Sexual activity in the presence of a child under the age of 16 - sexual assault by touching of a child under the age of 16 - plea of not guilty
Source
Original judgment source is linked above.
Catchwords
Sexual activity in the presence of a child under the age of 16 - sexual assault by touching of a child under the age of 16 - plea of not guilty
Judgment (59 paragraphs)
[1]
This is a conviction and sentence appeal in relation to three charges. That is, two counts of sexual activity in the presence of a child under the age of 16 contrary to section 49F(1) of the Crimes Act ("CA") 1958 and one count of sexual assault by touching of a child under the age of 16 contrary to section 49D(1) of the CA 1958.
[2]
The two complainants are cousins. At the time of the alleged offending, complainant Carla Mason,[1] was 9 and complainant, Lousia Keeting, was 10. The complainants were on a camping trip with Carla's mother at Buchan Caves. On 18 April 2023, the complainants attended the pool at Buchan Caves with Carla's mother. The accused was present and in the company of Nelson Barker. The accused was the NDIS carer of Nelson, who has some mental health issues and was 14 at the time. The accused and Carla's mother engaged in "chit chat" on the pool deck. Other community members Gungor Dawbarn, Franks and Johnson attended, swam and left. Carla's mother then left. This left the accused, Nelson, and Carla and Lousia as the only people at the pool area.
The pool is enclosed by a fence. A short distance from the pool was a set of changerooms. Outside the pool fence were several sawn off tree stumps. One was located near the changerooms and is of no relevance. Two others were located outside the pool fence at the shallow end. There is a short slope leading up from the pool fence to the stumps and this surface has some rocks on it. The area can be seen in Exhibit R6. It was here that the alleged offending took place.
The two complainants were playing on the tree stumps when the accused approached them. The accused offered Lousia a piggyback ride, which she accepted. He then offered Carla a piggyback ride, which she also accepted. During Carla's piggyback ride, it is alleged that the accused touched Carla on her clothes, buttocks and genitals (Charge 4).[4] After the piggyback rides, it is alleged that the accused exposed his penis past the waistband of his swimming trunks in front of the two complainants and asked Lousia "do you want to touch it?" (Charge 2).[5] This was also in the presence of Carla (Charge 1).[6]
In contrast and relevantly, the accused accepted he gave both complainants a piggyback ride. In the course of Carla being piggybacked, he alleges that she slipped down his right side, pulling his shorts. He concedes his penis may have been briefly exposed. At that point he said words to the effect of "you two girls need to watch it" and not the words "do you want to touch it."
[3]
Proceedings in this Court and directions of law
[4]
At the outset I formally set aside the orders of the Magistrates' Court made below on 17 December 2024.
Mr Borel is presumed innocent unless guilt is proved on evidence presented to the Court beyond reasonable doubt on each element of the offence charged. This is the highest standard of proof known to the law. It is not enough for the prosecution to prove that the accused is probably guilty or very likely to be guilty. A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility. If the Court is not satisfied to the standard, Mr Borel must be found not guilty. The burden of proof is entirely on the prosecution to establish guilt beyond reasonable doubt. Mr Borel bears no onus of proof. It is not for Mr Borel to prove his innocence or prove anything at all.
In this case, there is a clear conflict between the evidence of Mr Borel and the evidence of the complainants. First, I direct myself that if I accept the accused's version he must be acquitted. Second, if I think his evidence might be the truth, he must be acquitted. Third, it is not enough to prefer the prosecution evidence of the accused. It is not a case of choosing which witness is to be preferred. The accused can only be guilty if the prosecution has proved its case beyond reasonable doubt. Fourth, if I do not believe the accused I should put that evidence to one side. I must then decide whether the prosecution has proved guilt beyond reasonable doubt based on the evidence you do accept.
I direct myself in accordance with s54K of the Jury Directions Act 2015 ("JDA") that some people may show obvious signs of distress when giving evidence about an alleged sexual offence and others may not. I direct myself in accordance with s52 of the JDA that experience shows that people react differently to sexual offences and there is no typical proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint.
I direct myself in accordance with s44N of the JDA. Firstly, I direct myself that children can accurately remember and report past events. Secondly, that the language and mental skills of children develop as they get older, and that this may affect whether a child can give a detailed or complete account and whether their accounts correctly record the order in which different events occurred. Thirdly, I direct myself that children's language and mental skills affect how they understand and respond to questions. Further, I accept that experience shows that a child's level of development affects whether they have difficulty understanding certain words, concepts or phrases and that because of their level of development, a child may not ask someone to clarify a question they do not understand and may not clarify an answer which has been misunderstood.
Now, I turn to direct myself in accordance with s54D(2) of the JDA in relation to evidence that suggests a difference of the complainants account of the offence. I remind myself that differences in a complainant's account may be relevant to my assessment of the complainant's credibility and reliability. I accept that experience shows that people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, that trauma may affect people differently, including by affecting how they recall events and that it is common for there to be differences in accounts of a sexual offence. Further, I direct myself that both truthful and untruthful accounts of a sexual offence may contain differences.
I direct myself in accordance with s52 of the JDA, that is, the direction on delay in complaint or lack of complaint. Experience shows that people react differently to sexual offences, and there is no typical, proper or normal response to a sexual offence. Some people may complain immediately to the first person they see, while others may not complain for some time and others may never make a complaint. I remind myself that it is common for there to be a delay in making a complaint about a sexual offence, and there may be good reasons why a person may not complain, or may delay in complaining, about a sexual offence.
I also direct myself in accordance with the direction on whether a complainant is distressed or emotional while giving evidence, that is, s54(5) of the JDA. Since trauma affects people differently, some people may show obvious signs of emotion or distress when giving evidence about a sexual offence, while others may not, and both untruthful and truthful accounts of a sexual offence may be given with or without obvious signs of emotion or distress. While there was no specific evidence called upon to demonstrate the need for this direction the prosecutor made the point that such distress may perhaps be less apparent in child witnesses. Allowing for this, I direct myself in accordance with s54(5).
[13]
Complaint evidence: (disclosures made to Sarah Mason,[7] Diana Lamana[8] and on Body Worn Camera ("BWC") footage with Ray Moreland) - JCV Criminal Charge book - 4.14.4 Charge: Complaint Evidence
[14]
In relation to the disclosures made to Sarah Mason, Diana Lamana and on BWC footage with Ray Moreland, I direct myself in relation to complaint evidence. Firstly, the contents of the complainant's complaint can be used as evidence in the case. When considering this evidence, it must be remembered that just because a person says something on more than one occasion, does not mean that what they say is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of being repeated. Secondly, the complainant's complaint can be used to assess their credibility, and the fact that a complainant made the complaint, and the content of that complaint, may show that their account of the events in question has been consistent.
[15]
Admissions (the accused conceding touching Carla Mason on the vagina/buttocks and legs)
[16]
In relation to the accused accepting as a possibility that he touched Carla Mason, the prosecution contended this was a concession in respect to Charge 4. The defence objected to that characterisation. In all the circumstances I consider it appropriate to give myself the requested direction, however, I note the weight to be attached to the alleged concession is not great, I direct myself that before using that admission I must consider two matters. First, I must accept that the accused actually made the alleged admission in the terms alleged. Secondly, I must accept that the accused's alleged admission was truthful.
[17]
Prior inconsistent statements: (e.g.; that the Appellant didn't believe his shorts slid down) JCV Criminal Charge book - 4.14.2 - Charge: Prior inconsistent statements
[18]
I also direct myself in relation to prior inconsistent statements and remind myself that there are two ways in which such statements can be used. First, the contents of the statement can be used as evidence in the case. Second, if the witness' statement is inconsistent with their account in Court, this statement may be used when assessing that person's credibility and reliability. Further, the fact that a witness has given inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistences in their stories, truthful witnesses may make mistakes about details. In this case while there was some evidence of a prior inconsistent statement (the evidence in the Magistrates' Court proceedings as to the slipping of the shorts) the whole of the evidence of the Magistrates' Court which the accused gave also suggests he had given a prior consistent history. So while I direct myself in accordance with this direction there is little weight to the inconsistency.
[19]
Other misconduct evidence: (touching Lousia Keeting on the buttocks) JCV Criminal Charge book- 4.19.1 & 4.19.2 - Charge: Other misconduct evidence
[20]
I direct myself in relation to the use of other misconduct evidence, specifically in relation to the evidence led by the prosecution that Lousia Keeting was touched on the buttocks on the pool deck and again during the course of the piggyback ride. This evidence must be kept in perspective, and is only one part of the prosecution's case. The case must be decided not on the basis of feelings, sympathy or prejudice, but because of what is learnt about the accused. The evidence has only been led for limited purpose of showing the context of the offending and the evidence is not to be used for any other purpose. I have dealt with this below and I direct myself in accordance with s29[9] that the evidence must not be used for a tendency like purpose, specifically that it imports a sexual interest to the alleged conduct.
[21]
I direct myself in relation to circumstantial evidence. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. Care must be taken when drawing conclusions from indirect or circumstantial evidence. All of the evidence in the case should be considered, and reasonable conclusions should only be drawn based on the accepted evidence. The accused will only be convicted if I am satisfied that his guilt is the only reasonable conclusion to be drawn from the whole of the evidence, both direct and indirect. If there is another reasonable view of the facts which is consistent with the accused's innocence, then the prosecution will not have proved his guilt beyond reasonable doubt, and the accused must be acquitted.
[22]
Good Character evidence (Charge Book 4.3.1) - the evidence of Ms Le-Roi and Ms Bowen
[23]
Defence submitted that character evidence is a powerful consideration in this case. Good character evidence includes evidence of the accused's general good reputation; and evidence of the accused's favourable disposition. The defence adduced evidence to prove that Mr Borel is a person of good character. At the hearing, two character witnesses, Ms Le-Roi and Ms Bowen both gave evidence that Mr Borel was a person of excellent character, who was a caring and devoted disability support worker who had maintained appropriate relationships with children. Defence submitted that in the circumstances, that I consider both uses of the character evidence, namely:
[24]
a) the evidence is relevant to the Court's assessment of whether Mr Borel's explanation of what occurred is credible; and
[25]
b) the evidence is relevant to the Court's assessment of whether Mr Borel committed the offence charged.
[26]
In accordance with s44I,[10] I direct myself that in choosing to give evidence, the accused undertook to tell the truth. He also submitted himself to cross-examination, which is the way lawyers test a witness' credibility and truthfulness. In this respect, his evidence is no different to any other witness. I must assess his evidence in the same way as the evidence of any other witness.
I must decide each charge separately and only on the admissible evidence in this appeal. In this appeal such evidence takes the form off the tendered VARE recordings, exhibits, statements of evidence which were read into evidence and witness testimony. I have not done any outside research or had regard to any outside sources of information. I must assess both honesty and reliability of the witnesses. That is whether a witness was truthful and whether the witness correctly recalled the facts about which they gave evidence. In that assessment I may accept all, some or none of the witnesses evidence. I must bear in mind that I should not make any assessment only on the basis of how a witness gave evidence, as giving evidence can be a stressful experience. I remind myself that witnesses come from different backgrounds and have different abilities particularly where there are children involved. There are too many variables to make the manner in which a witness gave evidence the only or even the most important factor in my assessment.
[27]
The elements of the offences pursuant to s49F are:
[28]
(a) The accused intentionally engages in an "activity"; and
[29]
(c) another person is present when the accused engages in the activity; and
[30]
(d) the accused knows the other person is or probably is present when the accused engages in the activity; and
[31]
(e) the other person is a child under the age of 16 years; and
[32]
(f) engaging in the activity in the presence of the other person is contrary to community standards of acceptable conduct.
[33]
As to the charge pursuant to s49D the elements of the offence are:
[34]
(a) The accused intentionally touched another person; and
[35]
(b) the other person was a child under the age of 16 years; and
[36]
(c) the touching was contrary to community standards of acceptable conduct.
[37]
In this case attention must be focused on the relevant standard of proof. In this case, it is for the prosecution to prove that the evidence as a whole was not capable of excluding reasonable doubt as to the accused's guilt.
In this case I am not satisfied that the prosecution has discharged its burden. This is primarily because of the inconsistency between the complainant witnesses accounts and the apparent logic to the accused's version. I make it plain that I consider that the complainant evidence was credible, but the reliability of the evidence was wanting in material ways. This leaves real doubt as to the prosecution evidence called in support of the events which underpins the charges. I will deal with those material inconsistencies below.
Further I find that the accused was a witness whose version of events was tested. He was accused of inventing certain components of his evidence. I do not accept that characterisation of that evidence for reasons I will come to, however it did reveal that his evidence was inconsistent and to a degree unreliable. In all those circumstances I find he was a witness whose credit was largely intact. I do find his evidence was at times unreliable. However, that unreliability does not materially detract from the apparent logic of his version of events.
[38]
On the prosecution case after the accused's penis was exposed he covered it with a shirt, and said to Lousia "do you want to touch it". This version is based on Lousia's evidence during the VARE.[11] In Carla's evidence during the VARE, a similar version is given.[12] However later in her VARE, she also said that at the time the accused's penis came out, his hands were by his side and he had no top on.[13] When pressed directly on whether he had a top on she answered "Well, [Lousia] said that he covered it with his top when we were on our ride back but I told her that she - that he still didn't have a top on". In Carla's evidence during cross examination she said that she could not remember if the accused was wearing a top.
The accused gave evidence that he was wearing a top at the time it is alleged his penis was exposed and he said the words alleged.
The greater relevance of whether the accused was wearing a top however is as to the exposure of the accused's penis at the time the accused is alleged to have said the words attributed to him - "do you want to touch it". This is because in Lousia's VARE she stated that the accused pulled his shorts down, then his penis came out and then he put it under his top.[14] This is consistent with the BWC recording of her recounting. At this point the accused is alleged to have asked Lousia if she wanted to "touch it". And then he walked over to Carla and asked her if she wanted to "touch it".[15] To which she replied "no". During this time Lousia said she could see his "willy under his T-shirt popping up"[16] and the accused was holding it "tightly like that".[17]
As I have mentioned, Carla gave entirely different evidence. She did not recall the accused wearing a T-shirt, did not therefore state the accused covered the penis with a T-shirt and obviously did not hold the penis tightly under the T-shirt.
It can be seen that nearly all matters surrounding the exposure of the penis are different between the two complainants.
There is some evidence that the ranger, Mr Davidson, questioned the accused in relation to him exposing himself with a towel. It appears nowhere in the complainant evidence. I put this to one side as it is not relevant to a finding on the charges.
[39]
The evidence as to how the accused's penis came to be exposed doesn't strictly bear on the charged act. This is because the intentionality or otherwise of the act of how the exposure of the penis came about is not in issue. The prosecution case is simply that the exposed penis in combination with the words "do you want to touch it" makes out the elements of the 49F(1) charge.[18] This makes the conflict of evidence on this point less central in an assessment of the overall reliability of the evidence in support of the prosecution case. The accused's case is that he is unsure if his penis became exposed during the process of Carla being piggybacked to the ground. He admits that as she was being carried she began to slip off down his right side. Carla accepted in cross examination that she did slip off the accused's back and he attempted to catch her
As he attempted to arrest this slip, she swung around to the front right side and down. On his version his clothes were dragged down also. He admits his shorts may have slipped slightly and at that point his penis may have become exposed. His case is that immediately upon Carla being lowered he stood up, re-aligned his clothes and at that point spoke the words "you two girls need to watch it."
However the conflict in the evidence on this point does bear on the overall reliability of the complainants' evidence.
The evidence of the complainants on this point differs.
In complainant Lousia's VARE she said "...at first I thought it was a (sic) accident when it came out."[19] This was similar to the complaint made to her mother. In the Magistrates' Court she had given evidence that she thought that the exposure of his penis was accidental. She accepted this during cross examination in this Court.[20]
However, it will be seen from above that Lousia's evidence in this Court is that the accused pulled his shorts down.[21]
In contrast, Carla gave evidence in her VARE that she was unsure how the accused's penis came to be exposed because she was not looking. However at the point she turned back and saw the penis, the accused's hands were by his sides[22] and, inferring from her later answers, it appears that his shorts were up and the accused simply put his penis back into them.[23] On this version there is no deliberate act to pull the shorts down as Lousia asserts. In her first recounting to police on the BWC footage, Carla stated that she said that she "thought it (the penis coming out) was an accident".
In many ways the version of Carla's evidence as to the exposure of the penis is very much in keeping with the accused's version of events. It leaves open a significant possibility that the exposure of the penis was accidental.
However before coming to that point, I do find that that the evidence does overwhelmingly support a finding that the accused's penis was exposed shortly after Carla slid off. While the accused does not concede this was the case he accepted that it was a possibility. In addition, both complainants are consistent in their evidence that there was such exposure.
In keeping with this, I also find that the accused was wearing a white shirt and dark shorts at the time that he was piggybacking Carla. I accept the evidence of Lousia and the accused on this point. At that time she had her arms around his neck and her legs around his waist. I reject Nelson's evidence as to it being a shoulder ride and accept that the accused was engaged in piggy-backing with both complainants. This is consistent with the other evidence of the complainants and the accused.
In the course of the piggyback of Carla she began to slip down his right side. This is not in dispute. In the course of arresting that fall I accept that his clothes were dragged down and he attempted to stop her fall. That motion caused the accused's penis to become exposed. I do not accept that he pulled his shorts down. Similarly I do not accept that he then covered his exposed penis with his T-shirt and held it tightly straight out. Even if I were wrong about that finding, there is a reasonable doubt as to whether the events occurred as Carla and Lousia allege.
[40]
Did the accused say "do you want to touch it" to Lousia Keeting?
[41]
There is directly contradictory evidence on this point. Lousia says that the accused said to her "do you want to touch it". She further says that the accused then turned to Carla and said the same thing.
Carla says that the accused said "do you want to touch it" to Lousia. However Carla denies these words were said to her.[24]
The accused denies saying those words at all. His evidence is that he said "you girls need to watch it" to both complainants. He submits that the mishearing of the words by the complainants led to them reasoning backwards and implying a sexual motivation to the exposure of the accused's penis and his touching of Carla.
Such a direct conflict in the evidence must be resolved by looking at the credibility and reliability of the witnesses, the contemporaneous materials, objectively identifiable facts which provide evidence on the point and the apparent logic of events.
As I have indicated in this case there was no attack on the credibility of the complainant witnesses. There was attack on the accused's evidence on the basis that he had recently invented his version of events. This was on the basis of the overall unlikelihood of his version of events and also inconsistency with evidence he had given in the Magistrates' Court.
[42]
Veracity and the reliability of the accused's evidence put in issue
[43]
Turning to deal with each of the areas that the veracity and reliability of the accused's evidence was put in issue.
First, he was challenged on his evidence in this Court that he did not see the complainants leave the pool area to get changed. In contrast it was put that in the Magistrates' Court he had said he saw them leave at about the same time as he and Nelson left for the changerooms.
Second, he was asked why in this Court he said that his shorts had slid down when Carla slipped from his back when in the Magistrates' Court he had denied feeling his shorts slide down. The accused accepted it was a "different answer today". However in re-examination, another part of his evidence in the Magistrates' Court was put to him which was consistent with his version of events in this Court that his shorts may have slipped down and exposed his penis. Overall then I consider that not much turns on this inconsistency in this Court.
Third, it was put that his answer was contradictory to his earlier evidence in this Court that he had tied his shorts up so they were unlikely to slip down. When pressed on this he suggested his earlier evidence of tying his shorts string up may have been incorrect. That was an appropriate concession but is a feature of his evidence which is unreliable.
Fourth, it was put that the notion that the accused was going to "move the girls on" from an unsafe area was implausible. This was for a number of reasons being:
[44]
a) the area was obviously a normal parkland area, the stumps were of a small size and posed no danger;
>
> b) that he did not say as much to Nelson, who denied being told that by the accused;
>
> c) that the evidence was of the accused giving multiple piggyback rides in the area inconsistent with the area being a danger; and
>
> d) that the accused engaged in lifting the complainants up onto the stumps encouraging play in the area, inconsistent with wanting to move them on.
[45]
Dealing with the first issue (a), the objective safety of the area. The evidence is that the mother of Carla, Ms Sarah Mason,[25] had no concerns that the area was not safe. However, she had been coming to Buchan Caves for many years and had a great familiarity with the area. While she may have taken that view, it is open to find that others may not have. This is because there is a small slope with a rocky surface falling away from the stumps to the pool fence. It is not in my estimation of any real danger, but on this point reasonable minds may differ. Particularly in circumstances where the sole adult at the site, the accused, was leaving the area and as such, there was no adult supervision about the pool and stumps area for two young girls. The witness evidence of Gungor Dawbarn, Franks and Johnson do not bear on this matter.
On this point, the prosecution submitted that the accused had recently invented a conversation he had on the pool deck with Ms Mason that he had said the rocks were unsafe. This was said to have been invented in order to support the accused's argument that the area was unsafe. Ms Mason gave evidence that there was simple chit chat between the two of them and she did not recall such a comment or concern. The specific comment as to the accused being concerned about the complainants on the rocks was not put to her in cross-examination. Given this, I find that the accused did not make this comment. I consider that this is an example of unreliability in the evidence of the accused.
Second and as to (b), the evidence of Nelson in this Court was that while the accused did not communicate his reason for leaving the changeroom, he had the impression it was to check on the complainants. There is a difference in the evidence of the accused and Nelson on this point. The accused gave evidence that he spoke to Nelson and said that he was going to check on the girls. Nelson does not recall that conversation. However the fact that he had that impression is broad support for the accused's version, because it is unclear how else Nelson could have formed that impression. Similarly in the Magistrates' Court, Carla accepted that the accused was trying to get her off the stumps. She accepted in this Court that was her evidence and then said that she now could not remember whether his intention was to get her off the stumps. Lousia said that she didn't know if the accused was trying to get her off the stumps. While the accused accepted the complainants were playing and not in need of help, this does not work against his version of events. It is still open that he considered there was a reasonable concern for their safety from an adult point of view that they did not appreciate.
Overall the evidence on this point is largely consistent with the accused's expressed intention in going to the stumps and is certainly not inconsistent with that possibility.
Third and as to (c), the evidence of the number of piggybacks and types is confused. Lousia in her VARE said that each complainant was given two piggyback rides. When pressed in this Court that she had said earlier in the Magistrates' Court that it was only one ride she said "no". Then when asked if it was possible that it was only one ride she said that she did not know. That evidence leaves open the significant possibility that it was one ride for each complainant. This overall is largely consistent with the accused's version of events of only having each complainant on his back once: Lousia being first and then Carla. This is consistent with Nelson's evidence of seeing only one ride each.
Fourth and as to (d), the evidence of the accused lifting the complainants up onto the stumps. The accused denied this. However, Nelson gave evidence that this is what he saw.[26] Lousia gave the same evidence in her VARE.[27] Carla did not give evidence about this point in her VARE. This evidence does tend to suggest that the accused's version is unreliable and works against the reason he gave for attending at the area - which was to get them off the stumps and away from the area. On this point I am prepared to accept that the accused's memory was unreliable.
Overall balancing those matters, I consider it likely that there was only one piggyback each. Even if I were wrong about that, there is reasonable possibility that there was only one such ride which is consistent with the accused's version being correct, and supports a version of events that he went to the stumps to "move the girls on".[28]
Having performed that assessment, I find that the accused's evidence is largely consistent and does not support the assertion that the evidence is recently invented or lacks credit. While there are areas of some inconsistency, such as whether he spoke to Nelson to inform him as to why he was going to the stumps and lifting the complainants, it is overall reliable and I accept it.
In keeping with that finding, I find that he walked toward the stumps and indicated to the complainants that they should get down and go to camp. He then offered to piggyback them down. It was in the course of Carla being piggybacked that she slipped to the right side of his body and down causing a misalignment of his clothes. The accused attempted to arrest Carla's fall using his hands. In the process, the accused's penis became exposed and his left hand made contact with Carla's clothes, buttocks and genitals unintentionally. The accused then said words "watch it".
Even if I was wrong about that I hold a reasonable doubt that he looked toward Lousia holding his penis under his T-shirt and held it tightly straight out and said "do you want to touch it".
[46]
To recap this allegation: during Carla's piggyback ride, it is alleged that the accused touched Carla on her clothes, buttocks and genitals (Charge 4: s49D(1)).[29] For the reasons set out above, this occurs on the one piggyback ride that the accused enters into with Carla. In order to satisfy this charge, it must be proved beyond reasonable doubt that the accused intentionally performed this act. There is no dispute between the parties that the accused touched Carla on her clothes and buttocks. The central issue is whether he touched her intentionally on her vagina. The accused concedes that there may have been inadvertent, accidental touching by him of Carla's vagina as he lowered her to the ground after her piggyback.
The evidence on this point is in conflict. Carla did not reveal this to her mother on first complaint. Similarly Carla in her initial BWC interview did not mention being touched on her genitals at all. This was first revealed by Lousia during her interview on BWC. Carla was then re-interviewed immediately and confirmed that it had occurred - that the accused had put his hands in her private parts - but she had forgotten to mention it.
While there may be some argument that this represents a delay in complaint and works against the acceptance of her evidence, I bear in mind the direction as to delay in complaint in s52 of the JDA. Given that Carla only moments later then corrected the history and identified the subject matter of the s49D CA charge I do not consider there has been a material delay in complaint. This variation in the evidence is understandable bearing in mind the age of the complainants and the fact that they were reporting, in their minds, a significant other matter (the subjects of Charges 1 and 2).
Lousia's evidence in the BWC interview reveals the episode. In it she describes being told by Carla that the accused had touched her "near" her "private parts". She did not state that she had seen this herself. In her VARE she describes the episode in greater detail: the accused "squeezing" - "touching" Carla on the vagina while she was sliding off his right side and down.[30]
The accused accepted that he might have unknowingly made contact with Carla's vagina as he was lowering her down. The defence submits that both complainants have impermissibly reasoned backward from the mishearing of the words "watch it" as "touch it" to turn an accidental touching of Carla's vagina into an intentional inappropriate sexual touching. The prosecution submits that this is incorrect given that the accused's version is inconsistent with the other evidence. This starts with the motivation of the accused.
The prosecution position is that the accused sought to befriend the children on the pool deck by attempting to play games with them when their mother had left and then ask for mints from them. The prosecution submits that the accused then inappropriately touched Lousia on the bottom on the pool deck. This is an uncharged act which is said to give context to the accused's later actions the subject of the charges. Then he followed them to the stumps and offered to piggyback them, in the course of which he touched their legs, thighs and buttocks, a further uncharged act. This was so he could then perform the charged act of touching Carla on the vagina. Defence submits that this was an impermissible use of the two uncharged acts as tendency evidence. The learned prosecutor made clear that this other conduct was not led to show that the accused had a sexual interest in the complainants. It was agreed that I should direct myself as to s29 of the JDA and I do so. Having considered the matter however, I do not consider whether I accept the prosecution submission or not, that it alters the fact that there remains a reasonable doubt as to whether the accused touched Carla's vagina intentionally or accidentally. This is because I have accepted that there is a real possibility that he went to the stumps for the reasons that he stated and behaved in the manner that he did. I have set out the reasons for that above. In that circumstance, it is well open that the touching of Carla was accidental. The prosecution case on this charge cannot therefore be proved beyond a reasonable doubt.
I have made the findings above without reference to the evidence of good character which defence called in aid from Ms Le-Roi and Ms Bowen. If it were necessary I would find that such evidence supports a finding that the charges cannot be proven. This is because in all the circumstances it suggests that a person of good character would, having been at the pool for entirely legitimate work reasons engage in an uncharacteristic, brazen and public act entirely opportunistically. This makes the version of events the prosecution urges on the Court less likely and leaves open the reasonable possibility that the accused's version of events is possible. This doesn't mean I must find the accused not guilty if I accept, as I do, that he is a man of specific and general good character. This fact doesn't alter proven facts and a person who has previously been of good character can commit a crime for the first time.
For the reasons set out above, the charges will be dismissed.