R v ALB
[2024] SADC 122
•3 October 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALB
Criminal Trial by Judge Alone
[2024] SADC 122
Reasons for the Verdict of his Honour Judge Handshin
3 October 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of sexual abuse of a child. The complainant was the accused’s step-daughter. Between Christmas Day 2010 and July 2018, the complainant, her mother and her younger brother, lived with the accused at his farm on the Eyre Peninsula. The prosecution case was that at unidentified times between 2010 and 2015, when the complainant was aged five to 10 years old, the accused sexually abused her on nine separate occasions. In early 2014 or 2015, the complainant made a complaint to her friend that the accused had ‘touched her’. In November 2015, in apparent response to a further disclosure by the complainant, her mother organised for her to see a medical practitioner which, on the prosecution case, brought about an elaboration of the initial complaint. After the consultation with the medical practitioner, the complainant and her mother spent time at another property however, later that night and as a result of concerning text messages the complainant’s mother had received from the accused, she returned to the farm and found the accused in a distressed condition. The accused denied the allegations that were put to him by the complainant’s mother. The following day or thereabouts, the complainant and her mother returned to the farm and continued to live with the accused until July 2018. No further action was taken in response to the complainant’s disclosures until mid-2020 when she provided a statement to police following the dissolution of the relationship between the accused and her mother. The accused was arrested and charged with sexual abuse of a child in November 2020. He participated in an interview with police and denied the allegations. The accused also gave evidence at trial denying the offence.
Held:
The complainant’s evidence was, in material respects, shown to be inconsistent with statements she had given to police and was overlayed by her inability to remember important contextual and chronological details of the alleged offending. However, in other respects, the complainant’s account presented as inherently credible and reliable. The accused’s evidence was coherent, logical and given in a direct and matter of fact way. His evidence was not substantially undermined in cross examination and, with one exception, derived support from aspects of the evidence given by the complainant’s mother and another witness. The accused’s denials were reasonably possibly true. Accordingly, the prosecution failed to discharge its burden.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) ss 49(7), 50, 50(1), 50(12) and 56; Evidence Act 1929 (SA) ss 13D, 34CB and 34M , referred to.
R v Dookheea (2017) 262 CLR 402; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen (2011) 245 CLR 257; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Angus (a pseudonym) v The King [2024] SASCA 101; JJP v The Queen [2021] SASCA 53, considered.
R v ALB
[2024] SADC 122Criminal Jurisdiction
The accused is charged on Information with one count of sexual abuse of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
I set out the particulars of the charge:
Statement of Offence
Sexual Abuse of a Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[ALB] between the 24th day of December 2010 and the 30th day of November 2015 at Verran, maintained an unlawful sexual relationship with [M], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) touching her vagina on more than one occasion;
(b) inserting an object into her vagina on one occasion;
(c) causing her to touch his penis on more than one occasion;
(d) rubbing his genital area against her genital area on one occasion; and
(e) exposing his penis in her presence on one occasion.
The alleged victim of the offence, who I will refer to as M, was the accused’s step-daughter. From 25 December 2010 to July 2018, M, her mother AS, her younger brother D and, for some time at least, her older step-sister, PeC, lived with the accused at his farm at Verran.
The prosecution case is that between late December 2010 and November 2015, at unidentified times, the accused committed a number of unlawful sexual acts against or in the presence of M in the lounge room of the homestead; the master bedroom and ensuite; M’s bedroom; the kitchen and the home office. The unlawful sexual acts primarily comprised of the accused touching or rubbing M’s vagina, or, on two occasions, having M touch his penis. On one occasion, the accused is alleged to have used a lead pencil to penetrate M’s vagina as she sat on his lap in the lounge room on the property and on one occasion, the accused is alleged to have called M into the kitchen whilst baking cookies, at which time he exposed to her his erect penis which appeared to have some icing on it.
It was the prosecution case that in January 2014 or 2015, M complained to her friend, L, about the accused but nothing appears to have come of that complaint. Then, in November 2015, it would seem M made a further disclosure to her mother which prompted AS to arrange for M to see a doctor in Cleve (Dr Kanters). During the consultation with Dr Kanters, the prosecution case was that M elaborated on the complaint she had made to L and / or her mother. Dr Kanters told AS that she was required to make a mandatory child abuse notification to the authorities.
Thereafter, AS took M to a residence where her eldest son was living. AS engaged in text message communications with the accused, during which she confronted him with M’s allegations, which the accused denied. The accused also made comments indicating that he was contemplating committing suicide, which prompted AS to return to the Verran property at around midnight of the day of M’s consultation with Dr Kanters. Upon arriving at Verran, AS found the accused in a most distressed state.
In the day or days that followed, AS and M decided to return to the farm because, amongst other things, M was overwhelmed and did not want anything to change and all of their belongings were at Verran. No further unlawful sexual acts were alleged to have occurred after AS and M resumed living at Verran.
In September 2017, AS was contacted by a police officer in relation to a child abuse notification concerning M. The delay between Dr Kanters’ notification and police following up the notification with AS was the result of an ‘administrative error’. Nothing further came of the contact AS had with police in September 2017.
AS, M and D continued living with the accused at Verran until mid-2018 when AS and the accused separated.
In May 2020, M gave a statement to police.
The accused was arrested in November 2020.
The accused elected for trial by judge alone and pleaded not guilty. I now publish reasons for the verdict I deliver.
Legal directions
Before turning to a review of the evidence and explanation of my findings and reasons, I remind myself of some fundamental matters.
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charge unless and until the prosecution proves each element of the offence beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
It is a corollary of the prosecution’s burden of proof that if, having considered all of the evidence, I am unsure where the truth lies in relation to the charge, my verdict must be not guilty.
Equally, the question for me is not whether I prefer the evidence of the complainant to the version given by the accused during his interview with the police and / or his sworn evidence.[1] The issues in dispute cannot be resolved by making a mere choice as between the conflicting bodies of evidence.[2] The prosecution carries the burden of proof and, in the circumstances of this case, that burden can only be discharged if M’s evidence is accepted as credible and reliable and establishes the elements of the offence to the criminal standard.
[1] Liberato v The Queen (1985) 159 CLR 507, 515.
[2] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11].
As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence or whose evidence was put before me either by way of the recording (in the case of M) or the tender of the transcripts of evidence previously given. It is of course my prerogative to accept or reject all or parts of a witness’ evidence. I may find a witness reliable and credible in relation to some aspects of their evidence but not others.
The accused’s interview with police was tendered as part of the prosecution case. In his interview, the accused denied the alleged offending. At the conclusion of the prosecution case, the accused indicated that he would give evidence in his defence and he subsequently did so. The accused was not obliged to give evidence. He carries no burden in this trial and no inference could have been drawn against him or the case he presents had he chosen not to give evidence. However, the accused elected to give evidence and to face up to cross examination and I give him credit for taking a course he was not obliged to take. I will assess the evidence of the accused (and his interview with police) in the same way that I will assess the evidence of the prosecution witnesses. His evidence is not to be approached with suspicion or caution merely because he is the accused.[3]
[3] Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen (2011) 245 CLR 257.
As the accused carries no burden in the trial, it is not necessary for me to believe his evidence or what he said during his interview with police for there to be a doubt as to his guilt. If the accused’s denials are even reasonably possibly true, then he must be acquitted as it would necessarily follow that the prosecution had failed to prove its case.
Of course, even if I were to reject as not reasonably possibly true what the accused said to police and in his sworn evidence, that would not mean the prosecution will have proved the charge. In such a case, it would be necessary for me to return to the prosecution evidence and determine whether, on the basis of that evidence – and in particular the evidence of M – the prosecution has proved the elements of the offence beyond reasonable doubt.
In this respect, it is self-evident that the prosecution case hangs on the evidence of M. Although her evidence is said to derive some support from the evidence of AS and complaint evidence, the prosecution cannot succeed unless I am satisfied that M’s account of the alleged offending is credible and reliable and satisfies me beyond reasonable doubt of the elements of the offence. For these reasons, and others I will come to, I consider it essential to scrutinise M’s evidence with great care.
In deciding whether the offence has been proved beyond reasonable doubt, I must have regard to the whole of the relevant and admissible evidence. This will require me to evaluate any inconsistencies in the evidence of the complainant or as between her evidence and other evidence presented as part of the prosecution and defence cases, together with any other shortcomings in the prosecution evidence which bear upon the discharge of its burden. The significance of any asserted inconsistencies or other shortcomings in the evidence of the witnesses is to be evaluated collectively and not compartmentalised. I indicate that I have taken this approach when considering the evidence of the witnesses.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offence, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
Forensic disadvantage
I say something now about the significant forensic disadvantage that I consider the accused confronts in defending allegations which date back to between 2010 and 2015. Whilst s 34CB of the Evidence Act 1929 (SA) has no application to trials before a judge sitting without a jury,[4] the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to apply these principles when evaluating whether the prosecution has met its burden of proof in circumstances in which s 34CB would otherwise apply.
[4] JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]; Angus (a pseudonym) v The King [2024] SASCA 101, [45]-[46].
It is apparent from the brief chronology set out earlier, that the allegations against the accused date back between nine and 14 years. The critical events about which M gave evidence are alleged to have occurred when she was a young child.
The significant forensic disadvantage to the accused has a number of dimensions. For one, the passage of time may have impacted upon the accused’s memory of the relevant events and surrounding circumstances and hence impaired his capacity to instruct his lawyers and test the evidence. Had the trial been conducted more proximately to the alleged events, the accused may have been able to give or lead evidence as to his whereabouts or movements on a particular occasion, or who he might have been with, which might have revealed inconsistencies related to or implausible aspects of the prosecution case. The accused may have been in a position to marshal documentary or other evidence in support of his defence of the charges and I will return to this momentarily.
The passage of time may have also impacted the memory of witnesses in a manner which disadvantages the presentation of the defence case. M in particular may have become convinced that a particular event or incident took place even though it did not or may have forgotten or misremembered details that would be to the benefit of or otherwise significant to the defence case. The loss of the forensic tools available to the accused to test and challenge the evidence of M on account of the passage of time may in turn have impaired his ability to demonstrate the unreliability or lack of credibility of her evidence.
As will become apparent from my summary of the evidence given by M, she was unable to identify in any detail, or in some cases at all, when the episodes of alleged abuse occurred; how old she was at the time of any of the particularised incidents; in some cases, where other members of the household were; or indeed anything substantive by way of the surrounding context or circumstances of the unlawful sexual acts alleged. The absence of evidence on these and similar issues has denied the accused the capacity to expose, for example, a lack of opportunity to commit one or more of the unlawful sexual acts alleged; to demonstrate that he was elsewhere at the relevant time including, as the accused spoke about during his evidence, tending to paddocks on the farm or delivering harvested crops to off-site silos; or to undermine the plausibility of the complainant’s account more generally.
The accused gave evidence about various farming records he and his brother maintained throughout the period of alleged offending that document when certain activities were carried out on the property. Had the complainant been able to particularise in any further detail the time and circumstances in which she alleges sexual abuse, the accused may have been able to deploy those records to demonstrate the falsity or unreliability of aspects of M’s account.
Accordingly, I am satisfied that the effluxion of time since the commission of the alleged offence has resulted in a significant forensic disadvantage to the accused that I will bring to account when scrutinising the prosecution evidence. Indeed, I consider that it is essential to scrutinise the complainant’s evidence with great care for a variety of reasons including the age of the allegations the accused faces; the age of the complainant at the time of the alleged offending; the absence of important contextual detail; and various inconsistencies in her account, a number of which relate directly to the unlawful sexual acts alleged.
Elements of the offence
The offence of sexual abuse of a child consists of the following four elements:
· The accused was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised.
· The complainant, M, was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised.
· The accused knowingly maintained a relationship with M during the period in which two or more unlawful sexual acts occurred.
There is no dispute about the first three elements of this offence. In particular, there is no dispute that the accused knowingly maintained a relationship with M throughout the charged period. He was her step-father and M lived with the accused at the Verran farm.
· Whilst the above relationship was being knowingly maintained, the accused intentionally committed two or more of the unlawful sexual acts particularised with or towards the complainant. ‘Unlawful sexual act’ is defined by s 50(12) of the CLCA as any act that constitutes, or would constitute, a sexual offence if the time and place at which the act occurred were sufficiently particularised. ‘Sexual offence’ is in turn defined to mean, relevantly, an offence against Division 11 of the CLCA. In JJP v The Queen [2021] SASCA 53 at [157], Doyle JA, with whom Kelly P agreed, explained that the elements of a s 50 charge include the elements of the sexual offences constituted by the ‘unlawful sexual acts’. That is to say, in order to establish the commission of an ‘unlawful sexual act’, the prosecution must prove beyond reasonable doubt that the accused’s conduct would satisfy the elements of a ‘sexual offence’ as defined.
The unlawful sexual acts particularised by the prosecution are said to make out the following sexual offences:
· Particulars (a) and (d) – indecent assault.
· Particular (b) – unlawful sexual intercourse.
· Particulars (c) and (e) – act of gross indecency.
The elements of indecent assault contrary to s 56 of the CLCA that must be proved by the prosecution are as follows:
· The accused assaulted M. An assault is the deliberate application of force to another. A deliberate touching would suffice.
· The assault occurred in circumstances of indecency which requires proof of a sexual connotation to the touching or force that constitutes the ‘assault’. It was not suggested that if I was satisfied beyond reasonable doubt that the accused touched M’s vagina or deliberately rubbed his genitals against hers, this conduct did not amount to an indecent assault.
Consent is no defence to a charge of indecent assault against a child.
Unlawful sexual intercourse (particular (b)) consists of the following elements:
· The accused had sexual intercourse with M. Sexual intercourse is defined to include penetration of the labia majora by any part of the body of another person or an object.
· M was under 17 years old at the time of the alleged offending.
Consent is no defence to a charge of unlawful sexual intercourse.[5]
[5] Criminal Law Consolidation Act 1935 (SA), s 49(7).
An act of gross indecency (particulars (c) and (e)) with a person under the age of 16 years requires the prosecution to prove:
· The accused intentionally committed an act in the presence of or with M.
· The act was ‘grossly indecent’. Whether an act is ‘indecent’ for the purpose of this element is to be determined according to contemporary community standards, however the act must have a sexual connotation. Moreover, any proved conduct must not merely be indecent; it must be grossly indecent.
· M was under 16 years old at the time the accused committed the act.
Again, it was not disputed that the conduct alleged in particulars (b), (c) and (e) would satisfy the elements of these sub-offences if proved.
The conduct of the trial
At the outset of the trial, I was informed by counsel that the accused had previously been tried on the charge of sexual abuse of a child and that I was to hear a re-trial to proceed, by agreement between the parties, largely by way of the tender of evidence given by numerous witnesses at the earlier trial of the charge.
The evidence of M was, in due course, put before me by way of the playing of a recording of the evidence she had given at the earlier trial. The record of M’s evidence was played pursuant to s 13D of the Evidence Act by consent and marked as MFIP2 with a transcript of the recording marked MFIP2A. I have not allowed the fact that M’s evidence was put before me in this form to influence the weight I am prepared to give to her evidence, nor have I drawn any inference adverse to the accused from the fact that M’s evidence was put before me in this way or from the fact that there was a previous trial of the charge.
The evidence of AS was put before me by way of the tender of the transcript of her evidence from the previous trial (P3).
The evidence of Dr Kanters, the medical practitioner who AS took M to see in November 2015 after, it would appear, M had made a disclosure to AS about the alleged abuse, was put before me by way of the tender of the transcript of her evidence at the previous trial (P6).
The evidence of Detective Timothy Wallwork and former police officer Fiona Andrew was also put before me by way of the tender of the transcript of their evidence from the last trial (P4 and P5).
The accused’s daughter, AmB, also gave evidence at the last trial as part of the defence case. By agreement between the parties, the transcript of AmB’s evidence from that trial was tendered as part of the prosecution case (P7).
Accordingly, when I refer throughout the course of my reasons to the evidence given by M, AS, Dr Kanters, Detective Wallwork, Fiona Andrew and AmB, I am referring to the evidence given by those witnesses at the previous trial.
Summary of the defence case
The defence case was that none of the particularised acts of abuse occurred. The defence contended that M’s evidence was unreliable and lacked credibility having regard to the passage of time between the allegations and the trial of the matter; her young age at the time of the alleged offending; various inconsistencies in her account and as between her evidence, the evidence of her mother, AS and the evidence of her friend L and Dr Kanters on the topic of complaint; and her inability to identify in any detail or at all when the unlawful sexual acts were alleged to have occurred.
The defence relied further on the accused’s denials in his interview with police following his arrest and his sworn evidence in which he again denied sexually abusing M in any way whatsoever. The defence submitted that the accused’s evidence should be positively believed as it was not undermined in cross examination, or that at the very least, I would be unable to exclude his evidence as not reasonably possibly true.
The complainant’s evidence
At the time her evidence was recorded, M was 17 years of age. She was born on 28 April 2005 and was between five and 10 years of age during the period of alleged abuse (although, as will be seen, M seemed to suggest that the abuse commenced after PeC moved out of Verran which was sometime in 2011/2012).
M said that she met the accused when her mother commenced a relationship with him after separating from M’s biological father. M was then living in Cleve with her younger brother D, her half-sister PeC and her mother, AS, but after the relationship between the accused and AS commenced, the family moved to the accused’s farm at Verran.
M could not remember how old she was when she met the accused but thought she was attending school by the time of the move to Verran.
A floor plan of the homestead at Verran was tendered through M (P1). By reference to the floor plan, M said that when they first moved to the farm, the accused and her mother occupied the room labelled ‘Spare room’ because the master bedroom and ensuite had not yet been constructed. She said renovations were undertaken after she and her family moved into the house. The evidence of AS and the accused was, contrastingly, that the renovations to the property had been completed when AS, M, D and PeC moved into the Verran house.
The floor plan of the house indicates that the master bedroom, which was occupied by the accused and AS, adjoined the lounge room in which M alleged a number of acts of sexual abuse took place. The two rooms were separated by a sliding door and the only way in and out of the master bedroom appears to have been via the lounge room.
After moving to Verran, M and her brother D continued attending the Cleve Area School which was about a 30 minute drive from Verran. They would catch the bus to and from school most days of the week, returning home in the afternoons around 4pm. AS worked in Cleve after the family moved to Verran and would often not get home until 5:30-6pm, and occasionally later. The accused worked on the farm which comprised some 8000 acres of land. The accused would normally be gone from the homestead by the time the children woke up and would return to the house in the evening after AS was back from work.
M said her mother attended sewing classes in Cleve on Wednesdays and on some Saturdays, the children would be left in the care of the accused if AS had to work.
M gave evidence that she did not get along well with the accused as he ‘yelled a lot and I just didn’t really like him…’.
M gave evidence of nine specific episodes of alleged sexual abuse but she was unable to identify with any precision when or the period of time over which the episodes occurred.
Lounge room – first time – Particular (a)
M said the first incident of alleged abuse occurred in the lounge room of the house. She thought AS had gone to bed and that her brother, D, would have been in the spare room. M was a school student at the time but she could not say what year she was in or how old she was. She said that she had been watching television in the lounge room. The accused was also in the lounge room and was seated on a recliner chair that was adjacent to the sliding doors that provided access into the lounge room from the main hallway of the house. M asked to sit on the accused’s lap. The accused agreed. M moved onto the accused’s lap with her back towards him, after which he put his hand down her pants via the waistband and started touching her vagina with his fingers. She could not say whether he put his fingers inside her vagina.
M pushed the accused’s arm away but he did not desist.
M could not say what clothing she was wearing but she normally wore pyjamas or shorts and a shirt when at home. She always wore underwear.
M said she thought the accused asked her if she enjoyed what he was doing when he was touching her vagina. She thought she shook her head in response.
M said she did not tell anyone about the incident because, at some point, although she could not say when, the accused had told her not to tell anyone about what he was doing to her.
In cross examination, M agreed that if AS was in bed at the time of the alleged incident, she would have been able to see what was happening in the lounge room had she opened the sliding door between the lounge room and the master bedroom. M confirmed that she had merely assumed that D would have been in the spare room at the time of the alleged incident and did not have a memory whether he was or not.
M agreed that she had not described this particular incident as the ‘first time’ the accused had touched her when giving a witness statement in May 2020.
Lounge room – pencil incident – Particular (b)
M said that the second incident also took place in the lounge room whilst the accused was sitting in the recliner chair he usually occupied. She said this incident occurred in the afternoon but she could not remember where her mother or brother were. M said she was sitting on the accused’s lap but she was unable to explain how that came about. She had her left shoulder facing the accused’s chest which meant her back was facing the lounge room sliding doors. She thought the sliding doors were open at the time as they were ‘always open’.
M said that the accused retrieved a yellow pencil with a red eraser on the end from a small table near to the recliner chair and inserted the lead end of the pencil into her vagina. She could not remember what she was wearing and how her clothing was manipulated to allow this to occur. M said she did not experience any pain when the accused inserted the pencil.
M was unable to say when this incident took place whether generally or in relation to the first incident of alleged abuse other than that it occurred after the ‘first incident’ in the lounge room.
Again, she did not tell anyone what had happened because the accused had told her not to at some point.
In cross examination, M confirmed that she could not say when the incident occurred but she thought she was no older than 10. She confirmed that she did not experience any pain when the pencil was inserted into her vagina and could not say how far the pencil was inserted. She said she assumed the accused simply put the pencil back in the ‘pencil pot’ after the incident. It was put to M that there was in fact no pencil pot kept on a table between the recliner and the sofa but M disagreed with that proposition.
M said that apart from this incident, there were no other occasions that she could remember when the accused penetrated her vagina.
Lounge room – playfighting incident – Particular (d)
M gave evidence of a further incident taking place in the lounge room in the context of playfighting with her brother, D. Although she could not remember how the accused became involved in the horseplay, she said that at some point she came to be lying on her back on the ground with the accused positioned on top of her with her younger brother, D, on the accused’s back. The accused was encouraging D to press against the accused with the effect of forcing the accused’s body into M’s, but she was unable to recall what the accused was saying to D.
M said she felt the accused pressing and rubbing his penis against her genital area with his hands positioned above M’s shoulders. Asked to describe what the accused was doing at this point, M responded ‘rubbing it against my genital area’. M said that she tried to push against the accused to get out but it was ‘a bit difficult’.
M said she did not know where her mother was during this incident.
In cross examination, M was asked whether she told the police in her May 2020 statement that ‘I managed to crawl out from underneath them’, presumably a reference to the accused’s position over the top of her during the incident. M agreed she had made this statement but denied it was different to the evidence she had given.
M said that the accused was wearing loose fitting tracksuit pants and a black singlet during the incident. She said he had tattoos, but she could not remember where they were on his body.
She was unable to say for how long the incident went.
Lounge room – spitting incident – Particular (a)
M described another incident that took place in the lounge room one night when other members of the household were not around. M said this incident occurred after the playfighting episode but she was not able to further detail the timeline of events, or the frequency with which the incidents discussed thus far occurred.
M gave evidence that on this occasion she came to be sitting on the accused’s lap again in circumstances she could not describe. The accused put his hands down her pants and began to touch her vagina with his fingers. The accused then spat on his fingers before touching M’s vagina again. M said the accused did not penetrate her vagina with his fingers.
She was unable to say how the incident came to an end.
M’s bedroom – in the bed – Particular (a)
M said that in addition to the incidents that took place in the lounge room, sexual activity also occurred in her bedroom, the kitchen, the master bedroom and ensuite (noting that her summary of other locations omitted reference to alleged abuse in the office about which M also gave evidence).
She described one incident in her bedroom when the accused got into her bed, put his hands inside her pants and rubbed her vagina with his fingers.
M said this incident occurred sometime after 7:30pm one evening. M was lying on her bed on her back. The accused got into her bed either by climbing over her or via the foot of the bed. He had his back to the wall which the bed abutted and which, by reference to P1, would indicate he was generally orientated towards the bedroom door. I pause here to observe that P1 indicates that M’s bedroom was located off a hallway that ran perpendicular to the main hallway of the house such that there was no line of sight into her bedroom from the lounge room, master bedroom or from D’s room.
M said that after the accused entered the bedroom, the door remained open. M thought D would have been in bed in his room as they had the same bed-time and she thought AS was also in bed in the master bedroom.
M said that the accused put his hands in her pants and rubbed her vagina with his fingers. After the accused began touching her, M got up to go to the bathroom but thereafter returned to her bedroom. She said she did not want to say anything to AS as she was scared of the accused. When she returned to her bedroom, the accused continued touching her for a bit longer before leaving.
In cross examination, M said that the light in her room was off and she did not think any other lights in the house were on. She said however that the television in the lounge room was on. M agreed she had told the police in her statement of May 2020 that ‘[T]his particular night the television was on and the lights in the lounge room were on’. Asked to explain the asserted inconsistency, M said that what she told the police about the lights in the lounge room being on was ‘just what I remembered at the time.’
M said she assumed that the accused had climbed over her in order to position himself where he did on her bed but that he could have got into that position from the foot of the bed. She confirmed her door was open and the light in her bedroom was off. Asked whether anyone else was in the house on this occasion, M said she could remember her mum being in bed and having gone to bed early because she was sick, although she was unable to supply any further details in this respect.
M agreed that from his position in the bed, the accused would not have been able to see anyone coming down the hallway towards M’s bedroom because there was no direct line of sight from her bed.
Master bedroom – pillow over the face incident – Particular (a)
M described an occasion in which the accused had called her into the master bedroom after he had showered and was taking a nap. M entered the master bedroom and the accused told her to lay down on the bed and put a pillow over her face, which she did. The accused then put his hands inside the waistband of her pants or pushed her underwear to the side and rubbed her vagina with his fingers. Although M could not remember the accused removing her pants, her evidence was that he spat directly on to her vagina during this incident, albeit she did not see this as she had a pillow over her face. M said this incident occurred in the afternoon and that D ‘would have’ been at home but she was unsure where he was.
M said the door to the master bedroom remained open after she entered the room. I note that the master bedroom opened into the lounge room via a sliding door such that anyone walking into the lounge room may have been able to see into the master bedroom if the sliding door was open. There was no evidence before me as to what of the master bedroom would be visible upon immediately entering the lounge room.
In cross examination, M agreed that she had told police in her February 2021 statement that ‘The rubbing of my vagina normally always happened in the lounge room on his chair. The only other place was the time [in] my bed, which I explained in my first statement’ (emphasis added). She agreed that, in light of her evidence in chief, what she had told police was wrong.
M said further that she assumed D was home at the time of this incident and that, if he was, he would have been able to see what was occurring in the master bedroom from the hallway.
M was unable to say for how long this incident continued.
Master ensuite – penis touching incident – Particular (c)
On another occasion when M thought the accused had just taken a shower, M was summoned again to the master bathroom. The accused was naked and holding a towel. He asked M to touch his penis. He grabbed her hand and put it onto his penis. The accused asked M to rub his penis ‘until he peed a little bit’. M gave evidence that she did what the accused asked for ‘a little bit and then pulled my hand away’. She could not remember if the accused was holding her hand while she touched his penis.
In cross examination, M confirmed that she was ‘pretty sure’ the accused had already taken a shower when this incident occurred. It was put to M that she had told the police in her statement of May 2020 that ‘I was watching television in the lounge room. [The accused] was just about to get into the shower’ (emphasis added). M agreed that she had made that comment to the police and when asked to explain why she told the police he was about to get into the shower when her evidence was he had just got out of the shower, M said ‘That’s just what I remembered at the time’. M maintained that she was ‘pretty sure’ the accused had ‘already had a shower’. Asked whether her memories about these things had changed a bit over time, M responded ‘Not all of them, no’.
M was cross examined further on having told the police in her May 2020 statement that ‘I touched his penis with my hand but I pulled my hand away and walked out’, which was said to be inconsistent with her evidence in chief that she had done what the accused had asked of her for a ‘little bit’ and then pulled her hand away. M agreed that she had made the statement to police and agreed there was a difference in her two accounts. She maintained that she in fact did what the accused had asked her to do for some time before pulling her hand away.
Kitchen – icing incident – Particular (e)
Another episode about which M gave evidence was alleged to have taken place in the kitchen. M said that the accused was making biscuits and called her into the kitchen. Upon entering the kitchen, M saw that the accused’s pants were pulled down a little and his erect penis with ‘icing on the tip of it’ was exposed. M did not think the accused said anything and she could not remember if she said anything. After seeing the accused’s penis, M left the kitchen.
In cross examination, M agreed that in the first statement she gave to the police about her allegations in May 2020, she said of this incident: ‘I saw that his penis was visible, it was erect and it was covered in icing which would normally go on the biscuits’. M agreed that there was a difference between her evidence of having seen icing on the tip of the accused’s penis on the one hand and her statement to the police that she had seen the accused’s penis ‘covered in icing’ on the other. M maintained that her evidence was correct and that she had seen icing on the tip of the accused’s penis.
Office – penis touching incident – Particular (c)
The final incident about which M gave evidence was alleged to have occurred in the home office ‘later at night’. M had been called into the office by the accused whereupon she saw him sitting down and looking at his computer. M stood next to the accused who grabbed her hand and put it down his pants such that she touched his penis for a matter of seconds before she pulled her hand away.
M thought her brother ‘would have been home’ at the time of this incident but she could not remember whether her mother was at home.
Although this was the last incident that M described, she recalled it taking place before the kitchen incident but after the episodes in the other rooms of the house which I have earlier summarised.
In cross examination, M said that it was unusual for her to be in the office as she was not really allowed in there. She reiterated that the accused had called her into the office. M agreed that she did not mention the accused calling her into the office in her statement of May 2020.
The accused’s daughter
M was asked in cross examination whether the accused’s daughter, AmB, and her partner lived at the farm for a period of 9 months in 2013. M said she was not sure and that she could not remember them living in a caravan on the property.
Complaint – 2014 or 2015
It will be apparent from the above summary of the alleged episodes of abuse that M was unable to identify when these events occurred and the extent to which each episode was separated in time, save that she said in cross examination that she thought the sexual abuse commenced after her step-sister PeC had moved out of the Verran household which, by reference to other evidence, would seem to be some time in 2011 or 2012. It is not possible on the evidence to be more precise.
AS gave evidence that the family moved in with the accused on 25 December 2010 and it follows that the alleged abuse must have occurred sometime between that date (but more probably a date in 2011 / 2012) and 30 November 2015 when M was taken to see Dr Kanters, in circumstances I will come to in due course.
M said the first person she told about the alleged abuse was her friend L. M said the disclosure occurred on Australia day in 2014 or 2015 when she and L were by a creek at someone’s farm. M described her disclosure to L in the following terms:
Q. What exactly do you remember telling [L].
A.I can't remember the exact conversation but I told her that [ALB] had touched me and she'd asked me to - told me I should have told her big sister [G] because she'd know what to do but I refused and just brushed it off.
Q. When you say you just brushed it off, what do you mean by that.
A. I told her not to worry about it and just ignored it.
Q. Why did you refuse to tell [L’s] older sister.
A.I guess after I told [L] I just kind of panicked, I didn't really want anybody to find out and decided not to say anything else.
Q.Other than telling [L] that [ALB] touched you, did you say anything else about how or where he touched you.
A. I can't remember.
Q. Was anyone else present for the conversation.
A. No.
Q. Can you remember how it came about.
A. No.
Q. Did [L] or you say something before you told [L] about [ALB] touching you.
A. I can't remember.
Q. Why did you tell [L] about this at that time.
A. I'm not sure.
Q. Is there a reason you didn't tell a different person on an earlier occasion.
A. No reason, no.
L gave the following evidence about a discussion she had with M:
Q. Did you spend any time with [M] in January 2015.
A. Yes.
Q. Roughly how old were you then.
A. Around eight.
Q. Is there a particular conversation that sticks out in your mind with [M].
A. Yes.
Q. What happened on that occasion.
A.So, we were outside in her inflatable swimming pool in the backyard and she told me that she had something to tell me and she told me that her stepdad, [ALB], used to get into her bed with her and that he used to do it with her older sister.
Q. When she said those things, whereabouts were you.
A. In the pool.
Q. At their farm.
A. Yes.
Q. In response to what she said, did you say anything.
A. I asked if she was being serious or if she was just joking.
Q. Did [M] respond.
A. She said she was joking.
Q. Did she go into any of the detail about [ALB] getting into her bed.
A. No.
Q.What was [M’s] demeanour like, first, when she told you [ALB] would get into her bed.
A. She was serious.
Q. What about after when she said she was joking.
A. She went back to normal, smiling, happy.
It can be seen that the evidence of M and L about the ‘complaint’ made by M was qualitatively different.
M said she was not sure why she chose to make a complaint to L and when asked if there was any reason she did not tell someone else earlier, M responded ‘no reason, no’.
M said she later told her mum about the alleged abuse which prompted AS to make an appointment for M to see Dr Kanters at Whyalla. M said that in the appointment with Dr Kanters she did not make any disclosure about the alleged offending. Indeed, she was adamant about this, remarking ‘I sat in the room next to mum and refused to say anything because I didn’t want to be there’.
However, it was the prosecution case, by reference to the evidence of AS and Dr Kanters, that M in fact made a further disclosure to Dr Kanters that constituted an elaboration of the initial complaint to L.
Dr Kanters gave evidence that M and AS attended an appointment to see her on 30 November 2015. She made contemporaneous notes of what M told her, which she said was as follows:
A.So, what [M] told me was that her mother's boyfriend, [ALB], had come in to her room when her mother wasn't home, touched her private parts, at which point she indicated her lower abdomen between her legs and her chest, and touched her with his fingers and private parts without any penetration.
Q. Can you remember now whether [M] used the words private parts.
A. Couldn't say. That's my writing, she might have said it, not sure.
Q.Would they be words that you might use to summarise or paraphrase what a patient has told you.
A.Absolutely. But I did specifically ask her, because I wasn't - I suppose because I wasn't certain what was being said, I did specifically ask her if she could show me what she meant, at which point she indicated the body parts mentioned previously.
Q.Did [M] tell you whether what she described happened just the one time or more than one time.
A.From my notes it would say there was more than one occasion what she had mentioned.
Q. Did she mention whether anyone was present when this happened.
A.She did specify that it occurred when her mother wasn't home and was working late.
Q.Did [M] say anything about what might have been said by either her stepfather, [ALB], during these incidents.
A. She said that he told her not to tell anyone.
Q.And in terms of when these incidents occurred or when they stopped, did [M] say anything to that effect.
A.So at that point in time, that was 30 November 2015, she indicated she had said they had stopped several months prior. Or she had indicated that 'He had since stopped up to a few months ago' is what I've written.
With respect to M’s suggestion to Dr Kanters that the alleged abuse had ceased a few months before the appointment, M said in cross examination that she was unable to say when it was before the appointment that the accused last touched her or whether any touching last occurred before or after her 10th birthday, which would have been April 2015.
In cross examination, M said that the accused did not touch her again after her appointment with Dr Kanters.
She confirmed that she did not say anything to Dr Kanters during the appointment.
The aftermath of the appointment with Dr Kanters
After the appointment with Dr Kanters, M and AS returned to the farm. Asked to explain how this came about, M gave the following evidence:
Q. Why did you do that.
A.Mum had asked me what I wanted to do and I guess I was overwhelmed and didn't really know what to do, so I just said to go back to the farm.
Q.When you say that your mum asked you what you wanted to do, were there any alternatives discussed other than you went back to the farm.
A.If we hadn't gone back to the farm we would have stayed at the property that we were at.
Q. Why did you decide not to stay at that property.
A. I'm not sure. I just said to mum that it would be easier if we went back to the farm.
Q. How did you feel about your mum's relationship with [ALB].
A. I didn't like it, I didn't think it was very good.
Q. Did you want the relationship to end.
A. Yes.
Q. So why did you decide to go back to the farm.
A. I'm not sure, I was just overwhelmed, I just didn't really want anything to change.
Q.So when you say you didn't want anything to change, are you able to expand on what you mean by that.
A.Well, mum had been dating [ALB] for a long time at that point, we'd lived there for so long, it was just easier just to go back.
Q. And by this stage was [PeC] still living at the farm.
A. No.
Q. She'd moved out some years earlier.
A. Yeah, she'd moved to Whyalla.
Q.Were there any further incidents of inappropriate touching after you went to the doctor's in Whyalla.
A. No.
M said that they remained living at the Verran property until July 2018 and that in May 2020 she decided to report the matter to police. M said that the accused did not touch her again after the appointment with Dr Kanters.
Other evidence led on the prosecution case
As I have earlier said, the remainder of the evidence comprising the prosecution case was put before me through the tender of the transcripts of evidence given by M’s mother, AS (P3); Detective Wallwork (P4); former police officer Fiona Andrew (P5); Dr Lisa Kanters (P6); and AmB (P7).
Finally, the accused’s interview with police on 25 November 2020 was tendered by consent (P8).
AS
AS gave evidence relevant to matters of chronology, dynamics within the Verran household, the opportunity for the accused to commit the charged offence, the circumstances leading to the consultation with Dr Kanters, and the aftermath of that appointment.
AS said she commenced a relationship with the accused in 2009, having separated from her ex-husband in 2008. She said that, together with her children M and D and her oldest daughter, PeC, she moved into the accused’s Verran property on 25 December 2010. Before they did so, some renovations to the homestead were undertaken which saw the construction of a master bedroom and ensuite such that the incoming children would each have their own room.
AS said that PeC, who originally occupied the room labelled as a ‘spare room’ on P1, moved out of the house sometime in 2011 or 2012 but she could not be more specific.
During her time living at Verran, AS worked as a hairdresser at nearby Cleve, which was about a half hour drive from the farm. She worked Tuesday to Friday and would return home at any time from 6pm to 9pm depending on her work commitments. She occasionally worked weekends for special events.
AS said that the accused worked on the farm from dawn until dusk but that he would look after the children before AS returned home from work and there were a couple of other occasions when the children were looked after by the accused’s daughter-in-law or would spend time at a neighbouring property. Sometimes the children would also attend at AS’ hairdressing salon after school and wait for her to drive them home. AS also did sewing on Wednesdays with a group of people in Cleve.
AS said that as a result of a conversation she had with M in November 2015, she organised an appointment to see Dr Kanters the following morning. She did not tell M what they were doing en route to the appointment. AS said that M told Dr Kanters ‘[the accused] does to me what he does to mummy’ and ‘he touches me’. AS said she was ‘horrified…confused…and…a nervous wreck’ upon hearing her daughter’s disclosure and that she had not seen anything of the sort described by M take place at the Verran property.
In response to the disclosure, Dr Kanters told AS that she had mandatory reporting obligations and had to make a phone call.
After the consultation with Dr Kanters concluded, AS took M to a family friend’s house where her eldest son was living. However, around midnight AS returned to Verran as a result of text messages she had been exchanging with the accused and which caused her to become concerned about his wellbeing. In the text message exchange, AS had confronted the accused with the allegations and the accused had denied them and remarked ‘it’s not worth living’ and ‘that’s it, good bye’. I pause here to observe that it was not suggested by the prosecution that the accused’s conduct constituted an implied admission or revealed a consciousness of guilt and I have not used the evidence in any such way.
When AS arrived at Verran she found the accused in a panicked, nervous and scared state. She said ‘he was a shaking mess’ and ‘vomited’. She said further he was ‘very angry and very loud’ and told AS that she was ‘stupid’.
AS said that notwithstanding the events of that day, she made the decision to return to live at Verran with the children because she was scared and because M told her she wanted to return home. AS was of the view that Dr Kanters would have made the notification she had foreshadowed and that ‘someone would come and help us’. When that did not occur, AS took no further action herself as she was scared. She added that ‘[e]verything we had, everything we owned was at the farm’, although she derived an income from the hair salon at which she worked – which she had in fact purchased using a small loan from the accused.
It appears that AS continued her relationship with the accused until July 2018 when they separated and she left the farm together with M and D. In the interim, in September 2017, AS had been contacted by police but no action was taken with respect to M’s allegations and AS was not told why there had been no prior contact from police.
M reported her allegations to police in May 2020.
In cross examination, AS confirmed that the farm was a very large property comprised of some 8000 acres. She said however that the shearing sheds and the workshop were close to the homestead but the paddocks were not.
AS said that after PeC moved away from the farm, the accused’s daughter, AmB, did not move in but she did stay at the property on occasion. AS initially said she did not recall a period of 9 months or so when AmB stayed on the farm in a caravan with her partner and his brother, but she remembered her visiting the farm from time to time over a ‘short spell of time’.
AS said that a pot of pens and pencils was kept in the lounge room.
In cross examination it was put to AS that her ‘sewing shed’ was not ready to be used until late 2015. AS said the shed was ready for use on the night of the accused’s 50th birthday, which was in June 2015.
With respect to AS’ discussions with the accused post disclosure by M of her allegations, AS said the accused responded with ‘anger, disbelief, outrage’. She agreed that he appeared deeply upset by the allegations.
It was put to AS that during the Dr Kanters’ disclosure, M had said that ‘there was no penetration but that he [the accused] touched her on her chest and between her legs’. AS said she could not recall those exact words being used by M.
AS was then challenged on her evidence of whether the police provided an explanation for the delay between M making her complaint to Dr Kanters and the police contacting AS in September 2017, and whether AS had told the police officer with whom she then spoke that M had ‘changed her story on three or four occasions’. The following exchange then took place:
Q.She had changed her story already a few times in between when she first told you about the allegation and when she spoke to the doctor hadn't she.
A. There were two separate phrases or two separate sentences.
Q.Well, you gave some evidence about when you spoke to the police officer Fiona Andrew in September of 2017. Do you remember that.
A. Sorry. Can you rephrase that please?
Q.Do you recall before that you were asked some questions about when a couple of years after you'd been to the doctor but while you were still living at the farm with [ALB] that police made contact with you.
A. Yes.
Q. I don't know if you remember the name of the particular officer.
A. I do.
Q. But if it was someone called Fiona Andrew.
A. Yes.
Q.Did you tell Fiona Andrew that when you arrived at the doctors and realising what was happening that [M] became angry and changed her story on three or four occasions.
A.She changed her story. She didn't change the story, she changed the phrase that she used.
Q. Did you tell Fiona Andrew that she changed her story on three or four occasions.
A. I can't be certain if they're the words that I used.
Q.But you said before that you were not told why the police had taken a couple of years to be in touch with you. Do you recall that.
A. I know that's what I said, yes.
Q. That's not right is it.
A. Administration error.
Q. They told you there had been an administration error.
A. Yes.
Q.My phrase not theirs but that it might have fallen through the cracks or something like that.
A. Yes.
Q.You said before that the reason you went back to the farm in November 2015 was that one, you were scared; two, [M] said that she wanted to and three, you knew that Dr Kanters was making this mandatory notification phone call.
A. I heard her make that phone call.
Q. You were in the room while she made it.
A. Yep.
Q.So whatever she said in that phone call you must have thought reflected what had just been said by [M], is that right.
A. Yes.
Q.You didn't hear Dr Kanters say anything that you thought was wrong in that phone call.
A. No, nothing.
Q. And so you took some comfort from the fact that phone call was made.
A. Yes.
Q.And yet for almost two years until police made contact with you you didn't take any steps to follow it up.
A. No.
Q.You at least as at September 2017 when you spoke to Fiona Andrew you thought that [M] had made up the allegation didn't you.
A. I didn't disbelieve my daughter, no.
Q.Did you say to Fiona Andrew that you believed the disclosure was fabricated by her, by [M].
A. I didn't use the word 'fabricated'.
Q. Did you use the word 'made up' or 'not true'.
A. Possibly.
Q.And that's the real reason why you went back to live at the farm wasn't it because you believed [ALB] when he denied it and you didn't believe [M].
A.The real reason I went back to the farm was because I believed somebody was going to come.
Q. But yet when that didn't happen for two years you didn't do anything more about it.
A. I tried to keep my children away from him.
Q.And when someone did come you told them that you thought that the allegation was made up. Is that right.
A. Yes.
I interpolate here that to the extent the above exchange suggests that at some point, AS might have thought the allegations were ‘made up’ or ‘not true’, AS’ belief is fundamentally irrelevant and inadmissible. Plainly enough, that evidence could have no bearing on whether I am satisfied beyond reasonable doubt of the elements of the offence, based on M’s account. The only permissible use that can be made of this exchange is when considering the credibility and reliability of AS’ evidence about why she returned to the farm.
In re-examination, this topic was revisited:
Q.You just gave evidence a moment ago that you didn't disbelieve your daughter but you might have told the police officer Fiona Andrew that [M] made up the allegations. Do you remember giving that evidence.
A. I remember the phone call with Fiona, yes.
Q.So why did you tell Officer Andrew that [M] made up the allegations if you didn't disbelieve your daughter.
A. The house was calm at the time. I thought that the threat had passed.
Detective Wallwork
Detective Wallwork gave evidence that in March 2020 police received from a psychologist a mandatory notification relating to M’s allegations. He said no such notification had been received by police in November 2015 because notifications were directed to the Department for Child Protection at that time. Detective Wallwork gave evidence – without objection – that he had been told the delay in police speaking to AS after Dr Kanters’ notification to the Department for Child Protection in November 2015 was due to an ‘administration error’.
Detective Wallwork gave evidence that he obtained a statement from M between 14 and 19 May 2020 and that the accused was subsequently arrested on 25 November 2020. The accused participated in an interview with police during which he denied the allegations.
By way of brief summary, the accused told the police that:
· He strongly denied all of the allegations put to him during the interview, remarking that he treated M and D as his own children.
· AS and her children M and D had lived with him for around seven and a half years.
· AS’ oldest daughter, PeC, had lived at the farm for the first 12 months or couple of years.
· M was four when they began living at the farm.
· His relationship with M was ‘fine’ and he took on a ‘parent role as much as I could’.
· His relationship with AS soured in the last 12 months; but his relationship with M and D remained amicable. In the context of the separation, the accused said of the children: ‘They hugged me when they left and they were in tears cause they were all leaving…’
· AS told the accused from the day she left that she was ‘going to make us a [sic] pay and make my family pay she told that to me and the kids and my lad and everyone else that was here and she’s doing a good job’.
· In the context of the ‘pillow over the face allegation’, M would ‘possibly’ come into the master bedroom from time to time but it was not a ‘regular thing’ and he could not remember being in the bedroom alone with M.
· As to the ‘office’ incident, ‘the kids very like I would just about guarantee they never came to my office…the office was out of bounds to the kids the whole time they were here cause that was mine [sic] farm book work…that I had in here and they weren’t to go in there…which they never did’.
· With respect to the kitchen incident, the accused did not move around the house without clothes on.
· He strongly denied putting a pencil in M’s vagina.
· When asked if AS had confronted him about M’s allegations, the accused said that AS had asked him if he had ever touched M or done anything to her; he told her no and that was ‘end of story’ as AS said she believed him.
Before leaving the interview, I set out one particular passage on the topic of M sitting on his lap that assumed some significance during cross examination of the accused:
QOkay, towards the end of the relationship with, with [AS] and didn’t seem to sour at all?
AYeah it did and in the last 12 months
QYep
AOh with [AS]
QOh no with
AOh no, not with [M] no, no, no not with the kids no. They hugged me when they left and they were in tears cause they were all leaving and
QYep
AMum yeah she wanted to go been working on it for a long period of time
QYeah
ASo I found out as you’d know she got a call the day she left
QYep some of the allegations um so you were sitting on his, um so she was sitting on your lap watching tv in there um and then
AShe never sat on my lap to be honest
QYep
ASo
QShe’s then alleged that you’ve put your hand down the inside of knickers and touched her genital areas and used, she said he’s used his fingers to rub my vagina on the outside but did not insert fingers into my, into her vagina and this went on for about 10 minutes
ANah
QNah
ADeny that strongly as I can get
QEr was there any time when we, where you were sitting on the lounge and, and the arm rest
A[M], [M] both the kids did sit on my lap that I
QYep
AThat’s who you’re talking about [M] and [D]
QYep
AThey did sit, come sit on my lap at time when, whenever they felt like coming up and like normal
QYep
AKids do mate
As will be seen, in his evidence in chief the accused said that he initially thought he was being asked about something happening when AS was sitting on his lap. I will return to this issue when dealing with the cross examination of the accused.
Fiona Andrew
Ms Andrew was previously a senior constable with the South Australia Police. In September 2017, she made telephone contact with AS as a result of a child abuse notification she had received. No further action was taken by police following Ms Andrew’s conversation with AS.
In cross examination, Ms Andrew agreed that during the telephone conversation, AS told her that ‘when [M] had gone to the doctor she had become angry and changed her story on three or four occasions’ and that she believed M’s allegations were fabricated or made up.
AmB
As I have previously mentioned, AmB – the daughter of the accused - gave evidence as part of the defence case at an earlier trial, however the transcript of her evidence was tendered (P7) by the prosecution at the trial before me.
AmB was 29 years old at the time she gave evidence, having been born in December 1992. She grew up on the farm at Verran until her parents separated a few years before she finished high school in 2010.
After completing her high schooling, AmB moved to Adelaide to live and study and in March 2013, she returned to the Eyre Peninsula with her partner and his brother and the three of them stayed in a caravan on the Verran farm where the accused was then living with AS, M and D.
Three months or so later, AmB obtained employment in Port Lincoln and would stay there three days a week when working but otherwise continued residing at the farm. AmB’s partner and her brother continued living at the farm when AmB would stay in Port Lincoln.
In August 2013, AmB obtained an apprenticeship in Port Lincoln and secured accommodation there. She spent weekdays in Port Lincoln but would return to the farm on weekends or her partner, who was still residing at the farm to help the accused during harvest, would visit her in Port Lincoln. Around Christmas 2013, AmB permanently relocated to Port Lincoln but would visit the farm with her partner every four weeks.
During the period in which AmB stayed at the farm with her partner and his brother, they would eat dinner in the main house with the accused, AS, M and D and otherwise spend most of their time in the house. The caravan was essentially only used for sleeping. Prior to taking up part time employment at Port Lincoln, AmB said that she would spend her days at the farm playing with the children; working with AS; and would otherwise be out on the paddocks or in the house.
AmB said that the children would go to bed before the accused and AS and that the accused would go to bed before AS and get up to commence work in the morning before AmB was awake.
AmB said television was watched in the lounge room where there was a three seater sofa and some recliners. There was a table between the sofa and the recliners but AmB did not think there was a ‘pencil or pen pot’ kept on the table. AmB said if she needed a pen or pencil she would obtain one from the home office.
AmB described the relationship between the accused and M as ‘good’, explaining that the accused ‘treated her the same way as he treated me when I was growing [up]. She gave him a cuddle goodnight before bed. [D] would shake his hand’.
AmB never saw anything that gave her concern something untoward might be happening and never saw the accused sexually abuse M.
In cross examination, AmB said that by the time she moved to the farm in 2013, AS’ oldest daughter, PeC, was no longer living there.
After moving to Adelaide following her high schooling, AmB said she continued to visit the farm every month or two until moving back in around March 2013.
AmB said that whilst living in the caravan she would go to bed around 10pm, but it would vary, depending on whether, amongst other things, she had to travel to Port Lincoln the following day for work.
AmB said the accused was not a particularly strict disciplinarian when she was growing up and that she did not see him raise his voice at M or D, but he would ‘put on a stern voice if he wanted something to be done’.
Defence case
As I mentioned earlier, the accused gave evidence in his defence denying the allegations.
At the time of giving evidence, the accused was 58 years old. He grew up on his family’s farm at Verran and attended high school at Cleve, completing year 10. Thereafter the accused left school to work on the farm. The farm was approximately 11,000 acres, and various crops including wheat, barley, lupins, peas and canola were grown across the property.
The accused and his brother, K, took over the running of the farm from their father in around 2008.
The accused has two children, T and AmB with his ex-wife, J. The accused and J were married from 1989 until around 2001.
The accused met AS in 2009. At this time the accused was living by himself, as his children had moved out. AS was working at a hairdressing salon in Cleve.
Towards the end of 2009 the accused and AS decided to live together and the accused commenced renovating the homestead on the farm as there were insufficient bedrooms to accommodate AS’ three children. The renovations took around four to five months and were completed by the time AS and her children moved in around Christmas 2010. The carport was converted into a bedroom with an ensuite and that became the master bedroom for the accused and AS.
When AS and the children moved in, PeC was around 13 years old, M was around four or five years old and D was three or four years old. The accused said that living with all three children was not an ideal scenario but he knew that AS’ children were ‘part of the package’ and he was open to living together, as they had all gotten along well to that point.
Over the course of his relationship with AS, the accused said he attempted to give the children a decent life, similar to that which he had given to his own children and comparable to his own upbringing. The accused maintained in cross examination that he treated AS’ children as best as he could.
AS and the children moved in with the accused on Christmas Day 2010. They lived together thereafter for seven and a half years. The accused had what he perceived to be a normal relationship with AS’ children. He said PeC moved away from the farm at the beginning of 2013 when she was 15 or 16 years old but M and D continued living at the farm until AS moved out.
The accused said that it was unusual for M to be home with D as she played netball and basketball and would stay in Cleve for these purposes. D on the other hand was sometimes home with the accused. The accused did not think there would have been many occasions on which he was home alone with M.
In cross examination, the accused agreed that there would have been times when the children were in his sole care, including weeknights after school from time to time and possibly on some weekends. On these occasions, the accused said he would watch television with the children and talk with them.
I turn now to a few specific topics about which the accused gave evidence and was cross examined.
Sitting on the accused’s lap
The accused said in his evidence in chief that when M and D were young, they would occasionally sit on his knee. He was then asked about his comment to police ‘she never sat on my lap to be honest’, which I have earlier extracted during my summary of the accused’s interview. The accused said that at the time, he thought he was being asked whether AS ever sat on his lap.
In cross examination, the accused agreed that he knew the police were wanting to speak with him about allegations relating to M. He said he thought the question was directed to AS because she had been the subject of the discussion at the start of the interview. The accused denied that he was lying about what he thought the question was directed to or that his original answer was an attempt to distance himself from M’s allegations.
Farming records
The accused gave evidence that he kept chemical stock, paddock, seeding, harvest and shearing records in both a digital and hard copy form from 2010-2015. The accused’s brother, K, assisted with the record keeping from 2010 – 2014. The import of this evidence was that, had M been able to particularise with any detail when she alleges the acts of abuse took place, the accused may have been able to demonstrate that he would have been elsewhere on the property attending to his work commitments. That is to say, the evidence was illustrative of the forensic disadvantage the accused confronts in meeting temporally unparticularised allegations.
The accused also provided a summary of his activities on the farm on a yearly basis which, as I understand it, was designed to illustrate the limited opportunities he would have had to commit the charged acts.
From in or around January to April each year, the accused undertook maintenance on machinery. Some records were kept but they were not comprehensive. Seeding commenced on 15 April and went for approximately eight weeks thereafter, finishing by the second week of June. During the seeding period, the accused said he worked, on average, 5am until midnight, 7 days a week with occasional breaks on Sunday afternoons to play golf.
From June to October the accused undertook general farm maintenance. In cross examination the accused said his farming records did not cover this period, as the maintenance he carried out did not require record keeping. Shearing of the sheep took place at the end of August and the accused would generally work from 6am to 6pm during this period.
Crops were then harvested from the middle of October to the end of December, with the aim of completing harvesting before Christmas each year although this is weather dependent. The accused said he also did some sub-contracting work driving a truck for his cousin. The accused worked between the hours of 5am or 6am until 10pm or 2am during this period, again depending on the weather.
In cross examination, the accused said that the harvesting records would contain details of who delivered harvested crops to the off-site silo, alongside the date, time and a signature. The accused said further that spraying records would contain details of what chemicals were sprayed and where and the date on which spraying took place. Between 2010 and 2014 (when his brother ceased working on the farm), the accused and his brother were both responsible for maintaining the records.
Paddock records contained details of what crops were planted to particular paddocks and certain activities carried out in the paddocks, such as sowing, would also be recorded.
As I understand the accused’s evidence, if an entry was made in the various records to which I have referred in his handwriting, he would infer that he was the person who carried out the relevant activity, such that the records might give an indication of the type of work he was performing on particular days and where. The accused did not suggest that the records documented his movements every day, and obviously enough the nature and extent of activities carried out on the farm would depend on variables with weather.
Daily routine with AS
Outside of busy periods on the farm as discussed above, the accused said that his daily routine between 2010 and 2015, involved getting up with AS between 5am and 6am. They usually sat for half an hour or so and had coffee before they went to work or before AS woke the children.
AS usually attended to getting the children ready for school, because the accused would be at work. The children returned from school around 4pm and AS would return from work between 4pm and 8pm depending on bookings at the salon. If AS was required to work late, the accused would generally be around or within the vicinity of the homestead and if he was not able to be because of work commitments, the children would stay at AS’ work.
Night routine
When the children arrived home from school, they usually watched television after showering but before eating dinner. The accused said that dinner was normally taken as a family around 6-6.30pm.
If AS was working late, the accused would cook dinner. M and D usually went to bed around 7.30pm. They would say goodnight to the accused and give him a hug. The accused said that as time went on, D preferred to shake hands, rather than hug.
The door between the lounge room and the hallway was usually kept open. The door between the lounge room and the master bedroom was always open, unless the accused or AS were getting changed or the accused had gone to bed. As the accused usually went to bed before others, he would shut the sliding door between the master bedroom and the lounge room while AS did needlework or watched television with PeC (during the time she lived at the farm).
When AS went to bed, she would usually leave the door open. There was a nightlight at the end of the passage, between M, D and PeC’s rooms, to allow M and D to see if they needed to go to the toilet. M and D would sleep with their bedroom doors open.
In cross examination, the accused said that he went to bed earlier than AS but acknowledged that there were ‘odd occasions’ when AS would have gone to bed before him.
He further said that he could not recall putting M to bed but there were odd occasions when AS was not home and it was the children’s bedtime, in which case the children would essentially put themselves to bed after saying good night to the accused. He said that he would check on the children if they yelled out for example but ordinarily they would get out of bed and see him in the lounge room if there was an issue.
The accused’s adult children
In around May or June of 2013, AmB, her partner and her partner’s brother moved onto the farm. They lived in a caravan at the front of the house and used the house to shower, eat and watch television for a period of nine months. AmB’s partner assisted the accused on the farm during their stay.
At some point during their time living at the farm, AmB obtained work in Port Lincoln and would stay in Port Lincoln for periods and return to the farm on the weekend. They had moved out by early 2014.
The accused thereafter worked the farm alone for 12 months but the workload was too much for him to manage by himself and in 2016, the accused’s son purchased a nearby property and began working at the accused’s farm.
Deterioration in the accused’s relationship with AS
The accused said that in 2016/2017 his relationship with AS began deteriorating. AS and the children started spending more time away from the farm. The accused said he would not know where they were until he would ring AS and be told they were in Whyalla. AS and the children moved out of the accused’s house in July 2018.
In 2020, AS commenced legal proceedings in relation to what the accused described as ‘property matters’.
Touching in the lounge room and the pencil incident – Particulars (a) and (b)
In his evidence in chief the accused denied committing any of the alleged acts of abuse.
According to M, the accused, who had just taken a shower, asked her to lay down on the bed and place a pillow over her face, which she did. M said she could not remember the accused taking her pants off and to touch her vagina, he ‘put his hands in my waistband or pushed my underwear to the side…’ M said that the accused spat directly onto her vagina although she did not see this as she had the pillow over her face.
It is fair to say, as Mr Culshaw argued, that M’s evidence that the accused touched her vagina by putting his hand inside her waistband or pushing her underwear to the side, is somewhat difficult to reconcile with her evidence that the accused spat directly on her vagina. That is not to say it would have been impossible for the accused to have done so but, plainly enough, some interference with the clothing on her lower body would have been required. M was unable to provide the detail by which this occurred. Of course, M did not see the accused spit on her vagina as she had a pillow over her face; but her evidence was that he did so and how that happened, given what she had said about the mechanism by which the accused touched her vagina, was not explored in the evidence. There is a non sequitur between these components of her account however it is imperative not to overlook that M was purporting to describe events taking place when she was between five and 10 years old (although I again note that in cross examination she said she thought PeC had moved out of the farmhouse before the alleged abuse began) and it would be unrealistic to expect a perfectly linear and unblemished account from her. However, these features of the evidence must be carefully considered.
To this difficulty with M’s evidence must be added the inconsistent statement she made to the police that the accused did not touch her vagina other than in the lounge room and her bedroom. Whilst the master bedroom adjoins the lounge room, M did not suggest in her evidence that, to her mind, they were the same room.
Moving to the incident in the ensuite, M’s evidence was that the accused had just taken a shower when he called her into the bathroom. The accused was naked and asked her to touch his penis ‘until he peed a little bit’. M said that she did what she was told. She could not remember whether the accused held her hand while she was touching his penis. M agreed that she had told police in her statement dated 19 May 2020 that the accused was ‘about to get into the shower’ when this incident happened. When asked why she said this to the police, M remarked ‘That’s just what I remembered at the time’.
Whilst the inconsistency itself is of no real moment in the sense that it does not matter greatly whether the accused was getting in to or out of the shower as both scenarios presented an opportunity to act as alleged, more troubling is M’s acknowledgement that her memory of what happened has actually changed. Having said that, I found M’s candour in acknowledging the inconsistency and the change in her memory to be commendable.
M further agreed that she had told the police that she had ‘touched his penis with my hand but I pulled my hand away and walked out’, whereas her evidence was that she had touched the accused’s penis for a ‘little bit’ and then pulled her hand away. M accepted that there was a difference in these two accounts – which tends to suggest she had meant to convey in her statement that she made only momentary contact with the accused’s penis before pulling her hand away. I acknowledge that this inconsistency relates to the actus reus of this alleged unlawful sexual act and, for that reason, it is not unimportant. However, M did not suggest in her evidence that she maintained contact with the accused’s penis for an extended period of time or that the nature of the contact was qualitatively different. Whilst the inconsistency is not to be ignored, had it stood alone (and plainly enough, it does not), I would not consider it to be of great significance.
However, as with many of the episodes about which M gave evidence, she was unable to contextualise the circumstances in which this incident came about. M was unable to say whether this episode occurred on a weekend or a weekday; what time of the day it was; what month or even what year it was. Such details are of course not indispensable to a finding that M’s evidence of this incident is credible and reliable, but with the absence of evidence concerning the surrounding context more generally, it is difficult to evaluate the plausibility of the scenario described by M.
M's evidence with respect to the last two incidents (the kitchen and office incidents) was also shown to be inconsistent with her witness statements. As to the kitchen incident, M had described in her statement seeing the accused’s penis ‘covered’ in icing; her evidence was that icing was only on the tip of the penis. As to the office incident, M’s evidence was that the accused had called her into the office, which was a detail she had not provided when giving her statement to police.
I do not make much of the ‘office’ inconsistency – it is a minor omission and not one that affects the integrity of M’s account more generally. Again, however, apart from M’s evidence that this incident occurred ‘later at night’, little more was said about the surrounding context other than that M could not remember if her mother was home but she thought D ‘would have been’.
The inconsistency concerning the kitchen incident is, contrastingly, more significant because it relates to the actus reus of the unlawful sexual act.
Insofar as Mr Culshaw sought to make something of the return to the farm as conduct inconsistent with the truth of M’s allegations, I place little weight on that submission in my assessment of M’s credibility or reliability. M was 10 years old at the time of the consultation with Dr Kanters and it is not surprising that she felt overwhelmed and did not ‘want anything to change’.
Complaint
I say something now about the conflict in the complaint evidence given by M, L and Dr Kanters.
M’s evidence was that she told L on Australia Day of 2014 or 2015 that the accused had ‘touched’ her. The conversation occurred by a creek at someone’s farm.
L gave evidence of a conversation with M in January 2015 which she said took place in the inflatable swimming pool in M’s backyard. M told L that the accused ‘used to get into her bed with her and that he used to do it with her older sister’.
The prosecution submitted that M’s disclosure to L was an initial complaint within the meaning of s 34M of the Evidence Act because, on M’s version of the conversation, she told L that the accused had ‘touched her’, which, viewed in the context of her evidence more generally, was referable to the conduct captured by particulars (a), (b) and (d) and hence sufficiently referable to the charge.
It was said further that what M subsequently disclosed to Dr Kanters was an elaboration of the initial complaint.
The defence submitted that M’s disclosure to L did not amount to a complaint of a sexual offence because the report that the accused had ‘touched her’ was not expressly referable to illicit or sexualised touching. However, the defence acknowledged that, even if that was the case, what M said to Dr Kanters would amount to the initial complaint or, at the very least, an elaboration of what must have been the initial complaint made by M to AS which prompted AS to organise the consultation with Dr Kanters.
There are, to my mind, a number of potential answers to both parties’ submissions, however I will proceed on the basis that M’s disclosure to L – as described by M - was the initial complaint and that what she said to Dr Kanters was an elaboration. This is the interpretation of the evidence most favourable to the prosecution. I have directed myself in accordance with s 34M of the Evidence Act as to the permissible and impermissible use of this evidence and that there may be many reasons why M complained when she did and to whom she did.
I accept that the evidence of complaint is capable of demonstrating some degree of consistency of conduct on M’s part, although, as I have noted earlier, what M said to Dr Kanters was, in material respects, inconsistent with her evidence in court.
Conclusion on M’s evidence
I have considered the shortcomings in M’s evidence and the inconsistent statements she made in combination. I have not looked at any of the asserted issues with her evidence in isolation. Equally, where M’s evidence drew support from other evidence – whether led as part of the prosecution case or through the accused – I have factored that into my assessment of her credibility and reliability.
I have also taken into account the significant forensic disadvantage the accused faces when scrutinising the prosecution evidence. As I have remarked, aspects of M’s evidence about when incidents took place or the context in which they took place were somewhat inscrutable given that she was unable to identify a chronology or surrounding circumstances with respect to many of her allegations. With few exceptions, M was unsure where her mother was at the time of the alleged abuse and in relation to the unlawful sexual act said to have taken place in her bedroom, M’s evidence that AS was in bed asleep at the time because she was unwell was inconsistent with the report she made to Dr Kanters that her mother was away from the house working late.
There are aspects of M’s evidence that cause me some disquiet. She has been shown to have been inconsistent in her description of some of the episodes of alleged abuse. Many, but not all, of the inconsistencies concern important features of her account. To her credit however, M was very forthright in acknowledging inconsistencies when they were brought to her attention.
Having had the benefit of seeing M give her evidence via the recording, I accept that she was genuinely endeavouring to tell the truth about memories she has. However, her memory has been shown to be unreliable in various, important, respects.
The accused’s interview and evidence
The accused presented as a matter of fact and straightforward witness, both in his interview with police and in the course of his evidence. With the exception of his response to cross examination relating to the conversation he said he had with AS in late 2017, about which the accused became – to my observation at least – slightly guarded and evasive, the accused appeared to respond to questions directly and succinctly.
The substance of the accused’s evidence was, in the main, logical, intelligible and coherent. He was frank about looking after M and D on occasions. His evidence about some matters of history, including the completion of the renovations before AS and the children moved in and household dynamics generally, was supported by, or at least not inconsistent with, the evidence of AS. He was steadfast in his denials of wrongdoing and there were few topics on which the accused was closely challenged.
One such topic was the comment made by the accused early on in his interview in response to the question: ‘…some of the allegations…so you were sitting on his, um so she was sitting on your lap watching tv in there um and then…’ to which the accused replied ‘she never sat on my lap to be honest’. The accused gave evidence that he understood the question to be directed to whether AS would sit on his lap because, in the lead up to that issue being raised, he had been discussing AS. The accused quickly clarified the position in the interview and acknowledged that M did sit on his lap from time to time. The accused agreed in cross examination that he was told at the start of the interview that the subject matter for discussion was allegations in relation to M. He rejected the suggestion that his answer was the product of panic or that he was trying to distance himself from the allegations.
I reject the suggestion that the accused’s response to the question initially asked of him on this topic was anything other than a misunderstanding of the focus of the question. The comments the accused made immediately before giving the impugned answer indicate that his focus was on AS at that point in the interview. In the context of a conversation occurring in ‘real time’, it is not difficult to see how the accused might have been at cross purposes with the interviewer in relation to this question. In any event, if the accused’s purpose was to obfuscate and distance himself, it makes little sense that he would, almost immediately, clarify his position and confirm that M would sit on his lap. Furthermore, the accused’s position in his sworn evidence was clear: M did sit on his lap from time to time. Accordingly, I do not consider the accused’s initial response to undermine the credibility or reliability of his account.
The second main topic on which the accused was challenged was his evidence that he had a ‘rule’ that there was to be no playfighting in the house, which he relied upon in support of his denial relating to the ‘playfighting’ incident. The accused’s evidence on this topic, particularly in cross examination, was somewhat discursive, but ultimately, the point he endeavoured to make was that there was an expectation that if the children wanted to ‘mess around’ or playfight, they would do so outside. I did not consider the accused’s evidence to be innately incredulous or artificial.
The accused was also challenged about the extent to which the farming records would assist him in plotting his movements in the event that the complainant was able to particularise the alleged abuse with more specificity. The accused accepted that the records would not provide a day by day log of everything he did or where he went, but the substance of his evidence was that they would have served as a useful checkpoint in the event that M was able to provide more detail about matters of timing and the like. I accept the accused’s evidence that the records would have been a useful source of information that he could use in the conduct of his defence had M been able to particularise her allegations with greater temporal precision. However, that is to say little more than that the accused has confronted a significant forensic disadvantage in the conduct of his defence which, as I have said, I have paid close attention to when scrutinising the prosecution evidence.
The conversation between AS and the accused
I say something now about the evidence given by AS and the accused concerning the conversation that occurred after the consultation with Dr Kanters.
It will be recalled that AS’ evidence was that she communicated with the accused via text messages after the consultation and, as a result of concerning messages the accused sent to her, AS returned to Verran. She discovered the accused in a very distressed condition. She confronted him with M’s allegations (the detail in which she did so was not the subject of evidence) and the accused denied the allegations.
The accused’s evidence was that in late 2017, he had a ‘minor’ conversation with AS after she returned from Whyalla. AS asked if he had ‘done anything to [M]’ to which the accused replied ‘What do you think’. AS said ‘yeah I thought so’. The accused said AS did not provide any detail and he did not ask her what she meant. He did ‘not really’ ask AS what she meant or why she was asking him such a question. The accused subsequently clarified that AS had said ‘had I ever touched [M] and I said what do you think’.
The accused denied that he had a conversation with AS in November 2015 and his evidence does not suggest that the 2017 conversation he recounted occurred in the circumstances described by AS or that he was particularly distressed during their discussion.
Having not seen AS give evidence, it is difficult for me to make an assessment of the reliability and credibility of her account of the conversation which conflicts with the accused’s evidence of the conversation both as to timing and some matters of substance. On either version of events, however, the accused denied the allegations. Having said that, the timing and nature of the conversation is not altogether inconsequential because, on AS’ evidence, one of the reasons she returned to Verran was that she was scared, in the context of this confrontation and the accused’s reaction to it which included making utterances indicative of suicidal ideation. That is, on her account, the timing and nature of the conversation might help to explain why the unusual step of returning to the accused’s property was taken shortly after M’s consultation with Dr Kanters.
I found the accused’s evidence about his response to AS asking him whether he had touched M curious. One might have thought that an inquiry of this nature from a long-term partner in relation to a step-daughter, might prompt a considerably more animated and concerned response from the accused. It struck me as somewhat disingenuous that, having been asked about such a serious and sensitive issue, the accused neither sought nor was provided with any further details. However, the nature of the accused’s response did seem to me to be consistent with his generally direct and matter of fact disposition. I note additionally that, even on AS’ evidence, after the accused denied any wrongdoing, there do not appear to have been any further discussions about the allegations over the following two and a half years before AS and the accused separated.
Bearing in mind that there is no suggestion that the accused made anything resembling an admission during the conversation – whether it occurred in November 2015 or late 2017 – and that, as I have already said, I do not consider there to be any real force in the contention that M’s return to the property was incompatible with her allegations, I do not consider it is necessary to resolve the difference in the evidence of AS and the accused on this point. On the assumption that AS’ version of the conversation was accepted, that finding would not have affected my verdict. Similarly, acceptance of the accused’s version would make no difference to my verdict.
Bringing these matters together, I formed a generally favourable impression of the accused as a witness and the substance of his evidence. Save for his evidence about the conversation with AS, the accused’s evidence was sensible and consistent.
Conclusion
The resolution of the critical forensic issue in this case is not without difficulty. I am faced with two conflicting versions of events that are irreconcilable.
There were portions of M’s evidence that appealed to me as intrinsically credible and reliable; however, there were many aspects of her evidence that were shown to be inconsistent with previous statements she has given in respect of key matters. Whilst some of the inconsistencies brought out during cross examination may be thought to be somewhat peripheral or less important, there were others that surrounded M’s narrative of the unlawful sexual acts themselves which cannot be dismissed as inconsequential.
M’s evidence more generally was overlayed by her inability to shed any real light on when the unlawful sexual acts occurred and in what broader circumstances. That is not to be critical of M; she was purporting to recall traumatic events that she alleges occurred when she was between five and 10 and it is, in a sense, unremarkable that what might stick in her mind are the sexual acts themselves and not when they happened; where others were or what the relevant contextual circumstances were.
As I have mentioned, these features of M’s evidence must be evaluated in combination and mindful of the significant forensic disadvantage that the accused confronts in meeting these allegations.
The accused’s evidence and his interview with police were, on the other hand, generally consistent internally and aspects of his account were supported by the evidence of AS and AmB. With the exception of the accused’s evidence about his conversation with AS concerning the allegations, I do not consider his account was undermined in cross examination in any material way and, as I have previously remarked, the seemingly abrupt and isolated nature of the conversation he claimed to have had with AS was thematically at least reflected in AS’ evidence that there was one conversation that occurred after the consultation with Dr Kanters, following which AS, M and D continued to live at Verran for a further two and a half years.
The question of the accused’s guilt or innocence of the charge cannot be determined by reference to a mere preference for the evidence of the complainant to that of the accused; nor can the dispositive issue be resolved by the mere making of a choice between the two conflicting bodies of evidence before me. Of course, if after full and careful consideration of the evidence, I am unsure as to where the truth lies, my verdict must be not guilty. A verdict of guilty can only be returned if I can reject the accused’s denials in his record of interview and his evidence as not reasonably possibly true and I am satisfied based on the complainant’s evidence of the elements of the offence, beyond reasonable doubt.
Having reviewed all of the evidence and the arguments of the parties, and applied the various legal directions I have earlier set out, I find myself unable to reject the accused’s denials as not reasonably possibly true. The accused’s evidence was ostensibly credible and reliable in key respects and there was nothing about his presentation as a witness that enables me to dismiss his account.
Accordingly, the prosecution has failed to prove that the accused committed two or more unlawful sexual acts against M during the course of their relationship as step-father / step-daughter.
I find the accused not guilty.
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