DPP v Snyder [2021] VCC 1214 | Case summary

County Court of Victoria|2021-06-10

1. The accused, Clifton Snyder[1], is charged on Indictment J11486491 with four charges of committing an indecent act with a child under the age of 16 years and 20 charges of sexual penetration of a child under the age of 16 years. The indictment in this matter had contained 36 charges but the prosecution sought leave to amend the indictment by removing charges 1, 8, 9, 15, 16, 21, 24, 25, 26, 31, 32 and 33 necessitated by the prosecution's decision to excise the portions of the committal transcript upon which these charges were based.

2. This matter was originally listed in 2020, at which time I made a ruling admitting into evidence the two statements of the complainant and the committal cross-examination pursuant to section 65(3) of the . The complainant is an unavailable witness. She died in March 2019, after the committal proceeding took place. This ruling was the subject of an Interlocutory Appeal. The interlocutory decision was handed down on 16 April 2021. The trial was listed to commence on for pre-trial argument on 19 April 2021. On that day, Ms Skvortsova, on behalf of the accused, indicated that the accused sought trial by judge alone and further indicated the defence position was that I should hear the matter. Ultimately, the prosecution agreed that the matter was appropriately heard as a judge alone trial.

3. On 20 April 2021 Judge Mullaly granted the accused's application to be tried by judge-alone pursuant to s 420D of the Criminal Procedure Act 2009.

4. In hearing this matter I may make any decision that could have been made by a jury. My decision will have for all purposes the same effect as a verdict of a jury.

5. Section 4A of the Jury Directions Act 2015 applies in this case. It provides that the Court's reasoning with respect to any matter in which Parts 4, 5, 6 and 7 apply must be consistent with how a jury would be directed in accordance with the Jury Directions Act 2015. Further, I must not accept, rely on, or adopt a statement or suggestion that the Jury Directions Act 2015 prohibits a trial judge from making, or a direction that the Jury Directions Act 2015 prohibits a trial judge from giving.

6. I must apply all directions of law to myself that would have been given to a jury in this case.

7. In returning a verdict, I am obliged to give reasons sufficient to identify the principles of law applied by me and the main factual findings on which I have relied.

8. The evidence of Bianca Hudd[2], Ben Bailey, Ethan Hankin and Professor Donald Thomson, and part of Amy Rooke's evidence, was given remotely by agreement between the parties. Additionally, when she was briefly recalled, prosecution witness Amy Rooke appeared remotely. The evidence of these witnesses must be given no greater or lesser weight because it was given remotely, and I draw no adverse inference against the accused.

9. In all criminal trials, an accused person is presumed innocent of the charge unless and until they are proved to be guilty.

10. The prosecution bears the burden of proving the case against the accused. No accused person must prove their innocence. The prosecution always bears the burden of proving the accused's guilt.

11. The accused may be found guilty of the charge only if the prosecution has proved its case beyond reasonable doubt: the highest standard known to our law. The prosecution must prove each of the elements of the charges to this standard. Proof to any lesser extent must result in a verdict of not guilty.

12. Each charge must be considered separately, in light of the evidence which applies to it.

13. I must decide the case only on the evidence led in this trial. I must not have regard to any media reporting or social media or conduct research about the parties or witnesses. I have not conducted any such research. I remind myself that the addresses of counsel are not evidence. The evidence adduced in this case is the evidence of the witnesses and the exhibits.

14. As the judge of the facts and law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open mind to the evidence and not let emotion enter the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice. I must deliver my verdict according to the evidence.

15. I may only return a verdict of guilty on a charge if I am satisfied that 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 I must acquit him.

16. In the fact-finding process, I may not draw any inference of guilt unless it is the only reasonable inference available. If there is another reasonable inference or hypothesis available, I must not draw an inference of guilt.

17. I must base my verdict only on evidence I find to be credible and reliable.

18. The complainant in this matter, Zoe Powell[3], was born in December 1978. The accused was born in July 1971. At the time of the alleged offences the complainant was 14 and 15 years old and the accused was 22 and 23 years old.

19. In 1993, the complainant and her family lived at 40 Cooper Drive, Mooroolbark[4]. The complainant was 14 years old. In that year, the accused purchased the residence at 41 Cooper Drive. The prosecution case is that he soon became friendly with the complainant's mother and would often visit the complainant's house to have coffee with her mother.

20. The first incident involving sexual activity between the complainant and the accused is alleged to have taken place on 13 November 1993. Not long after this incident it is alleged the accused asked the complainant's mother if he could date the complainant. The complainant says that her mother agreed, and her stepfather stipulated that there was to be 'no sex' between them. It is the prosecution case, that what developed was an ongoing sexual relationship that lasted until December 1995 when she had just turned 17. It is alleged that in September 1994 the complainant moved out of her family home to live with the accused's parents. She remained living with the accused's parents for several years.

21. The complainant is an unavailable witness under the Evidence Act 2008, so the prosecution case is based on the representations contained in the complainant's two statements and her committal evidence.

22. Based on these representations, the prosecution case relates to sexual acts between November 1993 and December 1994 when the complainant turned 16. The 24 remaining charges arise from 13 incidents. There is also other misconduct evidence in the statement of the complainant and her committal evidence which the prosecution argues serves a contextual and in some instances a tendency purpose in this case.

23. The accused denies any of the alleged sexual activity took place. He does not deny he had a relationship of emotional intimacy or a romantic relationship with the complainant but says this did not involve sexual activity.

24. The central issue is therefore whether alleged acts took place. The reliability and the accuracy of the complainant in the descriptions she gives of the various sexual acts is the focus of the defence attack on the prosecution case.

25. The defence position is that the having regard to the period of time between the incidents and the complainant's first detailed statement setting out the details of the alleged sexual relationship; her intervening psychiatric issues; and her access to an appeal decision on AustLII relating to the accused and another case on AustLII involving similar sexual offending; there is a reasonable possibility of contamination or confabulation by the complainant; and that her account has become enlarged by comparison to her initial complaint to Detective Matthew Phelan in 2011. The accused also relies on what are said to be inconsistencies and discrepancies in the accounts of the complainant which it is submitted illustrate her compromised reliability.

26. The accused's position in the trial has been to accept that the complainant had a genuine belief in the truth of the representations comprising the charged acts, but that belief is erroneous, or at least this is a reasonable possibility. The reliability of the complainant was the central issue in the trial. There are several strands to the defence arguments concerning this issue.

Sexual penetration of a child under the age of 16

27. To prove this offence of the prosecution must prove the following elements beyond reasonable doubt:

The accused took part in an act of sexual penetration with the complainant.
The accused intended to take part in that act of sexual penetration.
The complainant was under the age of 16 at the time the sexual penetration took place.

28. To prove this offence, the prosecution must prove the following elements beyond reasonable doubt:

The accused committed the alleged act.
The accused wilfully committed the alleged indecent act.
The act occurred in indecent circumstances.
The act was intentionally done with/in the presence of the complainant.
The complainant was under the age of 16 when the act took place.
The accused was not married to the complainant at the time the alleged act took place.

29. The elements in issue are the first and third elements of the sexual penetration charges and the first and fifth elements of the indecent act charges; so in respect of each charge, the issues are whether the alleged act took place and whether the complainant was under the age of 16 at the time of the alleged act.

30. The prosecution case is primarily based on the representations of the complainant Zoe Powell in her police statement dated 24 May 2018. That statement was read into evidence by the Informant Detective Leading Senior Constable Amber Coutts who took the statement. I have identified the charges as they arise in the following summary of complainant's representations from her first statement.

31. She had two older brothers, one older sister and four younger sisters. Her mother is Alana Wingard[5]. Her father was Henry Bailey[6]. Growing up, she lived at 40 Cooper Drive, Mooroolbark until she was 15 years old. Her father died when she was two and a half years old. Her mother later married Darren Wingard[7] and they had two children together.

32. When the complainant was 14 years old the accused moved in to 41 Cooper Drive, in April 1993. Soon after, two housemates, Jason and Evie Hassell[8] moved into his house.

33. The accused befriended the children in the street and their parents. He would make cakes for everyone, and they would play games in his front yard. He would play music such as ABBA, Bee Gees, Queen and Meatloaf.

34. A few months after he moved in the accused was regularly at the complainant's house. When she got home from school, he would be having coffee with her mum. She was often at his house baking cakes. He started brushing past her. This happened in the kitchen. His body would touch hers. He would also tickle her down her sides.

35. In 1993 there was a boy from school and tennis she liked. Nothing occurred because she was too shy to say anything. She had never kissed a boy. She was naive and innocent. She had no knowledge of anything sexual because she was raised in a strict Catholic family.

36. On the 12 November 1993, she had a fall at school. She went to see her GP, Dr Keith Skilbeck. He had to stitch her up. She had the next day off school. At about 11 am she was home alone watching a movie, Beauty and the Beast. The accused came into the house. She was lying on the couch. The accused sat on the armchair to her left. He wanted her to sit on his lap and she did. The accused started kissing her on the lips. It was her first kiss. She did not know what to do so she just let him kiss her.[9] He put his hand up her shirt and over her bra onto her breast. He then went underneath her bra and fondled her breasts. The kissing continued.[10] He put one hand inside her underwear and started rubbing her labia, pubic hair, and all over her vagina. The movie finished and they walked across the road to his house.[11]

37. There, they started watching Pretty Woman which he picked. She sat on his lap while they watched the movie. When it got to the scene where Julia Roberts is on the piano, he took her hand and guided her to his bedroom.[12] The accused had a waterbed. He lay on his bed and pulled her on top of him. He stripped off her clothes and took his own off. The accused was kissing her. She held her breath to try and get her heart rate to stop. She was frightened by what they were doing.[13]

38. He had a large penis which was erect. He was circumcised. Lying on top of him his erection hurt her pelvic area. He tried to arouse her by stimulating around her clitoral area with his fingers. He rubbed his penis up and down on her stomach until he ejaculated. (This is the basis of Charge 2). The accused cleaned the semen up with a T-shirt.[14]

39. The accused started to write love letters to her every day. The first one he wrote she showed to her best friend Nicole Shaw[15]. The letters were not very sexual; in the beginning it was more admiration. She burnt all these letters in 1996.[16] The accused went to her mother to ask permission to date her. This was within a couple of weeks of the first incident on his waterbed. Her mother agreed. Her stepfather said 'No sex' only petting. Because of this she did not understand that what occurred to her with the accused afterwards was sex.[17]

40. Her 15th birthday was in December 1993. She used a Portman's voucher to buy a new dress which she wore to a wedding she attended with the accused. The groom Keith Smith[18] was a friend of the accused.[19]

41. On the day of the wedding, she and her mother went to Chirnside Park to buy sandals to wear with her dress. A photo shows her in the dress on her 15th birthday. The accused took her as his date to the wedding held at a Greek Orthodox Church; the reception after was at a winery in Redhill. Her history teacher from Mount Lilydale College was also a guest. After the wedding they went back to the accused's house. He parked his car around the corner so her parents would not be able to see they were back.[20]

42. The accused took her straight to his bedroom. The accused stripped himself and her naked. The accused was erect straight away. He put her on the bed. He put her on her back and rubbed her vagina with his fingers to get her aroused. The accused wanted her to masturbate him, so she did. Whilst she was doing that, he performed oral sex on her with his tongue. She likened this to a snake flicking its tongue. (This is the basis of Charge 3). While he was licking her vagina, the accused put two fingers into her vagina moving them in and out of her vagina for a while. (This is the basis of Charge 4). When he finished that he guided her head onto his penis, and she gave him oral sex. The accused ejaculated into her mouth. (This is the basis of Charge 5). She spat it out. After he finished, her vagina felt like it had gravel rash.[21]

43. After this finished, they walked to her house and had birthday cake with her family. The accused stayed for a while and talked to her parents.[22] She hated it and she had never performed oral sex on anybody else since.[23]

44. She believed the accused had an abnormal sex drive. Every time they caught up, he wanted sex. It would either be once or twice during the catch ups.[24]

45. In January 1994, the accused took her, and her brother Jeff[25], and sister Michelle[26], camping at Fraser National Park in Eildon. They had two tents. Jeff and Michelle shared one tent and the accused and her shared the other. The accused bought several bottles of Midori with him. He encouraged them to drink the Midori. Her sister Michelle was 12 years old at the time. They all got drunk.

46. Very early in the relationship the accused was looking after a house in Wonga Park. It was a split-level house with exposed brick on the inside. She could not remember who owned the house. They fed the pets, and then the accused took her to the lounge room which had an open brick fireplace and a rug on the floor. When they were both naked in the lounge room he began kissing her and then inserted his fingers into her vagina. (This is the basis of Charge 6). The accused had her masturbate him. (This is the basis of Charge 7). The accused always aroused her first because it would hurt her too much otherwise.[27]

47. The accused looked after pets at a house in Croydon Hills. It was a two-storey house. She remembered it because it was around the comer from his parents. The family had gone on a holiday to Queensland. They had a son whose nick name was Ringo[28]. The reason she remembered this because not long after the accused got a puppy and called it Ringo. This was late 1993. The accused did not look after the dog properly and his parents took it on.[29]

48. The incident occurred on the floor of the lounge room. They stripped naked. The accused was already erect; she lay on top of him. The accused thrust his penis up and down on her stomach. The accused used his fingers on her vagina to arouse her. She masturbated the accused at the same time. The accused then performed oral sex on her and used his fingers to penetrate her vagina. After he gave her oral sex, she gave him oral sex until he ejaculated into her mouth. She had nowhere to spit the ejaculate. She swallowed it.[30]

49. In February 1994, she began Year 10 at school. There were rumours amongst peers at school that she was dating an older guy. Her nickname became Chester and the boys would chant, 'Chester, Chester child molester'.[31]

50. On Valentine's Day 1994, the accused gave her a large bunch of red roses, a pink open card and heart shaped drop earrings with small blue stones in them. She thought it was over the top and was very embarrassed. Her sisters teased her about it.[32]

51. Very early in 1994 the accused started shaving her legs with a razor in his bathroom. His bathroom was blue tiled. Not long after he started shaving her legs, probably the most traumatic memory she has of the accused took place.[33]

52. They were in his bedroom naked on his waterbed. The accused was rubbing an ice block over her body. He was sucking her breasts one at a time. After this she lay on top of him. She masturbated him and he masturbated her vagina with his fingers. The accused then got on his hands and knees and he picked her up and moved her around the bed. He forced his whole fist inside her vagina and began a punching motion. (This is the basis of Charge 10). Her head was at the bottom of the bed. He was punching inside her vagina so hard he pushed her off the bed. She landed on the floor between the left cupboard and the ensuite entrance door. She was in agony. She screamed but then went quiet. She realised she was bleeding from the vagina. She was in shock. The accused told her not to worry. He said that this was what happened when girls first have sex.[34]

53. She told him how much he hurt her. The accused then became sorry and loving. He downplayed it.[35]

Incident 5: House sitting for the Greaves_[36]_

54. William and Susan Greaves, friends of the accused, lived in Croydon, just up from the Maroondah Hospital. During 1994, before she turned 16 years old the Greaves' went away to Gippsland for a holiday for a few days. The accused offered to go and look after their animals. William's mother who lived in the United Kingdom died while they were away. They were at the house feeding the animals one night when the phone rang. It was William's brother from the United Kingdom calling to tell William that their mother had died. The accused tried to get in touch with the Greaves by calling their accommodation.[37]

55. They walked down to one of the bedrooms. She was on the floor naked. He had her masturbate him and he masturbated her. They performed oral sex on each other (This is the basis of Charges 11 and 12) and then he inserted two fingers into her vagina (This is the basis of Charge 13). The accused ejaculated. She went to the bathroom and cleaned herself up.[38]

56. The accused's parents, Michael and Isabel, lived at 24 Tulip Street, Croydon Hills. They had an outdoor spa. When his parents were away, they went to their house and used their spa. His parents had no pets. This happened prior to them getting the accused's dog, Ringo. The first time was in February or March 1994. She was 15 years old. They hopped in the spa naked. They were kissing each other. The accused turned her around, so she was facing the outside of the house. She was on her knees. The accused got behind her on his knees. He pulled her buttock cheeks aside so he could put his penis into her anus. It hurt as soon as he put it in. It was just inside. There was a lot of pressure. She began screaming and he stopped. This was the first time he tried anal sex with her.[39] (This is the basis of Charge 14)

Incident 7: The Hankin's_[40]_ house

57. On another occasion in February 1994, before she turned 16 years old, the accused was minding the home of Ethan and Lee Hankin. They lived in Chirnside Park. The accused was feeding their animals while they were away. He was not staying there. They went there together. They fed their pets and then the accused took the complainant down to the master bedroom. They were on the floor just outside their ensuite door. They stripped naked. The accused aroused her first by touching her vagina with his fingers. He was already erect. The accused had her masturbate his penis with her hand. The accused then guided her head onto his penis which she sucked until he ejaculated into her mouth.[41] (This is the basis of Charge 17)

58. The Hankin's invited them to go on their yacht. She thought it was moored in St Kilda. She was pretty sure it was in March 1994. They headed out to the south channels where the seals are. They stayed overnight on the yacht moored at Queenscliff. They slept downstairs on the open upper deck under a canopy. During the night sexual activity occurred multiple times. The accused ejaculated three times. He penetrated her vagina with his fingers (This is the basis of Charge 18), he performed oral sex on her, and she had to perform oral sex on him, which caused him to ejaculate on his stomach (This is the basis of Charge 19). A photo shows her on the boat in summer wear with a fish she caught on this trip. She believed she was in love with him, and this was what you did as a part of a normal relationship.[42]

59. At Easter time in 1994, the accused came away with her family to Numurkah. They stayed at a farm. She was already there with her family, and he drove up in his yellow Galant. He only stayed for one night. The accused had an argument with her parents that night. She was not able to remember what it was about. Her parents told him he had to leave in the morning.[43]

60. The accused slept in the lounge room that night and she was in a room with her sister. The accused told her to come out when everyone was asleep, which she did.[44] They were naked from waist down. The accused penetrated her vagina with his fingers, (This is the basis of Charge 20) and had her masturbate him.[45]

61. The next morning the accused left. He was angry and her parents were angry. A few days later, on the way home, her mother's car had a tyre blow out. A tow truck took them to Kilmore where they stayed overnight. Her mother rang the accused and asked him to come and pick them up. He borrowed a Tarago van from the Hankin's and came and picked them up. He had a big bunch of red roses for her.[46]

62. In May 1994, the accused took her to the Lilydale Lawn Memorial Cemetery for a driving lesson. She was 15 years old. At the time he was driving a manual orange Toyota Corona. The accused would buy old cars and do them up to sell so he always had different cars.[47]

63. The driving lesson was on a Sunday, approaching dusk. The accused started yelling at her because she could not work the clutch. She became upset and began crying and yelling at him that she did not want him to bring her there again.[48]

64. The accused apologised and leaned across and began to kiss her. He took his pants down to above his knees and guided her hand to masturbate him. He placed his hand beneath her underwear and began rubbing her clitoris and labia roughly. She gave him oral sex. (This is the basis of Charge 22) At the moment of ejaculation she jumped back, and he ejaculated on himself.[49]

65. In July 1994, his parents were going for a weekend away to either Jerusalem Creek or Goughs Bay, both are in Eildon. It was his father's boss's holiday house. His parents invited them. Her parents allowed her to go because his parents would be there as well.[50]

66. His parents allowed them to stay in the same bed, in the bedroom next door. On the Saturday after they arrived, they spent the day in bed together. She was surprised that his parents did not tell them to get up.[51] It was constant sex all day. She had to be silent so they could not be heard. By sex she meant that he penetrated her vagina with his fingers numerous times that day. It was at least four or five times.[52] (This is the basis of Charge 23. The prosecution relies of the first occasion on that day that digital penetration took place**)**.

67. The second time he tried anal sex with her was in August 1994. They went to Bonnie Doon for a night. They stayed at the Bonnie Doon Hotel.[53]

68. Her parents allowed her to go away with him overnight because the accused told them another family called the Irvings[54] were going as well. This was a lie; the family were never going.[55]

69. On the way up to Bonnie Doon the accused got pulled over by the police for speeding. She remembered that the policewoman wanted his licence, but he could not find it in the car. She told him to present it within a week at his local police station. She thinks she gave him a warning not a fine.[56]

70. The room they were staying in was a few doors away from an outdoor spa. The spa was undercover. It was an above ground square spa. They went to the spa late at night when there was no one else around. The accused and she had been drinking Midori which he had bought from the local bottle shop. It was freezing because it was winter. They got into the spa naked. She was worried that someone would see them. They were kissing and fondling, masturbating each other. (This is the basis of Charge 29). The accused put his fingers into her vagina to arouse her (This is the basis of Charge 27). The accused then turned her around again to face the outside of the spa which overlooked the lake. The accused grabbed her by her hips and held his penis to guide it into her anus. She screamed because of the pain and pressure, and he stopped. He only got it in a little way.[57] (This is the basis of Charge 28).

71. When they went back to the hotel room, they remained naked, and the accused started kissing her again. He was erect and put his fingers into her vagina. (This is the basis of Charge 30). They watched a pornographic film in the room.[58]

72. In September 1994, she moved out of her family home. The relationship between the accused and her parents had completely disintegrated. Years later her mother told her that the accused had said to her that he was worried that her brothers would sexually abuse her.[59]

73. The accused told her that if she wanted to be with him, she would have to leave her parents. The accused was already controlling her, and it was a power struggle between him and her parents.[60]

74. The accused told her that he had spoken to Legal Aid and that she could move out. Her parents could not stop it unless they found semen in her underwear.[61]

75. The accused would drop her off and pick her up from school. He made her lunch. If she wanted to visit a friend, he would drop her off and pick her up. She saw the accused every day and he was involved in every aspect of her life: school, netball, friends, as well as his friends.[62]

76. During September 1994, she moved out. It was a Friday night. She was at his house. Her parents came over and there was a massive argument between the accused and her parents. His parents, Michael and Isabel, ended up coming over as well. Her stepfather Darren wanted to call the police. His parents ended up taking her home to their house for the night. Her parents were not happy because of her age and their Catholic religion.[63]

77. Prior to her leaving with the accused's parents, her mother put all her possessions in an old orange leather suitcase. She put it on the nature strip out front of her house. It made her realise that she could not go home. They also gave her older sister Bryony her room.[64]

78. The accused's parents set her up a mattress in their formal lounge and put a curtain across. She ended up living with them for seven years. she left their house when she was 21 years old. The whole time she lived in their formal lounge room.[65] There were no rules or regulations whilst she lived with them, even when she was 15 years old. His parents did not mind the accused and her sleeping together under their roof.[66]

79. She would go and stay over at his place on the weekends after catching the bus there. The accused did not often stay at his parents' house because he had an aloof attitude towards them. He was not caring towards his parents at all. His parents doted on him.[67]

80. The accused and his brother Matthew[68] were adopted. Matthew was living at the house with his parents when she was there.[69]

81. In November 1994, for their 12-month anniversary, the accused hired a maroon Mitsubishi sedan and took her down the Great Ocean Road for two nights.[70] They stayed at the Lorne Cumberland Hotel. He had organised a room with a spa that overlooked the beach.[71]

82. He put rose petals in the spa, and they were both in the spa naked. They mutually masturbated each other. (The complainant's act of masturbating the accused is the basis of Charges 34) The accused put his fingers inside her vagina (This is the basis of Charge 35). Once that happened for about 5 minutes, he turned her around and tried to penetrate her anally. He managed to penetrate her, and it caused incredible pressure and pain. She could not tolerate it, so he stopped (This is the basis of Charge 36).[72]

83. Soon after she moved in with the accused's parents, they went to the wedding of a friend of the accused at the Farnham Court Motel and Restaurant at 26 / 30 Princes Drive, Morwell.[73] Following the reception, they stayed in one of the motel rooms. Another girl called Victoria[74], who was hearing impaired, stayed in the room with them.[75] They had the double bed. Victoria had a single bed on the right side next to them. The accused stimulated her clitoris with his fingers. He put his fingers into her vagina, and she masturbated him. He guided her head onto his penis for oral sex.[76]

84. In winter 1995 she was 16 years old. She went on a Scout camp with the accused to Lake Mountain. They all stayed in a large open cabin. The accused joined your sleeping bags together. She had to be quiet because they had people sleeping within a few feet of them. The accused got her to masturbate him and then he masturbated and put his fingers inside her vagina.[77]

85. On Christmas Eve, 1995, they were at Richard and Elizabeth Beckett's[78] house in Ringwood. They left around midnight. The accused drove her back to his parents' house. When they were out the front of the address still in the car, the accused told her they were done.[79] This was completely out of the blue. Right up until that time his behaviours towards her had not changed. He had always told her he would propose to her on her 17th birthday. She was devastated by the accused splitting up with her.[80]

86. The next day the accused attended Christmas at his parents. He mocked her and made light of splitting up. His mother told her to forget about it and to focus on her studies because she was going into Year 12.[81]

87. She remained living with his parents until July 2000. It was extremely rare to see him there.[82] Whilst she lived there, she went on to Latrobe University and studied Prosthetics and Orthotics.[83]

88. Sometime after they split up, she had suspicions he was gay. This was after a Scout leader Richard Beckett divorced his wife Elizabeth and moved in with the accused. When she saw them together, she saw that the accused was affectionate and loving towards Richard and vice versa. She thought it was strange.[84]

89. In July 2000 she moved out of Michael and Isabel's home and moved home to her parents and lived out the back in a granny flat.[85]

90. After she moved out, she was visiting Michael and Isabel when the accused arrived with a partner called Max[86]. The accused said he was gay. She reminded the accused that the only reason she moved out of home at 15 was because he said that was the only way they could be and stay together.[87]

91. In 2002, she met her husband, Hamish Powell[88]. They got married when she was 27 years old. She never told him all the facts partly because he was so protective of her that she did not want him to see her in a different light or feel that he had to fix it. Their first child, a son, was born in 2009, and their second child, a daughter, was born in 2010.[89]

92. In 2011, when she was pregnant with her third child, she heard via media and Facebook that the accused had been charged with offences relating to children. She was frightened and mortified. She felt humiliated because Alicia Platt[90] who lived at number 39 Cooper Drive, Lilydale, placed the article from the media on Facebook. Her comment on it was that he had always offered to babysit her four sons and that she never took him up on that. Another neighbour from 42 Cooper Drive, Tayla Bidwell[91] also joined in on the commentary.[92]

93. She quit Facebook that day. She called the Office of Public Prosecutions and asked how she could contact someone who could help her. They gave her Detective Senior Constable Matthew Phelan's name and told her he was based at Lilydale. The Office of Public Prosecutions also directed her to the AustLII website where she read the appeal of Snyder. She recognised a lot of the victims by their initials.[93]

94. She contacted Detective Phelan's office and left her details. The following day he called her back. She explained to him her relationship with the accused. They organised a time to meet at Lilydale Police Station. She decided that the time was not right to report what happened to her because she was pregnant and had a young family.[94]

95. In February 2014, she went to the Ringwood blood bank. Her allocated nurse was Lee Hankin. It was a shock and she recognised her straight away. Lee kept asking, 'Your face is familiar, how do I know you?'[95]

96. She ended up telling Lee that she had dated the accused when she was young. Lee began to cry. She said to Lee 'I had no idea, I had no idea', referring to her son (who was a victim of sexual offences committed by the accused). Lee hugged her.[96]

97. The day after she saw Lee it triggered something inside of her. She became suicidal for the first time and after a few days at home she was admitted into a psychiatric hospital for containment.[97]

98. In April 2018, she voluntarily admitted herself into hospital and whilst she was there, she decided it was time to do something about it. She rang Knox Sexual Offences Unit on 26 April 2018 and spoke to Detective Senior Constable Amber Coutts. She had previously never disclosed all that occurred with the accused to one person. She felt too ashamed to tell anyone. The first person she told in detail was on 22 April 2018, when she told her old triathlete friend Georgia Teague[98] what had occurred in her childhood with the accused.[99]

99. The accused never tried to have vaginal intercourse with her which was her definition of what sex was when she was young. She believed that by not having vaginal sex she was also following her stepfather's direction of 'No sex'.[100]

100. The complainant had given Amber Coutts some photos of herself from the time she was with the accused as well as some google maps that she used to find the addresses of houses that he looked after.[101]

101. The photographs to which the complainant referred were tendered in evidence through Detective Coutts:

Exhibit 3 - the complainant wearing a ballet dress.
Exhibits 4 & 5 - the complainant on her 15th birthday.
Exhibits 6 & 7- the complainant on the Hankin's boat.
Exhibit 8 - the complainant at a netball tournament.
Exhibit 9 - the complainant lying on the accused's couch.
Exhibit 10 - the complainant in Year 10 at school in a photography class.
Exhibit11 - the complainant on her last day at school.
Exhibit 12- a photo of full dress.
Exhibit 13 - the complainant in her bedroom with teddy bears.
Exhibit 14 - the complainant at her university graduation.

102. The audio recording of the complainant's committal evidence was played to the court and tendered as an exhibit.

103. She adopted her two statements as being true and correct.[102] She was asked about the Facebook posts she referred to in her statement and she said she was humiliated because she had never revealed to anybody the extent of what had happened to her. Her sister Molly Steele[103] had said on Facebook 'Zoe would have some stories to tell I am sure'. She said that Facebook thread was extensive with over 30 comments.[104]

104. The Facebook incident was in 2011 and after that she spoke to the OPP and then to Detective Phelan. She said the OPP directed her to AustLII and she typed in the accused's name and read the appeal related to his case.[105]

105. She said in April 2018 she looked at another case of a sexual nature that was a similar situation to hers. The case involved sexual acts against a girl under 16 by a person that had befriended the victim's parents. The case involved digital penetration, oral sex, anal sex, and kissing.[106]

106. She was asked about the blood bank incident in February 2014. Prior to that she had never set out her allegations. She said she discussed with Lee Hankin the abuse of her son Blake Hankin[107] and Lee Hankin told her about how he had fared in his later life. She said she did not say to her husband 'the lady wanted to know if I knew anything about Clifton abusing her son'. She said Lee Hankin did not ask her if she knew anything about what the accused was doing.[108] She saw Lee Hankin sometime later again at the blood bank.[109]

107. She said she had been seeing a psychologist in Bentleigh for about a year before the blood bank incident.[110] She said she had a breakdown after the blood bank incident and her husband took her to the Monash Emergency Department who made a referral to the Delmont hospital. After that she had been attending the mental health unit at the Epworth because her psychiatrist moved there. She had an ECT at the Delmont hospital.[111]

108. She was asked about the six pages of notes she had taken with her when she made her statement. She said she wrote the notes when she was at the Epworth in April 2018.[112]

109. She said she had started writing from the time she first went to the Delmont hospital. She said she probably consulted the Epworth notes when she made her statement because this was the detail that came out of her in April at the Epworth.[113]

110. One of the notes she had made was 'unknown definition'. This related to the age of consent. She said Detective Coutts was the first person she sought definitions from.[114]

111. She was taken through her notes about visiting the Hankin's house in Chirnside Park 1993 - 94.

112. There was a reference to Wonga Park. She could not name whose house that was.[115]

113. She had made a note in relation to the wedding at Red Hill which she said was the first wedding.[116]

114. She was asked about the note 'spa when parents away' and she said there were many times she was in the spa with the accused and sexual activity took place. She said this happened every time there was no one around. She said anal penetration took place on many occasions in spas but at his parents' house she could only recall this one occasion. She said sexual activity took place in that spa at least 20 times.[117]

115. She said sexual activity continued after she turned 16 through until they broke up in December 1995. She was asked to detail the types of activities and regularity of such activities. She was taken to a note in her statement that said, 'greater than 1000'. This represented an estimate of the total number of sexual acts that she and Mr Snyder engaged in during their relationship.[118]

116. She made a note about the accused shaving her legs which she said was exceptionally odd.[119]

117. She was taken to a note that said Euroa easter 1994. She clarified this should have been Numurkah. Euroa was a netball trip.[120]

118. She referred to a holiday when she and accused went to the Gold Coast with the Greaves family and there was an incident on the road where the accused drove onto the shoulder of the road and rocks flew up and hit the windscreen of the Greaves' Volvo.[121]

119. She was taken to note that said 'factory smell'. She said this was the smell of the oil. She said he had a mattress in the office and that sexual acts took place there when she was aged 15. She said that smell took her back to the factory and she could remember the layout. She said the accused would have-shirts at the factory, and on the occasions when he ejaculated at the factory, it was onto a particular T-shirt.[122]

120. She also said the music he played at his house took her back to when all the children would play there.[123]

121. She agreed that it was approximately 20 years between the incidents and her making any written record of them.[124]

122. She agreed with the proposition that out of approximately 1000 sexual acts she was able to detail specifically the occasions she had set out in her statement.[125]

123. She had made a note 'plus, plus, plus, plus' which indicated that the sexual activity was excessive and occurred every day, three to four times a day, which she didn't believe was normal.[126]

124. She said that after speaking to Detective Coutts she understood that any sexual activity after she turned 16 was not a breach of the law.[127]

125. The fact that Justin Clowes' marriage took place after her 16th birthday in March 1995 was brought to her attention. She accepted she must have been 16 at the time of that incident and that her statement was incorrect about the date. She said: 'I haven't seen anyone's statement, but that has cleared the point up to me'.[128]

126. In relation to the first incident, she described attending the GP's and said that the doctor put stitches in her injury and put a dressing on the laceration which was to her hip. She said she had the next day off school. She was asked how long she had off school and she said one day, and she was at home. She was taken through the facts of the incident.[129]

127. She described an incident that took place in the accused's garage which he used for his work as a mechanic. This incident occurred between the first and second charged incidents.[130]

128. Regarding the second incident, on the day of her 15th birthday, and the wedding of Keith Smith, she said the birthday celebration was after the wedding and directly after the charged incident. She said after the sexual activity they got dressed and they had a birthday cake waiting at her parents' house.[131]

129. She was asked about the Bonnie Doon incident. She said she identified the date of August 1994 by the fact that it was winter. She said it was freezing cold and they went to the spa wearing just towels.[132]

130. She was then taken to the incident at the Cumberland Hotel in Lorne. She said they went to Lorne prior to her 16th birthday for their one-year anniversary.[133]

131. She said the fisting incident was the most traumatic incident that could ever have occurred. She described that it was his whole fist and that it was like punching a wall. She fell of the bed because of the force. She said the pain was excruciating. She said she was 15 years old and a very slim build. She said she did not see a doctor.[134]

132. She said the incident at the Greaves house in Mount Dandenong Road occurred when they were house sitting, and the Greaves' were away at the Buchan Caves. She mentioned the phone calls from William Greaves' brother relating to the death of their mother. She said the sexual activity took place after this call.[135]

133. The balance of the cross-examination was focused on the remaining charged incidents.

134. Hamish Powell was the complainant's husband. They got married in 2005 and had three children. When they first met, she was living in Cooper Drive, Lilydale with her mum. She had a bungalow out the back.[136]

135. He said his wife gave blood regularly. On one occasion after she went to a blood bank in Ringwood, she was upset and shell-shocked. He said that a day or two later he took her to a facility because she tried to commit suicide.[137]

136. He booked her into a facility called Delmont for mental health. She became an inpatient there. She was there on and off for 12 months.[138] He said that was the start of her battling with these sorts of issues. He said that after the blood bank she just could not control it.[139]

137. He said over that period she could be home for a day, a week, a month, depending on what triggers came up. This went on for years until she passed away.[140]

138. He said his wife had a remarkable memory and even through the worst times, her memory was always intact.[141]

139. In cross-examination he said he understood her family home during her teens was a toxic place to her and as a teenager she felt unwelcome in the family home.[142] He said she seemed to be the one that was singled out.[143]

140. He said their son, the oldest child, was born in March 2009. Their first daughter Caitlyn[144] was born in July 2010. The youngest, Rebecca[145], was born on 12 May 2012.[146]

141. He said the complainant started to struggle after Caitlyn's birth. She was very concerned about raising and protecting a daughter. He said it was like a snowball effect of events that just took its toll on her: having a daughter when she did not feel protected as a child; finding Mr Snyder was convicted; and the blood bank incident.

142. He agreed he had said in his statement: 'I ended up taking her to a private facility where she was in and out of there for 12 months. Since then, Zoe has basically been a patient for the last five years'. He said she had been a patient on and off,[147] from weeks at a time to months at a time. She expressed some guilt for placing the responsibility on him for looking after the children and the financial pressure it created.[148]

143. He said that they first thought the accused had received a prison sentence for tax fraud. Mr Snyder's parents told them this.[149]

144. He said this was early before their children. He said they found out it was not for fraud through a news article that Zoe's mum showed them when they were at Cooper Drive. Her mother said, 'Was it worth wrecking the family for this guy?'[150] The complainant read the article and was shocked. He asked her, 'Were you harmed in any way, or were you abused in any way?' She could not answer the question. He could not remember exactly when this was.[151]

145. In relation to the blood bank incident, he said that Zoe told him that the woman who was drawing her blood was the mother of one of the accused's previous victims who recognised Zoe, but couldn't work out exactly how she knew her[152] The lady then wanted to know if Zoe knew anything about the accused abusing her son.[153] Zoe had said to him 'I kept getting asked over and over and over, and I didn't know'. This caused her to become distraught.[154]

146. He agreed that prior to this incident at the blood bank, she knew that the accused had been convicted of child molestation because they had read the article.[155]He agreed it was after the blood bank that she had a breakdown.[156]

147. In re-examination he said he thought their understanding that the accused was in prison for tax fraud was before they had children.[157] He thought the newspaper article incident was before their first child was born or around when he was born. There was a period of time between that and the blood bank incident. He said it was the article first, and then the blood bank.[158]

148. Ms Rooke met the complainant at Mount Lilydale College when they were both 12 years old in Year 7.[159] During Year 9, the complainant was living with her mother, stepfather and siblings in Lilydale.[160]

149. She always felt the complainant was a little bit of an outcast in her own house.[161] She was quiet, and she got picked on by her sisters. She felt the family was a bit dysfunctional.[162]

150. Ms Rooke gave evidence that the first time she knew about the accused was through letters shown to her by the complainant in Year 9. They were aged 14. She also saw the accused at netball games. He made friends with her mum, and that he would be over there when she got home from school.[163]

151. She saw the letters given to the complainant by the accused. She said they were 'boyfriend girlfriend kind of letters, like affectionate letters, so I remember at the time thinking over the top letters, affectionate letters.'[164] The complainant told her the accused was in his twenties.[165]

152. Ms Rooke gave evidence that after the boys at school would say things to the complainant, she said the accused had told her 'as long as we don't actually have sex we can do anything else because that's what people do in relationships'.[166]

153. Ms Rooke said she was young and innocent back then. The complainant never said it in this happy way, she would just make a statement when she would get upset about what boys would say.[167]

154. The complainant told her that the accused put his fist in her one day, and that she had to do things to him, although she never explicitly explained those things.[168] She was told by the complainant that it hurt and otherwise they did not talk about it other than making a comment every now and then. This occurred in Year 9 and Year 10, when they were 14 and 15 years of age.[169] Ms Rooke said she was born in July 1978.

155. After leaving school she once asked the complainant why she did not tell her back at school. The complainant responded that she felt ashamed and did not know how to because no one would understand.[170]

156. Ms Rooke said that during the conversations in high school, she could not work out whether the relationship was what the complainant wanted. She was confused as she did not actually know what went on in relationships and was a lot less aware of things at that time.[171]

157. She said that when 'it came out about Clifton', she asked the complainant whether she was okay. Years ago, the complainant told her she went to the police.[172]

158. She said that the complainant lived with the accused's parents for quite a while as she felt like she had nowhere to go. She felt as though the complainant was disowned by her family.[173]

159. She said that the relationship with the accused ended in either year 10, 11 or 12 and when this occurred, the complainant continued to live with his parents. The complainant remained living there while she was at university. Eventually, she moved back to her family's house and lived in the bungalow at the back.[174]

160. She gave evidence about the complainant ringing her quite upset and telling her she was no longer on social media as people were saying things about her in relation to the accused being in gaol for molesting boys. A neighbour had tagged the complainant in an article there had been a comment to ask 'Zoe Bailey' about the accused.[175]

161. Around the same time, the complainant told her that she had gone to the Mooroolbark Police Station. She said she told the policeman that she was going out with the accused during that time, and that she wanted to tell her story.[176] She said that the policeman told the complainant that she should let it rest as it would be too emotional, given that he had already been charged.[177]

162. When Ms Rooke asked the complainant what her story was, the complainant again brought up that the accused said to her that they could do anything but have sex, and that was okay. During this conversation, the complainant said that the accused would make her do things while they were driving the car, or in places at home. Ms Rooke said the complainant brought up the fist incident again at this time.[178]

163. She said that the complainant was distraught and never went into detail about the offending.[179] She referred to earlier conversations when the complainant was having bad dreams and said they had conversations scattered throughout their lives.

164. She was asked whether she had read a transcript of her committal evidence and she said she had but she found that very confusing to read because 'it was a very confusing piece'.[180] She said, 'I feel like I know what I know and reading that made it confusing'.[181]

165. She said her evidence in chief that she had scattered memories after high school meant she cannot put dates to conversations, but she could relate conversations to times of certain events.[182]

166. She said Zoe had told her she might be getting a phone call to give evidence and that was all they ever spoke about it. They did not have a conversation about it. The complainant said to her that she had been to the police, so Ms Rooke presumed because she had been to police before it was about Clifton Snyder. She said they had not spoken about any allegations because she never told her the whole story.[183]

167. Ms Skvortsova put to Ms Rooke that by previous things they had talked about this meant after everything with the accused went public. Ms Rooke answered, 'that and high school'.[184]

168. Ms Skvortsova put that she knew she was making a statement about sexual matters involving the complainant and the accused. Ms Rooke said she had pushed it to the back of her mind and had not consciously thought about it until she sat down with Detective Coutts. She said she probably could have provided her with more answers.[185]

169. She said there was a conversation where Zoe was telling her about bad dreams and that was after they had kids. She said all their children were born around the same time; they both had three children. This conversation took place between the birth of her first and second child who were born in 2011 and 2012, but after the Facebook posts. She said the complainant was having nightmares and because of that she was scared for her own kids.[186]

170. She was asked about the content of the letters and she said there was nothing of a sexual nature in the letters, she stated 'it was just more of a love letter'.[187]

171. She was asked again about complainant's reaction to Facebook posts and she said that the complainant found it extremely distressing that she was tagged to an article about someone going to gaol, that she associated with at that time, but she had no idea about what he was doing.[188]

172. She was taken to her police statement where she had said, 'After this conversation I said to Zoe, 'Did he do anything bad to you?' She told me he had fisted her and done other things to her which she didn't tell me about.[189] She said the complainant had referred to the fisting incident a few times. She said the reference in the statement related to after the complainant first spoke to police.[190]

173. It was put by Ms Skvortsova that the conversations about fisting occurred after everything became public on Facebook. Ms Rooke said:

'No, prior, but she also mentioned it then, and told me, and then just went on to tell me. So, I never knew. I didn't put two and two together, when she said that in high school'.[191]

174. Ms Skvortsova put to the complainant she had not mentioned in her police statement the complainant telling her about the fisting incident in high school. Ms Rooke said she thought she had but accepted she had not. She said she had not been asked about it.[192] It was put that the first time she was told by the complainant about the fisting incident was in 2011; Ms Rooke said no.[193]

175. Ms Rooke was then asked to read several pages of her committal transcript commencing at p. 120 line 22. She was taken through these passages from the committal which have been tendered as an exhibit.

176. The passage of evidence put from the committal concluded with this question and answer: 'Okay. The conversation did not happen back in the nineties when you were in high school?' Ms Rooke had agreed with this proposition at the committal. Ms Rooke then said this of her answers in cross-examination at the committal:

'Obviously, I was up here, being questioned, totally confused, never done this before, and it doesn't even make sense to myself, the way it's all worded[194]...... she always said to me in high school, they weren't allowed to have sex, sexual intercourse'. [195]

177. Based on the committal evidence, Ms Skvortsova put to Ms Rooke that in high school the complainant had never mentioned any sexual activity that she and Clifton had engaged in. Ms Rooke responded that she took the questions to refer to sexual intercourse. She said this:

'She'd said to me that they were not allowed to have sex... I'm just telling you exactly what I know. '[196]

178. Ms Skvortsova put that the complainant never said to her in high school that the accused put his fist inside her. Ms Rooke said, 'she did tell me that'.[197]

179. Ms Skvortsova suggested that Ms Rooke had mixed up the conversation after the Facebook posts with the conversation she said took place when they were at school. Ms Rooke said that when something specific happened, for example when she was upset with boys saying things to her at school, that was the time when she would make comments such as that one. She said that outside of that there were no other conversations about it. Ms Rooke said when she gave her statement to police, she went there and just answered the questions that were asked.[198]

180. Ms Skvortsova then went to the re-examination from the committal where Ms Rooke was asked by Mr Pirrie, 'So you're saying your earliest recollections of these conversations was when you were at school?' Ms Rooke answered this question by saying 'so the fisting thing-no...that was after the social media stuff'.[199]

181. Ms Rooke said in her mind she was thought the questions she was being asked when she gave those answers related to the time of the Facebook posts. She said:

_'_I'm just telling you my story, but you've also got to understand that when you're being put on the stand and you're thinking okay I'm answering questions about this particular time - that I was - I read that and I'm like that's not - that's not how it goes. That's not.' [200]

182. Ms Skvortsova asked Ms Rooke about her evidence that the complainant had said that he makes me do things to him. Ms Rooke said this related to when they were driving or back at his place and in high school. She did not give more detail. She said the complainant never went into the specifics about the sexual things they did.[201]

183. Ms Skvortsova directly put to Ms Rooke that the complainant did not say to her during high school that the accused's fist went in her vagina. Ms Rooke said that she did say this, but she did not understand it, and it wasn't until she was much older that she realised there was more to the story than she had understood. She said that the complainant's story was obviously a story she did not understand back in high school.[202] She said the conversation happened before years 11 and 12.

184. Ms Rooke was subsequently recalled so a note the complainant had written about a Christmas lunch they had both attended could be put to her. The note indicated some discussion about the committal. Ms Rooke could not remember the contents of the conversation.

185. At the conclusion of Ms Rooke's cross-examination Ms Skvortsova flagged the tender of various passages from the committal proceeding, which were ultimately tendered as Exhibit 36 at the end of the defence case. Those passages certainly contain a denial that the fisting conversation took place in high school but also contain answers from Ms Rooke that the complainant told her in high school, when the boys would tease her, that 'he can do anything to me but have sexual intercourse'.[203] This was the context for Mr Pirrie's question that produced the answer from Ms Rooke that the mention of fisting was later on.

186. This witness said his nickname was 'Blakie' when he was younger. He had met the complainant around that time as the girlfriend to the accused. He said that on one occasion he was at the accused's home in Mooroolbark when the complainant was there. He recalled them being boyfriend and girlfriend.[204]

187. He said that his family owned a Markline 1100 power boat roughly 11 metres long. His father kept the boat at Patterson Lakes. The boat was used for trips on Port Phillip Bay. It would go to Mud Island up to the mouth of the Yarra River.[205]

188. The witness confirmed Exhibit 6 to be a photograph of the complainant sitting in the dining table of his Dad's Markline 1100 boat. He did not recall when it was taken. The witness confirmed Exhibit 7 to be a photograph of the complainant standing at the back tailgate of his dad's Markline 1100 boat holding a flathead. Again, he did not recall when it was taken.[206]

189. He said he knew the accused when he was in his teens. He recalls first meeting the accused through the Scouting Association as a cub when he was approximately 12 or 13.[207]

190. He recalled meeting the complainant twice. He did not recall the second location where he met the complainant.[208]

DPP v Snyder

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (878 paragraphs)

Parties

Legislation Cited (2)