R v C No. DCCRM-03-379

R v C
[2004] SADC 26
Judge Anderson
Criminal

The Accused is charged on Information with eleven offences. The identity of all concerned persons has been masked in these Reasons for Verdicts. The Information reads:
“First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Section 49(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
C between the 12^th day of September 1992 and the 29^th day of September 1994 at Peterborough, had sexual intercourse with M, a person under the age of 12 years, by inserting his finger into her vagina.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Ibid).
Particulars of Offence
C between the 12^th day of September 1992 and the 29^th day of September 1994 at Peterborough, had vaginal sexual intercourse with M, a person under the age of 12 years.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Ibid).
Particulars of Offence
C between the 12^th day of September 1992 and the 29^th day of September 1994 at Peterborough, had anal sexual intercourse with M, a person under the age of 12 years.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Ibid).
Particulars of Offence
C between the 12^th day of September 1992 and the 29^th day of September 1994 at Peterborough, had vaginal sexual intercourse with M, a person under the age of 12 years.
Fifth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 12. (Ibid).
Particulars of Offence
C between the 1^st day of January 1995 and the 10^th day of September 1996 at Elizabeth South, had vaginal sexual intercourse with M, a person under the age of 12 years.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
C between the 12^th day of September 1996 and the 12^th day of September 1998 at Athelstone, had sexual intercourse with M, a person under the age of 17 years, by inserting a bottle into her vagina.
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
C between the 12^th day of September 1996 and the 12^th day of September 1998 at Athelstone, had sexual intercourse with M, a person under the age of 17 years, by causing her to perform an act of fellatio upon him.
Eighth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
C between the 12^th day of September 1996 and the 12^th day of September 1998 at Athelstone, had vaginal sexual intercourse with M, a person under the age of 17 years.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid).
Particulars of Offence
C on or about the 22^nd day of August 1999 at Newton or another place, had vaginal sexual intercourse with M, a person under the age of 17 years.
Tenth Count
Statement of Offence
Attempting to Procure an Abortion. (Section 81(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C between the 11^th day of September 1999 and the 1^st day of December 1999 at Newton, unlawfully used an instrument on M with the intent to procure her miscarriage.
Eleventh Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
C between the 22^nd day of May 2000 and the 22^nd day of July 2000 at Kent Town, had vaginal sexual intercourse with M, a person under the age of 17 years.
The Accused entered pleas of not guilty to all counts except for Counts 7, 9 and 11. In relation to Counts 7 and 9, he entered pleas of guilty. For Count 11, he entered a plea of guilty upon the basis that the offence occurred between July 2000 and September 2000 and not between 22 May 2000 and 22 July 2000 as set out in the particulars of the offence in the Information. I shall determine this as a dispute of fact within the plea of guilty. I shall mention the plea relating to Count 7 subsequently.
The matter proceeded as trial by judge alone after an oral application to bring such an application out of time was made by Mr Vadasz of counsel for the Accused and granted. Thereafter, the application made pursuant to s7(1)(a) of the Juries Act 1927 was granted. Ms Boord appeared for the Director of Public Prosecutions.
It is for the Crown to prove each element of each offence to which a plea of not guilty has been entered beyond reasonable doubt. There is no onus at all upon the Accused. This is essentially a conflict on the evidence between M and the Accused. I remind myself that it is not a matter of whom is to be preferred as between them, but rather that the onus is always upon the Crown to prove each offence beyond reasonable doubt: R v Calides (1983) 34 SASR 355. The dates in relation to Count 11 are to be proved beyond reasonable doubt.
Soon after his arrest on 13 November 2000 in relation to this matter, the Accused was cautioned and given his rights. Two conversations between he and the arresting officer were recorded on that day. In each of those conversations the Accused made it plain that he was exercising his right to refrain from answering questions as was his right. No inference adverse to him is to be drawn because he did so.
At trial the Accused gave evidence on oath. That evidence is to be assessed in the same way as the evidence of all other witnesses who gave evidence.
As it is obvious from the evidence that there was no timely complaint made in relation to any count on the Information, I warn and inform myself in accordance with s34I(6a)(a) and (b) of the Evidence Act 1929.
Where I say that I am “satisfied” or that any matter is “proved” or where I use any like word or expression then, unless I say to the contrary, I mean so beyond reasonable doubt.
The matters set out in the Information extend over a period of nearly eight years. M was born on 21 September 1984. When born she had an elder brother, MC, who was about two years older. Subsequently, two further children, RC and JC, were born to the Accused and his defacto wife in 1987 and 1990 respectively. MC died in a traffic accident on 29 September 1993, 4 days before his 11^th birthday.
JR, the mother of these children, was born on 7 November 1963. She met the Accused and commenced a relationship with him as his common law wife when she was 17. She adopted the Accused’s surname. At the time she commenced her relationship with the Accused, he had children from an earlier marriage. Those children have no part in the events which comprise these proceedings.
JR described her relationship with the Accused as characterised by violent behaviour towards her and the three older children from soon after its commencement. It seems that JC, who at trial was 13 years of age, largely escaped the physical abuse that others described in graphic detail. In evidence she acknowledged witnessing such violence directed by the Accused to MC, M and RC.
The Accused’s background, as given in evidence, is that he was born in New Zealand on 24 June 1955. He came to Australia with his family when he was aged two. As his father did unskilled seasonal type work he lived in many places in all States, except Western Australia.
From his evidence the Accused completed primary school and then did about three years of a technical secondary type schooling. When he left school he could not read or write. Thereafter, he developed these skills to some limited degree and has, since his time on remand in these matters, further improved them as a result of attending education classes in the Adelaide Remand Centre. He wrote several letters from custody to his family and some are in evidence.
The Accused said he left home when he was 16 and met JR when he was 26. They lived in many places, as he was also unskilled and took work where it was offered, principally in country areas. From the evidence it seems that when he lived in the city he was mostly unemployed. He gave his occupation to the arresting officer as pensioner. No evidence was given to enlarge upon that. From soon after M’s birth until the Accused’s arrest the family lived in no less than 13 different addresses in both country South Australia and suburban Adelaide. They had also lived in Queensland.
It is the Crown case that the behaviour referred to in the Information is representative of a course of conduct of sexually orientated behaviour and assault which commenced when the Complainant was about three and concluded after the incident referred to in Count 11.
It is alleged that this behaviour occurred in a family beset by physical violence and fear flowing from the Accused’s behaviour, particularly when affected by liquor, which, upon the evidence, was a frequent occurrence, and particularly so after MC died in September 1993. For his part, the Accused, in his evidence, sought to play down these alleged incidents of violence whilst conceding that some occurred, but not to the extent or as serious as alleged by JR and their children.
Before turning to the evidence of the alleged sexual grooming and consequent assaults, it is necessary to describe the family atmosphere. The starting point is the evidence of JR.
Her evidence generally is to be treated carefully because, when giving evidence, she was clearly antagonistic towards the Accused. Thus, whilst her evidence is important for this purpose, it is necessary to seek support for it. That support is to be found in the evidence of her children and the Accused.
JR gave evidence of the use of violence by the Accused from quite early in their relationship.
On one such occasion, at Gawler, she said that the Accused punched and kicked her when he disapproved of her manners in relation to drinking milk from a carton. The Accused admitted such an incident, but sought to downplay its violent nature acknowledging only that he had slapped her. In his evidence he was generally loathe to admit to other than slapping.
JR told of being kicked and hit in the eye by keys thrown at her by the Accused during an argument in Queensland such that her skin was broken. The Accused agreed that this incident occurred as a consequence of JR nagging him. He denied kicking her, but admitted the injury to her eye.
In addition, he agreed that he hit his son, MC, with the cord of an electric jug when he was about two. As a consequence of this incident, JR said she left the Accused and took MC and M into a refuge.
After a separation of about three months, JR and the children were persuaded by the Accused to return. Soon after they did so she recounted the occurrence of an incident where the Accused struck at her with a machete and severed the top of her head. The Accused refused to allow medical attention and stopped the bleeding by filling the wound with pepper. The Accused agreed that such an incident occurred, but in a scenario where he said JR was at fault.
JR described the Accused’s violence towards her and the children when he had been drinking as “absolutely terrifying” (T164). M and RC agreed that this was so.
M said in evidence that by the time the family lived at Kitschke’s Farm near Jamestown, which was where she commenced her schooling, she was used to seeing her mother, elder brother and herself “bashed up” (T42). This, she said, involved punching, backhanding, kicking and being thrown around. By this time M said she was fearful of her father and did not know what to do.
It is against this background of violence begetting fear of the Accused that the sexual activity between the Accused and M is alleged to have commenced.
The Crown case is that as early as when she was three, M was asked by her father to take her clothes off and walk in the house and lie next to him in his bed naked when JR and the other children were out of the house. M said she recalled this beginning when she was about three and the family lived in Balaclava. M said that it was at a time when JR had taken MC to commence school and that she had a good memory of the occasion.
She said this activity continued at Kitschke’s Farm. In addition, she said that she was asked to make the Accused coffee whilst naked at this house. M said this activity occurred a couple of times per month. This is consistent with the evidence of JR who said she was away from this house infrequently because of the age of her children and the distance from the town. Thus, the opportunity for the Accused and M to be there alone was limited.
M said that she did not report this behaviour to her mother because she was too scared to tell. She said that the Accused had said should she tell he would kill her and then himself. M said because of his unpredictability she feared for her whole family. Of course, on the Crown case, M was well aware of the Accused’s propensity to deal violently with his family.
In evidence the Accused denied any such behaviour. He said that at Jamestown, in particular, he was scarcely home because of his work commitments and drove the family at a time when JR did not have a driving licence.
There is evidence from JR and M of a violent incident at Kitschke’s Farm where it is said that the Accused bashed M in the face, such that she was unable to open her mouth to eat and was required to remain in bed for some time, thus missing school. This assault arose from M accepting a ride in the vehicle of another from the school bus stop to the farmhouse in defiance of the Accused’s instructions not to travel in the vehicles of others. JR gave evidence supporting the severe nature of this assault upon M, who was then about 6, and that no medical assistance was permitted by the Accused and that she was required to stay home from school for a period because of the nature of her injury.
The Accused admitted that he had done no more than slap M. He said he did so three times. He denied punching her in the face. He agreed she stayed home from school for a time.
The family then moved to Brown Street, Peterborough. It is here, on the Crown case, that the Accused first sexually touched M. In examination-in-chief M said that this first occurred on an occasion when she had become naked at the Accused’s request and was lying on his bed with him. She said the Accused put his hands near to, and then put his fingers into, her vagina. This is Count 1 on the Information.
M said she cried and was told to “shut up” and, as she was “really scared” (T44) she was just quiet. She said that then she saw blood on the Accused’s fingers and then he put his penis into her vagina and held his hands near her head. Again, M said she was too scared to call out and “knew that [she] couldn’t stop it” (T44). This is Count 2 on the Information.
M said that she thought this incident occurred at Peterborough before the death of her brother MC on 29^th September 1993. In cross-examination she was less sure. In any event, at the time of his death she had just turned 9.
The Accused denied any such sexual activity at all. In particular he denied in evidence and in letters to JR written whilst he was in custody on remand, and which are in evidence, that he in any way sexually interfered with M prior to an incident at Pellew Street, Parafield Gardens when she was nearly 12 years of age. He denied that any such activity occurred before MC’s death in Peterborough, which was more than one year before the family lived at Pellew Street.
Whilst in examination-in-chief M described the first touching of her sexually as I have related, in cross-examination she told of an earlier event where she was required to fellate the Accused whilst he performed cunnulingus on her. She said this occurred at Kitschke’s Farm where the Accused would have her remove her clothes, make him coffee and lie on his bed. She said she was 6 years of age and had started school when this occurred.
This was the first occasion upon which M had related this event. It is not mentioned in her statements nor are there any proofing notes which refer to it. M agreed it was not in her statement of September 2002, but said she thought she had told both the interviewing police officer and the Crown Prosecutor about it. I am in no doubt that that had not occurred.
Thus, there exists a significant inconsistency in her evidence which inconsistency is to be used only in an assessment of her credit as a witness. I shall have regard to this inconsistency in such assessment.
M said that at about the time of the first sexual assault at Peterborough the Accused would make her go to a shed in the yard of that house and watch pornographic videos. She said he told her to watch them whilst they were playing and also that he sometimes masturbated.
The Accused denied this behaviour and suggested, perhaps faintly by the time he came to give evidence, that there was no video at that house. Both M and JR were definite that there was and JR described how she had bought it, inter alia, at Port Pirie with the proceeds of a personal injury claim. I am satisfied that there was a video in this house at Peterborough.
M said that whilst at Peterborough the Accused also put his penis in her mouth. In addition, she recalls at this time, when she was aged 8 or 9, an occasion when the Accused took her from her bed to the dining room whilst the family slept. She said she was crying and the Accused suggested he put his penis in her bottom as it would not hurt as much. M said she was too scared to say anything lest the Accused “bash” (T47) her and just nodded. She was required to position herself on her hands and knees and the Accused put his penis in her anus. This is Count 3 on the Information. M said it really hurt and she started screaming and the Accused held her neck so that her face was pushed into the carpet. He also told her to shut up. Again M said she was too scared to tell her mother because of the Accused’s threats to kill her (M) and himself if she did so.
Count 4 is alleged to have occurred in a car pit in a shed at the Peterborough house. It is not in issue that there was a car pit on that property and that the Accused frequently worked on cars. It seems he did this at almost every location at which the family lived. M said that the Accused called her into the car pit when he was working there. In it she saw a bean bag. The Accused required her to undress and get on the bean bag on her hands and knees and he then put his penis into her vagina. M said the act ended when a former workmate of the Accused’s arrived to speak to him. The Accused left the pit and went to the house.
The Accused denied any such event, although he agreed that there was a pit and that on one occasion when he was in it working on a motor vehicle, he was visited by a man with whom he had worked at the Peterborough meatworks. The Accused said that when he went to speak to this man he asked M, who was in the yard, to hold a tail shaft in position. He denied any sexual activity with M, but his evidence accepts that M was present in the vicinity on this occasion.
On 21 September 1994, M had her 10^th birthday. The 29 September 1994 was the anniversary of MC’s death. The Accused lost his left eye as a consequence of an altercation at a hotel in Peterborough on that day. He was admitted to the Royal Adelaide Hospital. JR was concerned for the family’s safety because of the suggested circumstances of this event and within a day or so had moved herself and the children to stay with friends, Tammy and Chris, at their house in Parafield Gardens.
The evidence from M, JR and Tammy established that when they first arrived all slept in the house. When the Accused was released from hospital he said that he went to Peterborough to bring back a bus which was put into the yard at Parafield Gardens and in which he and JR then slept. M said that when the bus was in place the Accused continued to have sexual intercourse with her on the bed in the bus at least once per week.
Until this move to Parafield Gardens there had been steadily increasing sexual demands upon M, as she described in evidence. Those demands were, on her evidence, to increase in the future. Up until this time it is alleged that there was a course of sexual conduct, including both charged and uncharged acts which commenced with being naked and progressed to sexual acts as I have described.

It is the evidence of both JR and M that at this time in 1994 M received favoured treatment at the expense of her siblings from the Accused. M told of him giving her $20 on occasions and of taking her to events unbeknown to her brother and sister, and of the Accused defending her if she was criticised by her mother. JR agreed that such preferential treatment occurred. Tammy affirmed in evidence her observations of such treatment when the family was with her.
There is evidence from Tammy of the Accused’s continued violence towards JR and the children, after he was released from hospital and before the family left Parafield Gardens for Paralowie. From her observations at this time she described JR as “petrified” of the Accused (T227). She described having seen the Accused kick, punch, slap and verbally abuse JR, especially when inebriated. In addition, she told of herself being slapped by the Accused at this time. She also described violence towards the children who, from her observations, were frightened in the presence of their father.
To the suggestions, put in cross-examination, that there was no “extreme violence” (T224) in these incidents between the Accused and JR, Tammy described one occasion where JR’s eye was “busted open” and the Accused sewed it up in her kitchen at Parafield Gardens whilst JR sat whimpering. Again, there was not medical intervention.
The Crown relies upon this evidence to show the ongoing atmosphere of violence which surrounded the Accused and his relations within the family to put into context and explain the fear which M continued to feel and why she was unable to speak to her mother about the Accused’s ongoing abuse of her. This fear is said to support the confidence the Accused felt about his ongoing relationship with M and his confidence that she would not tell JR of what continued to occur between them.
The family then moved to Miranda Street, Paralowie where M said there continued to be sexual intercourse between her father and herself. In addition, she said he continued his violence. She recounted the Accused bashing her mother such that she ran away in the rain. JR spoke of such an event. M said that when this occurred the Accused fed the children and put them to bed. He then attempted to have sexual intercourse with M on his bed, but she said she was upset and resisted by holding herself stiff and so the Accused threw her to the end of the bed and kicked her in the stomach.
In this house M said sexual intercourse occurred in her parents’ room and in the lounge room where she was made to bend over the couch when JR was out with the younger children. M alleged that the Accused often made her say “fuck me daddy, fuck me harder” and that she said it because she was too scared of him to not do so. M said these words seemed to excite the Accused.
M said that Count 5 occurred at the home of the Accused’s friend E in Elizabeth on an occasion when she had accompanied her father to E’s house to baby sit whilst his wife was in hospital having just giving birth. The Accused and E drank together. There is no doubt on the evidence that M went with her father for this purpose. However, there is conflict with M’s evidence that, when she and her father went to sleep on mattresses in the lounge, he came to her bed and sexual intercourse occurred. The Accused agreed that he and M slept in E’s lounge at this time, but said it was head to toe on one mattress and that there was no sexual activity.
It is the Crown case that this event occurred immediately before M’s twelfth birthday which was on 21 September 1996. M was uncertain about her age when this act occurred both in examination-in-chief and more so in cross-examination. I am unable to be satisfied as to precisely when this event occurred, if it did. I shall return to that question subsequently.
The family then moved to a house on Lower Athelstone Road. At this house M said that she had discharge from her vagina and stinging when she urinated. She said that she told her father and that he told her not to tell her mother. Because of their sexual activity, which M thought may be a cause, she said she was frightened to tell her mother. M said that when she told her father he diagnosed thrush. M alleges that the Accused made her lie on a towel in the bathroom and that he inserted a clear wine type bottle filled with hot salt water into her vagina and shook it up and down. In doing so M said that she was hurt in her vagina by the movement of the bottle and by the temperature of the water. She said she was 12 or 13 when this occurred. This is Count 6 on the Information.
The Accused admitted to such an incident except that he said the warm salt water was contained in a carafe and was poured onto M’s vagina and there was no penetration.
The Accused has pleaded guilty to Count 7 on the Information. This count alleges the causing of an act of fellatio upon him by M when she was 12 or 13 years of age. This occurred in the toilet at their house in Lymn Avenue, Athelstone, which was the second residence the family lived in in Athelstone.
M described being in the toilet when the Accused entered. He then put his penis in her mouth and moved it in and out until he ejaculated. She said she then dry retched and the Accused became angry and then left the toilet laughing at her. M said she was scared when the Accused became angry and felt “quite really gross” (T57) when he laughed at her. In cross-examination she said that her best recollection was that this incident occurred in the daytime when the family was home.
In examination-in-chief the Accused admitted this act of fellatio including ejaculating into M’s mouth and laughing as he left the toilet. He explained this whole event as being a mistake because he thought it was his wife in the toilet and he knew she did not enjoy fellatio. He said it occurred at a time when there was no globe in the toilet. He was wearing dark sunglasses to protect his remaining eye and as a consequence, “couldn’t see bugger all” (T254). The Accused said he realised that it was M who was involved when, immediately upon leaving the toilet, he went outside and saw JR hanging washing on the clothesline.
In cross-examination the Accused said this incident occurred at night and JR was hanging out washing with the benefit of a light on at the back of the house. He said he went into the toilet which was small and prepared to urinate without noticing or feeling that someone was already there except for a feeling of warmth. He agreed that there was dry retching but denied any crying.
When asked of his reaction when he realised that the person involved was M he said he was shocked and ashamed and ran back into the house and punched M in the face. He was quick to say that whilst he agreed he punched her here and slapped her on the face three times at Kitschke’s Farm some years earlier over the car ride incident, he had never “bashed” her. The Accused said he punched M because it was her fault that this incident occurred.
Although the Accused entered a plea of guilty to this count, it is apparent from his evidence that he has described what occurred as being a consequence of a mistake of fact by him. That mistake is as to the identity of the person who took his penis into her mouth in the toilet. Of course, were it his wife, as he said in evidence he assumed it to be, no offence would have been committed. Consequently, I propose to deal with this count as though a plea of not guilty was entered, upon the basis I have described.
M said that the Accused continued to have sexual intercourse with her at this house in Athelstone. She said it had occurred in her bed. She said, and her sister JC agreed in her evidence, that they slept in bunk beds in this house. Both said that M slept on the bottom and JC on the top. In evidence, the Accused said there were not bunk beds in this house and denied such activity. I accept that there were bunk beds as M and JC have described. M said that the Accused would come into her bed and sexual intercourse would occur whilst JC remained asleep.
In addition, M said sexual intercourse occurred regularly in the hallway and also in the lounge. By this time she said its frequency had increased to not less than three times per week.
Also at this house the incident reflected in Count 8 on the Information is alleged to have occurred when M said that the Accused had sexual intercourse with her on a motorbike which was kept, for a least part of the time, in a shed at that property. M said that such an incident was repeated in the next house at Farmer Street, Newton. The Accused denied any event involving the motorcycle with M, but admitted to having had sexual intercourse with JR on the motorbike.
M said in examination-in-chief, that she did not ask the Accused to stop because she “was too scared to voice what I really wanted to say because I didn’t want him to hurt me ..... I use to tell him that I just wanted him to love me as his daughter ..... I just wanted him to be my dad” (T59).
The family moved to Farmer Street, Newton after Lymn Avenue. There, before M’s fifteenth birthday, the Accused admitted to two further acts of sexual intercourse with her. The first of these is not charged. As a consequence of the second it is his evidence that she became pregnant. Consequently, he entered a plea of guilty to Count 9. He admits to being the father of M’s daughter, JM, who was born on 22 May 2000. M’s evidence is that the Accused continued to have regular sexual intercourse with her at this time. The agreed DNA evidence supports the Accused’s admission of the fatherhood of JM in a significant way.
M suspected her pregnancy when she missed her period in the days before her fifteenth birthday. M was upset by the missing of her period and said that the Accused enquired of her as to why she was upset and that she then told him. The Accused agreed that this had occurred. M said that at this time she had not had sexual intercourse with any other person other than her father. She said that the Accused only occasionally wore a condom.
M said that when she told the Accused of her missed period, he yelled at her and commenced to beat her. She said he hit her on the shoulder with a drill he was carrying, such that its plastic cover shattered. She fell to the ground and then he kicked her in the stomach. M said that subsequently the Accused told her he did this in the hope of getting rid of the baby.
The incident with the drill was admitted by the Accused, who explained that he gave her a “tap” on the shoulder with it and previously broken plastic fell off. He said he did this while she was pregnant, but at a time when M and JR were fighting. He also admitted that at this time he punched JR on the nose because she had fought with M. At this time, JR was unaware of M’s pregnancy. RC gave evidence about the drill incident. He said he heard M screaming in her bedroom when the Accused was in there and heard a “big bang” (T143) and, when he went in, there were pieces of shattered plastic on the floor.
M said that when her pregnancy was confirmed the Accused became distressed that the baby would not be normal and he wanted to get rid of it. She described how he made her wear tight belts, take regular doses of at least five aspirin tablets several times each day, punched her in the stomach and then hit her with a cricket bat in the stomach. She said this punching and hitting hurt and she cried.
M said that when this activity failed to cause an abortion the Accused attempted to procure her aborting the baby by a more direct method. She described how the Accused put a towel on the bed and, after she had laid down and removed her pants at his direction, he used a spot light and a length of wire inserted into her vagina to try to pull the foetus out. M said she could feel the wire in her vagina and was in pain. She moved her legs in response to the pain and, as a consequence, the Accused tied her legs to the bed rail, and then reinserted the wire. She then put her hands on her vaginal region because of the pain and the Accused then tied her arms to the bed and continued inserting the wire inside her vagina.
When the Accused released her M said she went to the toilet in pain and discovered vaginal discharge with an offensive odour. She was not offered medical treatment after this incident, which is Count 10 on the Information.
The Accused agreed, that at the time of her pregnancy, he struck M once only in the stomach at her request. He denied any assault of the type alleged in Count 10.
Thereafter, the family moved to Kent Town. They were living there when JM was born.
Count 11 alleges a further act of sexual intercourse shortly after the birth of JM and at a time when M said there remained dissolvable stitches in her vagina. She said when this occurred that the Accused said this act of sexual intercourse would be the last time. Her evidence was that he, in the past, had frequently said something similar, to no avail.
The Accused agreed that such an event occurred, but denied it was whilst M still had stitches. He said it was a month or so later and it occurred because M asked him to have sexual intercourse with her to ensure that all was well in that regard. Thus, he said it was not his idea, but hers and he facilitated it. Hence his plea, with different particulars, to Count 11.
M said that there was one further incident of a sexual nature at Renmark on an occasion when she became drunk and passed out. When she awoke she had a wet vaginal area as she previously had had after sexual intercourse. She said the Accused made a remark to her of a sexual nature the following morning, but because of her inebriation, she has no recollection of any act actually occurring.
The Accused has admitted to a course of sexual activity with M commencing at Pellew Street, Parafield Gardens. This was the family home after Paralowie. He has an explanation for this course of conduct.
In his evidence he denied any sexual behaviour with M at any time prior to living at Pellew Street. In the same way he denied violent behaviour towards JR and his children. He admitted slapping JR over the milk drinking incident in Gawler, throwing keys at her in Queensland, hitting MC with the electric jug cord, slapping M in the face at Kitschke’s Farm and slapping JR at Tammy’s house. He admitted punching M in the face after the fellatio incident at Athelstone. He admitted a “tap” to M with the drill at Newton and he admitted to hitting M in the stomach when she was pregnant (at her request). Otherwise, he denied bashing any member of his family. He offered explanations for much of this behaviour which characterised others, rather than himself, as being at fault. He also did so in relation to the admitted machete incident.
The Accused admitted having sexual intercourse with M at their home in Pellew Street in August 1996 before her twelfth birthday. When this was put to M in cross‑examination she was unable to recall any sexual activity at that house. She could recall a birthday there. I am satisfied it was her twelfth birthday. This admitted act is not the subject of a count on the Information.
Were this the first occasion of sexual intercourse between the Accused and M there is an expectation that, as a young girl not quite 12 years of age, she would remember it. This is particularly so when regard is had to the Accused’s explanation of how it occurred and that M was, in his eyes, responsible for its occurrence.
The Accused’s explanation of this event is on page 252 of the transcript commencing at line 31:
“Q.When you first had sex with her at Pellew Street, was that vaginal sex penetration with your penis.
A.I think so. She got me - I was asleep and my wife got out of the bed and M must have got in bed and put herself on me and was jumping backwards and forwards just like me wife and it was M.”
In cross-examination the Accused further explained how this incident of sexual intercourse was not his doing.
“Q.   Who put your penis into her vagina.
A.     She did..
Q.     Did she. How did she do that.
A.She did it. She just pushed herself backwards on it and started jumping backwards and forwards. My wife used to do the same thing..
Q.     But it wasn’t your wife, was it; it was your 11-year old daughter.
A.     I didn’t know who it would be.
Q.     You are suggesting to the court that your 11-year-old daughter-
A.I always keep my eyes shut all the time, even when it was my first girlfriend, even when it was my wife.
Q.This wasn’t your first girlfriend either; this was your 11-year-old daughter.
A.     Yes.
Q.You are telling us that your 11-year-old daughter took hold of your penis.
A.No, she didn’t touch it, just put herself on to it and then pushed herself backwards and forwards.
Q.     Who put your penis into her vagina, then.
A.     I just had a Roger then. She put herself on me.
Q.     And, what, your penis just slipped in.
A.She pushed herself on to me and pushed herself backwards and forwards.
Q.     So did she mount you. Did she put her vagina onto your penis.
A.     Yes.
Q.     Has she ever done that before.
A.I don’t know if it was her vagina or her anus. I don’t know. I asked her afterwards. I went out the backyard and said ‘It was you, wasn’t it, M? Did you put me inside you?’ and she said ‘Yes’.”
(T270 line 19 to T271 line 13)
In essence, the Accused’s evidence is that he thought he was having sexual intercourse with his wife and that his error was as a consequence of M’s forward behaviour.
The next sexual encounter admitted by the Accused was the incident of fellatio in Count 7. I have already referred to that in some detail.
Thereafter, the Accused has admitted a further act of sexual intercourse at Lymn Avenue, Athelstone in the lounge room. This admitted act is not one of which M has given specific evidence and is not charged. She did give evidence, however, of such acts occurring in the hallway and the lounge room at this house. The Accused denied any such act on his motorbike in the shed at that address.
There is evidence from the Accused, M and JR that, from a time soon after the death of MC in September 1994, which was followed closely by the death of the Accused’s father, the Accused felt he had special seed which would enable him to reincarnate his deceased son and father.
There is a dispute on the evidence as to whether the Accused, after their deaths, asked JR to have an existing tubal ligation reversed. He said he did and that she refused. Her evidence does not support his. However, nothing turns on this dispute as there is no doubt that from this time at Brown Street, Peterborough the Accused had a view about his capacity to produce a child who would be the reincarnation of his deceased son and father and was desirous of so doing.
The Accused explained how, when the family was living at Farmer Street, Newton, on an occasion when he and M went to the shop and then sat on a park bench, she told him that she wanted to help him with the baby that he wanted. He said that he pointed out that such behaviour could lead to him going to prison, her being in trouble and the baby being marked for life. He said M insisted on helping. The Accused also said he told JR and her response was: “It’s up to M, it’s nothing to do with me”(T259). At this time M was 14.
M denied any such arrangement with the Accused and it was never in dispute at trial that JR was unaware of M’s pregnancy until she was five months pregnant, and that she did not become aware of the true identity of the father until the Accused told her some time after the baby was born and probably when they lived in Renmark.
The Accused said that he then had sexual intercourse with M twice before she became pregnant. The second of these is Count 9 to which a plea of guilty was entered, as earlier mentioned. The earlier is not charged.

He denied any activity designed to cause an abortion with the exception of a punch to her stomach, at her request, which was “not real hard” (T259). He denied the alleged attempt to abort M.
The Accused also admitted to a further act of sexual intercourse with M about two months after the baby was born as they were moving from North Terrace, Kent Town where they lived at the time of the birth. He said that they occurred because M “wanted to know if she was alright down there” (T260). This is Count 11.
Thereafter, the Accused admitted a further act of sexual intercourse at Myrtle Grove, Clovelly Park. M had no recollection of such an act and it is not charged.
Upon reaching Renmark the Accused said that sexual intercourse occurred on two further occasions in the lounge room and in the bus. M had given evidence of suspecting one further incident at Renmark on the evening in which she became inebriated as I have described. It is not possible to know from the evidence if this incident is one of those which the Accused has admitted.
JR, M and RC described how the family violence continued at Renmark. JR was bashed, RC had a loaded shotgun put in his mouth (as part of a game of gangsters said the Accused) and M was struck severely on the arm by the barrel of the shotgun such that she feared her arm was broken. The Accused said that this last incident was M’s fault as she hit the barrel with her arm as she attempted to ward the Accused off.
It was at Renmark that, as a consequence of his behaviour towards others, the Accused was arrested. M then told the mother of a friend of her allegations against her father and thereafter he was arrested in relation to them.
Simply because the Accused has admitted sexual activity on a limited number of occasions from when M was nearly 12 does not allow me to reason that he is therefore the type of person who was likely to have commenced this activity many years earlier. I shall not reason in that way.
There is much evidence of uncharged acts of a sexual nature from early in M’s life in her evidence. Those acts include the act which she spoke of for the first time in cross-examination to which I have referred. As I have said, that inconsistency is relevant only to the assessment of her credibility. The evidence of the uncharged acts is not to be acted upon unless I am satisfied of its truth: R v Nieterink (1999) 76 SASR 56 para 83. Where, as here, the evidence is lead to establish a grooming, a sexual attraction to M by the Accused from her early years and to provide an understanding of her acquiescence and an explanation of her failure to complain, I take the view that it is necessary that I be satisfied of them beyond reasonable doubt because of the use which may be made of that evidence.
Even though the Accused has not claimed any forensic disadvantage flowing from the failure by M to complain of any of his alleged sexual behaviour towards her until November 2000, because of that delay I shall be cautious in my approach to her evidence. This applies to both the charged and uncharged acts.
Not only does the evidence portray uncharged acts alleged to have commenced at an early age when childhood recollection may be susceptible, particularly if formed in an atmosphere of family violence, it also relates to the charged acts said to have commenced when M was between 8 and 10 years of age - up to about 12 years ago.
Because of this delay in complaining and M’s age, I recognise that I might only act on the evidence after I have weighed it carefully, giving due consideration to the matters I have mentioned. I direct myself that, in relation to both the charged and uncharged acts, because of the delay in complaining, the age of M when it is alleged they commenced and the consequent forensic disadvantage to the Accused, even though he has denied this behaviour, that it would be dangerous to convict on the evidence of M alone unless and until I have scrutinised that evidence with great care and, having paid heed to the warning, am satisfied as to its truth and accuracy: Longman v R (1989) 168 CLR 79.
Having done so, I accept the evidence given by M both as to the uncharged acts and of those events said to comprise each of the separate counts on the Information. In this regard I have considered each of the charged acts separately upon the evidence relating thereto in the context of the background of early activity of a sexual nature, early and ongoing family violence and the limited admissions the Accused has made in relation to his interaction with his family over many years and with M since just before her twelfth birthday.
I reject the evidence given by the Accused which has sought to downplay the many allegations of quite severe violence towards his family. I accept the evidence of JR, M, RC and Tammy of the violent behaviour they were party to at the hands of the Accused over many years and of the atmosphere which existed as a consequence, and, in Tammy’s case, her observations in that regard.
In relation to both the physical assaults upon JR and M and the sexual intercourse he has admitted, the Accused sought to downplay his role and to pass the main responsibility for the many incidents to the other relevant members of his family in his evidence.
He was a most unimpressive witness who sought always to give answers to questions which gave away the least possible ground in circumstances where the evidence on the particular topic on which he spoke was usually strong. His limited admissions, in my opinion, added to the strength of that evidence.
I reject the denial by the Accused of earlier sexual activity with M other than he has admitted. I accept the evidence of M as to the course of her sexual relationship with her father from her early years when she was required to be naked and lie with him on his bed and walk around the house naked when others were absent. I accept her evidence of the commencement and the extent of her sexual relationship with her father and I am satisfied beyond reasonable doubt as to that evidence having regard to the necessary warnings.
This evidence shows that in the atmosphere of violence which existed, the Accused commenced to groom M in a sexual manner at a very early age. This lead directly to penetrative sexual activity when she was about 8 years of age and ultimately to the birth of JM in May 2000. Even then the Accused was unable to control his admitted passion for her and continued to have sexual intercourse until they lived at Renmark, when he likely told JR the truth about his relationship with M. I am satisfied that there existed, from when M was quite young, a guilty passion in the Accused towards M.
When regard is had to this activity and its setting it is understandable why M did not complain initially or as the Accused’s behaviour continued. It explained his almost insatiable demands upon M over many years confident in the knowledge that she would acquiesce and not complain. As I have rejected his explanation of the limited nature of the physical force he used upon members of his family so I also reject beyond reasonable doubt his denial of sexual activity before Pellew Street and his explanation limiting it to about eight occasions thereafter. That he should commence sexual activity with M when she was not yet 12 and continue it for about another four or five years, but only on about eight occasions in total, is quite simply unbelievable and I reject it as a reasonable possibility in all of the circumstances.
I reject the explanation of the mistake of fact the Accused says he made which led to the completion of the act of fellatio the subject of Count 7 on the Information. I find that this act occurred in circumstances such that the Accused was aware that M was involved and that he saw it as just another incident in his ongoing sexual relationship with her. I am satisfied beyond reasonable doubt that the elements of this offence have been proved beyond reasonable doubt.
I find Count 9 proved on the Accused’s plea of guilty. I find that the sexual intercourse relevant to Count 11 occurred before 22 July 2002 and I find that count proved as charged.
Insofar as the remaining counts are concerned I remind myself that I must not reason that because I am satisfied as to truth of the allegations of the uncharged acts that the Accused is therefore a person with a propensity to so act and so probably did. I do not reason in that way. Nor do I reason in a like manner consequent upon his admissions of sexual activity commencing immediately before her twelfth birthday or from his pleas of guilty.
In relation Counts 1-4, I am satisfied beyond reasonable doubt that the necessary elements of each offence have been proved beyond reasonable doubt. I am also satisfied that those acts of penetration alleged occurred at the location set out in the respective counts at a time when M was not yet 12 years of age.
Whilst I am satisfied that the penetration alleged in Count 5 occurred at E’s house at Elizabeth, I am unable to be satisfied that at the time M was under 12. There is no evidence as to where she was living at that time and she has no recollection of the event in Pellew Street admitted by the Accused to have occurred immediately before she was 12. Thus, it is not possible to put the event in Elizabeth into any time frame. Hence, in relation to this count I find the Accused not guilty as charged, but guilty of the alternative offence of unlawful sexual intercourse.
I also accept the evidence of M in relation to the events alleged in Counts 6 and 8. These occurred at a time when the Accused has admitted intermittent sexual intercourse with M, but has denied these specific occasions. I am satisfied that these incidents occurred in the form of the sexual penetration alleged by M in her evidence.
I accept the evidence of M that the Accused attempted to procure the abortion of her baby in the manner she has described. I reject his denial in relation to Count 10. I am satisfied that he did not want this child to be born as he recognised the threat both to his relationship with JR and to his freedom that such an event would pose. I have accepted M’s evidence of this event in the context of her evidence that he had earlier physically assaulted her with such an object in mind. That earlier behaviour explains why it is that he would then take this most serious step. I repeat that I have not reasoned from the earlier to the latter in a propensity fashion, but have rather used my satisfaction of the earlier and less serious steps he took as explicable of the occurrence of this more serious event. I find this count proved.
My conclusion therefore is that the Accused is guilty as charged in relation to Counts 1, 2, 3, 4, 6, 8 and 10. He is guilty of the alternative offence of unlawful sexual intercourse relating to Count 5 and he is guilty upon his plea to Counts 9 and 11. He is guilty of Count 7 for the reasons I have set out in relation to that count.
I have not used any of the uncharged acts of either sexual or physical assault alleged to have occurred subsequent to the last count on the Information in my considerations in this matter as they are not relevant to the manner or context of the criminal behaviour which preceded them and are only relevant to an explanation of the complaint ultimately made by M. I have only included them in the narrative for the sake of completeness.

[2004] SADC 26

27 February 2004