Babysitter accused of abusing girl when her mother was struggling with child's death

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

A friend called in to babysit is on trial accused of raping the young girl he was caring for when her mother needed time to herself after the tragic death of another child.

The complainant, now aged in her teens, went to police in late 2020 because she heard another young girl was spending time at Kevin Patrick Malone’s house and she felt compelled to speak out, the ACT Supreme Court heard on Monday (12 September).

While 47-year-old Mr Malone admits being there to help her when she was seven or eight years old, jurors also heard he adamantly denies the allegations of sexual abuse.

When opening his trial, Crown Prosecutor Skye Jerome said the complainant’s mother had struggled after her other daughter died in 2012.

Around then, Mr Malone lent the mother money as they were friends, and she spent time away while he looked after the complainant.

She would stay over at his house and sleep on a mattress on the lounge room floor. Sometimes he would sleep there too.

“What happens here, stays here,” she claims he told her at one point.

In the first alleged incident he has been charged with, she claimed she was sitting on the mattress playing her favourite Xbox 360 video game, one called Viva Piñata, when he sat behind her, reached around her waist and sexually assaulted her.

She claimed she pushed his hands away, but he pressed back.

In the second alleged incident, she 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 and then raped her.

The complainant said she passed out and didn’t wake up until 11 am the next morning. An extra-long sleep like this wasn’t normal for her, she said.

She also claimed she told Mr Malone, “You shouldn’t have been in the same bed as me”, to which he responded, “Why?”

Ms Jerome said when the complainant’s mother picked her up later that day, she thought she was “quite slow and not herself”.

The mother thought Mr Malone had “drugged” her daughter, the prosecutor claimed, and put her in his care less often after that.

Mr Malone is charged with two counts of sexual intercourse with a young person under 10.

Ms Jerome said the complainant alleged she had been sexually abused about four times when in his care, but the charges came from two specific events while the other allegations formed tendency evidence.

Police searched Mr Malone’s home in April 2021, where they seized a Viva Piñata video game.

During the search, he asserted the complainant wanted to stay with him and admitted he’d sometimes sleep next to her but denied sexually assaulting her.

Barrister Margaret Jones SC appeared for Mr Malone. She said he was adamant that “he did not do these things” when confronted by police.

He claimed he had a big falling out with the complainant’s mother when they had an argument about her other daughter’s death. After that, the mother didn’t speak to him again.

Ms Jones said her client, who has no convictions for child sex offences, claimed he did not touch the complainant in any way and disputed the “drugging” claims.

She said the credibility and reliability of the complainant’s evidence was “very much an issue” and urged jurors not to pre-judge her client.

Justice Chrissa Loukas-Karlsson then closed the court to the public for jurors to hear the pre-recorded videos of the complainant giving her evidence.

The trial continues.