5 September 2023

'Dumb question': Trial hears from man who claims he slept during niece's alleged sexual assault

| Albert McKnight
old man in suit leaving court

Antonius Van de Zandt, 72, is contesting his charges at a trial. Photo: Albert McKnight.

CONTENT WARNING: This article refers to an alleged childhood sexual assault.

A man who claims he was asleep when he is alleged to have sexually assaulted his teenage niece in the 1980s told a prosecutor he was “getting annoyed” and she was asking a “dumb question” while he was giving evidence.

Jurors in the ACT Supreme Court trial of Antonius Van de Zandt heard from the 72-year-old himself on Monday (4 September), during which prosecutor Caitlin Diggins asked whether he was trying to discredit the complainant several times while questioning him on parts of his evidence.

“I’m getting sick of you saying that, thank you,” he told her.

Chief Justice Lucy McCallum told him the prosecutor was allowed to ask questions related to her case, to which Mr Van de Zandt replied, “I’m also letting her know that I’m getting annoyed”.

It is alleged the then-15-year-old complainant stayed the night with Mr Van de Zandt and his wife following the Food and Wine Frolic festival in Commonwealth Park in March 1986.

Jurors heard the complainant allegedly remembered being in bed with her aunt and uncle that evening, drinking tea and chatting about the day, before falling asleep.

She allegedly woke to the then-34-year-old Mr Van de Zandt touching her before he digitally raped and sexually assaulted her.

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His lawyer, Edward Chen, asked his client, “Do you have any memory of doing those sexual acts to her?”

“No,” he replied.

He claimed he was woken “rather rudely” by his wife the morning after the alleged incident, then was told “something happened” with the complainant and he should wait in his bedroom.

“It’s one of the times I started to think, what have I done?” he said.

“I started to question my sanity.”

In cross-examination, Ms Diggins asked Mr Van de Zandt why he didn’t want to know the details of what the complainant had alleged that morning.

“You tell me,” he replied.

The complainant claimed he had cooked breakfast the morning after the alleged incident, but when this was raised in the trial, he said, “I’ve never cooked breakfast, still don’t”.

Mr Van de Zandt then told Ms Diggins that one of her questions about breakfast was a “dumb question”, and when she asked another, he said, “Can you repeat the question? I’m getting angry”.

He said he had been a manager of Mario’s theatre restaurant in 1986 and had been working up to 16 hours each day in the two weeks before that year’s Food and Wine Frolic.

On the day of the incident, he claimed he woke up around 5 am, worked at the festival where his team served 6000 people in six hours, then went to sleep very soon after he arrived home. His next memory was getting woken up by his wife.

He also claimed he could not remember seeing the complainant that day.

During closing addresses, Ms Diggins said it was not disputed that Mr Van de Zandt had sexually assaulted the complainant but thought the main issue for the trial was whether he had been acting deliberately and intentionally.

While he claimed he was asleep then, the prosecutor said the jurors might think it implausible that the incident occurred as soon as his wife left their bed.

She also said the claim he was asleep didn’t have “the ring of truth”.

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Mr Chen, in his closing address, said if the jurors accepted his client had been asleep, then they had to acquit him.

He told jurors they had seen “the true frailty of human memory” in the trial, arguing it was possible to switch correct memories with false ones that were just as clear.

He claimed the complainant was an example of a confident person who had what appeared to be a very clear recollection but, when tested, had demonstrated inconsistencies in her memory.

As she had been wrong on so many occasions, the jury could not accept her as an accurate historian, Mr Chen argued.

Mr Van de Zandt has pleaded not guilty to charges of sexual intercourse with a child between 10 and 16 and committing an act of indecency on a child between 10 and 16.

The trial continues before Chief Justice McCallum.

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