R v Bolte - [2009] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOLTE
Criminal Trial by Judge Alone
[2009] SADC 97
Reasons for the Verdicts of His Honour Judge Rice
4 September 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused is charged with eight sexual offences involving two sisters (seven counts of indecent assault and one count of unlawful sexual intercourse) - No cross-admissibility but heard together - Guilty verdicts on counts 1, 4, 5, 6 and 7 - Not guilty verdicts on count 3 (no case) and counts 2 and 8.
Criminal Law Consolidation Act 1935 (SA) s 278, referred to.
R v Seigneur (2009) SASC 59; R v Longman (1989) 168 CLR 79, considered.

R v BOLTE
[2009] SADC 97

This is a trial by judge alone.
The accused is charged with a number of sexual offences against two sisters, C1 and C2, all of which are said to have occurred on a small farming property at Currency Creek owned by the accused and his wife.
There are four counts of indecent assault and one count of unlawful sexual intercourse involving C1 and three counts of indecent assault involving C2.
There being counts involving separate complainants on the same Information, there arises the question as to whether the counts are properly joined. Before the prosecutor, Mr Healy, opened the case for the prosecution, I raised whether it was proposed to be submitted that evidence in relation to a count involving one complainant was admissible in proof of a count involving the other complainant. I was advised that no such submission, that is, of cross‑admissibility, was to be made. I raised that issue having regard to the amendments to s 278 of the Criminal Law Consolidation Act 1935 (SA), particularly the new sub-sec (2a), and my practice of not reading the statements on a trial by judge alone.
It seemed common ground that, notwithstanding no cross-admissibility, all counts could be dealt with at the one trial. Mr Crocker, who appeared for the accused, expressly said that there was no application for severance. It is common ground that the November 2008 amendments do not apply to this case even though some of the discussion in R v Seigneur[1] would suggest otherwise.
[1] (2009) SASC 59
I decided to hear all counts together even though it is a moot point as to whether I could or should do so. Having heard all the evidence, I have come to the conclusion that none of the evidence is cross-admissible.
Prosecution case – an overview of the allegations and the accused’s response
Introduction
As mentioned, these alleged offences are said to have taken place on a small farming property at Currency Creek.
Something of the family relationships and history needs to be mentioned, as does some of the accused’s background, because those matters have played a significant part in the evidence.
The accused, aged 62 years, is married to Doris Bolte. They have been together for 23 years and married for 21 years. Mrs Bolte’s previous husband died leaving her with four children, the youngest of whom is a daughter, Ms A. Another of Mrs Bolte’s daughters is Ms R and the two complainants, C1 and C2, are her daughters. In other words, the two complainants are step-granddaughters of the accused.
Towards the end of 1988, Mrs Bolte’s daughter Ms A (the accused’s step‑daughter) complained to the police that the accused had indecently assaulted her. The accused denied the allegations and was acquitted by the jury on all charges. Mrs Bolte believed the accused’s denials and always remained supportive of him. Thereafter, Ms A moved to Queensland and, until close to the time when the present allegations were made to the police, had little to do with Mrs Bolte and the accused. There has been some contact in the past couple of years which the accused tolerates for the sake of his wife. The accused remains wary of Ms A.
Going back further in time, in the early 1980s, the accused, under the surname of Geesing, was charged and convicted with the abduction and murder of a ten year old girl, Louise Bell. On appeal, his conviction was quashed but no order was made for a re-trial (R v Geesing[2]). Upon his release from custody, the accused changed his name, obtained several jobs in a part-time capacity, eventually securing employment at Mitsubishi, Lonsdale, where he met his present wife.
[2] (1985) 38 SASR 226
The property at Currency Creek was bought about 15 years ago by the accused and his wife. The accused ceased work at Mitsubishi when aged 54 years due to a work injury. He has only worked on the farm since that time. The farm is about 58 acres and the accused and Mrs Bolte earn money from the various animals that they keep.
There are some other facts that appear to be common ground.
There is no doubt that Mrs Bolte’s grandchildren, C1 and C2 (to her daughter Ms R), visited the farm from a young age until about mid-2007. Generally, C1 and C2 would come with their parents for weekends and perhaps some of the school holidays. Sometimes C1 and C2, as they became a little older, would stay without their parents and sometimes one would stay or visit without the other.
It was very much the case for the defence that Mrs Bolte had a number of knee operations that restricted her mobility. There were a number of them between 1998 and 2008. The initial knee injury was in November 1997.
Count 1 (Indecent Assault)
This was referred to as the bath-tub incident. The allegation is that, on an occasion when C1 was visiting the farm (and there is a difference on the evidence as to her age at the time), she was having a bath and that the accused touched her indecently on the buttocks and between her legs. As to the latter form of touching, C1 said the accused touched her on the outside of her vagina, rubbing his hand forwards and backwards for a few seconds.
As to this count, the accused denies the allegation and says he had never bathed C1 or been in the bathroom alone with her. Mrs Bolte, who was also called by the defence, was quite adamant that the accused never ever bathed C1.
Count 2 (Indecent Assault)
This alleged offence occurred on what was referred to as the love seat or swing. The seat had the ability to swing but had been secured to prevent movement because of the knee injury and operations of Mrs Bolte. C1 said she was seated on the seat and that the accused sat down beside her, put his arm around her and touched her on the top of her left breast until such time as someone came outside.
The accused denied any such incident.
Count 3 (Indecent Assault)
This was said to be an occasion of indecent touching on the breast on the outside of the clothing in an area where the pigs run. However, it emerged from her evidence that she cannot identify an occasion when these events occurred. In that situation, even if I was otherwise satisfied that there was an indecent assault, any conviction would be bad for uncertainty. Therefore, I entered a verdict of “not guilty” on this count before calling upon the accused.
Count 4 (Indecent Assault)
This alleged offence occurred when C1 was assisting the accused in taking the lids off bottles and squashing them for recycling. C1 said the accused touched her on the upper thighs, between her thighs and on her breast.
The accused denied any such incident.
Count 5 (Unlawful Sexual Intercourse)
This count is said to have taken place in the school holidays when C1 was aged 12 years. C1 said she was in the hayshed with the accused when he told her to lay down on a hay bale, he pulled her underpants down to her ankle and put two fingers in her vagina.
Not only did the accused deny any such incident but he denied that C1 was ever in the hayshed which, he said, was about the size of a small toolshed.
Count 6 (Indecent Assault)
This is the first of three counts involving C2, the older sister of C1.
C2 alleges that, on an occasion when she was riding the horse on the farm (being led around rather than riding as such), the accused was asking her for sex and said he would give her the farm. Then, when she dismounted, he cupped his hands under her buttocks and squeezed as she lowered herself down.
The accused agreed that was his method of helping her dismount rather than putting his arm around her waist. Effectively, he says any squeezing was accidental or just part of the means of helping her down and was not indecent in nature.
Count 7 (Indecent Assault)
This count relates to an occasion when the accused was teaching C2 to drive in a utility on the property. C1 was on the tray on the back. The accused is alleged to have been asking C2 for sex and touching her on the breast area.
The accused denies the conduct, although he does acknowledge that there were occasions when C1 and C2 were permitted to drive the utility on the property under his supervision. However, he denies that, in such a situation, C1 would be permitted to be on the tray; she would be in the back cabin of the twin‑cab, watching and leaning between the gap between the front seats.
Count 8 (Indecent Assault)
This count was last in point of time and is said to have occurred when C2 visited the farm with her boyfriend, PA. This may well have been the occasion when C2 and PA brought a trailer-load of rubbish, including a car motor, to be dumped.
Both C2 and PA say they did not stay for a meal and it was dark when they left. C2 said she kissed/hugged Mrs Bolte farewell and was about to leave when Mrs Bolte said “What about your pa”. With that, C2 hugged the accused goodbye but that he then used his right hand to grab and hold her left breast. Whatever position PA was in, he said he saw the assault but did nothing at that stage. C2 said the grip was for a couple of minutes, whereas PA said it was for about 10-15 seconds. Each says Mrs Bolte was not looking at that time.
The accused remembered the occasion but said that no such incident occurred. Mrs Bolte also remembered the occasion and was watching the embrace but said nothing happened like that which is alleged.
As is touched upon below, this is the only count where there is evidence that is potentially corroborative of C2’s account. Whether it is in fact corroborative is a matter for me as the decider of the facts. It comes from a source independent of C2 and there is no evidence to find he collaborated with her on this allegation. However, having said that, I have given consideration to the possibility of collaboration. Although there is no obligation on an accused to prove or show anything, the suggestion is that he is confused or mistaken about what he saw. The facts are considered in more detail below.
Ingredients of the offences
Indecent Assault
With one exception, all of the counts alleged the offence of indecent assault. An indecent assault is the unlawful application of force in circumstances of indecency. If otherwise proved, consent is no defence given the ages of the complainants at the relevant times. C1 was born on 11 March 1992 and C2 was born on 9 June 1989.
The application of force must be deliberate and intentional. However, some applications of force are not unlawful if they occur as part of social interaction or with consent. For example, if one of the complainants was to ride the horse and was lifted onto the saddle or given a leg-up, that use of force would not be unlawful even though done deliberately. Any touching when dismounting in the same fashion would not be unlawful.
Further, an assault must be in circumstances of indecency. In the situation of a trial by judge alone, it is for the judge to assess whether right-thinking members of the community would consider the conduct indecent. A consideration of the circumstances which are relevant in that assessment are not limited to physical acts. Talk of a sexual nature, in conjunction with physical touching that is not necessarily a sexual touching, still may be an indecent assault. It is trite to say that it all depends on the circumstances as proved.
Unlawful Sexual Intercourse
This allegation relates solely to count 5 involving C1 in the hayshed. Any act of sexual intercourse would be unlawful if the occasion was in July 2004 as alleged, C1 then being aged 12 years. A detailed exposition of the law involving sexual intercourse is unnecessary for present purposes. The allegation by C1 is that the accused put two fingers inside her vagina. If I am satisfied about that, then that would amount to sexual intercourse as defined by the law. Any degree of penetration would suffice.
General directions
Burden of proof
The burden of proof rests on the prosecution from beginning to end. The accused does not have to prove or show anything. The accused was not obliged to speak to Detective Brevet Sergeant Williams but he chose to do so. The accused was not obliged to give evidence but he chose to do so. His evidence is to be considered alongside the other evidence in the case. I give him credit for adopting a course he was not obliged to adopt.
Even if I disbelieved the accused’s evidence and that of his wife, I would still need to be satisfied, beyond reasonable doubt, about each count before I could convict.
Degree of proof
The prosecution must prove guilt beyond reasonable doubt before a conviction on any count could be entered. That degree of proof extends to each of the individual elements of each charge. Nothing short of proof beyond reasonable doubt will do. If, upon a consideration of an individual count, I am unable to say where the truth lies (to the extent that that is the purpose of the trial on each count), then the verdict must be one of “not guilty”. Where I indicate that I am satisfied about a particular fact or event, or I find a fact or event proved, I mean satisfied or proved beyond reasonable doubt.
Presumption of innocence
The accused has come into this Court with the presumption of innocence operating in his favour on each count. The law regards him as innocent on any and all counts unless and until his guilt has been proved beyond reasonable doubt.
Separate consideration of counts
Consistently with what I have said above, each count will be given separate consideration because the facts of those counts are quite distinct. The general background situation is one about which there seems no dispute, that is, that the accused and his wife have lived on this farm for over 15 years and that C1 and C2 visited from time to time as referred to above.
Warnings
Having decided to proceed with a trial involving all counts, and having decided there is no cross-admissibility, it is necessary that I take into account various warnings. I do not reason that because there are multiple counts involving separate complainants he is guilty of any of them or that he is the sort of person who would commit any of these alleged offences. I have considered each count on its individual merits.
I also warn myself that there is the danger that each of these complainants has separately fabricated a story against the accused and that there is also the danger that they have collaborated to present false accounts against the accused. I am also conscious of the danger that C2 may have inadvertently and innocently contaminated her memory having spoken with an aunt, Ms A, a stepdaughter of the accused. I have considered all of the submissions in this regard even though I have not dealt with them all in these reasons.
Yet further, with the exception of count 8, the evidence of each complainant remains uncorroborated. Even count 8 may be uncorroborated depending upon my view of the facts. In that situation, there is a need to take special care and scrutinise the evidence of each with special care. I warn myself that before I could convict on any count, including count 8, I would need to scrutinise the evidence of each with special care and, having heeded the warning of the dangers of acting on uncorroborated evidence, only convict if I am satisfied beyond reasonable doubt of its truth and accuracy.
Longman warning (R v Longman[3])
[3] (1989) 168 CLR 79
There is also the aspect of delay in reporting this alleged offending. The alleged offences occurred from 1996 to early 2007. The police first became involved in May/June 2007, so the delay was up to over a decade down to a few months. I appreciate that the failure to make a complaint does not necessarily mean the allegation is false. There may be reasons for the failure to complain and these are dealt with below.
The delay has meant that each complainant, but to varying degrees, has been unable to remember some details. That has disadvantaged the accused because there is an inability to fully test the complainant’s account. Further, the lack of a prompt complaint, or no complaint, has occasioned a forensic disadvantage to the accused on some counts. The accused may, again depending upon the issues on individual counts, have been better able to remember his movements, or have someone vouch for his movements or provide an alibi, or find forensic evidence, which may have been available or not found (which can be equally important). I have taken those and other disadvantages into account. I have also assumed there were other disadvantages that would have emerged with the ability to examine and cross-examine in greater detail.
Yet further, I warn myself that the failure to make a complaint in itself may cast doubt upon the reliability of the evidence given by any complainant.
I appreciate the need to scrutinise the evidence of each complainant with great care. I warn myself that it would be dangerous to act upon the evidence of any complainant standing alone unless, bearing in mind this warning, I am completely satisfied as to its truth and accuracy as to the events surrounding each charge.
Uncharged acts
In addition to the charged acts, the prosecution has adduced evidence from C1 of other conduct not the subject of any charge. The occasions are identified below. The question arises as to the degree of proof required before those acts could be acted upon. For my part, although the authorities are not completely clear on this, I have applied the requirement that those acts be proved beyond reasonable doubt before I could act upon them. If the prosecution chose to do so, what were referred to as uncharged acts could have been the subject of separate charges. In that situation, they would need to be proved beyond reasonable doubt before they had any potential use to a count. That being the case, proof of uncharged acts should meet the same standard before they have any potential use. A less demanding or less precise standard should not apply merely because alleged unlawful conduct is not charged.
C1 gave evidence that, on an identified occasion just before her 13th birthday, when they were out in the back paddock, the accused spoke to her about having sex with him. She said (TP20):
...he told me if I let him be the first person to have sex with him that the farm would be mine, and he had already asked my sister so I better hurry up and make a decision and I didn’t answer the question. I just said that we had to go back because tea was going to be ready or something. I just tried to get an excuse to get him to take me back because I was scared if I said no he would hurt me and I was scared if I said yes he would hurt me too.
On that occasion she said the accused put his hand on her breast. She said there were many occasions that he did that. She said sometimes it was under her clothing but mostly over. Touching such as that was from the ages of seven to 13 (TP20-21).
C1 also said that the accused touched her between the legs “all the time”. He did that “every time he had an opportunity to” (TP21-22).

For the various reasons I refer to below, I am satisfied that the accused committed these uncharged acts.
Although not in the nature of uncharged acts, she said the accused would teach her that “cunt” meant vagina and “fuck” meant sex (TP22). I find that the accused did say those things to C1.
Potential use of uncharged acts
The uncharged acts, once proved, show that the charged acts were not isolated events but part of an extended course of offending. Further, it tends to explain why no complaint was made at an earlier time and is part of what is often referred to as a process of grooming.
I make it plain that the verdicts must relate only to the events charged. It would be erroneous to be satisfied about an uncharged act or acts and transpose that finding to a charged incident about which the requisite proof was lacking.
More needs to be said about the actual use of the uncharged acts that I have found proved. Expressed generally, the whole of the course of events provides a context in which it is said the charged acts occurred. In a sense, the more evidence I have of the interaction between C1 and the accused, the better opportunity I have to evaluate her evidence and determine to what extent, if any, I am prepared to rely upon it. In that way, it can be said that the whole sequence of events throws light on the nature of the relationship which C1 claimed to exist between herself and the accused.
I have considered the evidence of the uncharged acts along with the evidence going directly to the charges to determine what, if any, weight I am prepared to place on C1’s evidence. Evidence of uncharged acts is available to me as material which may assist in concluding whether C1’s evidence is reliable.
The relevance and use of the uncharged acts can be described more specifically. In particular, the prosecution is entitled to point to this evidence as having these uses, each of which I consider is legitimate in this case.
It tends to explain why C1 did not make a complaint when the charged incidents were said to have occurred. This aspect of the case also needs to be considered in the light of the reasons given by C1 as to why no prompt complaint was made. These are dealt with below and are very much related to the family dynamics and the history of the accused.
Uncharged acts or events are also relevant to explain why the accused expected Cl’s co-operation and silence in the face of what was occurring.
They are also relevant to explain why C1 apparently showed no overt shock or distress at what she described as the accused’s conduct on the charged occasions.
Further, they are relevant to explain a certain ambivalence in C1’s feelings towards the accused which may make explicable the displays of affection to him of which I have heard.
Yet further, they explain the background against which the alleged offences or first alleged offence came about where C1’s evidence of the offences charged or the first offence charged may otherwise have been unreal or unintelligible or not fully comprehensible.
Finally, they help to explain why C1 may be unclear about precise dates and details of offences charged. The more there are of these acts, the more details of one merge with others.
These are the only ways I propose to use the evidence.
I have already observed that, even though I have found that the uncharged acts occurred, that does not in any sense absolve me from the task of determining whether the charges themselves are made out.
It would be quite wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he has been charged. In the same vein, it would be quite wrong for me to conclude that because the accused may be found guilty of a count or upon counts, then the accused must be guilty of another count or counts.
As mentioned, no question of cross-admissibility arises.
Evidence of the complainants generally
I propose in due course to examine in detail the evidence on each count, including the evidence of the accused and Mrs Bolte. I make these general observations about each of the complainants.
As for C1, I find that, generally speaking, and subject to what I say about count 2, she had a very good memory of events. She was doing her best to give a truthful and accurate account. Having regard to the content of all the evidence and the fact that I had an extended period to observe her demeanour, I accept she was a truthful and generally accurate witness. She is intelligent, articulate, confident, generally consistent and not given to exaggeration. She was a compelling witness. She had a very good demeanour and some of the spontaneous exchanges in cross-examination reinforced her credibility.
As for C2, she was a good witness without being as solid as her sister but, at the same time, subject to what I say about count 8, I consider her to be both truthful and generally accurate. I formed that view having regard to the content of all the evidence and the extended period I have to observe her demeanour.
Although these represent my general views of the complainants, there is obviously a need to examine the evidence relevant to the discrete counts.
Evidence of the accused and Mrs Bolte
I found the accused to be a very poor witness, partly due to his demeanour, but I have taken into account the pressure of being charged with such matters. Some of his protestations lacked credibility. For example, his refusal to concede even the possibility that he was alone with C1 in the bathroom whilst she was having a bath, is unbelievable.
Similarly, his assertion that C1 was never in the hayshed the subject of count 5 defies common sense and what I find to be the case concerning this count. C1 and C2 visited this farm numerous times and were young, keen, enthusiastic visitors, eager to help with jobs. I find it unbelievable that they would not have been playing in that area on a regular basis, with and without the accused.
There are many aspects of Mrs Bolte’s evidence that I found to be equally unconvincing. Again, for example, her vehemence that the accused was never alone bathing C1 is quite unbelievable bearing in mind her problems with mobility and bending over/kneeling.
Count 1 (Indecent Assault – bathtub incident)
The Information alleges that this offence occurred between 11 March 1996 and 11 March 1998, that is, somewhere during a two-year period when C1 was aged four or five years. She thought she may have just started school (TP36).
The nature and degree of touching is referred to above. I find that the touching was deliberate, unnecessary and prolonged.
C1 said it was an occasion when her sister was not at the farm and that the accused was alone with her in the bathroom. She said the bath was not inside the main house as part of a conventional bathroom. She said it was in a shed in the backyard (TP70). She acknowledged that Mrs Bolte bathed her but that the accused did also. She said that sometimes Mrs Bolte had trouble reaching down because of her knee problems.
In evidence, she said this occasion represented her first memory of the accused doing something to her. Elsewhere she said the love seat incident (count 2) was the first incident. I do not find that to be a difference of any significance. She had a clear memory of each occasion and simply identified one or the other as the first. The identification of the occasions is the important feature of the evidence.
I pause here to say something of the cross-examination about prior statements. There clearly were inconsistencies in the evidence of each complainant, but none of it really undermined their credibility and reliability. Inconsistencies within the evidence of each complainant should not be viewed as unusual or unexpected and was not so viewed by me. On the contrary, I would be suspicious if there were none and that the evidence of each dove-tailed without problems. After all, there are almost always elements of reconstruction when recalling events of many years earlier, more so when they involve conduct such as is alleged here. I make it plain I have taken all inconsistencies into account.
As mentioned, the accused and Mrs Bolte deny even the possibility of an opportunity to commit this alleged offence. I reject both of those denials. Quite independently of that rejection, I am satisfied that the accused committed the indecent assault as alleged. It was a deliberate and intentional indecent assault. He took advantage of the opportunity to act in this way. Taking her out of the bath did not call for any touching like this. It was unnecessary and opportunistic. I am satisfied that touching like this occurred over a two-to-three year period.
Count 2 (Indecent Assault – love swing)
The love swing to which this count relates was located on the front verandah.
C1 said the accused came onto the verandah and sat on her right side, then placed his left arm around her and touched her on the left breast on the outside of her clothing. This happened for a few minutes until someone walked out.
C1 said she did not tell anyone because she was scared “...they wouldn’t believe me” (TP15). The failure to make a timely complaint is a topic to which I will return.
She initially thought this occasion was either around her birthday when she was aged seven years or Christmas (TP12). Later in her evidence, she linked this occasion to being given a red model sports car by the accused and conceded that that was likely to have been Christmas 2002 (TP70-74). The count suggested she was seven or eight years at the time and, by Christmas 2002, she would have been well over 10 years of age. Even though Christmas 2002 was an occasion of a family gathering, in my view there was ample time and opportunity to commit the offence.
C1 has differed over time as to her recollections of the manner and extent of touching concerning this count. As mentioned above, her evidence was that it was a touching on the left breast, just the top of her chest (TP14). In cross‑examination she said he touched her on the upper thigh. She had told a solicitor from the Director of Public Prosecutions much the same thing. She said she did not think that was inappropriate because it was only the outside of the thigh (TP146).
Further, C1 said in evidence that the accused touched her on the outside of her vagina over her clothes. She said she had not remembered that in examination-in-chief. It was an agreed fact that C1 had, as part of her proofing, told a solicitor from the Director of Public Prosecutions that the accused had touched her in the area of her vagina and under her clothing (TP153). C1 says she only told the solicitor there was touching over her clothing.
These differences in recollection are important. I do not attribute them to a desire to deceive. If there was a desire to deceive the Court presumably she would have included that detail in examination-in-chief or possibly in cross‑examination when given the opportunity so to do.
These considerations give me cause to doubt the accuracy of her recollection on this count. I specifically find that she has an uncertain recollection and that there was no desire to deceive the Court. I have considered whether the finding of an uncertain recollection on this count should cause me to doubt other important aspects of her evidence. I find that it does not cause me to do so.
There is one other aspect of this count that deserves mention. Although I do not need to make a specific finding about this, the evidence of the touching given in examination-in-chief may not amount to an indecent assault. At its highest it would, but I am not sure I would have made such a finding because the touching could be said to have been limited to the top of the chest.
I find the accused not guilty on this count. I have ignored the allegations in this count on the other counts.
Count 3 (Indecent Assault)
A verdict of not guilty has already been entered on this count. I have ignored the allegation in this count.
Count 4 (Indecent Assault – whilst assisting with the recycling of items)
These events are alleged to have occurred when C1 was aged 10 or 11 years. She said they were in an area of the backyard of the property, taking the lids off containers/bottles and then crushing them for recycling. C1 says the accused touched her between the upper thighs and breast. The touching consisted of rubbing and moving with his hands on the thighs and the thumb in the breast area moving up and down (TP16-17). Whilst he was doing this, he told C1 she was his favourite granddaughter, something he told her all the time (TP17). The accused denied any such incident.
C1 did not mention this incident in her first police statement but that does not cause me to doubt the events occurred. D2 is hardly a rigorous document in this regard, with no explanation about what is “normal” concerning short and long term memory or the process that led to the indication on the form.
Having considered all the material, I am satisfied that the accused indecently assaulted C1 as alleged. I specifically reject his denials.
Count 5 (Unlawful Sexual Intercourse)
This is the only count where an act of sexual intercourse is alleged. If I am satisfied that the accused performed the act as alleged, it would be unlawful if C1 was of about the age of 12 years.
C1 gave evidence that, on an occasion when she was working on cans and bottles for recycling, the accused asked her to go into a shed that had tools and bales of hay in it. She said she was wearing jeans and underpants but was unable to remember which top. Whilst inside the shed and near bales of hay, he told her to take her long pants off but she only lowered them to her ankles. As I understand her evidence in examination-in-chief, she lay on a bale and the accused pulled her underpants down to her ankles.
On C1’s account, the accused said he wanted to give her something special to show her how much he loved her. He said he loved her more than he probably should and that nanna (Mrs Bolte) would be jealous of them. The accused then rubbed her vagina with his fingers and then put two fingers inside her vagina. C1 said what the accused did hurt her and she cried. She said her nanna was not moving around much at that stage because she had not long had surgery.
C1 said she did not tell anyone because she “...was scared that what he said was true, that my nanna would hate me for it and that it would be my fault” (TP18-20).
In cross-examination, C1 acknowledged there may have been differences between what she first told an investigating officer and what she said in evidence about how her pants and underpants came to be pulled down. C1 said that, in some ways, her memory is better now and that she is stronger as a person (TP84‑88).
There are those inconsistencies referred to in the pages to which reference has been made, but I do not regard them as serious bearing in mind the offending she alleges. Having listened to those answers and her evidence over parts of two days, I am satisfied that she was giving an accurate and truthful account.
In reaching that decision, I have considered and rejected the account of the accused. I confirm that I considered him to be a very poor witness. His answers in cross-examination particularly lacked credibility. He played down the size of this shed and found excuses as to why C1 would not be in the shed with him and was never in the shed with him (TP310-312). Similar answers were given in examination-in-chief (TP285-287).
I find the accused guilty on this count.
This is the last count involving C1.
Lack of prompt disclosure or complaint
I have already had regard to the content of the Longman warning. C1 gave a number of reasons for not making a prompt complaint. It is clear to me that she had to deal with competing emotions and reasons for not making prompt complaints despite opportunities to do so. Having regard to the family dynamics and the accused’s history (as she believed it), her failure to make a prompt complaint was quite understandable.
These are a cross-section of her reasons. There was no doubt that she loved her nanna (Mrs Bolte) (TP46, 136) and that she viewed the accused as the best (step)grandfather apart from what he did to her (TP147).
As to count 1, she did not tell anyone at the time because she was scared that no-one would believe her and that her nanna would hate her and blame her (TP12).
As to count 2, there was no early disclosure because she was scared “...they wouldn’t believe me” (TP15).
As to count 5, she did not tell anyone because (TP20):
I was scared that what he said was true, that my nanna would hate me for it and that it would be my fault.
The cross-examination of C1 is replete with those reasons and more expansive explanations. It needs to be remembered that Mrs Bolte’s daughter complained that the accused had indecently assaulted her but was acquitted by the jury. Further, that the accused was previously charged (under the name of Geesing) and found guilty of the murder of Louise Bell but the conviction was quashed on appeal.
The answers to which I refer arose in the context of a late disclosure or complaint to C1’s friend, BD, (to which I will return) and her (BD) passing on the allegation to C1’s mother. C1 said she had not told her mother earlier because she was scared. The cross-examination continued (TP41):
Q.Scared of what.
A.That if I told my mum and dad and they said something to Mrs Bolte that he would come after me and something would happen to me.
Q.Why did you think that.
A.Because there is things that I’ve heard about him.
Q.What had you heard about him.
A.That he was involved in other sexual abuse cases. That he was involved in other cases with other people.
Q.Who had you heard that from.
A.Family members.
Q.Which members.
A.My mum and my dad.
Q.Who else.
A.That’s it.
Q.And you’d heard about those things from mum and dad before the conversation with [B] and [B’s] mum.
A.Yes.
Q.What had mum and dad told you about Mr Bolte’s past.
A.That he had been previously taken to court for sexually abusing my aunty.
Q.Who is that.
A.[AM}
Q.When you been told about the case involving Aunty [A].
A.Nothing except the fact that she didn’t get him.
Q.That she didn’t get him.
A.Yes, that she didn’t win, that she lost and he got away with it.
Q.When you say ‘she didn’t get him’ what do you mean.
A.That he didn’t go to gaol for what he did to her.
Q.Was that your mother or your father or both of them that had previously told you about Aunty [A’s] case.
A.I don’t remember.
Q.When you were told by your parents about the Aunty [A] case were you given the impression that Mr Bolte had got away with it.
A.Yes.
Q.Did you have the belief that he had in fact done what Aunty [A] alleged but he had got off.
A.Yes, well, it was pretty hard not to believe it when he is doing it to myself so yes.
C1 said she knew it was a sexual abuse case and that she “...couldn’t not believe it.” She believed her aunty was telling the truth (TP44, 46).
She went on to say how she came to learn of the Louise Bell case (TP44):
Q.How did you come to learn about Louise Bell.
A.My dad told me.
Q.What did he tell you about the Louise Bell matter.
A.Just that Ray had been accused of it and that nothing ever came of it, he never went to gaol and there was no evidence or anything. And that she was a young girl that was taken from her room, whatever.
Q.After you were told about the Louise Bell matter did you have any belief as to whether Mr Bolte was guilty of that and had been lucky to get away with it.
A.I didn’t know but it put more fear in me not to say anything in case it was true.

C1 said she believed from what her parents had told her that he got off on a technicality (TP44-45). Later she said (TP47):
...I was dead scared when I had heard about the Louise Bell thing, if I said anything I would go missing too.
C1 said she was scared to tell her parents. She believed her nanna practically disowned her own daughter (Ms A) when Ms A made the allegations (TP47-48). C1 said her parents were of the belief that the accused was guilty of the allegations made by Ms A. She was then asked why she did not, at that time, tell her parents about what the accused was doing to her (C1) (TP48-49):
Q.Wasn’t that the perfect time to say to mum and dad ‘He’s doing something to me’.
A.No. Because I didn’t want to lose my nanna. It was all about my nanna. I loved my nanna more than anything. I still do.
Q.How were you going to lose your nanna if you said to mum and dad that ‘The bloke you reckon abused Aunty [A] and got off of it is doing the same thing to me’; how were you going to lose nanna.
A.Because she’s turned her back on me now. Because she doesn’t believe me now. What was going to be the difference then? She disowned her own daughter. Why would she believe me? Why would she care about me if she doesn’t care about him doing it to her own daughter’ I just wanted her in my life. I didn’t want to lose her.
(See also TP136-137)
Part of my function is to make an objective assessment about those explanations. In making that assessment, I have endeavoured, to the extent I am able, to put myself in the shoes of C1. Although she had opportunities to make a complaint at earlier times, I am quite satisfied about her reasons for not doing so. In formulating these views, I have been conscious of and warning myself of the possibility of distortion and the fragility of youthful experience and memory.
Eventual disclosure
The matters before the Court came to light when C1 made a disclosure to her friend BD. C1 turned 13 years in April, 2005. She made a promise to herself that she would tell someone once she had turned 13 years (TP38).
C1 became involved in an argument with BD some time after she turned 13 years. She had not intended to make any disclosure to BD but it spilled out. BD was remarking on her own life (her father not being around) and said that C1’s life seemed easy with a mother and father and sister who cared about her. When C1 said her life was not as easy as BD thought, she was asked for an explanation. It was in that setting that the general allegation spilled out to BD, who in turn told her mother, JD. JD told C1’s mother who then asked C1 about it. C1 told her mother about the generalities of what the accused was alleged to have done (TP38-41, 132-133). C1’s father, when he came home from work, was led to believe it was only inappropriate talk in which the accused indulged (TP255).
I note that, whatever disclosure was made to BD, JD, C1’s mother and father, it is not evidence of the truth of any assertion.
The 13th birthday party
C1 gave evidence that she purchased a fish bowl and fish for her 13th birthday. As events transpired on that day, the accused took her to the shop to buy it. Her sister, C2, may have been with her. The accused used his money to buy them and then she repaid him at or near the shop or upon returning home to her house.
The occasion was raised as important for a number of reasons. At least in her second police statement she said that, on her 13th birthday, when the accused came around to her parent’s place, she absented herself from the house to get away from him. In that statement she made no mention of the purchase of the fish bowl. She said that that did not seem important to her at the time. I accept that explanation in the context of the matters she was telling the police, namely, the alleged offending by the accused on the farm.
Secondly, being prepared to spend a little time with the accused going to and returning from the shop was not entirely surprising. She obviously had a firm desire to make the purchase and the accused, apart from saying inappropriate sexual matters to her at her home, had not indecently touched her there. As mentioned, C2 may also have been there. I note on the accused’s account C2 was present (TP284).
On my assessment of the evidence and particularly C1 as a witness, there is no adverse inference of any moment that I am prepared to draw. This incident does not shake my view of C1’s credibility or reliability.
Effect of conversations between C1 and Ms A
I propose to explain the nature of what I believe to be the submission and then go to the background evidence. The effect of the submission is that counts 2 and 4 were not included in C1’s first statement and that she has unwittingly and unconsciously later included these allegations following a conversation or conversations with Ms A (who had made sexual allegations against the accused of which he was acquitted).
It seems from the evidence that, before count 5, C1 had some knowledge about what I refer to as the Louise Bell matter and the generality of the allegations made by Ms A. After C1 made her first statement to the police, C1 spoke to Ms A. C1 knew she (Ms A) had been through the same thing and that Ms A “...would be someone that would support me and she would understand” (TP139.08). C1 told Ms A that she was “pressing charges” (TP139). It is said that possibly C1 learned about Ms A’s allegations and unconsciously transported those to herself and subsequently included those in her allegations. In this context it is said that the prosecution should have called Ms A to refute the suggestion or implication.
I do not accept these submissions. Even if there was an obligation upon the prosecution to call Ms A, I am not prepared to draw any inference adverse to the prosecution. Further, I must decide this case upon the evidence before me, not speculation about what might have been said if Ms A was called. Not only is there no detail from C1 about what she believes Ms A’s precise allegations were, I reiterate my finding that C1 was a most compelling witness whose evidence, in the main, I accept beyond reasonable doubt. I reject that C1 has transposed any allegation involving Ms A to her own allegation.
Conclusion
The verdicts on the individual counts have been referred to above. I have not traversed all of the arguments put on behalf of the accused by his counsel, Mr Crocker. I have taken into account all of the evidence and arguments in reaching the conclusions I have.
There will be a verdict of not guilty on count 2 (in addition to count 3). There will be guilty verdicts on counts 1, 4 and 5.
Counts 6, 7 and 8 – Complainant C2
These three counts, which all allege indecent assaults, concern the complainant C2, the older sister of C1. C1 was born on 11 March 1992 and C2 was born on 9 June 1989.
By way of summary, count 6 involves alleged touching while C2 was dismounting from a horse; count 7 involves alleged touching when the accused was teaching C2 to drive in a paddock; and count 8 involves an alleged grabbing of the breast of C2 just prior to departing from the farm. It is count 8 that is said to have been witnessed by a friend of C2, PA.
Count 6 (Indecent Assault)
Both C1 and C2 gave evidence of riding a horse on the farm in the sense of a horse being led around a paddock by the accused. The particulars refer to a period between the beginning of 1997 to the end of December 1999.
C2 gave evidence about the first occasion when an incident occurred between herself and the accused involving a horse. It may have been a horse called Trixie. She mounted the horse using the stirrups. While the accused was guiding the horse around, he asked whether he could touch her breasts and he kept touching her leg. She told him to move his hand and he asked whether he could have sex with her. As I understand her evidence, she said, “No”, but he said, “Everyone has told me ‘later’ but it never happens.” C2 told him she was not saying “later”, she was saying “no”.
C1 came nearby and C2 asked if she could get off the horse. C2 described that, as she got down, “...he held my butt and squeezed it” (TP157-159). She described one hand around her waist and the other squeezing her butt hard and he would not let go (TP159). This implies the use of two hands. As I understand her evidence, normally he would simply put his hand or hands around the waist and guide down (TP159).
C2 did not tell anyone because the accused kept saying that nanna would not believe her and that she would hate her and would not talk to her anymore. C2 did not tell her parents because she was too scared and embarrassed (TP160).
Although C2 described riding the horse on a number of occasions, it seems from her evidence that there was only one occasion when he grabbed her butt and squeezed it after he had been involved in sexual talk with her. She could not remember anything happening on other occasions (TP159).
The accused said in evidence there were occasions when either C1 or C2 would be led around on a horse by him. For the girls to get on he would secure the horse with his left hand and then grab them by the backside and hoist them into the saddle. When the girls dismounted, he would again secure the horse with his left hand and lower them to the ground by holding their backside. He said, in assisting the girls to get on and off in that fashion, he had no intention to be rude or indecent (TP277-280). The accused denied any sexual talk while horse riding (TP283, 302).
The accused was cross-examined about this method of helping the girls on and off the horse. Again he said the best or easiest way for them to get off the horse “...was to balance them with your hand on their bottoms” (TP301). He acknowledged another way of doing it was to grab one of their arms, the jumper or the scruff of the neck, helping them down as they are putting their foot in the stirrups (TP301). He denied any sexual attraction to C2 and denied talk of a sexual nature (TP301-303).
I also asked him questions about that. He agreed it was a safer way to assist the girls in dismounting by putting the right arm around the waist and lifting and guiding them to the ground. Such a method was safer because, if the horse moved, no balancing on a hand was necessary and the child would be under control (TP312-313). I note from C1’s evidence that the accused would help her both on and off the horse by means of the “leg up”, that is, putting a foot in his hand (TP143).
Having considered all the evidence on the topic and the accused’s evidence, I find this count proved beyond reasonable doubt. In reaching that conclusion, I reject the evidence of the accused. I have concluded and accept that the accused’s actions need to be considered in the light of his sexual talk only a short time before. His actions were deliberate, intended and indecent.
There will be a conviction on count 6.
Count 7 (Indecent Assault)
It is common ground that the accused taught C1 and C2 how to drive by allowing them to drive around a paddock. The vehicle was sometimes referred to as the “old ute” or “blue ute” or “twin cab”. In any event, it appears to be common ground that it had two bucket seats in the front, a bench seat behind that and a tray at the back.
C2 described one such occasion. She said she was then aged 12 or 13 years and sitting in the driver’s seat. C1 was also there but on the tray at the back. In his evidence, the accused said the tray had sides and neither would have been on the tray without an adult (TP313).
C2 gave evidence that, as she was driving, the accused was grabbing at one of her breasts but she kept pushing his hand away as she steered the car. On her account, he also started talking about who was going to have sex with him first, C1 or C2. C2 said that the accused said whoever had sex with him first would get the farm. (The fact that the farm was owned by the accused and Mrs Bolte is not to the point.) The accused eventually grabbed her breast and C2 eased the car to a halt, got out and sat with C1 at the back (TP162-165), on the tray (TP194).
C2 described another occasion when she was out alone with the accused and he again talked about having sex with her, but on that occasion he did not touch her (TP165).
This is not a count where there are uncharged acts.
C2 did not tell anyone promptly because she was too scared and embarrassed, and because she “...knew nanna would hate me and not believe me” (TP165, 172-173, 176, 188, 217).
The accused said that there were numerous times C1 and C2 were in the utility with him and that he would be teaching them to drive. He said that, when teaching one of them to drive, the other would be on the bench seat behind and not on the exterior tray. He said it was a safety issue. He said there was never any talk about sex or that the first to have sex with him would get the farm. The accused said “...the farm wasn’t mine to be offering to anybody” (TP282-283).
The dispute on this count is within a fairly narrow compass. I am satisfied as to the truthfulness and accuracy of C2’s account. In reaching that conclusion, I reject the accused’s account. C1 cannot really comment on this occasion and there was ample opportunity for the accused to have committed this offence without C1 seeing from the utility tray (which is where I am satisfied she was positioned). Although C2’s reasons for not disclosing the offending are not all the same as C1 (partly because C2 did not come to know about Ms A and Louise Bell until later), I nonetheless find those reasons very convincing.
There will be a conviction on count 7.
Count 8 (Indecent Assault)
This was referred to as the hug incident. This was an occasion when C2 visited the farm with a male friend, PA, apparently to dump a trailer of rubbish, including an old car motor. C2 puts it just after her 18th birthday, roughly June or July, 2007. In any event, it was the occasion that Mrs Bolte and the accused gave C2 a ring with a diamond in it. (In cross-examination she was unsure about going down there after her 18th birthday, but she certainly remembers the charged occasion (TP207-8, 216).) There were four people in total there, Mrs Bolte, the accused, C2 and PA.
C2 said that after she and PA had been there for about an hour, he wanted to go home. Everyone was in the lounge room. C2 went and gave her nanna a hug. As C2 was about to go, she wanted to know why C2 had not given the accused an embrace goodbye. C2 said that, as she put her arms up around his neck and said goodbye, he touched her breast. However, her evidence went further than that and she said “...it was just glued on and I tried to get away. I tried to pull it off. I tried to step back and nothing would work” (TP166).
C2 said her nanna was sitting down at the time watching television and did not see what was happening because she was not looking. She said the accused had his hand on her breast for “...a minute, maybe two and I was just trying to get it off...” but pulling and squeezing his hand (TP166-167).
C2 said PA saw the incident and, after they had driven a short distance away from the farm, he stopped the car, embraced her and gave her encouragement (TP167).
C2 said there was one more occasion when she went to the farm, with PA, and nothing happened (TP171).
C2 expanded on her evidence-in-chief by saying that once he grabbed her, she took her arms from behind the neck and used two hands to try to pull his right hand off her breast (TP213). While this was happening, her nanna did not turn around, but if she did turn around she would have seen everything (TP213). PA did not intervene even though he seems to have been in a position to do so (TP214)
PA also gave evidence. He remembered the occasion, although he puts it in early 2007 (TP220-1). He said that the accused asked for a hug, C2 gave him the hug and then he noticed that the accused had his right hand on her left breast. He thought it was there for about 10-15 seconds, until C2 broke away (TP222-223). PA’s memory was that nanna was watching C2 (after her hug) as C2 was walking towards PA and the accused. PA described C2 as being side-on and that he saw this inappropriate behaviour. He did not do anything (TP232). PA explained why he did not do anything (TP235):
A.I would have liked to do something but – I mean what am I going to do, I am in their house. It wasn’t down her pants. It wasn’t anything like that. It was her breast and I would get her out of there. We got out of there. There is no way I’m going to turn around and take actions in my own hands in someone else’s house. It would be irresponsible if I did it.
The accused gave evidence about this occasion but denied any wrongdoing or inappropriate behaviour (TP287-288, 305-307).
Mrs Bolte (nanna) also gave evidence about this occasion. She said she saw C2 kiss the accused but nothing happened other than that contact (TP326-329, 333).
I am left in a state of uncertainty concerning this count. Although I do not resile from my view about the accused’s and Mrs Bolte’s credibility, C2’s description about what happened, as compared with PA’s, is significantly different. Further C2’s description of the accused’s grip for one or two minutes (even though it may not have been as long as that) and using two hands to release his grasp would have been seen by Mrs Bolte.
Being in a state of uncertainty, I find the accused not guilty on this count. I have considered whether this finding affects my view otherwise about C2’s credibility and reliability, and I am satisfied it does not.