R v AB

[2023] SADC 180

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v AB

Criminal Trial by Judge Alone

[2023] SADC 180

Reasons for the Verdicts of her Honour Judge Tracey 

20 December 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE – GENERALLY

The accused is charged with two counts of unlawful sexual intercourse, against his niece, alleged to have occurred between 26 February 2011 and the 14 April 2012 when she was aged 13 years.

The accused elected for trial by judge alone.

Verdict:

Count 1 – Guilty

Count 2 - Guilty

Criminal Law Consolidation Act 1935 (SA) s 49(3); Evidence Act 1929 (SA) s 34, s 34P(2)(b), referred to.

R v AB
[2023] SADC 180

1. The accused, AB (the accused) is charged as follows:

   First Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 17 years. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   AB between the 26^th day of February 2011 and the 14^th day of April 2012 at Davoren Park, had sexual intercourse with [KP] by causing her to perform an act of fellatio upon him.

   Second Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 17 years. (Section 49(3) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   AB between the 26^th day of February 2011 and the 14^th day of April 2012 at Davoren Park, had sexual intercourse with [KP] by causing her to perform an act of fellatio upon him.

   Prosecution Opening

2. The prosecution alleges that the accused had sexual intercourse with KP, on two separate occasions in approximately mid-2011, when KP was 13 and the accused was 23 years old. The accused is KP’s mother’s half-brother, for clarity KP is the accused’s niece.

3. KP grew up in country South Australia and moved around between various regional areas. Her parents separated when she was young.

4. In April 2011, KP and her mother moved to an address in Elizabeth Grove. The accused at the time was living with his partner and their young children on Wapole Street in Davoren Park. After moving to the Elizabeth Grove address, KP began spending more time with the accused and his family, including on weekends and sometimes during school holidays.

5. Although KP’s mother did not always get along with the accused’s partner SL, the two would go shopping together, and would leave the house to purchase cannabis. It is alleged that it was on those occasions that KP would be left at home with the accused and would help care for the accused and SL’s young children. 

6. On an occasion in mid to late 2011, the accused was in the shower and KP was checking on her cousins. The accused summoned her into the bathroom and when she entered, the accused dropped his towel and told KP to ‘suck his dick’, adding, ‘how else was she supposed to learn’. He told her to get on her knees and open her mouth. The accused grabbed her hair before placing his penis inside her mouth, thrusting back and forth. KP’s mother and the accused’s wife returned to the house and KP went home with her mother. KP did not tell her mother what had occurred as she was concerned about her mother’s mental health.

7. On another occasion, KP had walked out of the toilet and the accused blocked her, dropped his pants, and asked her to ‘suck his dick’. On this occasion it is alleged that he was more forceful, pushing KP to the ground, opening her mouth with his fingers and forcefully pushing down on her jaw before placing his penis inside her mouth. When KP tried to push him away he grabbed her head moving it backwards and forwards. On this occasion she felt a ‘yucky taste’ of fluid running down her throat which, she now, as an adult, realises was semen.

8. KP ran out of the house to a nearby park and waited until her mother found her. She was afraid to tell her mother what had happened due to her mother’s fragile mental health. Thereafter KP refused to stay overnight at the accused’s home.

9. In 2013, KP moved interstate. The accused communicated with her via Facebook messenger. On one occasion, it is alleged that the accused sent KP images of his erect penis, which KP showed to her mother.

10. In December 2020, KP received a call from Detective Sarah Brown prompting KP to report the accused’s offending to police.

11. There was a previous trial of the charges against the accused (the first trial) which had resulted in a mistrial.

12. The prosecution called the following witnesses:

    ·KP – the complainant

    ·PB – KP’s mother

    ·SS – older sister of the accused’s partner, SL

    ·KM – SS’s daughter

13. The accused’s partner SL gave evidence in the defence case.

    General Directions

    General directions

14. I direct myself as follows:

    ·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.

    ·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.

    ·The accused is charged with two counts and each count must be considered separately and only in relation to the evidence admissible in respect of each.

    ·At all times, it is for the prosecution to satisfy me that KP is both an honest and a reliable witness beyond reasonable doubt.

    ·The accused was not bound to give evidence and chose to remain silent as was his right. I have not drawn any inference adverse to him on account of his exercise of that right. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdicts should be not guilty.

    ·I must assess each witness as to their truthfulness and reliability, and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’ evidence.

    ·The defence has not suggested a motive to lie. The defence has no onus to do so. The fact that there is no evidence in this case of a motive to lie does not strengthen the prosecution case; it is neutral. Lies can be told for no apparent reason. Crucially, it is not for the accused to prove a motive for KP to lie. At all times, the prosecution bears the onus beyond reasonable doubt.

    ·KP, PB, SS and KM gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight I give to her evidence.

    Agreed Facts: Exhibit P10

    Birthdates

    1. The complainant, KP was born on 14 April 1998.

    2. The accused was born on 28 May 1987.

    3. LS was born on 28 May 1987.

    4.LS and AB have three children together;

    5.KZ born on 10 October 2009.

    6.KA born on 27 February 2011.

    7.HA born on 19 October 2013.

    Residence

    1.On 8 January 2010 AB and LS moved into 20 Walpole Street, Davoren Park.

    2.In January 2014, LS, AB and their three children moved into 12 Char mouth Street, Davoren Park.

    3.On 25 February 2017, LS, AB and their three children moved in to 22 Karri Street, Munno Parra.

    4.PB resided at 20 Grateley Street Elizabeth Grove from 16 April 2012 to 31 July 2013.

    School Holidays

    1.In 2011 the following were public school holiday term breaks:

    a.Term 1: 17 April 2011 to 29 May 2011.

    b.Term 2: 11 July 2011 to 22 July 2012.

    c.Term 3: 3 October 2011 to 14 October 2011.

    d.Term 4: 19 December 2011 to 19 January 2012.

    Investigating Officer

15. On 7 December 2020 Detective Sarah Munn called KP and asked whether she knew AB. KP responded disclosing the allegations before the court.

16. On 15 December 2020 police seized a phone from 22 Karri Street Munno Parra. The phone was logged into the Police Property Management System (PPMS) and given exhibit number 21/A78066-3.

17. On 27 December 2020 police seized another phone from 22 Kari Street Munno Parra. The phone was logged into PPMS and given exhibit number 21/A78066-4.

18. Exhibits 21/A78066-3 and 21/A78066-4 were submitted to e-crime for digital analysis. Nothing of relevance was identified.

    The Witnesses

    KP

19. The recording of KP’s evidence at the first trial on 13 September 2022 was played before me.[1] At the time of the recording KP was 24 years old.

    [1] Exhibit P1(disc of the recorded evidence) and MFI P6 (transcript of recording in Exhibit P1)

20. KP said that while growing up she lived between her father’s household in Kadina and her mother’s house in various locations including, Elizabeth, Davoren Park, Port Augusta and then also in New South Wales and Queensland.[2]

    [2] MFI P6 19. 8–9.

21. While living in Kadina the accused would sometimes come and stay with them.[3] She described her relationship with the accused, as a ‘normal child and uncle relationship, so it was very loving and caring’.[4] She described enjoying spending time with the accused and recalled times where she would get picked up from primary school by him, and would ride on the handlebars of his bicycle.

    [3] MFI P6 20, 1-2.

    [4] MFI P6 20, 8 – 9.

22. At some point during primary school, KP moved with her mother from Port Augusta to Adelaide. She started high school when she was aged 12 years. When she was in high school, she and her mother moved to an address at Grantley Street, Elizabeth Grove, and it was then that she saw more of the accused, who was living at an address at Walpole Street, Davoren Park.  She would go to the accused’s house during school holidays and on weekends.

23. The accused’s partner SL and her two younger cousins KZ, KA were also living there. When she first started visiting, KA was a baby, because she ‘wasn’t crawling’,[5] and was around 3 months old. She was unsure how old KZ was but remembered that he was walking.

    [5] MFI P6 24. 11.

24. When she visited the accused’s house, she would spend time with KZ, KA and the accused and SL, going out sometimes.[6] She described her relationship with the accused and SL as ‘really good’ and that she had a connection with the accused.[7] She would help take care of KA. KP said she would visit the accused’s house with her mother and there would also be times where her mother would drop her off and she would spend a few nights at the accused’s house, mainly during school holidays.

    [6] MFI P6 28. 17-19.

    [7] MFI P6 28. 22.

25. She said that her mother would go out shopping with SL or they would just relax and watch movies or talk.[8] Other times they would go out together, sometimes in the day or night but she did not know what they would do.

    [8] MFI P6 29. 13-15.

26. On those occasions she would be left at the house with KZ and KA.

27. KP said her relationship with the accused changed after the accused offended against her. 

28. KP said that at the time of the first offence, the accused made her ‘suck his dick’. KZ was in bed but she was not 100% sure if KA was there.[9] Her mother and SL had gone out. It was night-time.

    [9] MFI P6 30. 24.

29. KP said that the accused was in the shower, and called her name. She went to the bathroom door and asked him what he wanted. The accused opened the door[10] and she went in. The accused asked her to suck his dick because ‘how else was she supposed to learn on how to suck a dick’.[11] He told her to get on her knees which she did and to open her mouth. He grabbed her hair and scrunched it up and put his penis in her mouth.[12] While his penis was inside her mouth, she described the accused was thrusting, moving forwards and backwards with his hips, to make his penis go in and out of her mouth.[13] She was crying and couldn’t breathe. The accused stopped and asked if she was okay. She did not reply and just sat there crying whilst he left the room. She continued crying in the bathroom for a bit longer then wiped her tears and walked back out to the living area.

    [10] KP later said she did not know who opened the door, MFI P6 33.8.

    [11] MFI P6 33. 13

    [12] MFI P6 31. 1–7.

    [13] MFI P6 34. 29-32.

30. KP said that she did not tell her mother anything because her mother suffers with really bad mental health, and she knew that it would have triggered some issues in her mother’s past.[14] KP said that she left the house and went home with her mother after the incident.

    [14] MFI P6 31. 28-31.

31. KP said she did not know how old she was at the time. She said that KA was still a baby. She did not recall the colour of the accused’s towel and at the time she couldn’t breathe because she had gag reflexes. She was crying because she couldn’t breathe. She remembered the accused walking out but could not remember if he was wearing clothes.

32. She said that at the time she felt scared and confused.[15] Her relationship with the accused was still ‘fine’ at this point because if she had shown any evidence of anything happening, her mother would ask questions, so she blocked everything out and acted like nothing had happened.[16] 

    [15] MFI P6 36. 12.

    [16] MFI P6 36. 16–18.

33. A few weeks later KP was left with the accused at the Davoren Park house. It was on a weekend and during the day. Her mother and SL had gone out shopping. KP had come out of the toilet and the accused blocked her from going to sit on the couch. He dropped his pants and asked her to ‘suck his dick’ again. This time she said ‘no’, and the accused became more forceful, pushing her to the ground while she was trying to push back. The accused forced her to stay there, open her mouth and he slipped his penis into her mouth. She recalled feeling a ‘yucky’ taste in her mouth, which she now knows to be semen.[17]

    [17] MFI P6. 41. 22-26.

34. KP said the accused had pushed down on her shoulder and on her head and told her ‘that last time felt great’.[18] He used his fingers to forcefully open her mouth, which felt like he was dislocating her jaw.[19]

    [18] MFI P6 39. 28.

    [19] MFI P6 40. 21.

35. KP remembered seeing his penis was erect as it was going into her mouth. The accused grabbed the back of her head with two hands, moving her head backwards and forwards while she was crying. She remembered running out of the house and sitting at a park throwing up and crying until she was found by her mother.

36. KP said that she did not disclose the events to her mother out of fear for her mother’s mental health. When her mother found her, she just told her she was tired and that she wanted to go home.

37. After that second incident KP still visited the accused’s house because she didn’t want her mother to be suspicious, although she never stayed the night, and could not recall another occasion she was alone in the house with the accused. She said she had to act like nothing happened.

38. KP moved to Melbourne with her father in 2013 and then to New South Wales with her mother that same year. In 2014 she moved to Queensland with her mother and in 2015 moved back to South Australia. While she was interstate, the accused would message her on Facebook. She described their communication as just a normal conversation, which most of the time she would ignore.[20]

    [20] MFI P6 45. 2-3.

39. On one occasion, when she was living in Queensland, the accused sent her photos of his penis over Facebook. She said they were sent via the Facebook account that the accused shared with SL. She said the images were of the accused’s erect penis. She recognised the accused’s penis, because the images showed the skin irritation that she had observed at the time of the abuse.

40. When she received the images, she took screen shots and sent them to her mother, via Facebook. She did not tell her mother about the sexual abuse the accused had perpetrated against her. Her mother became aware they were from the accused due to the account name being at the top of the photos. Her mother called her about two hours later.

41. KP said she received a phone call from Detective Sarah Munn asking her about the accused. She told detective Munn there had been an incident with the accused.

42. In cross-examination, KP was asked whether she recalled the accused having any tattoos. KP said she thought that he had a few, but she could not recall what they were of. She remembered that he had a clown tattoo on one of his arms.[21] She did not recall seeing any tattoos on his hands.

    [21] MFI P6 53. 22-23.

43. KP said the accused had a skin condition which was ‘like eczema’ which were little bumps.[22] She could not recall whether she had observed the eczema around his penis. She did not recall observing a skin tag on the accused’s penis[23] and was unsure whether the accused was circumcised or not.[24]

    [22] MFI P6 54. 9.

    [23] MFI P6 55. 26.

    [24] MFI P6 56. 1-2.

44. KP said that her mother and SL had ‘ups and downs’[25] in their relationship. She denied she had only ever visited the accused’s home in Davoren Park on two or three occasions and denied she had not stayed there overnight. When she visited the accused’s house, she would watch TV and play with the accused’s children and babysit.[26]  She would sometimes observe the accused feed the children.

    [25] MFI P6 56. 16.

    [26] MFI P6 58. 4–5.

45. KP said that her mother and SL were not out shopping on the first occasion. She said she was unsure how long her mother and SL had been out of the house, or why they were out. When it was put to KP that there was no ‘actual’ park at the Aruna Reserve shown on Exhibit P4, KP said there were a couple of swings there and that she had taken KZ there previously.

46. She said that her mother came to collect her from the park, when she had ‘finished crying’.[27] She agreed that she knew twin girls (the twins) and said herself and the twins did not get along well. She denied she had run away from the house on the occasion in question due to a fight with them.[28]

    [27] MFI P6 59. 12.

    [28] MFI P6 60. 7.

47. KP agreed she had been in a relationship with someone called DH in 2015 which ended in 2017. The incidents with the accused happened before she was with DH.

48. KP said that she had visited the Davoren Park address on more than 10 occasions between the period from 2011 to 2013.[29] Sometimes the visits were during the school holidays and sometimes on weekends.[30] SL’s sister, SS and her children, KS and BS also came over during the school holidays. She recalled them staying there about four times.[31]

    [29] MFI P6 80. 14-18.

    [30] MFI P6 80. 26 – 27.

    [31] MFI P6 80. 35-37.

49. KP said that when she was living with her cousin TB and she came across some images of TB on DH’s phone. As a result, she spoke with police on 18 November 2018, attended with TB at the police station and made a statement. She did not tell police about the accused’s offending against her because she ‘didn’t want to tell anyone’.[32] KP said that she had ‘locked it away and kept it locked away from childhood trauma’.[33] She agreed that she was at the police station protecting her cousin because of what her boyfriend had done. 

    [32] MFI P6 82. 6.

    [33] MFI P6 82. 10-11.

50. KP also accepted that she spoke to police on 15 February 2018, in relation to a domestic situation relating to her former partner which concerned some theft issues and an assault where he was driving a vehicle which had hit her.

51. She accepted that she had opportunity then to talk to police, however, explained that she did not tell police because she had ‘blocked it out’.[34] In answer to the presiding judge’s question about whether it had crossed her mind that she should then tell police about what the accused had done, KP said, ‘No, to be honest’.[35]

    [34] MFI P6 83. 15.

    [35] MFI P6 83. 25.

1. KP said that she would stay overnight at the accused’s house when KA was a baby, roughly around 3 months old. She did not spend any time at the accused’s house when his third child, HA was born.

2. KP said that she deleted the images that she had originally screenshot and sent to her mother because she ‘didn’t want to see it again’.[36] When she sent the images to her mother, her mother told her she should take them to police. KP said she had not done so because she didn’t want to ‘rip off a Band-Aid’ that she had locked away.[37] When asked what had happened between the time she spoke to police in 2017/2018 to cause her to ‘rip off the Band-Aid’, KP said that she was going through her court case with her ex-partner so her emotions were everywhere and she decided that it was about time that she actually came forward.[38]

   [36] MFI P6 85. 13.

   [37] MFI P6 86. 15 – 16.

   [38] MFI P6 86. 24 – 26.

3. KP accepted that in 2017 and 2018, she had asked the accused and SL to babysit her own daughter.  She agreed she had left her daughter with them while she went to the gym and did food shopping. She said she had not left her daughter there for ‘very long’ and only on ‘about five” occasions’[39] when she was about two or three years old. KP said that she left her daughter at the accused’s house, knowing what he had done to her, because she trusted SL and because her cousin was also there.[40]

   [39] MFI P6 88. 23.

   [40] MFI P6 89. 1.

4. KP agreed that the accused never threatened her or told her not to tell anyone about what he had done. 

5. KP said she could not recall when the second incident occurred. She could not recall what the accused was wearing or how long the second incident took. she could not recall whether the blinds in the living room were open, or whether the front door was locked.

6. During re-examination, KP confirmed that she knew the twins through the accused and that she had met them on a few occasions.

7. She went to police regarding her cousin because she had informed her mother and her mother had wanted her to go to police.[41]

   [41] MFI P6 95. 13.

8. On the occasions she dropped her daughter at the accused’s house, the accused was never there alone and she would give her child to SL.

   PB

9. PB is KP’s mother, and the accused is her half-brother.

10. She described her relationship with the accused while they were growing up as pretty close, but that once he hit his teens he was ‘a little bit bullyish’.[42] When she and KP moved to Adelaide, her relationship with the accused was ‘kind of strained’.[43] At the time, the accused was living at Davoren Park, which was about a 45 minute walk from her house. She would visit the accused’s house weekly.[44]

    [42] TT 12. 30-32.

    [43] TT 12. 36

    [44] TT 13. 16–25.

11. PB said that she would ‘smoke cones’ with the accused and help him out with getting drugs for SL and shopping with her.[45] They would leave the house to ‘score weed’, which she could help fund because at that point she was received parenting payments and child endowment.[46] During the years between 2011 and 2013, shopping with SL would be a weekly occurrence where KP would stay at home with the accused and his children. The accused never came shopping with them. They would try and be as quick as possible, between 30 mins to an hour at the most, and she would help to pay.[47]

    [45] TT 14. 1–3.

    [46] TT 15. 28–31.

    [47] TT 14. 22.

12. PB said that she ‘tolerated’ SL and that SL was her ‘childhood bully’, explaining that because SL was ‘with’ her brother ‘tolerance had to kick in somewhere’.[48]

    [48] TT 14. 30 – 31.

13. KP went to the accused’s house without her on weekends and during one of the school holidays in the year. She did not stay ‘all that many’ times on weekends and KP had asked to go there.

14. She recalled that there was a time when KP asked her to stop going there around an age between 12 and 13 years old.[49]

    [49] TT 16. 22.

15. She said that the relationship between the accused and KP had initially been ‘amazing’, but when KP hit her early teens, she stopped calling the accused uncle and just started calling him ‘Alby’.[50] After a couple of years, she stopped staying overnight at the accused house, and there was a change in the relationship. She said that this was a couple of years into KP starting high school.  She said she had trusted her brother to look after KP because he was not only her brother, but also KP’s godfather.

    [50] TT 16-17. 34–38, 1-2.

16. She recalled lots of people coming and going from the accused’s house. She recalled SS, who is SL’s sister, and her children visiting the house on occasion.

17. PB said there had been about three of four occasions where she would return to the Davoren Park address after being out with SL to find KP upset at the park. On one occasion she thought that KP had been bullied by the twins because they were sexually active and her daughter was still a virgin so ‘they’d give her a lot of crap at that time’ and she just figured that this was another one of those days.[51] PB said that on that occasion, KP was ‘broken down, crying, upset’ and just wanted to go home.[52] KP had told her not to worry about it and that she was okay.[53] She said that these girls were there pretty much every day and would torment KP, telling her she was fat.[54] There was never an occasion where she found KP at the park and the twins weren’t at the house.[55]

    [51] TT 19. 18–23.

    [52] TT 20.  1–2.

    [53] TT 20. 4–5.

    [54] TT 20. 19–31.

    [55] TT 21. 5.

18. At the time she found KP at the park, BP was taking medication for bipolar, schizophrenia, borderline personality disorder as well as chronic PTSD. She said she was not ‘in the best state’ at the time because of her medication. 

19. She moved to Queensland get away from everyone around 10 years ago. She communicated with the accused and SL for a short time via Facebook messenger, using their joint profile. SL was doing most of the messaging because the accused was dyslexic and had trouble with his words. She said she and KP were sitting watching a movie when KP received messages. KP asked her to have a look at her phone and there was an erect penis with a hand. She threw the phone and broke it ‘because it was disgusting’ and when she asked her who it was, KP told her it was her own brother’s penis.[56] She said there were two pictures, one was an erect penis, and in the second there was a hand wrapped around it with ‘his yucky coloured ring that he always wore’.[57]

    [56] TT 21. 8–16.

    [57] TT 23. 1-3.

20. In cross-examination, PB said that KP lived in the country until she was just about in high school. They moved to the city when KP was in year 6.

21. PB said that being the accused’s older sister, she would regularly help the accused to buy groceries. She would go and buy the groceries for them, because if she gave them money, the money would go instead straight to drugs.[58]

    [58] TT 25. 29–38.

22. In 2011, she suffered from problems with her mental health, including schizophrenia, bipolar disorder, chronic PTSD, and borderline personality disorder. She said she only used prescribed medication and due to her mental health, specifically her anxiety, she avoids crowds.

23. She and SL would shop at Coles or Woolworths at the Elizabeth City Centre, and they would catch a taxi there.

24. PB said she had a strained relationship with SL but denied that was so because she was using heroin or some other drug at the time. PB said there was an occasion, when she was aged 10 or 11, when SL had poured boiling hot water on her and that she and SL had gone to the same school.[59] When questioned about being 5 years older than SL, PB said ‘have you seen the size of her’, ‘she had always been bigger that what I have been. It’s not that hard to be a bully to somebody that is tiny’.[60]

    [59] TT 28. 32.

    [60] TT 28. 18–20.

25. PB said that there was an occasion when one of SL’s children ran into PB’s cigarette after being told to be careful. PB denied the harm caused was intentional.[61]

    [61] TT 29. 16–24.

26. PB said that in 2011, she was unaware that SL was caring for her ill father and rather that SL started to care for him when PB had moved to Queensland in 2013.[62]

    [62] TT 30. 9-16.

27. She agreed that she would drop KP at the accused’s house despite knowing that the twins would be there, adding that KP had a phone and could always call her if she needed. She said she had trusted the accused.[63]

    [63] TT 31. 18.

28. PB confirmed that there was an occasion in 2014, where KP had shown her photos from the accused of his penis which caused her to smash KP’s phone. PB said she had lied to her daughter that she had seen the photos because she couldn’t bring herself to view them. She was outraged by the photos and told KP to go to the police. PB said that while she did not have any physical contact with the accused, she was still trying to be a big sister at that point and was still in contact with the accused and SL up to 2017 as shown in the screen shots in Exhibit D7.

29. PB agreed she had provided her phone to police.

30. PB said that during the period between 2011 and 2013 when KP was staying with the accused and SL, she fully trusted him and believed he was doing the right thing as an uncle and a godfather, otherwise she would have put a stop to KP ever going there.  

31. During re-examination PB confirmed that after she had seen the photos the accused had sent to KP she had not seen the accused again. 

    SS

32. SS is SL’s older sister.

33. She described her relationship with PB and KB as follows:

    Didn't really have heaps to do with each other, just had a few coffees and chats together with PB when she was there. We would sort of cross paths at my sister and [the accused’s] place because we were always there a fair bit and there was always lots of family and crew and kids popping through.[64]

    [64] TT 43. 1–3.

34. SS said that the accused and SL were living at the Walpole Street house before her dad passed away, which was about 8 years ago, roughly around 2015.[65]

    [65] TT 43. 19.

35. She would visit the Walpole Street address once a week with her children and when she visited there were lots of ‘people in and out’.[66] She said that SL and the accused would often look after other people’s kids, when they were struggling with drug abuse.[67] Between 2011 to 2013, she thought she met PB roughly around 10 times but met KP a bit more often because she would stay sometimes overnight.[68] She said the kids would sleep in the lounge when their parents stayed over.[69]

    [66] TT 44. 6.

    [67] TT 44. 1–5.

    [68] TT 45. 1-4.

    [69] TT 45. 10.

36. During this period the accused was suffering from agoraphobia and couldn’t leave the house, so he was always there. SL was the main carer for her father, as well as needing to feed and care for her children.[70] When she and SL would go shopping, the accused would not go with them ‘until later on’,[71] when they had moved into a house on Charmouth Street, after their dad passed away. She recalled her dad being quite demanding as he got ill, so SL would be required to run errands every day.[72] Some of the older children might come with them, however typically they left the children with the accused. Although she couldn’t recall, she assumed there was an occasion when she observed KP being left at home with the accused.

    [70] TT 45.

    [71] TT 45. 37.

    [72] TT 46. 19.

37. She communicated with SL and the accused through their joint Facebook profile, shown in Exhibit P5,[73]  but said she would mainly communicate with the accused. She was able to tell that she was communicating with him because he had only just learnt to read and write, so the grammar and use of emojis and Gifs were indicators.[74] The accused would communicate with her most days, as due to his social anxiety, he would be bored at home, and it was their way to occupy him.[75]

    [73] TT 47.

    [74] TT 48. 13–20.

    [75] TT 48. 23–25.

38. At the time PB and KP would visit the Walpole Street address, KA would have been very little, around the age of 2 years.[76]

    [76] TT 49. 2-4.

39. During cross examination SS said that because it was a pretty stressful time with her father passing away, she was unsure when the accused and SL moved into Walpole Street.  She said they went and lived with her father in the later years to look after him.[77]

    [77] TT 49. 20 – 24.

40. During that time in 2011, there were lots of family coming and going from the accused and SL’s house and kids being born. She described it as chaotic.[78]

    [78] TT 50. 6.

41. She said she guessed she saw PB around 10 times and had seen KP a ‘fair bit’, not just at the Walpole Street address.

    KM

42. KM is SS’s daughter. She was 16 years old at the time she gave her evidence, having been born in 2007.

43. She said she recalled visiting an address in Daveron Park where SL and the accused were living. She remembered visiting between the ages of seven to nine.[79] During that time she observed various people visiting including the accused’s friends and their children. She remembered PB and referred to her as ‘Aunty [P]’.[80]

    [79] TT 54. 20.

    [80] TT 54. 33.

44. When she would visit, SL and the accused were not always there together, however, the accused did not leave the house.[81] When SL wasn’t at the house, SL and her mother would either go shopping together or go visiting, and she would be left at home with the accused and the kids and sometimes the neighbours kids as well.[82] She would visit the Davoren Park address two to three times a week, and at least on one of those times SL and SS would go out of the house.

    [81] TT 55. 11 -12.

    [82] TT 56. 26.

45. She would talk to the accused on Facebook messenger and would message him on a joint account that both SL and the accused shared. The accused started communicating with her after her grandfather passed away. She described the accused communicating with her every day and that he was her best friend at that point.[83] She was able to tell that she was talking to the accused because of the punctuation he used.

    [83] TT 55. 10.

    SL

46. SL was born in May 1987 and is the accused’s partner. She and the accused began living together at Walpole Street in late 2007, early 2008. Their son KZ was born in October 2009 and their daughter KA was born in February 2011, with their second son HA born in October 2013. In 2013, they moved from Walpole Street to Charmouth Road, Davoren Park.

47. SL said that she knew KP, having first met her in 2009. At the time the accused’s brother, his girlfriend and their eldest child were living there. She thought that KP was eight or nine at the time.[84]

    [84] TT 59. 14.

48. SL said that KP came over to the Walpole Street address once to stay over and once with her grandparents ‘just in the car though’.[85] KP also visited the accused and herself about two or three times at the Charmouth Road address whilst she was pregnant, in approximately 2016. When asked to describe her relationship with KP she said that:

    It was okay. She got caught stealing when she stayed over the night, so I told her off and then she was a bit hesitant to come back.[86]

    [85] TT 59. 18-17.

    [86] TT 59. 36-38.

49. This incident was said to have happened in 2011. She said they continued to see KP for a number of years afterwards. At the time KP visited whilst she was pregnant the relationship was alright. SL said ‘she was pregnant, so she was pretty exhausted, but it was okay’.[87]

    [87] TT 60. 10.

50. When SL’s daughter KA was born in February 2011, her father was ill and on dialysis three times a week. At this time, she was living at the Charmouth Road address in Davoren Park. Eventually they all moved in with her father and cared for him as he was passing away.[88] Her father was having dialysis every Monday, Wednesday and Friday from 7am to 12pm for the morning sessions and then 2 until 7pm in the afternoon. He was on dialysis for eight years. At the time her sister SS would ‘pop in and out once every month or something’ to assist.[89] SL said she was her father’s carer and although the accused wasn’t his ‘official’ carer, he assisted caring for him at this time as he was not working. 

    [88] TT 60. 24.

    [89] TT 61.10-11.

51. In 2017 KP gave birth, and SL met her child when she was around six months old.

52. SL said that after they stopped living at Charmouth Road they moved to Karri Street.[90] At the start of 2018, KP visited Karri Street every second night for about six months, as she would drop her child off and go to the gym. Eventually this arrangement stopped.

    [90] TT 61. 36.

53. SL said that she first met PB in 2009. PB had mistaken her for someone else and was a bit angry towards her but settled down eventually.[91]  SL said she had grown up in Port Lincoln and had never been to Wallaroo.

    [91] TT 63. 1–3.

54. In 2011, PB stayed over at their house with one of her cousins from Port Lincoln.

55. PB never gave SL or the accused money and SL had never gone shopping with PB because she didn’t like to be seen out in public with her, noting that was because ‘she was quiet a mess. She’s on drugs and she’s a complete mess when she goes out in public’.[92] As far as she could recall PB was on drugs in 2011/2012.

    [92] TT 63. 23–26.

56. SL said that she would typically shop in Elizabeth or Munno Para Shopping Centre and go with the accused and the kids, or her dad, as she didn’t like going out on her own, so she was always with someone.[93]

    [93] TT 63. 34–35.

57. In 2011 to 2013, she saw PB a couple of times at Elizabeth Grove.

58. In 2012, there was an incident while PB was babysitting her son KZ, where PB let him get into an ashtray and when SL picked him up, he had ash and yogurt all over him.[94] PB had babysat KZ just for that one night and had never ‘looked after the girls or anything’.[95]

    [94] TT 64. 15–19.

    [95] TT 64. 31–32.

59. Once they moved out of the Walpole Street house, they did not continue to have a relationship with PB. SL said:

    I would say gooday to her, be polite but we weren't, like, great sister-in-laws, we never got along or did anything together.[96]

    [96] TT 64. 37-38.

60. SL said that the accused was not circumcised and had a ‘skin tag’ on the top of his penis. She described the skin-tag as a ‘visible little bit of extra skin on top. I suppose you could get it burnt off but it's just so tiny, but you can see it, it's visible’.[97] She said that the accused has tattoos on his legs, arm and face which included a portrait of a girl, a gun, a Gemini tattoo, a skull, a scroll, a clown, various names, another skull and an anchor and a flower.[98]

    [97] TT 65. 11–13.

    [98] TT. 65. 19–26.

61. SL said she had never seen the accused wear jewellery.

62. Although the accused gives reading a go, he needs help to do so. She and the accused shared a phone, and their Facebook was a shared account that they would both use. With respect to the messages shown in Exhibit D7, SL said she did not think she helped the accused write the messages as there didn’t appear to be any bigger words that she would have had to help him with.[99]

    [99] TT 68. 34-35.

63. SL said that the accused has been diagnosed as ‘paranoid schizophrenic, he's got a skin disease and he's on the autism spectrum and illiterate’.[100]

    [100] TT 69. 33–37.

64. She described the accused’s skin condition as follows:

    He's got leathery skin, like really tough skin and he gets sort of a rash on his chest and down towards his navel, sometimes on his arms and back and it's just, it gets worse with different types of water and can get really agitated.[101]

    [101] TT 70. 5-9.

65. In cross-examination, SL confirmed that she met the accused in early 2007 and that they officially got together in September 2007. They have had their ups and downs and supported each other through those difficulties. She agreed that they rely on each other but denied that she would do ‘anything’ for him.[102]

    [102] TT 71. 21.

66. SL said they had all sorts of friends visiting at Wapole Street including the twins.[103] She said that people were visiting them ‘all the time’.[104]

    [103] TT 71. 36–38.

    [104] TT 72. 4.

67. Her sister SS visited the house between 2011-2012 approximately once a month. Her sister did not help in taking care of their father even though ‘she’d like to think she was’.[105] She said that the last time SS had seen their father before he died was on Father’s Day.[106] Her sister was aware that her father was receiving treatment but had never been to his dialysis appointments.

    [105] TT 72. 29.

    [106] TT 73. 2.

1. Apart from help with dialysis, her father required assistance with showering, shopping, getting on and off the bus, cooking and cleaning.[107] She would visit her father along with the accused who accompanied her every single day. [108] She said this was so despite her children being of such a young age. She thought that while she did the shopping with her father, the accused might have stayed at her dad’s house in Charmouth Road with the kids. She confirmed that her father died in October 2014.

   [107] TT 73. 13-16.

   [108] TT 73. 24.

2. She would shop for her father’s household as well as her own, two times a week, with each trip taking approximately an hour, to an hour and a half.[109] The accused would accompany her every Wednesday to help push prams and trollies. On the Tuesday he’d hang out with her dad if her dad didn’t come shopping.[110] SL said that the accused had anxiety going out in public and would attend the shops with her because he was a parent of two kids and they needed to be fed every week.[111] In addition she noted that ‘As much as he didn't like public, he didn't like to be alone either’.[112]

   [109] TT 75. 25.

   [110] TT 75. 30-33.

   [111] TT 76, 4-5.

   [112] TT 76. 12-13.

3. She confirmed that KP had visited the Walpole Street address on one occasion when she slept over the night and once where she was in the driveway with her grandparents. She said she thought that the occasion she stayed over occurred in approximately May 2011. She thought KP’s grandparents dropped her off, she stayed at their house and played on the Slip and Slide during the day, slept on the lounge the night and left in the morning. In the morning she caught KP ‘pinching’ some makeup, however she didn’t raise the issue with PB because KP was just a child.[113] She thought that on the occasion when KP visited the house, her grandparents were dropping something off like a dining set or something.[114]

   [113] TT 77. 35-36.

   [114] TT 78. 37-38.

4. SL said she did not have a good relationship with PB. SL agreed that in 2011-2012 she was smoking cannabis daily and would leave the house to purchase the drug once a week. She denied that PB would assist her in that. The accused would come with her, and the kids would probably hang out with her father ‘because its only around the corner’.[115] There might have been occasions where the accused stayed at home with her father and the kids. She denied that there would have been an occasion between 2011-2013 where the accused would be at the house with the kids alone.[116]

   [115] TT 81. 11.

   [116] TT 82. 1–24.

5. The accused received his medication for paranoid schizophrenia monthly and that just before and after the injection was due, he would get a bit tired. Other than that, he could she said, function quite normally.[117]

   [117] TT 84. 11–12.

6. Although the accused didn’t like crowds, he managed to still go to the Adelaide show with his kids and ‘stuff like that’.[118]

   [118] TT 84. 15-16.

7. The accused sometimes had a rash on his penis.

8. She first recalled meeting KP in roughly 2009. She was coming from Port Augusta and PB wasn’t with her when she arrived. She didn’t recall seeing KP again until about 2011, which was the occasion she stayed overnight. She said that she recalled that occasion so distinctly because KP got caught stealing.[119]

   [119] TT 87. 17.

9. She said the first time she met PB was in early 2009 and other than seeing her around shopping centres, the next time she interacted with her was when she stayed overnight to spend the night with SL’s cousin.[120] She also came over for a cigarette on an occasion before she stayed over, and then there was the occasion where she looked after KZ.[121] She had been comfortable leaving KZ with PB because she was the accused’s older sister. SL said that she and PB had an altercation over the phone about what occurred whilst PB was looking after KZ and then they ‘pretty much haven’t spoken since’.[122]

   [120] TT 88. 37-38.

   [121] TT 90. 1-10.

   [122] TT 92. 25-26.

10. She said she knew that PB had a big drug problem:

    Because there’s eight siblings and the other seven talk, and they told me about PB’s drug problem and her history and we – the first time I met PB was we were rescuing her from a domestic violence, I was lending money to rescue her into town. So, I just heard nothing but bad stuff about her.  I didn’t want to be seen in public with her.[123]

    [123] TT 93. 17-23.

11. SL was asked about the evidence that she had given at the first trial when she said she had dropped KZ off to be looked after by PB, then she left with KA and a friend. They went to the shops, then returned to drop off some nappies, by which time KZ had burnt himself on a cigarette in the ashtray and so she took him and did not let PB look after KZ. SL said she did not recall that evidence but agreed that was different to her new evidence that KZ stayed overnight, and she had found him the next day. She said she could now not remember if KZ stayed overnight.

12. SL was then asked about her evidence at the earlier trial when she had said that KP had never stayed overnight at her house. SL agreed that was the evidence that she had given in answer to the accused’s counsel. SL said:

    I never denied it back in the first trial that she stayed overnight. I don't know it was the way you questioned me or something, but I've never denied KP spending the night, because she had the make-up incident and got caught stealing.[124]

    [124] TT 97. 6-9.

13. SL maintained that KP did stay one night and got caught stealing some make-up and never came back again. She said she did not recall saying anything about KP stealing during the last trial.

14. SL said that the truth was that KP spent one night at their house when KA was probably about three, four months old, and KP got caught stealing make-up, SL confronted her about it in the morning and she did not tell PB about it because it wasn't a big incident.

15. SL was asked again about the occasions she said that KP came to her house. She gave the following evidence:[125]

    [125] TT 101-102.

    QI want to be clear: your evidence is that the first occasion KP came over was the occasion she stayed overnight and the make-up incident, with your evidence today.

    A     Yep.

    QDo you recall being asked about the first occasion she came over at the last trial.

    ANo.

    QYou said, 'I think she came over with her grandparents and they were doing cans and bottle runs for us, so she visited for maybe 30 minutes that time'.

    AThat could be what they were in the car for. It might not have been the dining set that day, it would have been the cans and bottles.

    QFirstly, I want to start with: do you recall saying that at the first trial.

    AI remember saying about the cans and bottles, yeah.

    QThat was the first occasion that KP, you say, came to your house.

    AI don't remember saying it was the first occasion, no.

    QDo you recall saying, at the last trial, that 'The second time she visited, I'm pretty sure she was with her grandparents as well. She had an argument, so she run off and they found her'.

    AYep, and she was in the car with them when they rocked up. They didn't find her at my house, they went and found her wherever she was.

    QSo what's the truth. What are the two occasions.

    ASo I remember her staying and the make-up incident and the next time I remember her being out in the car.

    QIs that to drop off the antique dining table you said that you -

    AI said it was an antique dining set and it could have been either that or the cans or bottles, could have been either one, not - I remember -

    QJust let me finish the question. You said previously that you remember that occasion so specifically because it was the antique dining table.

    AThat's what I think it was. That's what I'm pretty sure it was. It could have been both, doing one, two things at once.

16. SL was then asked to look at the transcript of the evidence she gave at the first trial, when she had said that the first time KP had come over was when she came with her grandparents, and they were doing bottles and can runs. SL said:

    AYep, and I remember them dropping off the dining set as well…. I think she came over once with her grandparents and they were doing cans and bottle runs for us, so she visited for maybe 30 minutes at that time.[126]

    [126] TT 102-103.

17. SL said that her evidence was that was the second occasion and that was what she had been ‘saying all day’, although as counsel pointed out to SL, in her first evidence, SL had said:

    The second time, the grandparents as well and she had an argument, so she'd run off and they found her.[127]

    [127] TT 103. 9-10.

18. SL was reminded by the prosecution that she had just said that the second occasion had been concerned with the 'cans and bottles runs for us' and was asked whether she agreed that at the first trial she said that the second time was when KP had run off after the argument.

19. SL said:[128]

    AThat's probably why she was in their car, when she pulled up in the driveway. That's when they found her. That's why she was in the car. And they've come to drop off the dining set and do the cans and bottle run, because they still do it to this day with me.

    [128] TT 103. 19-22.

20. The prosecutor then asked SL to describe from her best recollection, what happened on the second occasion.

21. SL said:

    So, when KJ pulled up in my driveway, brought something in a box, a dining set, and we've got the cans and bottles ready to go and they do on that for me and then they normally bring the cash when they do the next trip to me.[129]

    [129] TT 103. 27-23.

22. KP’s grandparents were there long enough to collect the cans and bottles and put them in the car so it could have been anywhere from 10 minutes to 25. KP stayed in the car. She opened the door so the kids could interact with her, but she stayed in the car. Besides saying g'day to KP and putting the cans and the bottles in the car, SL had no real interaction with KP. Her grandparents collected cans and bottles and then left.

23. With respect to the argument where KP had run off and they had then found her, SL gave the following evidence:[130]

    [130] TT 104.

    AYeah, because she was in the car, so I assume that they found her prior to coming to my house.

    QHow did you know she'd run off.

    ABecause they told me that she'd run off.

    QWhat did they say to you.

    AI don't remember the exact conversation. Just said that they'd found KP.

    QYou did mention that previously in your evidence today.

    AI was never asked about anything like that.

    QYour evidence previously was that she was in the car and that they dropped off an antique dining set.

    AYep.

    QDidn't mention the cans and bottles.

    ANope. They just do a trip. They do two trips for me every week from back then still to this day.

    QYou said you recall this occasion because of the antique dining set, that's correct.

    AYep.

    QWhat I want to suggest to you is that you're not telling the truth before the court today and that you weren't telling the truth back in the last trial.

    AI'm just here to tell the truth.

    QAnd that you've got a different story from the last trial from today because you're not being honest.

    AIt's not a different story. It's what I can recollect and I can't.

24. SL denied that she was downplaying and lying about how often PB and KP were at the house.

25. SL said she didn’t get along with them and she was there all the time, so they weren't welcome at her house.[131] When reminded that the first time that PB came to her house she stayed overnight, SL said ‘she was sort of welcome. Didn't talk to her much. She spends most of the night with my cousin’ but that PB and KP weren’t welcome and that SL’s cousin wanted to see PB. KP had her cousins to play with even though she had not met them before.

    [131] TT 105. 3-4.

26. SL agreed that from her observations, KP really enjoyed spending time with her cousins, but came only one more time and did not get out of the car. SL denied that KP came frequently to SL and the accused’s house at Walpole Street, that SL would leave the house with PB, or that the accused stayed at the house with the children. 

27. She said that the accused was always at her dad’s house except on odd occasions when he would be outside doing work and she would be inside. She denied that there were numerous occasions when the accused, the children and KP would be alone at Walpole Street. SL said KP only stayed ‘that one night’.  When she left the house with SS and the accused, the kids would usually be with them as well and if they weren't, they were at her dad's.

    Prosecution Addresses

28. The prosecutor submitted that plainly the central pillar of the prosecution case is KP’s evidence.

29. There is no contest that KP was under the age of 17 at the time of the alleged offending, and no contest that the alleged act constitutes sexual offending.

30. It is clear that the offending is alleged to have occurred at the Davoren Park address, that being Walpole Street and it is agreed that the accused lived at that residence between 2010 and 2013.

31. While there are two distinct accounts of the opportunity to offend, there is, the prosecutor submitted, no room for mistake or misinterpretation. Clearly someone was being dishonest and on the prosecution case, that was SL. SL’s evidence was described as self-serving, implausible and that she someone willing to say whatever possible to distance herself and the accused from PB and specifically from KP. Her evidence did not sit with any of the prosecution witnesses because it simply was not the truth.

32. It is uncontested that the accused did not like going out of the home or into public places or in crowds. It was submitted that it made no sense for the accused to be leaving the house every single day with SL and the children to go shower her father. Nor did it make sense to take a baby and an 18-month-old child on every single shopping trip to her father's or to purchase cannabis.

33. Even putting KP's evidence to one side, what is entirely consistent across all the prosecution witnesses, is that the opportunity was plainly and simply there. The accused did not like leaving the house and stayed at home and looked after the children.

34. The prosecutor acknowledged that PB struggled in giving her evidence and was open and honest about her mental health and other illnesses. She was unsure about dates and times. She experienced gruelling cross-examination and was frustrated with the court experience. When considering and assessing the faults and potential flaws in her evidence, the prosecution asked me to turn to the evidence of other prosecution witnesses. SS had nothing to gain from giving evidence against her own family and was a completely independent and genuine witness who gave her evidence in a candid and credible manner. She was not close with PB and had only brief encounters at the accused’s house.

35. The prosecutor submitted that what was consistent between PB and SS, goes directly to the heart of the issues to be considered here. That is, whether the opportunity arose for the accused to offend.

36. SS said she went to the house at least weekly if not more. She recalled seeing PB at the Walpole Street address on about 10 occasions.  She said she saw KP a bit more often as KP would stay a week or a few nights during school holidays.

37. While KM didn't recall KP and PB being at that address, KM was eight or nine at the time and as I heard from other witnesses, there were several children coming and going from that residence.

38. There is, the prosecutor submitted, a clear consistency between the evidence of KP, PB and SS, in that they all regularly visited that Walpole Street residence. KP, PB, SS and KM were all consistent in saying that between 2011 and 2013 the accused would stay at the house when SL was out, and there was, the prosecutor submitted, a complete implausibility in the accused never being alone at the home with the children whilst SL went out.

39. As to the incident with PB and the ashtray, SL was quick to comment on PB and her drug use and the fact that she wouldn't be seen out with her in public yet was willing to have her child stay overnight with PB, despite only meeting PB on a few occasions.

40. That SL was willing to have PB look after KZ reflected the frequency of how often PB was visiting the Walpole Street address. SL’s evidence did not reconcile with SS’s evidence on the need for the accused to be working on his ability to be out in public, if indeed he was leaving the house every single day to shower his partner’s father.

41. After putting various inconsistencies to SL, it is still difficult, the prosecutor submitted, to understand what her evidence was. In the prosecutor’s submission, the opportunity for the accused to offend existed and. I was urged to put aside SL’s evidence and return to the prosecution witnesses who had nothing to gain from being upfront and honest.

42. PB spoke about the occasions when she found KP upset at the park. PB’s evidence was that on each of those occasions the twins were at the house, so she presumed that KP’s upset was in relation to them. The prosecutor submitted that PB may not recall every single occasion that KP was at that park, and although KP may predominantly have gone to that park because of issues with the twins or issues with being bullied, that was not in fact the case on every single occasion and that while PB doing her best to be upfront and honest, may have been mistaken.

43. While KP she may not have saved images of the accused's penis she received through a Facebook Messenger application, KP and PB’s evidence provided compelling evidence of what the contents of the images were. On the prosecution case I can be satisfied that the images were sent by the accused after the second offence and that the accused had a sexual interest in KP and a tendency to act upon that interest when the opportunity arose. On the prosecution case, the accused's initial offending towards KP was a trial run to see her response, that is, an opportunistic occasion of offending, and when KP became upset the accused stopped. The accused then waited and was emboldened by KP’s lack of disclosure and reassured by her continued silence after the first offence. The second offence was an obvious escalation to the first occasion, and in the prosecutor’s submission, if I am satisfied in relation to count 1 then I can find that there was a sexual interest between the accused and KP, and that the sexual interest made it more probable and more likely that count 2 also occurred.

44. KP’s relationship then changed when KP no longer distanced herself from him and avoided being alone with him. This background brings context to the images sent via Facebook. On the prosecution case the accused no longer had the physical opportunity to offend against KP, and still emboldened by the lack of complaint, he again attempted to reignite the relationship with her.

45. KP recalled receiving the images and sending screenshots to her mother. PB recalled seeing the images on KP's phone and throwing the phone. KP recalled there being an incident in Queensland where her mother threw her phone, but she conceded that she could not recall what it related to. 

46. In the prosecutor’s submission, people simply remember things differently and it might be thought that sometimes those differences reflect that witnesses are doing their very best to recall events that actually occurred as opposed to events which have been concocted or rehearsed. What was important, the prosecutor submitted, was that both PB and KP gave evidence about the images. That is, that the accused sent images of his penis to KP on Facebook Messenger. KP gave evidence of a skin irritation on the penis, something which SL conceded the accused had on occasions.

47. While PB continued to stay in contact with her brother after she became aware of the images, as PB said, she tried to put things aside. On the prosecution case it was implausible that the accused would send those images out of the blue and without prior sexual context between himself and KP. The prosecutor urged me to be satisfied that the images had an inherently sexual context and were images which an uncle would not feel comfortable sending to a niece unless there was some prior interaction with her of a sexual nature. On the prosecution case, those images only made sense if the accused knew that KP would not complain or report him, or otherwise react, as one would expect a child to react, in those circumstances.

1. On the prosecution case, as a matter of logic, if I find that the accused sent those images, I can find that the accused had a sexual interest in KP and such an interest for some time leading up to them.

2. In considering the plausibility of the accused sending those images, the prosecutor asked me to consider the evidence of SS and KM. Again, completely independent witnesses that spoke about how the accused used Facebook Messenger to communicate with others, that he talked frequently on the Messenger application and, as KM said, even daily.

3. The accused, as someone who was a homebody, had Facebook Messenger as his only way to communicate and stay in touch with those close to him. And one step further from that, the only way that he could, on the prosecution case, continue to pursue his sexual interest in KP.

4. As to KP's recorded evidence, while I may have found KP was very matter of fact in her presentation and without emotion, KP is a young woman who, on her own account, has done everything possible to block out the offending by her uncle over 10 years ago and who has kept silent for all those years out of fear of impacting her mother's mental health.

5. The prosecutor asked me to carefully consider the specific details KP provided during the course of her evidence which had an intrinsic ring of truth to them and sit uncomfortably with any suggestion that this was a concocted memory plucked out of nowhere.

6. KP did not seek to portray the accused in a poor light as was not prone to embellishment. Importantly, KP recalled exactly what the accused said to her; who was at the house; what the accused did with his hands; where and how she was; and the way the accused placed his penis inside her mouth. No inconsistencies were put to KP, and she was unwavering in her account, despite vigorous cross-examination.

7. KP spoke about blocking out what had happened and pretending everything was fine. She conceded that she dropped her daughter off at the accused's home and that she visited the accused after the second incident. That she did not downplay her relationship with the accused is support for the truth of her account. KP said that each time she dropped her daughter off, SL was at the address, unlike the times when KP was there as a child.

8. KP’s evidence was that when the accused first offended against her she started crying, and the accused stopped and asked if she was okay. The prosecutor submitted that this was significant because if her story was embellished or fictitious, then KP would want to paint the accused in a poor light and impugn his character in some way to bolster herself. Instead KP spoke about thinking the accused stopped because she was crying, even checking if she was okay. KP did not try to exaggerate the pressure applied by the accused in that she did not say the accused told her that she couldn't tell anyone or to keep it a secret. She agreed with defence counsel that the accused never verbally or physically threatened her, never told her not to tell anyone, never paid her money to keep her quiet, and instead spoke about her choices not to say anything and her decision to block it out.

9. KP received a call from police on 7 December 2020. She had not gone to police or had time to think of a story or fabricate an account of events. She was simply asked whether she knew the accused and responded, detailing the offending. Such a spontaneous and instant disclosure bears significant weight on her reliability and honesty.

10. Ultimately the prosecutor submitted, I should be satisfied that KP was telling the truth.

11. The prosecution witnesses all remained consistent, as regards the opportunity for the accused to offend.

12. KP was honest regarding the description of the accused and his behaviours, which demonstrated that she was providing a candid and reliable account, and the best account that she could give.

    Defence Submissions

13. Defence counsel emphasised the significance of the evidence given by KP, that she would leave her two or three-year-old daughter to be cared for by SL and the accused, who she knew to be a paedophile was preyed on young girls like her.

14. Defence counsel argued that the issues the prosecution laboured would not assist me and submitted that KP was allowing her daughter to be supervised by someone who had committed serious sexual acts against her as a child while she went to the gym.[132]

    [132] Defence counsel described the accused’s offending as implausible in that the timeline undercut what KP said regarding her daughter’s welfare being at the forefront of her mind, which is what caused her to go to the police in late 2018. This did not accord with the evidence KP gave before me in this trial.

15. Defence counsel submitted an issue of critical importance was the photos that were supposedly of the accused’s penis. There is, defence counsel submitted, no independent support that these photos ever existed, that they were ever sent or that they were ever received. It is agreed that the police seized both mobile phones in 2020, that they were subsequently provided to E-Crime and an extraction was done. Nothing relevant was obtained on any device. Defence counsel argued that the photographs have no probative value at all when addressing the test in 34P(2)(b) of the Evidence Act. The photos were said to have been sent after the alleged offending. However, defence counsel argued, the evidence enhances the significance of the forensic disadvantage to the accused and goes to assessing KP’s credibility.

16. Defence counsel described KP as a poor historian who had no memory of the accused’s penis at all despite it having an unusual feature.  She could not tell whether the accused was circumcised or uncircumcised or whether he had particular tattoos. She also had no memory about when the photographs of the penis were sent.

17. KP had interactions with the police on numerous occasions which had a ‘flavour’ that something untoward was happening with KP’s partner allegedly taking illicit photographs of her young cousin. Defence counsel characterised the issue as ‘effectively offences of a similar nature to what is before the court here’. At no stage did KP complain until she was called several years later by police.

18. PB said that at the time of the alleged offending, KP had a phone. Accordingly, I was urged to consider whether KP had an opportunity to either contact her mother or the authorities around the time of the offending.

19. When cross-examined about the second incident KP said that she told the accused 'no', so appreciated that the conduct that was going on was wrong at the time, which defence counsel argued should have given her cause to complain much earlier than she did. Defence counsel described KP as defensive when being cross-examined about whether she should have complained earlier. She rolled her eyes when she was cross-examined about the allegation concerning her former partner and was defensive when cross-examined about why she deleted the photographs of the penis from her phone.

20. She described the police speaking to her as a 'rip off band-aid memory' which in defence counsel’s submission was particularly unconvincing.

21. KP’s explanation for why she allowed her daughter to be cared for by SL was that she trusted her and because her cousin would be there. Defence counsel argued that there was something particularly unconvincing, not only about those explanations, but in KP’s demeanour generally as a witness. Defence counsel submitted that KP inappropriately smiled a lot in her evidence.

22. The court should, defence counsel stressed, entertain serious doubts about PB’s reliability as a witness, in that one presented as someone who had been drug-affected and suffered significant mental health issues over a long period of time, and was labouring under those conditions to this day. Those issues and her presentation should cause me to have serious doubts about PB’s ability to rely on her recall of events as of 2011 and 2012.

23. PB had a bizarre dislike of SL as her childhood bully, despite the fact she was older than SL and grew up in different parts of South Australia. Defence counsel argued that I could simply not rely on PB’s recall of events.

24. SL said that the accused never wore any jewellery while PB said he would have a ring on his finger and that's how she identified him when she supposedly saw pictures of his penis. 

25. Defence counsel observed that the accused would visit KP when she lived at Kadina with her father and had visited her more than 10 times when she was younger. In defence counsel’s submission, this exposes the fallacy that the prosecution submits supports their 34P(2)(b) argument, that there was a sexual interest that continued in KP for a significant period of time before he offended. The unchallenged evidence is that he had significant opportunity to offend against KP for a lengthy period well before 2011 and tells against the submission that there has been an attempt by the defence to minimise the amount of contact the accused had with KP. If the prosecution argues that there were opportunities to offend, there were numerous opportunities to do so and yet there was no evidence he ever did. No uncharged acts were alleged or any offending before these allegations in 2011.

26. Even if I were to accept beyond reasonable doubt that KP came over more than twice, it would not, defence counsel argued, assist to get to the primary truth of the matter, because it was not disputed that KP attended the Walpole Street house. What is disputed is how many times, which goes to the forensic disadvantage. Defence counsel argued that I could not make a finding as to how many times KP came to the house because the evidence is so uncertain as memories have decayed over time.

27. Defence counsel argued that SL had a better memory and gave evidence in a far more straightforward manner. While she gave inconsistent versions of what she had said in the first trial, that was to be expected. The prior inconsistent statements put to her did not realistically impugn her ability to tell the truth, because she admitted what she said in the first trial.

28. SL gave an account as best she could remember and there were some differences on relatively unimportant topics such as who went shopping. Important aspects of her evidence were unchallenged.

29. Because these offences are identified on two particular occasions without any background of grooming, or any uncharged acts, the particulars become particularly important in allowing the defence to anticipate on critical issues such as where people were on particular days. SL gave evidence that she would go shopping on particular days, and other days she would not. Given the broad nature of the particulars here, it was not, defence counsel argued, possible for the accused, with any degree of certainty, to give an account of where particular individuals were at a particular time, or what people were doing on particular days. The answers given by SL are likely to be little more than estimates, rather than recalls of specific dates, because specific dates could not be put to her. 

30. Finally, defence counsel argued, there is a forensic disadvantage to the accused in the deletion of the penis photos by KP and a lost opportunity to have any semen or DNA analysed. All of those things, coupled with the decade or so since these offences were said to have been committed are significant matters which have disadvantaged the accused.

    Analysis

31. KP gave evidence in a straightforward and direct manner. She was not hesitant and despite robust cross-examination, maintained her composure and a consistency of account. While, as identified by the prosecutor, KP was unemotional in her responses, that in my view was not surprising. The alleged offending took place some time ago, and she has endeavoured to distance herself from what she says occurred. I did not, contrary to defence counsel’s observations, observe anything untoward in KP’s presentation. Plainly there have been other significant issues in her life since the times she alleges the accused offended against her. She has had her own child, dealt with offending alleged by her partner and navigated her way with her mother who has struggled with significant mental health issues. KP gave a balanced account of her relationship with the accused, describing him as someone who she had enjoyed spending time with. She made no attempt to make the events that she alleged appear more serious or to give a more detailed account when she was unable to recall a particular feature of the accused or what had occurred. KP’s details of the accused’s behaviour that showed he had at least some interest in her welfare at the time he offended against her was particularly compelling.

32. KP was open about having left her young daughter with SL and the accused on occasion. While defence counsel made much of KP’s decision to do so, I have not found that has undermined my favourable assessment of KP’s credibility. To assume that someone in KP’s position at the relevant time had readily available options of childcare could be thought naïve to the personal circumstances she may have been facing at the time.  In any event, in my view it is likely that KP would not have drawn any comparison between her child at age two or three and herself at age 12 or 13 when the accused offended against her, particularly when he had told her ‘how was she supposed to learn’ and in circumstances where SL was present.

33. Similarly, KP’s failure to report the accused to police when she clearly had ample opportunity, has not caused me to doubt KP’s evidence. There may be varied reasons why an alleged victim has made a complaint at a particular time or to a particular person and I note here that it was when a direct inquiry was made of her by police that she came forward with her allegations. It is not difficult to accept that the focus of KP’s concern at the relevant times was with her younger cousin and her own partner. As KP explained, she had not wanted to tell anyone about what the accused had done, and she had ‘locked it away’. Furthermore, KP’s decision to stay silent until she spoke to police was not difficult to understand given her mother’s mental health struggles, which were plainly evident at trial.

34. There is, in my view, nothing surprising in KP’s inability to describe the accused’s penis at the time of the offending given that she was a thirteen-year-old girl who is unlikely to have been focussing on the appearance of his penis at the relevant times and who may well not have any understanding of the difference between a penis that was circumcised or not, let alone with respect to a fully erect penis. Much the same can be said with respect to the accused’s tattoos and the skin tag. Without context as to the age of the accused’s tattoos, it is difficult to make a more detailed analysis of KP’s evidence on this topic but in any event, I note that KP described one tattoo being a clown which was consistent with SL’s evidence, and KP was able to describe a skin condition suffered by the accused. Given the description SL gave of the skin tag on the accused’s penis, it would not in my view have been of such significance for KP to either have noticed or retained a memory of it.

35. I formed a favourable impression of both KM and SS. Each gave their evidence in a straightforward way and while clearly there appeared to be some level of disharmony between SS and SL over the contribution that SS had made towards their father’s care, I did not get the impression that SS held such ill-feeling towards either SL or the accused to have sought to deliberately undermine the accused and give false evidence. 

36. While I found PB was doing her best to give honest account of events, I cannot accept her as an entirely credible or reliable witness. Her struggle with significant mental health issues was plain in her presentation. Clearly, she was confused and plainly mistaken as to the identity of SL and the role she played in her life as a child, and I have found it difficult to have confidence in the accuracy of some of her recollections. I accept her evidence where it accords with that given by other witnesses who I have found credible and reliable. I accept that she was involved in the accused and SL’s lives to the extent that she visited their home, went out with SL and had left KP in their care and in particular, in the accused’s care when she went out with SL.   

37. I am mindful of the submissions defence counsel made regarding the use to be made of the issue of opportunity for the accused to offend and, SL’s evidence on this topic. I formed an unfavourable impression of SL who I consider cannot be regarded as either a credible or reliable witness. She gave a confused and internally inconsistent account of when it was that KP had been present at her house and why. While naturally there may be minor differences between the evidence given at the earlier trial, the extent of the discrepancies between SL’s versions of events cannot be explained other than as her effort to deliberately place distance between the accused and PB and particularly KP. SL took every opportunity to show that there was simply no opportunity for the accused to have offended as alleged.  SL’s evidence that there had been no occasion on which the accused had been at home alone with children was simply implausible, particularly given the evidence of SS, which I accept, that the accused did not like to be out from his home. I am satisfied that the evidence established that the accused did have the opportunity to commit the offences as alleged by KP.

38. While I have rejected SL’s evidence regarding opportunity, it is not for defence to prove anything. I must be satisfied beyond reasonable doubt that KP has been truthful and accurate.

39. Defence counsel emphasised a significant forensic disadvantage to the accused in this case. In my view, the disadvantage in respect of testing KP’s accounts can be described as minimal given that the defence case was that there were only two discrete occasions when KP was at the accused’s house.

40. With respect to the photos sent to KP from the accused’s Messenger account, I found that KP gave a credible account of the images she said she received and accept that she had forwarded them to her mother. In arriving at that finding, I have taken into account the forensic disadvantage to the accused that has resulted from the images having been deleted when scrutinising KP’s evidence.

41. Although KP was unable to say when the images had been sent, it was when she was living in Queensland which was said to have been in 2014. KP would have been around 16 years of age at the time. I accept that such images sent to a niece may well be inherently sexual in nature and that in certain circumstances it would be entirely implausible for such images to be sent to KP unless the accused could be confident that KP would not complain about his conduct. While, as I have said, I am satisfied that images of a penis were sent to KP from the accused and SL’s account, the evidence that is before me does not allow me to be satisfied that the images were of the accused’s penis given that the only identifying feature KP could describe was a skin irritation which she recognised, and she made no mention of the ring seen by PB. In the end I have found it difficult to put the evidence to the use argued for by the prosecution without knowing more about the context in which the images were sent and that they were in fact images of the accused’s penis.

42. While I do not accept all the matters that defence counsel raised warrant a forensic disadvantage direction, deletion of the images KP said she received from the accused has given rise to a significant forensic disadvantage to the accused because they cannot be examined. I have accordingly not used the evidence to show that the accused had a sexual interest in KP or that he was emboldened.

43. I am satisfied beyond reasonable doubt that there was opportunity for the accused to have offended as KP has alleged and that KP gave evidence that was based on her memory of the actual events.

1. In respect of count 1, I am satisfied beyond reasonable doubt that the accused had sexual intercourse with KP by causing her to perform an act of fellatio upon him.

2. In respect of count 2, I am satisfied beyond reasonable doubt that the accused had sexual intercourse with KP by causing her to perform an act of fellatio upon him.