R v Amb
[2023] SADC 173
•12 December 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v AMB
Criminal Trial by Judge Alone
[2023] SADC 173
Reasons for the Verdict of her Honour Judge Schammer
12 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused, AMB, is charged with one count of Sexual Abuse of a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935. The complainant is the accused’s biological daughter, CB.
The alleged offending is said to have occurred at Salisbury East between 1 August 2018 and 1 February 2019 when CB was aged 12 or 13.
CB described one specific occasion of offending which occurred at night, when her mother was working night shift. CB woke from a nightmare and as she walked past the accused to go to sleep in her sister’s bedroom, he stopped her and ultimately told her to sleep in his bed instead. CB alleges that while she lay next to the accused in his bed, he touched her on her breasts, over and above her clothing, on her inner right thigh and on her pubic mound, both above and below her clothing. CB left the bed when she heard her mother arrive home from work.
CB alleges that for two to three months thereafter, the accused regularly grabbed and squeezed her on her breasts, over the top of her clothing and on one occasion, over the top of her bra. This is alleged to have occurred in the kitchen and lounge room at the family home, when there was no one else present.
Verdict:
The accused is guilty of the charged count.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 50(4)(b), 50(12); Juries Act 1927 (SA) s 7(1); Child Safety (Prohibited Persons) Act 2016 (SA) ss 5, 38; Disability Inclusion Act 2018 (SA) ss 18A, 18U; Evidence Act 1929 (SA) ss 13A(12), 13BA(3), 13BA(6); Summary Offences Act 1953 (SA) s 74EB, referred to.
JJP v R [2021] SASCA 53; R v Corrigan (1998) 74 SASR 545, considered.
R v AMB
[2023] SADC 173[Criminal]
Introduction
The accused, AMB, is charged on Revised Information dated 6 September 2023 with one count of Sexual Abuse of a Child contrary to s 50(1) Criminal Law Consolidation Act 1935 (the Act).[1] The complainant is his daughter, CB.
[1] Filed to replace the Information dated 6 February 2023 which referred to the offence by reference to its previous descriptor, Maintaining an Unlawful Sexual Relationship with a Child, but in all other relevant respects being the same.
The alleged offending is said to have occurred at Salisbury East between 1 August 2018 and 1 February 2019 (the relevant period) when CB was aged 12 or 13.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7(1) of the Juries Act 1927.
The Charge
Statement of Charges
Count 1:
Offence Details:
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
AMB between the 1st day of August 2018 and the 1st day of February 2019 at Salisbury East, maintained an unlawful sexual relationship with CB, 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 breasts on more than one occasion;
(b) touching the complainant’s thigh on one occasion; and
(c) touching the complainant’s genital area on one occasion.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a “prescribed offence” within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Elements of the Charged Offence
The prosecution must prove the following elements of the offence beyond reasonable doubt:
1.That the accused knowingly maintained a relationship with CB.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with CB.
3.That at the time the accused engaged in two or more unlawful sexual acts with CB, CB was a child.
4.That at the time the accused engaged in two or more unlawful sexual acts with CB, the accused was an adult.
An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[2]
[2] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[3]
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences; or
(c)a substantially similar offence against a previous enactment.
[3] Ibid.
Pursuant to s 50(4)(b) of the Act, it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts.
The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts unlawful sexual acts.[4] In this case, those offences are, in each instance, the offence of indecent assault.[5]
[4] JJP v R [2021] SASCA 53 per Doyle J.
[5] Noting that as the accused is CB’s father, the prosecution could have relied on the aggravated version of this offence.
The elements of the offence of indecent assault are:
1.That the accused intentionally and unlawfully applied force to CB.
2.The force was accompanied by circumstances of indecency.
It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
CB’s date of birth is 20 December 2005, such that I am satisfied that she was aged between 12 and 13 and therefore a child during the relevant period.[6]
[6] Exhibit P6.
AMB is CB’s father and therefore knowingly maintained a relationship with her during the relevant period. It was an agreed fact that AMB’s date of birth is 1 February 1981, meaning that he was aged between 37 and 38 and therefore an adult at that time.
The sole issue in dispute is whether any of the alleged unlawful sexual acts occurred.
Summary of Alleged Offending
CB alleges that on an occasion between August and December 2018, when her mother was working night shift and she was unable to sleep because of a nightmare, the accused asked her to sleep next to him in his bed. She alleges that when she was lying next to him in his bed, the accused sexually abused her by touching her on her breasts, both under and over her clothing, touching her on her pubic mound both under and over her clothing and touching her on her right inner thigh. This incident was referred to at trial as ‘the main thing’.
CB also alleges that thereafter, for a period of about two to three months, the accused grabbed her on the breasts, over her clothing, on numerous occasions and over her bra but under her clothing, on one occasion. CB claims this occurred in both the kitchen and lounge room of the family home, while others were not present.
Legal Directions
General
AMB is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The prosecution must prove the elements of the offence beyond reasonable doubt. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty.
CB’s evidence-in-chief was admitted in the form of two audio visual recordings pursuant to s 13BA(3) Evidence Act 1929 (EA). The first recording is of a prescribed interview conducted on 29 June 2022 and the second recording is of a prescribed interview conducted some three weeks later on 19 July 2022. CB was aged 16 at the time of each interview. There is no dispute that the recordings were made in accordance with s 74EB of the Summary Offences Act 1953 (SOA).
I must not draw any inference adverse to the accused because of this, nor allow the admission of the evidence in that form to influence the weight given to that evidence.[7]
[7] Section 13BA(6) of the EA.
Permission was granted for the accused to cross-examine CB, on various specific topics and to be re-examined by the prosecutor on one specific topic.
CB gave her evidence via audio-visual link from outside of the court room. She was accompanied by a court companion; her evidence was recorded and the court was closed during her evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[8]
[8] Section 13A(12) of the EA.
Similarly, EB’s evidence-in-chief was admitted in the form of an audio-visual recording of a prescribed interview conducted on 16 November 2022. EB was aged 14 at the time of that interview. There is no dispute that the recording was made in accordance with s 74EB of the SOA. I must not draw any inference adverse to the accused because of this, nor allow the admission of the evidence in that form to influence the weight given to that evidence.[9]
[9] Section 13BA(6) of the EA.
When BB gave her evidence, the court was closed and there was a one-way screen between her and the accused. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.
Neither the complainant’s older brother, DB, nor her younger brother, TB, were called to give evidence. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
The accused elected not to give evidence. As a matter of law there can be no criticism of the accused for doing that. The accused has a right to decline to give evidence and I must not draw any inference adverse to him or the case he has put forward because he has exercised that right. The accused’s silence in this Court does not constitute an admission against him and it cannot be used to fill any gaps in the evidence tendered by the prosecution. His silence cannot be used in assessing whether the prosecution has proven the elements of the offence beyond reasonable doubt.
I must assess each witness as to their truthfulness and reliability and I must determine whether I can rely upon the evidence a witness gives. I can reject or accept all or part of a witness’s evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice or fear and must not be influenced by public opinion in relation to this matter.
Initial Complaint
It was an Agreed Fact that the first person CB told about the alleged offending was a classmate, OD and that this conversation occurred between August and December 2018.[10]
[10] Exhibit P14 at [2].
I heard this evidence to inform me as to how the allegations first came to light. It gives me a more complete picture of CB’s account. The evidence was also led as evidence of the degree of consistency of conduct of CB.
The evidence was not admitted as evidence of the truth of the allegations and cannot be used as some form of independent evidence to prove what happened, as only CB’s evidence is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is a matter for me as the trier of fact to determine the significance, if any, of this evidence in the circumstances of this case.
Forensic Disadvantage
The alleged offending is said to have occurred between August 2018 and December 2018 but was first reported to police in June 2022.
As such, there was a not insignificant period of delay between the alleged offending and the accused’s arrest, and the trial.
BB gave evidence that had she made a request for confirmation of her work hours during the relevant period at a time proximate thereto, they could have been provided. When asked if those records may still have been capable of production if requested now, she stated that her role at the organisation was now very different and was not pressed further on that issue.[11]
[11] T 83.34-84.19.
However, I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of the alleged unlawful sexual acts, to defend the allegations other than by way of a bare denial and to fully test CB’s reliability and credibility by reference to the surrounding circumstances of the alleged unlawful acts.
I have taken these forensic disadvantages into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offence as charged beyond reasonable doubt.
Motive to Lie
During cross-examination, counsel for the accused questioned CB as to the nature of her relationship with the accused in the period immediately prior to his arrest. She also questioned CB on aspects of her relationship with her boyfriend, AG, who has also claimed to have been sexually abused by his father.
CB was never asked specifically if she had lied about the alleged offending either because she was upset with the accused because of various arguments or disagreements between them in the months leading up to his arrest. Similarly, CB was not asked specifically If she had lied about the alleged offending to strengthen her relationship with AG by way of bonding over a shared experience of alleged sexual abuse by their fathers.
Ultimately, counsel for the accused expressly disavowed any reliance on this evidence to support an argument that CB had a motive to lie about the offending.
Nevertheless, I remind myself that there is no onus on the accused to prove that CB had a reason to make false allegations against him. If I reject there being any specific motive for CB to have lied about the alleged offending, that does not the mean she is telling the truth. There may be many reasons why a witness may lie. In those circumstances, I must not treat CB’s evidence as being any more credible or believable just because there is no evidence to provide a reason for why she may be lying. I must carefully consider all of the evidence to determine whether I am satisfied both as to CB’s credibility and reliability.
Discreditable Conduct
The prosecution led evidence of discreditable conduct.
CB gave evidence that during the main thing, the accused asked her if she wanted to see his penis. This evidence was led only as to context and to enable the finder of fact to have a thorough understanding of the circumstances of the main thing (the permissible purpose). It was not led as evidence of an unlawful sexual act for the purposes of proving the fourth element of the offence.
If I accept this evidence, I can use it for the permissible purpose as specified. However, I must not use that evidence to reason that the accused is more likely to have committed the offence because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit the alleged offence.
Both CB and EB gave evidence about the accused slapping them (and others) on the bottom from time to time. The prosecution did not seek to rely on this evidence for any propensity purpose and I have not used the evidence in such a way.
The prosecution initially contended that I could use the evidence by way of improbability/similarity of account reasoning. I disagree. The evidence could only be used in that way if I was satisfied that both what CB described and what EB described by way of that butt slapping was indecent conduct. I am not so satisfied.
The prosecution further contended that I could use this evidence for another permissible purpose, that is, to demonstrate that it tended to normalise indecent contact between the accused and CB and therefore desensitised her to that conduct.
The difficulty with this argument is that there was no evidence that the accused ever slapped CB on the butt prior to the main thing. Further, CB’s evidence was that although the grabbing of the boobs stopped after two to three months, the butt slapping had continued. I have not used the evidence for this purpose.
In my view, CB’s evidence as to butt slapping is only relevant and admissible as to context. EB’s evidence as to butt slapping is only relevant and admissible insofar as it corroborates CB’s evidence that the accused would slap his daughters on the bottom from time to time. In other words, EB’s evidence on this topic is relevant only to my assessment of CB’s credibility and reliability. I have only used that evidence for these permissible purposes.
Insofar as any of this evidence is, in fact, evidence of discreditable conduct, I must not use that evidence to reason that the accused is more likely to have committed the offence because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit the alleged offence.
During the trial, evidence was led about the accused having behave aggressively or violently in the past. For example, that he slammed EB’s head into the table when she was younger for refusing to eat her dinner, that he punched a hole (or holes) in the wall out of frustration, that he would have heated altercations with DB, which caused BB to stand between them.
This evidence was relevant and admissible to explain why it was that CB got into the accused’s bed when he asked her and why she stayed in the bed until her mother came home. It was also led by way of possible explanation as to why there was a delay in the alleged offending being reported to the authorities.
If I accept this evidence, I can use it for these purposes. However, I must not reason that the accused is more likely to have committed the offence because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit the alleged offence.
To reason in this way would deprive the accused of the presumption of innocence.
Background/Undisputed Evidence
At the time of the alleged offending, CB, her parents and siblings lived at a house in Salisbury East (the home).
CB has an older brother, DB (DOB:25/5/2004), who is autistic, a younger sister, EB (DOB:25/6/2008) and a younger brother, TB (24/7/2014). At the time of the alleged offending, DB was aged 14, EB was aged 10 and TB was aged about 4.
CB drew a plan of the home, which she marked to demonstrate who occupied the bedrooms and where certain furniture was positioned during the relevant period.[12] BB gave evidence agreeing with both the layout and markings on that plan. That evidence was not challenged.
[12] Exhibits P5 and P7.
There was no dispute and I find that during the relevant period, CB had her own bedroom, positioned off the hallway and that both DB’s bedroom and that of her parents were also located off that hallway. I also find that during the relevant period, EB and TB shared a bedroom located at the other end of the house, adjacent to the main lounge room.
BB gave evidence, which was not challenged, that the accused spent most nights gaming at a computer located on a desk in that lounge room, just to the right of the door to EB and TB’s bedroom.
During the relevant period, BB worked night shift. That shift would start around 8:00pm and finish any time after 12:00am, but usually at around 5:00am. This meant that during the relevant period, BB was away from the home at night, and may not have arrived home until, at the earliest, around 12:30am, and at the latest by 7:00am, meaning that there was the opportunity for the ‘main thing’ to have occurred in the circumstances as alleged by CB.
The Evidence
Complainant’s Evidence
Preliminary
The first prescribed interview was conducted between CB and Officer Richard Miles on 29 June 2022.[13] The interview proceeded over a period of almost two hours, during which Officer Miles questioned CB in great detail as to the circumstances of the alleged offending, and often returned to a topic to seek further clarification. Despite its length and the level of detail provided in that interview, the account given by CB remained consistent throughout.
[13] Exhibit P1, with transcript reproduced at MFI P2 (First CB interview).
The second prescribed interview was undertaken some three weeks later on 19 July 2022, again with Officer Miles.[14] On that occasion CB returned to provide some further information as to a comment she recalled the accused having made during the ‘main thing’ but in addition, Officer Miles obtained further clarification from her as to the circumstances of all of the offending. Again, her account remained consistent throughout.
Background/Preceding Event
[14] Exhibit P3, with transcript reproduced at MFI P4 (Second CB interview).
CB gave evidence that when she was aged 12 and in Year 7 at school, there was a period over a few weeks when she was suffering recurring nightmares from having watched YouTube videos of the movie “It”.[15]
[15] First CB interview line 80; lines 571-596.
At that time her mum was working nightshifts for ‘Crew Services’.[16]
[16] First CB interview lines 78-80; lines 553-569.
She said that during this period, she used to go and sleep in her sister, EB’s bed. EB was sharing a bedroom with her young brother, TB, at that time.
CB told Officer Miles said that on one occasion she got up to go to sleep in EB’s room and as she walked past her dad’s bedroom, he asked her where she was going. She told him that she was going to sleep in EB’s room. In response, he said, no, just come and sleep in the bed with me. This was the first time the accused had ever asked CB to sleep in his bed.[17]
[17] First CB interview lines 92-102; line 639.
CB explained that she said okay as she did not really think she had an option. She recalled getting into the bed on the right-hand side, if you were facing the bed and sleeping on her left side. The accused did not really do anything, he was just very cuddly.[18]She said, “and then I woke, like I fell asleep and I woke in my bed”.[19]
[18] First CB interview line 104.
[19] First CB interview line 106.
CB was not cross-examined in any detail as to what she meant by this comment. She denied a proposition that there was ever a time that she was in her dad’s bedroom when she was asleep or half asleep.[20] She was not asked whether, by this comment, she meant that she woke up and then went back to her room and then fell asleep and woke in her bed, being a possible interpretation of that statement.
The Main Thing
[20] T 35.18-22.
CB told Officer Miles that one or two nights later, a similar thing occurred, that is, she was having nightmares and got up to go to sleep in her sister’s bedroom. She remembered that she was wearing dark blue pyjama shorts and a longer shirt.[21]
[21] First CB interview lines 669-680; lines 108-112.
CB said that on this occasion her father was sitting at his desk which was just outside EB’s bedroom door, in the main lounge room.[22]
[22] Exhibit P5 – CB drew a plan of the family home and marked the various bedrooms and the location of her father’s desk.
She said that as she tried to walk past her dad’s desk, he saw her and asked her where she was going. She said that she was going to sleep in the bed with EB but he said no and told her to go back to bed.[23]
[23] First CB interview lines 112-114.
She said that she spent some time standing behind the couch trying to get into EB’s bedroom without him noticing.[24] She said he saw her and told her to go back to bed again and then the third time he saw her, he had said just to go and sleep in the bed with him again.[25]
[24] First CB interview lines 856; 884 and 886.
[25] First CB interview line 116.
CB recalled having a pink blanket with her and said that she had had that blanket with her the earlier night when she had spent some time in his bed.
CB told Officer Miles that she got into the right side of the bed and lay on her left side, facing away from her father. She said that he came closer to her and was cuddling her again.[26]
[26] First CB interview lines 133-140.
CB then explained what happened while she was lying in the bed next to the accused.
She said that the accused put his hand up her shirt. She was wearing a bra at the time. He put his hand under her bra and said “why are you wearing a bra you should take that off” but she did not. She said she could not move and felt frozen. She could not say anything.[27]
[27] First CB interview at line 140.
CB told Officer Miles the accused then asked her if it was okay if he could touch her boobs. She said that she shook her head as if to say no but that he continued to do it anyway.[28]
[28] First CB interview line 140.
When giving her second prescribed interview, CB explained to Officer Miles that she had remembered that when her father was first touching her boobs, he had said to her “you have the perfect sized boobs” but that she had not said anything in return.[29]
[29] Second CB interview lines 104-112.
Officer Miles asked, “was it one hand or two hands” and CB said that it started off with only one hand but that it was two hands at one point.[30]
[30] First CB interview lines 153-154.
She described her father rubbing her nipple and squeezing her boobs.
CB was asked what the accused was doing when he had asked her why she was wearing a bra and she said that he was grabbing her boob with both hands. When asked which boob, she said first it was on the left side and then he would move to the right.[31]
[31] First CB interview lines 185-186.
CB said that during this, the accused kept asking her if it was okay if he touched her boob. She said again, she shook her head as if to say no but he did it anyway.[32]
[32] First CB interview lines 198-210.
Later, CB said that her father asked if it was okay if he touched her boobs maybe two times and on each occasion she had shook her head as if to say no.[33]
[33] First CB interview lines 949-964.
CB was asked, when the accused first started squeezing her boob, was his hand under her bra or on top of her bra. She said that at the very start it was over and then he went under the bra.[34]
[34] First CB interview at line 218.
When asked how long the accused was touching her boob, she said that she honestly did not know but that the whole thing went from maybe 12 at night to 3:00am.[35]
[35] First CB interview lines 230-232.
When asked to explain how she knew what the time was, CB explained that when she had got up to go to EB’s room, she had gone to the toilet and walked past her brother’s room where she had seen a digital clock displaying the time as 11:55pm.[36]
[36] First CB interview lines 914-924.
Her estimate as to the incident ending at 3:00am, related to when she believed her mother had returned home from work.
Officer Miles asked CB what had happened after the accused had been touching her boobs. She said that the next thing that had happened was that he put his hand down her pants. At first, it was on the top of her underwear[37] but he then put his hand underneath her underwear, over the area of the pubic mound.[38] She said he used only one hand and she thought it was his right hand.[39]
[37] First CB interview lines 282-284.
[38] First CB interview lines 288-304.
[39] First CB interview lines 235-244.
As to why she recalled that it was his right hand, CB said:[40]
Cos I think he is, are his left one was up my shirt at the time cos I think he had his arm underneath me then as well and like coming around me. Cos I remember being, at one point like, like genuinely couldn’t move, I couldn’t do anything and I remember him having one hand like wrapped all the way around me.
[40] First CB interview line 246.
She explained that the other hand was squeezing her boob and rubbing her nipple.[41]
[41] First CB interview line 248.
She said he was rubbing her pubic mound in a circular motion, initially on the top of her underwear and then under her underwear. She said that when the accused’s hand was under her knickers, he asked her if it was okay if he touched her vagina and that again, she shook her head as if to say no.[42]
[42] First CB interview lines 966-984.
CB said that at no time did her father put his fingers inside her. She recalled, somewhat embarrassingly, that when he went under her underwear, he had said to her that there was too much hair and that she should start shaving.[43]
[43] First CB interview lines 306 and 328-330.
CB said he did not have his hand on this area for very long and that he then moved his hand to her inner right thigh and then up towards her vagina area.[44]
[44] First CB interview lines 332-342.
Officer Miles asked CB if the accused moved his hand anywhere else and she said, “no I don’t remember”. She then interrupted and said that there was one bit that she did remember and she said:
I think it was during, like whilst he had his hand on my thigh he asked “if I wanted to see his penis”.
She said that on this occasion she said the word no and it was only time she could talk. She had said no and had also shook her head.[45]
[45] First CB interview lines 348-352.
She explained that the whole time the accused had his hand on her inner thigh, he had his other hand on one of her boobs just squeezing it.
CB said that while they were lying in the bed, she tried to get up and leave twice but the accused had said no.[46] The first time she tried to get up was just after he had asked if she wanted to see his penis. She said that he kept one hand on her boob and one on her inner thigh and she felt as if she really could not move and was scared he would do something if she did.[47]
[46] First CB interview lines 362-368.
[47] First CB interview lines 373-376; 388; 396.
The second time she had tried to move, she had moved her right shoulder and right leg over more, towards the side of the bed and recalled trying to get off the bed. She remembered that he had said no and had moved closer to her. She explained that she just felt trapped and wanted her mum to come home so she could leave.[48]
[48] First CB interview lines 405-422; 428; 430-432.
CB said that about five minutes later, her father stopped moving and she thought he was either half asleep or asleep. She said she just kept lying there with her eyes open, waiting for her mum to come home.[49]
[49] First CB interview lines 442-452.
About 20 to 30 minutes after her father fell asleep, she heard the key in the door as her mother arrived home.
As she got up to get out of the bed, her father asked her where she was going but that she did not say anything in return and he did not say anything else to her. She just got up and started walking out of the room.[50]
[50] First CB interview lines 454-458; 465-474.
In cross-examination, CB was asked how it was that her father had tried not to get her to leave at that time. She explained that he had said “no” and had proceeded to move closer towards her.[51]
[51] T 37.10.
CB said that as she was walking out of the bedroom, her mum started to walk in to the room and she remembered that her mother asked her if she was wearing any pants.
She explained that she was walking with her blanket wrapped around her as if it was a towel, her shirt was long and her shorts were quite short.
She said that she showed her mother that she was wearing pants and said “yeah”.[52] Her mother had said okay and then that was it. She went back to her room, fell asleep and went to school the next morning.[53]
[52] First CB interview lines 458-462; 475-518.
[53] First CB interview lines 520-532.
In cross-examination, CB was asked about the state of the lighting during the course of this conversation.
She said that the light was not on in the bedroom at that time but she thought that it was on in the hallway.[54]She then added that she could recall seeing the light behind her mother when she was speaking to her. When asked as to whether or not she was guessing, CB said that she did have a memory of that and that her memory had improved on some things since the incident. She said:[55]
It’s improved over time since I – after “the main thing” had happened, I – like, my brain kind of shut it off and after a while, everything started coming back to me and I started to remember everything.
Complaint
[54] T 38.25-37.
[55] T 39.6-9.
CB was asked by Officer Miles if she could recall precisely when this incident had occurred. She said that she was in Year 7 and that it occurred after August but before December.
She was quite confident about this time frame as she recalled that it was after having broken up with her then boyfriend, AG. However, it was while she was still in Year 7, because she remembered that at the same time, her friend, OD, was going through a similar situation. She explained that the school was dealing with it and that she was there through that whole thing with her.
She said, “I remember hinting to her [OD] that you know I was going through a very similar thing, but she didn’t really sort of catch and I just kind of left it”.[56]
[56] First CB interview line 690.
When asked again about experiencing nightmares, CB explained that she did experience nightmares over this period, almost every night for about two to three weeks and that she would go and sleep in EB’s bed almost every night. However, she said “but after that incident happened I didn’t do it again – I mean go and sleep in her room again”.[57]
[57] First CB interview line 616.
During cross-examination, it was put to CB that her version of certain aspects of her account of ‘the main thing’, as outlined to Officer Miles, differed from what she had told Officer Ross, in a statement made to her on the same day, but shortly prior to her speaking for the first time to Officer Miles.
CB was shown a video recording of certain portions of the interview conducted between her and Officer Ramona Ross on 29 June 2022.[58] Specifically, she was shown that portion when Officer Ross asked her whether her father had ever put his hand between her legs.
[58] MFI P13.
CB agreed that she had told Officer Ross that the accused had put his hand between her legs but that she did not remember what had happened when he did that.[59]
[59] T 52.12-30.
She agreed that what she told Officer Ross about that, differed from what she had told Officer Miles, namely she had given Officer Miles more detail about which hand was on her thigh and those sorts of things. She said:[60]
AYes. So, because I was thinking more about the events that had happened I was able to remember exactly what had happened as I was talking about what was happening beforehand leading up to him putting his hand on my inner thigh
QSo is your evidence that the difference between what we saw at the police station and what you said to Detective Miles is that your memory has improved?
AYes.
[60] T 53.1-9.
In re-examination, the following exchange occurred:[61]
Q.I have just got one question for you. You just said to Ms Abbey that when you were interviewed by Detective Miles by Richard that you were able to think more about the events and go into more detail about them.
A.Yeah. So since I was starting from the beginning of like what I remember and what had happened, as I had to talk about like all of the events and everything that had happened to me and that my dad had done to me, I was able to, like, remember exactly what happened, especially with, like, when she was saying that he put his hand in between my legs I was able to remember then.
Q.So I think you have sort of answered this anyway. In your interview with Richard, did you go into more detail about the events or less detail than you did at the Elizabeth Police Station.
A.A lot more detail.
[61] T 54.12-27.
CB denied that she had made up the ‘main thing’.[62]
[62] T 49.32-33.
When it was suggested to her that what she had described was in fact a nightmare, rather than a real event, she said that it was definitely real and that there was no way it was a nightmare.[63]
The Accused’s Temper/Disposition
[63] T 53.10-15.
Officer Miles asked CB why it was that she felt that she had no option other than to go and sleep in the bed with her father when he asked her to.
She explained that she was suffering from high anxiety and didn’t like getting into trouble. She thought that if she had said no that she would get into trouble. She explained that she was scared of her father, that he yelled a lot and that he used to punch holes in the walls.
She said that he would threaten to throw her brother’s head out of the window and threatened to kick her out just for not doing the dishwasher.[64]
[64] First CB interview lines 642-654.
CB recalled a specific occasion when she was about five and EB was about three when her father had slammed EB’s head into the table because she did not like the tuna casserole that her mum had cooked. She said “mum kicked him out after this for the night”.[65] In cross-examination, CB denied ever having discussed that incident with EB.[66]
[65] First CB interview lines 656-660; T 40.20-21.
[66] T 40.15-26.
In cross-examination, CB gave evidence that other than the occasion when the accused had slammed EB’s head into the table, he was never physically violent to anyone in the house.[67]
[67] T 42.16-19.
She was asked if there was one occasion when her father had left a mark on the wall when he got angry. She said:[68]
It was definitely multiple occasions where there were more than just marks as well.
[68] T 41.31-32.
She explained that her father would make holes in the walls and she said that she remembered him doing that on 10 to 15 times on different occasions.[69]
[69] T 42.3-4.
She disagreed with the proposition that there was only one occasion when her father punched a wall and said there was definitely more than one occasion.[70]
Other Alleged Offending
[70] T 42.12-15.
At the commencement of the first prescribed interview, CB told Officer Miles that in addition to the ‘main thing’ that had happened, that there were ‘little things’ that had happened for about two to three months thereafter.[71]
[71] First CB interview lines 70-72.
When asked about these other things, later in that interview, CB said that these things had happened on different days but some on the same day and spread out over a period of about two to three months after the main thing.[72]
[72] First CB interview lines 988, 990 and 1004.
As to what these other things were, she said that her father would walk up to her and grab her boobs or slap her on her butt or do both of them.[73]
[73] First CB interview line 996.
CB said that he did that a lot of times, that he would do that when there was no one else around and that generally, this would occur in the kitchen but sometimes when she was standing near the couch in the lounge room.[74]
[74] Second CB interview lines 166, 170, 194 and 244.
CB explained that her father had stopped grabbing her boobs but he never stopped slapping her butt. Indeed, when asked when he had last done so, she said that this had occurred only a few days ago.[75]
[75] First CB interview lines 1018-1020.
CB was asked to describe the last time her father had touched her boobs. She explained that she was in the kitchen, standing near the stove, trying to get to the fridge. She said the accused came up from behind her, did not say anything and grabbed both of her boobs at the same time. He squeezed her boobs and then let go.[76]She forced herself away from him by kind of grabbing his hands and pushing them away from her and then walked away to her room.[77]
[76] First CB interview lines 1048-1088.
[77] First CB interview lines 1094; 1101-1108.
CB said that she was super uncomfortable and that this would have been apparent to her father as she had looked at him with a disgusted look on her face and had covered her boobs with her arms as she walked away.[78]She could not remember if he had said anything to her.
[78] First CB interview lines 1098; 1109-1118.
CB said she believed that incident occurred after Christmas in the school holidays at the end of Year 7 and that therefore it occurred in January 2019.[79]
[79] First CB interview lines 1125-1136.
During the second prescribed interview, CB was asked more about these ‘other things’.
CB said that she could not remember the first time that her father had touched her boobs but that pretty much every time it had happened, it was either in the kitchen or when she was standing near the couches in the lounge room.[80]She explained that they would put their washing on the couches and that she would be grabbing her clothes from the couch when her father would come up from behind her and grab her boobs.[81]She remembered this happening maybe a few times.[82]
[80] Second CB interview lines 126-130.
[81] Second CB interview lines 130-136.
[82] Second CB interview lines 166-168.
CB explained that it happened more often in the kitchen. She would be standing at the bench or looking in the fridge and the accused would come up behind her and grab her boobs. She said that it would be the same thing on every occasion, namely he would come up behind her and grab both of her boobs. She could not remember him saying anything to her when he did this.[83]
[83] Second CB interview lines 170-192.
She could not remember anyone else being there when this happened.[84]
[84] Second CB interview lines 193-194.
CB explained that this happened nearly every day over that two to three month period and that every time he had touched her over her clothing, except the last time which had occurred in the kitchen, at which time he had touched her under her clothing, over her bra.[85]
[85] Second CB interview lines 339-354.
Officer Miles asked CB how it was that her father would grab her boobs. She explained that he would come up behind her, put his hands under her arms, grab her boobs and then squeeze them.[86]
[86] Second CB interview lines 217-222.
CB said that this may be for only a few seconds but that on one occasion, it was maybe for up to 30 seconds. She said, “it was never heaps long”.[87]When he had squeezed her boobs for about 30 seconds, she said she froze. She could not remember if he had said anything at the time.[88]
[87] Second CB interview line 212.
[88] Second CB interview lines 229-236.
She never told anyone about the accused doing this to her.[89]
[89] Second CB interview line 244.
CB was asked how it was that she remembered that last incident in the kitchen and she explained that she did not know but that she thought that it was at a time when she kind of realised what was happening “and I just kind of snapped”.[90]
[90] Second CB interview lines 370-372.
CB said that sometimes when the accused would walk away from her after grabbing her boobs, he would slap her on the butt. On other occasions he would simply grab her boobs and on others, he would simply slap her butt.[91]
[91] Second CB interview lines 195-200.
CB explained that her father had never stopped slapping her on the butt, but that over the years he had done so less frequently. She said that at the start, he would do it close to every day but over time that had reduced to about once a week.[92] She said she tried not to give him the opportunity to do it and would always turn her back away from him.[93] She could not recall any specific occasions that this had occurred as it had happened so often.[94]
[92] Second CB interview lines 380-384; 400-406.
[93] Second CB interview lines 388-390.
[94] Second CB interview lines 407-412.
In cross-examination, CB said that she had seen her father slap her sister, EB, on the butt quite often, probably a couple of times a week.[95] She said she had also seen him slap her mother on the bottom.[96]CB denied a proposition put to her that when the accused slapped anyone on the bottom, he would say something like “ah, free shot” and laugh.[97]
[95] T 39.30-35.
[96] T 40.1-7.
[97] T 40.10-14.
CB agreed that before her younger brother, TB, was born, the accused would smack the children to discipline then but that he did not do this after TB was born.[98]
[98] T 41.11-17.
She could not remember her mother ever slapping her.[99]
Potential Motive to Lie
[99] T 41.24.
During cross-examination, CB was asked several questions apparently directed towards establishing that she had a motive (or motives) to lie about the offending.
The first related to her relationship with her boyfriend, AG.
CB gave evidence that AG was her boyfriend during Year 7 and that she broke up with AG in August 2018.[100] This was prior to the ‘main thing’ happening. She and AG had got back together again in February 2022.[101]
[100] T 43.2-10.
[101] T 44.10.
CB gave evidence that about a few months after getting back together with AG in 2022, she learned from discussions with AG, that his father had sexually abused him.[102]She said she had comforted him about that and had been a good friend to him about that.[103]
[102] T 43.37-44.5; T 45.12-21.
[103] T 45.22-24.
CB denied that she had known about this alleged abuse when she and AG had first been together.[104]
[104] T 44.6-8.
CB agreed with the proposition that when they renewed their relationship in February 2022, she and AG would communicate via social media and use I-messaging. She agreed with the proposition that there were at times, after they got back together, that she felt worried and stressed if AG was upset with her and that there were times that she felt that he was not as interested in being with her as she would like. She agreed that there were times when she would cry because AG was not responding to her. She agreed that she was determined to continue the relationship and that there were times when AG was a little bit dismissive of her.[105]
[105] T 44.19-45.11.
CB was not asked in cross-examination whether she had lied about the alleged offending in order to bond with AG over any shared experiences of sexual abuse by their fathers or to ensure their relationship continued.
The second line of questioning related to disagreements or arguments that CB was having with the accused in the months leading up to him being arrested. In cross-examination, CB agreed that there were some such disagreements or arguments between her and her father. She could not particularly remember what those disagreements were about but agreed that she was being told off or getting into trouble about the way she had spoken to people. She remembered specifically that it related to the way she was speaking to her older brother, DB.[106]
[106] T 49.5-19.
The following exchange then occurred:[107]
Q.Did you feel angry at your dad about him telling you off and having arguments like that.
A.I was more angry at my dad because that was when I remembered everything better and so that's why I would argue with him because I was frustrated with him and I didn't want to see him.
[107] T 49.20-25.
CB was not questioned any further on this topic. It was not specifically put to her that she had made up the allegations because of any anger she felt towards her father about him telling her off or having arguments with her.
EB’s Evidence
EB was 14 at the time she gave her prescribed interview. During that interview she was asked whether she could recall the sleeping arrangements in the home during 2018, when she was 10. She initially said that she thought she was sharing with CB at that time and went onto say that she had never had her own bedroom and had always shared with one of her siblings.[108]
[108] EB interview lines 36-40.
Later, EB was asked if someone who did not ordinarily sleep in her bedroom had ever come into her room and sleep there for the night. EB said that there were nights when she was sharing a bedroom with TB, that CB would have had a bad day and would come into the room in the middle of the night and ask if she could sleep in the bed with her.[109] On these occasions, CB did not want to be alone. She was often in tears and EB would have to comfort her. CB never told her why she was coming into her room.[110]
[109] EB interview lines 192-194; lines 214-216.
[110] EB interview lines 200, 218 and 231-232.
EB said this happened more than once and remembered it happening three or four times.[111] She said she shared a room with TB between 2018 and 2021.[112]
[111] EB interview lines 223-224; lines 241-242.
[112] EB interview lines 209-212.
During the interview, EB was asked about her observations of her parents’ relationship both when she was aged 10, in 2018 and thereafter. She said they seemed happy but that there were points in time when her father would lose his temper. When asked what she meant by that, EB said:[113]
[113] EB interview lines 70-76.
EBWell he had a bad habit of having ‘a go’ at [DB] specifically.
MILES (D/B/SGT) Mmhm.
EBAnd there would be times when he’d get frustrated to the point where he’d punch a hold in the wall or he’d just walk out
MILES (D/B/SGT) When is the first time you remember that do you think, or, or I should say – sorry.
How many times do you remember that happening? So you said ‘punching a hole in the wall’ – has that happened once? Did that happen once or more than once?
EBI can only remember it happening once but we’ve got enough patch on walls
MILES (D/B/SGT) Oh okay.
EBto suggest it’s happened more than once.
She said she was not aware of anyone else in the house punching holes in the wall and that you could still see the patches. She also described an incident which occurred when she was aged about three and had refused to eat her dinner. She said her father slammed her head into the table. She had no memory of that incident and when asked how she knew about it, she said, ‘I think CB told me at some point’.[114]
[114] EB interview lines 77-86.
EB said that when she and her siblings were little, their father would smack them on the bottom if they were in trouble or if he thought they had done something wrong. This had stopped once her little brother was born. She said she had seen her father smack both CB and DB on the bottom more than once.[115]
[115] EB interview lines 88-124.
EB was asked, ‘Is there anything else that happened, say from when you were about 10 onwards, that was inappropriate or made you feel uncomfortable or anything like that?’[116] EB responded as follows:[117]
[116] EB interview line 127.
[117] EB interview lines 128-134.
EBI’m pretty sure this was only with me
MILES (D/B/SGT) Yep.
EBbut ah, like every now and again he’d just like appear behind me and like hit me in the rear end for no reason. It was kind of like a more playful sort of one too
MILES (D/B/SGT) Okay.
EBIt just wasn’t something I felt comfortable with but it wasn’t, it wasn’t something that I felt comfortable bringing up.
MILES (D/B/SGT) Mmhm
Did you feel comfortable bringing it up like what do you mean?
EBLike I had ah this irrational fear of bringing it up. Like I was scared of making him angry.
EB said that when he hit her, he would hit her using a flat hand. This happened throughout the house, on multiple occasions and at random times, with no real pattern to it. He never said anything to her when he did it and she never said anything to him.[118]
[118] EB interview lines 148 and 158-176.
EB was not asked if, at the time her father hit her like this, it was when they were alone, or if it occurred in front of other people.
She was asked if she had ever seen her father do anything like that to anyone else, and she said she had seen him do the same thing to her mother. She could not remember it happening to anyone else.[119]
[119] EB interview lines 181-182.
AG’s Evidence
AG is CB’s current boyfriend. He gave evidence that he first met CB in the middle of 2018 at Youth Group. They liked each other and hung out together for about six months at that time, but at that stage their relationship did not progress to a romantic relationship.[120] He recalled that relationship broke up in about December 2018.
[120] T 59.21-60.6; T 62.14-26.
AG gave evidence that during that period, he visited CB’s house on two occasions. On one such occasion he was there for dinner for about one and a half hours. On the second occasion, he had gone to CB’s house to pick her up for his birthday dinner and was there for around 15 minutes.[121]
[121] T 60.32-38; T 63.6-18.
AG gave evidence that he met the accused during those visits. He was asked about his observations of the accused at that time. He said the accused behaved ‘very disrespectfully’ towards his children.[122] When asked what he thought was disrespectful about that behaviour, AG gave the following evidence:[123]
[122] T 61.7-10.
[123] T 61.12-26.
A.He would yell at [CB] and [EB] for distracting him if he was playing his game or if he was doing something for himself.
Q.What do you mean 'doing something for himself'.
A.Like if he was like sitting on his phone messaging someone he would get angry.
Q.You said he would yell at [CB] and [EB] in particular.
A.Yes.
Q.When you say 'yell' what would he say to them.
A.He would call [CB] a 'fuck head', 'fuck wit'.
Q.From what you observed was there anything that they did to provoke that response from him.
A.No.
Q.So before he said those words what would they be doing.
A.Nothing. Walking past him and if they got in his way.
In cross-examination, AG agreed that he had seen the accused yelling to the kids about household chores. He denied speaking with CB either about his evidence or about the yelling he had described, although he said he had told her mother.[124]
[124] T 63.19-29.
AG was cross-examined at some length about the fact that when he gave his phone to the police to check various messages he had exchanged with CB in May 2022, that he had deleted some of those messages. He was asked to compare a printout of various messages extracted from CB’s phone (reproduced at D8) with the messages he gave to the police (reproduced at D9). He denied having deleted any of the messages.[125] However, after comparing the two documents he acknowledged that there were messages missing from those he had given the police and that he had deleted some messages. As to why, he explained that he had done so as the messages had nothing to do with the case and that they were not helpful to the police.[126]
[125] T 64.8-12.
[126] T 69.24-33; T 70.9-21.
AG agreed that he wanted to help CB in the charge against her father because he believed her.[127]
[127] T 70.3-8.
The deleted messages relate to intimate details pertaining to CB’s relationship with AG as at May 2022 and an accusation of past infidelity.[128]
[128] The relevant messages are at lines 4 and 5 of Exhibit D8.
BB’s Evidence
Background
BB is CB’s mother. She gave evidence that she and the accused, her former partner, married in April 2003 and moved to the home at Salisbury East in about October or November 2012.[129] She, the accused and her four children were living at that address during the relevant period. She still lives at that home.[130]
[129] T 73.10-14; T 74.6-9.
[130] T 74.10-23.
BB gave evidence that during the relevant period, the children slept in the bedrooms as marked on Exhibit P5, and specifically that EB and TB shared the bedroom immediately adjacent to the main lounge room.[131] The accused had a computer set up in that lounge room in the area marked on the plan as ‘desk’.[132]
[131] T 75.35-76.1
[132] T 76.2-11.
During the relevant period, BB worked for two companies. During the day she worked for a nursery and during the night she worked for the Crew Services Group. As to that night job, typically she would leave home at about 7:00pm, for an 8:00pm start, and arrive home normally between 5:00am and 7:00am. She said that on some nights, if they finished the job early, she would arrive home earlier, but as the work involved a minimum shift, they never finished before midnight, meaning she was never home before midnight.[133]
[133] T 76.28-77.5.
In cross-examination, BB agreed that she could have arrived home from night shift any time between 3:00am and 6:00am. She said her shift could finish any time after 12:00am, but that it generally finished about 5:00am, meaning she would usually arrive home at about 5:30am.[134]
The Alleged Offending/Uncharged Acts
[134] T 84.33-85.4.
BB gave evidence that during the relevant period she would check on the children when she came home from night shift. Often CB was not in her bed which had caused her to panic at first, then she realised she was in with EB. She said this happened on a regular basis.[135]
[135] T 77.18-78.2.
BB was asked if there were ever any occasions that she would run into any of the kids in the middle of the night when she came home from work. She said she had a recollection of an occasion when she saw CB coming out of ‘our room’ when she got home, which was not normal. She said she asked CB what she was doing, and CB just went into her room and she did not see her again that night. She could not remember anything else occurring between them at that time.[136]
[136] T 78.3-15.
In cross-examination, BB maintained that she recalled seeing CB come out of their bedroom and of having a brief conversation with her, and that CB then went back to her room. She could not remember the exact conversation.[137]
[137] T 94.30-95.6.
BB was asked about a conversation she had with CB the morning prior to them attending at the police station to report the alleged offending on 29 June 2022. She agreed with a proposition put to her that when she spoke to CB that morning, CB had said to her ‘Do you remember four years ago when you got home from work and I was coming out of your bedroom and you asked me if I had pants on.’ and that she had answered ‘No’.[138]
[138] T 96.28-97.6.
BB said that she was emotional and incredibly shocked at that time, as CB had said to her the night before that she needed to talk to her about something that her dad had done.[139] She was not lying when she had told CB, at that time, that she did not remember that.[140]
[139] T 96.5-27.
[140] T 97.29-38.
BB was also asked in cross-examination if she could remember going with CB to the Elizabeth Police Station to report the alleged offending the next day, during which she was present when CB spoke to Officer Ross about what CB wanted to report. BB agreed that she was present during this interview.
BB was asked if she could remember CB telling Officer Ross about the conversation CB said she had with her when she got home from work one night about whether CB had pants on. BB said ‘I honestly don’t remember. It was a pretty traumatic experience’.[141]
[141] T 98.26-31.
BB was shown an extract of a recording made of that interview, wherein CB can be heard describing to Officer Ross the fact she saw her mother as she left the bedroom and her recollection that her mother had asked her if she had any pants on. BB can be seen in the recording sitting next to CB at that time, listening to what CB was telling Officer Ross. At no time is Officer Ross heard to ask BB whether she has any recollection either of this encounter with CB in her bedroom or of any conversation that occurred at that time.
A proposition was put to BB that at that time, that is, when she was sitting next to CB and listening to her describe this encounter and conversation to Officer Ross, ‘Did you, when she was talking about it there, you didn’t remember it, did you, that conversation?’[142] BB gave the following evidence:[143]
A.That was a while ago. Like, I don't like after she had obviously spoken to me the day before and you start to remember, you start to put things together.
Q.But at that time, after you heard her speaking about it, you didn't remember that conversation, did you.
A.I still don't remember the exact conversation. I know we had a conversation.
[142] T 99.24-25.
[143] T 99.26-32.
BB was then cross-examined about a statement she gave to Officer Miles on 19 July 2022. She agreed that she had told Officer Miles about the discussion she had had with CB, the morning before they attended at the Elizabeth Police Station as outlined in paragraph 181 herein. She was asked if when giving her statement she had told Officer Miles that she now actually remembered that conversation in the bedroom the night she came home from work. She said she did not believe so. The following exchange ensued:[144]
[144] T 100.23-102.11.
Q.Is that because you still didn't remember it.
A.I was still very much in shock, like my world had been completely turned upside-down along with four other people who I look after. It was kind of survival at that point.
Q.I am almost finished but a couple of further questions. You gave a second statement to Detective Miles on 1 September this year, so just recently. You didn't tell him then that you had remembered this occasion or this conversation or anything, did you.
A.I don't believe so.
Q.Yesterday in evidence you said, this is at p.78 line 11 'No, I just remember her coming out of the room. I said like I asked what she was doing and she just went to her room'. That's a little bit different to what you have said today, which is 'I don't remember any conversation'. Do you agree that that is different.
A.Yeah, I don't remember what the exact conversation was.
Q.Yesterday you said you recalled saying or asking what was she doing.
A.Yeah, but I don't remember what her response to that would have - was, I just -
Q.Is it really the case that you know from having heard [CB] talk about it that there was this occasion that she describes and she remembers but you don't actually remember, first of all, any conversation with her like that.
A.I remember her coming out of the room. I couldn't tell you what she was wearing. Like I couldn't tell, you know, what pyjamas she had on. I couldn't tell you details like that. We spoke and then she went to her room.
Q.Did you think that perhaps when you were describing back in that first statement in July 2022 with Detective Miles, so the first time you spoke to him, and you told him '[CB] asked if I remembered this conversation and I said no'. Did you think that perhaps you would tell Detective Miles 'I can remember a particular night and it was very unusual and she came out of the bedroom', did you think to tell him that.
A.No, I didn't think to tell him that because I was giving him a recall of what our conversation was in regards to her talking to me about it.
Q.But you knew it would be important if you remembered an occasion she was coming out of the bedroom where you knew she said something had happened, isn't it, didn't you.
A.If I knew that was important then it would have been there. I just was giving what I needed to, like he wanted to know what the conversation was and I told him what the conversation was. I didn't think that I needed to clarify that at that point.
Q.Your evidence is though that it is, this might be my phrase, but highly unusual for you to come home and find one of the children, [CB], coming out of the bedroom.
A.Yes.
Q.But it is the case that you haven't ever told police that you remember that particular occasion, isn't it.
A.Yeah, I don't remember telling them that.
Q.Do you remember being asked.
A.No, I don't remember.
Q.I suggest that you haven't ever told until yesterday that you remember this occasion because in fact you don't remember it. What do you say.
A.I do remember it.
BB could not recall ever seeing the accused slap people in the household on the bottom. When it was suggested to her that this was something fun and would be accompanied by laughter, she maintained that she had no recollection of ever seeing such a thing happen.[145]
Accused’s Temper/Disposition
[145] T 85.28-35.
BB gave evidence-in-chief about disagreements in the house. She said that sometimes things would get heated between the accused and DB and she was scared the accused might hurt DB so she would stand between them. She said this was around the time of the relevant period, as DB was getting older and finding himself.[146] In cross-examination she said that at that time she had been worried that the accused could physically assault DB and that is why she had stood between them. She was never concerned that the accused would assault CB.[147]
[146] T 78.16-31.
[147] T 89.2-21.
BB said that the accused could get quite annoyed with the girls at times, talk down to them and get frustrated if they expressed a different opinion to his.[148] In cross-examination, BB agreed that at times, the accused would yell at the children for not doing their chores and the like. She was asked if she did that too, as a parent and said:[149]
A.Sometimes I would raise my voice but I wouldn't yell in the way that he yelled at them.
[148] T 78.34-79.2.
[149] T 85.19-20.
BB was asked some specific questions about photographs taken by the police towards the end of 2022, apparently showing some damage to internal walls at the home.[150] BB said that the first two photographs marked Annexure B and Annexure C depicted damage to the wall in the main passageway just outside of the main bedroom. She said the damage was caused when the accused had punched the wall, earlier during 2022.[151] As to why he had done so, BB said he had been frustrated about something and that after he punched the wall he left for a number of hours.[152]
[150] Exhibit P12.
[151] T 79.6-80.17.
[152] T 80.18-22.
BB was asked in cross-examination if, at that time, the accused was very stressed about work. BB said she could not remember but that he would rarely take out his work frustrations on the family. She was also asked if she could recall if he was trying to put together a Bunnings flat pack at that time. BB said she could not recall the accused ever punching any walls when he was putting a flat pack together.[153]
[153] T 82.26-37.
She denied that this occasion was the only time the accused had ever punched a wall.[154]
[154] T 82.10-18.
During examination-in-chief, BB was shown the third photograph in Exhibit P12, Annexure D. She said this depicted a dent in the wall of the girls’ bedroom caused when the accused had hit that wall in frustration when he left that room after yelling at the girls.[155] She said he did not necessarily punch walls that often, but that he would often punch his desk if he was frustrated while gaming and she had seen him punch the floor and hurt his hand quite badly.[156]
[155] T 80.30-81.23, noting that it is not possible to see the dent on the photograph.
[156] T 81.27-82.2.
In cross-examination, BB agreed with a proposition that the accused would do gaming every night. She said he would sit at his desk, adjacent EB’s bedroom, and face two screens which were set up in the corner, against the wall (in other words, with his back to the room). She agreed he would sometimes wear headphones (or ear buds), that he would sometimes be talking to others online when gaming and that he would get frustrated and grumpy if he was interrupted by any of the kids when doing so. She also gave evidence that he would get grumpy at the game itself.[157]
Closing Addresses of Counsel
[157] T 92.25-94.17.
Prosecution Address
The prosecutor submitted that the court should have no hesitation in finding that CB was both an honest and impressive witness, whose evidence had been corroborated on a number of important aspects going to the critical issue as to whether the alleged offending had occurred.
In this respect, the court was reminded of BB’s evidence, which supported that of CB as to the layout of the house and particularly, where everyone was sleeping during the relevant period.
It was a critical aspect of CB’s account that the offending occurred during the context of her having nightmares and going to sleep in EB’s bed, the latter being something corroborated by the evidence of both EB and BB.
Importantly, BB was working nightshift during the relevant period and irrespective of whether she arrived home at 3:00am or 5:00am, there was certainly the opportunity for the offending to have occurred in the manner as described by CB.
The prosecutor acknowledged that there was a difference in the recollections of BB and CB as to the nature of any conversation they may have had when BB claimed to have encountered her mother as she was leaving the bedroom after the ‘main thing’. It was submitted that the court may think that CB’s recollection of this conversation was far more memorable for her, given what had just happened to her but was of no real moment for BB, who had just returned home after working a long shift. Put another way, it was “just another night” for BB but for CB, the events of that night were locked in her memory.
It was observed that CB’s evidence as to the accused’s temper and behaviour had also been corroborated in a number of different aspects. Specifically, on the issue of whether or not the accused had a propensity to slap his children on the bottom, EB described being slapped on the bottom by the accused, albeit she had described it as somewhat playful contact.
More generally, EB and BB had both given evidence that the accused had punched, at least one hole, in the wall, when he had lost his temper. BB’s recollection was that there were two occasions when he had punched the wall, leaving a hole on one occasion and a dent on another and while EB only recalled the accused punching one hole in the wall, she stated that there were lots of patches suggesting that it had occurred on other occasions.
BB had also given evidence about the accused’s propensity to punch his desk when gaming and of her having to step in between him and DB when they were confronting each other.
It was submitted that CB’s observations of this type of behaviour and the accused’s propensity to lose his temper in this way, provided an explanation as to both why CB acceded to the accused’s request to get into bed with him and then stayed in that bed with him. She was scared that if she resisted, she would get into trouble.
Further, it was submitted that this also was a potential explanation as to why CB delayed in her reporting of this conduct to the authorities.
It was submitted that CB’s evidence generally was both reliable and credible but that her evidence in respect of the ‘main thing’ had been particularly compelling and comprised a consistent account with a recollection of many minute details.
It was submitted that this was an account that could not have been either fabricated, nor imagined.
Insofar as it was alleged that the offending had been fabricated, as a way for CB to solidify her relationship with AG in 2022, it was submitted that this simply did not fit, having regard to the fact that it was an agreed fact that CB had initially complained about the alleged offending back in 2018. Further, while there was evidence that CB had learnt the fact that AG had been abused by his father “a few months after” they renewed their relationship in February 2022, the precise date upon which she became aware of this was uncertain.
As to whether the ‘main thing’ had been dreamt, or imagined, it was submitted that the very fact that so many of the surrounding circumstances had been corroborated, told against any conclusion that this was some sort of fantasy or delusion. CB had been emphatic it had occurred.
It was submitted that importantly, CB’s account contained specific details consistent with the incident having been real and not imagined.
CB was able to recall the timing of the incident by reference to it having occurred when she was suffering nightmares and the specific reason why she was suffering those nightmares, namely from viewing video clips from the movie, “It”.
It was particularly memorable for her as it was associated with both the first and then second times she had slept in her father’s bed.
It was submitted that CB’s recollection as to certain comments having been made by the accused during the offending was compelling and simply inconsistent with her account being made up or dreamt.
Specifically, the prosecutor referred to CB’s recollection of the accused asking why she was wearing a bra and telling her that she should take it off and the embarrassing comment that he made about the fact that she had too much hair in her pubic area and should start shaving.
Further it was submitted that there were other aspects of CB’s account which were compelling, namely how she had felt during the ‘main thing’ – at times she had felt frozen, she could not speak and she felt trapped, waiting for her mum to come home.
Insofar as it was alleged that there was any inconsistency in CB’s recollection with respect to her description of her father touching her inner thigh, it was submitted that CB had provided an explanation as to why she was able to recall more detail when she spoke with Officer Miles, namely that as she had been taken through the incident from the start to the finish and asked specific questions about it, she had been able to recall the details more clearly. It was submitted that this minor inconsistency should not cause me to have any doubts as to CB’s reliability or credibility.
Further it was submitted that the timing of the initial complaint to OD, being contemporaneous with the alleged offending and it having been made to another young girl of a similar age, going through similar circumstances and in a safe environment, demonstrated some consistency of conduct on the part of CB.
Turning to the other alleged offending, it was submitted that CB’s account of being grabbed on her boobs by the accused on multiple occasions had been barely challenged. This behaviour commenced shortly after the ‘main thing’. The fact the accused had commented that CB had “perfect sized breasts” during the main thing, lent support to CB’s account that he engaged in such conduct thereafter.
It was submitted that when the court carefully considered all of the evidence, it could be satisfied beyond reasonable doubt that CB’s evidence was both reliable and credible, that the ‘main thing’ had occurred in the manner in which she described and that thereafter for a period of two to three months, the accused had grabbed CB on her breasts on multiple occasions, in circumstances which were indecent.
Defence Address
Counsel for the accused submitted that there were simply too many inconsistencies and implausibilities in CB’s account for the court to be satisfied of it beyond reasonable doubt.
It was submitted that even if the court was satisfied that CB genuinely believed the alleged offending had occurred such that her account was truthful, it could not be satisfied as to the reliability of that account. It was suggested that there was at least a reasonable possibility that what CB was recalling was the stuff of nightmares (or a nightmare) or alternatively, unwitting contamination of her knowledge of the experiences of others, specifically OD and AG.
It was submitted that there were various details relevant to the account given by CB, both of the ‘main thing’ and the other offending which were simply implausible and did not make sense in terms of both their content and the chronology.
As to whether what CB was describing was a nightmare, the court was asked to consider the circumstances in which the alleged offending was said to have occurred. That is, when CB was about 12 years old, having recently broken up with her boyfriend, AG, highly anxious and afraid of being told off. It had occurred, in the context of her in fact suffering nightmares each night and when she was helping her friend, OD, go through her own experience of sexual abuse by her father.
It was submitted that CB’s description of what occurred on the first night she slept in her father’s bed, was consistent with that being a nightmare, namely her comment that after lying in the bed next to her father and him being very cuddly:[158]
And then I woke, like I fell asleep and I woke in my bed.
[158] First CB Interview line 106.
She submitted that this was in fact consistent with CB having gone to sleep having a nightmare, then falling asleep and waking, in her own bed.
As to the occasion of the main thing, it was submitted that on her own account, CB had claimed to have interrupted her father two times, as she attempted to get into EB’s bedroom while he was gaming on his computer. Despite her claim that she was scared of her father and did not want to get into trouble, she had not simply acceded to his request to go back to bed, rather she had tried to enter the bedroom on several occasions, in express contradiction of his demand for her not to do so. She submitted that this was simply inconsistent with CB’s evidence that she was too scared to say no when shortly thereafter he suggested that she sleep in his bed.
Further, it was submitted that there was no evidence that during this time, that is when CB was trying to get into EB’s bedroom, that the accused was angry with her for interrupting his game, being inconsistent with the evidence given by BB, that the accused would get frustrated if he was interrupted while gaming.
It was submitted that it simply did not ring true that CB would be too scared to say no to going to sleep in his bed but not too scared to try more than once to get past him when he had told her not to. Similarly, it was submitted that CB’s evidence that she went into her father’s bed because she was scared to say no, was inconsistent with BB’s evidence that the girls were opinionated, rather than being meek and mild.
Counsel for the accused submitted that the conduct described by CB of her father in the moments prior to the alleged offending, was inconsistent with him then opportunistically sexually offending against her in his bed.
There was no evidence of the accused having ever engaged in any sexual touching with respect to CB prior to the main thing, nor of there being any sexual conversations between them before this.
It was submitted that what was described thereafter represented an unusual and sharp escalation in the accused’s behaviour, which counsel described as “relatively progressed sexual touching”, with an absence of any evidence of grooming beforehand.
Counsel for the accused submitted that CB’s account of what occurred during the ‘main thing’ was neither precise nor clear and in fact contained numerous frailties.
For example, there was no evidence as to what had become of the pink blanket which CB had recalled having with her when she went into the bed and had wrapped around her as she walked out of the room, after the ‘main thing’. It was submitted that if this blanket was still wrapped around CB, when she was in the bed, consistent with her being scared, then the events that she described simply could not have happened because the blanket would have acted as some kind of barrier. Another example was said to be CB’s inability to recall what, if anything, the accused was wearing at the time of the ‘main thing’.
It was submitted that this lack of detail was consistent with CB’s account not being grounded in reality.
Although it was acknowledged that CB’s account included the embarrassing detail of her father suggesting that she had too much hair and needed to shave, it was submitted that one did not get to choose the details of their dreams and if in fact that detail was embarrassing then that was something over which one would have no control. Further it was submitted that there was no information as to precisely what OD had told CB about the alleged offending against her, which could have provided the factual basis for this type of detail.
Another aspect of CB’s account which was criticised was her memory of the main thing occurring over an extended period of at least midnight to 3:00am – possibly longer, but her claim to having never fallen asleep during that period. Counsel for the accused submitted that it was simply implausible that CB would not have fallen asleep in that period and that the timeframe was more consistent with her describing a dream, as timeframes in dreams often did not match up.
CB carefully explained to Officer Miles how the accused had touched her breasts and how he then touched her pubic area. She then recalled that the accused moved his hand from his pubic area onto her right inner thigh, while he had his other hand on one of her boobs. She recalled that it was at that time that the accused had asked her if she wanted to see his penis and she had said no. She said that just after this, she had tried to get out of the bed for the first time.
The inconsistency relates to the level of detail described by CB to Officer Miles, as to what she remembered about the accused touching her inner thigh, not to any other part of this evidence. For example, there was no suggestion that CB’s memory of the accused asking her if she wanted to see his penis was not something already mentioned to Officer Ross.
I have carefully considered the evidence. I accept CB’s explanation for why it was that she was able to recall those further details relating to when the accused’s hand was on her thigh when speaking with Officer Miles. CB explained that as she spoke to Officer Miles, she was thinking more about the events that had happened leading up to the accused putting his hand on her thigh and that this helped her remember exactly what had happened then. I accept this evidence.
During the first prescribed interview, CB gave evidence about the last occasion when the accused had touched her on the breasts, in the kitchen. Her account in that first interview did not include detail provided in the second interview, namely that when he touched her breasts on that occasion, he had done so over the top of her bra, but under her clothing. CB was not cross-examined about this omission. In my view, the fact of this minor inconsistency carries very little weight. What CB did describe in each interview was the accused touching her on the breasts, on that last occasion, over the top of some clothing. The fact that CB included the extra detail in the second interview, namely that it was over her bra but under her top, does not cause me to otherwise doubt the reliability and credibility of her account.
Another potential inconsistency related to CB’s evidence of an occasion when she was aged about 5 and EB was aged about 3 and the accused allegedly slammed EB’s head into the table because she would not eat her dinner. CB denied telling EB about that incident. EB volunteered the fact of this alleged incident during the course of her interview but said she did not actually have a memory of it happening. She said she thought CB had told her about it. As stated earlier, I have no doubts whatsoever as to EB’s honesty or reliability and I accept that she has an understanding that this incident did occur because of what someone, probably CB, told her about it. I am satisfied that this is not something that both CB and EB have made up to cast the accused in a poor light.
BB was not asked specifically as to whether she recalled any such incident, but did say that her only concerns in terms of the accused potentially physically assaulting one of the children related to DB.
I consider it likely that CB did tell EB about this incident at some stage during their childhood but that she now genuinely has no recollection of having done so. If this incident occurred, it occurred when CB was a very young child. It is a most unusual thing to make up. It may be that the accused simply pushed EB’s face into a bowl to encourage her to eat and CB has remembered this as him slamming EB’s head into the table.
While CB’s recollection of this incident may be imprecise, this does not cause me to doubt either CB’s reliability or credibility with respect to her account of the alleged offending, being something that, on her evidence, had occurred only four years earlier, when she was 12.
These apparent inconsistencies do not cause me to otherwise doubt the reliability and credibility of CB’s evidence as to the alleged offending.
Alleged Implausibility of CB’s Account
Counsel for the accused submitted that there were numerous aspects of CB’s evidence as to both the main thing and the other offending that were simply implausible and inconsistent with other evidence. I will deal with these in turn.
One aspect of the evidence which was said to fall into this category was CB’s evidence that she was too scared of the accused to say no when he told her to sleep in his bed, but not, seemingly, scared enough of him to defy him and continue to try to sneak into EB’s bedroom when he had told her not to. It was submitted this evidence was inherently inconsistent. Similarly, it was submitted that CB had given evidence that the accused was calm when he told her to go back to bed, contrary to BB’s evidence that the accused would become frustrated if interrupted when gaming. I have addressed the latter submission earlier in my discussion pertaining to BB’s evidence.
It is important to revisit CB’s evidence as to why she felt she had to do as the accused said and go and sleep in his bed. She said was that she did so as she was scared of him and she did not think she had any control over the situation. By way of explanation, she then said he yelled a lot. It was not put any higher than that.
In my view, what CB was describing was entirely plausible, that is, a child simply following a parent’s direction because they thought they had to, in circumstances where that parent had a short temper.
As I said earlier, there was no evidence as to the accused’s demeanour during the period when CB was hovering in the lounge room behind him, trying to sneak into EB’s bedroom. If, as BB said, the accused was prone to becoming frustrated if he was interrupted when gaming, it is likely that any level of frustration he was experiencing as a result of being interrupted, would increase, the more he was interrupted.
It is not implausible and indeed likely, that having defied her father twice, and not gone back to bed, CB thought she had no option but to not defy him a third time.
CB also gave evidence that she stayed in the bed because she was scared of what he would do if she did not. I accept that evidence. In my view, this is consistent with the fear a 12 year old girl, being sexually touched by her father, for the first time, would have in such circumstances. At that time, CB she could not have known what her father was going to do next.
Another aspect of CB’s account with respect to the ‘main thing’, that was said to be implausible, related to her evidence that she had tried to leave the bed three times, including when her mother had arrived home and that on each occasion the accused had tried to stop her from doing so. Related to this was CB’s evidence that the accused had either fallen asleep or was half asleep, in the bed next to her, for a period, prior to her mother coming home. It was submitted this defied logic as it potentially meant the accuses offending would be exposed.
I have carefully considered this evidence.
BB’s evidence, which I accept, was to the effect that she could potentially have arrived home from work anytime from around 12:30am to 7:00am, but that she usually arrived home about 5:30am. There was certainly the possibility that she could have arrived home and walked into the bedroom when CB was still in the bed.
BB’s evidence-in-chief was that it was not normal for CB to be coming out of her room at that time of night. In cross-examination, she agreed it was unusual for her to be doing so.
When describing the first night she had slept in the accused’s bed, that is, a day or two before the occasion of the main thing, CB was asked if that was the first time the accused ever told her or asked her to sleep in the bed with him, and she said yes.[162]
[162] First CB interview at lines 637-639, noting CB was not asked if she had ever, in fact, slept in the accused’s bed with him before the two occasions she described to Officer Miles.
As such, I am satisfied that it was not the case that CB regularly slept in the bed with the accused at that time. I am satisfied that in such circumstances, had BB come home and seen CB in the bed, she would have thought it was unusual.
CB did not describe any of her clothing being removed by the accused. She was never asked to describe what the accused was wearing at the time of the main thing.
If both CB and the accused were otherwise clothed, given the nature of the acts described by CB, the accused could simply have quickly moved his hand and cuddled her, if BB entered the room at any time. While the fact they were in the bed together was unusual, and may have required an explanation, the obvious explanation as to why she was there was that CB had had a nightmare and was scared.
I do not agree that CB’s evidence that the accused tried to stop her from leaving the bed, even when BB arrived home, and/or fell asleep during the main thing, renders her account implausible.
A plausible explanation for why the accused behaved in this way is that he was demonstrating to CB that what he was doing was something normal and natural and not something that was wrong.
Nevertheless, I have considered this aspect of CB’s evidence very carefully when considering the overall reliability and credibility of her account.
Counsel for the accused submitted that it was implausible that the accused would sexually abuse CB during the main thing, in the absence of ever having acted in any sexually inappropriate way towards her beforehand. It was submitted that CB’s account would have made much more sense if, in fact, she had described progressive touching by the accused of her bottom and/or breasts prior to the main thing, rather than after it, in the sense that by doing those things, the accused was normalising this behaviour.
There is some strength in that submission. It is often the case that a sexual predator will begin by relatively minor sexual touching of a child, to groom them and to normalise the behaviour and to ascertain the child’s response. If there is no complaint about that conduct, the offender may then be emboldened to progress to more serious offending.
However, this submission needs to be considered in the context of precisely what unlawful sexual acts CB described as occurring during the course of the main thing.
On CB’s version of events, the accused started first by touching her breasts over the top of her bra and then moved his hand under her bra and continued to touch them.
He touched her pubic area, first over the top of her clothing and then under her underwear. He touched her inner right thigh. He never touched her vulva, nor inserted a finger in her vagina. This was not, in my view, ‘relatively progressed sexual touching’.
CB said that she was aged about 12 at the time. She was wearing a bra. She was pubescent. The fact that CB was lying in the accused’s bed next to him in fact represented the perfect opportunity for the accused to sexually abuse his pubescent daughter, for the very first time.
CB’s account, that in the two to three months after the main thing, the accused regularly grabbed her breasts, is in my view, consistent with him continuing to demonstrate a sexual interest in CB as a pubescent child and consistent with his comment to her during the course of the main thing that her breasts were the perfect size.
The fact the offending did not then progress to something more serious and simply stopped after two to three months, was also said to render the account implausible.
However, CB gave evidence that on the last occasion that the accused touched her on the breasts in the kitchen, she had ‘snapped’. She said she looked at him with a disgusted look on her face, covered her boobs with her arms and walked away.
CB’s description of how she behaved on that occasion could well have served as a warning to the accused to stop that behaviour. By her conduct, CB had demonstrated to him that she was unhappy with his behaviour and was not prepared to put up with it.
In my view, this aspect of CB’s evidence provides a plausible explanation for why the offending stopped and did not progress.
Counsel for the accused submitted that CB’s evidence, that the accused would touch her breasts, every day in the kitchen and the lounge room, being shared living spaces in the house, was also implausible, given the very real possibility that such offending could have been seen by others.
CB described the accused touching her breasts, primarily over the top of all of her clothing, when she was by herself and no one else was around. Her evidence about him doing this when she was getting her clothes off the couch was particularly compelling in terms of its detail.
We know that BB was working both during the day and at night during the relevant period. CB’s older brother, DB, was autistic. TB was aged only 4. EB was aged around 10.
Although CB described there being one occasion when the accused grabbed her breasts for about 30 seconds, she said that on the majority of occasions, what he was doing was quickly squeezing her breasts and then removing his hand. In other words, generally speaking, when he touched her in this way, he did not do so for long.
Further, as observed by Doyle CJ in R v Corrigan:[163]
… it is an unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think an attempt to commit the offence would be unlikely because of the risk of detection.
This does not mean that the jury, or the Court on appeal, is to suspend judgment and to consider the facts on the basis that anything is possible or plausible. But, on the other hand, the Court should be careful before it treats evidence of a sexual offence as inherently implausible because the court would not have expected the offender to commit the offence in the circumstances described.
[163] (1998) 74 SASR 454 at 468, noting this observation applies similarly to my consideration of CB’s account of the main thing.
I am conscious of the fact that CB said that the accused touched her on the breasts almost every day over two to three months. Although I consider it likely that this is an exaggeration, I am satisfied that what CB remembers is this happening a lot, such that, to her mind, it was every day.
Was the ‘Main Thing’ a Nightmare?
Counsel for the accused suggested that the court could not exclude as a reasonable possibility that the “main thing” was simply a nightmare.
There were particular reasons why it was submitted that this was a reasonable possibility in the circumstances of this case, namely the fact that CB acknowledged she was having nightmares at the time of the main thing and that at about that time, her friend, OD, was going through the experience of having been sexually abused by her father. It was submitted that this could have formed the foundation for such a nightmare.
I have assumed, from this submission, that it is directed to an argument that the main thing was a dream that CB had when she was aged 12.
In developing this submission, counsel for the accused asked the Court to look carefully at what was happening in CB’s life in the period leading up to her report of the alleged offending to the police. That is, she was having disagreements with her father and AG had disclosed to her his own experience of being sexually abused by his father. It was suggested that the seed for a nightmare might have been sown in CB have previously heard about OD’s similar experience.
Counsel for the accused submitted that the court could not exclude as a reasonable possibility that upon learning of AG’s experience, she had ‘returned to thinking about that kind of experience’.[164]
[164] T 132.1-31.
Further, it was submitted that CB’s evidence that at that time she was angry with her father because that was when she had started to remember everything, and her evidence that her memory had improved over time, was also consistent with this ‘nightmare’ hypothesis.[165]
[165] T 133.5-17.
There was evidence that CB learned from AG that he had been sexually abused by his father “a few months after” she renewed her relationship with AG in February 2022. As such, it is possible that she was aware of this prior to reporting the alleged offending to the police. However, there was no firm evidence as to precisely when AG first told CB about this and specifically, neither CB nor AG were questioned as to whether this was before or after the alleged offending was reported to the police.
There was evidence that CB was having disagreements with the accused and was angry with him because of what she was the remembering, in the period shortly prior to her reporting the offending.
At the core of this submission must be the proposition that because of what AG told CB about his alleged abuse sometime in 2022, that CB has then falsely remembered the dream she had in 2018, as being reality.
However, it was an agreed fact that CB first reported the alleged offending to OD between August and December of 2018.It was never put to CB that she had lied to OD about being sexually abused by her father, and indeed defence counsel stated, in her closing address, namely:[166]
I'm not suggesting that there's evidence that necessarily [CB], for example, has sat down and heard what [OD] said and has decided to come up with her own story. I'm not saying that. I'm not saying 'Well, she knew this about [AG] and so she's to come up with her own story.
[166] T 131.34-132.1.
If CB was not lying when she disclosed the alleged offending to OD, she must have then been acting under a false but genuine belief that what she thought was reality, when it was only a dream. Although we do not know exactly what CB said to OD in 2018, if the main thing was a dream that CB had in mid-2022, then, it follows that it was a dream of at least similar content to the earlier dream in 2018.
I have carefully considered the evidence and the various arguments put forward by defence counsel to support the ‘nightmare’ hypothesis.
I am satisfied that the initial complaint evidence does demonstrate some consistency of conduct. The fact CB disclosed the offending to OD, a friend, of her own age, who was experiencing similar trauma at that time, is precisely the type of occasion when one may expect her to have disclosed the offending. However, it is also, of itself, not inconsistent with the ‘nightmare’ hypothesis, assuming said nightmare occurred back in 2018.
It was submitted that the lack of detail in CB’s account of the ‘main thing’, supported the ‘nightmare’ hypothesis. In this respect, the court was referred to the lack of evidence of what, if anything, had happened to the pink blanket while CB was in the bed and the absence of any evidence as to what the accused was wearing at the time.
However, as previously stated, Officer Miles was particularly careful to extract a large amount of detail from CB with respect to most aspects of the alleged offending. Rather than there being a lack of detail, there was a significant amount of detail provided in terms of the sequence of events, how and where the accused touched her, how her body wand his were positioned, where his hands were at various times, when and what was said and the like. Indeed, the very fact, CB recalled having her pink blanket with her was a detail which added to her account.
Further, other than the inconsistencies to which I have previously referred, CB’s account remained remarkedly consistent throughout what were two detailed prescribed interviews and was not significantly challenged in cross-examination.
Counsel for the accused submitted what CB had said about the first night she slept in her father’s bed, was consistent with her describing a nightmare, on that occasion, thus supporting a contention that the main thing was also a nightmare.
Specifically, she referred to CB’s statement in the first prescribed interview about what had happened after she lay in the bed next to her father and he cuddled her, namely, “and then I woke, like I fell asleep and I woke in my bed”.[167] It was submitted this was consistent with CB in fact dreaming about having been in the bed with her father on the first occasion.
[167] First CB interview line 106.
CB was not asked to clarify what she meant when she said that. For example, she was not asked to clarify whether what she meant was that she fell asleep in her bed or in his bed. CB was not cross-examined at all about what happened during the first night she was in the accused’s bed.
Further, it may well be the case that she did fall asleep when she was in the accused’s bed on that first occasion, that she then woke up, got up and went back to her own bed, where she fell asleep and woke again.
CB was asked in the context of questioning about the main thing and specifically what she had said about the accused being asleep or half asleep during the ‘main thing’, whether there was a time she had fallen asleep when in that bedroom. She said no and that she was sure about that. Given the context in which that question was asked, I consider it likely that CB interpreted the question to be about when she was in the bed at the time of the ‘main thing’. I do not consider it appropriate to interpret this evidence to mean that there was never a time on any occasion when CB fell asleep in the accused’s bed, as that was simply not the question asked, nor the context of the question.
It must also be remembered that nothing untoward or inappropriate occurred during that first night. That incident formed part of the background to the narrative and was, in all respects, merely incidental to CB’s account.
It was submitted that CB’s evidence that the main thing lasted around three hours but notwithstanding that, she had not fallen asleep during that incident was inconsistent with her describing a real event and more consistent with her describing a nightmare, where timeframes did not make sense.
I disagree with that submission. I consider it likely that a 12 year old girl in a bed, next to her father, and being touched inappropriately by him, for the very first time, would be in such a heightened state of emotion as to make it impossible to sleep in such circumstances. CB described being very tired after the incident, consistent with her remaining awake throughout and providing an explanation as to why she was then able to go to sleep when she was finally able to get out of the bed and go back to her room.
Further, CB’s evidence as to how long the main thing lasted was only an estimate. She said she saw the clock as she passed her brother’s room before the incident and that it displayed 11:55pm. She felt as if she was in the bed for a long time. It may have been much less than three hours, albeit it felt to CB as if it was at least that long, given BB’s evidence that she could finish work as early as midnight.
CB’s account of how she felt throughout the course of the main thing was compelling and consistent with her describing a real event that had happened to her. For example, her recollection of freezing and being unable to speak. Her description of how the accused had his arm wrapped around her when they were lying in the bed and, at times, feeling as if she could not move, was also very convincing, as was her evidence that after the ‘main thing’, she never went to sleep in EB’s room again.[168]
[168] First CB interview line 616.
CB’s recollection of some of the specific statements or comments made by the accused to her during the main thing are, in my view, inconsistent with it being the product of any dream or nightmare. An example of this is CB’s recollection of the accused saying to her, when rubbing her pubic area, that there was too much hair and that she should start shaving. Another comment of a similar type was his statement to her that she had the perfect sized breasts. It was suggested these might be things that OD had told CB in terms of the abuse perpetuated against her. In my view it is most unlikely a teenage girl would disclose such embarrassing matters to another teenage girl and even if she had, that CB would be unable to discern whether this had actually happened to her, rather than simply being part of a horrible nightmare founded in OD’s revelations.
Further, the surrounding circumstances pertaining to the ‘main thing’ were all matters founded in reality. That is, CB was regularly getting up to go and sleep in EB’s room. The accused did routinely sit at a desk, located outside EB’s bedroom, and participate in online gaming. BB did work nightshift during the relevant period. These details and the way in which CB recalled and described them, were compelling aspects of her account.
Finally, this is not a case where many years are said to have passed between the alleged offending and it being reported. CB is not an adult, with many lived experiences, casting her mind back to something that happened 20 or 30 years ago. Rather, she is a teenaged girl, describing something that she is certain happened to her around only four years ago. It is, in my view, not reasonably possible that in these circumstances, what CB now recalls as real, was in fact, a dream.
After carefully considering all of the evidence, I am satisfied that there is no reasonable possibility that the main thing was a nightmare and/or some inaccurate contaminated recollection of events that had happened to someone else, that is, either OD and/or AG.
General Criticisms of CB’s Evidence
Counsel for the accused submitted that CB’s physical demonstration as to how the accused would grab her boobs, as depicted in the first prescribed interview, told against her demonstrating a real event that had happened to her.
I have carefully considered the recording of that prescribed interview.
At this point, Officer Miles was asking CB to describe how the accused had touched her boobs on the last occasion, in the kitchen.
She said that he used both of his hands and then, by way of demonstration, moved both of her hands out in front of her and moved the fingers of each hand in a squeezing motion. She was then asked whether the accused was behind her or in front of her and said, in front of her. She then paused and said no, he was behind her. She was asked again to give the demonstration. She then explained how the accused put his arms under hers and used both of his hands to squeeze her breasts and demonstrated this.
In my view there was no significant inconsistency in the two physical demonstrations given by CB, or any inconsistency between those demonstrations and her description of what the accused did to her. However, there was a potential inconsistency in the evidence insofar as CB first described the accused as being in front of her, rather than behind her, when he touched her boobs.
However, this was immediately corrected by CB and it appeared to me to be simply a genuine mistake. It must be noted that this exchange occurred very near the end of what was an almost two-hour interview.
Counsel for the accused submitted that as parts of CB’s evidence was exaggerated, I could not otherwise accept her account as being both credible and reliable. CB’s evidence that the accused had punched a hole in the wall some 10 to 15 times was simply not borne out by the rest of the evidence and inconsistent with the evidence of BB and EB on that topic, which evidence I accept. As previously stated, CB’s recollection that the accused would grab her on the boobs nearly every day, for the two to three months after the main thing, was, in all likelihood, an exaggeration.
Other evidence which potentially falls into this category is CB’s evidence of butt slapping.
CB gave evidence that on occasions when the accused would grab her breasts, he would also slap her on the butt. However, she also said there were occasions when he would just slap her butt and having regard to the way in which CB’s evidence on this topic unfolded, and her answers in cross-examination, I am satisfied that what she was intending to convey was that these butt slaps were not something that was simply fun or playful, but something inappropriate.
As previously stated, EB said the accused would also slap her on the butt, albeit she described the accused’s conduct as playful. I refer to my earlier discussion at paragraph 253. Despite describing these butt slaps as ‘playful’, I am satisfied that those butt slaps in fact made EB feel uncomfortable.
It may well be that there were occasions when the accused playfully slapped CB on the bottom, from time to time, and that is simply all he did at that particular time.
In my view, properly considered in context, EB’s evidence on this topic was not inconsistent with that given by CB. Rather, the evidence corroborates CB’s account that this was conduct of a type engaged in by the accused. That is, coming up behind someone, when they were not expecting it, and slapping them on the bottom.
Another aspect of CB’s evidence which was criticised was her memory of the conversation she claimed to have had with her mother when she bumped into her as she left the bedroom immediately after the main event. That is, it was suggested that the topic of that conversation (if CB was wearing any pants) was unusual having regard to BB’s evidence that it was not normal for CB to be coming out of that bedroom.
CB explained the basis for this conversation, that is, that she was wearing very short pyjama shorts, a long top and had a blanket around her, like you would a towel, so it looked like she was not wearing any pants. She recalled showing her mother that she was wearing pants and then going back to her room.
In my view, this conversation is not something that CB has made up, nor could she be mistaken about it.
I have carefully considered whether it is reasonably possible that this is also another, in a long list of details, that has been dreamt by CB and then remembered and retold. Having carefully considered this, I am not satisfied that this is a reasonable possibility.
Is it reasonably possible CB is lying about the main thing and/or the other offending?
I have carefully considered an alternative proposition, namely that CB has in fact lied about either the main event and/or the alleged offending, either to strengthen her relationship with AG by having a mutual bond with him, that is that they had both been sexually abused by their father, or for any other reason. I have also considered whether it is reasonably possible that when CB first disclosed the alleged offending to OD, she was lying, to strengthen her friendship with OD, who claimed to have also been sexually abused by her father or for any other reason.
I have carefully considered CB’s account as to both the ‘main thing’ and the other offending. Notwithstanding that aspects of her evidence were exaggerated, as outlined above, CB impressed me as a witness. Her account of the ‘main thing’ was comprehensive, detailed and corroborated as to incidental matters. There was very little inconsistency in her account. I am satisfied that by her evidence, what CB was doing was truthfully recounting, to the best of her ability, an incident that had occurred some four years ago. This was not an elaborate lie that had been made up by CB and then carefully remembered and restated.
As to the other offending, I am satisfied that there is no reasonable possibility that the other offending was dreamt by CB. Further I am satisfied that there is no reasonable possibility that CB could be mistaken about the nature of this offending. If the accused did come up behind CB and squeeze her breasts, this could not be misconstrued, as some type of playful banter.
CB’s evidence as to this other offending was barely challenged in cross-examination. While potentially exaggerating the frequency with which the accused touched her on her breasts, I am satisfied that CB was telling the truth when she described the accused coming up behind her, when she was either standing near the couches in the living room, or in the kitchen, and then put his hands under hers and around her and squeezed her breasts, over the top of her clothing, on multiple occasions and on one occasion, over the top of her bra.
Summary
I have undertaken a very careful scrutiny of all of CB’s evidence and in particular the criticisms of that evidence as made by defence counsel, to determine whether I can be satisfied beyond reasonable doubt as to both of the truthfulness and accuracy of CB’s account of both the main thing and the other alleged offending. Having done so, I am so satisfied.
My impression of CB’s evidence from having the benefit of carefully watching the audio-visual recordings of the prescribed interviews and observing her give evidence was that she was telling the truth about both the main thing and the other offending. This is notwithstanding my observation that CB is likely to have exaggerated both the number of times she now recalls the accused punching the wall and leaving holes in it and her evidence that the accused would grab her breasts close to every single day.
The facts surrounding the alleged ‘main thing’ were corroborated by the evidence of BB and EB – importantly the fact that during the relevant period BB was working night shift and CB was regularly going to sleep in EB’s room. The account given by CB of the main thing remained largely consistent throughout and contained many details that were indicative of her remembering a real, lived event, not a dream.
CB’s account of the other offending similarly remained consistent throughout. I accept that she recalls this occurring on a very regular basis, hence why she now recalls it, possibly erroneously, as happening close to every day.
CB’s description of the accused coming up behind her, putting his hands under hers and then reaching form grabbing and squeezing her breasts, was, in my view, not invented, nor dreamt, but a real recollection of events that had happened to her.
I am satisfied beyond reasonable doubt that CB is telling the truth about what she recalls happening to her.
I am further satisfied that there is no reasonable possibility either that CB has dreamt the ‘main thing’ or the other offending or mistaken about it or that her memory of any of the alleged offending has somehow been contaminated by what she has been told by either OD and/or AG about alleged sexual offending perpetuated upon them by their fathers.
Findings of Fact
I accept CB’s evidence that there was a night, during the relevant period, when CB was aged 12, that she had a nightmare, got out of her bed and tried to go into EB’s bedroom to sleep. She was stopped by the accused, who was sitting at his desk adjacent EB’s bedroom, and, after he told CB to go back to her bed twice, he then asked her to sleep in his bed.
I accept CB’s evidence that she acceded to this request as she was scared of the accused. I accept the evidence of CB, BB and EB that the accused was prone to losing his temper and of becoming frustrated and angry over minor things. I accept that CB was scared of her father because he had a short temper and that this was the case during the relevant period.
I accept CB’s evidence that she got into the accused’s bed and as she lay next to him, on the right-hand side of the bed, on her left-hand side, the accused touched her on the breasts, both under and over her clothing, touched her on the inner thigh and touched her on the pubic mound, both on top of and under her clothing, in the manner as described by CB.
I am satisfied beyond reasonable doubt that the touching had a sexual connotation to it and was indecent insofar as that word is understood by reference to ordinary reasonable contemporary standards.
I accept CB’s evidence that during a period of two to three months after the main thing, when CB was aged 12 or 13, the accused regularly grabbed her on her breasts, over the top of her clothing, including on one occasion over the top of her bra, and squeezed her breasts. I am satisfied that when the accused did this, there was no one else present, such that his conduct was not observed by others in the household, notwithstanding it occurred in shared spaces such as the kitchen and lounge room.
I am further satisfied beyond reasonable doubt that such conduct occurred in circumstances of indecency.
As to the elements of the offence, I am satisfied and find beyond reasonable doubt:
1.That during the relevant period, the accused knowingly maintained a relationship with CB.
2.That during the relevant period the accused engaged in two or more unlawful sexual acts with CB.
3.That during the relevant period, CB was a child.
4.That during the relevant period, the accused was an adult.
Conclusion
I find the accused guilty of the charged count.
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