Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v AB [2015] NSWLC 29 Hearing dates: 8, 9, 10 October 2014, 6 February 2015 Decision date: 31 March 2015 Jurisdiction: Criminal Before: DCM C O'Brien Decision: Charge dismissed Catchwords: CRIMINAL PROCEEDINGS - indecent assault – assessment of witness' evidence – oath v oath – child witnesses – complaint evidence – context evidence - demeanour Legislation Cited: Crimes Act 1900, s 61M(2) Evidence Act 1995, ss 66, 165A Cases Cited: Cubillo v The Commonwealth (2000) 174 ALR 97 ES v R(No 1) [2010] NSWCCA 197 Jones v Hyde (1989) 85 ALR 23 Liberato v R (1985) 159 CLR 507 Papakosmas v R (1999) 196 CLR 297 R v Murray (1987) 11 NSWLR 12 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) AB (the accused) Representation: Solicitors: Mr B Barrack (for the DPP) Mr W Smith (for the accused) File Number(s): 2014/12156 Publication restriction: Pseudonyms have been assigned to prevent the identification of any child witness Judgment 1. The accused AB has been charged with one count of indecent assault upon a person under the age of 16 years. The charge is brought pursuant to s 61M(2) of the Crimes Act 1900. A plea of not guilty was entered to the charge and the matter proceeded before me for hearing in the Coffs Harbour Local Court over 6 days being 8, 9 and 10 October 2014 and 4, 5 and 6 February 2015. Mr Barrack Solicitor appeared for the Director of Public Prosecutions and Mr Smith Solicitor appeared for the accused. Following the completion of the evidence on 6 February 2015 I made directions for the preparation of written submissions and adjourned my decision until today. Written submissions have been received by me from both parties both in the first instance and in reply and they have been carefully considered. 2. As in any criminal hearing it is for the prosecution to prove each and every element of the offence charged beyond reasonable doubt. Unless and until the prosecution has discharged that heavy onus the accused is entitled to the presumption of innocence. The words "beyond reasonable doubt" are ordinary English words and are to be given their ordinary English meaning. No further elaboration is required or desirable. It is however to be borne in mind that suspicion, and even grave suspicion, cannot be a substitute for proof beyond reasonable doubt. 3. As in any matter it is necessary for me to assess the evidence that has been given by the various witnesses along with the documentary material that has been tendered. I am expected to use my life experience, my understanding of the community and my common sense in undertaking an assessment of the evidence, and I have of course done so. 4. In my assessment of the witnesses I have considered carefully and taken the approach set out by O'Loughlin J in Cubillo v The Commonwealth (2000) 174 ALR 97. In that case, his Honour said at [118]: … I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it. Later in the judgment (at [121]) his Honour remarked: A trial judge is not restricted in his or her assessment of a witness. By this I mean that if, on peripheral issues, the trial judge reaches conclusions adverse to the credibility of a party, it does not necessarily follow, consistently with such conclusions, that these must be findings adverse to that party on the issues that are central to the determination of the matter. There is no rule of law or practice that states that an adverse finding on any aspect in the evidence of a witness means that the whole of that witness' evidence must be rejected. 1. To prove the offence of indecent assault the prosecution must firstly prove that there was an assault. That element can be satisfied by proof of either physical contact or the threat to a victim involving a reasonable apprehension of immediate and unlawful physical violence. The act relied upon by the prosecution must be deliberate, that is, it must be the non-accidental and voluntary act of the accused, and further, the conduct must be unlawful. For an assault to be indecent it must have a sexual connotation. It will have that connotation where the touching or threat is on or to a portion of the complainant's body, or by the use of a part of the assailant's body, which gives rise to that connotation. The Crown must establish that the accused "at the time of, or immediately before or after the assault" committed an act of indecency "on or in the presence of" the complainant. The same act may and frequently will constitute both the assault and the act of indecency. That is the case in this matter. Background – agreed facts 1. The alleged victim is a young girl who I shall refer to as Kylie. She resides in Macksville, a town on the mid north coast of New South Wales. In early January 2014 she was close friends with another young girl from Macksville who I shall refer to as Taylah, who is the putative step daughter of the accused. I will refer to Taylah's mother as Ms B. She (Ms B) and the accused have been in a domestic relationship for many years. There is one child of their relationship, a young boy who I shall refer to as Jack. He was aged almost seven years in early January 2014. 2. Prior to and at the relevant time Kylie and Taylah spent a good deal of time together. They went to school together, played sport together and the evidence indicates that Kylie spent a very considerable amount of time at the house of AB and Ms B. She regularly stayed there overnight. 3. On 4 January 2014 the alleged victim and the accused along with Ms B and the children Taylah and Jack travelled from Macksville to Grafton by motor vehicle. Their intention was to attend a display of some type involving what were referred to in the evidence as "Monster Trucks." This was to take place at Grafton Showground. 4. The group checked into the Hilldrop Motor Inn at Grafton prior to attending the show. They occupied Room 7. The motel room, which is depicted in a series of photographs that were tendered to the court and became Exhibit 2 is if I might say respectfully a typical country motel. It comprised a single bed, a queen size bed and a three seater couch that could also be used for sleeping. There were also the usual bathroom facilities that one would expect. In addition, the accused and Ms B took with them a blue camping stretcher which was to be set up within the room for the child Jack to sleep upon. That stretcher occupied a space between the couch and the queen bed. 5. In any event after being at the motel for some time during the afternoon the group attended at the showground to watch the Monster Truck show. They watched the show and after it had concluded returned to the motel at or about 9.30 or 10pm. After leaving the showground the accused stopped at a nearby bottle shop and purchased two long necks of Toohey's New beer. The evidence is that on return to the room he consumed about one and a half bottles of this beer. 6. It is not disputed that Ms B was sleeping in the single bed, Taylah and Kylie were sleeping in the queen bed, Jack was sleeping on the blue camping stretcher and the accused was sleeping on the couch. Taylah was positioned in the queen bed closest to where her mother was sleeping, and Kylie was on the other side of that bed and in a position closest to the stretcher bed occupied by Jack and the couch occupied by the accused. 7. In due course and after watching television for some time the occupants of the room fell, or sought to fall asleep. It is the events that are alleged to have occurred thereafter in the early hours of the following morning that give rise to the charge before the court. The alleged victim's version 1. Kylie's evidence like that of the other young people who provided evidence, came before the Court through the playing of her electronically recorded interview. Kylie says that after the other occupants of the room had fallen asleep it transpired that she and the accused were awake. She alleges that the accused spoke to her and said words to the effect "You're hot, I want to fuck you". Kylie says that this caused her to shake. Her evidence is that she got out of bed to go to the toilet walked to the bathroom but was unable to "go" because she was shaking and distressed (apparently as a consequence of what had been said to her) although she did finally manage to do so. She says that she then walked back to the bed and pretended that the room air conditioning was cold. She says that the accused then got up from the couch to go to the toilet. She said that he shortly returned, and that when he did he sat on the bed that she was sharing with Taylah. At that point Kylie says that she turned the air conditioning in the room off. She says that the accused then said to her "Well done" and that he grabbed her arm and pulled her to him and started to kiss her forehead. She says that she said to him "No, go away" and that he then went back to the couch where he had previously laid. Kylie alleges that the accused then said to her "There's a hole in this couch you should come and fill it up", and that later said something to the effect of "I want to fuck you". 2. Kylie says that the accused continued speaking but that she was unable to clearly understand what he was saying. She says that he then said to her "Come here", whereupon she leaned the top half of her body towards him at which time he pulled her to him and started kissing her on the cheek. It was at this point that she again said "No". Kylie's evidence is that she then leaned back and moved completely onto the bed, and turned around so as to ignore what the accused was saying. She says that the accused then got up from the couch and again sat on the bed, when she says that she felt him touch the top of her shorts and "go to touch her arse". She says that she straightened her legs and that the accused returned to the couch. 3. Her evidence is that sometime later the accused again got up from the couch and went to the toilet. When he returned she alleges that he again, for the third time, sat on the bed and started to grab her breasts and commence to kiss them. She says that she was in shock and froze. She says that she "finally got out" and "turned around". Kylie says that the accused then resumed his position on the couch and that he was speaking. She could not understand what he was saying but she thought he said words to the effect "We should do that again". 4. It is then alleged that some five minutes later the accused approached her on the bed and while straddling the stretcher that Jack was asleep on, commenced again to kiss and touch her breasts in the same way as he had done previously. Her evidence is that she again said "No" after she had "frozen in shock". Thereafter the accused returned to the couch where he fell asleep. Kylie's evidence is that not long after the young child Jack awoke following a nightmare. His waking roused all of the occupants of the room. After some little time Jack was calmed down by the accused and put back to bed, whereupon she says that the accused again went to the toilet. It was at this point that Kylie says that she spoke to Taylah, who was now awake and lying next to her in the bed, and said "I have something to tell you in the morning". 5. The following morning all of the group attended at a mall in Grafton. They ate breakfast at a McDonalds Restaurant, and whilst at the mall Kylie complained to Taylah about what had happened to her on the previous evening. The group of five then returned by motor vehicle to Macksville. 6. Kylie later made further complaints to others and the terms and nature of those complaints are matters to be considered later in these reasons. 7. Kylie alleges that the conduct of the accused caused a bruise to her left breast. On the car journey home to Macksville a photograph of that bruise was taken from a camera located on Taylah's iPod. What the accused says 1. The accused denies the allegations in their entirety. He gave evidence in the proceedings and had also participated in an electronically recorded interview with police on 14 January 2014, some 10 days after the offence is alleged to have been committed. It is to be borne in mind that he had no obligation to do either of these things. He has at all times denied any deliberate or inappropriate touching of Kylie whether in the way alleged or at all. 2. There is no dispute from the accused as to the general sleeping arrangements within the motel room. He does say, contrary to Kylie, that he slept with his head to the door of the motel room, rather than with his head to the wall in a way similar to the other people in the room. He says that at the time he went to sleep the air conditioning within the motel room was on and that Taylah and Kylie were in the queen bed with the bed clothes pulled up over them. He gave evidence that at one point he got up from the couch and went to the toilet. When he returned he says that Kylie spoke to him saying words to the effect that "I'm cold" and that she "was going to turn the air conditioning in the room off." It is not disputed that the switch for the motel room's air conditioning unit was situated on a wooden bedhead adjacent to where Kylie's head was placed on a pillow in the queen bed. He says that Kylie then switched the air conditioning off. While he did not see this happen due to the darkness in the room, he quickly became aware that the air conditioning had ceased to operate. He says that after Kylie turned the air conditioning off he said "Well done" to her. That the words "Well done" were spoken by him to Kylie at the time that the air conditioning was turned off is not disputed. 3. He says that sometime later he again went to the toilet and then returned to his sleeping position on the couch. His evidence is that Kylie said something to him on his return to the couch, the exact nature of which he could not recall. He says he then asked her if she was awake and that she replied that she "Could not sleep in a strange bed." His evidence is that he then said to her words to the effect "Shut your eyes and go to sleep". 4. The accused says that at some time thereafter the room became hot and that he again got up from the couch this time with the intention of turning the air conditioning back on. He says that he stood between the couch and the stretcher where Jack was sleeping at a point about midway along the couch and then, in the dark and half asleep, moved towards where the air conditioning switch was located. In doing so, he says that he stumbled and "half went, fell" whilst still standing in the area between the stretcher and the couch. It is clear on the evidence that this is a very tight and limited space. In doing so he placed his right hand on the chest of drawers that were adjacent to the queen bed (and which are clearly visible within the photographs taken by police of the motel room) and turned off the air conditioning switch with his left hand. In cross examination he agreed that his left hand might have touched the bed in the area of the pillow that Kylie was sleeping on, while he was in the process of keeping his balance and turning off the air conditioning. 5. After turning the air conditioning off the accused says that he returned to the couch and fell asleep until woken by Jack's nightmare some time later. He says that he settled Jack and then returned to sleep. Both in his electronically recorded interview and in his sworn evidence the accused says that the only time he could possibly have touched Kylie at all was during the process of his seeking to turn off the air conditioning at the time that he stumbled. He says that if there was any touching of Kylie at that time then it was entirely accidental. The version of events put by the accused is broadly consistent in both his electronically recorded interview and his sworn evidence. The issue 1. The question to be determined in this case is whether or not I can be satisfied beyond reasonable doubt that the victim's version is to be accepted. The question is in reality a factual one. There is no issue that if the events transpired in the way that the victim says then she has been subjected to an indecent assault. 2. This is a case where the evidence is substantially oath against oath. On the one hand there is the evidence of the child complainant as to what she said occurred, and on the other there is the evidence of the accused who denies entirely that which is suggested. Typical of cases involving allegations of indecent assault it is only the victim who gives evidence of the improper and illegal conduct alleged. It is necessary for me to give myself a direction consistent with what the Court of Criminal Appeal said in R v Murray (1987) 11 NSWLR 12 to the effect that whilst it is not necessary for the evidence of the complainant to be corroborated, because the prosecution relies on that evidence alone it will be necessary for me to scrutinise it with the greatest of care before I am able to arrive at the conclusion that the prosecution has proved its case beyond reasonable doubt. Indeed, it would be necessary for me to be satisfied beyond reasonable doubt both as to the truthfulness and accuracy of the evidence of the complainant before I could find the offence proven. The giving of this direction does not of itself involve any implication that the complainant's evidence is unreliable, nor does it mean that I could not find the offence proved beyond reasonable doubt relying solely on her evidence. That being said I must use great care in assessing the evidence and must expose the evidence to very careful scrutiny. 3. It is also necessary that I direct myself to the effect that if I am left unable to reject the evidence of the accused even though I do not positively accept it then I could not find his guilt established beyond reasonable doubt. It would not be enough if I were to have a preference for the evidence of the complainant. This direction is consistent with what the High Court said in Liberato v R (1985) 159 CLR 507. Further, and in accordance with s 165A of the Evidence Act 1995, I must not warn myself that children as a class are unreliable or inherently less credible. That is not to say that I may not direct myself that the evidence of a particular child witness may not be reliable and warn myself in respect of that evidence in circumstances where, as is the case here, one of the parties (the accused) has by inference, requested such a warning in the written submission provided. 4. A careful analysis of the evidence and of the parties' written submissions seems to me to identify the following broad matters of evidence that require consideration in determination of the issue in the case: 1. The complaint evidence 2. The bruise to Kylie's breast 3. The context evidence 4. The demeanour of Kylie and the accused and their credit generally 5. The physical surroundings and the circumstances of the alleged offence I now turn to deal with each of these issues. The complaint evidence 1. The prosecutor says that evidence of the complaint made by the victim to others once admissible under s 66 of the Evidence Act (as it was here) can be considered by the court as a matter going to the truth of the contents of that complaint. This is, it seems to me, a relatively uncontroversial statement of the law as held by the High Court in Papakosmas v R (1999) 196 CLR 297 and to the extent that the accused's solicitor submits to the contrary then his submission is rejected. The prosecution places some considerable store on the complaint evidence of the victim and accordingly this evidence must be considered very carefully. It is submitted for the prosecution that the complaint evidence was almost immediate and in very similar terms and that this means considerable weight ought be attached to it. 2. On my analysis there appear to be 6 items of evidence touching upon the issue of the victim's complaint and I will deal with each of those chronologically. 3. Firstly, there is the complaint that is alleged to have been made by the victim to Taylah in the early hours of 5 January 2014 after Jack had awoken with his nightmare. Kylie says that she said to Taylah "I have to tell you something in the morning". As I was reminded in the defence submissions, this conversation is denied by Taylah and is not corroborated by the other persons within the motel room who could possibly have heard such words spoken and who gave evidence, being Ms B and the accused. So far as Taylah's evidence generally is concerned the prosecutor urges me to have regard to the clear falling out which had occurred between the two girls since the allegations were made, and to take this into account in assessing Taylah's credit and the general reliability of her evidence. I note that no such submission is made in respect of the evidence of Ms B, either on the question of this initial complaint or in a general sense. 4. Secondly, there is the complaint made by the victim to Taylah on the following morning whilst the girls were in a shopping mall in Grafton. Taylah described Kylie as "kind of weird" at the time of this conversation. The evidence as to the terms of this complaint comes from both Kylie and Taylah and is broadly consistent as between the two girls. In question 301 of her recorded interview of 13 January 2014, Kylie was asked: Q.301: So tell me more about what you said, what you talked to [Taylah] about. A: Um, I'm, like, to her, um, "know how I had to tell you somethin' last night?" She's like, "Yeah. What was it?" I'm, like, um, "Last night your, [AB] was touchin' my boobs and kissing them and everything, saying that I was hot and he wanted to fuck me". An um, her first words were um, … and laughed. Then she said something about ah that I should tell [Ms B] from, I said ah, "I think I'm alright" and that was about it. 1. Taylah was questioned in her recorded interview of 14 January 2014, about this conversation. At question 418 of that interview she was asked: Q418: Ok. Can you remember, I know it's hard, um, can you remember exactly what she said? A: Um, that he was trying to make out with her. Um, he was grabbing her boobs, that he was, like, Come and fill a hole in the lounge. And then she said, No. And then she went to the toilet for a bit and she came back apparently. 1. Taylah was then asked a further series of questions touching upon the more precise detail of this complaint. Those questions and her answers are as follows: Q419: Right. So I'll just go back to what [Kylie] was saying. So she said, um, you, in your words you said he was trying to make out with her. A: Yeah Q420: So do you know how she said it in her words? A: That, like he tried to make out with me and kiss me and all that. Q421: OK. Did she say your dad or… A: [A] Q422: …. did she call him by his name. [A]. So she said, [A]….. A: Yeah Q423: …was trying to. OK. And so she said, to, trying to make out with her? A: Uh-huh Q424: And trying to kiss her. Is that, OK. And that he said, Come fill a hole in the lounge. A: Yeah Q425: OK and she said, No. And then she said she got up and went to the toilet. A: Yeah Q426: OK. Did she say when this happened? A: Um, about in the morning, like, that night but, yeah. 1. Thirdly, there is the complaint that was made by Kylie to her friend, who I shall refer to as Skye, in a telephone conversation on the afternoon of 5 January 2014. Kylie was said to be crying at the time. The terms of the complaint to Skye are contained in the transcript of Skye's interview with police on 9 January 2014 (which became her evidence in chief) and are set out in answer to questions 43-45 of the interview as follows: Q43: And when you say what happened, can you tell me what happened? A: Well, Kylie called me and told me that when she was in Grafton with Taylah's family, that about 2 o'clock in the morning, [AB] was sitting on her bed grabbing and feeling her boobs, and was making out with her face. Q44: Yeah A: And she also told me that he was trying, or was kissing her boobs. Q45: What happened next? A: And then he just went on the lounge again and Kylie was shaking and then she was, she went to the toilet. That's all Kylie told me had happened. 1. The fourth item of complaint evidence relied on by the prosecution comes from a witness who I will refer to as Ashley. She is the elder sister of Skye and her evidence was given to the court in person. Shortly after Skye had spoken with Kylie and received details of her complaint, Ashley had a telephone conversation with Kylie when she also received particulars of the complaint. The evidence pertaining to this issue is contained on pages 13 and 14 of the transcript of proceedings on 9 October 2014. Most particularly, on page 14 the following questions were asked and answers given: Q: Can you recall what she told you? A: She said when she stated ….. (not transcribable)….. with [Taylah's] family throughout the night she woke up to [Taylah's] father touching her breasts. Q: And doing the best you can did she tell you anything else about what happened on that night? A: Yes and he tongue kissed her as she said it she said "He tongue kissed me all over the face". Q: Was that the end or did she tell you more about what happened on that night. A: She told me more. She said – I said: "Like how did it happen" and she said that she was pretty much laying there asleep and she had awoken to having that being done to her. Q: Go on? A: And she – and I said, "well what did you do" and she said: "I just laid there". 1. As Mr Smith has observed in his submissions, the recent complaint evidence of Ashley in the terms set out above was not included in her original statement to police made on 9 January 2014. In her evidence she attempted to explain this omission as an error, and in re-examination said "I got it mixed up" (Pages 19-22, Transcript 9/10/14). The fact of this omission from Ashley's evidence must impact upon its reliability, the weight, to be attached to it and more especially to her recollection of the terms of the complaint made by Kylie. 2. The fifth item of complaint evidence derives from the evidence given to the court by Kylie's father, who I will refer to as Mr D. His evidence also touches upon the reaction of the accused when first confronted with the allegation. His evidence is that when his daughter came home from being in Grafton with the family she did not really speak to him and she looked sad, had tears welling up and her eyes were red. He said that she had a shower and then went to her friend Skye's house. Kylie returned to the family home at about 9.30pm in the company of Skye and her father, following which he attended at the home of AB and Ms B and confronted the accused. He was asked what words were spoken during this confrontation and at page 31, 7ff of the transcript of 8 October 2014, the following evidence was given; Q: Can you remember what he said? A: He said "I got up to touch the air conditioner", and as he got up, somehow he touched her breast. 1. Mr D was cross examined regarding the alleged admission by the accused, and in cross examination he asserted that the accused had in fact said "I slipped and touched her breast" (page 39, L 45). He confirmed that he was quite clear about those words being spoken. This in circumstances where it was also clear from the evidence that when he made his statement to police on 9 January 2014, he made no mention of the word breast or of the accused making any admission as to the touching of Kylie's breast at any time. Mr Barrack sought in re-examination to clarify the issue, but the fact remains that there was no mention in Mr D's relatively contemporaneous statement to police, of the use by the accused of the words "touched her breast". Given the nature of the allegation and the short space of time between the words allegedly being spoken by the accused and the taking of the statement, I am of the view that those words would reasonably be expected to appear in the statement had they in fact been spoken. 2. The evidence does not indicate the terms of any complaint made by Kylie to her father on 5 January 2014, however Mr D says that on the following day while driving Kylie to the Macksville Police Station he spoke with her regarding the allegation. His evidence as to what she said was as follows; (page 33, 31ff, Transcript 8/10/14): That he grabbed her breast, he was saying he wanted to fuck her, I think he was kissing her. 1. The sixth and final piece of complaint evidence available to the court concerns the complaint made by Kylie to the Macksville Police at the time of her initial attendance there on 6 January 2014. A COPS Event entry was made by officers from Macksville Police shortly after that complaint was received by them. I accept that the narrative in the COPS Event was recorded accurately and reflects what it is that police were told. It came before the court by it being tendered in the prosecution case and became Exhibit 12 in the proceedings. The author of that document Detective Senior Constable Justin Welsh gave evidence to the effect that the COPS event was prepared by him from information he had received from Sergeant Dalzell, who unfortunately did not give evidence, and from information that he had himself obtained whilst Kylie was in his presence. His evidence was that he had access to Sergeant Dalzell's notebook at the time he prepared the COPS entry. He is an experienced criminal investigator who certainly understood the importance of accurately recording the terms of a complaint involving sexual misbehaviour. The contents of that COPS event are significant. It was prepared at a point shortly after the first occasion that Kylie had the opportunity to make a formal complaint to a person in authority. It describes what it is that she said had taken place in the Hilldrop Motel at Grafton. The content of that COPS Event so far as relevant is set out below; She has disclosed certain things to police indicating she has been indecently assaulted. They attend the Monster Truck Show at the Grafton Racecourse. Later in the night they attended the Hilldrop Motel to retire for the night. The victim told police that she was in the bed with the POI, [Taylah] and [Jack]. The claims that once they were in bed [AB] reached over other children in the bed and touched her on the breasts. She claims that he put his hand under her clothing and touched her skin. She stated that he also climbed over the other children and kissed her on the breasts and also tried to kiss her on the mouth. She informed police that he attempted to touch her on the vagina a number of times but she turned away so he couldn't. At one stage he was apparently sitting on the bed. She told police that she was very scared. At one stage she said she was cold and got out of the bed to turn the air conditioner off just to get away from the POI. It stopped after about half an hour. The following day she told [Taylah] what happened. She said that her mother would kick him out if that happened or she found out. She also told another close friend [Skye]. She told police that as a result she had a bruise on her chest near her breasts from where he was fondling her. She later told her father what happened and he attended Macksville Police Station with her to report the matter. 1. What is absolutely clear from Exhibit 12 is that the version of events described by Kylie to police on 6 January 2014 is significantly at odds with the complaints made by her to other persons in the period shortly after the incident is said to have occurred. Mr Barrack submits that given what he describes as the consistency of the complainants earlier version(s), that I would give little weight to the content of Exhibit 12. Mr Smith not surprisingly takes a different approach and has submitted in considerable detail that I ought examine in a very careful manner the content of Exhibit 12 and compare it to the remaining complaint evidence. I have done so and have concluded that the version of events set out within Exhibit 12 is of such significant inconsistency that it cannot sit comfortably or at all with the earlier versions of the incident provided by Kylie. Those inconsistencies are: 1. that Kylie was in bed with the accused, Taylah and Jack, 2. that while so positioned the accused reached over Taylah and Jack and touched her breasts, 3. that while so positioned the accused climbed over both Taylah and Jack and then kissed her on the breasts and also tried to kiss her on the mouth, 4. that the accused attempted to touch her on the vagina a number of times. Such a vast discrepancy in the terms of the complaint, must necessarily impact upon my assessment of the overall reliability of Kylie's evidence. I must also have regard to the evidence given by Kylie in cross-examination where she denied at any stage informing police of the matters contained within Exhibit 12. I have some difficulty in accepting her evidence in this regard and this is a factor to be taken into account in an overall sense. Evidence regarding the bruise to Kylie's breast 1. It is not disputed that on the day following the overnight stay in the Hilldrop Motel, two photographs were taken of a bruise to Kylie's left breast. It would appear clear on the evidence that both photos were taken within 18 hours of the alleged offence occurring. The first photo (Exhibit 19) was taken in the car outside Dan Murphy's in Coffs Harbour at or about 12 noon on 5 January 2014, approximately ten hours after the incident is said to have occurred. The second photo was taken by Ashley in the early hours of that same evening. Kylie's clear and certain evidence was that the bruise was not on her chest when she went to bed on 4 January 2014 and that it was occasioned to her as a result of the defendants handling and kissing her breasts in the manner complained of. In answer to Q318 of her interview of 13 January 2014, Kylie says "It was from him grabbing". The evidence is that a complaint of bruising as a consequence of the accused's behaviour towards her was made by Kylie to each of Taylah, Skye and Ashley and the police to whom she initially spoke at Macksville. 2. The two photographs that were taken came into evidence as Exhibits 9 and 19 respectively and I was able to observe them. If the evidence of Kylie is to be regarded as reliable on this issue I must accept that within less than one day of the alleged assault occurring a bruise would appear on Kylie's left breast of the type depicted in the two photographs. I have observed the photographs carefully and note that the bruise said to have been caused by the defendant's conduct is yellow in colour. Indeed this is the colour description given to the bruise by Kylie herself in her answer to Question 312 of her first interview. It was also the description given by both Ashley and Skye. Skye described the bruise in answer to Q.232 of her recorded interview as follows; It was yellowish, like a day or two old bruise. My life experience and common sense inform me that bruises do not typically become yellow in colour until some time has elapsed between the observation being made and the impact occasioning the discolouration having occurred. 1. On this issue the court was assisted by the calling of expert medical evidence in the defence case. Dr Winston Edgell gave evidence by telephone on the final day of the hearing. Dr Edgell has been practicing medicine since 1966 (a period of 49 years) and has practiced as a general practitioner in Macksville for some 37 years. He studied medicine at the University of Edinburgh and obtained post graduate qualifications through the Royal College of Physicians in the United Kingdom. He remains a member of that organisation. His evidence was that in the course of practicing medicine he has obtained extensive experience in diagnosing and treating bruises. Given the length of his experience this is in my view unremarkable. His evidence was that he had been provided with both of the photographs of the bruising to Kylie's left breast that came before the court as exhibits. His evidence was that when he viewed those photographs he observed what he described as a significant yellow tinge in both. He told the court that yellowing signifies age and that yellowing does not occur until the trauma to the area of the bruise has been present for a few days. He was asked to assume, consistent with the evidence, that both photographs were taken on the same day and was then asked to hypothesize as to the age of the bruise. His evidence was that the bruise was "days old". He was asked if he meant more than one day and his answer was "definitely". He said that the bruise was probably three days old but that this was "a bit of a guess" but that in any event the bruise was certainly not a fresh one. 2. He was cross examined by Mr Barrack and conceded that he had not physically examined the bruise and agreed that his failing to do so affected his ability to estimate its age. He accepted that estimating the age of bruises was somewhat inexact. It was put to him by Mr Barrack that any estimate of the age of a bruise must be approached with caution. Dr Edgell answered with words to the effect that he approached the assessment of the age of the bruise from his experience, which as has already been observed is both lengthy and extensive. Mr Barrack has submitted that the photos display red/purple as well as yellow discolouration and that given the inexact nature of estimating bruise age, that Dr Edgell's evidence does not adversely affect that of Kylie. While it is possible that there is some red/purple discolouration present in the photos, that is not clear, and further, the evidence makes plain that the bruising described by Kylie, Skye and Ashley as being caused by the accused was the bruising that was yellow in colour. 3. Dr Edgell's evidence is important. While I accept that the issue of the assessment of the age of bruising must always be approached with some caution, Dr Edgell's evidence (given from his lengthy experience as a medical practitioner in general practice), and my own life experience, do not allow me to conclude to the requisite standard that the bruising evidenced in the photos was occasioned in the way suggested by Kylie. Given the certain and almost strident nature of her evidence on this question, my conclusion must inevitably raise concerns as to the reliability of Kylie's evidence on this crucial aspect, and consequently, on the reliability of her evidence in an overall sense. The context evidence 1. The prosecution led evidence over objection of alleged prior sexual misconduct by the accused that was not the subject of any specific charge. The evidence was to the effect that on prior occasions when Kylie had visited the home in Macksville, the accused had touched her bottom and breasts inappropriately. Those allegations were denied by the accused. Further, evidence was given by both Ms B and Taylah that no such event had occurred. Part of this context evidence involved evidence given by Kylie during her cross examination that not only had the accused inappropriately touched her, but that he had also inappropriately touched another girl in her presence, at a time when she and that other girl (a young person who I will refer to as Emma) had both been at the home for an overnight stay. Emma gave evidence in the accused's case. She denied that the accused had ever touched her inappropriately or at all, and further denied that she had ever stayed overnight at the home at the same time as Kylie. She said that she was aware of the fact that she had not stayed overnight with Kylie as had been suggested because she and Kylie had never got on and were not friends. She said they had never really talked and did not like one another. 2. It is necessary that I direct myself to the affect that there is a very limited use to which this context evidence can be put. I must exercise great care in ensuring that the evidence is not used for any impermissible purpose. Context evidence is led so as to put matters that are specifically charged into their proper context. That is, the version given by a complainant may be more capable of belief when seen in the context of what it is said was her prior relationship with an accused person. It may explain why an accused person and a complainant acted as they did, in circumstances where without the context of the relationship being clear, those acts might appear inexplicable. See generally ES v R (No 1) [2010] NSWCCA 197 at [41]. Context evidence when led does not make a complainant's account more reliable than it would otherwise be in the absence of that evidence, nor does it make it more likely that an accused has committed the specific offence with which he has been charged. The prosecution submissions note that the allegation the subject of the charge occurred in a motel room in which members of the accused's family were present. It is contended that the context evidence explains why the accused felt emboldened to indecently assault Kylie in the way that he did and "why he felt confident that she would not raise the alarm". 3. I must also ensure that I do not substitute the evidence of any other improper activity for the specific activity which is the subject of the charge before the court. I must not reason that because the accused may have done something wrong on some other occasion that he must have done so on the occasion that is the subject of the charge to be determined. Further, I must not use context evidence as proof of any propensity on the part of the accused to behave in the way complained of. 4. Given the lack of corroboration provided by any other witnesses in respect of the alleged context evidence, the denial of such conduct by the accused in his evidence and the fact that he was unshaken in cross examination, the conflict in the evidence given by Kylie with that of Emma, Taylah and Ms B, and the very great caution that I must exercise in the use of this evidence generally, I have concluded that the context evidence is not evidence that can properly impact upon my determination of the issue that arises in these proceedings. The demeanour of Kylie and the accused, and their credit generally 1. Mr Barrack submits that I would form a favourable impression in respect of Kylie as a witness. The prosecutor says that I would consider, in reaching this conclusion the following matters: * the detailed nature of her observations and of her evidence, * what are described as the detailed and specific nature of the allegations she has made, * the fact that, in the prosecutions submission her evidence has the "ring of truth", * the unrehearsed and spontaneous way in which her evidence was given, and * the consistency of her version under cross examination. 1. Mr Smith submits that when considered overall I would harbour concerns regarding Kylies demeanour and behaviour both during and after the alleged incident and her general reliability. This is of course of great significance because as I have already noted, and both parties acknowledge, this case is essentially one of oath against oath. Mr Smith points me to Kylie's movement within the motel room in circumstances where she alleges she was frozen with fear, to her cheerful behaviour in the motor vehicle on the return journey from Grafton to Macksville and to what he describes as inappropriate grinning by Kylie during her first interview with police. I have already made some comments concerning certain important aspects of Kylie's evidence and her reliability and I do not propose to repeat those. That having been said, I would note that I did not form an adverse view of Kylie personally or in any general sense. Of course the absence of such a view is not the test by which the accused's guilt or innocence is to be determined. The issue remains at all times the reliability of the prosecution evidence and whether it has been able to discharge the heavy onus that is required. 2. The accused gave evidence, and was cross examined. Having carefully observed that process, and similarly to Kylie, I did not form an adverse view of him. He maintained his version of events during cross examination and was not shaken. While I found his evidence concerning Kylie possibly having some attraction to him – "Unless she's got a thing for me" – curious to say the least, such a spontaneous response during his oral evidence, while unusual, is not of such moment as to cause me to depart from the non-adverse view of him that I had formed. Mr Barrack submitted that this remark was an admission that was consistent with the context evidence that had been led as to previous inappropriate sexual contact between the accused and Kylie. I do not believe that these words spoken by the accused allow me, having considered all of the evidence to draw the conclusion urged upon me by the prosecution. My concluded view as to his credit has regard to the totality of both his oral evidence and his ERISP. 3. Demeanour findings are important for any tribunal of fact. It has long been the case that in contested hearings the impression left upon the court by seeing and hearing a witness can affect the weight to be given to the evidence of that witness. This is what McHugh J referred to as the "subtle influence of demeanour" in Jones v Hyde (1989) 85 ALR 23. Demeanour findings must however be approached cautiously. As the High Court noted in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588, there is a need to keep the appearance and demeanour of a witness in perspective, and to weigh that aspect in the light of other more objective consideration. The physical surroundings and the circumstances of the alleged offence 1. What is clear on any view of the evidence is that the incident complained of took place in a single motel room in a somewhat cramped and confined space. All of the evidence points to the lighting being at the very least compromised to a degree. Mr Smith in his submissions places considerable emphasis on these matters and points to; * the fact that there were five people occupying the room, * the fact that Jack was sleeping on a stretcher between where Kylie was sleeping and the accused was sleeping, * that all of the occupants of the room were in close physical proximity to one another, * that no other person heard any words spoken between Kylie and the accused despite the extended nature of that dialogue, * that no other person observed the conduct alleged of the accused, * that the distance between the couch where the accused slept and the side of the bed where Kylie slept was approximately 1,100 mm and that there was a stretcher occupied by Jack in between them, * the evidence given by Kylie that during the incident the accused was straddling Jack's stretcher with one leg on either side of it, that is one leg closer to the couch and one leg closer to the bed. As I comprehend it, this is said to be implausible given the physical layout of the room and the narrow distance between each of the couch and the stretcher, and the stretcher and the queen bed. 1. Mr Smith submits that given the number of people in the room and the possibility that one or other of them would wake up and either hear what the accused was saying or observe what it is he is said to have been doing, along with the physical layout of the room and the sleeping arrangements, that it is unlikely that the version of events proffered by Kylie is reliable. 2. The prosecution submits that little weight ought be given to the "straddling submissions". Mr Barrack notes that there was a gap of approximately 30 cms between the stretcher and the couch and queen bed respectively. In my assessment that distance is very limited. It seems to me that there would inevitably be a degree of physical difficulty in an adult male such as the accused, straddling a stretcher on which a child was asleep and the performing the acts complained of with such dexterity that no other individual within the room was awoken. This is particularly so within a darkened and unfamiliar room. The accused would have required an agility and flexibility that my observations of him in the courtroom do not allow me to conclude he possessed. Of course I mean no offence to the accused in drawing this conclusion as to his physical prowess. On the issue of others in the room not hearing anything the prosecution submits that little weight ought be given this as the evidence allows me to infer that the other persons in the room were asleep throughout the incident. In a sense, that observation begs the question, how is it that the others in the room remained asleep if the events described by Kylie including significant physical movement within the room including at and around the queen bed, and extended dialogue described were taking place? Conclusion 1. As I remarked earlier in these reasons, the prosecution bears a heavy onus in a criminal hearing of proof beyond reasonable doubt. In the event that there is a doubt in the mind of the tribunal of fact then it must be exercised in favour of the accused. No matter how suspicious an event may be, unless all of the elements of the offence charged are proved beyond reasonable doubt then the accused is entitled to acquittal. I have given very considerable thought to this matter over an extended period of time and have finally determined that for the following reasons, all of which are to be viewed in combination with one another, that the prosecution have not met their burden. Those reasons are: * My concern regarding the inconsistency in part of the complaint evidence, * My concern regarding the evidence touching upon the bruising to the area of Kylie's left breast, * My concern as to evidence touching upon the physical circumstances existing at the time and place of the alleged incident, * My inability to be satisfied beyond reasonable doubt as to the truthfulness and accuracy of Kylie's evidence in critical respects, and * My inability to reject the evidence of the accused even though I do not positively accept it in all respects. 1. The Order of the Court will be that the charge is dismissed. A copy of these Reasons will be forthwith made available to the parties from the Registrar of the Coffs Harbour Local Court. I remind the parties and any other interested person or persons of the statutory prohibition upon the publication of any detail of this matter that might identify any child witness. Deputy Chief Magistrate C O'Brien Downing Centre Local Court, via AVL to Coffs Harbour Local Court 31 March 2015 ********** 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: 16 May 2016