering his questions. The difficulties the Crown Prosecutor experienced in speaking to Tom would have been alleviated had he viewed the recording with Tom and asked the questions he wanted answers to during the course of playing the recording.
34. [34]
    Despite there being a fundamental change to Tom’s evidence as to the event in the lounge-room of the house the Crown Prosecutor proceeded to adopt the same process in questioning Tom about the incident at the river. Again he asked very leading questions. The questions appear focused on how far away the applicant and D were from the car when the incident occurred. That was a matter that Tom was not questioned about in his interview with police. Nor in my view is it a matter of any particular importance. The description that Tom gave of witnessing his parents engaging in anal intercourse was complete with descriptions of how they were positioned. However, for reasons that were not explored in the Crown Prosecutor’s evidence, he considered it necessary to determine how far away from the car the applicant and D were, when they engaged in anal intercourse. Whilst the Crown Prosecutor initially adopted an open question “where behind the car were they?” that was not a question asked in simple language suitable to a nine year old boy. It appears that question was not answered by Tom so the Crown Prosecutor then adopted a process of asking questions about measurement and proceeded to lead the child into answering by reference to specific measurements.

35. [35]
    It appears that the Crown Prosecutor wanted to determine where D and the applicant were, however the method he used to ascertain that information was to use leading questions suggesting particular measurements. The Crown Prosecutor sought to explain his use of the question “if between him and the couch, was that how far away they were” as not a leading question because it did not suggest the answer. In my view it is a leading question as is “if he thought it was 2m away”.
36. [36]
    The use of simple language that a child of nine years would understand would have been preferable and would likely have revealed the answer the Crown Prosecutor was looking for. Again had he viewed the interview with Tom he could have asked the simple question “how far away were they?” when Tom was speaking about that topic.
37. [37]
    Ultimately the Crown Prosecutor was not able to explain from the contemporaneous note what he understood that Tom was saying to him in terms of where the applicant and D were when he saw them engaging in sexual activity at the river. He accepted that at times he struggled to get answers from the complainant. Unfortunately he did not consider it necessary to identify himself, by reference to the contemporaneous note, when the complainant struggled to answer.
38. [38]
    Despite Wendy’s very clear statement in her interview on 11 July 2019 that she did not remember ever going to the river with the applicant and D she was again asked this same question by the Crown Prosecutor when he conferred with her. She said in response to his question that she now remembered going for a drive and remembered what happened. She was interviewed by police for a third time later that same day. She was asked about what happened at the creek. She said that the applicant, D, herself, Tom and Mary went fishing and went on a boat. She described the water being green and the possible presence of crocodiles. She made no disclosures of a sexual nature.
39. [39]
    The pre-recording of the evidence of the two children was listed for 21 September 2020. It was adjourned on that date as a result of the necessity for Tom to also be re- interviewed by police given the new material which arose in the conference with the Crown Prosecutor. That occurred on 30 September 2020. Different police officers conducted the interview.

40. [40]
    Tom said that at the lake the applicant and D got out of the car. D told Tom to get out of the car and told him to put his private parts in the applicant’s private parts. He refused. D told him to get back into the car and he and Wendy watched D doing what he, Tom, was supposed to do. Tom said that he was eight when this event occurred. He turned eight on 26 May 2019. Tom said that he when he got out of the car the applicant was on a mat behind the car. He could see her private part. The applicant was on her knees and her forearms, a bit like a tiger. Tom said that when he got back inside the car he looked out the back of the car and saw D putting his private parts into the applicant’s private parts. D was on his knees behind the applicant. Tom got up and demonstrated how far away they were from the car. He appeared to be indicating that they were some distance from the car. He said that the applicant and D did not see him looking at them through the back window. He did not know whether the applicant heard D ask him to put his penis in the applicant’s anus. Tom said that he thought the applicant heard but he did not know why he thought that she had heard.

41. [41]
    Tom did not appear confused by the police questioning at all. The questioning was done in a non-leading manner, in age appropriate language, by officers clearly trained in speaking to children.

42. [42]
    Counts 1-4 on the indictment which related to the incident in the lounge room were discontinued by the prosecution on 9 November 2020.

Consideration

43. [43]
    The applicant submits firstly, that the evidence of Tom is patently unbelievable or inherently unreliable.
44. [44]
    The believability or plausibility of the account of the complainant is a matter that is integral to the function of a jury. There is no reason, in my view, to believe that a jury properly instructed is incapable of performing that task. There are inconsistencies in the evidence of Tom. So much is to be expected when questioned so many times. Whether such inconsistencies mean that his evidence cannot be safely relied upon is a matter which a jury is well capable of considering. Whether Tom’s evidence is “patently unbelievable” or “inherently unreliable” seems to me able to be safely left for a jury to determine. As Holmes JA said in R v FQ “a statement or statements whose content is manifestly unreliable may well, it seem to me, be more safely and fairly left to a jury than evidence who reliability is potentially affected by external factors less obvious and less capable of being exposed”.^[5]
45. [45]
    In R v Allen (a pseudonym)^[6] Sofronoff P said “it must be a rare case in which evidence would be excluded pursuant to ss 98 or 130 merely because it is said to be unreliable. If evidence is unreliable, it will be given no weight and, in a particular case, such unreliability would lead to a reasonable doubt. Sometimes the complete unreliability of evidence is demonstrated by cross-examination after it has been admitted and sometimes it is demonstrated by evidence tendered afterwards that falsifies the earlier evidence. That does not render the impugned evidence inadmissible; it renders it of no weight.”
46. [46]
    This is not a matter where I would exercise my discretion to exclude the interviews on the basis that the evidence of the complainant is patently unbelievable or inherently unreliable and therefore its admission is unfair or inexpedient to the interests of justice.
47. [47]
    The second submission is that the evidence of Tom has been fundamentally corrupted.
48. [48]
    There are concerning features to the manner in which the allegation made by Tom has been made. It should be borne in mind that Tom and Wendy have been subjected to sexual abuse by D. As much is established by the videos and images seized and the plea of guilty entered by D. They were both of a very tender age when that occurred. Particular care needed to be taken in conferring with each of them.

49. [49]
    There are a number of features to what each of Tom and Wendy have said at differing times which do give rise to what is a clear indication that their grandparents have spoken to them about these matters. Coupled with the timing of Tom’s first disclosures there does arise for consideration a concern as to whether his evidence and that of Wendy has been corrupted, whether intentionally or not.
50. [50]
    The following are some of those features:

    1. within a few months of living with the paternal grandparents the children refer to their parents by their first names. Given their tender ages at the time, that is not a decision that they took themselves without suggestion from an adult;
    2. Wendy saying the applicant did something wrong and was not looking after her, a similar sentiment expressed by Tom.
    3. Wendy’s referring to D as a “kiddy” because he’s being naughty, an unusual reference for a child.
    4. Wendy referring to her grandmother telling her that D did something wrong to her; and
    5. Tom referring to the applicant leaving him with D and not helping him, not stopping what D did to him and just letting it happen.
    6. Tom’s statement that he told his grandmother about everything that happened.
51. [51]
    Those features of the evidence considered against the background of the sexual abuse of both of them by their father does give rise to a possibility that their evidence has possibly been tainted by the things that have been discussed with their grandparents. That they each describe the conduct of the applicant as being an omission from acting as a mother ought to, is an unusual description for children of their tender age. Further it was clearly intimated in the outline of the argument filed in relation to the earlier legal argument and ventilated during oral argument, that concerns were had as to the genesis of Tom’s complaint.
52. [52]
    When the Crown Prosecutor came to confer with Tom, particular care needed to be taken to preserve the integrity of his evidence. Tom was still a very young child when the conference occurred. Without doubt he is a child that has been subjected to particularly exploitative behaviour by his own father. The manner in which the Crown Prosecutor spoke to Tom seems to me to have been designed to reinforce what he had said to police. That was done by simply repeating the allegations to him in detail and asking if he remembered it. I do not consider this is an appropriate way in which to confer with a child witness nor is the asking of repetitive questions. Such  a practice serves to place pressure on the child and has the real risk of unintentionally corrupting the evidence.
53. [53]
    As was explained by the President in R v Allen one of the purposes of section 93A and Division 4A Part 2 of the Evidence Act is to preserve, to the greatest extent practicable, the integrity of an affected child’s evidence. That integrity is ensured by the combination of the statement being admitted under section 93A and the reduction in the stress inherent in the process of giving evidence. The President said “The larger purpose is to increase the likelihood that the child’s evidence is accurate. This is done by ensuring that the initial questioning is not only done in a setting that reduces stress, a condition that does not enhance reliability, but also that it is done by police officers who have received training in how to question children in a way that is calculated to reduce the risk of inaccurate or false accounts. One of the most obvious features of that aspect of the process is the care taken by trained interviewers to avoid leading questions. There are other features which frequent readers of transcripts of such interviews notice, such as the use of extremely open questions.” He further went on to comment that the recollection of a young child will be more accurate close in time to the relevant events; that a very young child’s memory tends to fade very quickly and that section 93A itself was founded upon the assumption that the earliest account is likely to be the most accurate account.

54. [54]
    Tom was very young when interviewed by police. He was questioned by the Crown Prosecutor more than 12 months after his third interview with police and more than two years after the events in question. The process the Crown Prosecutor adopted of asking Tom leading questions fundamentally changed his evidence. The significant passing of time meant that there was a real risk that Tom’s account not only might suffer from his faded memory but also from the effects of gained knowledge. Indeed the prosecution took the decision, despite what Tom said in his interview with police closer in time to the event and as such much more likely to be accurate, to discontinue the charges relating to the first incident in the lounge room. The process undertaken also resulted in the necessity for Tom to be interviewed again, by police, on a fourth occasion. The very fact that Tom then thought he was eight years of age when it was alleged he was in fact six or seven demonstrates how the passing of time has caused his memory to fade.
55. [55]
    The only record of the conference is the anonymised conference note which is attached to this judgement. It is apparent from the evidence of the Crown Prosecutor before me that he considered Tom was at times, confused. He did not always appear to understand the questions asked and sometimes answered with gestures such as a thumbs-up gesture. Because the process wasn’t recorded it is unknown when and about what he may have been confused. The Crown Prosecutor did not attempt to make any notations himself or supplement the contemporaneous note to indicate about what and when Tom appeared confused. That is despite knowing that a statement was requested from him on the date the pre-recording of the children’s evidence was adjourned.
56. [56]
    It was not argued that it was improper for the Crown Prosecutor to have conferred with Tom. The argument has been directed to the manner in which that occurred given the real possibility that his evidence had already been tainted and the lack of any reliable record of it.
57. [57]
    The circumstances surrounding the significant change in the evidence of Tom is impossible to properly assess because the conference was not recorded and because the Crown Prosecutor has no real recollection about Tom’s confusion. The manner in which this child was questioned placed pressure on him to agree to the suggestions made. In circumstances where there is a real possibility that his evidence has already been tainted whether intentionally or unintentionally, there is significant risk that the reliability of his evidence has been affected by the conduct of the Crown Prosecutor. The circumstances surrounding that cannot be properly explored by the applicant. Accordingly in my view it would be inexpedient in the interests of justice for the evidence contained in the complainant’s two interviews with police to be admitted.  I exercise my discretion to exclude the interviews of Tom dated 11 July 2019 and 30 September 2020.
58. [58]
    The Crown Prosecutor who appeared on this application was unwilling to express the position of the Crown should the evidence contained in the complainant’s section 93A interviews be excluded. It would be open to the prosecution to continue with the matter calling Tom to give evidence viva voce subject to any ruling that the indictment be permanently stayed. Accordingly, it is necessary to for me to consider the second application which is for a judge alone trial.

Judge alone trial

59. [59]
    The application is not opposed by the Crown. The provisions concerning a trial proceeding without a jury are found in sections 614 – 615E of the Criminal Code Act 1899. An affidavit under the hand of Ms Jamie Scuderi affirmed on 19 October 2020 sets out the basis of the application.
60. [60]
    The real issue at trial will be whether the offences occurred, as described by Tom. There is no factual issue that requires the application of objective community standards. The circumstances surrounding the child protection proceedings will need to be raised in the trial. Given that I have excluded the section 93A statements it is unknown what evidence Tom will give. To properly defend the allegations, there will need to be reference to the sexual abuse of all the children at the hands of their father and quite possibly the involvement of the applicant in the abuse of one of them to make good the argument that Tom’s evidence has been corrupted. It may be necessary for the details of acts which gave rise to the charges now discontinued to be before the tribunal of fact. It will also be necessary for the involvement of the Department of Child Safety, Youth and Women to be before the tribunal of fact. All of this information will involve significant prejudice to the applicant and feelings of enormous sympathy for these children. Given the abhorrent nature of what are in fact proven allegations of sexual abuse of very young children by both their parents; there is a real risk that a jury would engage in improper reasoning despite directions to the contrary from the trial judge.
61. [61]
    The identity of the trial judge is not known as the matter is not yet listed for trial. It will not be heard by either of the resident judges for reasons set forth in the affidavit material.
62. [62]
    The overriding consideration is the interests of justice. That phrase has been said to include the acquittal of the innocent, the conviction of the guilty, the public interest in seeing that done and the due administration of justice.^[7] The discretion to order a judge alone trial is unfettered.
63. [63]
    Given the significant prejudice involved to the applicant in properly defending these allegations, it is in the interests of justice for the trial to proceed before a judge sitting alone.

Appendix A Anonymised

Conference Note

Witness Conference: Tom 18/09/2020

CP:

LSO:

• CP asked Tom if remembers speaking to Kate about the two times – the time at the house and the time at the river
• Tom said the river was also a creek
• CP asked Tom if everything that happened a the home on the couch is everything he can remember – Tom nodded
• CP said Tom if he remembers saying to Kate that [the applicant] walked in on the thing happening – Tom said yes and nodded
• CP asked Tom if he remembers talking about thing happened to him to Kate – Tom said yes
• CP asked if he remembers telling Kate about [D] touching his penis – Tom said yes -and putting it into Wendy’s butt – Tom said yes
• Tom told the CP that he said it happened twice to Kate but it happened once
• CP asked Tom if [D] touched his penis and put it into Wendy’s butt and then stopped and did it again – CP asked Tom if that was right or wrong – Tom put thumbs up – Tom said right
• Tom explained when he said once he meant it happened on one day
• CP asked Tom if on one day [D] touched his penis and put it into Wendy’s butt – Tom said yes – CP asked Tom if it did stop and happened again on the same day – Tom said yes
• Cp asked Tom if [the applicant] walked in and saw this – Tom said yes and that she didn’t try to help and stop it
• CP asked when [the applicant] walked in and saw this – CP asked if it was before or after – Tom said after
• CP asked whether it was before or after the second time [D] put his0 penis in Wendy’s butt – Tom said second
• CP asked was it before second time – Tom said no after the second time
• CP asked if [the applicant] was there when he put his penis into Wendy’s butt – Tom said no
• Tom said when we sat on the couch we didn’t know what time it was
• Cp asked when [D] put his penis in Wendy’s put was [the applicant] there – Tom said no
• Cp asked when [D] put his penis on Wendy’s butt a second time was [the applicant] there – Tom said no
• Tom said when we were sitting on the couch she arrived
• CP asked if they were sitting on the couch after [D] put his penis in Wendy’s butt – Tom said yes
• CP asked how long after that were they sitting on the couch – Tom said he thinks it was 1 minute
• CP asked if [the applicant] walked in after those things finished – Tom nodded
• Cp asked did those things finish before [the applicant] walked in – Tom said yes
• CP asked if [the applicant] would have seen those things because she wasn’t there – Tom shrugged his shoulders
• CP asked if there is anything he could do to make it easier to talk about – Tom shrugged his shoulders
• Cp asked if [the applicant] was at home the first time [D] put his penis in Wendy’s butt – Tom shook his head – Tom said they weren’t on the couch – CP asked if they were standing up – Tom nodded
• CP asked whether [the applicant] was at home the second time [D] did that or did she come home after – Tom said he was getting confused
• CP asked if [the applicant] wasn’t home the first time it happened – Tom nodded
• CP asked if [the applicant] wasn’t at home the second time – Tom said I think
• CP asked when [the applicant] came home were they sitting on the court – Tom nodded
• CP asked if those things had finished – Tom shrugged his shoulders
• CP asked if it was okay to talk about the time at the creek
• CP asked Tom if he remembers telling Kate how they got to the creek – Tom said he said wasn’t the one driving

– CP asked if he was in the car and someone else was driving – Tom nodded

• CP asked Tom if he remembers the car – Tom said yes it was a white ute

• CP showed photo of car to Tom – asked if he recognised that car – Tom said yes
• CP asked is that the white ute they drove to the creek – Tom said yes but it didn’t have green a net
• CP asked Tom if he remembers saying he was sitting in the car and the door opened and [D] said something to him – CP asked if he remembers what happened when they got to the creek – Tom said yes
• CP asked if he remember telling Kate that [the applicant] was putting her pants down and got on ground like a tiger – Tom said yes – CP asked if he remembers that happening – Tom said yes
• CP asked if he remembers [D] opening the car door and saying to put his penis in [the applicant]’s butt – Tom said yes
• CP asked Tom if he remembers yelling – Tom said yes
• CP asked if Tom remember [D] closing the door and him seeing [D] put his own penis in [the applicant]’s butt – Tom said yes
• CP asked if he was still in the car – Tom nodded
• CP asked how far away were [D] and [the applicant] – CP asked were they close to car – Tom said yes behind the car on a mat
• CP asked if he remember what the mat looked like – Tom said no
• CP asked if he could remember what colour – Tom said I don’t know
• CP asked where behind the car they were
• CP asked if he knows how long a metre is – CP said if between him and the couch was that how far away they were – Tom said yes – CP asked if he thought it was 2m away – Tom said he was not sure but in central state school they were learning about metres with metre wheels
• CP asked were [D] and [the applicant] behind the car on a mat – Tom said yes
• Cp asked how he saw them – Tom said he was looking from the back of the car looking through the back window
• CP asked if he could see them through the back window – Tom said yes
• CP asked if he could remember how long they did that for – Tom said about 1 minute
• CP asked how long he was watching for – Tom said 1 minute
• CP asked if they stayed out there a bit long – Tom nodded – Tom said also because he turned around and looked at Wendy as well and then looked straight back at them
• CP asked if Wendy and him stayed in the car – Tom said yes
• CP asked if he remembers telling Kate about the house it happened in – Tom said yes
• CP asked if he remembers the couch – Tom said yes long and white
• CP asked if remembers telling Kate about a wooden door
• CP showed photos – asked if he recognised the place – Tom said yes
• CP asked what this place was – Tom said it was the living room
• CP asked if this is the living room those things happened – Tom said yes (photo 5750)
• Cp asked if it was the same living room – Tom said yes but it actually had white couch – CP asked is that a different couch – Tom nodded
• Cp asked if he was sure it was white – Tom said yes
• CP asked Tom if he remembers telling Kate how [the applicant] walked past and went into the kitchen – Tom said yes – CP asked is that the kitchen – Tom said yes (photo 5748)
• CP asked is that a close up of the kitchen – Tom said yes (photo 5754)