//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2010] ACTSC 85
Supreme Court of the ACT
2010-08-19
Original judgment source is linked above.
R v HENRIK FORSTI [2010] ACTSC 85 (19 August 2010)
CRIMINAL LAW - trial by judge alone - offence of act of indecency upon a person under the age of 10 - accused found guilty
CRIMINAL LAW - trial by judge alone - offence of act of indecency in the presence of a person under the age of 10 - accused found guilty
CRIMINAL LAW - trial by judge alone - offence of sexual intercourse with a person under the age of 10 - allegation of enema administered by the accused
CRIMINAL LAW - trial by judge alone - offence of incest in respect to a person under the age of 10 - prosecution must negate the exception of penetration for a proper medical purpose - no evidence suggesting relationship of step-father/step-child - charges not proved beyond reasonable doubt
CRIMINAL LAW - trial by judge alone - offence of sexual intercourse with a person above the age of 10 but under the age of 16 - offence of incest in respect of a person above the age of 10 but under the age of 16 - interpretation of a person "in loco parentis" - insufficient evidence to prove "loco parentis" - charges not proved beyond reasonable doubt
CRIMINAL LAW - trial by judge alone - offence of employing young person for pornographic purposes - definition of "employment" and "service" - ambiguity as to the extent the word "employ" intended to cover - depiction of a naked child by way of photograph is not an act of indecency in itself - charge not proved beyond reasonable doubt
CRIMINAL LAW - trial by judge alone - offence of possession of child pornography - definition of "child pornography" - insufficient depiction of any discernable representation with respect to four photographs - reasonable explanation provided with respect to three of the photographs - charge not proved beyond reasonable doubt
EVIDENCE - warnings concerning the complainant's evidence - delay in making complaints - Longman warning given - Evidence Act 1995 (Cth) s 165B - risk of "false" or "recovered" memories - reliability of complainant's evidence - uncharged acts not led for tendency or propensity purposes - evidence of uncharged acts does not have special confirmatory value towards events subject of the indictment - inconsistency in evidence between committal and trial does not necessarily suggest fabrication of genuine recollection
Supreme Court Act 1933 (ACT), s 68C
Evidence Act 1995 (Cth), ss 97, 98, 164, 165B
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
R v DF [2010] ACTSC 31 (15 April 2010)
R v E (1997) 96 A Crim R 489
S v R [1989] HCA 66; (1989) 168 CLR 266
R v CT [2001] ACTSC 65 (28 June 2001)
Bennet v Bennet [1879] 10 ChD 474
R v Adams [1935] HCA 62; (1935) 53 CLR 563
Beckwith v R (196) [1976] HCA 55; 135 CLR 569
Black's Law Dictionary: Definition of the Terms and Phrases of American v English Jurisprudence, Ancient and Modern, 5th Edition, 1979, West Publishing Co, St Paul.
1. On the first count on the indictment, the accused is guilty.
2. On the second count on the indictment, the accused is guilty.
3. On the third count on the indictment, the accused is not guilty.
4. On the fourth count on the indictment, the accused is not guilty.
5. On the fifth count on the indictment, the accused is not guilty.
6. On the sixth count on the indictment, the accused is not guilty.
7. On the seventh count on the indictment, the accused is not guilty.
8. On the eighth count on the indictment, the accused is not guilty.
9. On the ninth count on the indictment, the accused is not guilty.
1. On 24 August 2009, Henrik Forsti (the accused) was arraigned before me and pleaded not guilty to charges that:
... between the 1st day of February 1987 and the 31st day of December 1988 at Canberra in the Australian Capital Territory [he] committed an act of indecency upon a person, namely, [the complainant], who was under the age of 10 years.
AND FURTHER THAT between the 1st day of February 1987 and the 12th day of October 1989 at Canberra aforesaid [he] committed an act of indecency in the presence of a person, namely, [the complainant], who was under the age of 10 years.
AND FURTHER THAT between the 1st day of February 1987 and the 12th day of October 1989 at Canberra aforesaid [he] committed an act of indecency upon a person, namely, [the complainant], who was under the age of 10 years.
AND FURTHER THAT between the 11th day of October 1987 and the 12th day of October 1990 at Canberra aforesaid [he] engaged in sexual intercourse with a person, namely, [the complainant], who was under the age of 10 years, and who was, to his knowledge, his step-child.
AND IN THE ALTERNATIVE TO COUNT FOUR THAT between the 11th day of October 1987 and the 12th day of October 1990 at Canberra aforesaid [he] engaged in sexual intercourse with a person, namely, [the complainant], who was under the age of 10 years.
AND FURTHER THAT on or about the 26th day of October 1991 [he] engaged in sexual intercourse with a person, namely [the complainant], who was of the age of 10 years, but under the age of 16 years, and who was, to his knowledge, his step-child.
AND IN THE ALTERNATIVE TO COUNT SIX THAT on or about the 26th day of October 1991 [he] engaged in sexual intercourse with a person, namely [the complainant], who was of the age of 10 years, but under the age of 16 years.
AND FURTHER THAT between the 11th day of February 1987 and the 30th day of June 1992 at Canberra aforesaid [he] employed a person under the age of 16 years, namely, [the complainant], for the purpose of depicting by means of photographs [the complainant] as being engaged in an act of a sexual nature where the depiction of [the complainant] in those circumstances would offend a reasonable adult person.
AND FURTHER THAT on the 24th day of July 2008 at Canberra aforesaid [he] intentionally possessed child pornography.
During the course of the proceedings, the date on the ninth count was amended to 24 July 2007. The dates of the fourth and fifth counts were amended to between 16 September 1987 and 12 October 1990.
2. These are proceedings for a sexual offence under the Crimes Act 1900 (ACT) (Crimes Act). Subsections 40(1) and (4) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (Evidence (Miscellaneous Provisions) Act) provide:
(1) A person commits an offence if the person publishes, in relation to a sexual offence proceeding--
(a) the complainant's name; or
(b) protected identity information about the complainant; or
(c) a reference or allusion that discloses the complainant's identity; or
(d) a reference or allusion from which the complainant's identity might reasonably be inferred.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
...
(4) In this section:
protected identity information means information about, or allowing someone to find out, the private, business or official address, email address or telephone number of a person.
3. The charges relate to incidents that are alleged to have occurred between the accused and the complainant when the accused was in a relationship with the complainant's mother. That relationship commenced when the complainant was five years of age and ended when the complainant was 10 years of age. Publication of the complainant's mother's name would lead to an inference of the complainant's identity. I attach an appendix in which the names of the complainant and the complainant's mother are set out and I order that it not be published but be made available to the prosecution and the accused to be used by them for the purpose of these and any subsequent proceedings only.
4. Before the Court first allocated a date for the trial of these charges the accused elected to be tried by judge alone.
5. Section 68C of the Supreme Court Act 1933 (ACT) provides that a judge who tries a criminal proceeding without a jury may make any finding that could have been made by a jury as to the guilt of an accused person and such finding has the same effect as a verdict of a jury. My judgment in this proceeding is to include the principles of law that I apply and the findings of fact upon which I rely. Further, I must explain the reasoning process linking those matters so as to justify the verdict to which I come (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).
6. I must take into account the warnings that would be given to a jury, had this been a trial before that body. The prosecution and the defence put certain matters to me on this aspect and I refer to those matters in the course of these reasons.
7. There are certain general directions to which I have regard. They are that, as far as the conduct of the trial is concerned, I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until, at the conclusion of the hearing, the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.
8. The first count alleges an act of indecency upon the complainant. The count is time-framed when the complainant was between five and seven years of age. The complainant could not say whether the incident, the subject of the charge, took place before or after her sixth birthday. The complainant gave evidence that after showering with the accused and while she was naked, the accused moved his hand down to her vagina and stimulated her clitoris "about up to 10 minutes". "Indecent" means contrary to the ordinary standards of respectable people in the community. I consider the act deposed to by the complainant to be indecent.
9. The accused denies that such an act took place.
10. The second and third counts relate to an occasion that is time-framed when the complainant was between five and eight years of age. The complainant said that she was about six or seven years of age at the time. The complainant gave evidence that the accused masturbated to ejaculation before her and also at that time the complainant said she put her hand on the accused's penis and moved it up and down for a minute or two. The former constitutes the second count of an act of indecency in the presence of the complainant and the latter constitutes the third count of an act of indecency on the complainant. In both cases there can be no doubt that the act deposed to by the complainant is an indecent act.
11. The accused denies that either act took place.
12. The fourth and fifth counts relate to an occasion that is time-framed when the complainant was between six and nine years of age. The complainant says that the accused administered an enema by inserting a plastic tube in her anus and filling the tube with water. Section 92(b) of the Crimes Act 1900 (ACT) which applied at the relevant time provided:
... "sexual intercourse" means -
the penetration, to any extent, of the vagina or anus of a person by an object, being penetration carried out by another person, except where that penetration is carried out for a proper medical purpose or is otherwise authorised by law;
...
(cf s 50(b) of the Crimes Act which now applies)
13. In order to make out the element of sexual intercourse, the prosecution must establish beyond reasonable doubt that the act of penetration took place and that the accused intended that act for a purpose other than a proper medical purpose or as otherwise authorised by law.
14. The accused denies that the act, the subject of the charge, took place.
15. The fourth count further alleges that the act of sexual intercourse was with a person who was to his knowledge his step-child.
16. Section 92L(1) of the Crimes Act provided:
Incest and similar offences
(1) A person who engages in sexual intercourse with another person, being a person who is under the age of 10 years and who is, to the knowledge of the first-mentioned person, his or her lineal descendant, sister, half-sister, brother, half-brother or step-child, is guilty of an offence punishable, on conviction, by imprisonment for 20 years.
(cf s 62(1) of the Crimes Act which now applies)
17. Section 92L(7) of the Crimes Act provided:
(7) In this section, "step-child", in relation to a person, means a person in relation to whom the first-mentioned person stands in loco parentis.
18. The accused further denies the act took place and puts in issue the element of the offence that he stood in the place of a parent in relation to the complainant.
19. The fifth count is charged as an alternative count to count four in the event that the prosecution fails to prove that to the knowledge of the accused the complainant was his step-child.
20. The sixth and seventh counts relate to an occasion when the complainant was 10 years old. The complainant's evidence was that the accused engaged in an act of sexual intercourse by way of cunnilingus.
21. The accused denies that such an act took place.
22. The charges concerning this act are by way of alternative counts. As with the fourth count, the sixth count involves the additional allegation that the complainant was the accused's step-child.
23. The eighth and ninth counts relate to two rolls of undeveloped film that the police located in the accused's possession on the execution of a search warrant at his premises on 24 July 2007. When the rolls were developed by the police, one of the photographs depicted the complainant as a young girl lying on the floor with her legs apart and genital area exposed. Another photograph was a close up of her hand and genital area. A number of other photographs apparently taken at about the same time were of the complainant and others at the accused's premises at the time. A series of individual photographs seem to show flesh areas but lack definition as to what they depict.
24. The provision of the Crimes Act 1900 (ACT) which applied was then s 92NA. It provided:
Employment of young persons for pornographic purposes
92NA. (1) A person who employs or permits the employment, whether for reward or not, of a person who is under the age of 16 years (in this section referred to as the "young person") -
(a) to engage in an act of a sexual nature, or to be in the presence of another person who is engaged in an act of a sexual nature, being an act that would, in the circumstances, offend a reasonable adult person; or
(b) for the purpose of depicting or otherwise representing, by means of a film, photograph, drawing, audio tape, video tape or any other means, the young person as being engaged in, or as being in the presence of another person engaged in, an act of a sexual nature where the depiction or other representation of the young person in those circumstances would offend a reasonable adult person,
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
(2) In sub-section (1), "an act of a sexual nature" means sexual intercourse or an act of indecency.
25. There are two apparent difficulties in the features of the offence under s 92NA(1)(b) as that section applies to this case. One is whether the taking of the undeveloped photographs was a consequence of the accused "employing" the complainant, and the second is as to whether the photographs depicted the complainant as being engaged in an act of a sexual nature.
26. The photographs tendered in evidence were developed by the police. What was found to be in possession of the accused were the rolls of unprocessed film from which the photographs were developed by the police. It was those rolls of film that the police seized when they executed a search warrant on 24 July 2007.
27. Section 65 of the Crimes Act provides that it is an offence to intentionally possess child pornography. "Child pornography" is defined in s 64(5) of the Crimes Act:
(5) In this section:
child pornography means anything that represents -
(a) the sexual parts of a child; or
(b) a child engaged in an activity of a sexual nature; or
(c) someone else engaged in an activity of a sexual nature in the presence of a child;
substantially for the sexual arousal or sexual gratification of someone other than the child.
28. Apart from the issue of whether the use of a child in photographing that child is properly described as employment of the child, another issue that arises in this case is as to whether some of the developed photographs in a number of cases can fairly be said to be the representation of the sexual parts of a child as well as the further issue of whether the prosecution has proved beyond reasonable doubt, that the representation was for the sexual arousal or sexual gratification of someone other than the child. I deal with these matters in more detail later.
29. In early 1987, the accused and the complainant's mother commenced a relationship which ended in 1992. The relationship commenced through a "dating agency". The complainant's mother described it as a relationship of "boyfriend and girlfriend". Although they never lived together, it was a sexual relationship where they would go out together, stay over at each other's place and go away together sometimes. The complainant's mother lived in Latham, the accused lived in Kaleen.
30. The complainant's mother had two children from a marriage which had broken up in 1986. The complainant, who was five years old at the time, resided with her mother. Her brother, who was five years older, lived with their father.
31. The complainant alleged that during the course of the accused's relationship with her mother, the accused committed a number of sexual acts upon and in her presence. Some of these acts are the subject of counts one to seven. In addition, the complainant alleged a number of other acts and events of a sexual nature between her and the accused. These "uncharged acts' were put before me as relevant to the charges under consideration.
32. The allegations which form the subject of the charges before the Court were made by the complainant to her mother in January 2007 and then later in 2007 to the police. The length of time between the allegations of the conduct complained of, and the giving of evidence in respect of it, raises issues of the accuracy and reliability of the complainant's evidence concerning the events. It also gives rise to considerations concerning the forensic disadvantage in meeting the charges that the accused might suffer as a consequence.
Directions and warnings in sexual offence proceedings
33. The charges all relate to sexual offences. There are a number of directions concerning proceedings of this nature which I must take into account.
34. The complainant gave her evidence by way of audio visual link from a place other than the court room. Section 46 of the Evidence (Miscellaneous Provisions) Act requires that a jury be given a warning that an inference adverse to the accused should not be drawn from that fact.
35. Section 69 of the Evidence (Miscellaneous Provisions) Act provides that a judge must not give the jury any warning or suggestion to the effect that the law regards complainants to be an unreliable class of witnesses.
36. If evidence is given or a question asked of a witness which tends to suggest that no complaint was made about the alleged offence, or there was a delay in making a complaint, then a jury is to be given a warning in terms of s 71 of the Evidence (Miscellaneous Provisions) Act. Section 71(2) provides;
(2) The judge must--
(a) give the jury a warning to the effect that the absence of, or the delay in making, the complaint does not necessarily indicate that the allegation that the offence was committed is false; and
(b) tell the jury that there may be good reasons why a victim of a sexual offence may not make, or may hesitate in making, a complaint about the offence.
Note The Evidence Act 1971, s 76C (Evidence of complaint) was repealed by the Evidence (Miscellaneous Provisions) Amendment Act 2003. Section 76C abolished the common law rule that complaint evidence in a sexual offence matter was admissible for the purpose of supporting the complainant's credit (by showing the complainant's consistency). The common law is not revived by the repeal of s 76C (see Legislation Act, s 86).
1"> 37. Although questions were asked concerning the time of making the complaint, and suggestions were made as to the complainant's motives in making the complaint to her mother when she did, no issue was taken with the complainant's explanation given in the following passages of her evidence:
Now that [the activity the subject of count one] subsequently stopped, you say, after about 10 minutes. Did he say anything to you?---He said to me that, you know, that this was a special thing that we did between us, it was just between us, and if he told my - if I told my mum about it, she might get upset, and - and she quite often got upset, she - you know, she was quite fragile and he knew that, and he said to me something to the effect of "You don't want to make your mum upset so let's just keep this a secret between us".
...
And if I can just interrupt you there, when you say you felt he made the relationship special, what do you mean by that?---I think it was because we had this sort of secret activity that only he and I engaged in, and the way he was so adamant that we keep it away from my mother, it sort of made it seem more special, you know, secret and special, yes.
And when you talk about, "secret activity", what do you mean?---I mean just the incident I described before in the shower, the first incident when we had any sexual contact, and any ongoing stuff that occurred from that point on.
38. I take account of this evidence and the warning required by s 71(2).
39. Section 164 of the Evidence Act 1995 (Cth) (the Evidence Act) has abolished any requirement for corroboration in respect of the offences before the Court. Nor is it necessary to warn the jury that it is dangerous to act on uncorroborated evidence or given any warning to the same or similar effect.
40. Both the prosecution and the defence requested that I give what has become to be known as a Longman direction (Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79) (see also Crampton v The Queen (2000) 206 CLR 161 (Crampton)).
The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to "look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence" and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out [248], it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a "Longman warning" is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given.
42. Since Longman, s 165B(4) of the Evidence Act has been enacted to make it clear that the warning required by Longman must not suggest "that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay". (My emphasis.) Although Penfold J in R v DF [2010] ACTSC 31 (15 April 2010) expressed reservations as to the extent that the Evidence Act might be a "Territory law" for the purposes of the warnings required to be taken into account under s 68C of the Supreme Court Act, I consider that I can take into account the Longman warning and the qualification that s 165B(4) adds without denying the force of the warning.
43. The forensic disadvantage identified by the accused related generally to what was said to be the presumptive disadvantage of having to meet allegations made so long after the incidents that surrounding circumstances could not be tested against contradictory facts that may have been available had the allegations been made at an earlier time. I give specific consideration to the points made in the context of the specific incidents alleged in the counts on the indictment.
44. Counsel for the accused also asked that I give careful consideration to the circumstances of the complaint made in this case. The complainant said that she spoke to her mother about these matters in early January 2007:
And what was the content in which it came to be that you were speaking to your mother about these matters?---I think we were having a bit of a deep and meaningful conversation about our relationship, mostly to the effect that our relationship, the relationship with my mother is very good now, where it used to not be quite so good. And I remember we were reflecting on things that had happened in the past, in my childhood, and she was talking about her relationship with Mr Forsti and - and talking about how much she regretted that relationship. And it was in that context that it came, I came to tell her about the - the abuse.
So were you saying things to her that affirmed her regrets, as it were, in relation to having an association, a romantic association with Mr Forsti?---Not necessarily to affirm, but I suppose so, but I think what I did was implying that, yes it was a good idea to break up, so yes, I guess you could say yes.
Now in that conversation, did you talk to her about what occurred you say between yourself and Mr Forsti?---I haven't gone into specifics with my mother, mostly because I know it would upset her a lot. I think I've told her a limited amount of stuff about it, but - but nothing detailed.
Well what did you tell her?---I think I told her that he'd - he'd touched my vagina and that he'd inserted his fingers inside my vagina, but no more than that.
45. The complainant did not raise these matters with the police. It was as a consequence of the complainant's mother going to the Rape Crisis Centre that the matters came to their attention.
46. It was put that the matters said by the complainant to her mother were "an effort to please". I do not regard this as being so. Rather, the reluctance to involve the police and to keep to herself the matters that she had not spoken about for so long adds, in my assessment, a credibility to her account of events.
47. I must be careful to ensure that it is not a reasonable possibility that what the complainant says she now recalls is, as was put on the accused's behalf, an "unintentional confabulation". There is also the risk that what the complainant now says she recalls is a "false memory".
48. Examining the complainant's evidence in this light does not lead me to conclude that either is a reasonable possibility. I am satisfied that from the way the complainant gave her evidence and the detail that she was able to give, that she was honestly recounting her experiences. On my assessment of her evidence, she was not recalling matters by way of any "recovered memory". Rather, it was a matter of honest recall. This is not a case where her recall gives rise to the issue of whether what she recalled were true recovered memories or honestly experienced false memories (cf R v E (1997) 96 A Crim R 489).
49. It is plain from the above that I found the complainant to be a convincing witness. At the time that she gave her evidence before me she was aged 27. In 2008 she completed a Bachelor of Social Sciences majoring in Psychology and Philosophy.
50. She was not shaken in cross-examination. On behalf of the accused, it was put that her evidence gave an evolving amount of detail about some of the incidents. That circumstance is difficult to judge because very little of the evidence given as to the details of the various incidents was really challenged. By that I mean, other than an acknowledgment in cross-examination that the detail was being given for the first time, an explanation for this was not sought or a circumstance of why the detail was contradictory to any earlier statement that she had made was not elicited. Nevertheless, I must carefully scrutinise her evidence and take into account whether the matters extrinsic to her evidence can be said to be confirmed or otherwise.
51. It was also put on behalf of the accused that what was said to be remembered "may in fact be an attempt to make specific that which is undifferentiated in [the complainant's] recollection". That is not an impression I got from her evidence or from the way that she gave her evidence. In general, my impression was that she was not seeking to over-particularise the events that she described. I am, however, conscious of the length of time since these events may have occurred and the complainant's age at the time.
52. Another important aspect of my consideration of this matter is the impression that I formed of the complainant's mother. She struck me as an honest witness. She was extremely nervous in giving her evidence but I am satisfied that she did her best to give a true account. She was clearly upset at learning of these matters so long after their occurrence but I do not regard her as doing anything other than her best to give evidence of the context in which they might have occurred. I do not consider that she sought to tailor her evidence to give effect to any antipathy that she might have borne against the accused as a consequence of what seemed to be an acrimonious breakdown of their relationship.
53. On the other hand, I was not impressed by the accused's evidence. In so saying, I take into account that the accused was not obliged to give evidence, that he chose to do so and subjected himself to cross-examination. I also appreciate that because of the lapse of time, much of the accused's evidence had to be confined to general denials of the conduct alleged against him.
54. However, one thing did strike me. In his explanation of matters earlier denied in his interview with the police, I found him to be particularly unconvincing. His denial to police that he had ever photographed the complainant unclothed is, to my mind, quite inexplicable in light of what is depicted on the rolls of film seized by the police under the search warrant. Nor, in light of the obvious interest that the police had in investigating photographs taken of the complainant naked, does the accused's explanation that the police would not understand appear particularly plausible. Apart from denials to each of the matters put to him by the police, he only volunteered answers where it appeared to be plain to him that the police had evidence that he could not refute or explain. I regard the answers that he gave in the transcript of the record of interview in this light. Overall, I formed the view that where there was any conflict, I prefer the evidence of the complainant and her mother to that of the accused.
55. Those comments are by no means the end of my consideration of the matter. The defence took significant issue with the reliability that I might place on the complainant's evidence. That consideration, together with the complainant's age at the time of the alleged offences and the 20 years before the complainant raised these matters mean that I must carefully consider the complainant's evidence and give due heed to the warnings required to be given to a jury concerning it.
56. The complainant's evidence was that she remembered the first time that the accused initiated any kind of sexual contact. It occurred in the context of the accused "babysitting" her whilst her mother went to weight loss classes. She remembered those classes as being on a Tuesday night and that they took place at the Higgins Primary School. She said that the accused took her mother to those classes and returned to her mother's house to take care of her, and then returned with the complainant to pick up her mother.
57. As to the sexual contact that took place, her evidence was:
And do you remember that happening on one particular occasion?---Yes, I remember that the first - the first time he initiated any kind of sexual contact with me. I have a fairly vivid memory of that.
What was that, what did he do?---What happened was we - we went into the shower and he came in with me and we had a shower and he - he washed me with the soap, and then we got out of the shower and rather than putting our clothes on straight away, we went into the living room and he dried, dried me off with the towel in the living room, and then suggested that we didn't put our clothes on for a while and lay around naked. On this occasion he - he - we were lying on the couch, I was lying down on the couch naked while he was sitting on the couch upright and he started to touch me on my body, on - on my stomach, and then moved his hand down to my vagina and stimulated my clitoris and asked me whether I thought it was - how it felt.
And did you respond to that?---Yes, I do remember saying that it felt nice.
Can you recall how long that incident, or how long it went for?---I think it went for about 10 minutes. He would have been touching me, stroking my clitoris. I would have said it was about up to 10 minutes.
Now that subsequently stopped, you say, after about 10 minutes. Did he say anything to you?---He said to me that, you know, that this was a special thing that we did between us, it was just between us, and if he told my - if I told my mum about it, she might get upset, and - and she quite often got upset, she - you know, she was quite fragile and he knew that, and he said to me something to the effect of "You don't want to make your mum upset so let's just keep this a secret between us".
And I think earlier you said, first sexual contact, is that - - -?---Yes.
So is this instance the first time that he did something of a sexual nature to you?---It was definitely the first time he touched my vagina, yes. It was definitely the first sexual contact.
58. A critical aspect is the time when this event could have taken place. As I have said, the accused denied that any event of this nature took place at all. He also denied in evidence (and to the police) ever going to Higgins Primary School or that he took the complainant's mother to weight loss classes. He claimed to the police that he only took the complainant's mother to self-confidence classes in Civic where he and the complainant would wait for her. The passage of time since these events were alleged to have taken place means that any evidence to confirm or challenge the event is not available.
59. In the written submissions, counsel for the accused points out that it is essential that the prosecution establishes that the weight loss classes were at the Higgins Primary School. The taking of the complainant and her mother to Civic, as the accused alleges, would not allow the necessary time to be able to return to the complainant's mother's house for the event the subject of count one to have taken place. I accept that I should deal with the matter on that basis. I also accept that, because of the substantial time that has passed, the accused has the disadvantage of not now being able to point to evidence that might not support this claim.
60. The indictment alleges the event took place in the period 1 February 1987 to 31 December 1988. The complainant's evidence was that she could not say whether it was before or after her sixth birthday. That would place the event in the latter part of 1987.
61. The complainant's mother said that after she started her relationship with the accused, she went to "Easy Slim" weight loss classes on Tuesday nights at the Higgins Primary School. She said the classes started at 7:00 pm and went for about an hour. She said that the accused would look after the complainant and that he told her that he would shower the complainant. She thought the accused would cook or give the complainant a meal and he would buy takeaway sometimes. She described other courses that she attended including a "woman and assertiveness" course in Civic on Wednesday nights. There were other courses on other nights. I find that the weight loss classes took place at the time that the complainant said that it did and that her mother's evidence confirms the opportunity that the accused had to commit the offence charged in the first count.
62. I also accept the complainant's evidence that she did not discuss the name of the classes or their location with her mother.
63. There is a passage in the cross-examination of the complainant that the accused seeks to rely upon to challenge the reliability of the complainant. The passage is as follows:
Now in relation to the events of 1987, did you speak to your mother at all about what her routines were at that time?---No.
Are you sure about that?---No - yes I'm very sure, we - I - I haven't talked to her about that sort of stuff, I haven't talked about dates - I mean that's why I'm so patchy with dates, I - I don't - yes I - that's why I can't pinpoint all the things.
Well, for example, you have given evidence that on a particular day, being a Tuesday, your mother was in the habit at some point of time of going to weight loss classes?---That's correct.
Do you say that you were not told about that by your mother?---No, I remember that**. I mean it happened so often, I mean you know, you get babysat by someone for 2 years on a particular night, that's - that's not really something that you forget, even if you are young.**
So if your mother was to give evidence to that effect she'd be mistaken would she?---I couldn't say that, but I - that's what I believe is that it was a Tuesday night.
Well that wasn't what I intended to ask you but I withdraw the question. In relation to those classes, you also refer to them as Easy Slim classes?---That's correct.
[Emphasis added]
64. The written submission on behalf of the accused says this evidence is contrary to what the complainant's mother says and that the first event could not have happened in the context that the complainant asserts. In her evidence, the complainant's mother thought that the Easy Slim classes went on "until I reached my goal weight, which was I think about a year". I do not consider that this necessarily contradicts the complainant's account. Nor do I find the evidence of the complainant's mother that it was a year into the relationship that the accused began "staying over" as some sort of further contradiction of the complainant's account. The accused's babysitting of the complainant does not imply that he stayed over. It was also put in cross-examination that the complainant's evidence at committal was that the classes went for six months and that she could not be 100% sure as to how long they went for. I do not consider that this provides a definite contradiction but rather an impression supporting the timing of the event as the first of the babysitting episodes.
65. The true effect of the complainant's evidence on this topic is demonstrated by her answers to later questions in her cross-examination:
And you say that you have an independent recollection as of being 5 years old that she went to Easy Slim on a Tuesday night?---That's correct. I just remember that because I remember it was so many years that she did it for, you know, it was always a Tuesday night.
You're saying that - when did these Easy Slim classes start?---I believe that they started about 6 or 7 months after - or about 6 months after my mum started going out with Mr Forsti. I think my mother put on quite a bit of weight after I was born and I think she was trying to lose it. I think, you know, she'd started a new relationship, she wanted to look good.
So does that put the beginning of these classes into 1988?---I think it was the end of 1987.
And do you say that you have a recollection of the first time that your mother went to one of these classes?---I have a recollection of the first time that I was babysat by Mr Forsti on those classes when they began.
And you say that thereafter they went continuously, you said a moment ago, for several years?---I think it went for about 2 years, and I think - my recollection was that she did other courses outside of Easy Slim that were at night time. I think she did one on self assertiveness I think, and I think she went back to Easy Slim at one point.
But those other classes, they were to your recollection running at the same time as the Easy Slim classes?---I don't know that they ran on a Tuesday night, but I knew that there were at night time. I remember one of them.
Well, I asked that question slightly differently, it's not quite the question that I meant to ask. Were they running in the same period of time as the Easy Slim classes?---No.
So the Easy Slim classes finished and then they started, is that right?---I don't know, I think there might have been a gap of time between - I'm not 100 % sure of when she stopped the Easy Slim and started doing other courses.
66. I do not take the complainant as saying anything more than that her recollection of the Easy Slim classes was that they took place on a Tuesday night and that she associates that with the babysitting that the accused did whilst her mother attended various courses and those courses extended over a period which she thought was about two years. I do not see the complainant's evidence concerning these matters as self-contradictory or contradicted by her mother's evidence even though the period of time might, in the complainant's mind, be longer than what her mother thought. What is significant is that on both the complainant's and her mother's account, the accused had the opportunity to take advantage of the complainant. Unless I form a view that overall I cannot rely upon the complainant's evidence then I am satisfied beyond reasonable doubt that the accused acted in the way that the complainant said that he did.
67. The charges constituted by these counts arise out of the one event. The complainant had given evidence that after the first event that there was ongoing sexual activity between her and the accused:
What was that?---There was a lot of stuff that happened. Generally what would happen on the nights that he babysat me, from that point on, from the first time, every night - every time that he babysat me, we would end up in the shower and from that point on either he would stimulate me in the shower or I would see him masturbate in the shower. And after the showering, after we'd gotten out, after he towelled me off, we often would have - he would often stimulate my vagina while we were sitting on the couch. More specifically I can recall incidences where he had a camera, it was a video camera of about - I would say about 20 centimetres, about 15-20 centimetres by about 10, and he would take film of me.
Now, you gave evidence earlier about him masturbating in the shower?---Yes.
Did that occur anywhere else other than in the shower?---I can remember the first time it occurred was on the couch in my mother's house in the living room. So I remember he was the first person to tell me about sex and how it worked, and how babies were made, and I remember being sort of intrigued about the process of ejaculation, and I can remember him wanting to show me specifically how it worked.
And can you recall occasion when this occurred on the couch?---Yes, that was the first time it occurred.
And was that after the incident you've described after the shower when he touched you on the vagina?---It was - I think it was maybe not on the same time that he first touched my vagina. I think it was maybe the next time or certainly not very long in-between the first time when he babysit me and touched me for the first time, and when he masturbated in front of me. So I think I would have been around about 6 or 7.
All right. And you indicated it happened on the couch. What can you recall happening?---I can recall him touching his penis, stroking it with his hand until he got an erection, and I can remember him moving his hand up and down his penis, and at one point I did touch him as well. I - I - held his penis and attempted to masturbate him as well - - -
How did that occur?---How long?
Now how did it occur?---I put my hand around his penis and moved it up and down - I think I only did it for about a minute or two.
Did he ask you to do that?---I can't recall if he asked me to do it or if I did it of my own volition.
Did he tell you to stop?---No.
And whilst you were touching his penis in the way you describe, did he ejaculate?---I stopped touching his penis after about a minute or two and then he - he took over, because I think I was finding it difficult. And then he finished masturbating himself till he climaxed.
69. The initial masturbation by the accused in the complainant's presence is the act of indecency relied upon in the second count. The touching of the accused's penis by the complainant is the act of indecency upon the complainant relied upon in the third count.
70. These counts, like count one, have an expansive time-frame. The complainant's evidence puts it close to the first event and she says that she was six or seven years old at the time.
71. I do not agree with the contention advanced by the accused that the complainant's evidence permits the possibility that this event occurred at the same time as the event that is the subject of the allegation in count one. I do, however, consider that it was a separate occasion in respect of which the two acts that are said to constitute counts two and three took place.
72. It is, of course, necessary that I be satisfied beyond reasonable doubt that the specific acts, the subject matter of these counts, took place on the occasion charged (see S v R [1989] HCA 66; (1989) 168 CLR 266 per Toohey J at [18]).
73. As the extract of the complainant's evidence set out above shows, the occasion involved an act of masturbation by the accused, the touching of the accused's penis by the complainant and the further masturbation by the accused in the complainant's presence. I do not regard the accused's acts as being anything other than incidents in the one transaction. If they took place, then they should properly be regarded as the act charged as count two on the indictment. That is, they constitute an act of indecency in the presence of the complainant. I do not consider that these same actions can fairly be also said to constitute an act of indecency on the complainant. In any event, the act, the subject of count three, as particularised by the prosecution in opening was that the accused asked the complainant to touch his penis which she did with her hand. The complainant did not give evidence of any such request. I find that the prosecution has not made out count three on the indictment.
74. The complainant's evidence was quite clear as to the event having taken place. It was an event that was the first time that the accused had masturbated in front of the complainant and was not very long after the first time that the accused babysat her. Unless I form a view that overall the complainant's evidence is unreliable, the charge in count two would be made out.
75. The charges constituted by these counts also arise out of the one event. That event was originally time-framed to have occurred after the complainant's sixth birthday and to cover a period between when she was six and eight years old. As will be seen, the indictment was amended to include a time when the complainant was five years old.
76. The event, the subject of the charge, was described by the complainant:
Other things that I can recall. I can recall - what else - I can recall another incident, one that really stands out in my mind, one time when - I think as a child I can remember once getting incredibly constipated to a point where I couldn't - I couldn't stand up straight, I was bent over. And I remember my mother had to take me to the hospital because she thought I was dying. And I remember they gave me an enema and that was all fine in the end. But I remember after that he wanted - they gave me a laxative sorry, but afterwards he wanted to give me an enema, and I can specifically remember being in the living room of my mother's house. And I can remember him wanting to give me an enema. I'd had no idea what it was - what it was, what it was about, but he stuck a clear - it was like a yellow plastic tube inside my bottom, inside my - my anus, and filled it with water. And I remember thinking it was weird at the time because he - he put a - and why it sticks in my mind, because he put a towel on the floor in the living room and watched all the water, wanted all the - watched all the water coming out with any sort of faeces that came out as well.
Where did this take place?---That took place in the living room of my mother's house.
And what did he actually do, you gave a general description. What did you do, and what did he do?---He - I remember him saying he - you know he wanted to do this for me because he thought it'd be better, you know, because I had been constipated and he thought it'd make me better. And I remember him getting me to bend - bend on the ground, I was on all fours, and he inserted this tube inside my anus and then got a jug of water and filled up the tube and then after about a minute or two took the tube out and watched. And then I crouched over a towel that was lying on the floor in the living room, and he watched it - watched all the water and any faeces come out.
How long after you had been to the doctor for your constipation, did he do this?---I think it would have been maybe a couple of days after. I remember it was a school day that that happened where I did get constipated and they had to take me to the hospital, because I remember my mum had to take the day off work and remember I was getting ready to go to school. So it would, and it would have been - maybe it would have been the week after when he had an opportunity to babysit me again. But it certainly wasn't very long - it wasn't very long between those two times.
And were you naked at the time he did this?---Yes, I was.
77. The complainant was not sure when this event occurred. She was "pretty sure" that it was not at the start of the accused's relationship with her mother. She did not mention the event to her mother.
78. The records of Calvary Hospital were subpoenaed by the accused. I was informed by the prosecutor, without objection by the defence, that the records showed that on 16 September 1987 the complainant attended at the Emergency Department in respect of a complaint of abdominal pain. As a consequence, the prosecution sought, and was permitted, to amend the start date for the period over which this offence might have occurred to 16 September 1987. No other evidence was given to link the incident to which the complainant deposed to any other hospital attendance. If the charge is to be made out then the framework has been laid for me to accept that it was the occasion of her attendance at Calvary Hospital that was the precursor to the event that forms the charge in the indictment. At that time she was under six years of age.
79. Before the amendment was made, the complainant had been cross-examined as to when this incident occurred. She had said that she believed that she was about eight years of age and that she was taken to the Calvary Hospital before going to school. Because of this evidence, the prosecution did not seek to amend the later date as to when this event might have occurred.
80. I do not consider that the prosecution can be justified in leaving the issue at large in this way. By amending the charge to the earlier date, I consider that the prosecution is seeking to particularise the charge to take into account the complainant's evidence of her attendance at the hospital. The only marker as to when the event might have happened is that evidence given by the complainant and the support in respect of that evidence is provided by the hospital records. However, those records do not support the complainant's belief that she was eight when the event occurred. As far as the complainant's mother was concerned, nothing was ever said to her about the incident by either the complainant or the accused. If the complainant is recalling an event when she was only five years old and it was an event so out of the ordinary, I should be especially careful about drawing a conclusion adverse to the accused even if I accept the complainant's evidence that an event of this nature occurred.
81. Despite the complainant's belief as to her age at the time of that event, because of the hospital records I can only regard this event as having occurred in the very early part of her mother's relationship with the accused. That circumstance also has implications for the aspect in count four that alleges that the complainant was, to the accused's knowledge, his step-child. That is so because in the early stages of the relationship between the accused and the complainant's mother, it would be difficult to think that the relationship of step-father/step-child could have been assumed by the accused at that preliminary stage. In any event, there was no evidence that it had.
82. However, there is a more fundamental aspect of the charges in counts four and five that the prosecution has failed to make out even if the complainant's evidence as to the event occurring is accepted. The definition of sexual intercourse, as I have earlier noted, contains the exception of penetration carried out for a proper medical purpose. Although expressed as an exception, it remains the fact that the prosecution must prove beyond reasonable doubt that the accused's intention in performing the act of penetration was to do so other than for a proper medical purpose.
83. It was the complainant's evidence that the accused "wanted to do this for me because he thought it'd be better, you know, because I had been constipated and he thought it'd make me better". Further, the following passage in her cross-examination does not negate the possibility that there may have been a proper medical purpose:
Now when Mr Forsti did this, what were your feelings about it at the time, not now, but at the time, were you taken aback by what he was doing?---I remember thinking it was really unusual.
And, but not sexual?---No I don't remember feeling specifically that it was sexual. I just remember feeling, I think why its sticks in my memory so much it that it was just so unusual, I remember feeling that it was unusual at the time.
84. Suspicion or the possibility that the accused had an ulterior motive is, in my view, not sufficient to discharge the onus on the prosecution to prove beyond reasonable doubt that the accused intended an act of penetration other than for a proper medical purpose.
85. For this reason alone, there must be a verdict of acquittal in respect of counts four and five.
86. Counts six and seven relate to an event that the complainant said took place at the accused's house near the end of the accused's relationship with the complainant's mother. The event is described by the complainant:
Is there any other stuff that you can recall, to use your words?---I can remember another incident where Mr Forsti performed oral sex on me in the living room of his house.
...
And do you recall what year that was?---I remember she broke up with him in 1992. So I remember it was the beginning, towards the beginning of that year, because I'd, I remember coming back from Summer Camp, school camp, so that would have been the beginning of Year 5 I think, or Year 4. It would have been the beginning of Year 4. I remember coming back from camp and she told me that she'd ended the relationship with him. So I remember this event of oral sex occurring not long before their breakup. And this event sticks in my mind because I remember it was the first time I'd ever seen the Rocky Horror Picture Show, and that was playing on the television in the background. I think it was a Sunday night, for some reason, because I think my mother went to bed quite early, because she had to work the next day. And I can remember it was quite warm - that's why I can tell it was sort of towards the end of that year. I was just in a nightie. My mother had gone to bed, and I remember we were engaging - I remember he was touching me on the couch of the living room, of his living room in Kaleen, and touching my vagina. And I remember him suggesting that he stimulate my vagina with his tongue. And I remember he suggested I straddle his face. So I was sitting - he was sitting upright on the couch, and I had my legs wrapped around his shoulders and around his head. And I was wearing my nightie without my underpants, and I remember him starting to stimulate my clitoris with his tongue.
And - - -?---And this seemed to go - sorry.
No, my apologies to interrupt. Sorry, [the complainant], keep going?---I was going to say, I remember this went on for a while, because I remember my mother - I was - we were worried that my mother would wake up. And I remember stopping at different points and then starting again. So I think in total, the time that he did it would have been maybe about 10, 15 minutes, but maybe broken up over different parts of time. Because I remember at one point, my mum got up and went to the toilet in the middle. But I remember always that the Rocky Horror Picture Show was in the background. And I think it stuck in my mind, or that event stuck in my mind, knowing that that was a film that was on in the background, because it was such a weird film. And I didn't quite understand it at the time as a child. So it really stuck in my mind.
87. The date of this event is particularised as on or about 26 October 1991. At that date the complainant was 10 years old. The 26 October 1991 is a date on which the Prime Television Network showed the Rocky Horror Picture Show on its network. The Television Program Guide in 'The Canberra Times', the local newspaper, shows that the program had a start time of 8.30 pm and was programmed for two hours and 10 minutes.
88. I take the occasion for this event, if it occurred, to be the screening of 26 October 1991. There was no evidence of earlier screenings between the complainant's tenth birthday and this date. Prime Television did not have the rights again until 2001.
89. The complainant placed this event just before the complainant's mother and the accused broke up "for the first time" before getting together again for "one or two months". The complainant's mother said that her relationship with the accused ended in early 1992. She was not asked about an earlier break-up.
90. The complainant was cross-examined as to whether the door to the bedroom that her mother had retired to was open partly ("5 to 10 centimetres") or half open as she said at committal. She agreed that her evidence before me as to the interruption by her mother was the first time that she had mentioned her mother coming out during the incident.
91. Most significantly, the complainant said that she thought the incident occurred on a Sunday night because her mother went to bed early for work the next day. The prosecution did not ask the complainant's mother any questions about this event but in cross-examination she said that she recalled a day when the Rocky Horror Picture Show was on and that the complainant watched it. She thought that it was shown on a week night, that she was tired and went to bed early. I am not satisfied beyond reasonable doubt that the event described by the complainant took place on the occasion charged.
92. In light of that finding, it is not necessary for me to do so but I note that count six requires proof of an additional element to those elements required to make out count five, namely that the complainant was, to the accused's knowledge, his step-child.
93. As I have noted, the Crimes Act at that time defined step-child in relation to a person as another person who stands "in loco parentis". That expression, in the context of s92L of the Crimes Act, was considered by Crispin J in R v CT [2001] ACTSC 65 (28 June 2001). I adopt what his Honour said was the meaning of the phrase:
what is the meaning of the expression "a person in loco parentis"?
I cannot do better than refer to the definition of it given by Lord Eldon. . . . Lord Eldon says it is a person "meaning to put himself in loco parentis, in the situation of the person described as the lawful father of the child." Upon that Lord Cottenham observes, "but this definition must, I conceive, be considered as applicable to those parental offices and duties to which the subject in question has reference, namely, to the office and duty of the parent to make provision for the child. The offices and duties of a parent are infinitely various, some having no connection whatever with making provision for a child; and it would be most illogical, from the mere exercise of any such offices or duties by one not the father, to infer an intention of such person to assume also the duty of providing for the child".
So that a person in loco parentis means a person taking upon himself the duty of a father of a child to make a provision for that child.
- Bennet v Bennet was decided more than one hundred and twenty years ago in the context of proceedings by a mother to recover monies from her son's estate and I do not accept that the assumption of a duty to make financial provision must be proven if a child is to be regarded as a step-child for the purposes of s 92L. Criminal liability of the kind referred to in that section should not depend upon financial support but upon the offender's relationship with the child. It is the betrayal of trust by a person to whom the child was entitled to look for nurture, protection and innocent affection that makes offences of this kind so grave. In this context I think that the phrase, "in loco parentis" means nothing more than that the accused was living with and fulfilling a parental role in relation to the child in question. A person may have been fulfilling such a role because he or she was married to or maintaining a de facto relationship with one of the child's parents, though in my view, that is not strictly necessary. The decisive question is not the nature of the accused's relationship with the parent but the nature of his or her relationship with the child.
94. The general evidence of the complainant's mother as to the nature of the relationship between the accused and the complainant was:
What sort of relationship did you observe?---Well it was a close relationship and it was like a fatherly relationship.
Did [the complainant] appear from your observations to get on well with
Mr Forsti?---Yes at first she did, yes.
And from your observations did Mr Forsti appear to get on well with [the complainant]?---He did, yes.
Did Mr Forsti take an interest in what [the complainant] was doing?---Yes, he did.
In respect of her school activities?---School activities, yes.
Sporting activities?---Well yes he - we got her enrolled in gymnastics, yes.
Would he take an interest in her gymnastics?---He did at first, but then [the complainant] didn't want to go anymore, so.
Did you take her to school?---No.
Did you ever pick her up from school?---No.
Did you pay for any books or school fees?---No.
Did you make any contribution to the house?---No.
Where she lived?---No.
Did you ever buy any food for the house?---No.
Did you ever buy her clothing?---No.
Did you ever take her out shopping for clothing?---No.
Did you clean the house?---No.
Did you maintain the garden?---No.
Did you go to any school functions that [the complainant] was involved with?---I believe I went to one with [the complainant's mother] that [the complainant] was in.
And do you recall what that was?---No.
Did you go to parent teacher nights?---No.
Did you discipline [the complainant]?---No.
Did you go on holidays with them as a family?---We did, yes.
How many times during the five years or so that you were in the relationship?---Probably a couple of times. Probably twice.
Now I'll come to one of those. Was one of those at Batemans Bay?---Correct, yes.
Do you remember where the other occasions was or were?---No.
Did you pay for the holidays?---We shared the expenses.
So there as a tallying up was there and you paid separately?---Yes.
For your expenses and - did [the complainant's mother] pay for her and [the complainant's] expenses?---Yes.
96. The accused's evidence on this aspect was not significantly challenged in cross-examination and the evidence elicited from the complainant's mother did not essentially contradict the position put by the accused.
97. In these circumstances, I cannot be satisfied beyond reasonable doubt in respect of the element of count six that the complainant was to the knowledge of the accused, his step-child.
98. These charges relate to two sets of photographs. The first set comprises three photographs of the complainant. These were found by police at the accused's premises when they executed a search warrant on 30 August 2007. Three developed photographs were found in an envelope. They depict the complainant dressed, in one case, in what she says is the accused's shirt and work boots and her own gym tights. Another shows her wearing a different work shirt and tights. The third shows her bare-chested wearing only the gym tights. In each case the complainant can be described as posing and pulling faces for the camera. I do not regard these photographs as representing the complainant as being engaged in an act of a sexual nature or as constituting child pornography.
99. The complainant says that these photos were taken when her mother was not present. Their generally risqué nature gives some support to complainant's evidence of the accused and she doing things of which no doubt her mother would not have approved but of which she was never told.
100. The next set of photographs is more disturbing. They came from the undeveloped rolls of film seized under the search warrant. They comprise 15 images numbered four to 19.
101. Images four to eight were not able to be identified by the complainant. The images are significantly blurred but could be said to depict something which is flesh coloured. The complainant thought that two might be of the accused's penis and one which appeared to show a rash, cream and the corner of the complainant's vagina. To my view, they do not depict anything that does not require some particular esoteric knowledge to comprehend what is shown. The evidence of the accused of what he was photographing does not assist in determining what the photographs objectively represent. I am unable to regard the images insofar as the objective viewer is concerned, as necessarily having a sexual connotation.
102. Images nine, 10 and 11 are of a quite different quality and are clearly sexual in nature. One shows a frontal view of what the complainant says is her hand and vagina depicting the rash from the thrush that she said she had over a significant period of time. Image 10 is a photo which the complainant thought was taken from behind showing her bottom and vagina. Image 11 shows a vagina and anus with a similar pattern of red rash and some white substance over the areas. I will later refer to them as the "thrush photos".
103. Image 12 shows the complainant standing naked with her hands on her hips. The complainant thought she was about eight at the time and that the photo had been taken in her mother's house. Image 13 shows the complainant naked, lying down with her legs spread apart. These are clearly sexual images from which I can, and do, infer prurient interest on the part of the photographer.
104. Image 16 appears to have been taken at the same time as image 13 and shows the complainant in a similar but less provocative pose mostly covered by a yellow blanket. The complainant identified the place shown in the photograph as the accused's living room.
105. Image 14 shows the complainant naked except for her underpants. The complainant said that it showed that it was taken in the accused's bedroom in his house. It appears to have been taken at a different time to the other images.
106. Image 15 shows the complainant and her mother, which the complainant believed was outside the accused's house. Image 17 showed two girls in the living room of the accused's house. The complainant said that they were daughters of one of the accused's friends. Image 18 was a facial image and the complainant said that it was "a picture of me attempting to look cute, I think". Image 19 shows the complainant in the backyard of the accused's house wearing the same clothing as she wore in image 15.
107. Whilst the complainant could identify where some of the photographs were taken, she could not recall the specific time when they were taken nor could she recall them being taken.
108. The accused initially emphatically denied to the police that he had taken any photographs of the complainant naked. When shown the photographs, the accused was unwilling to acknowledge that he took them but in his evidence in this trial admitted doing so.
109. His explanation for the photographs that depicted the complainant naked was that he was making a photographic record of the progress of the thrush from which the complainant suffered. Although he said the complainant's mother was aware of him making the record, the complainant's mother firmly rejected knowing this.
110. In the accused's interview with police, the following was put:
Q104 I'll just read you part of [the complainant's] statement and I'll give you the opportunity to make comments, if you wish. She's discussing a period in about - in the late eighties, where she - she'd just come out of the shower and she says that you were drying her. She says, "I remember that after he was drying me, I was sitting on the couch in the living room of the premises". She remembers that it was a cold night and when you finished drying her, "He put the towel - he put the towel to one - to - to the side and I sat on the couch naked. I don't remember what he said to me, but I distinctly remember him placing one of his hands on my vagina. I remember that he rubbed his finger around and over my clitoris. I don't remember this first occasion lasting very long. I remember him saying words to the effect of, 'Does this feel nice?' I don't remember exactly what I said but I am sure it was to the effect of, 'Yes'." What can you say about that?
A104 No. Incorrect.
Q105 Can you tell me how - what - how is it incorrect?
A105 There was a time - [the complainant's mother] suffered from thrush and [the complainant] had thrush, as well. And I can remember on one or two occasions that I applied some cream externally, all right? To her vagina. Which, for some reason, [the complainant's mother] just didn't do and the doctor supplied - I think the doctor - or [the complainant's mother] had been given a script from the doctor, because [the complainant's mother] had taken [the complainant] to the doctor and so, consequently, they had the script for the medicine and I don't know why, I think it might have been [the complainant's mother] that said, "Can you apply the cream?" It's - and it is the only time that I was anywhere - - -
Q106 Well, as I said to you earlier, I've got a statement from [the complainant] and from [the complainant's mother] and both of them discuss that same issue as well, in relation to the thrush and the cream and they quite distinctly remember that it - well, [the complainant] distinctly remembers this was a different occasion to when you put the cream - when you put the cream on her.
A106 No, no. Only during the time that [the complainant] had severe thrush.
111. The complainant's mother confirmed the accused's involvement in treating the complainant's condition by the accused applying cream to her vagina. The evidence of the complainant's mother was:
At some point, as I also understand it, during this period 1987 to 1992, [the complainant] had a medical problem?---Yes, she had thrush.
Can you recall how that first came to your attention?---When, after I'd been showering her I just, she had this terrible red-raw rash in between her legs and it was very painful for her, you know. So I went to a skin specialist about it.
And as a result of your attending this skin specialist was medication prescribed? ---Yes, a cream.
And what was the purposes of the cream?---It was to clear up the terrible rash.
And was it to be applied to the rash area?---Yes it was.
Can you recall what frequency it was to be applied?---Well, every day after her shower.
Now who applied that cream?---Well, I did, mainly after her shower. And then, when Mr Forsti came over he wanted to do it.
Did he do it?---He did, yes.
What were the circumstances surrounding him coming to put the cream on?---Well it happened, like it started on the Tuesday night. When I was pushed for time, you know, and he would shower [the complainant] and put it on then. And on one occasion he did it while I was present, I saw him doing it.
And how did he do it, from that time that you observed him?---He just put it, like you know, on the tops of her thighs. He didn't touch her in any other area.
And where was the rash predominantly on [the complainant's] body?---On her thighs, the tops of her thighs.
112. I accept the evidence of the complainant's mother that she was never told of the accused wishing to make a photographic record. I consider in doing so, that it may have, in the accused's mind, justified him in taking some of the photographs of the complainant's anus and vagina, although I strongly suspect his motives. In any event, it is only the images in the three photographs that I have called the "thrush photos" to which this can possibly refer.
113. Image 12 could have been taken at a different time to the "thrush photos" if the complainant's evidence that it was taken at her mother's house is accepted.
114. Image 13, on the complainant's evidence, appears to have been taken at the accused's house, although the accused says that it was not. In any event, it is a clear sexual image and I reject the accused's evidence that it was taken as part of any record of the complainant's thrush. Image 14 is less provocative but also does not appear connected with any purported recording of the complainant's thrush. I am satisfied beyond reasonable doubt that the complainant was posed by the accused in these photographs and that was not for the purpose of providing a record of any treatment for the thrush that the complainant suffered from.
115. The issue then, at least in respect of images 12, 13 and 14, is whether the prosecution can overcome the two difficulties that I earlier identified at [25] in making out the charge in count eight.
116. Section 92NA of the Crimes Act proscribes the act of a person who "employs or permits the employment, whether for reward or not, of a person who is under the age of 16 years ...". (See [24])
117. Section 92NA was enacted by the Crimes (Amendment) Ordinance 1987 (ACT) which took effect on 11 February 1987 and remained in force until 20 December 2000. Prior to the enactment of s 92NA, the ordinance contained s 92N. That section provided:
Employment of young person for prostitution
92N. A person who employs, or permits to be employed, a person who is under the age of 16 years for the purposes of prostitution is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
118. There is nothing to be gained from the drafting instructions from the Commonwealth Attorney-General's Department in respect of s 92NA. The Macquarie Dictionary 1987, revised edition, defined the following:
"Employment" - 1. The act of employing. 2. The state of being employed; employ; services. 3. That on which one is employed; work occupation or business.
"Employ" - 1. To use the service of a person, to have or keep in one's service; keep busy or at work. 2. To make use of (an instrument); use; apply. 3. To occupy or devote (time energies etc).
119. The prosecution sought to say that the definition of "employ" was the use of the complainant's services that the complainant, as the subject, was "used". However, no consideration appears to have been given to the "service" aspect of the definition. That is, the section seems to me to incorporate the notion that some obligation needs to be undertaken by the subject by way of "service" whether under contract or by way of duty or obligation to fulfil the requirement that there be a use of the service of a person so as to constitute employment.
120. It may be noted that the present s 64 of the Crimes Act, which replaced s 92NA and its renumbered equivalent, makes it an offence if a person "uses, offers or procures" a child for the production of child pornography. That seems to me to indicate a limitation in the notion of employ in the earlier provision which the replacement provision sought to overcome.
121. In any event, there is, to my mind, a clear ambiguity as to the extent that the expression "employs" is intended to cover. That is exacerbated by the expression "whether for reward or not". It seems to me that the purpose of the provision is satisfied by ensuring that those persons who, in some way, press into service a person under 16 years of age in making the depictions proscribed by s 92NA as criminally responsible for such actions. In my view, the section does not require that the use of an unwitting subject should also necessarily be the subject of criminal sanction (cf R v Adams [1935] HCA 62; (1935) 53 CLR 563 at 567-8; Beckwith v R (196) [1976] HCA 55; 135 CLR 569 at 576). I would limit the ambit of the section to those who, in some way, engage for employment the person under 16 years rather than merely make use of that person.
122. Accordingly, I am not satisfied that the accused was a person who could be said to have employed the complainant so as to be guilty of an offence under s 92NA of the Crimes Act.
123. Further, I am not satisfied that the photographs, the subject of count eight, can be said to depict the complainant "as being engaged in an act of a sexual nature". I referred earlier to the definition in s 92NA(2) of "an act of a sexual nature" being "sexual intercourse or an act of indecency". A number of the photographs as I have described them show the complainant naked. She is not depicted as being engaged in any acts of a sexual nature. The prosecution referred to a number of unreported cases where the taking of a photograph of a naked child without more has been held to be an act of indecency. That does not mean that the depiction of a naked child by way of photography is an act of indecency in itself or that the photograph can be said to be a depiction or representation of an act of indecency. Whether or not it can be said to be so in respect of images 12 and 13 I do not need to decide because of my finding that the accused did not "employ" the complainant.
124. For these reasons, I consider that the prosecution has not made out the charge in count eight of the indictment.
125. Count nine stands on a somewhat different footing. The restrictions that I have found applicable to the material upon which the prosecution relies to make out count eight do not apply to the charge the subject of count nine. For the purposes of s 65 of the Crimes Act, child pornography is defined in s 64(5) as anything that represents the sexual parts of a child.
126. I have indicated in discussing count eight that images four to eight are not a sufficient depiction of any discernable representation. It seems to me to also be difficult if not well nigh impossible, without the accused's detailed evidence as to how he took the photographs, to suggest such vague images could be substantially for the sexual arousal or sexual gratification of the accused or some other person. It does, however, trouble me that the accused could identify what those images represent and describe in detail how he took the photographs.
127. The images nine, 10, 11, 12, 13 and 14, showing the complainant naked, are clear representations of her sexual parts.
128. With the exception of the images 12, 13 and 14 (see [103] and [105]), I think that I must give effect to the explanation put forward by the accused that the images were taken as a record of the complainant's thrush. I have a heavy suspicion that this explanation is only a pretext for a possible salacious use by the accused of those images. As far as all the images are concerned there has been no demonstration of such use. In light of what the accused said by way of explanation, and the fact that the negatives remained undeveloped until seized by the police, I am not satisfied beyond reasonable doubt that any of the images, including those that are clear representations of the complainant's sexual parts, were necessarily taken for his or some other person's sexual arousal or sexual gratification.
129. The charges the subject of counts eight and nine have not been made out and the accused is acquitted in respect of those charges.
130. In the course of her evidence, the complainant gave evidence of other acts evincing a sexual interest by the accused in the complainant. That evidence was not the subject of any objection by the accused although much of it disclosed criminal offences which were not the subject of the charges before me.
131. As it turned out, much of this evidence could only have relevance to the acts charged as counts six and seven on the indictment. In the case of the act charged as count one, that was said to be the first "initiation of sexual contact". Counts two and three related to the first occasion where the complainant alleged that the accused masturbated in front of her. As to this incident, according to the complainant it was, "certainly not very long in-between the first time when he babysat me and touched me for the first time".
132. As far as counts four and five are concerned, my findings about the incident set out above put it as occurring when the complainant was under six years of age; in other words, at a very early stage in the relationship between the accused and the complainant's mother.
133. In my view, the event to which the uncharged acts can only have particular relevance is the event that gives rise to the charges contained in counts six and seven on the indictment.
134. I set out the particular allegations in the complainant's evidence that the prosecution says it relies upon:
What was that?---There was a lot of stuff that happened. Generally what would happen on the nights that he babysat me, from that point on, from the first time, every night - every time that he babysat me, we would end up in the shower and from that point on either he would stimulate me in the shower or I would see him masturbate in the shower. And after the showering, after we'd gotten out, after he towelled me off, we often would have - he would often stimulate my vagina while we were sitting on the couch. More specifically I can recall incidences where he had a camera, it was a video camera of about - I would say about 20 centimetres, about 15-20 centimetres by about 10, and he would take film of me.
I'm sorry to interrupt you, when you say, "take film of you", can you please indicate to his Honour what you mean by taking film of him?---Yes, certainly. I mean that there would - he would - I would take - footage of me either stimulating myself or he would take footage of himself stimulating my vagina, or footage of me dancing around naked in front of the camera.
Where would that occur?---These incidences occurred in the lounge room of my mother's house in Latham.
Did he ever show you those videos?---Yes, he did. We often would watch them after he filmed them.
...
Now did he take any other photographs of you?---He did. He often - he liked to take a lot of photographs of us in general. But he would often take photographs when we were alone, when he was babysitting me on different occasions.
What were the nature of those photographs, can you recall?---Usually they were of me doing silly poses for the camera. Often they were of a sexual nature. Either me - usually the pictures of me stimulating myself or exposing different parts of my body or doing different poses.
When you say different parts of your body, what do you mean?---I mean more specifically my vagina and bottom, around that area.
Now did anything else or something similar occur? You described earlier in evidence, before I interrupted you, about other activities that you and Mr Forsti had, you described the video and other photographs, did anything else occur?---Generally, it was a more generalised pattern of sexual activity. So there were things that occurred on a fairly regular basis. Things that occurred generally would be if I was sitting on his lap in the living room of my mother's house while they were talking and if she went out of the room he would often touch me - touch my vagina underneath either my skirt or my shorts. So he would stick his hands, his fingers inside my vagina, on the outside of my vagina.
...
Any other activity?---Other activity occurred during - well when I was young I used to sleep in the same bed as my mother and Mr Forsti and often on these occasions he would stick his finger inside my vagina while my mother was asleep. My mother's quite a deep sleeper so she didn't actually notice a lot of this stuff happening. There was one occasion where I can recall specifically when we were on holiday. We were staying in a caravan in Batemans Bay and I can remember sleeping in the same bed as my mother and Mr Forsti and I can remember him sticking his little finger inside my vagina. And I remember this and then trying to stick two fingers at one time. I remember this event specifically because I remember it hurting and I remember just wishing that he would stop.
...
I had a recurrent case of Thrush from about the time when I was about six, which ceased at about the time I was about 10. And during this period of time, I needed to get, or a doctor prescribed me some cream that I needed to put on the area every night before I went to bed. And I remember Henrik was always very keen to do this. I remember that - I can remember a particular argument where my - Henrik got upset with my mother because she said that she didn't want him to do, to put the cream on my vagina anymore. And then he got upset about that, so then he continued doing it. But anyway, on these occasions when he would put the cream on my vagina, it wouldn't - he would also stimulate my clitoris, either during the process of putting it on the outside, so on the labia, or on the outside of my vagina. There would also be times where he would stimulate my clitoris.
...
Now, are there any other examples of "other stuff", to use your description?---I can - I'm just trying to think - I can recall him also, on occasions when we would, after showering when he would, we would be in the living room at my mother's house on the couch, he would also use a vibrator to stimulate my clitoris - it never was inserted in my vagina, but he used to use it on the outside of my vagina.
135. As well, the complainant described an incident at Lake Eucumbene when the complainant, her mother and the accused were holidaying where the accused took photographs of them when naked. She also described being shown pornographic material in magazines and movies. These events do not seem to amount to criminal conduct but, if they occurred, indicate the accused's sexual interest in the complainant.
136. The prosecution submitted that the uncharged acts which the complainant deposed showed that the accused had acted in a sexual way towards her and that demonstrated a sexual interest in her which he gave effect to by committing the acts constituting the charges on the indictment. That submission, in the context of the counts charged in the indictment, shows the limitations upon the use that I might make of the evidence given by the complainant. That is not to downplay her evidence but rather to say that the evidence led of the "uncharged acts" does not have any special confirmatory value that the particular events that are the subject of the counts one to five on the indictment took place nor do they have anything other than marginal relevance to the charges the subject of counts eight and nine on the indictment. Whilst they do provide background and explanation of the relationship between the complainant and the accused, the evidence was not apparently led for tendency or propensity purposes. I must not, and do not, use it to reason that the accused is the sort of person who might commit the offences charged. Nor do I have regard to the evidence as in any way substituting for the specific activity which is the subject of a particular charge.
137. As far as the event comprising counts six and seven is concerned, the evidence set out in [37] might help to explain why the complainant did not draw her mother's attention to whatever was happening at the time that she says the accused was engaged in the act that is the subject of those counts. However, it does little to assist me in determining whether the act described by the complainant took place. In any event, I have found that the prosecution have not established that the offence took place on the occasion charged.
138. On behalf of the accused it was submitted that an examination of the details of these allegations of uncharged acts showed that I should have significant reservations about the complainant's reliability.
139. That was said to be so particularly in relation to events said to have taken place by reference to the weight loss classes as well as allegations concerning the complainant sleeping in the same bed as the accused and the complainant's mother.
140. There is a degree of conformity between the complainant's mother and the complainant as to the weight loss classes and their location. I do not accept the accused's denial that the only classes in respect of which the complainant's mother was involved were self-improvement classes. The evidence of the accused of this aspect seems to me to be opportunistic relating to incidents in Civic which may have related to the self-improvement classes. The evidence of the complainant's mother was confirmatory of the classes having taken place at a much nearer location to the mother's house.
141. As far as the events described by the complainant relating to her sleeping in the same bed with the accused and her mother are concerned, the frequency of doing so was not entirely supported by the complainant's mother. The complainant described this as a regular event and that on the majority of occasions the accused would sexually assault her.
142. The complainant's mother said that her daughter slept in the same bed with her and the accused for some time. The complainant's mother said that it was at the accused's suggestion and that she thought it stopped after a few months because she thought the bed was too crowded and she was unable to sleep. Nevertheless the mother's evidence to an extent confirms the occurrence of this circumstance.
143. The complainant's evidence that the accused masturbated in the shower in front of her many times was also criticised.
144. In cross-examination, the complainant gave the following evidence:
Now in relation to the events concerning him masturbating in the shower, you've given evidence in relation to that at some length yesterday. You say, and correct me if I'm wrong, that there were regular occurrences where he masturbated to the point of ejaculation in front of you in the shower, is that right?---That's correct.
...
And you say this happened repeatedly?---Yes.
And you went further yesterday and said you were actually encouraging him to do this?---Yes that's correct.
Do you remember telling the committal court that this may have happened only once?---No.
Do you remember saying this at page 16 in-chief? You said, "That there were a couple of occasions at your memory that there was just a couple of specific occasions."
I'll perhaps go back a bit to establish some context:
"Would he do anything else in the shower?---I do remember a couple of occasions in which he masturbated in front of me in the shower.
Sorry what was that?---I do remember a couple of occasions when he masturbated in front of me in the shower.
Can you tell me about those occasions?---I can't remember specific details but I can remember his touching himself to the point of ejaculation. I can't really think of anything specific about it
You said there were a couple of occasions, is that your memory that there were just a couple of specific occasions?---Not specific occasions, I mean, I can remember it happening so it might have, maybe it only happened once but it seemed like something that happened in my memory. It seems like it was something that happened a few times.
But you say you remembered it happening once, at least once?---Yes."
Do you remember that evidence?---I can't remember giving it but obviously if it's written on paper I did.
Well is it your evidence today that it happened once or many times?---My evidence is that it happened many times.
Now in relation to your encouragement of him, who was the first person that you told about that, in relation to masturbating in the shower?---I think the first time I mentioned it to anyone was yesterday.
So in your evidence yesterday it was the first time that you've offered up to anybody that you're actually encouraging him to do this?---Yes.
145. No explanation was elicited from the complainant as to any apparent inconsistency as to her position on this matter and I am not prepared to assume that her elaboration of this matter is not a genuine recollection.
146. These matters concerning the complainant's evidence show a firming up of aspects of her evidence but I do not consider that they indicate that she is fabricating either intentionally or unintentionally her genuine recollection of the events concerning the accused.
147. As appears from the foregoing, I am satisfied beyond reasonable doubt that the accused is guilty of counts one and two on the indictment.
148. I find the accused not guilty in respect of counts three to nine.
I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Solicitor for the prosecution: Director of Public Prosecutions (ACT)
R
Forsti [2010] ACTSC 85
(1998) 197 CLR 250
(1989) 168 CLR 79
(2000) 206 CLR 161
(1989) 168 CLR 266
(1935) 53 CLR 563