Babysitter found not guilty of raping girl had reacted with 'horror and shock' to allegations

CONTENT WARNING: This article discusses an alleged sexual assault against a child.

Jurors took around 15 minutes to reach a not guilty verdict in the trial of a babysitter accused of raping a girl he was caring for while her mother was recovering from the death of another child.

Kevin Patrick Malone was acquitted of sexual intercourse with a young person under 10 on Friday (16 September).

Earlier, his barrister, Margaret Jones SC, said when police confronted him with the allegations, he reacted with “a sound of horror and shock in his voice”.

“It’s a load of cr-p. I’m guaranteeing you nothing at all happened,” Mr Malone told police.

“I loved that little girl … I’m f-king dumbfounded.”

Ms Jones said while his speech was “rough” as “he’s not a high ranking public servant”, he was also authentic and genuine when he gave immediate denials of the allegations.

She made the comments when she delivered her closing address on Friday in the ACT Supreme Court trial that began against the 47-year-old earlier this week.

The complainant claimed Mr Malone was babysitting her at his house when he gave her a glass of lemonade late in the evening, after which she began to feel very sleepy.

She alleged he “spooned” her when she lay on the mattress, raped her and she passed out.

Crown Prosecutor Skye Jerome argued that Mr Malone had the opportunity to offend because when he babysat the complainant, he had “uninterrupted, unlimited access to that child”.

When the complainant’s sister died, he gave her mother money to go out drinking and gambling while he looked after her at his house in Chisholm.

Ms Jerome said the alleged offending happened when the complainant was between six and eight.

The complainant said she didn’t really understand what sexual assault was until she was 11, then reported the allegations to police at 14 when she learned another young girl had been spending time at Mr Malone’s house as she did not want the same fate for that child, Mr Jerome alleged.

She was cross-examined when she was 16, during which she said: “I wouldn’t say I want to get him in trouble, I just want to make sure he doesn’t hurt someone again, like he hurt me”.

Ms Jones said the evidence against her client relied on one person, the complainant, and argued her allegations had undergone a “seismic shift” over time, undermining her whole evidence.

For instance, in her interview with police, she said she had her shorts on when the second alleged assault happened, but when she was cross-examined, she said her pants had been pulled down.

Ms Jones also said the complainant hadn’t told anyone about the second alleged assault until she went to police.

She said on the complainant’s own evidence, her memories were “blocked” or “suppressed” and said she only remembered some things a year or so after the police interview.

Ms Jones suggested her recall involved “constructed memories” that didn’t happen or “they are simply made up”.

She said there were other issues with the complainant’s memories. For instance, she questioned why the complainant was able to remember a “minute detail” of Mr Malone pouring a drink from a bottle into a glass when there was no reason for her to remember this.

“Is this an attempt to make it sound more convincing when she’s in court?” she asked about another example.

But Ms Jerome argued the complainant was an inherently credible witness who didn’t embellish the allegations and was able to recall details like the “dirty” cover on the mattress.

She was also honest about the limitations in her recall; for instance, she couldn’t recall her exact age or date when the allegations occurred.

After the jurors delivered their not guilty verdict, Justice Chrissa Loukas-Karlsson thanked them for their assistance in the trial before they were dismissed.