R v B, EW

[2023] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v B, EW

Criminal Trial by Judge Alone

[2023] SADC 167

Reasons for the Verdicts of her Honour Judge Fuller 

6 December 2023

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

Accused charged with 2 counts of aggravated indecent assault and 4 counts of indecent assault. Complainant was accused's granddaughter, who was born in June 1999. Count 1 alleged to have occurred in 2008 involving touching of vagina (and uncharged acts of touching breasts). Complainant made complaint to mother and then interviewed by police and accused charged with aggravated indecent assault in 2009. No evidence tendered by prosecution on that charge some months later. Contact with accused eventually resumed and some time later the accused touched the complainant multiple times on breasts over clothing or under clothing and over bra. All offending alleged to have occurred in accused's home. Complainant reported matter to police in 2019 and accused charged with 2008 offending and indecent assaults alleged to have occurred between June 2012 and June 2015.

Proved prior inconsistent statements on material matters and complainant's account of timing of counts 2 - 6 unreliable. Accused denied offending in two records of interview in 2009 and 2020.

Charges not proved beyond reasonable doubt.

Verdicts: Not guilty of counts 1 - 6.

Criminal Law Consolidation Act, 1935 (SA) s 56; Juries Act 1927 (SA) s 7; The Evidence Act 1929 (SA) s 13, s 13(7), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; Azzopardi v R (2001) 205 CLR 50 at [51]; R v Weetra (2010) 108 SASR 232 at [67]; R v Cassebohm (2011) 109 SASR 465, [30]; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; IMM v The Queen [2016] HCA 14 at [60]; The Queen v Bauer [2018] HCA 40, considered.

R v B, EW
[2023] SADC 167

1. The accused is charged on Information with the following offences:

   First Count

   Statement of Offence

   Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [The accused] between the 1^st day of November 2008 and the 17^th day of November 2008 at Plympton Park, indecently assaulted [TB] by touching her vagina.

   It is further alleged that [TB] was under the age of 14 years at the time of the offence.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Second Count

   Statement of Offence

   Aggravated Indecent Assault. (Ibid).

   Particulars of Offence

   [The accused] between the 12^th day of June 2012 and the 11^th day of June 2013 at Plympton Park indecently assaulted [TB] by touching her breasts.

   It is further alleged that [TB] was under the age of 14 years at the time of the offence.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Third Count

   Statement of Offence

   Indecent Assault. (Ibid)

   Particulars of Offence

   [The accused] between the 12^th day of June 2013 and the 12^th day of June 2014 at Plympton Park indecently assaulted [TB] by touching her breasts.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Fourth count

   Statement of Offence

   Indecent Assault. (Ibid)

   Particulars of Offence

   [The accused] between the 12^th day of June 2013 and the 12^th day of June 2014 at Plympton Park indecently assaulted [TB] by touching her breasts.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Fifth Count

   Statement of Offence

   Indecent Assault. (Ibid)

   Particulars of Offence

   [The accused] between the 12^th day of June 2013 and the 12^th day of June 2014 at Plympton Park indecently assaulted [TB] by touching her breasts.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Sixth Count

   Statement of Offence

   Indecent Assault. (Ibid)

   Particulars of Offence

   [The accused] between the 12^th day of June 2014 and the 12^th day of June 2015 at Plympton Park indecently assaulted [TB] by touching her thigh.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   The plea

2. The accused pleaded not guilty before me on 13 November 2023 and at his election I heard the trial without a jury.

3. I now publish my reasons for the verdicts I am about to deliver.

   Elements of the offences

   Indecent assault

4. An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent.

5. If it is proved that the complainant was under the age of 14 years at the time of the indecent assault, the circumstance of aggravation will be proved. If that is not proved, but all of the elements of the offence are proved, the charge of indecent assault will be proved.

   Issues in dispute

6. The central issue in dispute was whether the alleged offending as described by the complainant in fact occurred. With respect to counts 2-6, the defence case was, in the alternative, that if each assault was found proved, the prosecution could not prove that it occurred in circumstances of indecency.

   General directions

7. The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.

   [1]     R v G [2015] SASC 186.

8. The general directions were summarised by Lovell J in R v G. They are as follows:

   As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

   The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.

   The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.

   The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.

   I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.

   If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.

9. The accused elected not to give evidence. He was under no obligation to give evidence. No adverse inference may be drawn from the fact that he has exercised that right. In particular, the silence of the accused does not constitute any form of admission, may not be used to fill gaps (if any) in the prosecution case and may not be used as a makeweight in assessing whether the prosecution has proved its case beyond reasonable doubt.[2] The accused’s records of interview, and any admissions or denials I find contained therein, are evidence in the case that I can take into account in determining whether the charges have been proved beyond reasonable doubt.

   [2]     Azzopardi v R (2001) 205 CLR 50 at [51] and R v Weetra (2010) 108 SASR 232 at [67].

10. The accused has been charged with six criminal offences all of which have been tried in the one hearing. I must consider each count separately by reference to the evidence admissible on that count and if I am satisfied beyond reasonable doubt about the accused’s guilt on one count, I cannot use that fact alone to reason that he must be guilty of some or all of the other counts.

    Voir dire

11. The accused filed an application seeking orders for the exclusion of certain passages in the record of interview that was later tendered as P4.

12. I ruled that the following questions and answers could not be led at the trial:

    Q47.Ok. Why do you think [TB] would be saying this

    A.[RB] spoke to me after that and

    Q48.And [RB] is, sorry

    A.My son [RB]

    Q49.Your son, [TB]’s Dad.

    A.Yep, yep. And apparently something did happen at their place earlier, like before he went away or whatever, so some sort of thing after racing one night apparently and on a Sunday morning and apparently [TB]’s got a habit of sleeping in the bed, and he thought it was [VG], so you know, that’s the only thing I can put it down to, but

    Q76.Because I actually interviewed [TB]. She was very descriptive. She said she was awake when you got home that night because her brother had been kicking her and they were in bed together and her brother had been kicking her and had woken her up. She heard your car come in, she heard gates and things like that open. She said the dogs were making a noise and she heard you come into the house. And she said it was around one o’clock (1:00).

    A.Yeah I mean, that’s normal time yeah see

    Q77.So she was actually awake when you got home, not asleep. She’s heard all that and she says not long after that you came into the room wearing your pyjamas and that you’ve touched her and she rolled over so that you wouldn’t touch her any more. You’ve left the room, you’ve come back in, you’ve touched her chest or her ‘boobies’ she said and then she said you’ve touched her ‘v’jayjay’ on her skin, so you’ve put, she said you’ve put your hands under her pyjama pants and touched her vagina and she said she could smell the car smell on you

    A.(inaudible)

    Q78.Now that’s very vivid

    A.Yeah

    Q79.Description

    A.I was there and I come straight home, got undressed, had a shower and went straight to bed

    Q80.My dad was a mechanic and I know all the showering in the world wouldn’t remove that smell from dad’s hands

    A.Yeah. But you know I mean, we don’t play with oil and grease and that sort of stuff, I mean it’s only, you know rubber tyres you pull on and off that sort of gear but I mean yeah, there’s not a stink

    Q81.Yeah, that’s, for a child of her age, that was a pretty graphic description

    A.Mmm 

    Q82.And she’s very very upset that people don’t believe her because she said I was awake and I know what happened to me. So have you got any explanation for that

    A.Nup. Only, so going back to what I said to [RB] said, what he said is almost identical to that

    Q83.What that he touched her vagina

    A.Yeah well he did

    Q84.Under her pyjamas

    A.No, but it was, like he come home from work from the racetrack he said he didn’t even bother to shower he just dived into bed you know, ‘cos you know we go to where we live and he’s gotta go all the way to Morphett Vale

    Q85.I don’t want to, yeah I hear what you’re saying but you’ve got to understand

    A.But he was. Yeah she said it was me, yeah

    Q86.that the major difference here is, I was at Nan and Pop’s house. I was sleeping in the bed with my brother he had just woken me up because he was kicking me in his sleep. I heard Grandpa, I forget the name she called you but

    A.Yeah. Pop usually

    Q87.Pop yep, I heard Pop come home. I heard Pop shut the gate. I heard the dogs bark. I heard Pop come inside

    A.She would’ve, yeah

    Q88.I saw Pop in my bedroom

    A.But the only thing it’s not there is about the dogs barking, ‘cos they don’t

    Q89.But you see there’s a big difference between being at home

    A.Oh yeah I know, yeah

    Q90.And in Mum and Dad’s bed. Huge difference

    A.Yeah

    Q91.Huge difference

    A.Yeah

    Q92.‘Cos she knows, I was at Nanna and Pops

    A.Mmm

    Q93.I was in bed with my brother. Pop had been out. Mum was at the Christmas show, all the same events. Mum was at the Christmas show. She said I was not dreaming, I was awake. Because I was woken up by my brother and I heard Pop come home. Big difference to what happened at home. Huge difference

    A.But I mean, when you’re saying about the smell and that sort of thing I mean, that’s the only thing I can put it down to

    Q94.Right. That she’s mistaken what happened with her dad, and then what, made up all the other stuff

    A.Actually, I don’t, I don’t like to say she made it up but I think, I still think it’s a bit of a set-up to be honest

    Q95.Ok. Well explain, explain the set-up to me

    A.Well I think

    Q96.What’s the set-up

    A.Well I think [VG] wants to go back to Queensland

    Q97.Yeah

    A.And whether you know she, [VG], well she probably already knew about it

    Q98.Yeah ok

    A.And I mean I think you know, it’s just, I mean it’s gone on for ages now but I must admit you know when I first thought about it I thought, no this has gotta be a set-up

    Q99.Alright. Set-up with the view of achieving what

    A.Going back to Brisbane. Her Mum lives up there and that sort of thing and you know I know she does want to go back to Queensland

    Q100.Yeah. The main

    A.You know back with her Mum

    Q101.The main issue I’ve got with that theory is that initially [VG] didn’t believe her daughter

    A.Mmm

    Q102.So that shoots that theory down in flames

    A.Yeah, I mean yeah, that’s like. Otherwise I can’t explain it. I’ve got no idea

    Q103.And the other thing that, the other thing that I’ve interviewed a lot of kids and I’ve seen kids that’ve been coached absolutely, and you can tell. Usually because they’re using language that’s way different to their own language and they don’t tend to get upset. [TB] was extremely upset, and crying and disappointed and, disappointed that no-one believes her, disappointed that she thinks people are making this up, that she’s making this up. Heart-broken in fact. ‘Cos she said, I wouldn’t lie about this. What reason would she have to lie about it. So is there anything you want to add

    A.Like I say, I’ve got no idea

    Q108.So it’s all a bit of a mystery then isn’t it

    A.Mmm (inaudible)

    Q109.So in your view, it’s [TB]’s been coached by her mother

    A.Yeah I suppose it doesn’t sound right but I mean, I don’t really know how it’s been done but yeah I mean

    Q110.Why would she need an excuse to pack up and go interstate

    A.I suppose it just doesn’t look too good if she just packs up and shorts through I suppose

    Q111.Why not, if she’s

    A.She could there’s nothing stopping

    Q112.She not married to you

    A.No, that’s it, no I mean that’s it, but I mean she’s just

    Q113.So why does she need an excuse to go interstate

    A.I mean it’s just that, I don’t know she

    Q114.I mean look really when you think about it, that’s a pretty extreme thing to say

    A.Yeah it is

    Q115.That she would make up a sexual abuse allegation, coach her daughter, and her daughter’s that good an actress that she’ll cry and be really upset, all so that she can go to Queensland. I just don’t follow your reasoning

    A.Yeah

    Q116.Well [RB]’s not even here is he, he’s in Afghanistan still

    A.No. He’s in Afghanistan, yeah. He was over there then, because

    Q117.I just don’t follow the reasoning as to why she would need to go to that extreme just to go interstate if she wanted to

    A.I, I know she rang up oh hell I don’t know, one day during the week, and said to the wife Oh the police have been up and harassing [TB] again rah-rah-rah and going off her tits apparently, so I knew what was coming when you rang, I think you rang yesterday, the wife said you rang, so yeah. So I knew what it was about anyway

    Q118.Harassing [TB], she said we’d been harassing [TB]

    A.Yeah apparently, she said you were at the school like I mean

    Q119.So does that sound like someone that wants to cause trouble and get us involved so she can take the kids to Queensland

    A.Yeah but I mean, ‘cos like the way I was look at it, I mean it’s, she might be first started off said to her now let’s just, we can say Pop did this to you, you know or did this whatever, you know it’s a good excuse to say well we should let the kids live down there you know. We’ll go back to Queensland

    Q120.I just don’t think that it’s happened like that Mr [B]

    A.No, like I say I mean no

    Q121.I can tell you that [VG] hasn’t made it the easiest for us to talk to [TB]

    A.Yeah, I know she rang up

    Q122.She I don’t think she was pushing her into

    A.whatever day it was you know saying they’ve been up there annoying [TB]  again or something or other and carrying on 

    Q123.Because she didn’t want us to speak to her, is the real thing

    A.Mmm

    Q124.So I don’t think she’s been trying to push [TB]  into making all this up

    A.Yeah. But yeah I’ve got no idea I mean

    Q125.No other explanation for what’s happened. Ok.

    A.Nothing at all I mean. I’m at a loss. But I mean [TB]’s not upset. We’ve like my birthday and all that

    Q129.She doesn’t want to

    (inaudible)

    Q130.And I can tell you she was extremely upset when I was talking to her. Started out, lovely little girl, very easy to talk to about this, but got very upset. That no-one believes her

    A.I mean she wasn’t upset or scared or frightened of me at the party the other night, the other day, and we’ve had Mum’s birthday since then

    Q131.How many people were around

    A.Oh a lot, yeah everybody was there sorta thing yeah, all the grandkids whatever you know, they were all there

    Q132.So she might’ve felt safe there

13. I excluded this evidence because the questions asked by the interviewing officer plainly offended the principles set out in Palmer v The Queen (1998) 193 1. If the accused had given evidence, questions of this type would not have been permitted. In the application of these principles, there is no basis to draw any distinction between  the admissibility at trial of answers in a record of interview to questions of an accused about the complainant’s motive to lie or to otherwise explain the allegations and the evidence of the accused. Further, the questions asked at Q 129 and Q 130 were inappropriate because they clearly suggested that interviewer considered the conduct and demeanour of the complainant consistent with her having given a truthful account.

1. The accused also applied for an order that the complainant, TB not be permitted to give evidence of a conversation with her father after she made an initial complaint to her mother in 2008 regarding count 1 and why it was that this conversation subsequently influenced her decision not to make a complaint at the time of the offending in counts 2 – 6.[3] Defence counsel argued that the reference in s 34M (3) of the Evidence Act 1929 (EA) to ‘why the alleged victim did not make the complaint at an earlier time’ should be construed so as to read ‘why the alleged victim did not make the complaint to the person to whom he/she did complain at an earlier time’. Accordingly, because in this case the initial complaint with respect to counts 2 – 6 was to her mother, s 34M EA did not authorise the leading of evidence from TB as to why did not complain to her father (or anyone else) at an earlier time.

   [3] Affidavit of TB sworn 16 July 2020, paragraph [24].

2. Mr Morrison accepted that on his construction of s 34M EA, an alleged victim who did not make a complaint at all, could be asked why he or she did not make a complaint to any one of a number of nominated people, but an alleged victim who did make a complaint to person A, could only be asked why he or she did not complain to person A (as opposed to person B, C or D) at an earlier time.

3. I refused the application. In my view, the evidence that TB had a conversation with her father after the initial complaint, the contents of which influenced her subsequent decision not to complain about the later offending was relevant and admissible under s 34M EA to explain why she did not make a complaint at an earlier time.

4. The final application was for an order preventing the prosecution from leading from TB her opinion that the accused knew she was cornered or that when he touched her breasts it made her feel like he ‘got some sort of gratification’ out of it. I granted that application on the basis that TB could give evidence of what the accused said and did and that any inferences that could be drawn from her evidence, if accepted, were matters for me. TB’s opinion on the matters set out above was inadmissible.

   Overview of the prosecution case

5. The complainant is the accused’s granddaughter, TB. She was born on 12 June 1999 and is now 23 years of age. Around 1 November 2008, when she was 9 years old, she stayed overnight at her grandparents’ home. Her mother was at a function and her father, who was in the Army, was deployed overseas. The accused was out at a speedway racing event assisting a racing car team managed by TB’s father. TB was awake when the accused returned home around 1.00am. She was sleeping in a spare room in a bed with her younger brother. The accused came into the room and touched her on the breasts and vagina.

6. When her mother attended the next day, TB told her mother she did not want to go to her grandfather’s place anymore. The following day, TB disclosed to her mother what the accused had done. The accused was charged, and a prosecution commenced but it was discontinued sometime later.

7. TB did not go over to her grandparents for a while and would only see her grandparents at family functions. This went on for a few years. However, there came a time when she resumed attending her grandparents, but nothing happened for a while. However, after some time, her grandfather started touching her on the breasts both over her clothing or under her clothing and over her bra. Eventually TB complained to her mother about this conduct.

8. The accused was interviewed in 2009 and again in 2020. He denied the offending.

   The evidence

9. I turn to examine the evidence led by the prosecution in more detail.

10. The following items were tendered as exhibits or marked for identification:

    1.Exhibit P1 – Sketch plan of [accused’s home address].

    2.Exhibit D2 – Photographs of [accused’s home address].

    3.Exhibit P3 - Service record of RJB.

    4.Exhibit P4 – Disc of record of interview dated 15 March 2009.

    5.MFI P4A – Transcript of P4.

    6.Exhibit P5 – Disc of record of interview dated 21 October 2020.

    7.MFI P5A – transcript of P5.

    8.Exhibit P6 – Certificate of Record of Magistrates Court of South Australia.

    9.Exhibit P7 – Birth certificate [TB].

    The complainant – TB

11. TB gave her evidence with the assistance of a court companion from the Witness Support Service, the court was closed during her evidence and a one-way screen was erected between her and the accused. I made orders for these arrangements to be in place pursuant to s 13 to s 13 (7) EA I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to TB’s evidence.

12. TB was born on 12 June 1999. She had one sibling, a brother, R, who is six years younger than her. She lived at home until her parents divorced when she was 19 years of age. Her father was in the Army as a permanent member and was posted to Afghanistan for a total time of just over a year between 2008 and 2010.[4]

    [4] T 46-47.

13. Her paternal grandparents, the accused and his wife LB, lived in Plympton Park when she was growing up. A plan of their house was tendered: Exhibit P1. In the years up to and including 2008, TB would visit her grandparents’ home multiple times a week. She said she often stayed there and visited during holidays and on weekends. She said, ‘I’d be there every week pretty much’.[5] Her maternal grandparents lived in Queensland.[6]

    [5] T 48.

    [6] T 49.

14. TB said her mother worked full time at Bunnings in 2008 but her hours varied. If her mother had early or late shifts, she and her brother would stay with her grandparents. Because there were no family members on her mother’s side, there was no one else who could look after them.[7]

    [7] T 49.

15. TB said she got along really well with her grandfather, but this changed after an occasion when she and her brother stayed overnight at their home. On this particular occasion, her mother had a function in the evening and was going to be home late, so she dropped TB and her brother at their grandparents’ house some time quite late in the day. Her brother was three years old at the time.[8] When they arrived, her grandmother was home, but her grandfather was at the speedway.

    [8] T 50.

16. TB’s father owned a race car team with two racing cars. When he was deployed, a group of people took over the sprint car and her grandfather had a truck which was used to transport the cars to and from the speedway track.[9]

    [9] T 50-51.

17. TB spent a lot of her childhood at the track with her father but did not go as often when he was deployed. The two main speedway tracks were Virginia Raceway and Murray Bridge.[10]

    [10] T 52.

18. On this occasion, TB and her brother went to bed around 9.00pm. She said her grandmother was quite strict about going to bed at that time.[11] TB and her brother slept in a queen-sized bed but he ‘slept sideways and moved around a lot’.[12]

    Count 1

    [11] T 52.

    [12] T 53.

19. TB described what happened that night:

    We had gone to bed like normal, that was where we stayed. Me and my brother were both in that room. I heard pop come home at about 1 o’clock. The front door at the end of the house is very loud, it was very creaky so you could hear if anyone walked in the house. I remember hearing my pop go to his room and I was still awake at this point, I had a sore stomach all night so I hadn’t gone to sleep yet. A little bit later I remember my pop coming to the bedroom door, our bedroom that we were staying in and asking me why I was awake.[13]

    [13] T 53, 25-34.

20. TB identified bedroom 1 on P1 as her grandparents’ bedroom. When her grandfather came home, she did not hear any talking. The door to the room she slept in was open but not the whole way. There was no light on in the room; the only light was from the sky. There was no light on in the corridor. Her grandfather came into her room about fifteen to twenty minutes after she heard him come home. She had not said anything during this time and did not call out.[14]

    [14] T 54.

21. TB then explained what happened after the accused came into the room:

    So he came to the bedroom and asked why I was still awake and I told him that I hadn’t felt very well. He – I was facing my side so my back was facing to the door and I had kind of looked over my shoulder to say I didn’t feel well and he has offered to rub my back to kind of see if I felt better I guess.[15]

    [15] T 54, 31-36.

22. TB said there was a little light coming in the door from what she assumed to be the ensuite light. She was facing away from the door at the time he came in.[16] Her head was closest to the wall, and she was lying on her right side facing towards her brother. She had a sheet and quilt cover over her and was wearing pyjamas which was comprised of long pants and a long top. She recalled that they were pink with a pattern. It was summertime.[17]

    [16] T 55.

    [17] T 55-56.

23. When the accused came in, she heard the door push open a little bit and she turned her head over her shoulder to look back at the door. The accused started to rub the lower part of her back from a standing position. TB explained:

    He grabbed my shoulder and rolled me onto my back and then he was rubbing my stomach, skin on skin, and then he proceeded to put his hand up my top.[18]

    [18] T 56-57, 18-20.

24. TB said the accused rubbed her stomach in a circular motion but when asked whether that was over or under her pyjamas, she said it was over her pyjamas.[19] The accused then put his hand up her top onto her breasts and was rubbing them across, and she indicated left to right. She said she had a little bit of breast development at the time.[20] This went on for about a minute, during which the accused said nothing. She tried to roll back to her side, but he pulled her shoulders, so she was down on her back and continued to touch her breasts. He then took his hand out from under her shirt and put it up to the top of her pants which had an elasticised waist band. The accused then put his hand under her pants on top of her underwear and touched the top of her vagina. The accused’s hand was cupped, and his fingers were pointing towards her feet. TB stayed still.[21]

    [19] T 57.

    [20] T 57.

    [21] T 58.

25. The accused then took his hand and put it underneath her underwear onto the top of her vagina. He cupped his hand. TB made a sound but did not say anything. The accused did this for about a minute. TB rolled away at one point, but the accused pulled her back again and began to ‘shush’ her. When she rolled away, contact was broken. His hand was in one spot but ‘just kind of like moving a little bit in that spot’. There was no penetration of her vagina. He was not applying much force. His hand stayed in that position moving in a very small circle but staying in the same spot. He was ‘shushing’ her as if to relax a baby to go back to sleep. The sounds he was making were ‘sh, sh, sh’.[22]

    [22] T 59-61.

26. The touching of her vagina lasted for a couple of minutes, and the accused then took his hand out and just walked out of the room. TB said she could see what was happening because there was a sheer curtain that let a lot of natural light into the room.[23]

    [23] T 61.

27. TB said she could smell petrol in the bedroom. It was a smell she was familiar with from speedway:

    With Speedway a lot of the times even after you’ve come home or showered everything smells like motor oil, and I’d been around it obviously quite a lot growing up.[24]

    [24] T 62.

28. TB went back to sleep after the accused left. The next day was a pretty normal day; she had breakfast at the table with her grandmother and the accused and later in the day her mother picked her up around lunchtime, early afternoon. TB said the accused did not talk to her, which was unusual. She said he sat silently across from her and ignored her the whole day; when her mother picked her up, he did not say goodbye.[25]

    [25] T 62-63.

29. TB said that either that night or the next night, when she was at home with her mother and brother in the loungeroom, she asked her mother if it was normal for someone to touch her private parts. Her mother asked what she meant by this and told her that it was not normal if someone had touched her private parts without her consent. Her mother explained the difference between consenting to it and being an adult. Her mother asked her why she was asking this kind of question and TB told her that ‘pop touched my private parts when I stayed there’.[26]

    [26] T 63.

30. TB’s mother asked her to explain it a little bit more and how and when it happened. TB told her that when she had stayed there on the evening of her mother’s function, the accused came home and touched her breasts and vagina when she was in bed. Her mother then kept asking more questions and asked her if she was really sure that it had happened and that she had not had a dream.[27]

    [27] T 63-64

31. TB’s mother told her she would have to call her father and ‘Nanna’ to talk about it further but said she would have to email her father first because that was how she had to contact him and ask him to ring her.[28]

    [28] T 64.

32. TB spoke with her father who asked her what had happened. He continued to ask her if she was definitely sure, whether she had dreamt it, imagined it and ‘just kept like enforcing like are you really sure about this’. TB was very close to her father at the time. [29]

    [29] T 64, 26-27.

33. A few days later, her mother took her to the police station, and she was interviewed on video.[30]

    [30] T 64.

34. When her father returned from deployment, he continued to question her about whether she was definitely sure it had happened and asked her the same questions he had asked previously. He told her that if he found out it was true and that she was not telling lies, he would hurt the accused.[31]

    [31] T 65.

35. After the occasion when the accused touched her, she did not see her grandparents as much as she used to:

    I never went there again, even with just my brother or by myself, I only attended things that were family, like Christmas or birthdays, I attended all of those things still, or they came to like my graduation, things where we were all a big group, but I never went there just by myself again.[32]

    [32] T 65.

36. TB said this went on for a year or two. After her father went back on deployment and there was no one else to babysit her and her brother one day, TB’s mother told her she would have to go to her grandparents because they were the only people who could look after them. This was in 2010 or 2011. TB said she had a ‘big meltdown’ about it but went to her grandparents’ house. Nothing happened and the accused ignored her the whole time. He did not talk to her at all.[33]

    [33] T 65-66.

37. After this occasion, she and her brother started to go to their grandparents’ house more frequently. She became a lot more comfortable going back and felt fine for this to continue. The frequency of visits was about the same as it had been before the accused had touched her.[34]

    Count 2

    [34] T 65-66.

38. This changed one day when she was at her grandparents’ house and her grandmother was out hanging up the washing. Her brother was in the house and probably in the lounge room. TB said the accused cornered her towards the back of the kitchen where the cabinets were and put his hand on her breasts. TB marked on P1 where this occurred. She was facing towards the dining room because she was planning to leave the kitchen. The accused was facing back into the kitchen. She said, ‘he walked straight up towards me and put his hands under my top and laughed, while grabbing onto my breasts’. His hands were on top of her bra, and he cupped ‘around’ both of her breasts and squeezed onto them more than once. This went on for about thirty seconds and he laughed but did not say anything. By this time, she had returned to almost weekly visits but had not slept overnight there.[35]

    [35] T 67-69.

39. TB did not tell anyone what happened because nobody had believed her the first time and she was afraid of what her father would do if he found out.[36]

    Count 4

    [36] T 71.

40. A short period of time after the first occasion of breast touching, the accused touched her a second time. She was just outside the lounge room near the bookshelf near the front door. She was 12 or 13 years of age. She explained what happened:

    I was walking out of the lounge room and he was walking into the lounge room, so was cornered again in that lounge room. I don’t know where my Nanna was at that point. She wasn’t in that room with me, so she couldn’t see anyone. And I was cornered again. This time was a little bit different, I was – he walked up to me and grabbed on top of my shirt, my breasts, and really quickly, and just laughed, and then let me walk past him.[37]

    [37] T 71-72.

41. TB said that the accused stopped to block her from walking out, squeezed her breasts ‘really fast’ and then walked past her. He did not say anything.[38]

    Count 3

    [38] T 72.

42. There was a third occasion of touching a few months later. Although she had been to her grandparents’ house in between the second and third occasion, she had learnt to stick with an adult or someone else in the house.[39] TB was in the study room but moving to the kitchen and the accused was moving from the kitchen into the study room. The accused stopped her at the door so she could not walk past him and put his hands up her top again and on top of her bra. He squeezed one or two times for about fifteen seconds. He did not say anything but just laughed. She was about thirteen years old at the time. She could not recall the precise reason she was there on any of the three occasions.[40]

    Count 5

    [39] T 74.

    [40] T 73.

43. TB described another occasion of touching at the house. She was coming out of the toilet and the accused met her at the end of the corridor. The corridor was narrow, and she could not walk around him. He put both his hands up her top and was holding onto her breasts with both hands and playing with them and moving them around. This went on for about a minute. It was not accidental contact. She told him she wanted to get past and asked if he could move. The accused laughed as he put his hand up her shirt. TB said he laughed every time he touched her.[41]

    [41] T 74-75.

44. Her father was in the lounge room at the time. TB did not tell him what happened because he had previously told her that he would hurt the accused.[42]

    Count 6

    [42] T 75.

45. TB said there was one further occasion of touching at her grandparents’ home. She was on the grassed area in the front yard of the house with her brother sitting at a little table. Her grandmother had gone to the shops. TB was wearing little denim shorts. She was 14 years old, and her brother was about 8. Her brother was sitting on a chair to her left.[43] The accused put his left hand around her right leg from the top of her thigh down to the inside of her leg. She and the accused were sitting under the table, and she could not see his hand. At the time the accused touched her, he asked her brother to go and play with his toys inside. The touching lasted about thirty seconds because when her brother got up to go and play with the toys inside, she got up and followed him to the sandpit and then into the house.[44]

    [43] T 76.

    [44] T 78

46. The accused got up from the table when TB and her brother went into the house and told her brother he could go and play with his toys. TB told her brother he could watch cartoons with her, so they stayed in the loungeroom, and the accused walked out. Her grandmother came home about half an hour later.[45]

    [45] T 79.

47. TB said that she did not return to her grandparents’ house after this occasion. She said there were other occasions of touching but she did not remember them in detail. She was then asked what happened after the occasion when the accused touched her on the leg:

    I had gone back to school pretty normally, and I remember it kind of just all became a lot and I realised that I needed to get out of that situation, and I messaged my mum. When I was at school, we were in a Japanese class and I remember texting my mum, telling her I needed to speak to her and I needed to tell her something.

    …

    I messaged her telling her I needed to tell her something, and she had replied and asked me what I needed to tell her. And I told her along the lines of ‘I can’t keep going back there because when I go back, he touches me’.[46]

    [46] T 79, 27-33; T 80, 2-6.

1. TB then spoke to her mother in person. She told only her mother and said that it was unsafe, and it kept happening and she could not keep doing it. TB asked her mother to promise not to tell her father and to just never send her back there and to make up excuses for why she could not keep going there. She never went back there again.[47] TB used a phone with a QWERTY keyboard to message her mother. She no longer had that phone and she last had it about 8 or 9 years before.[48]

   [47] T 80.

   [48] T 82.

2. TB said that after going to the police in 2008, she did not meet with lawyers about going to court and was never asked if she wanted to go to court or not. She said, ‘to me it just went away, it was never spoken about again’. She said the only option she ever had was if she was okay with going back to her grandparents’ house. Her mother gave her that option.[49]

   [49] T 81.

3. TB said that her Aunty L was present when the accused touched her as she was leaving the study to go into the kitchen. Aunt L was her father’s sister and TB was ‘really good’ and they did everything together. TB did not tell Aunt L about what had happened because she knew that nobody believed her.[50]

   [50] T 82.

4. When the accused touched her on the breasts as she left the toilet, her father was in the house. She did not tell him what happened because as far as she knew no one believed her.[51]

   Cross-examination

   [51] T 81-82.

5. TB identified photographs of her grandparents’ house: Exhibit D2. She identified the hallway, the laundry, her grandparents’ bedroom, and the bedroom she would sleep in. The photographs also showed the view from the loungeroom looking into the computer room.[52] Photograph 8 showed the gap between the lounge and the study. Photograph 9 was taken from the study room looking back out to the lounge room. Photograph 10 was taken in the kitchen looking into the study room.[53]

   [52] T 109-112.

   [53] T 113.

6. TB agreed that the archway entrance to the study did not have a door.[54] TB agreed that the photographs depicted the house the way it appeared in 2008 and in 2013 to 2015.[55]

   [54] T 114.

   [55] T 115-116.

7. TB agreed that when she was around 9 years of age her grandfather worked full time for the defence force at Warradale Barracks. TB agreed that her Aunt L would quite often babysit her and her brother.[56] When she babysat, TB and her brother would go to her house. TB also said that often all the cousins would go together to their grandparents’ house.[57]

   [56] T 116.

   [57] T 116-117.

8. TB rejected the suggestion that in the period up to 2008, she only visited her grandparents infrequently. TB agreed that when she did stay over, it was her grandmother who predominantly cared for her and her brother.[58]

   [58] T 117.

9. On the occasion that TB alleged her grandfather touched her in the bed in which she was sleeping with her brother, she said that her brother had been kicking her in his sleep. She agreed he would wriggle around bed and sleep sideways on occasion. That night, she had to move him back into place, but he did not wake up. TB said that while her grandfather was touching her and she was rolling over and being pulled onto her back, her brother stayed asleep.[59]

   [59] T 119-120.

10. TB agreed that on this occasion, the incident was a continuous one and it was not the case that her grandfather came into the room, touched her, left the room, and then returned.[60] TB agreed that she told police on 11 March 2009 that her grandfather was patting her back and then left the room for ten or fifteen minutes. She said that as far as she was aware, her grandmother was asleep, but she did not go out of her room and check if this was the case. There was nothing to say that she was awake.

    [60] T 121.

11. TB agreed she told police on 11 March 2009 that every time her grandfather came in her grandmother was asleep and that he would go back in and she would kind of wake up a bit and every time she was asleep he would come back in. She said she must have assumed this because she had not seen her awake.[61]

    [61] T 122-124.

12. TB said that the accused did not say anything to her before he left the room and did not at any time tell her not to tell anyone. TB said she did not think she spoke to her father on the same night she spoke to her mother because her mother had to email her father to ask to speak to him. TB agreed she had given a statement to police on 16 July 2020, 4 November 2022 and 11 November 2023. She agreed that she did not mention in any of those statements the fact that her mother had to email her father in Afghanistan. TB agreed that she had spoken to her mother about the matter since 16 July 2020 but not in detail. She denied discussing the topic of emailing her father.[62]

    [62] T 124-126.

13. TB said that after the incident in the bedroom in 2008 and between 2008 and 2009 she saw her grandfather at family events and things like that. TB agreed that she told police that she did not see the accused or her grandmother until the Christmas school holidays in 2010 and 2011.[63] She agreed that was different from the evidence she had given.[64]

    [63] T 127.

    [64] T 128.

14. TB disagreed with a suggestion that after the incident in 2008 her contact with the accused remained infrequent.[65] TB agreed she had given evidence that she started going back to the accused’s house in about 2010 or 2011 and this was when she was 11 and 12. TB agreed that at a proofing on 1 September 2022 she told a solicitor and police officer in the presence of a witness assistance officer that she only started going back to the accused’s house when she was around 14 years of age.[66]

    [65] T 130.

    [66] T 130-131.

15. TB said that the breast touching started when she was about 12 or 13 in either 2011 or 2012.[67] TB said this had not happened before that and not when she was 8 or 9 years of age. TB said this was not something that was regularly occurring when she was 8 or 9 years of age.[68] TB agreed that she went to the Christies Beach Police Station on 12 November 2008 with her mother to make a report about the accused’s behaviour. It was put to TB that she told the police officer she spoke to that her grandfather often touched her on the chest when other relatives or friends were not watching or were not present. TB said she did not remember saying that.[69]

    [67] T 132.

    [68] T 133.

    [69] T 133-134.

16. TB said that the first occasion of breast touching in the kitchen occurred towards the back of the kitchen but was not an area that a person would be in if they were walking out of the kitchen to go into the loungeroom. TB agreed that in her statement to police on 16 July 2020, she said that the accused walked into the kitchen from the lounge room at the same time as she was walking out of the kitchen into the lounge room and that he approached her and with both of his hands grabbed her breasts on the outside of her clothing. It was put to TB that this was a different location from the one she said in evidence. TB disagreed and said she spoke about that location when she mentioned it happened in the study.[70]

    [70] T 137-138.

17. TB agreed that in her statement of 16 July 2020 she told police that the accused had grabbed her breasts on the outside of her clothing, and this was different from her evidence that he had touched her breasts under her clothing.[71]

    [71] T 139.

18. TB said that after the first occasion of breast touching, the accused did not tell her not to tell anyone.

19. TB said the second occasion of breast touching involved the accused walking up to her and grabbing both of her breasts on top of her shirt really quickly and laughed and this occurred just before the loungeroom entrance.[72] TB agreed that in her statement of 16 July 2020 she told police that the accused had placed only one of his hands under her top and onto her bra on her left breast.[73]

    [72] T 139.

    [73] T 139-140.

20. TB said that she had a good relationship with Aunty Libby and would spend a lot of time with her when she was younger. She would babysit TB and they played netball together later in life. They had been close for many years, including her early teenage years.[74]

    [74] T 140.

21. TB agreed she had described in evidence the incident in the study as involving the accused putting his hand up her top and both hands on both breasts over her bra, squeezing them one or two times. TB agreed that in her statement to police on 16 July 2020, she told them that on this occasion that the accused had put both of his hands on top of her clothing and grabbed her breasts, squeezed and let her go past. She agreed this was different from her evidence.[75] TB said Aunt L was there, but she did not tell her because she did not want her father to find out.[76]

    [75] T 140-141.

    [76] T 141.

22. TB confirmed that the incident that occurred near the toilet involved the accused putting both of his hands up her top, holding onto her breasts and playing with them for about a minute. TB agreed that in her statement to police on 16 July 2020, she said that the accused put both hands up her top, squeezed both breasts before letting them go and letting her walk past. TB said that was slightly different in so far as giving them a squeeze and holding for a minute was slightly different.[77]

    [77] T 142.

23. TB recalled going to the Christies Beach Police Station on 4 April 2019. She agreed telling a police officer that her grandfather would often isolate her in one room of the house, corner her in one part of the room and laugh as he deliberately touched her breasts, grabbed her inappropriately around the waist and that this touching occurred over the clothing.[78] TB agreed that the aspect of that account that was different from her evidence was that the touching was over the clothing, rather than under the clothing but over the top of her bra.[79]

    [78] T 142-143.

    [79] T 143.

24. TB confirmed that the occasion when the accused touched the inside of her thigh involved contact with the inside of her thigh. She agreed that he was not trying to touch her but actually touched her. TB agreed that she said in her statement dated 16 July 2020 that the accused kept trying to touch her thigh from underneath the table she was sitting at, and this was different from her evidence.[80]

    Re-examination

    [80] T 146.

25. TB said the first time she went to the police station they did not explain the process to her, and the police officer did not read anything back to her. The police officer was making notes, and the process was less than an hour. The recorded interview that took place later was longer and she was asked to be very careful.[81]

    [81] T 147-148.

    TB’s mother, VG

26. VG married RB in November 1988 and separated in April 2018. In 2008, RB was deployed with the Australian Army to Afghanistan. He was away for a total of two years. In 2008, TB was 8 years of age and R was 3 years of age. During the period of RB’s deployment, VG’s mother-in-law and sister-in-law helped her with looking after the children. VG’s mother-in-law had her son R most days of the week when VG was working at Mitre 10 Hallett Cove. She was working 30 hours a week.[82]

    [82] T 155.

27. TB would also go to her grandparents’ home to visit them.[83] She said this could be once a month or it could be multiple times a month depending on her work or school holidays. R was with his grandmother most days of the week because he was not at school or in childcare at that time. VG’s sister-in-law would have TB and R every second weekend. VG sent the children to their aunt’s house rather than their grandmother’s because their Aunt had children the same age and they could play together. There were occasions when TB and R slept over at their grandparents’ house.[84]

    [83] T 155.

    [84] T 155-156.

28. In November 2008, VG had a hardware awards night to attend. Her sister-in-law was unable to look after the children so she asked her mother-in-law if she could. VG dropped the children off early afternoon so she could go home and get ready. It was a Saturday night. She collected the children early afternoon on the Sunday. That night when she was getting ready to put TB to bed, TB told her that the accused had touched her:

    I tried to get her to explain what she meant by touched her and she said that – and she gestured to her chest and said ‘He touched me over my clothes on my chest’ and I said ‘Well did he touch you anywhere else?’ and she goes, ‘I don’t want to talk about it’.[85]

    [85] T 157, 29-33.

29. TB then said that she did not want to ever go back there again. She told VG that the accused smelt like a race car.[86] When TB spoke with VG, she was really upset and was crying. She spent hours at night crying. VG emailed her husband, and he called her the next day. Within a week they went to the police.[87]

    [86] T 157.

    [87] T 158.

30. VG said that she became aware of more recent allegations years later. She recalled TB telling her that she wanted to go to the police station and make another statement, but she could not remember what it was about or if there was anything different.[88] VG said her memory from 2019 was not great and she had some black spots.[89]

    Cross-examination

    [88] T 158.

    [89] T 159.

31. VG said that her children called her sister-in-law Aunty Libby. She was the default babysitter for the weekends. If she was not available, VG would ask the grandparents if they could babysit.[90]

    [90] T 159.

32. VG agreed that in the lead up to 2008, the children would not go to their grandparents to be babysat very often and would not be there every week.[91] After TB made the disclosure in November 2008, R would still go to his grandparents and TB would go there now and again as long as R was there at the same time. That was every now and again but not every week.[92]

    [91] T 159-160.

    [92] T 160.

33. In the conversation on the Sunday following the sleepover in November 2008, TB did not tell VG that the accused had touched her vagina. When VG spoke with RB, TB was not present during that conversation.[93]

    [93] T 160.

34. When VG was working at Mitre 10, she mostly worked Monday to Friday from 9.00am to 2.30pm and then every second weekend so she would have a day off during the week. On most occasions she was able to pick up TB from school. She only needed to have TB looked after during the week if it was school holidays and TB would go to OSHC or friends’ houses or family.[94]

    [94] T 160-161.

35. VG said that during the conversation with TB she did not want to push TB at all at that time.[95]

    Re-examination

    [95] T 161.

36. RB would speak with TB every chance he could, and the children would speak with him every time he called. There was constant contact.[96]

    [96] T 162.

    Detective Brevet Sergeant Thomas Matthew McKenzie

37. Detective McKenzie identified a certificate of record from the Magistrates Court of South Australia in relation to the first count on the Information: Exhibit P6. This certificate was tendered as a business record. That certificate established that the accused was charged with aggravated indecent assault, contrary to s 56 (1) CLCA and first appeared in court on 24 August 2009 at which time he was placed on bail with a condition that he was not to approach or communicate with TB.

38. The accused appeared in court again on 28 August 2009 and the matter was adjourned ‘for decs’ with bail to continue. The accused appeared again on 2 October 2009 and the matter was adjourned ‘for further declarations’ and it was noted ‘DPP to proof complainant’. The matter was next before the court on 17 November 2009 at which time no evidence was tendered and the matter was dismissed for want of prosecution.

39. The accused was interviewed on 15 March 2009. The audio-visual record of that interview was tendered and played: Exhibit P4. I was provided with a transcript as an aide memoire: MFI P4A. The following is a summary of the accused’s responses in that interview:

    ·On 2 November 2008, TB and R stayed at their place because VG was at a Christmas ‘do’ or something like that. The accused’s wife stayed home and looked after the children, and he went racing.

    ·He arrived home around 1.00am, had a shower and went to bed.

    ·TB and R were in the kid’s bedroom about 5 or 6 metres down the passage. They were probably sleeping in the same bed because they usually do.

    ·He did not go into the room at all when he got home to check on them or say goodnight because he is ‘not that kind’.

    ·The allegation that he touched TB on her vagina and breasts was put to him and he said he did not go anywhere near her. He then said, ‘to be perfectly honest this happened before with Vicki the same sort of thing and Vicki’s slept in the same room with the kids. I remember one, it is a hell of a queen sized bed I think it is, it is a hell of a big bed and they also sleep in the same bed’. He explained that what he meant when he said it had happened before was that they had stayed at his house before.

    ·He said the nearest he would have got to the room was to throw his dirty clothes into the laundry. There was an en suite in his bedroom.

    ·His wife spoke to him when he got home and asked how did the night go and she was awake the whole time.

    ·He said that when he first heard about it he thought it was a set up because VG was not happy there and RB was away and she was breaking her neck to get back to Queensland. He thought at first it was a joke and then he thought no, it was a set-up. VG was going back to Brisbane for Christmas and he thought it is an excuse to say something has happened, let’s pack up the children and go and shoot through.

    ·He said it definitely did not happen. The closest he got to their room was about 5 or 6 metres. Other nights VG had slept over she could have quite easily been in the room as well for all he knew. It was not until the next morning that he work up and knew that VG was not there. When they stayed there other nights, at that time of the morning he would not go down there in case he woke them up.

    ·He wore normal pyjamas to bed. He could not remember which ones he wore but they usually had long pants and a shirt style top with short sleeves.

    ·When he got home he put the roller door up, drove in and put the car away and then went into the house. His dogs would come out to meet him but they did not bark because they know him.

    ·He would get quite dirty when he was out at the race track and said he could have smelled of methanol. He had not been drinking because he was driving the truck.

    ·He had seen TB since at his birthday on the 27^th about a week ago. She had not been staying at his house. He did not know why.

40. Detective McKenzie interviewed the accused on 21 October 2020. The audio-visual record of that interview was tendered and played: Exhibit P5. I was provided with a transcript as an aide memoire: MFI P5A. This interview occurred in the accused’s home and the accused gave permission for Detective McKenzie to walk through the house and sketch a plan of it. This plan was P1. The following is a summary of the accused’s responses in the record of interview:

    ·When the allegation in count 1 was put to the accused, he said that they had been through all this before and as far as he knew it was all over and done with. His son spoke to the lawyer, he was asked to leave and then it was just all dropped and it never went any further.

    ·He said he had been to the speedway and come home and it was not until a few days later that VG came forward and said that TB came up with what she said had happened.

    ·He said that it was that long ago that he could not remember but his wife was a such a light sleeper and if it had happened she would have known when he came home and if he had disappeared out of the room she would have known and wondered what he was up to. It was not as if he was sneaking around.

    ·When it was put to him that TB started coming over a couple of years after the first incident when she was 11 or 12 and that she alleged he cornered her around the house and groped her breasts. He said that they had not had anything to do with them unless they asked them to go somewhere or do something. He doubted that that she would have ever been at their place a couple of years later.

    ·TB would sleep in a room on her own when she stayed over but it was so long ago he said they probably did not stay a lot.

1. Detective McKenzie contacted RB but he did not wish to assist police or provide a statement. The birth certificate of TB was tendered: Exhibit P7.

   Cross-examination

2. Detective McKenzie was aware that TB said that her brother R was present for some of the breast touching allegations. He did not approach R for a statement. He was aware that Aunt L was a person referred to in the declarations and that the complainant alleged she was present for at last one of the incidents. Detective McKenzie did not approach her for a statement.[97]

   [97] T 168.

   The defence case

3. The accused did not call or give evidence, but an agreed fact was tendered: Exhibit D8. The agreed fact was as follows:

   The records of SAPOL dated 12 November 2008 in part record a complaint relating to [TB] in the following terms: that the accused “often touches her on the chest when other relatives or friends are not watching or are not present. He never touches her there when other people can see what is happening.”

   Discreditable conduct evidence

4. By notice dated 25 August 2022, the prosecution advised its intention to adduce the following discreditable conduct at the trial:

   1.The charged acts of sexual misconduct (counts 1-6) as against each other;

   2.Uncharged acts of sexual misconduct at the time of the offending alleged in count 1, namely rubbing of TB’s breast and a cupping of TB’s vagina, in relation to count 1.

5. The evidence was asserted to have a permissible use under s 34P(2)(b) EA as circumstantial evidence demonstrating a specific sexual attraction to TB and a tendency to act in furtherance of that attraction.

6. The accused objected to the admission of that evidence on the basis that it did not have strong probative value having regard to the issues in the trial and was in any event general propensity evidence and the probative value did not outweigh its prejudicial effect. Defence counsel relied upon IMM v The Queen [2016] HCA 14 at [60] – [64]. Defence counsel also argued that count 1 was not admissible for propensity purposes with respect to counts 2 – 6 because of the significant period of time separating the commission of that alleged offence from the remaining charges and the disparate nature of the allegations.

7. The decision in IMM v The Queen related to the admissibility of a sole uncharged sexual act in a trial of a course of sexual abuse alleged to have commenced when the complainant was four years of age and continued until she was 12 years of age. In this matter, the prosecution does not assert that the uncharged acts surrounding count 1 are admissible for propensity purposes with respect to counts 2 – 6. Further, in The Queen v Bauer [2018] HCA 40, the High Court held:

   IMM may be distinguished from a case like the present, where what is in issue is a course of offending comprised of a succession of uncharged sexual acts, of generally a similar kind to the charged acts, interspersed between the charged acts throughout the alleged period of offending. Thus, despite the apparent generality of the dicta in IMM, henceforth it should not be regarded as implying any departure from the majority opinions expressed in HML or, therefore, as contrary to the reasoning in JLS, MR, PCR, Velkoski or Gentry as to the high probative value which is ordinarily to be attributed to a complainant's evidence of uncharged sexual acts. IMM should be understood as confined to the particular, relatively exceptional circumstances of that case.[98]

   [98] [55].

8. The Court in Bauer also held:

   Henceforth, it should be understood that a complainant's evidence of an accused's uncharged acts in relation to him or her (including acts which, although not themselves necessarily criminal offences, are probative of the existence of the accused having had a sexual interest in the complainant on which the accused has acted) may be admissible as tendency evidence in proof of sexual offences which the accused is alleged to have committed against that complainant whether or not the uncharged acts have about them some special feature of the kind mentioned in IMM or exhibit a special, particular or unusual feature of the kind described in Hughes.

   Since proof of an accused's commission of a sexual offence against a complainant on one occasion makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, at least where the two are not too far separated in point of time, where an accused is charged with a number of counts of generally similar sexual offences against a single complainant the several counts may ordinarily be joined in a single indictment and so tried together. In such cases, evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act.

   The juridical basis of cross-admissibility of evidence of charged acts and of the admissibility of evidence of uncharged acts in such cases rests on the "very high probative value" of that kind of evidence which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person.[99]

   [99] [48] – [51]. Footnotes omitted.

9. In upholding the trial Judge’s decision to admit the evidence, the Court in Bauer said:

   In this case, in contrast to Hughes, there was only one complainant, all of the charged and uncharged acts were alleged to have been committed against her, and none of them was far separated in point of time or far different in nature and gravity from the others. Here, therefore, there was no need of any "special feature" in order to render the evidence of one charge cross-admissible in proof of the other charges, or to render the evidence of uncharged acts admissible in proof of the charged acts. Here, as in HML, JLS, MR, PCR and Gentry, the "very high probative value" and thus admissibility of the evidence of each charged and uncharged act rested on the logic that, where a person is sexually attracted to another and has acted upon that attraction by engaging in sexual acts with him or her, the person is the more likely to seek to continue to give effect to the attraction by engaging in further sexual acts with the other person as the opportunity presents.[100] 

   [100] [62].

10. The strong probative value, and thus the cross-admissibility of counts 2 – 6, is the logic that where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person. I am satisfied that the evidence meets the criteria in s 34P (2) (a) and (b) and that it is therefore admissible for the permissible purposes identified, namely as relationship or context evidence and also evidence of the accused’s sexual attraction to TB and his preparedness to act on that sexual attraction when the opportunity arises. I am also satisfied that, in the forum of a trial by Judge alone, the permissible and impermissible uses can be kept separate and distinct such that there is no appreciable risk of it being used for an impermissible purpose.

11. The uncharged acts alleged to have occurred at the time of the commission of the offence alleged in count 1 are allegations of uncharged sexual offending. They have probative value that outweighs their prejudicial effect because they provide the setting in which the charged offence occurs and are an essential part of the contextual narrative. I am satisfied that this evidence is also admissible pursuant to s 34P (2)(b) as evidence of the accused’s sexual attraction to TB and his willingness to act upon that sexual attraction when the opportunity arose. I am also satisfied that, in the forum of a trial by Judge alone, the permissible and impermissible uses can be kept separate and distinct such that there is no appreciable risk of it being used for an impermissible purpose.

12. I turn now to consider the admissibility of the conduct the subject of count 1 with respect to counts 2 – 6. The offence the subject of count 1 is alleged to have occurred in November 2008 almost 4 years prior to count 2 and almost 6 years prior to count 6. Thus, the charges are separated by a significant period of time. The conduct alleged in count 1 is of a different nature from the conduct alleged in counts 2 – 6. However, there is an explanation on the evidence for the delay and the differences in the alleged conduct that means these factors do not detract from the strong probative value of this evidence. That explanation is the prompt complaint by TB and the subsequent prosecution of the accused for aggravated indecent assault. Both of these events led to a change in the relationship between TB and the accused, such that the opportunities for the accused to act upon any sexual attraction to TB ceased. Further, when the prosecution discontinued and following a period of time visitation resumed, it was in a modified form and did not involve sleepovers. Generally, other people were present.

13. In those circumstances, the opportunities were more limited and, as a matter of logic and human experience, it is plausible that, if such sexual attraction existed, the accused might bide his time for fear of another complaint. Accordingly, I am satisfied that, notwithstanding the significant delay and different circumstances and mode of alleged offending, count 1 is admissible vis-à-vis counts 2 – 6 on the basis that it explains why TB did not complain immediately, and is strongly probative of the accused’s sexual attraction to TB and his preparedness to act upon that sexual attraction when the opportunity and circumstances permit. In this case, the opportunity and circumstances necessarily include a consideration of the likelihood of the accused suppressing for some time the desire to act on his sexual attraction because of the earlier complaint and prosecution.

14. I am also satisfied that, in the forum of a trial by Judge alone, the permissible and impermissible uses can be kept separate and distinct such that there is no appreciable risk of it being used for an impermissible purpose.

    Complaint evidence

15. There was evidence of initial complaint in relation to count 1. That evidence was admissible pursuant to s 34M EA for the following purposes:

    1.To explain how the allegations came to light.

    2.To demonstrate consistency of conduct of a complainant such that it buttresses her credibility because of the circumstances in which she made the complaint and its content and any consistency between it and her evidence about the relevant events. It cannot be used for testimonial purposes.

    3.If the contents of the complaint are inconsistent with the complainant’s testimony, that inconsistency can be taken into account in evaluating the complainant’s evidence, either as to reliability or credibility or both.

16. There was evidence of initial complaint in relation to counts 2 – 6. That evidence was admissible for the same purposes to which I have referred.

17. In this case, it is necessary to consider whether (a) there is a conflict in the evidence of TB and VG regarding the contents of each complaint and (b) if so, whether that conflict can be resolved and (c) if it can, whether it should be resolved in favour of an acceptance of the account given by TB or VG. That is a matter to which I will return.

    Closing submissions

    Prosecution

18. In his persuasive address, Dr Salu invited me to have the experience of memory at the front and centre as I work through the evidence. Dr Salu said that if I wanted to find inconsistencies and a reason to reject the complainant then I would.

19. Dr Salu said it was not in dispute that RB was deployed to Afghanistan from 27 September 2008 until 4 July 2009 and that her mother required help in looking after the children. That help came from her mother and sister-in-law. It was not disputed that TB and R stayed overnight at their grandparents in November 2008 when VG was at an awards night.

20. Dr Salu argued that the proved prior inconsistent statement by TB that the accused had come in and out of the bedroom on the occasion of count 1 was not important, because what had stayed with TB was the memory of the touching and the smell. In addition, there was a prompt complaint which, on TB’s account, was consistent with her testimony and made to a person to whom one would expect her to complain. Dr Salu said that VG’s account revealed that TB was distressed and after disclosing touching on the chest, she would not give any further detail.

21. Dr Salu said that the proved prior inconsistent statement made by TB when she first attended the police station on 12 November 2008 was an allegation that had gone nowhere. TB did not give evidence that what she told police in fact happened. Dr Salu said that this allegation was something that had been overtaken or overwhelmed by what had occurred in the bedroom.

22. Dr Salu said that the certificate of record simply established that the prosecution of the accused for aggravated indecent assault was discontinued but there is no evidence as to the reason for that. TB said she did not know and was not involved in that process. All TB took from the process was that she was not believed and if her father found out the accused had behaved in the way alleged, he would hurt him. The bail agreement prohibited the accused from contacting or communicating with TB from 24 August 2009 to 17 November 2009.

23. Dr Salu said that the distancing of the two families for a period of time as described by TB made sense because of the bail agreement and in any event her reluctance to go back there. She was lulled into a false sense of security when she returned at her mother’s request, and nothing happens for some time and the accused ignored her.

24. Dr Salu said that the record of interview reveals that the accused laughs when asked something or when he is challenged. It is one of his idiosyncrasies. Accordingly, TB’s description of him laughing whilst touching her breasts finds some support by the display of this mannerism in the record of interview.

25. As to the proved prior inconsistencies in TB’s account of counts 2 to 6, Dr Salu said they were immaterial because she was consistent on the allegation of grabbing of the breasts and the laugh and provided a specific location for each occasion. Dr Salu said the touching of the breasts, whether over or under clothing, had a sexual connotation and was inherently indecent.

26. Dr Salu conceded that the conduct constituting counts 2 to 5 was brazen but that was explicable by reason of the accused’s confidence that TB would not be believed. He was charged and the matter was discontinued. Dr Salu urged me to find that the accused was emboldened by this but waited for a sufficient time to pass for the normal family relationship to resume before he acted upon his continuing sexual attraction to TB. The conduct, whilst brazen, was fleeting and thus the risk of detection diminished. It was for this reason that count 1 was cross-admissible on the remaining counts.

27. Dr Salu argued that the evidence that TB told police the accused ‘tried’ to touch her on her thigh was not in fact an inconsistency, it was a turn of phrase.

28. Dr Salu ended his persuasive address with the submission that TB was credible and reliable, she made a prompt complaint and her account hung together and was compelling.

    Defence submissions

29. Mr Morrison started his address by contending that following scrutiny of TB’s evidence with care, it was simply not capable of proving any of the offences beyond reasonable doubt. This was because each count was beset by inconsistency going to the heart of the allegation. The individual and cumulative effect of those inconsistencies on TB’s credibility was such that the verdicts must be not guilty.

30. Mr Morrison contended that the accused had suffered a significant forensic disadvantage by reason of the delay in prosecuting the charges, particularly count 1. In his 2020 record of interview, the accused said that he could not recall his movements or whether TB was attending at his house during the relevant period. Further, the telephone upon which TB made the complaint to her mother no longer existed. Accordingly, the accused was deprived of the ability to test TB’s account of the complaint.

31. Mr Morrison then analysed the evidence on each count in order. At the outset he noted that the evidence of TB as to the frequency with which she was at the accused’s house prior to count 1 (every week) was at odds and irreconcilable with VG’s evidence. Upon the resumption of contact, TB’s evidence of the frequency with which she was at the accused’s house (leading up to and including the period during which the offences in counts 2 to 6 were alleged to have been committed) was again at odds with VG’s evidence.

32. Mr Morrison said that TB’s account to police of count 1 was significantly inconsistent with her evidence. She was firm in her evidence that the accused’s attendance in her bedroom was a continuous one and that he entered the room, touched her breasts and vagina and then left. She did not see him again until the next day.  However, in 2009 she told police that he was patting her on the back and left the room for ten to fifteen minutes before returning and her grandmother was awake when this happened. Mr Morrison then said TB’s evidence that this was an assumption was troubling.

33. Mr Morrison said that TB’s evidence of the smell of the accused was not esoteric knowledge and the prosecution had not suggested otherwise.

34. Mr Morrison said that the offending alleged in count 1 was brazen with the accused talking with TB whilst in the doorway loud enough for each to hear but without any suggestion that he told her not to tell anyone.

35. Mr Morrison said that the assessment of the extent to which the complaint demonstrated consistency of conduct, required an evaluation of the inconsistency between the account of VG and TB of the terms of the complaint. TB said that she told her mother that the accused had touched her breast and her vagina. VG said TB told her that the accused had touched her over her clothes on the chest and did not tell VG that the accused had touched her on the vagina. Mr Morrison argued that I should prefer VG’s account of the complaint and its terms because TB’s evidence about other matters from around that time (frequency of visitation, whether she was present when VG first spoke with RB on the phone) was unreliable.

36. Mr Morrison said that TB was demonstrably unreliable in relation to the following matters:

    ·Frequency of visitation to her grandparents’ house prior to 2008.

    ·Contact with the accused after occasion of count 1 – in evidence TB said she would see the accused at family functions during 2008 and 2008 but told the police she did not see him until the Christmas holidays 2010/2011.

    ·Timing of resumed visitation to grandparents’ house – in evidence TB said she started going back to the house in 2010 or 2011 (when she was 11 or 12) but said in a proofing in 2022 that she did not start going back until she was 14 years old.

37. Mr Morrison said it was hardly surprising that the accused might have sought to distance himself from TB given the allegation in 2008 and the fact that he was charged and attended court.

38. Mr Morrison then dealt with counts 2 to 6. Mr Morrison emphasised the agreed fact regarding what TB told police on 12 November 2008. TB was clear in her evidence that touching of the type she described to police did not happen until she was 12 or 13 (2011 or 2012) and it did not happen when she was 8 or 9. Mr Morrison said this was a prior inconsistent statement of significance because the allegations in it mirror the allegations TB made years later but which she expressly disavowed occurred prior to the occasion of count 1 and her report to police.

1. Mr Morrison said that the only inference I could draw from the certificate of record was that the charge of aggravated indecent assault related to the allegations comprising count 1 because the only evidence of the basis for that charge came from TB. Mr Morrison said that the allegations of breast touching made on 12 November 2008 might explain the inconsistencies in TB’s account of the offending comprising counts 2 to 6; TB was not recounting an actual memory, but reviving allegations made over a decade earlier.

2. Mr Morrison then addressed each of counts 2 to 6 highlighting what he said were deficiencies in TB’s account:

   ·Count 2 (kitchen) – the proved prior inconsistent statement that this occurred when TB was 14 means the circumstances of aggravation cannot be proved beyond reasonable doubt. TB was unreliable as to the timing of this occasion. Further, TB gave a different account of this occasion to the police, saying it occurred as she was leaving the kitchen and the accused entering it. Her explanation was unsatisfactory because she suggested that what she had told police in fact related to the incident in the study room (count 3). She told police that the accused had grabbed her breasts on the outside of her clothing. If I was not satisfied that the touching occurred under the clothing, but was satisfied it occurred over the clothing, then there would be a real issue as to whether a quick grabbing of the breasts accompanied by a laugh was conduct with a sexual connotation.

   ·Count 4 (lounge room) – TB said this occurred shortly after the occasion of count 2 and she was 12 or 13 at the time. Count 4 alleges a date range of 12 June 2013 to 12 June 2014, making TB 14 or 15 years old. TB gave an account of the timing of this occasion inconsistent with the framing of the Information.

   ·Count 3 (study room) – the proved prior inconsistent statement to police that the touching was over the clothing, involved squeezing and then the accused let her go past. TB said she was about 13 but count 3 is particularised has having occurred when she was 14.

   ·Count 5 (near toilet) – the account given by TB was inherently unlikely because of the duration and location of the conduct and the fact that TB’s father was in the lounge room at the time. In other words, it is inherently unlikely that the accused would have engaged in this conduct in circumstances of such a high risk of detection. Further, TB gave a different account of the alleged offending to police, describing the breast touching as a squeeze before the accused let her walk past rather than the grabbing of her breasts for a minute.

   ·Count 6 (outside at table) – TB gave an inconsistent account of this allegation to police. She told police that the accused kept trying to touch her thigh and did not ever tell police that he in fact touched her thigh.

   ·General deficiency – on 4 April 2019, TB told police all touching was over the clothing which she explained was different from under her top and over her bra.

3. Mr Morrison said there was a divergence in the complaint evidence with respect to counts 2 to 6. TB gave evidence that she sent a text message to her mother saying that she could not return to her grandparents’ house because the accused touches her. VG said that she became aware of more recent allegations years later and said TB told her she wanted to go to the police station and make another statement, but she could not remember what it was about or if there was anything different. Mr Morrison said the timing of the complaint to VG was unclear, other than TB was at school at the time. The first statement to police was not until July 2020.

4. Mr Morrison referred to the two records of interview in which the accused maintained his denial of the offending under sustained questioning. In order to convict the accused I would have to reject his denials as not being reasonably possible. His account and denials were rational and consistent and there was no basis upon which I should reject them. Accordingly, the verdicts should be not guilty.

   Preliminary observations

5. The case for the prosecution depends upon the evidence of TB. If am not satisfied beyond reasonable doubt of the credibility and reliability of her account of the alleged offending the verdict on each charge must be not guilty. It is my task to determine whether the prosecution has proven the accused’s guilt on each charge beyond a reasonable doubt based on the whole of the evidence. The whole of the evidence includes the accused’s records of interview.

6. There is no doubt that the accused had the opportunity to commit the offences with which he has been charged, however the only evidence capable of proving that he did so is the evidence of TB. There has been no admission made by the accused. It is necessary to conduct a careful assessment of both the credibility and reliability of the evidence of TB, given that both her reliability and credibility were in issue. I have carefully scrutinised TB’s evidence.

   Significant forensic disadvantage

7. In evaluating the evidence in the prosecution case, I have considered the question of forensic disadvantage. Although s 34CB EA does not apply to a trial by Judge alone, the question must still be considered if the circumstances warrant it.

8. The issue of significant forensic disadvantage as referred to in s 34CB EA was considered in R v Cassebohm,[101] R v Maiolo (No 2),[102] R v W, PK[103] and in R v R, PA.[104] In R v Cassebohm, Doyle CJ said:

   I consider that it is sufficient for a trial judge to conclude that the lost or missing or unavailable material is likely to have assisted the defence of a charge, even though one cannot say just how, and even though one cannot be certain that that is so.[105]

   [101] (2011) 109 SASR 465.

   [102] (2013) 117 SASR 1.

   [103] [2016] SASCFC 5.

   [104] [2019] SASCFC 19.

   [105] [30]

9. These factors reduce the accused’s ‘ability to effectively conduct his case including to cross-examine the prosecution witnesses in a way so as to cast doubt upon issues of credibility and reliability.’

10. I am not satisfied that the accused has suffered a significant forensic disadvantage by reason of the delay in prosecuting count 1. The allegation was put to the accused in an interview in March 2009, at a time reasonably proximate to the alleged offending. Although the prosecution of a charge of indecent assault was discontinued (and I cannot make any finding as to the conduct alleged to have comprised that charge and any correspondence between it and count 1) the accused was given an opportunity to answer the allegations and did so. There is no evidence that by reason of the delay in reinstituting that prosecution, material or evidence is lost or missing. The alleged offending was an isolated incident which occurred in the accused’s home on a specified date and at a time when he did not dispute he was present. His wife was also home. There was no evidence led that a potential witness (his wife) or  TB’s brother, were unavailable to be called as witnesses.

11. I do however accept that the accused has suffered a significant forensic disadvantage by reason of the delay in prosecuting the alleged offending in counts 2 – 6. In his record of interview on 21 October 2020, the accused said that following the allegations in 2009, TB had not been back and that unless he and his wife were invited to go somewhere they did not have anything to do with the children.

12. All that was put to him by the interviewing officer was that TB alleged ‘when she was around 11 or 12 she started staying back over again….she’s made further allegations that on certain occasions that you’ve groped her breasts. Cornered her around the house and groped her breasts’. The accused responded, ‘I’ve thought once she’d left, once this all came up, she hasn’t been back here since…’

13. Given the passage of time, and the lack of any particularity regarding date, time of year, occasion, surrounding circumstances, I am satisfied that the accused is at a significant forensic disadvantage in refuting TB’s allegation that she was at his home on the occasion of the alleged offending in counts 2 – 6.

14. I am also satisfied that the accused has suffered a significant forensic disadvantage by reason of the loss of the evidence of the text message TB said she sent to her mother in which the initial complaint regarding counts 2 – 6 was articulated. That evidence is likely to have assisted the accused in testing the evidence of the complainant of the terms of the complaint and provided a time frame for the making of the complaint vis-à-vis the dates of the alleged offending.

    Findings of fact on undisputed, unchallenged or agreed evidence.

15. I make the following findings of fact:

    1.TB was born on 12 June 2009.

    2.TB’s brother, R, was six years younger than her.

    3.The accused is TB’s paternal grandfather. He was born on 27 February 1949.

    4.TB’s mother VG was married to her father RB from November 1998 until April 2018.

    5.RB was deployed to Afghanistan as a permanent member of the Australian Army between 16 September 2008 until 24 April 2011.

    6.TB and her brother R stayed overnight at the accused’s home with the accused and his wife LB in November 2008.

    7.In 2008, VG worked at Mitre 10, Monday to Friday 30 hours a week between 9.00am and 2.30pm but every second weekend she would work one day on the weekend and work four days during that week. On weekdays, R would be cared by the accused’s wife whilst VG was working. TB would be at school when VG was working on weekdays that were not school holidays.

    8.The next day TB made a complaint to VG regarding the accused’s conduct towards her when she slept overnight.

    9.On 12 November 2008, TB told police that the accused ‘often touches her on the chest when other relatives or friends are not watching or are not present. He never touches her there when other people can see what is happening’.

    10.TB was interviewed by police on 11 March 2009.

    11.The accused was interviewed by police on 15 March 2009 in relation to an allegation that he touched TB on the breasts and vagina on 2 November 2008. At the conclusion of that interview the accused was reported for indecent assault.

    12.The accused was charged with aggravated indecent assault of TB. He first appeared in the Adelaide Magistrates Court on that charge on 24 August 2009. There were 3 further hearings, at the last of which the Director of Public Prosecutions tendered no evidence, and the charge was dismissed. The basis for this decision is not the subject of evidence.

    13.The accused was interviewed by police on 21 October 2020.

    Assessment of witnesses

16. TB gave her evidence in a straightforward manner. There was nothing about her manner or demeanour when she gave evidence that caused me concern. However, there were aspects of her evidence that were not supported by other evidence I am prepared to accept and there were topics on which she had previously given an inconsistent account.

17. TB’s account of the frequency of her visits to the accused’s house was at odds with the evidence of VG. TB said she would visit multiple times a week and often stayed there. She visited during holidays and on weekends. She said that when her mother had late or early shifts at Bunnings in 2008, she and her brother would stay with her grandparents. She said there was no one else who could look after them.

18. VG’s evidence regarding the frequency of contact was quite different. VG said that her mother-in-law (the accused’s wife) looked after R most days of the week when VG was working at Mitre 10, 30 hours a week. TB was at school. 

19. VG said the frequency with which TB would go to the accused’s home was once a month but could be multiple times a month depending on her work or school holidays. However, it was VG’s sister-in-law (Aunt L) who had TB and R every second weekend because she had children the same age and they would play together. There were, however, occasions when TB and R slept over at the accused’s house, but Aunt L was the default babysitter. If she was not available, VG would ask the grandparents. This did not happen very often, and they would not be there every week. She only needed to have TB looked after during the week if it was school holidays and she would go to OHSC or friends or family. After the disclosure, R continued to go to the grandparents, but TB would only go now and then and only if R was there.

20. I prefer the evidence of VG regarding the frequency of visitation to the accused’s house in the lead up to the occasion of count 1. VG had a good recollection of her own working hours, place of work, child-care arrangements for TB and R (which differed because of their age) and the availability of and reasons why Aunt L’s home was a preferable place for her children to stay. Her evidence generally accords with the accused’s recollection in his record of interview in 2020 of the frequency of visits by TB.

21. TB gave an account of contact with the accused (and her grandmother) after the occasion of count 1 which was inconsistent with her statement to police and what she said in a proofing in September 2020. In evidence she said she saw her grandfather between 2008 and 2009 at family events and occasions of that type. However, she told police she did not see her grandparents until the Christmas school holidays at the end of 2010 and into 2011. Further, TB said in a proofing that she did not start going back to the accused’s house until she was 14 years of age.

22. TB’s account of the accused coming into the bedroom on the occasion of count 1 struck me as containing a peculiar feature. On her evidence, TB was lying on her side facing away from the door. The light was off. She had not said anything or called out when she heard the accused come into the house. On the face of her evidence, there was nothing to indicate to a person in the accused’s position that she was awake, even if he was at the door to the bedroom. However, TB said that the accused asked her why she was still awake, and she then told him she was not feeling well and then looked over her shoulder. It is an odd thing for the accused to have asked TB why she was awake when there was no reason for him to know or think that she was awake.

23. TB’s account of the offending the subject of count 1 (and the uncharged act preceding it) was that it was a continuous sequence of events in which the accused entered the room, rubbed her back, then stomach[106] and then put his hand under her top and rubbed her breasts after which he put his hands under pants on top of her underwear and then under her underwear on her vagina. As far as she was aware, her grandmother was asleep.

    [106] There was an internal inconsistency in her evidence on this topic. She initially said the accused was rubbing her stomach ‘skin on skin’. Moments later she said he was rubbing her stomach over her clothing.

24. By contrast, TB told police on 11 March 2009 that the accused was patting her back and then left the room for ten or fifteen minutes. She also said that every time the accused came in, her grandmother was asleep, but he would then leave, and every time she was asleep, he would come back in. I am troubled by this inconsistency, which I consider to be material.

25. I am also troubled by the fact that, on 12 November 2008, TB told a police officer at the Christies Beach Station that the accused often touched her on the chest when other relatives or friends were not watching or not present. TB swore on oath that prior to the occasion of count 1, the accused had never touched her on the chest or breasts. She gave evidence that such conduct occurred many years later.

26. TB said she told her mother that the accused had touched her private parts when she stayed there and when asked to explain, she said he touched her breasts and vagina when she was in bed. By contrast, VG said TB told her the accused had touched her and when asked to explain she gestured to her chest and said he touched her over her clothes on her chest. She was upset and crying. TB did not tell her that the accused had touched her on the vagina. VG’s account of the conduct complained of by TB to her accords with the complaint made by TB to a police officer on 12 November 2008 (but without the additional details regarding the circumstances, including persons present).

27. The inconsistencies to which I have referred have led me to prefer VG’s account of this conversation because I consider her to be a more reliable historian. In those circumstances, I am satisfied that TB made a complaint at a time and to a person I would have expected her to complain. This consistency of conduct in this respect buttresses her credibility. However, the terms of the complaint are not consistent with TB’s testimony and therefore undermine the credibility of her testimony regarding count 1.

28. There is no evidence from which I can make any firm finding of the conduct that was alleged to be the subject of the charge of aggravated indecent assault with which the accused was charged in 2009. Nor can I make any firm finding as to the reason why no evidence was tendered. Although the certificate of record reveals that the last adjournment was sought for the purpose of proofing TB, there is no evidence that this occurred or that if it did, that was the reason for the decision to tender no evidence.

29. The fact that the accused was charged with aggravated indecent assault of TB is evidence from which I infer and find that:

    1.   The accused knew that TB had made an allegation that he had perpetrated a serious sexual crime against her;

    2.   There was no contact between the accused and TB during the term of his bail agreement;

    3.   The relationship between the accused and TB, including the frequency and location of contact, changed as a result.

30. I found TB’s evidence of the timing of the resumption of contact with the accused and the frequency of that contact unreliable and, in any event, unlikely. I have rejected TB’s evidence of the frequency of her contact with the accused prior to the occasion of the conduct alleged in count 1. In those circumstances, I cannot accept her evidence that after an occasion in 2010 or 2011 when she was told she had to go to her grandparents’ house, over time, the visits reached the same frequency as prior to the conduct alleged in count 1, namely weekly.

31. VG’s evidence was of sporadic visits by TB but only when R was present. In his 2020 record of interview, the accused said that he did not have anything to do with TB unless he was asked to go somewhere or do something. He doubted she had come to his place a couple of years after he had been charged.

32. These findings have created a reasonable doubt in my mind regarding the veracity and reliability of TB’s evidence that the conduct the subject of counts 2 – 6 occurred years after the conduct alleged in count 1. The fact that TB made a complaint of conduct of a striking similarity to the conduct alleged in counts 2 – 6 in November 2008 to the police and her mother leads me to conclude that her evidence regarding the timing of this alleged conduct is unreliable.

33. In coming to this conclusion, I have considered the evidence of initial complaint with respect to counts 2 – 6. The timing of this initial complaint was unclear. TB said she was still at school when she messaged her mother whilst in Japanese class. No evidence was led as to what year it was that she studied Japanese at school. TB’s account of the complaint was that the accused touched her when she went to his place. VG’s account of the complaint was that ‘years later’ TB told her she wanted to go to the police station and make another statement. VG could not recall what it was about or if there was anything different.

34. The phone upon which TB said she sent the text message to her mother no longer exists. The last time she had it was 8 or 9 years ago (2014-2015) but she did not say how much earlier it was that the complaint was made. In those circumstances, it is difficult to make a finding that TB complained at a time I would have expected her to complain. I have already referred to the significant forensic disadvantage occasioned to the accused by the loss of the phone.

1. TB appears to have attended the Christies Beach Police Station on 4 April 2019 at which time she made a complaint about the accused often cornering her in a room in his house and touching her breasts over her clothing. This evidence was led in cross-examination in order to prove a prior inconsistent statement and is not admissible as a complaint pursuant to s 34M EA. However, the timing appears to accord with VG’s evidence that ‘years later’ TB told her she wanted to go to the police station and make another statement.

2. I am not prepared to act upon TB’s evidence that there was in fact an ‘initial complaint’ made by her to VG prior to the loss of her phone in 2014 or 2015. I consider it more likely that TB determined to revive her complaint about the accused’s conduct around 2018 or 2019 and informed her mother of her decision. I note that this was around the time of her parents’ separation, but the evidence does not permit me to draw any inference that these events were connected.

3. Accordingly, whilst I am satisfied that TB complained about the conduct the subject of counts 2 – 6, I am not satisfied that this complaint occurred in the circumstances she described. I prefer the evidence of VG on this topic. I will use the evidence for the limited purpose of informing me when the allegations resurfaced, namely in late 2018 or early 2019.

4. In addition to the reservations I harbour, regarding the reliability of TB’s evidence of the timing of the conduct the subject of counts 2 – 6, a number of prior inconsistent statements regarding this conduct were proved in cross-examination. Those that I consider to be material were as follows:

   1.   TB told a police officer at the Christies Beach police station on 4 April 2019 that the accused would often isolate her in one room of the house, corner her in one part of the room and laugh as he deliberately touched her breasts, grabbed her inappropriately around the waist and that this touching occurred over the clothing.

   2.   TB said in her statement dated 16 July 2020 regarding the conduct the subject of count 6, that the accused kept trying to touch her thigh from underneath the table she was sitting at.

   3.   TB said in her statement dated 16 July 2020 that the touching the subject of count 2 involved grabbing her breasts on the outside of her clothing.

   4.   TB said in her statement dated 16 July 2020 that the touching the subject of count 3 involved the accused putting both of his hands on top of her clothing, grabbing her breasts and squeezing them.

   Conclusion

5. The standard of proof in a criminal trial is a high one. It is not enough for me to suspect that the accused is guilty or that he is probably guilty. Given my concerns regarding the credibility and reliability of TB’s evidence on the matters to which I have referred, I am left not knowing where the truth lies.

6. I think that the accused probably behaved inappropriately towards TB on occasions in and around 2008 and that this conduct probably involved touching over the clothing, including on the chest area. I am satisfied that TB complained to her mother about being touched by the accused and that this led to a prosecution of the accused for aggravated indecent assault.

7. However, I consider it highly unlikely that the accused behaved inappropriately towards TB after he was charged with aggravated indecent assault.

8. Given my findings, including those relating to the credibility and reliability of TB’s account of each alleged offence, the state of the evidence leaves me unable to reject the accused’s denials or believe TB’s account to the standard required in a criminal trial. 

   Verdicts

9. I find the accused not guilty of counts 1 – 6.