R v A, SF - [2011] SADC 185

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v A, SF
Criminal Trial by Judge Alone
[2011] SADC 185
Reasons for the Verdict of His Honour Judge Muecke
7 December 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused charged with one count of Persistent Sexual Exploitation of a Child.
Verdict: Guilty

R v A, SF
[2011] SADC 185
Background

In April 2000 the accused commenced a relationship with a woman NH. At the time NH had two daughters. They were T and C. T was aged about 4½ years at the time, whilst C was not quite 2 years old. The accused, NH and her two daughters lived together in a house at Davoren Park in metropolitan Adelaide. They lived there until the middle of 2007. That was for about seven years.
During those seven years the accused and NH had three children together. They were K, B and CR. CR was born in May 2007 when the accused and NH had acquired a house at Millicent in the State’s south-east. They did not move from Davoren Park to Millicent until early July 2007 because of the birth of CR. When the accused and NH moved to Millicent in early July 2007 they moved there with NH’s two daughters, T and C, and the three children of both of them, each of whom had been born when they were living at Davoren Park.
About a year after the move to Millicent the accused and NH had another child together. That child, A, was born in October 2008.
For just over three years, from July 2007 until August 2010, the accused, NH, and the five, and then six, children lived at the house at Millicent.
On 23 August 2010 the accused left the house at Millicent. That occurred after T told her mother and others that the accused had been abusing her sexually for several years. On 1 September 2010 the accused was arrested by police and charged. He has been in custody since then.
The charge
The accused is charged with Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that the accused, over a period of not less than three days and being in a position of authority over T, between the 1^st day of July 2007 and the 23^rd day of August 2010 at Millicent, persistently sexually exploited T, a person under the age of 18 years, by inserting his penis into her vagina, inserting his finger into her vagina, inserting his penis into her anus, licking her anus, touching her breasts and causing her to perform fellatio upon him.
The period referred to in the particulars is the period the family lived in the house at Millicent.
Some general matters
The Crown must prove the charge. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he does do either of those (as is the case here insofar as his giving evidence is concerned), it is still for the Crown to prove the charge.
The Crown must prove the charge beyond reasonable doubt. Further, the Crown must prove each and every element of the charge beyond reasonable doubt.
Nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. In this case the accused is not to be convicted of the charge against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.
I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of that, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will probably be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the Crown has proved each element of the charge against him beyond reasonable doubt.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger or distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters being “proved” or “satisfied” or “established”, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I may not say so on every occasion, “proof beyond reasonable doubt”.
Persistent Sexual Exploitation of a Child
The elements of this offence are:
1The accused must be an adult.
2The complainant must be under the prescribed age.
3The accused must commit more than one act of sexual exploitation of the complainant over a period of not less than three days.
As to these elements separately:
1The accused was 47 years old at the trial in October 2011. I am satisfied that he was an adult at all times since he met NH and her daughter T.
2If the accused is in a position of authority in relation to T, the “prescribed age” is 18 years. In any other case that age is 17 years. T is now only 16 years of age. Accordingly, I am satisfied that at all material times T was under the prescribed age whether the accused was in a position of authority in relation to her or not. I am satisfied that at all material times the accused was a step-parent or guardian of T, and hence was in a position of authority in relation to her.
3An act of sexual exploitation is one where, if the act was properly particularised, it could be the subject of a charge of a “sexual offence”.
A “sexual offence” is defined as:
(a)an offence against Division II (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
In this matter the particulars of the offence alleged by the Crown are that the accused persistently sexually exploited T by:
(1)inserting his penis into her vagina,
(2)inserting his finger into her vagina,
(3)inserting his penis into her anus,
(4)licking her anus,
(5)touching her breasts, and
(6)causing her to perform fellatio upon him.
All of that particularised conduct would, if proved, constitute a “sexual offence” as defined.
The real issue in this trial is whether the Crown has proved beyond reasonable doubt that any of the sexual offences particularised occurred at all.
The evidence of the complainant
T was 15 years of age when she gave evidence at the accused’s trial. She was born on 4 November 1995. T turned 12 years of age on 4 November 2007 when the family had just moved to Millicent.
T said that she met the accused when she was about four years of age. That was when she, her younger sister C, and her mother lived at a house at Davoren Park in metropolitan Adelaide. Her sister C is about two years younger than she. The accused came to live with them at Davoren Park.
T said that when the accused first moved in he and she got along really well. Things then started changing and she did not get along with him. She said that things changed because: “he was sexually abusing me, so touching my private parts, talking about his sex lives, putting his fingers inside my vagina or my anus, making me suck his dick”. She said that this started happening when she was around five years of age, maybe six years old. She said it started when she shared a room with her sister C. The accused came into that room when she was asleep. He shook her, woke her up and “pulled his penis out and waved it in my face and asked me if I wanted to – he asked me Freddie – he referred to Freddie as his penis. Then he asked me if I wanted to suck his penis. Thinking it was alright I sucked his penis”. She said she sucked his penis for say ten, fifteen minutes.
T said that prior to that happening she had no clear memory of other events, but she said “he would always, like, rub me against his clothes and put his fingers inside my vagina and my anus and talk about his sex lives and make me suck his penis”. She said that these “are not very clear memories”.
T said that she lived at the Davoren Park house with the accused for about nine or ten years before the family moved to Millicent. T said that the family moved to Millicent in 2007. T’s mother NH later said that, whilst she got the keys for the Millicent house from 11 May 2007, they did not move into it officially until 2 July 2007 due to the birth of CR, the second-youngest child of NH and the accused.
T said that during the time that she lived with the accused at Davoren Park the accused would touch her, put his finger in her vagina, or do other sexual acts on her two or three times per week. He would put his fingers inside her anus or her vagina. He would make her suck his penis, he would talk about his sex lives, “and stuff like that”. He would tell her about his ex-girlfriends and sometimes he would talk to her about having sex with her mother, and about how her mother liked “sucking his dick”.
T said that when the family moved to Millicent the accused continued putting his fingers inside her vagina and inside her anus. She said that was a regular occurrence. She said it usually happened in the lounge room, or the accused would take her out to the kitchen. He would make her pull her pants down, or he would pull her pants and knickers down himself. Then he would put his finger inside her vagina or her anus. When he did that, “it was pretty much just an up and down movement” inside her vagina or inside her anus.
T described an occasion when she was about 13 or 14 years of age. She had just got home from school. At that time she was going to high school and her mother was picking up the younger children from their school. The accused asked her if she wanted to watch a movie. When she replied that she did, the accused got a movie off the top of his computer and put it in his computer. It was a pornographic movie and she said that the accused made her watch it. When he asked her if she liked the movie, she just said “yeah” because she wasn’t really watching it, she was looking out the window and was trying not to watch it. She said that he then put it to a scene where there were a couple of girls and a couple of men having sex “and doing 69’ers which (the accused) had referred to her as a boy and a girl on top of each other, the girl sucking the boy’s penis and the boy licking the woman’s vagina at the same time”. She said the accused said to her that it looked like her. She said “not really”, because the girl was much older and didn’t look like her at all.
On 6 October 2008 T’s mother NH gave birth to another daughter, A. That was another daughter she had to the accused. She gave birth at Millicent Hospital.
T said that she visited her mother in hospital after A was born. After the visit she went back to the Millicent house with the accused. That was to get some clothes for her mother. Her sister C and step-sister K were in the car. When they got to the house the accused put the radio on in the car and left C and K in the car. He asked T to come inside to help him get some clothes for her mother. She went inside, got some clothes and put them in a bag. She said the accused told her to come back into the bedroom where the accused and her mother slept. When she did the accused asked her to “go on all-fours, which he referred as on my hands and knees. He pulled my pants down and my knickers and pulled his pants down and put his penis into my anus”. She said she couldn’t remember how long he did that for but it was “a long time”. She said: “He did like a pelvic thrust, like his penis went in and out of my anus, and I kept pulling back from him and he kept pushing me back onto his penis and he told me to relax and I said ‘I’m trying’, but he said ‘try harder’ in a firm voice”. She said that it really hurt her anus, but she was too scared to tell him. She said she was on her hands and knees on the bed and he was standing behind her.
T said that later, when she defecated, she found that on the toilet paper there was a bit of blood. She said something to the accused and her mother but the accused said it was just tomato from food. She said that she continued to see blood when she went to the toilet after that. That continued until she complained to the police about what the accused was doing to her.
T said that the occasion in the bedroom after A was born was the first time that the accused had put his penis inside her anus. She said that she has some memory of him doing that again on other occasions, but they were not clear memories. She said that she recalls that he did continue to put his finger inside her anus. She said she continued to notice blood after she defecated for the next two years or so after the incident of anal intercourse in her mother’s bedroom after A’s birth.
T said that she had “not really” suffered from bowel problems such as an irritable bowel. She said that she had difficulty defecating because her “bum was always sore and it made it hard for me to poo”. She said she suffered from constipation “sometimes”, but added “it was more because I had a sore anus”.
T described an occasion when the accused put his penis in her vagina. She said it was about a month or so before she complained to the police (23 August 2010). She said that her mother was in the bath and she went to the lounge room to put her books and pencil case in her bag ready for school the next day. She was wearing her pyjamas. She said that the accused called her over and “asked me if I wanted a fuck, as in do I want sex”. She didn’t reply. He pulled her across to where he was sitting on the lounge, made her pull her pants and her knickers down, and he took his penis out of his pants. She said he made her sit on top of his penis. She was facing away from him so that her back was against his stomach. She said he made her “sit on his penis”. She said that it hurt. She said: “But once again I was too scared to tell (him)”. She said that B, CR and A were in their room with a gate across the doorway, and C and K were in their room.
T later said that the accused told her to pull her pants up and go back to her room, because her mother was taking the plug out of the bath and they could hear the bath water running through the drain. He told her to make an excuse (I infer to her mother because she (T) was in the lounge room), so she said she was putting her books in her bag.
T said that about a week before she complained to the police she had got home from school and the accused had asked her to go to the kitchen and meet him there. She went there. The accused lent against the cupboards in the kitchen, pulled down his pants and pulled out his penis. He told her to suck his penis. After sucking it for about ten minutes, the accused told her to stand up. She had been on her knees sucking his penis. She stood up, but was bending over because she was still sucking his penis. She said the accused put his hands inside her pants and knickers and put his fingers up her anus.
T said that prior to this happening the accused had said to her: “Do you want a drink?”. T said that he said that quite often, meaning “do I want to swallow his cum”. She said he would more often say “Do you want to suck my penis”. There were some occasions when he would say “Do you want a drink?”. After he said that she sucked his penis because she was too scared to say no.
T described another occasion which also occurred about a week before she complained to the police. The accused told her to go to the bathroom. She did so and he came in with her. He told her to lay down on the bathroom floor, pull her pants down and put her legs up in the air. The accused said to her: “I’m just looking for that little piece of skin in your vagina”, referring to her hymen. She said he put her legs up in the air, pulled her vagina apart, looked inside it and said: “I can’t see that piece of skin, we can have sex if you want, I don’t mind doing it for you”. She didn’t say anything. She said she had in fact had vaginal intercourse with him before that. They were in the bathroom for five or ten minutes but did not have vaginal intercourse.
T described the last thing she could remember happening between herself and the accused before the police became involved. She said it was the day before she complained to police. It was a Sunday night. Her mother was in the bath. She was wearing a t-shirt and a pair of undies, with a dressing gown over the top. She had done it up with the little strings inside and strings on the outside. She was putting her flute and her flute books in her bag when the accused pulled her across to him and pulled her dressing gown apart. He then snapped one of the strings on the inside of her dressing gown, put his fingers inside her undies and put his finger inside her vagina. He did that for about ten minutes. She said that when he put his finger inside her anus it hurt because her “bum was also sore because he put his fingers inside or his penis inside my anus”.
T gave evidence as to what was thereafter referred to as the routine in the house at Millicent. She, her sister C and her step-sister K shared one of the three bedrooms in the house. The door to that bedroom was across the hall from the door to the bedroom used by the accused and her mother NH. The third bedroom in the house was also off the hall, but was towards the living area of the house. The three younger children B, CR and A shared that room.
T described that a cot had been cut in half to form a gate which was put across the door-way leading to the younger children’s bedroom. That gate had a latch on it. She said that was so that the accused could latch it so that the three younger children could not get out of their room. The gate would be removed overnight when the door was shut.
T described the bedroom she shared with her two sisters. She said that the three girls were not able to get out of their room overnight. They could not do so because the accused had drilled and put a latch on the outside of the door. She said that at night time he would put the latch on the closed door so that they could not open the door and go to the toilet during the night. She said that very often if K wanted to go to the toilet during the night she would yell out through the little gap under the door: “Dad, I need to go to the toilet” or “Mum, I need to go to the toilet, I’m busting”. She said the accused would yell out “no, go back to bed, you are not going to the toilet. You should have gone before tea. You can wait until morning”. T said that K would quite often “wee her pants or poo her pants and (the accused) would punish her by saying she is not allowed to go to school or quite often he got a metre ruler and slapped K across the arse”.
T described what would happen when the children got home from school. She said: “We would get home from school and we had to put our bags down, grab our lunch boxes and drink bottles out of our bags and put them on the coffee table that was in the lounge room. We weren’t allowed to drink from then on until school the next day and we were sent to our rooms and weren’t allowed out until we were called for tea”. She said that they were not allowed to go out into the backyard and play. They were not allowed into the lounge room to watch television or play games.

T said that if they came out of their rooms before dinner the accused would hit them or yell at them, and tell them they would go without tea, or he would lock them in their rooms. As a consequence of that, when they went to their rooms they stayed there.
T said that they were allowed out for dinner but once they had finished their tea they were sent straight to bed. They had to go to the toilet and then straight to bed. When they went to bed the door was latched.
T said that occasionally she came out of her room because she was the eldest child and the other girls were a lot more scared of the accused than she was. She said that the accused would allow her to stay out of her bedroom when he asked her to suck his penis, but otherwise she would be sent straight back to her room.
T said that this was the routine at the Millicent house from the time they first moved to Millicent in the middle of 2007 until she complained to Police in the middle of 2010.
T described what happened on the evening of 23 August 2010. Everyone was at home at the house in Millicent. The six children were in their bedrooms. The accused and T’s mother were on the couch in the lounge room. They were playing PlayStation 3. T described an argument between the accused and her mother. They started yelling at each other. She saw the accused push her mother back onto the couch so that she was on her back. He started yelling at her. Her mother was crying and started yelling at the accused. K left their bedroom and hid behind a buffet to see what was happening in the lounge room. T said she heard a slap. Her sister came running back into the bedroom and said that the accused had just slapped their mother. She said “(the accused) is bashing mum”.
T said that she got off her bed, put her shoes on and ran into the lounge room and out the front door. The accused followed her but stopped at the gate in the front yard. She kept going across to the neighbour’s house and banged on their door. She told the neighbours to ring the police. She said that the male neighbour telephoned the police. She was outside and in tears. She wanted to go back to her house and get her sisters and brother but she was too scared of the accused. Her female neighbour came outside to keep her company. T said to her that there was something she needed to tell her. She then told her that the accused had been sexually abusing her. She told her a few things that he had been doing to her, like making her suck his penis and putting his penis inside her vagina and her anus.
T said that her female neighbour was the first person she ever told about what happened to her at the hands of the accused. She said she had not told anyone else because she was always scared of the accused. He had often said to her: “If you tell anyone, I’m gonna hurt you. Keep it a secret”. She said she remembered one occasion when she said to the accused: “Look, I can’t do this anymore. It’s just not right”. She said the accused started crying and asked her “Why?”. She had said: “It’s just not right. You’re meant to be my step-dad, not my boyfriend”. She said that the accused started crying and said: “Just do it for me”. She said she was too scared to say no.
T said that after she told her female neighbour, she told the police when they came, and then she told her mother when she brought the other children over to the female neighbours’ house. When her mother asked her why she did not tell her before, she said that she had wanted to, but she was always too scared.
T said that the next day she was taken to the Flinders Medical Centre and examined. She said that there she was given some medication for an injury to her anus. She said that although sometimes her anus hurts, overall “it’s fairly healed over”.
Under cross-examination T said that a man who had lived at the Davoren Park house with her mother before the accused had abused her. She said that she was not really clear on the sort of things he did to her. She said she did not remember the details of what happened to her regarding that man.
T described having arguments with her mother from time to time. She said that the majority of the time when she fought with her mother it was because she was angry with the accused because she wanted to tell someone what he was doing to her but never had the courage.
When cross-examined about the incident she had described when the accused had anal sexual intercourse with her in her mother’s bedroom after A was born, she agreed that it would have been quite possible for either of the two children left in the car to have gone into the house, and seen what was happening in the bedroom. She said, however, that the two children “were too scared to come inside”. She said that all of the children were scared of the accused because if they went into the lounge room he would hit them or yell at them. If they did something that the accused thought was wrong he would hit them or yell at them. She said that he had “control over all of us”.
When cross‑examined regarding her evidence about constipation, T said that she was not really sure whether she suffered instances of constipation before the first time the accused put his penis in her anus in her mother’s bedroom. After that incident she said there were one or two occasions of constipation.
Near the end of T’s cross-examination there were the following questions and answers:
QI suggest to you that (the accused) did not finger around your vagina. He didn’t finger around your anus. What do you say.
AThat’s a lie because he did.
QI suggest to you that (the accused) did not insert a finger in your vagina or your anus. What do you say.
AThat’s a lie because he did.
QI suggest to you that (the accused) did not touch your breasts. What do you say.
AThat’s a lie because he did.
QI suggest to you that (the accused) did not make you suck his penis. What do you say.
AThat’s a lie because he did.
QI suggest to you that (the accused) did not lick your anus. What do you say.
AThat’s a lie because he did.
QAnd I’m suggesting to you that there was no sexual activity between you and (the accused). What do you say.
AWhy would I have an injury in my anus or in my vagina and the doctor has seen that if he didn’t put his penis inside me?
I set out these questions and answers because T did not say in her evidence‑in‑chief that the accused had touched her breasts, and neither did she say in her evidence-in-chief that the accused had licked her anus. In the questions and answers just referred to she said that he did both of those things. I return to this topic.
Other evidence in the Crown case
C gave evidence when she was 13 years old. She is the younger natural sister of T. The first person she can remember playing a father role to her was the accused. He was her step‑father for as long as she could remember. She called him “Dad”.
C was asked about the children’s daily routine when they went to school. She said that they got home at around 3.30pm. The first thing they would do was to put their lunch boxes on the desk in front of the TV, in the lounge. She said the children would occasionally put them in the kitchen if the accused was not at home. If he was, they would not go into the kitchen because they were not allowed in the kitchen.
C said that once she had put her lunch box down on the desk she would go straight to her room. She shared a room with T and K. The three girls would be in their bedroom by 3.35pm. They would stay there until dinner time.
C said that at dinner time they would sit down on the floor in the lounge room and eat tea. Then they would go straight back to their rooms and go to bed. They were not allowed to play in the lounge room or other areas of the house. They were not allowed to go into the back yard. If they came out of their bedroom they were told by the accused to go back to their bedroom. They were told that if they did not they would be sent to bed. As a result, they stayed in their room.
When asked how she felt towards the accused, C replied: “Scared”. She said that was because of what he did. She said he would sometimes “slap us with his hand or a metre ruler or studded belt”.
C said that after dinner they would go to their bedroom. They would then go to the toilet and then go to bed. The latch would be put on their door to stop them getting out of their room. She said that if they wanted to go to the toilet through the night they would yell out under the door to their mother and ask for the toilet. Sometimes, however, she was sleeping too heavily and didn’t hear them. When that happened: “We might pee ourselves or poo ourselves and poo our pants”. C said that happened to her about once or twice a month. That continued for the whole time that they were living at Millicent.
When asked about the weekends C said that they would have to stay in their bedrooms or else they would get into trouble. Occasionally they were allowed at the park in front of their place.
C said that if T left their bedroom, typically she and her sister K would stay in their room.
C said that sometimes after dinner T would take the bowls into the kitchen. She said there was the time she remembers when T was taking the bowl into the kitchen. She said that on that occasion the accused “grabbed onto T’s shoulder while she was walking into the kitchen with her back towards (the accused) and turned her around and stopped her and started, like, touching her inappropriately”. She said he was: “Like sort of fingering her”. His hand was “near her bum and vagina”. She said T “still had her clothes on so he put his hand around her vagina area over the top of her clothes”. She said that this did not last very long, “about a minute or so”. She said that T “sort of went to back away but then he stopped her so she just went along with it”. C said that this occurred when T had not quite got into the kitchen. It was at the area of the doorway leading into the kitchen.
C said that she did not say anything “because I was too scared”. She said: “I was scared he was going to tell me off for watching or something”. She said she did not tell her mother about this incident. She said that she did not see anything like that happen again.
When asked in cross-examination whether she was lying or mistaken about what she saw, C replied: “That’s exactly what I saw”.
NH is the mother of all the children. She said that T and C have the same father. The father of her four other children is the accused.
NH said that she and the accused started a relationship about 28 April 2000. She said that an earlier partner of hers was accused by T of sexually abusing her. It was reported to the Elizabeth CIB, a medical was done which apparently showed no evidence, so therefore he could not be charged. She said T was four years old at that time. She said that that former partner of hers had been off the scene for about a week before the accused came on the scene.
NH said that the family moved into the house at Millicent on 2 July 2007. That was just after the fourth child of she and the accused was born. That was CR.
NH gave evidence about the routine at the Millicent house. She said that when the children got home from school they took their bags off and put them in the lounge room. If they had homework they took that out of their bags and took it to their bedroom. That was where they would stay until tea time.
NH said they were only permitted out of their rooms for toilet purposes. They were not allowed to come into the lounge room and play. They were only allowed into the backyard to play “very, very rarely”. She said that if the children came out of their room before tea time “they would get told quite promptly to PO”. She said that meant “to piss off”. She said the accused would tell them that. She said that on occasions she saw the accused hit the children, although generally “he’d growl at them”.
NH said that the children would remain in their rooms until tea time. They would come out at tea time. They would all sit down and have their tea brought out to them from the kitchen. Once they had finished their dinner they would then go off to their rooms again until bed time. They were not permitted out of their rooms. She said that once the children were put to bed “the door would be closed over after the light was turned off and there would be a little latch with an eye hook put on the door”. She said the accused put that latch on “to stop the kids from coming out during the night, getting into the fridge or the cupboards”. When asked what would happen if the children wanted to go to the toilet, NH replied: “That was just too bad”. She accepted that they would wind up wetting themselves from time to time. When that was discovered the accused would keep them home from school.
NH said that the latch on the bathroom door was “to stop the children getting in there to access a drink”. She said that was because K, in particular, would sneak in to get a drink “according to (the accused) every five seconds”.
NH said that when the accused hit the children most of the time it was with his hand, but there were occasions where he used a metal steel metre ruler with which he hit the children across their backsides.
NH said that the younger three children were kept in their room by the side of an old cot that had been cut to fit inside the door frame “with an eyelet hook screwed in”.
When asked about the routine on a Saturday, NH said that mostly the children were kept in their room all day. She said: “The only time they really came out of their room was when (the accused) left the house and they came out to the lounge room because I did not like the idea of them being in their room all the time”.
NH was asked about times when she might leave the house with the accused and the children remaining at home. She said that when she returned to the house when that happened T was in the lounge room. She said: “It was always T, never any of the other children. Now, I was unsure of why this was and I just assumed that she needed adult conversation because she was sick of being around her sisters”.
NH described the events of 23 August 2010. She said that around 6pm the children were in their rooms and she and the accused were playing a PlayStation game. She said that things got a bit heated during the game, she “got a clip under the chin”, and it ended up “in a full-on argument”. She said she found out later that T and K had run out of the house. She said she told the accused to get out of the house but he would not leave. She then got her keys and her handbag and went to leave the house to buy some cigarettes. When she was outside the house she was asked, by her male neighbour, where she was going. She said she was “going to get some smokes”. He told her that T and K were there at his house. She went inside her neighbours’ house and saw T, who blurted out that the accused had been abusing her for some time. She went back to her house and collected C to take over to the neighbours’ place. She picked up the three little ones and went straight to the neighbours’ house. She said to the accused: “If I find out any of this is true, look out”.
Under cross-examination NH said that the routine she had described at Millicent had also existed at Davoren Park. When asked whether she was part of that routine she replied: “Only to keep the peace”. When asked what she did to keep the peace, she replied: “By shutting up and putting up, to stop any arguments between (the accused) and I”. She said she would not reinforce the routine that she said had been in place for a “good nine years” until August of 2010. That routine included the accused not allowing the children into the kitchen.
The two neighbours across the road gave evidence about what happened on the evening of 23 August 2010.
The male neighbour said that he had known the accused, NH and the children for about seven or eight years. In that time he had never been into the house of the accused and the family. He later said that the accused “was that sort of person that wouldn’t let anyone in” his house. After the accused was arrested NH would let him in the house but not the accused. He said that “whenever (the accused’s) kids were at the park (the accused) was always at the front door”.
In the early evening of a day in August 2010 he was at home with his partner and their children. His partner came out to his shed with T who was saying something about an assault that had happened over at her house. They went inside their house to ring the police as the phone was inside the house. He said that when he was on hold to the police he noticed T standing in a very insecure stance. She then started speaking. She said that the accused had been making her give him “head jobs”. They were the words she used. He said that T then referred to a date when her mother was giving birth to her last child, and that is when she referred to anal sex. He understood that was when anal sex started.
He said that he then got on to the police and told them that they had to listen to what T had to say. Later the police arrived and T spoke to them.
The female neighbour was the other neighbour across the road. She said that she was pretty friendly with T. When T came to her house in the evening of 20 August 2010 she appeared “very distressed, nervous, and asking for some help – for me to call the police”. When she, her partner and T were in the house and her partner was put on hold to the police, her partner remarked on how nervous T looked. She said T’s mother came inside the house at some stage. She said that: “T looked at him (her partner) and me and you could tell by the expressions on her face she wanted to say something and then she started telling us and she spat and kept spitting and kept telling”. She first said: “Mum, he has been doing it to me. He has being doing it … He has been touching me … He has been doing it to me for years, Mum”. She said that T’s mother then left and went over to her house. Then T started to disclose certain events. She let T keep going. She figured that she might be closing a door in her face if she said that she did not want to hear anymore, so she “listened in horrid fascination”. T referred to when her mother was in hospital having A. T referred to that being the time when “the anal first started”. She also referred to when her mother was out of the house the accused would make her have oral sex with him. T told her other things that “you don’t want your daughter to ever tell you”. She said that T went on for a good ten, fifteen minutes.
When asked how T appeared when she was telling her about all of this the female neighbour replied: “Like there was a weight coming off her shoulders, the more that she spoke to me, the more it was coming out, the more she was freeing her arms with her expressions with everything else”. She went from appearing insecure to: “Finally I can tell somebody”. Then she would not stop. “She kept going and going and talking about it”.
The female neighbour said that when the police arrived T went and spoke to them.
Sergeant Brenton Philips was stationed at Millicent in August 2010. He went to the neighbours’ house on the evening of 23 August 2010. He had a conversation with T outside the house. He said she told him: “I’m sick of him making me” – she paused and said “Well, no other way to say it – making me give him head. I’m scared of him”. She was referring to the accused.
Sergeant Phillips said that T appeared very agitated, scared and upset. To reassure her he asked T to sit in the car with him. He had a further conversation in the car. T told him that the accused had “been doing it since I was four”. She had said: “He’s been having sex with me since I was four, down there, at the back and the front”. She said she was referring to her step-father the accused. She said that he forces her to do things, and she is scared. He hurts her and her brother and sisters.

Police officer Christopher Walkley said that he arrested the accused on 1 September 2010. He conducted a record of interview with the accused during which the accused declined to answer any questions. That was a legal right the accused had and I draw no inference adverse to him for the fact that he exercised a right that he had. When asked in cross-examination whether it was fair to say that the accused “was demonstrating a surprised reaction” when the nature of the allegations made against him were told to him, Christopher Walkley replied: “I would say no”.
Mr Walkley said that he seized a number of DVDs from the house where the accused and the family lived. He viewed one DVD entitled “Naughty Stuff”. He said it contained pornographic material of an explicit nature. He said that it was: “Basically adult pornography, involving all sorts of penetration, including anal penetration with objects, etc”.
Mr Walkley said he seized other items from the house, including a blue dressing gown and some bed linen. It was an agreed fact that DNA testing of these items proved inconclusive and there was no seminal fluid found to be present.
Dr Diana Lawrence gave evidence. She is a specialist in paediatrics. She said that at 7pm on 24 August 2010 she examined T at Flinders Medical Centre.
Dr Lawrence noted that T had a normal hymen for her age. She said T was pubertal. She said there was evidence of a healed injury just in front of T’s hymen. That was to a part of the genital area called the vestibule. She said that she did not actually write “healed” in her report but it was not an acute, fresh injury. She said any significant trauma to that area, penetrating trauma, might cause such an injury. She said that it could have been caused by a penis or a finger, but not a tampon. She could not put a time to the injury at all. It could be anywhere from a week old, to a few years.
Dr Lawrence said T had a normal appearance to her hymen. She said that means that it appeared normal. There was no evidence of old or recent injury to the hymen. When asked whether that indicated that T had not had sexual intercourse at any time Dr Lawrence replied: “Not at all. The nature of the hymen of pubertal and post‑pubertal women is that it’s quite elastic and it regularly accepts a penis, so the most common scenario is there is no injury to a hymen of a pubertal or post‑pubertal woman in that circumstance”.
As part of her routine examination Dr Lawrence examined T’s anal area. She noted that: “She certainly had evidence of an anal fissure at six o’clock”. That was at the bottom of her anus when she was lying on her back. She explained that an anal fissure is a split of the tissues of the anus, the anal mucosa. She said that the fissure she saw was not actively bleeding, but it was certainly clearly an acute anal fissure. She said that such fissures usually only bleed if the anus is stretched. She said: “They do not bleed just in the resting position”. She said that it was very common for there to be some bleeding where such an anal fissure exists when the person goes to the toilet and passes a bowel action.
Dr Lawrence said that a number of different things might cause such an anal fissure. One was constipation, where the passing of a large stool can split the anal area and cause an anal fissure. She said that if a person’s constipation passes and bowel movements return to normal, an anal fissure that might have been caused would clear up quite quickly. Another common cause of anal fissures is inflammatory bowel disease. She said that if that causes an anal fissure then the fissure will resolve after successful treatment of the inflammatory bowel disease. That is normally done with medication.
Another cause of anal fissures is the penetration of the anus with some type of object. Dr Lawrence said any trauma like that can split the anal mucosa. She said that if T’s anus was penetrated by a penis that certainly could cause an anal fissure. If that had occurred in about 2008 she said that she would expect that fissure to heal if there was no further interference with her anus, and no further trauma. In that event it would be expected that the fissure would heal up quite quickly. Dr Lawrence said that if T was anally penetrated in 2008 and continued to find blood when she went to the toilet for the next two years, that history would be inconsistent with one penetration in 2008 and no others after that. She said on-going symptoms would certainly be accounted for by repeated penetration of her anus in such a two year period, by a finger or some other object. She said that the finding of blood continually for two years would be consistent with repeated penetration of the anus by either a penis or a finger over that period.
Dr Lawrence said that she treated T’s anal fissure with minor medication to help with the healing over a few days. She re‑examined T five weeks later on 29 September 2010. On that day T’s symptoms had completely resolved and her fissure was healed. She later said that T’s symptoms of finding blood on her anus had settled quite quickly, within ten days of her discharge from Flinders Medical Centre, and when she examined T the fissure was no longer evident.
Dr Lawrence said that she would have expected the anal fissure to be evident five weeks later had it been caused by an inflammatory bowel type disease, without any treatment of that disease. She said that the fact that the fissure healed without any treatment for an inflammatory bowel disease indicated to her that T did not have such a disease.
Dr Lawrence said that it would be very uncommon for constipation to go on for two years. Constipation is often very short term, although she added that some people can be constipated for a long time. She said that there is a chance that a fissure would not heal properly if someone suffered constipation from time to time. Dr Lawrence did say, however, that if there was an instance or instances of constipation in T’s history that would not change her opinion in light of her “complete examination of (T) and (her) review” of T.
In cross-examination Dr Lawrence spoke about the possibility of penetrating a vagina without damaging the hymen. She said that was possible in a mature, post‑pubertal or pubertal female. She said it is different if it is a pre‑pubertal female. She said that the studies showed that from birth to adolescence, when oestrogen is quite low, the hymen is quite thin, very sensitive and quite easily damaged with any trauma or penetration. Once it has had the effects of oestrogen in puberty it becomes very elastic. It is quite different tissue once oestrogen is present. She explained that a hymen is not a membrane that cuts off the vaginal canal. It has a hole in the middle, like a doughnut. She said that in a post‑pubertal hymen the insertion of some object would not necessarily damage the hymen. She said that T was post‑pubertal when she examined her.
The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to that general rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within the field of their expertise. Dr Lawrence is such a person.
However, the law is that I am not bound to accept the opinion evidence she gave. I remain the sole judge of the facts and I am entitled to assess, and accept or reject, any such opinion evidence as I see fit.
It is for me to give such weight to the opinions of Dr Lawrence as I think they should be given having regard to the qualifications of the witness, the partiality or otherwise of the witness and the extent, if any, to which the witness’s opinion accords with such other facts as I find proved to my satisfaction.
The evidence of the accused
The accused said that he was 47 years old. He was born in Melbourne and did his schooling in Victoria, until he was 15 years old. He left school in Year 10. He came to South Australia in 1988, and settled in the Riverland.
The accused said that he met NH in about 2000. He moved in with her in a house at Davoren Park, where they lived for about six to seven years. He said that he was aware that a previous relationship of NH had broken up because of “the supposed molestation of T”.
The accused said that they all moved to Millicent after they had been at Davoren Park for a number of years. He said he did not have work at Millicent at that stage as he “was in the capacity of a carer for (NH)”. He said that he and NH received social security payments.
The accused denied, in a series of questions regarding the various different allegations about which T gave evidence, that he ever did any of those things to her. He denied inserting his penis into her vagina, inserting his finger into her vagina, inserting his penis into her anus, licking her anus and causing T to perform fellatio on him. When asked: “In relation to touching her breasts, have you ever done that”, the accused answered: “Not in a sexual way at all, no. Not at all”.
The accused described the occasion when he, T and two other children went back to the house at Millicent after visiting NH in hospital after the birth of A. He described what happened in a way generally consistent with the general description given by T. He denied, however, that he performed penile/anal intercourse on T when the two of them were in the house together.
The accused was asked to describe the way he got on with T and how she got on with others. He replied:
Generally she was quite a likeable person with most people. She could be a bit snooty. She was getting older, of course. Most of the time it was like talking to a brother sometimes, or a sibling, same age, sort of thing. She would want to be out with the adults talking all the time, mainly me, she wanted to talk with me if she ever had a problem or something to know about or wanted to expand on knowledge of some sort. That’s about it.
The accused was asked whether there was ever any “competition”, or what seemed to be competition, between T and her mother, NH, about him. He replied that there was. He said it would start off “sort of playfully, but they would sort of get a bit narky with each other at times”. He said: “They would get fired up over – just saying ‘He’s mine, he’s mine, he’s mine’. NH would take it further along. She was a juvenile herself at times, used to keep it going as much as she could, just to cause a ripple effect with T, so to speak”.
The accused said that T, occasionally K, and NH liked to brush and groom his long hair. They would also assist him with applying an anti-bacterial gel to his shoulder, back, neck and also his chest. He said that T would occasionally ask him when he was in the shower “Can I comb back your hair?”, to which he would reply “No”.
The accused said that he had a DVD with adult pornography on it. He said that it was a compilation of different things and had been given to him as a gift by the wife of a friend of his. He said he was pretty certain that T had never seen that disk.
The accused denied that he had sat T on his penis for some time, although he said that she had sat on his lap or on his leg but she had clothes on. He denied touching T over her clothes around her vagina area, but said that he may have put his arm around her waist to give her a kiss goodnight, but that was about it. He said he had never, “never in my life” taken T to the bathroom, removed her pants, set her down on her back, and looked at her vagina area.
The accused agreed that T would come to him with a problem or wanting to talk to him about something. She had not necessarily asked to talk to him about sexual matters, until the last few months and there were “a couple of things here and there”. He would say to her to consult the book which he had obtained for her and given her. That was a book entitled Every Woman. He explained that he had previously had one in his possession for many years. That one got ruined. He found another one in an op shop and he bought that for NH to look at. He said that when T “started forming and becoming a teenager” they passed it on to her. He said there was another book which he could not remember the name of “to do with ladies things”.
The accused described what happened on 23 August 2010, the day that he left the Millicent house. He said that he and NH were playing a game called Sacred. He was “dropping off slightly” and going to sleep. The next thing he knew was that NH “got right in my face with everything”. He went to push her back, but caught her under her chin. She started kicking at him. That was the last thing he remembered. She told him to grab the keys and go. She picked them up and threw them. He said that NH was the first one to leave because T and K ran out the door when he and NH were arguing. He said NH came back later, got the other kids and told him to go. He grabbed a few things and left. He said that NH: “Just looked at me with a look on her face, there was a tear in one eye and said ‘Just go’. I said ‘Fine’ and left”.
The accused said that he stayed in the area for a while, sat down, had a few drinks and dozed off. He went back to his car and went to sleep until morning.
The accused said that later he received information from someone he knew in Millicent. He went to the Millicent Police Station and said “I’m here to see what’s going on”. Detective Walkley came out and they spoke in his office. He said that when the allegations came out: “I was surprised, but I wouldn’t have put things past NH the way things had been going”. He said the allegations were put to him, he did not answer questions, and he was arrested.
On the next morning of the trial the accused’s counsel returned to an answer that the accused had given the day before. That was in answer to a question relating to whether he had touched T’s breasts to which the accused had answered “Not in a sexual way at all”. He was asked to say what he meant by that answer. He replied:
AI meant I have never done that in a sexual way. There was once about three years prior to this when she was starting to form, she was a bit – one was lopsided, like larger and one was smaller, and (NH) thought there was a lump in there and she asked me for my opinion and I said no and they both wanted me to check and I said “Look, go and see a doctor and see what they can sort out”. That’s as far as that went. Just an opinion, that’s all. In the presence of the mother, that’s all.
HIS HONOUR
QWhen you say you “checked” what do you mean.
AJust a feel (DEMONSTRATES) to see if there was a lump there and what the problem was with the actual breast.
Under cross-examination it was put to the accused that his relationship with T was such that he regarded her as more of an adult than a child. He replied: “Not as such. T seemed to be the older person, you know, wanted to be around the older people all the time. If we were having guests over or something in Davoren Park or Millicent, which was very rare, she would want to be out there as well, you know. Had to be part of the picture sort of thing”.
He was asked whether he regarded T more like a sibling or a brother or someone on his level. He replied: “Yeah, a close sort of confidante, I suppose you would say. That’s the way she saw me as well”. He said T used to come out and talk with him all the time. He added that she also would talk to NH occasionally as well. It was suggested that the relationship he had with T was a special and close one, and he was asked whether he would agree with that. He replied: “It’s close-ish, I wouldn’t say it was – you know, we weren’t an exact fit or anything like that. We weren’t equals as in two poles in a magnet or anything, no. We were fairly close but she was close to NH of course, as is expected”. He was asked whether the lines were blurred between his relationship with T and his relationship with NH. He answered: “Of course not, no. In no way”. He said that T enjoyed grooming him, and doing things like that. He said: “It was a competition between her and her mother, yes, to get there and do it”. He was asked why he said ‘No’ to T when she came into the shower and asked to groom his hair. He replied: “Well, I was naked of course. She also said I could put some jocks on if I wanted to and she could do my hair and I said no”.
The accused said that he and T would talk about things in the lounge room together for “sometimes 15 minutes, sometimes 20 minutes, sometimes longer”. He said that T would spend time with him in the lounge room when NH was out. He said that T was out of the bedroom more than the others, and he agreed that, generally, if T was out of her bedroom and in the lounge area, the other children would stay in their rooms.
I now deal with the evidence the accused gave as to the routine at the houses where they all lived.
The accused was asked by his counsel as to what the routine was at the Millicent house. He replied that the children would come in from school and put their bags down. They put their lunch boxes on the coffee table or would take them to the kitchen and put them on the kitchen sink or bench. When asked whether there was any restrictions on who could go into the kitchen the accused answered that they left it to one person to go into the kitchen because “they all wanted to go out to the kitchen”. He said that either NH or himself would take the lunch boxes out to the kitchen if the children did not do it themselves. He said that normally it was only one person that did it, one of the children. He said that the children would then be asked if they had homework and if they did not or did not need help “they would go and use their brains and do something or go and relax, play a game or something like that”. He said that would be in their room “or over the park if it was a nice day”. The park was straight across the street from their front door. He said that the children did play in the backyard, but added: “but most of the time in Millicent it’s cool and cold and wet and they wouldn’t go outside when it’s too cold”. He was asked to comment on the evidence suggesting that they were not allowed in the backyard. He replied: “They were allowed but we didn’t restrict them from it totally. They did make up their own minds to go out the back or not. Or over to the park. They would say it was boring. Other times it would be too wet. Or they would say there is nothing to do and stay home”.
The accused was asked about the evidence of the locks which were on the outside of some doors in the house. The accused said that there was a lock or latch on the outside of each of the three older girls’ room, the toilet and the bathroom. He said they were put there for a couple of reasons. He said that K was “the main instigator of it”. He said: “The older two occasionally got out to snoop around at night time, but K had a problem with drinking from the toilet bowl, she made herself sick drinking disinfectant for the toilet, she also snooped around in the bathroom, tried drinking shampoos, conditioners and so forth in the past”. The accused said that they tried to find out what the problem was and had her medically checked on several occasions. He said that at some time the latches were put on the doors.
The accused said that after tea and before they went to bed the children watched TV occasionally or played or something. If they watched TV it would be in their bedroom. There was a TV in the lounge room. He said that when it was bed time they would come back from their bedrooms to say goodnight and they would go to bed. He said that the doors would “initially” be latched. He was asked what he meant by “initially”. He answered:
AInitially, some nights we would take the latch off. If they were all asleep, take the latch off. NH was doing that in the last few months that we were together before this.
QIt was initially during the night that it was put on.
AInitially, yes, after they’d gone to bed to make them think they can’t get up, yep.
QBut it was taken off later in the night.
AYes, that’s correct.
XN
QWere the children encouraged to visit the toilet before retiring for the night.
ANormally, yes. It was sort of a routine. “Everyone go to the loo, do your business, get changed, bedtime”.
QIf a child wanted to go to the toilet after retiring, what occurred then.
AGenerally they would be told to go to the toilet and back to bed. If it was the middle of the night, normally NH would get up to them. Occasionally I’d do it myself. I’m normally out the other end of the house, NH was in the bedroom next to them, so she could obviously hear or ignore them as much as she liked.
HIS HONOUR
QThe latch would be off at that stage.
AThe majority of the time the latch was on. I’m just saying it had been taken off the last part of the evening, later part of the evening.
QI think Mr Wyatt asked you during the night if the children yelled out.
AThey would be going to the toilet for sure.
QThe latch wouldn’t be on at that stage.
AThey would think it was on sometimes. Just make a noise of the latch and open the door, “Off you go”.

The accused said that there were occasions when one of the children would have an accident and wet the bed. He said they thought that K was doing that on purpose “in retaliation because she wasn’t having her fill” of water. He said that generally the children would have to wash their own sheets out when they had an accident. They would be told off or growled at for not yelling out to go to the toilet in the middle of the night. He agreed that on occasions it happened that one of the children would not be able to go to school if the bed was wet. He said that was not all the time, but it did happen.
The topic of the routine at the house was taken up in cross‑examination. The following exchange occurred:
QThe children weren’t free to just be anywhere in the house, were they.
AAt times they were, of course.
QI’m talking about in the main the children were required to be in their bedrooms.
AThey had their rooms to go to and play or study or whatever, yes.
QThat was the only place they could go to at certain times of the night and afternoon; is that right.
AOf course, yes.
QThat’s something that you’d put in place in the house about 2000 onwards when you first got to Millicent; that’s true, isn’t it.
A2000 onwards?
Q2007
APretty much, yes, yes.
QJust to come back. At Davoren Park did you require the children to remain in their bedrooms in the evening and not let them come out.
AWe did, of course, yes.
Q“Of course”.
AWe did, yes.
QWhy.
AAt night-time they go to bed to sleep. That’s what I’m saying, yes.
QSorry, we are at cross-purposes. But in the afternoon when they were back from school and those types of things.
AThey were allowed out, of course. They had a backyard to go out to and a front yard. The house was messy in the fact that there was an overabundance of furniture and so on in place. It was a only a small half house there.
QWhen the kids got home from school they had to go to their rooms after they dropped off their lunch boxes and remain there; that’s right, isn’t it.
AYes, that’s right.
QIf the children tried to come out of their rooms before dinner, would you tell them to “piss off”.
AOn occasions we would say that, not just myself but NH also.
QWould you tell the kids to “piss off” –
AOn occasions, yes.
Q– in telling them to go back to their bedrooms.
AYes.
QWould you say things to them like “If you come out, you are not going to get any dinner”.
AI don’t recall saying that at all, actually.
QMight you have said something like that.
AJokingly on occasions, maybe, maybe. It’s a while ago now so –
QWas there the threat of food being withheld from them if they didn’t toe the line.
AOn occasion I would say yes.
QAnd certainly water was withheld from them in the evenings.
AThey were allowed a drink after school up until tea sort of thing and that was about it. Like one after tea and they would go to bed.
The accused was then asked further about whether the children could leave their rooms after going to them when they returned from school. This exchange occurred:
QIt was the case that it was very rare for them to be allowed outside; isn’t that right.
AThat is not correct. They were allowed out. Being the cold area where we lived and wet, they didn’t want to go outside or go out to the park a lot of the time.
QThe truth is that you wouldn’t let them out most of the time; do you disagree with me about that.
AI do in a sense, yes.
QI’m sorry.
AI do in a sense there, yes.
QSo, you’ve put the rider on it “in a sense”. You agree that you told them to go to their rooms when they got home from school and they weren’t allowed out most of the time.
AMost of the time, yes.
QIf one of the children bucked that rule and came out would you on occasion hit them.
AOnly if it was a necessity.
QSo you would hit them for coming out of their rooms sometimes.
AOn occasion they would get just general punishment, yes.
QIt was unusual for them to be out of their rooms and moving around the house.
AIf they were told to stay in their room, yes.
QBut they were told to stay in their room straight after school every day, weren’t they, really.
AThey were told to go and play or do something, be creative. That’s exactly what we would tell them.
QBut where they would go when (they) were told to go and play and be creative was their bedrooms; is that right.
ABasically yes –
QSorry. I didn’t mean to cut you off.
AI’ve lost it now anyway, sorry.
QThey weren’t allowed in the lounge room to play.
ANo.
QThey weren’t allowed in I’m not quite sure what you would call it but the other area that branched off from the lounge room.
AThe dining area.
QThey weren’t allowed there.
AThere was a lot of boxes, items, a lot of stuff. There was a lot of things in the house.
QThey weren’t allowed into that area.
ANo.
QAnd they weren’t allowed in the kitchen either.
ANot as such, no.
QSo, it would be out of the ordinary for the children to be in those areas between the hours after school and dinner; that’s right, isn’t it.
APretty much so, yes.
QWhen they came out they would all have dinner and they would go back onto their bedroom, wouldn’t they.
AYes, they would. On occasion they would stay out and may be see an item of the TV or whatever.
QThat would be unusual, wouldn’t it.
A“On occasion”, that’s what I said.
QSo, in the ordinary course they would be sent back to their rooms and in particular I’m talking about T and A and K, they would spend their time in their bedroom until you finally latched the door and locked them in for the night.
AThat would be right, yes.
HIS HONOUR: I think you meant C.
XXN
QI think I said A, I mean C.
AC, that’s right.
QAnd they would remain there, wouldn’t they.
AThat’s correct.
The accused said that during the times when NH was not at home the routine just described would be enforced by him and the children would remain in their bedrooms at the designated times. He said that when T came out of her bedroom to spend some time with him in the lounge room when NH was not at home, the other children would generally stay in their rooms. They might be told on occasions to “piss off”, or he might hit them on occasion. He said that for the majority of the time the children appeared to respect his authority. He was asked:
QWould it be putting it too high to suggest that you ruled the house with an iron fist.
AWell, I liked to keep things on an even keel at home. I have said that before. I like to keep things, you know, running smooth. That’s about it. That’s all I could say there.
QAnd part of that was you would lock them in their rooms so they couldn’t get out, and in particular I think you said K couldn’t get any water.
AThat’s correct, at night-time, yes.
QIn fact you would latch the bathroom to stop her from getting in there as well.
AThe bathroom, the toilet and their room.
QAnd you kept that latched notwithstanding K was routinely wetting her bed.
AWell we did have a system in place, as I’ve spoken about yesterday or it has been mentioned, that they would call out if they wanted the toilet, we would let them out, either myself or NH, and they would go to the toilet.
QBut K was wetting her bed all the time, wasn’t she.
AYes, she became quite habitual about it.
QAnd C would wet her bed at least a couple of times a month, wouldn’t she.
AYes.
QC was by 2010 about 12 years of age, wasn’t she.
AShe would have been, yes.
QBy locking them in of a night-time you were forcing C to have to wet her bed regularly, a 12-year-old girl; that’s true, isn’t it.
AIf you put it that way I would say so, yes.
QBut still you stuck to your routine of locking the kids in their rooms.
AYes.
Finally, as to the accused’s evidence, there were these questions and answers:
HIS HONOUR
QI’m just curious, why, if you needed to keep the three girls in their bedroom, was there a lock on their bedroom if there were locks on the bathroom and the toilet.
AIt was for the daytime, because K, the middle child basically, would be the one to go in and out, in and out, getting a drink all the time, from the toilet bowl, bathroom sink, or wherever she could get a drink from. It was just a very bad habit with her.
QIf there were locks on the two doors where she would go to get a drink, why was there a need to have a lock on the bedroom door.
AThat was for night-time. Daytime, the bathroom and toilet were locked, because they were allowed out during the day, on the weekends.
QSo the bathroom and toilet were unlocked during the night.
AThat’s correct.
QWere they.
AThat’s correct. Because NH or myself would go, if we had to go, or have a shower, or so on.
QBut you could unlock them if you wanted to go.
AThat’s right.
QJust lift the catch, the latch.
AThat’s correct.
Findings, Conclusions and Verdict
I have set out in some detail the evidence as to the daily routine that existed at the houses at which the accused, NH and the children lived for just over a decade. I have done that because I consider that evidence important to my consideration of the charge against the accused.
Any findings as to that evidence is important for at least two reasons. First, it will set the scene and provide the backdrop to the conflicting evidence as to what is alleged to have happened or not happened between the accused and T in the two houses in which the family lived. Secondly, it may assist me in assessing the credibility and the reliability of the evidence of T on the one hand and the evidence of the accused on the other.
Whilst I thought that the accused initially sought to minimise the more authoritarian parts of the daily routine in the house as had been described by the prosecution witnesses, and sought to give the impression that the children enjoyed more freedom than NH, T and C said in their evidence, I consider that the accused ultimately and effectively conceded during his cross-examination that the routine was much as was described by NH, and particularly by T and C.
I am satisfied that the routine was as described by T and C, supported generally as those two girls were by their mother NH, and, in the end, partly by the accused. I am satisfied that that routine was in place and enforced for a decade at the houses in which they all lived, first at Davoren Park and then at Millicent. I am satisfied that the routine was imposed on the family by the accused and that, although NH did not like it, she went along with it in order to keep the peace. I am satisfied that the routine imposed on the family by the accused meant that all children were restricted in their movements throughout the houses, that they knew that they were restricted, and that their failure to comply with those restrictions would lead to at least censure, but also sometimes physical violence on them by the accused. I am satisfied that each of the children, but more particularly the three elder children, were scared of the accused and by and large conformed to the regime imposed on them by him because they were scared of what would happen to them if they did not. I am satisfied that they were required to go to their rooms immediately upon returning home from school where they would stay until called for dinner. After completing their meal sitting on the lounge room floor they would return to their rooms and stay there until it was time to go to sleep.
I am satisfied that the accused put latches on the outside of the bathroom, the toilet, the bedroom door of the three elder children, and the side of the cut‑down cot in the doorway of the bedroom of the three younger children to prevent any free movement by the children around the house. Although I am satisfied that the latch on the bathroom and the toilet was at least partly related to K’s problems in going into the toilet and the bathroom for water, I am satisfied that that was not the sole reason, or even the principal reason, for the accused putting latches on those two doors and on the door and entrance to the children’s two bedrooms.
I am satisfied that probably the accused allowed the children, or some of them, to go to the park opposite their house on some occasions, that was permitted only very rarely and only when the accused was able to watch them, as the male neighbour said in evidence. I am satisfied that none of the children were allowed out into the backyard to play. The only time some of them were allowed out into the backyard was when the accused wished one or some of them to bring some firewood or some other item into the house.
I am satisfied that the accused knew that some of the older children would urinate or defecate in their beds or bedrooms and that he knew that that was the result of his refusal to allow them out of their bedrooms after the time that they were to go to sleep. I am satisfied that when the children yelled out that they needed to go to the toilet when locked in their room, the accused would refuse to let them out and would say that they would have to wait until morning to go to the toilet. I am satisfied that when the children soiled their clothing or bed clothing the accused would require them to do their own washing and would keep all children home from school the day after that happened.
I am also satisfied that the routine described by the two girls and their mother was applied and enforced on the weekends. That is, that the children were not permitted out of their bedrooms, to use the lounge room, to go into the kitchen, to go into any other part of the house, to go into the backyard to play, or to go outside to play. I am satisfied that the fact that they did not do so had nothing whatever to do with the weather at Millicent.
I am satisfied that it was the accused who set the rules of the house and enforced them. I am satisfied that that was at least partly due to the fact that he considered that that made his home life easier for him. I am satisfied that once the routine was set and enforced, it later played a more sinister role to which I shall come shortly.
Before I can find the accused guilty of the charge against him I must be satisfied of the truth and of the reliability of the evidence of T as to the sexual abuse she said she was subjected to by him. If I do not accept her evidence as to the sexual acts and conduct she said the accused did to her as truthful and reliable, and if I do not believe and accept them beyond reasonable doubt, then I cannot find the accused guilty of the offence charged. T is therefore a most important witness.
When T gave evidence it was about 14 months after she complained to the police about the accused’s sexual abuse of her. She was 15 years old when she gave evidence. She gave evidence concerning events which she said she recalled starting when she was about 4 or 5 years old, about a decade ago. She gave her evidence in the witness box in the court at Mt Gambier, a couple of metres from where the accused was sitting in the dock.
I was very impressed with T and the manner in which she gave her evidence. She gave it in a clear, sometimes precise way, and in a way in which I thought disclosed no guile at all. She did not seem to me to exaggerate or embellish her account of what she said happened to her, even when it appeared that she had opportunities during her evidence to do so. I thought she was able to give an account of the details of certain things that happened to her when I would have expected her to recall those details, if her account of the incidents about which she was giving evidence was true. There were other events about which she said she did not have a clear memory, including some of what she said was sexual abuse of her by the accused. Those were occasions when she could have claimed a clear memory, if what she was saying was not true as she believed events to have been.
There were occasions during her cross-examination that counsel sought to “recap” on her evidence to that point. On some occasions counsel misstated what her evidence had been and T said that that was not what happened. She then repeated her account of the events counsel was asking her about, and recounted them in a way that to my mind was completely consistent with what she earlier had said. Not only did I consider her repetition of the events consistent with what she earlier had said, but her inability to give certain particular details when repeating her account was also consistent with her earlier evidence.
When listening to T’s evidence I was struck by her intelligence and her ability to express herself in a careful way. There appeared to me to be a complete lack of rancour in her towards the accused. That, and the quiet and simple, but firm, way in which she gave her evidence was not only very impressive, but convincing.
Apart from T’s evidence there was other evidence in the Crown case that made a strong impression on me.
C’s evidence as to the routine that was imposed by the accused on the children was consistent with her sister T’s, and generally with her mother’s. Her simple account of that routine was particularly convincing because of its simplicity. C’s account of the only time that she saw the accused behaving inappropriately with T was also simply given. C said she was disgusted by what she saw but she was too scared to say anything to the accused or her mother. I was impressed by her evidence that she was even afraid that the accused might see her watching what he was doing to T and she would thereby be in trouble.
There was evidence as to when T first told people about her allegations that the accused sexually abused her for several years. That evidence was given by T, her mother, the two neighbours who lived across the road, and Sergeant Philips. This evidence is not evidence as to the truth of what T told those people. For the truth of what T alleged the accused did to her I have to rely on T’s evidence and any other evidence that might support it, other than the complaints. I can have regard to the evidence of complaint to consider whether it demonstrates consistency of conduct on the part of T. I can consider whether the circumstances of the making of her complaint to her mother, the two neighbours and the police appear consistent with the occurrence of the events the subject of the complaint and the offence with which the accused is charged.
I consider that the circumstances of the making of the complaint by T are consistent, in a significant way, with her evidence as to the events which were ultimately the subject of what she told her mother, her neighbours and the police on 23 August 2010. In my view there was almost an eerie consistency, not only with the acts and conduct alleged against the accused, but also the occasion on which some occurred. I refer particularly to the occasion when the first alleged act of anal intercourse occurred. That, and T’s complaint to her neighbours that the accused regularly required her to give him what she described as a “head job” and “giving him head” to both the neighbours and the sergeant of police in his vehicle, were perfectly consistent with T’s evidence of those events. The evidence of T’s female neighbour as to the circumstances surrounding T’s story to her particularly resonated with me. That was when she said that she didn’t want to interrupt T who appeared, once she started telling her story, nearly overwhelmed with relief to get it all out, at last.

I acknowledge that whilst T’s complaint might have been close in time to the last occasions upon which she said the accused abused her, it was not in relation to the sexual abuse she alleged had been occurring constantly over several years. There are a variety of reasons why an alleged victim of a sexual offence does not make a complaint at the time that such act occurred, and even for some time thereafter. T said that she did not make a complaint earlier because she was too scared to do so. She was scared of the accused.
There are also varied reasons why an alleged victim of a sexual offence makes a complaint at a particular time or to a particular person. The circumstances of T being confronted with what she thought was the accused assaulting her mother, her running over the road to a neighbour and speaking to the female neighbour with whom she was quite friendly, with that followed by the male neighbour being on the phone to the police concerning the accused assaulting her mother, seem to me to be entirely consistent with, and made the occasion ripe for T then to report for the first time what was happening to her at the hands of the accused.
I consider that all of that to which I have just referred is far more consistent with T truthfully recounting long-term sexual abuse of her by the accused rather than her falsely accusing her step-father of long-term sexual abuse after she had just run over the road to the neighbours to try and get help for her mother whom she thought was being physically assaulted by her step-father.
I thought that Dr Lawrence was an impressive and excellent witness. I am satisfied that when Dr Lawrence examined T she saw evidence of a healed injury just in front of T’s hymen in the area known as the vestibule. I am satisfied that such a trauma could be caused by a penis or a finger being inserted into T‘s vagina.
I am satisfied that Dr Lawrence also saw an anal fissure in T’s anus. I am satisfied that such fissure was unlikely to be the result of constipation in T and was unlikely to be caused by an inflammatory bowel disease suffered by T. Although T’s evidence was that she sometimes was constipated I am satisfied that that only occurred once or twice in the 10 years prior to September 2010 and that the constipation she suffered once or twice cleared up within a day or two. I am satisfied that T never suffered an inflammatory bowel disease.
I am satisfied, on T’s evidence, that she suffered bleeding from her anus regularly over the two year period prior to September 2010. I am satisfied that she would notice blood on the toilet paper after she defecated in that two year period, and she noticed it regularly and consistently. I am satisfied that those symptoms were not seen again by T after August 2010. I am satisfied that those symptoms had completely resolved by the end of September 2010 when T last saw Dr Lawrence, although she sometimes had pain in her anus.
I am satisfied, on Dr Lawrence’s evidence, that the symptoms described as being suffered by T so far as bleeding from her anus was concerned for about two years prior to September 2010 was consistent with an anal fissure being caused by the insertion of a penis into her anus and, thereafter, the insertion of a penis or finger in her anus regularly up to September 2010.
I acknowledge Dr Lawrence’s evidence that the hymen of a pre-pubertal female is more prone to damage then one of a pubertal or post-pubertal female. Dr Lawrence said that T’s hymen on examination on 24 August 2010 was normal. She was then pubertal. T’s evidence was that the accused had penile sexual intercourse with her once, but had inserted his finger or fingers into her vagina many times. She said that the one time that the accused had penile vaginal intercourse with her was not long before she complained to her neighbours and the police. I am satisfied that that occurred when T was pubertal.
I do not consider that the fact that T had a normal hymen in August 2010 undermines T’s evidence that the accused habitually inserted a finger or fingers into her vagina. I do not consider that the state of the evidence is such that it undermines her evidence in that regard. I have no evidence from T as to how far the accused inserted a finger or fingers into her vagina and what he would have needed to have done to damage T’s hymen. I consider that the evidence of T having a normal hymen in August 2010 is neutral and does not support either T’s evidence or the accused’s evidence as to whether or not the accused sexually abused T for several years by inserting his finger or fingers into her vagina.
I thought that the accused was a very unimpressive witness. His evidence during examination-in-chief regarding the routine at the houses at which the family lived was particularly unimpressive. He was defensive in his answers to direct questions and I consider that he knew he was being defensive. I consider that he knew that he was trying to put his conduct towards the family in a more favourable light, and that he knew he had to come up with some convincing explanations as to why the children were treated as they were within the house and why he put locks on three doors and a barrier on another bedroom door. I consider he failed miserably in trying to justify what he knew he could not sensibly or reasonably justify.
I acknowledge that it can be very difficult for a person in the accused’s position to do much more at trial than give a simple denial of numerous sex acts alleged against him by a young teenage step-daughter. I also acknowledge that the accused has potentially suffered some forensic disadvantage as a result of the fact that T did not complain to anyone for some time after the sexual abuse that she described of her by the accused started. I bear those matters in mind. I was, however, totally unconvinced of the truthfulness of the accused’s denial of those sexual acts. I am satisfied that once the regime imposed on the children in the house was put in place by the accused he was able to sexually abuse T as frequently as he liked, without fear of being seen by the other children. The regime imposed and maintained ensured that he could be alone in various parts of the house with T, secure in the knowledge that the other children would not come out of their bedrooms and disturb him when he sexually abused her.
I am satisfied that the accused made up some of his evidence as he sat in the witness box. One example was his evidence about T coming into the bathroom when he was naked in the shower and asking whether she could brush his hair. He embellished that later when he said that T had suggested he put his “jocks” on. None of that was put to T in cross-examination. I infer that his counsel was not previously told about those alleged instances.
A number of things were put to T by the accused’s counsel on topics in respect of which we heard nothing further over the rest of the trial. An example is that it was put to T that she told the accused that her mother was being unfaithful to him. She denied that she told the accused that. Neither T’s mother nor the accused gave any evidence on that topic. T’s mother was not asked anything in cross-examination, and the accused said nothing about it in his evidence-in-chief.
I am satisfied that the accused would talk to T about his sex life and his ex‑girlfriends. I am satisfied that the accused would talk to her about he having sex with her mother, including how her mother liked “sucking his dick”. I am also satisfied that the accused showed T the pornographic DVD police found in a drawer in his bedroom, told T at some time before the video was watched what “69ers” were and said to her when they were watching the DVD that one of the girls in it looked like her. I am also satisfied that the accused considered that T was something more than a young girl, and then a young teenager, and was something more, at least to him, than a young step-daughter. I am satisfied that, in the accused’s mind, T’s proper relationship to him was blurred.
I am satisfied that in different ways the matters to which I have just referred supported the credibility and reliability of T’s evidence regarding the accused’s sexual abuse of her. I am satisfied that by his conduct in respect of these matters, the accused was grooming T over time to convince her that his sexual abuse of her was in some way “normal”, that a female in a DVD whom he said looked like her was fellating a male and that there was nothing wrong with T fellating him, in the same alleged way as her mother enjoyed doing. I am satisfied that the accused was consciously grooming T so that she might consider that it was acceptable for her to be engaging in sex acts with him, as other women allegedly had done, and that she was not just his step‑daughter but was something more.
The accused said that T regarded him as something of a “confidante”. He also said that he regarded T as a “close sort of confidante, I suppose you would say”. His evidence about T and NH being “in competition” for him falls, in my view, into a similar category of evidence. Notwithstanding his denial that the lines were blurred between his relationship with T and his relationship with NH, I am satisfied that in his mind those lines were blurred. I consider that what probably occurred at some time was that the accused would try to convince himself that what he was doing to T was not as heinous as it was by his thinking of T and by his treating T as something different than what she in fact was. That is, it was in the accused’s mind more palatable for him not to regard T as a child whom he was sexually abusing in an horrendous way. That did not alter the fact that the accused used fear in T, and threat of physical harm to her, to stop her from complaining to anyone about his abuse of her. I am satisfied that he used both fear and threats of physical harm.
There was conflicting evidence, between T and NH, as to whether NH ever pulled T’s pants down in the presence of the accused. T denied it happened, whilst NH said that it occurred once or twice, and then three or four times. The accused gave no evidence about this. I do not make any finding as to this because I do not know where the probabilities lie. Whatever the position is, it does not seem to me to have any relevance to the issues that I have to decide in this case.
Other evidence to which I have no regard is the conflicting evidence of how the accused allegedly appeared to Police officer Walkley who said that the accused did not appear to have a “surprised reaction” when told what T’s allegations were, and the accused’s own evidence on that topic. The accused said that he was surprised to hear the allegations when they came out, but he added that he “wouldn’t have put things past NH the way things had been going”. It is not entirely clear to me what he meant by that. I consider that the accused was probably not surprised to hear the allegations because he went to the Millicent Police Station of his own accord to “see what’s going on”. That was about a week after he left the house at Millicent. Whether or not the accused expressed or appeared surprised to hear of T’s allegations when told them by Police officer Walkley is not something that I consider to be relevant to my verdict. “Surprise”, and the “appearance” of surprise, are very subjective things, both in the person “surprised” or not “surprised”, and in the observer. An appearance of surprise can often be mistaken or misleading, and an apparent lack of surprise or the appearance of surprise can often mean nothing, one way or another.
Another aspect of the evidence to which I have no regard is the evidence the accused gave that T wanted to be with the adults when there were guests at the house. I make no finding as to whether the accused and NH ever had guests at their house at Millicent. I think that they probably never had any guests. Neither NH or T were asked questions on that topic. I make no finding on that topic.
There was other evidence whereby the accused said that T would say at times (to her mother) of him: “He’s mine, he’s mine, he’s mine”. T denied that and NH said that sometimes T would say “He’s my dad”. I am satisfied that T never said of the accused “He’s mine, he’s mine, he’s mine”.
I referred to evidence from the neighbours that they both got the impression from what T said to them on the evening of 23 August 2010 that “the anal started” when the accused and T were alone in the house at Millicent after the birth of A, when NH was in hospital. It may be thought that that was inconsistent with T’s evidence that the accused habitually inserted his finger or fingers into her anus before then, as well as after then. I do not consider there to be any inconsistency. I consider that the neighbours’ understanding of when “the anal started” was correct in that it started, on T’s evidence before me, in the accused’s and her mother’s bedroom just after A was born. I consider that when the phrase “the anal started” was used, it was a reference to penile/anal intercourse and it did not relate to T’s evidence of the accused putting a finger or fingers into her anus.
The fact that T did not give direct evidence of the incident C said she witnessed does not affect in any way my view of T’s credibility or reliability. T’s evidence was that she was sexually abused by the accused constantly at the Millicent house. There is no particular reason why she would specifically refer in her evidence to the incident that was described by C, particularly as it was not one involving sexual penetration of her by the accused’s penis or fingers, and she described constant sexual abuse of her over all the time that the family was at the Millicent house. In any event, it may be that T indirectly described that incident. Recognising that what T told her mother at the neighbours’ house is not evidence of the fact that something occurred, I merely note that T told her mother that the accused had been sexually abusing her for years, “and K and C have seen it happening”. T may have said this to her mother as a result of being told by C of the incident C described. C said that she told T what she saw the accused doing to her.
I refer to the offence charged against the accused on the Information. The offence is Persistent Sexual Exploitation of a Child. The particulars refer to the accused “inserting his penis into (T’s) vagina, inserting his finger into her vagina, inserting his penis into her anus, licking her anus, touching her breasts and causing her to perform fellatio upon him”.
It is to be noted that there is no particular about the accused inserting his finger or fingers into her anus. T said that he did that many times. I referred earlier to the fact that T did not say in her evidence-in-chief that the accused had licked her anus or touched her breasts. When it was put to her in cross‑examination that he had not done either of those things, she denied that and said that he had. I have also referred to the evidence of the accused that he had touched T’s breasts or breast. The way that evidence came out was such that I am satisfied that the accused’s counsel did not expect to get the answer that he first was given when he asked the accused about whether he had touched T’s breasts. The accused’s later explanation as to the circumstances as to how that occurred was not particularly convincing, it was untested, and neither T nor NH were asked about it.
The fact is, however, that T did not give evidence as to the circumstances of the accused licking her anus or of touching her breasts. In particular, she did not refer to what the accused said about him touching her naked breasts or breast and her mother did not give any evidence of that, although it appears on the accused’s version that she was present and asked him to touch them or it. Probably defence counsel did not have the accused’s version of the touching of T’s breasts at the time he cross-examined T and her mother. I think that the accused probably did lick T’s anus and touched her breasts in a sexual way, but in the circumstances as to how those matters came out in evidence I am not prepared to be satisfied beyond reasonable doubt that incidents of that type occurred.
T’s evidence as to the insertion by the accused of his finger or fingers into her anus numerous times is in a different category. T’s evidence-in-chief was to the effect that the accused inserted his finger or fingers into her anus on numerous occasions. I am satisfied that that was not the first time she recounted that that occurred but, insofar as that conduct is not particularised, those incidents are uncharged acts. T’s evidence of all the accused’s alleged sexual abuse of her before the family moved to the Millicent house is also evidence of uncharged acts.
I can only act on uncharged acts if I find them proved beyond a reasonable doubt. I can then take them into account if that evidence is potentially helpful to me in evaluating T’s evidence. The Crown is entitled to point to this evidence as helping to explain why T might be unclear about precise dates and details of sexual abuse on her by the accused. It may tend to explain why the accused expected T’s co-operation and silence in the face of what was occurring. These are examples of the possible use of the evidence of uncharged acts.
It would be wrong, however, for me to conclude from this uncharged conduct, if I am satisfied it is proved beyond reasonable doubt, that the accused is the sort of person who would be likely to commit the offence with which he is charged and which is particularised, excluding any allegation that he licked T’s anus and touched her breasts. I bear in mind that it is the evidence presented in proof of the charge as particularised which is the crucial evidence. Evidence of other, uncharged, incidents is given only to assist me in my evaluation of the evidence going directly to the charge as particularised.
To convict the accused of the offence charged against him I must be satisfied beyond reasonable doubt that he persistently sexually exploited T, over a period of not less than 3 days, by inserting his penis into her vagina, inserting his finger into her vagina, inserting his penis into her anus, and causing her to perform fellatio upon him.
Subject to what I have said about the accused licking T’s anus and touching her breasts, I am satisfied beyond reasonable doubt that T truthfully and reliably recounted the sexual abuse of her by the accused during the whole of the time they lived in the same house at Davoren Park and at Millicent. I am satisfied beyond reasonable doubt that the accused did to T what she said he did. I am satisfied beyond reasonable doubt that the accused was untruthful in his denial of his sexual abuse of T at Millicent, and before.
I am satisfied that all the elements of the offence charged against the accused are proved beyond reasonable doubt.
I find the charge proved beyond reasonable doubt.
I find the accused guilty as charged.