R v Taupe

JUDGMENT 1Abbie White went to the police in 2010. She claimed that her stepfather had sexually assaulted her regularly when she was a girl. It started in 1996 when she was 8 and finished in 2004 just before she turned 16. 2The police made contact with Peter Taupe who had been Abbie White's stepfather. He was interviewed by them and agreed that he had sexually assaulted her. The police charged Peter Taupe with the sexual assaults which Abbie White had told them about. The matter was referred to the Office of the Director of Public Prosecutions and a Crown Prosecutor settled an indictment representing 16 of the assaults Abbie White had told the police about. 3The prosecution and the defence agreed on a trial without a jury and the indictment was presented before me on 27 November 2012. 4Despite his admissions to the police, Peter Taupe pleaded not guilty to each of the charges in the indictment. His admissions did not specify any dates and they were clear to some extent about what he did and did not do during the sexual assaults. He was also fairly clear about how old Abbie White was when he started assaulting her. 5On the other hand, Abbie White claimed the assaults started much earlier and were more serious. In addition she was unable to specify particular dates when she was assaulted. The best she could do was to say they happened close to certain events or over certain periods of time. Each of the charges in the indictment therefore refers to a particular month or series of months. 6So the issues in this case were focused around whether Abbie White could be sure that anything at all happened during the particular period claimed in each charge and whether the assaults were as serious as she claimed they were. 7It becomes obvious why the parties chose to conduct this case before a judge without a jury. The prejudice to an accused conducting such a defence before a jury would have been overwhelming. 8This case will illustrate how frustrating the processes of the criminal law must be for genuine victims of sexual assault. But it will also illustrate how important a role the criminal law plays in protecting the rights of persons charged with serious crimes, even persons who have defiled the innocent. Everyone is entitled to the protection of their rights afforded by the criminal law, not just the completely innocent. 9There are certain legal issues which it is convenient to refer to at the outset because the submissions in the case were based upon those legal issues and they are also relevant to my findings. 10Obviously Mr Taupe, like any person in the community, is presumed innocent. The responsibility or onus is on the prosecution to prove him guilty. Before I can find him guilty of any of the offences contained in the indictment, I must be satisfied of his guilt beyond reasonable doubt. 11Abbie White was the principal witness called by the prosecution. There were no other eye witnesses to the events which she specifically claimed had occurred. Because the prosecution case is based exclusively on my accepting Abbie White, I must exercise caution before I find the Peter Taupe guilty. I have to be satisfied beyond reasonable doubt that Abbie White is both an honest and accurate witness in the account she has given before I can find Mr Taupe guilty. I must examine the evidence of Abbie White very carefully in order to satisfy myself that I can safely act upon that evidence to the standard required. 12The prosecution called evidence not only of the events which made their way into the indictment in the form of charges, but of other sexual assaults surrounding those events. That other evidence was admitted for the purpose of placing Abbie White's evidence of the particular acts which the prosecution relied upon into a realistic context. It avoids artificiality or unreality in the presentation of her evidence of the particular assaults on the indictment. I must be careful not to use the evidence of the other acts as establishing any tendency on the part of Mr Taupe to commit the offences which are charged or of that type. I must not of course substitute the evidence of the other acts for the evidence of the specific offences which the prosecution must rely upon to prove its case. Nor must I, of course, reason that because Mr Taupe may have done something wrong on another occasion, he must have done so on the occasions claimed in the indictment. 13I have referred just now to tendency evidence. The prosecution relied upon the admissions made by Mr Taupe in his interview with the police as what the Evidence Act 1995 (NSW) calls tendency evidence. Before I could use the evidence in the way which the prosecution invites me to, I must make two findings beyond reasonable doubt. First, I must be satisfied beyond reasonable doubt that the acts claimed by the prosecution to amount to tendency in fact occurred. If I am so satisfied beyond reasonable doubt, then I must ask myself whether from the acts which I have found proved, I can conclude beyond reasonable doubt that Mr Taupe had the tendency that the prosecution claims. If I am so satisfied of both those matters then I may use the tendency relied upon by the prosecution in considering whether or not Peter Taupe committed the offences which are charged in the indictment. 14Although I referred to 16 events which made their way into the indictment, the indictment in fact contains 20 counts. That is because there are a number of alternatives to primary counts. I must of course be careful that I do not regard the availability of any alternative count as an invitation to compromise any verdict which I may be otherwise considering. 15Mr Taupe himself did not give evidence in the proceedings. He of course, I repeat, bears no onus of proof. He is innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that he is guilty of one or more of the offences charged. He is therefore entitled to say nothing and to make the prosecution prove his guilt beyond reasonable doubt. It follows that Mr Taupe's exercise of his right not to give evidence cannot be used against him in any way. It cannot amount to an admission of guilt. I cannot use it as a basis for any other inference unfavourable to him. I cannot use it to fill any gaps that I might think exist in the prosecution case. It cannot strengthen the prosecution case or in anyway assist the prosecution to prove its case beyond reasonable doubt. 16Because there are so many charges in the indictment I must consider this question: if I found that Abbie White's evidence on one or more counts was in some way unreliable, what impact does such a finding have when I am considering other counts? The answer to that question has been provided by the Court of Criminal Appeal in the case named R v Markuleski [2001] NSWCCA 290; 125 A Crim R 186 over [259] to [263]. If I entertain a reasonable doubt concerning the untruthfulness or unreliability of Abbie White's evidence in relation to one or more counts, I must take that finding into account in assessing the truthfulness or reliability of her evidence generally. 17The claimed sexual abuse extended over some period of time. It was claimed to have commenced in 1996 and it was not until 2010 that Abbie White approached the police. I must heed the warning provided for by s 294 of the Criminal Procedure Act 1986 (NSW) that the absence of complaint, or delay in complaining, does not necessarily indicate that the allegation that the offence was committed is false. I must bear in mind that there may be good reasons why the victim of a sexual assault may hesitate in making or refraining from making a complaint about a sexual assault. 18Both parties in this case were represented by very competent junior counsel. Mr CC Patrick was briefed by the Director of Public Prosecutions as the Crown Prosecutor. Ms B O'Reilly was retained on behalf of Mr Taupe as his defence counsel. Both counsel have been of enormous assistance to me in their competent conduct of the trial and in their written and oral submissions. 19Mr Patrick called Abbie White as his primary witness. He also called Detective Senior Constable [name withheld] as the police officer in charge of the case. In addition he called Mary Brown, a person to whom Abbie White complained about what she said had been going on. He also called Abbie White's mother, Susan White. 20Ms O'Reilly tendered some evidence as exhibits in her client's case but called no witnesses. The fact that she called no witnesses I regard in the same way as the fact that she did not call her client to give evidence. Her client is presumed innocent and no adverse conclusion can be drawn against him by the fact that he elects, through his counsel, not to call any witnesses in his case. 21Mr Patrick tendered the DVD of the record of interview between the police and Peter Taupe and a photograph depicting the lounge room of a particular house where Abbie White and her family were living at a particular time. 22Ms O'Reilly tendered two photographs depicting members of the family including Abbie White at particular times and a bundle of notes which were made either by Abbie White or by her mother as part of the process whereby Abbie White attempted to recollect what had happened to her and when. 23I think the first important finding that I should make is about Abbie White as a witness. I took careful note of the way she gave evidence, of her demeanour in court, of the content of her answers and the kind of answers she gave. My observations, which I had noted down during the course of her evidence, included these. She was a very careful witness. She was clear about what she knew and did not know and was frank when confronted by evidence which apparently contradicted what she said. She was not defensive. She made distinctions between what she could and could not remember. She was a thoughtful witness and I detected no evasion or prevarication in the way that she gave evidence. A number of times I noted that in giving her answers she was calm and clear. 24Mr Patrick made a submission about Abbie White's evidence which I will set out. In [3] of his written submissions (which were marked for identification 13) he said the following - "It is submitted that the complainant is a truthful and reliable witness who has done her best to give an honest account of the events that occurred to her as a child. In assessing the complainant's evidence it should be remembered that she gave evidence in Court detailing a lengthy history of abuse at the hands of the accused. The complainant was then cross examined thoroughly and professionally by the defence counsel. This process of giving evidence was a testing one but which presented the complainant in a positive light. She did not evade questions, she did not seek to cover up if she had no memory of events, her answers were consistent between evidence in chief and cross examination and she demonstrated a clear memory of the events she was referring to. In particular the complainant demonstrated a very strong memory of the offences as she got older." I largely accept what the Crown Prosecutor has said in that submission. I will refer later to her memory and specifically of what it was for. In particular I adopt Mr Patrick's submission about the cross-examination. It was thorough, persistent and very competent. 25Subject to matters which I will come to shortly, I accept Abbie White as a truthful and, to the extent that she was able to be, a reliable witness. She was a very impressive person who gave her evidence, as I said, in a calm and clear way, particularly given what she was giving evidence about and the thorough cross-examination which she underwent. 26As I have said, I have been very much assisted by the submissions of both counsel. It is very important to note in this regard that Ms O'Reilly made it clear both at the commencement of the case and in her written and oral submissions that "while it is acknowledged that criminal misconduct has been committed by the accused, we deny that the complainant's account of when the conduct occurred, where it occurred and precisely what occurred is flawed in the way identified in the defence closing submissions." Although there appears to be a double negative in that sentence it is obvious to me that the three important issues were when conduct occurred, where it occurred and what had occurred. 27It was submitted that Ms White's evidence was flawed in particular ways. Ms O'Reilly focused on a particular process by which Abbie White recollected the events. When she first went to the police on 25 July 2010 the police officer very sensibly told her to put together a time line of what had happened to her and then to come back to see the police to be interviewed formally. Ms White did this over a day or a weekend with her mother. The process of this occurring was the subject of a good deal of cross-examination. Abbie White made it clear consistently that her mother contributed nothing to what had happened to Abbie White so far as the sexual assaults were concerned. That must make sense because it is not claimed that Mrs White was a witness. But what Abbie White did make clear was that Mrs White had assisted her daughter with the gathering of collateral information such as photographs, certificates and documents which would assist Abbie White in doing just what the police officer had asked her to do, namely, to put together a time line. Ms O'Reilly submitted that the evidence of Abbie White was "not direct recollection but reconstructed memories derived" from the occasion when she spent the time with her mother. Ms O'Reilly submitted that Mrs White "played a pivotal and central role in the reconstruction of the memories, she not only took notes she also contributed dates and other things. The only clear evidence regarding the source of dates is not that the complainant unilaterally remembers those dates, but that her mother assisted her in obtaining them." Ms O'Reilly drew attention to answers given by Abbie White in cross-examination to the effect that, other than two particular events identified by reference to [place] and Ben's birthday, Abbie White had no memory of when the particular incidents occurred. Ms O'Reilly pointed out that Abbie White acknowledged that she had no independent recollection of dates without her mother's help. 28It must be very difficult for a young woman who needs to go about recollecting events, such as Abbie White was doing, pinpointing exactly when and where they occurred. In cases such as this, the allegations are that they occurred over an extended number of years and over a time when the person was very young and growing into teenage years. In my opinion Abbie White was given good advice by Detective Senior Constable [name withheld] to put together a time line. How else, I ask rhetorically, would she be able to place the particulars in time. 29I accept Abbie White's evidence that her mother made no contribution to her recollection of what had happened so far as the sexual assaults were concerned. 30This is an area where I have to exercise caution because of the issues which have been raised by Ms O'Reilly. First is the fact that Abbie White is the principal and exclusive source of evidence regarding the particular allegations which are contained in the indictment. Secondly, she has gone through a process of recollecting which involves another person. It seems to me that a person may have a clear recollection of what happened plus some other accompanying circumstance but may not recollect the date at all. It would be reasonable in such a case for a person to check the date of the circumstance. For example, a person may remember an event occurring at a time of a widely publicised event. An example occurred in this case. During the record of interview Mr Taupe was asked questions about when he was at his brother's unit. It was suggested to him that it was the year 2000. His own recollection was that it was 2001, because he recollected discussing with his brother in the unit the events which occurred in the United States on 11 September 2001. I merely use that as a convenient example. A complainant in a sexual assault case may remember clearly an assault that occurred, including its details. The complainant may also remember a particular event occurring at the same time. It would not raise a doubt in my mind if the complainant had checked a newspaper regarding the approximate date of when the assault had occurred by reference to the account given in the newspaper of the well publicised accompanying circumstance. Nevertheless, I have to be very careful about what emerged from the joint conference between Abbie White and her mother. 31I also have to be careful because of two other points made by Ms O'Reilly. Ms O'Reilly pointed out that often Abbie White makes reference to what are called memory triggers; that is events identified by Abbie White which enable her to recollect when a particular assault occurred. Ms O'Reilly pointed out that the evidence of those memory triggers is not sufficiently detailed in the prosecution case. In addition she argued that I must exercise care in the interaction between those triggers and the very events which Abbie White claims occurred to her. Ms O'Reilly argued that I might entertain some doubt about whether or not the triggers, whatever they were, "do accurately and reliably relate to the memory that the complainant testifies having". I have to be careful as to "whether or not the triggers have consolidated a memory that would otherwise be uncertain (thereby influencing the memory to an unacceptable degree)." 32Ms O'Reilly submitted that Abbie White had lied about a particular issue. The issue was the first use of the word "labia" to describe part of her genitals in the evidence. In Ms O'Reilly's written submissions (which became marked for identification 14) she pointed to some inconsistency in the evidence about when the word was first used. She argued that Abbie White "was not being truthful with the Court about this aspect of her evidence." Ms O'Reilly argued that Abbie White had a motive for avoiding attributing the first use of the word to her mother, rather than to the police officer. 33I do not accept that submission. This was an example of where Abbie White, once confronted by apparently contradictory evidence, made what seemed to me to be a frank acknowledgment accompanied by an explanation. I detected no sense whatsoever either in her evidence or in the way that she was presenting it that she was trying to manipulate the impression that she was giving and avoid attributing more reliance to her mother. Nor do I put any weight on the submission advanced by Ms O'Reilly that Abbie White was more fluent and forthright in her evidence on the second day of the trial than the first day. 34In addition, I do not accept the submission that there is anything untoward in the descriptions of each count being very similar. Ms O'Reilly argued that in some of her evidence the answers were "almost rote" and that there was "little or no variation between the complaints, in her evidence she said that he touched her vaginal area, parted the labia and penetrated her." 35I do not accept that that submission reduces the weight of Abbie White's evidence. This is because it seemed both from a description by Mr Taupe himself, in what he acknowledged he had done, and in Abbie White's own evidence that much of the offending behaviour of Peter Taupe was consistent. There was little or no variation except, as Abbie White acknowledged, as she got older when the nature of the offending behaviour seemed to escalate. 36I do not accept that there is any serious inconsistency between the statements given by Abbie White to the police and her evidence in court. Ms O'Reilly argued that Abbie White was "unable in her evidence to give details that she had given in depth in her police statement." They were significant details, Ms O'Reilly argued. It is one thing for a police statement to be taken, as this one was, over several days in a room in a police station. It is another thing for an account to be given without the assistance of those statements in the witness box under oath or affirmation and under cross-examination over several days. 37So far as the record of interview given by Mr Taupe to the police is concerned, I accept the admissions which he made which are against his interest. The admissions are consistent with him sexually assaulting his stepdaughter. I am satisfied beyond reasonable doubt that the admissions are true and I am satisfied beyond reasonable doubt that the admissions amount to proof of a tendency to touch Abbie White's vagina. 38In addition, the admissions support Abbie White's account that she was sexually assaulted. They do not necessarily support her account of when and where those assaults occurred but I am of the opinion that the admissions support Abbie White's account that on occasions she was digitally penetrated by Peter Taupe. 39Although Mr Taupe denies in his interview any behaviour which amounted to penetrating Abbie White's vagina with his finger, he acknowledged that on two occasions he had "tried to penetrate but she said it hurts and I stopped." I do not have to accept Mr Taupe's account in its entirety. I accept his admissions against interest. I think that he is being defensive about the extent to which more serious conduct such as penetration occurred and on how many times. His admissions however about his attempts at penetration accompanied by pain on the part of the victim of those attempts is clearly consistent, in my opinion, with penetration to the extent required by law to amount to sexual intercourse. I accept that this account given in his interview was generally, as Mr Patrick described it, vague and imprecise. I am not sure whether that is because he was being defensive about the extent of his behaviour or whether he had blocked out some of the behaviour. He acknowledged during the interview that he was seeing a counsellor about his behaviour. 40I accept Mr Patrick's submission about the occasion during the course of the trial when Abbie White acknowledged that she had a conversation with her mother outside the Court about a particular topic she was being cross-examined about. Mr Patrick acknowledged, in [31] of his written submissions, "that whilst she should not have spoken to her mother the complainant admitted her error and it is submitted that no adverse inference should be drawn in relation to the complainant's actions." I did not get the impression that Abbie White was having any more conversations with people outside the courtroom, or overnight, greater than the ones which she readily acknowledged. 41In light of those submissions I turn now to consider the specific counts and the evidence on those counts. 42Counts 1 and 2 claim that Mr Taupe indecently assaulted Abbie White between 1 April 1996 and 30 September 1996. In evidence-in-chief Abbie White said, so far as count 1 was concerned, that she was "roughly eight" years old. She said, so far as the weather was concerned, that "it was cold or cool". She acknowledged in cross-examination that her memory of 1996 was "very wobbly" and "very shaky" as to the year. She said that count 2 occurred roughly a month or so after count 1 and it was "still cold" and "late winter". Abbie White acknowledged in cross-examination that so far as the earlier counts were concerned she had possibly mixed up the years and that she had provided very general descriptions when she was young. 43In a case where it was made clear by Ms O'Reilly that the dates when events occurred was an important issue in the case, I am not satisfied beyond reasonable doubt that the events described by Abbie White as occurring in counts 1 and 2 occurred when she said that they did. 44Counts 3 and 4 are in the alternative. They are said to have occurred between 1 November 1996 and 28 February 1997. Count 3 is an allegation of sexual intercourse and the alternative count 4 is an allegation of an indecent assault. In evidence-in-chief Abbie White said that she could not say "for certain" whether the event was in "January or February of '97", or "December '97". So far as her age was concerned, she said that she "would have been nine, nineish". The counts claim that she was eight years of age. In cross-examination she acknowledged, so far as those counts were concerned, that she had guessed the age from a photograph. 45I am not satisfied beyond reasonable doubt that the prosecution has discharged its responsibility of proving that what Abbie White said occurred, did occur during the period in question alleged in counts 3 and 4. 46Counts 5 and 6 are also in the alternative. They are said to have occurred between 1 May 1997 and 31 October 1997. Abbie White claimed to have been 9 years old. In the evidence-in-chief Abbie White said that the event occurred in "winter" and that she remembered it "being cold". That evidence was no doubt consistent with the claim of dates between 1 May and 31 October 1997. However, in cross-examination she said that 9 years was "roughly the age from my memory". She repeated that assertion. She acknowledged that she could have been 10 years old and that her memory was not totally clear. 47Given that evidence I am not satisfied beyond reasonable doubt that the event which Abbie White said occurred - and referred to in counts 5 and 6 - in fact occurred between the dates the prosecution claimed. 48The prosecution acknowledged, through Mr Patrick, that there is no evidence for me to find Mr Taupe guilty of either counts 7 or 8. 49Counts 9 and 10 allege sexual intercourse, or an alternative of an indecent assault, occurring between 1 October 1998 and 30 October 1998. That range of dates was chosen because of a reference in the evidence to the assault coinciding with Mr Taupe watching on television a car racing event at Bathurst. In evidence-in-chief Abbie White referred to her still playing basketball to year 5; she believed to the end of year 5. She said that she "would have been 11". The charge in fact claims that she was 10. She said further in evidence-in-chief: "I believe this was '98, around, I believe it was around [place]". 50Ms O'Reilly cross-examined Abbie White about what Ms O'Reilly claimed were inconsistent accounts given by her of her behaviour during the assault. In evidence Abbie White said that she flinched. However in her statement she said that she did not move. She acknowledged in cross-examination that one of them was not true and she also acknowledged that her memories had changed over time and that there had been some blurring or meshing of the memories. She acknowledged that it was a bit confusing for her in the witness box under pressure. However on the other hand she has a distinct memory of whom she was playing with at that particular time. 51I was very nearly so convinced of the account as to find Mr Taupe guilty of one of these charges. However, I had some reservations about her acknowledgement that there had been some blurring or meshing of memories and that her memories had been tangled to a degree. But of most significance is the fact that the prosecution correctly called evidence that there were, in fact, two car races in Bathurst in 1998; one was on 4 October 1998, the other on 15 November 1998. 52The count in the indictment claimed that the offences occurred between 1 October and 30 October 1998. I therefore cannot be satisfied beyond reasonable doubt, in a case where it is made clear by the defence that dates are an important issue, that the account given by Abbie White did not relate to the car race which occurred in Bathurst on 15 November 1998. In addition, as I say, I have some reservations about other answers which she gave in cross-examination. I am therefore not satisfied beyond reasonable doubt that Mr Taupe is guilty of the counts which are contained in counts 9 and 10 of the indictment. 53Count 11 is an allegation of sexual intercourse when Abbie White was 10 years old. (All the sexual intercourse allegations, I should add, refer to digital penetration.) Count 11 claims that this offence occurred between 1 January 1999 and 30 January 1999. In her evidence-in-chief regarding count 11 Abbie White was asked by Mr Patrick whether "after the Bathurst races, do you recall any other instances occurring in the years that followed?" Her answer was, "I remember any 1999, in January, early 99 - uhm - sorry -". However in cross-examination on this topic, Abbie White acknowledged that it was the pyjamas that she was wearing at the time which were the only feature which she was able to attribute to that occasion and that it could possibly have occurred at another time. She also acknowledged that when giving evidence she was confused and that the details of one incident may have blurred with others. 54I am not satisfied beyond reasonable doubt that the event which Abbie White claimed occurred during the time alleged in count 11 occurred then. 55Count 12 alleges that Peter Taupe sexually assaulted Abbie White by digital penetration between 1 March 2000 and 30 June 2000 at [place]. The significance of [place] was that it was the time when Mr Taupe had moved out of the home he occupied with Abbie White and her mother and other children and had moved into a flat with his brother. The allegation, as I said, focuses on the period from 1 March to 30 June 2000. In her evidence-in-chief Abbie White said that Mr Taupe had moved out "roughly in 2000" to live with his brother in the [place] flat. She added that she would say that it was autumn, it was not hot or cold and she would say that it was before her birthday. 56Count 13 - which I will consider at the same time - is related in the sense that it is said to have occurred when Mr Taupe was living outside the family home, still with his brother, but this time in [place]. It is said to have occurred between 1 May and 30 September 2000. So far as the time was concerned, Abbie White's evidence was that it occurred "a few months later" than the events in count 12 and that it occurred in winter 2000 "roughly in the middle of winter". 57However in this regard I take into account the answer given by Mr Taupe in his record of interview when asked about the events which were said to have occurred around autumn 2000. He was asked by the police officer whether he had separated from Abbie White's mother in 2000 which was the year of the Olympics. His answer was - and it was an answer to question 108 - "No I think it was, I think it was 2001 and the reason I say that was because I remember distinctly that I was sittin' on the, on the lounge having breakfast in the morning when the 9/11 thing come through and the house that my brother and I were sharing and yeah, that come through on the news. We thought it was a movie." He acknowledged, of course, that was September 2001. 58I accept what Mr Taupe said about that event and that - together with the vague descriptions by Abbie White of when counts 12 and 13 occurred - means that I am not satisfied beyond reasonable doubt that the sexual assaults which are alleged to have occurred in those counts did in fact occur at the time claimed. 59I will move now to count 15 which is a claim of sexual intercourse between 1 December and 31 December 2000. Abbie White's evidence was that it was "around Christmas time" and that it was "Christmas of 2000" but she went on to say that "I can't say if it was Christmas. I remember it was roughly around the festive season." 60Similarly with count 16, which is another sexual assault also alleged to have occurred between 1 December and 31 December 2000, she said that it was "around Christmas". Those two offences are specifically pleaded to have occurred within a period of 31 days. Once again Ms O'Reilly has made it clear that the period of time during which any offences have occurred is a very important aspect of the case. 61I cannot be satisfied beyond reasonable doubt that an account such as "around Christmas" and "roughly around the festive season" satisfy me that the events, the subject of those counts, occurred at the time when they are alleged. 62I move now to count 18 which is an allegation of sexual intercourse between 1 April 2002 and 30 September 2002. One event of significance in that year was the death of Abbie White's grandmother on 18 May 2003. She recalled that her grandmother had a stroke in January of that year. Mrs White - Susan White, her mother, who was called to give evidence - said that her mother had had Alzheimer's for some 5 years but did not mention a stroke in January of that year. The best evidence of when the events in count 18 occurred was given in evidence-in-chief when Abbie White said that it was "sort of cool. So, I'm going to say winter-ish." 63I cannot be satisfied beyond reasonable doubt that that description of the time can prove that the events the subject of count 18 occurred when claimed. 64Count 19 concerns a claim of sexual intercourse which occurred between 1 December and 31 December 2003, once again a period of 31 days. Abbie White remembers that she was 15 and they had moved to a suburb of [place] named [place]. The best evidence she was able to give of when that event occurred was "in summer months, December". She repeated in evidence-in-chief "December, the summer months". 65Once again, given the nature of the defence that the periods in time are important, I cannot be satisfied beyond reasonable doubt, with that general description of the period of time, that the events which are the subject of count 19 did, in fact, occur between 1 December and 31 December 2003. 66I return now to counts 14, 17 and 20. All three of those claimed sexual assaults are different in their descriptions of when they occurred than the others. Count 14 concerns an allegation of sexual intercourse which is said to have occurred between 1 December 2000 and 31 December 2000 when Abbie White was 12. It is claimed that she was under Peter Taupe's authority at the time. Abbie White's recollection of when that offence occurred is this. (It comes from this series of questions and answers at T 42 in evidence-in-chief.) "Q. This is your brother Ben? A. Yes. Q. What is his date of birth? A. [withheld], so he is four years older than me. Q. Can you remember what happened to you on this occasion? What were the circumstances of your stepfather being at your home? A. I recall on that occasion, I'm not too sure if it was my brother's actual birthday, or the day after, or the day before, but I remember we got up in the morning and as my mum got up she opened the roller shutter on the front of the windows. I remember jumping into bed to see what we were doing that day." 67Abbie White went on to describe that Peter Taupe started to touch her and that he "went under my underpants and would start to touch my vagina and penetrate - part the labia and penetrate me with his finger." She agreed that he had penetrated her vagina and that it was "around your brother's birthday." She had earlier said that on this particular occasion Mr Taupe had come over to their house (he had been living separately at that stage) and that "he brought my brother a car for his sixteenth birthday." 68I repeat that Abbie White was quite specific that it was either the day before or the day after or specifically on her brother's birthday. In this regard, Mr Taupe, in his record of interview, acknowledges that he had bought Ben a car. He could not say when, nor could he say what birthday it was for, or whether it was for a birthday, but he acknowledged buying Ben a car. 69In addition, Abbie White recollected that, for what I infer to be her sixteenth birthday, Mr Taupe had "brought me my first car." That was at T 55. Later at T128, she said that she had received a particular car "for my sixteenth birthday". 70I acknowledge that it is possible that Abbie White's mother may have suggested the event of the car being given to Ben on his sixteenth birthday. I do not regard that as a fact which would influence or raise any doubt about the date. It is similar to the example about the newspaper which I gave earlier. In addition, I am reinforced by the acknowledgement by Mr Taupe that he had given a car to Ben, although he did not say whether it was a birthday present and, if so, when, but I am also influenced by the fact that he had given Abbie White herself a car for her sixteenth birthday. 71Given that I accept Abbie White's accounts of the events which had occurred, I find that I am satisfied beyond reasonable doubt that, at some stage between 1 December and 31 December 2000 at [place], Peter Taupe had sexual intercourse by digitally penetrating Abbie White and that, at that stage, she was 12 years of age. He was her stepfather and there is evidence that she regarded him as her father: I am satisfied beyond reasonable doubt that she was under his authority. I am also satisfied beyond reasonable doubt of her age. 72Count 17 claims that Peter Taupe had sexual intercourse with Abbie White between [withheld] 2001. It says that Abbie White was between 10 and 16 years of age, namely either 12 or 13. I accept the evidence of Abbie White and of her mother that Abbie White was born on [withheld], so that she turned 13 on [withheld]. 73Abbie White's description of this particular claim is associated with a very particular memory. She said in evidence-in-chief that she "got my period the week of my thirteenth birthday, in 2001". She acknowledged that it was in [withheld] 2001. Her mother and Mr Taupe were still living separately. She remembered "It was the week of my birthday. I remember my birthday party on the weekend. I can't remember if my birthday was the weekend day or not, but I think the next week I remember Peter coming over. I remember he touched me again in the vaginal area." She went on to say that "he touched my vaginal area and he parted the labia and penetrated me with his finger." She remembered that he was "a bit more forceful again, or aggressive, and he sort of positioned or adjusted my legs, I guess you could say." She agreed that he had penetrated her vagina with one of his fingers. She thought that it was after she had commenced her period. She acknowledged, unsurprisingly, that she had a good memory of when she first got her period. She thought she was sick and went to see her mother to show her underwear to her mother. Her mother was on the phone and said "Oh my God, Abbie has got her period." Abbie White said that she felt embarrassed because she did not know whom her mother was speaking to. In cross-examination, she said that she had her birthday and then the period was a week later. 74Given that I accept Abbie White's evidence and given the specificity and the significance of the event which she recollects in this case, I am satisfied beyond reasonable doubt that, between [withheld] 2001 at [place], Peter Taupe had sexual intercourse with Abbie White by digitally penetrating her, and that she was either 12 or 13 years of age. She was, I am satisfied beyond reasonable doubt, under his authority at the time. 75Count 20 claims that Peter Taupe digitally penetrated Abbie White between 1 January 2004 and 3 May 2004. In her evidence-in-chief she was asked whether she recalled "the last time that anything ever happened to you". She replied "Yes. It was a couple of months after December 2003, so it would have been early the next year, or 2004." She said that she was still 15, which means of course that it was before her birthday on [withheld] 2004. She said that it was "a weekend once again, so a Saturday". She said that Peter Taupe "progressed to put his hands over my vaginal area under my underwear, parted the labia, and penetrated me with his fingers in the vaginal area. This time he did insert a second finger." He inserted first one finger and then slid in a second. She said it was uncomfortable and was painful. She recalls wearing underwear and recalls that on this occasion "he removed them down to my ankles, down the lower half of my legs." That had never happened before. He had moved them to the side before but "he'd never actually moved them off my - off where they're meant to be." That was the last time, she said, that anything happened to her. 76There are a number of features about that allegation which mean that the prosecution has satisfied me beyond reasonable doubt of its truth. First, it was the last occasion that anything happened. Secondly, Abbie White was significantly older, namely she was nearly 16. Thirdly, it occurred within a year of the family moving into another home at [place]. Fourthly, Abbie White was able to identify the relevant period with some precision, it was in 2004 and before her birthday. Fifthly, he had inserted two fingers rather than one. Sixthly, he had removed her underpants down to her ankles. 77There is one issue about that last event which was the subject of submissions by Ms O'Reilly and Mr Patrick. When Abbie White was interviewed by the police on her first visit (25 July 2010), an entry was made by the interviewing police officer on the police computer system. That entry records the offences concluding in 2001. I accept Mr Patrick's submission that this record was made at the first meeting with the police. It was also before Abbie White was asked to "go home and do a timeline". It was before Abbie White did a detailed statement during which she could consider the timeline in detail. It is, I accept, as Mr Patrick said, "unsurprising that after that consideration the complainant was able to provide detailed information such as that referred to" later on. 78The reference in the police computer system to 2001 does not leave me with a reasonable doubt about when the events the subject of count 20 occurred. I am satisfied beyond reasonable doubt that, between 1 January 2004 and 3 May 2004 at [place], Peter Taupe had sexual intercourse with Abbie White when she was between 14 and 16 years of age, namely 15, and that at the time she was under his authority. 79Accordingly, I acquit Peter Taupe of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18, and 19 in the indictment. I convict him of counts 14, 17 and 20 in the indictment. 80I do not know whether there are people here - there may be - unconnected with this case. I have been mentioning names - the surname White, either Abbie White or Susan White, and the name Peter Taupe. It is illegal and a criminal offence to refer to those names outside this courtroom unless you are connected with the case. They are not to be spoken about, those names, outside the courtroom. The idea is that the identity of the person complaining about sexual assault, Abbie White in this case, is to be protected and not broadcast. HIS HONOUR: Mr Jubb and Ms O'Reilly, where does that leave us? JUBB: My understanding, your Honour, is that there will be an application to adjourn for sentence. HIS HONOUR: That's what my understanding is. And an application for bail? O'REILLY: Yes, your Honour. JUBB: Your Honour, I think it has been indicated before that there will be no objection to bail continuing. HIS HONOUR: That's the case, Mr Jubb. JUBB: But my request - and I think it has already been vented before - that there be an additional condition for the defendant to report to his local police station on three days each week. HIS HONOUR: Ms O'Reilly, reporting three days a week? O'REILLY: Yes, there is no issue with that. HIS HONOUR: Okay. O'REILLY: Monday, Wednesday and Friday to-- HIS HONOUR: Which one? O'REILLY: [place]. HIS HONOUR: Good, okay. JUBB: I can inform the Court also there are no previous convictions known against the defendant. HIS HONOUR: Thank you. Okay. JUBB: Your Honour, I know that Mr Patrick is not available until May, but I understand that the case may need to be dealt with well ahead of that. HIS HONOUR: All right, I will just get my diary. I have just got to add to my reasons because I just saw a note which I had overlooked referring to-- 81Both parties referred me to the provisions of s 165B of the Evidence Act 1995. Ms O'Reilly made a submission that her client suffered a significant forensic disadvantage because of the delay in making the complaint. The disadvantages include his capacity to obtain relevant documents such as work records and to trace the breakdown or resumption of his relationship with Abbie White's mother. There were wide periods in the allegations, she said, which meant that he was at difficulty in remembering back that far and in pinpointing what he was doing. 82So far as the counts of which I have convicted Mr Taupe are concerned, I do not regard any forensic disadvantage as influencing me as to his being guilty or not guilty. It was a case where he acknowledged that he had sexually assaulted his stepdaughter and that he had attempted to penetrate her. I have accepted that Abbie White is a witness who is telling the truth. I accept her account of what happened on the three occasions that I have found him guilty. I do not regard any disadvantage which Mr Taupe may have suffered as affecting that conclusion. ADJOURNED TO FRIDAY 5 APRIL 2013 FOR SENTENCE