Case facts

The accused was a single father, his daughter aged 9 stayed with him each alternate weekend. During these visits she would spend time with the neighbour’s children, girls aged 7 and 5. One particular afternoon the accused’s daughter and the neighbouring children organised a sleepover at the accused’s house. During the course of the night the girls ate pizza, played games and eventually went to sleep. The next day the children went back home. At the time of arriving home it was alleged that the 7 year old complained that she had been touched inappropriately by the accused. This was initially disclosed to the mother who called her partner and told him what had happened. At the time the partner was at work – he claimed to have left work in a hurry to attend on the complainant. Notwithstanding the serious complaint made by the 7 year old, the complainant and her sister in the company of the parents attended a birthday party. Upon returning home that afternoon, the accused was outside his house with his daughter playing soccer in the front yard. There was a confrontation between the parents of the complainant and the accused at which time the allegation was put to him.

Following this confrontation the complainant was taken to the police station by her parents. At the same time the accused voluntarily attended the police station to tell police about the allegation. The police refused to discuss the matter in any detail with the accused and he was sent away.

An interview was conducted with the complainant and the Joint Investigation Response Team child protection case worker (JIRT case worker). During that interview the disclosure of the indecent assault was not made. The complainant said she was ‘too shy’ to talk about what had happened. A subsequent interview took place with the complainant three days later. During that interview the complainant disclosed that at some point during the evening she shared the bed of the accused with him and that he ‘touched her rude part’.

The complainant’s younger sister was interviewed as was the accused daughter. All three children gave similar accounts of what they did that evening in relation to leisure activities and dinner. What they all could not agree on was the chronology of the events of the evening and most importantly the sleeping arrangements.

The accused was arrested and charged with Aggravated indecent assault – victim under authority [section 61M(2) Crimes Act – which carries 10 years imprisonment].

He participated in an Electronic Record of Interview with police (ERISP). During the interview he categorically denied having touched the complainant inappropriately and denied having ever shared a bed with her. DNA samples had been taken from the underwear worn by the complainant and tested to see if there was a match to the accused. There was no DNA match.


The Local Court hearing

The hearing was conducted over two days in the Local Court. The Magistrate heard evidence from the officer in charge, the complainant, her sister, her mother, her step father and the accused’s daughter. All the witnesses, bar the accused’s daughter were cross examined.

In this case the complainant was cross examined extensively for several hours. She was an impressive young girl who remained unshaken about her complaint. However she was questioned about the details of the evening in question and ultimately accepted that certain things she told the case worker in her interviews and confirmed in her evidence in chief before the Magistrate were simply not true.

One major inconsistency in the prosecution case became apparent when the complainant gave evidence under cross examination. She was asked to tell the court where she was when she told her mother about the alleged assault. The complainant was adamant that she was standing in the back yard with her mother near the washing line, she was questioned at length about the detail a location of this conversation. The mother on the other hand maintained that the she was inside the lounge room seated on the lounge when she first heard of the allegation, she too was cross examined at length about details of that conversation.

At the conclusion of the prosecution case an application was made on behalf of the defendant for the charge to be dismissed without the need for the magistrate to hear any further evidence. The Magistrate accepted that there were significant internal inconsistencies in the prosecution case which supported the argument that the prosecution had not proved the case beyond reasonable doubt. The charge was dismissed.


Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.