R v DPR
[2023] SADC 121
•6 September 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DPR
Criminal Trial by Judge Alone
[2023] SADC 121
Reasons for the Verdict of her Honour Judge Schammer
6 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is the maternal grandfather of the complainant. The accused is charged with one count of maintaining an unlawful sexual relationship with the complainant contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act) and one count of unlawful sexual intercourse with the complainant, being a person under 14 years of age, contrary to s 49(1) of the Act.
The offences are alleged to have occurred between 28 October 2006 and 28 October 2011 when the complainant was aged between 4 and 9 and in the care of the accused and his wife at their house in Nairne.
The accused gave evidence on oath denying the offences.
The trial was by judge alone.
Verdict: Not guilty on both counts.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 5, 48A, 49(1), 49(2), 50(1), 50(12), 50(4)(b), 56; Evidence Act 1929 (SA) s 34P(2)(a), referred to.
R v Mann [2020] SASCFC 69; JJP v R [2021] SASCA 53; Murray v R (2002) 211 CLR 193; R v Corrigan (1998) 74 SASR 545, considered.
R v DPR
[2023] SADC 121[Criminal]
Introduction
The accused, DPR, is charged on Information dated 15 June 2022 with one count of maintaining an unlawful sexual relationship with a child, MM and one count of unlawful sexual intercourse with MM, being a child under the age of 14.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
The Charges
Count One
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DPR between the 28th day of October 2006 and the 28th day of October 2011 at Nairne, maintained an unlawful sexual relationship with MM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)washing her genitals on more than one occasion;
(b)causing her to wash his penis on more than one occasion;
(c)touching her vagina on more than one occasion;
(d)touching her anus on more than one occasion;
(e)causing her to touch his penis on more than one occasion;
(f)rubbing his penis on her vagina area on more than one occasion; and
(g)kissing her on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Count Two
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DPR between the 28th day of October 2006 and the 28th day of October 2011 at Nairne had sexual intercourse with MM, a person under the age of 14 years, by inserting a finger in her vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Charged Offences
Count One
The accused can only be found guilty of this offence, if the prosecution proves the four elements of the offence beyond reasonable doubt, namely:
1.That the accused knowingly maintained a relationship with MM.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with MM.
3.That at the time the accused engaged in two or more unlawful sexual acts with MM, MM was a child.
4.That at the time the accused engaged in two or more unlawful sexual acts with MM, the accused was an adult.
MM was born on 28 October 2002.[1] The alleged offending is said to have occurred between 28 October 2006 and 28 October 2011, that is, between the dates of her 4th and 9th birthdays.
[1] T 14.3-4.
The accused’s date of birth is 22 September 1948.[2]
[2] T 121.8-9.
I am satisfied that MM was a child and that DPR was an adult, aged between 58 and 63, during the period of the alleged offending.
Whether there is a ‘relationship’ for the purposes of s 50(1) of the Criminal Law Consolidation Act 1935 (the Act) is a question of fact, to be decided having regard to the duration, frequency, nature and continuity of the interactions between the alleged victim and the accused.[3]
[3] R v Mann [2020] SASCFC 69 [27]-[28].
The accused is MM’s maternal grandfather. There is no dispute that during much of the period of the alleged offending, MM and the accused saw each other regularly, as the accused and his wife lived at Nairne (the Nairne house), only a short distance from MM’s family home at Brukunga. MM’s mother, KM, worked shift work as a croupier at the Adelaide Casino and MM’s father, JM, worked full time as a pest controller. As such, MM’s parents relied upon the accused and his wife, JR, to assist them from time to time with child minding duties.
Although there was some contention as to whether the accused ever played a role in collecting MM from school, there was no dispute that he and his wife JR would babysit MM during school holidays and that she stayed overnight with them on about a monthly basis. There was also no dispute that on occasions when MM worked day shift (12pm until 8pm), the accused would collect MM from kindergarten and that he and JR would look after her in his home until she was collected later that evening.
MM gave evidence that when she was a young child, she and the accused would regularly spend time together at the Nairne house, watching television, or playing in the backyard, where there was a chicken coop. The accused gave evidence that he ‘absolutely’ enjoyed spending time with MM and described their relationship as ‘good’, adding that she was ‘a very loving kid’.[4]
[4] T 127.33-36.
However, both KM and JM gave evidence that about 12 months after the accused and his wife began fostering children in their home, there was a falling out between KM, JM and the accused, such that there was very little contact thereafter between the accused and MM. JM gave evidence that such contact ceased in about 2010.[5] JR gave evidence this was ‘after we stopped having the foster children which was November 2009’.[6]
[5] T 102.5-11.
[6] T 112.3-4.
There is therefore no dispute, and I am satisfied beyond reasonable doubt, that during the period from 28 October 2006 until approximately November 2009, but not thereafter, the accused knowingly maintained a relationship with MM for the purposes of s 50(1) of the Act. This period covers some, but not all, of the period particularised in the Information as the period during which the alleged offending occurred.
The real issue in dispute is whether any of the alleged unlawful sexual acts occurred during that period.
An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[7]
[7] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[8]
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences, or
(c)a substantially similar offence against a previous enactment.
[8] Ibid.
Pursuant to s 50(4)(b) of the Act, it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts. The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts unlawful sexual acts.[9]
[9] JJP v R [2021] SASCA 53 per Doyle J at [118]-[119], [154].
The prosecution allege that the accused engaged in multiple acts on MM, each of which constitutes the offence of aggravated indecent assault contrary to s 56 of the Act.[10]
[10] Noting that the nature of the acts particularised at paragraphs (b) and (e) on the Information are such that in the alternative, the prosecution could have, but did not seek to, rely on the alternative offence of compelled sexual manipulation pursuant to s 48A of the Act.
The elements of the offence of aggravated indecent assault are:
1.That the accused applied force (directly or indirectly) to MM.
2.The force was applied intentionally.
3.The force was accompanied by circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
4.That MM was under the age of 14 years at the time of the act, rendering consent irrelevant.
Count Two
To establish that the accused committed the offence of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the Act, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused had sexual intercourse with MM. Sexual intercourse is defined in s 5 of the Act to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person.
2.That MM was under the age of 14 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
I am satisfied that MM was a child aged under 14 years during the period of the alleged offending.
The issue in dispute is whether the alleged act of sexual intercourse occurred.
Witnesses and Exhibits
The prosecution called evidence from the following witnesses:
1.The complainant, MM.
2.The complainant’s boyfriend, M W-G (referred to hereinafter as MW).
3.The complainant’s mother, KM.
4.The complainant’s father, JM.
5.The accused’s wife, JR.
Several exhibits were tendered, namely, a hand drawn plan of the Nairne house prepared by MM on 17 March 2021,[11] a formal plan of the Nairne house[12] and a bundle of photographs depicting the Nairne house.[13]
[11] Exhibit P1.
[12] Exhibit P2. It was an agreed fact that this plan was obtained from the website realestate.com.au by Detective Brevet Sergeant Timothy Kirtland on about 23 August 2020.
[13] Exhibit P3. It was agreed that these photographs were obtained from the website realestate.com.au by Detective Brevet Sergeant Timothy Kirtland on 16 March 2021, that the photographs were recorded on that website as ‘listed March 2010’ and that the photographs depicted the Nairne house as at March 2010, when it was still owned by the accused.
The accused elected to give evidence but presented no other evidence.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offences as charged.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me, as to each count, considered separately, that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of either offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. As to either count, if I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the count has not been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
MM gave her evidence via CCTV from outside of the court room. Her evidence was recorded and the court was closed during her evidence. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that if I was to reject the evidence presented by the defence in its entirety, that does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offences as charged beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
Complaint
MM gave evidence that the first person she told about the alleged offending was her boyfriend, MW. MW also gave evidence about the circumstances in which MM told him about the alleged offending.
This evidence, being evidence of the initial complaint made by MM, is an exception to the rule which prohibits proof of prior, out of court, consistent statements.
Complaint evidence is admitted to inform the trier of fact as to how the allegations first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to an assessment of the reliability and credibility of the complainant.
Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as only MM’s evidence is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case.
Forensic Disadvantage
There is no dispute that the accused was arrested for the alleged offending on 28 November 2020, more than ten years after the alleged offending.
There was a significant period of delay between the alleged offending and the accused’s arrest and the trial.
Had a timely complaint been made, the accused may have been in a position to provide a relatively contemporaneous recollection of the nature of his interactions with MM at the time of the alleged incidents. Further, insofar as MM alleged the accused had penetrated her vaginally, this allegation, if made contemporaneously, may have resulted in medical examination of MM at a time when such examination may have assisted to determine the veracity of the allegation.
MM gave evidence that the alleged offending occurred when she was attending Nairne Primary School but could not give any specific evidence as to precisely how old she was when any of the alleged unlawful sexual acts occurred, or what year she was in at school. She remembered it being daylight during some of the alleged offending, but otherwise gave no evidence to provide guidance as to precisely when the offending occurred during the relevant period.
I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of the alleged offending, to defend the allegations other than by way of a bare denial and to fully test MM’s reliability and credibility by reference to the surrounding circumstances of the alleged acts.
Further, MM gave evidence that during the alleged offending, she assumed the accused’s wife, JR was at home, and in particular she described an occasion when she was lying on the accused’s bed in his bedroom and the accused was laying on top of her, when she saw JR walk past the open bedroom door. JR gave evidence that she suffered from a degenerative disease, retinitis pigmentosa, which significantly affected her sight. The condition has worsened in the years since the alleged offending. JR was asked to give evidence as to her recollection of the state of her eyesight during the period 2006 to 2011 and described having night blindness and tunnel vision at that time, with some deterioration of her central vision. However, both she and the accused described her as living an otherwise full life, undertaking a number of voluntary activities, being able to walk unaided and doing household chores such as cooking, washing, gardening and shopping without real difficulty.
This evidence was important both as to the opportunity for the alleged offending to have occurred in the circumstances as described by MM and MM’s reliability with respect to her specific recollection of the occasion, she said JR walked past the bedroom door during an alleged unlawful sexual act.
The fact that JR’s condition is degenerative means her recollection now of the state of her eyesight during the relevant period may not be accurate, despite her doing her very best to remember the state of her condition at that time. There was no medical evidence before the Court, to assist the court to assess the reliability of that evidence.
I have taken these forensic disadvantages into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offences as charged beyond reasonable doubt.
Uncharged Acts/Discreditable Conduct
MM gave evidence that, on at least one occasion, she recalled being in the shower with the accused when he kissed her forcefully, rubbed her vagina and made her ‘itch’ his penis. This evidence is relied upon to establish that the accused committed at least one unlawful sexual act with MM during the relevant period.
However, MM also gave evidence that when she was in the shower with the accused, and after he rubbed her vagina, he also used his hands to rub over her breasts and to grab her nipples. Those particular details, that is, the rubbing of the breasts and grabbing of the nipples, were not included in the particulars of any of the unlawful sexual acts identified as per Count 1 on the Information.
During examination in-chief, MM gave evidence that she could not remember exactly how many times she showered with the accused and he touched her inappropriately but that she thought it was more than once.[14] In cross-examination, she gave evidence that she could now only recall one such occasion.[15] It must therefore follow that MM’s recollection of the occasion when she was in the shower with the accused and he touched her breasts and nipples must have been on the same occasion and therefore that the ‘uncharged’ conduct must have occurred during the same occasion as that of an alleged unlawful sexual act, being one occasion of aggravated indecent assault.
[14] T 35.2-8.
[15] T 65.8-12.
The evidence of the accused touching MM’s breasts and nipples was described by the prosecutor as evidence of ‘uncharged acts’, that is, discreditable conduct evidence, relied upon for a non-propensity purpose pursuant to s 34P(2)(a) of the Evidence Act1929, to put the charged offending in context.
This evidence was led without objection.
Insofar as this evidence is, in fact, evidence of discreditable conduct within the meaning of s 34P, the evidence was relevant and admissible for the purpose as stated by the prosecutor. If I am satisfied that the alleged uncharged acts occurred, I must not reason that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged. If the evidence of the uncharged acts is essential to my process of reasoning leading to a finding of guilt, then I must be satisfied beyond reasonable doubt that the uncharged acts occurred.
Complainant’s Evidence
General
MM gave evidence that she was born on 28 October 2002 and that she had a younger brother, LM, born on 22 May 2007. MM was aged 20 when giving her evidence.
She recalled attending childcare at Littlehampton, kindergarten at Nairne and primary school at Nairne Primary School. She described the Nairne kindergarten as ‘connected to the school, I think’.[16] She said she started school in reception but could not recall what year that was.[17]
[16] T 16.4-5.
[17] T 16.10-14.
MM explained that the accused was her maternal grandfather. He and his partner, JR lived at a house in North Street, Nairne, a short distance from her family home at Brukunga and she spent time with both the accused and JR at their home. She could not remember how old she was when she first started visiting the Nairne house but said it was when she was at primary school. She had no memory of spending time there before she started primary school.[18]
[18] T 22.17-19; T 22.26-32.
MM gave evidence that she remembered staying overnight at the Nairne house but she could not recall how often she stayed over.[19] She remembered going there quite often, including after school and said that the accused would sometimes pick her up from school.[20] She could not recall how long she stayed there after school but said that it was sometimes night time when she was picked up.[21] Her dad would usually pick her up, after he finished work.[22]
[19] T 22.2-7.
[20] T 22.1-11; T 22.20-25.
[21] T 23.32-37.
[22] T 23.38-24.2.
MM was not asked whether she had any recollection of her brother, LM, either being at the Nairne house with her at any time, whether that was after school or when she was staying there overnight.
MM had no recollection of JR ever picking her up from school.[23]
[23] T 23.15-20.
MM gave evidence that the accused worked as a bus driver and she had a particular memory of him taking her on the bus and through the bus loop while he was working, then going back to the bus depot and then home.[24]
[24] T 23.6-14.
MM said that when she stayed at the Nairne house, both the accused and JR would be there.[25] She said that JR was partially blind and she did not ever recall her driving.[26] MM recalled that notwithstanding her sight issues, JR would mostly do the cooking and often bathed her in the bathtub in the main bathroom. Either the accused or JR would then put her to bed.[27]
[25] T 23.4-5.
[26] T 23.21-27.
[27] T 24.28-25.12.
In cross-examination, MM said that sometimes the accused would read her a story in her bedroom before bedtime. She could not remember if her bedroom door would be left open, or the hallway light left on, overnight, but agreed that this was possible.[28]
[28] T 49.16-18; T 49.22-33.
MM remembered spending time with the accused in the backyard of the Nairne house, where they would look at the chickens in the chicken coop or she would be allowed to ride on the accused’s ride on lawnmower. She and the accused also watched movies together in the second living area of the Nairne house.[29] Although she had a relationship with JR, she did not remember them being particularly close and said she spent more time at the Nairne house with the accused than with JR.[30]
[29] T 25.24-33.
[30] T 25.37-26.8.
In cross-examination, MM said she could not ever remember being at the Nairne house with JR, without the accused also being there but she agreed that this was possible.[31]
[31] T 48.11-16.
The Nairne House
MM gave a detailed description of the Nairne house by reference to the plan she had drawn of that house.[32]
[32] Exhibit P1.
She described the house as being split level,[33] with stairs leading down from the front Lounge/Dining Room into a hallway, and another set of stairs leading down from the hallway into the Second Living area.[34] She recalled there being a bookshelf up against the wall of the Second Living Area in the position where she had marked the plan ‘movies’ and a television near the fireplace (also marked on the plan).
[33] T 16.21-23.
[34] T 17.20-26; T 17.38-18.5.
MM gave evidence that when she stayed overnight at the Nairne house and she slept in the room marked on the plan as ‘My bedroom’. She remembered that room had a bunk bed in it, that is, two single beds on top of each other, but could not recall if there was any other furniture in that room.[35]
[35] T 17.27-37.
She said the accused (and, she believed, his wife JR) slept together in the main bedroom at the rear of the house, opposite the Second Living Room. She remembered that room had quite a big bed, either a Queen Size or King Size[36] and she thought there may have been a TV and cupboard on the wall to the right of the door when you entered the room.[37]
[36] T 28.5-6.
[37] T 18.29-19.1.
MM remembered that the pillows in the room were ‘the curved ones’[38] and she had a distinct recollection of the room having ‘big curved windows’,[39] being something she had drawn on the plan. In cross-examination, MM agreed with a proposition that this was something that stuck out in her mind. When asked to describe those windows she gave the following evidence:[40]
[38] T 28.20-21.
[39] T 19.5.
[40] T 61.20-37.
Q.Can you describe them for her Honour.
A.I remember them being big, almost like floor to ceiling sort of windows.
Q.And when you say 'curved', what do you mean by curved.
A.Rounded almost.
Q.What part, the outline of the window, or -
A.Like the shape, I - sorry, I don't know how to explain what I'm saying.
HER HONOUR
Q.Are you saying that the actual windows were not straight across.
A.Yes.
Q.Were the windows themselves curved.
A.Yes, yes.
Q.So the wall wasn't - so if you looked at the windows, you weren't looking at something that was going straight across, you were looking at something that was curved.
A.Yes.
MM also described an ensuite bathroom that adjoined the main bedroom. By reference to her plan, she said that to the right there was a shower with what she believed was a glass[41] door, in the middle there was a vanity and to the left there was a toilet.[42] When she was asked in cross-examination if the shower in the ensuite could have had a curtain, rather than a door, she agreed this was possible.[43]
[41] T 32.12.
[42] T 19.14-25.
[43] T 60.29-33.
She said you could not really see into the ensuite bathroom from the main bedroom as there was a door of some sort, or something, blocking it.[44]
[44] T 31.2-9.
MM described another bathroom at the Nairne House, the ‘normal’ or ‘main’ bathroom, opposite the front Lounge/Dining area. This room had a bathtub, shower, toilet and vanity in it.[45]
[45] T 41.25-27; T 41.35-36.
The Alleged Offending
MM gave evidence that most of the offending occurred in the accused’s bedroom at the Nairne house, although she also recalled it occurring in both the ensuite bathroom and the main bathroom.
Main Bedroom
MM gave evidence that the first thing she could remember happening with the accused occurred when she was lying on her back on the accused’s bed and he was lying on top of her. She said the accused kissed her quite forcefully, using his tongue and at the same time was ‘grinding’ on her.[46] By ‘grinding’, MM explained that she meant that they were both clothed and that the accused was pushing his penis into her vagina.[47] She said her legs was spread, and the accused was ‘sort of inside my legs’, pushing or moving up and down on top of her, while they remained clothed.[48]
[46] T 27.6-9; T 29.6-21.
[47] T 29.22-25.
[48] T 29.32- 30.2.
MM did not remember what clothes she or the accused were wearing. [49] She could not recall how she came to be on the accused’s bed, for how long he had kissed her or was grinding on her, or how this incident came to an end.[50] As to whether the bedroom door was open or closed at that time, she said ‘It would quite often be open’.[51]
[49] T 29.26-31.
[50] T 28.7-9; T 29.14-17; T 30.15-18.
[51] T 28.24.
MM could not remember how old she was when this first incident occurred. As to whether she was attending school at the time, she said:[52]
I was – I don’t know if that was – I know I was in school at the time when it was happening, but I don’t in fact remember what – where I was a that time.
[52] T 28.38-29.2.
She clarified that she was at Nairne Primary School at the time of this offending.[53]
[53] T 29.3-4.
MM was asked if this interaction on the accused’s bed had happened any other time. She said:[54]
Yes, but it’s kind of just merged all into one I guess. So that’s my best sort of memory of that happening.
[54] T 30.21-22.
MM could not recall the last time that this type of thing had happened to her on the bed but said it happened ‘pretty much every time I went to his house’. As to whether this would occur during the day time or night time, she said that the windows would always be open in his bedroom and it would often still be daylight.[55]
[55] T 30.31-34.
MM was asked how this had made her feel. After taking some time to compose herself. She said:[56]
At the time I thought it was normal so I guess I liked it.
[56] T 30.8-9.
MM gave evidence that on some occasions, when she and the accused were lying on his bed, and he was kissing her and grinding on top of her, he would also ask her to itch his penis. They would both remain clothed, but the accused would pull his pants down to around his knees, or to the start of his thighs.[57]
[57] T 36.14-19; T 64.19-24.
She said that the accused’s penis would be hard and he would ask her to fix the itch by moving her hand up and down on his penis. As to how long this would go on for, she recalled a time when she told the accused that her arm was getting sore from moving up and down so they stopped.[58] She said this would have been after minutes, not seconds.[59]
[58] T 36.31-37.
[59] T 64.25-31.
MM gave evidence that she recalled this type of incident happening on more than one occasion but she could not remember how many times or how old she was at the time.[60] She explained that it was always quite similar in the way it occurred, except for one particular occasion when the accused ejaculated. She said it was a similar situation, he asked her to itch his penis and liquid came out from the top of his penis. Some of the liquid got on her pyjamas, so she changed into some spare clothes that she had in her bag and the accused ‘pretty much chucked my clothes straight into the washing machine’.[61]
[60] T 37.3-11.
[61] T 38.37.3-38.5; T 38.10-11.
MM described an occasion when she was lying on her stomach on the accused’s bed and the accused was lying on top of her and grinding on her. She said the accused ‘started running his fingers along my bum’[62] and she clarified that this was both inside and outside of her buttock cheeks and that he had touched her anus. She could not remember if she was wearing underwear at the time, but she recalled his touch was on her skin. She only recalled this type of thing happening on the one occasion.[63]
[62] T 40.28.
[63] T 40.29-41.19.
MM gave evidence that there was one specific occasion that she recalled when she was lying on the accused’s bed and he put his fingers in her knickers and started playing with her vagina. She said he then ‘tried’ to insert one of his fingers into her vagina, but that she reacted and stopped pretty much straightaway.[64]
[64] T 38.32-38.
MM said she remembered this incident as this had caused her pain, whereas the other times he had abused her it did not feel uncomfortable. She described the pain as being in her vagina and as feeling like a stretching sensation.[65]
[65] T 39.5-12; T 39.20-22. Noting this alleged sexual offence is not relied on for the purposes of count 1 but forms the basis of the allegations in count 2.
She only described one such occasion.
In cross-examination, MM said that the majority of the incidents of abuse that she remembered had occurred in the accused’s bedroom at the Nairne house.[66] She said that she had a specific memory of the time when she was on the accused’s bed and he had tried to put his finger in her vagina, as it had hurt.[67]
[66] T 49.37.
[67] T 50.9-26.
MM agreed that in a statement she made to police on 18 August 2020, she had said:[68]
On one occasion my grandad attempted to insert hi finger into my vagina. I remember I was laying on the bed in my bedroom at the Nairne address.
[68] T 51.22-24.
MM gave evidence that what was in the statement was incorrect and that this incident had happened on the accused’s bed, not on her bed, at the Nairne house.[69] She gave the following evidence:[70]
[69] T 51.20.
[70] T 51.26-52.4.
Q.That's what you put in your statement on 18 August 2020.
A.Yes.
Q.That's how you remembered it as at 18 August 2020, isn't it.
A.Yes, I would say so, but at the time I didn't remember a lot. I was just still at that time trying to put pieces together.
Q.That's a completely different location, isn't it.
A.Yes.
Q.So why the difference.
A.I don't know at that time when I wrote the statement.
Q.Your evidence is now that the incident where [the accused] attempted to penetrate the vagina, that was definitely in his bedroom on his bed, was it.
A.Yes.
Q.You're sure of that.
A.Yes.
MM also agreed with a proposition that in a police statement made on 18 August 2020 she had said, in reference to the grinding and massaging (or itching) of the accused’s penis:[71]
This would normally take place in my bedroom when I stayed with him.
[71] T 52.11-14.
MM gave evidence that this statement was incorrect and that she had since realised that the vast majority of the offending had occurred in the accused’s bedroom.[72] When asked why she had said something different in her police statement, she said:[73]
I don’t know, my memory. I was still trying to understand and think of everything that I can remember happening. I just got mixed up I suppose.
[72] T 52.14-16.
[73] T 52.28-30.
During her evidence-in-chief, MM said that when she stayed at the Nairne house, both the accused and JR would be there.[74] She was asked whether she was aware of where JR was, when the incidents of abuse were occurring. She described an occasion when she was lying on her back on the accused’s bed and the accused was lying on top of her and the bedroom door was open. She said that she saw JR walking past.[75] She remembered that the accused had ‘kind of laughed about it’ and said ‘Oh, I don’t want her to see this’.[76]
[74] T 23.4-5.
[75] T 43.37-44.7.
[76] T 44.12-13.
She said she was not sure if JR could actually see what they were doing, given that she was partially blind.[77] She had no recollection of JR ever interrupting the offending, or of coming into the room at any point.[78]
[77] T 44.5-7.
[78] T 44.22-25.
In cross-examination, MM was asked where JR was during those occasions that she was on the accused’s bed, he had his pants down and she was itching his penis. She said she was not sure where JR was, but agreed with a proposition that it was most likely that she was in the house at the time.[79]
[79] T 64.35-38.
MM was also asked in cross-examination if she could recall JR walking past on more than one occasion, when she and the accused were on his bed and he was on top of her, grinding her. She said that she could vividly remember one occasion and that JR had walked past the bedroom door, gone outside, then came back in, such that she had walked past the door twice. She said the accused had stayed on top of her when this had happened and had continued to grind on her. She said, ‘he didn’t seem to care that much’.[80]
Ensuite Bathroom
[80] T 70.35-71.29.
During evidence-in-chief, MM gave evidence of ‘a time’ that she remembered showering with the accused in the ensuite bathroom.[81] She could not remember how old she was at the time, or what year she was in at school, but she thought she was at school.[82]
[81] T 32.2-3.
[82] T 32.15-22.
She described the shower as having a glass door and said that it felt quite small.[83]
[83] T 32.10-14.
She did not remember the events leading up to this incident, but she remembered being in the ensuite bathroom with the accused and of the accused helping her take her clothes off. The accused also took his clothes off and they showered together.[84] She said:[85]
A.I remember he would clean me, but he was touching my vagina and my breasts. He also held me up and started kissing me in the shower.
[84] T 32.23-34.
[85] T 32.38-33.2.
She said the accused would rub her vagina. She could not remember if he used one or two hands, or if he used soap. She said this did not last very long as he then started kissing her. She said that he picked her up such that her legs were around him and he held her up against the wall of the shower. He had his tongue in her mouth and was being forceful.[86]
[86] T 33.6-25.
MM said that before the accused picked her up, and after he had rubbed her vagina, rubbed his hands over her breasts and grabbed her nipples.[87]
[87] T 34.1-10.
MM also gave evidence that when she was in the shower with the accused, he had asked her to itch his penis. She described putting her hand on his penis, then the accused putting his hand over hers and making her move it up and down on his hard penis.[88]
[88] T 34.16-28.
MM was asked if there was more than one occasion that she would shower with the accused and these things would happen. She said:[89]
A.I can't remember exactly.
Q.Was it more than once.
A.I think so.
[89] T 35.6-8.
She could not recall if this happened during the day or at night, how long the showering would take, or how she got dry or came to be dressed again thereafter.[90]
[90] T 35.9-17.
In cross-examination, MM confirmed she could now only recall one occasion when she showered with the accused.[91] She agreed that in a police statement made on 4 December 2020, she had said:[92]
My grandad made me have showers with him all the time and I remember he would kiss me in the shower and pick me up.
[91] T 65.8-9.
[92] T 65.19-22.
MM gave the following evidence:[93]
[93] T 65.24-66.4.
Q.That's what you told police on 4 December 2020.
A.Yes.
Q.But you can now only recall one shower with [the accused], is that right.
A.At the time I believed it was more when I did the statement, but everything feels so jumbled, I can't really differentiate the difference or times.
Q.So everything is jumbled, is that what you said.
A.Yes.
Q.Is it the case that you can't actually discern what happened on what occasion.
A.Meaning I can't tell the difference?
Q.You can't point to any specific memory, can you, because you're jumbling them all up.
A.No, I can point to specific memories, it's just that the number of times, I'm not sure.
Q.It could have only happened once, is that what you are saying.
A.I don't know.
Main Bathroom
MM gave evidence of an occasion when the accused abused her in the main bathroom at the Nairne house.
She remembered that she was standing in that bathroom, when the accused came into the room and started kissing her, in the same way as she had previously described. She said the accused also touched her vagina and that he was rubbing it, with his hand underneath her pants but over the top of her underwear.[94]
[94] T 41.23-24; T 42.2-19.
She could not remember how long this incident went for.[95]
[95] T 42.24-26.
In cross-examination, MM gave evidence that she believed her mother, KM, was in the ‘very next room’, that is, the front Lounge/Dining area, at the time this occurred.[96] When it was suggested to her that this, or any inappropriate touching, had simply not happened, she maintained that it did happen.[97]
[96] T 71.30-72.12.
[97] T 72.13-16.
Discussions with the Accused
MM was asked if the accused ever spoke to her about the incidents of sexual abuse. She gave the following evidence:[98]
A.Yes. He explained to me what sex was. He also said that it's not something we talk about with other people, it's our thing, I might get into trouble if I told people.
Q.When you say he explained sex to you, do you have a memory about what he actually explained to you.
A.Yep. So I was sitting in his bedroom near the windows on the floor and he was sitting on the bed facing me. He asked me if I knew what sex was and I told him no and he said it's what we do and that everyone does it and that it feels good. And that's all I can remember.
[98] T 42.32-43.4.
She could not remember how old she was when that conversation occurred but said this conversation had occurred after some of the occasions of abuse had occurred. She could not remember if the abuse continued after that conversation.[99]
[99] T 43.5-15.
MM said that otherwise, she and the accused had a relatively normal relationship as granddaughter and grandfather and that the abuse was never really spoken of at all.[100]
[100] T 43.23-30.
Complaint
MM gave evidence that the first person she told about the alleged offending was her current boyfriend, MW. She explained that she and MW commenced a relationship in about May 2019.[101] She recalled that they were having an argument which involved her being jealous. In cross-examination, MM elaborated:[102]
I had some issues in our relationship of me just being overly jealous of everything, yeah. Not normal, not normal stuff.
[101] T 45.9-24.
[102] T 56.29-31.
He had asked her if there was anything that he needed to know about her or if anything had happened to her in the past, and she had told him that as a child, she had been abused.[103]
[103] T 45.13-28.
MM gave evidence that she did not believe that she told MW straightaway that this was sexual abuse, as she was ashamed and still blamed herself for what had happened. However, after he comforted her, she became more open with him.[104]
[104] T 45.28-32.
When asked if this had happened all on the one day, on one occasion, or over a period of time, she said:[105]
[105] T 45.36-46.17.
A.Yep. So it did take quite a while for me - for him to get it out of me, but I did explain to him that I was sexually abused as a child. I still didn't tell him straightaway who the person who did that was because, once again, I still felt ashamed. But he continuously just reassured me and I did end up telling him who it was, but I didn't go into detail until quite a time later.
Q.When you did go into detail quite a time later, are you able to recall exactly what you told [MW].
A.No.
Q.If I can put it this way, did you describe any of the incidents to him.
A.Yes.
Q.Do you recall which ones.
A.Yes. So it was mostly just about the grinding and the itching of the penis and the shower, showers with him.
Q.Apart from that, that's the extent of what you've told [MW] about these incidents.
A.Yep.
In cross-examination, MM said that when she first told MW about the offending in August 2019, when she was aged 16 and living with MW at his parents’ house in Alice Springs. She agreed that this was at a time when she was feeling quite suicidal, suffering significant depression and was having trouble connecting with MW.[106]
[106] T 55.36-56.21.
She agreed with a proposition put to her in cross-examination, that during the first conversation with MW, she had only told him that she had been sexually abused as a child.[107] She gave evidence that it was a couple of hours later, during their first conversation, that she had told MW that it was the accused who had abused her. She denied that she told him this in a conversation held on a later date.[108]
[107] T 56.35-38.
[108] T 57.1-18.
MM agreed that it was in subsequent conversations with MW that she had gone into more detail in terms of the abuse that had occurred. She disagreed with a proposition put to her that she had not told MW those details earlier, because she had not recalled those specific incidents, that is, the showering, the itching of the penis, or the grinding, when she had first spoken to him about the offending. She explained that she did remember them, but that she had not told MW those details earlier as she ‘just wasn’t comfortable telling him, in that moment.’[109]
[109] T 58.7.
MM then gave the following evidence:[110]
[110] T 58.24-36.
Q.It's the case now though that really all the incidents have really moved into one haven't they.
A.That's how it feels.
Q.You can't really specify one incident because they all feel the same, is that right.
A.Yes.
Q.Indeed, you're not actually remembering one specific incident when you give your evidence today are you.
A.No I am, it's just very hazy and confusing to navigate when it happened, what was going on while it happened.
Q.That's why the location of these incidents has changed isn't it.
A.Yes.
She said she was certain that the accused had made her itch his penis and had attempted to penetrate her vagina. When she was asked if she was as certain about that, as she was about the location where this occurred, she said:[111]
I remember it happening. I was just confused.
[111] T 59.7.
Denial of Offending to Mother
In cross-examination, MM gave evidence that she recalled a conversation she had with her mother, during which her mother had asked her if anything inappropriate had happened with the accused. She agreed this conversation had occurred after her mother had picked her up from the Nairne house and shortly prior to the last time she had ever stayed overnight at the Nairne house with the accused and JR.[112] MM agreed that she had told her mother that nothing inappropriate had happened with the accused.[113] She agreed this conversation occurred after the alleged abused had commenced.[114]
[112] T 66.15-31.
[113] T 66.37-67.2.
[114] T 67.3-5.
MM denied that what she had told her mother at that time was the truth, that is, that the accused had never sexually abused her. As to why she did not tell her mother then about the alleged abuse, she said:[115]
He was my grandad, I still, like, loved him and at that time I didn’t realise just how bad it was.
[115] T 67.16-17.
MM agreed with a proposition put to her that she had not realised this until much later in life and that this was at a time when she was suffering from depression and experiencing suicidal thoughts and trying to make sense of those emotions. However, she disagreed that she had reconstructed the abuse in her mind, or that there was a possibility that she had done so. She remained adamant that the abuse had occurred.[116]
[116] T 67.19-38.
MW’s Evidence
MW gave evidence that MM first told him about the alleged abuse about a month after MM came to live with him and his parents at Alice Springs, sometime in 2019.[117]
[117] T 74.7-29.
He said that he and MM were in his room, sitting on the couch, watching ‘Goose Bumps’ together. He described MM as being ‘off’ with him for no apparent reason. They argued about something and he then asked her what was wrong with her and what was she doing. She started crying and broke down and eventually told him that ‘something happened to her as a kid’.[118] He said he tried to pry more information out of her, but she would not disclose anything more.
[118] T 75.5.
When he was asked to remember the exact words that she had used at that time, MW said she had said something along the lines of, ‘she was hurt when she was a kid.’[119] He could not recall if she had told him then that this was sexual abuse.[120]
[119] T 75.32-33.
[120] T 75.34-76.1.
MW said that MM did not tell him that night who had hurt her, nor did she give him any other information about it.[121] He said that maybe months or weeks later, as their relationship progressed, MM told him that it was her mum’s dad who had hurt her.[122]
[121] T 76.2-9.
[122] T 76.12-25.
As to when she first told him details of the alleged abuse, MW thought it was about a month after the initial conversation. He gave evidence that MM had told him that the accused would make her shower with him, make her massage him and would kiss her and stick his tongue down her throat. She had also said that the accused tried to penetrate her in her anus and her vagina. She told him the accused would talk to her about sex, tell her it was normal, that she should like it and about what he liked sexually. He could not recall if he learned these details in one or multiple conversations but said they had had multiple conversations about this.[123]
[123] T 77.12-78.26.
In cross-examination, MW said there was only one conversation about the alleged abuse on the occasion she first told him about it and maintained that all she had told him, during that first conversation, was that she had been abused as a child.[124] He denied this conversation had occurred in the context of her having trust issues with him or when he was trying to get intimate with her.[125]
[124] T 79.34-80.5.
[125] T 79.19-21; T 79.32-33.
Complainant’s Parents
Both the complainant’s mother, KM, and the complainant’s father, JM gave evidence about those occasions when MM was in the accused’s care at the Nairne house.
KM gave evidence that she worked as a croupier at the Adelaide Casino between 2006 and 2011. This was shift work, with the main shifts being either day shift from 12pm to 8pm or night shift between 8pm and 4am.[126]
[126] T 86.12-20.
Both KM and JM gave evidence that at that time, JM was working as a pest controller. He would start at around 6am in the morning and work into the late afternoon or early evening.[127] As such, if KM was working day shift, neither she, nor JM, would be home to look after MM after school.[128]
[127] T 86.24-31; T 98.24-37.
[128] T 86.29-36 .
KM gave evidence that MM attended the Nairne kindergarten in 2007, the year her younger brother was born. She also gave evidence that MM started school in 2008 in Reception at Nairne Primary School.[129] Although JM gave evidence that, in each instance, MM commenced a year earlier,[130] I accept KM’s evidence. KM’s evidence is consistent with MM starting school at the earliest opportunity after turning the age of 5 in October 2007.
[129] T 87.16-26.
[130] T 98.17-20.
KM gave evidence that MM started catching the bus to school when she was working night shift. She said that after school, if she was not at work, either she would pick MM up, or she would catch the bus home. If KM was working day shift, then the accused would pick MM up from school and take her back to the Nairne house.[131] JM would then collect her, after he finished work.[132]
[131] T 87.34-88.6.
[132] Noting JM gave similar evidence at T 99.6-22.
KM gave evidence that after LM was born, she started working the ‘sunrise’ shift. This was from 4am to 12noon. She recalled this in the context of JR having to look after LM, while she was working and the accused was also working. [133] She did not give any further evidence about how long she was off work after LM’s birth. She agreed that during this period of time the accused worked as a bus driver, which included him working a split shift.[134]
[133] T 94.35-95.3.
[134] T 93.4-94.11.
KM gave evidence that in addition, between 2006 and 2011, MM would often sleep overnight at the Nairne house. She estimated that this would occur maybe once a month.[135] She gave evidence that MM would stay overnight if she was working night shift and JM wanted to go out. She added that ‘very often’ the accused would ask to have MM stay overnight.[136] In cross-examination, KM agreed that the frequency of these overnight stays varied depending on her work commitments and the couple’s social commitments. She also agreed that those arrangements would sometimes be made through the accused and sometimes through JR.[137]
[135] T 89.7-18.
[136] T 89.9-13.
[137] T 95.28-96.5.
JM gave evidence that the frequency of these overnight stays was ‘maybe once a month but then progressively got to the point where it was on a weekly basis’. [138]In response to a proposition put to him in cross-examination that those visits may have been less frequent than that, JM said:[139]
No. It was requested on a weekly basis and she was staying there very regularly.
[138] T 100.33-35.
[139] T 103.304.
She said MM also stayed at the Nairne house for two nights when her son, LM was born in May 2007. She, MM and LM also stayed at the Nairne house for about a week after KM was discharged from hospital following LM’s birth, as their home was being renovated.[140] She could not recall LM also staying overnight at the Nairne house but agreed that was possible.[141]
[140] T 89.34-90.11.
[141] T 95.16-21.
JM was asked about what she observed in terms of the accused’s interactions with MM. She said:[142]
A.Yep, okay. So she would sit on his lap and, you know, they were always very loving towards reach other, he would always call her huggles, '[MM] give me a huggles', but then just normal stuff like watching movies together all the time and they would go outside and play on the swing.
[142] T 90.26-31.
KM gave evidence, led over objection, as to an occasion she recalled when she collected MM from the Nairne house after kindergarten. She believed this was in 2007 and before LM was born. She said that on this occasion the accused had picked MM up from kindergarten and had told her that MM had fallen off the bars, that she had hurt herself a bit but she was fine.KM said that later that night she was helping MM get undressed for her bath when she noticed a few spots of blood on her underwear. She said MM did not appear to be in any pain and seemed fine, so she did not ask MM about it, nor take her to the doctors, which she now regretted.[143]
[143] T 91.13-31; T 92.1-7.
KM gave evidence that she had not spoken to her father since about 2010. JM also gave evidence that he last saw the accused and JR in 2010 and had not had contact with them since then.[144]
[144] T 102.5-11.
JR
JR gave evidence that she and the accused had been married for 43 years. They have no children together.[145]
[145] T 104.8-11.
She presented as being markedly impaired in terms of her vision and required considerable assistance to navigate within the court room and to enter the witness box.
JR explained that her condition, retinitis pigmentosa, is a degenerative condition such that her eyesight is much worse now than it was between 2006 and 2011.[146] She recalled that at that time she had night blindness, tunnel vision and her central vision had started to deteriorate.[147] She explained that if she had looked into a room, that was not completely dark, she would have been able to tell if there were people in that room, or, for example see a person lying on the bed and be able to determine who that person was.[148] She acknowledged, however, that if she had walked straight past that room, and continued to look straight ahead, that she would not be able to see who was in the room or what was happening in it.[149]
[146] T 105.3-21; 106.11-15.
[147] T 105.22-26.
[148] T 115.11-27.
[149] T 115.28-32.
Notwithstanding this condition, JR gave evidence that during the relevant period, she was still quite active and mobile, undertaking tasks as cooking, cleaning, gardening and washing. She gave evidence that she would walk to the local shop or sometimes catch the bus to go shopping in Mount Barker. She was also a volunteer. [150]
[150] T 106.15 – 107.11; T 111.20-26.
JR gave evidence that although MM was regularly at the Nairne house when she attended kindergarten, she did not spend time there after school. It was JR’s recollection that MM caught the bus to and from school and she denied there was any recurring arrangement for either she or the accused to collect MM from school.[151]
[151] T 107.26-34; 108.34-38.
JR gave evidence that during the relevant period, the accused worked as a bus driver. She said that at times he would work split shifts, which meant he was at work between (about) 7am and 11am and then again from 3pm to around 6pm but home in the middle of the day.[152] He also worked on weekends, but fairly infrequently.[153]
[152] T 110.13-34; T113.24-36.
[153] T 110.35-38.
She did recall an occasion when the accused collect MM from school when he was home during his split shift, as JM had called to say MM was sick. The accused had brought MM home from school and then shortly thereafter he had had to return to work, so she stayed with MM until JM could pick her up.[154]
[154] T 107.36-108.9.
She agreed that MM would spend time at the Nairne house after kindergarten. She gave the following evidence:[155]
A.She sometimes spent time with me before kindergarten and then I walked her to the kindy. There were days that she didn't go to kindy at all and so she'd stay with me. With that I can't really recall anything from if she had - she was with me in the afternoon after kindy, but I certainly remember having her in the morning and getting her ready and walking her to the kindy for an afternoon session.
Q.You said there were days she wouldn't go to kindy and you'd have her, do you recall what frequency that was.
A.It would have just been when [KM] was working and that might have been once or twice a week, possibly.
Q.Do you recall what year [MM] was in kindergarten.
A.If she was born in 2002, so that's three, four, five, six, probably 2007 I think.
[155] T 108.13-27.
In cross-examination, JR agreed that there were occasions when the accused looked after MM after kindergarten and that were times that the accused would be home, during the middle of the day, when MM was also there, during the time she attended kindergarten.[156] While it was JR’s evidence that, generally speaking, she would be at home if MM was at the Nairne house, she agreed there may have been times that she left MM alone, with the accused, at the house, for example to pop out to the post office.[157]
[156] T 113.20-114.1.
[157] T 114.2-8.
JR gave evidence that, in addition, MM spent time at the Nairne house during the school holidays and also stayed overnight, ‘on the odd occasion on a weekend’, perhaps every four or five weeks.[158] She explained that there were three sets of grandparents, so they all shared those responsibilities.[159]
[158] T 109.17-20.
[159] T 109.22-23.
When MM stayed over, they had the evening meal together and she would then bath her and put MM in her pyjamas. She said they might then watch television or play a game. She would clean MM’s teeth and get her into bed and then the accused would read her a bedtime story.[160] She said MM slept with the door of her bedroom open, that she kept her bedroom door open and that it was very rare for doors within the house to be closed.[161]
[160] T 109.31-37.
[161] T 116.37-117.9.
She could not recall MM ever having a shower at the Nairne house, although she agreed this was possible, but that someone would have had to help her.[162]
[162] T 117.10-14.
JR gave evidence that that she never heard or saw anything occur between the accused and MM which gave her any cause for concern, and that if she had seen the accused lying on top of MM she would have been extremely concerned.[163]
[163] T 112.9-11; T 116.9-17.
She also confirmed that the Nairne house was a small house and that if she was in the kitchen then she would generally be able to hear if the television was on in the second living area at the back of the house and be able to hear, generally, what people were up to.[164]
[164] T 116.115.37-116.8.
JR denied that the main bedroom in the Nairne house had any curved or circular windows or that there were any curved windows in that house.[165] She also recalled that there was a shower curtain in the ensuite bathroom and a curtain separating the ensuite bathroom from the main bedroom.[166]
[165] T 118.7-19.
[166] T 118.20-26.
JR gave evidence that she and the accused started fostering children in their home in February 2009 but stopped doing so in November 2009. She said that thereafter, she and the accused stopped seeing MM, LM, KM and JM.[167]
[167] T 111.30-31; T 111.36-112.5.
Accused’s Evidence
The accused gave evidence that he was born on 22 September 1948, meaning he was 74 when he gave his evidence.[168] He said he was retired, having previously been employed as a bus driver until around 2009/2010.[169]
[168] T 121.8-9.
[169] T 121.38-122.8.
The accused gave evidence, consistent with that of JR, that he and JR often cared for MM from when she was aged about two, until around late 2009 or early 2010, after which they no longer had any contact with her.[170]
[170] T 124.34-35; T 127.37-128.3.
He described MM as ‘a very loving kid’ and said he ‘absolutely’ enjoyed spending time with her, such that he was sad when his contact with her ceased.[171]
[171] T 127.33-36; T 128.4-5.
The accused gave evidence that he would collect MM most days from kindergarten.[172] He explained that he worked a split shift as a bus driver, which meant that generally he would have time to collect her from kindy, pick her up and take her back to the Nairne house, during the day, between those split shifts.[173] However, he said he did not see her much after school, or collect her from school, as school finished at 3:30pm and he would be working the second part of his split shift.[174]
[172] T 126.5-8.
[173] T 125.19-25.
[174] T 136.2-9.
The accused said that MM also spent time at the Nairne house during school holidays and he would see her then, when he was home between his shifts.[175] She also said overnight on occasions. It was his recollection that she would usually be dropped off on a Friday night and collected on the Sunday morning.[176] He agreed that he would usually be home on the weekends when MM was staying.[177]
[175] T 136.14-21.
[176] T 126.19-31.
[177] T 136.25-137.5.
The accused gave evidence that when MM was with him, she would often be outside on the play equipment and that there was also a cubby in the backyard. He said he would take her down to the Mount Barker park and teach her to ride a pushbike and a scooter, or if they were home, she would like to watch movies.
He said that when MM stayed overnight at the Nairne house, JR would bathe MM although he readily acknowledged that he would sometimes look in on MM when she was in the bath.[178] He said MM had a bath each day she was at the Nairne house and he did not believe she had ever had a shower there.[179]
[178] T 127.20-24.
[179] T 128.33-36.
The accused said that he would put MM to bed and either read to her or tell her a story.[180] Sometimes JR would be present for this. He said the door to MM’s bedroom was always kept open, as she liked to have light coming through and they would keep the light on in the main bathroom for that purpose.[181]
[180] T 127.15-19.
[181] T 128.37-129.7.
The accused was asked about the impact of JR’s visual disability on her ability to undertake everyday activities, during the relevant period. He said that notwithstanding her disability, JR was able to do most things, such as walk down the main street to collect the mail, on occasions walk to collect MM from kindergarten and undertake volunteer work for a group called ‘Foodies’.[182] He said that at home, she did most of the cooking, the cleaning and the washing and helped him with the gardening.[183] He described JR as ‘very, very active.’[184]
[182] T 128.10-19.
[183] T 130.29-131.2.
[184] T 131.11.
The accused agreed that he knew of the difficulties JR had with night blindness, tunnel vision and that she was starting to lose her central vision as at 2006 and that her vision deteriorated during the period from 2006 to 2011.[185]
[185] T 130.15-28.
In cross-examination, the accused agreed that when MM was at the Nairne house and JR was busy with these activities, MM’s care would fall to him and that he spent more time with MM than JR did.
However, the accused was quite adamant that while MM was in their care, JR was always present. Although he agreed it was possible that there may have been an occasion when MM was in his care and JR had left the house to go shopping, he said he doubted that had occurred.[186] He gave the following evidence:[187]
Q.So as I understand it, you're telling the court that if [MM] was present during the day, during that kindergarten year [JR] was always there.
A.While [MM] was in our care [JR] was always there.
Q.There was never an occasion where you were alone with [MM].
A.I cannot recall any other time.
[186] T 132.6-20.
[187] T 132.36-133.5.
The accused gave evidence about the layout and furniture within the Nairne house, much of which was consistent with MM’s evidence. For example he agreed the shower in the ensuite bathroom was very small and that there was a bookshelf and fireplace in the second living area.
However, he was adamant that the window in the main bedroom was not curved. Rather, he said that the window was in fact in the ‘walk in robe’, which was in the area immediately adjacent to the main bedroom and separated from the bedroom by a concertina. The window, which let in light to the bedroom, was on the wall of the walk-in robe. It was rectangular in shape, of about a metre wide and slightly less than a metre high, with flat glass. He referred to that window by reference to the formal plan, Exhibit P2.[188]
[188] T 123.19-124.13; T 143.11-35.
The accused gave evidence that there was no reason for MM to go into or spend any time in the main bedroom.[189]
[189] T 141.5-11.
Similarly, the accused gave evidence that there was no reason for MM to use the ensuite bathroom if she ever did have a shower, as there was a shower in the main bathroom. He said that if she wanted to go to the toilet, she could have used the toilet in the ensuite bathroom, as there were no restrictions on her being able to use it.[190]
[190] T 140.27-37.
The accused categorically denied having ever abused MM in the way she claimed.[191]
Closing Submissions
[191] T 129.18-35; T 141.12-143.9.
Prosecution
The prosecutor acknowledged that for me to be satisfied beyond reasonable doubt as to the accused’s guilt of either count, it was necessary for me to be satisfied beyond reasonable doubt as to the reliability and credibility of the evidence given by MM.
It was submitted that MM was an honest and earnest witness, who had readily acknowledged those aspects of her evidence which differed from that in her police statements and had given an appropriate and valid explanation for those differences.
Insofar as there were inconsistencies as between her statements and her evidence, or inaccuracies in her memory, for example, of the curved windows in the main bedroom, it was submitted that this was of little consequence having regard to her very young age during the course of the alleged offending and other aspects of her recollection as to the house, which were accurate.
The prosecutor described MM as otherwise having given an ‘impeccable account’ of the offending.[192]
[192] T 150.2.
The prosecutor reminded the court of the other evidence that supported MM’s version of events.
He submitted that on all of the evidence, there was clearly the opportunity for the accused to have offended in the manner as alleged, that is, during the daytime, when he was at home with MM, and JR was either busy elsewhere in the house doing household chores or had left the house either to go to the shops or perform her volunteer work. That opportunity was even greater having regard to JR’s visual difficulties.
The prosecutor highlighted the accused’s reluctance to acknowledge that there would ever be times where he was alone with MM, as impacting on the Court’s assessment of both his reliability and credibility.
He submitted that aspects of MM’s evidence were compelling and consistent with her describing detail of events that had actually occurred. For example, her recollection of her arm getting sore from ‘itching’ the accused’s penis and of the accused washing her clothes when he ejaculated on them on one such occasion.
He submitted that the Court could be satisfied that there were at least five clear instances where the accused had committed an unlawful sexual act on MM during the relevant period, for the purposes of count 1.
He identified those as:
·At least one occasion when the accused kissed MM on the mouth and lay on top of her on the bed, while grinding on her.
·An occasion when the accused and MM were showering together and he touched her vagina, kissed her on the mouth and made her itch his penis.
·An occasion when the accused and MM were on the accused’s bed, he kissed her, lay on top of her and grinded her, then caused her to masturbate his penis.
·Another occasion, similar to the previous one, but distinct because on this occasion, the accused ejaculated.
·The occasion when MM was lying on her stomach on the accused’s bed and the accused was lying on top of her, and he ran his fingers through her buttock cheeks and touched her anus.
As to count 2, the prosecutor submitted that MM had a clear recollection of the time when the accused tried to insert his finger in her vagina because it hurt her. He submitted that her description of this incident was consistent with the accused having digitally penetrated at least her labia majora, and thus amounted to an act of sexual intercourse.
Although MM did not recall any offending having occurred before she started school, he submitted that given her age, it was understandable she did not have a precise recollection of when the incidents occurred. He submitted that as such, KM’s evidence as to her observations of blood spotting on MM’s underwear after the accused had collected her from kindergarten and she had been in the accused’s care, was therefore consistent with MM’s allegation of digital penetration.
It was submitted that the minor differences in the recollection of MM and MW as to the details of and surrounding the initial complaint, were of no consequence and simply indicative of them having given their accounts independently and without collaboration. Further, the prosecutor submitted that MM had readily conceded she had denied the offending when asked about it by her mother at a young age and had given a reasonable explanation, namely that she loved her granddad and did not realise how bad the alleged conduct was.
It was submitted that on all of the evidence, I could be satisfied beyond reasonable doubt, as to the accused’s guilt with respect to each count.
Defence
Counsel for the accused submitted that there were several reasons why the Court simply could not be satisfied that MM was both a reliable and credible witness, such that the prosecution could not establish the accused’s guilt beyond reasonable doubt as to either count.
It was submitted that because of various important inconsistencies in MM’s evidence, compared to what she told the police, the court could not exclude, as a reasonable possibility, that MM had simply reconstructed the abuse in her mind.
In this respect, it was submitted that, by her own admission, MM had conceded she was struggling to remember the circumstances of the abuse and was trying to put the pieces together as best she could. She had first disclosed the offending at a time when she was struggling with suicidal thoughts and having relationship difficulties. She was trying to understand why she felt the way she did. She had been close to the accused as a young child for many years but that contact had stopped suddenly at about the same time as her mother had asked her if he had ever behaved inappropriately towards her, being something she had denied at the time. In such circumstances, it was submitted that the Court could not exclude as a reasonable possibility that MM had simply reconstructed the abuse and convinced herself it had occurred.
Counsel for the accused highlighted the difference in what MM said in her evidence as to where she was when the accused tried to insert his finger in her vagina and where the majority of the abuse had occurred, that is, in the main bedroom, compared to what she had told the police in her statement made on 18 August 2020, namely that this occurred in her bedroom at the Nairne house.
It was submitted that this difference was critical for several reasons. MM was clear in her evidence as to her recollection of the alleged occasion of unlawful sexual intercourse because it was painful. It was something that stuck out in her mind.
MM had given evidence, which was not disputed, that in her room at the Nairne house there was a single bunk bed. She described the accused’s bed as being either a Queen Size or King Size bed, being consistent with the photographs in Exhibit P3. As such, in confusing the location of this alleged occasion of abuse, and, indeed, the location of where the majority of the abuse was said to have occurred, MM was describing not only a different room in the house, but a completely different bed.
The evidence established that MM first disclosed the alleged abuse to MW sometime during 2019. It was submitted that as such, there was plenty of time between that initial disclosure and the time MM made her statement to police on 18 August 2020, for her to consider her thoughts and to provide an accurate account to police at that time. Further. MM had maintained that when she told MW about the abuse, she remembered it. It was submitted that the significant change in her recollection of important aspects of that abuse was telling.
In cross-examination, MM had agreed with a proposition that she could now only recall one occasion when she showered with the accused. She agreed she had told the police, in another statement made on 4 December 2020, that the accused had made her shower with him all the time. MM said that she had told the police what, at that time, she believed had occurred, but now had a different belief. It was submitted this should cause the Court considerable concern, insofar as that belief could change again in the future.
This inconsistency was also said to be significant for reasons other than MM’s reliability, insofar as it was submitted one may have expected JR to have been aware if, in fact, MM was regularly having showers with the accused.
It was submitted that there was an inherent unlikelihood in aspects of MM’s account. In particular, counsel for the accused submitted that it was implausible that the accused would lie on his bed with MM, with the door open, with his pants around his knees, for minutes, while she masturbated him. It was MM’s recollection (or at least presumption) that JR was in the house when the abuse occurred. The Nairne house was a small house. MM recalled the abuse occurring in daylight. Counsel for the accused submitted that notwithstanding JR’s visual difficulties, it was inherently unlikely the accused would have taken the risk of the offending being detected by her. Further, it was submitted MM’s recollection of what occurred when she saw JR walk past the bedroom door twice, while the accused lay on top of her, that is, he simply made a joke of him not wanting her to see them but otherwise continued the abuse, was simply implausible.
Counsel for the accused also argued that the occasion of alleged abuse which was said to have occurred in the main bathroom, when KM was in the very next room, also fell into this category.
Another aspect of MM’s evidence which counsel for the accused highlighted was her certainty that there were curved windows in the main bedroom of the Nairne house. It was submitted that the evidence established that there were no such windows in that room or indeed in any room of the Nairne house. It was submitted that if MM was certain of this, but mistaken, she could she also be certain, but ultimately mistaken in her recollection of the abuse. Further, the fact this was a memory which stood out to MM relevant to the location of where she said the majority of the abuse had occurred, was also important.
As to the initial complaint, it was submitted that rather than show consistency of conduct, the evidence demonstrated some inconsistency, insofar as MM’s recollection of how that discussion (or discussions) unfolded was very different to that of MW. The fact MM had expressly denied the abuse in the earlier conversation with her mother was also of concern.
Insofar as it was suggested by the prosecution that KM’s evidence, of seeing blood spots on MM’s underwear, corroborated her account, counsel for the accused reminded the Court that MM recalled the abuse happening when she was at school, whereas KM’s mother believe this incident occurred before LM was born and while MM was at kindergarten. There were also many innocent explanations for KM’s observations, meaning this evidence should be given very little weight.
Finally, it was submitted that the accused had given evidence, wherein he had maintained his innocence, and that there was nothing about his denials which should cause the Court to reject those denials as not being reasonably possible.
Assessment of the Evidence
The evidence of MM is critical to the prosecution case and as such, I must scrutinise her evidence with care.[193] I must be satisfied that MM is both a credible and reliable witness, and I must be satisfied beyond reasonable doubt that she is telling the truth about the alleged offending.
[193] Murray v R (2002) 211 CLR 193.
Further, although the accused bears no onus, it necessarily follows that for me to be satisfied beyond reasonable doubt of the accused’s guilt, of either count, I must reject the accused’s denials of the alleged offending, as not being a reasonable possibility.
Accused’s Evidence
I will deal first with the accused’s evidence.
The accused presented in a straightforward manner, being neither overly confident, nor apprehensive. There was nothing about his demeanour which, of itself, caused me to doubt his honesty.
The accused readily admitted to having had a close and loving relationship with MM when she was a young child and to having played a significant role in MM’s care from when she was aged about 2, until around 2010.
He described spending considerable time with MM, including occasions when he collected her after kindergarten and when she was at the Nairne house either during school holidays or for overnight stays. He acknowledged that when JR was busy with her many household chores, the responsibility for MM’s care fell to him. He acknowledged he spent more time with MM than JR did.
The accused denied being responsible for collecting MM from school and explained that he simply could not have done so because of his employment commitments. The accused’s evidence that during the relevant period he worked ‘split shifts’ on weekdays as a bus driver was not challenged and was supported by JR’s evidence. I am satisfied that, generally speaking, the accused did not collect MM from school because the end of the school day would coincide with him being required to be at work, as a bus driver, performing the second half of his split shift.
Although there was no definitive evidence as to what hours MM went to kindergarten, it is well known that kindergarten hours do not coincide with school hours and often comprise either morning or afternoon sessions of only a few hours’ duration. I accept the accused’s evidence that he was able to collect MM from kindergarten because she finished kindergarten in the middle of the day, when he was on a break between his split shifts.
The accused was not cross-examined about his recollection of any conversation with KM about MM having fallen from the bars at kindergarten and having hurt herself. His version of any such conversation is therefore not known.
There were aspects of the accused’s evidence which appeared to be designed to distance himself from the allegations. For example, the accused was very reluctant to agree with a proposition that he was ever alone in the house with MM and maintained that he had no recollection of MM being at the house when JR was not there. He denied there ever being an occasion, that he could recall, that JR had left the house to go to the shops, leaving MM in his care. If JR did lead the active life that both she and he claimed she did, then it is inconceivable that there would not have been occasions when the accused was home alone with MM.
Similarly, the accused was quite adamant that MM’s bedroom door was always kept open and that she had never had a shower at the Nairne house.
The accused was at pains to present JR as being able to lead a full and active life during the relevant period, notwithstanding her visual difficulties. This evidence was somewhat of a double sword – on the one hand, it potentially assisted the accused to refute any suggestion he would be so brazen to offend when JR was in the house or indeed walking past his open bedroom door. On the other, the fact he described her life as so active bolstered the prosecution case that there was plenty of opportunity for the offending to occur, either when JR was out at the shops or performing voluntary activities, or when she was at home, busy cooking in the kitchen at the other end of the house.
However, there were also aspects of the accused’s evidence which, in my view, demonstrated he was being frank and honest with the Court.
For example, he readily acknowledged that there was no reason why MM would be in his bedroom at the Nairne house, rather than attempt to explain why, it was, that she now has a recollection of that room. Although JR was in charge of bathing MM, the accused readily acknowledged that at times, he would go into the bathroom to check on her. He admitted that his love for MM had changed somewhat since these allegations had been made.
Having carefully reviewed the accused’s evidence, notwithstanding those aspects which, in my view, were designed to bolster his claimed innocence, these were not such as to cause me to reject his denials as not being a reasonable possibility.
Prosecution Evidence (other than Complainant)
In addition to the evidence of the complainant, the prosecution relied on the complaint evidence given by MW and the evidence of KM, JM and JR with the latter three witnesses relied upon to corroborate the complainant’s evidence as to the opportunity for and/or circumstances surrounding some of the occasions of the alleged offending.
I have no reason to doubt the honesty of any of these witnesses.
JR
While JR’s evidence must be considered in light of her very long marriage to the accused and her reliance upon him having regard to her now significant visual disability, I had no reason to doubt she was being anything other than truthful with the Court.
She was extremely candid as to the extent of her visual difficulties during the period 2006 to 2011. I am satisfied that those difficulties were such that if she walked past the main bedroom and continued to look straight ahead, rather than into that room, she would not have had any peripheral vision to enable her to have any visual appreciation of whether anyone was in that room. That is, irrespective of whether it was day time or night time.
Notwithstanding that disability, I accept JR’s evidence that she was otherwise able to undertake many ordinary activities such as cooking, cleaning and washing, together with voluntary activities. Indeed, the very fact that JR and the accused were able to foster children in their home during 2009 suggests that JR was likely to have retained enough of her eyesight to retain much of her independence at that time.
I accept JR’s evidence that she never saw or heard the accused behave in an inappropriate way towards MM.
However, I also accept her evidence that although she did not drive, she did, at times, walk to the local shops or catch the bus into Mount Barker with KM. She also must have left the home, at times, to perform voluntary activities.
Notwithstanding the accused’s evidence to the contrary, I am satisfied that there must have been occasions when JR was not at home, when MM was at the Nairne house in the care of the accused. The very fact that JR talked of shopping with KM raises an obvious question – if JR was with KM, where was MM? Although she may have been with her father or being cared for by others, it is equally possible that she was left alone with the accused.
I accept JR’s evidence that the Nairne house was relatively small. However, if JR was in the kitchen, at the front of the house cooking the evening meal, there was ample opportunity for the accused to be with MM in either his bedroom or the ensuite bathroom, without JR being aware of this.
Further, JR had a recollection of caring for LM. Although this topic was not explored, given LM was a much younger child, there may well have been occasions when JR and the accused were caring for both children, and JR was preoccupied with LM’s care, thus creating the opportunity for the accused to offend against MM.
Complainant’s Parents
Both JM and KM appeared to be doing the best they could to provide an honest account of their recollections to the Court.
As previously stated, I prefer KM’s evidence to that of JM as to when MM was in kindergarten (2007) and as to when she started Reception at Nairne Primary School (2008).
Both JM and KM were adamant that the accused would regularly collect MM from school. This was denied by both JR and the accused, who gave evidence that MM used to catch the bus both to and from school.
It was clear from the evidence of both KM and JM, that the reason the accused (and/or JR) assisted them with MM’s care, during the week, was because of their work commitments.
I accept JM’s evidence that at the relevant time, he worked as a pest controller, meaning he started work early in the morning (that is, before kindergarten or school) and did not finish until late afternoon, meaning he was unable to collect MM after either kindergarten or school.
If KM was working day shift, she would not be able to collect MM after either kindergarten or school as she worked in the city at the Casino from 12pm until 8pm. I am satisfied therefore that on such occasions, it was necessary for either the accused or JR to collect MM from kindergarten (or school).
KM gave only very general evidence as to how frequently and when she worked certain shifts. None of her employment records were in evidence.
Importantly, KM gave evidence that after LM was born, she started working the sunrise shift, with hours from 4am until 12noon. She was not more specific as to precisely when she started working those hours and/or whether she only worked that shift after his birth, or whether she continued to work the day shift as well on a rotating roster.
LM was born in May 2017, during the year MM was attending kindergarten and before she started school. MM started school in 2008. If, in fact, KM was working the sunrise shift during 2008 and 2009, there would have been no need for the accused or JR to collect MM from school, as KM would have been home from work before the end of the school day and able to collect her.
Further, as previously stated, I accept the accused’s evidence that he worked split shifts as a bus driver, which would have prevented him from being able to collect MM from school.
As such, while I consider both KM and JM both now honestly believe the accused collected MM from school on a regular basis, that they are mistaken about this.
There was no dispute that the accused cared for MM during school holidays and during overnight stays. I accept KM’s evidence that the overnight stays were around monthly, given KM’s employment obligations and to allow for JM and KM to attend occasional social activities.
JM gave evidence that the frequency of those overnight stays increased to around weekly, at the accused’s insistence. However, in the absence of any other evidence to suggest those stays were of such frequency, I am unable to accept that evidence, which I consider to be a genuine but mistaken recollection on JM’s part.
I accept KM’s evidence as to the circumstances in which she found some blood spots on MM’s underwear after collecting MM from the accused’s care. KM believed this occasion was before LM’s birth and that it occurred after MM had spent a day at kindergarten. This is consistent therefore with the evidence given by both the accused and JR that they cared for MM at the Nairne house after collecting her from kindergarten.
This evidence is relied upon by the prosecution to corroborate MM’s evidence as to count 2. That is a standalone count of Unlawful Sexual Intercourse. MM maintained that she could only recall the abuse as occurring after she started school. While it is possible she is mistaken and what she is in fact recalling is an occasion from much earlier, this critical difference in timing substantially reduces the weight to be afforded to KM’s evidence on this topic in terms of its ability to corroborate MM’s account.
MW – Complaint Evidence
MW’s evidence was largely confined to the circumstances in which MM first told him about the alleged offending.
There were differences in his recollection and that of MM as to when MM disclosed certain information to him.
Counsel for the accused submitted the Court should prefer MW’s evidence to that of MM of this topic, as it may be thought that MW would be more likely to remember these details. I disagree. My impression of MW was that although he had a clear memory of the very first time the abuse was raised, that is, when they were in his room together watching the movie ‘Goose Bumps’, he otherwise had a very general and quite vague recollection of the content and timing of those discussions.
MW could not recall if, during the first conversation he had with MM about this topic, she told him it was sexual abuse. Although he said MM had not told him who had abused her during the conversation they had on that first night, his estimate as to how long it was thereafter that she told him was ‘probably months, yeah or maybe weeks, yeah, I’m not too sure about that.’[194]
[194] T 76.18-19.
My overall impression of MW was that although he was an honest witness, he was struggling to remember the finer detail of the (many) conversations he had had with MM about the alleged offending.
Notwithstanding the fact that MM was clearly distressed and struggling mentally at the time she made the disclosure to MW, I prefer her recollection of the details of those conversations, to that of MW.
There were some minor differences in MM’s account of the offending and MW’s recollection of what MM had told him. However, I am satisfied that those inconsistencies can be explained by the period of time which has elapsed between the first such conversation and when they both gave their evidence, during which period they had many conversations about the alleged abuse.
The couple commenced their relationship in about May 2019. MW said MM first told him about the abuse about a month after MM moved in with his parents at Alice Springs. In cross-examination, MM said she first told MW about the alleged offending in August 2009 when she was 16. I am satisfied the first such conversation occurred in about August 2019, noting MM turned 17 on 28 October 2019.
MM acknowledged that at the time she first told MW about the alleged offending, she was struggling mentally. She was living away from home with her relatively new boyfriend’s family. I accept that in such circumstances she was mentally fragile. However, by this time, MM had reached the age where she was old enough to fully appreciate what is and is not appropriate conduct between a grandparent and granddaughter. She was embarking upon a romantic relationship which has continued in the long term.
Notwithstanding MM’s emotional fragility at that time, I am satisfied that the circumstances in which she made her complaint of the offending to MW does lend some support to her credibility insofar as those circumstances demonstrate a degree of consistency of conduct on her part.
In making this finding I am conscious of the fact that MM expressly denied the offending to her mother shortly prior to when she last had contact with the accused.
The only evidence of the content of that conversation was MM’s evidence whereby she agreed that her mother had asked her if anything inappropriate had happened with the accused and she had said no. Having regard to all of the evidence, I find that this conversation is likely to have occurred in or about late 2009 or early 2010 at the very latest, when MM was aged only 7. MM gave evidence that at the time she thought what the accused was doing was normal and she liked it. She also gave evidence that the accused had told her that what they were doing was normal and that everybody did it. In such circumstances, her denial to her mother at that time, of anything inappropriate occurring with the accused can be readily understood.
Complainant’s Evidence
MM gave her evidence in a clear and cogent manner. She did not seek to exaggerate or embellish her evidence and she readily acknowledged those aspects of her memory which had either failed her, or were jumbled, or confused.
There were aspects of MM’s evidence which were extremely compelling and consistent with her describing events which had actually occurred to her.
Most compelling was her painfully honest description of how (most) of the abuse had made her feel, that is, ‘at the time I thought it was normal so I guess I liked it’.[195]
[195] T 30.8-9.
Other evidence in this category is MM’s evidence that the accused had asked her to ‘itch’ his penis to make the itch go away, and of remembering her arm getting sore from doing so. Similarly, MM’s memory of the sensation she felt when the accused tried to insert his finger in her vagina and of it being the only time she felt pain when the accused abused her, was extremely persuasive.
MM described the accused talking to her about sex and explaining that everyone did it and that it felt good. She also described the accused as telling her what they did together was ‘our thing’ and that she might get into trouble if she told people. She said she thought (the abuse) was something that happened to everyone.
If that is accurate, then that provides a cogent explanation for why MM told her mother that nothing inappropriate had happened with her and the accused.
Further, as previously stated, I am satisfied that the complaint evidence does demonstrate some consistency of conduct, such as to lend support to MM’s credibility.
My overall impression was that MM was a credible witness – that is, that she was telling the truth insofar as she honestly believes the accused has abused her in the manner she described.
There were, however, aspects of MM’s evidence that do cause the Court some concern as to the reliability of her evidence.
The most critical issue is the difference in MM’s evidence and what she told the police in her statement made on 18 August 2020, both as to where the majority of the offending occurred and as to where she was when the accused attempted to insert his finger in her vagina.
In evidence, MM was certain that most of the abuse, that is, the kissing, the grinding and the itching of the penis and the specific occasion of attempted digital penetration, occurred in the accused’s bedroom at the Nairne house, in the accused’s bed, being either a Queen size or King size bed.
In August 2020, MM told the police that when the accused tried to insert his finger in her vagina, she was laying on the bed in her bedroom at the Nairne house. She also told the police that the grinding and massaging of the accused’s penis would normally take place in her bedroom.
MM explained that at the time she gave that police statement she did not remember a lot and ‘I was just still at that time trying to put pieces together’.[196] She said, ‘I was still trying to understand and think of everything that I can remember happening. I just got mixed up I suppose.’[197]
[196] T 51.3-32.
[197] T 52.28-30.
MM was giving evidence at the age of 20 about what would have been extremely traumatic memories of her very early childhood. She described being abused on multiple occasions. This may explain why her memory of the surrounding circumstances of the abuse now lacks clarity and certainty. It may, for example, explain why she cannot remember with certainty how old she was when the abuse started, or how many times the accused abused her in a certain way.
However, MM gave evidence that she had a very specific memory of the time the accused tried to insert his finger in her vagina and that is because it hurt her. Further, MM described the accused lying on top of her, kissing her and grinding on her, ‘pretty much every time I went to his house’.[198]
[198] T 30.29-30.
MM gave evidence, which was not challenged, that there was a single bunk bed in her bedroom at the Nairne house.[199]
[199] There are no photographs of this room in the bundle Exhibit P3.
The bed in the accused’s bedroom was not a single bed or a bunk bed. It was MM’s evidence that the photographs of the main bedroom in Exhibit P3 were consistent with how she remembered it. Those photographs depict either a double or Queen size bed.
The Court was not privy to any expert evidence as to how memory works, particularly in the case of those recalling traumatic memories from their childhood many years ago. However, one might expect the sensation of lying on a single bunk bed – either on the lower or upper bunk - with someone much older and heavier lying on top of them, would be considerably different to that of such a memory of this occurring on a larger, single level bed.
The fact this difference in memory related not only to one specific alleged occasion of abuse but also to the precise location where the majority of the abuse is alleged to have occurred.
The police statement made on 18 August 2020 was given about a year after MM first disclosed the abuse to MW, at a time when she maintains she remembered the abuse. MM gave her evidence just under three years later in June 2023.While memories can change over time, this was a significant change in detail with respect to the abuse.
MM agreed in cross-examination that she now recalled only one occasion when she showered with the accused. She agreed she had told the police in a statement made in December 2020, that he made her shower with him ‘all the time’.[200] As to the reason for that difference she said:[201]
A.At the time I believed it was more when I did the statement, but everything feels so jumbled, I can't really differentiate the difference or times.
Q.So everything is jumbled, is that what you said.
A.Yes.
Q.Is it the case that you can't actually discern what happened on what occasion.
A.Meaning I can't tell the difference?
Q.You can't point to any specific memory, can you, because you're jumbling them all up.
A.No, I can point to specific memories, it's just that the number of times, I'm not sure.
[200] T 65.20.
[201] T 65.28-66.1.
This explanation rings true. Of itself, the Court may not place much emphasis on MM’s uncertainty as to the number of occasions this type of abuse allegedly occurred, having regard to her very young age at the time.
However, it is the difference in detail of MM’s specific memories that is of concern in terms of the Court’s overall assessment of MM’s reliability, namely her specific memories of the occasion of attempted digital penetration and, even more importantly, of where most of the abuse is alleged to have occurred.
Counsel for the accused also emphasised how certain MM was that the windows in the main bedroom were curved, in circumstances where the evidence from the accused and JR and from the formal floorplan, Exhibit P2, was otherwise.
There were no photographs in evidence of the windows in the main bedroom of the Nairne house. However, I am satisfied from Exhibit P2 and the evidence of both JR and the accused, that those windows were not curved.
The accused described a concertina separating the walk-in robe and the bed in the main bedroom. A concertina is a partition that folds back on itself when closed in a wave like motion, like a squeezebox. It is of course possible that the ‘curved windows’ that MM now recalls in that bedroom are in fact a memory of the curvature of the concertina which would have been visible to her as she lay on the bed in that room and looked to her left towards the window. However, the fact remains, MM has a clear memory of a window in the room where she says most of the abuse occurred, which is an inaccurate memory.
From all of the evidence, I am satisfied that there was the opportunity for the accused to offend against MM. As previously stated, I find that there must have been occasions when MM was in the accused’s care at the Nairne house and JR was absent, even if for only half an hour or so to walk down to the local shops or the post office. There must also have been occasions when JR was busy cooking or washing down the other end of the house, away from either the main bedroom or ensuite bathroom.
As observed by Doyle CJ in R v Corrigan:[202]
… it is unfortunate fact that it is not uncommon for sexual offences involving children and young people to be committed in circumstances in which a dispassionate observer would think an attempt to commit the offence would be unlikely because of the risk of detection.
[202] (1998) 74 SASR 545 at 468.
However, irrespective of JR’s visual disability, MM’s recollection of the occasion of abuse which occurred and then continued, after she saw JR walk past the open bedroom door twice, does lack plausibility. For the accused to simply continue to lie on top of MM, kiss her and grind on her, in such circumstances, seems extraordinary. Similarly, for the accused to enter the man bathroom and kiss MM and rub her vagina, with her mother in the very next room, seems unlikely.
As previously stated, I am satisfied that MM was an honest witness and that she was endeavouring to tell the court, as best she could, of her memories from early childhood. Rather than seeking to bolster or exaggerate her account, MM readily acknowledged the limitations of her memory and did not shy away from explaining the inconsistencies in her prior statements to police.
However, those limitations and inconsistencies had a significant impact on the overall reliability of the complainant’s evidence. In a criminal trial such as this, where the prosecution must prove the accused’s guilt beyond reasonable doubt, the court must be satisfied not only that the complainant is an honest witness, but that her account of the alleged offending is accurate, and that there is no reasonable possibility that the accused is innocent of these very serious charges.
After carefully considering all of the evidence, I have concluded that the differences in the evidence given by the complainant and what she told the police in 2020, are simply too significant for me to be so satisfied. Those differences go to critically important matters, namely the location and type of bed in which most of the offending is alleged to have occurred and the location of the specific occasion of alleged unlawful sexual intercourse in count 2.
Further, as stated, after carefully considering the accused’s evidence, I cannot exclude his denial of the offending as not being a reasonable possibility.
As such, after carefully considering all of the evidence and carefully scrutinising the complainant’s evidence, while it is certainly possible the offending occurred in the manner as described by MM, I simply cannot be satisfied, beyond a reasonable doubt, as to the accused’s guilt of either count.
Conclusion
I find the accused not guilty of both counts.
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