R v D, DJ - [2025] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v D, DJ
Criminal Trial by Judge Alone
[2025] SADC 57
Reasons for the Verdicts of his Honour Judge Allen
21 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
The accused elected for trial by judge alone on two counts of maintaining an unlawful sexual relationship with a child, two counts of unlawful sexual intercourse with a person under 14 years and one count of indecent assault, contrary to ss 50(1), 49(1) and 56 respectively, of the Criminal Law Consolidation Act 1935 (SA).
It is alleged that between 1 January 1993 and 31 December 2001, the accused committed the acts against [AL] of maintaining an unlawful sexual relationship with [AL] by engaging in two or more unlawful sexual acts with [AL], namely: (a) touching her breasts on one occasion; (b) performing an act of cunnilingus upon her on more than one occasion; (c) exposing his penis to her on one occasion; (d) kissing her thighs on more than one occasion; (e) causing her to touch her vagina on one occasion; and (f) showing her a pornographic magazine on one occasion.
It is further alleged that between 1 January 2001 and 31 December 2002, the accused committed two acts against [SB] of unlawful sexual intercourse by performing an act of cunnilingus upon her.
It is further alleged that between 1 January 2001 and 31 December 2002, the accused committed the act against [SB] of indecent assault by biting her buttocks.
It is further alleged that between 1 January 2000 and 31 December 2007, the accused
committed the act against [ID] of maintaining an unlawful sexual relationship with [ID] by engaging in two or more unlawful sexual acts with [ID], namely: (a) rubbing his penis against her bottom on more than one occasion; (b) touching her vagina on one occasion; (c) causing her to touch his penis on one occasion; (d) causing her to perform fellatio upon him on more than one occasion; (e) touching her thigh on one occasion; and (f) inserting his finger into her vagina on one occasion.
Verdict:
Guilty on count 1.
Not guilty on counts 2-5.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 50(1), 56, 65; Evidence Act 1929 (SA) ss 34CB, 34M, 34P, 34R, 34S, referred to.
Hughes v The Queen (2017) 263 CLR 338; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v W, PK [2016] SASCFC 5; R v R, PA [2019] SASCFC 19; R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98; R v C, CA [2013] SASCFC 137; MDM v The Queen (2020) 136 SASR 360; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; R v Bonython-Wright (2013) 117 SASR 410; Sexton v The Queen [2022] SASCA 73; R v MJJ; R v CJN (2013) 117 SASR 81; R v Murphy [2024] SASCA 37; Mule v The Queen (2005) 79 ALJR 1573; Nguyen v The Queen (2020) 269 CLR 299; Murray v The Queen (2002) 211 CLR 193, considered.

R v D, DJ
[2025] SADC 57
[Criminal]
Introduction

The accused is charged on an Information dated 14 February 2023 with the following offences:
Count 1
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[D, DJ] between the 1st day of January 1993 and the 31st day of December 2001, at Woodside, maintained an unlawful sexual relationship with [AL], 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 breasts on one occasion;
b)      performing an act of cunnilingus upon her on more than one occasion;
c)      exposing his penis to her on one occasion;
d)      kissing her thighs on more than one occasion;
e)      causing her to touch her vagina on one occasion; and
f)      showing her a pornographic magazine on one occasion.
…
Count 2
Offence Details:
Unlawful sexual intercourse with a person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[D, DJ] between the 1st day of January 2001 and the 31st day of December 2002, at Woodside, had sexual intercourse with [SB], a person under the age of 12 years, by performing an act of cunnilingus upon her.
…
Count 3
Offence Details:
Unlawful sexual intercourse with a person under 14 years. (Ibid).
Particulars
[D, DJ] between the 1st day of January 2001 and the 31st day of December 2022, at Woodside, had sexual intercourse with [SB], a person under the age of 12 years, by performing an act of cunnilingus upon her.
…
Count 4
Offence Details:
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars
[D, DJ] between the 1st day of January 2001 and the 31st day of December 2002, at Woodside, indecently assaulted [SB], a person under the age of 12 years, by biting her buttocks.
…
Count 5
Offence Details:
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[D, DJ] between the 1st day of January 2000 and the 31st day of December 2007, at Woodside, maintained an unlawful sexual relationship with [ID], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a)      rubbing his penis against her bottom on more than one occasion;
b)      touching her vagina on one occasion;
c)      causing her to touch his penis on one occasion;
d)      causing her to perform fellatio upon him on more than one occasion;
e)      touching her thigh on one occasion; and
f)      inserting his finger into her vagina on one occasion.
The accused elected for trial by judge alone. For the reasons which follow, I find the accused guilty in relation to count 1 and not guilty in relation to counts 2, 3, 4 and 5.
Background
When the trial commenced, the accused was charged on the same Information with his father [BD]. [BD] was charged with an offence contrary to s 65 of the Criminal Law Consolidation Act, namely permitting unlawful sexual intercourse on premises.
At the conclusion of the prosecution case, I found that there was insufficient evidence to sustain this charge and accordingly ruled that there was no case to answer. The charge against [BD] was dismissed.
Matters not in dispute
There were two agreed facts made orally in this trial. Firstly, it was agreed that in her statement of 13 July 2019, [AL] did not name any of the three persons to whom she said she first complained of the accused’s sexual abuse. Secondly, in the case against [BD], it was agreed between the prosecution and defence that [BD] had never previously been convicted of a criminal offence. Given that a no case to answer was found in respect of [BD] this second agreed fact is of no moment.
Prosecution case
The prosecution case is that the accused sexually abused [AL], [SB] and [ID] during visits that each of the complainants made to the accused’s house. The accused’s parents are [BD] and [SD]. [AL] was the first complainant. [AL] was habitually sexually abused by the accused. On one occasion [BD] entered the room whilst the accused had his head between her legs and did not prevent the accused from performing an act of oral sex on [AL]. On one occasion the accused performed cunnilingus on [SB]. [AL] also witnessed the accused perform oral sex on [SB]. [ID] was the youngest of the three complainants’ and was also routinely sexually abused from a young age.[1]
Elements of the offence
[1] See Annexure A (Exhibit P1).
Maintaining an unlawful sexual relationship with a child
The offence of maintaining an unlawful sexual relationship with a child has four elements:
1.      The accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2.      The accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3.      The complainant was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred; and
4.      The accused intentionally committed two or more of the particularised unlawful sexual acts during the course of the relationship with the complainant.
The particularised sexual acts of themselves on the Crown case variously amount to indecent assault (particulars (a), (d) and (e)) in relation to [AL]; (particulars (a), (b) and (e)) in relation to [ID], unlawful sexual intercourse (particular (b)) in relation to [AL]; (particulars (d) and (f)) in relation to [ID] and gross indecency (particulars (c) and (f)) in relation to [AL] and (particular (c)) in relation to [ID].
Indecent assault
1.      There must be an assault, a touching would suffice;
2.      The assault must be deliberate as opposed to accidental;
3.      The assault must be unlawful, there must be no legal excuse for the assault;
4.      The assault must be indecent according to contemporary community standards;
5.      The assault must be committed by the accused with a sexual purpose or intent;
6.      The complainant must be under 17 years of age.
Consent is no defence to this charge; a child under 17 years is incapable in law of consenting to sexual activity.
Unlawful sexual intercourse
The elements of unlawful sexual intercourse, which the prosecution must prove beyond reasonable doubt, are as follows:
1. The accused had sexual intercourse with the complainant. For the purposes of this trial sexual intercourse includes the accused performing an act of cunnilingus upon [AL], [SB] and [ID], the accused causing [ID] to perform an act of fellatio upon him and the accused inserting his fingers into [ID]’s vagina.
2. The complainant was under 14 years at the time of the intercourse.
Again, consent is no defence to this charge; a child is incapable in law of consenting to sexual activity.
Gross indecency
The offence of gross indecency occurs when an accused commits an act of gross indecency in the presence of a person under 16 years. The elements of gross indecency which the prosecution must prove beyond reasonable doubt are therefore as follows:
1.      The accused must commit an act of gross indecency;
2.      The act must be in the presence of a person under the age of 16 years;
3.      The act must be grossly indecent according to contemporary community standards; and
4.      The act must be committed by the accused with a sexual purpose or intent.
Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency.
In this case, this allegation relates to the allegations of the accused exposing his penis to [AL] on one occasion and showing [AL] a pornographic magazine on one occasion and causing [ID] to touch his penis on one occasion.
Preliminary legal directions
Having conducted a trial by judge alone, it is unnecessary to set out the various standard directions that would be given to a jury. Nonetheless, I remind myself of the following principles.
The standard of proof is beyond reasonable doubt. The prosecution bears the burden of proof. The accused is presumed to be innocent unless and until the evidence satisfies me that each element of the offence has been proven beyond reasonable doubt. It is not sufficient for the prosecution to show a mere suspicion of guilt or to demonstrate probable guilt. If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and the verdict should be one of not guilty. The accused is not required to prove that he did not commit the offences with which he is charged.
A number of the witnesses gave evidence with special arrangements in place. I must not allow the fact of these arrangements to influence the weight that I give to the witnesses’ evidence. I must not draw an adverse inference against the accused as a result of the fact that these arrangements were in place.
Expert witness
In this case, Dr Melanie Takarangi’s report[2] and curriculum vitae[3] was tendered as agreed between the parties. The opinions expressed must be within the expert’s particular areas of expertise and the opinions must be based on her knowledge, training or experience. I am entitled to accept or reject any opinion evidence however before doing so I must consider the person’s qualifications, whether their opinion is based on a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
[2] Exhibit D8.
[3] Exhibit D9.
Election not to give evidence
The accused elected not to give evidence at this trial. The accused was not bound to give evidence. The accused has the right to decline to give evidence. Because that is his legal right, I must not draw any inference adverse to him or the case the accused puts forward from the exercise of that right. There may be many reasons the accused did not give evidence, and I must not speculate on those reasons. I bear in mind that it is, at all times, for the prosecution to prove its case beyond reasonable doubt.
Complainant [AL]
Examination-in-chief
Background
At the time of giving evidence, [AL] was 33 years of age. The complaint’s mother is [JD]. The complaint’s biological father is [DL].[4] The complainant’s mother remarried with [PB]. The complainant’s mother had two other children with [PB] namely, [SB] and [BB]. The complainant’s mother then had two more children with a new partner, [VW]. The complainant’s grandparents on her father’s side are [DFL] and [PL]. The complainant’s grandparents on her mother’s side are [SD] and [BD]. The complainant moved out of her family home and moved to the Gold Coast at 15 years of age.
[4] T29.
During the complainant’s childhood, [AL] spent time at her mother’s parents’ house from time to time. The complainant would travel via plane from Darwin approximately twice a year during the school holidays. When [AL] resided in Adelaide, the complainant would attend her mother’s parents’ house and would spend the majority of time at this residence.
Grandparents’ residence
[AL] did not remember sleeping at this address before moving to Darwin. When [AL] visited from Darwin, the complainant would stay the night at the property. There was a mattress in [SD]’s room at the foot of the bed that [AL] slept on.[5] [AL] later moved the mattress to the side of the bed furthest away from the door.[6]
[5] T37.35-38.
[6] T37.35-38.
The house had two storeys. There was one bedroom downstairs that could be used as a study. There was another two rooms and a bathroom upstairs. [SD] would sleep upstairs in one bedroom. [RD], the complaint’s uncle, would sleep in the other bedroom upstairs opposite to [SD]’s room. The accused slept downstairs and would block off one of the doors so that it transformed into a regular bedroom.[7] The accused only permitted one entry point to the room. The doorway closest to the front door was never allowed to be used as an entry. The accused would become angry if this alternate doorway was used.[8] The bedroom door nearest to the laundry and the kitchen was the primary entry to the accused’s bedroom.[9] The loungeroom was situated on the other side of the accused’s room at the front of the house.[10]
[7]     T38.19-27.
[8]     T39.10-14.
[9]     T39.10-14.
[10] T39.36-38.
When [AL] attended the address, [AL] would spend time with her grandmother as well as the accused and [RD]. They would play games together.[11] [AL] would spend most of her time in the accused’s bedroom playing on gaming consoles with minimal supervision from [JD] for long periods of time.[12] This occurred on every visit.[13]
[11] T40.28-38.
[12] T41.17-20.
[13] T41.32.
After a period of time, the accused started touching [AL] whilst they were playing games in his room.[14] [AL] could not recall the first time this occurred, but it became common for this to occur and it was part of the expectation if [AL] wanted to be in the accused’s room and play games.[15] Violence was also perpetrated against [AL]. I find this evidence to be irrelevant and place no weight on it. It has no role to play in determining the issues in this trial.
First incident
[14] T42.4-15.
[15] T42.4-15.
[AL] was approximately 4 years of age at the time of the incident and was yet to attend school. [AL] was in the accused’s room on the bed. [AL] was wearing tights and a pinafore dress.[16] The accused pulled [AL]’s tights down and began performing oral sex on the complainant. [BD] walked in the room during this occasion.[17]
[16] T45.3-5.
[17] T43.31-36.
[AL] described the accused playing on the gaming console, then as soon as the controller would be passed to [AL], the accused would touch [AL] on the legs and pull the complainant’s pants down.[18] [AL] was situated halfway down the bed. The accused was at the end of the bed.[19] When the accused was performing the act of oral sex, [AL] was lying on her back and her legs were up.[20] The complainant’s leggings and underwear were around her ankles.[21] [AL]’s eyes were closed whilst the accused performed the act of oral sex.[22] There was a knock at the door by [BD].[23] The door was opened after a few seconds after the initial knock.[24] [BD] opened the door and stood at the doorway. The accused stood up and moved backwards on the bed. [AL] was in a squat position covering herself with her clothes. [AL]’s bottom was exposed. The complainant made eye contact with [BD].[25] [BD] stated, 'I need your help in the yard'. The accused replied 'No. Later. Not now'.[26] There was an exchange between the accused and [BD] that lasted approximately 30 seconds.[27] The door then closed, and the accused pulled the complainant back onto the bed and recommenced performing oral sex.[28] The oral sex only lasted a few minutes before the accused left the room.[29] [AL] then visited the bathroom to urinate and attend to herself.[30]
Second incident
[18] T44.32-34.
[19] T45.6-10.
[20] T45.36-38.
[21] T46.1-4.
[22] T46.11-19.
[23] T63.9-10.
[24] T63.20.
[25] T45.28-32.
[26] T46.26-29.
[27] T46.31-33.
[28] T47.1-15.
[29] T47.25-26.
[30] T48.30.
The second incident occurred not long after the first incident. [AL] was wearing a school uniform at the time. [AL] was playing video games with the accused after school.[31] [AL] was approximately 4 or 5 years of age. After playing the video game, the accused pulled [AL]’s stockings or tights down and started performing oral sex.[32] [AL] was lying on the bed. The accused was leaning on the bed with his head between the complainant’s legs.[33] The bedroom door was closed. [BD] did not enter the room but merely opened the door.[34] [BD] stated, 'I need your help to do something'.[35] [AL] squatted on the bed and attempted to hide her exposed bottom.[36] The accused replied, ‘Later, not now’.[37] [BD] closed the door and then re-opened the door quickly and stated 'Well, come on then'.[38] The accused and [AL] then left the room at the same time.[39] The complainant again attended the bathroom.
Third incident
[31] T49.33-36.
[32] T50.4-6.
[33] T50.7-12.
[34] T49.9-23.
[35] T51.10.
[36] T51.14-15.
[37] T51.38.
[38] T52.1-3.
[39] T52.1-3.
The accused performed oral sex on [AL]. The complainant urinated slightly, and the accused told [AL] to attend the bathroom.[40] [AL] was on the accused’s bed when the accused was performing oral sex.[41] The accused was crouching with his head between [AL]’s legs.[42] [AL] could not recall the clothing that she wore on this occasion. When [AL] urinated, the accused immediately stopped and stated, 'Go to the bathroom’.[43] [AL] attended the laundry bathroom on the ground floor.[44]
Fourth incident
[40] T52.22-30.
[41] T53.2-6.
[42] T53.9-11.
[43] T54.8-11.
[44] T54.15.

[AL] was approximately 8 years of age at the time. [AL] was wearing a blue hibiscus dress. It had a white underlay with a blue mesh over the top with dark blue hibiscus flowers.[45] [AL] was in the accused’s bedroom lying on the bed. The accused’s face was between [AL]’s legs and was performing oral sex on the complainant. [AL] placed the elastic dress over the accused’s head to hide the accused’s head.[46] [AL] felt uncomfortable and asked the accused what it tasted like. The accused grabbed [AL]’s finger and roughly placed it against [AL]’s vagina and then placed the complainant’s finger into her mouth and stated words to the effect of ‘Did it taste nice?’ or ‘How was that?’.[47] [AL] replied ‘yes’ and agreed with the accused.[48] The accused continued performing oral sex. The accused then requested that the complainant leave. [AL] attended the bathroom to urinate and wipe herself.[49]
General offending
[45] T80.14-17.
[46] T81.2-6.
[47] T54.20-24; T80.
[48] T81.12-17.
[49] T81.18-25.
[AL] could not recall how many times the accused performed such acts and described the behaviour as normalised.[50] The majority of the incidents occurred when [AL] was aged between 4 to 10 or 11 years of age.[51] [AL] agreed that there was a pattern to the accused’s offending. The accused would invite [AL] to his room to play video games. The accused would play the video game for a period of time and then would hand the controller to [AL]. The accused would then pull [AL]’s bottom half of her clothing down and begin performing oral sex. [AL] would have her eyes closed at the time.[52] The accused kissed [AL] on the thighs and vagina and then would lick the complainant’s vagina.[53] [AL] described the oral sex as robotic in which the accused would stick his tongue out in an up-and-down motion in the same tempo and rhythm.[54] The complainant stated that after each act occurred, [AL] left the accused’s bedroom and attended the bathroom to urinate and clean herself. The complaint’s grandmother, [SD], was always present at the house. [SD] was either in the kitchen, lounge room or at the washing line.[55] Before [AL] moved to Darwin, the accused resided at this premises. When [AL] resided in Darwin, [AL] visited alone from time to time.[56] [AL]’s clothing was never fully removed and was only pulled to the side or pulled down.[57]
[50] T54.33-38.
[51] T55.4-5.
[52] T55.20-34.
[53] T56.5-6.
[54] T56.17-19.
[55] T57.13-17.
[56] T58.23-24.
[57] T58.30-31.
After an incident occurred, [AL] would attempt to locate her grandmother. [AL] would then see the accused approximately half an hour later.[58] The accused would then ask [AL] to play a different video game.[59] The complainant was excited that it was a different video game. Consequently, [AL] would attend the accused’s bedroom again.[60] This would, in turn, lead to the same pattern of oral sex being performed.[61]
[58] T65.18-25.
[59] T66.
[60] T66.1-2.
[61] T66.15-20.
Apart from playing video games in the accused’s bedroom, the accused and the complainant would attend the local video shop to purchase new games to play.[62] They would walk to the video shop together or be driven by [BD] to the shop from time to time.[63]
[62] T67.7-8.
[63] T67.
[AL] recalled an incident when playing a specific video game called ‘Lara Croft’ when the accused performed oral sex in the same pattern as previously described.[64]
Darwin
[64] T68.
[AL] described the time period when residing in Darwin. [AL]’s stepfather would work periods of time on and periods of time off and was often not at home. [AL]’s mother would remain in bed for most of the day except for the evening to make dinner. [AL] would often wander the streets alone during her adolescence. [AL]’s stepfather would perpetrate violence against the complainant’s mother and was an alcoholic. [AL]’s stepfather also perpetrated violence against her.[65] [AL] compared living in Darwin to when residing at her grandmother’s residence. [AL] noted that playing games with the accused provided an escape.[66] The acts of oral sex perpetrated by the accused adversely affected the complainant’s schooling.[67]
Further attempts
[65] T68.24-34.
[66] T69.1-10.
[67] T70.
[AL] noted that there were no other private rooms at the house where the complainant and the accused spent time together where sexual abuse occurred. The incidents only occurred in the accused’s bedroom.[68] [AL] recalled a few occasions where the accused attempted to take [AL] to the bathroom. However, [SD] intervened on each occasion.[69] On these occasions, the accused would take [AL] by hand or wrist from the accused’s bedroom to the upstairs bathroom and would lock and close the door. [SD] would then intervene. [SD] would run up the staircase, pound on the door and request that the accused open the door.[70] The accused opened the door on these occasions. [AL] was then taken back downstairs. The complainant was approximately between the ages of 4 and 7 when these incidents occurred. The accused would not speak to the complainant about these incidents after they occurred.
Fifth incident
[68] T71.3-8.
[69] T71.3-8.
[70] T71.14-18.
[AL] was 8 years of age. The incident occurred just after lunchtime. [AL] was playing video games with the accused in the accused’s bedroom. The accused then placed a pornographic magazine in front of the screen. [SD] walked into the room. The magazine depicted a completely naked adult woman. [SD] slapped the accused across the face.[71] [SD] stated, 'how dare you'.[72] [SD] then repeated this again by slapping the accused and further stating, ‘how dare you’.[73] [SD] then directed that the complainant leave the room. The accused’s gaming console was then placed in the loungeroom. However, the gaming console was not operational on this occasion.[74] At some point the gaming console was returned to the accused’s room.[75]
Sixth incident
[71] T76.
[72] T77.2-3.
[73] T77.1-8.
[74] T77.14-18.
[75] T77.22.
The accused exposed his penis on one occasion to [AL]. This occurred around a similar time to the fifth incident. The accused pulled the elastic band down and showed the complainant his half erect penis.[76] The complainant was on the floor at the time. The accused was looking at the complainant and smiling.[77] The accused’s bedroom door was closed at the time.
Further physical contact – uncharged acts
[76] T78.8-19.
[77] T79.2.
When [AL] was young, [AL] would sit on the accused’s lap in the lounge room. The complainant’s grandmother put a stop to this at some point in time. [AL] used to sit on everyone’s lap when 2 or 3 years of age.[78] It was on more than one occasion that [AL]’s grandmother stated to the accused ‘that’s enough’.[79] The complainant remembered a particular memory of when sitting on the accused’s lap. The accused was wearing black jeans and there was something in the accused’s pocket. The object was pressing hard against the complainant’s thigh.[80] [AL] was approximately 3 years old at this time. [AL]’s bottom was against the accused’s groin. The complainant was facing away from the accused. The complainant was on the accused’s lap for a few minutes.[81] The complaint’s grandmother was sitting on another lounge within the loungeroom before intervening. [AL] could not recall if this was the last occasion when sitting on the accused’s lap.
Seventh incident
[78] T84.12-16.
[79] T84.17-19.
[80] T84.31-33.
[81] T85.13.
[AL] was approximately 11 years of age. The accused approached the complainant from behind and placed his hands on [AL]’s breasts in the loungeroom. [AL] was sitting cross-legged on the floor. The accused said words to the effect of 'Oh, you're getting boobs now'.[82] The complainant’s grandmother was potentially in the kitchen. The accused’s hands were underneath [AL]’s top on this occasion.[83]
Complainant’s stepsister [SB] – count 2 on the Information
[82] T86.6-12.
[83] T86.26.
[AL]’s half-sister is [SB]. [AL]’s half-brother is [BB]. [AL], [SB] and [BB] would attend and spend time with the accused.[84] An incident occurred whilst [AL], [SB] and [BB] were in the accused’ room. The complainant was 12 years of age. [SB] was approximately 3 years of age. [SB] was wearing a light green dress. [BB] was playing a video game at the time. [SB] was lying on the accused’s bed. The complainant was sitting on the bed. The accused started kissing [SB] and performed oral sex. The accused was kissing [SB]’s legs and private parts before performing oral sex.[85] [BB] turned around and observed the incident. The complainant then left the room to seek help.[86] [AL] proceeded to attempt to gain her mother’s attention in the living room. [AL]’s mother, [JD] and [BD] were in the loungeroom. [AL] was whispering to her mother for assistance to come into the accused’s room to observe what the accused was doing.[87] [AL]’s mother never moved from the loungeroom or attend the accused’s bedroom.[88] [SB] and [BB] then exited the accused’s room a short time after.
Post incidents
[84] T87.7-12.
[85] T88.25-27.
[86] T87.30-38.
[87] T92.
[88] T92.17.
After this occasion, the complainant did not continue to attend the accused’s home on a frequent basis.[89] The next time [AL] attended the accused’s home was when the complainant was either 15 or 16 years of age. [AL] slept next to her grandmother and nothing untoward occurred with the accused.[90] This was the last contact that [AL] had with the accused.
Complaint
[89] T92.32-37.
[90] T93.6-9.
[AL] disclosed to three girls at school that the complainant had experienced inappropriate touching. The complainant was approximately 10 years of age and in year 5 at the time. [AL] attended Anula Primary School. The conversation took place in the playground during lunchtime.[91] A topic of abuse arose during the conversation. Each of the schoolgirls disclosed instances of sexual abuse that they had experienced. The complainant disclosed that ‘my uncle was getting me to go into his room to play video games and then he would basically pull down my pants and give me oral sex’.[92]
[91] T93.26-38.
[92] T94.14-17.
The complainant has not had any contact with the three girls in the last 20 years.
Complaints to [SB] and [ID]
[AL] had not disclosed to either [SB] or [ID] any details of sexual abuse perpetrated by the accused.[93] In April 2021, the complainant disclosed to [SB] and [ID] that the accused was a paedophile and had been touching the complainant since the complainant could remember. However, no specific details of the acts were disclosed.[94] [ID] never disclosed any details of abuse perpetrated by the accused to [AL]. After [SB] made a statement to police, [SB] disclosed that she had been diagnosed with delayed post-traumatic stress disorder. [AL] questioned [SB] as to this diagnosis. [SB] disclosed an incident that occurred with the accused.
[93] T95.1-5.
[94] T95. 12-13.
Cross-examination (Mr English)
Background
[AL] moved to Darwin with [JD] and [PB] in late 1994 or early 1995. [JD] was pregnant with [AL]’s brother at the time. [AL] was 5 years of age at the time of relocating to Darwin. [AL] gave a detailed description of her parents wedding when she was approximately two years of age.[95] [AL] was taken to various photographs in a family photographic album.[96] The photos depicted either [AL] alone or with another family member.[97] The photographs spanned from when [AL] was an infant to adolescence.[98] [AL] received a family photo album when [AL] was detained in a psychiatric ward for adolescence.[99] [AL] was detained following an overdose on acne and antidepressant medication.[100] The accused was depicted in a number of photographs with the complainant.[101]
Time spent with [RD]
[95] T112.
[96] T117.
[97] T117.18-22.
[98] T117.33-36.
[99] T118.13-16.
[100] T118.17-20.
[101] T121; T122.
When attending the accused’s home, [AL] spent the majority of time with the accused in the accused’s room playing video games.[102] [AL] did not remember [RD] appearing at the doorway when the accused was performing sexual acts. [AL] confirmed that [RD] did not walk into the bedroom when any sexual acts were being performed.[103] [AL] also played games in [RD]’s room.[104] [AL] gave evidence that as time progressed, [AL] spent less time in [RD]’s room and more time was spent in the accused’s room.[105]
[102] T123.14-15.
[103] T123.25-32.
[104] T124.
[105] T125.14-20.
[AL] then remembered a time when [RD] walked in on the accused performing a sexual act.[106] [AL] was approximately 4 years of age. [AL] was upstairs in [RD]’s room and the accused was present. [RD] began playing the video game and the accused proceeded to perform oral sex in front of [RD]. [RD] stated, 'You really need to stop doing that'. [AL]’s memory was fuzzy and that was why she failed to raise this occasion previously.[107] [AL] disclosed this incident to Detective Bateman but it was not included in any of [AL]’s statements.[108] [AL] described an occasion where both [RD] and the accused were tickling the complainant underneath her belly button.[109]
Alcohol consumption
[106] T125.25.
[107] T126.3-7.
[108] T126.
[109] T126.24-36.
[AL] sent an email to Detective Bateman on Monday 11 October 2021 stating, ‘[AG] was helping me also through alcohol issues’ and ‘during the writing of the statement and mostly afterwards I began drinking alcohol every day to numb the pain that I had suppressed which was rushing to the surface. Now I don't drink alcohol at all and instead I am on antidepressant for the extreme panic attacks I was having known as PTSD trauma time’.[110] The complainant sought assistance as she was drinking heavily during this period. [AL] stated that whilst drafting her statement between February and July 2019, the complainant was not drinking every day. It was not until 2020 that [AL]’s drinking increased during COVID.[111] [AL] was not drinking at any time when drafting a statement with police.[112] [AL]’s drinking would have occurred after writing the statement at the end of the day.[113]
Psychological history
[110] T131.6-17.
[111] T132.8-11.
[112] T132.
[113] T132.
[AL] had a General Practitioner, Dr Vip Patel, who worked at Worongary Medical Centre during 2014-2015. Dr Patel was treating [AL] for potentially post-traumatic stress disorder, nightmares, flashbacks, dissociation, insomnia, mood swings, explosive emotional responses and feelings of abandonment.[114] The feelings of abandonment related to being estranged from her family.[115]
Relationship with [SD]
[114] T135.1-14.
[115] T135.18-21.
When [AL] attended her grandparents’ property, [AL]’s grandmother was essentially present on every occasion.[116] [AL] would sleep in [SD]’s room and [SD] would make dinner and supper.[117] The complainant disagreed that [SD] encouraged her to leave the house and not spend the majority of the time in the accused’s bedroom.[118] The complainant disagreed that [SD] was a loving grandmother and was instead cold and distant.[119] [AL] was taken through various photographs in the family album that depicted the complainant with [SD] and both appeared happy.[120]
Trips to Adelaide
[116] T137.19-20.
[117] T137.23-25.
[118] T138.15.
[119] T140.
[120] T141; Exhibit D2.
The sequence in which [AL] stayed with both grandparents when visiting Adelaide from Darwin would be first, a week spent with [DFL], then a week with [SD], then returning to [DFL] again for the last week.[121] [AL] drew the distinction between the two households, and the complainant’s preference was to reside with [DFL]. [AL] had a stronger relationship with [DFL] as opposed to her other grandmother, [SD]. [AL] never spoke to [DFL] about the accused or playing video games with the accused.[122]
First incident
[121] T148.
[122] T150.4-9.
[AL] recounted the details of the first incident. The first part of [AL]’s clothing that was touched was the leggings, which was underneath the pinafore dress. [AL] was sitting on the bed then repositioned to be lying down on the bed.[123] The accused was kneeling on the floor, with the top part of the accused’s body over [AL]. The accused was wearing black jeans. [AL] did not remember the accused stating anything at the time.[124] [AL] continued to play the video game, whilst the accused performed cunnilingus. The video game was called ‘skeletons’. The accused’s bedroom was mostly dark. The curtains and both doors were shut. The light from the television lit the room.[125] [AL] was able to recall this occasion due to the memory of [BD] entering the room.[126] [AL] agreed that when speaking to police, the complainant did not include information in the lead up to this incident.[127] The focus of her memory was exclusively related to [BD] entering the room.[128]
Conversation with [BD]
[123] T152.1-2.
[124] T154.3-4.
[125] T156.18-22.
[126] T159.
[127] T160.21-28.
[128] T160.
[BD] requested that the accused help him mow the lawn. [BD] opened the door and said words to the effect of 'Come outside and help me mow the lawn'. The accused replied, 'Not now'. [BD] then replied ‘now’ and there was further back and forth.[129] When [BD] opened the door, the accused performed a push motion towards [AL] and stood up at the same time.[130] The accused did not make physical contact with the complainant at this time.
Second incident
[129] T163.8-15.
[130] T164.
There were a number of individuals present at the Woodside property on this occasion. People tended to congregate in the loungeroom at the property, which was opposite the accused’s bedroom. [AL] confirmed that the clothing that was worn was depicted in Exhibit D2.[131] [AL] did not have a strong recollection of the events leading up to the conduct.[132] [AL] could not hear any individuals speaking in the loungeroom when in the accused’s bedroom.[133] On this occasion [BD] did not knock at the door. The complainant did not recall making contact with other people in the house after attending the bathroom.[134]
Fifth incident
[131] T169.
[132] T169.34-36.
[133] T175.3-6.
[134] T177.
[AL] rejected the proposition that this incident did not in fact occur. It was suggested that [AL] was running around the house going through drawers and bedrooms and found a ‘girl magazine’. The complainant disagreed but noted that [SD] had disclosed this version of events previously to the complainant.[135]
Incident with [SB]
[135] T191.1-11.
[AL] observed the incident of the accused performing cunnilingus on [SB].[136] [AL] left the room in a panic and knew the behaviour was inappropriate. [AL] did not tell the accused to stop. [BB] did not tell the accused to stop as well.[137] [AL] was approximately 11 or 12 at the time. [BB] was 5 or 6 at the time. [BB] appeared stressed at the time. [AL] left the house to compose herself for a brief period of time. [AL] then re-entered the house to seek assistance from her mother.[138] [AL] attempted to whisper to her mother to ‘come into [D, DJ]’s room’. [BB], [SB] and the accused then exited the room a short time later and [JD] stated ‘look, here they are now’.[139] [AL] believed that [SD] ‘wanted to keep it under wraps’. Consequently, the complainant did not disclose what had occurred at the time.[140] [AL] did not believe [JD] was supportive at the time.
Relationship with [SD]
[136] T192.
[137] T192.
[138] T195.1-10.
[139] T195.18-25.
[140] T196.
[AL] told police that [SD] used to ‘get off’ on getting [AL] and the accused to interact with one another.[141] [SD] would permit [AL] to enter the accused’s room and was aware that ‘things were happening’. At the same time [SD] would put preventive measures in place to prevent the accused from sexually abusing [AL]. [AL] assumed that [SD] ‘was getting off over the power dynamic’.[142]
Photographs in bath
[141] T198.25-32.
[142] T198.34-38.
There were two photographs tendered that depicted the complainant in a bath surrounded by candles.[143] [AL] was approximately 8 years of age at the time of these photographs.[144] [SD] took the photographs. [SD] was in the habit of bathing the complainant each night. [AL] was extremely uncomfortable at the time. The accused was invited by [SD] into the bathroom. Whilst taking photographs, [SD] would direct the complainant to pose in different positions.
Statements to police
[143] T200.10-16.
[144] T200.21.

[AL] discussed with police what should be included in her statements. [AL] confirmed that the police did not tell her what to record in her final statement. [AL] wrote to the police in an email that one of the photos that was missing from the photo album, was a photo of [SD] inappropriately touching the complainant’s leg.[145] This was not included in the complainant’s final statement to police.
[145] T205.
[AL] was shown a draft affidavit. This document was shared between the complainant and Detective Bateman via email. The complainant stated in the affidavit, 'My upstairs neighbour was a 9-year-old boy who had diabetes and ADD, he said he'd be my friend if I had sex with him' and 'I was 6 years old and would have said no if I wasn't sexualised already by my uncle and feeling desperately isolated in Darwin away from everyone I knew'. The complainant confirmed that this event was not included in the final affidavit dated 13 July 2019.
Medication history
[AL] had been using the same brand of antidepressant and antianxiety medication, Effexor.[146] Over the last 15 years the complainant used a variety of benzodiazepines to deal with panic attacks.[147] [AL] was prescribed antipsychotic medication for a period of slightly longer than two weeks.[148] [AL] felt paranoid due to sensing that someone known to her was out to get her as they might have been a demon.[149] This episode was reported to Dr Rob Pollard, when the complainant was 23 years of age. [AL] denied ever attending any satanic rituals.[150] The complainant denied reporting to medical physicians, psychologists or psychiatrists that her memory was poor.[151] [AL] denied that her mother ever performed seances.
Relationship with [PB]
[146] T212.1-16.
[147] T213.1-13.
[148] T213.16-20.
[149] T214.5-8.
[150] T214.
[151] T215.
[AL]’s mother was in a relationship with [PB]. [AL] did not have a good relationship with [PB].[152] [PB] used to subject the family to horrific and significant abuse. [PB] used to hit the complainant ‘so hard I would fly across the room’. [PB] used to physically assault the complainant whilst in bed. The witness would enter the room and punch [AL] repeatedly. [AL] witnessed violence perpetrated by [PB] against both [SB] and [BB]. The complainant also observed violence perpetrated against [JD].[153] [SD] and [BB] lived with their father, [PB], when they were older. [AL] disclosed to the police that [PB] assaulted her mother as [JD] refused to perform a striptease.[154]
Exhibit D5 – 25 page bundle of photographs
[152] T216.
[153] T217.
[154] T224.1-4.
The complainant confirmed the contents of the photographs depicted on each page. [AL] noted that the photograph on page 14 was taken at the time when the complainant observed [SB] getting abused by the accused. This was also the dress that [AL] was wearing during the incident when the accused touched her breast.[155] [SB] was depicted in this photo. The photo was taken on Christmas day. [AL] recalled that [SB]’s hair was consistent with her haircut at the time of the incident when [AL] observed the accused performing oral sex on [SB].[156] [ID] was depicted in photograph number three. The image on page 12 was taken at a similar time to when the accused performed oral sex on [SB]. Page 18 depicted a photograph with the complainant, [BD] and the accused.
Uncharged act
[155] T226.1-4.
[156] T226.22-24.
[AL] sat on the accused’s lap from time to time. [AL] confirmed that it was normal to sit on other adults’ laps during this period. There was one occasion when the complainant felt a hard object. However, [AL] was too young to know what this was.[157] It was put to the complainant that the accused never took the complainant to the bathroom. [AL] denied this. [AL] was unsure how many times the accused took her to the bathroom.[158]
Charged acts
[157] T241.3-7.
[158] T241.29-36.
The complainant denied the proposition that the accused never exposed his penis. [AL] denied that there was never an occasion when the accused performed an act of cunnilingus on her.[159] The complainant denied that the accused never did anything sexually inappropriate towards her.[160]
Complaint to [SB]
[159] T243.
[160] T243.8-10.
[AL] did not talk in detail about the allegations against the accused to [SB].[161] [AL] did not send the draft affidavit or discuss its contents with [SB].[162] [AL] obtained [SB]’s email due to being copied into an email from the police that included the email address of [SB]. The email address of [SB]’s was obtained in November 2023. [AL] would talk to [SB] on the internet over chat.[163] [AL] was embarrassed and did not disclose the offending to [SB].[164] It was not [SB] that encouraged [AL] to make contact with the police. Instead, the police contacted [AL] in February 2019.[165] [AL]’s first contact with police was either by phone call or email.[166] [AL] did not speak to [SB] about the occasion when [AL] observed the accused performing cunnilingus on her.[167] [SB] never provided a copy of her statement to [AL]. [AL] denied colluding with [SB].[168]
Complaint to [ID]
[161] T246.11-12.
[162] T246.23-25.
[163] T247.10-11.
[164] T247.27-28.
[165] T247.31-37.
[166] T248.23-26.
[167] T249.10.
[168] T249.
[AL] denied speaking to [ID] in respect to the allegations against the accused.[169] It was suggested to the complainant that [ID] was not prepared to make allegations against the accused as nothing occurred and that [AL] had knowledge of this denial. [AL] denied knowing this. [AL] was not in contact with [ID].[170]
Exhibit D6 – Email from [AL] to Detective Bateman dated 24.04.2020
[169] T250.
[170] T250.
[AL] forwarded an email received from [SB] to the police. The email contained a screenshot of a text message from [SB]’s partner, [CM], to [SB]. The message read 'Hey [SB], [ID] is remembering the monster that [D, DJ] is. The memories were triggered by watching the TV show ‘Drawn Together’.[171] There was a second message from [SB] in reply, 'Hey, [CM], I'm sorry to hear that [ID] is having these memories triggered. It can be a very difficult thing to go through. Please let her know that I love her too. I just need some time, space away'.[172] No detail of any allegation was shared between the complainants.
Exhibit D7 – Email from Detective Bateman, dated 26.08.2020 at 2.05
[171] T256.
[172] T256.
[AL] received an email from Detective Bateman, dated 26 August 2020. The email read:[173]
[173] T258.1-26.
Hi [AL]/[SB]
Many thanks for sending this through. I just want to make sure that I understand the full picture here.
[ID] has been watching a TV program called ‘Drawn Together’.
As a result of watching this program, she has some memories which have been triggered and relate specifically to [D, DJ].
[ID] has spoken to [CM] about this who has messaged [SB], who has responded to [CM] and either she has then forwarded the message to [AL] (or [CM] has forwarded to [AL]) who has then forwarded it to me.
If I have got the sequencing correct then here are the concerns that both Ben Ward and I share:
[ID] has previously provided us a statement. If she has since been triggered into remembering things then she ought to be approaching us, that is unless she doesn't want to. But potentially having conversations with [SB] and/or [AL] (if that's what is occurring) is going to put her under a lot of scrutiny. Defence will suggest that she has ‘memories’ she’s adopted from both [SB] and/or [AL]. This has the potential to put all three of you under the pump in the event of a trial.
Based on how the information has come to our attention, it is not appropriate for us to make the approach to [ID] as we don't know whether she has confided in confidence. I would suggest that contact be made with [CM]/[ID] by either yourself [AL] or through [SB] as you both have our contact details and if [ID] wishes to pursue this she can reach out to us and we will revisit her statement with her and record any disclosures she wishes to make.
We will not be contacting [ID] or [CM] directly as she may not have wanted him to share that personal information with Police. That being said, if [ID] wishes to come forward and make a report to Police then we will support her completely throughout the process.
I have cc’d Ben WARD into this email response so that the email addresses for both of us are readily available for onward transmission to [ID] for her to consider how she would like to proceed.
Please don't think that we don't care about any of you in relation to this matter, it is because we care that we have to ensure that this is dealt with correctly.
If you have any questions then please do not hesitate to make contact.
Kind regards
Zoe.
Following the receipt of this email it was suggested that this was an invitation for [AL] to contact [ID]. [AL] denied this assertion.[174] [AL] did not believe that Detective Bateman provided an invitation for [AL] to speak to [ID] within the email.[175] Eventually, [AL] learnt that [ID] amended her statement and made allegations against the accused.[176]
[174] T258.35.
[175] T259.3-7.
[176] T259.16-20.
Cross-examination (Mr Kane)
[AL] confirmed that the first occasion occurred before the complainant attended school. The second incident occurred once the complainant commenced schooling on a school day.[177] [AL]’s memory of the events was ‘fuzzy and all blur together’.[178]
First incident
[177] T261.5-14.
[178] T263.7-9.
The accused heard a knock at the door and immediately moved away from the complainant.[179] When [BD] entered the room, there was no sexual act being performed by the accused.
Second incident
[179] T265.
[AL] confirmed there was a possibility of a large amount of people in the house at the time. However, [AL] primarily remembered [BD] opening the door. [BD] did not enter the room. [AL]’s memory was not as strong regarding the second incident in terms of the clothing that was worn at the time.[180] [AL] disagreed that there had never been an occasion when [BD] was present when the complainant was dressed in an inappropriate manner.[181]
[180] T267.1-8.
[181] T268.35-38.
Re-examination
[AL] was admitted to a psychiatric hospital at 15 years of age. One of the contributing factors was due to the abuse perpetrated by [PB]. Further, the childhood trauma, domestic violence and incidents with the accused contributed to the complainant’s admission to the psychiatric hospital.[182] [AL]’s psychiatric and psychological issues were always present but grew stronger at ages 11 to 15 when it reached a tipping point.[183]
[182] T270. 3-8.
[183] T270.23-26.
[AL] did not speak to [DFL] regarding the offending perpetrated by the accused. [AL] attempted to disclose the domestic violence perpetrated by [PB] to [DFL], but she ignored this. Thus, the complainant did not disclose the incidents with the accused.[184]
[DFL]
[184] T273.
Examination in-chief
Background
[DFL] is [AL]’s grandmother. The witness’s son is [DL]. [DL] is married to [JD]. [AL] was the flower girl at the wedding. From when [AL] was a baby, [DFL] used to see [AL] at least every week. [AL] lived in Prospect with her parents. [DL] and [JD] separated when [AL] was approximately 3 years of age.[185] [AL] moved to Darwin with [JD] at some stage after the separation. [DFL] continued to see [AL]. [AL] flew back to Adelaide to stay with [DFL] from time to time. [AL] was approximately 7 years of age during this time. [AL] would visit during school holidays and Christmas holidays.[186] [AL] would spend time with both her grandparents when visiting Adelaide.[187] [DFL] collected [AL] from the Woodside property on occasion. [DFL] would pay for [AL]’s airfares when the complainant resided in Darwin. There was an occasion when [AL] travelled back to Adelaide via car and another time via bus.[188]
Relationship with [AL]
[185] T281.
[186] T282.
[187] T282.32-34.
[188] T284.1-2.
[DFL] always maintained a strong relationship with [AL].[189] When [AL] stayed with [DFL] in Adelaide they would go shopping, attend the movies or the park.[190] [DFL] described [AL] as a bit shy, but enjoyed drawing and dressing up when visiting.[191]
[189] T284.28.
[190] T285.3-6.
[191] T285.10-12.
Cross-examination (Mr English)
Background
[DFL] gave a statement dated 23 January 2020 to police and spoke to Detective Ward. Upon reviewing the statement, the witness believed that [AL] was 12 months old at the time of [DL] and [JD]’s wedding.[192] [DFL] was taken through various photographs of the wedding and confirmed their contents. [DFL] confirmed that in one of the photographs, [AL] appeared approximately only 4 weeks old. However, this was not at the weeding.[193]
[AL]’s trips to Adelaide
[192] T287.
[193] T288; Exhibit D2.
[DFL] paid for [AL]’s flights through Qantas on approximately three to four occasions.[194] [AL] was approximately 7 years of age when the complainant started flying from Darwin to Adelaide. However, [DFL] accepted that [AL] could have been younger.[195] [DFL] confirmed in cross-examination that [AL]’s time was split between the two grandparents when [AL] visited.[196] [DFL] would also take [AL] to the airport and collect the complainant from the airport.[197] [DFL] ceased paying airfares for [AL] when the complainant was approximately 9 years of age.
[DFL] relationship with [SD]
[194] T290.1-2.
[195] T290.20-24.
[196] T291.
[197] T293.32-38.
[DFL] had a sound relationship with [AL]’s other grandmother, [SD]. [DFL] did not visit [SD]’s house and vice versa, but would see each other when they visited [JD] and [DL]’s home.[198] [DFL] liaised with [SD] in respect of arrangements for [AL] attending each other’s house when [AL] was in Adelaide, albeit not relatively detailed discussions.[199] [DFL] gave evidence that [AL] looked forward to visiting [SD].[200] When [AL] returned from [SD] and [BD]’s house, [AL] did not appear different.[201]
[BB]
[198] T292.18-19.
[199] T293.
[200] T293.16-18.
[201] T294.14-15.
Examination-in-chief
Background
At the time of giving evidence [BB] was 27 years of age. [BB]’s parents were [JD] and [PB]. [BB]’s elder stepsister is [AL]. [AL] was approximately 6 years of age when [BB] was born. [SB] is [BB]’s younger sister. [BB] relocated to Adelaide in approximately 2000, when the witness was 6 to 8 years of age. [BB]’s grandparents are [SD] and [BD]. The accused is [BB]’s uncle.
Woodside property
[BB] retained fond memories of visiting the Woodside property. [BB] described [SD] as an ‘awesome pommy lady’. [BB] described [BD] as a great grandpa. [BB] stated, ‘I even thought [the accused] was awesome until I found out all this stuff, yeah’.[202] [BB] used to love visiting the Woodside property every Christmas. [BB]’s earliest memory of attending the property was in 2000, when in year one at school. [BB] used to visit the Woodside property every Christmas.[203] [BB] would attend the Woodside property every Christmas when residing in Cairns.[204] The accused was present when [BB] would visit the Woodside property.[205] [BB] did not visit the property alone until later when the witness was approximately 14 or 15 years of age.[206] [BB] noted that [AL] did not visit the Woodside property regularly.[207] [BB] would play video games with the accused in the accused’s bedroom.[208] [AL] and [SB] were also in the room playing video games with the accused from time to time.[209] [BB] was sitting on the bed next to the accused when playing video games.[210] [BB] did not observe any inappropriate conduct occurring in the accused’s bedroom.[211]
[202] T296.38; T297.1.
[203] T297.8-9.
[204] T297.12-15.
[205] T297.19-22.
[206] T297.28-33.
[207] T298.6-10.
[208] T298.28-32.
[209] T298.33-36.
[210] T299.9-12.
[211] T299.17-20.
Cross-examination (Mr English)
[BB] loved attending the Woodside property and had great memories. As a child, [BB] thought the accused was ‘one of the most awesome people ever’.[212] [BB] viewed the accused as a hero.
[JD]
[212] T300.6-12.
Examination-in-chief
Background
[JD] was born on 5 August 1969. [JD] has five children. [AL] is the eldest child. [AL]’s father was [DL]. [JD] had two children with [PB], namely [BB] and [PB]. [JD]’s parents were [BD] and [SD]. [BD] was [JD]’s stepfather. [JD]’s family moved from England to Australia when the witness was 12 years of age.[213] The witnesses’ siblings that resided in Australia were [MD], [RD] and the accused.[214] [JD] was closest to [MD]. [JD] stated that [AL] was 2 years of age when the witness married [DL].[215] [AL] did not play a role in the wedding. [AL] was the flower girl in [JD]’s wedding with [PB]. After [AL] was born, [JD] used to attend the Woodside property with [AL] once a week. [216] [AL] was approximately 2 or 3 years of age when [JD] separated with [DL].[217]
Woodside property
[213] T301.
[214] T302.19-21.
[215] T303.2-14.
[216] T303.28-30.
[217] T304.
When [AL] and [JD] attended the Woodside property, [AL] would watch TV, play games, and also go into the accused’s room. [218] The witness confirmed the accused’s room was downstairs and there were two doorways to access the bedroom.[219] The doorway that opened to the kitchen was the doorway that was commonly utilised.[220] There was a toilet and laundry downstairs and two bedrooms and a bathroom upstairs. [221] [JD] believed that [AL] made three to four trips from Darwin to Adelaide. [AL] was alone during these trips.[222]
[218] T304.29-34.
[219] T305.1-12.
[220] T305.16-24.
[221] T305.26-29.
[222] T307.
All three children visited the Woodside property when they resided in Adelaide. This occurred approximately once a week. Each time the visit lasted about three hours. [BD] was a welder and would work 7.00 am to 5.00 pm on weekdays. The accused did not work at the time. [SD] was a nurse’s assistant. The Woodside property was kept in a clean and tidy state. [SD] was always cooking and cleaning.[223]
Highbury property
[223] T316; T317.
[JD] lived in a house in Highbury with [AL], [BB] and [SB] when they returned to Adelaide from Darwin. [224] The accused visited this property and stayed overnight. [JD] slept in the bedroom with the three children.[225] The accused slept on the lounge. The accused slept at the house on approximately three or four separate occasions.[226] On an occasion the accused entered the witness’s bedroom and attempted to wake up [AL]. [JD] stated, 'Get out', 'Leave her alone, get out'.[227] The accused entered the bedroom sometime around midnight to 3:00am. There was a hall light on at the time. [JD] observed the accused bending down and touching [AL]. [AL] was on a floor mattress. [JD] heard the accused say '[AL]'.[228] The accused shook [AL]’s shoulder.[229] [JD] stated to the accused, 'What are you doing? Leave her alone'.[230] [AL] was approximately 8 or 9 years of age when this incident occurred. The accused did not attend this residence again.
Observations of [AL] and the accused
[224] T312.16.23.
[225] T312.
[226] T313.12-14.
[227] T313.27-28.
[228] T314.2-11.
[229] T314.
[230] T314.30.
[JD] observed [AL] in the accused’s room whilst the accused was present.[231] [JD] witnessed [AL] and the accused in the bathroom upstairs on one occasion.[232] [JD] was downstairs at the time and heard [SD] yell ‘Where’s [AL], where’s [the accused]?’. [JD] walked to the bathroom. [SD] was at the bathroom door and requested that [AL] and the accused ‘get out’. [SD] was banging on the bathroom door. The witness yelled out ‘What are you doing?’ and ‘Open the door, open the door'. The door was opened but it took some time. The accused never responded. When the door opened, [AL] returned back downstairs to the loungeroom with the witness and [SD]. Both [BB] and [SB] were not present on this occasion.
[231] T309.8-10.
[232] T309.20-27.
The accused had possession of a number of games, both physical and digital video games that were in the accused’s room.[233] [JD] only saw [AL] playing in the accused’s room.
[233] T311.20-23.
[JD] did not see any inappropriate conduct or contact between the accused and [AL] or [BB]. [JD] recalled an occasion when the accused had [SB] on his knee. [234]
[AL]’s hospitalisation
[234] T317.25-29.

[AL] was admitted to hospital at approximately the age of 15 due to a suicide attempt.[235] [JD] provided [AL] a photo album whilst in hospital.
[235] T317.30-33.
Cross-examination (Mr English)
Bathroom incident
[AL] was approximately aged between 4 and 6 years of age. The witness could not recall what [AL] was wearing on this occasion. [JD] did not know what haircut [AL] had at the time.[236] [JD] was unsure if [RD] was present. [JD] did not know if it occurred on a weekday or weekend. [JD] was living in Newton at the time of this incident.[237] The witness rejected the proposition that the incident never occurred.[238]
Highbury incident
[236] T318.7-25.
[237] T319.
[238] T322.
The incident that took place at the Highbury address occurred after the bathroom incident. [JD] was concerned about the prior incident in the bathroom, so slept with the children. [JD] was scared at the Highbury address. Consequently, the witness invited the accused to stay over. [JD] believed that there may have been spirits moving around the house that were setting alarms off.[239] [DFL] provided the furniture for the Highbury residence. It was [DLF]’s deceased mother’s furniture. This caused the witness to be further scared and fearful of the furniture. [JD] rejected the proposition that this incident did not in fact occur. [240]
[PB]
[239] T323.
[240] T324.
Examination-in-chief
Background
[PB] was born in 1968. [PB] was in a relationship with [JD] for a period of time. In the course of the relationship, they had two children, [SB] and [BB]. They lived in Darwin. [AL] resided in Darwin as well. [AL] was 5 years of age when the family moved to Darwin. The relationship between the witness and [JD] broke down in 2000. [JD] left Darwin with the three children and returned to Adelaide. [JD] and the children then moved to Cairns. [PB] continued seeing the children during holidays. [PB] returned to live in the Riverland, South Australia. Both [SB] and [BB] lived with [PB] in the Riverland in approximately 2012. [BB] first relocated before [SB].[241] [SB] was approximately 14 and [BB] was 17 years of age at the time of relocating to the Riverland.
Woodside property
[241] T326.
[PB] attended the Woodside property frequently. When [PB] lived in Darwin they would visit during Christmas Holidays and stay at the property. [AL] would also attend the Woodside property alone when they lived in Darwin. The witness recalled the layout of the property. When [PB] visited during Christmas they would stay in the loungeroom downstairs.[242] [PB] confirmed that the accused lived at the Woodside property. [PB] believed that the accused lived in both a bedroom on the ground floor and then a bedroom on the first floor at differing points in time.[243] [PB]’s children spent time with the accused in the accused’s room.[244] The witness observed the children play video games when they were in the accused’s bedroom.[245] [PB] observed [AL], [BB] and [SB] all in the accused’s room on certain occasions.
Christmas holidays incident
[242] T328.28-30.
[243] T329.6-8.
[244] T329.9-11.
[245] T329.19-21.
[PB] observed an incident that occurred when [AL] was in the accused’s room. [AL] was approximately 6 years of age. The incident occurred over the Christmas holidays. [PB] went to the bathroom upstairs and the accused was staying in the bedroom next to the bathroom. The bedroom door was shut. The witness opened the door. [AL] was sitting on the edge of the mattress on the floor playing a video game. The accused was lying on the bed. This was the same bed that [AL] was sitting on. The accused quickly pulled the covers over himself when [PB] opened the door. [PB] stated 'How are you going? Everything all right?'.[246] [AL] turned around and looked back behind. The accused was behind [AL]. The accused’s hip was touching [AL]’s backside.[247] Once the accused pulled the covers up, [PB] could only see from the accused’s shoulder to head. [PB] then left the room.
[246] T331.1-9.
[247] T332.1-10.
Cross-examination (Mr English)
[PB] stayed in the bedroom on the ground floor of the Woodside household when they visited over Christmas.[248] [PB] understood that the accused moved from his usual bedroom and instead resided in [RD]’s room on this occasion.[249] [PB] believed that [RD] was present on this occasion.[250] The witness confirmed there were only three bedrooms in the house. The accused usually occupied the room on the first level.[251] [PB] confirmed that on this occasion, there was both a mattress on the floor and a bed in the bedroom upstairs ([RD]’s bedroom).[252] [PB] could not recall the time that the incident occurred but believed it to be the morning. There was only one bathroom upstairs. [PB] agreed that it was a busy household at the time. The witness rejected the proposition that the accused never pulled the blankets up.[253] [AL] was fully clothed at the time. [PB] thought that what was observed was ‘a bit unusual’.[254] However, the witness did not raise this concern with the accused ‘Because you give the benefit of the doubt at the time that it wasn't unusual’.[255] [PB] disclosed what occurred to [JD] at some point later in time. The witness told police 'This is the only thing I ever saw or witnessed and had thought nothing more of it'.[256] [PB] further told police 'I've told [SB] that I saw something with [AL] and the accused and that I now believe the accusations'.[257]
[248] T334.
[249] T335.11-13.
[250] T335.14-16.
[251] T335.21-28.
[252] T336.23-25.
[253] T338.
[254] T339.1.
[255] T339.3-4.
[256] T340.16-20.
[257] T340.25-28.
Given the suggested reason for [PB]’s change in his assessment of this incident, namely the surfacing of the allegations against the accused, I do not give this evidence any weight. It is clear that [PB]’s perception has been influenced by subsequent events.
The witness also disclosed to police that there was an occasion in which the witness heard a rumour within the family that [AL] had been interfered with by the accused.[258] As a result of this information, [PB] spoke to [SB] regarding this information. [PB] did not agree with the proposition that [PB] reconstructed the scenario provided to assist [SB].
Domestic violence
[258] T340.29-33.
[PB] denied assaulting [JD] when they resided in Darwin. [PB] denied ever assaulting [AL].[259] The witness denied ever assaulting [BB] or [SB].[260]
Complainant [ID]
[259] T343.14-22.
[260] T343.29-33.
Examination-in-chief
Background
[ID] was 24 years of age. The witnesses’ parents were [CS] and [MD] who have since separated. [ID]’s grandparents on her father’s side of the family were [SD] and [BD]. The witness’s uncles were [RD] and the accused. The witness’s aunty is [JD]. [ID] grew up in Adelaide. The witness attended the Woodside property on a regular basis. [SB] and [BB] would be at the house, when [ID] visited. [BB] and [SB] are [ID]’s cousins. The accused lived at the residence for the majority of the time that [ID] would visit.[261] The accused moved out of the Woodside property at some point with [RD].[262] [ID] would see [BB] and [SB] approximately once per year after they moved to Queensland.[263] [ID] stayed the night at the Woodside property regularly.[264] [ID] would also visit for a few hours at a time for events such as barbecues.[265] [ID] slept over at the Woodside property by herself before her sister [MD] was born. [ID] would play video games with the accused.[266] The accused would bring the video game console to the loungeroom and plug it into the TV.[267] [ID] noted that the accused’s room varied between level 1 and level 2 of the house. [268] There were occasions when [ID] would attend the accused’s home, and the accused was not present.
[261] T347.
[262] T348.1-2.
[263] T348.36-38.
[264] T349.6-7.
[265] T349.13-15.
[266] T349.37-38.
[267] T350.21-23.
[268] T351.1-4.
The accused would assist [ID] in learning how to play video games. [ID] would sit on the accused’s lap and direct [ID] as to the controls of the game.[269]
Relationship with [SB]
[269] T352.8-12.
[ID] considered [SB] her best friend growing up and when visiting the Woodside property.[270] [ID] and [SB] would play games together at the accused’s house. [ID] was approximately 5 years of age when [SB] relocated to Darwin. [ID] observed [SB] with the accused.
TV show incident
[270] T353.6-8.
[ID] would watch the television program ‘Drawn Together’ with the accused.[271] [ID] was approximately 7 to 9 years of age. [ID] watched the program downstairs in the accused’s bedroom. [ID] and the accused both sat in the centre of the bed with their backs against the back of the bed.[272] The lighting in the room was dark and the TV light was the only light in the room. [ID] believed [SD] was also present but could not be certain.[273] The accused ‘fondled [ID]’s private area, played with, touched, fingered through [ID]’s clothes and attempted to get through [ID]’s clothing’.[274] By ‘private area’, [ID] referred to her vagina. [ID] was clothed at the time. The accused was also clothed. The accused rubbed his fingers against [ID]’s clitoris and attempted to insert his fingers into the complainant’s vagina. [ID] did not know how long this incident lasted. [ID] did not say anything to the accused. The accused did not say anything to [ID].[275]
Video game incident
[271] T354.1-3.
[272] T355.2-3.
[273] T355.9-10.
[274] T356.10-12.
[275] T356.32-38.
An incident occurred when [ID] was playing the video game ‘Donkey Kong’. The complainant was approximately 3 or 4 years of age. The complainant was in the loungeroom. [SD] may have been home. No one else was present in the house. [ID] was sat on the accused’s lap. [ID] was playing the video game. [ID] felt something hard poking against the complainant’s lower back region. The complainant was clothed at the time. [ID] was wearing a dress and had underwear on.[276] The accused was wearing shorts and a t-shirt. [ID] did not recall seeing the hard object. The complainant described the feeling as an erection poking against her.[277] The complainant believed this type of incident occurred on two occasions.
[276] T358.1-17.
[277] T358.22-24.
In respect to the second similar incident, the complainant was wearing a t-shirt and shorts. [ID] was approximately the same age. The incident again occurred whilst the complainant was playing a video game in the loungeroom with the accused. The complainant felt the same hard object poking against her lower back region. The complainant did not remember how either incident ended.
First incident with [SB]
[ID] did not know her age when this incident occurred but recalled that she was old enough to attend the bathroom alone.[278] The complainant observed [SB] and the accused in the accused’s’ room downstairs. The accused was on the bed and [SB] was standing in front of the accused.[279] The complainant believed that [SD] was also present in the house. [ID] observed [SB] performing an act of fellatio on the accused. The complainant was walking to the toilet at the relevant time. [ID] did not interact with [SB] or the accused when this incident occurred. The accused wore a t-shirt and shorts, which were slightly pulled down.[280] [SB] was clothed. The accused had his hand on the top of [SB]’s head. [SB]’s head was moving in an up and down motion. [ID] then attended the bathroom.
Second incident with [SB]
[278] T360.24-26.
[279] T360.33-34.
[280] T362.1-2.
The complainant was approximately the same age as when the first incident occurred. Both [SB], the accused and potentially [SD] were present in the house at the time. [ID] and [SB] performed oral sex on the accused on this occasion. [ID] and [SB] were in the accused’s bedroom downstairs.[281] They both entered the accused’s room. The accused exposed his penis and was sitting on the bed. The accused was wearing a t-shirt and shorts that were slightly pulled down. Both [ID] and [SB] were clothed. The accused placed his hand on both [ID]’s and [SB]’s head when they performed oral sex on the accused. The accused’s penis was moved back and forth into both [ID]’s and [SB]’s mouths. The complainant did not know how long this conduct occurred for.
Third incident
[281] T363.9-15.
The complainant attended the Woodside property and recalled being hungry. [ID] was approximately 3 years of age.[282] [ID] was watching the television program ‘King of the Hill’ with the accused. The complainant did not believe any other individuals were in the house at the time. [ID] felt hungry and started to cry. The complainant requested something to eat. The accused then took the complainant by hand into the kitchen, exposed his penis and ejaculated in the complainant’s mouth.[283] The complainant could not recall what the accused did between putting his penis into the complainant’s mouth and ejaculating.[284] The accused’s penis was erect. The complainant did not recall what occurred after the accused ejaculated besides ‘gagging’ at the time.[285]
Fourth incident
[282] T368.
[283] T369.12-14.
[284] T370.13-15.
[285] T370.28-29.
The accused collected the complainant from the complainant’s mother’s house. [ID] was approximately 7 years of age. Prior to being collected by the accused, [ID] had attended school. The accused collected the complainant in his car and drove [ID] to the Woodside property. The complainant sat in the passenger seat next to the accused.[286] It was approximately a 45 minute drive between the two houses. The accused placed his hand on the complainant’s leg then slowly moved it towards the complainant’s genitals before then placing his hand into the complainant’s underwear.[287] The complainant was wearing underwear and pants. The accused touched the complainant’s thigh with his left hand. The accused placed his hand under the top of [ID]’s underwear and put a finger inside the complainant’s vagina.[288] The accused brought the complainant a present after the incident.
Complainants [SB] & [AL]
[286] T371.
[287] T372.5-7.
[288] T373.
[ID] was aware that [SB] made allegations of improper behaviour against the accused.[289] The complainant learnt this information at 12 years of age. [SB] did not disclose any detail of the allegations. [ID] learnt that [AL] made allegations of impropriety against the accused.[290] The complainant was again 12 years of age. [ID] did not learn any specific details of the allegations in respect of [AL] and the accused.[291] [ID] had one conversation with [SB] regarding the incident that involved both complainants. [ID] had never spoken to [AL] regarding any detail of inappropriate behaviour perpetrated by the accused. [ID] had never said words to the effect of 'Uncle [D, DJ] did inappropriate things to me' to [AL].
[289] T374.3-7.
[290] T374.17-20.
[291] T374.35-37.
Cross-examination (Mr English)
Relationship with family members
[ID] shared a close relationship with [SB] and were inseparable as children.[292] [ID] did not have a strong relationship with [AL]. Since becoming an adult, the complainant still did not maintain a strong relationship with [AL].[293] [ID] blocked [AL] on Facebook due to differing views in respect of COVID. [294] They did not exchange any phone calls or messages. They met in person on one occasion in 2021 at [JD]’s house for dinner. There was no discussion at this dinner regarding the allegations against the accused. [SB] was also called over the phone on this occasion for a brief time.
Communication with [SB]
[292] T376.6-8.
[293] T376.17-28.
[294] T376.30-34.
Prior to the dinner, [ID] would still contact [SB] regularly and each would provide updates regarding their respective lives.[295] [SB] relocated to the Netherlands in 2018. The complainant’s predominately communicated via Instagram Messenger.
February 2019 statement
[295] T380.9-13.
The complainant provided two statements to police. The first statement was an affidavit dated 22 February 2019. In this statement the complainant told police that she had no memory of the accused ever engaging in any inappropriate behaviour.[296] [ID] reported to police that she never witnessed the accused do anything inappropriate with any other child.[297] The complainant told police, that if anything was observed, the complainant was too young to remember.[298] The complainant told police that she never saw the accused as the accused was always in his room.[299] [ID] told police that she did not have much to do with the accused and only saw the accused at family events.[300] The complainant disclosed to police that she did not remember the accused being alone with any of her cousins, including [SB]. [ID] recalled playing ‘Donkey Kong’ with the accused. The complainant told police that she did not remember having contact with the accused when playing the game. The complainant had no memory of playing any other sort of game. The complainant told police at this time that she had no independent memory from this period of her life.[301]
[296] T382.19-22.
[297] T382.23-25.
[298] T382.26-28.
[299] T382.29-32
[300] T382.33-38.
[301] T383.
[ID] disclosed to police that [SB] messaged her on Facebook.[302] [SB] had messaged to discuss a serious matter immediately. [ID] and [SB] then had a phone conversation. [ID] did not recall what was discussed during this phone call. [ID] confirmed that her father informed her that the accused had been arrested for sexual offences that involved [SB] in 2019. [ID] did not speak to [SB] after this information was revealed in respect to the complaint.
February 2021 statement
[302] T384.20-22.
[ID] provided a subsequent statement to police in February 2021. The statement contained numerous episodes of sexual abuse perpetrated by the accused against the complainant. The allegations involve not only [ID] but also [SB]. [ID] agreed this was in complete antithesis to the previous statement in February 2019.[303] The inconsistencies between the versions given were accepted. The complainant denied being in regular contact with both [AL] and [SB] during the period of the first statement in February 2019 and the second statement in February 2021.[304] [ID] denied that [SB] and [AL] applied pressure to alter her position in the original statement.[305] In the February 2019 affidavit, the complainant disclosed to police that she was never alone with the accused in circumstances where the complainant’s father was not present.[306]
Recollection of incidents
[303] T387.1.
[304] T392.
[305] T393.1-6.
[306] T398.32-37.
[ID] first recalled the offending in April 2022, at the beginning of the complainant’s pregnancy.[307] Up until this time, the complainant had no memories, but recalled several times questioning whether the incidents occurred.[308] The reason why the complainant was able to recall the events was because the memories were triggered by certain subsequent events.[309] The reason why the complainant could not recall the incidents was due to the complainant’s now recalled memories that were repressed.[310] [ID] explained ‘in order for my brain to protect itself, it locks those memories away so that I could not access them until I was in a safe enough environment to do so’.[311]
[307] T394.4-9.
[308] T394.17-21.
[309] T394.22-26.
[310] T394.27-30.
[311] T394.31-35.
The first trigger event of the memories being reimagined was when the complainant was eating dinner with [CM] and was watching a TV show called ‘Archer’. One of the characters from the TV program appeared to resemble another character. [CM] questioned if the complainant meant a character from the TV program ‘Drawn Together’.[312] They then searched ‘Drawn Together’ on YouTube.[313] This then triggered the memory of the incident when the complainant was in the accused’s bedroom watching ‘Drawn Together’.[314] The complainant then had glimpses of this specific incident but could never place exactly what occurred until observing the clip on YouTube.[315]
[312] T395.
[313] T396.8-11.
[314] T396.37-38.
[315] T397.13-17.

There are a number of aspects to the ROI that require further discussion. The demeanour of the accused during the record of interview reveals nervousness and uncertainty. There is, on occasion, what appears to be an attempt to search for what might be considered to be a satisfactory answer. The answers were often also curious at best and suspicious at worst. At this stage I make it plain that great care must be taken in relation to an assessment of the demeanour of the accused. Over emphasis on demeanour must be avoided, particularly when there may be an alternative innocent explanation for the exhibited behaviours, such as nervousness when being taxed by police upon serious allegations.
An analysis of the responses of the accused to questioning following his disclosure of biting [SB] on the bottom is instructive. The response of the accused following being confronted by police with performing cunnilingus on [SB] in stating that inferentially that this might be explained by an occasion when the naked 3 year old child was in his bedroom for five to ten minutes when he was “messing around” by biting [SB] on the bottom when he was waking up is, in my view, unbelievable. I do not accept this explanation proffered by the accused.
Similarly, I do not accept the similar incident volunteered by the accused as to a suggested interaction with [AL], which, unlike the above alleged interaction with [SB] was not charged. This disclosure related to an incident when the accused was apparently awoken by a clothed [AL] in his bedroom playing a computer game. The accused described waking and, without any satisfactory explanation, biting a similarly aged [AL] on the buttocks through her clothing. As was stated by the interviewing police officer, there is a big leap from playing computer games to biting her on the bum, and the answer emphasised in the extract from the record of interview above is, in my opinion, wholly unsatisfactory. This answer also needs to be viewed with the unsatisfactory demeanour from the video of the record of interview at that particular stage. Again, I remind myself against over reliance upon demeanour in an overall assessment of the version given by the accused.
Given the problems that exist with the record of interview, I do not accept the denials of the accused as being reasonably possibly true. Further, I am not prepared to accept that the described acts of biting the buttocks of [SB] and [AL] as being reasonably possibly true.
Having made these findings, this does not add to the prosecution case. It is not makeweight for the Crown. I remind myself that at all times it is for the prosecution to prove its case beyond reasonable doubt.
The prosecution case is solely reliant upon the evidence of each of the complainants being accepted as both truthful and reliable beyond reasonable doubt.
Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of the complainants’ evidence, it is trite to say that the prosecution case stands or falls on an acceptance of each of the complainants’ evidence as to whether the sexual acts took place, beyond reasonable doubt.[443]
[443] Murray v The Queen (2002) 211 CLR 193 [57].
It is apparent from the above that the only evidence of any unlawful sexual act is the evidence given in Court. The prosecution case cannot succeed unless the complainants’ evidence satisfies me beyond reasonable doubt of the commission of the charged acts. Whilst I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of their evidence, in light of the significance of their evidence to the prosecution case, a doubt about one aspect of each of the complainant’s reliability or credibility as regards one topic would clearly be an important consideration when considering whether I could accept the evidence on another topic or issue.
In evaluating the evidence of each complainants’ evidence in Court, I must not overlook that no aspect of the evidence must be evaluated without considering the whole of each complainants’ evidence and the balance of the evidence. Matters which might be said to impact adversely upon their honesty and reliability must be considered in the context of the evidence as a whole.
The real issue is whether the prosecution has established beyond reasonable doubt the particularised sexual acts on the Information occurred.
Incident with [SB] – count 2
The evidence relied upon by the prosecution to prove count 2 is the narrative of [AL] and her observations of the accused performing cunnilingus on [SB]. [AL] stated that [SB], [BB] and [AL] were all present in the bedroom of the accused when this incident occurred. [AL] stated she was approximately 12 years old, [BB] 6 years old and [SB] 3 years old. On [AL]’s evidence, [BB] observed what was said to be occurring and [AL] left to seek assistance from her mother [JD], who ignored her.
[BB] in evidence stated that he would attend the Woodside property from time to time from the age of 6 upwards and would play video games in the accused’s bedroom with the accused and sometimes [AL] and [SB].
[BB] stated that he never saw anything inappropriate happen at all, including when there were people other than the accused and [BB] in the bedroom.
[JD] gave evidence and made no mention of the incident.
[SB] gave evidence disclosing another instance of abuse at the hands of the accused, but did not describe this incident.
In considering whether the prosecution has proved count 2, I take into account all of the evidence and the findings I have made in relation to the propensity of the accused to act upon his sexual interest of the complainants. The evidence of [AL] needs to be considered in conjunction with the other evidence to determine whether the elements of the offence have been provided beyond reasonable doubt.
The evidence of the propensity of the accused to act upon the sexual interest he had in his young relatives, notwithstanding the risk of detection which existed by the presence of other people in the house, strengthens the prosecution case on count 2.
Using this established propensity in evaluating the evidence of count 2 and noting that I have not engaged in sequential reasoning excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count, I harbour a reasonable doubt that arises from the overall state of evidence, including the absence of evidence from [SB] and the evidence of [BB] and [JD].
I find the accused not guilty on count 2.
In reaching this conclusion on count 2, I have carefully considered what, if any, impact this has on my assessment of the credibility and reliability of [AL] and count 1. This formed part of the overall analysis as to whether the prosecution had proved count 1 beyond reasonable doubt. Whilst I entertain a doubt on count 2, this is to be distinguished to count 1, where [AL] was describing incidents of sexual abuse perpetrated upon her by the accused. [AL]’s evidence of describing those acts remains intact and my finding on count 2 in no way impacts upon my finding on count 1.
Complainant [SB]
Suggested lack of detail and lack of recollection
Count 3
The prosecution conceded correctly in its closing address that [SB] ‘was admittedly much less detailed in her account’[444] as to the charged offence comprising count 3. I respectfully agree with this description. Whilst [SB] came up to proof on the charged incident, it was effectively devoid of any further detail. I accept that difficulties in detail may be expected from time to time when dealing with such historical matters, however there is almost a complete absence of any contextual evidence. This is of some concern, particularly given the firm stance taken by [SB] about having been repeatedly sexually abused, yet only having ‘one solid memory’[445] of any particular incident of sexual abuse.
Lack of memory generally
[444] T595.27.
[445] MFI D8.
The lack of memory expressed by [SB] during the course of her evidence includes and extends beyond the detail of the charged incident giving rise to count 3.
[SB] said that she could have been 4 years of age at the time of the incident. She admitted reconstructing some detail in her evidence, despite not having an actual memory of the reconstructed detail.
Moving to events closer in time, [SB] expressed an inability to recall discussions with her friend [LO] (who has a law degree), about making a report to police and the legal process, repeatedly stating that she did not recall or had no memory about the content of these conversations.
In terms of [SB] communicating with [ID], [SB] was at times evasive on this topic. During the course of her evidence, when being asked about the electronic communications contained in D8, the following exchange took place:[446]
[446] T488.24-38 – T489.1-34.
QBut after 12 March you continued to have communication with [ID], didn't you.
AShe is my cousin and we were experiencing incredibly emotionally intense things and we relied on each other for emotional support from time to time.
QNow, you have before you D8, which is a Facebook Messenger conversation between you and [ID].
AYes.
QI think I referred you yesterday to a date, 21 April on p.16 of the document.
AYes. P.16. Yes, I can see it.
QAll the conversations that occur before that date on 21 April are one continuous conversation that occurs one day between you and [ID], that's correct, isn't it.
AThat is correct.
QSo, between 12 March and 21 April 2020, were you in communication with [ID].
ASorry, can you repeat those dates?
QYeah. Between 12 March 2020, the last of the email exchanges between you and the police, and 21 April 2020, when you were having the Facebook Messenger conversation with [ID], did you have any other conversations with her or any other communications with her.
AWith [ID], aside from this Facebook communication?
QThat's right, yes.
AI'm sorry, I'm not sure I understand the question. Between the dates - yes, can you repeat that?
QLet me put it in this way: between 12 March and 21 April 2020 about five weeks goes by.
AOkay.
QYou understand that.
AYes.
QIn that five-week period, did you have communications with your cousin [ID].
AIf that's the date -
HIS HONOUR: Do you mean over and above this conversation?
MR ENGLISH: In any way whatsoever.
ADo you mean aside from this conversation that we had here?
XXN
QAny communication at all, whether it be a telephone conversation, email or whether it be Facebook Messenger.
AI cannot recall every conversation I've had with my cousin.
QI'm not asking you to recall every conversation, I'm asking whether or not you communicated with her during that five-week period, in any way at all.
AI cannot say with certainty.
Having regard to [SB]’s evidence generally, I was left with the impression that not only did the witness struggle to recall detail, but in addition, on occasion proffered an asserted lack of memory in order to escape from being pressed for detail. The above extract from [SB]’s evidence is but one example of this. [SB] regularly retreated to the Alamo of ‘I don’t know’ or ‘I don’t recall’ when being pressed for detail. Again, whilst I accept that on occasion a witness might not reasonably remember detail, I formed the distinct impression that such answers were deployed by [SB] from time to time in an attempt to thwart the cross-examiner.
I do not doubt that [SB] genuinely believes that she was sexually abused by the accused. However, her reliability as a witness and the other faults to which I have referred are problematic.
In assessing whether I can rely upon the evidence of [SB] in proof beyond reasonable doubt of count 3, in addition to [SB]’s evidence, I bring to bear the evidence of the propensity of the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house. I also bring to bear improbability of account reasoning based on the accepted evidence of sexual offending against [AL] and the evidence given by [SB].
The evidence of [SB] has relevant similarities with evidence that I have accepted from [AL] which I repeat here:
·       that the relevant incident took place whilst the complainant was positioned on her back on the bed of the accused, with the accused kneeling or crouching from the foot of the bed;
·       the complainants were partially clothed and the accused had removed some of their clothing;
·       the accused performed the act of cunnilingus upon the complainants; and
·       that the complainants were effectively non-responsive to the sexual act taking place.
There is an underlying unity between this aspect of the evidence and the evidence of [AL] is admissible on count 3 on the basis of improbability reasoning. As previously stated, the probative value of this evidence outweighs its prejudicial effect. I remind myself that it is impermissible to use discreditable conduct to suggest the accused is a bad person and more likely to have committed the count being considered because he engaged in discreditable conduct not the subject of the count being considered. I am satisfied the evidence of discreditable conduct can be kept sufficiently separate and distinct from the impermissible use.
The two additional items of evidence, propensity and improbability of account reasoning, significantly strengthen the case of the prosecution against the accused on count 3. I have specifically not engaged in sequential reasoning, excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count. Factoring in the established propensity evidence, similarity of account reasoning and having regard to all of the admissible evidence on count 3, I harbour a reasonable doubt about the credibility and reliability of [SB].
I find the accused not guilty of count 3.
Record of interview of accused
Count 4
Proof of count 4 in relation to the complainant [SB] relies on what is said to be an admission by the accused to the offence of aggravated indecent assault by him biting [SB] on the buttocks. As I understand the final position advanced by the prosecution, were the Court to find that the accused had the propensity suggested pursuant to s 34P(2)(b), that is for the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house, this propensity combined with the suggested admission is sufficient to prove this charge.
In order to prove this offence, the prosecution needs to prove beyond reasonable doubt that the statement of the accused “I bit her bum” amounts to evidence of an indecent assault. This necessarily requires that if the physical act is proved, it must also be proved that the act occurred for a prurient purpose.
In the circumstances of this case, I have already explained why I am not prepared to accept the version proffered by the accused in the ROI. In my view, the explanations advanced by the accused in terms of biting first [SB] and second [AL] on the buttocks are nothing more than an attempt to distance himself from the allegations. They do not rise to, nor has it been suggested by the prosecution that these statements rise to lies as consciousness of guilt. It follows that I do not accept the version advanced by the accused of biting the buttock of [SB]. This act is not proved. However, even if I were to accept the circumstances described by the accused as biting [SB] on the buttock (which I do not), when viewed in the context of my finding that the accused had the proved propensity above and taking into account this proven propensity which strengthens the prosecution case, a global assessment of the evidence relevant to this count would not exclude as a reasonable possibility that the impugned conduct occurred without a prurient purpose.
I find the accused not guilty of count 4.
Complainant [ID]
I repeat the particulars constituting count 5:
a)      rubbing his penis against her bottom on more than one occasion;
b)      touching her vagina on one occasion;
c)      causing her to touch his penis on one occasion;
d)      causing her to perform fellatio upon him on more than one occasion;
e)      touching her thigh on one occasion; and
f)      inserting his finger into her vagina on one occasion.
[ID] did not come up to proof on particular (c), a fact that was correctly conceded by the prosecution.
[ID] affirmed an affidavit on 22 February 2019 setting out her recollection of events relevant to this trial. This affidavit consisted of 18 pages. It was signed at the foot of each page. At the time of signing, [ID] read through the document and was satisfied of the accuracy of its contents.
In that affidavit, [ID] deposes:
·       she had no memory of the accused doing anything inappropriate to her;
·       she never witnessed the accused doing anything inappropriate with another child;
·       she never really had much to do with the accused, and if she did, it would be at family events at which she doesn’t remember any one-on-one contact between them.
In evidence before this Court, [ID] gave a significantly different version, including the following:
·       she was sexually abused by the accused over a lengthy period of time in a multiplicity of ways (as set out generally in the particulars to count 5, save for particular (c) upon which she did not come up to proof);
·       she witnessed the accused causing another child ([SB]) to perform fellatio upon him;
·       she had a lot to do with the accused, in private with one-on-one contact, often when abuse would occur.
It is self-evident that there are significant discrepancies between the out of court statement of [ID] in the form of her affidavit of 22 February 2019 and her evidence. The difference, quite frankly, could not be more striking. The prior inconsistent statements go to the very heart of the particulars underpinning the charge brought against the accused in relation to [ID].
Explanation for the change in position
[ID] gave evidence that her explanation for not having previously remembered the acts of abuse was due to repressed memories.[447] [ID] explained that she experienced a ‘trigger event’ in April 2020 watching a television program called ‘Archer’ and then subsequently watching another television program called ‘Drawn Together’. [ID] described watching these programs at home with her husband and a friend which precipitated the realisation of detailed memories of childhood sexual abuse at the hands of the accused.
[447] T394.27-30.
[ID] stated that, whilst watching the television, she intuitively understood that she was having a trigger memory.
The report of Dr Takarangi was relied upon by defence to call into question [ID]’s claim of recovered memory. The report (Exhibit D13) was tendered on the defence case by consent, as was the CV of Dr Takarangi (Exhibit D14), setting out the qualifications and experience of the author. Neither the report, nor the qualifications of the author were challenged by the prosecution.
The opinions expressed by Dr Takarangi were limited to a general opinion on issues based on the evidence. Dr Takarangi could not make a statement of the likelihood of the opinions expressed to the particular circumstances of this case.
Relevantly to the evidence of [ID], Dr Takarangi opined:
One of the earliest incidents of abuse that [ID] reports is when she was aged 2 (or possibility younger). In this memory, [ID] recalls being taken to a room, laid down, having her nappy changed, and experiencing pain in her vagina, around age 2 is within the period of early childhood amnesia for which people generally have no memories …
[ID] appears to believe that her memory was blocked or repressed, and to believe in the process of recovering memories ... As discussed … there is no scientific evidence that memory operates in this way; but believing that it does operate in this way may encourage a person to accept recovered memories as accurate …
[ID] has also discussed her recovered memories with her husband, with other family members, and was exposed to [AL]’s allegations via family members when she was around 12 years old. [ID] has engaged in some other more intentional ‘memory work’, for example by watching television shows from childhood that she believes to have triggered her memories.

Dr Takarangi made further observations relevant to an assessment of [ID]. However, I regard those extracted above as being most relevant.
I accept the unchallenged evidence of Dr Takarangi set out above. This creates difficulties in accepting the explanation proffered by [ID] as to the stark inconsistencies given in her out of court statement and her evidence given in court.
I do not doubt that [ID] genuinely believes that she was sexually abused by the accused. This does not serve as a panacea for the deficiencies in her evidence.
I am not prepared to accept the explanation proffered by [ID] as to the inconsistencies discussed above. The inconsistencies are significant in terms of content and significant in terms of a change in position. As the prosecutor candidly, and with respect, correctly conceded during the course of his closing address, ‘there’s not much I can say that is likely to resolve the doubts that surround [ID]’s evidence’.[448]
[448] T590.27-28.
In assessing whether the prosecution has proved count 5 beyond reasonable doubt, it is necessary to consider all of the evidence, including the propensity evidence. I have specifically not engaged in sequential reasoning, excluding an assessment of the admissible discreditable conduct from my overall assessment of the evidence on this count.
The propensity I have identified earlier, namely is for the accused to act upon the sexual interest he had in his young relatives notwithstanding the risk of detection which existed by the presence of other people in the house, applies to an assessment of the evidence of [ID].
Using this propensity as a piece of circumstantial evidence in evaluating the evidence of [ID] on count 5, which strengthens the prosecution case and taking into account all of the admissible evidence as to this count, I harbour a reasonable doubt as to the reliability of [ID].
I find the accused not guilty of count 5.
Conclusion
I find the accused:
1.      guilty of count 1;
2.      not guilty of count 2;
3.      not guilty of count 3;
4.      not guilty of count 4; and
5.      not guilty of count 5.
ANNEXURE A