R v DKM
[2023] SADC 110
•18 August 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DKM
Criminal Trial by Judge Alone
[2023] SADC 110
Reasons for the Verdict of his Honour Judge Burnett
18 August 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused was the stepfather of the complaints. The accused was charged with two counts of maintaining an unlawful sexual relationship contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The offences were alleged to have occurred between February 2020 and April 2021 when it was alleged that the accused engaged in two or more unlawful sexual acts with or towards each of the complainants. The first complainant was 9-10 years old at the time of the alleged offences. The second complainant was 13 years of age. The accused was 30-31 years old. The accused denied the commission of the offences or that he engaged in any unlawful sexual acts with the complainants. The accused gave evidence on oath denying the offences.
The trial was by judge alone. The prosecution did not prove beyond reasonable doubt that the accused engaged in two or more unlawful sexual acts with either of the complainants and therefore there is a reasonable doubt that the accused committed the offences.
Verdict: Not guilty on both counts.
Evidence Act 1929 (SA) s 34M; Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 50, s 62 and s 63, referred to.
R v Mann [2020] SASCFC 69, considered.
R v DKM
[2023] SADC 110Introduction
The accused, DKM, is charged on information with two counts of maintaining an unlawful sexual relationship with a child contrary to s 50(1) of the Criminal Law Consolidation Act 1935, (SA).
The first count on the Information was in the following terms:
Statement of Offence
Maintaining an unlawful sexual relationship with a child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DKM between the 31st day of January 2020 and the 1st day of January 2021 at Parafield Gardens, maintained an unlawful sexual relationship with PN, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)causing her to perform an act of fellatio upon him on more than one occasion; and
(b)touching her breasts on more than one occasion.
The second count on the Information was in the following terms:
Statement of Offence
Maintaining an unlawful sexual relationship with a child (ibid).
Particulars of Offence
DKM between the 10th day of April 2020 and the 10th day of April 2021 at Parafield Gardens, maintained an unlawful sexual relationship with MN, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)touching her vagina on more than one occasion;
(b)inserting a finger into her vagina on more than one occasion;
(c)touching her breasts on more than one occasion; and
(d)causing her to expose her breasts on more than one occasion.
The accused pleaded not guilty to both counts and elected for a trial by judge alone. I now publish my reasons for the verdict that I deliver.
Elements of the offence
The prosecution must prove beyond reasonable doubt the following elements of the offence.
First, that the accused was an adult at the time of the alleged offence. It is an agreed fact that the accused was born on 1 April 1989 and therefore was an adult at the time of the alleged offending in 2020-2021. This issue was not in dispute and I find it proven beyond reasonable doubt.
Secondly, the complainant was a child at the time of the alleged offending. A child is a person who is aged 17 years or under. It was an agreed fact that the first complainant, PN, was born on 19 May 2010 and was therefore a child at the time of the alleged offending. It is also an agreed fact that the second complainant, MN, was born on 10 April 2007, and therefore was a child at the time of the alleged offending. This issue was not in dispute and I find it proven beyond reasonable doubt.
Thirdly, the prosecution must prove that the accused knowingly maintained a relationship with the complainants during the period in which the alleged sexual acts occurred. The relationship cannot be constituted by isolated acts but must have a degree of continuity. The relationship must comprise more than the alleged sexual acts alone, but in considering whether there is a relationship for the purposes of s 50 of the Criminal Law Consolidation Act 1935 (CLCA), all of the circumstances of the association between the accused and the alleged victim, must be taken into account.[1] Whether there is a relationship is a question of fact.[2] This element was not in issue at trial and I am satisfied beyond reasonable doubt that the accused knowingly maintained a relationship with each the complainants during the relevant period. The accused was the stepfather of the complainants and lived with each of the complainants from about 2016 to 2021.
[1] R v Mann [2020] SASCFC 69 at [12].
[2] Ibid at [21].
Fourthly, the prosecution must prove that the accused engaged in an unlawful sexual relationship with the complainants. An unlawful sexual relationship is a relationship in which, during the period that it was being knowingly maintained, the accused committed two or more unlawful sexual acts with or towards the complainants. The particularised acts in the case of PN are unlawful sexual intercourse by fellatio and touching her breasts on more than one occasion (count 1) and in the case of MN are digital penetration, touching her vagina, or touching her breasts or causing her to expose her breasts, all on more than one occasion (count 2). Acts of fellatio and digital penetration are within the definition of sexual intercourse in s 5 of the CLCA. Pursuant to s 49(2) of the CLCA, a person who has sexual intercourse with any person under the age of 17 years shall be guilty of an offence. By s 49(7), consent to sexual intercourse is not a defence to a charge under that section. Therefore, to establish that the accused committed unlawful sexual intercourse, the prosecution must establish beyond reasonable doubt that:
(1)The accused had sexual intercourse by fellatio (count 1) or digital penetration (count 2);
(2)The complainant was under the age of 17 years at the time of that sexual intercourse, rendering consent irrelevant and the act of sexual intercourse unlawful.
There was no dispute at trial that should the court be satisfied that the accused committed two or more of the alleged sexual acts of fellatio or digital penetration, each act would constitute an offence and an unlawful sexual act. The dispute was whether the prosecution had proved beyond reasonable doubt that the accused committed the sexual acts particularised with the complainants.
The particularised acts of touching PN on the breasts on more than one occasion (count 1) and touching MN on the breast on more than one occasion and touching her on the vagina on more than one occasion (count 2) are acts that, if proved, would constitute indecent assault.
The elements of the offence of indecent assault are:
1.That the accused applied force (directly or indirectly).
2.The force was applied voluntarily and intentionally.
3.The application of the force was unlawful, that is without lawful excuse or justification.
4.The force was accompanied by circumstances of indecency. The proven conduct of the accused must be indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
As the complainants were under the age of 17 years at the time of the alleged act, the issue of consent is irrelevant.
The particularised acts of touching PN on the breasts on more than one occasion (count 1) and touching MN on the breast on more than one occasion and touching her on the vagina on more than one occasion (count 2) are acts that, if proved, would constitute an indecent assault.
The particularised acts of causing MN to expose her breasts on more than one occasion are acts that, if proved, would constitute the offence of procuring a child to commit an indecent act contrary to s 63B(1)(b)(i) of the CLCA.
The elements of an offence against s 63B(1)(b)(i) of the Act are:
(1)The accused caused or induced MN to expose any part of her body.
(2)MN was under the age of 17 at the time of the act.
(3)The accused acted for a prurient purpose.
A person will act for a ‘prurient purpose’ if they act with the intention of satisfying his or her own desire or sexual arousal or gratification or of providing sexual arousal or gratification for someone else.[3]
[3] Section 62 of the Act.
The dispute, both in relation to the alleged acts of indecent assault and the alleged acts of procuring a child to commit and indecent acts, is whether the prosecution had proved beyond reasonable doubt that the accused committed the sexual acts particularised with the complainants.
The sole issue in dispute is whether the accused committed the alleged unlawful sexual acts on two or more occasions as alleged by MN and PN.
Legal Directions
As the trial proceeded by judge alone, it is not necessary to set out all of the standard directions that would be given to a jury. However, I remind myself of the following directions.
First, the accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt by the prosecution. The burden of proof rests wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. The prosecution must prove each element of the offence beyond reasonable doubt. If there is an explanation consistent with the innocence of the accused or there is uncertainty as to where the truth lies, then the accused must be found not guilty. I must determine whether each of the witnesses that have been called are credible and reliable. I can accept part of a witness’ evidence and reject part of that evidence or accept or reject it all. If however, the evidence fails to satisfy me beyond reasonable doubt of any or all of the elements of the offences charged, then the accused remains presumed innocent and I must return a verdict of not guilty for that charge.
Secondly, the accused elected to give evidence. The accused was not obliged to do so. He had the right to remain silent in answer to the charge leaving it to the prosecution to prove each of the legal elements of the charge. As the accused has given evidence in his defence, and called a further witness as part of his case, that does not relieve the prosecution of the burden of proving the case beyond reasonable doubt. It is for the prosecution to prove the accused’s guilt. The accused does not have to prove his innocence. Subject to that, the accused’s evidence is to be assessed like the evidence of any other witness in this trial.
Thirdly, the prescribed interview of PN with police officers on 22 April 2021 and a further prescribed interview of PN with police officers conducted on 14 January 2022 was admitted into evidence. PN further gave unsworn evidence at a pretrial special hearing on 2 May 2022. The judge who heard her pretrial evidence did not consider that she had sufficient understanding of the obligation to be truthful involved in giving sworn evidence but was satisfied that she understood the difference between the truth and a lie and the importance of telling the truth. Given the unsworn nature of that evidence, I direct myself of the need for caution in determining whether to accept PN’s evidence and the weight to be given to it.
Fourthly, the prescribed interview of MN with police officers on 21 April 2021 was admitted into evidence. MN further gave recorded evidence at a pretrial special hearing on 7 April 2022. MN also gave evidence at the trial on one issue that had arisen during the course of the trial. Special arrangements were put in place for her in giving her evidence. She gave evidence by way of audio-visual link and was accompanied by a court companion. The prescribed interview of a further witness, DW, was also admitted into evidence.
Fifthly, evidence was given by PN and MN respectively of initial complaint and elaboration of that complaint. I can use that evidence to understand how the allegations first come to light and the degree to which the complainants have acted consistently. That is, to what extent did the complainants complain about the offending at the time that might be expected and to what extent did the complainants’ account remain consistent from the time that that they first reported the offence. There may be many reasons as to why an alleged victim of sexual assault makes a complaint at the time that they did. The evidence of complaint does not demonstrate the truth of what was said. The complaint can only be used for credibility. The evidence of DW, also given by way of a prescribed interview, related to the complaint made to her by PN and the same restrictions as to how that evidence is to be considered apply.
Sixthly, the accused submitted that the complainants and another witness, EB, had a motive to lie. If I reject the suggested motive to lie, the prosecution’s case is not strengthened. The credibility of the complainants or EB is not enhanced by a rejection of the suggested motive to lie. The accused has no onus to prove a motive to lie.
Seventhly, there are instances where submissions have been made by the prosecution that the evidence of the accused is not credible. In assessing the weight given to any evidence of the accused which I find not to be credible, I must consider the nature of that evidence. A lie for which I find only to be for purposes of credit only is not evidence of guilt.
Eighthly, I must consider each of the counts separately.
Overview of the prosecution case
The accused commenced a relationship with TT in about November 2015. TT had 2 children from a previous marriage, the complainants PN and MN. In about 2016, the accused and TT moved in together in a house at Munno Para West and in about November 2017, moved into a house at Parafield Gardens at which it is alleged the offending occurred. The accused and TT had twin boys, DM and JM, on 27 June 2017.
It is the prosecution case that in respect of PN (count 1), the abuse took place at the Parafield Gardens house from February 2020. At that time, PN was 9 years of age and turned 10 in May 2020. PN gave evidence that on about 50 occasions the accused caused her to perform fellatio upon him. On most occasions she said that the fellatio occurred in the walk in wardrobe which was situated adjacent to the accused and TT’s bedroom. PN said that she was blindfolded when the offending occurred. She said that a T-shirt was pulled over her eyes so that she could not see. She said that the accused would put a timer on his phone. On one occasion, she could see through the blindfold and observed the accused filming her. In addition to the fellatio, PN gave evidence that the accused would touch and squeeze her breasts whilst she was in the walk in robe. PN said that the offending usually occurred when her mother was at work or when she went shopping. PN said that the accused would touch her breasts at the same time that he caused her to perform fellatio upon him.
PN said that in April 2021,when she was staying in Morgan with her father, she told a friend, DW, about the abuse. PN’s father, SN, and partner HEB, were told of the abuse. SN in turn told TT. TT and KT, (the brother of TT and the uncle and PN and MN) travelled to the Riverland where PN told the details of the abuse to KT. The accused at this time moved out of the Parafield Gardens home.
MN gave evidence of two occasions in which the accused digitally penetrated her. She gave evidence that the first occasion occurred in about December 2020. It occurred after a discussion about a jumper, a Bryce Hall jumper, that MN said that she wanted. She said that shortly after that discussion she went into the main bedroom which the accused and TT shared and that when she went in there, the accused wrestled her. She said that her stomach was on the bed and her legs were just dangling off the bed. He said that the accused wriggled his arm under her belly and reached under her pants and inserted his finger in her vagina. She said that he also grabbed her on the chest area and squeezed her breasts.
The second occasion occurred on Wednesday 3 February 2021 when she was home from school and the accused was off work. TT was at work. MN gave evidence that she was in the lounge room when they were wrestling and he touched her vagina and then put his fingers inside of her. He also touched and squeezed her breasts on that occasion.
MN also gave evidence that on more than one occasion, the accused asked her to flash her breasts at him. She said this occurred when she was at home and he would say “lift your T shirt up or take off your towel”. She said that the accused would lift up her top. She said that the flashing would occur in her room, her brothers’ room and the lounge room. On some of the occasions, it would involve touching her breasts.
I will deal with my assessment of the credibility and reliability of MN and PN when considering in detail their evidence in the context of all the evidence in the case.
Apart from the complainants, the prosecution called a number of witnesses who, they submit, supported the prosecution case or went to matters of credit. TT provided various contextual evidence but also gave evidence about issues about photographs taken by the accused of PN and MN, a white phone owned by the accused, a bandana owned by the accused, the wrestling by the accused and the complaint evidence.
I consider TT to have been a credible and reliable witness. She was firm and consistent in her evidence. She made appropriate concessions and gave evidence favorable to the accused in respect of certain issues. I did not form the impression that she had colluded with others or was determined to give evidence that would support the prosecution case. Her evidence was consistent with facts that I have found to be established. I will examine TT’s evidence in greater detail during the course of analysing the evidence on key issues.
The father of the complainants, SN, gave evidence about an incident that occurred some years previously with the accused in which he and the accused fought. He also gave evidence about the complaint by PN. The evidence of SN was relevant only in respect of two events, which were not controversial. SN had obvious (and admitted) mental health issues and was very vague in his evidence. Had the matters upon which he gave evidence been controversial, I would have had reservations about accepting his evidence. However, that was not the case.
A number of persons gave evidence in relation to the complaint made by PN, including the trip to the Riverland for the purpose of seeing PN in relation to her complaint. The persons who gave evidence on this topic were: (1) KT, the uncle of the complainants; (2) JT (who resided in the Riverland) and was the aunt of PN and MN; (3) HEB, the present partner of SN and (4) TT.
KT also regularly visited the Parafield Gardens house and made some observations about the accused when doing so. KT was a precise and balanced witness. He was very careful and considered in his evidence. I do not have any hesitation in accepting his evidence. That said, his evidence was primarily about matters that were not in contest. In a couple of instances where he gave evidence about observations that he had made, he was not challenged.
I also accept the evidence of HEB. Her evidence was clear and precise. She gave evidence on two topics only: the complaint made by PN and the searches for pornographic material on PN’s mobile phone. Neither of these topics was controversial. There was no serious challenge to her evidence.
The evidence of JT falls into the same category. Her evidence related only to one topic: whether MN heard the recording that KT had made of his conversation with PN about her complaint when it was played at her house in Waikerie. I accept the evidence of JT on this topic.
EB, the ex-partner of the accused (prior to the accused’s relationship with TT) and who had a child with him some years previously, gave evidence of her communications with the accused following his arrest. She gave evidence that the accused made a confession to her. It is appropriate that I make findings about her evidence when considering the issue of the confession and the context in which it was made.
Lastly, the investigating police officer Brevet Sergeant Madeline Riley gave evidence about matters that occurred during the course of the investigation. Brevet Sergeant Riley is an experienced and qualified police officer including in undertaking investigations of allegations of sexual abuse of children. She made appropriate notes of her investigations. Her evidence was not challenged and I accept her evidence.
Overview of the defence case
The accused gave evidence. He denied that any of the alleged offending occurred. As to PN, he said that from the time that he commenced living with TT, he had a very poor relationship with PN and that PN wanted to live with her father. He said that his relationship with MN was better. He said that he wrestled with the children, PN, MN, JM and the twin boys. He denied that he was home alone with PN or MN other than very rarely and therefore that he had any opportunity to commit the alleged acts.
He gave evidence that he did not make any confession to EB. He said that he had rekindled a sexual relationship with her prior to being charged with this offending and prior to the complaints being made by PN and MN. He said that following the complaints being made, EB provided support to him. He said that she wanted another child with him so that JM would have a sibling with the same parents. The accused said that he rejected that request, following which EB ceased to have contact with him or had very much reduced contact.
The accused was firm and consistent in his denial of having committed the alleged acts against MN and PN. He was also firm and consistent in his denial of having made the alleged confession to EB. The truth and reliability of his evidence can only be assessed in the context of an examination of the whole of the evidence.
The accused’s mother, AW, also gave evidence, about EB’s support of the accused after the complaints were made. AW gave evidence that EB said to the accused that she wanted to have another baby with him.
Factual findings
I will first made findings about background matters which are not in dispute. I will then make findings about some of the other pieces of evidence in respect of which there is some dispute and which are relevant to my assessment of the evidence of the complainants and the accused. I accept the submission of the accused that the case ultimately turns on my assessment of the credibility and reliability of the complainants and the accused, but my assessment must be made in the context of the whole of the evidence including the evidence relating to the alleged confession.
Background facts
The findings that I set out in this section were not in dispute.
The accused was born on 1 April 1989 and therefore was between 30 and 32 years of age at the time of the alleged offending.
The accused had a relationship with EB for about 4-5 years. They had a child together, JM, who was born on 4 May 2010. The accused and EB separated not long after JM was born. EB described her relationship with the accused after the breakup as quite toxic. According to EB, her relationship with the accused became worse once he commenced a relationship with TT.
TT is currently 36 years of age. She was previously in a relationship with SN. At the time she was living in Waikerie. TT and SN commenced a relationship at the end of 2005. The relationship ended in August 2014. There were two children from that relationship, MN who was born on 10 April 2007 and PN who was born on 19 May 2010.
In about August 2015, TT left the Riverland and moved to Adelaide with her two children, PN and MN. SN remained in the Riverland. There were no formal custody arrangements between TT and SN, although he would have access, by ad hoc agreement, from time to time, in the Riverland.
TT commenced a relationship with the accused in about November 2015. They commenced living together at an address in Munno Para West and then moved to the Parafield Gardens address in about November 2015. TT and the accused had twin boys, DM and JM on 27 June 2017 (who I will refer to as the boys or the twins). The boys were therefore between 2 and 3 years of age at the time of the alleged offending.
JM, the accused’s child from his relationship with EB, would stay every second weekend with TT and the accused, arriving on Friday afternoon after school and returning on Sunday afternoon. JM would also stay with them one week on and one week off during the school holidays. There is a dispute as to how those arrangements were made and in particular whether the intervention of the Family Court was required. I will deal with that issue when assessing the credit of the accused and EB.
The accused had a very bad relationship with PN from the time that he moved in with TT. There was evidence concerning a television being damaged and the accused’s car being damaged by PN. The accused had a better and satisfactory relationship with MN. PN frequently expressed the position that she wanted to live with her father.
TT’s father is married to the accused’s mother. TT and her siblings, KT and JT, knew the accused when they were growing up.
Sometime between about 2015 and 2017, there was an incident between SN and the accused at a McDonalds car park at Munno Para. SN and the accused did not have a good relationship. TT was dropping the children off for access. MN and PN were in the car at the time. A fight broke out between SN and the accused. SN was either thrown to the ground by the accused (on the evidence of TT and SN) or tackled to the ground (on the accused’s evidence). I do not have to resolve that difference as it is not relevant to this trial. SN was knocked unconscious.
It is not necessary for me to make any findings as to the cause of this incident or who was to blame. It is sufficient that I find that PN and MN witnessed the incident as they were in the car and the incident occurred directly outside the car. They saw their father being injured by the accused and being thrown to the ground. I accept that PN and MN were upset by the incident. I do not draw inference adverse to the accused about the incident or use it for any propensity reasoning.
The Parafield Gardens home was a three-bedroom home. TT and the accused shared the main bedroom, off which there was a walk in wardrobe, which is where PN alleged that almost all of the acts of fellatio occurred. Through the walk in wardrobe, there was a bathroom. There was a lock on the door between the bathroom and the walk in robe. That door could be locked only from the inside of the bathroom. There was no door between the main bedroom and the walk in wardrobe.
Immediately next to the main bedroom was bedroom 2 which was the boys bedroom. The girls slept in bedroom 3. JM (when she was there) slept in a single bed whilst PN and MN slept in a bunk bed. MN’s clothing was kept in the boys’ room.
There was a tallboy in the main bedroom where the accused kept his clothing. There were also two small bedside tables in that room. The main bedroom had a roller shutter on the outside (which was operated manually from the inside). There were lace curtains and some heavier curtains on the inside. For a period of time, the roller shutter was not working. The roller shutter was stuck and would not move. TT gave evidence that the roller shutter was stuck for about three months over the summer of 2020/2021.
During the period of the alleged offending, TT worked part time at Woolworths. She worked between 9 am and about 2 pm on Wednesdays, between about 11.30 am to 4.30 pm on Fridays and between 1 pm to 5.30-6pm on Saturdays. The Saturday shift changed to 6 am to 11 am about 2-3 months prior to April 2021.
MN started at high school in 2020 and PT was at primary school. They both walked to and from school. TT usually travelled by car to work on Saturdays and sometimes took the train, but other times shared the car with the accused.
The accused would work from about 7 am to 3.40 pm on Monday to Thursday and from about 7 am to about 1.10 pm on Fridays. The accused sometimes worked overtime and if he did, he would finish work at 4.40 pm on those days. The accused said that he would often work overtime. TT said that sometimes, but rarely would he work overtime on Fridays. The accused said that he mostly did overtime on Fridays until 3.40 pm. For a period of time, PN undertook dance lessons after school on Fridays. The accused would take PN to dance classes. MN would go with them. The dance classes started at about 4-4.30 pm and went for an hour. There were about 10 dance lessons in total. MN and PN would arrive home at about 3.45 pm. The twin boys would be in childcare on Thursday and Friday and would stay with their grandmother on Wednesday.
TT did the main shopping on the weekend and also a smaller shop on Tuesday nights. She was paid on Tuesdays. TT gave evidence that the accused would come with her for the Saturday shop. The twin boys would come with them when they did the Saturday shop but sometimes the accused’s mother would look after them. TT gave evidence that the accused would only on rare occasions accompany her on the Tuesday shop but he would on most occasions be at home looking after the children. The accused said that he would go with her on the Tuesday night shop and they would take the boys. He said that there was no occasion when TT did the shopping by herself on Tuesday night. I will deal with the conflict later in these reasons.
TT gave evidence that both her and the accused were members of a gym. She said they were not members of the gym for very long and probably only went for about 15 times in total. TT said she and the accused went together and they would drop the twin boys at the accused’s mother’s house for her to look after them when they were at the gym. The accused said that he would go to the gym about five times during the week after dinner. He said that changed in 2021 because of Covid restrictions. He said that they had to book in. I will deal with the conflict later in these reasons.
The allegation made by MN about the conduct of the accused which is said to have occurred at the time of the Bryce Hall jumper is alleged to have occurred in about December 2020. I will deal with that allegation separately.
At Christmas 2020, PN got her own mobile phone.
TT gave evidence that the accused had holidays in January of each year. She said that he would return to work in mid-January or late January. She said that she was generally at work during January but would sometimes take a week’s holiday in that period. During January, TT said that the accused would look after the children.
The allegation made by MN about the conduct of the accused when she was home from school is alleged to have occurred on 3 February 2021. I will also deal with that allegation separately.
During the April school holidays in 2021, PN was staying with her father at Morgan. MN remained in Adelaide. On 16 April 2021, PN made a complaint to another young girl, DW, about the alleged conduct of the accused. SN was told about these allegations.
On 17 April 2021 at about 1 am, SN rang MN and asked her if she was safe and could she pack a bag and be ready to be picked up in the morning. SN asked her if anything had happened to her. MN said that nothing had happened to her and she wanted to say with TT. SN spoke to TT and said that PN had said that something had happened to her, that TT was not protecting her, and that he wanted MN to pack her bags and come to Morgan. He did not tell her of the details of what PN had said. TT woke up the accused and told him about the call.
A couple of days later, on about 19 April 2021, TT spoke to PN on the telephone. During the course of this phone call, PN told TT that the accused had touched her and that she did not want to return home. PN also told TT that she, TT, would not believe her. TT says that she thinks that it was in this phone call that PN told her that the accused put something over her head very tightly and put his penis in her mouth. PN told TT that she hated the accused and wished he was dead. TT said that this was the first occasion upon which PN had made a complaint to her that the accused had done sexually inappropriate things to her.
TT said at that time she spoke to the accused who denied any wrongdoing. TT also spoke to MN who told her nothing had happened to her. TT said that she asked MN three or four times and she said that the accused had done nothing to her. TT also told her brother KT, who said that she should go and see PN and find out the truth.
KT came to the Parafield Gardens home on 20 April 2021. He had a conversation with the accused in which the accused said that he didn’t touch PN. TT, KT and MN then travelled, by car, to Morgan. TT gave evidence that they probably had a conversation with MN about the accused in the car and probably asked her if anything had happened to her and she said it had not. KT gave evidence that he asked her if anything had happened to her and if she was not ready to talk about it, that was okay and she could tell her mother (TT) when she was ready. MN responded okay. After arriving in Morgan, TT, KT and MN went to HEB’s house at Cadell. HEB is the current partner of SN.
PN said that she only wanted to speak to KT about what had happened to her. KT and PN had a conversation in the front room of the house. KT, with the consent of TT and SN and PN recorded that conversation. No-one else was present during that conversation.
TT, KT and MN then travelled to Waikerie to see JT, who was the sister of KT and TT (and aunt of PN and MN). JT asked for the recording to be played. There is a dispute on the evidence as to whether MN was present when that recording was played and I will return to that topic later. TT says that MN was present when the recording was played. JT, MN and KT say she was not.
After the recording was played, JT asked MN if the accused had done anything like this to her. MN replied no.
TT spoke to the accused by telephone and said that it would be best if he got some of his things and left and went to his mother’s house. TT collected the twin boys from his mother’s house later in the evening when they returned to Adelaide. TT had a conversation with the accused at his mother’s house when they returned to Adelaide. He denied any wrongdoing and said that PN was a liar.
TT collected the twins and returned to the Parafield Gardens home. She observed that some of the accused’s possessions had gone including most of his clothes from the tallboy and the white, Samsung Galaxy, phone from the tallboy. TT said that after she made that observation, she said to everyone “He has definitely taken some stuff. He has gone.” It was put to TT in cross examination that there was no white phone in the tallboy. I accept TT’s denial of that proposition, but will elaborate on my reasons for this finding. The accused admitted that he took some clothes on that occasion and said that he did not return back to the house at any point after that time. He said that his father’s partner, his cousin and TT’s father picked up his remaining possessions at a later time.
TT said after they had returned to the Parafield Gardens home from the Riverland, she had a conversation with MN in the presence of her cousin (JT’s daughter), TA. TT asked MN whether she felt uncomfortable around the accused herself. MN maintained that she didn’t really feel that uncomfortable around the accused. She messaged her good friend, A, who had spent some time with them and asked her if she felt uncomfortable around the accused. A replied that she did feel uncomfortable. MN said that she had asked her cousin TA and she had replied that the position he put us in was a bit weird. Neither TA nor A gave evidence.
MN came to TT after she had received the message from A. TT asked MN when she read the message of A, did she feel uncomfortable around the accused. TT said everyone else obviously does, do you? MN started to cry and said that the accused had been doing some things to her. MN said to TT that the accused had put his hands down her pants on a few occasions and had entered his fingers into her. MN also told TT that the accused would like to look at her breasts and touch them. MN said to TT that sometimes it would happen when TT was at home. She said that the accused put his hands down her pants when they were play fighting.
TT asked MN why she didn’t tell her earlier and MN had replied that she was scared of the accused. TT then rang the accused and told him that their relationship was over. The accused denied the allegations.
TT reported the allegations to the police the following day, 21 April 2021.
MN gave a prescribed interview on 21 April 2021.
PN gave a prescribed interview on 22 April 2021 and a further prescribed interview on 14 January 2022. I accept the evidence of Brevet Sergeant Riley that it was in the latter interview that PN first told her about having to spit out “the yucky white stuff” after fellatio was allegedly performed by the accused. I reject the evidence of PN that she told Brevet Sergeant Riley at the previous prescribed interview. If that was the case, then Brevet Sergeant Riley would have written that down. Brevet Sergeant Riley was an experienced officer in child protection matters and it is inconceivable that she would not have properly recorded information that was so obviously critical. I will deal with this issue in detail later in these reasons.
The accused voluntarily presented himself at Elizabeth Police Station on 22 April 2021 and gave a record of interview to police on that day. The accused’s mobile phone, a Samsung S10 (being the dark colour phone), was seized. At that time, the accused was living with his mother at Salisbury Downs. No search was made by police of that address. No search was made of the Parafield Gardens property.
The accused was arrested on 5 May 2021. He attended his first appointment with a lawyer shortly after his arrest.
DW, the person to whom PN made a complaint, gave a prescribed interview on 7 July 2021.
After the accused had been accused of doing inappropriate things to PN, the accused told EB by telephone of those allegations in about May 2021, according to EB. She said that she was in Tumby Bay at the time. EB became supportive of the accused after the allegations were made and saw him daily.
It is the evidence of EB, but denied by the accused, that the accused confessed to her on 6 June 2021 that he had committed sexual acts with PN and MN. I will deal with that evidence separately. EB said that when she returned to the accused’s mother’s house following the confession, she packed her daughter’s belongings and left the house. The accused gave evidence that EB wanted to have another child with him and that it was only after said that he would not, that EB stopped supporting him.
The accused agreed that it was around 6 June 2021 that he last saw JM.
EB informed the police of the alleged confession on 29 July 2021.
Sometime after April 2021, when collecting the twin boys from the accused’s mother’s house, TT had a conversation with the accused about MN in which she said that the accused told her MN wanted a Roblox card and MN said to him that she would show her boobs if he would buy the Roblox card for her. The accused said to TT that the girls were greedy. The accused denied that conversation occurred.
TT said that on another occasion the accused told her that he and MN were playing a game and he said as a joke “flash” and she did. The accused denied that event occurred.
On 8 August 2021, when there was a handover between TT and the accused in relation to access to the twins, TT recorded a conversation between her and the accused. I will deal with that later.
TT also gave evidence of a conversation that she had with the accused after April 2021 when the accused told her that PN offered to do some sexual favours to him if he fixed her bike and that she was a dirty little girl. The accused denied that conversation occurred.
PN remained living with SN in the Riverland until about March 2022 when she returned to live with TT.
Individual items of evidence-accused at home with MN and PN
There are a number of instances where the accused gave evidence which sought to minimise or eliminate the time that he spent alone with the complainants. That resulted in him giving evidence which was not accurate. I accept the submission of counsel for the accused that the accused might seek to minimise his involvement with MN and PN and that even if that evidence was not accurate or reliable, it was not an indication that the accused had committed the alleged offending. These matters, which I will address below, do not cause me to conclude that the accused’s evidence generally to be not credible or unreliable. The evidence however, is relevant to my overall assessment of the credibility and reliability of the evidence of the accused.
There are four topics which fall into this category of minimisation of involvement: first, the accused’s evidence of the routine on Fridays; secondly, the routine on Saturdays; thirdly, his evidence as to using the gym; and fourthly, his evidence as to Tuesday night shopping.
As to Friday routine, TT gave evidence that she worked from 11.30 am to 4.30 pm on Fridays. She said that the accused would work from 7 am to 1 or 1.10 pm on Fridays and would be at home before she finished work and got home at about 6 pm. She was not challenged on this evidence. It was suggested that there were times when the accused worked overtime on Fridays. She responded, “very rarely on a Friday”.
The accused gave evidence that he was supposed to finish at 1.10 pm on a Friday but he mostly did overtime until 3.40 pm. He said that if he took the car, he would pick up TT when she finished work at around 2 pm. He said the same in his record of interview. This was contradicted in part by his evidence as to the routine about taking PN to her dance classes. He said that he would take PN to dance classes and that TT was sometimes home, sometimes at work. The accused’s evidence that he mostly did overtime on Fridays is also contradicted by his statement in his record of interview that every second Friday he would pick up TT at 2 pm and then JM at 3 pm before heading home. He also said in his record of interview that he worked to 1.10 pm on Fridays and would always pick up TT at 2pm. Still further in cross examination, he said that he would walk PN to her dance class and could not remember if TT was still at work or not. TT said in cross examination that in four years he wasn’t at home with MN and PN after they finished school on a Friday and that TT was always there. He then agreed that TT finished work at 4.30 pm on a Friday but said that he would not go home until everyone was picked up.
I do not accept the evidence of the accused as to the general arrangements on Fridays. The general routine was that the accused finished work at 1.10 pm on Fridays and then returned home to look after the children until TT returned home after finishing work at 4.30 pm. I make this finding for the following reasons. First, TT’s evidence on this topic was unchallenged. Secondly, the accused’s evidence was contradicted in part by his evidence about taking PN to dance classes and TT sometimes being at work. Thirdly, the evidence of the accused about working overtime is contradicted in part by his evidence in his record of interview that he finished work on Fridays at 1.10 pm and always picked up TT at 2 pm.
As to Saturdays, TT gave evidence that she would work every second Saturday. These hours were initially from 1 pm to 5.30 pm but later changed to be from 6 am to 11 am. The accused would be at home with the children. That evidence was not challenged. The accused said in cross examination that he would do overtime on Saturdays if TT worked. When pressed as to how often that would occur, he said about once a month.
I accept TT’s evidence on this topic and find that the accused would look after the children on Saturdays when TT was working. I make this finding for the following reasons. First, TT’s evidence on this topic was unchallenged. Secondly, the evidence of the accused was contradicted in part by his evidence in cross-examination that he only worked overtime about once a month. Thirdly, it is inherently unlikely that both TT and the accused would leave for work at 6 am and at least on some occasions leave the boys with MN and PN.
KT gave evidence that he was studying nearby and would visit about four times a week. He said that he would sometimes visit when the accused was alone with the children, including on Saturdays when TT was at work. KT’s evidence was not challenged. I accept his evidence and consider it supports the finding that at times the accused was at home alone looking after the children.
As to the gym, TT said that she went to the gym with the accused and that they went in total about 15 times. The evidence of the accused in examination in chief was that he would go to the gym about 5 times during the week and once on the weekend. He would go after dinner. He said that TT would sometimes go. In 2021, he said that Covid restrictions cut him off going to the gym. In cross examination, when it was put to him that he went only once or twice a week and only 15 times, he said that he could not remember. No gym records were tendered.
I accept TT’s evidence. Again, it was not challenged. The evidence of the accused in chief was contradicted by his evidence in cross-examination. It was apparent that he had no clear memory of his attendances at the gym.
As to Tuesday night shopping, TT said that she would do the Tuesday night shopping. She said that sometimes the accused would accompany her but mostly he liked to stay at home. The evidence of the accused was that TT would never do the shopping without him. He said that the boys would come within them. He said that there was never a time that TT went alone without him.
In this case, there is a conflict between the evidence of TT and the accused. For the reasons that I have expressed, I have accepted the evidence of TT generally and I accept her evidence on this topic.
The prosecution submitted that I can be satisfied that the accused was at home with PN and MN on Saturdays and Friday afternoons (when TT was at work), and on Tuesday evenings (when TT was shopping) and therefore had the opportunity to commit the offending. I am satisfied that the accused was at home with PN and MN generally on those occasions and therefore had the opportunity to commit the offences in the sense that TT was not present. I also consider that the accused gave evidence which minimised his time alone at home with MN and PN. As I have stated earlier, I consider this evidence is relevant to my assessment of the credibility and reliability of the evidence of the accused. However, that evidence was only peripheral to the central issues in the trial and I do not consider it to be of great weight.
Individual items of evidence-Photographs of PN and MN
The prosecution submitted that the photographs of MN (ex P8) and PN (ex P16) that were located on the Samsung S10 mobile phone of the accused demonstrate a sexual interest of the accused in MN and PN. The prosecution submitted that the taking and retention of those photographs demonstrate that sexual interest.
For the reasons that I will set out, I do not accept that submission. In reaching this conclusion, I have had regard to the nature of the photographs and the circumstances in which they were taken.
TT said that shortly after her conversation with SN on 16 April 2021, she looked through the green (Samsung Galaxy, S10) mobile phone of the accused. She said that they had recently had a trip to the beach and the accused had taken a photo of MN and TT at the beach. A few days later when she asked the accused for the photo, he said that he did not take the photo. TT went through the phone and could not find the photograph of her and MN at the beach. She looked up how to find deleted photographs and found the photograph of her and MN at the beach and also eight or so deleted photographs of MN in her bras and knickers. Exhibit P8 was one of those deleted photographs. The other photographs were the same photograph.
TT said that, when questioned, the accused could not give a proper answer to her question why he had those photographs.
TT gave evidence of the occasion when the photograph (Ex P8) was taken. She said that MN and PN wanted some cream to remove hair on their legs. The accused bought the cream. TT found the smell of the cream to be awful and the accused offered to apply it. The accused applied the cream to the girls’ legs. TT was back and forth and the door was open (to the bathroom) throughout the process. At the time, TT did not have any problem with the accused performing that task. TT did not know the photograph had been taken until she found it in the deleted section of the accused’s Samsung S10 mobile phone. I accept her evidence that she was not present when the photograph was taken. TT’s evidence of the circumstances in which she found the photograph was, in part, favourable to the accused. There was no reason why her evidence on this issue generally would be false or unreliable.
MN gave evidence that at the time that the photograph was taken, she was using the cream that removed the hair from her legs. She said that the accused put the cream on her legs. She said that her mother was going to do it and the accused said that he wanted to do it. She agreed that her mother didn’t like the smell. She said her mother (TT) and PN were present, although her mother had gone to do the dishes after the cream had been put on and whilst it was drying. MN said that she did not know that the photograph was being taken. MN agreed that the application of the cream made her leg sting and that the accused found that funny.
The accused gave evidence that the photograph was taken because the hair removal cream was burning the leg of MN and he thought it funny. He said that it was his intention to take a video but instead he took a burst of photos. He said that he showed the photograph to TT.
The accused denied having a conversation with TT as to why the photo was in the deleted section. I prefer the evidence of TT on that topic. TT had a specific memory of how she came to find the photograph in the deleted section of the phone. She was fair and balanced in her evidence as to the circumstances in which the cream was applied including admitting that she was present for the application of the cream by the accused. The accused denied that TT asked for to take a photograph of her and MN at the beach or asked to see a copy of that photograph. It follows that he also could not recall any conversation about the deleted photographs.
The photograph, by itself, does not suggest a sexual interest. The photograph is no more explicit than any photograph taken at a beach. The circumstances in which it was taken, including the presence of TT whilst the cream was being applied, does not suggest the application of the cream was being undertaken out of sexual interest in MN or PN. I accept also the submission of the accused that MN is looking at the camera when the photograph was taken and therefore was aware that it had been taken. While MN denied that she was aware that the photograph had been taken, I do not consider that impacts on her credibility.
The accused referred to this photograph and the photograph of PN showing her sunburn in his record of interview with the police. I accept the submission of the accused that if he took the photographs because of a sexual interest in MN and PN, he would not have referred to those photographs in his record of interview.
The photograph was in the deleted section of the phone (on my findings). This does not provide the basis of a finding, on the evidence before me, that it was being retained for a sexual reason.
I also do not consider that the photograph of PN showing off her sunburn (ex P 16) demonstrates a sexual interest of the accused in PN. Again, the photograph must be considered in the context in which it was taken.
PN gave evidence that she had got sunburnt on a camping trip. She said that the accused took the photographs in her bedroom and that he told her to keep lifting her shirt and said that he wanted to show his friends.
TT gave evidence that PN had got sunburnt on a camping trip not long after her relationship with the accused had commenced and before she had the boys. TT said that PN wanted to see how sunburnt she was. TT was present when the accused took the photograph. TT agreed that the photograph was taken for an entirely innocent purpose.
The accused gave evidence to the same affect. He said that he thought he sent the photograph to EB who was annoyed that their child, JM, had also got sunburnt on that occasion.
I accept the evidence of TT and the accused on this topic. I do not accept the evidence of PN. The photograph, by itself, does not suggest any sexual interest of the accused in PN. I find the evidence of PN on this topic to be unreliable.
Individual items of evidence-accused’s explanation of photographs
In August 2021, the accused and TT had a conversation about photographs that the accused had taken. That conversation was recorded by TT. The conversation occurred in the course of dropping off one of the twins for access. During that conversation, the accused said to TT:
But I want them to be honest to you too. And if they do find the … like I said to you-the photo of [MN] with her boobs-they will find that and you will see that photo and you will think ‘oh come on mate like that’s a bit fucking …okay yeah I know it’s wrong for me. It’s fucking disgusting what I’ve done. But you will see that I’m not lying to ya. I’ve told you, I told you the fucking truth. I’m not lying. I got no more time. I got no, I don’t need to lie to you anymore.
The accused gave evidence that at the time of this conversation he was very dazed and still taking medication. He said that he was not sleeping well. He said that the reference to [MN] was a mistake and that when he made the above statement, he meant to refer to PN and the photo of her with the sunburn.
I do not accept this evidence for five reasons. First, the reference to [MN] was clear. Secondly, the reference to “they will find that” could only be a reference to the police. He had told the police about the photograph in the record of interview. Thirdly, on the accused’s evidence (and also TT’s evidence), TT was present when the photograph of PN and her sunburn was taken. In these circumstances, I do not consider that the accused would make a statement which suggests that TT has not seen the photograph previously. Fourthly, I do not consider that the photograph is or that the accused would describe the photograph as “fucking disgusting what I’ve done”. The photograph, in the context in which it was taken, was not “fucking disgusting”. The accused did not think of it as such. Fifthly, PN did not show “boobs”, she was at that time too young to have boobs.
For the sake of completeness, I do not consider that the accused was referring to the photograph of [MN] (exhibit P8) in that statement (although I observe that the accused’s evidence was that he was not referring to that photograph). The accused made reference to the photo in his record of interview. Again, on the accused’s evidence, TT was present when the photograph of MN was taken (although TT denies this). If that is correct, I do not consider that the accused would make a statement which suggests that TT has not seen the photograph previously. Further I do not consider that the photograph is or that the accused would describe the photograph as “fucking disgusting what I’ve done”. The photograph, in the context in which it was taken, was not “fucking disgusting”. The accused did not think of it as such. Still further, MN did not show “boobs” in the photograph.
The prosecution submitted that the accused’s statement that the photograph was “fucking disgusting” was corroborative of MN’s account of the offending and was confirmatory of the accused having a sexual interest in her. I do not accept that submission. I have already found that the photograph and the context in which it was taken does not demonstrate a sexual interest in MN. I do not consider that the accused’s labelling of the photograph changes that conclusion. I am unable to make any finding as to what photograph the accused was referring to in this conversation.
However, as I have found, I have not accepted the accused’s evidence in relation to the explanation that he gave to TT about the photograph in their conversation at McDonalds and do not consider it to be accurate. That matter goes to his credibility.
Individual items of evidence-deletion of photographs
In the record of interview that he gave on 22 April 2021, the accused said that TT over the weekend or over the week had gone through his phone and deleted the photos on the phone but said that they could still be retrieved. He said that he did not know why she had deleted them. He said that he did not see her delete the photographs.
There are a number of reasons why I consider that the statements made by the accused in the record of interview were not accurate. First, TT gave evidence, which I accept, that the photographs were in the deleted section when she examined the phone prior to the allegations coming out. There is no logical reason why she would delete the photos at that time. Secondly, when it was put to the accused in cross examination at trial why he thought that TT had deleted the photos, he said that because when he went to show Brevet Sergeant Riley the photos they were in the deleted section. That suggests that the first time he was aware that the photographs were in the deleted section was when he showed the phone to Brevet Sergeant Riley after the record of interview. He therefore could not have known that the photographs were deleted at the time of the record of interview (contrary to his statement in the record of interview).
It follows that the statement made by the accused to the police about TT deleting the photographs in the record of interview was not accurate. Again, I consider this matter goes to the credibility of the evidence of the accused. It is another example of the accused giving evidence that sought to distance himself from peripheral matters.
Individual items of evidence-telephone
An issue that arose at trial was the mobile telephones that were used by the accused and in particular whether the accused used a white Samsung Galaxy S5 on which he took sexually explicit photographs of PN and MN.
TT gave evidence that the accused had four mobile telephones. He had a green Samsung Galaxy S10 which he was using at the time that the allegations were made. TT said that the accused had purchased that not long before the allegations were made. Prior to that, TT said the accused had used a black S9 Samsung which she had purchased for him. He also had two white phones, one of which was a white Samsung Galaxy S5. She said that a very old white phone was kept in a basket above the refrigerator but the white S5 was kept in the top drawer of the tallboy in their bedroom with other clothing of the accused. TT gave evidence that she did the washing for the accused and put other items in the drawer. She therefore knew of the contents of the drawer. TT said that she did not see him use that phone. When put to her in cross examination that the white phone was kept on top of the refrigerator, TT was clear that it was kept in the tallboy.
It was put to TT that in her earlier statements to the police, she did not refer to the white phone in the tallboy. While that is so, I do not consider it unusual that she would not have referred to that until giving her evidence that she had not seen the accused using that phone. I do not consider this detracts from her evidence that the S5 white phone was in the tallboy and that it was not in the tallboy when she returned from Wakerie on 21 April 2021 after the accused had taken some of his possessions.
PN, in her prescribed interview on 22 April 2021, said that the accused would take photos of her when she was in the house using his current phone but then would transfer them onto his old phone. It is not apparent how she would have known this. In the evidence that she gave at the pre-trial special hearing, PN said that on one occasion, she could see through the T shirt and observed the accused videoing her with the white phone. She said that she could also see him holding his other phone, doing something like texting. She also said that there was another occasion when the accused took photos of her on the bed with her legs spread apart, this time using his black everyday phone. PN said that the white phone was kept in his sock drawer and not on top of the refrigerator.
The accused gave evidence that he used the Samsung S10 phone for everyday use. He said that there were old phones, including a white phone, which were kept in a basket on top of the refrigerator. He denied that the phone was kept in the tallboy. The accused agreed that the phone had a camera function. The accused said that he did not use the white phone that was on top of the fridge but that he had seen the girls use it, meaning PN, MN and JM. He said that the white phone did not have a sim card in it and he was not paying phone accounts for those phones. He said that the girls were using the phone to play online games and believed it had to be connected to the internet to download games. The accused denied that he took the phone because he was worried about what would be found on the phone. He said that TT still had the phone.
The accused submitted that TT had given evidence (at transcript 184.31) that she remembered seeing the phone in the tallboy when she returned home from Waikerie. That is a fair reading of the whole of her evidence. Her evidence was that the phone was not in the tallboy when she returned home. I consider that the passage referred to by the accused was a misstatement.
I accept the evidence of TT that the white phone was kept in the tallboy and was taken by the accused when he took his possessions on 21 April 2021. The phone was not at the home when TT returned on that date. TT generally did the washing for the accused and saw the phone in the tallboy when putting things in the drawer. This is a distinct memory of an observation that occurred on more than one occasion. It is not something that TT might have been mistaken about. The accused’s evidence about the use of the white phone by the girls was not convincing. He said that the white phone was not connected to a plan or had a sim card. There would have been no reason for it to be. If that is the case, then there is no explanation as to why the girls would use this phone. PN received her phone in Christmas 2020 and MN and JM both had their own phones. In his record of interview, the accused said that PN and MN used his current phone to play You Tube and video games and to text his sister. Again, there was no reference to using the white phone.
My findings are relevant to the credibility of the accused. He has given evidence about where the white phone was kept which was not accurate. He has also removed the white phone from the tallboy on 21 April 2021 prior to TT and the others returning from the Riverland.
Although I have accepted TT’s evidence about the white phone, it does not follow that I accept PN’s evidence. There is no support for that evidence. Given the inconsistencies about her evidence (which I detail later), I am not satisfied that the evidence establishes that the accused used the white phone to photograph her.
Individual items of evidence-telephone-Bandana/Tshirt
PN gave evidence that when the accused made her perform acts of fellatio, he would grab his T shirt and tie it around her head so that she could not see. She repeated that evidence in her unsworn evidence before the Court. TT did not give evidence about a bandana.
The issue of bandanas arose out of the evidence of EB. She gave evidence that she found them when unpacking his clothes when the accused went to live with his mother following the complaints. She said that during the conversation that she had with the accused in which she alleges that he confessed to the offending, there was a discussion about bandanas. She said in that the conversation the accused said that there were some bandanas that were found. He said that they were mentioned in a statement. He asked her if he should take them to the police station for evidence or DNA. She said that she didn’t know what he should do with them.
TT gave evidence that the accused had two bandanas that were kept in the tallboy. She agreed that the accused used them for fishing. She said that she would go through his bag and wash them and put them in the tallboy.
The accused gave evidence that he never owned a square bandana but that he owned a fishing face shield that was cylindrical in shape. He denied EB helped him unpack his clothes when they found the bandanas or sleeves, as the accused described them. He said that they were kept in the shed and were never washed.
There is no evidence that the bandanas (or shields) were connected with the alleged offending. PN did not give evidence about bandanas. The only relevance of the evidence could lie in relation to credit: first, the conflict between TT and the accused as to where the bandanas were kept and whether they were washed and secondly, the conflict between EB and the accused as to the unpacking of the bandanas/shields and the conversation about them during the course of the alleged confession.
As the first matter, I prefer the evidence of TT. She had a specific memory of going through the fishing bag and washing the bandanas and placing them in the tallboy. However, I do not consider the matter to have any affect on the credibility or reliability of the accused. These were actions of TT. On PN’s evidence, the bandanas were not alleged to have been used in the offending and did not form part of the circumstances surrounding the offending.
However, I do consider the issue relevant to the credit of the accused and EB in relation to the alleged confession. The evidence does not directly relate to the offending and can only go to credit. Even if I found that EB was correct, the failure of the accused to recall these details does not cause me to make an adverse finding in relation to his credibility or reliability generally. However, the reference by EB to the bandanas is relevant to my assessment of her credibility. I will deal with this issue later in these reasons.
Individual items of evidence- Wrestling/play fighting
There was considerable evidence about the conduct of the accused in wrestling or playfighting with others, including PN and MN.
PN gave evidence at her pre-trial special hearing that she and the accused would sometimes playfight and he would pretend to strangle her and would throw her to the ground. She said in her evidence before the Court that sometimes he was strangling her. She said that they would playfight nearly every day. She said that she would feel happy and excited when they engaged in the play fighting. I observe that is somewhat contradictory to her evidence about not liking the accused. She said that none of the offending occurred during the play fighting. She said that the accused engaged in playing fighting with MN and the boys. She said that sometimes it was a bit hard to breathe.
MN also gave evidence about the wrestling. She said that it would occur nearly every day. MN described the wrestling as playful. She said that the accused also wrestled with PN. She said that it would involve strangling and twisting the arm. She said that he wrestled with JM only a few times. MN gave evidence that the two occasions when he inserted his fingers into her vagina involved wrestling.
TT gave evidence that the accused would play fight with her and that he would sometimes place her in a choke hold such that she felt that she was going to pass out. She said that he would also play fight with the children a lot more. She said that a lot of times she would have to tell him to stop, particularly with MN. She said that sometimes MN told the accused to stop. She said that sometimes he would not stop and she had to really scream. She said she found the playfighting a little frustrating and sometimes immature on the part of the accused.
KT, the uncle of PN and MN, also gave evidence that he witnessed the accused play fighting with PN and MN. He said that he had witnessed the play fighting with the two girls and TT. He said that the accused had engaged in playfighting with himself (KT). He had observed the girls say get off and that PN would sometime storm off and cry. That is contradictory to the evidence of PN saying that she enjoyed it. He said that the accused had engaged in this play fighting or wrestling from the time that he first knew him.
The accused gave evidence about the playfighting. He said that it was a form of Brazilian jiujitsu and he would get all of the children (including PN, MN and JM and the boys) in leg locks and toe locks. He said that that there were no occasions when MN or PN or TT told him to stop. There was no occasion when PN or MN complained.
Again, the wrestling, by itself, is somewhat of a peripheral issue (apart from it being the prelude to and the context in which the alleged offending with MN occurred). The acts do not demonstrate any propensity for the accused to act in any particular way. I accept the evidence of KT and TT that TT or PN or MN would have to tell the accused to stop. KT was an impressive witness and was straightforward in the limited relevant observations that he made. The accused was immature in relation to the wrestling/playfighting and it would be entirely probable that he would not know when to stop. Neither TT nor KT were trying to implicate the accused in relation to this evidence, rather they simply gave evidence of their observations. However, again how the wrestling was conducted is not a matter that is of any relevance in the circumstances of this case. Its relevance is only to the context in which the alleged offending against MN occurred.
Individual items of evidence- Complaint of PN
PN said that she told TT about the alleged abuse in the first week that it occurred and that TT didn’t believe her and told her to stop lying to get attention. She said that the conversation occurred in the kitchen and that TT told her to go to her room. PN said she kept telling her and TT continued not to believe her. PN said she told TT the whole story when everyone else found out.
PN said that TT started believing her in December 2020 because she, PN, told her a lot more.
PN said in her first prescribed interview that TT went through all of the photographs on the old phone of the accused and saw photographs of her. PN said TT woke her up at 6 am and showed her the photographs. PN said that TT deleted the photographs on the phone that night. She said that there was a conversation at the dinner table that night when TT said in front of PN and the accused that she had deleted the photographs.
PN said that she then told her friend, DW, whilst she was in the Riverland. She said at the time, she and DW were having a fight about DW texting an over-age man.
In her evidence at the pre-trial special hearing, PN said that she told DW that her stepfather (the accused) had been touching her but she did not say what the accused had been doing. PN said that after she had told DW, her father, SN, found out and asked her to speak to his partner, HEB, about the allegations. She said this was about two weeks after she had told DW. She told HEB about the details of the conduct and HEB said that was called rape. She said that led to her having a conversation with her uncle, KT, about what had happened, and he told her the same things as those she had told HEB about what the accused had been doing. In cross-examination, she accepted that it was not two weeks before she spoke to HEB after speaking to DW.
I have already set out the evidence of TT about the complaint. She said she was not told of any allegations against the accused until receiving the phone call from SN on 16 April 2021. PN had made no complaint at any earlier time. PN had not said to her in February 2020 that the accused had been touching her nor did PN say that at any subsequent time until April 2021. TT said that she had a conversation with PN a couple of days later about what had happened.
HEB gave evidence that PN told her in April 2021 that her stepfather had been doing things to he and that he would take her into her mother’s wardrobe and blindfold her and put things in her mouth.
KT gave evidence about what PN had told him when he went to the Riverland in April 2021 following PN’s complaint to DW and subsequent telling HEB. The conversation was recorded so there is no dispute as to what was said. PN told KT that the accused would make her perform fellatio and tied his T shirt around her head. PN said that she was too scared to tell TT because she, TT, would think that she was lying because she really loved the accused. In the interview, PN said that in December 2020, TT found the photographs on the old phone of the accused and dragged her out of bed at 6 am and asked her about the photographs. She said she told TT everything and her mother said go back to bed.
DW gave a prescribed interview. She said to the Brevet Sergeant Riley that PN told her that her stepfather had raped her. She said that PN told her that the accused made her perform fellatio on him. She gave evidence that after she had said that, PN said that she didn’t care anymore and that no one was going to believe her. DW and PN had a massive fight and she had walked near the road and was trying to get a car to hit her. DW said that she grabbed her and pulled her to the side and she kept standing on the road. PN denied this in her evidence.
The prosecution submitted that there was understandable confusion on PN’s part as to the exact nature of her complaint and that she did not inform TT of sexual conduct but of the accused’s conduct more generally. The difficulty with that submission is that it is not only inconsistent with PN’s evidence, but also with her specific memory of being woken up early and shown photographs and then being told later that the photographs had been deleted. The evidence, through the recording of their discussion, that PN told KT that she was too scared to tell TT but TT found out in December 2020, is also inconsistent with the evidence that she gave in the prescribed interview and in the pre-trial special hearing.
I accept the evidence of TT that PN did not make any complaint to her until April 2021. I consider that it would be highly unlikely that TT would summarily dismiss PN’s complaints if they were made in February 2020. I consider it even more unlikely that she would continue to dismiss the complaints after seeing some photographs and then announce at dinner in the presence of PN and the accused that she had deleted those photographs. TT acted quickly when she was informed, in vague terms, about the allegations by SN. That is inconsistent with ignoring complaints for over a year. It follows that I do not accept the evidence about the complaints PN said that she had made prior to April 2021. I also do not accept her evidence about her behaviour after she had told DW or that there was a two week period before she told HEB. I accept DW’s account of that behaviour. DW’s account is plausible and consistent with the evidence.
In these circumstances, I consider that the initial complaint of PN was made to DW and then elaborated upon to TT, HEB and KT.
Under s 34M of the Evidence Act1929, the first complaint and any elaboration of that complaint is admissible. That evidence can be used to support the credit of the complainant. The complaints are of course not evidence of the truth of the allegations. They demonstrate how the allegations came to light and put into context the acts of the parties and the witnesses after that time. The complaint can demonstrate consistency of conduct and consistency of account and therefore bolster the credit of the complainant. PN’s account of the alleged offending after April 2021 is consistent with her complaint. Her evidence as to having made a complaint before April 2021 is contrary to my findings. It follows that I reject the submission of the prosecution that the complaint evidence demonstrates consistency of conduct and therefore supports the credibility of PN.
The findings that I have made reflect on the credibility and reliability of PN, a matter which I will address later in these reasons.
Individual items of evidence- Complaint of MN
I have already set out the circumstances in which MN made her complaint. There is no suggestion that she made the complaint prior to her return from the Riverland on 20 April 2021. There is evidence that MN had been asked on a number of occasions prior to making the complaint whether the accused had done anything to her and she had denied that any abuse had occurred prior to making the complaint. She was asked by TT after TT’s phone call with SN on 16 April 2021. She was asked in general terms by SN. She was asked on the way up to the Riverland on 20 April 2021 when in the car with KT and TT and she was asked by JT when at Waikerie.
MN said in her prescribed interview that she was too scared to tell anyone at the time of the offending. MN said that she told TT when they had returned to Adelaide from the Riverland on 20 April 2021 after her cousin, HA, and her friend, A, had said that the wrestling was a bit weird.
MN gave evidence that she chose that moment to tell TT about what the accused had done because she felt safe because the accused wasn’t there. MN admitted that she had been asked twice before whether the accused had done anything to her. She said that once on the way up to the Riverland when she was in the car with TT and KT. She said that she didn’t say anything on that occasion because she was still scared because she didn’t know whether the accused had left or whether he was still in the house. The first occasion (when she was asked) she said that she wasn’t really sure but was pretty sure that it was in the room when TT was on the phone with her father (before they travelled to the Riverland). She said that on the Sunday (19 April) TT told her what PN had said the accused had done to her. She also said that TT asked her if the accused had done anything to her and she had said he had not. She told TT that she thought that PN was lying. She said that the reason she said that because the accused was in the house and she was a little bit scared.
TT gave evidence about the complaint made by MN after they returned to Adelaide on 20 April 2021. TT said that when they first got home, she went straightaway to look to see if the accused had taken his clothes and told everyone that he had definitely taken some stuff and was gone. She said that the complaint was made after MN had spoken to her cousin, HA, and texted her friend, A, as to whether they felt uncomfortable around the accused. TT had asked her whether she felt weird around the accused. MN had said that the accused put his hands down her pants on a few occasions and entered his fingers into her. She said that he would like to look at her breasts and touch them.
TT also gave evidence about the trip to the Riverland, including to her sister’s house at Waikerie. She said that the recording of KT’s conversation with PN was played at her sister’s house. She said that MN was present when the recording was played and put her head down, stepped back and wouldn’t speak and looked shocked.
These matters caused me to have some doubts about the credibility and reliability of the accused. However, they were on matters peripheral to the central issues in the case. They were not such that, given the doubts that I have in relation to this allegation, I could exclude as a reasonable possibility the denials given by the accused.
There are four matters that cause to me to doubt the complaint made by MN regarding this alleged offending.
First, is the conflict between the evidence of TT and MN. TT’s evidence was that she was at home on the occasion when the Bryce Hall jumper was discussed and purchased. TT said that she came into the bedroom when the accused and MN were on the bed. MN said that TT was at the shops. TT’s evidence further differed from MN in that she observed MN to be in a different position on the bed than that described by MN. I do not place a lot of weight on that difference. TT saw the interaction between MN and the accused as another example of the accused play fighting or wrestling with MN and PN. I have taken into account TT’s evidence that she observed MN and the accused in the bedroom together, a fact denied by the accused. However, if TT’s evidence is accepted then the act could not have occurred as described by MN. Further, the alleged act by the accused is less likely to have occurred in the circumstances described by TT when she was going in and out of the bedroom. Committing the acts in those circumstances would have been very opportunistic and the accused would have been liable to be caught. I accept the submission of the accused that it would be highly improbable that the accused would commit such blatant acts when TT was at home and coming in and out of the bedroom.
Secondly, MN, when initially advised of PN’s allegations, said that PN was lying. That is not a response that is consistent with a response from someone who had also suffered abuse from the same perpetrator.
Thirdly, MN denied on a number of occasions that the accused had committed any acts against her. I accept that the MN did not feel safe when she was at home with the accused. However, that does not explain the later denials when she was in the car to the Riverland and when at the Riverland.
Fourthly, MN only made the complaint after she had communicated with her cousin HA, and her friend A and received an assurance from them that they also felt uncomfortable around the accused. This suggests that MN required some confirmation that the acts of the accused went beyond wrestling or play fighting.
I have considered all of the evidence relating to this allegation including the evidence on peripheral matters.
In all of the circumstances, I cannot exclude as a reasonable possibility the denials of the accused. I therefore am unable to find that MN was digitally penetrated by the accused on the occasion when the Bryce Hall jumper was purchased in about December 2020.
MN also gave evidence in her prescribed interview that she was digitally penetrated by the accused on 3 February 2021. The date was able to be identified because it is an agreed fact that MN stayed home from school and the accused was not fit to return to work until 4 February 2021. It was also an agreed fact that TT worked at Woolworths from 9 am to 2 pm on that day. MN said in her prescribed interview that she stayed home from school because she was being threatened at school. She said that she was in the lounge room watching a movie. She said that she and the accused were wrestling. She said that she was on the floor and he was on top of her. She said that while they were wrestling he put his fingers down her pants and inside of her. She said that after the incident she got changed out of her school uniform and sat in the lounge room with her brothers and the accused until TT and PN came home. She said that her brothers were put in their room before the incident occurred. She said that the incident occurred at about 8 am. She said that she was too scared to tell anyone.
In her evidence at the pre-trial special hearing, MN said that TT was at work and she was out at home with her brothers and the accused. She agreed that she said that girls at the school said that they were going to bash her and her friend and that is why she wanted to stay at home. She said that the accused put his fingers inside her vagina. She said that she felt safe at home, just not with the accused. She said the boys were at home as well. She said that she was in her school clothes and changed out of them after the incident. She said in cross examination when asked whether she, the accused and the boys were the only ones home at 8 am in the morning that it was not 8 on the dot, but 8.50, closer to 9, because everyone had left.
There was a text message from the accused to TT at 8.34 am which stated that MN was “scared to go to school she worried about 4 girls wanting to bash her today she wants to know can she stay home.”
The accused gave evidence that on 3 February 2021 he was off work because he had torn a muscle in his shoulder. He said that MN was not at school because some people wanted to bash her up. He said that TT was at work. He said that he, MN and the boys were in the loungeroom watching Zombieland, a movie. He said that they watched full zombies all day. After TT came home, he said that he went to the doctor to get a certificate. He denied that there was any occasion when he inserted a finger into her vagina.
The accused was defensive when being cross-examined about the events on 3 February 2021. When asked whether he was at home with MN on 3 February 2021, he said “possibly”. When asked if TT was at work, he said “could have been.” When asked if it was just MN, the boys and him who were home that time, he said “and possibly KT came over”. He went on to say that he possibly came over. He had not referred to that in his evidence in chief. He said he had a vague memory of that. He said it possibly could have happened. When asked what time TT left for work, he said she would have left about 9, she was always rolling up to work late. He agreed, after being shown the text message, that she had left earlier. Again, this is not a matter of great weight.
I cannot exclude as a reasonable possibility the denials given by the accused. There are four matters that cause to me to have a reasonable doubt about the allegation. These include a number of the matters which I have previously considered.
First, the evidence of MN was that she was willing to stay at home with the accused and the boys on 3 February 2021. A text message had been sent to TT by the accused asking if MN could stay home. It would be expected that MN would be fearful of staying home with the accused if she had previously been sexually abused by him. I accept the submission of the defence that this evidence suggests that MN was comfortable being alone with the accused.
Secondly, the evidence of MN was that the boys were put in their room before the accused had committed the acts. It is unlikely that three year old boys would remain in their rooms.
Thirdly, I have already referred to the evidence about MN’s denials that the accused had abused her.
Fourthly, I have also referred to MN requiring confirmation from her friend and cousin before making the complaint.
For all of these reasons, I cannot exclude as a reasonable possibility that the accused did not digitally penetrate MN on 3 February 2023. I therefore am unable to find that MN was digitally penetrated by the accused on 3 February 2021.
The prosecution alleged that the accused maintained an unlawful sexual relationship with MN by touching her on the vagina on more than one occasion. The prosecution made it clear that the acts that they were relying on to establish this act was the same act as inserting his fingers into her vagina. There was no further evidence on this topic by either the prosecution or the defence.
As they were the same act, it follows that because I have not found proven beyond reasonable doubt that the accused inserted his fingers into her vagina on the two occasions, I also find it not proven that the accused touched her vagina on the two occasions.
The Information further alleged that the accused touched the breasts of MN on more than one occasion and caused her to expose her breasts on more than one occasion. In her prescribed interview, MN said that some other times the accused would ask her to “flash him”. She said that he would try to take photographs of that. She said that she would say no and “and then he’d lift my top up and then he’d touch them, squeeze them and like yeah I’d push him away and try to run-yeah hide in my room”. She said that his conduct had been going on for some time and started at the beginning of this year (2021) and stopped about a week before the complaint was made. She said that she did not remember the detail of what had happened on that occasion.
In her evidence at the pre-trial special hearing, she said that the accused would try to take photographs of her when he asked her to flash. She said that there was an occasion at the beginning of 2021, when she was playing games on the television, that he touched and squeezed her breasts. She said that no-one else was in the lounge room on that occasion. She said that the squeezing of the breast on this occasion was on top of the clothing. She said that it would occur sometimes in the lounge room, sometimes in her room and sometimes in her brothers’ room. She said that she would be wearing a T shirt or a towel. She said that sometimes he would stare at her breasts and not touch them but on other occasions he would touch her breasts outside and on other occasions underneath her clothing.
The accused gave evidence in which he denied ever touching MN on the breasts or asking her to expose her breasts. The accused also denied that he told TT that on one occasion he asked MN, as a joke, to flash her breasts when she was playing video games. The accused also sought to distance himself in cross-examination from having anything to do with MN. He said he did not know where she got dressed.
I do not accept the accused on these latter matters. TT gave evidence that at one time, the accused told her that MN “was playing a game on Sony or something and he said as a joke “flash” and she did apparently.” The accused denied having that conversation. I have accepted TT’s evidence on this issue. I reject the accused’s denial on this issue and find it to be another example of the accused seeking to distance himself from events surrounding the offending.
The prosecution submitted that these examples should be viewed as further examples of interactions between the accused and MN that showed that the accused had engaged in a course of sexual abuse against both complainants. I do not consider that an inference can be made that delayed reporting of these matters to TT told against there being an innocent explanation. There is not sufficient evidence for me to draw that inference.
I also do not accept the accused’s evidence that he did not know where MN got dressed and did not go into her room. The accused lived in the Parafield Gardens house with MN for four years and it is not plausible that he would not know of these matters. These are matters that go to the credibility of his evidence, although again they do not directly relate to the central allegations.
The evidence relating to the touching of MN’s breasts and causing her to expose her breasts was limited. For the same reasons that I have previously identified, I cannot exclude as a reasonable possibility the denials of the accused. I am therefore not satisfied beyond reasonable doubt, based on all of the evidence, that the accused touched MN’s breasts on more than one occasion and caused her to expose her breasts on more than one occasion.
It follows from my reasons that I do not consider that the prosecution has provided beyond reasonable doubt that the accused maintained a relationship with MN and that the accused had engaged in two or more unlawful sexual acts with MN during the course of that relationship. The accused’s evidence was not undermined by significant inconsistencies or implausibility. Where his evidence was inconsistent or contrary to evidence that I have accepted, it was in relation to peripheral matters that did not cause me to reject all of his evidence or find that his evidence on the issues central to the case was not credible and reliable. I cannot exclude as a reasonable possibility his denials.
Charge of maintaining an unlawful sexual relationship with PN
PN was 9 and 10 years of age at the time of the alleged offending occurred. The accused was 30-31 years of age.
PN said, when cross examined at the pre-trial special hearing, that she did not get on with the accused from the time that he started a relationship with TT. She said that she liked him even less after she saw him fight with her father. She agreed that she had lots of arguments with the accused and would rather be living with her father.
PN gave evidence of the accused causing her to perform fellatio upon him on many occasions. In considering that allegation, I have taken into account the whole of the evidence relevant to the allegation. The prosecution accepted that PN was confused about dates but submitted that did not detract from her overall credibility. I consider the inconsistences between PN’s evidence and the other evidence goes beyond mere confusion about dates.
The prosecution also relied on a number of uncharged acts. The first of these was that on one occasion, the accused attempted to remove her pants. The prosecution also relied on the time that she could see through the blindfold that the accused was rubbing his penis. Thirdly, the prosecution relied on one occasion when he told her to lay on the bed and took a photograph of her with her legs apart.
In her prescribed interview, PN gave evidence that her stepdad (the accused) raped her. She went to say that she would be on the lounge room with her twin brothers and he would say to her to come into the room. She then gave evidence:
And then he put his tee shirt on my face really tight so my face was like squashed together and I’d say “no it hurts, it hurts”.
And then he would put his willy in my mouth.
And then I’d say “stop, stop” and he would touch me.
She said that the accused told her not to say anything and that if she did, he would “smash your Dad’s head in” and she was scared that he might do that. She said that he would take photographs on the phone that he was using now and then and transfer those photographs onto his old phone. She said that he took that phone with him when he left the Parafield Gardens house.
She said that the acts took place in the Parafield Gardens home and in his or her Mum’s room. She said that acts took place when her Mum was at work and when her sister MN would be sleeping and the accused would give his phone to her brothers. When asked when did the acts occur, she said “normally at night when my Mum goes shopping or when she’s at work”. She said in the prescribed interview that the offending occurred “probably like fifty times or something”. She said that “he will do it all week, every day of the week”.
In cross examination, she agreed that the accused would go to work before TT. She then said that it was only on weekends mornings that he took her to the closet. She said that they would sometimes occur in the weekdays evenings when TT was at the shops, but sometimes when TT was at home. She said that the accused did not go with her to the shops.
She said in her prescribed interview and in her evidence given at the pre-trial special hearing that the accused committed the offending in the walk in closet which was between the bedroom and the bathroom. She said that he would lock all the doors so no one could get in. She said that there was no door to the walk in closet. She said in the pre-trial recorded evidence that both doors to the closet were closed when the offending took place. She said that the door between the closet and the bathroom was locked. She said in cross examination at the pre-trial special hearing that there was no lock on the bedroom door and the walk in wardrobe and the door between the walk in wardrobe and the bathroom could only be locked from the inside (ie the bathroom side).
She said in her prescribed interview that she would yell for her sister or stepsister or the boys but it wouldn’t work because the accused would cover her mouth and tell her to be quiet and hit her across the head. She said that the accused would put a timer on his phone for 10-15 minutes. She had the blindfold on for that time.
In relation to the timer, PN gave evidence in her prescribed interview and pre-trial special hearing, that the accused would put a timer on his phone for 10-15 minutes. She said that if the boys had her phone, she would place a timer on her tablet. She said the timer was set for five or ten minutes. She said that on one occasion, she put the timer on for three minutes. She said that the accused got angry with her and hit her across the head and said that he would kill her mum if she did that again. She said that she felt scared. She gave evidence of the time that she had seen the accused pick up her father and throw him to the ground.
She said at the pre-trial special hearing that the offending took place during the day and at night. She said that you could not see through the bedroom windows because the accused shut the shutters.
She said that the accused would play games with her on the laptop. He said to her that if she didn’t die, he would pay her $5 and if she did, the accused would say to her that she had to go to the bedroom. She again gave evidence that he would grab one of his tops and put it around her head. He would put his willy in her mouth and ask her to make moaning sounds.
PN said in her pre-trial evidence that she could not see through the T-shirt except for one occasion. On that occasion, she said that she “could see him with his willy in my mouth and him holding his phone, going on the side with his hand going back and forward with the video”. She said that she remembered the phone was white.
She said in her pre-trial special hearing that the accused’s willy felt like a “wet slug” in her mouth.
She said in her pre-trial evidence that when he had finished, she would spit the “yucky white stuff” into the bathroom sink. She said that she would taste the yucky white stuff about two minutes before the timer went off.
The prosecution submitted that these acts were not the invention of an eleven year old girl. In cross examination, she agreed that she did not tell the police about this on the first occasion that she spoke to them but did tell the police after the recording. She said that the police officer wrote it down after the recording was made.
PN gave evidence that on the occasion that she could see through the T shirt, she saw the accused recording her on the phone. She said that on this occasion she could also see the accused rubbing his willy up and down. She said on other occasions, she could hear the recording starting and notifications going off. She said that she could see him holding his two phones together, one was a white phone and the other a black phone, his everyday phone. She said that he was looking at the black phone (everyday phone) and sending something though and then he would look at the white phone to see if it went through.
PN in cross examination gave evidence that on other occasions she could recognise voices and noises such as notifications as coming from his telephone. On these occasions, she did not see the mobile phone.
PN also gave evidence about another occasion when the accused took a photograph of her, using his everyday phone, while she was on his bed, with her legs apart and wearing a nightie and underwear. The photography stopped when TT came back inside.
She denied in cross examination that the outside roller shutters were broken. She said that the curtains inside could close fully.
PN then gave evidence that TT went through the white phone and saw the photographs and woke her up early in the morning at 6 (am) or 5 (am) and showed them to her. PN said that TT said the accused would never do that and PN said that he did. In cross-examination, she said that TT showed her the photographs on the white phone. She said at the dinner table, TT said that she had deleted those photographs. She said MN and JM were not at home that night.
PN gave evidence in her prescribed interview that she told TT in the first week that he did it to her and that she didn’t believe her and then she kept telling her and then she told her the whole story when everyone found out. She elaborated on this in her second prescribed interview and said that she waited a week to see if the accused would do it again and when he did she told TT who didn’t believe her. In the second prescribed interview, she said that she kept telling TT about the offending. She said that she would usually tell her mother after school on Monday because the accused would work extra time on Mondays and TT would have work off. She said in re-examination that whenever she had a fight with TT, she would say that she wanted to live with her father and sometimes she would say that was because the accused was touching her.
She said in her prescribed interview and in cross examination that her mother did not believe her but started to believe her in December 2020. She said that TT then started to believe her because she kept telling her a lot more.
She said that she told her friend DW “cos she’s been raped before”. PN said that DW asked her whether she wanted to tell anyone else and she told DW’s mum and stepmother and then her father got told.
She said that the accused was in the habit of taking photographs of her when she was walking around the place. She said that on one occasion, the accused tried to pull her pants off, but her mother came home and he didn’t manage to.
PN said in her second prescribed interview that there was one time when the accused called her a “cunt”. She said that she yelled at him saying “how about I tell everybody what you’re doing to me”. She said he replied “go do it you selfish cunt”. She said her mother came back into the room and the accused changed the subject.
PN gave evidence that on one occasion, the accused caused her to perform fellatio on her in her bedroom. She said that on this occasion, her mother, sister and the boys were in the lounge room. She said that she was in the bedroom because she did not want to watch a scary movie but in cross-examination said she was in the bedroom because she was unwell. I do not place a great deal of weight on this difference given it is a matter of detail, where a witness would not be expected to remember all of the details about an event.
She said the accused grabbed some clothes out of the closet and shoved them under the door and then grabbed some leggings and wrapped them around her head. In cross examination, she said that she wasn’t in her bedroom because she was sick (as she told the police) but because the movie that was being watched in the lounge room was scary. Also in cross examination, she said that she definitely remembered telling the police officer that the accused used leggings as a blindfold. She said that she thought the police officer did not write that down.
As to the touching of her breasts, PN said that it would take place in the wardrobe (that is the walk in robe) at the same time when the accused committed fellatio on her. She said that he would use his hands to touch her breasts.
PN gave evidence that MN had never spoken to her about what the accused had done to her. She said that after she had told KT about what the accused had done to her, TT said to her that the accused had asked MN to show him her breasts.
TT did not give any evidence of direct observations of the alleged offending against PN. She gave evidence of some of the matters raised by PN and the context in which the allegations were made.
TT agreed that PN and the accused never got along well and “never really meshed well”.
She said that there was an occasion just before PN went to stay with her father in April 2021, when PN and the accused had an argument. She said that the accused called PN a “cunt”. During the course of the argument, she said that PN said that she would tell everyone what he had done to her. TT said that she asked PN what she meant and she said “I wouldn’t believe her anyway”.
TT gave evidence that after April 2021, she had a conversation with the accused. She said that the accused told her that he had a conversation with PN about fixing a bike of PN during which PN offered to do sexual favours for him if he fixed the bike and that the accused said to TT that PN was a dirty little girl. The accused denied having that conversation.
TT said that PN had not made a complaint to her about the accused in about February 2020. She said that she had not gone through the phone of the accused at that time and had not deleted photographs of PN on that phone or said that she did. She said that it was not until the phone call from SN in April 2021 that she became aware of any allegations about the accused’s offending.
Brevet Sergeant Riley gave evidence PN had not told her about the yucky white stuff in the prescribed interview after the camera had been turned off. Brevet Sergeant Riley further said that the first time that PN told her that an act of fellatio had occurred in the bedroom was in April 2022. She also that if she had been advised by PN that she had leggings wrapped around her head on this occasion, she would have recorded that fact.
The accused gave evidence about his relationship with PN. He said that it was terrible from the start. He said that he and PN didn’t get along with each other. He said that PN took badly the birth of the twins and felt excluded. The accused denied every calling PN “a cunt”. The accused also denied having a conversation with TT about what PN said to him when he was fixing her bike.
The accused denied the alleged offending or causing PN to commit acts of fellatio upon him.
I make the following findings about these offences.
PN was young when she gave the prescribed interview. She was 10, almost 11 years of age then and 11 years of age, almost 12 when she gave her pre-recorded evidence to this Court. She was vague about certain details of the offending and the context in which it occurred.
There were some significant inconsistencies between her evidence and the evidence of other witnesses. There were also matters which I find inherently unlikely to have occurred.
I am unable, for the reasons that follow, to exclude as a reasonable possibility the denials of the accused.
First, her evidence about complaining to TT when the alleged offending had just commenced was disputed by TT. I accept TT’s evidence on this topic. I have found TT to be a credible witness. I find it inconceivable that TT would not have acted upon such complaint (had it been made), particularly when the complaints continued to be made. It is also inherently unlikely that TT, in December 2020, would have started to believe PN’s allegations (as claimed by PN) but continued to do nothing about it. This can be contrasted with the way in which TT acted when the allegations were made in April 2021. In the record conversation between KT and PN in April 2021, PN says that she was too scared to tell TT and it was not until December 2020 when TT found photos on the white phone that TT had a conversation with her. That is another version of the complaint.
The prosecution submitted that I should find that PN had made some general complaint about the accused and the wrestling which stopped short of disclosing sexual abuse. I do not accept that explanation. PN’s account of her complaint to TT was very specific and referred to waking her up one morning at 6 am and showing her photographs and then TT telling her that she had destroyed the photographs. These matters cannot be explained by a mistaken recollection about the general nature of the complaint.
Secondly, I do not accept PN’s evidence that TT found photographs on the accused’s phone and told PN that she had destroyed them.
Thirdly, PN’s evidence that she did not search for pornography on her phone was contrary to the evidence of a number of other witnesses, including TT, SN, and HEB. I find that PN did search for pornography on her phone and that her denials that she did so are matters that go her credibility. Also, PN, through viewing pornography, was likely to have greater knowledge about sexual acts than most girls of her age. She had been exposed to acts which may have affected her memory and influenced the evidence that she gave in the prescribed interview and in her pre-recorded evidence.
Fourthly, PN’s evidence about telling Brevet Sergeant Riley about the “yucky white stuff” in the prescribed interview (after the camera was turned off) is inconsistent with the evidence of Brevet Sergeant Riley. I accept the evidence of Brevet Sergeant Riley. It is inconceivable that such an experienced police officer including in child sexual offences, would not record such information.
The prosecution submitted that this was another example of PN being confused about when she spoke to the police officer. The prosecution further submitted that PN could not have got the “yucky white stuff” from any viewing of pornography. The defence submitted that I should view the evidence of PN as an outright lie. Again, I consider that the evidence of PN was too specific to be explained as confusion. She has made up an explanation as to when she told Brevet Sergeant Riley of the “yucky white stuff”.
Fifthly, for the same reasons, I accept the evidence of Brevet Sergeant Riley that she was not told about the leggings. I do not accept PN’s evidence that she told Brevet Sergeant Riley in April 2022 about the use of the leggings on the occasion that she was caused to perform fellatio on the accused in the bedroom. For the same reasons, I do not accept the prosecution submission that PN was confused.
Sixthly, I consider PN’s evidence about the timer to be vague and inherently unlikely. I do not accept that evidence.
Seventhly, although a matter of less weight, PN qualified the evidence that she had given in her prescribed interview that the acts occurred all week, at least in part while TT was at work, when it was put to her the accused left for work earlier than the accused.
Eighthly, I have doubts about her evidence relating to observing the accused recording her on one phone and then sending the recording to another phone. It is inherently unlikely that PN could have made those observations.
Ninthly, TT’s evidence about the photograph of her sunburn being taken in bedroom and the accused asking her to lift her top so that he could take a photograph for his friends is inconsistent with the evidence of TT.
I accept TT’s evidence about the conversation that she had with the accused about his conversation with PN when fixing her bike. I also accept her evidence about the accused calling PN a “cunt”. I do not accept the denials of the accused of those conversations. As I have previously found, I have accepted TT as an honest and credible witness. She did not seek to disparage the accused and in some instances gave evidence favourable to the accused. The accused, as I have found, and as acknowledged by counsel for the accused, gave evidence on occasions that sought to distance himself from the alleged offending. An example of this was his evidence that over four years, he was not at home by himself with the complainants. I put the comment about calling PN “a cunt” into the same category. Although I find the evidence given by the accused about this conversation to be false, I consider it to be an example of the accused trying to distance himself from PN’s allegations, rather than being directly relevant to the alleged offending. It is relevant to the credit of the accused. The conversation that occurred when fixing the bike of PN falls into the same category. It goes to the credibility of the evidence given by the accused. The accused was seeking to proffer another explanation for PN’s complaint.
In her prescribed interview, PN said that the accused touched her breasts when the acts of fellatio were being performed. In her pre-recorded evidence, PN did not give any evidence about these acts. In these circumstances, I am not prepared to find that this act has been proven beyond reasonable doubt.
I have taken into account the inconsistencies in the evidence given by PN. I have also taken into account the unreliability of certain aspects of the evidence of the accused.
In all of these circumstances, the evidence of PN and the surrounding circumstances, including the evidence of TT, is not sufficient for me to conclude that the accused was guilty of the acts of causing PN to commit fellatio upon him or the other acts particularised.
As was the case with MN, the accused’s evidence and denials in relation to the alleged offending against PN, were not undermined by significant inconsistencies or implausibility. Where his evidence was inconsistent or contrary to evidence that I have accepted, it was in relation to peripheral matters that did not cause me to reject all of his evidence or find that his evidence on the issues central to the case was not credible and reliable such that I could exclude his denials as a reasonable possibility.
I am not satisfied beyond reasonable doubt that the accused maintained an unlawful sexual relationship with PN and that the accused engaged in two or more unlawful sexual acts with PN during the course of that relationship. I am unable to excuse as a reasonable possibility, the denials of the accused.
Conclusion
I find the accused not guilty of both counts.
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