R v B, RG - [2023] SADC 85

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v B, RG
Criminal Trial by Judge Alone
[2023] SADC 85
Reasons for the Verdict of her Honour Judge Tracey
12 July 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
The accused is charged with one count of Unlawful Sexual Intercourse with a child under the age of 12. It is alleged the accused performed an act of digital penetration on the complainant, who was 4 or 5 years old at the time. Complainant evidence - forensic disadvantage - uncharged acts - admissions.
The accused gave sworn evidence. The charge was not proven beyond reasonable doubt.
Verdict: Not guilty.
Criminal Law Consolidation Act 1935 (SA) s 5; Evidence Act (1929) (SA) s 34P(2)(a) , referred to.
R v Spencer [2019] SASFC 70, applied.

R v B, RG
[2023] SADC 85

The accused is charged with one count of unlawful sexual intercourse with a person under the age of 12 years.
It is alleged that this offence occurred between the 31 December 1987 and 1 September 1990, when the accused inserted his fingers into JG’s vagina. The accused is married to JG’s aunt MB. JG and was 4 or 5 years old at the relevant time.
JG recalled the accused saying words to the effect of “good girl”[1] as he moved his fingers around inside her vagina. The prosecution allege that the accused was found in the bedroom in which JG was sleeping by MB and next to JG’s bed, with the quilt cover pushed back and JG’s pyjama bottoms down. On the prosecution case there was a complaint made by JG to MB the following morning in the kitchen. It is alleged that the accused and MB subsequentially spoke about what had happened on more than one occasion and on the prosecution case, the effect of those conversations was that the accused made an admission to the offending.
[1] T 22.17-19, 43.14-16,
JG alleged that after the incident, and up until she was around the age of 8 years, the accused would tickle her and touch her genitals during games or while seated at the dining table.[2] That evidence was said to be led for a non-propensity purpose.
[2] T 24.36-38, 25.1-8.
The accused elected for trial by judge alone and the matter proceeded without a jury.
The prosecution must prove beyond reasonable doubt that the accused committed an act of sexual intercourse with JG. Sexual intercourse was defined in s 5 of the Criminal Law Consolidation Act 1935 (SA) at the relevant time as:
sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—
(a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object;
The prosecution must also prove that at the time of the alleged offences, JG was under the age of 12 years.
The prosecution called JG, MB, JG’s mother LB, and the investigating officer, Detective Brevet Sergeant Ackarie (DBS Ackarie).
The accused gave evidence.
Agreed Fact
It was agreed that the accused was born on 14 October 1952.
General directions
I direct myself as follows:
·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.
·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.
·At all times, it is for the prosecution to satisfy me that JG is both an honest and reliable witness beyond reasonable doubt.
·The accused gave evidence on oath in court and he was not obliged to do so. He could have remained silent in answer to the charge, leaving the prosecution to satisfy me of all the elements of the charge against him. He is entitled to have his evidence assessed and evaluated in the same way as all other witnesses in the case. I am not required to be satisfied of the accused’s version of events. The burden of proof lies with the prosecution. Part of the relevance of the version of events put forward by the accused is to consider whether it assists in casting a reasonable doubt on the prosecution case.
·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be not guilty.
·I must assess each witness as to their truthfulness and reliability and determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.
·Both JG and MB gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give their evidence.
·Due to the time which has elapsed since the alleged offending, the accused is now at a significant forensic disadvantage in challenging or responding to the allegations. Those disadvantages include the difficulty in cross-examining and testing of evidence. Due to the passage of time, it was clear that witnesses did not have good memories for details, impeding the ability of the defence to challenge them on matters of detail or expose where a witness had been inconsistent, or wrong. I must take these disadvantages into account when scrutinising the evidence from the prosecution witnesses and considering the evidence of the accused.
Evidence of JG
JG was born on 1 September 1984. Her parents separated when she was 2 years of age and she lived primarily with her mother.
While growing up, she spent a lot of time at MB and the accused’s house while her mother worked. [3] It was often overnight and during school holidays. The accused and MB had children who were around her age, namely JB who is a couple of years older and MC who is only 2 weeks older. The accused would be at the house most of the time when she was there.
[3] T 7.32-36.
When she stayed overnight, she would sleep in MC’s bedroom. He had bunk beds. She slept in the top bunk while MC was on the bottom. JC had his own room. She described the bunk beds as:[4]
… kind of laid out in an L-shape, so the top bunk was against the back wall and the bottom bunk sort of came out under the foot of the top bunk and went across the other wall, and MC slept on the bottom bunk, and I slept on the top bunk with my head on the opposite end to MC so my feet would have been at his end of the bed.
[4] T 17.25-31.
She said she believed the bunk was constructed from blue tubular metal. From memory the bedding was white with a clown print. She further explained that the lower bunk ran along a wall with a window and opposite the top bunk, there was a built-in robe. JG had drawn a plan for police when she provided her statement.[5]
[5] Exhibit P1.
JG said that there had been multiple renovations carried out on the house. She was not sure how old she was when a newer bathroom and the back lounge area was renovated. She thought she would have been very young, maybe 3 or 4 years of age. She said she had very little memory of what it looked like before that.[6] Exhibit P1 was a drawing after the first renovations.
[6] T 20.9-13.
As to the alleged offending, JG said that she would have been possibly 4 years old and it was one of her earliest memories. She said she woke up to the accused standing over her and putting his hand inside her underwear and his fingers inside her vagina and stroking. She remembered being very scared and trying to stay as still as she could because she did not want the accused to know that she was awake or to know that she knew what was happening. She remembered him saying “good girl”.[7] It was night-time and she was sleeping on the top bunk in MC’s room. She knew it was the accused because she heard his voice and because he was the only adult man in the house. JG said she was not sure what hand the accused had used but that he had used two fingers because she felt them.[8]
[7] T 21.19-20.
[8] T 32.21-25.
She said she felt the pressure of the accused’s palm on her pubic bone as he inserted his fingers inside her labia and stroked or rubbed inside.[9] While she could not exactly remember what she was wearing on the night, she thought that most likely she was wearing a nightie.[10] The accused pulled her underwear. She woke up at the moment it was happening. She said:[11]
I don’t exactly, I don’t remember – it’s like watching a film. Like, it’s very clear to me the things I do remember, but I don’t remember before or after.
[9] T 22.2-4.
[10] T 22.8.
[11] T 22.13-16.
The next morning, or very soon after, she was with MB in the kitchen while MB was stacking the dishwasher. She told MB that the accused had touched her vagina. She thought she might have used the word “peachy” because that word was what was used in her family to describe that area.[12] It was a word that she thought MB was very, very familiar with. She said she could recall standing in the kitchen and telling MB that the accused had touched her vagina and that she did not like it.[13] She did not remember what MB said in reply. After the incident, she had continued to go to her aunt’s house and stay overnight.
[12] T 22.35-37.
[13] T 23.1-3.
She described her mother and MB’s relationship as very, very close and said that MB was a very trusted person and one of her favourite people.[14]
[14] T 23.30.
JG was asked whether that was the only time that something of a sexual nature had happened with the accused. JG said that quite often the accused would tickle her until she could not breathe.[15] She would be yelling for him to stop, and he would be tickling her with one hand and have his hands on the outside of her clothes, touching her genitalia through her clothes at the same time. The tickling usually occurred in the loungeroom where they spent a lot of time playing. Her cousins would be present, but she did not believe they ever saw anything untoward. At around the age of 7 or 8 she had stopped spending quite as much time at the house because her brother was born when she was 8 and she had a stepfamily. She was however still visiting during school holidays.
[15] T 24.36-37.
JG said that when she would sit at the dining room table, the accused would touch her on the leg over her clothing, and around her genitals under the table.[16] She said MB always had tablecloths on the tables so it was hidden, and no one would see.[17] If she sat near the accused, he would touch her knee and on top of her clothing. She thought this was happening throughout primary school maybe from the ages of 8 through to 12. As she got older, she would avoid sitting next to the accused as much as she could. As she became a teenager, she had stopped spending much time at the house and she would try and plan to see MB when she knew the accused was away or see her at someone else’s house. She would still go there for dinner, and she would try and sit at the opposite end of the table or not sit down until the very last minute.
[16] T 26.27-29.
[17] T 26.30-32.
JG said she reported the matter to police on 16 January 2021.
In cross-examination JG said that she did not recall whether the incident in MC’s bedroom happened before or after renovations to the house. She did not recall what school she was attending at the time. She thought the renovations were in around 1989 but could not recall how long they went on for. She said she did not know whether the incident occurred before, after or during the renovations.
JG said she thought that the incident occurred around the time she turned 4. She remembered making her 4^th birthday cake with her mother and “those clusters of memories are all around the same time”.[18] She said it was most likely at the time that she was attending Elizabeth O’Grady Kindergarten.
[18] T 31.20-22.
JG was asked whether she had usually slept in the same bed as MC, sleeping head-to-toe. She said she did not recall that occurring at that house but that they did do that at her grandparent’s house.[19]
[19] T 32.13-14.
She had woken to the accused putting his hand under her underwear from the top. She did not remember the accused leaving nor remember MB being there in the room.
JG said that she and MB had been really careful not to talk about what happened because they were advised not to by police.[20] She agreed that on 9 May 2021, after the accused’s arrest, she had sent a text message to MB saying:
I’m very glad to hear you’re going to see Nathan to make a statement. You’ll be telling the boys. That’s a lot of what I was hoping to talk to you about anyways.[21]
[20] T 33.12-15.
[21] T 33.22-26.
She agreed that Nathan was the Detective involved in the case and ‘the boys’ was a reference to MB’s sons. JG said that they had been advised not to tell MB that the accused was going to be arrested. She went to police because she knew there were other children that were regularly at the house and she was worried for their safety.
JG said she had no idea that MB and the accused were talking about separating in 2017. She knew they were in the process of separating after his arrest. JG said that the dining room table was a big rectangular table. She did recall an octagonal table from when she was very young. She agreed that her aunt had not made any mention to her about having told her the next morning about the alleged incident until many, many, many years later.
She agreed that it was quite possible that the bunk bed had been white.
On being asked to look at diagrams depicting types of bunk beds, JG said that none showed the type of bunk bed that had been in MC’s room. She said that the top and bottom bunks were not connected. The top and the bottom bunk could roll out, which is why it was set up as an L-shape, so that when MC was sleeping on the bottom bunk he was not directly underneath. Sometimes it could be set up like a traditional bunk but usually when she slept there, it was set up in an L-shape so that MC could sleep on the bottom and she could sleep on the top. With respect to whether there was a trundle underneath the bunk bed, she said “from my memory it was two separates, but perhaps”.[22]
[22] T 38.28-29.
JG agreed that the suggestion that the renovations took place between 1989 and 1990 sounded about right.
In re-examination JG said that while she did not have a clear memory of when the renovations were taken, the suggestion of 89-90 “tracks fairly well’.[23]
[23] T 42.12-13.
Evidence of MB
MB said she had married the accused in 1973 and they separated in May 2021. She worked as a schoolteacher and would look after JG probably once or twice a week from the age of around 18 months. JG would sleep in MC’s room because he had bunk beds. The bunk beds were an L-shape with the lower bunk running along the window and the top running along the back wall. There were built-in wardrobes in the room. She said it was a lower type of bunk bed. They were white. They had juggling clown quilt covers. The house was renovated in late 1989 and the renovations took around 3 to 9 months. Her son MC had the same bedroom before and after the renovations took place.
MB said that she had been asleep in her bedroom when she heard JG whimpering and got up to see what the problem was, noticing that the accused was not in bed next to her. She went to JG’s room. The light was on in the kitchen over the stove so there was very soft light and she noticed the accused standing next to JG’s bunk. She said “what’s going on? What’s wrong?”.[24] The accused told her that JG had a nightmare.[25] She said she did not think anything of it. She looked over at JG and her quilt cover was pushed down and her pyjama bottoms were around her hips. She said she had an ‘awful feeling’ and tried to push it away. She covered JG up and went back to bed. By that time the accused was back in bedroom.[26]
[24] T 50.29-30.
[25] T 50.30.
[26] T 50.31-36.
The next morning JG came to her while she was standing in front of the dishwasher, and said:
“Aunty [MB], Uncle [B, RG] put his hand here and I don’t like it, and she put her hand on her genital area.[27]
[27] T 50.8-10.
MB said that she told JG that she would talk to Uncle B, RG about it and make sure that he did not do it again and not to worry. She gave her a big hug and JG went off to play.
Later that day, after having waited until JG had gone home with her mother, she spoke with the accused and asked him what he had done to JG. He did not say anything, looked downcast and was very quiet, which she said was unusual. She asked whether he had molested JG and he did not say yes or no.[28] She told him he had to leave the house and get some counselling. He left the house and was gone for a few days then returned, telling her he had visited a psychologist and that he had been abused as a child. That came as a shock to her. A few days later she said that she was “a bit of an emotional mess and cried a lot in the evenings”.[29] One evening she was crying and the accused, to comfort her, said “everything will be okay. We won’t tell anyone about what happened with JG”.[30] The accused did not want his parents to know because they both had health issues and she and the accused really spoke no more about it after that.
[28] T 53.7.
[29] T 54.20-21.
[30] T 54.23-24.
In cross-examination MB said that she was sure that the incident occurred before the house extensions. She agreed that the renovations involved moving the window in MC’s room to the side. She agreed that during the time of the renovations JG did not stay at the house. The incident occurred at the time that JG was 4 years of age.
When she saw the accused in MC’s bedroom his hands were by his side. JG was in the top bunk, and she was certain that when she went into the room JG was asleep. She denied that JG had used the word ‘peaches’.
MB agreed that she and the accused had attended the psychologist for one session. The accused had attended a personal development program called the ‘Forum’ before the incident and saw the psychologist a short time after the incident.
When it was suggested to MB that the accused went to a psychologist because of problems with the marriage, the first time being on 6 December 1990, which was after the renovations, after the Forum and well and truly after the alleged incident, MB said “well, I don’t know how that could be the case”.[31] She remembered going to see the psychologist with her husband but could not remember a meeting with the psychologist on 8 December 1990. She knew that the accused went several times to the psychologist, but she could not remember which year and accepted that December 1990 was a long time after the alleged incident.
[31] T 59.13.
MB said that at the time of the incident there was no mandatory reporting responsibility on teachers. She agreed that she did not ring JG’s mother about what had happened, but made certain that the accused was never alone with JG. She never saw evidence of JG being fondled on her leg or genital area at the dining table. She said that she did not think that the accused ever tickled JG and she had kept a very close eye on her. She denied the conversation with the accused after speaking with JG in the kitchen had never occurred.
MB said she remembered the accused going to several visits with the psychologist, while she was only involved in one. She did not accept that it was after those occasions that he informed her he had been abused as a child. He had told her about his abuse when he came back from seeing the psychologist after being away a few days after the incident.

She thought the top bunk was probably just over a metre high, perhaps a little more. There was a little ladder to get up on the side. She accepted that the height to the bottom of the base was about 4.2 to 4.3 feet. The top bunk came up to about upper chest height.
In re-examination, MB said that she thought the renovations in 1989/1990 started in a winter month because the remembered the accused making a comment that they were going to start the brickwork when it was raining.
MB said that tablecloths would be used in the house mainly when they had visitors, but rarely.
When questioned as to what her attendance at the psychologist in 1990 had related to, MB said “my husband came home after the first visit or so with the psychologist and said that he, he wanted to see us together and so I went with my husband. The psychologist related it to the accused’s abuse”.[32]
[32] T 66.16-21.
Evidence of LB
LB is JG’s mother and works as a registered nurse. Her sister MB would regularly look after JG. She described MB as her main support as she lived closest. In cross-examination she was unable to say when house renovations to her sister’s house had occurred.
Evidence of DBS Nathan Ackarie
DBS Ackarie is the investigating officer. JG made her report to police on 16 January 2021 and the accused was arrested on 21 April 2021.
Application to exclude evidence
At the close of the prosecution case, defence counsel sought a ruling on the admissibility of the evidence given by JG concerning the uncharged acts allegedly committed after the charged offending, said by the prosecution to be led for a non-propensity purpose.
The prosecution argued that evidence of the accused touching and tickling as JG alleged, negated an otherwise innocent explanation for conduct that would otherwise seem improbable or inexplicable. It enabled the charged conduct to be put in context where otherwise, the evidence revealed only a once off digital penetration by the accused.
In my view, evidence of the accused’s other uncharged sexual conduct could not properly be used for a non-propensity purpose because it could not provide any explanation as to the circumstances of the charged offending. It could not show context or provide any insight into the relationship between the accused and JG at the time when the offending was alleged to occur. I was not satisfied that the probative value of the evidence outweighed the prejudicial effect.
Admissions by the accused
The prosecution sought to rely on three conversations between the accused and MB which the prosecution argued in combination with the accused’s responses or lack thereof, amounted to an implied admission to have offended as alleged.
The first conversation was said to have occurred between the accused and MB after JG’s disclosure to MB when she confronted the accused. The accused did not admit, or deny, or inquire as to the allegation. MB was said to have told the accused to leave and asked him to get some help. It was alleged that the accused left the house for about a week and, upon his return about a week or so later, he and MB had several conversations. In one of those discussions, the accused was alleged to have told MB that he had spoken to a psychologist and disclosed to her that he himself was abused as a child. In another conversation, within days of his return to the house, in comforting MB, the accused told her that he did not want his own mother and father to know what had happened to him as a child and asked MB to keep what had happened to JG quiet.
The prosecutor argued that at the time the allegation was first made to the accused, he might reasonably have given some sort of explanation or denied the allegation. As to the second conversation after the accused returned to the house, the accused's conduct of leaving the house without protest, later returning, and telling his wife that he had seen a psychologist, in combination with the earlier conversation gave rise to a clear inference that the accused was admitting his wrongdoing.
The third conversation said by MB to have occurred 'a few days later, probably',[33] is, in the prosecutor’s submission, a third admission that stands alone, and gave greater context and understanding to the earlier admissions. In telling his wife that he wanted to keep what had happened to JG quiet, there was an acceptance that something had happened to her. In the context of all the evidence that 'what happened with JG',[34] those words, can only be a reference to the charged offending and therefore an admission by the accused.
[33] T 54.19.
[34] T 54.24, 55.9, 80.36-37, 81.14, 92.14.
In my view, leaving aside my view of the reliability of MB’s evidence, and about which I will discuss later, the conversations alleged to have occurred between MB and the accused were not capable of amounting to an admission in line with the principles as outlined in R v Spencer[35], either in isolation or in combination. At best, the alleged conversations were equivocal in that they could well have related to a recognition by the accused that he had been told of the allegation. His responses have several potential meanings. A decision to leave the house and not deny the allegation could not be said to have substantially admitted the truth of the whole or some part of the allegation made. The third conversation wherein the accused was alleged to have said that they would not tell anyone about what happened with JG, could in my view have been a reference to having been told about the allegations previously and little more.
[35] [2019] SASFC 70 at [35] – [39].
Evidence of the Accused
The accused is 70 years of age. He said that the house renovations started in late winter in 1989. The window at the rear of the house was removed and bricked in and put onto the side. The bunk beds had a trundle underneath. They were white. There was a rail with a ladder at one end. It was a trundle bed with a mattress underneath.
He agreed that in her younger years, JG stayed over at their house a fair bit. She usually slept with her cousin MC, head-to-toe. When they started doing the renovations, he did not recall seeing JG at all. He had no memory of her being in the middle bedroom. He did not recall seeing her much at all after the renovations, other than at family gatherings. Before the renovation the kitchen table was octagonal and there was never a tablecloth except for a special event.[36]
[36] T 87.12-18.
He had, by reference to a curriculum vitae he had prepared in 1997, attended the personal development program ‘Forum’ in June 1990. In late 1990 he saw a psychologist. He was under a significant amount of stress from being victimised and bullied at work and from the renovations. Someone suggested he see a psychologist.
The accused said that his wife attended the psychologist on one occasion. He had attended at the time but was not in the room with her. The receipts he had from the psychologist showed that the first consultation was dated 6 December 1990 and the last was in March 1991.[37] He said that during the discussions with the psychologist it surfaced that he had been abused and he told his wife about that. He was abused by family members over about a 6- or 7-year period.
[37] Exhibit D7
He said he did not recall his wife confronting him about an incident involving himself and JG. He frequently went away on work related matters. His discussion about seeing the psychologist occurred in late 1990, and the renovations had been completed.
He said the discussion where he told MB that everything would be alright and that they would not tell anyone, concerned his own abuse.[38] He did not want to tell his parents about his own abuse which had been perpetrated on him by two family members and did not want his parents to feel guilty about the fact that it had happened at home and that they had not stopped it.
[38] T 92.16.
He said that the bunk beds were never at right angles and the room dimensions would not allow for that.
In cross-examination the accused said that he had been under a fair amount of stress at work because of his supervisor and because of the house extensions. There were also issues in the marriage. Someone suggested that a psychologist might help, and he thought that he would give it a go. The accused was unable to explain why the psychologist had asked for his wife to come in for an appointment.
He described in detail the nature and extent of the renovation work that had been undertaken and agreed that the location of MC’s bedroom remained the same in the house and never changed.
The accused said he had no recollection of JG sleeping in a bunk bed. His recollection was that the bunk beds were in the middle bedroom and purchased because during the extension, his two sons could sleep in the middle bedroom together. He had no recollection of the bunk being in his son MC’s room before the renovation.
He had no recollection of a conversation between himself and his wife about JG and denied he had been with JG as had been alleged.
He denied that there was a confrontation with his wife about her conversation with JG earlier in the day or that his wife asked him to get some help. He said he went to counselling of his own accord.
He agreed that he did tell his wife that he had been abused as a child after he had seen the psychologist but was unable to remember much of the detail of what was discussed. The accused said that he did not want his wife to tell his parents about the abuse. His parents were very old school, and they would have become upset, and their health was not good. One of the abusers was a trusted family member.
The Prosecution Addresses
The prosecutor submitted that JG was a compelling witness who was genuine in her recount and that her ability to recall particulars was impressive. JG did not embellish what she said she recalled about the alleged incident and accepted that there were limitations to her memory. Nothing in her cross-examination undermined her credibility or reliability.
While JG’s account was said to have been supported by MB, the prosecutor emphasised that JG’s evidence did not rise and fall with MB's evidence. If I were to have reservations about MB’s honesty and reliability, it did not follow that I should have those concerns about JG’s evidence and I could, it was argued, convict the accused of the charged conduct based on the evidence of JG alone. Having said that however, the prosecutor argued that I should accept MB as a credible and reliable witness.
The prosecutor submitted that the evidence given by MB revealed complete support for what JG described of her memory of the charged conduct and urged me to find that if I accept the combined effect of JG’s evidence and MB’s evidence, then I could reject the accused's denials of being in his son MC’s bedroom and his denial of the charged conduct.
As to the inconsistency of JG’s account with that of MB, regarding MB coming into the bedroom that night, regard should be had to her recollection of the offending as a snapshot rather than a complete picture. There was no inconsistency, rather she could provide no comment, one way or another.
While MB said she observed JG’s pyjama bottoms being pulled down, JG said she would have been in a nightie, which in effect, was her best guess based upon the fact that she commonly wore nighties. JG did not assert a positive memory.
It was submitted that the account given as to the layout of the bedroom and the bunk bed by MB supported JG’s evidence on those topics and accepting that evidence would allow for a finding that the accused had opportunity to offend against JG and the mechanism to do so in the way that JG described.
The prosecutor submitted that the accused’s account that he could not remember what was in the room pre-renovations and his very noncommittal evidence was averse to his credit and that the accused's account of JG and his son sleeping in the one bunk bed simply made no sense. It was accepted that there were two bunk beds and a trundle, so this was simply a poor attempt on the accused's part to distance himself from opportunity to offend by suggesting that JG and his son would sleep in the same bed.
The complaint had immediately followed the alleged offending, entirely consistent with what would be expected in the circumstances. The account given by JG and MB were entirely consistent in terms of timing the following morning; the location being in the kitchen with MB in front of the dishwasher; and JG approaching MB to make the disclosure.
JG agreed that she had sent a text message to her aunt on 9 May 2021, following the arrest of the accused saying that she was glad that MB was going to see the investigating officer to make a statement. JG denied discussing with MB what her evidence was going to be prior to coming to court. There was nothing to suggest that had not been the case
JG said that the charged conduct was one of her earliest memories and that she associated her memory of the incident with her other earliest memories. She said she was most likely attending Elizabeth O'Grady kindergarten in Grange, but she could not confirm that. She said when you are little you do not know dates. MB’s evidence was that the incident had occurred when JG was about four years old. She said she would have been very young when the renovations took place, three or four, and that she had little memory of what the house looked like before that. She could not say whether she was in school or not.
The prosecutor submitted that from the evidence I could probably not be satisfied of whether the charged conduct occurred before or after the renovations. JG said she was about four years old, as did MB. Even on the accused's account the renovations took place sometime from around May 1989 through to early 1990. In the prosecutor’s submission, pre-renovations there was a period in which the charged conduct could have taken place, a period of about seven to eight months and a couple of months either side of that as well. In the prosecutor’s submission, on anyone's account there was opportunity for the offending to have taken place and opportunity to offend against JG in the way that she has described.
With respect to the timing of the visits to the psychologist, if I were to find that M’s evidence on the topic was not credible or reliable, it should not impact upon my assessment of the credibility and reliability of JG and her evidence.
The prosecutor conceded that a visit to the psychologist in 1990 had to have been after the renovations and after the charged incident, however, argued that any criticism that arises in respect of MB's credibility or reliability on this topic does not flow through to JG.
There was, the prosecutor submitted, no proven inconsistency in MB's account given the receipts show attendances between the end of 1990 through to 1991. MB's account was that the accused told her that he had been to see a psychologist.
It might be, the prosecutor conceded, that MB was simply confused. The prosecutor submitted that I might find it curious that the accused was able to produce receipts from the latter period of time but nothing in respect of the earlier period of time when it is alleged that the charged incident took place.
In the prosecutor’s submission, even if MB was confused about the timeline, it did not mean she was an untruthful witness and that I could be satisfied both of the substance of the conversations that took place on MB's account and that they occurred in the days or the weeks that followed the offending.
The prosecutor submitted that the accused was a poor witness and his denials ought be rejected. There were several topics where he was somewhat evasive, including the time his wife attended at the psychologist, and the reasons why the psychologist had asked to see his wife. Further, it was suggested that the accused was evasive regarding the conversation with his wife where he disclosed that he had been abused as a child and simply said he could not remember the details of that discussion. His account of JG and his son sleeping in the one bed simply made no sense and his denials should be rejected.
Defence address
Defence counsel reminded me of the forensic disadvantage to the accused and suggested that at the end of the day it may be that I could not find where the truth lies. He invited me to acquit the accused as his guilt had not been proved beyond reasonable doubt.
Clearly if the accused’s evidence was accepted, he would be found not guilty but even if I were not satisfied on this evidence, then I must turn to the evidence of JG and MB to be satisfied that there were no internal inconsistencies and that they could be relied on to prove the prosecution case beyond reasonable doubt.
Defence counsel submitted that it appeared the incident, if it did take place, took place prior to the house renovations. That, defence counsel submitted was important with respect to collusion. There was a text message between JG and MB. While they denied any collusion in the sense of putting the story together, there were features about the evidence which tended to suggest that there may have been collusion about certain topics.
MB’s evidence could not be accepted. She said that within a couple of days after the offence the accused saw a psychologist, which, given the date of the receipts, was inconsistent with her evidence that the incident took place before the renovations. Defence counsel argued that if MB was wrong about that and wrong about the psychologist, was there a possibility that there was no such conversation the day after the alleged incident and if so, how was it that the conversation between MB and JG came into being save and except if there was a suggestion of collusion.
Both JG and MB pinpointed the incident at a time when JG was aged four which would be 1988, and MB suggested it was before the renovations which would be 1988 to early 1989, some 18 months before the accused went to see the psychologist.
Clearly witnesses had differing recollections about the bunk bed, which given the delay in bringing the matter to trial, demonstrated another forensic disadvantage to the accused.
In terms of the octagonal table, MB and JG’s evidence differed. JG initially described a big rectangular table and when cross-examined about that and the use of tablecloths, JG said that was in the very early days.
JG identified that the accused had used two fingers, something defence counsel submitted would have been extremely difficult for a very young girl to have assessed. JG described it as being under her underwear and indicated that she probably would have been wearing a nightie. This must be contrasted with MB’s evidence that she observed JG’s pyjama bottoms pulled down to the top of her legs.
JG said that she was awake and closed her eyes but had not heard the accused tell MG that JG was having a nightmare. She heard the accused saying 'good girl' or something similar, but MG did not hear that.
Defence counsel submitted that there were several reasonable possibilities for JG’s account such as JG having dreamt what occurred or reconstructed something over the years. Defence counsel suggested it would be unusual for a four-year-old to be on the top bunk. For the accused to have reached in with the right hand into JG’s pyjamas or under her underwear and place two fingers in the vagina, MG would have seen the accused’s hand movements.
Defence counsel submitted that it was a reasonable possibility that his conversation with MB related to him having been abused as a child.
Defence counsel questioned whether there was a consistency of account in the complaint given that JG said she told MB that the accused had touched her in the vagina area, as opposed to placing his fingers into the vagina.
The accused gave evidence and was not shaken in cross-examination. Any criticism of his lack of memory on certain topics was understandable given the alleged events were 30-odd years ago.
Defence counsel submitted that while we do not know whether there was mandatory reporting or whether JG would have reported her husband in the circumstances, she said she had observed JG and the accused over the next number of years and she made certain that the accused was never alone with JG, at odds with what JG said occurred.

In conclusion, defence counsel submitted that in the circumstances where there were internal inconsistencies between the two stories, I could never be satisfied of the accused’s guilt beyond reasonable doubt.
Discussion
I have found the evidence of MD troubling in that it was difficult to accept the accuracy of some important aspects. The conversation she had with JG the morning after she had found the accused in JG’s room, would in my view, naturally have assumed much importance, coming against a background of having seen the accused in MC’s bedroom the night before and having seen JG with her pyjamas down. In my view, she would likely have played far greater attention to the details than was evident from her evidence. Even accepting that the events were a very long time ago, it is difficult to imagine a more confronting scenario than a much-loved and very young niece coming to her with such a serious allegation about her husband. There was no suggestion that MD had not believed JG or that she decided not to confront the accused. On her evidence, she did confront the accused and apparently accepted that he had seen a psychologist, was reassured by the accused, and decided it would seem, to leave the matter there, although thereafter not letting JG out of her sight. While I accept that it may be a difficult decision to report the matter to police or even to her sister, it seems that she did not discourage JG from attending at her house, even overnight. On JG’s evidence, the accused continued to offend against her, despite MG’s vigilance.
I found it surprising that MB had so little recollection of why it was that she attended the psychologist or what was discussed. Had it been in relation to the allegations made to her by JG, I would expect MB to have some recollection as regards the purpose of her meeting with the psychologist. I would also expect that MD would have been paying close attention to the accused attending such consultations, and not merely relying on his say so, if that is what she did.
On the evidence that is before me, it is more likely that the incident, if it occurred, took place before the renovation of the accused and MB’s home. Again, on the evidence that is before me, I find that the accused’s visits with the psychologist commenced in late 1990, therefore, some considerable time after the incident is said to have occurred. Plainly in my view, there is doubt as to the accuracy of MD’s recollections of when the psychologist was first consulted, and furthermore, why he had attended on the psychologist. Those doubts must necessarily cause me to question the veracity of MB’s evidence overall and, in relation to the conversation she said she had with JG the morning after the incident.
The prosecution has encouraged me to conclude that even if unable to accept MB’s evidence, I could regardless, on accepting JG’s evidence, find the accused guilty. Certainly, the complaint to MB was to a person and at a time where it would be expected. While the complaint must be referable to the charge, it would not be realistic to expect complainants to provide that level of precision in an initial complaint, and I reject the defence criticisms in that regard. I accept that there was opportunity for the accused to offend as alleged, and I have found that JG appeared to be doing her best to accurately describe what she recalled of an event when she had been asleep and awoke to the accused standing over her with his fingers in her vagina. While there was no suggestion that overall, she was exaggerating or seeking to make things worse for the accused, her evidence that the accused has used two fingers, was difficult to accept given her age at the time. Other than the time between the alleged incident and the time of trial playing a role in the accuracy of recollection, there was nothing that particularly indicated JG did not have a genuine, although it must be said, very limited, recall of an event which she described as a ‘snapshot’.[39]
[39] T 23.6-8.
The defence has raised the issue of collusion between JG and MB, but I am unable to conclude that the inconsistencies in their evidence lead to a conclusion that has been so. Some inconsistencies between JG and MB, could be adequately explained by the delay in the matter coming to trial and JG’s age at the relevant time. The state of the evidence is such that there can be no certainty regarding the accuracy of any witness’s evidence concerning the sleeping arrangements, what JG was wearing, the type of bunk bed or where the bed was located at any given time. In my view, little can turn on those details other than to point to the significance of the forensic disadvantage facing the accused.
I have however, found it hard to reconcile JG’s inability to recall MB’s presence in the room when the accused was there. MB said that JG had been whimpering and that was what had woken her. JG’s evidence was that she was awake but pretending to be asleep and not wanting to let the accused know she was awake.
As to the complaint to MB the morning after, there were differences between them as to what had been said by JG. While those differences may have been on account of JG’s age at the time, and the delay to trial, her memory of her interaction with MB in those circumstances was strikingly clear, and to the extent that she recalled she had used certain words and what MB had been doing at the time. Of concern to me was the apparently more recent discussion between JG and MB wherein MB discussed the complaint that JG had made to her ‘many, many, many years later’,[40] causing me to question whether JG’s recollection of having made such a complaint was genuine, or simply an adoption of an event described to her. There was no re-examination to clarify when that further discussion had occurred.
[40] T 35.16-17.
While I make no criticism of the accused’s inability to recall certain details given the delay, he was not an impressive witness. He was prone to making speeches, keen to pre-empt questions put to him by even his own counsel, keen to portray JG in a poor light and focussed on explaining the importance of his work. That is not to say however, that I have rejected his denials. There was nothing inherently implausible about his evidence that JG and MC slept head to toe. JG said herself that she had done so at her grandmother’s house. Against a background of my concerns regarding MB’s evidence, I found entirely plausible the accused’s version of the third conversation with MB relating to his wish for his own abuse not to be disclosed to his family, rather than having concerned the allegation he abused JG.
Having had regard to the credibility and reliability of MB and the inconsistencies between her evidence and that given by JG, together with the denials made by the accused and the forensic disadvantage to him, I cannot be satisfied beyond reasonable doubt the defendant committed the sexual act alleged against him. I have been left with uncertainty as to the accuracy of JG’s memory particularly as it occurred after having been asleep and then woken, and where she has described her memory of the accused’s offending as a ‘snapshot’[41] of the accused standing over her. As I have said, I am uncertain about the accuracy of her recollection that she complained to MG. While I am in no way critical of JG, who was a young child at the time, there is here a reasonable possibility that JG was simply mistaken as to her memory. I am unable to reject the accused’s evidence as a reasonable possibility and I find the accused not guilty.
[41] T 23.6-8.