Cook v Flaherty (No 2)

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G
Criminal Trial by Judge Alone
[2021] SADC 83
Reasons for the Verdict of her Honour Judge Chapman
9 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The offending is alleged to have occurred between May 2018 and December 2019. The complainant is the daughter of the accused’s partner and was aged seven to nine years at the relevant time. She alleged he touched her vagina and buttocks on multiple occasions. The evidence does not establish that the alleged unlawful sexual acts occurred.
Verdict: Not Guilty

R v G
[2021] SADC 83

The accused is charged with maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act1935. The child is his partner’s daughter.
It is alleged that between 28 May 2018 and 28 December 2019, when the complainant was aged between seven and nine years, the accused maintained an unlawful sexual relationship with the complainant by engaging in two or more unlawful sexual acts with her, namely touching her vagina and buttocks on multiple occasions.
At the time of the alleged offence, the accused was living with the complainant’s mother and her three children, being the complainant (the eldest) and two sons. The accused is the biological father of the youngest son.
The touching is alleged to have occurred at the family home. It is alleged the accused touched the complainant when they were on his bed, on a couch in the living room, on a chair in the smoking room and on the complainant’s bed.
The complainant made a complaint to her maternal grandmother on 28 December 2019.
The complainant was interviewed by the police on 3 January 2020 and 25 July 2020.
The accused elected for trial by judge alone.
At trial, the prosecution called the complainant, the complainant’s grandmother and presented the accused’s father for cross examination.
In his defence, the accused gave evidence and called the complainant’s mother.
Verdict
After closing addresses were completed, I delivered my verdict and found the accused not guilty. I indicated I would publish reasons separately. These are my reasons.
The elements of the offence
The prosecution must prove each of the following four elements of the offence beyond reasonable doubt:
1.That during the period alleged, the accused was an adult.
There is no dispute the accused was an adult during the period of the alleged offending. He was in his mid-thirties.
2.That during the period alleged, the complainant was a child.
There is no dispute that the complainant was a child during the period of the alleged offending. She was aged between seven and nine years.
3.That during the period alleged, the accused knowingly maintained a relationship with the complainant.
There is no dispute that during the period of the alleged offending, the accused was living with the complainant as a family with the complainant’s mother and the two boys. During that time, he would care for the complainant in the role of a step-father. She called him ‘dad’.
4.That during the period of the alleged offending, the accused engaged in two or more unlawful sexual acts with the complainant. Those unlawful sexual acts are alleged to be (a) touching her vagina on more than one occasion and (b) touching her buttocks on more than one occasion.
If proved, the unlawful sexual acts would amount to indecent assault.
Having considered the relevant evidence, I find elements 1, 2 and 3 proved.
The issue in the trial was whether the alleged unlawful sexual acts did in fact occur, that is, proof of the fourth element.
Proof
The prosecution has the burden of proving this offence. There is no onus on the accused to prove anything. He has the presumption of innocence in his favour. The prosecution must prove each element of the offence to the standard of beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or even probably guilty.
The accused elected to give evidence at trial. He was not bound to do so. I will assess his evidence as I would the evidence of any other witness. There is an important caveat to that. By electing to give and call evidence, the accused takes on no onus of proof. The prosecution must disprove his evidence.
The prosecution case
The complainant was born in 2010.
There was no dispute that the complainant commenced living with her mother, the accused and her two brothers in about June 2018 when she was seven.
When she was an infant, the complainant lived with her parents at her grandmother’s home for about one year.
When the complainant was about two, her father and then her mother moved out of the grandmother’s house, but the complainant remained living with her grandmother until June 2018. The complainant’s parents separated when she was two or three. The complainant’s mother commenced a relationship with the accused in 2013.
The complainant moved to live with her mother, the accused and her brothers in June 2018 because the complainant’s grandmother attempted suicide and was taken to hospital. The complainant’s mother was in a defacto relationship with the accused. It is from that time until December 2019 that it is alleged the accused committed the unlawful sexual acts.
Complainant’s evidence
The complainant’s evidence comprised two audio visual records of interviews with police officers (on 3 January 2020 and 25 July 2020) and evidence in court.
Both interviews were made pursuant to Part 17 Division 3 of the Summary Offences Act1953. I was satisfied of the matters set out in s 13BA(3)(b) of the Evidence Act 1929 and made an order pursuant to s 13BA(1) that the evidence of the complainant be admitted in the form of those two audio visual records.[1]
[1] Exhibits P1 and P2.
The complainant was nine when she was interviewed by Officer Weaver in the presence of Officer Kepka on 3 January 2020. She was also nine when she was interviewed by Brevet Sergeant Kelly on 25 July 2020. I consider that the police officers established good rapport with the complainant. The questioning of the complainant was appropriate and the complainant appeared to understand what was being asked.
I gave permission pursuant to s 13BA(5)(b), for the complainant to be further examined, cross examined and re-examined. I found the complainant did not have sufficient understanding of the obligation to be truthful entailed in giving sworn evidence. I was satisfied she understood the difference between the truth and a lie and told the complainant it was important to tell the truth. She indicated she would tell the truth. She gave unsworn evidence on 7 April 2020.
Summary of allegations
During her interviews and evidence in court, the complainant made the following disclosures:
(a)     general allegations about the accused ‘touching’ her;
(b)    the ‘last occasion’ when she was touched;
(c)an occasion when she was touched in the accused’s bedroom which could have involved digital penetration of her vagina and bottom;
(d)an occasion when she was watching the movie ‘Boss Baby’ with the accused;
(e)     an occasion in the smoking room;
(f)     an occasion in her bedroom when she was watching ‘Snow Pups’;
(g)an occasion in the lounge room when she was watching ‘Britain’s Got Talent’;
(h)    an occasion when the accused ‘got his willy out’; and
(i)     conversation with the accused during which he invited her to touch him.
I have not made any impermissible use of that evidence, nor was the evidence admitted pursuant to s 34P(2)(b) of the Evidence Act 1929.
The allegations the subject of (c), (h) and (i) are not unlawful sexual acts for the purpose of the alleged offence. They are relevant and admissible pursuant to s 34P(2)(a) of the Evidence Act 1929 in order to place the unlawful sexual acts in their full context and to assist in determining the complainant’s credibility and reliability (s 34P(1)).
I will set out a summary of her evidence regarding those disclosures.
General allegations
The complainant made general allegations that the accused touched her.
During the first interview, the complainant said the accused touched her when they were laying down in bed. They hug and he rubbed ‘the side of my leg and my bum’.[2] Aussie, the dog, was there and ‘most of the time her brother comes in sometimes’. The touching made her feel a little bit uncomfortable. Sometimes he touched her under and sometimes on top of her underwear. Sometimes she said stop, then she goes away and does normal things with her brothers. She said it does not really happen that much anymore. She could not remember how many times it happened. She was not sure if the accused ever did it when her mother was at home. She said it happens in the day.
[2] Exhibit P1A, page 7.
There were multiple occasions during the first interview when the police officers asked the complainant to describe where the accused touched her. Although the word ‘vagina’ was used by the complainant during the conversation (after it was introduced by Officer Weaver),[3] the complainant indicated around her hip area, not near her vaginal area. On multiple occasions, she said there were no other areas where the accused touched her.
[3] No criticism is made of Officer Weaver for introducing the word ‘vagina’. It was appropriate to do so. She was recounting to the complainant what the grandmother had said the complainant told her.
When the complainant first showed Officer Weaver where the touching occurred, she indicated the side of her left buttock and around her hip. Officer Weaver asked, ‘does Daddy touch you anywhere else?’ and the complainant answered ‘No’.[4]
[4] P1A, page 7.
Shortly after that, the complainant was asked ‘is it anywhere else other than this place that you are showing me, the side of your bum,’ and she said ‘no’.[5]
[5] Exhibit P1A, page 8.
Just over a minute later the complainant confirmed again there was no touching anywhere else.[6]
[6] Exhibit P1A, page 9.
After a short break in the interview, Officer Weaver put to the complainant that her grandmother told them that she said, ‘Daddy touches you on the bum’. The complainant agreed she told her grandmother that. Officer Weaver then said her grandmother said that ‘you said Daddy touches you on your vagina’. The complainant said, ‘near here’. The complainant indicated on her body saying, ‘like half here and half on my leg’. She then said, ‘half on my vagina and then on my leg’. From what I could see on the video recording, the complainant was indicating around her hip area.[7]
[7] Exhibit P1A, pages 10 – 11.
Officer Weaver asked the complainant how far down does the accused’s hand go. The complainant responded not that far just there and indicated, describing the area as ‘half there’. The police officer demonstrated where the complainant was indicating because it was not clearly visible on the video camera. It was on the front hip area.
Officer Weaver asked, ‘does Daddy ever touch the back of your bum’. The complainant said ‘no’. The complainant agreed it was ‘just the sides of her bum’ which she was showing and demonstrating.[8]
[8] Exhibit P1A, page 13.
The complainant also said it was not past her legs, his hand did not go that far down. She marked the area on a stick diagram and said, ‘it’s my leg and my vagina half’.[9]
[9] Exhibit P1A, page 19.
Officer Kepka said to the complainant that from what she has said, the accused touches her leg and her hip and that he does not take his hand down further. He demonstrated down between his own legs. The complainant agreed. She agreed he does not go all the way down and when she tells him to stop he does stop.[10]
[10] Exhibit P1A, pages 19 – 20.
At the end of the third part of that first interview, the complainant said the accused touched her in between her vagina and her legs. That happened more than once. She said that there was nothing else that she wanted to say.[11]
[11] Exhibit P1A, pages 22 – 25.
During the second interview, the complainant drew diagrams and indicated areas on a girl’s body that were ok to touch and not ok to touch. She said ‘someone told me you can’t touch eyes, necks or backs’.[12] She said it was not ok to touch the private part, but she forgot what it is called. She said you use that part to go to the toilet and ‘do wee’.
[12] Exhibit P2A, page 24.
She said the accused had touched her in the private part and bottom more than one time, but she did not know how many times. After disclosing four specific occasions, she was asked whether there was anything else that happened. She said, ‘No, but when I told the police he, he come back that probably like six or seven more and I haven’t seen him since then.’.
During her evidence in court, the complainant said the accused touched her on the bottom and in her private part in his bedroom more than once.
She said the accused tapped her bottom with his finger on the inside of her clothing, but not the inside of her bottom. The tapping on her bottom happened more than once.
She thinks she told the police in the first interview that the accused touched her ‘like around five times’.[13] She told the police that it happened in the accused’s bed. She said her brothers were there, but not in the same room.
[13] T96.
In answering the question of how many times did something happen on the accused’s bed, she said, ‘I think around four or five times, but two’.[14] She said there was no time that her brothers were in the same room or on the bed.
[14] T96.
She gave evidence they used to watch the projector in the accused’s bedroom. That happened twice. Her mum was at the shops or the doctors on the four or five times it happened on the accused’s bed.
She thinks the accused touched her eight or nine times, but she is not sure. It was around that number.
The ‘last time’
During her first interview, the complainant said she did not remember the last time, but it was probably when her mum was at the shops.[15] It happened in the accused’s bedroom during the day. Her brother came in and then the dog was on the bed sleeping. She said she was wearing a T‑shirt and pants. She said, ‘he was rubbing here under and on top’.[16] She indicated behind her right hip, then on her buttock area. She said the accused only touched her there.
[15] MFIP1A, pages 12, 14.
[16] MFIP1A, page 9.
The accused was wearing a T‑shirt and pants.[17] She did not know whether it was days or weeks or months ago. It was daytime and it was warm outside.[18] There was a movie on TV, she thinks it was a Transformers movie. They did not watch all the movie because she got bored of it. She described the touching as ‘he just kept rubbing my leg and talking’.[19] She said the accused was not really holding her, he put his arm around her to go there (indicating the side of her hip). She said ‘stop’ and then left the bedroom.[20]
In the accused’s bedroom
[17] MFIP1A, page 15.
[18] MFIP1A, page 15.
[19] MFIP1A, page 16.
[20] MFIP1A, page 17.
In the second interview, the complainant described one time when she was in year 4. Her mum was out shopping and she does not know what her brothers were doing. She did not know if this was the first time or the last time. He told her to go into his bedroom. They were lying on the bed. He touched her on the outside and inside of her clothing, on her bottom and private part. He touched her on the outside of her private part and a little bit in the inside. The touching on her bottom was ‘just like normal tapping’ on the inside and outside of her clothes. He told her not to tell anyone because he will get into big trouble with mum. When she was asked to think about another time, she said it was the same every time.
During her evidence in court, the complainant gave evidence that the accused used his finger to touch her on the inside of her vagina. She thinks that was in his bedroom. There was no‑one else in the room. She thinks her mother might have been at the shops. She was not sure if he touched her more than once inside her vagina.
She said he put his finger in her front and in her back. She confirmed he put his finger inside her bottom.[21] She told him to stop. It did not hurt. When he put his finger in the front, she told him to stop and it did not hurt. He stopped straightaway each time. She thinks it was in his bedroom that he put his finger inside her bottom.
Watching ‘Boss Baby’
[21] T112.
In the second interview, the complainant said touching happened in the lounge once, when it was bedtime. They were watching the movie ‘Boss Baby’ in the lounge room. Her brothers watched it with her. Everyone was at home. It was past her bedtime. At the start, her mum came out lots.
She then described this as an occasion when she could not get to sleep. The accused asked her if she wanted to watch a movie. She thinks he said ‘Boss Baby’. They were both lying on the couch. He touched her in the spots that are not ok, like always. She thinks this time she was touched on top of her clothing and her bottom under the clothing. He did not say anything.
In her evidence in court, she said that when they watched ‘Boss Baby’ it was at night and she had already seen the movie. Everyone else was asleep in their rooms. They were on the couch together. He touched ‘just her bum’ on that occasion.
In the smoking room
In the second interview, the complainant said she was touched when she was sitting on the accused’s lap on a kitchen chair outside in the smoking room. He was smoking. They were patting the dog. He kept touching her. She does not remember if it was on the outside or inside of her clothing. She thinks her mother may have been home, as well as her brothers. She was eight or nine when this happened, but she thinks she was nine. She thinks it was school holidays, on a weekend.
When she gave evidence in court, the complainant said the time in the smoking room happened at about 1.00am. She was having cookies in the kitchen. The accused got them for her. Everyone else was asleep. He had come to her bedroom and offered her some cookies. The lights were on in the smoking room. She said he did not really do anything, she just sat on his lap and he was smoking. He did not touch her on that occasion.
In the complainant’s bedroom watching ‘Snow Pups’
In the second interview, the complainant said there was a time in her bedroom because he wanted to watch the movie she was watching. It was a sad movie called ‘Snow Pups’ about five little dogs. He touched her like before. She does not remember if she was under or on top of the blankets. He touched her over and under her clothing. She kept moving around because she was uncomfortable. He took up most of the bed. When he touched her under her clothing, he touched her on the outside.
When the complainant gave evidence in court, she said there was no touching when they were watching ‘Snow Pups’.
Watching Britain’s Got Talent
In court, the complainant gave evidence that when her mother was in bed, sleeping. Her two brothers were in their room. It was night time. The complainant was watching her TV in her room, trying to get to sleep. She could not watch a programme on TV in her bedroom because the TV only had DVDs. She wanted to watch Britain’s Got Talent. She used to watch that with her grandmother. The accused came and told her it was on and asked her if she wanted to watch it. She went to the lounge room. They were both lying on the couch. She was in front. He was lying behind her. He touched her vagina and her bottom.

She then gave evidence that nothing happened when they were watching Britain’s Got Talent.[22] She later said when they were watching Britain’s Got Talent, he just touched her on the back, but not the front.
The accused ‘got his willy out’
[22] T126.
The complainant gave evidence about an occasion when the accused got his willy out.[23] They were in the lounge room. She was looking away. She does not know what he was doing or for how long he had his willy out. She kept watching the movie.
Conversation with the accused
[23] T124.
In the first interview, Officer Kepka said to the complainant that her grandmother mentioned something about the complainant telling her that the accused said she can touch him wherever she liked. The complainant agreed. She said she told the accused no. She thought the accused meant his rude part.[24]
[24] Exhibit P1A, pages 23 – 24.
Almost 20 minutes after the interview was completed, further conversation was recorded between the complainant and Officer Weaver. Officer Weaver said that whilst Officer Kepka was out of the room the complainant disclosed that the accused said, ‘I can touch his dick and I said no’. She did not know how many times the accused said that to her or when. She said it was more than once, but did not know the last time. [25]
[25] Exhibit P1A, pages 23.
Evidence of complaint
The prosecution led evidence of an initial complaint to the grandmother. It was made on 28 December 2019 with further elaboration about one week later. It was admissible pursuant to s 34M of the Evidence Act 1929 for the limited purposes set out therein.
The complainant gave evidence in court that she told her grandmother that the accused was touching her in the private parts. They were in the car, driving back to her grandmother’s house after being at the pool. She told her grandmother how often it happened, but she does not exactly remember what she said. She said it happened in the accused’s bed.
She did not think she told her grandmother anything about whether the accused promised her anything to make her go into the bedroom. She then said maybe once; if I would have to say it would probably be like chocolates.[26] She then said, ‘so he bribed me with something once’. She thought it was chocolate. Then she said she did think she told her grandmother about the bribing.
[26] T95.
She did not remember what questions her grandmother asked her.
She told the police and her grandmother because she wanted the accused to get into trouble. She learnt it was bad at school. She discussed that with her grandmother. Since she spoke with the police, she has talked to her grandmother about sex, or subjects like that.
The complainant’s grandmother gave evidence that on 28 December 2019 she had overnight access to the complainant. On that day, she had taken the complainant to the pool. They had returned home and were going to go out again to look at Christmas lights at Brighton beach. They got into the car which was parked in the carport at her place. The complainant said, ‘Can I tell you something?’. She said, ‘Every time mum goes to the shops and chemist, [the accused] puts the boys in the bedroom with a DVD and then he takes me into the bedroom and puts on a video and lies on the bed and I lie in his arms … he plays with my bottom and then he puts his hands on the inside and then he plays with my vagina’. The complainant’s grandmother asked the complainant if she wanted to go to the police station. The complainant said she did not.
The complainant showed her grandmother a squeezing motion with her hand to demonstrate the accused playing with her bottom. She said, ‘He was playing with my bottom on the outside and then he put his hand on the inside and played with my bottom and then my vagina.’. The grandmother asked how it made her feel. The complainant said it made her feel uncomfortable. The grandmother asked, ‘Why didn’t you say no?’. The complainant said she was just scared every time her mother went to the shop. The grandmother said that she wanted the complainant to talk to her mother about it. The complainant said no, she was scared of her mother.
They then went to the beach. The grandmother returned the complainant to her mother and the accused the next day.
The grandmother gave evidence she had access to the complainant the following Thursday. She said to the complainant, ‘I just need to ask you a few more things. Did [the accused] have his willy out? What were you doing at that time? How did this make you feel?’. She said that the accused did have his willy out. She was asked whether she played with [the accused’s] willy. She said she did not play with it. He said that she could do whatever she would like if she wanted to. She was really quiet and did not want to talk about it.
The complainant’s grandmother recorded part of the conversation.[27]
[27] Exhibit P3.
Child said,                 “Can I have some mango please”
Grandmother said,        “… mango”
Child said,                 “No Mango”
Grandmother said,        “I haven’t got any mango honey”
Child said,                 “Juiced mango”
Grandmother said,        “Oh. Can I ask you one more question”
Child said,                 “Yeah”
Grandmother said,        “Do you touch his”
Child said,                 “Nah”
Grandmother said,        “He doesn’t let you touch that”
Child said,“He does, he says you can do whatever you want and I’m like no”
Grandmother said,        “So have you touched his, you won’t touch it”
Child said,“No”
Grandmother said,        “Never”
Child said,“… want to”
Grandmother said,        “Good girl. I wouldn’t want to either good girl”
Child said,“…”
Grandmother said,        “That’s alright it kind of made me feel sick. So he hasn’t tried to do, put his willy near your”
Child said,“Nah”
Grandmother said,        “Nah, he just plays with”
Child said,“…”
Grandmother said,        “What”
Child said,“Aussie hahaha. Where did you get this from”
Grandmother said,        “I’ve had it for a long time sweetie. Longtime”
On Friday, the grandmother spoke to her psychologist and a GP, both of whom reported the allegations.
Assessment of the evidence
The prosecution case rests entirely upon the evidence of the complainant. I did not find her evidence to be reliable. When I considered her evidence, together with the grandmother’s evidence and the defence case, I formed the view that the accused did not commit the unlawful sexual acts alleged.
The complainant’s evidence
In assessing the credibility and reliability of the complainant’s evidence, I bear in mind her young age. I am conscious of the possibility that a child of her age may be reluctant to speak to the police about alleged sexual abuse, including a reluctance to indicate the genital area. I am also mindful of the impact that the passage of time may have upon the recall of a young child.
The complainant presented as a confident, likeable and bright young person. In describing the allegations, it struck me that she was quite detached. There could be varied reasons for that detachment, such as a coping mechanism for the trauma that did in fact occur, an indication that the touching did not in fact occur or a trait learned from her grandmother.
She was consistent in her repetition of the basic allegation of being touched, but variable when describing the circumstances. Her account of the time when they were watching ‘Boss Baby’ varied during the second interview as to how it came about that she was watching that film with the accused. Initially, she said they were watching it in the lounge room and her brothers were watching it with her. She later described it as being an occasion when she could not get to sleep so the accused came and asked her if she wanted to watch the movie.
More troubling was that the complainant did not appear to be cognizant of the contradictions in her evidence. Two standout examples were her accounts in court when she disavowed any touching by the accused in the ‘smoking room’ and on the ‘Snow Pups’ occasion. She did not seem to comprehend the significance of that disavowal, namely, that she had previously alleged the accused touched her on those occasions.
Having disavowed touching on those two occasions, she gave evidence in court about touching on two occasions she had not disclosed in the prior interviews. She disclosed an occasion of touching whilst watching ‘Britain’s Got Talent’ and an occasion when the accused put his finger in her bottom. The allegation of the accused putting his finger in her bottom is not one of the unlawful sexual acts relied upon to prove the charge. Nor is the allegation of digital penetration of the complainant’s vagina. Regarding the latter, the complainant said during the second interview that the accused touched her ‘a little bit in the inside’. In court, her evidence was that he put his finger in her vagina and she was not sure if that occurred more than once.
I have further doubt about the reliability of the complainant’s allegations arising from the first interview. Despite many opportunities, she did not describe or indicate touching in her vaginal area. She consistently indicated being touched around her hip area. She said on multiple occasions that the accused did not touch her anywhere else. Ms Ballans submitted that may be due to shyness and understandable reluctance on the part of a young victim of child sexual abuse. Such may be the case if that was the only example of unreliability in the complainant’s evidence. However, as I have already outlined, it was not.
Further, it was also in the first interview that the complainant described the ‘last time’ as occurring in the accused’s bedroom whilst they were watching a movie on TV. I accept the evidence of the accused that there was no TV in his bedroom.
During the first interview, the complainant said the touching happened during the day. By the end of her evidence in court, there were multiple occasions when it happened at night.
I agree with Mr Richards’s submission that there was an air of unreality about one aspect of the complainant’s evidence. She repeated a few times that she told the accused to stop, which he did and then she left. The way she described it was very matter of fact and mechanical. It did not ring true.
The grandmother’s evidence
The doubts I have about the reliability of the complainant’s account are reinforced when considered with the evidence of the complainant’s grandmother. I agree with the prosecutor’s submission that this is not a case about the grandmother. However, in this case, the fact that the complainant spent her formative years solely in the care of her grandmother cannot be ignored. It would be impossible for the complainant not to have been affected by those years living with a grandmother who, in my assessment, is mentally unwell and whose past and present actions demonstrate that her illness has been longstanding. The influence of her grandmother in relation to these allegations, whether direct or indirect, leaves me with grave doubts about the credibility and reliability of the complainant’s evidence. I do not consider the complainant has deliberately concocted these allegations, but I do think these allegations not true. The evidence of both the accused and the complainant’s mother consolidates my view.
An assessment of the grandmother’s evidence is not one which can be made by reading the transcript. The black and white of what she said does not convey the full import of her evidence. What she said must be considered in the context of her presentation. This is one of those situations where the trial judge has the advantage of seeing and hearing a witness. I observed her give evidence over a day.
During her evidence, the grandmother said that she once had a borderline personality disorder, but that condition resolved over a year ago. I am in no position to make a psychological assessment of whether a witness has a disorder of some sort or other. Within five minutes of the grandmother giving her evidence, however, it was clear to me that she has some sort of mental illness.
It is difficult to describe. She presented as someone who was disconcertingly happy to be in the courtroom. That presentation was apparent from the moment she walked in. Throughout her evidence, there was a sense of excitement about being asked questions and having attention focused upon her. She was very much engrossed in herself. She was so self‑absorbed that from time to time, when I asked her questions, she made a show of not realising where the voice was coming from. She had very little awareness of other people around her.
She demonstrated little empathy with others, which I suspect is deeply entrenched in her personality. For example, during cross examination, she was asked about whether the complainant currently had a problem with self‑harm, particularly, burning herself on the legs with aerosol cans. Her series of responses were inappropriate to the subject matter. It was very matter of fact and lacked any emotion or concern. That is to be contrasted with the response of the complainant’s mother regarding that topic. As would be expected, she was distraught when being asked questions about the self‑harm being engaged in by her now 10 year old daughter.
The grandmother’s past actions toward her own daughter and granddaughter also very much speak for themselves. In my view, over the years, she has fulfilled her own needs at the expense of her own daughter and granddaughter.
In cross examination, she described how her daughter and the complainant came to live with her when the complainant was an infant. Her daughter and her daughter’s then partner (the complainant’s father) had had a fight. Her daughter eventually moved out to live with the complainant’s father again which lasted about six months before the relationship came to an end. The complainant was about three. She was asked why the complainant did not then go and live with her mother. Her answer was, ‘I didn’t want [the complainant] going to this three‑storey, one bedroom unit with the windows winding out.’[28] That was an extraordinary answer. She then said a three bedroom house without a back and front yard was unsuitable. She said the complainant had the run of her house, which had a back and front yard and a park right in front. She then said she was not aware of how long her daughter lived there, but volunteered that ‘they were booted out for fighting.’.[29] They moved to another place which was a single storey house, but the grandmother thought was not suitable for the complainant because it was on a main road.
[28] T156.
[29] T158.
The grandmother gave evidence that after her daughter and her partner had a son, they broke up. Her daughter then ‘had a surprise for me and it was [the accused]’. When she gave that evidence, she had an odd demeanour, which is hard to describe, other than a coy smile. I asked her, ‘Sorry, was that amusing?’.[30] She said, ‘No, it was [the accused], that was the surprise. We thought – we hoped it wasn’t [the complainant’s father]. That was the surprise.’. She said it was a good surprise because it meant her daughter had finally ‘got rid of’ [the complainant’s father].
[30] T158.
She gave evidence that at the time her daughter started a relationship with the accused, her daughter would spend no time with the complainant apart from special occasions, probably three times a year. Those occasions were birthdays and Christmas. They would meet the complainant’s mother, her brothers and the accused at the venue, Lollipops.
She was asked why was it that the complainant could not go and live with her mother at that stage. Her response was ‘They were still getting their lives organised’.[31] She then said ‘They didn’t – [her mother] didn’t – [the complainant] didn’t know [her mother]. There wasn’t any sort of relation at all. [Her mother] just got on with her life’.[32] She said that her daughter and the accused ‘got on with their life, they had another baby. [The complainant] went to school, she was doing activities and it just dwindled away’.[33]
[31] T158.
[32] T157.
[33] T165.
In my view, the grandmother made the complainant dependent upon her. She gave evidence that the complainant slept with her until the complainant was about six and a half years old. They always went to bed at 9pm. The television was in the bedroom, they ate in the bedroom; ‘we kind of live in the bedroom’.[34] She gave evidence they did lots of meditations in the bedroom to teach each other to breathe in and out because the complainant had lots of sleeping problems.
[34] T174.
She explained that when her daughter started the relationship with the accused, the complainant did not sleep over at anybody’s place, including her mother’s, because the complainant was ‘just too scared’.[35] Prior to June 2018, when the complainant was five or six, she wanted to stay over at her mother’s place, but according to the grandmother, the complainant was worried because she had not ever had sleepovers. The grandmother gave evidence she dropped the complainant off and sat around the corner at a friend’s place and would ‘just wait’; they would have her for the day to do things. She thought the complainant might have slept over there once.
[35] T136.
The grandmother denied the suggestion that her daughter repeatedly asked to get access to the complainant and that she refused. It was suggested to her that she always made excuses about why the complainant could not see her mother. She answered that the complainant ‘didn’t really even talk about [her mother]’. She said the complainant had lots of activities to do. When the complainant was five, she gave the complainant a telephone which she could use to call out, though she said it had no credit. The grandmother displayed no compassion for the complainant’s loss of relationship with her mother, but rather, a sense of satisfaction.
She agreed that the complainant called her ‘mum’ and was extremely close to her.[36] When they were apart after June 2018, she was worried about the complainant missing her rather than the other way around. She explained that is why she went to court so that the complainant could be reassured that she had not been dumped there. After June 2018 when the complainant went to live her mother and the accused following the grandmother’s attempted suicide, the grandmother took out proceedings in the Federal Circuit Court for access to the complainant. She gave evidence she thought it would be doing the complainant damage not to know what has happened to her grandmother after spending all those years together and then going to her mother’s place and there not being an explanation.[37] She told the complainant that she was no longer living with her because she, the grandmother, had gotten into trouble that night. She told the complainant she was drinking and took the pills.
[36] T184.
[37] T190.
During the Federal Circuit Court proceedings, the grandmother secured fortnightly access visits with the complainant at Lollipops. She then secured unsupervised access in the form of an overnight stay and school holidays.[38] The first overnight stay was on 28 December 2019 which is when the complainant made her complaint about the accused. Bizarrely, the grandmother described her relationship with her daughter during the Family Court proceedings as being good. Her daughter was resisting the grandmother having access to the complainant.
[38] Exhibit D4.
It is not only the grandmother’s determination to keep the complainant for herself which causes me concern about how that has impacted the complainant and these allegations, but also the grandmother’s conversations with the complainant about men.
The grandmother gave evidence that in the past, she had spoken to the complainant about ‘stranger danger’. She told the complainant that you cannot trust a man if he is on his own; that if a man tries to touch you where you should not be touched you need to tell an adult. She agreed that at one point she talked to the complainant about cuddling men. She gave evidence the complainant was not allowed to cuddle a man.[39]
[39] T179.

The grandmother’s attitude, however, was not limited to strangers but also applied to the accused. She gave evidence that during the visits at Lollipops (prior to any allegations) she told the complainant that she was not to sit on the accused’s lap anymore. She explained that the complainant did not know the accused and so she told the complainant ‘that’s not appropriate just to go and sit on somebody’s lap’.[40] The accused would say to the complainant ‘come sit on my lap’ and the complainant would do that. The grandmother explained ‘it was just something that they would do and I’m the one that felt uncomfortable’.[41] She told the complainant ‘I don’t want you sitting on other people’s laps, on men’s laps. You’re too big, for starters, and you don’t do it. Go off and play with your brothers.’.[42]
[40] T180.
[41] T180.
[42] T188
She gave evidence the complainant had been taught at school that it is inappropriate to sit on a man’s lap because you do not know if the man is going to touch you. She also gave evidence that the complainant used the word ‘vagina’ a lot, even in kindergarten. That is where they were taught to use the words ‘penis’ and ‘vagina’ and not to label it anything else. I found her evidence about this to be odd considering the recorded conversation between the grandmother and the complainant.[43] During that conversation, the grandmother asked the complainant whether the accused ‘put his willy near you’.
[43] Exhibit P3, P3A.
When she was pressed about what was wrong with the complainant sitting on the accused’s lap, she repeated that the complainant was ‘just too big to sit on somebody’s lap’.[44] She had talked to the complainant about it not being right for her to hug a man. She told the complainant that you need to be aware if men try to touch you.[45]
[44] T181.
[45] T182.
The prosecutor submitted any suggestion that the grandmother coached the complainant regarding these allegations is implausible. I do not think it is implausible. I do, however, think it has been more subtle and insidious than ‘coaching’. These allegations are borne out of years of the complainant having been under the tight control of her grandmother. It is also relevant that the grandmother has continued to have contact with the complainant up to the time of trial. Her influence is longstanding and current.
In my view, the grandmother has manipulated the complainant for her own benefit. She has groomed and held onto the complainant with a determined grip. She effectively stole the complainant from her mother. It is inevitable that the grandmother’s illness has had an adverse impact upon the complainant. It is unsurprising that the complainant now claims to hear voices and tragically, has started to self‑harm. She witnessed the latter in relation to her grandmother.
My assessment of the complainant’s evidence and the grandmother’s evidence leaves me with grave doubt about the reliability of these allegations. I do not consider the complainant is a victim of the accused. I consider she is a victim of her grandmother.
The defence case
My view that the accused did not commit these unlawful sexual acts is fortified by the evidence of the accused.
The accused is now 38. I found him to be an honest witness. He denied the allegations. When it was put to him that he had put his finger in the complainant’s vagina, he responded, ‘That’s disgusting. No’.[46] The revulsion he expressed was genuine.
[46] T277.
The accused’s responses were considered. He did not overplay his account of the family situation or events. I do not agree with the prosecutor’s submission that he tried to minimise any opportunity he might have had to offend against the complainant. To the contrary, I found him to be understated. I think he simply told it like it was.
I could tell the accused was aware of the limitations of what he could and could not say in court and did his best to remain within those boundaries. He carried with him a sense of helplessness regarding these allegations and the depth of his sadness was palpable.
He gave evidence that his relationship with the complainant’s mother commenced in December 2013 when the complainant was about three years old. The complainant and her mother were living with the grandmother at that time. They soon moved in together, but the grandmother kept the complainant and made it difficult for the complainant’s mother to have access. Their son was born in 2014.
He described the difficult position he was in. Over the years, he gently suggested to the complainant’s mother that the complainant should be living with her mother, but he did not want to overstep the mark. He did not push his partner to obtain custody of the complainant because he did not want to fracture their relationship. He was concerned for the complainant’s welfare. The grandmother made many suicide attempts. Over the years, the complainant became a reflection of her grandmother who did not want the complainant to leave her side. The accused gave evidence that the complainant called her grandmother ‘mum’. She called her mother by her first name.
The accused gave evidence that when he first met the complainant she would come up and give him a hug. She would then go and hug her brothers and they would run off and play. They took to each other like normal people.
After the grandmother tried to commit suicide in June 2018, they felt the complainant should not go back to live with her. When the complainant came to live with them he described it as being a bit rocky at the start.[47] The complainant had some strange behaviours such as smelling and licking things and manipulating her brothers.
[47] T262.
The accused gave evidence about the complainant straddling him when he was on the couch causing him to move her away and say ‘little ladies don’t sit like that’.[48] The complainant’s mother witnessed that occasion.[49] The accused’s father gave evidence that the complainant behaved in a similar manner with him in early 2018 when she lived at the grandmother’s house.[50] I accept the evidence of all three witnesses. However, it does not assist me in determining the issues in this matter. Having considered all the other evidence, I do not consider the accused is responsible for the complainant’s sexualised behaviour on those occasions.
[48] T264.
[49] T287.
[50] T249.
The accused gave evidence that the children were not allowed in the smoking room. There was no TV in the accused’s bedroom. At bedtime, the children could choose a movie to watch in bed. They could either watch the whole movie or the TV was on sleep to shut off at some point. I accept his evidence.
There were occasions when the complainant’s mother went to the shops, but the deli was at the end of the street on the same block. She would be gone for maybe ten minutes and he would barely notice she was gone. The complainant’s mother did the supermarket shopping on Fridays (after pay day) when he was at work and the children at school. He could have been alone with the children when she did the supermarket shopping on school holidays.
If the complainant’s mother needed to go to the doctor, he would drive her there (if he was not at work) and wait with the children in the nearby park.
He said there would have been a few occasions when he was at home alone with the children whilst the complainant’s mother was out.
He gave evidence they watched ‘Boss Baby’ as a family in the lounge room when it was a new release. He could have put ‘Snow Pups’ on for the complainant to watch in her bedroom.
The accused gave evidence that the grandmother took the proceedings in the Federal Circuit Court to get full custody of the complainant.
The accused recalled the night in January 2020 when he was advised of these allegations. He had to move out of the family home: ‘I had my family taken away from me’.[51] He has maintained his relationship with the complainant’s mother, but they must live in separate houses.
[51] T268.
He feels responsible for the complainant’s mother losing custody of her sons (including his son) because of his visit to her home after these allegations were made. He knew he was not allowed to visit the home, but he also knew the complainant had gone to her grandmother’s house as ordered by the court. He thought it would be ok. He had bought the boys a big projector and a play station. His partner did not know how to set it up so he went to the house and stayed the night to play video games with the boys. He gave evidence that the Department took the boys away. He said it was his fault; his partner would still have the boys if he had not gone there. His sadness and remorse were genuine.
The complainant’s mother gave brief evidence. She did not approve of her mother’s relationship with the complainant. Her mother ‘was trying to steal my daughter’; her mother believed the complainant was a reincarnation of her son who committed suicide when he was a teenager. [52] She said that to her many times.
[52] T289.
The grandmother gave evidence she talked about reincarnation, it is her belief in religion. She was asked whether she told her daughter she believed the complainant was her son’s reincarnation, she responded, ‘I said once when she was playing with lego, yes, ‘You remind me of [son’s name]. That’s stuff he does’.[53] She avoided the question. She was asked again. She gave evidence she said to her daughter, ‘It looks like [son’s name] is here playing with the lego’.[54] She did not answer the question.
[53] T154.
[54] T154.
The complainant’s mother gave evidence about an occasion when the complainant accused her of ‘bashing’ her. She was screaming the accusation at her. The complainant’s mother rang the accused’s sister, a police officer, who called the police. The complainant was taken by ambulance to hospital. The complainant’s mother gave evidence the allegation was not true. Nor was the complainant’s suggestion that she did not have a bedroom or a bed to sleep in and that she had to sleep on the ground. She is only able to see the complainant now for 1½ hours per fortnight. The complainant is self-harming.
I found the complainant’s mother to be an honest and compelling witness. I accept her evidence.
Verdict
I am not satisfied the accused committed any unlawful sexual acts, nor any of the alleged discreditable conduct. The prosecution has not proved the fourth element of the offence.
I find the accused not guilty.

[2021] SASC 83

7 July 2021