R v B, GN - [2014] SADC 80

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, GN
Criminal Trial by Judge Alone
[2014] SADC 80
Judgment of His Honour Chief Judge Muecke
14 May 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused charged with Persistent Sexual Exploitation of a Child.
Verdict: Guilty.

R v B, GN
[2014] SADC 80
Background

The complainant K was born on 25 April 1979. She was the only child of her mother JH and her father JW. Her parents separated in about December 1982 when K was three and a half years old. K and her mother moved from the country to a house at Ethelton.
In May 1985 JH and the accused met and started a relationship. Over the ensuing short period of time the accused would stay at the house where K and her mother were living at Ethelton. Soon after he started living there all the time. They married in January 1986 and went on a honeymoon to Tasmania together following the wedding. K went with them. At that time K was six years old. When they returned to Adelaide K went to a primary school. She had her seventh birthday on 25 April 1986.
There were times both before and after the wedding when the accused, JH and K were living in the house at Ethelton that JH would be working or taking a course or playing netball at night. The frequency in respect of which she was away from the house at night varied over that time. The time at which she might come home either late at night or very early the next morning would also vary.
When JH was away from the house at night the accused and K would be at home together. It was the accused’s role to look after K and to ensure, amongst other things, that she got to bed.
K’s evidence was that when her mother was not at home at night the accused would regularly suggest that she come into the double bed in the bedroom that he shared with her mother in their bedroom. He would say ‘come and keep me company while mum’s not here’. When she did that he would remove at least her underpants. He would have no clothing on the lower part of his body. He would rub his penis on her naked vagina when he was lying on his back on the double bed and she was on top of him. Sometimes their positions were different. After this she would go to her bedroom and go to bed.
K’s evidence also was that an incident like this occurred once during the honeymoon in Tasmania. It occurred when her mother was out of the motel room, possibly having a shower in the bathroom.
K’s evidence also was that when her mother was home at night the accused would frequently come into her bedroom when her mother was asleep in her and the accused’s bed. He would touch her underneath her underwear underneath her nightie. She said it felt to her that he penetrated her vagina with his finger each time but she was not certain whether it was only sometimes or whether it was all the time. She said it was very hard for her to tell one time apart from the other.
The evidence was that JH asked the accused to leave the house on 24 March 1988. The accused did. There is no dispute about those two facts.
There is also no dispute on the evidence of the accused, JH and K that during the night before the day the accused left the house he went into K’s bedroom. Both the accused and JH said that when he was in there next to the bunk bed where K slept, K’s mother turned on the light of the bedroom. There was a conversation between them. There was some dispute as to what was said. The accused went back to their bed and went to sleep. He got up in the morning and went to work.
The evidence of K’s mother was that she lay awake for hours thinking and wondering. That included thinking that she had seen the accused’s hand under the sheet on the bed in which K was, and that he was lying about what he was doing. The next morning she asked K what was going on between she and the accused. She said that her daughter said or indicated that the accused had been touching her down there. She said that her daughter was quiet, sad, and really upset.
K’s mother said that she changed the locks of the house whilst the accused was away from it. She also took K to a doctor and then to the police. When the accused returned to the house that night she told him that he had to leave. That much is common ground although the accused’s and JH’s evidence differed markedly as to the detail of what was said between the two of them. The accused left the house.
The accused was initially arrested on 17 April 1988. When interviewed he denied the allegations. There was a committal hearing in the Port Adelaide Magistrates Court in December 1988 which continued in June 1989. JH and the accused gave evidence. An ex-officio Supreme Court Information was filed for the August 1989 sessions. A nolle prosequi was entered by the Director of Public Prosecutions on 31 January 1990.
The Information in this court is dated 28 May 2012.
When the accused and JH commenced a relationship at the Ethelton house shortly after May 1985 K was six years old. When the accused and JH married in January 1986 K was still six years old. When the accused left the house in March 1988 K was seven years and eleven months old.
The accused, JH and K lived at the Ethelton house for about two and a half years.
The witnesses at the trial of this matter gave evidence here last year. That was at least 25 years after the events of which they gave evidence occurred. Some of those events occurred nearly 28 years prior to their giving evidence. Further, K gave evidence of events that occurred when she was between six years of age and eight years of age.
The charge
The accused is charged, by the first count, with Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
The particulars alleged are that the accused, over a period of not less than three days between the 1^st day of May 1985 and the 25^th day of March 1988 at Ethelton, committed more than one act of sexual exploitation of K, a child of the age of 6, 7 or 8 years, by touching her on the vagina, inserting his finger into her vagina and rubbing her body against his genitals.
The period referred to in the particulars is the period from about when the accused and JH commenced a relationship and then lived in the Ethelton house until they married and then until the accused left the house on 24 March 1988.
The accused is charged, by the second count, with Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act 1935). The particulars alleged are that the accused, on 24 March 1988 at Ethelton, indecently assaulted K, a person of the age of 8 years.
I was told that the second count is an alternative count to the first. I was told that it relates to the evidence as to what happened in K’s bedroom the night before the accused left the house at Ethelton. I was told that at the beginning of the opening of Mr Fowler-Walker, of counsel for the Director of Public Prosecutions. That was the last time to which it was referred. That is not a criticism of anyone. I do not consider that it is reasonably possible that I would find the accused not guilty of the first count but guilty of the second count. I shall therefore direct my consideration to the first count.
Some general matters
The Crown must prove the charge. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he does do either of those (as is the case here insofar as his giving evidence is concerned), it is still for the Crown to prove the charge.
The Crown must prove the charge beyond reasonable doubt. Further, the Crown must prove each and every element of the charge beyond reasonable doubt.
Nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. In this case the accused is not to be convicted of the charge against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.
I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of that, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will probably be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the Crown has proved each element of the charge against him beyond reasonable doubt.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger or distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters being ‘proved’ or ‘satisfied’ or ‘established’, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I may not say so on every occasion, ‘proof beyond reasonable doubt’.
Persistent Sexual Exploitation of a Child
The elements of this offence are:
1The accused must be an adult.
2The complainant must be under the prescribed age.
3The accused must commit more than one act of sexual exploitation of the complainant over a period of not less than three days.
As to these elements separately:
1I am satisfied that the accused was an adult at all times since he met JH and her daughter K. There was no dispute about that. (Exhibit P7 refers to his date of birth being 25 April 1955.)
2If the accused was in a position of authority in relation to K, the ‘prescribed age’ is 18 years. In any other case that age is 17 years. K was between the ages of 6 years and 8 years in the entire time the accused lived with her and her mother at the Ethelton house. Accordingly, I am satisfied that at all material times K was under the prescribed age whether the accused was in a position of authority in relation to her or not. I am satisfied that at least from January 1986 the accused was a step-parent or guardian of K, and hence was in a position of authority in relation to her.
3An act of sexual exploitation is one where, if the act was properly particularised, it could be the subject of a charge of a ‘sexual offence’.
A ‘sexual offence’ is defined as:
(a)     an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)    an attempt to commit, or assault with intent to commit, any of those offences; or
(c)    a substantially similar offence against a previous enactment.
In this matter the particulars of the offence alleged by the Crown are that the accused persistently sexually exploited K by:
(1)touching her on her vagina,
(2)inserting his finger into her vagina, and
(3)rubbing her body against his genitals.
All of that particularised conduct would, if proved, constitute a ‘sexual offence’ as defined.
The real issue in this trial is whether the Crown has proved beyond reasonable doubt that any of the sexual offences particularised occurred at all.
I referred earlier to some general matters. There are some specific matters to which I may need to refer in this matter. I shall do that if and when they arise.
The evidence of the complainant
K was 34 years of age when she gave evidence at the accused’s trial. She was born on 25 April 1979.
K said that she was around three years of age when her parents separated. At that time she and her parents were living on a farm in the Murray Bridge area. After the separation she and her mother moved from there to her grandparent’s house and then to Adelaide, to a house at Ethelton.
K said that she knew the accused as he married her mother. She did not remember exactly how old she was when that happened, but she was around six years, six and a half years, seven years old. She said that she remembered the wedding. At the time of it the accused was living with her and her mother. He had started living there for a few nights a week, but it was not long before it was all the time.
K said that there was a honeymoon after the wedding. She, her mother and the accused went to Tasmania. They travelled around Tasmania in a hire car and stayed at different motels.
K said that she remembered an incident in one of the evenings in Tasmania. They got to a motel late-ish and she remembered her mother leaving the room ‘for whatever reason, having a bath or a shower, I presume, and he took off my bottoms and rubbed me up and down on him while in a bed’. She was referring to the accused doing that. She said he rubbed his penis up and down against her. He was not wearing any clothes ‘on the bottom’ and she also had no clothes ‘on the bottom’.
K said that from what she could remember the accused was lying on his back in the double bed and he was holding her on top of him. He was rubbing his penis against her in her vagina area. She did not believe that there was any penetration.
K said that this occurred on the double bed in the motel room, which was one of two beds, the other being a single bed. She did not believe that this occurred on the first night of the trip but she could not be certain as to which night it did occur.
K said that when they returned home they returned so she could start school when school started that year. This was early in the new year when she was about six years old. There was later evidence that the wedding was in January 1986 and that the honeymoon occurred shortly after the wedding.
K was asked whether the incident she described as happening in a motel room in Tasmania was the first time that anything like that had happened. She said that it was not. She said that the same thing that happened in Tasmania had happened earlier, when the accused would go into her room at night when her mother was home. This was at the house in Ethelton. She could not say exactly how many occasions that happened before the Tasmanian trip, but it was frequent.
When asked whether she remembered whether there was any pain or anything like that on the bed in the motel in Tasmania she answered: ‘(E)very now and then there would be, like it would go somewhere probably it wasn’t supposed to and that would be painful, but the more painful was when he would come into my room at night, that was more uncomfortable and painful’. This answer was not entirely responsive to the question if she understood the question to be confined to what happened in Tasmania. I took the answer to relate to each time the accused rubbed his penis on her vagina area and then she referred to when he would come into her room and touch her vagina with his hand.
K said that she never said anything to her mother. She said: ‘I was always told not to say anything’ and she then said: ‘I just remember always knowing not to say anything’.
When K was asked whether anything else occurred between she and the accused after they had returned to Adelaide after the honeymoon, K answered: ‘Yes, it occurred right up until mum kicked him out’. She said that she remembered her mother ‘asking me questions about what had happened during the night (referring to the night before) and I remember telling her details, some details, and I can’t remember if I went to school or if I went to somewhere, a friend’s place, but I didn’t see him again after that’. She said that that was probably a year or so after the honeymoon.
K said that between the honeymoon and when the accused left the house her mother worked as a waitress or a kitchen-hand somewhere and did a night course as well. She also played netball sometimes at night time. That was mostly once a week but sometimes more and she believed some of her mother’s work was night work.
K said that sometimes she would go with her mother at night but she was not allowed to go if her mother was going to be late because she had to go to bed. She said they would be the nights when the accused would ask her to come into her mother’s bed to keep him company while her mother was not home. He would just say ‘Come and keep me company while mum’s not here’. She said when she went into her mother’s bedroom ‘(i)t was always the same, same thing as what happened in Tasmania’. She said that would occur weekly although there may have been times when a week would be missed. This never happened when her mother was at home. She said that the accused looked after her when her mother was not at home. She always asked if she could go with her mother as she did not want to stay at home, but if her mother was going to be late she was not allowed to go.
When K was asked whether she remembered having trouble sleeping, she answered: ‘Only when he would come into my room and wake me up and I would have trouble getting back to sleep’. She said:
AHe would come in a put his hand under the blankets and put his hand on my vagina, touching it, and it was always uncomfortable, and I remember trying to toss and turn so that he would know I was waking up and he might go away. That never – didn’t bother him at all, he would continue until he had done what he wanted to do and he would just leave.
QDid you ever say anything to him.
ANo, I never said anything to him.
K said that this happened late at night when everyone was in bed and the lights were out. She said if the accused came into her room her mother was always at home.
K said that some of this touching occurred when she was in a single bed in her bedroom and also later when bunk beds were put in her bedroom. She thought that it went on longer (over a longer period of time) when she was in the bunk beds.
K said that she would normally wear a nightie to bed. She would wear her underwear under her nightie. She said that the accused touched her underneath her underwear. When asked whether there was any penetration of her vagina by his finger, she answered: ‘Part way and it was always painful but not ‑ how do you describe it? It was more just sort of just in’. She said that occurred only some of the time, but it was always painful. She said that when the accused did not put his finger just inside her, ‘(i)t would just be on the outside and like just … touching. It was always underneath my underwear’. She said that when she had a longer sleeved nightie on in the colder weather the accused would do the same thing. She said there was penetration of her with his finger. She could not be certain whether that was only sometimes or all the time. She said: ‘It felt like all the time but they were very hard to tell apart from one to the other. It kind of always was very similar’. She said that it felt like he did this a couple of times a week but she could not be certain. She said it was frequent. She said that she slept with her bedroom door open.
K said that when the accused rubbed himself against her in her mother’s room his penis would always at some stage rub against her vagina. Whilst their body positions varied she remembered more of them as her being on top but that was most likely the last time that she remembered because it is ‘such a visual memory’. She said she did not have a lot of different memories of different positioning. ‘It kind of felt like it was always similar’. She said that although this did not occur daily it was more frequent than monthly. It most likely would have been weekly or fortnightly.

K said that when the accused rubbed himself against her and when their genitals were in contact it was always the case that ‘there were no bottoms’. That is, that neither of them had clothing on the lower parts of their bodies. She said that the accused would take her underpants off. She had no clear memory as to whether the accused already had his pants off or whether he took them off. She said that these incidents would occur underneath the bed clothing. She said that that may have varied but most of the time it felt to her like there was a covering of some sort on top of her.
K said that she could feel his penis on her and although she believed it to be hard, that was probably not really a memory that she had as a child. She explained that she would not have known at that time that a penis ‘could change like that’.
When K was asked whether she ever thought to tell her mother, she answered:
AI really wasn’t aware of what it was really, I think, and I was always told not to say anything and I know I acted up quite a few times when I was left at home with him and I was trying to tell her without telling her and it wasn’t – it was taken as bad behaviour rather than me trying not to be there.
QDuring that period of time did you see your biological father at all.
AYeah, whenever I could.
QAnd how was your relationship with your biological father during that period.
AGood.
QHow was your relationship with your mum during this period, and when I say ‘during this period’, I mean from the time that you knew G at the … house, (at) Ethelton.
AIt was good most of the time. There was obviously times where I would play up, act up, and I know that my mum and dad had issues. Mum was a bit – if he wasn’t – if my dad wasn’t there to pick me up at a certain time, she would be difficult. I remember not being able to go because he was late, she wouldn’t let me go. And there was issues. The three of them didn’t really get along all that well.
K gave evidence about the time she spoke to her mother just before she no longer saw the accused. She said that the night before that conversation the accused had come into her room, put his hand under the blanket and touched her. She said that it felt like a long time but she could not be certain how long it was. She believed he penetrated her vagina with his finger. She said his finger did not go ‘far in but it was uncomfortable and painful’. She described what happened the next morning:
AFrom what I can recall she just asked me had he been doing anything wrong – not exact words but along those lines. And what he does when he comes into my room. Does he come into my room. I guess that’s what she would have asked. I can’t be certain but it was along the lines, and I didn’t tell her everything but I told her enough so that it didn’t happen again.
QSo when she asked you had he done anything wrong, ‘Does he come into your room?’, was she any more specific than that, or was it as general as that.
AI can’t recall exactly how she worded it.
QDid she suggest anything more or was it a general question.
ANo, it was just a general question, I think, and she probably wasn’t sure how I’d answer it so she was probably trying to be – without saying anything too much, I think she was just trying to be as kind as she could be getting the stuff out, information out.
QAs best you can, and if you can use your exact words, what did you tell her, what details did you give her.
AI just told her that he comes in my room at night-time and he – I believe she asked me if he touches me and I said ‘Yes’, and I can’t remember what sort of detail I used as to where, or if she asked where, but she asked me if he touches me in – not inappropriately but along those lines. I’m not sure what word she would have used when I was seven or eight or however old I was.
QDid you tell her things that she hadn’t suggested or were you just agreeing with things that she’d suggested.
AI can’t be certain.
K said that she was upset at the time she told her mother but she thought that she was relieved that her mother finally knew. She said: ‘I’d been trying to tell her for a while without telling her’. She said that the night before was the last day she saw the accused.
K said that either on the day she told her mother or on the following day she spoke to police or a social worker of some kind.
When cross-examined by Mr Algie, of senior counsel for the accused, K was asked:
QAnd when you were telling the police about your mother asking you questions in the morning, did you tell the police ‘Mum asked me using words to the effect “Has G ever touched you on your private parts?”’. Do you recall telling –
AI believe so, yes.
QAnd you agreed with that.
AAlong the words – along the lines of, yes.
When Mr Algie asked K about nightmares when asleep she said that she recalled a recurring nightmare she had of drowning in the river. She would wake up holding her breath or gasping for air. The other dream was that there was a man standing in her window. She thought that really happened, but her mother seemed to think it was a dream. She said that happened a few times. She said her nightmares did not incorporate her natural father. She said that when she woke up from a nightmare she believed she would have cried out or been upset because she was young. She did not recall her mother coming in although she may have. She did not know whether her mother would get her a glass of milk or come in and tuck in her doona after a nightmare. She did not recall anyone coming in, but she said that was not to say they did not come in. She could not recall the accused getting her a drink of milk or tucking her in. She said that she could not recall whether she had these nightmares during the time that her mother and the accused were married.
K said that she could not recall any conversation between herself and S (the son of her natural father’s new partner) about what her natural father had done in front of herself and S. It was put that she and S were talking about her natural father masturbating in front of the two of them. She said she did not recall that after her mother and the accused got married she was spoken to by people from the Department of Community Welfare about what her natural father may have done in respect of herself and S. She said: ‘As far as I know I was never asked if he’d done anything’.
K said that she recalled certain memories of her relationship with the accused after he married her mother ‘that were okay’, but she did not really remember day-to-day behaviour. She remembered being in trouble from him for not eating her dessert and he throwing her onto the ground and telling her to go to her room. She recalled other things that stick out but not ‘relationship stuff or day-to-day stuff’.
K said that she recalled going once to the accused’s parent’s farm. She did not remember that a friend of hers went as well. She agreed that she spent the weekend at the farm and the accused’s parents were there. She could not recall whether it was one night or two nights she spent there.
When asked about the incident she had described as occurring during the honeymoon K said that her mother had gone to have a shower and that she was in the bathroom when the accused did what he did to her. She recalls that she and the accused were the only two people in the room when it happened. When asked whether she might be uncertain and mistaken about whether this sexual encounter actually happened at all, she answered: ‘No. I remember it clearly. I remember most of them clearly. They were always very similar, they always occurred’.
K said that when she was in her mother’s bed with the accused when her mother was out, she would be asleep in her own room when her mother came home. When asked whether she was asleep in the bed with the accused when her mother came home she answered: ‘I don’t think so. I think I ended up going to my own bed but I couldn’t be certain. I may have been in her bed and she might have put me to bed, I don’t recall’. When it was suggested to her that that was what happened she said she did not remember. She said she had no knowledge of when her mother came home either she or the accused or both of them would pick her up, put her back in her own bed, when that was suggested to her.
There were the following questions and answers, in cross-examination:
QI suggest that the occasions when you slept in the bed with G (the accused), when your mother was at work or at netball or whatever, was two times.
AI don’t think so.
QAnd there was no sexual element to it at all.
APardon?
QNothing sexual about it at all.
AAbout what?
QAbout you being in the bed with G.
AIf I was in the bed with G he had done something sexual. There was no other reason for me to be in the bed.
QYou actually liked being in the bed with G.
AI wouldn’t suggest that and I wouldn’t say that was accurate.
QIt’s the sort of thing six, seven-year-old children like to do.
ALike be used in a sexual manner with their stepfather? I don’t’ think so.
When Mr Algie asked K whether the nightmares that she had or the dreams that she might have had ever incorporated somebody touching her in her private parts, she answered: ‘Not that I recall. Why would a six-year-old have those sort of dreams, seven year old?’.
There was then the following exchange:
QDo you think it’s possible that when you now say that G touched you in this way, that recollection is actually false.
AThere’s no way that I could remember those sort of pictures and the images for such a long time and I wouldn’t think dreams would affect my relationship with men for my whole life.
QYou are absolutely firm in your belief now that these things happened.
AI know these things happened.
QI suggest they didn’t.
AYou can suggest but that would be wrong.
Other evidence in the Crown case
K’s mother gave evidence. Her name is now JH. She and JW are the natural parents of K.
JH said that in about December 1982 she separated from JW. At that time their daughter K would have been three years old, three and a half years old. After the separation she and K moved to Adelaide, to a house in Ethelton.
JH said that she met the accused in May 1985, and they married in January 1986. After they met, and before they married, the accused would come and stay with her more often as time went on. By about July/August 1985 he was living at her house most of the time.
JH said that after the wedding they went on a honeymoon to Tasmania. That was a matter of days after the wedding. They were away somewhere between 10-12 days and when they returned K went to a primary school. She would have been six years old, turning seven years old, that year, 1986.
JH said that K came on the honeymoon with herself and the accused. They hired a car and drove around in Tasmania. They would stay at motels, maybe half a dozen in all. Usually K would sleep in the same room as herself and the accused as she could not be in a room by herself because she was too young. She would usually sleep on a separate bed.
JH gave evidence about the work she did from the start of 1986. She worked for a few months at a Tavern, until June/July/August 1986, somewhere around there. She said that as she wanted to do bar work she decided to take a course for that. She said that she enrolled in that course in August 1986. She had not worked for about three months. The course was between about 6.30pm to 9.30pm on four nights a week, although she did not have to go to all of those nights, three nights was acceptable. The course took a couple of months and finished, she thought, about 8 September 1986.
JH said that when she attended that bar course the accused would look after K. So far as she was aware they were the only two in the house.
JH said that K used to become teary and upset that she was going out at night. K was not happy if she was going out and K wanted her to stay home.
JH said that after completing her bar course she got work at a Recreation Centre where she would work nights. That was three or four nights a week when they had sports there. She worked there for about three months. When she was working there at nights the accused looked after K. She would usually come home from the Recreation Centre around 12.30am, sometimes later. When she got home generally K was in bed. The accused also was in bed.
JH said that after the Recreation Centre she picked up some shifts at an Hotel. She started working there in the evenings and was able to get daytime work after a while. She thought she started working nights there towards the end of 1987, about October. She said that when she was working at this Hotel the accused looked after K.
JH gave evidence about the nights when she was home when she and the accused slept in the same bed. She said that she did not usually ever get up at night to go to the bathroom. When asked about whether the accused did, she answered: ‘Yeah, he did it a lot’. She said:
A… He would get up and go to the toilet and flush and come back to bed, but then he started going to the toilet and then not flushing and sometimes he would take a while to come back and it was just sometimes he just wouldn’t come back and I would find him in her room.
QWhen you say you would find him in her room, would you get up out of bed and go and look.
AYes.
QHow many times do you think or how frequently did you do that in the time that you had known G, that is, from the time that you met him to the time that you asked him to leave.
AIt was not as frequent in the beginning but towards the end of the time that we were together, the last few months, I would find him in there, you know, like at least once a week and, you know, when I’d go in there, he would hear me and he’d always be walking away from her bed.
JH said that something like this occurred around about the time that she asked the accused to leave the house. That was around 23 March 1988. She described what happened the night before she asked him to leave:
AHe had gotten up and he’d gone to the bathroom – gone to the toilet, he didn’t flush, and I had checked the time to see how long it was – it would be before he came back, but then he hadn’t come back straightaway and so I very quietly got out of bed and crept around to the bedroom and then, when I turned the light on, he had his hand under the sheet in K’s bed.
QAnd what did he do when you turned the light on.
AHe quickly pulled his hand back, his right hand back and when I asked him what he was doing he said he was just checking to see if she was all right.
QAnd did that conversation go any further than that.
AWell, I asked him why and he said that she had a nightmare and that he wanted to check that she was all right and she hadn’t had a nightmare because I’d been awake and then, you know, I said that – he said that he was just checking up on her and I suggested that he might have been doing something else, but he said – he maintained that he was checking up on her welfare.
QWhere did that exchange take place, which bedroom or what part of the house.
AI think I was standing by the door in her room.
JH said that the accused returned to their bedroom and their bed after this exchange in K’s bedroom. There was no more discussion in their bedroom. She said the accused just went to sleep, got up the next morning and went to work.
JH said that she did not go back to sleep that night for a long time. It was not until probably about 5am.
JH later said that on that night when she found the accused in K’s bedroom and when she turned on the light, he took his hand out from under the sheet and moved towards her. On that night he pulled his hand out from under the quilt, and his hand was in K’s ‘mid-section, the middle of her body, her private area’. She said that on other nights when she caught the accused in there he would hear her and be moving away from K’s bed.
JH said that the morning after the accused’s last night in the house she asked K ‘what was going on and then she told me that he’d been touching her’. She said that she had approached K and said to her: ‘What has been going on between you and G?’. K replied that the accused ‘had been touching her private and it was – she didn’t like it, like she just said he had been touching her in that area’. She said she could not remember if she used the word ‘private’ or ‘vagina’. She said K indicated with her hands by pointing or touching. She said that K ‘(j)ust pointed down there’. She said that K ‘was pretty quiet and pretty – like she was very upset – just quiet, sad, really upset’.
When asked whether she had observed any other behaviour of the accused on other occasions before that night, JH answered:
AYeah, there was just odd behaviour. Like one of them was one night he had gone to the toilet and then when he come back, he was just standing at the bed and he didn’t realise I was awake and he was like looking down at me and then when I moved he kind of crouched down and it was just weird. And then also – you know, I just became really suspicious over time as there was these things that he was doing that just wasn’t right and – you know, I caught him outside down the side of the house and I wanted to know what he was doing and he said he was checking the hot water service, and then he hadn’t come back and then when I looked out the window in the laundry, I could see him again, and when I went round to ask him what he was doing, because he was peering in the bathroom window at K and her friend in the bath and I asked him what he was doing, he said he was picking up leaves.
JH said that this incident occurred three months before she asked the accused to leave.
JH was asked whether the accused ever played with K on his lap or anything like that. She answered:
AYeah, yeah, he – they would play sometimes, but then I noticed he’d get this part erection and when I’d ask him about it, he’d just say – you know, he’d just palm it off like it didn’t happen, it wasn’t true. But I could see that it did and things just weren’t right.
JH said that the day the accused left the house she took K to the doctor to see if she was okay. The doctor said that she should take her to the police station to give a statement. She took her to the police station that day.
JH said that she saw the accused later that same day back at the house. Before that she had changed the locks of the house because of what happened. When asked whether she had any conversation with the accused about what happened, she replied:
AYes, I said that to him that he had been touching K and sexually, and that he had to leave.
QDid he say anything back.
AWell he didn’t want to leave because he wanted to stay with the family. I just told him that he had to leave.
QDid he say anything to you in response to your suggestion that he had been touching K.
AHe just said that you know, ‘What am I supposed to do when she comes in bed, lying next to me and wants her neck rubbed, you know, when she climbs on top of me and starts rubbing herself, what am I supposed to do?’ He couldn’t had help himself. He just said he just couldn’t help himself.
JH said that the accused then left.
JH agreed when cross-examined by Mr Algie that when she had gone into her daughter’s room that last night she had asked the accused what he was doing. She agreed he replied: ‘I am just tucking her in’ or words to that effect. She also agreed that he said something about her having a nightmare or being restless. She said that K appeared to be asleep when this exchange took place. She agreed that when she and the accused went back to bed and the accused appeared to go to sleep she lay awake thinking and wondering if something more might have gone on in the bedroom. She said: ‘Well yeah, hand under the sheet’.

When it was suggested to her that she had asked her daughter the next morning ‘Has G ever touched you on your private parts?’, she said that her daughter had told her that he had been touching her there. She said that if she had asked her daughter whether the accused had ever touched her on her private parts that was after K had said that he was touching her down in that area. She said that she first asked K ‘What was going on’.
When asked what she was thinking and wondering about as she lay in bed JH responded: ‘The lies that he had told me’. When asked whether the lies were that when she thought the truth was that he had touched her on her private parts, she responded: ‘No’. She then referred to what she considered to be lies told to her by the accused. She said that when she was thinking about all the times he had lied to her and thinking he had put his hand under the sheet, then he was lying about that.
JH said that she did not remember that K ever refused to go to her father’s for access, although she said she did not appear happy to do so. She was not terrified or fearful, she just was not happy. K had said it was a bit boring and she missed her friends.
JH said that she did not recall whether she believed or suspected that K’s natural father was sexually abusing her.
JH said that she did not remember that around the time she married the accused she had taken K to a counsellor and the counsellor had advised her of concerns of sexual abuse at the hands of her father. She said that she knew K had counselling after the accused had left. She said that later on in the year 1986 K had started misbehaving.
JH was asked about whether she had given evidence in the Adelaide Magistrates Court in December 1988 about the issue of K, her access to her natural father and issues of sexual abuse with respect to her father. Mr Algie put what was said to be a transcript of evidence from the Magistrates Court on 5 December 1988 before JH. That was done for the purpose of refreshing her memory as she had said she did not remember.
It transpired that when JH looked at the document, she agreed that she did give evidence in the Magistrates Court but that was evidence in relation to the accused. She explained that she thought Mr Algie was asking her about some court case to do with her ex-husband, K’s father.
When JH was asked directly about whether she had concerns that K’s father may have been sexually abusing K around the time of her marriage to the accused she said she did not remember, she did not think so. She said she did not remember that she spoke to the de facto partner of her former husband in early 1986 about concerns regarding her former husband masturbating in front of K and that woman’s son S. She said she did not remember speaking to the accused in early 1986 about concerns that she had about her former husband sexually interfering with K. She said she did not remember that in early 1986 she had any contact with officers from the Department of Community Welfare who were investigating concerns about her former husband sexually interfering with K, or, in particular, that he may have masturbated in front of K and S.
A passage from transcript was read to JH but she said she did not remember the questions and answers read to her. She said she would have been telling the truth but she does not remember ever thinking that her former husband had abused K in some way.
JH agreed that she stopped working at the Tavern in about March 1986. She said after that she had about three months off. When asked whether that coincided with her suffering ‘a nervous breakdown’ she said she did not think so, she did not remember. She said she was probably sick of working in pubs. She wanted to get out of the kitchen and do bar work.
JH said she did not remember that the reason for her quitting was severe depression. She said she did not remember being referred to see a Dr Bolton for treatment for depression.
JH said that she did not remember having ‘a florid breakdown’ in a tavern one afternoon where the accused and some of his mates were. She said she had no recollection of later being found by the accused at her home ‘rolling around and screaming, crying’. She said that if this occurred on 11 April 1986, that date did not ring any bells.
JH said that she did not remember K ever having nightmares. She said that if K had a nightmare and she heard her she would have gone into her room, but she could not remember doing that. She guessed that over the years she probably did go into her room if she called out to her but she did not remember doing so.
JH said she did not remember coming home from netball or work at night and finding K asleep in the bed with the accused. She did not remember that either she or the accused or both would pick K up and carry her back into her bed.
JH said that she did not recall speaking to anybody about an allegation of her former husband masturbating in front of K.
Mr Algie read some transcript to JH and she said she did not remember any of that. The transcript was of her evidence in the Magistrates Court on 5 December 1988. She had said that there was not an allegation that K’s father had masturbated in her presence but S had said something to his father who contacted the Department of Community Welfare who had asked her if they could speak to K, which they did. She was then asked to read a document which became Exhibit D4. She said she did not remember anything in it.
JH said that she did not remember suffering from depression or seeing a doctor for depression. She did not remember seeing a Dr Bolton over a period of time in 1986. The reading by Mr Algie of some questions and answers in December 1988 did not refresh JH’s memory. She had apparently said then that she had had trouble with depression. She had agreed she had seen a Dr Bolton, it was once, and he was not a psychiatrist. She said she did not remember seeing Dr Bryant about her depressive problems. She did not remember seeing a counsellor by the name of Goldsworthy. Evidence read to her was to the effect that she did see a counsellor of that name and that she had then said that something had happened at a tavern and that she was upset at that time. It also suggested that she had said that it took her three months to get over the depression.
Other evidence JH previously gave that was read to her related to the accused and herself getting up and giving K a drink or tucking her in during the night. She had also said that it was not unusual for the accused to check K on the way back from the toilet. She had also said that K had nightmares and that either she or the accused would go in and comfort her, but only if she was awake. Most times she was asleep, she never used to wake up.
JH was cross-examined about her evidence that she had on occasions seen the accused with a partial erection when he was playing with K. She said that did not occur all the time but it was on a few occasions that she noticed it. When it was suggested to her that that was simply not true she answered that it was and that she and the accused had a conversation about it afterwards. When it was suggested that she did not have a conversation either she said that they did.
When it was suggested to JH that there was no occasion when the accused looked through any bathroom window JH said that she knew what she saw and she saw it.
When JH was cross-examined about the day the accused left the house she did not agree that the accused responded immediately to her suggestion that he had interfered with K by saying he never touched her. She said she did not remember him denying any wrongdoing, she just remembered him ‘saying that he couldn’t help himself, what is he supposed to do ‘when she’s on top of me rubbing herself against me’’. She said she remembered that. She said that she did not remember that he denied it because he admitted afterwards to her that he could not help himself. She disagreed when it was suggested to her that that was simply not true. She agreed, however, that she had told the Magistrates Court and the police that the accused had said words to the effect of denying the allegation that she put to him that he had been sexually interfering with K. She said that she could not remember the words he used. She said that she did not remember that he denied it. She maintained that the accused had said that he could not control himself and that he had said ‘I just couldn’t control myself’.
SK was the across the road neighbour of the accused, JH and K. She got to know K quite well. She said that before she met the accused K was always a happy little girl, what you would call a normal kid. She said she noticed a change in her demeanour after she met the accused. She was then a bit withdrawn.
There were some agreed facts.
The accused was initially arrested on 17 April 1988 and interviewed. He denied the allegations.
There was a committal hearing in the Port Adelaide Magistrates Court in December 1988 and continued in June 1989. Evidence was given by Mary Janette Thomas, who was the police officer who initially interviewed the complainant, JH and Dr Helena Johnston. The accused also gave evidence.
An ex officio Supreme Court Information was filed with the Supreme Court for the August 1989 sessions.
A nolle prosequi was entered by the Director of Public Prosecutions on 31 January 1990.
Exhibit P5 is a statement of Dr Helena Johnston dated 10 June 1988. Part of Dr Johnston’s work involved the medical assessment of alleged victims of sexual assault and abuse. On 24 March 1988 she examined K in the Sexual Assault Referral Centre of the Queen Elizabeth Hospital. K presented as an active young girl, who was embarrassed when talking about any sexual activities. Dr Johnston’s genital examination of K revealed that she was a prepubertal child and that the hymen was intact and there were no recent nor old injuries of the genital area. The anal area was also normal. Dr Johnston was unable to come to any definite conclusion as to the possibility or otherwise of sexual abuse having occurred.
The ordinary rule is that witnesses may speak only as to facts and not express their opinions. An exception to that general rule is that persons duly qualified to express some opinion in some particular area of expertise are permitted to give evidence of their opinions upon relevant matters within the field of their expertise. Dr Johnston is such a person.
However, the law is that I am not bound to accept the opinion evidence contained in her statement. I remain the sole judge of the facts and I am entitled to assess, and accept or reject, any such opinion evidence as I see fit.
It is for me to give such weight to the opinions of Dr Johnston as I think they should be given having regard her qualifications, her partiality or otherwise and the extent, if any, to which her opinion accords with such other facts as I find proved to my satisfaction.
Exhibit P6 is a birth certificate of K indicating that she was born on 25 April 1979 at Murray Bridge.
Exhibit P7 is the antecedent history of the accused, dated 6 June 2012. It indicates that he was convicted of a larceny committed on 16 February 1979.
I was told that it was agreed that the questions and the answers that were read to JH by Mr Algie accurately represent the questions that were actually put in court at the committal and the answers that the witness actually gave.
That was the case for the prosecution.
The evidence of the accused
The accused gave evidence at his trial. He was legally entitled to give evidence in his defence, or refrain from giving evidence. The choice was his. In this case he gave evidence on oath. He was not obliged to do so. He could have remained silent in answer to the charge, leaving it to the prosecution to satisfy me of all the elements of it. However, he elected to give evidence on oath. The effect is that, in assessing him as a witness, his evidence, his credibility, and his reliability, I am to give such weight to it as I consider appropriate on the same footing as any other witness. It is for me to decide what weight I am prepared to attach to his evidence as I am required to do in relation to the evidence of the other witnesses in the case. Of course, by going into the witness box, the accused does not assume any burden of proof. The burden of proof still rests on the prosecution.
The accused told me that he and K’s mother were married on 19 January 1986. He told me that through his relationship with her mother he met K. He was asked by Mr Algie:
QDuring any period of the relationship and the time you knew K, did you at any stage touch her in the area of the vagina.
ANo flaming way.
QDid you ever have her in a position rubbing your body or her body against yours when you were both partially or fully naked.
AAbsolutely not.
QHave you ever done anything sexually inappropriate or sexually interfering with respect to K.
ANo.
The accused said that after he had moved into the house with K’s mother and in the time leading up to their marriage K seemed to him like a fairly normal child. He said that they noticed a big change in her when her father came to pick her up for weekends of access. He said she would cry, she would back pedal and just did not want to go. He said she just hated it. K’s mother’s attitude was that her father had to have K for weekends of access and she had to go.
The accused said that in the early part of 1986 in particular his wife appeared to have difficulties coping generally. He said she was very erratic and ‘you couldn’t have a sensible conversation with her and get any sense or logical answer of anything’. He said that that culminated in a particular incident at a tavern.
When asked to describe that he said that he and some other men had met at the tavern to have a little trophy presentation and a bit of a get together. He went on:
A… So all of a sudden we heard this car pull up at a hell of a speed, rate of knots, gravel going everywhere – it was all dirty out front, rocks – and the front door flung open and in stormed JH and she saw where I was sitting and come up and just hailed me down to the ground, just went berserk, just erratic, and as quick as it happened, it was over, she stormed out the door, and everybody looked at me and she stopped the whole publ. So – I didn’t drink, I was just having squash or an orange juice, because I drove a truck – I got in the truck and went home and I walked in the door and there she is on the lounge room floor just rolling around yelling and screaming and just crying and I said ‘Oh my God’, I had never witnessed anything like that before and I thought ‘What do I do?’. I just think, from memory, I walked out of the house and maybe went out the backyard or walked down the street or whatever, just let her be.
The accused said that event corresponded with a period when his wife was not working. She had told him that she wanted time off and said ‘I can’t cope anymore’. He added that that was when she was seeing Dr Bolton for help. He said that she went to him several times. He never went with her but he presumed it was to help her get back on track and to cope with life and its daily activities. He said that he had instructed his lawyers, in preparation for this trial, to try and locate Dr Bolton but that apparently had been unsuccessful.
The accused was asked about whether he became aware of concerns that arose with respect to possible sexual abuse of K by her natural father. He answered: ‘We had had a phone call from his partner at the time’. He explained who ‘we’ was in this way:
AWell, JH and myself. In fact, I actually answered the phone and it was (the new partner of K’s father) and she said to me ‘Has K said anything to you about what happened on the weekend?’, and I said ‘No, should she have?’, and that’s when she said about what the kids had witnessed (K’s father) was doing and – oh God. So we called K – JH and I called K and we asked her whether she and S saw daddy doing something he shouldn’t have been doing on the weekend and she just looked at us blankly and said ‘Nup’ and turned and walked away. I knew she was lying, we knew something wasn’t right, but just, you know – and that’s what I recall.
QWere you aware that that issue was apparently the subject of an investigation by the department.
ANo, I wasn’t actually, to tell you the truth.
QYou weren’t interviewed or spoken to.
ANo.
The accused gave evidence about the evenings when his wife played netball or worked and he would be left to look after K. He said that he would cook tea, make sure she did her homework, would run a bath for her and she would bath herself and when it came to bedtime he would put her to bed. He said that twice, when her mother was away working, K got into the bed he was in. When asked how that would come about, he answered:
AShe just said ‘Look, you know, do you mind if I can jump in mum’s side?’, and at first I didn’t mind and after a while, when JH came home, if I was asleep or I could have been awake at the time, I’m not sure, we would both take her out of the bed and put her in her bed, but she was getting heavy, I had to lift her up on the top bunk and trying to do that without waking her up was sometimes hard so I said to her ‘This has got to stop, you have your own bed, no more’.
QSo two times.
AYes, twice.
QAnd on those occasions, was she dressed.
AYes, she had her pyjamas on.
QDid anything sexual or inappropriate –
ADefinitely not.
The accused said that there was ‘no way’ that he ever got half an erection when playing with K somewhere. He said that there was ‘no way’ that his wife saw him on an occasion looking through the bathroom window when K and a friend of hers were in the bath.
The accused said that the weekend before his wife kicked him out of the house he said to her that he was going to the farm for the weekend. That was the farm on his parents. K had said ‘can I come?’. He had said that it was alright with him but better check with her mother. He asked JH and she said that was fine. K then asked if she could take her friend, so they rang up her friend’s mother and she said that was fine. He and the two girls went to Corny Point for the weekend. They spent the weekend at the farm.
The accused said that he was aware of K having what had been described as nightmares or problems in her sleep. He said that it was more so on the week leading up to her access with her father. He said that if he was awake or his wife was awake or if his wife was not there one of them would go in and check on K. He said: ‘It was just something we did as a family unit’. He said that if she was awake quite often she would ask for a glass of milk. He said that helped calm her down. He would get her a glass of milk, just talk to her, calm her down and then proceed to straighten out her bed and tuck it all in because it was all over the place. If she was not awake and if her bed was a mess for whatever reason then just quietly he would just tuck it in then leave the room.
The accused said that if he did not hear anything or if her mother did not hear anything, if either of them were going past to the toilet they would just poke their head around and see if everything was fine and just keep going on their way.
The accused said that he did go into K’s room the night before he was kicked out. He was asked to briefly describe how that came about. He answered:
AAs far as I can remember I stuck my head around the corner and she was still sleeping but her whole bed was all over the place. So I thought, so it was a fairly cool night so I just proceeded to pull her sheet up and tuck her all in and then I was pulling her doona up and tucking that in and her mother came in and switched the light on.
QHad that happened before.
AYes.
QAnd what, if anything, was said when the mother came in, as far as you can remember.
AShe said from memory ‘Is everything okay?’ and I said ‘Yes, I’m just finishing tucking her in’, and ‘She’s fine’. So she switched the light off and went back to bed.
QAgain, did you touch her –
ANo way, no.

The accused said that after work the next day he returned home. He was asked to tell me what happened when he got home. He answered:
AI put my key in the front door and it wouldn’t go in the lock and I thought ‘What’s -?’ I couldn’t work out what’s going on. So I tried the back door and that was the same. Well, by this time I’m really confused and so I thought I’ll try the laundry door because we never use that door because it had a big cupboard pushed up inside the laundry, up against the door so I put my key in the door and the door unlocked. I pushed the door open a bit, moved the cupboard out the way and walked inside. As soon as I got inside I noticed all these garbage bags in the hallway with my clothes all packed in. I thought ‘What’s going on here?’, so I just sat down on the chair, either made myself a cuppa, I can’t remember. Next thing JH, I saw her pull in the driveway, her key went into the front door and opened the door open and I said to her ‘How come your key worked and mine didn’t?’ and he (sic) said ‘Don’t worry about that, just sign the registration of the car and truck over to me, grab your stuff and bugger off’. I said ‘What on earth is going on?’ And she wouldn’t tell me. I couldn’t get an answer out of her, I couldn’t get anything out of her and I’m just totally confused. Well, she said to me ‘If you don’t leave I’m calling the cops’. And I – this is most probably the wrong thing to say – and I said ‘If you touch the phone I’ll pull it off the wall’, because I’m not a violent person but none of this was making sense. After about an hour I said to her ‘Anyway, where’s shortie?’, that’s her nickname, K. She told me ‘You’re never going to see her again’. I said ‘Why not?’ and he (sic) said ‘You’ve been interfering with her’. I said ‘No way’. I just could not believe what I was hearing. I was dumbfounded and I – I just – I couldn’t make any sense out of the whole thing and I just grabbed my stuff and put it in the car and left.
QDuring the course of that encounter did you at any stage say to JH words to the effect that you couldn’t control yourself when she’s laying next to you, or any such thing.
ANo way.
QOther than deny any wrongdoing, did you make any statements suggesting that you’d done anything.
ANo way, no way, absolutely not.
Mr Fowler-Walker cross‑examined the accused about that conversation. He said that he was dumbfounded with the whole thing, the whole of what he was hearing. He said he knew what his wife meant by ‘interfering with K’ but it was not true. He said he could not work out why she would say something like that. When asked whether after she had said something like that and he was dumbfounded, that he just left the house, he answered:
AI was upset. I – see, she wouldn’t – I couldn’t get like a straight answer out of her, she didn’t want to talk about it, why she was saying this. Just what am I to do?
QWell indeed, that’s my next question to you. Did you ask her at all about why it was that she was saying that.
AYes, I said ‘What’s brought all this around?’ and she said ‘Don’t worry about it, just grab your stuff and bugger off’, or something like that. ‘Just get out of the house’.
QYou didn’t inquire further as to the specific things she thought you’d done.
AMate, for that type of lady, with a fragile mind, how can you make any sense out of whatever she said? It wasn’t easy, it was hard. I was just totally distraught and I couldn’t get any straight answers out of her and why she would either suggest anything like this.
QHow long was it from when she said that you were interfering with K, that you left the house.
ACould have been half an hour or something, I’m not sure.
QIs what you’re suggesting in that half an hour you quizzed her about what she was saying about allegations that you’d interfered with K.
AI was trying to get – I was trying to work out how it even came about. Like why should this subject even come up. There was no need for it.
QWould you agree that that’s different to what you just said, when my learned friend was asking you questions, that initially you said you left the house as soon as she put that allegation to you. You didn’t suggest that it was half an hour, that you asked her about why she was making those allegations.
AWell, yes, I can only do my best to recall the circumstances, you know, at the time. I tried to get a logical explanation out of her but I couldn’t.
QIsn’t it the case that in that half an hour you put your head in your hands and admitted that you couldn’t help yourself.
ANo flaming way; no way. Definitely not.
The accused said that he was not aware of any time during the time that he was living with K’s mother either before or after they were married that K did not go to stay with her father without complaint. He said that K never said why she did not wish to go. He said that she was withdrawn when it came to talking about her father for some reason. She never said why.
The accused said that when his wife was erratic she was ‘(j)ust crazy, just over the top’. It was all directed at him and ‘as quick as it happened it was over’. He said that the incident at the tavern was the first and last time she had ever yelled at him.
The accused said that his wife would cry every time her former husband came to pick up K for access. That was every fortnight. When asked whether he would console her he answered: ‘I was there for her mate, you know, like that is all I can say’.
The accused agreed that from mid-1986 to when he was asked to leave the house he was looking after K two, three, maybe four times a week at night time while her mother was at work. He said that was ‘most probably’ the case. He said that she never appeared to be upset when her mother was not there.
The accused was asked this:
QWhy is it that you say on two times she wanted to come to bed with you when you were home alone with her.
AShe just asked me and I didn’t have any objection.
QWhy is it you can remember it is just two occasions and not more.
AThat is all it was, you know, because I didn’t want it to get out of hand and be an ongoing thing when she had her own bed to sleep in.
QWhat do you mean ‘out of hand’.
AGive them an inch and they take a mile.
QSorry.
AGive them an inch and they will take a mile. You have to have rules. You have to have rules.
QShe wasn’t misbehaving, on your evidence, when her mum was away.
ANo.
QPreviously you said that she was getting heavy so you had to stop, getting heavy carrying her to bed so she had to stop coming and staying in your bed.
AThere was once her mum put her to bed and she just, it was too heavy. It wasn’t fair to try and wake her up, like when you are carrying her, and put her in the bed and put her into a cold bed. You know, if I was asleep her mother had to do it or vice versa, you know, it was just, yeah, she had her own bed so she had to sleep in it.
QAre you sure it couldn’t have been more than a couple of times.
ANo.
QShe would stay in your bed.
ANo.
QTell us why it is that you remember these two times. When was it? What stands out in your mind as to those two occasions.
AIt was just something to put an early stop to because she had her own bed, like, that is all it was.
QAnd because she was getting heavy.
AYeah, you know, like it was – just didn’t want to disturb her while she was sleeping or risk waking her up or just the inconvenience of either her mother or myself or both of us getting her out of the bed to put her in her own bed.
QDid you every say to her ‘Come and sleep in my bed, your mum’s spot, take mum’s spot’.
ANo, no way, none at all.
The accused said he could not recall in which year either of these two occasions occurred and he could not recall specifically whether it was closer to the start or closer to the end of the period that he and JH were together.
When the accused was asked whether there were any occasions when K would play on his knee or on his lap, he answered: ‘Once in a blue moon she might show me her homework or, you know, just sit down and just, yeah, have, you know – yeah’. He said that he never had any conversation with his wife after K had sat on his lap. He never got any disapproving looks from her mother or anything like that. He said it was not correct that he got an erection when she was on his lap one time. He said his wife did not ask him about him getting an erection.
The accused said that his wife was never erratic with him other than that occasion at the tavern. When asked whether he thought she was acting erratically with a fragile mind when she kicked him out of the house he answered: ‘Well she wasn’t normal’. He said she was not normal because he ‘couldn’t make any sense of what she was saying. She didn’t want to talk about it. I tried to get her to talk about it and she wouldn’t. She wasn’t a normal person’.
The accused was cross-examined about the phone call from the woman who was the new partner of K’s father (S’s mother). He said that she had said that K and S had witnessed K’s father masturbating in front of them. He said he spoke about that phone conversation with K’s mother. When asked whether he spoke to her about what to do about it, he answered: ‘I could have, from memory, like said to her to get onto welfare or do whatever, see what she could do, you know, I’m not sure from memory’. He said he was not sure whether anyone actually went and spoke with someone from welfare. He said that S’s mother had just referred to ‘the kids’ as having seen something. He did not think she had said to him it was just S. He did not agree with Mr Fowler‑Walker when it was suggested that the allegation was brought up by S and never K. He said that was not the information that was given to him. He said that he and his wife called K into the room and she said that it did not happen. He said he knew she was lying. He said that both he and his wife came up with that opinion.
When the accused was cross-examined about K’s nightmares he said that she had them every so often. He said that she would have four or so in the week that she was to go away on access. He thought that K was possibly having nightmares when he first met her through her mother. He said that occasionally he would console K by touching her when she was laying in her bed. He indicated how he put his arm around her to calm her and console her, and to give her a bit of company. He said he would put his arm on her shoulders or maybe on her head and just talk to her and console her. He said he would normally use his right arm and put it around or on her shoulder to calm her, console her, give her a bit of company. When asked whether she was lying on her stomach or on her back, he answered: ‘Mostly on her tummy from memory, or from what I can recall’. When asked how many times he consoled her by touching her he answered: ‘Once in a blue moon I guess. Yeah, from memory’. When asked whether that was under ten or over ten times he answered: ‘I don’t know, I didn’t think there was a need to keep count. Don’t know’. Mr Fowler-Walker asked this:
QDo you actually remember putting your hand on her shoulder after she had a nightmare or is that something you’re just adding now.
AWhy – no, it’s just – like I said it’s just once in a blue moon, I just, just to make her feel safe, like just everything was all right.
QMy question is, do you remember that actually happening or is it something that you think you probably would have done.
ANo, I think I can remember it happening.
QNot so sure though.
ALook, its – look – no, its just, it just set - like there was a time she just needed, if she had a nightmare for whatever reason and it just seemed to make her more secure and just calm her down, like, to try and deal with whatever she was dreaming about or whatever the nightmare was about.
QI take it from your half a minute to a minute’s silence that you’re actually having trouble remembering any time that you put your arm around her to console her after her nightmare.
AWell, look, in all honesty I thought I was just being, like – you are sort of confusing me, like, you know, I just, it was just something that her mum did as well and just being a responsible, like in the welfare of your child.
The accused said that whenever K’s mother came into her bedroom when he was there she would switch her light on just to see if she was all right. She would ask if everything was okay and he would say ‘(y)ep, just finishing tucking her in’ and her mother would say ‘(y)ep, no worries’ and go back to bed.
The accused denied the suggestion that the night before he was asked to leave his wife came in to K’s bedroom, switched the light on and asked him what he was doing and that he understood that to mean that he had been touching K. He denied the suggestion that he had his hand under the sheets on that occasion.
The accused said that there was definitely not an occasion in a motel in Tasmania when K was in the bed with him when her mother was out of the room or in the bathroom. He said he was positive of this. When it was suggested to him that he had no pants on and he placed K on top of him and rubbed her against his penis, he answered: ‘No way, mate. No way’.
The accused denied that his wife caught him peering in to the bathroom window one time looking at K and her friend having a bath. He denied that his wife had challenged him about that and that he had said he was checking the hot water system or sweeping leaves.
The accused denied that he had an erection on an occasion when K was sitting on his lap and he denied that his wife had asked him about that.
The accused denied that on multiple occasions he had gone into K’s bedroom and touched her on the vagina and on occasions inserted his finger into her vagina. He denied that it ever happened that when K’s mother was out of the house he would ask K to come into his bedroom and then, whilst he and she had no clothes on their lower bodies, he would rub her vagina against his penis.
The accused denied that as soon as he came home on 24 March 1988 his wife said to him that she wanted him out of the house because he had been interfering with K. He denied putting his head in his hands and saying that he could not help himself. He denied saying ‘What am I supposed to do when she comes in and lies next to me and asks for a neck massage’. He denied that he had admitted to his wife to having a sexual attraction to K. He said that all of that was false.
During JH’s evidence Exhibit D4 was tendered. That is a Child Protection Report of a Community Welfare Worker dated 26 February 1986. It is headed ‘NOTIFICATION DETAILS’. It was tendered as a business record. It records the ‘(a)allegation as reported’: ‘That (K’s father) masturbated in front of K and another child. That (K’s father) & his de facto … argue & throw things at each other in front of the children’. It does not record who reported the allegation in those terms. The Report indicates that K and her mother were interviewed by the worker who prepared the report. Another departmental worker interviewed others, including S. It was written that K presented as a bright child, and appeared happy to talk with the report writer. She answered questions without hesitation except for slight embarrassment when talking about ‘private parts’. K’s mother stated that K had some problems with nightmares and bedwetting in November, December 1985, particularly prior to access visits (presumably to her father). ‘These problems are not currently occurring’. The Report indicates that K did not disclose to the reporter any events that would indicate abuse. K, when questioned by her mother about the incident, denied having seen her father masturbate. When interviewed by the report writer K acknowledged being upset at arguments between her father and his new partner. K knew the names of male and female ‘private parts’ and stated that she had only seen her father’s penis once when he came out of the shower without a towel and walked into his bedroom. The Report includes that ‘S told his father and police that (K’s father) has frequently masturbated in front of him and K’. K’s father strongly denied this allegation. The report states ‘(a)buse unconfirmed’.
The ‘Outcome’ is stated as ‘No Abuse, No Risk’. Under ‘Risk Factors’ it is stated: ‘Although information supports arguments at (K’s father’s) house have occurred and caused some stress for K, this does not necessarily indicate risk of abuse’.
Mr Algie tendered an affidavit which became Exhibit D8. I was told it related to endeavours that had been made to locate the Dr Bolton referred to in the evidence. The affidavit indicated that the Royal Australian and New Zealand College of Psychiatrists (SA) had no-one of that name registered on their records in Australia or New Zealand. Other enquiries did not return any results.
That was the case for the accused.
Findings, Conclusions and Verdict
With one possible exception all of the evidence K gave at the trial relating to conduct of a sexual nature that the accused did to her formed part of the charge on which the accused was tried. The one exception was the events she described as occurring in a motel room in Tasmania. Although those events were the same or similar to what she said happened when the accused rubbed her vagina against his penis when on a bed, which she said occurred at the Ethelton house both before and after the honeymoon in Tasmania, the events in Tasmania occurred outside the jurisdiction of this court. In that sense they could, if proved, be considered to be discreditable conduct that does not form part of the charge against the accused. It was not suggested that I exclude that evidence from the trial as it was the same or similar conduct that was alleged against the accused both before and after the honeymoon and that it occurred during the period particularised in the charge. Further, there is a sense in which that evidence could be used in a way favourable to the accused as it is the only time K alleged that he rubbed her vagina against his penis on his bed when K’s mother was in the vicinity, although not in the room.
The only evidence I heard that was in a different category to the charged evidence was from K’s mother. It was not entirely clear but after hearing all the evidence, it seemed that this it was confined to one occasion when K’s mother said that she had seen the accused appearing to peer into the bathroom when K and a friend were in the bath, and to a few occasions when she saw that the accused had what she described as a partial erection when K and he were playing and K was on his lap. She said that she had spoken to the accused about both of these events. He had said to her that he was checking the hot water service and clearing up leaves on the former of these occasions, and he had said to her that it did not happen as to the later. The accused denied in his evidence that he looked into the bathroom and he denied that he had a partial erection. He also denied that K’s mother spoke to him as to these matters.
I ruled that this evidence should be admitted. I considered from the limited amount that I was told about this evidence that it was potentially relevant, if proved, to establish that the accused was sexually attracted to K and that, if I was satisfied of it beyond reasonable doubt, I could use this evidence for that purpose only. I considered that its potential probative value substantially outweighed any prejudicial effect it may have had on the accused. I considered further that I could keep the permissible use of this evidence sufficiently separate and distinct from its impermissible use so as to remove any appreciable risk of my using it impermissibly. I did not consider that the fact that K would not give evidence about those matters made it either irrelevant or inadmissible for the purpose for which I admitted it.

There was other evidence that the Crown sought to put before me that was opposed by Mr Algie. I ruled that that would not be admitted. I considered that its probative value did not substantially outweigh the prejudicial nature of that evidence, on the limited information I had about it.
Following that favourable ruling Mr Algie obtained instructions to apply that I disqualify myself from hearing the trial. I refused that application as I considered that I could put from my mind in hearing and determining this trial what I was told about that matter. I consider that I have done so.
I note that this can be, and often is, a matter that will arise where an accused has elected to be tried by judge alone. This can particularly be the case where discreditable conduct is alleged in a trial involving a sexual offence or sexual offences. Here defence counsel submitted, in respect of the challenged evidence which I excluded, that whilst there may be some cases where a judge sitting alone should decide challenged evidence at the end of the Crown case after he or she hears the evidence, this was not one of those cases. Prior to the trial I did not read any of the witness statements as it is my practice not to do so in a trial by judge alone. Deciding admissibility applications pre-trial without knowing much of the detail about the case poses difficulties. Our criminal trial courts would find it difficult to function if pre-trial applications are decided by one judge a month before the trial by judge alone is set to commence, with the trial then being heard by another judge. The practicalities of that occurring in an ordered way are significant. It would inevitably cause significant difficulties with trial allocations. Furthermore, it is not infrequent that applications for a judge alone trial are made within the weeks, if not the days, before the trial is due to commence.
I return to the evidence from K’s mother and the accused about the accused’s peering into the bathroom window and sometimes getting a partial erection. Before I could use the evidence of K’s mother as to these matters I would need to be satisfied beyond reasonable doubt that they occurred. I am not so satisfied.
After hearing K’s mother give her evidence and after hearing what she said during the committal in a Magistrates Court many years ago I am not satisfied that her reliability as to these two matters is such that I can make a finding beyond reasonable doubt that any of them happened.
This means that I consider that the evidence upon which I could find the accused guilty as charged in the first count is the uncorroborated evidence of K. This does not, of course, mean that there is no evidence other than that of K relevant to my verdict. There is much evidence in respect of which there was no dispute at trial. Significant examples are that the accused and K were often alone at home at night whilst K’s mother was working, on a course, or playing netball. There were opportunities for what K described as having occurred on her mother and the accused’s bed to happen. Indeed, the accused’s evidence was that on two occasions K came into their bed when her mother was out and when he was in the bed. Further, there was no question at trial that the accused and K’s mother slept in a double bed in the room close to K’s room where she slept in a single bed and later in a bunk bed. It seemed not to be in dispute that the accused went into K’s bedroom at night from time to time. He said it would be to comfort her if she had a nightmare in the days leading up to an access visit to her father, or to check on her when he was returning from the toilet. There is also no dispute that on the night before the accused was asked to leave the house he was in K’s bedroom by her bunk bed during the night when K’s mother turned the light on to her bedroom. So, again, there was opportunity for the accused to do to K what K said he would regularly do when he came into her bedroom at night, when her mother was home, and put his hand under her underwear, touch her vagina and put his finger in it.
K’s evidence was that the accused would rub her naked vagina against his naked penis when they were on his bed when K’s mother was not at home at night. Further, her evidence was that when her mother was at home at night the accused frequently came into her bedroom, put his hand under her underwear and rubbed her vagina with it and put his finger in it.
The accused denied the he ever did any of this conduct.
It is not, of course, for me to determine whether I prefer K’s evidence or the accused’s evidence. What I have to do is decide whether, on all of the evidence, I am satisfied beyond reasonable doubt that the Crown has proved each and every element of the offence charged against the accused.
I referred earlier in these reasons to the fact that the events about which this trial was concerned occurred 25 years or more ago. That is a very significant period of time. It may have significant deleterious effects on the ability of the accused to defend himself against this charge. In this case that gives rise to a significant forensic disadvantage to the accused which might adversely affect his ability to have a fair trial. Unless this is acknowledged there is a real risk that the accused may suffer a miscarriage of justice by being wrongly convicted.
The significant delay in this matter has given rise to a significant forensic disadvantage to the accused, not only in respect of his ability to give evidence from a memory which may be tarnished by the effluxion of such a lengthy period, but which might result in a diminution of his ability effectively to conduct a case in his defence. That will include the cross-examination of K in a way that may cast doubt upon her credibility and her reliability, and will also include his ability to investigate and to marshal potential evidence and witnesses that may support a case in defence, including a challenge to K’s credibility and reliability. This forensic disadvantage is compounded in this case because of the nature of the charge here and K’s evidence regarding the sexual acts and conduct alleged to make up the charge against the accused. In saying this I am referring to the nature of the allegations of K in that she spoke of the accused touching her vagina and inserting his finger into it on many occasions over many months, and the fact that he rubbed her vagina against his penis on many occasions over many months. None of these occasions were identified as occurring on any particular occasion, except for the night before the accused left the house in respect of his touching her vagina and in respect of what she said happened on the honeymoon when she said he rubbed her vagina against his penis in a motel room in Tasmania.
Accordingly, the accused faced a trial in respect of which he could not say much more than none of the sexual events described by K occurred, and he had to say that 25 years or more after they were said to have occurred.
Furthermore, there were avenues of investigation that the accused could have explored in this case in preparation for his defence. Dr Bolton, who was referred to in the evidence, is one example. He could not be found by those acting for the accused. Also, possibly alibi witnesses could have been sought and presented at the trial. Further, the people involved in the report Exhibit D4 could have been interviewed and called at the trial.
It is for these reasons that I must, in considering the evidence and in reaching my verdict, scrutinize K’s evidence with great and particular care. I consider that in this case I must also acknowledge the significant forensic disadvantage the accused had in giving his evidence so long after the events when assessing him and the evidence that he gave at his trial.
I consider that I must do the things to which I have just referred notwithstanding the fact that there was evidence that there was a committal hearing in the Port Adelaide Magistrates Court in December 1988 and June 1989 when the police officer who initially interviewed K gave evidence, as well as JH and Dr Helena Johnston. The accused also gave evidence at that hearing. Whilst I know of some of the evidence that was given at that hearing by JH the full transcript of that hearing is not before me. I do not know the extent of the matters that were the subject of evidence at the committal hearing, and how that compared with the detailed evidence I heard at the accused’s trial. I infer that, at least by the middle of 1989, the accused had some idea at least of the nature of the allegations that were being made against him by K. Even though that might have potentially ameliorated some forensic disadvantage he suffered at the trial before me, I cannot judge the extent of that amelioration and over two decades have passed since the committal hearing. Therefore, I will do as I indicated I would do, by scrutinising K’s evidence with great and particular care and by acknowledging the significant forensic disadvantage the accused has suffered at this trial so long after the events which are the subject of it.
Another matter that I refer to at this part of my judgment is the evidence that the accused was convicted only once in his lifetime. That was for an offence of larceny he committed in February 1979 for which he was convicted and fined. I bear that in mind when I consider whether I am prepared to draw from all the evidence a conclusion of his guilt. I bear that in mind as a factor affecting the likelihood of him committing the crime charged. I also consider that matter in assessing his credibility as a witness. I also bear in mind that people do commit crimes for the first time, and that evidence of previous good character cannot prevail against evidence of guilt that I find to be proved notwithstanding the accused’s previous character.
I referred earlier to the fact that I am not satisfied beyond reasonable doubt of JH’s evidence of seeing the accused peering into a bathroom window and sometimes getting a partial erection. Accordingly, that evidence plays no part in what follows.
There were two other potentially important aspects of JH’s evidence. They relate to the events of the morning and of the evening of the day that JH asked the accused to leave the Ethelton house and he did.
First, there was JH’s evidence about what K told her about what the accused had done to her. JH’s evidence was to the effect that her daughter told her that the accused was touching her down there after she asked her daughter a general question as to what was going on between her and the accused. The accused’s case was that it was more likely that JH asked her daughter whether the accused was touching her vagina or touching her sexually or inappropriately and such a question elicited a response from K that the accused was doing so.
Secondly, there were the different versions of the conversation between JH and the accused when JH told the accused that he had to leave the house. JH’s evidence was to the effect that she told the accused that he had to leave because he had been touching K sexually. The accused replied that he did not want to leave but she told him that he had to. She said that the accused had put his head in his hands and said ‘what was he supposed to do … when she climbs on top of him’ and that he could not control himself. JH denied that the accused had denied to her the allegation that he had been touching K sexually. The accused’s evidence was to the effect that he could not make sense of what JH was telling him, but when she said that he had been interfering with K he denied it.
There is no doubt that the two conversations to which I have just referred occurred. The first is potentially important because it could be evidence of a statement by K to her mother that is relevant in assessing the truth of K’s evidence in court, including the fact that she was touched by the accused. It may indicate that K’s behaviour at the time when she spoke to her mother was consistent with the occurrence of the events of which she gave evidence at the accused’s trial. It may also tend to negative any notion that the allegation is a later invention. It may also assist me in assessing K’s evidence by considering the consistency, and therefore the credibility and reliability, of what she said then, with what she said in evidence before me.
I do not know where the truth lies as to the conversation between K and her mother on the day the accused left the Ethelton house. I have no doubt that JH was left with the very clear understanding that her daughter was indicating to her that the accused had touched her sexually. That must have been so in light of what JH then did during the course of the day by taking her daughter to a doctor and to the police, and later in the day telling the accused that he had to leave the house.
I am not able to find, however, whether JH asked her daughter a general question as to what was going on or whether she asked her daughter whether the accused had been touching her sexually. I tend to think that it was probably the former because I accept JH’s evidence that she lay awake the night before for some hours wondering about what was going on. She probably also thought about whether and how she would question her daughter about it. I cannot, however, make a finding with sufficient confidence either way. I have decided that I should not rely on the reliability of JH’s evidence in respect of this conversation with her daughter. K could not recall exactly how her mother worded a question or questions she asked of her that morning. She said that she told her mother that the accused comes into her room at night time and she believed that her mother asked her if he touches her, and she said yes. She said she could not remember the detail that she used as to where the accused touches her, or if her mother asked where.
In those circumstances I do not rely upon or give any weight to that conversation in assessing K’s credibility or reliability.
As to the conversation between JH and the accused when the accused returned to the Ethelton house later that day I am satisfied that when JH told the accused that he had to leave because he was touching K sexually the accused immediately denied that allegation. I am not satisfied that JH is reliable in the evidence she gave as to the accused not denying that, and, further, that he in some way accepted or acknowledged that the allegation of his touching K was true or could be true, and that he could not help himself. I am further satisfied that the accused did deny any wrongdoing and that he said nothing to JH from which she might have inferred that he was conceding that he had interfered with K sexually. This is not to say that I accept the accused’s account of this conversation. I thought his evidence on this topic was unconvincing and unreliable. What I have concluded about this conversation is largely influenced by what JH said about it at the committal and to the police.
As a result of the matters to which I have just referred I cannot find the accused of the charge against him unless I am satisfied of the truth and of the reliability of the evidence of K as to the sexual acts and conduct to which she said she was subjected by the accused. If I do not accept her evidence as to those sexual acts and conduct as truthful and reliable, and if I do not believe and accept them beyond reasonable doubt, then I cannot find the accused guilty of the offence charged. K is therefore a most important witness.
K was between six years and eight years of age when the acts and conduct about which she gave evidence as having been done to her by the accused occurred. She gave her evidence about them at least 25 years later, when she was a mature woman. Therefore she was, as a mature woman, describing events that she said happened to her when she was a young child. These are significant matters which require significant and careful scrutiny of her evidence.
I was very impressed with K and the manner in which she gave her evidence. She gave it in a clear and precise way. I consider that she gave her evidence in a way that disclosed no guile at all. She did not seem to me to exaggerate or embellish her account of what she said happened to her. I thought she was able to give an account of certain events that happened to her when I would have expected her to recall those details, if her account of the acts and conduct about which she gave evidence was true. One example was her evidence about what the accused would say to her when her mother was not at home at night. That was: ‘Come and keep me company while mum’s not here’. This evidence was convincing and compelling. There were other events about which K said she did not have a clear and certain memory, including some of what she said was sexual touching of her by the accused. An example was whether the accused penetrated her vagina with his finger on every occasion. She answered: ‘It felt like all the time but they were very hard to tell apart from one to the other. It kind of always was very similar’. She said that it felt like he did this a couple of times a week but she could not be certain. It seemed to me that that description was such as a child would recall what happened. She described the other conduct which she said the accused frequently did in a similar way. She said she remembered more of those events as her being on top of the accused but she allowed that she may be describing that because it was ‘such a visual memory’ that that occurred on the last occasion he did that. Again, I thought that was convincing and compelling. K said that although she believed the accused’s penis to be hard when these events occurred that was probably not really a memory she had as a child. She said that she would not have known at that time that a penis ‘could change like that’. I thought that was a response of a witness whose evidence was reliable and credible.
Under cross-examination by Mr Algie she said that after the accused married her mother her relationship with him was ‘okay’ but she did not really remember day-to-day behaviour. She remembered some things but not ‘relationship stuff or day-to-day stuff’. I might have thought that unusual except that my impression at the end of the trial was that the accused, JH and K possibly did not have a very close emotional or loving relationship with each other, or if they did, I did not hear much about it.
When listening to K’s evidence I was struck by her intelligence and her ability to express herself in a careful way. There did not appear to me to be any rancour in her towards the accused. That, and the quiet and simple, but firm, way in which she gave her evidence was not only very impressive, but convincing. I concluded that it was the evidence of a reliable and honest witness who gave an accurate and truthful account of the events that happened to her when she was a child living with her mother and the accused in the Ethelton house.
There were two topics upon which K, JH and the accused gave evidence to which I now refer. They were events concerning K’s natural father and K’s nightmares.
On the former topic there was evidence from the accused that K would rarely, if ever, happily go to an access visit with her natural father which occurred every second weekend. Her mother would insist that she go because there was a court order to that effect. The accused said that K would invariably be tearful and not wish to go. JH’s evidence was that there were occasions when K did not wish to go on access visits to her father. She said that sometimes K was not happy although she never refused to go. She said she was not terrified or fearful but K said, rather, that it was a bit boring and she missed her friends whilst she was on an access visit with her father at a weekend. I do not place significant reliance on that evidence because JH said that she did not recall whether she believed or suspected that K’s father was sexually abusing her. I am not suggesting by that that JH did believe or suspect that K’s natural father was sexually abusing her notwithstanding the fact that JH appears to have spoken to Departmental staff concerning a report that K’s father had masturbated in front of K and S. It is reasonably possible that JH gave the evidence she did at the trial not thinking that a report by S of K’s father masturbating in front of two children was the same as a belief or suspicion that he was sexually abusing K. There is a suggestion in the Departmental report that K became upset at arguments between her father and his new partner which I infer occurred on access visits. I think this body of evidence is equivocal and adds nothing of value to my consideration and determination of the issue in this trial.

There was also the body of evidence which related to whether or not K’s natural father had masturbated in front of K and S on one, or on more than one, occasion. K said in her evidence that she had never seen her father do that and she could not recall ever being questioned about that. She said that as far as she knew she was never asked if he had done anything. When she said that she was being asked about whether her father masturbated in front of herself and S. The report from the Department indicates that K did not disclose to the reporter any events that would indicate abuse. It is not evident from the report what was asked of K by the reporter. The report does refer to the fact that K, when questioned by JH, denied having seen her father masturbate. K acknowledged to the report writer being upset at arguments between her father and his new partner and that although she knew the names of male and female ‘private parts’ she stated that she had only seen her father’s penis once when he came out of the shower without a towel and walked into his bedroom.
Although it appears from the report that S told some people that K’s father had masturbated in front of K and himself, and that K denied to her mother at the time that that did not happen in her presence, when she gave evidence at the trial she could not recall ever being asked if he had done anything by people from the Department of Community Welfare. I believe her evidence that she did not recall that. I consider that her lack of recall reflected the lack of significance of this incident to her at the time it occurred. I cannot and do not make any findings as to this incident.
K’s evidence was that she recalled a recurring nightmare she had of drowning in the river. She would wake up holding her breath or gasping for air. There was another dream where there was a man standing in her window. She said that her nightmares did not incorporate her natural father. She said she could not recall whether she had these nightmare during the time that her mother and the accused were married. In the report, Exhibit D4, it is recorded that JH told someone that K had problems with nightmares and bedwetting in November, December 1985, particularly prior to access visits. It is recorded that ‘these problems are not currently occurring’. That report is dated 26 February 1986. I shall return to this topic.
As for the accused’s evidence I acknowledge that it can be very difficult for a person in the accused’s position to do much more at trial than give a simple denial of numerous sex acts and conduct alleged against him by a young child who was soon to become his step-daughter and then became his step-daughter. I have referred to that earlier and I repeat it here.
I thought, however, that the accused was a very unimpressive witness. In saying that I take into account and allow for the fact that I did not think that the accused was a particularly sophisticated man with a careful and precise way of expressing himself and in giving his evidence. I also allow for the fact that he was giving evidence about events which occurred over 25 years ago. Notwithstanding that, the accused maintained that he had a clear recollection of certain events and remained firm in that recollection.
I consider that what the accused said were the only two occasions that K got into his bed when her mother was not at home at night was particularly unimpressive and telling. I consider that the accused was untruthful when he said that that only happened twice. I consider that he was untruthful when he said that K asked him on these two occasions: ‘Look, you know, do you mind if I can jump in mum’s side?’. I consider that he lied about that and that the truth was that he said to K on many occasions: ‘Come and keep me company while mum’s not here’. Whilst the accused insisted that it was only twice that K got into his bed his evidence that followed was such that it was only consistent with K having been in his bed on more than two occasions. He inferred that he stopped allowing her to get in his bed because she was getting heavy and that either he or K’s mother had to try and get K on to the top bunk when JH returned home. His evidence was only consistent with K being in his bed a sufficient number of times for different scenarios to occur when JH came home and K was still in the bed. He said in cross-examination that he did not want her getting into his bed ‘to get out of hand and be an ongoing thing when she had her own bed to sleep in’. That was a different explanation to her being too heavy and he repeated the ‘heavy’ reason even after it was put to him that he had previously said that she was getting heavy and that was a different reason to stopping it before it got ‘out of hand’.
I also consider that the accused’s evidence about what he would do when he would touch K when he was in K’s bedroom to console her, or to talk to her, or to calm her during the night when K’s mother was in the house in her bedroom, was defensive, somewhat bizarre and unconvincing.
I am satisfied beyond reasonable doubt that the accused would regularly go into K’s bedroom during the night when K’s mother was at home. Maybe sometimes he went in because K was disturbed in her sleep by a nightmare, although I think it more probable that true nightmares occurred earlier in the period of time the accused was living at the house than later. I am also satisfied beyond reasonable doubt that the accused sometimes went in to K’s bedroom when returning from the toilet when K was not disturbed in her sleep by nightmares or otherwise. I am satisfied beyond reasonable doubt that the accused would go into K’s bedroom during the night when she was not disturbed in her sleep and when he was not returning from the toilet. When asked how many times he consoled K by touching her he answered: ‘Once in the blue moon I guess’. He repeated that it was once in a blue moon and added it was ‘just to make her feel safe, like just everything was all right’.
I do not believe that evidence. I am satisfied beyond reasonable doubt that the accused regularly went into K’s bedroom late at night when K’s mother was in her own bed and that he did so in order to put his hand under her bed clothes and under her underwear and to touch her vagina and sometimes partially to penetrate her vagina with his finger. I am satisfied beyond reasonable doubt that he did that when he went into her bedroom when K was disturbed, or he thought she was, or when he was returning from the toilet. I am satisfied beyond reasonable doubt that he did this frequently over the period he lived at the Ethelton house. I am satisfied beyond reasonable doubt that he did this in the night before he left the house.
I am also satisfied beyond reasonable doubt that for a significant part of the period during which the accused lived with K and K’s mother he would ask K to come into his bed when K’s mother was away from the house at night. I am satisfied beyond reasonable doubt that on those occasions he would remove K’s underpants and would put her on his exposed and naked genitals and rub her vagina on his penis. I am satisfied beyond reasonable doubt that he did that frequently.
I am unable to find beyond reasonable doubt whether the accused told K not to say anything to anyone about the sexual acts and conduct to which he was subjecting K, but I believe K when she said that she recalled that whether or not he said anything she knew that she should not say anything to anyone about what was happening. I am satisfied that she felt that she would like to tell her mother but could not, until the morning the accused left the house.
To convict the accused of the offence charged against him I must be satisfied beyond reasonable doubt that he persistently sexually exploited K, over a period of not less than three days, by touching her on her vagina, by inserting his finger into his vagina, and by rubbing her body against his genitals.
I am satisfied beyond reasonable doubt that the accused did to K what she said he did. I am satisfied beyond reasonable doubt that the accused was untruthful in his denial of the sexual acts and conduct he committed on K at the house at Ethelton.
I am satisfied that all the elements of the offence charged against the accused are proved beyond reasonable doubt.
I find the charged proved beyond reasonable doubt.
I find the accused guilty as charged in the first count.