R v Boatswain - [2014] SADC 167

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOATSWAIN
Criminal Trial by Judge Alone
[2014] SADC 167
Reasons for the Verdict of Her Honour Judge Davison
7 October 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
It is alleged that between 1 January 1997 and 17 June 2002 the accused committed more than one act of sexual exploitation of the complainant, a person under the age of 10 years.
Verdict: Guilty
Juries Act 1927 s 7; Evidence Act 1929 s34C, s34CB, s34M, s34P, ; Criminal Law Consolidation Act 1935 s50(1), referred to.

R v BOATSWAIN
[2014] SADC 167
Background

The accused is charged with one count of Persistent Sexual Exploitation of a Child. The child is TQ. She was born on the 17^th June 1991 in Broken Hill. She is now 22 years old. The accused is her mother’s uncle. The accused was born on the 26^th March 1955. The offence is alleged to have been committed between the 1^st January 1997 and 16^th June 2002 in Berri. At those times TQ was aged between 6 and 10 years old. The accused denies any sexual misconduct on his part.
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Darryl Reginald Boatswain between the 1^st day of January 1997 and the 16^th day of June 2002 at Berri, committed more than one act of sexual exploitation of [TQ], a person under the age of 10 years.
It is alleged that the conduct comprising the ongoing acts of sexual exploitation included:
(a)Causing [TQ] to touch Darryl Reginald Boatswain’s penis and masturbate him on one occasion.
(b)Touching [TQ] on the vagina on more than one occasion.
(c)Penetrating [TQ’s] vagina with his finger(s) on more than one occasion.
(d)Penetrating [TQ’s] vagina with his penis on more than one occasion.
(e)Rubbing his erect penis between the lips of [TQ’s] vagina on one occasion.
Trial
The trial proceeded as a trial by judge alone pursuant to section 7 of the Juries Act 1927. There were no preliminary applications in relation to the matter. No objection was taken by the defence in relation to any matter. As a consequence of this matter being tried by judge alone I did not read any of the statements that had been filed with the Court.
General directions
I remind myself of the following fundamental principles.
·Mr Boatswain is entitled to the presumption of innocence – he is to be regarded as innocent unless and until his guilt has been proven by the prosecution beyond reasonable doubt.
·Each element of the offence must be proven beyond reasonable doubt and if any element is not so proven the appropriate verdict is not guilty.
·The burden of proof of guilt rests upon the prosecution. There is no onus of Mr Boatswain to prove or explain anything. Any uncertainties or gaps in the prosecution case must be resolved in favour of Mr Boatswain.
·Mr Boatswain elected to give evidence. He was under no obligation to do so. In doing so he subjected himself to cross-examination. He denied the charges and answered questions about the surrounding circumstances.
·Mr Boatswain’s evidence should be assessed in the same way as the evidence of any other witness. In particular it should not be given any less weight because he is the accused in this trial. To do so would be to deny him the presumption of innocence.
·Proof beyond reasonable doubt means what it says and needs no further elaboration. The mere suspicion of guilt or even that he is probably guilty is not sufficient. Nothing short of proof beyond reasonable doubt is sufficient.
·Even if I reject the denials of Mr Boatswain beyond reasonable doubt, that is not sufficient. In order to find Mr Boatswain guilty I must be satisfied of each element of the charge beyond reasonable doubt.
Elements of the offence
The elements of the offence of Persistent Sexual Exploitation of a Child are as follows:
1that the accused was an adult at the time of the alleged offending;
2TQ was under the age of 17 at the relevant time;
3that the accused committed more than one act of sexual exploitation against TQ;
4that the acts were committed over a period of not less than 3 days.
In relation to the first element, the accused gave evidence that he is presently 59 years old. The allegations are that the acts were committed between 1997 and 2002. I find that the accused was an adult at all relevant times.
The second element is that TQ was under the age of 17 years. I have an Agreed Fact that TQ was born on 17 June 1991. Therefore, at all relevant times she was under the age of 17 years.
The third element of the offence is in dispute in this trial. I will return to this in greater detail later in these reasons.
The fourth element is that the acts were committed over a period of not less than three days. There is evidence before me that a number of acts that took place. Five incidents were referred to. These five incidents occurred over a period of more than three days. If I am satisfied that the acts that are the subject of the charge have occurred then this element will be proven or, alternatively, if I am satisfied beyond reasonable doubt that more than one allegation occurred with three days separating them this would suffice.
Initial complaint
This evidence was led pursuant to s 34M of the Evidence Act 1929. I remind myself that this evidence has been admitted to inform me as to how the allegation first came to light and to provide evidence as to the consistency of conduct of the alleged victim. It is not admitted as evidence of the truth of what has happened and there may be many reasons why the alleged victim TQ chose that particular time to make a complaint. The evidence can, of course, be used in relation to any inconsistency of conduct if I find that there is such inconsistency.
Discreditable conduct – Section 34P Evidence Act
In this case there was evidence led that tended to suggest that the accused had engaged in discreditable conduct other than the conduct constituting the offence. This conduct included smacking the complainant and also her brother. There was also evidence that there had on other occasions been incidents of sexual misconduct between the accused and the complainant, although there was a lack of specificity in relation to any of them. I have admitted the evidence of these events as the probative value of the evidence, being to place the charged conduct in its proper context and to describe the nature of the relationship between the complainant and the accused, substantially outweighed any prejudicial effect that it may have. The discreditable conduct cannot be used to suggest that the accused was more likely to have committed the offence because he engaged in this conduct. I make plain that I have not used it in that way. I have had no difficulty in keeping separate and distinct the permissible and impermissible uses for this evidence.
Forensic disadvantage – Section 34CB Evidence Act
The allegations in this matter relate to events said to have occurred between 1 January 1997 and 16 June 2002. The accused was not aware of these allegations for many years after they were said to have occurred. This delay has resulted in a significant forensic disadvantage to Mr Boatswain. There have clearly been difficulties for him in challenging and responding to the allegations. In this case the disadvantages have arisen from the lack of memory about specific events referred to by the complainant and other witnesses. They also relate to a lack of evidence in respect of specific matters, including where individuals were residing at particular times, whether or not Mr Boatswain committed certain acts other than the charged acts at particular times and whether or not he had an alibi at particular times. The overall delay has led to the complainant and other witnesses being unable to remember matters of detail. This factor has disadvantaged the accused because of his inability to test the complainant’s and other witnesses’ accounts in any great detail. There has also been a disadvantage suffered by the accused Mr Boatswain in the sense that if there had been a prompt complaint he would have been in a position to remember the times and dates and what, if anything, had occurred at those times. He may also have been in a position to produce evidence contrary to the evidence of the complainant. I bear in mind, of course, that he does not need to prove anything at all in this matter.
In this case the accused suffers from a particular disadvantage. That disadvantage was quite apparent during the course of his evidence. He is a man who has consumed alcohol in copious amounts over the course of his adult life. He has continued to consume alcohol up until recent times. As a result of this consumption his memory appears defective in relation to some aspects of his life. Had the complaints been made at an earlier stage, in all likelihood he would have a better recall than he presently does because of this significant factor.
I take into account the disadvantages and scrutinise the evidence of the complainant and other prosecution witnesses with care bearing this in mind.
Prosecution case
The prosecution tendered agreed facts. These agreed facts were admitted by the accused pursuant to s 34C of the Evidence Act.[1]
[1] P1
Agreed Facts
1.[TQ] (the complainant) was born on 17 June 1991 in Broken Hill. She is now 22 years old. Her mother is LQ. Her biological father is RQ.
2.The complainant has four siblings. Two of them were much older and she didn’t live with them growing up. They are [C] and [PL]. They had a different father – [JL].
3.The complainant grew up with the other two siblings: [K] who was born on 19 June 1990 – he is 1 year older; and her sister [TQ], who was born on 22 September 1995.
4.The accused is LQ’s uncle. He is her mother’s brother. He was born on 26 March 1955. He is now 59 years old.
5.LQ moved into the Centacare Catholic Family Services (Centacare) shelter with [K], [T] and [TQ] on 4 December 1998. On 23 December 1998 they were moved into a transition home run by the Centacare. On 29 January 1999 they moved out of the transition house.
6.[L], [K], [T] and [TQ] resided at a Housing SA property at Seekamp Street, Berri, from 30 January 1999 through to 7 July 2000.
7.The complainant attended the Berri Medical Centre and saw a Doctor Neil Merrilees on 11 June 1999. Doctor Merrilees’ notes record that’s he [sic] had a possible urinary tract infection with frequency of urination and painful urination. She had a previous history of this and in 1998 had a renal ultrasound scan to exclude abnormalities that might predispose her to urine infections. A urine culture was requested which showed a probable contamination with E Coli. After treatment the subsequent test was negative for infection.
At the end of the trial the prosecution said that they no longer relied upon agreed fact 7. The prosecutor had not led any evidence to show any relevance of this agreed fact. The complainant had not given any evidence in respect of the matters raised in agreed fact 7, nor was there said to be any correlation between this and the alleged offence. I therefore disregard agreed fact 7.
Evidence of TQ
TQ is 22 years old. She was born in country New South Wales and is currently studying a diploma in beauty. She has two older brothers and a young sister T who is 4 years younger than her.[2] Her parents divorced when TQ was around five or six years old. She continued to live with her mother and they moved to the Riverland in South Australia. She recalls the first place that they lived as a women’s shelter and they then moved to an address at Seekamp Street, Berri. She gave evidence that she was five years old and she recalls this because she had just left pre-school in New South Wales. She started school at the local primary school when they arrived in the Riverland. She has a memory of her younger sister living with them and being a baby at that time. The accused is her uncle. She knew him by the name Uncle Bodie.[3] She recalls him visiting at Seekamp Street when she was five years old. She gave evidence that her mother drank a lot when she was young. Her mother also used drugs including marijuana and she has a recollection of seeing needles as well. She described her relationship with her mother when they were living in Seekamp Street. She said that her mother was out quite a lot and was not around at the time. It fell to either Uncle Bodie, Aunty Sandy or Aunty Sandy’s daughter Cassandra to look after her and her siblings. She recalled an occasion when the accused babysat and he was inappropriate towards her. She identified this as the first time she can recall anything happening.
[2] TT 15
[3] TT 17
The complainant gave evidence that she was in the lounge room at Seekamp Street and the accused asked her to make him an iced tea. She made him the iced tea in the kitchen and returned to the lounge room. When she did he was naked on the couch. He had his hands on his penis and he told her to come closer. He then put her hand on his penis and said “pat it” and “pat it like, like a puppy”.[4] He then put his hands into her pants and was rubbing her vagina and putting his fingers in. She said to him “mum and dad said people can’t touch me in that area”.[5] She was told to have a shower afterwards which she did and then went outside to play with her brother. She felt embarrassed about what had occurred. She had been taught not to let anyone touch her below her shoulders or above her knees. She knew it was wrong.
[4] TT 19:26
[5] TT 19:34
In the course of her evidence the complainant described the house and the shed at the back of the house. She had drawn a diagram of the house and that was tendered.[6] She described an incident that occurred in the shed. She said that it was after school and she was wearing her school uniform, which was a red t-shirt and blue pants. She recalled being in the shed with her brother KQ to get up to some mischief. Her brother then left she thought to go to the toilet. She went back into the shed and played with different items she found there. There was a mattress in the shed. She said the accused then came into the shed and began to massage her shoulders. He said “It’s okay”[7] and that she could lay down. She lay down and was very scared. The accused took off her knickers and threw them towards the cupboards. He then put his hand on her vagina and tried to kiss her and put his tongue in her mouth. He pulled her legs apart and put his penis into her vagina. The complainant said that this hurt and it stung her.[8] After he had finished she grabbed her clothes and went to the toilet. She saw blood and she hid her knickers in her room.
[6]    P3
[7]    TT 34:27
[8]    TT 39
The complainant also described an incident that occurred in her kitchen when the accused was living in Grenache Avenue. On that day she was being babysat. She was playing with her brother and the accused was sitting in the kitchen. She thinks that this was the last time she was babysat by the accused. The accused told K, her brother, to go outside and play or go to his room. Her brother came out of his room and went to run outside and the accused picked up a broom and hit K. On this day the accused was “playing with my vagina”.[9] He put his hand down her pants and touched her. She said that she ended up being naughty running around the kitchen, around the table, and he hit her brother with a broom but he could not get her and she ran to her room. She said that she was going to tell her mother that he hit her and her brother.[10] She also gave evidence that the accused said things to her, such as that he would smack her, or it would be a hiding or he would strangle us in reference to her brother and herself. She said she was scared of that and it was for that reason that she did not say anything about his offending. She said that after the incident where her brother had been hit, she hid under her bed and cried. She recalls her mother coming home and coming into her room. She assumed that her brother must have told the mother what had happened. She said she showed her mother the red marks that she had on her shoulders. She did not tell her mother anything regarding the sexual assaults at that time out of fear that her father would find out and be angry towards her. She gave evidence that she “would have got hurt for letting it happen” to her.[11]
[9] TT 44:2
[10] TT 44
[11] TT 45:27
The complainant gave evidence that the family moved to a house on Foreman Road.[12] She lived there with her mother and siblings. Her father still lived in New South Wales. She recalled an occasion when her father came to visit. On that day she and her brother had found an ostrich. They brought it home and their father said that they could not keep it but they still kept it overnight. There were a number of people drinking at the house. The children were sent to bed, she thought because people were drinking and their parents did not want her to see people drinking. In the middle of the night she awoke because she could feel a warm lump behind her and she found the accused was there. He had his hand in her pants and his finger was on her vagina and rubbing it. He then brought himself over the top of her and was leaning on his right hand. He was putting his penis near her vagina and rubbing it up and down on the inside of the vagina lips. He rubbed a few times and then he went to put it in and he fell on to her. She recalls her right knee hitting the wall. She remembered getting up and going to the lounge room to get a glass of water and drinking it. She said her father woke up not long after that and she was crying. He asked her what was wrong and she said she had a nightmare. Her father slept with her that night.
[12] TT 45
The complainant went on to describe a further incident that occurred at the accused’s flat on Grenache Avenue. She recalls this as being the last time the accused did anything to her. On this occasion she was at the premises with her brother, mother, sister, the accused and a number of other people who she did not know. They were in the flat drinking. She recalls playing hide and seek. She recalls her sister sitting on the couch in the lounge room watching cartoons and laughing. She was in the bathroom counting for the game of hide and seek. She then started playing the game and checked in a number of different places for her brother. She then went into the accused’s room and had a look in the cupboard and then realised that the accused was in the bed and her brother was hiding under the bed. Her brother got up and was laughing and joking with the accused. She and her brother were playing with the accused on his bed and then the accused pulled her pants and knickers down, pulled her pants right off and touched her on the vagina. She recalls hearing an argument outside the room and she went to see what was happening. Her mother saw that she had no pants or knickers on and grabbed her by the hand and smacked her on the bottom saying “what were you doing laying naked in bed with a man”.[13] The complainant was scared that she would get into trouble for coming out without her pants on. The police were at the flat later in relation to another matter.[14] She recalls the commotion of an argument occurring probably between her mother and someone else from the flats.[15]
[13] TT 49:28
[14] TT 49
[15] TT 51

The complainant gave evidence that these five encounters were the only ones that she could remember.
The complainant gave evidence that she moved from the Riverland and went to Queensland at one stage before moving back to Broken Hill to live with her father. She did that just before her 12^th birthday. She stayed there until the age of 15. There were occasions when her father was travelling and she stayed at her grandmother’s house or one of her aunties’ houses. The first people that she told about the incidents that had occurred with the accused were her two cousins. At that time she was staying with her aunty who was the mother of one of the cousins. The complainant thought that she was about 12 years old at the time and her cousins were outside the front door having a smoke. They were talking about a girl who had been molested or raped in Broken Hill. She said to her cousins “my Uncle Bodie does that to me. He touches me and tried to put his penis in my vagina”.[16] She said she cried as she told them and her cousin told her she had ten days to tell her father otherwise she was going to tell him.[17] The complainant gave evidence that she had not told anyone before this because she was scared and embarrassed.
[16] TT 55:20
[17] TT 55
The complainant was cross-examined. It was suggested to her that when she spoke to her older cousins about her allegations in relation to the accused she was doing so in an attempt to get sympathy from them. The complainant denied this was the case. She said “It wasn’t for sympathy, no. It was to let them know that that happened to me too because I knew it was the wrong thing but I just never said anything about it and I did”.[18] When she was asked whether she told them the full story, she said she did not tell them the full story “ … like I’m telling the court”[19] but that she had told them that he used to touch her on the vagina and also told them about him putting his penis into her vagina and said that it hurt and that was when her cousin said that she had to tell her father. It was put to her that in a statement she gave to the police signed on the 10^th May 2012 she said that when she spoke to her cousins she had told them that the accused ‘tried’ to put his penis inside a couple of times. However, that she did not tell the police officer that she told her cousins that he ‘actually’ put his penis in her vagina. She disagreed with this proposition. She said that she had told the police officer a lot of things that were not put in her statement because her statement took two days to prepare and in the end she just signed off on it and walked out because it was too emotional and she was working at the same time and had taken days off work to give the statement.[20]
[18] TT 61
[19] TT 62:29
[20] TT 63
The complainant gave evidence that she never actually told her father but she thought one of her cousins told her father. She was challenged in relation to this and she said that she knew she had not told her father because when he did eventually raise it with her he bashed her by kicking her in the stomach and the body with his steel capped boots and yelled at her and her siblings about what the accused had done to her.[21] She confirmed in evidence that his reaction was in part because she had not told him about the abuse.
[21] TT 66
It was suggested to her that the accused had never done anything of a sexual nature to her. She denied that.
She gave evidence that the allegations had been reported by her father to the police in Broken Hill but that nothing was done about it because the incident occurred in South Australia and they could not help.
It was suggested to her that it was her father who was pushing her into making allegations. She said that her father never really told her to do it, she just did it off her own back, as a reference to reporting to the police in South Australia.[22] She said she has not had a relationship with her father for a number of years because he is so violent. She was asked whether she reported it to the police because she was frightened of her father and feared that if she did not report it she would get another hiding. She denied this and said she had done it for her own benefit. She said she did it for her “own self”. She went on to explain, after being asked in cross-examination her motives for reporting, that when she moved back to South Australia she was living in the Riverland and the accused was living there as well. Because of his presence she was unable to attend at a number of different functions including family occasions, Christmas and the like. She would not go to these functions if the accused was there. She just had enough of it and decided that she would report.[23]
[22] TT 68
[23] TT 70
She was cross-examined about the chronology of events. It was put to her that the first incident she described could not have occurred at the time that she said it did, that is around the time of her sixth birthday in about 1997 because at that stage they were not living at Seekamp Street. It was an agreed fact that she commenced living in Seekamp Street from the 30^th January 1999 to the 7^th July 2000. She said that the accused was not babysitting her before they moved to Seekamp Street and her memory was that they moved from New South Wales to the Riverland and lived in a women’s shelter until they moved into Seekamp Street. There is an agreed fact that they lived at a shelter from the 4^th December 1998 until they moved to a transition house on the 23^rd December 1998 and that they moved out on the day before they moved in to Seekamp Street.
The complainant fixed the time of the offending to her sixth birthday by relating it to her younger sister who was born in 1995 and she remembered her being about one or two at that time. Her sister was three when they moved in to the house at Seekamp Street, her birthday being on the 22^nd September 1995.
It was suggested to the complainant that she had spoken to her brother about him giving evidence. She denied that. She said that she did not even know that he had given a statement but guessed that he might have because the police had been trying to get in contact with him. It was suggested that she had told him about the incident in the shed and she denied this. She said she had never told her brother anything about what the accused had done to her of a sexual nature. It was suggested to her that when she gave her statement to the police she had said that the accused tried to put his penis into her vagina “seven” times whilst she was in the shed with him and she was now saying “several” times. She explained that by saying that she did not know how many times he tried to put his penis in but that picturing it now he tried to press his penis against her vagina a few times, trying to get it in. She could not be sure whether it had gone in all the way.
It was put to the complainant that when she told her mother about the accused hitting her and her brother with the broom she could have told her about the sexual abuse. She was asked why she had not done that. She said:[24]
Because my mum and dad always said not to let anyone touch me below my shoulders or above my knees. I thought I would get into trouble. She always told us not to let anyone do that, and me being that age and sacred I was letting it happen.
[24] TT 93 and 94
It was suggested to her that the reason she did not say this was because none of the incidents had occurred. It was suggested to her further that the accused had never visited the house at Foreman Road. It was suggested to her that she had been inconsistent in her evidence with the statement that she had given out of court in relation to where the accused was to sleep on the occasion of the alleged offence. The witness gave evidence that the accused was supposed to sleep in the lounge because that is where his bed was set up and that is where he was set to sleep. She denied any inconsistency between that and the statement where she said:[25]
He was supposed to sleep on the couch in the lounge but he was supposed to sleep in the lounge.
[25] TT 100
It was put to her that the incident that she had described having occurred in her bedroom between her and the accused never occurred. She said that it had occurred.
She was cross-examined about the fifth alleged incident in Grenache Avenue. It was suggested to her that the first time she had ever mentioned this allegation was the week before she gave evidence and that it came up during the proofing with the prosecutor. She was asked why she had not put this in the statement that she made in 2012. She said it was because the statement had taken two days to do and she was working at the time. She was doing the statement in her lunch breaks and taking extra time from work that her boss had approved. She said she should have said something at the time about it but she just did not. She gave evidence that she had remembered it at the time she was giving the statement.
It was suggested to her that on the day her mother got arrested at the Grenache Avenue address the accused was not present. It was suggested there were other people there but not the accused. When cross-examined about the incident, she described it in the following way:[26]
AWe – because Bodie was awake by that time, and we just jumped on the bed and was laughing, on top of the blankets, he was under the blankets, it was on top of the blankets, and was just joking and laughing. I remember looking up at the top of the cupboard and me and [KQ] was making fun of the shapes and the bricks.
QWho were you laughing and joking with.
AThere was myself, [KQ] and Bodie.
QSo you didn’t mind laughing and joking with him at this stage, even though you say he had been sexually abusing you.
AI was at his house, I couldn’t be unsupervised in the house by myself.
[26] TT 105:30 – 106:4
She was cross-examined about what happened after she came out of the bedroom:[27]
[27] TT 107:34 – 108:18
QThen, if that’s the situation, you would agree with me you had plenty of opportunity to leave that bedroom, with [KQ], and get away from him; isn’t that right.
AI could have, but I didn’t.
QAnd you say your mum smacked you and smacked you.
AMm-hmm.
QSorry you have to say yes.
AYes.
QDo you know why she did that.
ABecause I was a young girl in bed with no clothes on, with an old man.
QWell, how did she know that you were in bed with no clothes on.
ABecause I ran out with no pants on.
QBut how did she know that you were in bed.
ABecause I came out of his room.
QWhat did she actually say to you.
AShe didn’t say anything, she yelled at me.
QWhat did she yell at you.
AShe was swearing at me ‘What – what the fuck are you doing in bed with an old man with no clothes on?’. I had nothing to say, I just stood there with my fingers in my mouth saying I don’t know.
In relation to the incident that the police attended for it was apparent that someone had been injured probably by her mother. The complainant recalled a man from another flat saying words to the effect that someone had been stabbed with a fork and talking about four dots or something on his forehead.[28]
[28] The Police Incident Report was tendered and marked Exhibit P4. It indicates that the mother was alleged to have assaulted a man by punching him and he then struck a wall causing a small graze to his forehead.
It was suggested to her that when she gave her statement to the police in May 2012 she had said that the accused touched her vagina under her clothes on at least twenty occasions. She said that she did not remember saying it, she remembered a lot of times he had done it – “it would have been around that time, around that many times”.[29] It was suggested to her that this was inconsistent from the evidence that she had given because she had only related five incidents. She denied she was lying to the police when she said that it had occurred at least twenty times and said she was telling him the truth and that she had narrowed it down to five main incidents. She was re-examined in relation to this issue:[30]
QDo you remember the question or would you like me to repeat it. I will repeat it. In your statement you have said that it was at least 20 times that Bodie had touched your vagina under your clothes, but in court today you have referred to saying there were only five incidents. Can you please explain the difference.
AThe difference is because it’s emotional to talk about and it hurts, so the ones that hurt me the most through my life and have caused me what it has caused me is those events. They are the ones that hurt me the most. They are the ones that killed me on the inside, so we spoke about that. And I said ‘Just leave it at that’ and she said ‘Fair enough, I agree’. I guess she didn’t want to keep going any longer as well as I didn’t want to be there because it was the first time I had given any detailed evidence. To tell a stranger that I didn’t know, and not one person knows anything about this, I just preferred not to keep going with the statement and just left it as that and talked about the incidents that hurt me the most.
QYou have referred to those five incidents. Do you have a memory of these other incidents.
AIt was just not every single incident I don’t have a memory of. It’s the main ones that I remember that I know that I got in trouble for. I was told not to say anything. Any other time would be like a quick touch or a rub. It wasn’t as –
[29] TT 110:12
[30] TT 114:1-28
Evidence of CD
The complainant’s cousin CD gave evidence. She said she lived in Broken Hill when she was 19 for about 6 months. She was 19 in 2004/2005. She was living with her aunty and during that time the complainant lived there, on and off, for probably three or four months. She recalled a conversation that occurred between the complainant, herself and another cousin. She recalled this conversation occurring in their room at the back of the house. It was a conversation in relation to a news story. During that conversation the complainant said that a man she called “Bodie” had been touching her. She was not able to recollect much of the conversation beyond that. She said however that she got really angry and upset at the complainant and told her that she had two weeks to tell her dad otherwise she would.
CD was cross-examined. It was suggested to her that she was inconsistent between her evidence and the statements she gave to the police in relation to the conversation with the complainant when she asked her if she had told her father. In evidence the witness said that she was pretty sure the complainant had not told her father at that stage but in the statement the police have recorded “after that I asked her if she had told her father about Bodie and she told me she had”. She was asked whether she could explain the inconsistency. She said that at the time she gave the statement to the police she had a very small child who was ‘needy’ and sometimes she misses things when she reads them. She went on to say that her son was ill at the time that she had been reading the statement and he was very upset.
Evidence of PS
The complainant’s cousin PS gave evidence. She said that she lived in Broken Hill until 2005 then moved to Meningie. In Broken Hill she lived with her parents and there was a time when her two cousins were also living there. She gave evidence that they stayed for short periods of time and came and went from the house.[31] She gave evidence that she could recall a conversation with the complainant and her other cousin relating to a news story. The news story related to a girl who had been sexually molested in Broken Hill. She thought that they had the conversation at the front of the house whilst they were sitting on the front verandah. In the course of the conversation she said that the complainant said “do you know that my uncle did stuff to me”.[32] She then asked the complainant what had happened and the complainant said that her uncle did stuff to her and touched her in places and said he would hurt her if she told anyone about it.[33] She went on to say that she asked the complainant if she had told her parents and she said “no”. She said to her she had two weeks to tell her dad and if she did not she was going to. She also asked the complainant who the uncle was and she said the complainant told her it was her uncle who was her mother’s brother. She then named the accused.
[31] TT 124
[32] TT 125:32
[33] TT 125:36
PS was cross-examined. She said that about a week and a half after the conversation she saw the complainant and the complainant told her that she had told her dad and he was going to help her. PS was about 15 years old at the time of this conversation.
Evidence of KQ
The prosecution called the complainant’s brother KQ. He was born on the 19^th June 1989 and is 23 years old. He confirmed that the family moved to Berri when he was about eight years old. He said he thought the first place they lived in was Seekamp Street but they lived in other addresses in the Riverland as well. He recalled the accused living in a group of flats down the road from them when they lived in Seekamp Street. He recalled the accused coming to the home at Seekamp Avenue and said that he would sometimes sleepover in the lounge room or the back shed. When he slept in the back shed he slept on the single bed mattress. He recalled one occasion when he went to the shed to see his uncle. He opened the door of the shed and saw his uncle lying on the mattress next to the complainant. He said his uncle was awake but he was not sure whether his sister was. He was about 9 years old at the time and it occurred at night but he was unsure what time during the night. He said that he did not do anything in relation to this because he was very young at the time and did not think anything of it. When he saw them they were both under the covers.[34] A little later in evidence-in-chief he said that his sister was lying on her back and Bodie was like “I don’t know, it sort of looked like he was cuddling her, like laying on his side like this, you know, sort of like this”[35] and he indicated with his arm over the top of her.
[34] TT 134
[35] TT 136:18
KQ was cross-examined. He was asked whether his sister had ever said anything to him about the shed in relation to the accused. He said “no, we don’t really talk about all that”.[36] He went on to say that she just told him that the accused molested her a few times at home and at his place and that was all she ever said. The witness said that they did not go into any detail. It was suggested to him that the complainant had told him about the shed and that he was incorrect in relation to having seen her in the shed with the accused. It was put to him that that was something he had made up. The witness responded “If I made it up I think I would have done a bit better than that you know”.[37] It was put it him that the accused had only slept once in the shed and this occurred on an occasion when the whole family had gone somewhere and then when they returned the accused had left.[38] The witness disagreed with this proposition.
[36] TT 137:33
[37] TT 138:37
[38] TT 139
The witness was cross-examined about the occasion at the accused’s flat when his mother was arrested. He had no recollection of any such event. He said he had a vague recollection of the police coming and his mother screaming but that is pretty much all he could remember of the day.
KQ was asked some questions in re-examination about who was present. He had a recollection that his uncle was present when they arrived at the house for a short time but left within an hour. He was very vague in relation to these matters.
Evidence of LQ

The complainant’s mother LQ was called. She gave evidence that she is the mother of the complainant, her brother and sister. She moved to Berri for the first time in 1997 and moved there again in 2008. When she first moved from New South Wales to Berri, the family stayed in a women’s shelter for about two months and then moved to Derric Street. She was not sure how long they lived there but thought it was probably 3-6 months. This was a home owned by the women’s shelter. After that the family moved to a home in Seekamp Street. She gave evidence that the family moved around a lot and during the time they were in Berri, lived at Foreman Road, Seekamp Street, Derric Street and Woolston Road. She was quite confused about the times when she lived at various houses. She gave evidence that whilst she was living in Berri her health was not good because she drank a lot, was an intravenous drug user and a cannabis smoker. As a result of these substance abuse issues there were many occasions when other people looked after her children. One of those people was the accused.
On occasions when the accused looked after the children, she went shopping, drinking or staying at someone else’s house after a party.[39] She gave evidence that the accused visited the family home at Seekamp Street and babysat the children there. At one stage she said he moved in for a couple of days and stayed in the shed for a few months. When he was sleeping in the shed he used a single bed that had a bed-head and a mattress. There was also a double bed mattress in the shed.
[39] TT 153
LQ gave evidence about the last occasion when the accused looked after her children. She said that she had been out shopping and returned home and the complainant and her brother said that the accused had hit them with a broom stick. She “went off”, yelling and screaming at him not to touch her children. She noticed that they had red welts on the legs and just above the buttocks. She told the accused that he should not hit her children. He told her that he did not hit them with a stick; he only used his hands. There was then an altercation between her and the accused as to whether he had used a stick or his hand.
LQ gave evidence that the accused had a flat in Grenache Avenue and that she and her children would visit the flat. She recalled a particular day when she had been at the flat with her three children and a couple of other people who were the accused’s friends. She was drinking while they were at the flat. She said that the children were playing around in the accused’s room and he went in there for a nap. The children were annoying him and keeping him awake. They were running in and out of the room. At one stage the complainant came out of the room and she had no knickers on. She first noticed that the complainant did not have knickers on when the complainant was “mucking” around in the lounge room with her younger sister. They were dancing around and somehow the dress that the complainant was wearing moved up and that is when she noticed that the complainant was not wearing knickers. She asked the complainant why she did not have any knickers on and the complainant said the accused took them off. She then put another pair of knickers on her and did not take any notice of the complainant saying that it was the accused who had taken her knickers off.[40] By this stage she had been drinking for a while. She had consumed a few glasses of wine and some cannabis. Later that afternoon she was arrested for an assault at the flats that occurred in relation to another occupant of the flats. She gave evidence that the accused was also drinking on this day and said that when he does drink it is not uncommon for him to have a “nanna nap” in the afternoon. That she said was his habit.[41]
[40] TT 161
[41] TT 161
LQ also gave evidence that at one stage they lived near an ostrich farm whilst they were living on Foreman Road. She said on a couple of occasions they had small ostriches who had escaped from the farm. She said that there was an occasion when her partner had come back to live with them in Berri and that had happened when they were living in Foreman Road and also at another house in Renmark. She gave evidence that the accused had visited the Foreman Road address a few times and that he had slept over a couple of times. She said when he slept over he would sleep in a bedroom.
LQ was cross-examined. It was suggested to her the accused had never gone to the Foreman Road address. She denied that. It was suggested to her that he had never stayed there the night and that she might be confused about it because she had lived in so many places. She denied that she was confused about it. She confirmed that the accused was a seasonal worker around the Riverland area and it was suggested to her that he lived in Waikerie when he was working and picking to which she said “No, he was living in Berri, he was picking grapes”.[42] It was put to her that he had never moved into the shed at Seekamp Street and she maintained that he had. It was put to her that there was only one occasion when he had spent a night in the shed and that was the occasion when she and the children left the house and by the time they got back he was gone. She denied that was the case. She said at the time he came to live with them he was “couch surfing” and that was why she had allowed him to move into the shed.
[42] TT 165:10
LQ was cross-examined about having seen the welts on her children. She said and agreed with the proposition that she basically kicked him out of the house but still kept in contact with him. She said that she had continued to leave her children with him after that.
It was suggested to her that she had never spoken to the accused about him hitting her children and she denied that. She denied that she was making this up. It was suggested that she may have spoken with the complainant and decided to support her in what she was saying. She said that she had never spoken to her at all about the court case. She agreed that during this phase of her life she had a serious drinking problem and was taking intravenous amphetamines and smoking cannabis. She suggested that she still had a good memory about events even though she was taking these substances.
It was put to her that her memory was not as good as she suggested because the incident for which she was arrested had taken place on the 26^th January 1998, about one year prior to her moving into Seekamp Street, but she thought that it was after that. She said that she had moved around such a lot it was hard to keep track of it.
It was put to her that she had never been to the accused’s unit with the children and she disagreed with that.
The witness also gave evidence that she lived in another address, Sandercock Street and that was a privately owned unit. She was living at that address in 1998 at the time that she was arrested for the offence that occurred at the accused’s flat in Grenache Avenue. She was quite confused about where they had lived at various times in Berri. She also gave evidence that the complainant’s father was a very violent man and that he was violent in front of the complainant and quite threatening.
Evidence of the accused
The accused gave evidence. He was born on the 26^th March 1955 and is 59 years old. He has been employed in the past as a fruit picker and also worked generally in the horticultural industry with chemicals. He said that the complainant’s mother is his niece. During the late 1990s he was living in Waikerie and was there for a fair while until the season finished and then he returned to Berri. He said he returned to Berri in “2000 or something like that”.[43] Whilst he was living in Waikerie he had nothing to do with the complainant’s mother. He recalled the complainant’s family living in the address at Seekamp Street and confirmed that he had had a flat on Grenache Avenue. He said he lived at that flat for “a good eight months”. He then went to Winkie picking for a while and returned and got a different flat but in the same group. He stayed there for about five months before he went back to Waikerie. When he returned to Berri he stayed in the same flat. At that stage he was there “for a good twelve months” he said.[44] He gave evidence that the complainant’s mother and the children did not visit him at his flat but there was a day when the complainant’s mother and the children came to the flat when he was not there.
[43] TT 182
[44] TT 184
The accused gave evidence that he babysat the children when required and that one occasion he had stayed in the shed at Seekamp Street. He said “I went over there, they wasn’t home so I got charged up and then I went to sleep, woke up, and they were home so [L] said ‘go’. Went back to my flat”.[45]
[45] TT 185:17
He said that he had also stayed over a couple of nights on the lounge. He denied that he stayed with the complainant’s mother at Seekamp Grove for some time.
He was asked whether he ever drank iced tea, he said “no, never in my life”.[46]
[46] TT 186
The accused denied that he had ever sexually interfered with the complainant. He suggested that the complainant and her family had made up the story because the complainant wanted money for her drug addiction. He denied that he was ever alone in the shed with the complainant. He denied that he had ever hit the complainant’s brother with a broomstick. He acknowledged that there had been an argument between him and the complainant’s mother where she alleged that he had hit the children. He denied he ever admitted to the complainant’s mother that he had hit the children and said that he never did this. He said that there was a conversation when the complainant’s mother said he was never to babysit the children again and this occurred after the children had told her that he hit them.
He denied that he had ever been to the house at Foreman Road and said that he did not even know where the house was until a detective showed him a map.
In all he denied any sexual interference with the complainant.
The accused was cross-examined. He said he has a child who is now a man living in Dubbo and the last time he saw him was about 21 years ago. He has had two partners in his life, both named Margaret. He was involved with the first Margaret for about 15-20 years and the second Margaret for about 12 months after cessation of the first relationship which was probably in about 2004.
He gave evidence that he had known the complainant’s mother in her childhood and then did not see her for a number of years until she moved to Berri. He said when he first met the family in Berri he did not think [TQ] was born at that time and it seemed to be that he went away and then when he came back [TQ] was about two years old.
He said when he first met the complainant’s mother they were living at his sister’s place and then they went to some temporary accommodation that he thought was a women’s shelter. He did not see them at the women’s shelter because he was not allowed to go in there.
He confirmed that the complainant’s mother and father used to fight from time to time especially when they had been drinking. He said the only real fight that he saw was the one that occurred at Monash. He confirmed that a man by the name of Chris Thompson who is a carpet cleaner with a company called Chemdry lived permanently in number 1 Grenache Avenue.[47] He said that he had lived in various units at Grenache Avenue depending upon which one was available.
[47] TT 200
In cross-examination he said that he had stayed in the shed at Seekamp Street on a single bed but just on the one day. His evidence was very confused in relation to what occurred on the day when he stayed over in the shed. At one stage he said that the complainant’s mother had given him a pillow to sleep on and at another stage he said that she was not there when he arrived and the whole house was locked up. He said he went to the shed and drank the cans that he had brought from his place and waited until they came home and then fell asleep. He said that when he arrived he actually knocked on the front door and there was no-one there and rather than take his beers and walk home around the corner, he stayed because he had a bed there and he thought he would stay there and wait for them. He said that he had visited the house before and seen that there was a bed in the shed and that is how he knew it was there.
The first time he had actually seen the bed made up and ready to be used he said was the afternoon that he went around with the beers.[48] He had gone to the shed he said just by chance to have a look and to wait for them in there and discovered the bed was there. He did that instead of sitting out the front because it was a hot day and in the shed he would be in the shade. It was put to him that he was lying about this incident and making it up as he went along. The accused denied this.
[48] TT 209
He also denied that he had ever seen the complainant’s younger sister whilst they were living at Seekamp Street and thought that it was only the two older children, that is the complainant and her brother, who were there. His evidence was very confused about the younger sister of the complainant. I asked him whether he was drinking a lot at this time in his life. He said that when he came home from work he had a few and by a few he meant a six pack of beer. He said that he drank wine in the winter and beer in the summer. When he drank wine, he drank half a four litre cask. He said he would drink it at the complainant’s mother’s house from time to time but that she would not drink at his house.
The accused gave evidence that he would sometimes drop around to have a drink with the complainant’s mother but he would never play with the children, read them stories, or touch them in any way at all. He did not regard it, he said, as his role to discipline the children and in any event they were good children. He denied that he had ever been into any of the children’s bedrooms at Seekamp Street. He gave evidence that he has never consumed iced tea and that drinking tea makes him sick. He recounted the day when the complainant’s mother had accused him of smacking the children. He said he woke up in the morning and had a shower in the afternoon and then he went to the complainant’s house. There were a lot of people there including the complainant’s mother and some bloke. He said the complainant’s mother went out with the bloke and took the youngest child with her. At this stage he was unable to remember the name of the complainant and said it had slipped out of his mind. He said he had a bottle of beer with him and that he thought the complainant’s mother was gone for about ten minutes because he remembered that he had only had a small amount of his beer. He said that the complainant and her brother were in the kitchen having something to eat and he was in the lounge room drinking, finishing off his beer. He said they were making cornflakes with milk and spilling the milk on the table. The complainant’s mother came back on her own without the bloke. She had the youngest daughter [TQ] on her hip.[49] The children were still in the kitchen when she arrived home and she put the little one on the floor and went to the bedroom and started smoking and he just took off to his place. It was then suggested to him that there was no stage on that day when the complainant’s mother had yelled at him and he said “no, that was another day when that happened”. He then went on to recount that day. He said on that day he was sitting there drinking his bottle at her house and this was the day before she took off with [TQ]. The complainant’s mother asked him to look after the children for a while and he was sitting there drinking. He said he never touched those kids and the complainant’s mother yelled at him straightaway. He said “She must have been mad she couldn’t get drugs or something or she was in a bad mood”.[50] The recounting of the day is very similar to the day after in that the children were “Eating Weet-bix or Cornflakes, making themselves tea”.[51] He said on this day that she put the youngest child on the floor and started screaming at him because the kids reckoned that he belted them. She told him to get out of the house and he went out the front door and went home. He said he had heard the children telling their mother that he belted them and then she turned around and screamed at him and said ‘get out of my effing house’.[52] He took off and did not hear the rest of the story.
[49] TT 233
[50] TT 234:29
[51] TT 23528
[52] TT 237:27
He was then asked whether it was in fact his evidence that the following day he went back to the house and he said “No, not for a while, then she got talking again, yeah, after I went back around”.[53]
[53] TT 238:8
On further cross-examination he said that the day after she yelled at him he came around to the house again, she yelled at him again and he took his bottle home. Thereafter his evidence became quite confused about what had occurred in relation to that. When it was put to him his evidence was inconsistent he said that he did not know what he was doing in evidence the day before because he was ‘crook’. He said he had “gastric and God knows what”.
He gave evidence that on the occasion that he referred to as the second day, he started drinking at about 10 o’clock in the morning. He had the bottle in his hand when he went around to the complainant’s mother’s house at about 9.30am and he drank all day until he fell asleep. He gave evidence that he can drink a six pack and still be “as sober as anything”.[54] He said drinking a six pack of beer would not affect him in the way he dealt with people, the way he walked, or the way he talked. Drinking half a cask of wine would probably make him a bit “wibbley”.[55] He also gave evidence that he would often have a nap in the afternoon if he had been drinking, he might lie down in his bedroom or on the couch and fall asleep watching TV.
[54] TT 244
[55] TT 244
The accused was asked about the occasion when things had occurred at Grenache Avenue. He was asked where he was on the 26^th January 1998, that is the date when the complainant’s mother was arrested at his flat in Grenache Avenue. He said he thought he was in Waikerie but he was not too sure. He was adamant the complainant and her family had never been to that flat. He was unaware that they used to come to the flat if they did when he was away. He adamantly denied in cross-examination that he ever sexually assaulted the complainant.
At the end of the defence case there was a further agreed fact that in a statement dated the 4^th April 2013, CD had told the interviewing police officer that the complainant had told her that she had informed her father of the sexual abuse.
Crown address
Mr Plummer addressed on behalf of the Crown. He said that the Crown case established that there was opportunity for the accused to have assaulted the complainant in the way that she said. The accused agreed that he babysat the children and this occurred on a regular basis so he was in and around the house, in particular the house at Seekamp Street. He invited me to reject the evidence of the accused that when the complainant’s mother left she would generally only be away for a short period of time, ten to fifteen minutes. I was invited to find that this was evidence that had been given by the accused in an attempt to distance himself from the opportunity to offend. Mr Plummer said that this evidence was inconsistent with the evidence of the complainant, her mother and her brother that the complainant’s mother had a drug addiction and problems with alcohol and she would leave the house and go off drinking and partying and on those occasions she would ask the accused to look after the children. It was submitted that two incidents, the incident that is referred to as occurring in the lounge room when the accused was naked and the incident relating to the hitting with the broom, could have occurred on the occasions when he was babysitting.

It was submitted that the incident in the shed was slightly different. The accused gave evidence that it was only one time when he slept there and that was on an occasion when he was looking for the family and he went into the shed and opportunistically noticed that there was a bed made up there. This is in contrast to the evidence of the complainant’s mother that he had in fact stayed over at the house and that there had been a single bed made up for him in the shed.
Mr Plummer conceded that there was some uncertainty in relation to the movements of the family and the houses that they were living in at various times in Berri. However, it could be accepted that the family had moved to Berri in about 1997 when the youngest child was about two years old. There was another known and that was that the family moved into Seekamp Street on the 30^th January 1999 and remained there for about 18 months. There was another matter of some certainty and that was that the complainant’s mother had been arrested, at the flat where the accused was living, on the 26^th January 1998. Mr Plummer submitted that the complainant had to be wrong about the chronology of events as she now recalled them. He submitted that this was completely understandable as she had arrived in Berri when she was a very young child and also in fact left Berri when she was a young child. All of these events occurred between the time she was about six and nine years old. He submitted that she got some places mixed up in the order in which things had occurred.
In relation to the complainant, it was submitted that the complainant was about 12 years old when she made the complaint to her cousins in Broken Hill. He submitted that despite the fact there is some variation between what the cousin said in evidence, it was consistent with the account that the accused had sexually interfered with her. The importance in relation to this complaint was that she had complained at that stage and it was about three or so years after the end of the offending. The complainant has given evidence that she had not complained prior to that time because she was terrified of her father. She had always thought that this offending was her fault and that she would be blamed for it. It was suggested that I should reject any submission made by the defence that she had reported the incident to the police to avoid any further beatings from her father. Rather, I should accept her explanation that the reason she reported it to the police was that she was sick of not being able to be with her family on special occasions because the accused would be there.
Mr Plummer submitted that I should reject any notion that she told the cousins of the abuse to garner sympathy or because they were simply older girls and she was looking for some sort of attention.
Mr Plummer submitted that the complainant was able to give a level of detail in relation to each of the incidents that she described and that in relation to each of those incidents she was consistent. He suggested that any of the inconsistencies that have been referred to in cross-examination were capable of a perfectly reasonable explanation that had been given by her in her evidence.
Mr Plummer suggested that the explanation that was given in relation to her having focused on five incidents was that they were the most important to her and having left it at that in the police statement was entirely understandable given that the statement had taken two days to prepare. He submitted that any inconsistency between her evidence-in-chief and her cross-examination in relation to the number of incidents could be explained by her confusion in relation to what it was that she was being asked at that time. He submitted she had always prefaced her answers in relation to other occasions with that she could “remember” perhaps inferring that she had a level of detail in relation to the five incidents that she recounted and not the same level of detail in relation to the others.
Mr Plummer submitted that the evidence of the complainant was supported in two important material particulars. One coming from her brother who had witnessed her in the shed with the accused lying on the bed and the other from her mother who had witnessed her coming out of the accused’s room without her knickers on and that even though the complainant and her mother had a different recollection of the complainant’s mother’s reaction to that event, there seemed to be no doubt that it had in fact occurred. This is in contrast to the evidence of the accused that the family had never been to that address.
Mr Plummer submitted that any discrepancies in the account given by the complainant’s mother could be related to her use of alcohol on that day as she had in fact been arrested by the police in respect of an assault charge. He said the fact that the Police Incident Report recorded the complainant’s mother being at the premises on that day was at odds with the accused’s evidence that she had never been there and did not go there as far as he was aware when he was not at home. It appears to be irrefutable evidence that she was indeed at his house on this day. The evidence of the complainant and her brother is also supportive of this.
In relation to the accused’s evidence, Mr Plummer submitted that his evidence should be rejected as much of it simply did not make any sense. His assertion that the youngest daughter was not there when he first knew of the family living in Seekamp Street and then within a short time was a two year old, should be rejected. Mr Plummer also submitted that it is clear from the accused’s evidence that he was consuming alcohol in large quantities around the time of these incidents and that he is not being honest in relation to the affect that this alcohol has upon him. He said that the evidence of the complainant was consistent with the fact that the accused was drinking large amounts at this time.
Mr Plummer suggested that the accused’s account of sleeping in the shed as a one off event was simply a lie. It did not make any sense whatsoever that the accused would go the short distance from his house to the complainant’s house with his beer on a very hot day, find them not at home and instead of walking the short distance back to his flat would wait in a tin shed, drink all his beers to the point where he passed out and that just by chance the bed had been made up and was ready for him to sleep in that shed. He suggested that he has made up the issue of the shed simply to deal with the evidence that he was confronted with and was an effort by him to distance himself from the allegations.
Mr Plummer suggested that the evidence given by the accused in relation to the occasion when he was accused of hitting the children was an outright lie. He gave an account when first asked that was almost identical to the account given in relation to the second day and this was inconsistent with all of the other evidence. It is plain that he has deficits in his memory. Mr Plummer submitted that the accused’s lack of detail, his demeanour, and the way he gave his evidence suggested he cannot be trusted and that his evidence was in a large part lies.
Defence address
Mr Lyons addressed on behalf of the accused. He said that I should direct myself that it would be dangerous to convict in this matter on the basis of a combination of things including the way the complaint came out and the inconsistencies. He said that in relation to the inconsistencies it could be that each of them in isolation is capable of explanation but when taken as a whole they created a reasonable doubt.
Mr Lyons suggested that the complaint had occurred when the complainant’s older cousins were talking about a news item that related to a girl being sexually assaulted. This, in combination with the fact that the complainant looked up to these girls who were a bit older than her and that commonsense would dictate that this young girl who had had a very difficult life would be looking for sympathy in her life and needing people to endear herself to should cause caution in relation to this complaint. He suggested that the complainant may well have then got on this ‘merry-go-round’ because she had made false allegations and it was then impossible to get off the ‘merry-go-round’. He suggested that there is a reasonable possibility that when she made the complaint pressure was placed on her to tell her father and that her father in turn placed pressure on her to tell the police.
Mr Lyons also submitted that there was an inconsistency in relation to who had told her father about the complaint and that this was an important inconsistency. Mr Lyons submitted that at all times it appeared that her father who was violent and nasty on all of the evidence, is in the background and that may provide the explanation for why TQ had gone on to complain to the South Australia police.
In relation to the chronology of the events relating to the alleged offence, Mr Lyons submitted that there was a major inconsistency that could not be overlooked. He submitted that the complainant had given evidence that the first incident occurred at Seekamp Street and she was adamant about this. She said this was just before her sixth birthday and it was something that she remembers because both fathers, that is her father and her brother’s father, attended on her sixth birthday. Her sixth birthday was in June 1997. It is impossible that she was living at the Seekamp address at this time as the family did not move into that address until January 1999.
Mr Lyons also submitted that the version given of the accused being naked on the couch while the children were around the house is implausible. He submitted it would be a recipe for disaster for getting caught lying naked on the couch. He also submitted that it was implausible that the complainant did not say anything to her older brother at that time about it.
In relation to the incident in the shed, Mr Lyons submitted that in examination in chief, the complainant did not make any mention of the brother going to the toilet and leaving her in the shed or the action figure that she referred to in cross-examination. He suggested that the fact that she did not leave the shed when the accused came in was something that indicated that no incident had taken place.
In relation to the evidence of the brother, that he had seen the complainant and the accused lying on the bed in the shed, he suggested that they may have got their heads together in relation to that and that in any event it may simply never have occurred. He also suggested that if her brother had walked into the shed when she had been lying on the bed she would have seen KQ herself but she made no reference to this in her evidence.
Mr Lyons also referred to the inconsistencies in relation to the double bed and the single bed in the shed. He suggested that this incident provided a basis for finding that the complainant could be fanciful. In addition to this, Mr Lyons submitted that there was an inconsistency in her account in relation to this in that in the police statement she had said that the accused tried to put his penis in ‘seven times’ but in court she was saying ‘several times’.
In relation to what Mr Lyons described as the broom incident, he submitted that the actions described by the complainant and her brother were very risk and so risky that nobody would take this chance. He also submitted that this was the perfect opportunity for the complainant to have told her mother about the sexual abuse if it had been occurring but that this did not occur. He submitted that there was an inconsistency in relation to the nature of the injury that was described.
In relation to the fourth incident that is the allegation at Foreman Road, Mr Lyons said the evidence of his client was that he had never been to Foreman Road. There was also an inconsistency in relation to the chronology of when it was they were living at Foreman Road and if they had been at Foreman Road prior to Seekamp Street then the whole incident could not have happened in the way that the complainant describes. He suggested that there were inconsistencies between her evidence in court and her statement to the police in relation to where the accused slept and that the fact that the accused was not where he should have been. Her father making no enquiry about where the accused was meant that this account was implausible.
Dealing with the fifth incident that was said to have occurred at the accused’s flat, Mr Lyons said that there is a problem again in relation to the chronology. This incident, if it occurred on the day of the mother’s arrest, had occurred prior to them living at Seekamp Street and all of the complainant’s evidence had been predicated on the fact that she had lived in Seekamp Street before this incident occurred. He said his client’s evidence was that the family had never come to his home at Grenache Avenue and that he was not there when the police arrived in relation to the complainant’s mother in any event. He said there were inconsistencies in relation to the evidence of the complainant and her mother as to what occurred when she came out of the room and that inconsistency is important in the scheme of this case.
I asked him whether I could make any use of the fact that the complainant had apparently said to her mother that it was the accused who took her knickers off. Mr Lyons submitted that I could not make any use of it as an assertion of fact by the complainant. I make it plain that I do not intend to use it in that way. I accept his submission that it goes only go explain why the mother then put knickers back on the child if indeed this incident occurred at all.
Mr Lyons made submissions that the cross-examination in relation to what occurred when the mother was arrested for the assault and the suggestion that the complainant had heard an allegation of stabbing, suggests that the complainant is inclined to fantasise or exaggerate but that the objective evidence suggests that there had been no stabbing at all.
Mr Lyons submitted that in relation to the allegation that there had been about twenty occasions upon which the accused had sexually assaulted the complainant was a gross inconsistency on the complainant’s part. He said that she was given plenty of opportunity to explain herself in examination-in-chief and that she did not make allegations about any events other than the five incidents that she recalled.
In relation to the accused’s evidence, Mr Lyons submitted that he has been under a disadvantage in this court because he is not very well educated and not a sophisticated man. He conceded that he did not do very well in the witness box but that this clearly does not mean that he has committed the offence. He submitted that I should give him credit for getting into the witness box.
Discussion
The complainant gave her evidence in a straightforward manner. There were some matters about which she was inconsistent and her attention was drawn to a number of statements that were said to constitute prior inconsistent statements. I do not consider that any of the statements that she made in court, that are inconsistent from the statement that she gave to the police in May 2012, are significant either on their own, or in combination with the other suggested inconsistencies in relation to this matter.
The complainant was clearly incorrect in relation to her chronology of events. If the family moved from New South Wales to the Riverland in 1997 then they lived in another place or potentially a couple of other places prior to moving to Seekamp Street in January 1999. The fact that the complainant’s mother was arrested on the 26^th January 1998 and that there is an address on P4 of Sandercock Street in Berri, where she was purportedly living at that time, supports this assertion. It therefore could not be that the events as deposed to by the complainant having occurred on the day of her mother’s arrest at the accused’s home at Grenache Avenue occurred after the family lived in Seekamp Street. However, this type of detail in relation to the account given by the complainant I do not consider being as significant as Mr Lyons urged upon me. The complainant was very young at the time of these allegations. She was giving evidence about a lengthy course of conduct. The fact that she was incorrect in some details is not surprising. The complainant’s version in relation to her dealings with the accused is supported by the evidence of crown witnesses in three material particulars.
The first is the evidence of her brother that there was an occasion upon which he saw the complainant and the accused in bed together in the shed when they were both covered by a blanket supports the nature of the relationship between the complainant and the accused as being an inappropriate and sexual relationship. It is capable of demonstrating that the accused had a sexual interest in the complainant and is capable of supporting her version of events.
The second support comes from the evidence of her mother that there was an occasion when she was at the Grenache Avenue address when the complainant did not have any knickers on. This supports in a material particular the allegation made by the complainant that an event had occurred shortly before in the bedroom when the accused touched her on the vagina. Prior to doing this he had removed her knickers and they had remained on the bedroom floor. Whilst the version given between the complainant and her mother differed as to what occurred when her mother discovered this, there is support for a material particular that the child at that stage did not have on any underwear.
The third area of support comes from the evidence of the mother and supported in some respects by the evidence of the accused that there was an incident that occurred in which the children alleged that he had hit them or ‘belted’ them. There can be no doubt on the evidence in this trial that there was such an allegation made and that he was aware of it. The circumstances in which this allegation arose differ between the witnesses. However, the evidence of the complainant and her mother that as a result of the accused hitting them the children sustained injuries is consistent. This event the complainant says occurred the same day that there was a sexual assault upon her.
There was a complaint made to her cousins when the complainant was living in Broken Hill. At that stage she was probably about twelve years old. It was urged upon me that I should find that this complaint was fanciful and that it was made in circumstances where the complainant was seeking to ingratiate herself to her older cousins and that she had since been required to maintain this lie as a result of her fear of her father. The evidence, although not clear in relation to the chronology of this matter, appears to be that the complaint was made to her cousins, that her father became aware of the allegations and that the complainant went to the police in New South Wales only to be told that they could do little about allegations of events that had occurred in South Australia. It was not until 2012 that her statement was given to South Australian police.
On the whole of the evidence, I cannot find any proper basis for the submission of Mr Lyons that simply because her cousins were older or because the complainant had had an unfortunate life that she would or did make a false complaint to them at that stage. I find that the complaint that the complainant made is broadly consistent with the allegations that she is making today. She did not go into a great deal of detail in relation to the sexual assault but plainly said that she had been sexually assaulted by the accused. I do not accept that there has been a need by the complainant to maintain this false allegation for any of the reasons suggested by Mr Lyons. I have considered whether there may be any other reason, perhaps unknown to all of us, in relation to a false complaint made by the complainant. I do not think that there is.

As Mr Lyons quite frankly conceded the evidence of the accused in this matter was not impressive. He appeared to be very confused at times. He appeared to lack understanding as to what he was asked, he was inconsistent in relation to his version of events and at times rambling. I have taken account the fact that he was being asked about events that allegedly occurred many years ago, that he was unaware until quite recently of any of the allegations despite the fact that there had been a complaint made many years ago, and that on his own evidence he has had what appears to be a significant issue in relation to the consumption of alcohol over many years. All of these features have placed him at a disadvantage in giving evidence and I have taken into account these disadvantages.
I have also taken into account the forensic disadvantage that is significant in relation to being able to properly challenge the prosecution case given the course that this matter has taken. This disadvantage has required me to scrutinise with great care the evidence of the Crown in relation to these allegations. I have done this.
I reject the evidence of the accused that he did not at any stage sexually interfere with the complainant. I do not accept that it is reasonably possibly true. I find that he told lies to distance himself from the opportunity to have committed the acts. I do not accept that he slept in the shed on the one occasion to which he deposed.
I do not accept that the complainant and her family did not visit his flat around the corner from Seekamp Street.
I found the complainant to be a credible and reliable witness. I accept that she was honestly trying to tell me the truth about the events that occurred when she was a young child and that her evidence was reliable insofar as the allegations that she was making in respect of the sexual offending. Issues of her reliability in relation to the chronology of the events may be explained, and I accept, on the basis that she was recalling matters from many years ago and that we all have memories that are imperfect in relation to our childhood. However, this does not detract from her alibility to be able to recall the salient features of the abusive events that occurred to her.
I accept the evidence of the complainant’s brother, that he saw the complainant with the accused in the shed in the manner that he described and that this evidence is supportive of the claim made by the complainant that there was an event that occurred in the shed.
I accept the evidence of the complainant’s mother that there was an occasion when her daughter did not have her knickers on at the Grenache Avenue premises and find that this is supportive of the account given by the complainant of the events that happened on that day. In addition to this, the mother’s evidence is supportive of the fact that these events occurred on the day she was arrested by the police on the 26^th January 1998. This fact is also supportive of the account given by the complainant of the events that occurred on that day.
I accept the evidence given by the complainant’s mother as to the allegations the accused assaulted the complainant and her brother. I find that this is supportive of the account given by the complainant that there was an act that occurred of an indecent nature on that particular day.
I accept the evidence of the complainant’s cousins that she told them the accused had been sexually interfering with her.
I am satisfied beyond reasonable doubt that the complainant was credible and reliable in her evidence as to the events of sexual assault. I am satisfied beyond reasonable doubt of the following:
1    the accused was naked on the couch in the lounge room of Seekamp Street and asked TQ to touch his penis, which she then did. This constitutes an act of gross indecency;
2    the accused touched TQ on the vagina, attempted penile penetration and did penetrate her to some extent, in the shed at Seekamp Street. This occasion was witnessed by KQ. These acts are at the very least indecent assaults;
3    the accused hit KQ with a broomstick and touched TQ on the vagina in the kitchen at Seekamp Street. This act is an indecent assault;
4    when TQ was living at Foreman Road the accused entered her bedroom at night and touched her on the vagina and then moved his penis up and down between the inner lips of her vagina. These acts constitute acts of indecent assault and at least unlawful sexual intercourse;
5    at Grenache Avenue when TQ was playing on the bed with the accused, he took off her knickers and rubbed her vagina with his hand. This act constitutes an offence of indecent assault.
I am satisfied that (a) – (e) of the particulars of the offence have been proven beyond reasonable doubt. Each of these particulars includes an act that can properly meet the definition of an act of sexual exploitation under section 50 of the Criminal Law Consolidation Act 1935. I am satisfied that each of these acts was committed deliberately and intentionally by the accused. I am satisfied that the acts occurred over more than three days. I find the accused guilty of the offence of Persistent Sexual Exploitation of a Child.