R v M R [2008] ACTSC 24 (4 April 2008)

Last Updated: 7 May 2008

R v M R [2008] ACTSC 24 (4 APRIL 2008)

CRIMINAL LAW - trial by judge alone - offence of incest in respect to a person under the age of 10 years -evidence insufficient to establish sexual intercourse.

CRIMINAL LAW - trial by judge alone - offence of act of indecency - charge not proved beyond reasonable doubt.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 8, 10, s 40, s 70

Supreme Court Act 1933 (ACT), s 68

Evidence Act 1971 (ACT), s 64,

Evidence Act 1995 (Cth), s 13, s 66, s 164, s 165

Crimes Act 1900 (ACT), s 62, s 70

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

R v Tran [2003] ACTSC 53

Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606

DPP v Hester [1973] AC 296

R v Schlaefer (1984) 37 SASR 207

R v Prasad (1979) 23 SASR 161

No. SCC 14 of 2007

Judge: Gray J

Supreme Court of the ACT

Date: 4 April 2008

IN THE SUPREME COURT OF THE )

) No. SCC 14 of 2007

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

M R

ORDER

Judge: Gray J

Date: 4 April 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he engaged in sexual intercourse with the complainant the said complainant then being a person under the age of 10 years, to wit, 5 years of age, and who was to his knowledge, his lineal descendant.

2. The accused is not guilty in respect of the charge that between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he committed an act of indecency upon the complainant, the said complainant then being a person under the age of 10 years, to wit, 5 years of age.

Non publication

1. This proceeding is a sexual offence proceeding involving the daughter of the accused. Section 40 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) makes it a strict liability offence to publish the name of the complainant, protected information about the complainant, a reference or allusion that disclosure of the complainant's identity or from which the complainant's identity may reasonably be inferred. In these reasons, I do not refer to the name of the complainant nor to the names of witnesses who gave evidence where the publication of those names might identify the complainant. I have added an appendix to these reasons which I order not to be published but to be made available to the prosecution and the accused only to be used by them for the purposes of these and any subsequent proceedings.

The charges

2. The accused was arraigned before me on two counts. He pleaded not guilty to the charge that,

... between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory [he engaged] in sexual intercourse with [the complainant] the said [complainant] then being a person under the age of 10 years, to wit, 5 years of age, and who was to his knowledge, his lineal descendant.

That between 4 March 2006 and 6 March 2006 at Canberra in the Australian Capital Territory he[committed] an act of indecency upon [the complainant], the said [complainant] then being a person under the age of 10 years, to wit, 5 years of age.

Trial by judge alone

3. The accused elected to be tried by judge alone.

4. The procedures to be followed where there is a trial by judge alone are set out in s 68C of the Supreme Court Act 1933 (ACT),

(1) A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

(2) The judgment in criminal proceedings tried by a judge alone shall include the principles of law applied by the judge and the findings of fact on which the judge relied.

(3) In criminal proceedings tried by a judge alone, if a Territory law would otherwise require a warning to be given to a jury in such proceedings, the judge shall take the warning into account in considering his or her verdict.

5. It may be deduced from these provisions that they not only require the setting out of the principles of law and the findings of fact, but also the reasoning process linking them and justification provided for the verdict ultimately reached (Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250).

General directions

6. The general directions which I give to myself are as follows,

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. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied 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.

(See R v Tran [2003] ACTSC 53 at [4] and [5].)

The complainant's evidence

7. Initially, the prosecution sought, with the consent of the defence, to tender the transcript of the unsworn evidence given by the complainant in the Magistrates Court. There is, however, no evidentiary provision which would enable the court to receive the complainant's evidence in this way. Both s 64 of the Evidence Act 1971 (ACT) and s 13 of the Evidence Act 1995 (Cth) deal with evidence of children but the Commonwealth Evidence Act covers the more general ground of competency to give sworn or unsworn evidence. Section 64 of the Evidence Act 1971 (ACT) is not a provision that is specified in the regulations as not being effected by the operation of the Commonwealth Act. In any event, both provisions envisage the calling of the person as a witness and do not provide a mechanism for substituting other evidence given by the witness at an earlier time in substitution for the oral testimony of that witness. In particular, s 13(1) and (2) of the Commonwealth Act provide the mechanism for a person to be able to give unsworn evidence on the satisfaction by the witness of the criteria set out in that section. Further, although s 66 of the Evidence Act 1995 (Cth) would permit evidence of previous representations made by a witness available to give evidence, those representations must have been made when the occurrences of the facts asserted were fresh in the memory of the person who made the representation.

8. That test could not be fulfilled as far as the committal proceedings were concerned, nor as far as the prosecution's proposal that they would tender the video interview between the complainant and the police officers, which was made some nine days after the event and was of doubtful admissibility having regard to the requirements of Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606, particularly as there were a number of statements made by the complainant to other persons concerning the event before she spoke to the police. In any event, s 66 of the Evidence Act 1995 (Cth) does not apply to evidence of representations made for the purpose of indicating the evidence that a person would be able to give in a proceeding (see s 66(3)). Accordingly, without further legislative intervention, it seems that there is no alternative in cases of this nature but for the complainant to give her evidence again notwithstanding that the evidence had been given in the committal and the defence did not wish to further cross-examine the complainant.

Warning as to evidence given by audio visual link

9. The complainant in this matter was five years of age at the time of the incident and just over seven years old at the time of the hearing. Section 8 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) requires that, unless I order otherwise, the evidence given by a child in proceedings of this kind be by audio visual link. There was no request that I order otherwise and the evidence was given in that way from a place other than the courtroom. Section 10 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) requires that I give myself a warning that no inference adverse to an accused should not be drawn from the fact that the witness is giving evidence from such a place.

Unsworn evidence of the complainant

10. The issue under s 13 of the Evidence Act 1995 (Cth) is whether a witness is capable of understanding that, in giving evidence, the witness is under an obligation to give truthful evidence. I received in evidence the material placed before the magistrate in the committal proceedings (see s 13(3)) and, having regard to the complainant's age and in the absence of any submission to the contrary, I formed the view that it was highly unlikely that she was capable of fully understanding the duty involved as well as the concept and nature of the obligations required from her in court proceedings. Accordingly, I received her unsworn evidence upon being satisfied that the complainant understood the difference between the truth and a lie, that she was told of the importance of telling the truth and that she responded appropriately that she would not tell lies in the proceeding.

Warnings concerning the evidence of children

11. Section 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) provides,

70 Comments on children's evidence

If evidence is given by a child in a sexual offence proceeding, the judge must not give the jury any warning or suggestion to the effect that the law regards children to be an unreliable class of witnesses.

12. In the course of the hearing I made it clear that I did not consider that the evidence of a child was to be regarded as inherently unreliable.

13. Section 165 of the Evidence Act 1995 (Cth) is in these terms,

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

...

(c) evidence the reliability of which may be affected by age, ...

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable; and

(b) inform the jury of matters that may cause it to be unreliable; and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.

14. I consider that the restriction on any direction as to the evidence of children as a class imposed by s 70 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) set out above, is not affected by s 165 of the Evidence Act 1995 (Cth) to which I have referred, and is compatible with those provisions. The complainant's age is a potential factor as to the reliability of the evidence given by her. In the case of such a young child, as the complainant is in this case, it calls for me to exercise special caution in determining the acceptability of her evidence as well as requiring that I give careful scrutiny to it in assessing the weight to which I should accord that evidence (cf DPP v Hester [1973] AC 296 at 319; R v Schlaefer (1984) 37 SASR 207 at 212). In the present case, the complainant's evidence was unsworn and that factor underlines the need for caution.

15. Any requirement, whether of law or practice, for a child's evidence, whether sworn or unsworn, to be corroborated has been effectively abolished by the enactment of s 164 of the Evidence Act 1995 (Cth). Further, that section provides that there is no requirement for a warning to be given to a jury that it is dangerous to act on uncorroborated evidence or to give any direction as to the absence of corroboration.

Background to the charges

16. The complainant was five years old at the time of the offences the subject of the charges. The complainant's sister was born in January 1999 and from birth suffered from autism. The accused and the complainant's mother were married in late 1999 but separated three months later. The complainant was born in August 2000, some six months after her parents separated. The complainant's mother gave a history that during both of her pregnancies, the accused was not around for the majority of that time. The complainant's mother and the accused were divorced some two years after the date that they were married.

17. In January and February 2005, access arrangements were made for the children to have fortnightly visits to their father's home. That took place on a Saturday night and continued throughout 2005.

18. In 2006, it appears that the fortnightly visit prior to the first weekend in March of that year, did not take place due to the accused's work commitments. However, on this occasion the arrangement was for the complainant and her sister to spend the Saturday and Sunday nights of the weekend commencing on 4 March with the accused. The complainant and her sister were delivered to the accused's workplace in the afternoon of 4 March and the accused took them to his house which he shared with his present wife. Also staying at that house on that Saturday night was the accused's daughter from an earlier relationship. She was nine years old at the time. The accused's present wife, whom he had married in early 2005, also had her children there. They were two girls then aged nine and seven.

19. The singular event that marks that weekend was the Sky Fire display on the Saturday night. That was a public fireworks display generally observed from the foreshore of Lake Burley Griffin. All the persons to whom I have referred attended that event.

20. Also, during the course of that weekend, the sister of the accused's present wife and her partner were also at the accused's house for the weekend as they were in the process of moving house. The sister of the accused's present wife also attended the Sky Fire event.

21. On the Monday morning, the accused took the complainant and her sister to their mother's house on his way to his work. As a result of certain observations made by the complainant's mother, and things that were said by the complainant to her mother, then later to her grandmother and later again to her sister's carer, the present charges were brought against the accused. The complainant has had no contact with her father since that weekend.

The evidence concerning offences charged

22. The accused has been charged with two counts which reflect two separate incidents that are alleged to have taken place on that weekend.

23. The complainant's evidence in support of those charges was as follows:

[When] was that?---When I was - when I was outside trying to hold a puppy and I was trying to hold one of - to pet one and then daddy came up and hurt my vagina.

Whose house were you at that time?---Daddy's house.

Okay. So, you said daddy tried to hurt your vagina?---Yes.

How did he do that?---He did that with his hands.

Do you know what part of his hand he used?---This one.

The witness is pointing to the top of her palm, for the record.

And did daddy hurt your vagina that time?---Yes.

And do you remember whether he hurt your vagina inside your vagina or outside your vagina?---Outside.

Are there any other times that daddy hurt your vagina?---He used to do it inside.

Can you say that again, please, [the complainant]?---He used to do it inside.

[You] said inside?---Yes, he used to do that sometimes.

He used to hurt your vagina inside sometimes?---M'mm.

And how did he do that?---He's trying to use his fingers that time.

And was that the last time you saw daddy or was that some other

time?---That was some other time.

Where was it that daddy used his fingers - where were you? Were you at his house or were you somewhere else when that happened?---We're still at his house.

All right. Do you remember where you were when that happened? When daddy used his fingers inside your vagina?---I remember that he was trying to get me and he - and he always tried to get on hurting me. The first time he was good and then all of the other times he was bad.

Okay. Do you remember what room you were in when daddy hurt your vagina?---Sometimes outside and sometimes in the room where girls are.

Can you tell about one of the times when daddy hurt your vagina in the room?---In the room, sometimes at nights he always sneaks into the room and he always tries to sneak and hurt me on the vagina.

And which room is that, [the complainant]?---That room is [the accused's daughter from another relationship] room.

All right. Do you remember when that happened, was there anybody else there in the room?---Yes, my sister, [named] and two girls of [the accused's present wife], that's daddy's wife, [named].

Okay, so, they're [the accused's present wife]children are they?---M'mm.

All right. And when daddy hurt you on the vagina, do you know where they were?---They were - the girls?

Yes?---The girls were playing with their dog and [named] was trying to play with her little cat.

Okay. And where were you?---I was - I don't remember, it was a long time.

All right. Can we go back to talking about the last time you saw

daddy?---M'mm.

You said that he tried to - he hurt your vagina when you were outside, is that right?---Yes.

All right. Do you remember whether that was in the day time or at night time?---Sometimes day and sometimes night.

What about that last time you were telling us about when you were at daddy's house and he hurt your vagina? Was that in the day time or was that at night time?---I think that was the day.

And was that when you were with the puppies?---Yes.

All right. And do you remember anything else about when your daddy hurt your vagina that time?---He was - he kept on sneaking and last time I was trying to say something - at - at sometimes he sneaked in my - in the room and hurt me on the vagina and then he pushed me out and then I'd sleep in his bed and then he pushed me out to hurt my vagina and then I went back to my room.

And was that the last time you were at daddy's house or was that some other time?---That was another time.

24. As to one incident, the complainant's evidence is quite clear. It occurred on the last time she saw her father. At the time she was trying to pet a puppy and her father came up and "hurt" her vagina. He did so with the palm of his hand outside her vagina.

25. This was the incident that the prosecution alleged constituted the first count on the indictment. It, of course, does not establish the element of digital penetration that the prosecution relies upon to establish the act of sexual intercourse that is charged under the first count. The prosecution did not suggest, nor does the indictment charge an alternative count, namely, that the incident the subject of the first count, was an act of indecency. The prosecution puts its case forward on the basis that the act of indecency, the subject of the second count on the indictment, relates to an incident separate from the incident which constituted the first count.

26. The complainant's evidence could support the second count on the indictment as it can be taken to be an allegation that the accused "hurt" the complainant on the vagina on an occasion when she was in the room at the accused's house that the accused's daughter from an earlier relationship normally slept. Other evidence shows that room was also the room that the complainant usually slept in at the accused's house.

27. The evidence that the complainant gave that the accused "hurt" her on the vagina supports the allegation of an act of indecency on the complainant such as to constitute that aspect of the second charge particularly when it is taken with some of the things that the complainant said to her mother, grandmother and her sister's carer.

28. However, her evidence is not particularly certain as to any such incident occurring on the occasion that is the subject of the second count on the indictment. The portion of her evidence that I have quoted above, in its generality, refers to acts that are not referrable to any particular time frame and, apart from the general implications that I may draw from such evidence, does not definitively establish that the specific incident charged took place on the weekend particularised as the occasion giving rise to the second count in the indictment. This is particularly so when regard is had to the complainant's assertion that an incident of this nature took place on a time other than the last time that the complainant was at the accused's house.

29. However, to support the second count on the indictment, the prosecution sought, in addition, to rely upon the evidence of the complainant's mother, and what the complainant said to her grandmother and the carer who was responsible for the complainant's sister.

30. The complainant's mother said that after the accused returned the complainant and her sister to her on the Monday morning, she noticed that the complainant and her sister were wearing dressing gowns that did not belong to them and that the complainant was wearing "pull ups" which should would not have expected because the complainant was toilet trained. Further, she said that the complainant told her that she was "sore down there". The complainant's mother also said that she observed that the complainant's vaginal area going back to her anus was "bright red". These observations were put forward by the prosecution as suggesting that something untoward of a sexual nature had taken place. The complainant's mother then gave evidence of what the complainant said to her:

Do you recall what she said?---She kept on saying that when she was at daddy's when she used to sort of used to go to sleep at night he used to read her stories. He used to put his hand under the cover, pull her pants down and use his fingers in the genital area. She made comments that it hurt when he did so. That she told him to stop and he wouldn't stop. And I wanted to find out specifically more about exactly where he was touching her so I thought I had a medical dictionary at home which had the male and the female figure in it which I couldn't find so I [drew] two diagrams, one of the male and one of the female and I asked her could she point to where daddy touched her, and she pointed to the vaginal area on the female picture that I drew. But she was very tired that afternoon. She was lying down in my bedroom watching ABC. Yes.

31. I admitted this statement under s 66 of the Evidence Act 1995 (Cth). That section permits the admission into evidence of first hand hearsay in criminal proceedings on the fulfilment of the condition set out in the section and subject to the general discretionary exclusions. Once admitted, s 60 of the Evidence Act 1995 (Cth) makes it admissible as evidence of the facts stated. The condition for admissibility set out in s 66(2) is that the representation be made when "the occurrence of the asserted fact was fresh in the memory of the person who made the representation". I found that condition satisfied in the present case and no application was made for the evidence to be excluded.

32. The evidence given by the complainant's mother as to what the complainant told her supports, in a general way, an incident occurring of a kind to which the complainant had deposed and to which the second count may refer, but does not directly support such an incident actually occurring on the weekend preceding the conversation.

33. The next day, the complainant and her sister were being looked after by the complainant's grandmother. The complainant's grandmother gave evidence of a conversation that she had with the complainant. Again, I consider that the representations made by the complainant in this conversation to be admissible under s 66 of the Evidence Act. The evidence was:

We had lunch and after lunch [the complainant] asked me if she could read her library - I could read the library book to her. I said yes. So there was [the complainant] on my left-hand side and [the complainant's sister] was on the right-hand side of the couch and I started reading her library book and halfway through the library book [the complainant] said to me, she was pointing down between her legs, she said, "I'm hurt. I'm sore here." And I said, "What did you do to yourself?" And she said, "Daddy hurt me." And I said to her, I said, "What did he do to you?" And she said, "He hurt me." I said, "Was your underpants up or down?" And she said, "Daddy pulled them down." And I said, "And what did he do to you?"

And she said, "He had his two fingers." And she was holding up her left hand and with her pointer finger and her middle finger she said, "He was hurting me with these two fingers and I told him to stop and he told me to shut up and he kept doing it." And I said to her, "Where was [the accused's present wife, her children and the accused's daughter from another relationship]?" And she said, "They were out in the backyard with the dog and pups." And I said, "Where was your sister [named]?" And she said, "She ran into the garage and wouldn't come out."

34. This incident that is described by the complainant to her grandmother seems to support the occurrence of the first count on the indictment. However, in her evidence to this court the complainant described the accused's actions using his palm on the outside of her vagina and not the two fingers that she described to her grandmother. This evidence is also not inconsistent with the complainant's evidence about this incident that the "hurt" to her vagina was "outside".

35. As I noted earlier, the prosecution has not charged the commission of an act of indecency as an alternative charge to the first count. Section 70 of the Crimes Act 1900 (ACT) (Crimes Act) provides for alternative verdicts to be returned for certain sexual offences. However, s 62(1) of the Crimes Act, which constitutes the crime of incest in respect of a child under the age of 10 years and is the subject of the first count on the indictment in this case, has only provision for an alternative verdict in the case, of the age of the victim being proved as being over 10 years and under the age of 16 years so as to constitute an offence under s 62(2) of the Crimes Act. An alternative verdict on this count of committing an act of indecency is not open to me.

36. The complainant's grandmother went on in her evidence to say:

And then I said, "Well, look, did he do anything else to you?" And she said, "He - I had two sleeps on the Sunday in the afternoon and he was reading me a story and he put his hand under the blankets into my underpants and hurt me again. Doing the same thing."

This latter passage lends some support to what the complainant had to say about an incident that might comprise the second count.

37. The carer for the complainant's autistic sister also had a conversation with the complainant some five days later. I am less certain about the admissibility of this evidence as it is far less contemporaneous with any event that may have occurred on the weekend to which the charge relates. Nevertheless, it appears to be an account of an event on that weekend and to have been unprompted. The evidence of that conversation was as follows:

What was it?---[The complainant] was sitting on the floor in my family room and I was in the kitchen and she said how she'd been - the weekend before she'd been with her dad and how they'd been to Sky Fire and how much she'd enjoyed the fireworks and how pretty they were and they were noisy but Emily had enjoyed it and then she just sort of kept on playing and then she just looked at me and she said, "My daddy smacked me on the bum." And I went oh.

Can you just repeat that, I didn't hear that?---She said her daddy smacked her on the bum. No, I'm sorry, she didn't say that, I'm sorry, I'm really stressed about this.

Take your time, do you want to take a drink of water?---No, that's all right. That's how I interpreted it. She said, "My daddy hurt my bum", and I interpreted it as thinking that he had smacked her bottom, that's how I interpreted it.

When [the complainant] said that to you, did you ask [the complainant] any questions?---I asked her like, "What do you mean he hurt your bum?", and she said, he put his finger in her bum.

Did [the complainant] say anything else at that point?---She said it hurt and she cried.

38. It is clear that, whether or not this evidence is admissible, the representations contained in this conversation do not support the complainant's evidence-in-chief given to this court as to either of the incidents that she complained about or that they happened on that weekend.

39. The representations do, however, support what the complainant said in cross-examination about an incident that she said occurred in the park on the evening of the Sky Fire event when she said that the accused "tried to sneak up and hurt me on the vagina again". That is not an incident that the complainant deposed to in her examination-in-chief and it is important to appreciate that such an incident, even if it took place, is not the subject of any count on the indictment before the court.

Acquittal on the first count

40. At the conclusion of the case for the prosecution there was, in fact, no evidence of an essential element of the charge contained in the first count of the indictment. There was no evidence that the accused had digitally penetrated the vagina of the complainant so as to make out the element of sexual intercourse. Accordingly, I had no alternative but to enter a verdict of acquittal in respect of this charge.

Application for a Prasad direction

41. Mr Sabharwal, who appeared as counsel for the accused, asked that I give myself a direction based on R v Prasad (1979) 23 SASR 161 (Prasad) in respect to the second count on the indictment. In Prasad, King CJ said (at 163):

I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts.

42. Having regard to the complainant's evidence, the observations of the complainant's mother and the representation made by the complainant to her grandmother, I declined to exercise the power to return a verdict of not guilty in respect to the second count on the indictment as I did not consider that the circumstances for doing so had been made out.

The defence case

43. The accused gave evidence and denied each and every of the allegations made by the complainant that related to any touching of the complainant's vagina. Apart from that absolute denial, his evidence, in general, was that the weekend activities took place in circumstances which would not have given any opportunity for sexual contact between himself and the complainant.

44. The accused's present wife was called. Her evidence was important in its contradiction of two aspects of the evidence given by the complainant. The complainant had said that she had told the accused's present wife at the Sky Fire event of "daddy's trying to keep on hurting me on the vagina". The accused's present wife said that was never said and that the complainant had at no time made any complaint about the accused as to the occurrence of anything of this nature.

45. The other aspect related to the puppies that the complainant referred to when she was describing the incident that had given rise to the charge comprised in the first count on the indictment. In the latter stages of her evidence in cross-examination, the complainant referred to the puppies that were present when she said that the incident comprising the first count on the indictment occurred. She said that she saw them dead on what she said was the next day and she elaborated on aspects of that event. The accused's present wife said in her evidence, which I accept, that the puppies did not die but were sold the following week.

46. In both instances, the evidence given by the accused's present wife significantly called into question the reliability of the complainant in respect of these peripheral matters.

47. Evidence was given in the defence case by the sister of the accused's present wife and her partner but their evidence does not really advance the matter other than that nothing untoward came to their attention.

48. The mother of the accused's daughter from an earlier relationship was called to give evidence directed to establishing that the accused is a person of good character in a particular respect. In effect, her evidence was that the accused was a good parent and it would be out of character for him to have acted in the way alleged by the complainant. In cross-examination there was the following question and answer:

The comments that you make that you don't believe [the accused] would do such a thing, that's really in relation to your own daughter more than anyone else, isn't it?---Yes, it is.

49. With that limitation, I take the evidence into account in the effect that I give to the denials by the accused and as to whether I am prepared to draw a conclusion as to the accused's guilt in respect of the conduct alleged against him.

Conclusion

50. Overall, after carefully scrutinising the complainant's evidence and having regard to the accused's denials, I am not satisfied beyond reasonable doubt that the incident, the subject of the second count, took place as particularised by the prosecution on the date alleged in that count. I find the accused not guilty in respect of the charge that is the second count on the indictment.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 4 April 2008

Counsel for the prosecution: Mr J Couchi, Ms M Caffery

Solicitor for the prosecution: ACT Director of Public Prosecutions

Counsel for the accused: Mr J Sabharwal

Solicitor for the accused: Rachel Bird & Co

Date of hearing: 15 & 16 November 2007

5 March 2008

Date of judgment: 4 April 2008