R v D, WA - [2014] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v D, WA
[2014] SADC 92
Decision of His Honour Chief Judge Muecke
29 May 2014
CRIMINAL LAW
Persistent sexual exploitation of a child - disputed facts as to some particulars of the offence.
Held:
Disputed facts found proved.

R v D, WA
[2014] SADC 92
The charge

The accused is charged with Persistent Sexual Exploitation of a Child. (Section 50 of the Criminal Law Consolidation Act, 1935 (“the Act”)).
The particulars alleged are that he, over a period of not less than three days between the 1^st day of January 1979 and the 30^th day of May 1993 at Jervois, Karoonda and other places, committed more than one act of sexual exploitation of KD, a person under the age of 18 years, by:-
(a)touching KD on the vagina over her clothing on more than one occasion;
(b)touching KD on the breasts over her clothing on more than one occasion;
(c)licking KD’s vagina on one occasion;
(d)pinching KD’s nipples on more than one occasion;
(e)rubbing KD’s vagina under her clothing on more than one occasion
(f)touching KD’s breasts under her clothing on more than one occasion;
(g)penetrating KD’s vagina with his finger on more than one occasion;
(h)attempting to penetrate KD’s vagina with his penis on one occasion;
(i)attempting to insert his penis in KD’s mouth on one occasion.
The period referred to in the particulars commenced when KD was three years old and ended the day before she turned 18 years of age.
When the accused was arraigned on this charge before me on 17 December 2013 he pleaded guilty to it. He then, separately, pleaded to the particulars set out in paragraphs (a) to (i). He pleaded guilty to the particulars set out in paragraphs (a), (b), (d), (e), and (f). He pleaded not guilty to the particulars set out in paragraphs (c), (g), (h), and (i).
By his plea of guilty to the offence the accused admitted that he was guilty of the offence of persistent sexual exploitation of KD in that he committed more than one act of sexual exploitation of her when she was under the age of 18 years over a period of not less than three days between 1 January 1979 and 30 May 1993 at Jervois, Karoonda and other places.
By his pleas of guilty to five of the particulars he admitted that he had touched KD on her vagina over her clothing on more than one occasion; that he had touched KD on her breasts over her clothing on more than one occasion; that he had pinched KD’s nipples on more than one occasion; that he had rubbed KD’s vagina under her clothing on more than one occasion; and that he had touched KD’s breasts under her clothing on more than one occasion.
By his pleas of not guilty to four of the particulars alleged against him, the accused did not admit that he licked KD’s vagina on one occasion; that he penetrated KD’s vagina with his finger on more than one occasion; that he attempted to penetrate KD’s vagina with his penis on one occasion; or that he attempted to insert his penis in KD’s mouth on one occasion.
Following the accused’s arraignment in the way I have just described a hearing before me proceeded by way of what is sometimes referred to as a disputed facts hearing, rather than by way of a trial proper. Both counsel submitted that the way the hearing was described would not make a difference as to how it was conducted.
I considered that in view of the accused’s plea of guilty, both to the offence and to a number of the particulars constituting the offence, it was more appropriate for me to proceed by way of a disputed facts hearing.
Some general matters
The Crown must prove the particulars in respect of which the accused has pleaded not guilty. The accused does not have to prove anything in respect of those particulars. He does not have to prove that he did not commit the conduct constituting those particulars. At the hearing before me he did not have to give evidence, nor did he have to call witnesses. Even if he did either of those (as is the case here insofar as his giving evidence is concerned), it is still for the Crown to prove the particulars he denies.
The Crown must prove the particulars in respect of which the accused pleaded not guilty, and the Crown must prove them beyond reasonable doubt.
Nothing short of proof by the Crown of those particulars beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion that he is guilty of those particulars, or to show that he is probably guilty of them. In this case the accused is not to be found guilty of those particulars unless I am satisfied that his guilt of them has been proved beyond reasonable doubt.
I am not required to be satisfied of the accused’s version as to the particulars he denies and to which he has pleaded not guilty. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution as to those particulars. Such a doubt may arise because of that, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will probably be on the accused and his credibility, even if I do not believe him on the matters the subject of the hearing being the denied particulars, that does not mean I must find proved that he committed those particulars. I still have to be satisfied that the Crown has proved each or any of them beyond reasonable doubt.
I must consider carefully all of the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at this disputed facts hearing. I must put aside any feelings of sympathy, anger or distaste, or even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters been “proved” or “satisfied” or “established”, or any other words or expression of that kind relating to the proof of the matters in issue, I mean, although I may not say so on every occasion, “proof beyond reasonable doubt”.
Persistent Sexual Exploitation of a Child
I have already set out this offence and the particulars charged against the accused.
The elements of this offence are that the accused must be an adult; KD must be under the prescribed age; and the accused must commit more than one act of sexual exploitation of KD over a period of not less than three days.
The accused, by his guilty pleas, admits all these elements. All the acts of sexual exploitation the accused admits are sexual offences as defined in the Act.
Each of the acts which the accused denies is, if proved, a “sexual offence” as defined by the Act. These are alleged by the Crown to be that the accused:
(1)licked KD’s vagina on one occasion;
(2)penetrated KD’s vagina with his finger on more than one occasion;
(3)attempted to penetrate KD’s vagina with his penis on one occasion;
(4)attempted to insert his penis in KD’s mouth on one occasion.
Each occasion of the particularised conduct in (2) above would, if proved, constitute a “sexual offence” as defined by the Act.
The real issue in the hearing before me is whether the Crown has proved beyond reasonable doubt that any of the sexual offences referred to paragraphs (1) to (4) above occurred at all.
I referred earlier to some general matters. There are some specific matters to which I may need to refer. I shall do that if and when they arise.
The evidence of the complainant
KD was born on 31 May 1975. That means that she was 38 years old when she gave evidence. She was born at Gawler. She had three sisters and four brothers, although one brother died. She and her parents lived at Two Wells when she was first born. She was about five years old when her parents separated and she moved, with her mother, to Elizabeth Fields. When she was living in that area her mother and the accused met. The accused started dating her mother. He became part of the family not long before they moved to Jervois. That is between Murray Bridge and Tailem Bend. That move occurred when she was about eight or nine years old.
KD said that after the family moved to Jervois she started attending a school in Brighton in metropolitan Adelaide. That was a two-hour drive from Jervois. It was a school for visually impaired children and disabled children. She attended because she had glaucoma with minimal sight in her left eye. She said when she was attending this school she would board there, returning home to Jervois every second weekend. She said that every time she went home to Jervois every second weekend the accused was there.
KD said that there were occasions when she was growing up when the accused touched her in a sexual way. When asked how many times in total he touched her in that way she answered: “Too many that I can count”.
KD said that the first time the accused touched her was when she was possibly eight years old. It occurred sometime between the family moving to Jervois and she starting school at Brighton. She said that on this first occasion the accused “groped my breasts” and “grabbed my breasts”. This happened in the lounge room at the Jervois home when she was watching television. The accused started to play-wrestle with her and “in the process he kept grabbing my boobs and giving them a gentle squeeze”. That was on top of her clothing when he touched one of her breasts. It occurred for only a couple of seconds. He said nothing to her after he had done that and she said nothing to him.
KD said that there were numerous occasions after that that the accused touched her on her breasts. It happened in the lounge room, the bathroom and outside the house. Not only did he touch her over her clothing but on more than a dozen occasions he touched her on her breasts under her clothing. She said: “He would gently squeeze my boobs and rub my nipples between his thumb and forefinger”. He would do that for a couple of minutes each time. He would do it in the dark in the lounge room whilst they were watching television when only the light from the TV was on, and other people were in the room. He never said anything to her when he touched her on her breasts.
When KD was asked whether the accused ever touched her on her body anywhere other than on her breasts when they were living at Jervois she said that he did. She said that he touched her “on my vagina”. He touched her on her vagina with “(h)is hands and his mouth”.
KD gave evidence about the first occasion that the accused touched her vagina with his hand. She said it occurred when they were watching a late‑night TV show in the lounge room. She said: “We were sitting down, he sat in one of the long armchairs and I had to sit next to him. He put his hand over my leg and pushed his fingers between my undies and just rubbed on my vagina”. He said nothing while he was doing that nor after. She said that this occurred within days of the first time that the accused touched her on her breast.
KD said that after that first time the accused touched her on her vagina more than a half a dozen times when they were living at Jervois. She said that he would not always touch her on the vagina under her clothing. He would touch her “over the top of my trackie pants and underwear”. “He would rub between my legs and then squeeze my boobs and then just walk away”.
KD said that when the accused put his hand inside her pants “he would rub at the top of my vagina and just continually just rub at the top part”. “On occasion he would touch my butthole but very seldomly”. She said that when he rubbed her vagina underneath her clothing “it was mainly on the outside” of her vagina. She said there were occasions when his finger went slightly inside of her vagina. She explained: “When he’d put his hand further down, he would hit – I don’t know what you’d call that part of my vagina, I guess, and he’d hit the bottom where my hole is. His finger would poke and scratch at that part of my skin, but he never pushed his finger inside of me”. She said that in that answer she was referring to when they were living at Jervois not at houses they lived at subsequently.
KD was asked about the accused touching her vagina with his mouth. She said that happened once when they were living at Jervois. It happened after he had touched her vagina with his hand. She described what happened:
My mother went off to her bedroom to have an afternoon nap and I went up and had a sleep with her. Whilst I was asleep W (the accused) had come in and lain down on the opposite side of the bed to possibly have a sleep. My mum got up and had left the room. W rolled over, he leant on the bed and then he pulled my legs to the bottom of the bed and then he knelt on the floor, he pulled my underpants to the side and held my legs down with his forearms and was licking at my vagina.
KD said that when the accused was licking at her vagina her legs were spread apart and were hanging off the end of the bed slightly. She said that her underwear did not come off, the accused just pulled her underwear to one side and when he had done that “(h)e held my lips apart and licked my vagina top”. He was licking just at the top of her vagina – the clitoris of her vagina and just a little bit below. He did that for quite a few minutes. When he was doing that the bedroom door was closed.
KD said it stopped when there was a bang in the hallway outside, or some type of noise. The accused just stood up and walked out the door. He said nothing to her then or at the time that he was licking her vagina. She said: “I kept my eyes closed and tried to pretend I was asleep”. She said that was the only time the accused licked her vagina at Jervois or any other place.
KD said that when they were living at Jervois the accused touched her a couple of times when they were over at the calf sheds. He touched her on her breasts over her clothing. She said he would rub her vagina sometimes when they were in other areas of the farm.
KD said that the family moved from Jervois to Karoonda. That was about an hour’s drive past Tailem Bend. She said that by the time they moved to Karoonda the accused “made me scared”. That was because “he kept touching my boobs and body all the time. I was scared to be alone.”
KD said that while they were living at Karoonda the accused touched her on her breasts “extremely regular”. That was both over and under her clothing. He would cup her breasts when he was standing behind her and “just give them a gentle squeeze”. When he touched her breasts under her clothing he “would give them a gentle squeeze and rub my nipples between his thumb and finger until they were hard”. He touched her breasts “everywhere” at Karoonda – in the lounge room, or outside. He did not have any specific places, it was just whenever he got close to her.
KD said he did it when she tried to milk a cow. He told her that she was doing it wrong so he squatted behind her and said he was going to show her how to do it. He put his hands around her breasts and cupped them and just kept fondling them for two or three minutes.
KD said that the accused also touched her on the breasts in the car to and from the bus depot when he was driving her there before she stopped going to boarding school at Brighton. He would use his left hand and just hold onto her right breast as he was driving. She said “(h)e would just keep squeezing my boobs” over her clothing on “nearly every trip into town”.
KD said that whilst they were living at Karoonda the accused touched her vagina “lots of times”. She said: “He would just put his hand over my vaginal area (on) my clothing and just give me a good squeeze”. She said he did that both inside the house and outside it.
KD said that the accused would also touch her on the vagina under her clothing. She said “He would rub his main two fingers up and down the top part of my vagina, sometimes rubbing all the way through and touching my bottom hole again”. She said that “(e)very now and then he slightly penetrated my vagina, but I don’t know whether it was deliberate or not, because he was rubbing up and down”.
KD said the first time that happened was when she was sitting on the back of a motor bike, because the accused had just taken the other children for a ride on a dirt bike that he had. She explained: “It was supposed to be my turn. Mum was hanging the washing out about 200 feet from us and he was pretending to talk with her. He had his left hand behind him and between me under my pants and was rubbing at my vagina whilst his finger kept pushing at the edge and just gently – well, not gently, but just inside of my vagina”. That went on for about five minutes, maybe ten. She knew his finger was inside her vagina “(b)ecause it was burning”. She was maybe 11 years old when that happened.
KD said that after that first occasion the accused did that again a “couple of times over the year, or the years”.
KD said that it was at Karoonda that she first saw the accused’s penis. She said she was in an Atco hut playing with guinea pigs. The accused “walked in the front of the shed and pulled his shorts down and as I was right there, his willy flashed out right in front of my face”. She said the accused looked at her, pulled his pants up, turned around and walked away. He said nothing to her before he did that. She said that because she was out of boarding school she thought she was about 12 years or 13 years old at that time. She said that she was pretty sure the accused was circumcised.
KD said that the next time that she saw his penis at Karoonda the accused had told her that they had to go down to the back paddock to feed the pigs. After they had done that she was sitting on the driver’s side seat of the truck which had a water container on the back. She was sitting with her legs hanging out of the door. The accused came around and grabbed the door frame as she was about to jump down. She ended up sitting on the step below the door. She said the accused “pulled his pants down and shoved his willy in my face and told me to suck his willy”. She said she closed her teeth and her mouth as hard as she could and said “No”. When she said no, the accused tried to “shove it in my mouth”. She said he was trying to push her head forward with his hand with his crotch towards her. She said: “His penis rubbed on my teeth and my lips”. He tried to get his penis in her mouth for a few minutes. She kept her mouth closed. When he stopped she got off the truck to walk away. He jumped in the truck and drove back to the homestead, leaving her there with the pigs. When he took his penis out of his pants he said: “Suck my willy, suck my willy”. She could not recall him doing that again while they were living at Karoonda, but he did when they were living at Lyndon Station.
KD said that there they went out to collect the rabbits that the accused had shot. She was sitting on the back of the truck and as she jumped down the accused pulled his pants down and tried to get her “to suck on his willy again”. She said that he “told me that I’d eventually do it sometime – or at one time”. She said that she did not do it on that occasion as she kept her mouth shut “because he was shoving it into my mouth - trying to shove it into my mouth again”.

KD said that this occurred on Lyndon Station which she was pretty sure was not in South Australia. It is a farm out in the desert between Broken Hill and Tibooborough. She said that that happened a couple of times at Lyndon Station, but nowhere else.
KD said that before the family moved to Lyndon Station they lived at Merbein Caravan Park which is just outside of Mildura in Victoria. She thought she was maybe 13 years old when they moved from Karoonda to Merbein. They did not live there for very long at all. It was possibly a couple of months. They lived in a caravan and the sleeping arrangements were “pretty cramped”.
KD said that when they were there the accused touched her on her breasts and vagina. He touched her on the breasts regularly over her clothing. She said she did not remember whether he touched her on the breasts under her clothing at Merbein. She said that the accused touched her on her vagina “more than half a dozen” times at Merbein. All those touchings were over her clothing. She said: “He would rub his hand up and down on my vagina a couple of times in the process of play wrestling with me”. She said that she never saw the accused’s penis while they were living at Merbein.
KD said that when they were living at Lyndon Station the accused touched her on her breasts and vagina, as well as the times when he asked her to suck his penis. Those touchings were “(t)he same as always; he would cup my boobs and give them a gentle squeeze, sometimes under my clothes, when he would get the opportunity he would rub my nipples to make them erect”. She said these touchings of her breasts would occur most when they were out rabbit shooting. The accused also touched her on the vagina when they were living at Lyndon Station, about half a dozen times, maybe more. She said that all of these occasions were over her clothing. She said they lived at Lyndon Station for a year, possibly two years.
KD said that the family went to Broken Hill to live for possibly six months and, later again, for another six month period. Whilst they were living at Broken Hill the accused touched her on her breasts and on her vagina. She said it was hard to put a number on the times that he would touch her breasts as “(i)t was so inconsistent that it would be whenever he sort of got close enough and there was no-one else close with him”. She said the accused also touched her vagina when they were living at Broken Hill, both over and under her clothing. The touching under her clothing occurred a couple of times. She said: “He would rub the top part of my vagina and he would rub so far down that he would sometimes touch my bottom hole”.
KD said that her mother and the accused separated at Broken Hill. Her mother moved to Dalkeith with her and some of her siblings. She saw the accused “(o)nly when he came back when I was two to three months pregnant”.
KD said that she was 15 years old when she got pregnant. She had got pregnant while she was living at Dalkeith, although she met the father of the child she was carrying through the accused at Broken Hill.
KD explained that she saw the accused when she was pregnant as he came to the caravan park to see her mother. She said that “they re-united their relationship”. She said that when that happened the accused had to go to Kadina to pick up his possessions and caravan, and she had to go with him. She said that she had to go with him “(b)ecause my mother decided I need to decide whether I was going to keep my unborn baby or put it up for adoption to them”. Her mother thought she needed time away and neither she nor the accused wanted her to see the child’s father again. She said she did not want to go to Kadina but she did go with the accused.
KD said that whilst at Kadina with the accused they stayed in his small caravan. There were only the two of them. They slept on the only bed in the caravan. It was a double bed and she could not really remember how many nights they stayed there, although “it felt like forever”. She said that something of a sexual nature happened at Kadina that had not happened before. She described what happened:
On the occasion he took me to one of his friend’s house, female friend. He groped my boobs while we were there in a hallway very quickly over the top of my clothing and on another occasion him and his friends were having some spirits to drink in the caravan and smoking some marijuana. W decided it would be a good idea for us and he insisted that I have some marijuana with them. I got really, really sick really quick, so he helped walk me into the bedroom and laid me on the bed because I was feeling really faint. He went back to the table, finished drinks and conversation with his female friend, I don’t remember her name. Then after she left he came into the bedroom. He pulled my left leg to the side, I sort of hung on to the edge of the bed. He used his right hand or his thumb to pull my undies to the side. He had his left hand above my head and he had his other hand holding my undies against my inner thigh. He had his body weight on top of me and he kept thrusting on top of me continually until he ejaculated.
KD said that she smoked some marijuana because the accused told her to and she just did it. “I was too scared to not do what W told me”. He told her “(t)o just enjoy it, it would be better for us later”.
KD said that she thought she had just a nightie on because she had started getting “the sweats”. She felt colour run out of her body and she felt hot, sweaty and faint. She was lying on her back on the bed. She could hardly move because “every time I moved I felt like I was going to puke from the minute I’d laid down anyway”.
KD said that the accused joined her on the bed and “he was lying on top of me pretty much”. She did not think that he had any bottom clothes on. She said “(h)e thrust himself up and down on me continually for over a dozen times”. She could feel his penis “hitting and burning the bottom part of my vagina and my – the skin bit down there in that area between there and my bottom”. She said she did not know whether his penis was inside of her vagina because it was “burning so bad”. The accused was not saying anything he was just grunting in her ear.
KD said that the accused ejaculated on her, on her vaginal area. He then just climbed across her onto the other side of the bed near the wall, laid down and said “Good night”. She said she knew that he had ejaculated on her because “I was very sticky, gross and smelly”. She said that nothing else was said apart from him saying good night and the next day the accused said nothing about what had happened. She said that she thought the accused’s right hand was holding her undies to her left leg and that his other hand was over her head just next to her shoulder. She guessed that he was “supporting his weight” with that hand. When asked whether she felt him trying to do anything with his penis she replied: “He was trying to poke it into me”.
KD said that the two of them eventually left Kadina and drove back to Dalkeith, with the accused towing his trailer. At Dalkeith the accused moved into her mother’s caravan and she lived in the accused’s caravan that he had transported from Kadina.
KD said that after the time in Kadina the accused only ever touched her again on her breasts. He did that quite a few times when they were living at Dalkeith. He did so only over her clothing.
KD said the family moved from Dalkeith to Cowra. She was pregnant all the time they lived at Cowra. She said that the accused touched her on her breasts continually when they were living there. She never saw his penis while they were living at Cowra.
KD said that after Cowra the family moved back to Karoonda and they were living in a caravan there when her baby was born. That occurred on 16 January 1992. She said that the accused touched her breasts over her clothing continually when they were living back at Karoonda. He did not ever touch her under her clothing nor did she see his penis while they were living back at Karoonda.
KD said that when her daughter was about two months old they moved back to the Dalkeith Caravan Park. She lived in a caravan there on her own with her daughter. The accused occasionally touched her on her breasts at Dalkeith but it was always over her clothing at that stage.
KD said that after living in the caravan at Dalkeith for probably six months her mother and the accused moved to Eucla whilst she applied for a Housing Trust house in Elizabeth West. She lived there for six months, during which time her mother and the accused moved from Eucla to Andamooka. She went to Andamooka and lived with her mother and the accused. She said that she was scared for herself and her daughter living in Adelaide alone. At Andamooka she and her daughter lived in “a side part of the house that (had) its own bathroom, shower and bedroom”. During the time she was living there the accused touched her on her breasts regularly. It was over her clothing quite a lot and “if he got the chance he would go under my clothing”.
KD said that whilst she was living at Andamooka she met and fell in love with her second daughter’s father. She said that man saw the accused abusing her. That was when the accused touched her breasts in front of that man at Andamooka.
KD said that the first person whom she ever told about the accused touching her in a sexual way was her mother. She said she definitely had two conversations with her mother, possibly three.
KD said the first was at Jervois. She thought it was just after he had done the licking of her vagina. She said “I told my mum my dad was touching my boobs and privates and stuff”. Her mother went and confronted the accused and he said “yes, he probably did, he was sorry, but it was an accident during wrestling with me”.
KD said the next conversation she remembers having with her mother about the accused touching her was when her mother was living at Streaky Bay. She said that her mother and the accused had moved to Streaky Bay after Andamooka. She, KD, was then living in Kallangur in Western Australia. She went home for a holiday and she decided “the only way my mum would listen to me is if I really made her listen. So I took her for a coffee to the corner deli where we used to have a pie and coffee or cappuccino every day and I told her as loudly as I could” … that “I was sick of him abusing me and touching my breasts all the time”. She thought that this was in 1996. She said that the accused and her mother were still living together. She did not tell her mother the details. I infer that was because she said that her mother “stopped listening to me years earlier”.
KD said that she had further conversations with her mother after that one but she had never gone into detail with her about exactly what the accused had done to her other than “very slightly”. She said: “She knows what he did to me, but not fully detailed. … She knows that he had been touching me”.
KD said that that time in Streaky Bay was the last time that she saw the accused. She said that “within 24 hours he had packed up and moved out”. She had not had any contact with him since.
KD said that she did not think she ever told her mother about the incident that happened in the accused’s caravan at Kadina. She said that she did not tell anybody about that incident because “I was too disgusted”.
The evidence to which I have just referred was some of the evidence KD gave when questioned by Ms Giles, of counsel for the Director of Public Prosecutions.
When cross-examined by Ms Stokes, of counsel for the accused, KD agreed that the accused’s touching of her started in about 1985 and that by the time that she was a teenager she resented the fact that the accused, who was effectively her step-father, had been interfering with her for so long. She did not accept the suggestion that she hated the accused, but said she was scared of him. She agreed that she did not like him for what he was doing to her.
KD agreed with Ms Stokes that at some time she signed some papers to change her surname from G to D. She thought that would have been just after her seventeenth birthday, or when she was 16 years old to 17 years old. She said nobody asked her to change her name, she was just given forms to sign. She did not recall knowing what they were for. She said that from looking at her birth certificate she saw that her name change occurred in 1992. She said she does not recall signing the papers for it, and that her biological father said that he did not give his consent for it. She knew that her own daughter had already been given the last name “D” because the accused had filled out her birth certificate. She denied that she knew the name change was occurring when it was happening in the middle of 1992. She knew when she found her birth certificate that it had happened in 1992. She said that she had “been called D for years prior to that and assumed that it (the name change) was already done when I was 13-ish”. She found out only two years ago that the papers had been signed in 1992. She said that she did not know what half the papers she signed were because she was always depressed. She said that she signed what she was given to sign. She said that she remembers getting Centrelink payments as a result of filling in forms but she thought that was prior to her name being changed. She assumed that she was a D already. She said the accused came to the meeting at Centrelink with her and told them who she was. She saw on Centrelink payments that her daughter’s name was “D”. She assumed she was already a D so she signed the forms as a D.
KD agreed that her mother and the accused separated when they were at Streaky Bay, but she did not agree that that was because her partner Mr L told her mother what she had told Mr L about what the accused had done to her. She said that Mr L saw her being abused by the accused on a couple of occasions, but she did not tell him when they lived together that the accused had been abusing her.
KD said that she could not recall that she said to Mr L that the abuse started when she was about 11 or 12 years old She said that she did not tell him that she was moved to a boarding school to try and hide what was going on, and she did not tell him that she and the accused had had sex. When Ms Stokes suggested that all those things happened she answered: “I had a lot of stages of manic depressive moments over my whole life from 16 onwards”.
KD said that she had told her mother at Streaky Bay what was happening with the accused’s abuse of her. Her mother said that he admitted it and her mother asked him to leave as far as she knew. She said she was not there when her mother confronted the accused after she had spoken to her mother. She denied that that was the first time she had told her mother what was happening. She agreed that the accused left within a day or two.
When Ms Stokes asked KD about the father of her first child she said that she had met that man through the accused in Broken Hill. She said: “I was told (by the accused) that he would be my new boyfriend”.
When Ms Stokes put to KD that when she and her mother were living at Dalkeith it was the fact that the accused was living at Wallaroo rather than Kadina in a caravan, she agreed that he was possibly living at Wallaroo but she was always told that he was in Kadina. She did not agree, however, that her mother visited the accused at Kadina or Wallaroo.
When it was put to her that when she went to Kadina or Wallaroo she was there for one and a half to two weeks, KD replied that she couldn’t remember exactly how long it was but it could have been for that time or shorter.
As for the night of which KD had earlier spoken in the accused’s caravan at Kadina or Wallaroo Ms Stokes referred to her evidence that the accused had tried to put his penis in her vagina. She asked this:
QAm I right to say that he tried but did not succeed, is that the truth of the matter.
AI don’t know if he succeeded. I hurt too much.
QIs it possible that he didn’t even try. Isn’t that really the truth of the matter.
ANo.
KD agreed with Ms Stokes that she told a police officer in 2011 about this incident and that she told the police officer that the accused had laid down on top of her and tried “to shove his penis in (her) vagina”. She also agreed with Ms Stokes that she told the police officer that she didn’t know whether he actually got it in or not.
Ms Stokes then put this to KD:
QIsn’t the truth that you felt affection for Mr D back when you were that age, around about eight, 9, 10 through to your mid teens, and you’ve later come to regret it.
ANo, not in that form.
QThat you allowed him to touch your breasts in particular and on occasion your vagina area but you’ve come to regret it later.
AI never allowed him to touch me indecently at all.
QAnd that the allegations of him licking your vagina, trying to put his penis into your vagina, putting a finger into your vagina or wanting you to suck his penis are things you’ve made up to exaggerate what really happened, to make it worse than it was.
ANo. Pardon?
QTo make it worse than it really was.
ANo.
QYou see, once you were pregnant with C, isn’t it the truth of it that he never touched you sexually again once he knew that.
ANo.
KD denied that on the occasions when she went out with the accused when he was shooting rabbits at night that she wanted to go with him and even had fights with her mother when her mother wanted one of the other children to go. When Ms Stokes put to KD that the accused “did not ask (her) to suck his willy or anything resembling that”, KD replied that he did.
When Ms Stokes put to KD that she didn’t tell her mother anything until she was living at Streaky Bay, KD replied that she first told her mother at Jervois. She agreed she did not tell anyone else, any person in authority such as teachers or police officers, because “I was too scared to talk about what was happening at home. I was embarrassed about what was happening to me”.
Ms Stokes again put to KD that for years she allowed the accused to touch her vagina and her breasts both under and over her clothing. She suggested that at the time that it happened KD didn’t mind it happening. She suggested that as KD got older she resented it happening and she had lied about the extra things, like sexual penetration and the like, to make it worse for the accused because of what he did to her when she was younger. KD denied that that was the case.
In re-examination Ms Giles asked KD about what she had said earlier about Mr L seeing the accused touching her. KD said she had spoken to Mr L who had told her that he had witnessed the accused groping her body in Andamooka and in another town which he didn’t clarify. Mr L had said that he saw the accused “groping my breasts and so forth”. She was shocked that he had witnessed it and never brought that fact to her attention. She didn’t really say much at all although he said he would be willing to help or put in a statement or something. Other than that she had hardly spoken about it with him.
Ms Giles tendered other evidence.
In signed statements dated 6 November 2012 and 28 August 2013 KD’s mother stated that she and the accused would have been together in a relationship for about seven years. She stated that she first met the accused at the end of 1985. She referred to she, the accused and the children moving to New South Wales and living in tents on the river bank. She stated that the accused got a job at Calwa shooting kangaroos. She stated that in the heat of the summer she would take the children down to Broken Hill whilst the accused went back up north shooting. She stated that she had two fights with KD because KD insisted on going with the accused.
KD’s mother stated that she “did a runner from W with the kids” and they came back to South Australia when KD was about 15 years old. She stated that that would have been about 1990 and they went to the Dalkeith Caravan Park. KD fell pregnant whilst they were there. She stated that they then moved to the Calwa Caravan Park before moving back to Karoonda. They did not stay long at the Calwa Caravan Park. From Karoonda they went to Andamooka, in about 1993. She stated that KD met a man there called Mr L and the two of them got a place together on their own on the other side of Andamooka.

Ms Giles tendered two signed statements of Mr L. He stated that he met KD in 1991. That was in Andamooka. They moved to Western Australia together in 1995. He stated that their relationship ended in 1998 or 1999 when their daughter was young.
Mr L stated that one day in Andamooka in 1995 the accused walked past KD “and grabbed her on the tit”. He thought this was “a bit strange”. He mentioned it to KD later that day and “she clammed up a bit”.
Mr L stated that he had spoken to KD over the years about the accused abusing her and KD told him that it started when she was about 11 or 12 years old. She told him she was moved to a boarding school to try to hide what was going on. She never fully explained to him what form the abuse took, “but I know they had had sex”. He stated that KD had told him that this sexual intercourse was instigated by the accused. KD was never specific about when that happened, “but she did tell me it happened a lot over the years”.
The accused was interviewed by police on 13 November 2012. That was many years (probably between 15 and 20 years) after the accused left Streaky Bay and finally separated from KD’s mother. That interview and a transcript of it were tendered by Ms Giles.
When police interviewed the accused a woman was present. She appears to have told police that the accused had asked for her to be present at the interview. She described herself as the accused’s carer, his driver, and “his right hand man”.
The accused told police that he was born on 26 September 1952. That means he was 60 years of age when he was interviewed by police on 13 November 2012.
The accused told police that he thought his relationship with KD’s mother started in the mid-80s, maybe 1984. That would have been when he was 32 years of age. He told police that his relationship with KD’s mother lasted for ten or eleven years. They had two children together. KD was not one of those children.
The accused told police that he started rubbing KD in the area of her breasts over her clothes when the family was living at a farm at Jervois. He thought that he started doing that in about 1985. When asked “what about the area of her vagina?”, he answered “No”. He said that he never did that.
The accused denied, when asked by police, that he had pulled KD’s pants to one side one time when she was home from boarding school and licked her vagina. He said that he had “never touched her, down there. I think, if I had, it was only on two occasions and I assure you, ah, ah, I assume you’ll get to them, ahm, but any other time, no, no”.
The accused agreed with police that there was a constant state of him touching, fondling, and rubbing KD’s breasts over her clothing, and that he did that over five years. That started about a year and a half after his relationship with her mother started.
The interviewing police officer referred the accused to his earlier statement that he might have touched KD in the vaginal area twice. The accused said that he did, once at Karoonda and once in a caravan park on the river somewhere. He said that he touched KD on the skin of her vagina but did not insert anything into her vagina. He said that he touched her vagina just at the top of it. He said the other time was in a caravan park on the river somewhere. He said he did not know where.
At this point of the interview the accused said to the woman who was with him at the interview: “you’ve got the gist of what’s going on now you don’t have to sit if you don’t want to”. The woman said: “Probably heard the worst”. The accused said: “ok. Alright. Ok, so that’s”. The woman said: “If I listen you don’t have to tell me”. The accused said: “That’s why I didn’t want you being here”. It transpired that the woman and the accused were partners. They had been together nearly 12 years since April 2001.
The accused then said to police that he did not remember smoking marijuana with KD at Kadina or Wallaroo. He denied that KD had been at the caravan park, that she had smoked marijuana with him and a lady that she did not know. The accused said that that lady did not exist. The accused denied that KD had become quite sick through marijuana or alcohol, he denied that he had put her to bed, and he denied that he had penis to vagina sexual intercourse. The police officer said: “You sound quite adamant, why are you so adamant?”. The accused replied: “because I know, I know, I never did anything other than touch. Never.”.
The accused told police that the only time that he was ever confronted by KD’s mother was when he left her at Streaky Bay. He said: “From what I can gather, (KD) said something to (Mr L, Mr L) said something to” KD’s mother and KD’s mother said something to him. She had asked him if it was true, whether he had touched KD. He said “yes, and ah, it was then I decided to leave”. When police asked the accused whether he gave KD’s mother a reason why he thought it was okay to touch KD, he answered: “no, not that I can remember at the time, no”. He added: “No, no there was never a reason”. When asked whether he had a reason now, he answered: “No reason whatsoever”.
The accused denied that there was ever a time when he was alone with KD shooting rabbits at Lyndon Station when he tried to get her to perform fellatio on him.
The accused said that he had “thought really hard” about his touching KD on her vagina, but he could only remember twice that he did that.
Towards the end of the interview the accused said that what happened had “been nearly killing me for years, that I could do something like that”. He said: “you see it on television and you go, I’m that bastard”.
The evidence of the accused
The accused gave evidence at the hearing. He was legally entitled to give evidence, or refrain from giving evidence. The choice was his. In this case he gave evidence on oath. He was not obliged to do so. He could have remained silent, leaving it to the prosecution to satisfy me of the disputed particulars. However, he elected to give evidence on oath. The effect is that, in assessing him as a witness, his evidence, his credibility, and his reliability, I am to give such weight to it as I consider appropriate on the same footing as any other witness. It is for me to decide what weight I am prepared to attach to his evidence as I am required to do in relation to the evidence of the other witnesses in the case. Of course, by going into the witness box, the accused does not assume any burden of proof. The burden of proof still rests on the prosecution.
The accused said that he is now 61 years old. He was born in Adelaide. When asked what sort of occupations he had had he replied: “Mostly shooting”. He said he has had a number of health issues over his life.
The accused agreed that there was a course of conduct in which he touched KD’s breasts on the outside of her clothing. He said that occurred for roughly five years. He agreed that there was a course of conduct in which he touched her breasts under her clothing for the same period of time. He said that that touching included pinching or manipulating, and squeezing her nipples and breasts.
The accused agreed that there was a course of conduct in which he touched KD on the vagina outside her clothing. That happened more than once over a period of a couple of years. That started after the touching of her breasts had started. When asked whether there was one or more than one occasion when he touched her vaginal area under her clothing he answered: “A couple of times, yes”. He said that there were two that he could remember. They were the two that he talked to the police about. He could not think of any other time or other times that he did that.
The accused said that KD was 10 years old when he started touching her breasts and she was 15 years old when that touching ceased. That was before she got pregnant. He said that he stopped touching her breasts because she was pregnant.
The accused said that there was no correlation between his ceasing the vaginal touching and her pregnancy and his knowledge of it. When asked why he stopped doing that he replied: “I can’t think of a reason, no”.
The accused denied that he ever produced his penis to KD out of his pants. He denied ever suggesting to KD that he wanted her to suck his penis or take it in her mouth. He denied ever performing cunnilingus upon her or attempting to do so. He denied ever attempting to insert his penis into her vagina anywhere.
When asked whether he ever offered KD marijuana or allowed her to take marijuana whilst at Wallaroo or Kadina he responded: “Not directly, no. No”. He explained that he didn’t directly offer her marijuana or drink because he didn’t like it. He said that to his knowledge KD never took or smoked any marijuana in his caravan, although he remembered KD and a female friend of his being in the caravan when his female friend was smoking cannabis. When asked whether KD got sick on that evening he replied: “Not that I know of no. Not that I can remember, no”.
The accused denied that there was ever an occasion when he deliberately inserted or tried to insert a finger into KD’s vagina.
When Ms Stokes asked the accused to describe the circumstances when KD’s mother confronted him at Streaky Bay over an allegation from her daughter he described it in this way:
AShe had come out to me, I was out in the bus, and had said that Mr L had told her – told (KD’s mother) that I had been touching K, and we got into an argument and me saying yes, I did and she saying why. Yes, yes. She did.
QYou told the police but is this right: that you made a decision it was appropriate for you to leave the residence.
AYes.
QHow long did it take you to do so.
HIS HONOUR: Sorry, to make the decision or to leave?
XN
QHow long did it take you to move out.
ANext day. The next day.
QWas (KD’s mother), when she confronted you about this allegation that she had heard – I know she is not going to be but was she in a good mood, an angry mood or a steaming angry mood.
HIS HONOUR
QWhat was her mood.
AYou’ve got to remember this was 20-odd years ago. Not angry –
QIt was a significant event in your life presumably.
AYes. She wasn’t angry about the fact. She confronted me with the particulars that she had been given by Mr L and I said –
QWhat did she say the particulars were.
AI would only be guessing.
QDon’t guess. You can’t remember.
ANo. No.
QI’m talking about what she told you.
AShe said to me ‘Have you been’ – ‘Did you molest’, ‘Did you play’, I don’t know the words now. And I said ‘Yes’. Yes.
The accused said that he had never been confronted by KD’s mother prior to that occasion regarding any allegation that he might have interfered with her daughter inappropriately.
The accused said that he never suggested to KD that the man who is the father of her first child was going to be her boyfriend. He said he never interfered with or encouraged KD’s relationship with that man. He didn’t know what KD’s mother thought of that relationship.
The accused said that at the time KD changed her name from G to D he did not know anything about that. When asked whether he ever put any piece of paper in front of her to sign that had to do with a name change for her he answered: “I know it was spoken of a few years earlier”. He explained that it was spoken of between himself and KD’s mother. He said that he did not raise it with KD at that time, and then said that he did not give any piece of paper to KD that related to a name change. He said that although he knew that she used the D surname he didn’t know that she had changed her name to D. He denied that he was the one that filled out the last name on her birth certificate as D.
The accused said that he did take the children with him on all-night shooting expeditions when the family was at Lyndon Station near Broken Hill. He said he took KD’s brother “99% of the time”. When asked if he ever took KD he answered: “Her and the other girls, yes – possibly, yes, yes”. When asked whether there was ever competition amongst the children to go with him on a particular evening, he answered: “No, not really. It was just ‘Do you want to?’ and they said ‘Yes’ and they would come, yes”.
The accused denied that he asked KD, whilst they were at Lyndon Station, “to look at (his) penis and put it in her mouth or anything remotely resembling that”.
Ms Stokes asked the accused about his state of mind as to why he did what he admitted doing to KD. The question was put in this way:
QYou spoke to the police about your state of mind about why you had done those things that you admit doing illegally and inappropriately with KD. Have your thought processes evolved since then as to why it happened or not.
ANo.
HIS HONOUR
QHave you thought about that since the police interviewed you.
AYes, a lot, yes, I have thought about it. As to why?
QYes.
ANo feasible answer, I just did.
XN
QI think his Honour’s point, have you thought about why, have you tried to work it out for yourself.
AI don’t know why I did it.
The accused denied that what he did to KD ever aroused him sexually.
The accused said that his relationship with KD’s mother was very good during their years together. I asked him what his relationship with KD was like. This followed:
AVery good, very good.
QWhilst you were molesting her.
AYes.
QGood then too, was it.
ABeg your pardon?
QGood then as well.
ANot good now, no.
QNo, at the time.
AAt the time, I don’t know, I don’t have an answer for that.
QYou don’t know what you thought.
ANo.
When asked by Ms Stokes whether KD ever asked him or told him to stop doing what he was doing to her, the accused: “No”.
The accused was cross-examined by Ms Giles. Ms Giles first asked him:
QWhen were you first sexually attracted to KD.
ALate ’85 was the first time that I touched her, yes.
QSo that was the first time that you touched her. How long before the first time that you touched her did you realise that you were sexually attracted to her.
AI didn’t say that I was sexually attracted to her. I just touched her.
QOn the first occasion that you touched her were you sexually attracted to her.
ANo.
QOn the first occasion that you touched her where on her body did you touch her.
AHer breasts.
QWas that underneath her clothing or over her clothing.
AOver.
QWhy did you decide to touch her on that occasion.
ADon’t know.
QIsn’t it the case that you decided to touch her because you were sexually attracted to her.
ANo.
QHow did you feel when you touched her on that first occasion.
AI just did. There were no feelings.
QDid you enjoy it.
AI don’t know.
QDid you do it again after that first occasion.
AYes.
QWhy did you do it again.
ABecause I did.
QYou did it again because you enjoyed doing it, didn’t you.
ANo, I didn’t say that I enjoyed doing it.
QHow many times do you think that you touched her on the breasts over the years.
A40, 50 times maybe.
QIs it your evidence that on none of those occasions you were sexually attracted to her.
AYes.
QYou didn’t enjoy it on any of those 40 or 50 occasions.
AI didn’t see that as being – I just did.
QDid you use to do it in front of other people.
ANo.
QWhy not.
ABecause I didn’t.
QDid you make a conscious decision not to do it when other people were around.
AI wouldn’t do it if there were other people around, no.
QWhy would you not do it if there were other people around.
ABecause it’s wrong.
QWhat did you think was wrong.
AI didn’t think it was wrong at the time.
QYou didn’t think it was wrong at the time.
AI don’t know. I just did.
The accused said that he never thought of his touching of KD like him being sexually attracted to her. When asked how he did think of it he responded: “I didn’t”. He said he just did it without thinking about it.
The accused said that it was maybe a year after he first touched KD on her breasts that he touched her on her vagina. He couldn’t remember the first occasion that he did that. He said that he didn’t make a decision to do it, he just did it. He said that he didn’t look at it like whether he enjoyed touching her on the vagina, he just did. He said that he didn’t know why he did it or why he decided to do it, he just did. He denied touching KD on her vagina because he was sexually attracted to her. He denied that it aroused him when he touched her on her vagina. He said that he touched KD on the vagina over her clothing “half a dozen times”.
The accused said that he remembered the first occasion that he put his hand inside KD’s pants. He said that was at Karoonda when she was on the back of the motorbike. He put his hand back and touched her. He said he put his hand behind him when she was sitting on the motorbike and touched the top of her vagina with his hand. He said that one of his fingers did not go inside her vagina. He said it was not possible that one of his fingers went inside her vagina. When asked how he could be certain about that he answered: “Because she was sitting on the motorbike”. He said that he touched just the top part of her vagina.
The accused agreed that KD’s mother was nearby when this happened. He denied that she could see what was happening but he agreed that she was within hearing distance. He agreed that if KD had yelled out her mother would have heard. Ms Giles asked:
QWere you not concerned that that was a bit of a risky thing to do for the first time when her mum was around.
AYes.
QWhy did you do it.
AI don’t know, I just did.
QIsn’t it the case that was not the first time that you put your hand down her pants.
AYes.
QIsn’t it the case you knew that you could do that despite her mum being close by because you had done it so many times before.
ANo.
QWhat was it about being on the back of the motorbike that made you want to put your hands down K’s pants.
AIt must have been a spur of the moment that I did it.
QDid you think much about it when you did it.
ANo
QWhat caused that spur-of-the-moment decision.
AI don’t know, I just did.
QHow long were your hands down her pants for.
A30 seconds, maybe.
QWhat did you do with your hand when it was down her pants.
AJust touched her on the top of her vagina.
QWhen you say ‘the top of her vagina’, what do you mean by that.
AJust on the top as it starts to crack.
QWhat did you do with that part of her vagina.
AJust touched it.
QDid you enjoy doing that.
ANo.
QDid you not enjoy doing it.
ANo, I just did it.
QHow did you feel about it at the time that you were doing it.
ACan’t remember. Too long along.
QDidn’t you enjoy it.
AToo long ago.
QIf you didn’t enjoy it you wouldn’t have done it again, would you.
AI did it once more after that, yes.
The accused was asked about that second occasion. He said that he was not absolutely sure where that happened but it was somewhere on the river. He said that they were asleep in a tent. KD was nearby. It was the middle of the night. He rolled over and touched her. He didn’t know why he decided to touch her on that occasion. He denied that he was sexually aroused at that time. He said he did the same as on the first occasion, just touched her under her pants on the skin. He said that KD just sat there, she didn’t tell him not to touch her.

The accused agreed that he knew after the first time he touched KD in this way that she hadn’t told anybody. When asked whether he was confident that she wouldn’t tell anybody about this occasion, he answered: “I didn’t think of that”. He said that he didn’t think about whether or not he was worried that she would go and tell somebody. He denied that it was the case that he didn’t think of that because he was doing it so often and she hadn’t told anybody.
When Ms Giles asked the accused: “Is it your evidence there are only two occasions when you touched her vagina inside her pants”, the accused answered: “That I remember, yes.” He denied that it was possible that there were more occasions than that and he could not remember them. When asked whether that conduct was something that he would be likely to forget, he answered: “Those are two times that I remember”.
The accused denied ever having opportunities when he was alone with KD apart from those two occasions where he could have touched her on the vagina. Ms Giles then asked:
QHaven’t you told us that she would go out rabbit shooting with you sometimes.
AYes.
QCouldn’t you have touched on the vagina on those occasions.
ANo.
QWhy not.
ABecause I didn’t.
QI am not asking you if you did –
ANo, I realise that and my answer is no, I never thought of it.
QBut if you had thought of it, there were plenty of opportunities where you were alone with her where you could have done it.
AHow would I answer that? Yes.
QYour evidence is there are only two occasions where you actually decided to do it.
AYes.
QAnd you have no idea why you picked those two occasions.
ANo.
QWhy did you never put a finger inside her vagina when you had your hand down her pants.
ABecause I didn’t.
HIS HONOUR
QThe question was why not.
ABecause it was wrong.
QBut touching her was wrong.
AYes.
QYou knew that.
AYes.
QYour hand was in the area of her vagina, if not on it.
ABut there is one thing to touch and another thing to enter. And I never did.
Ms Giles asked the accused whether he made a conscious decision not to put his finger in KD’s vagina. He answered:
AI just never did because –
QBecause why.
ABecause I never did put my finger inside of her.
QDid you not do that because you thought that would be wrong.
AYes.
QSo did you set some form of limits on your perversion in relation to K.
AYes.
QSo you put some limits on the sexual conduct that you thought was okay and was not okay.
AI agree nothing was okay, I just touched, yes.
QSo if it was just touching that was okay with you, at the time.
AI did it, yes.
QBut anything more than touching you didn’t think was okay.
AI didn’t do, no.
I then asked the accused:
QWhat about rubbing her vagina.
AI did rub the top part of it, yes. Not in between, not down between her lips or something like that, no.
QYou described that you rubbed her vagina on both these occasions that you put your hand down her pants.
AI rubbed the top of her – if it is all the same part, the top of her vagina, yes.
QDo you equate touching with rubbing.
ANo.
QYou haven’t mentioned that you rubbed her vagina, you mentioned that you touched it.
AYes, just touching.
QWhat is it. Are they the same thing.
ATouching and rubbing? Yes.
QSo you rubbed her vagina twice.
AThe top part of it, yes.
The accused said that he only ever touched KD but did not go any further. When Ms Giles put to him that KD didn’t seem to like it when he touched her, the accused answered: “How can I say? She never complained”. He agreed that he never asked her whether she ever liked it and he said that he took her lack of complaint to mean that she didn’t have a problem with it.
The accused denied that he touched KD on her vagina on the inside of her clothing on more than two occasions, and he denied that he penetrated her vagina with his finger on multiple occasions.
The accused agreed that he rubbed KD’s nipples under her clothing but said that he did not do so with the intention of making them hard and erect. He said he never thought about that at the time. When asked what he was thinking about when he used his thumb and forefinger around her nipples, he answered: “I don’t know if I did but I did fondle her breasts, yes”. He denied that aroused him in any way and he denied that he was trying to stimulate KD.
When Ms Giles asked the accused why he picked KD to touch in the way he did, he answered: “No answer. I don’t know”. He denied that it was because he was sexually attracted to her. When asked: “Was it because you knew that you could get away with it and she wouldn’t complain”, he answered: “I knew that I could do it and nothing was said, yes”. He agreed that he touched her, she didn’t complain, so he kept doing it.
The accused denied that there was any connection between the fact of KD being pregnant and he stopping touching her. He denied touching KD again after she was pregnant. He agreed that he saw KD many times after she had had her baby and when asked why he didn’t continue to touch her on her breast after that he answered: “I didn’t”. He said he didn’t know why he didn’t. When asked whether it was a conscious decision not to do so, he answered: “Time had gone by”. When asked what he meant by that, he answered: “No, I didn’t”. He added: “I don’t think that there was a conscious point where I decided not to”. He said he never made a conscious decision to stop touching KD.
The accused denied that there was ever an occasion when the family was living at Jervois that KD, her mother and he were on the same bed. He denied that there was ever an occasion when KD and he were on that same bed together at Jervois. He denied that there was ever an occasion when he performed oral sex on KD in that bedroom.
The accused said that he thought it was wrong to touch a child on her vagina. He said that he thought it would be wrong to put a finger inside a child’s vagina. He said that he thought it would be worse to put a finger in it than touch it. When asked why he thought that was worse, he answered: “Just – yes, just do – did”. When asked what he thought was worse about putting a finger inside the vagina rather than just touching it on the outside, he answered: “I didn’t think about it, I just touched”. When Ms Giles said that she was not asking him about that, he answered: “I realise that”. When asked again why he thought that a finger inside would be worse than touching, the accused answered: “Because it just would be”.
The accused denied ever showing KD his penis. He said she has never seen his penis. He said that his penis is circumcised.
The accused said that when the family lived at Karoonda there was a hut where they had some pigs and some poultry. He said there were occasions when he and KD were alone in that hut. He had no idea on how many occasions. He said that he may have touched her on the breasts in the hut, and he did not know on how many times he thought he did that. He denied exposing his penis to her in that hut and attempting to put it in her mouth.
Ms Giles asked the accused about rabbit shooting when they lived at Lyndon Station (which he said was in South Australia). He was asked whether when he and KD were out together when he was rabbit shooting, he ever touched her inappropriately. He answered in this way:
ANo, no.
QWhat about on the breasts.
ANo.
QHow can you be certain about that.
AI was working.
QWhat about when you were driving out there.
ANo, work would start from the camp.
QSo you never ever touched on the breasts while you were working.
ANo.
QDid you try not to touch her on the breasts when you were working.
AI was working.
QBut you had plenty of opportunities to if she was with you, didn’t you.
AYes.
QAnd you had plenty of time with her alone.
APardon, was that a question?
QWhile you were working.
AYes.
QYou had plenty of time with her alone.
AYes.
QSo why didn’t you take that opportunity to touch her.
ABecause I was working.
The accused denied that there was ever an occasion at Lyndon Station when he attempted to put his penis in KD’s mouth. He denied ever asking her to suck his “willy”.
Ms Giles asked the accused about when KD stayed with him at Wallaroo for a while in the caravan park. He said that she “Must have – yes –” stayed with him for a while. He denied anything of a sexual nature happening at Wallaroo. He said “nothing happened at Wallaroo that I remember”. He said that in his caravan he slept in the double bed whilst KD slept in a bed which was converted from a lounge. He said that he had “Absolutely no idea” how many nights KD stayed with him. He couldn’t remember what she did while she was there. He said that he thought she might have gone to his female friend’s house which was at Kadina. He said she possibly went there once.
The accused said that he had no recollection of whether he knew that KD was pregnant when she went to Wallaroo with him. He said he couldn’t remember why KD was with him at Wallaroo.
The accused said that there was an occasion when his female friend and another woman came to his caravan at Wallaroo. KD was also there. The two women had some marijuana outside the caravan. He said that one of the women had a couple of marijuana smokes in the caravan. He said that there was marijuana smoke in the caravan but that did not affect him: “not a great deal anyhow”.
When the accused was asked whether he ever saw KD smoke marijuana, he replied: “No”. When asked whether he ever suggested to her that she should smoke marijuana, he replied: “No”.
The accused denied that there was ever an occasion when he and KD were staying in the caravan that KD slept on the double bed. He denied that there was ever an occasion in the caravan when he and KD were on the same bed. He denied that while they were at Wallaroo he got on top of KD and tried to insert his penis in her vagina and ejaculated on her. He denied knowing that she was pregnant at the time that she was staying with him at Wallaroo. He denied that he was lying when he denied that he knew that KD was pregnant when she was staying with him at Wallaroo. He denied the suggestion that he was lying about that because he knew that if he had sex with her on that occasion she couldn’t get pregnant because she already was.
When the accused was asked if he remembered the last time that he touched KD, he answered: “No”. He said he could not recall why it was that he touched her for the last time and did not keep going. He thought that the last time was “way before we went to Andamooka”. He said he could not remember why he stopped touching her. He didn’t know whether or not he made a conscious decision to stop touching her. He said that “I just did”.
The accused denied that KD’s mother had spoken to him about the fact that KD said he was touching her when they were living at Jervois, and that the first time was not when they were living at Streaky Bay. The accused denied that he had told KD’s mother at Jervois that he had been touching KD in a “play fighting sort of way”. He agreed that he did touch KD in a play fighting sort of way but he denied saying that to KD’s mother.
Ms Giles cross-examined the accused about KD changing her surname to D. When asked whose idea that was, he replied: “I can’t remember”. He said that he didn’t remember whether it was his idea. When it was put to him that it wasn’t KD’s idea he said that he couldn’t remember that in 1992 she changed her name.
Ms Giles cross-examined the accused on his record of interview with the police. When it was put to him that his statement to the police “I never touched her down there” was a lie, he replied that he didn’t remember saying that. He said that when he responded to police “If I had it was only two occasions” he was referring to the two occasions under her clothing, that he could remember. He agreed there were far more than two occasions when he touched her over her clothing in her vaginal area. When asked how many, he answered: “I have no idea, half a dozen maybe, I don’t know”.
The accused agreed that he had told police that he had touched KD on her breasts and when asked whether he told them that he touched her on the breasts under her clothing, he answered: “I don’t know what I was asked”. When Ms Giles suggested that he didn’t tell police that he said he did not remember.
The accused agreed that his current partner (as at the day he was giving evidence) was present during his police interview. When it was put to him that he was lying to the police about the full extent of what he did to KD because of his partner’s presence. he denied that.
When it was put to the accused that he had told police that he did not see KD at all during the time she was pregnant, he said that he did see her when she was pregnant. He said that he did not see her every day but possibly every week. When it was put to him that he lied to police when he told them that he didn’t see her when she was pregnant he answered: “I don’t remember the police asking me that question”. He said that he did not remember hearing the police asking that question when the video was played in court two days before.
The defence case closed after I was told there were two agreed facts. They were:
Firstly, (KD’s mother) states that the first time she was told of allegations of sexual molestation of her daughter KD by (the accused) was by Mr L at Streaky Bay.
Secondly, (KD’s mother) later that day confronted (the accused) who made an admission without factual detail of sexual molestation of KD and he then left Streaky Bay.
Findings and Conclusions
With some possible exceptions all of the evidence KD gave at the hearing relating to conduct of a sexual nature that the accused did to her form part of the charge on which he pleaded guilty in a limited way. The possible exceptions are what she described as occurring in places that are outside the jurisdiction of this court. Broken Hill is outside the State of South Australia and I find that Lyndon Station is also, although the accused said that it was in South Australia. It seems to be north of Broken Hill. Mildura is outside the jurisdiction. KD referred to the accused touching her breasts continually at what the transcript refers to as Cowra. KD’s mother refers to the accused working at Calwa, and she does so in the context of the family moving to New South Wales, living in tents on the riverbank, and she bringing the children “down to Broken Hill” from Calwa. I do not know where Calwa is and whether Calwa is the same place as Cowra.
The accused’s evidence of admitted touching was not specifically directed to the places where it occurred. KD described most of the touching of her by the accused in Broken Hill, at Lyndon Station, in Cowra and in Mildura as being similar to touching of her by him in South Australia which was of the type that the accused admitted by his pleas of guilty to certain particulars of the charge. The conduct the subject of particular (i) was an exception to this. This related to conduct which the accused denied and was his alleged attempt to insert his penis in KD’s mouth. KD’s evidence was that he attempted to do that on two occasions. One was in Karoonda in South Australia, whilst the other was when they were living at Lyndon Station which is probably in New South Wales. So the latter allegation by KD allegedly occurred not only outside the jurisdiction of this court but was a second attempt by the accused to insert his penis into KD’s mouth when only one occasion is alleged in the particular. It is not absolutely clear to me whether the allegation in the particular was limited to an event which occurred within the jurisdiction of this court, or whether that was another allegation of that type made by KD in her evidence which maybe she had not referred to before the hearing before me. She was not cross-examined specifically about that second allegation so I do not know what the position is.
Whatever it is, the allegations of sexual touching and other sexual conduct which is said to have occurred outside this court’s jurisdiction could, in that sense, if proved, be considered to be discreditable conduct that does not form part of the charge and particulars alleged against the accused.
It was not suggested that I exclude any of the evidence from the hearing before me as it was the same or similar conduct that was alleged against the accused within South Australia and it occurred during the period particularised in the offence charged.
I propose to consider all of the evidence that KD gave as to the acts and conduct which fall within the particularised conduct on the Information against the accused, regardless of where it occurred. The one act which possibly falls into a discreet and different category is the attempt by the accused to get KD “to suck his willy again” at Lyndon Station. This falls into a different category because it is only alleged that he attempted to do that on one occasion and not “on more than one occasion”, being the phrase used in other particulars that do not refer only to one occasion.
Another matter to which I refer now is the evidence of KD that she first told her mother at Jervois about the accused touching her in a sexual way. She thought she did that just after he had licked her vagina. Her evidence was that she told her mother that the accused was touching her “boobs and privates and stuff”. She said her mother went and confronted the accused and he said that he probably did, he was sorry, but it was an accident during wrestling with her. KD said that the next conversation she remembers having with her mother was at Streaky Bay just before the accused left, finally separating from her mother. She said that she never told her mother the details of the accused’s sexual touching of her and, in particular, she never told anyone about what she described as happening in the accused’s caravan at Kadina when the accused tried to have sexual intercourse with her.
The other evidence was that Mr L saw the accused touching KD. It appears that Mr L told KD that later. She said she really did not say much at all to him although Mr L said that he would be willing to help or put a statement in or something. Mr L’s evidence was that he had spoken to KD over the years about the accused abusing her and KD told him that it started when she was about 11 or 12 years old. He stated that she never fully explained to him what form the abuse took but he knew that KD and the accused had had sex and that the sexual intercourse was instigated by the accused.
The evidence to which I have just referred is potentially important because it may be relevant in assessing the truth of KD’s evidence in court regarding the incidents of touching of her by the accused which he denied. KD’s evidence about telling her mother when they were in Jervois could be used by me in assessing KD’s evidence and in assessing her credibility and reliability of what she said in evidence before me. That also potentially applies to Mr L’s evidence as to what KD told him. Mr L’s statement that he saw the accused grab KD on her breast is potentially evidence in support of KD and her credibility and reliability.
The hearing before me was atypical of cases where judges have to consider complaints made by a complainant to others and how such complaints could be used when assessing a complainant’s evidence. Here, the accused has admitted that he touched KD sexually both over and under her clothing on many of occasions thereby making him guilty of the offence for which he was charged. KD’s evidence as to what she told her mother in Jervois was that she told her in general terms about the accused touching her inappropriately. That, if she did tell her mother that, would be consistent with what the accused has admitted doing over several years, including at Jervois. KD’s mother’s evidence is that she was not told by KD about any of these matters until Streaky Bay. In that sense KD’s mother’s evidence could be used by me to question KD’s credibility and reliability.

A similar comment could be made as to Mr L’s statement that he learnt from KD that she and the accused had had sexual intercourse. KD’s evidence is that they did not have sexual intercourse although the accused attempted to have penile/vaginal sexual intercourse with her in his caravan at Kadina or Wallaroo. Otherwise, Mr L’s evidence is that he was not told the details of the accused’s abuse of KD and KD’s evidence was that she never told Mr L of those details, including the attempted sexual intercourse in the accused caravan.
I shall make findings as to some of these matters later but, for present purposes, I consider that the complaint evidence of KD to her mother at Jervois and Mr L’s evidence as to what he was told by KD much later should not be used by me in any way to support KD’s credibility and reliability. My principle reason for that is the generality of KD’s evidence as to what she told her mother and Mr L. If they were used by me to bolster KD’s credibility and reliability they could equally be used by me to bolster the accused’s credibility and reliability because he admitted the general allegations of sexual touching when he was first spoken to by police and in his evidence before me. He also admitted the general allegations to KD’s mother in Streaky Bay.
Furthermore, I am not prepared to rely on what KD told me that the accused had told her mother when her mother challenged the accused at Jervois about KD’s complaint to her mother. First, KD’s mother gave no evidence of that and secondly, the accused denied saying anything like that to KD’s mother.
In those circumstances I do not rely upon or give any weight to the evidence of complaints when assessing the reliability or credibility either of KD or of the accused in a favourable way.
As a result I cannot find the denied particulars of the charge against the accused proved unless I am satisfied of the truth and of the reliability of the evidence of KD as to the sexual acts and conduct that comprise the denied particulars. If I do not accept her evidence as to those sexual acts and conduct as truthful and reliable, and if I do not believe and accept them beyond reasonable doubt, then I cannot find that the accused committed those sexual acts and conduct on KD. It is not, of course, for me to determine whether I prefer KD’s evidence as to these matters or the accused’s evidence as to them. What I have to do is to decide whether, on all of the evidence, I am satisfied beyond reasonable doubt that the Crown has proved that the accused committed any or all of the acts and conduct alleged by KD, and denied by the accused, beyond reasonable doubt.
KD’s evidence was that the accused first touched her by “groping her breasts” when she was possibly eight years of age. When she gave evidence KD was 38 years old. The accused said that he first sexually touched KD when she was nine or ten years old. He would have then been about 33 years of age. When he gave evidence he was 61 years of age.
KD’s evidence was that the accused touched her sexually over a period of about at least ten years. The accused said that he did so for about five years.
The accused said to police that he and KD’s mother were together for ten or eleven years, whilst KD’s mother stated that they were together for about seven years.
All this means that KD was between about eight years old and 18 years old when she said the accused abused her sexually. The accused was probably between 33 years old and 43 years old. The events about which each gave evidence occurred between 18 and 28 years ago. That is a very significant period of time. It may have significant deleterious effects on the ability of the accused to defend himself against the particulars of the charge which he denies. It gives rise to a significant forensic disadvantage to him which might adversely affect his ability to have a fair hearing as to the disputed facts. Unless this is acknowledged there is a real risk that the accused may suffer a miscarriage of justice by being wrongly found guilty of particulars he denies.
The significant delay in this matter has given rise to a significant forensic disadvantage to the accused, not only in respect of his ability to give evidence from a memory which may be tarnished by the effluxion of such a lengthy period, but which might result in a diminution of his ability effectively to conduct a case in his defence. That will include the cross-examination of KD in a way that may cast doubt upon her credibility and her reliability, and will also include his ability to investigate and to marshal potential evidence and witnesses that may support a case in defence, including a challenge to KD’s credibility and reliability.
In this case there were avenues of investigation that the accused could have explored in preparation for the disputed facts hearing. Evidence from people who may have been in or at his caravan in Kadina or Wallaroo is one example. Also, possibly alibi witnesses could have been sought and presented at the hearing who may have been able to give evidence as to the three denied particulars which were each alleged to be constituted by one sex act.
It is for these reasons that I must, in considering the evidence and in reaching my decision as to the disputed particulars, scrutinise KD’s evidence with great and particular care. I consider that in this case I must also acknowledge the significant forensic disadvantage the accused had in giving his evidence so long after the events when assessing him and the evidence that he gave at his trial and what he said to police.
I consider that I must do the things to which I have just referred notwithstanding the fact that the accused gave evidence about those sexual acts which he admitted having committed on KD for five years in the late 1980s.
I now summarise the evidence as to the sexual touching of KD by the accused. I emphasise it is only a summary. I have already dealt with it in more detail.
KD said that it started in Jervois, possibly when she was eight years old when the accused “groped her breasts”. He did that over her clothing on numerous occasions. He then did that under her clothing on more than a dozen occasions. He would squeeze her breasts and her nipples and take her nipples between her thumb and forefinger. He did all this inside and outside the house. KD later agreed with Ms Stokes that the abuse of her started in 1985 when she was nine or ten years old.
KD said that at Jervois the accused also touched her on her vagina. The first time he did that he pushed his fingers between her undies and rubbed her vagina. He did that after he had touched her near the vagina over her clothing. After that occasion he touched her on her vagina, mainly on the outside of her vagina but there were occasions when his finger went slightly inside. At Jervois he never pushed his finger inside of her vagina.
KD said that at Jervois the accused once licked her vagina. He did that after touching her vagina with his hand and then he spread her legs whilst she was on her back on a bed, he pulled her underpants to one side and he licked her vagina.
KD said that after the family moved to Karoonda the accused regularly touched her breasts on the inside and outside of her clothing. He also did that on the outside of her clothing in the car to and from the bus depot. He touched her vagina lots of times and sometimes slightly penetrated it but she did not know if he did that deliberately as he was rubbing up and down on her vagina. She said the first time that happened was when she was sitting on the back of a motor bike. He was sitting in front of her. Her mother was in the vicinity. He used his left hand to reach behind him and put his hand under her pants where he rubbed her vagina whilst his finger kept pushing at the edge. His finger went inside her vagina. She was maybe 11 years old when that happened. She said he did that again a couple of times over the years.
KD said that it was at Karoonda that she first saw the accused’s penis. In his shed there he pulled his shorts down and “his willy flashed out right in front of my face”. The next time she saw his penis at Karoonda was when they were in a truck. He pulled his pants down and told her “to suck his willy”. He tried to “shove it in my mouth” and it rubbed on her teeth and lips. He did that on one further occasion, when they were at Lyndon Station.
KD said that when they were living at Merbein Caravan Park at Mildura she was maybe 13 years of age. There the accused touched her on her breasts and vagina but only over her clothing.
When the family moved to Lyndon Station the accused touched her breasts over and under her clothing and he touched her vagina only over her clothing. There, however, when they went out to collect rabbits and she was sitting on the back of the truck the accused tried to get her “to suck his willy again”. She said that he said to her “I’ll eventually do it sometime – or at one time”.
KD said that at Broken Hill the accused touched her breasts over her clothing and he touched her vagina both over and under her clothing.
KD said that she fell pregnant when she was living at Dalkeith after her mother and the accused separated at Broken Hill. She was 15 years old. When the accused and her mother got back together again she went with the accused to Kadina or Wallaroo and stayed in his caravan. There were only the two of them. It was on that occasion that she was given marijuana to smoke and alcohol to drink. On the double bed in the caravan the accused tried to have penile/vaginal sexual intercourse with her. She said that the accused “was trying to poke (his penis) into me”. She was pregnant at the time.
KD said that after that when they lived at Dalkeith the accused only touched her on her breasts over her clothing. When they moved to Cowra the accused touched her breasts continually. She was pregnant at Cowra.
KD said that when they moved back to Karoonda she had her baby. That was on 16 January 1992. She was 16 years old. The accused touched her breasts over her clothing continually at Karoonda. He did not touch her breasts under her clothing.
KD said that when they lived at the Dalkeith Caravan Park again for six months the accused occasionally touched her breasts over her clothing.
KD said that at Andamooka the accused quite regularly touched her breasts over her clothing and under “if he got the chance”.
KD said that she told her mother again at Streaky Bay. She thought that was in 1996 when she was about 21 years old. That was the last time she saw the accused as he packed up and moved out after she told her mother.
When the accused was spoken to by police on 13 November 2012 he told them that he rubbed KD’s breasts over her clothing when she was a child. He said that started in 1985. He said nothing to police about touching KD’s breasts under her clothing. He denied touching her vagina at any time. He denied performing cunnilingus on KD. He denied ever touching her “down there” but he then almost immediately went on to say that if he had it would have only been on two occasions. He said that the first occasion was at Karoonda when he touched the skin at the top of her vagina but did not insert anything into it. The other occasion was in a caravan park on the river somewhere.
The accused accepted that it was correct that there was a constant state of rubbing of KD by him for five years. He said he started touching KD one and a half years after his relationship with her mother started, but that only involved her breasts. He said that he never did anything other than touch. He said he never gave her mother any reason for touching her daughter when she spoke to him and he decided to leave the house. He said there never was a reason.
In his evidence before me the accused accepted that there was a course of conduct by which he touched KD’s breasts over and under her clothing for five years, when she was ten years old to when she was 15 years old.
The accused said that he touched KD’s vagina outside her clothing more than once over a couple of years. He said it was half a dozen times. He said that he touched her vagina inside her clothing twice, that he could remember. He did not describe those until cross-examination.
The accused said that there was no correlation between KD’s pregnancy and his stopping touching her on the vagina. He said he did not know why he stopped touching her vagina. He said that he stopped touching her breasts because she was pregnant.
In cross-examination the accused described the two occasions he touched KD on the vagina under her clothing. He said that the first time was when both of them were on a motor bike. He agreed that her mother was close by. He said that it was not possible that one of his fingers went inside her vagina, and one of his fingers did not go inside her vagina. He said he could be certain about that “because she was sitting on the motor bike”. He said that the second occasion occurred when they were in a tent somewhere on a river. It was in the middle of the night. He rolled over and touched her. He did not know why. He touched her in the same way as occurred on the motor cycle.
I thought that the accused was a very unimpressive witness. I say that after taking account of and allowing for the fact that he did not strike me as a particularly sophisticated man with a careful and precise way of expressing himself and in giving his evidence. I also allow for the fact that he was giving evidence mostly about events which occurred at least 20 years ago. Notwithstanding that, he maintained that he had a clear recollection of certain events and remained firm in those recollections.
I consider that the accused’s responses to Ms Giles during her cross‑examination of him were particularly unconvincing. Some were incredible.
Ms Giles explored why it was that the accused did what he admitted doing to KD by way of sexual abuse and why he did not go further and put his finger in her vagina when his hand was rubbing it. She also explored how he felt about what he was doing to KD.
The accused could not explain, or at least did not explain, why he did what he admitted doing. At one point he said that he did not think it was wrong at the time. He said on several occasions that he did what he did “because he did”. He said he did not know whether he enjoyed touching KD although he denied that he was sexually attracted to her and he denied that he was sexually aroused when he touched her. He said he did not see what he was doing as something he enjoyed, he just did it.
The accused said that he did not think about whether KD would tell anyone about what he was doing to her. He did not think about whether she liked it. He said, in this context, “she never complained”. He took that to be that she did not have a problem with what he was doing although he never asked her whether she wanted him to touch her. As he thought she did not have a problem with it, he kept going.
I cannot reconcile on any of what I have referred to in the last two paragraphs with his statement to police that what he did had been “nearly killing (him) for years”.
The accused said that he stopped touching KD’s breasts because she was pregnant. He maintained, however, that there was no correlation between KD’s being pregnant and he stopping touching her vagina. That may have been because he had told police that he had stopped touching her vagina some years before KD’s pregnancy. He said that he did not know why he stopped touching her vagina. He could not recall the last time he touched KD or when he stopped.
The accused said that he thought it was wrong to touch a child on her vagina and it would be wrong to put a finger inside a child’s vagina. When asked he said it would be worse to put a finger in a child’s vagina than to touch it. When asked why, he answered: “I didn’t think about it, I just touched”. When Ms Giles said that she was not asking him that, he answered: “I realise that”. When pressed as to why he thought a finger inside would be worse than touching, he answered: “Because it just would be”.
When the accused was being asked why he never put a finger inside her vagina when he was touching her vagina, he answered: “(It) is one thing to touch and another thing to enter. And I never did”.
When Ms Giles asked the accused why he never touched KD when they were out alone rabbit shooting he explained that he was certain that he did not do that because he was working. He said “Work would start from the camp”. He said that he never took the opportunity that he had to touch her when they were out rabbit shooting “because I was working”.
I do not believe the accused’s evidence as to the matters to which I have just referred which were elicited by Ms Giles during her cross-examination of the accused. I consider that the accused was being untruthful in his responses to those questions. I cannot believe that the accused did not think about why he was touching KD. I do not believe him when he said that he was not aroused when he touched KD. I am satisfied and find that that is why he touched her and why he continued to touch her over several years. I do not believe that he cannot now remember how he felt about what he was doing at the time because it was too long ago as he asserted, and I cannot and do not believe that it was also too long ago for him to recall whether he enjoyed touching KD on her breasts and vagina both over and underneath her clothing.
I do not believe that the accused stopped touching KD on her breasts when he learnt that she was pregnant. I am satisfied that he continued to touch her breasts when she was pregnant as I do not believe that he thought that that was a reason for ceasing touching her breasts.
There were a number of particular features of the accused’s evidence which raised significant questions in my mind as to his credibility and his reliability.
He did not tell police when interviewed that he had touched KD on her breasts underneath her clothing. His assertion that he could not remember what he was asked or whether he was asked that when it was suggested to him that he did not tell police that was, I consider, contrived and totally unconvincing. In his evidence he agreed with the suggestion that he engaged in a course of conduct by which he touched KD’s breasts under her clothing for about five years.
During his interview with police he denied ever touching KD “down there”, but almost immediately said that, if he did, it was only on two occasions, one at Karoonda and a second in a caravan park on the river. He told police that he touched KD’s vagina on the skin at the top of the vagina but immediately asserted that he had not inserted anything into it. When he gave evidence about touching KD’s vagina inside her clothing he answered that he never “deliberately” tried to do that or did put his finger inside her vagina. He told police that he had “thought really hard” about his touching of KD on her vagina, but he could only remember doing that twice. I considered that he was dissembling in this evidence and his answers were inconsistent with those I referred to above by which he inferred that he had not told police things that he was not asked.
There were also the accused’s answers to the police in his record of interview about the events in his caravan at Kadina or Wallaroo. He told police that he did not remember smoking marijuana with KD at Kadina or Wallaroo, he denied that KD had been at that caravan park, and he denied that there was a lady there and that KD had smoked marijuana there. It sounded during his interview with police that an event involving KD, a caravan at Kadina or Wallaroo, marijuana and a woman never occurred.
That was not the accused’s position when he gave evidence before me, particularly when cross-examined by Ms Giles. When that occurred the accused said that KD stayed with him at Wallaroo for a while in his caravan in the caravan park there. He said that she “must have” stayed with him for a while. He then said that KD may have gone to the house of a female friend of his when she was there. He said that that female friend and another woman came to his caravan at Wallaroo when KD was there. There was some marijuana smoked, including marijuana smoked in the caravan. He said that that smoke did not affect him, or “not a great deal anyhow”, implying he was affected to some extent. Notwithstanding that evidence, the accused said that he had no recollection of whether he knew that KD was pregnant at that time. He denied that he saw KD smoke marijuana and he denied he ever suggested to her that she should smoke some marijuana. He denied that he tried to have sexual intercourse with her on the double bed later that same night and that he ejaculated on her. He denied that he was lying when denying that he knew KD was pregnant and he denied that he was lying about that because he knew that if he had sex with her she could not get pregnant because she already was.

When the police spoke to him the accused said that he did not see KD at all during the times she was pregnant. When that was put to him in evidence before me he said that he did not see her every day but possibly every week. When it was put to him that he lied to police when he told them that he did not see her at all when she was pregnant he answered that he did not remember the police asking him that question. He said he did not remember hearing the police asking him that question when the video was played in court.
I am satisfied and find that the accused lied about these matters. I am satisfied that he lied to police about what he told them about his caravan at Kadina or Wallaroo, and the smoking of marijuana by friends of his and by KD. I am satisfied that he lied to me about the events at his caravan that night at Wallaroo.
I am satisfied that his lies to police were at least partly due to the fact that his then partner of several years was present during the police interview. I am satisfied that he was not prepared to say anything about that incident because of his partner’s presence at the interview and his belief that if he said that KD stayed with him at the caravan over night and that marijuana was consumed, that would lead to further questions about how that all came about and what happened at the caravan both at the time the other women were there and later.
I am further satisfied that it was because of the presence of his partner at his record of interview that the accused told police that his touching of KD was in a limited way only. He said at one time during his interview with police that it “is one thing to touch and another thing to enter”. I am satisfied that that was not the first time he had used that phrase. I am satisfied that he had, prior to going to police with his partner, used that phrase in telling her of his touching of KD to which he was going to confess to police. I am satisfied that he told police of two occasions he had touched KD’s vagina on the skin, after initially denying doing so, only because he had previously told his partner about these two occasions. He feared, even by telling police what he did, that his partner might leave him. He said something to that effect later in his record of interview. I am satisfied that he was convinced that his partner would leave him if he said in her presence that he had done more to KD than he had told her and then told police.
I am satisfied that at some stage during his record of interview with police the accused became worried about where the interview might be going and what he might be asked and not be able to answer appropriately or convincingly. I am satisfied that he was not so worried about what the police might think but what his partner might think of his answers. When he became worried that was when he suggested that she had got “the gist of what’s going on” so she did not then have to remain. When she replied “Probably heard the worst”, the accused could not then do otherwise than continue to maintain that his touching of KD was limited to the ways of which he had already spoken.
The fact that I do not believe the accused’s account on crucial matters does not mean that I must find that he did to KD what he denied doing to her. He denied that he licked her vagina on one occasion; he denied that he penetrated her vagina with his finger on more than one occasion; he denied that he attempted to penetrate her vagina with his penis on one occasion; and he denied that he attempted to insert his penis in her mouth on one occasion. I still have to be satisfied that he did any or all of those things beyond reasonable doubt.
I was very impressed with KD and in the manner in which she gave her evidence. She gave it clearly and carefully. She did not seem to me to exaggerate or embellish her account of what she said happened to her. She had plenty of opportunity to exaggerate what happened to her but she did not, I thought, take any such opportunity. I consider that she described what happened in the various places she described it happening simply, carefully and without apparent rancour towards the accused.
KD described that at Jervois the accused’s finger “would poke and scratch at that part of my skin” where she was referred to “the bottom where my hole is” (speaking of her vagina). She said “but he never pushed his finger inside of me”. This evidence was a convincing and compelling memory that a mature woman had as a young child when describing what was happening to her not long after it started. I considered that the same was the case when she spoke of the accused’s holding “my lips apart and licked my vagina top” when she described the conduct which constitutes particular (c) of the particulars of the offence charged against the accused. Her evidence that whilst this was happening she “kept my eyes closed and tried to pretend I was asleep” also sounded to me like a memory that stayed with KD over many years and that it was a reliable and true account of what she remembered happening.
KD’s evidence about the accused’s finger sometimes penetrating her vagina was also convincing, compelling and believable. She said that every “now and then he slightly penetrated my vagina, but I don’t know whether it was deliberate or not”. I thought that was a description by a truthful witness and not one of a witness who was scheming and deliberately untruthful or of a witness who was trying to make her account as plausible as possible. I thought that KD was a witness who was telling me what she honestly remembered when she could well have exaggerated and embellished an account such as that.
I have considered some inconsistencies in the evidence when assessing KD’s credibility and reliability regarding the disputed facts. There was KD’s mother’s statement that KD insisted on going with the accused when the accused went out shooting. There was also a statement by KD’s mother that the first time she was told allegations of sexual molestation of KD by the accused was by Mr L at Streaky Bay. There was the statement by Mr L that KD told him that the accused’s abuse of her started when she was about 11 or 12 years old and that she was moved to a boarding school to try to hide what was going on. He stated that he was told that the accused had had sex with KD a lot over the years. These statements were inconsistent with KD’s evidence.
I have carefully considered whether these inconsistencies give me cause to question or doubt the credibility or reliability of KD’s evidence. I have concluded that they do not. I am satisfied and find that KD’s evidence is both credible and reliable as to the matters that were disputed at the hearing before me and that her evidence is credible and reliable concerning the frequency and places at which the accused committed sexual acts and conduct on her of the type that he admitted but said that they occurred less frequently and over a lesser period of time.
I have already referred to some aspects of the accused’s evidence as to the events one night in his caravan in the caravan part at Kadina or Wallaroo. I believe that KD’s account of that night is reliable and credible. I disbelieve the accused’s account. It seems certain that the occasion occurred whereby the accused and KD were sleeping alone in his caravan at Kadina or Wallaroo. A friend of the accused was there and marijuana was smoked. I am satisfied and find that the accused told KD to smoke some marijuana. I am satisfied and find that he told her to do that and to enjoy it, and that he added “it would be better for us later”. I am satisfied and find that when the accused said that he was referring to later when he and KD would be alone in the caravan, when he had already decided to try and have sexual intercourse with KD. I am satisfied and find that what happened that night both before and after the accused and KD were alone was as described by KD. I do not find that the accused’s penis went inside KD’s vagina but I am satisfied and find that he was trying “to poke it into (her)”. I find that he was trying to have penile/vaginal intercourse with KD and that he did that knowing that she was in no physical condition to stop him from trying. That was why he told her to smoke some marijuana and to drink some alcohol. I am satisfied that he intended to have sexual intercourse with her because he knew that she was pregnant. I am satisfied and find that he ejaculated on KD’s vaginal area before he said good night and went to sleep.
I am satisfied and find that KD’s evidence that in an Atco hut at Karoonda the accused pulled his shorts down and stood in front of her face with his penis exposed was truthful and reliable.
I am satisfied and find that later, at Karoonda, the accused tried to get KD to suck his penis when she was sitting on a step below the door of a truck when the two of them had gone to a back paddock to feed the pigs. I am satisfied and find that the accused told KD “to suck his willy”. When she said no he tried to “shove it in (her) mouth”. It rubbed on her teeth and lips but she kept her mouth closed.
I am also satisfied and find that although it was not particularised the accused tried to get KD to suck on his penis when they lived at Lyndon Station. I am further satisfied and find that the accused told her then that she would eventually suck on his penis some time. She did not do it on that occasion as she kept her mouth shut as the accused tried to put his penis into her mouth. Whilst this act could not be used to make out the offence charged I can use it in sentencing the accused. The same applies to other sexual acts and conduct of the accused on KD outside the jurisdiction.
I find proved, beyond reasonable doubt, the disputed particulars.