R v Dingle - [2023] SADC 155

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DINGLE
Criminal Trial by Judge Alone
[2023] SADC 155
Reasons for the Verdicts of her Honour Judge Telfer
10 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - CROSS - ADMISSIBILITY - SIMILARITY OF ACCOUNT
The accused is charged with Maintaining an Unlawful Sexual relationship with his two stepdaughters RG and MG. The accused was in a domestic relationship with the complainant’s mother Ms LB between 2005 and 2009. The family frequently moved house as a consequence of the accused’s employment with the Australian Defence Force. The two counts particularise acts of sexual abuse alleged to have been committed against RG and MG while the family resided in South Australia from late 2007 to mid 2009. Similarity of account between the evidence of RG and MG found to bear on the likelihood of the events occurring as alleged by each complainant.
The accused is guilty of count 1 and guilty of count 2.
Evidence Act 1929 (SA) ss 34P, 34CB; Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Procedure Act 1921 (SA) ss 102 (1), 102 (6)(b), referred to.
R v Winner (1995) 79 A Crim R 528; R v Keyte (2000) 78 SASR 68; Hock v The Queen (1988) 165 CLR 292; R v C, CA [2013] SASCFC 137; R v MJJ; R v CJN [2013] SASCFC 51; R v Jones [2018] SASCFC 80, considered.

R v DINGLE
[2023] SADC 155
Introduction

The accused Corbin Brett Dingle is charged with two counts of Maintaining an Unlawful Sexual Relationship with a Child. Count 1 is alleged to have been committed against his former stepdaughter RG and count 2 against his former stepdaughter MG.
The relationship between the accused and the complainant’s mother Ms LB began around the beginning of 2005 and ended in August 2009. During that period RG was between about 11 and 15 years of age and MG was between about eight and 13 years of age. The accused, Ms LB and their children moved between a number of premises during the period of their relationship as a result of the accused being deployed to different locations as part of his employment in the Royal Australian Navy. The charged period reflects the period when the family was living in Wynn Vale (sometimes referred to as Golden Grove) and then Greenwith in South Australia, when the accused was deployed to work in Recruitment for the Australian Defence Force.
It is alleged that during the period that the accused lived with RG and MG he committed acts of sexual abuse against each of them, either in the bathroom or bedrooms of various premises. The sexual acts included digital penetration of each complainant’s vagina, indecent assaults and causing each child to expose their body. Prior uncharged acts of sexual abuse alleged to have been committed in New South Wales and the Northern Territory were also relied on by the prosecution.
Neither RG nor MG disclosed the sexual abuse until they were adults.
Preliminary Directions
In a trial by Judge alone it is not necessary for the Judge to replicate every direction that would be given in a summing up to a jury. The following observations by Kirby P (as he then was) have been cited with approval in this state:[1]
It is not self-evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. Similarly, the tactical reasons which might require, or suggest, silence by the parties on a particular issue in a trial before a jury will not apply, at least to the same extent, before a judge sitting alone.
...
The judge's duty, as in all judicial activity, is to provide reasons for the decision, that being an incident of the judicial office. Those reasons must be adequate and appropriate to sustain the judge's orders. (References omitted)
[1] R v Winner (1995) 79 A Crim R 528 at 30-531, cited in R v Keyte (2000) 78 SASR 68 at [54].
With these principles in mind, I set out some preliminary matters which have guided my consideration of the evidence in this matter.
Presumption of Innocence and Right to Silence
The accused has the presumption of innocence in his favour. He is innocent of the charges unless and until the prosecution prove his guilt beyond a reasonable doubt, and the accused need not prove anything. He cannot be convicted on any count unless the evidence relevant to that count proves the elements to the requisite standard.
In this matter the accused chose not to give evidence. He was under no obligation to do so, and I draw no inference from the fact that he exercised his right to silence at trial.
Discreditable Conduct
By a discreditable conduct notice filed on 19 August 2021 the prosecution gave notice that their case relied upon propensity reasoning.[2] Counsel for the accused objected to the evidence being used in that way. As the objection did not concern the admissibility of the evidence, but the use to which it was put, I heard the evidence and will outline later in these reasons how I have used various items of evidence properly characterised as evidence disclosing discreditable conduct.
[2] Evidence Act 1929 (SA) s 34P (2)(b) (‘the Evidence Act’)
People and Locations
Evidence was led about people and locations which was consistent between various witnesses. This is a useful background to the accounts of the witnesses on more controversial matters.
During the relevant period Ms LB had three children: RG (the eldest), JG (the next eldest) and MG (the youngest). The accused had two children: Zac and Jaylen Dingle.
In late 2004 to early 2005 Ms LB was living at Sanctuary Point, NSW close to HMAS Creswell, a Naval Base. Ms LB was not a member of the defence forces but was employed at the base. The accused was a member of The Royal Australian Navy working as a chef. Within three or four months of meeting the accused, Ms LB and her three children moved into the home he occupied with one of his sons Zac Dingle. His other son Jayden Dingle lived elsewhere.
A short time after the move the accused, Ms LB and the four children moved to a larger house that was allocated by The Navy because of the accused’s changed circumstances. That house was in the suburb of Vincentia, NSW. In January 2006, about six months later, the accused was posted to Darwin. That posting required him to work on patrol boats and be away from home for lengthy periods of time.
When the time came to move to Darwin the blended family drove from NSW to Adelaide where they visited relatives. They then drove north through the centre of Australia to Darwin. They stayed in a caravan and tents along the journey.
The family was first allocated a house in Durack, and subsequently a house in Gunn. Both locations were in the suburbs of Darwin.
From the end of the school year in 2007 the accused was posted to Adelaide. He obtained a position which was a promotion in rank working in defence force recruitment.
All four children, RG, JG, MG and Zac Dingle moved to Adelaide to start school at the beginning of 2008. The family was allocated a house in Wynn Vale and then subsequently in Greenwith. The two eldest children RG and JG started school at Golden Grove High School. MG and Zac Dingle started at Wynn Vale Primary School.
By August 2009 the relationship between the accused and Ms LB had deteriorated. At the end of the school term Ms LB, RG, JG and MG all left Adelaide and returned to NSW. The relationship between Ms LB and the accused ended acrimoniously.
While living in Adelaide the accused, Ms LB and their children operated a food truck business called the Taco Hut. They would take the food truck to events including defence force events and serve take away food. Following the breakup of their relationship, Ms LB discovered that the accused was in a relationship with an employee of the Taco Hut food truck. This development added to the acrimony of the situation.
The Evidence of RG and MG
RG was 28 at the time she gave her evidence. She told the Court she was in Year 6 at school when she first met the accused. She believed that Vincentia was the first home that she moved into with the accused.
RG said the house at Vincentia was two storey. She and MG had their own rooms, and JG and Zac Dingle shared a room. At this house she and MG were bought new beds. MG’s was painted pink and hers was painted purple.
RG said that from the beginning of the relationship both the accused and Ms LB were alcoholics. When they were intoxicated they would argue and the arguments would become physical. RG reported one incident when the accused became aggressive towards her when he was intoxicated, and when she reported that to her grandmother, Ms LB got angry with her. She said this “made me feel like I couldn’t tell people anything of what was going on because otherwise people were going to get hurt”.[3] She said the accused was abusive towards his son and often used a belt to discipline him.[4]
[3] TS 19.
[4] TS 19.
RG described a poor relationship between her and the accused. He would call her names including “bitch” and sometimes destroyed her property in anger.
RG told the Court that on the road trip between Adelaide and Darwin in early 2006 the family camped near Uluru. The accused told her to sleep with no top on because it was so hot. RG said Ms LB agreed with the advice.
RG started Year 7 in Darwin. In Darwin Ms LB and the accused’s drinking became worse. RG felt out of control in the environment she was living in and often felt unsafe.[5]
[5] TS 24.
In Darwin, for the first time, the accused began to encourage RG and MG to dye their hair different colours. As RG was rinsing the colour the accused would come into the bathroom and lean into the shower while she was naked to help her wash her hair. Other times he would come into the bathroom and watch her dress and undress.[6] The accused instigated a rule that the bathroom door was not to be locked.[7]
[6] TS 24.
[7] TS 24.
RG recalled that in each of the houses in Darwin she and MG had a room to themselves. She described a bedtime routine that began while they were living in Darwin. At least three times a week after she had gone to bed the accused came into her room and lay on her bed. He touched her breasts inside her shirt. As time progressed, he began to also touch her genital area.[8]
[8] TS 27.
RG said she felt uncomfortable but did not know how to complain, as she was frightened of him and there were high levels of aggression in the home.[9] The accused told her that “it’s normal, this is what Dads do”. As time went on, the accused’s behaviour progressed to inserting his finger inside her vagina, commenting that “you’re enjoying it”.
[9] TS 27.
While RG was still in primary school, she complained to the principal of the school that her mother had been violent towards her. A representative of a government agency contacted her grandmother about the allegations. RG’s grandmother told the representative that RG was lying. RG told the Court “that day I didn’t learn that I would get taken out of home and that would be bad. I knew that if I spoke up, the people that are hurting me would know and I had a fear that I wouldn’t be taken out of the home at all…I didn’t know what would happen to my siblings and so I didn’t speak up”.[10]
[10] TS 28.
RG contrasted her relationship with the accused with the relationship that he had with her younger sister MG. The accused called MG “princess” and would ensure she got whatever she wanted. RG said there were occasions when the accused would allow MG to choose the punishments to be meted out to other children in the family.
RG, MG and JG visited their father in NSW from time to time in the school holidays. RG recalled one occasion towards the end of Year 8 when she travelled to NSW. While on that trip RG was communicating with a boy from school on the internet. The communications included her showing him her breasts over the internet. RG’s father discovered what she had done.
RG returned home unaware that the accused had been told about the incident. RG gave evidence that the accused called her a slut. He accused her of having had sexual intercourse with the boy. When she protested that she had not, the accused insisted that he look inside her vagina to check the status of her hymen.[11] The accused then used his finger to touch her vagina and looked in her genital area.
[11] TS 32.
At the end of 2007 the family moved to South Australia. They were assigned a property in Wynn Vale and RG started Year 9 at Golden Grove High School. RG said the home environment remained aggressive, abusive and sometimes violent.[12]
[12] TS 33.
In South Australia, the accused continued to enter the bathroom when RG was naked to assist her to wash her hair after it had been dyed. He continued to come in and out of rooms she was in to watch her as she changed her clothes. On occasion the accused said “I’m your Dad. I should be able to see you whenever I like”.[13]
[13] TS 34.
RG said that the pattern of sexual touching in her bedroom prior to sleeping also continued once the family moved to Adelaide. That included touching her breasts and genitals.[14] The touching of her genitals was often accompanied by the accused commenting that she should be, or was, enjoying it.[15] The way he touched her genitals included his finger “like scoop along the inside and then like a bit into the hole”.[16]
[14]   TS 34.
[15]   TS 35.
[16]   TS 36.
RG said this conduct only ever occurred in her bedroom with the exception of one occasion in the accused’s bedroom. RG recalled that she was on the accused’s bed, and he was tickling her. She feared it would go further, and then Ms LB walked in. The accused threw her off the bed and pretended nothing was happening.[17]
[17] TS 36.
RG described occasions of violence perpetrated by the accused. She described an incident which occurred at the Tea Tree Gully RSL and in the car on the way home.
She also described an occasion when she was sitting in the lounge room in Adelaide, anticipating the first episode of the television program ‘Glee’. RG and the accused fought with one another, and that culminated in the accused holding her against the wall by her throat. RG was sent to her room for the rest of the day. That night the accused came into her bedroom and touched her breasts and genital area. She said the occasion stuck in her mind because of the incident during the day.[18] There was an agreed fact that ‘Glee’ was launched in Australia on 19 July 2009, placing the incident just prior to the end of the relationship in August 2009.[19]
[18] TS 42.
[19] Agreed Fact 7, Exhibit P6.
RG said that as the end of the relationship between the accused and her mother approached, the environment in the home became more and more aggressive. RG described the accused and her mother both behaving in dysregulated ways.
The final occasion of sexual abuse occurred the night before she returned to NSW with her family. RG said the accused came into her bedroom and kissed her lips. He said he loved her and would always be there for her. He touched her breasts under her shirt and her genital area. He used his finger to penetrate her vagina.
RG said that similar conduct in her bedroom had occurred about three times a week for the entire period when the family lived in Adelaide.[20] The accused would not enter her room and perform those acts if she was in trouble for some reason.
[20] TS 44.
In cross examination RG confirmed that each move the family made was because of the accused’s postings, and accommodation was organised by The Navy. RG confirmed that the accused was absent from home on boats while they lived in Darwin, but she could not recall the frequency of his absences.
RG confirmed that during the period that she was attending Golden Grove High School she did tell a defence liaison officer employed at the school that there was domestic violence occurring within the home. She explained that she did not make a complaint about the sexual assaults at that time because she did not want to be removed from the home.
RG said that even before she met the accused her mother Ms LB had problems with her alcohol consumption and was violent towards her siblings. These issues worsened during the relationship with the accused.[21]
[21] TS 56.
RG was asked about inconsistencies between her evidence and police statements, and aspects of her account that were not described when she gave her first statement. It was agreed that when RG first gave a statement to police on 24 April 2019, she did not mention the hair dyeing and the assistance that the accused gave in that regard.[22]
[22] TS 66 and Agreed Fact 9, P6.
RG agreed that the accused dyeing her hair was not hidden within the household but was done openly. She denied the suggestion that when she was in the shower to rinse colour off her hair, she wore bathers.[23]
[23] TS 67.
RG said that she did not recall a time when she shared a bedroom with MG. It was put to her that she had bunk beds in a house when the family were living in Darwin. She did not recall that.^[24]
[24] TS 70.
RG agreed that she had not mentioned in her statements to police some details about the arrangement of the tents they had slept in on the road trip to Darwin. She said she had not specifically mentioned the lack of a fly on the tent because she had not considered it important to mention.
Further, she agreed that she had not mentioned the ‘Glee’ incident in either of the first two statements she gave to the police. She said she could not recall everything straight away and she did miss details.[25]
[25] TS 77.
In cross examination RG confirmed that there were times that the accused was away from home for extended periods for work. Her reference to a frequency of about three times a week, she said was during the times when he was at home.[26]
[26] TS 86.
RG was asked about why she did not report this matter to police prior to 2019. She explained her reasons were twofold. First, she did not feel ready. Second, she had forgiven the accused.[27]
[27] TS 92.
MG was 26 years of age when she gave her evidence. She said the violence and discord between her mother Ms LB and the accused began when the two families moved into the Vincentia house. MG confirmed the evidence of RG that the accused treated the two sisters very differently to one another. MG said the accused was violent and abusive towards JG (her brother), and Zac Dingle, his son.[28]
[28] TS 107.
MG said that while the family were living at Vincentia the accused began to come into the bathroom while she was showering. He claimed to be checking that she was cleaning herself properly and would examine and physically touch her genital area.[29]
[29] TS 108.
MG confirmed the evidence of RG that the accused insisted that the sisters sleep with no clothes on when they were camping on their way to live in Darwin.[30]
[30] TS 109.
MG only recalled living in one house when the family lived in Darwin. She could not recall whether she shared a room with her sister or not.
MG gave evidence of a trip she, JG and RG took to visit her father in NSW in the school holidays while the family was living in Darwin. During that trip something occurred involving RG doing the wrong thing on the internet. Her father became very angry with RG. On their return to Darwin she said that the accused called RG a slut and a whore. Thereafter, MG noticed the accused’s treatment of RG became worse. She noted that “he always didn’t like her, and he treated her poorly, but it was definitely significantly worse after.”[31]
[31] TS 111.

MG described a bedtime routine that began from the time she was living in Darwin. She said that the accused came into her room after she was in bed to tuck her in. On those occasions the accused began to tickle her, then moved to tickle lower and touch her genitals, sometimes penetrating her vagina.[32] He called MG his princess and then kissed her goodnight. MG said the routine of examining her genitals while she was showering continued when she was living in Darwin.[33]
[32] TS 112.
[33] TS 113.
MG recalled than when the family moved to South Australia, she and her sister had their own rooms. She said in the house at Wynn Vale she had a pink bed which had Bratz dolls stickers on it. On the day that she got the new bed the accused came into her room that evening and said he had bought the bed for his princess. He tickled her, touched her genitals and told her that he loved her.[34] MG said the accused usually closed the door when he came into her room at bedtime. She estimated that in Adelaide the accused touched her genitals once a week.
[34] TS 114.
MG gave evidence of a specific occasion in Adelaide when the accused entered the bathroom while she was showering. He patted her dry with a towel, then had her sit on the side of the bath while he inspected her genitals with his fingers. That included inserting his finger inside her vagina. She recalled feeling that the accused’s actions were not right.[35]
[35] TS 117.
MG, like RG, gave evidence that the accused would apply hair dye to her hair in the kitchen and then wash it out in the shower once it was developed. When the hair was rinsed, she would be naked in the shower.[36] MG gave evidence that the hair dyeing began in Adelaide at the Wynn Vale house.
[36] TS 118.
MG gave evidence of a specific occasion she recalled of the accused touching her genitals in his bed. During the day her mother and the accused had been fighting. The fight began by the accused holding Zac Dingle by his neck against the wall in anger because he had wet the bed.
Ms LB stepped in, and the accused began to assault her. That evening Ms LB slept on a pile of clothing in the laundry. MG recalled that she went to lie down in the laundry and her mother told her to go and sleep in the bed with the accused.[37] The accused tickled her and touched her vagina. When the accused fell asleep MG returned to the laundry with Ms LB.[38]
[37] TS 119.
[38] TS 119.
MG described the relationship she had with the accused as loving and doting, noting that he would call her his princess and she would often sit on his lap. When she sat on his lap the accused would play with her hair or put his hands up the back of her shirt. He would make her kiss him on his lips.[39]
[39] TS 120.
By contrast she described the relationship between the accused and RG as physically and emotionally violent. He called RG names including ‘slut’, ‘bitch’ and ‘whore’. RG was locked in her room and not allowed to leave on occasion.[40]
[40] TS 121.
MG was shown a photograph P2 which she identified as depicting her, RG, JG and a staff member from Golden Grove High School. The photo shows all three children wearing High School uniforms meaning that it must have been taken in 2009. Both MG and RG have dyed hair. MG estimated she was 11 or 12 years old in the photo.
In cross examination MG agreed that when her mother Ms LB drank alcohol she could become violent to the children in the family. The violence included pushing, shoving and hitting.
MG agreed that while the family lived in Darwin, the accused would go to sea frequently, leaving Ms LB to care for all the children. She did not recall the accused being absent from the home once the family moved to Adelaide.[41]
[41] TS 136.
It was suggested to MG that the pink painted single bed was given to her in NSW, and she did not have it once the family moved to Adelaide. MG said that was not correct. She said that it did have Bratz stickers on the bed, and that she maintained her interest in Bratz dolls after she left primary school.[42]
[42] TS 137.
A number of prior inconsistent statements and omissions were put to MG in cross examination. MG agreed that in one of the later statements she told the police that she could not recall whether there had been digital penetration on the occasion when she slept in the accused’s bed. She had reported that digital penetration had occurred in an earlier statement, and maintained that allegation in her sworn evidence.[43]
[43] TS 148.
MG was asked about whether she ever shared a bedroom with her sister RG. She said “there was a time I did share with [RG]. I can’t remember if it was in Adelaide. I believe that in Adelaide I had my own room”.[44] She was unable to recall whether her bedroom door was open or closed at night-time and could not recall a family rule requiring them to keep bedroom doors open.[45]
[44] TS 151.
[45] TS 152.
Vulnerable Witness Provisions
RG and MG each gave their evidence with the assistance of special arrangements. RG gave evidence in the presence of a court companion and the Court was closed for her evidence. MG gave her evidence with a screen placed between the accused and the witness box. The Court was also closed.
I remind myself that I must treat the evidence given in these circumstances the same as any other kind of evidence. I have not taken into account any aspect of the way that the evidence was presented, in determining what weight to give the evidence.
Secondly, I note that the procedures are very common and say absolutely nothing about the accused. I draw no inference against the defendant from the fact that the evidence was given in this way.
Credibility and reliability considerations
RG
RG was an impressive witness. She gave her evidence in a cohesive and straightforward manner. Defence counsel submitted that her evidence suffered from a deficit of detail, particularity about the alleged sexual acts which formed the basis of the charge. A lack of detail about the acts relied on, as the basis for the charge, is relevant to the assessment of credibility and reliability. It is important to note however that section 50 of the Criminal Law Consolidation Act1935 (SA) explicitly removes the requirement for the prosecution to prove particulars of any act as though it were a separately charged offence.
RG described a specific uncharged act which occurred in Darwin when the accused inspected her genitals (or that area) to check if she was a virgin. She described two distinct occasions which occurred in Adelaide. One was described as coinciding with the premier of the television program Glee. An agreed fact established that this occurred on 19 July 2009. That was approximately a fortnight prior to her move back to New South Wales. RG described the second specific incident as occurring on the night before she moved back to New South Wales.
Counsel for the accused argued that RG’s evidence about these incidents was undermined by evidence that towards the end of her mother’s relationship with the accused, the accused moved out of the family home to the local Army barracks at Keswick. Ms LB gave evidence that for a period prior to 1 August 2009 the accused lived at the Keswick Barracks. She said it was two weeks, or about a month, at different times during her evidence and then when pressed for a firm duration said that she could not recall precisely.[46]
[46] TS 180, 240.
Mr Zac Dingle, the accused’s son, gave evidence that the accused moved to Keswick between two weeks and one month prior to Ms LB and her children returning to New South Wales. He said that even after he moved, he would still visit the family at Greenwith, although he would not sleep overnight.[47]
[47] TS 347.
I do not consider the evidence of Ms LB and Zac Dingle inconsistent with the evidence of RG that she was sexually abused the evening that Glee premiered on television.
Further, I do not consider that their evidence is inconsistent with RG’s evidence that she was sexually abused the night before she left Adelaide.
I note that RG did not mention the Glee incident in either of her first two statements she gave to SA Police about this matter. RG said that she was feeling overwhelmed at the time she gave the first statements, and some details were forgotten in her effort to remember everything about the offending. She said “I feel that’s a normal thing that there’s details that are missed. I was a child”.[48] I do not consider that her failure to mention the incident in early statements that she gave to police leads me to doubt her credibility or reliability. For the same reasons RG’s failure to mention the accused dyeing her hair and seeing her naked in the shower in early police statements does not lead me to doubt her credibility or reliability on those matters.
[48] TS 77.
MG
I found MG to be a credible witness. She gave her evidence in an intelligent and thoughtful manner and she did not give the impression of exaggerating or reconstructing her evidence.
Counsel for the accused submitted that there were inconsistencies in her evidence which undermined the reliability of her account.
MG told the Court that the first time that she remembered the accused touching her sexually in Adelaide, she was in a new bed which the accused had painted pink and she had put stickers of Bratz dolls on it.[49] MG recalls the accused referred to having bought a new bed for his princess, prior to touching her genital area.[50]
[49] TS 115.
[50] TS 114.
RG’s recollection of the pink painted bed however was that the accused had painted each of them a bed when they were living in Vincentia in NSW. MG’s was pink and RG’s was purple.
I have a doubt therefore about whether the act described by MG as occurring in Adelaide may have occurred at another address, when the pink bed was first provided to her, as RG recalled it. I do consider there is some doubt about whether that specific act occurred in Adelaide, because of the uncertainty about when the pink painted bed was first given to MG. I have not taken that act into account when considering whether count two has been proved.
Defence counsel argued that a doubt experienced about that incident ought to lead to a doubt on MG’s evidence of other acts she described in Adelaide. I do not consider the fact that she may be mistaken about the occasion on which she first slept in the pink painted bed, undermines her credibility and reliability on other matters. MG, like RG, lived in a total of five different houses during the period over which the family lived with the accused. It is unsurprising that she may experience a degree of uncertainty about the precise furniture and layout of each bedroom that she occupied.
It is also relevant to the proof of count 2 that MG described incidents of abuse occurring in the bathroom at both the Wynn Vale and Greenwith homes in South Australia, and not just the bedroom.
MG gave evidence about an occasion of abuse when she slept part of the night in the laundry with Ms LB and part in the accused’s bed. MG said that the accused touched her genital area and penetrated her vagina. MG disclosed that in the first statement that she gave to police. In a subsequent statement she told police that she could not recall if digital penetration occurred on that occasion. In her evidence she confirmed that the first statement was correct. I do not consider the differences in statements establish an inconsistency as such, merely that on the occasion of giving the subsequent statement she could not recall one detail. That does not suggest the account given in evidence was fabricated. I do not consider it undermines the reliability of that account.
Cross Admissibility
By notice filed on 21 October 2021 the prosecution gave notice of an intention to rely on propensity evidence as between the two counts, and as sexual attraction to the particular complainant.
In closing however, the prosecutor resiled from that position, relying on cross admissibility between the two accounts of MG and RG on the basis of similarity of account only.
Similarity of Account Reasoning
Count 1 and 2 are properly characterised as a series of offences of the same or similar character.[51] Both charge sexual offences alleged to have been committed against sisters living in the same family home across a similar time period. I am satisfied that they are properly joined on the Information, and the question of whether to order separate trials properly arises.
[51] Criminal Procedure Act 1921(SA) s 102(1).
Section 102 of the Criminal Procedure Act 1921 (SA) provides that separate trials of sexual offences properly joined on one Information should occur only where the evidence relating to a particular alleged victim is not admissible in respect to a count or counts involving another alleged victim or victims.[52]
[52] Criminal Procedure Act 1921 (SA) s 102(6)(b).
As this is a trial by Judge alone, the cross admissibility of the evidence on each count was the subject of argument at the conclusion of the trial. The following analysis sets out why I consider that the evidence of RG is admissible on count 2 and the evidence of MG is admissible on count 1, on the basis of similarity of account reasoning.
When considering each charge separately, evidence of offending not encompassed within that charge is properly described as discreditable conduct evidence. Its admissibility is governed by the test set out in the Evidence Act1929 (SA) s34P. The prosecution argued that the evidence directly relevant to each count was cross-admissible to prove the improbability of the acts occurring other than as alleged by the prosecution (improbability of account or coincidence reasoning).
The test for the admission of discreditable conduct evidence is set out in s 34P(2). The test for the admission of discreditable conduct evidence where its admissibility relies on propensity reasoning is higher than evidence that does not rely on reasoning of that kind:[53]
(2)     Discreditable conduct evidence may be admitted for a use (the "permissible use") other than the impermissible use if, and only if—
(a)     the judge is satisfied that the probative value of the evidence admitted for             a permissible use outweighs any prejudicial effect it may have on the              defendant; and
(b)     in the case of evidence admitted for a permissible use that relies on a particular   propensity or disposition of the defendant as circumstantial evidence of a fact   in issue—the evidence has strong probative value having regard to the                    particular issue or issues arising at trial.
Similarities between the accounts of two separate complainants may demonstrate the improbability that the conduct alleged was concocted or imagined independently of one another. The probative value of the evidence in these circumstances lies in the “improbability of the witnesses giving accounts of the happenings having the requisite degree of similarity unless the happenings occurred”.[54]   The similarity in the accounts must very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score.[55]
[54]     Hoch v The Queen (1988) 165 CLR 292 at 295.
[55]   R v C, CA [2013] SASCFC 137 at [61].
In considering that question in particular factual circumstances, applying the test in s 34P(2)(a), the Court is required to ask whether the accounts of the complainants have such a degree of similarity that the hypothesis that they have been independently fabricated, imagined, or were otherwise mistaken about the offences is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect.[56]
[56] R v C, CA [2013] SASCFC 137 per Kourakis CJ at [61].
The evidence of each complainant need not be identical. It is not useful to add up similarities and subtract dissimilarities to assess the probative value of the evidence. A unique or niche modus operandi need not be demonstrated.[57]
[57] Ibid at [65].
The acts of sexual abuse relied upon by the prosecution as constituting count 1 and count 2 were not committed in identical circumstances. No niche or distinctive modus operandi is evident. However, there were a number of common features which in my view means that the relevant test is met. I consider that the hypothesis that the allegations have been independently fabricated, imagined, or that the complainants were otherwise mistaken about the offences is so improbable that the probative value of the evidence substantially outweighs its prejudicial effect.
The sexual acts alleged to have been committed against each sister arise out of the same family relationships, the accused being the stepfather of each child. The allegation in respect to each complainant is that sexual abuse occurred when the accused was saying goodnight to them during the evening. MG described occasions when the accused touched and visually inspected her genital area under the guise of checking she was clean. RG described an (uncharged) occasion when the accused touched and visually inspected her genitals under guise of checking whether she had had sexual intercourse.
MG and RG both report that the acts of sexual abuse were limited to touching and inspection of their breasts and genital areas. Neither made any allegation that the accused did anything that involved his penis, nor asked either child to touch parts of his body.
Defence counsel submitted that there were points of difference in the accounts of RG and MG which undermined the probative value of the evidence. Counsel pointed out that MG said that acts of sexual abuse committed against her began when she lived in Vincentia, when she was 8 or 9 years of age. RG on the other hand alleged the abuse against her began in Darwin, when she was 12 years of age.
Defence counsel submitted that the background relationship against which the abuse occurred in each case was quite different. RG described name calling and abuse and gave evidence of an occasion of sexual abuse which followed a day when she was physically assaulted by the accused. MG, by contrast, was treated well by the accused and the relationship, on the surface, was loving and attentive.
A close examination of RG’s evidence about the occasion when an act of abuse followed a physical assault reveals that proximity was memorable for its uniqueness. She said:^[58]
[Describing being sent to her room as a punishment] I went to my room and then that night he came into my room, and then he did what he would normally do, which was put his hand underneath my shirt, touch my boobs, and stroke my vagina. And the reason too why that stood out to me is because a lot of the time, something for him that he would do if I’m in trouble, it was like he removed any kindness towards me. Like, it was like, ‘I’m not going to say goodnight to you, I’m not going to say I love you, I’m not going to do anything’ and Mum would do the same.
[58] TS 42.
RG’s evidence was not that there was a connection between violence and acts of sexual abuse, rather the opposite in respect to acts at bedtime. In respect to RG and MG’s evidence that each were subject to an ‘inspection’ of their genitals by the accused, defence counsel pointed out that the reason proffered by the accused was different. Counsel highlighted that MG and RG gave evidence of the frequency of the acts of abuse, which were not similar to one another.
I do not consider that the dissimilarities highlighted undermine the probative force of the consistency of features that meet the standard as outlined above.
I have reached the conclusion that it is highly improbable that the complainant’s accounts would bear the degree of similarity that is demonstrated if they were independently fabricated. I am satisfied that that permissible use outweighs the prejudicial effect. I consider that the impermissible use is, and can be kept, sufficiently separate and distinct from the impermissible use, so as to meet the demands of section 34P(2)(a).
The Possibility of Contamination or Collusion

The probative force of similarity account reasoning is undermined when there is an explanation for the similarity which is not probative of the truth of the allegations. To rely on similarity of account therefore it is necessary to exclude as a reasonable possibility that the similarities are the product of collusion or contamination.
RG and MG each gave evidence about the extent to which they had communicated with one another about these allegations. RG said that at the time that the sexual acts were occurring she did not tell MG. When she reached her twenties she raised the topic with her, for the first time. She described a conversation which occurred over lunch. She told the Court:
I just went out for lunch and I just said to her ‘I know you don’t want to talk about him, and I know you don’t want to say anything that happened to you’, but I explained the incident in Darwin, when he examined me to see if I was still a virgin and I explained that to her and I said ‘can you just tell me, did the worst happen to me or you’ and she said ‘the worst happened to you’ and that’s where we left the conversation.[59]
[59] TS 48.
RG said that after this conversation the matter was raised again when she told Ms LB and MG that she had decided to speak to the police. Although MG was not initially willing to disclose the abuse to police, she told RG later that she had made contact with the police.[60] RG confirmed that she knew nothing from any source about MG’s allegations.[61]
[60] TS 49.
[61] TS 50.
In cross examination RG agreed that while she and MG were still living with one another at home, the issue was raised by their mother Ms LB. She asked them whether the accused had sexually assaulted them. No details were shared between RG and MG at that time.
MG also gave evidence on the topic of collusion and contamination. MG’s evidence was that she and her sister had a single conversation about sexual abuse by the accused. RG shared with her the incident where he checked to see if she was a virgin and asked her if anything worse had happened to her. MG said she did not share any detail of what had happened to her. MG’s recollection was that this conversation happened when she was about 16 years old, earlier in time that RG recalled.
MG confirmed that she had received no other information about the nature of RG’s allegations.
Ms LB gave evidence about enquiries she made with each of her daughters about the possibility of sexual abuse.[62] She said that at one stage, while her daughters were still attending school, she was contacted by SA Police. As a result of that contact, she had a conversation with RG and MG asking if they had been victims of sexual abuse. She spoke with each child separately and each girl told her that it happened, but they did not want to talk about it.[63] Ms LB said she did not discuss the matter with her daughters again. There was a fact agreed on the trial that a police officer was unable to locate any record on “police systems” about alleged abuse around the time Ms LB says she was contacted by SA Police.[64] As there was no evidence led about the nature of the contact between SA Police and Ms LB, and what ‘police systems’ might be expected to record that contact, that fact does not assist me to determine any of the issues on the trial.
[62]   TS 194.
[63]   TS 195.
[64]   P 6, Agreed Fact 10.
Although MG and RG’s recollection of the conversation between them varied on the topic of when it occurred, they were consistent as to the limits of the detail that was discussed. Notwithstanding that RG did share detail of the incident where the accused inspected her genitals to see if she remained a virgin, I am satisfied that the overall similarities between the accounts cannot be accounted for by contamination or collusion. The detail shared did not extend to the location or timing of the abuse, or the kind of sexual acts which were performed as part of the abuse.
I am satisfied that it is appropriate to consider the similarity between the two complainants accounts, in assessing the strength of the evidence on each count. That is the permissible use of the evidence of count 1 on count 2 and vice versa. I have not reasoned in an impermissible way – that the accused has a general propensity to act in a criminal way and is therefore more likely to have committed the offences charged.
Evidence of uncharged discreditable conduct
Sexual acts committed interstate
Counts 1 and 2 each particularise acts which were committed while the family were living in South Australia. RG and MG each gave evidence of acts which were committed prior to their arrival in Adelaide, when they were living in other states. Those acts are uncharged discreditable conduct which has a limited purpose in my consideration of the issues in the trial.
RG said that the accused first touched her sexually when the family were living in Darwin.[65] Her evidence was that the family lived in two different houses in Darwin before they moved to Adelaide where they also lived in two different houses. RG said that the acts of sexual abuse before bed continued when the family lived in Wynn Vale and Greenwith.
[65] TS 27.
MG said that the accused began to sexually abuse her by examining her vagina to check it was clean after her shower when the family were living in Vincentia, NSW.[66] She said that sexual touching in the bedroom prior to her going to sleep occurred once the family moved to Darwin.[67] MG only recalled living in one house in Darwin. She believed she had her own room in that house but said if she did share bedrooms, it was only ever with her sister RG.[68] She gave evidence of the accused checking her genitals to ensure she had washed herself in the shower while the family was living in Adelaide.[69]
[66]   TS 108.
[67]   TS 112.
[68]   TS 110.
[69]   TS 116.
In respect to both RG and MG the evidence of sexual touching and other sexualised behaviours which occurred outside South Australia are relevant to understanding that the charged offending did not begin in South Australia, but was a continuation of a pattern of offending that had been established earlier in another location. The uncharged acts are relevant to understanding the response of RG and MG to the acts which are particularised in each charge. They are also relevant to understanding how the accused might feel emboldened to act in the way alleged, even when other adults were at home, against a background of a lack of complaint from either complainant.
I have not used the uncharged acts for any specific or general propensity purpose, including establishing a sexual interest in RG or MG, that being a propensity purpose that was not relied upon by the prosecution at trial.
Other uncharged sexual acts
RG gave evidence that the accused challenged boundaries with her and created opportunities to see her naked. This behaviour occurred both interstate and in South Australia.
When the family camped along the drive from Adelaide to Darwin when they moved, RG said that the accused encouraged she and MG to sleep in the tent with no shirts on. RG said that the accused’s advice was then backed up by Ms LB.[70]
[70] TS 22.
MG recalled that while camping on the same journey the accused asked her and her sister to remove all their clothes – physically assisting her to take her top off.[71]
[71] TS 109.
RG said that once they moved to the first Darwin home the accused began to encourage she and MG to dye their hair different colours with home dye packs. When she was rinsing the dye out of her hair the accused would stand outside the shower in the bathroom and lean in to assist her. There were times he would watch her get undressed and dressed.[72] RG said that she was not permitted to lock the bathroom door when she was inside and she had no privacy even when changing in her room. JG gave evidence of such a rule. MG said that she did not lock the bathroom door when she was inside, but she could not recall what the reason for that was.
[72] TS 24.
MG also gave evidence of hair dyeing that began, she thought, when the family moved to Adelaide. She said that dye would be applied in the kitchen but rinsed off in the shower. When she was in the shower rinsing off the dye, the accused would come in and put his hand into the shower.[73] There was one occasion when she was in the shower in her bathers, but aside from that she was naked during those times.
[73] TS 118.
Ms LB told the Court that the accused would instigate the hair dyeing, and would assist RG and MG to apply the dye. He would go and do the rinse, but she did not know whether RG and MG were naked. She said that the accused “used to have a thing of the door being open in the bathroom and the bedroom doors were never allowed to be closed”.[74] Ms LB confirmed that the accused’s involvement in the hair dyeing process was not something that was a secret, but it was openly done in the course of family life.[75]
[74] TS 188.
[75] TS 228.
Exhibit P1 is a print of a series of messages exchanged between the accused and RG between 2009 and 2018. The following exchange is relevant:
RG: Dude you fingered me watched me in the shower watched me getting dressed touched my boobs [sic].
Accused: what u used to walk around naked u didn’t really have boobs, and asked me to come into the bathroom many times for your hair etc ? really sorry if you felt that way. Way [sic] didn’t you say something to me
…..
Accused: what Dad cant colour there [sic] girl hair ? sorry for even contacting you.[76]
[76] P1.
The prosecution did not ask me to use any of the acts described above as evidence of a sexual attraction to either or both RG or MG. The evidence is relevant however for a non-propensity use. The conduct of the accused in encouraging RG and MG to be comfortable being naked around him is a piece of circumstantial evidence that assists in understanding how RG and MG responded to the sexual touching alleged, why they complied and why they did not complain.
Using the evidence in that way does not require proof of a prurient intent on the part of the accused in being present while the complainants were naked. It does not rely on proof of a sexual interest in either. I have used the evidence as relevant to the nature of the relationship between the accused and the complainants, and the background of each of them growing accustomed to being unclothed in his presence, and relevant therefore to how and why they reacted as alleged.
I have not used that evidence as the basis for any specific or general propensity reasoning on the charged acts.
Violence within the home
RG, MG, JG, Ms LB and Mr Zac Dingle all agreed in their evidence that the adults in the family drank too much alcohol and that there was physical violence used against the children.
Mr Zac Dingle characterised the violence as disciplinary, saying he was hit with a belt and sometimes abused verbally. He described his father as using ‘traditional parenting’. Mr Zac Dingle said the violence was perpetrated by Ms LB as well as his father, describing an incident when Ms LB kicked him while wearing steel capped boots.[77]
[77] TS 379.
RG said that Ms LB had been physically abusive towards her even before she met the accused. The violence increased after the relationship with the accused began and got worse when she was drinking alcohol heavily. RG said that as time went on she became frightened of the accused.[78] Once the family were in Darwin, the accused and her mother drank more and the abuse and aggression increased. RG said she felt unsafe and that there was no-one there who could protect her.[79] These feelings were intensified when RG witnessed episodes of violence perpetrated by the accused against her mother and brother, which other adults witnessed, but ignored.[80]
[78]   TS 19.
[79]   TS 24.
[80]   TS 29.
The relationship between RG and MG was undermined by the different ways in which the two girls were treated by the accused. RG said that MG got what she wanted. She was referred to by the accused as a ‘princess’, and she was sometimes tasked with deciding the consequences for the bad behaviour of her siblings.[81]
[81] TS 30.
MG also recalled the accused being violent towards Ms LB. She noticed that he treated RG very differently to how he treated her. He would call RG names including ‘dog’, ‘pig’ and ‘whore’. He would throw her around and grab her by her hair. He would lock her inside her bedroom.[82]
[82] TS 120.
The accused was emotionally abusive towards her brother JG and would be violent towards his own son.[83] MG witnessed the accused grab both boys by the throat on occasion.
[83] TS 106-107.
By contrast, MG recalled that the accused treated her affectionately. She often sat on his lap and when she did so he would put his hands on the back of her shirt and play with her hair.[84]
[84] TS 120.
During the course of the trial evidence was given of some specific incidents of violence. These included an occasion on Anzac Day at the Tea Tree Gully RSL,[85] an occasion at their home in Darwin when the police were called,[86] an incident where Ms LB threatened to kill herself,[87] and an incident at the golf club in Vincentia when JG and Ms LB were assaulted.[88]
[85]   TS 38, 121.
[86]   TS 29, 260.
[87]   TS 43.
[88]   TS 107, 257.
Mr Zac Dingle gave evidence of violence within the household but his description of the acts as part of old-fashioned discipline was out of step with the descriptions of other witnesses who described far less restrained emotional and physical abuse.
It is noteworthy that Mr Zac Dingle was a witness to a serious act of violence committed by the accused against Ms Facey, his partner after Ms LB. Mr Zac Dingle told the Court initially that he had seen the accused wrestle with Ms Facey over possession of their baby, and that involved no more than some pushing and shoving. Later, when further questioned he admitted that in fact he had seen his father headbutt Ms Facey, and she had kicked him in the groin. In cross examination it emerged that Mr Zac Dingle told the police at that time that he had seen the accused punch Ms Facey twice to the face, pull her off the sofa by her legs and then apply pressure to her face with his fist.[89] Mr Zac Dingle, who was still a child, grabbed the accused and pulled him off Ms Facey. Mr Zac Dingle agreed that what he told the police would reflect the truth of what he observed.[90]
[89] TS 397-398.
[90] TS 398.
I conclude that Mr Zac Dingle, consciously or unconsciously, significantly understated the extent of the violence he witnessed against Ms Facey. This is consistent with my own observations that insofar as his description of the behaviour of the accused was inconsistent with the evidence of RG, MG and JG, he minimised the extent of the violence and abuse perpetrated by the accused. For this reason, I find the overall picture painted by the evidence of RG, MG and JG more reliable that the more restrained account of Mr Zac Dingle.
Different accounts were given by various witnesses as to the details of the specific incidents of violence referred to above. Given the limited relevance of this evidence of violence I have not found it necessary to make specific factual findings on each incident. It is enough for me to record that I am satisfied that RG and MG lived in an environment where the adults who were meant to be caring for them were often intoxicated and their behaviour was unpredictable. I also record that I am satisfied that the accused and Ms LB were violent towards children in the family by way of excessive and inappropriate discipline. The accused was violent towards Ms LB in locations where it was witnessed by the children. These acts were all fuelled by alcohol consumption by the accused and Ms LB. This instability provides the background within which it is alleged that RG and MG complied with acts committed against them and made no complaint until much later as adults.
This is a permissible use of the evidence of violence and verbal abuse perpetrated by the accused. This use is not a propensity use and I am satisfied that the evidence satisfies the test in section 34P(2)(a) and 34P(3).
I am further satisfied that the accused used degrading language and was emotionally abusive towards RG. By contrast, the positive attention paid to MG created a divide in the relationship between the sisters and damaged their relationship. That is relevant to assessing the plausibility of RG and MG’s evidence that they did not discuss their own experiences of sexual abuse with one another in detail.
I have not used the evidence of violence and emotional and verbal abuse perpetrated by the accused within the household as evidence of any specific or general propensity to offend against RG and MG.
In submissions the prosecution referred me to the authority of R v MJJ; R v CJN,[91] arguing that the violence and abuse had an additional permissible use in my consideration of the evidence. In that case, the two accused were the biological parents of the complainant. There was evidence that the children of the family were subject to regular violence and abuse, and their living conditions were properly described as squalor. They often did not have enough food to eat and what they did have lacked nutritional value.
[91] [2013] SASCFC 51 at [34]-[40].
Kourakis CJ considered that background evidence admissible in proof of sexual acts committed by each of the accused against the complainant. He observed that such abusive treatment of their children would rebut the ordinary inference that parent-child relationships are characterised by protective bonds which would tell against a parent offending against a child. The facts in this case are not on all fours with the facts in R v MJJ; R v CJN. There is no evidence of the same degree of extreme neglect and squalor in this case. Further, the accused is a stepparent and in my view that relationship does not attract the usual assumptions about the existence of a protective parental bond.
I have not used the evidence of the accused’s physical and emotional abuse of the children as probative of the offences charged on the basis of the reasoning in R v MJJ; R v CJN.
Credit Implications of Accounts about Violence
Defence counsel argued that the differences in the accounts of various witnesses as to incidents of violence exposed the unreliability of their memories for the events of the time, and should be taken into account in the assessment of their reliability/credibility on the charged acts. I do not consider that the different memories of the acts of violence give rise to an inference that any of the witnesses were deliberately dishonest. As I have observed elsewhere the family lived through regular episodes of violence and it is not surprising that each one is recalled differently. The variations were not such that they led me to believe that any particular witness was unreliable or dishonest in their evidence overall.
Did RG and MG share a bedroom while they were living with the accused?
There was evidence led by defence that RG and MG shared a bedroom with one another when they lived at Wynn Vale. However, each complainant gave evidence that the sexual abuse before bed occurred when they were sleeping in a bedroom on their own (this was not overtly stated but by inference).
An issue of relevance to the reliability of each complainant’s account was whether and where they shared a bedroom, and to what extent this undermines their evidence about the persistence of the acts of sexual abuse across the houses.
Exhibit D4 is a series of three photographs depicting the following:
·A close view of a bedroom door with stickers reading “[RB] and [MB]’s room!”.
·A view inside that room showing bunk beds and walls painted purple. The lower bunk has a pink cover and the upper bunk a blue one.
·A photo of the room with RB and MB posing for a photograph. Neither girl appears to have dyed hair.

I am satisfied that the photos D4 show a bedroom which RB and MB shared for a time which contained bunk beds used by the sisters. At some stage the sisters must have shared a room and had bunk beds. There is nothing on the face of any of the photos to suggest where the room was located or when the images were taken. I do not consider that it is possible to estimate the age of the two complainants from their appearance in the photos, including by comparison with other photos of them where their age is known.
RG was shown D4 and did not recall the room that was shown. She could not remember the stickers shown on the door, although she recognised the bedcover on the lower bunk as her Hilary Duff bedcover. She maintained that she could not recall when or if she shared a room with MG.
MG was also shown the photos D4. She said the room was familiar but was unable to identify which house it was in.[92] She did not recognise the bed cover on the upper bunk nor the colour that the walls were painted.[93] MG estimated that she appeared nine or ten years old in the photo, which would mean the photo was taken in approximately 2005-2006, prior to the move to Adelaide.
[92] TS 284.
[93] TS 285.
Ms LB was asked about the layout of the various homes that the family lived in in the Northern Territory and South Australia. She said her recollection was that RG and MG did not share a bedroom in either of the homes the family lived in in Darwin.
In respect to the two homes the family occupied in Adelaide, she could not recall whether RG and MG shared a room. She knew that the girls had bunk beds at some stage.[94] Ms LB was shown D4 and she recognised the bunk beds shown, but she was unable to say where the photos were taken. She recalled that the bunks were structured so that it was possible to pull them apart into two single beds. She remembered them being set up as two single beds.[95] In re-examination Ms LB said she thought that the beds shown in the photos had been sent back to NSW from Adelaide when she left the accused in 2009. That would support the conclusion that the beds were used in at least one of the Adelaide houses, although it does not necessarily inform whether RG and MG shared a room with them set up as bunks in Adelaide.
[94] TS 223.
[95] TS 225, 253.
The evidence of Zac Dingle
The only witness who claimed to have a clear memory of the bunk beds shown in D4 was Zac Dingle. Mr Zac Dingle is now 25 years of age and gave evidence on the defence case. He has been a member of the Australian Defence Force since 2020. Mr Zac Dingle gave evidence of his recollections of living as a family with RG, MG and Ms LB. He was younger than RG, MG and their brother JG. He is about one year younger than MG who was the youngest of Ms LB’s children.
Mr Zac Dingle was able to recall the layout of each of the homes he lived in in much greater detail than RG, MG or Ms LB. His evidence in general was highly detailed about historical events. For example, he said that the accused never went into the bathroom while RG and MG were washing hair dye out of their hair. RG and MG both maintained that he did come into the bathroom in those circumstances, and Facebook messages sent later by the accused to RG admitted as much, referring to RG asking him to come into the bathroom, using the words “what Dad can’t colour there [sic] girls hair ?”.[96]
[96] P 1.
Mr Zac Dingle said that in all of the houses the family lived in, except for Vincentia in New South Wales, his bedroom was in a location where the accused would have to walk past his door to visit RG or MG’s bedrooms. He said if he was awake, he would see if someone walked past his room to visit either of the girls in their bedrooms. He said that he was confident he would remember someone walking past his bedroom to the girls’ rooms in any of those houses. He said when the accused went past his room to the girls’ room, it was only to say goodnight briefly. The accused would not go to say goodnight very often at all and often he was in company with Ms LB.[97]
[97] TS 375.
Mr Zac Dingle told the Court that when the family lived in Wynn Vale both the boys and the girls shared rooms. He recalled that RG and MG had bunk beds at that house.[98] He identified the room shown in D4 as the girl’s room at Wynn Vale.
[98] TS 341.
Mr Zac Dingle’s evidence on this topic struck me as unrealistically precise and detailed for unremarkable events that occurred so long ago. My impression was that his account was consciously or unconsciously reconstructed from things he had discussed with others or had worked out by looking at photos from the time. Many of the details were clearly reconstructed from his hindsight understanding of how the navy works and shift requirements for navy staff. I have been cautious about accepting the evidence of Zac Dingle on topics where his evidence contradicts other evidence that I have found plausible and convincing.
However, Ms LB’s evidence that the bunk beds were used in Adelaide at some point does support in part his recollection that RG and MG, at least for a time, shared a room in the Wynn Vale house. That is a matter that bears on the reliability of the account given by each of them.
Facebook contact
Exhibit P1 was identified as a complete print out of Facebook messages sent between RG and the accused from 1 October 2009 and 22 April 2018.[99] The earliest contact was from RG about a fortnight after she moved back to New South Wales with Ms LB.
[99] TS 46.
Approximately two years later the accused and RG had the following exchange:
Accused: Hi do you hate me as much as your sister does ??
RG: I don’t hate you, I’ve forgiven you but what u did hurt us both
Accused: I never meant to hurt you ! I did and still do love you xoo sorry
RG: do u understand what u did tho
Accused: No not really
RG: you pretty much sexually usulted us and with me u didn’t only physically bash me, verbally and emotionally. You need to get your life right
Accused: I never meant no harm I thought we were just mucking around I never made you do anything. But the temper I’m really sorry for. I currently getting help with that. Sorry again If you want Ill never contact you again. xxoo
…..
Accused: none of it was ever meant to be sexual !!
RG: ok well it didn’t come across that way I don’t know what else it could have been
Accused: sorry again I promise you will never hear from me again. xxoo
……
RG: u said that what u did wasn’t sexual but what else could it have been
Accused: I never rape you or had sex or ne thing I’m not really sure what your talking about ? a couple of times we cuddled and stuff but I never meant for you to take it the wrong way
The prosecution argued that this exchange was an admission to carrying on a sexual relationship with RG. I accept that the words recorded in the messages were authored by the accused. The evidence of RG about the accused’s Facebook page, and the context of the words support this conclusion. The prosecution rely partly on the words spoken and partly on a failure by the accused to protest his innocence in the face of the allegations.
The law recognises that in the ordinary course of human affairs, there are occasions when a person might be expected to proclaim their innocence, or dispute an allegation being made about their conduct. The prosecution submit that the accused’s failure to proclaim his innocence in those messages is behaviour which is inconsistent with innocence.
Counsel for the accused argued that in the overall context of the conversation the words do not sustain an inculpatory interpretation. At its highest, counsel argued, the words are an admission to physical violence (“but the temper I’m really sorry for”) but not the sexual acts (“I thought we were just mucking around I never made you do anything.”) Counsel argue that the accused’s failure to engage directly with the sexual accusations reflects a confusion about what he is actually being accused of, which is a state of mind consistent with innocence. Defence counsel referred in particular to his reference to the hair dyeing as the only knowledge he has of seeing RG naked.
In my view the responses by the accused to the allegations, approached together, are ambiguous. In particular when accused of having “pretty much sexually assaulted us”, the accused’s response is “I never meant no harm I thought we were just mucking around and I never made you do anything”. It is clear to me that those words are directed to the sexual allegations, and they were followed by the conjunctive but which separates the reference to the physical abuse (his temper) which is a general concession. The accused, when RG persists with the allegation of sexual behaviour (“u said that what you did wasn’t sexual but what else could it have been”) says “I never rape you or had sex or ne thing [anything] I’m not really sure what you are talking about? A couple time we cuddled and stuff but I never meant for you to take it the wrong way”. Earlier he says “none of it was ever meant to be sexual”.
I have carefully considered whether the words are an admission to sexual conduct, or whether the accused has failed to proclaim his innocence in circumstances where he would be expected to. I cannot reach the conclusion that on either basis the words should be considered probative of the charges involving RG. I have not had regard to the messages as probative of the allegations of offending against RG.
Counsel for the accused argued that some of the messages sent by RG to the accused undermined her account that she was frightened of him, and had been the victim of his sexual abuse. In 2009 RG told the accused that she loved him, and as time went on was talking about visiting him. I am mindful of the complex ways in which a child might respond to childhood sexual abuse and the ways in which it affects family relationships. I do not consider that the messages or contact with the accused undermines RG’s credibility in respect to the allegations, when viewed against the complex range of emotional responses that might follow the kind of abuse of a familial relationship that is alleged here.
Other considerations
RG and MG’s brother JG lived with the family through the entire relevant period. He was an impressive witness who presented as doing his best to tell the truth. He was candid when he could not remember something. JG witnessed some behaviour which is probative of the allegations.
JG gave evidence that the accused treated MG and RG differently to one another. He said the accused often referred to MG as ‘little princess’. JG said that in respect to RG he observed a distinct change in the accused relationship with her after she returned from a trip to NSW. His observations coincide with RG’s evidence of the accused finding out that she had shown a boy her breasts over webcam while staying with her father. The accused began to call RG names such as ‘slut’, and ‘bitch’.
JG gave evidence that one night after the family had moved to Adelaide he went to say goodnight to RG. Her bedroom door was closed and he walked inside. The accused was sitting on RG’s bed with his hand on her chest/stomach area underneath her shirt. He pulled his hand out as RG sat up when JG entered the room. RG appeared startled when JG came in, and the accused said “I’m just saying goodnight”.[100]
[100] TS 266.
JG said at other times he observed the accused being over-affectionate with RG and MG. He said that involved a lot of tickling, and he would place his hand on, or sometimes under their shirts. He often observed the two girls sitting on the accused’s lap. JG’s observations were in broad terms consistent with MG and, to a lesser exten, RG’s evidence about the accused’s behaviour. His observation of the accused on RG’s bed before bedtime is consistent with her allegations about his activities during that time.
The evidence of Ms LB was less satisfactory, and I was left with the distinct impression that she was seeking to downplay her own part in the violence which occurred within the home. I have no doubt that she was a victim of violence at the hands of the accused, but other witnesses agreed that she also participated in violence. Her memory was poor for some events. I have not relied on her evidence except where it coincides with or is supported by the evidence of other witnesses, including MG, RG and JG.
Ms LB gave evidence that on one occasion she found RG with the accused in their bedroom. Ms LB saw that the accused was holding RG on the bed by her wrists, and concluded she was being punished for something. When she entered the room, the accused jumped off RG. Ms LB admitted that she punched RG to the face, saying that if someone was going to punish RG it might as well be her.[101]
[101] TS 167.
Counsel for the accused contrasted this account with evidence given by RG about Ms LB coming into the accused’s bedroom when she was inside. RG said that there was an occasion she was in the accused’s bedroom being tickled by him. Ms LB entered the room suddenly and in response the accused threw her off the bed pretending nothing had happened.
Counsel for the accused highlighted that neither witness gave evidence of the incident described by the other, and submitted this undermined their credibility and reliability.
I am satisfied that between about 2005 and 2009, when the accused was living in a blended family with Ms LB and the children, there was frequent house moves. The family lived in at least five different houses, in three different states. After the family moved to Darwin the alcohol consumption and associated social dysregulation within the family environment increased. There were multiple episodes of discord and violence. That each family member recalls different incidents is unsurprising and does not lead me to doubt their reliability of credibility.
Are the allegations inherently unlikely?
Defence counsel argued that there were two aspects of the allegations which made the accounts of RG and MG respectively inherently unlikely. The first was that the accused was away from home for work on a regular basis, and therefore the frequency estimated by each complainant was impossible.
MG estimated that when the family were living in Wynn Vale and Greenwith the accused committed acts of sexual abuse against her about once a week.[102] RG estimated that both in Darwin and Adelaide the frequency was roughly three times a week.[103] In cross examination RG agreed that while the family were living in Darwin, the accused was frequently away from home for work. RG clarified the three times a week she estimated applied to the time that the accused was at home and not at sea.
[102] TS 115-116.
[103] TS 27, 44 and 85.
Neither complainant claimed that their estimated frequency was a precise figure. Given the nature of the alleged conduct, and the pattern which developed it is unsurprising that all that can be offered with respect to frequency is a broad estimate. The frequency estimate when viewed against the evidence about the accused’s away-from-home work commitments does not lead me to conclude that the evidence of RG or MG is inherently unlikely.
Counsel for the accused submitted that RG and MG’s accounts of the accused’s offending while their mother was close by and other children were at home was inherently implausible. Counsel highlighted Ms LB’s evidence that when the children would go to bed at night they would leave their doors open, which if true would increase the risk of detection.[104] As I have earlier observed I did not find Ms LB an entirely reliable witness and I am cautious about accepting her evidence where it is unsupported by, or inconsistent with other evidence. I have already referred to the evidence of JG, that I accept, that he opened a closed door to find MG and the accused on her bed together at night-time. This account suggests that Ms LB’s evidence cannot be accepted as a blanket proposition that the bedroom doors were always open. Given the persistence of the acts of abuse over time and the gradual manner in which they began, I do not consider the allegations inherently implausible.
[104] TS 223.
Complaint/Delay – Section 34M
No evidence was led on the trial of initial complaint as permitted under section 34M of the Evidence Act. Some evidence of complaint was led to inform considerations of contamination and or collusion. Even in the absence of evidence of initial complaint the delay in the making of any complaint by RG and MG is relevant and I have considered what probative force that has, if any, on the charges. The mandatory direction in section 34M(4)(c) is confined to circumstances where the jury are entitled to consider why a complaint was in fact made to a particular person at a particular time. Section 34(2) is a prohibition on suggestions or statements to a jury about the relevance of the delay. As the finder of fact however, I am entitled to consider the delay in complaint, and the reasons for that delay.[105]
[105] R v Jones [2-18] SASCFC 80.
Our community is increasingly aware that victims of sexual offending, especially children, will often find themselves unable to complain to anyone about the behaviour until well into their adulthood. In this case, that is particularly so in circumstances where neither RG nor MG had the benefit of a consistently safe family environment. I do not consider that the delay, even in the circumstances where the complainants had opportunities to complain, reflect adversely on their credibility or reliability.
Forensic Disadvantage
Section 34CB of the Evidence Act requires me to direct myself as to a forensic disadvantage suffered by the accused where the time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage. Such a direction must be specific to the circumstances of the case.
Counsel for the accused argued that the following matters were relevant to a forensic disadvantage:
1.The death of RG and MG’s Father who may have been able to shed light on the circumstances of the uncharged act committed against RG (checking her hymen) following her visit to New South Wales from Darwin.
2.The inability to identify witnesses to incidents of violence described in evidence at the golf club and the RSL.
3.The inability to obtain evidence about the layout of the various houses, photos of the houses and work records which might provide more detail about the times the accused was away from the home.
No evidence was called on the third topic to demonstrate that efforts had been made to obtain such records, and that they were in fact no longer available because of the passage of time. However, I accept as a matter of common sense that the passage of over 10 years here would have resulted in the loss of capacity to identify witnesses to the acts of violence alleged to have been committed in public, and some photos, house and work records may have been lost. I note that D7 is a record obtained from the defence force setting out various work placements and courses undertaken by the accused over the time he was a member. That was available despite the lapse of time.
I have taken into account the forensic disadvantage suffered by the accused. In particular, the passage of time no doubt has resulted in the loss of records relating to house layout and furnishings. Witnesses to incidents of violence alleged may have undermined the accounts given at trial, and affected the weight to be given to those accounts.
I do note however that the charged acts are alleged to have occurred in private and there is no loss of witnesses who observed any events closely associated with the sexual offending.
Good Character Evidence
The accused called Emma Kruger, Julie Young, Katherine Blight and Belinda Thompson to give evidence of good character. Each of them spoke to the capacity in which they knew the accused, and that their experience was that he was a man of good character. Some gave evidence that he was not, in their experience, a violent man.

I take their evidence into account as relevant to the probability that the accused committed the offences charged. I consider that the evidence is of limited probative force in that regard, because his good character was undermined by evidence that he had committed at least one criminal offence of violence. In 2012 the accused was convicted of aggravated assault against a spouse for offending committed against Ms Facey. No evidence was led at trial as to the date of that offence.
Motive to Lie
In cross examination counsel for the accused raised the possibility that the allegations and evidence given by RG, MG and Ms LB had been fabricated because of anger they all felt about the acrimonious nature of the breakup of the relationship with the accused. This was not pressed in closing addresses, but I deal with the suggestion nonetheless.
RG and MG were adults at the time they gave their evidence. I am not attracted to the hypothesis that their feelings of anger or disappointment in their early teenage years would have sustained to motivate the making of false allegations as adults.
However, it is important to note that having rejected that potential motive to lie, I remind myself that the accused need prove nothing. It is not for him to point to some reason or motive for dishonesty. The absence of a motive to lie adds nothing to my consideration of the truthfulness and reliability of the evidence of each complainant.
Conclusion – Count 1
I am satisfied on the evidence that the accused maintained an unlawful sexual relationship with RG between 1 January 2008 and 2 August 2009.
I am satisfied that the accused touched RG’s breasts and genitals in her bedroom at Greenwith in South Australia. I am further satisfied that on the final night prior to RG returning to NSW the accused touched her breasts and genitals and penetrated her vagina with his finger.
Because of the conflicting evidence about whether RG and MG shared a bedroom when they were living at Wynn Vale (Golden Grove) and the fact that the accused remained in Darwin for the first 6 months of 2008 I am unable to be satisfied that the acts of sexual abuse continued while the family lived at that location.
I am however satisfied that the accused touched RG’s breasts and genitals on a regular basis while the family lived at Greenwith, and that touching sometimes involved penetration of her vagina.
I find the accused guilty of count 1, and I find particulars (a), (b) and (c) proved. Particulars (d) and (e) were not pursued by the prosecution.
Conclusion - Count 2
I am satisfied on the evidence that the accused maintained an unlawful sexual relationship with MG between 1 January 2008 and 2 August 2009.
I find it proved that on at least one occasion in Adelaide the accused inspected her genital area under the guise of checking it was clean, and that including penetrating her vagina with his finger.
I am further satisfied that on an occasion in Adelaide when MG slept some of the night in the accused’s bed, he touched her genital area including penetrating her vagina with his finger.
Because of the conflicting evidence about whether RG and MG shared a bedroom when they were living at Wynn Vale (Golden Grove) and the fact that the accused remained in Darwin for the first 6 months of 2008 I am unable to be satisfied that the acts of sexual abuse continued while the family lived at that location.
As noted earlier, I have concluded that the specific incident described by MG, as associated with the accused giving her the new pink painted bed, which occurred in Adelaide has not been proved. I am left with a doubt about that specific incident because of RG’s evidence that the pink and purple painted beds were first given to the sisters when they were living in Vincentia in New South Wales.
However, I am satisfied beyond a reasonable doubt that the accused touched MG’s breasts and genitals on a regular basis before bedtime when the family were living at the Greenwith house in South Australia.
I find the accused guilty of count 2, and I find particulars (a) and (b) proved. The prosecution did not pursue particulars (c) and (d).