Children's Court New South Wales Medium Neutral Citation: R v Callum [2023] NSWChC 7 Hearing dates: 13 February 2023 24, 25 May 2023 Date of orders: 29 June 2023 Decision date: 29 June 2023 Jurisdiction: Criminal Before: Magistrate R Hosking Decision: Sequence 1: Not guilty Sequence 2: Not guilty Catchwords: CHILDREN - Sexual assault - Applicability of Crimes Act 1900 (NSW) s 80AB - Alternative verdicts in the Children's Court/Local Court Legislation Cited: Crimes Act 1900 (NSW) ss 3, 61I, 61J, 80AB Evidence Act 1995 (NSW) ss 59, 66,135, 136, 137, 144 Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) Schedule 2 Criminal Procedure Act 1986 (NSW) s 15, Ch 4, Pt 2 Children (Criminal Proceedings) Act 1987 (NSW) s 27 Interpretation Act 1987 (NSW) ss 34, 35 Cases Cited: James v The Queen [2014] HCA 6 The Queen v Coutts [2006] 1 WLR 2154 PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36 Category: Principal judgment Parties: Director of Public Prosecutions (the Crown) Callum (the young person) Representation: Mr S Matchett (the Crown) Ms C Mendes (the young person) File Number(s): 2022/0069101 Publication restriction: Pseudonyms have been used in order to protect the identity of the young person and the accused. Judgment 1. The young person appeared at the Albury Local Court on 12 April 2022 and pleaded not guilty to 2 charges of Aggravated Sexual Assault contrary to s 61J(1) of the Crimes Act 1900 (NSW). 2. The matter proceeded to hearing in the Children's Court at Wagga Wagga on 13 February, 24 and 25 May 2023. 3. Ultimately the Crown alleged: 1. That Callum on or about the 27th or 28th of January 2022, at XXXX, in the State of NSW, did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [the complainant] was a person aged under the age of 16 years, to wit, being in fact aged 15 years. 2. That Callum on or about the 27th or 28th of January 2022, at XXXX, in the State of NSW, did have sexual intercourse with [the complainant] without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, to wit, that at the time of the offence [the complainant] was a person aged under the age of 16 years, to wit, being in fact aged 15 years. 1. The prosecution assert that the sexual assaults alleged occurred in the early hours of either 27 or 28 January 2022, while the young person and the complainant were sharing a bed at the young person's home. The first count is alleged digital penetration by the young person of the complainant's vagina from behind. 2. The second count is alleged penetration by the young person's penis of the complainant's vagina also from behind. 3. The Crown asserts that the complainant was asleep when the digital penetration alleged in count 1 commenced. General directions 1. As the tribunal of fact, I am to assess the witnesses and decide whether they are telling the truth. I have had the opportunity of seeing the witnesses and have observed the way they have given evidence. I am to determine what evidence is accepted and what evidence is rejected. That determination may be based on many things including what the witness has had to say; the way the witness said it; and the general impression which they made upon me when giving evidence. 2. I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the same witness' evidence. The fact that I do not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of the witness' evidence. It does not mean that I should not accept the remainder of that evidence if I think it is worthy of acceptance. 3. As the tribunal of fact, I am entitled to use life experiences, training and experience as a lawyer and as a judicial officer. I can make a value judgment. However, I cannot use that experience to make findings of fact or to draw inferences unless that personal experience satisfies the test relating to common knowledge in s 144 of the Evidence Act 1995 (NSW). 4. I have had full and comprehensive regard to all the evidence in this case. I will only refer to the most significant, pertinent aspects of the evidence in summary form in my determination of the matters which I am required to determine. 5. I have had regard to the submissions made by the Crown and counsel for the young person. In no way are those submissions evidence in this case. I will consider those submissions and give them such weight as I see fit. 6. In relying upon circumstantial evidence, the prosecution asks me to find certain basic facts and then from those facts, to draw a conclusion as to the existence of a further fact or further facts. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. I must consider whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion that the prosecution says is established. 7. This is a case where I am being asked to draw inferences. I direct myself that inferences are conclusions of fact rationally drawn from a combination of proved facts. If A, B and C are established as facts then one might rationally conclude that D is also a fact, even though there might be no direct evidence that D is indeed a fact. Inferences may be valid or invalid, justified, or unjustified, correct or incorrect. 8. In a criminal trial, as the tribunal of fact, I must be satisfied of the guilt of the young person beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I must examine any possible inference to ensure that it is a justifiable inference. 9. In the context of a criminal trial where proof is required beyond reasonable doubt, as the tribunal of fact, I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances. 10. The complainant gave evidence in a remote witness room via CCTV. There is nothing unusual about that and I draw no inference adverse to the complainant or the accused by virtue of the complainant exercising that right. 11. The burden of proof of the guilt of the young person is placed squarely on the prosecution. That burden rests upon the prosecution in respect of every element or essential fact that makes up the offence with which the young person has been charged. That burden never shifts to the young person. There is no obligation whatsoever on the young person to prove any fact or issue that is in dispute. It is not for the young person to prove their innocence but for the prosecution to establish guilt. 12. Proving guilt beyond reasonable doubt is the high standard of proof the prosecution must achieve before the court can convict. The words mean exactly what they say — proof beyond reasonable doubt. After considering all the evidence in the hearing and submissions made by the parties the question to be asked is whether the prosecution has established the young person's guilt beyond reasonable doubt. Specific directions 1. The fact the young person has given evidence does not alter the burden of proof. The young person does not have to prove that their version is true. The prosecution has to satisfy the Court that the account given by the young person should not be accepted as a version of events that could reasonably be true. 2. This is a case where the evidence adduced by the Crown from the complainant and those she gave evidence of first complaint to, conflicts with the evidence given by the young person. Given this, I remind myself that: 1. I am not to consider the evidence in terms of "who is to be believed", rather: 1. If I believe the young person's evidence, obviously I must acquit. 2. If I find difficulty in accepting the young person's evidence, but think it might be true, ie if it gives rise to a reasonable doubt, I must acquit. 3. If I do not believe the young person's evidence, I need to put it to one side. Then I must ask myself: "Has the prosecution, upon the basis of evidence that I do accept, proved the young person's guilt beyond reasonable doubt?" 1. The principal prosecution witness in this trial is the complainant. As part of the prosecution case evidence was led from the complainant and a number of other witnesses called by the prosecution of various complaints made by the complainant in the days and weeks following the event involving the young person giving rise to the charges. The prosecution seeks to rely upon this evidence in accordance with s 66 of the Evidence Act. 2. Evidence of complaint is admissible under s 66 of the Evidence Act as evidence that the young person in fact committed the act or acts alleged. However, to be admissible, the complainant must be available and competent to give evidence about the alleged offence and be called to give such evidence. The complaint must have been made at a time when the asserted facts relating to the alleged offence were fresh in the memory of the complainant. 3. If the evidence falls within s 66, the hearsay rule in s 59 does not apply to it. The evidence of complaint becomes evidence of the facts stated (see s 66(2)) subject to any order limiting its use. 4. There are, in essence, three ways in which complaint evidence can be utilised by a tribunal of fact: 1. to prove the truth of the facts asserted in the complaint; and 2. to assess the credibility of the witness – for example, if the evidence shows consistency between the conduct of the witness and the conduct that might be expected of a truthful witness; and 3. to rebut the argument that may otherwise arise that an absence of complaint suggests that the offending did not take place. 1. Further, in considering whether complaint evidence should be admitted, consideration must be given as to whether the statutory preconditions were made out, whether the evidence is relevant and whether the use of the evidence should be limited pursuant to ss 135, 136 and 137 of the Evidence Act. 2. Dealing with the preconditions, "fresh in the memory", as to whether the relevant events were fresh in the complainant's memory when the complaints were made, I am able to take into account: 1. the nature of the event concerned; 2. the age and health of the person; and 3. the period of time between the occurrence of the asserted fact and the making of the representation. 1. It was submitted in this case, and not disputed by the Crown, that the young person is a person of prior good character. Evidence of prior good character is relevant to both the likelihood that the young person engaged in the offending but also to the assessment of their credibility. I note the evidence of the young person's good character. 2. The next specific direction I must give myself relates to the accused being charged with more than one charge contained in the court attendance notices. I must consider each charge separately, evaluating the evidence relating to that particular charge to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the essential elements of that particular charge. If I have a reasonable doubt concerning the truthfulness or reliability of the evidence in relation to one of the charges, whether by reference to issues of demeanour of witnesses or any for any other reason, that must be considered by me in assessing the truthfulness or reliability of evidence generally. 3. It may occur, in respect of one of the charges, that I am not sufficiently confident of the evidence relied upon by the prosecution to convict in respect of that charge. A situation may arise where, in relation to a particular charge, although I am inclined to think that the evidence is such that what is alleged by the prosecution probably happened in the manner alleged, I have some reasonable doubt about an element or elements of that particular offence. If that occurs, of course, I would find the accused not guilty in relation to that charge. That does not necessarily mean, however, that I cannot convict of any other charge. I have to consider why I had some reasonable doubt about that part of the prosecution evidence relied upon as proving the charge and consider whether it affects the way I assess the rest of the evidence, that is, given my doubt about that aspect of the evidence do I also have a reasonable doubt about the part of the evidence relevant to the other charges. Witnesses Constable Convery 1. Constable Convery was a credible and honest witness. He gave appropriate concessions as to further investigations that could have been made including taking a Cellebrite download of the complainant's phone. The complainant 1. The complainant's evidence was not without issues and inconsistencies. 2. A significant inconsistency involved how long they spent at the young person's house. JS, the young person's friend, and the young person's evidence was that they arrived on the 26th and left on the 28th of January. The complainant said they only stayed for one night. The prosecution submitted that 2 nights became conflated into one. The context at the time was that the complainant was "couch surfing." She had left home on New Year's Eve and at the time of this incident, she was staying with JS. It is plausible that in her transient state, she did conflate the 2 nights into one. The evidence from the young person was consistent with the incident having occurred on the final night they stayed at his house. 3. Her evidence was inconsistent as to how much alcohol she consumed on the night of the incident. 4. She made appropriate concessions which were potentially adverse including in relation to sending provocative or suggestive messages and photos prior to the incident, to having assaulted her mother, being on bail, being in breach of her bail. 5. There was an attempt by the defence to use the complainant's mother to establish a pattern of behaviour of lying on behalf of the complainant. The complainant deals with the distinction between lying to her mother and fabricating an assault at transcript page 67 from line 45: Q. Did you feel some kind of pressure to distort the truth about what actually happened because you wanted to get the heat of you because you had been in breach of your bail and-- A. I'm sorry-- Q. --in breach of a bond-- A. --but that's isn't a thing to lie about and no. Q. --worried that you still had to face the Court on new charges, the ones from 12 December? A. If I did, I, I would have had - I'd just face it, like if you mess up you mess up and you own it, you face it. Q. That hasn't always been the case because you have been prepared to be untruthful to mum about where you are, what you're doing? A. Yeah, but that's a bit different. She's not the authority. Q. What you're saying is you'd lie to mum but not to the authorities? A. No, I'm not exactly saying that. I'm just saying she's not, the authorities are high, like I would prefer to lie to my mum than to lie to the police or to say, you guys, or to Chris. 1. I find her reflection to ring true. She acknowledges she has in the past lied to her mother yet that does not mean she would lie to police. 2. The complainant was not asked about her relationship with her mother or what would cause her to lie to her mother. I consider the court must be careful at assuming a picture book relationship between a mother and a daughter which would imply that a daughter lying to her mother is automatically bad because a mother is always good. The text messages in exhibit 9 which were sent by the complainant's mother to the young person's mother do not paint the complainant's mother in a positive light in relation to the language she uses or her opinion of her daughter. I accept the complainant's explanation as to why she would not lie to "authorities" including this court. 3. I will deal with the particular aspects of the complainant's evidence below in my assessment of the elements. For the reasons outlined, I acknowledge the complainant's evidence was not without inconsistencies and issues. However, I found she genuinely attempted to give honest and accurate evidence as best as her memory enabled her. She did not appear to tailor her evidence, for example, including as to staying two nights, even as it became clear it may be an issue. 4. I found her evidence generally to be believable and plausible. Chris Ruskin 1. Mr Ruskin, the complainant's Youth Justice caseworker, gave evidence in an honest and forthright manner. He confirmed that the complaint made to him was not made on the first time she saw him post incident but on the occasion after that. 2. In terms of the delay in making the complaint, the delay in reporting is relevant to my determination of the weight that can be given to the evidence of complaint. In this case, Mr Ruskin is not a friend or family member but a person with some authority. Based on the mother's evidence, the disclosure to Mr Ruskin followed encouragement from her mother. I find the delay understandable given the nature of the relationship between Mr Ruskin and the complainant. 3. The nature of the complaint as reported by Mr Ruskin was that the complainant said she woke up and the young person was on top of her. She told him that the young person "had penetrated her." He said, "there was not much more discussion about it." 4. On cross examination he confirmed he had talked to her about the importance of compliance with her bonds, bail and reporting conditions. The complainant's mother 1. I dealt above with the questioning of the complainant as a truthful person. For the reasons outlined, I did not find that evidence impugns the complainant. 2. Even when being asked about the complainant's general truthfulness, the complainant's mother gave evidence in a forthright and honest manner, including making adverse concessions about the general truthfulness of her daughter. 3. She admitted she was not given any detail about the assault, just that it happened. She did not try and embellish or exaggerate. The complainant disclosed to her on 29 January, within days of the incident occurring. JS 1. JS appeared to be attempting to give evidence in a truthful and forthright manner. However, she admitted that a long time had passed and her memory had faded. The complainant reported to her that she was assaulted by the young person. JS gave evidence that the complaint described the assault as the young person, "persisted to finger her, and she thought that she would, like, snore to try and let him know that she's asleep, and then he preceded to do – like, fully go for it." 2. JS description is consistent with the description provided by the complainant and the complainant was made shortly after they left the premises where the assault was alleged to have happened and when they were no longer in the company of the young person or his mother. 3. I found her evidence that they stayed at the young person's house for 2 days, in that it was supported by the young person, more likely to be true that the complainant's version that they were there for 1 night only. Callum 1. Callum said on the subject morning he woke before his alarm. She was in front of him, lying on her side. He said he felt her grinding on him and he grabbed her on the arse and squeezed it, "I thought she wanted to have sex. So then, that's when I've reached down and gone to finger her." 1. He said he thought she was awake at the time and took her conduct to indicate consent. The text message exchanges do not support his evidence in that he is the one that raises the issue of a complaint to police, he threatens to suicide, he admits to digitally penetrating and to doing "dumb things". He says after the digital penetration he has a shower and returns to the room she asks if he wants to have sex and he says yes and then they do. This is wholly inconsistent with her version as to the penile penetration following the digital penetration. 2. His version as to penile vagina sex seems totally implausible when compared with the text messages. If they had sex verbally instigated by her why would he not have said I don't know what you're talking about – I fingered you and then you asked for sex? 3. I have trouble accepting his evidence from the moment he says he left the room to get ready for work. 4. He denied knowing she was 16. He admitted to knowing she was not 20 but there was nothing in his evidence that suggested he knew she was 15 and 7 months. The closest was that they were 2 years apart at school. Essential elements 1. I will now direct myself as to the essential elements of each of the charges on the indictment. 2. Before I can return a judgment of guilt to count 1 or count 2 on the court attendance notice, the Crown would need to have satisfied me beyond reasonable doubt of the following essential elements: 1. That on or about the 27th or 28th of January 2022, at XXXX, in the State of NSW, Callum did have sexual intercourse – being digital penetration count 1 and penis/vagina penetration – count 2 - with the complainant. 2. That the intercourse was without consent – this element concerns the complainant's state of mind, and the prosecution must prove that the complainant was not consenting at the time the sexual intercourse occurred. Relevant to the evidence in this case: 1. consent or lack of consent may be indicated by what the complainant said but also what she did; 2. the fact that there may not have been resistance to intercourse is not, by reason only of that fact, to be regarded as consent. 1. That the young person knew that the complainant was not consenting. This element concerns the young person's state of mind. The prosecution is required to prove beyond reasonable doubt that the young person knew that the complainant was not consenting to the intercourse. I need to consider all the circumstances including any steps taken by the young person to make sure the complainant consented. Relevant to this case, the prosecution will have proven the young person knew the complainant did not consent if: 1. he knew she did not consent; 2. he was reckless as to whether she consented because he realised there was a possibility she did not consent; 3. he was reckless as to whether she consented because he did not even think about whether she consented but went ahead not caring, or considering it was irrelevant whether she consented; or 4. he believed she consented but had no reasonable grounds for that belief; 5. she could not consent because she was asleep. 1. If the above elements are satisfied, I must consider the final element based on the charges articulated in the Court Attendance Notice, whether the sexual intercourse occurred in circumstances of aggravation, being that at the time of the offence, the complainant was aged 15. 1. I will deal with the final element first. The young person denied knowing that the complainant was 16. He admitted to knowing she was not 20 but there was nothing in his evidence that suggested he knew she was 15 and 7 months. The closest was that they were 2 years apart at school. Given children can start school as early as age 4 and as late as age 6, that is not definitive. The young person was not sophisticated. I could not, on the evidence before me, find beyond reasonable doubt that he knew she was 15 at the time of the alleged offences. The element of aggravation was not made out in respect of either sequence. 2. Notwithstanding that finding, the Crown asserts that pursuant to s 80AB Crimes Act, I am entitled to find the young person guilty of an offence under s 61I provided all elements other than the element of aggravation are made out. 3. Section 80AB provides: If on the trial of a person for an offence under section 61J, 61KD or 61KF the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under section 61I, 61KC or 61KE, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly. 1. There is no express provision stipulating that s 80AB applies to Children's Court proceedings. Nor has the issue of its application to the Children's Court or the Local Court been considered by an appellate court. 2. Written submissions were obtained from the parties in relation to this issue; the Crown on 25 May 2023 and 29 June 2023; the defence on 26 June 2023. 3. The Crown assert that s 80AB remains operable in the Children's Court given the combination of s 15 of the Criminal Procedure Act 1986 (NSW) and s 27 of the Children (Criminal Proceedings) Act 1987 (NSW). 4. Section 15 includes in the definition of 'indictment', reference to a court attendance notice. 5. Section 27 provides: Application of Criminal Procedure Act 1986 and other Acts (1) Subject to Part 2 and to the rules of the Children's Court, any Act or other law relating to the functions of the Local Court or Magistrates or to criminal proceedings before them applies to— (a) the Children's Court, and (b) any criminal proceedings before the Children's Court. (2) In particular (and subject to Part 2 and to the rules of the Children's Court), the provisions of the Criminal Procedure Act 1986 that apply to the Local Court and any criminal proceedings before the Local Court apply to the Children's Court and any criminal proceedings before the Children's Court. 1. The Crown asserts that the young person is being tried on indictment, albeit before a Children's Court Magistrate sitting as both tribunal of fact and law. This submission, the Crown says, has been endorsed by the High Court in James v The Queen [2014] HCA 6. 25 May 2023 submissions, paragraph 6: "The decision of The Queen v Coutts [2006] 1 WLR is apposite to the issue at hand. The ratio of Lord Bingham in Coutts states: "The public interest is that, following a fairly conducted trial, defendants should be convicted of offences which they are proved to have committed and should not be convicted of offences which they are not proved to have committed. The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment which his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted, nor acquitted when they have committed a lesser offence of the type charged. The human instrument relied on to achieve this objective in cases of serious crime is of course the jury. But to achieve it in some cases the jury must be alerted to the options open to it. This is not ultimately the responsibility of the prosecutor, important though his role as a minister of justice undoubtedly is. Nor is it the responsibility of defence counsel, whose proper professional concern is to serve what he and his client judge to be the best interests of the client. It is the ultimate responsibility of the trial judge". Lord Bingham's considerations of justice and policy were cited, with approval, by Gageler J in James v The Queen [2014] HCA 6 at [74]." 1. The Crown considered the use of the word "trial" as opposed to a "hearing" in the Children's Court. The Crown deal with this issue in their 29 June 2023 submissions at paragraph 3 – 5 extracted here: "A further legislative basis was raised in oral submissions. The Crown maintains that there is no distinction to be drawn, with respect to this issue, between references to a 'hearing' and a 'trial'. The Criminal Procedure Act 1986 (NSW) at Chapter 4, Part 2, expressly refers to the conduct of a hearing as a 'trial procedure in lower courts.' It is implicit that the provisions governing the conduct of hearings, when referenced as 'trial procedures', make no delineation between the terminology. During oral argument on 25 May 2023, learned defence counsel resisted the court placing reliance on the title of a subdivision as not 'something that Your Honour can hang her hat on as the means by which your Honour would interpret that particular provision'. The heading of a provision is to be taken as part of the Act. The application of ss 34-35 of the Interpretation Act 1987 (NSW) expressly provides for the use of headings when engaging in statutory interpretation." The construction of the terms of s 80AB should be considered in light of what was expressed in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service [1995] HCA 36: "A provision conferring a power to be exercised judicially should be construed as liberally as its terms and context permit" The Crown's ultimate submission is that the conferral of power to return an alternative verdict is consistent with a liberal interpretation which leaves open the exercise of this power to this court." 1. The defence highlight s 3 of the Crimes Act: "The Parts and sections mentioned in Schedule 2, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried." [Emphasis added]. 1. Schedule 2 specifically does not include s 80AB. The defence assert that the absence of s 80AB from Schedule 2 has the effect that it does not extend to offences tried in the Children's Court. Schedule 2 was amended by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW). As outlined in paragraphs 16-24 of the defence submissions, the predecessors to s 80AB were included in Schedule 2 for an 11 month period and then purposely removed. This, the defence say, shows a clear intention of parliament not to provide the Local Court or Children's Court with the power to return alternatives for sexual type offences. This may be because these offences generally fall outside the scope of the Local Court – which leaves a gap in circumstances where these offences are often prosecuted in the Children's Court. 2. Given there is no express power conferred on a Children's Court Magistrate and the defence have been able to demonstrate a parliamentary intention to exclude the power, I find that s 80AB does not operate to enable a Children's Court Magistrate to return an alternative verdict to s 61J(1) in circumstances where the aggravating feature of the charge is not proven. 3. Notwithstanding that finding I will continue to address all relevant issues in the proceedings in case an appellate court forms a different view as to the application of s 80AB. 4. The second limb in relation to the alternative verdict to be applied involves considering the manner in which the proceedings were run. The issue of an alternative verdict was not raised until after the defence case closed and prior to submissions commencing prompted by a question from the bench [transcript 24 May 2023 page 82 para 40]. The question of fairness is contemplated in James v The Queen. 5. In this case, the issue was squarely raised prior to either party formally commencing submissions. It was done so in circumstances where both parties were given extended opportunities to consider the issues and prepare oral and then written submissions on the issues. The proceedings were not defended on an 'all or nothing' basis with the primary focus being on the Crown's ability to discharge its onus of proving the aggravating feature of the offence. On the contrary, the aggravating feature was seemingly a secondary issue to the element of consent. As such, it could not be unfair or unjust for the judgment to rise or fall on the issue of consent. 6. In the event I am wrong as to the application of s 80AB on a statutory interpretation, I would not have precluded an alternative verdict under s 61I of the Crimes Act on the basis that it was unjust or unfair given the way the proceedings were run. Sequence 1 1. Based on the evidence of the complainant and the young person, it is not in contention that in the early hours of the last night the complainant stayed at the young person's house (being either 27 or 28 January 2022), the complainant and the young person were alone in his room, the young person took down the complainant's pants so as to digitally penetrate her vagina from behind. 2. In her DVEC, the complainant describes: 1. Waking up to his having pulled her pants down, having him put "maybe two" fingers in her vagina. It was "kind of painful". This happened for a minute and then he "put his dick in." "I knew because it just hurt instantly. Like it was not nice at all and, um, he was like, um sort of like, thrusting" (pages 29 and 30). 2. She didn't move but she kept on snoring even though she was awake – hoping it would make him stop but he didn't stop. 3. He then stopped got his phone and got ready for work. 1. Her evidence under cross examination was entirely consistent at page 52 line 40: Q. That what he did was pulled your pants and your underwear down a little bit, enough for him to put his hand down your backside towards your vagina? A. No, when he pulled my pants down he moved it all the way towards the back of my thigh, not just a little bit, all the way back to the back of my thigh, and then that's when he put his fingers in, that's when he stopped, and then that's when he put his penis inside of me, without asking and without consent. 1. In relation to sequence 1, the first element, that digital penetration occurred, was made out on the evidence of the complainant and the young person. 2. The issue in dispute is whether the digital penetration occurred with consent. 3. The complainant's evidence was that she did not move during the penetration and the only sounds she made were snoring sounds to signal that she was asleep in the hope that he would stop. Her evidence in this regard is supported by her complaint to JS. 4. The young person's evidence was that he awoke to the complainant grinding into him. He had difficulty using the correct words, but I accept he meant grinding into his groin with her buttocks. He took that as an invitation but squeezed the cheek of her buttocks to see what her reaction was to be sure. She continued to grind into him which he took as an invitation to pull her pants down and digitally penetrate her. He further says that as he was penetrating her she was making moaning or sex noises – again he was tight with words but I took this to mean indicating sexual pleasure. 5. He says that penis vagina intercourse doesn't happen at that stage. He then gets up to get ready for work, he has a shower and comes back to the bedroom. The complainant says, "do you wanna fuck," he says yes and they then have sex. 6. Supplementing this, the defence raised the history of the two as indicating she had a crush on the young person. This history included a hug at school when the young person was in year 9, 3 photos sent by the complainant clothed but emphasising her breasts, a redacted photo which was of her bottom, and a comment "hey sexy come lick curry outta my toes xx free of charge" – the latter being sent on 1 December 2021 (exhibit 7). He did not respond to the message. 7. Following the incident but not dated, the following messages were exchanged between the complainant and the young person: YP: Yes C: We need to have a talk YP: What about YP: Tell me before I don't have service C: When I was at yours I woke up and went back to your bed I fell asleep and I woke up to you fucking me [young person] I didn't want to talk about it but you have to tell me why tf you thought it would be okay to start fucking me in my sleep YP: I don't dumb shit I do YP: If ur tell the cops tell them all about I want too be behind four walls better then this world C: [young person] I'm not going too I just want to know why your practically my family and when you did that I just don't know but you should of known better then that YP: Me every sorry C: It's ok. YP: It's not ……… YP : U tell the cops YP : Some thing YP : Bc they asking for me if u did good too know me going too hang my self 1. The text messages are very informative. At no stage does the young person say – what do you mean, you were grinding, I squeezed your butt to make sure you were up for it. Nor does he say – what do you mean, just after that you asked me if I wanted to fuck and we did. 2. The young person's evidence was that he was at work and so he answered quickly and under pressure. However, he jumps straight to saying what he said in evidence was meant to be "I do dumb shit" and then he mentions four walls as if he is going to gaol. It is just not plausible that this allegation that she was asleep has come out of the blue and this would be his response if his version of events were true. 3. The text messages are wholly inconsistent with the young person's version that the complainant was giving consent by her actions in grinding into him. Instead, they suggest he knew that she had not given consent, that he had done something dumb, and that he may go to gaol as a consequence. 4. I don't accept the young person's evidence that he was too busy to respond properly. If his version were truthful, the first response would in some way reflect his truth of what happened. 5. In relation to consent: 1. I find the complainant did not consent to being digitally penetrated by the young person. In her own evidence she offered no physical resistance, this of itself does not indicate consent. 2. I find that the accused knew the complainant did not consent. I don't accept his evidence that the complainant was grinding into him. I accept the complainant was making noises which she says were consistent with snoring noises. I find that the young person was opportunistic in that the complainant was in his bed and asleep when he decided to pull down her pants to access her vagina. He did not ask or enquire as to her consent and was reckless as to whether or not she did consent. Given there was no resistance, he continued. 1. If an alternative verdict pursuant to s 61I was available to the court (which I have found it is not) I would have found the young person guilty of sequence 1. Sequence 2 1. In relation to sequence 2, the complainant says that the young person withdrew his fingers and inserted his penis. She believed it to be his penis because it was painful. She was not asked whether or not it could have been the addition of another finger. Nor was she asked whether or not he ejaculated and there was evidence on or inside her following the incident. 2. The young person denies penis vagina intercourse at that stage and asserts there was consensual intercourse after he started getting ready for work. 3. Returning to the messages, the admissions made by the young person are specifically in relation to the digital penetration. 4. I am not assisted by the complaint evidence in this regard as there was no detail provided to the mother or to Mr Ruskin. Ms Mendes submitted that the evidence of JS is inconsistent, as she says the complainant said she woke up with the young person on top of her. On my review of the transcript, it was Ruskin that said this. JS said she woke to him fingering her. This evidence is consistent with the complainant's version. 5. I accept the complainant believed she was being penetrated by a penis. However, given the nature of the text responses from the young person, I have reasonable doubt as to whether there was penetration by the penis at that point. 6. Given the young person's version as to consensual intercourse takes place after he has his shower and when the complainant says the assault has ceased, I don't need to deal with that evidence, save for to say again it seems implausible that he would not have referred to consensual intercourse and a request "to fuck" in his messages in response to the complainant. 7. Given the reasonable doubt I have expressed, I find the young person not guilty of sequence 2. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 July 2023