R v BTR - [2021] SADC 148

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BTR
Criminal Trial by Judge Alone
[2021] SADC 148
Reasons for the Verdict of his Honour Judge Muscat
16 December 2021
CRIMINAL LAW - PARTICULARL OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The defendant is charged with Maintaining an Unlawful Sexual Relationship with a Child.
Defendant is the biological grandfather of the complainant - offending alleged to have occurred between 2009 and 2014 - complainant aged between nine and 14 years - significant forensic disadvantage to the accused - no independent support for the complainant's evidence.
Verdict: Not Guilty
Evidence Act 1929 (SA) ss 34CB, 34M, referred to.
Murray v R (2002) 211 CLR 193; R v Weragoda [2021] SASCA 123, considered.

R v BTR
[2021] SADC 148
Introduction

BTR (‘the defendant’) is charged with the offence of Maintaining an Unlawful Sexual Relationship with a Child. He has elected to be tried by judge alone.
The particulars of the charge are as follows:
BTR between the 8th day of November 2009 and the 10th day of November 2014 at Nailsworth and other places, maintained an unlawful sexual relationship with ECR a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)    touching her vagina on more than one occasion;
(b)    kissing her;
(c)    causing her to perform an act of fellatio upon him on more than one occasion;
(d)    performing an act of cunnilingus upon her on more than one occasion;
(e)    causing her to touch his penis on more than one occasion; and
(f)     showing her pornography.
It is alleged that the defendant committed the offence against his biological granddaughter E, when she was aged between 9 and 14 years.[1]
[1] On E’s evidence the alleged sexual abuse ended before she started high school at which time she was aged 13 years.
The prosecution relied solely on the evidence of E to prove the offence against the defendant.
Central issue at trial
There was no dispute that the unlawful sexual acts, as particularised, amounted to sexual offences,[2] nor that the defendant was an adult[3] and that E was a child during the period alleged.[4] There was no dispute that the defendant and E, because of their familial relationship, were involved in a relationship. Indeed, there was also no dispute that if E’s evidence of an ongoing course of sexual abuse was accepted beyond a reasonable doubt then the defendant had knowingly maintained an unlawful sexual relationship with E during the period alleged in the charge.
[2]     Particulars (a), (b) and (e) being offences of indecent assault; particulars (c) and (d) being offences of unlawful sexual intercourse; and particular (f) amounting to an offence of gross indecency.
[3]     The defendant was born on 12 July 1939.
[4]     E was born on 9 November 2000.
The sole issue in dispute in the trial was whether at least two of the alleged unlawful sexual acts, which comprised the alleged unlawful sexual relationship, have been established beyond a reasonable doubt by the prosecution.
As the prosecution case depended entirely upon E’s evidence, it is important that I scrutinise her evidence with great care.[5] In order to find the defendant guilty I must accept that E’s evidence satisfies the high standard of proof required in a criminal trial.
The alleged sexual acts comprising the unlawful sexual relationship
[5] Murray v R (2002) 211 CLR 193.
Background
At the time of giving evidence E was aged 21 years. The defendant was aged 82 years.
During the relevant period alleged in the charge E lived with her sister, J,[6] and their parents at their home in Nailsworth until the house was sold and the family moved into a rental property in Plympton on 12 March 2015.
[6] J was born on 4 June 1999.
E said that all of the sexual abuse she was subjected to occurred when her family was living at Nailsworth and specifically while she was attending primary school.
The defendant and his wife resided at Port Julia until they purchased and began living at an address in Broadview from 25 March 2011. The Nailsworth and Broadview properties were within a few streets of each other. E said she was often able to ‘scoot over’ to her grandparents’ home as they lived nearby.
E said that she believed the defendant began to sexually abuse her before her family went on a camping holiday to the Northern Territory, although she had no specific memory of what that sexual abuse entailed or for how long it was occurring before the camping holiday.
The evidence established that the family holiday to the Northern Territory occurred in July 2010. As such, E was at least nine years of age when she alleges the defendant began to sexually abuse her. Further, E’s evidence was that all of the sexual abuse occurred during the years she was attending primary school and the abuse had ended by the time she started high school in 2014. At that time E was 13 years of age. Accordingly, on E’s evidence she was being sexually abused by the defendant sometime between the period before July 2010 and the start of the school year in 2014.
In her evidence E estimated that the defendant had sexually abused her ‘somewhere around 20, closer to 20, maybe 30 times’.[7] However, it is an agreed fact that in May 2018 E told her present boyfriend, RA, that she had been sexually abused by the defendant over 200 times.
[7] T 62.
Evidence of the particularised sexual acts
Caravan at Nailsworth[8]
[8] T 17-19.
E said that her first memory of being sexually abused by the defendant occurred in her grandparents’ caravan, which at the time was parked in the backyard of her parents’ house at Nailsworth.
While the defendant and his wife resided at Port Julia, it was common for them to visit the Nailsworth address and stay in their caravan and on this occasion, E believed that they were staying for a few weeks.
E said that when her grandparents visited Nailsworth, most mornings she would go into their caravan to drink hot chocolate and play cards with the defendant. She said that her sister, J, did not go into the caravan often but ‘only sometimes’.[9]
[9] T 75.
E said that one morning, some time before lunch, she entered the caravan and found her grandparents were still in their double bed, so she climbed in between them in the middle of the bed. E said she had woken the defendant by entering the caravan. She said her grandmother was still asleep and lying on the left side of the bed with her back to her and the defendant.
E said the defendant grabbed her hand and moved it so that it was on top of his penis on the outside of his clothes and then used her hand to rub the outside of his clothing.
E was not asked whether she was on top of or underneath the bedding at the time this was happening.
During cross-examination, E accepted that in relation to this incident she told the police that the defendant started touching her on top of her clothes and that she also recalled him ‘pulling her legs apart from the knees’. E said that she may have ‘muddled other parts of her statement when [the defendant] had touched her vagina’[10] or that she was confusing what she had told the police with another occasion of sexual abuse.[11]
Boat Incident[12]
[10] T 77.
[11] T 78.
[12] T 22-27.
Another specific occasion of sexual abuse that E recalled was on a fishing boat moored next to a jetty at somewhere ‘like Port Jervis’. E said the family would often go on fishing or scuba diving trips in the Bight of South Australia.
E stated that her father owned boats and she was unsure whose boat she was on during this incident, saying ‘I don’t believe it was my father’s boat though’.[13]
[13] T 27.
On this occasion, E said the boat was moored next to a small private jetty. She described the boat as having a small archway entrance adjacent to the steering column, which lead into the cabin area, containing two bench-like cushioned seating areas lining the walls of the cabin and meeting at the bow. She said that she was able to stand up in the cabin at the time, but that an adult would have to duck their head and bend over when inside the cabin.
E said that her sister J, their father, and her father’s friend NP had jumped off the boat onto the jetty and walked up a hill to collect the scuba diving equipment from another place, while she and the defendant remained on the boat.
E said the defendant suggested that they should go into the cabin area to look out from the hatch. She said as the boat was small there was not much to see from the hatch, so they went back into the cabin area.
E said the defendant then pulled down her denim shorts and her underwear and ‘proceeded to use his tongue on [her] vagina’. She stated that she was lying on the seat when the defendant ‘fully pulled [her] pants down’.
She said the incident ended when her sister came down the hill, closely followed by NP and her father, all of whom were carrying tubs containing scuba diving equipment. E said the defendant quickly pulled her shorts up and pretended that they were playing hide and seek.
E did not say how from her position in the cabin she knew that the others were returning to the boat.
E said this incident made her feel very confused and ashamed, as well as being scared that someone saw what had happened.
E stated that the defendant would typically use phrases such as ‘do you like that’ or ‘this feels nice’,[14] although she did not specify any occasions when these phrases were specifically used by him.
‘Dolphin Incident’ at Nailsworth[15]
[14] T 26.
[15] T 30-33.
Another memory of sexual abuse E recalled was in her bedroom at the Nailsworth house one night after she went to bed. She said her parents and grandmother had come in to say goodnight one after the other, ‘around 30 seconds to one minute apart’, as was a common nightly routine.
E said the defendant was the last to tuck her into bed that night and when he came in, he put his penis into her mouth and ejaculated in her mouth.
E said she climbed out of bed and spat the ejaculate on the wooden floorboards next to the bed. She said the defendant then ran out of the room to retrieve a glass of water for her to drink and, when he came back, he also had some tissues to clean up the floor.
E stated that the defendant would often hold her head and force her head back and forth to enable her to perform oral sex on him, but she could not recall whether that had occurred on this occasion.
E said that this was the only occasion the defendant caused her to fellate him in her bedroom.
During cross-examination E agreed that in her police statement she stated, ‘I think he [the defendant] made me sucking [sic] his penis’,[16] when in evidence she was certain he did. E explained that when first speaking with the police about this incident she was unsure whether or not it happened, but that over time her memory was ‘coming back from pushing it down after so long’ as a result of certain triggers that would cause her to remember things or through speaking about the abuse with others, such as her mother or different psychologists.[17]
[16] T 100. Emphasis added.
[17] T 101-102.
E said that sometime later she noticed that there was what she thought was a semen stain on her toy dolphin that she slept with. She believed that it may have been deposited there on this occasion, as this was the only time when the defendant ejaculated in her bedroom.
E said that the dolphin was normally kept on her bed and that it was later moved into a cupboard when she no longer slept with it, although there was no evidence from E when this might have been. E also said that her mother would wash her toys because she suffered from a skin condition. However, there was no evidence from E’s mother about washing toys.
The dolphin was handed to the police for analysis after E’s father had a conversation with her in which he explained to E that the allegations would be difficult prove without some other evidence at which point E mentioned that she was confident there was semen on the dolphin as the defendant had been ‘silly with the dolphin’ and E went on to point out a stain on the side by the pectoral fin.
A forensic analysis conducted of the dolphin did not detect any semen on areas identified as staining.
‘69 Incident’ at Nailsworth[18]
[18] T 34-36.
On another occasion, which E thought had occurred around the middle of the day at the Nailsworth house, the defendant entered her bedroom and made her lie across the bed from side to side, rather than lengthways. She thought no one else was home at the time, or if they were present, which parts of the house they were in.
E described her position as her head hanging off the side of the bed with the top of her head facing the floor while the defendant was standing. She said he then pulled his penis out and put it in her mouth and then proceeded to pull her pants and underwear down to lick her vagina.
E said that it was ‘like the position commonly known as like 69’, which was a position she said the defendant wanted to try, although she could not remember what had made her think he wanted to try that position.
Minecraft Incident[19]
[19] T 36-38.
E said that she enjoyed playing computer games, particularly ‘Minecraft’, on a desktop computer which was in the study of the Nailsworth house.
E said on an occasion when she was playing Minecraft the defendant approached her from behind and pulled a chair over to sit behind her. She said he then withdrew his penis, which she believed to be erect, and tried to make her touch it but she resisted because she just wanted to play her game. She described the defendant trying to grab her hand and pull it to his penis to rub it up and down. She said he did this quite a few times. She added that he was repeatedly telling her to ‘look at it’. E said she would quickly glance at his penis and then return her attention to the computer. After this went on for a while, she said the defendant masturbated himself and ejaculated into his hand and then left the room to wash his hand and clean up.
E could not remember if it was the case on this occasion but said that the defendant would often grab her wrist tightly and forcibly pull it towards his penis.
Swimming Pool at Nailsworth[20]
[20] T 38-46.
E recalled a number of instances of sexual abuse while she and the defendant were in the swimming pool together at the Nailsworth house.
On one occasion, E said that she and the defendant were in the pool together when he forced her to suck his penis underwater. She could not say where anyone was at the time but that she and the defendant were the only ones in the pool on this occasion.
E said that the defendant was sitting on the pool steps at the shallow end and told her they were going to play a game to see how long she could hold her breath underwater.
E said the defendant then pulled his penis out of his pants and got her to go underwater. She said he held her underwater and held her head so that it was close to his penis so she would suck it. E did not want this to happen so she kept using her hands instead, but the defendant would bring her up to the surface and tell her off, telling her that she had to use her mouth to suck his penis. She said he would then push her back underwater so that she would continue. She said that when she was sucking the defendant’s penis underwater she was holding her breath. E said the defendant did not ejaculate on this occasion.
E stated that this type of sexual act in the swimming pool occurred on more than three occasions, but she could not specify how many times it occurred in total.[21] She recalled it occurring on different steps in the pool.
[21] T 38-43.
E also gave evidence of another occasion in the shallow end of the pool when the defendant was behind her and pulled her one-piece bathers to the side to expose her vagina and then pushed her towards the water jet so that the stream of water would be directed towards her vagina. E said the defendant said something along the lines of ‘does this feel nice’ or ‘it feels nice’.[22]
[22] T 43-44.
On another occasion, E said the defendant was holding her from behind in the middle of the pool where she could not touch the bottom. She said he pulled her bathers to the side again near her vagina, but she could not remember anything else happening.[23]
[23] T 44.
E also described another time when the defendant used pool toys to rub her vagina on the outside of her bathers. She said that she could not remember which toy he used but remembered that she had a blue torpedo pool toy.[24]
Kissing at Broadview[25]
[24] T 45.
[25] T 46-47.
E recalled an incident at her grandparents’ house at Broadview when she and the defendant were playing hide and seek. She said that she went to hide outside and when the defendant found her, he told her that he wanted to teach her how to ‘French kiss’. E said he then put his mouth to hers and started sucking her mouth and sticking his tongue inside her mouth. She said he held her head so that she could not move. When he stopped kissing her, he repeatedly told her that it was her turn to suck his mouth. E said when she refused, he became frustrated.
E recalled that if she did not comply with the defendant’s requests, he would typically say something like ‘don’t you love me anymore?’, although she could not remember whether he said that on this particular occasion.
E said that this was the only occasion the defendant had kissed her in this way.
Study at Broadview[26]
[26] T 47-49.
E gave evidence about another occasion at her grandparents’ Broadview house, when the defendant had been in the study and called her in as he wanted to show her something on the computer. She said he then showed her two pornographic films, one of which was a man and a woman on a couch having sex and the other was a famous singer, potentially a lookalike of Brittany Spears, inserting a glue stick into her vagina. E said she was either standing up next to the defendant or sitting on his knee when she was watching the movies.
Table at Broadview[27]
[27] T 50.
Another incident E described occurring at her grandparents’ Broadview house was an occasion when she was sitting at the wooden kitchen table with the defendant, when he told her that she needed to put her foot up next to his penis on the outside of his clothing. E said he then used his hand to move her foot around on his penis. She said he then did the same with his foot, moving it around on her vagina on the outside of her clothing.
Loungeroom at Broadview[28]
[28] T 51-55.
E also alleged that in the loungeroom of the Broadview house the defendant removed his penis from his pants and tried to force her head and move it so she would suck his penis. She was unsure whether he was sitting or standing. E said she believed that she was forced to place her mouth on the defendant’s penis, which was exposed out through the top of his pants. However, she said that she was very resistant on this occasion and eventually pulled away her head and hands and started heading towards the door. She said the defendant quickly jumped up and blocked her exit by standing in front of the door to the hallway. E said he used one of his typical phrases when she resisted, such as ‘don’t you love me anymore’ or ‘don’t tell anyone, you don’t want me to go to gaol’.
Caravan at Port Julia[29]
[29] T 55-58.
E gave evidence of an incident which had occurred when her family and her grandparents went to stay at her parents’ beach house at Port Julia. It is an agreed fact that E’s parents purchased her grandparents’ Port Julia property on 25 March 2011. Thereafter the property was extensively renovated, increasing the number of bedrooms from three to five.

E said that her grandparents would either stay in the house or in their caravan, which would be parked in the backyard when they holidayed at Port Julia.
On this occasion E said she went out to her grandparents’ caravan, as she often did, to play cards with the defendant. She said her grandmother was inside the house at the time and that the defendant was alone in the caravan. E said that she sat in the lounge/kitchen area of the caravan and the defendant sat down next to her on the same side of the table as her. She said that at some stage before, during or after they had played cards, the defendant undid her pants and noticed that she was growing pubic hair. E said he made a comment that she was turning into a woman.
E stated she was unsure when she began to grow pubic hair but remembered menstruating for the first time when she was in year 10 at high school.[30]
Nissan Patrol Incident[31]
[30] T 126.
[31] T 58.
E recalled another incident that occurred at the Nailsworth address. She was in the front passenger seat of the defendant’s gold Nissan Patrol. The evidence establishes that the defendant drove a silver Nissan Patrol, which was purchased by his son for use by his parents on 4 December 2009. Prior to that, the defendant owned a gold Nissan Patrol.
E said on this occasion she and the defendant were driving back from the local shopping centre. E said the defendant reached over and put his hand on her vagina on top of her clothes. She said he then undid her pants and put his hand underneath her underwear and began rubbing her vagina. She believed the incident ended when they pulled up to her grandparents’ house at Broadview.
In cross-examination E said she was unsure whether this incident occurred in the defendant’s gold or silver Nissan Patrol.[32] However, it is likely that this alleged incident occurred after 25 March 2011 as E recalled returning to the defendant’s Broadview home, meaning they were driving in the silver Nissan Patrol.
[32] T 135.
Timing of alleged sexual acts
E was unable to remember in which order the above sexual acts occurred, her age when they occurred, or what year level she was at school, other than the sexual acts all occurred while she was attending primary school. Further, E was unable to remember when the sexual abuse had come to an end other than to say it did not continue after she started high school.
The agreed facts reveal that E’s family remained living at their Nailsworth home until 12 March 2015, when the family moved into a rental property at Plympton after selling their Nailsworth home. The family had purchased a property at Glenelg North on 21 January 2015 and built a new home there while renting at Plympton. They moved into their newly built home at Glenelg North in mid-2016.
E commenced her high school education[33] at the start of 2014 at a different school to where she attended primary school.
[33] Year 8.
E was therefore still living at Nailsworth throughout 2014 and into the early part of 2015 before the family moved to Plympton. Throughout that time her grandparents were living at their Broadview home and the regular contact between E and her grandparents continued as before. After E’s family moved to Plympton she still saw her grandparents but not as frequently as before because of the distance between their respective homes and so rather that seeing them weekly, as was the case when she was living at Nailsworth, the contact was more likely every few weeks unless E and J were required to be babysat by their grandparents.
Complaint evidence
E said the first person she disclosed the sexual abuse to, was her high school boyfriend, MM, sometime during year 10 in 2016. E said she told MM that ‘something bad happened when [she] was younger’.[34] She could not remember whether she told him what the ‘bad thing’ was that happened to her.
[34] T 61.
E said that in November 2016 she disclosed to her mother that she had been sexually abused by the defendant.[35]
[35] This was not adduced as an elaboration of E’s initial complaint as it has not been used for that purpose. The only relevance of this evidence was to determine whether E first complained to MM or her mother.
MM gave evidence that E sent him a Snapchat telling him that ‘she had been sexually abused when she was younger by her grandfather and that when they were in the house together, she would hide because she would be sexually abused’.[36]
[36] T 167.
MM said that he and E broke up around June 2016 but remained friends. He believed the Snapchat in which E disclosed being sexually abused occurred ‘probably in September’.[37] In cross-examination, MM conceded the possibility the conversation occurred in late November or early December 2016[38] but added ‘I don’t think so’.[39]
[37] T 169.
[38] That is, after E had disclosed the abuse to her mother.
[39] T 170.
I am satisfied on the evidence that the first person to whom E disclosed the alleged sexual abuse by the defendant was MM and that the disclosure occurred when MM said it did in about September 2016.
E explained why she did not disclose the alleged sexual abuse at the time it was occurring or earlier than she ultimately did, saying that when the sexual abuse first started it was very confusing and she did not have the words to explain it to her parents.[40] E also said that she was afraid and did not know how people would respond. She thought maybe they would blame her. She said she did not want her parents to know because she was very ashamed and didn’t want anyone to know about the abuse because she was very embarrassed.[41] E also stated the defendant would always tell her that she ‘shouldn’t tell anyone’[42] and that she ‘wouldn’t want him to go to gaol’.[43]
[40] T 82.
[41] T 159.
[42] T 110.
[43] Ibid.
The evidence of complaint was admitted pursuant to s 34M(3) of the Evidence Act 1929 and I direct myself as to the permissible and impermissible use of this evidence in accordance with s 34M(4).
In addition, in determining the degree of any consistency of conduct which the evidence discloses, I note that the evidence of MM reveals that E told him she would hide from the defendant because she was being sexually abused. However, neither E nor any other witness gave evidence that she would avoid the defendant. Indeed, as discussed below E would seek out his company, which is inconsistent with what E is said to have told MM, and this is a matter to take into consideration when assessing E’s evidence as to her creditibilty.[44]
[44] See R v Weragoda [2021] SASCA 123.
Arrest of the defendant
It is an agreed fact that the defendant was arrested on 20 December 2017 and that during a recorded interview with the police he denied all allegations of inappropriate or sexual touching of E.
Defendant elects not to give or call evidence
The defendant elected not to give or call any evidence. No adverse inference can be draw against the defendant from this decision.
Assessment of the evidence
Absence of context surrounding the alleged sexual acts
While E appeared to be attempting to genuinely recall the details and events of the alleged abuse, a significant amount of the evidence of the surrounding circumstances was absent from her evidence or deficient. E appeared honest when she told the court that she did not know or could not remember those details, however, there are numerous examples throughout her evidence that demonstrate a lack of context for the alleged offending.[45]
[45] Caravan at Nailsworth Incident see T 17-20, 73-83; Boat Incident see T 22-27, 91-95; Dolphin Incident see T 30-33, 97-105, ’69’ Incident see T 35, 119; Minecraft Incident see T 37-38; Swimming Pool Incidents see T 39-46, 113-118; Kissing Incident see T 47; Pornography Incident see T 48-50, 120, Kitchen Table Incident; see T 50-51, 127-129; Loungeroom at Broadview Incident see T 52-55; Port Julia Caravan Incident see T 56-58, 123-125; Nissan Patrol Incident see T 59-60, 130-133.
This has made assessing E’s evidence a very difficult exercise.
E was unable to recall details such as how old she was at the time, who her friends or school teacher were, what year at school she was in, what was said between her and the defendant, what time of day it was, what year or time of year it was, how the incidents of abuse had been initiated and concluded, what she had been doing before and after the incident, whether family members were present, nearby or absent altogether, where she and the defendant were physically positioned and how they moved, what her and the defendant were wearing, what the defendant’s penis looked or felt like, how long the acts went on for, what her surroundings were, how certain incidents had made her feel and in what order the events had occurred or when they had occurred in comparison to each other.
The charge of Maintaining an Unlawful Sexual Relationship with a Child was legislated by Parliament to address the difficulty that victims experience in recalling details of sexual abuse with particularity after a significant passage of time or that occurred when they were a young child. As such, each alleged sexual act does not have to be proved beyond a reasonable doubt as if each stood alone as a substantive offence. Of course, E could not be expected to remember every detail of the alleged sexual acts, nor was she required to, in order for the prosecution to make out the charge.
Nevertheless, as already stated, the task of assessing E’s evidence of the unlawful sexual relationship was made very difficult by the lack of detail surrounding the commission of the alleged sexual acts.
Forensic disadvantage
Due to the uncertainty in E’s evidence as to when the various alleged sexual acts occurred, as discussed above, the defendant faced a significant forensic disadvantage in challenging or responding to E’s allegations.[46]
[46] Section 34CB of the Evidence Act 1929.
Those disadvantages are, first, in a general sense, the obvious and real difficulty in conducting a proper cross-examination of E in order to test the cogency of her evidence in the absence of E being able to provide details of the surrounding circumstance associated with the various acts of sexual abuse she has alleged.
Secondly, some witnesses were unable to recollect their movements or provide evidence that may have possibly assisted the defendant in contradicting whether he had the opportunities to abuse E as she alleged. Other potential witnesses were not called by the prosecution to give evidence, depriving the defendant of the ability to test E’s evidence about an incident. Examples include E’s sister, and specifically in relation to the boat incident, NP, and IP.[47]
[47] IP was said to be the owner of the private jetty or pontoon where the boat was possibly moored and who was building a property at the time at Cape Jaffa.
As already noted, there is an absence of any supporting evidence of the sexual acts, which has been exacerbated by the passage of time or is due to the police investigation. For example, the defendant’s computer was not seized by the police and analysed to determine if it contained any pornographic movies or whether pornography was ever accessed by him. There was no evidence from the defendant’s wife that he ever viewed or had an interest in pornography. These are some additional features of the forensic disadvantage now faced by the defendant in defending the case against him.
In every criminal trial, the trier of fact is required, by necessity of the serious nature of the proceedings, to scrutinise the evidence presented to it, and that is especially so when the entire Prosecution case depends upon the credibility and reliability of a single witness and where there is no independent evidence in support of the allegations.
Given the significant disadvantages the defendant now faces in defending himself against these serious allegations, it is important that I scrutinise E’s evidence with even greater care.[48]
[48] Section 34CB of the Evidence Act 1929.
Inconsistencies in the evidence
As detailed above, during E’s cross-examination, counsel elicited inconsistent statements made by E, principally in relation to the first incident of alleged abuse she had recalled occurring in her grandparents’ caravan while it was parked at Nailsworth. E had told the police that during this incident her grandfather had touched her on the vagina and pulled her legs apart from her knees, which were details that were not included in her evidence. E conceded that she may have ‘muddled’ this memory with another instance of abuse that she had not described in evidence. E was asked why she had not mentioned to police that her grandfather had touched her over her clothes during this incident. E again stated that there were multiple instances of abuse in the caravan and that she was perhaps confusing details of this incident with another. E’s evidence that she may have ‘muddled’ the incident with another has affected my assessment of her reliability in relation to this incident.
E was also uncertain as to how long her grandparents had stayed at the house in Nailsworth on this occasion and at what point her grandmother had woken up, although the limited weight of these particular inconsistencies makes them somewhat unimportant.
In relation to the toy dolphin incident in E’s bedroom in Nailsworth, counsel questioned E as to why in 2017 she had said in her statement ‘I think he made me sucking (sic) his penis’ and ‘I think he ejaculated’,[49] but now was certain that those events had occurred. E explained that events were now clearer and certain details had come back to her.
[49] T 100 Emphasis added.
There are additional inconsistencies between the accounts of the abuse that E had reported to others and E’s evidence in Court. It is an agreed fact that in May of 2018, E told her boyfriend, RA, that her grandfather had sexually abused her over 200 times. This evidence is inconsistent with E’s estimation that her grandfather had abused her between 20 to 30 times, far less than what she had reported to RA.
Further, MM, gave evidence of the initial complaint of the abuse E had disclosed to him. He said that E told him that she was sexually abused by her grandfather when she was younger and that ‘when they were in the house alone together, she would hide because she would be sexually abused’. This evidence is inconsistent with E’s evidence that she would often voluntarily spend time with the defendant, including ‘scooting over’ to her grandparents’ house after school or going into her grandparents’ caravan to play cards with him. This appears to be time spent with the defendant that was by E’s own choosing, as opposed to, for example, her parents instructing her to be around her grandfather.
E did not say at any point in her evidence that she would hide from the defendant when they were alone together because she was frightened of being sexually abused by him, as MM said he was told. Indeed, the opposite appears true, in that E regularly and voluntarily spent time with the defendant despite her allegations of being repeatedly abused by him.
An example is when E voluntarily entered her grandparents’ caravan at Port Julia. On this occasion, the defendant made a comment about the fact that she had pubic hair, which suggests that this incident was later in time compared to the other alleged acts and that the abuse had been ongoing beforehand. Despite this, E recounted that she chose to spend time alone in the caravan with the defendant, a location where on E’s evidence she had previously been sexually abused. This behaviour from E is clearly inconsistent with what MM said she disclosed to him about having to hide from the defendant to avoid being sexually abused by him.
Implausibility and opportunity
Also relevant in considering the evidence of the sexual acts alleged by E is the implausibility and lack of opportunity for the defendant to carry out the sexual abuse.
While it is improper to speculate about what E’s sister, J, might have said if called to give evidence, it was confirmed by multiple witnesses, including E’s father, mother and grandmother, that E was very close to her sister when she was younger and that they would often be together, importantly, including when they were being looked after by their grandparents.
E’s grandmother recalled that E and J would frequently come into the caravan together in the mornings, chattering, giggling and making noise, which would wake her up in the process. She stated that it was more often than not that E and J would come over to the Broadview house together, rather than on their own.
E’s father gave evidence that E and J would go to their grandparents’ house together most of the time, as ‘they did everything together’ and were very close. He said that he would ensure that E and J went to his parents Broadview home together and a close eye would be kept on them to ensure they arrived at their grandparents’ house safely. He said that he and his wife ‘would not be keen that they walk on their own’.
E’s mother confirmed that her daughters would be babysat at the Nailsworth or Broadview houses together rather than separately.
It is implicit in this evidence that much of the time E spent with her grandparents would involve her sister being present or at least nearby. This fact casts some doubt over whether the sexual acts occurred in the circumstances described and raises questions as to when the defendant would have had a viable opportunity to sexually abuse E without being detected doing so.
Some of the sexual acts, as they have been recalled by E, also appear to be implausibly brazen. There are various examples of the defendant committing acts of sexual abuse in circumstances where there is a significant risk that he may have been caught in the act. This is not to say that the sexual abuse of children cannot occur in brazen and risky circumstances, as it is the experience of the courts that it does. However, on the evidence, there was no escalation in behaviour that would instil this confidence in the defendant and the brazen nature of the acts alleged raise questions as to their plausibility.
For example, the first occasion of abuse that E recalls in the caravan at Nailsworth, the defendant put E’s hand on his penis while his wife lay next to them on their double bed. The defendant’s wife could have woken at any moment to discover what was occurring. Compounding this risk, E’s grandmother gave evidence that when E or her sister entered the caravan, she would frequently wake up due to the noise they made.
Another example of questionable plausibility is the occasion in which E’s family came into her bedroom at Nailsworth, one after the other, to say goodnight. It was E’s evidence that 30 seconds to one minute after the last family member left the bedroom, the defendant entered her bedroom. He then put his penis in her mouth while the bedroom door was open and the light from the family room was shining into the bedroom throughout the entirety of the incident. After the defendant ejaculated, E said that he ran out of the bedroom to get a glass of water from the kitchen and some tissues. Given that any member of the family who were all likely to be in the family room, could have walked past or back into E’s bedroom to discover what was happening, the act seems implausibly brazen.
Similarly, E’s evidence was that the door remained open throughout the incident where the defendant showed her pornographic movies in the study of the Broadview house, as well as the incident where the defendant tried to make E masturbate his penis while she played Minecraft in the computer room of the Nailsworth house.
Another example is the incident in the pool at Nailsworth, where the defendant allegedly forced E to perform fellatio on him underwater while he sat on the steps at the shallow end of the pool. If someone were to be in the family area of the home, they would be able to see through the large glass windows into the pool. The evidence also raises the question of how E was able to breathe underwater while performing this act.

It is of course possible that these acts could have occurred if the defendant was at home alone with E. However, in the absence of evidence contextualising the allegations, such as who was home at the time, it is difficult to assess the plausibility of an act occurring or whether the defendant had sufficient opportunity to commit such an act.
As such, the evidence leans itself to a conclusion that many of the sexual acts occurred in circumstances which are implausibly brazen, improbable, or too ambiguous to determine with any certainty.
Absence of semen on toy dolphin
The toy dolphin, which E was confident contained a semen stain left there from the incident she described in her bedroom, was forensically analysed and no semen was detected on it.
E gave evidence that her mother had washed her toys when she was younger to assist with a skin condition E suffered from. However, E’s mother was never asked about the washing of toys.
In circumstances where scientific validation of the presence of semen could be expected if E was correct and in the absence of any clear evidence that the toy dolphin had in fact been washed by E’s mother, the failure to detect semen impacts upon the reliability of E’s account about this incident having occurred as she described.
Consideration
There has been no suggestion that E has necessarily lied to the Court about what she believes has happened at the hands of her grandfather. As much was acknowledged in defence counsel’s closing address.
It can be said that although E struggled to remember, or became confused about, significant contextual details, what she could tell the Court was presented in an apparently genuine and honest manner. However, the gravamen of the defence’s submissions, which I ultimately accept and agree with, is that the high threshold of proof beyond a reasonable doubt has simply not been reached in this case.
The prosecution’s failure in discharging its burden of proof is multifactorial.
First, the evidence of E was detrimentally vague in contextual details surrounding the unlawful sexual acts. Her evidence contained numerous answers such as ‘I don’t know’, ‘I’m not sure’, ‘I don’t remember’ or ‘I can’t remember’, in response to a wide variety of questions as to when, and in some instances, how the abuse occurred as detailed earlier.[50]
[50] Caravan at Nailsworth: E could not answer how old she was at the time; whether she or the defendant said anything to each other; how she was lying on the bed; what the defendant’s penis felt like; whether anything else happened in the caravan on this occasion; what time of day it occurred, other than to say it was some time before lunch; how the incident ended; whether her grandmother woke up; what time of year it was; what year at school she was in; who her teacher was or her friends were at the time or how long the defendant and her grandmother had stayed for at her parents’ house.
Boat Incident: E could not answer where her family had gone on a boating trip on this occasion or where they went generally on boating trips, other than suggesting it may have been ‘Port Jervis’; where those who had left the boat had gone, other than that they went ‘up a hill’; where the boxes that were to be retrieved were located; how long it took to retrieve the boxes; whether those who went to retrieve the boxes did more than one trip back and forth to the boat; where she had been staying beforehand; where her mother and grandmother were; how the boat arrived at the jetty; what the ‘hill’ looked like; what the buildings nearby looked like; how she had come to be in a lying position; how long the defendant had performed cunnilingus on her for; whether the defendant did anything else inappropriate on this occasion; what the defendant had said on this particular occasion, other than the general phrases he would use; how old she was at the time; what year she was in at school; who her teacher was; who her friends were; when the incident had occurred in relation to the trip to Kakadu; whose boat she was on at the time; how she came to be on the boat or what time of day it was.
‘Dolphin Incident’ at Nailsworth: E did not remember how the incident started; what she had been doing before the incident; whether the defendant was sitting or standing and where he was positioned in the room; how old she was at the time; what was her normal bedtime at the time; how the defendant placed his penis inside her mouth; what the defendant's penis felt like; whether she or the defendant said anything; how the semen ended up on her toy dolphin; whether she drank the water the defendant had retrieved; how long the defendant had stayed in her bedroom; how old she was; when the incident happened as compared to the camping or boating trips; where her grandparents had been sleeping or whether she was in primary school.
’69 Incident’ at Nailsworth: E could not answer how she came to be in the position of lying across the bed; what the defendant had said to indicate that he wanted to try the ’69 position’; how long the incident went on for; how the incident ended; what the defendant's penis felt or looked like; when the incident occurred or who was home at the time.
Minecraft Incident: E could not answer questions about what the defendant was wearing; what the defendant's penis looked like; how she knew that he had ejaculated, other than to say she thought that she may have looked back, but even then, she was not sure; when the incident had occurred in relation to the bedroom incident or the boating or camping trips; how old she was at the time or what time of day it was.
Swimming Pool at Nailsworth: Regarding the alleged fellatio in the pool at the Nailsworth house, E could not recall who was at the house at the time; what the defendant’s penis looked like; how many times this act had occurred in the pool, other than to say more than three times; whether she had said anything to the defendant; how the incident made her feel; when the incident had occurred in relation to the incidents in the bedroom or the camping or boating trips; how the incident ended; whether the defendant’s bathers were pulled down or if his penis was just pulled out of them or whether the sliding doors to the pool were open or closed. Regarding the allegation that the defendant had held E so that her vagina was against the pool jets, the complainant could not remember whether there was anyone in the house at the time or how the defendant was holding her. Regarding the allegation that the defendant held E from behind in the middle of the pool and exposed her vagina, she could not answer where the defendant’s arms were or what else happened beyond the defendant exposing her vagina. Regarding the allegation that the defendant had used a pool toy on her vagina, E could not answer where the incident had occurred in the pool; whether it was at the end or the middle or which pool toy the defendant had used. Regarding the incidents in the pool generally, E could not recall the order in which the events had occurred; the age she was at the time of each event or the period of time between each of the three events occurring.
Kissing at Broadview: E could not answer where her grandmother had been at the time or how the incident came to an end.
Study at Broadview: E did not know if anyone else was home at the time; whether she stayed to watch both films; whether she was standing next to him or sitting on his knee; how the incident ended; how long the movies went for; how old she was at the time or when the incident occurred compared to the other incidents.
Table at Broadview: E did not know how old she was; what time of day it was when the incident occurred; what she had been doing before the incident; when the incident was compared to the above incident; if she was wearing shoes or not; what she was wearing; if the defendant was sitting diagonally or directly across from her; how the incident came to an end; what the defendant’s penis felt like; whether the alleged incidents at Broadview had occurred on a weekend, after school or on holidays; where J was; where her parents were or the reason for being at her grandparents’ house.
Loungeroom at Broadview: E could not answer whether the defendant was sitting or standing; where the defendant was in relation to the furniture; how old she was at the time; what the defendant’s penis looked like; whether it happened once or more than once or whether anyone was home at the time.
Caravan at Port Julia: E did not know what happened after he undid her pants; whether he did anything with his clothes; what she was wearing; what age she had begun going through puberty; what time of year it was; whether or not he made comments about her pubic hair in the context of seeing her pubic hair; at what stage she played cards with the defendant; whether she left the caravan together with or separately to the defendant; how the incident concluded; whether the incident occurred before or after the renovations to the house at Port Julia.
Nissan Patrol Incident: E did not know whose house she had been at before the incident; the route which they took; what she was wearing; how old she was; what time it was or how long the incident went for.
Secondly, the vague nature of the evidence has a flow-on effect on the way in which it can be assessed. The defendant is at a serious forensic disadvantage, due to the difficulty or impossibility of testing E’s account in the abstract without any detail to make reference to. The court’s assessment and analysis of E’s evidence is also substantially hindered by this lack of contextual detail, as has been discussed above.
Thirdly, further doubt is cast over E’s evidence through the inconsistencies, particularly in relation to the first incident she recalled, being the act in the caravan at Nailsworth, as well as inconsistencies in the accounts of abuse communicated to her boyfriends, RA and MM. In particular, E’s statement to MM that she had to hide from her grandfather to avoid being sexually abused by him is contradicted by her own evidence that she would seek him out and the evidence of her parents and grandmother, none of whom suggested E was ever avoiding her grandfather.
Fourthly, the absence of any supporting evidence for E’s allegations.
Finally, some of the allegations are said to have occurred in implausibly brazen circumstances. These brazen acts are difficult to accept without sufficient evidence of contextual circumstances explaining how the behaviour could have been possible, such as whether family members were present at the time the abuse occurred.
Standing alone, these deficiencies in the prosecution case may not have been fatal to proving the charge. However, considering these factors in concert and the evidence as a whole, including that the defendant denied the allegations when interviewed by the police, I find myself in a position where I am not satisfied beyond a reasonable doubt that the charge has been proven.
Verdict
I find the defendant not guilty.