R v DT
[2023] SADC 74
•27 June 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DT
Criminal Trial by Judge Alone
[2023] SADC 74
Reasons for the Verdict of his Honour Judge Press
27 June 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused DT is charged on an information dated 16 October 2020 with one count of maintaining an unlawful sexual relationship with a child and in the alternative one count of unlawful sexual intercourse with a person under 14 years.
The offending is alleged to have been committed against his biological daughter when she was 12 years old.
The accused elected for trial by judge alone.
Verdict:
Count 1- Guilty
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law Consolidation Act 1935 (SA) s 50; Evidence Act 1929 (SA) s 29B; Evidence Act 1929 (SA) s 34P, referred to.
Godden v R [2021] SASCA 102; R v K, GA [2019] SASCFC 2; R v Zappavigna [2015] SASCFC 8, considered.
R v DT
[2023] SADC 74Introduction
DT, the accused, elected for trial by judge alone. The Information dated 16 October 2020 was amended on the morning the trial was to commence.[1] The trial proceeded on the following counts:
[1] The matter was listed for four to five days to commence on 26 July 2022. The trial commenced but was unable to continue on 28 July as one counsel contracted COVID. The matter was adjourned to the beginning of August but both counsel were unable to accommodate that listing. It was then adjourned to late August but again one counsel contracted COVID. There were attempts to list the matter in September but counsel were unavailable. The next available date for counsel and the court was late November. Evidence was then heard on 29 and 30 November and closing addresses occurred on 9 December 2022, T184.
First Count
Statement of Offence
Maintaining An Unlawful Sexual Relationship With A Child (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
DT between the 1st day of July 2015 and the 31st day of January 2016 at Brighton, Ashford or other places, maintained an unlawful sexual relationship with B, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) touching his penis over his clothing in her presence;
b) exposing and touching his penis in her presence on more than one occasion;
c) causing or inciting her to touch his penis on more than one occasion; and
d) inserting his penis into her vagina 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.
In the alternative to the First Count:
Second Count
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
DT between the 1st day of September 2015 and the 30th day of September 2015 at Ashford, had sexual intercourse with B, a person under the age of 14 years, by inserting his penis into 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.
For the following reasons I am satisfied beyond reasonable doubt that the accused is guilty of count 1.
Brief overview of evidence and issues
The prosecution called the following witnesses; B (the complainant), Kelly Elizabeth Weston (police officer), S (B’s mother), Mark O'Driscoll (police officer) and Dr Krista Mary Maier (Medical Practitioner).
The defence called Ms H.
B is the biological daughter of the accused. She was 19 at the time she gave evidence. The alleged offences occurred when she was 12 years old.
In 2010 the accused separated from B’s mother. He left South Australia for a short period and returned to South Australia in about 2012. In 2014 the accused started driving the complainant to school in the morning. It is alleged that on occasions in the latter part of 2015, the accused parked his vehicle on the Esplanade in Brighton. It is alleged the accused touched and exposed his penis in front of B and also caused or incited her to touch his penis while they sat in the car. After such incidents, the accused then drove B to school. This offending continued for a number of months. It is further alleged that the accused, on numerous occasions, had unlawful sexual intercourse with B at his home. The sexual acts in the car stopped around the same time as the sexual acts at the accused’s home commenced.
The alleged offending stopped in January 2016 when an incident occurred which resulted in B no longer spending time with her father. There is no dispute that a complaint was made by B to her mother in early 2019.
Dr Maier gave evidence as to aspects of B’s mental health issues.
Ms H was called by the accused. She was living at the house during the period it is alleged the offending at the house occurred.
The defence case is that both the credibility and reliability of B are seriously undermined by any number of issues. Those issues include, but are not limited to, the absence of opportunity for the offences at the house to have occurred in light of the evidence of Ms H, the serious ongoing mental health issues of B, the prior inconsistent statements made by B and the inherent unlikelihood of the accused engaging in such brazen and risky behaviour-both in the vehicle and at the house. In addition to the lack of opportunity to commit the alleged offences at the house, the defence further submitted that B’s evidence is inconsistent in material ways with the evidence of Ms H.
The elements of the offences
Each element of an offence must be proved beyond reasonable doubt by the prosecution in order to prove the offence.
Count 1: Maintaining an Unlawful Sexual Relationship with a Child
The elements are;
1. the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
2. the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
3. the complainant was a child and under the age of 17 during the period in which the particularised unlawful sexual acts occurred;
4. the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
The fourth element is in dispute.
There was no dispute at the trial about the first, second and third elements. The accused is the father of B. The accused’s date of birth is 8 July 1969. He was an adult at the time of all the alleged unlawful sexual acts. B’s date of birth is 23 March 2003. There is no dispute B had no contact with the accused after January 2016. At the time of all the alleged unlawful sexual acts B was therefore under the age of 14 years.
I indicate now that I am satisfied the first, second and third elements of the offence are established beyond reasonable doubt.
As to the fourth element, an ‘unlawful sexual act’ is defined in s 50(12) of the Criminal Law Consolidation Act. Particulars (a), (b) and (c) are alleged to be acts of gross indecency with or in the presence of a person under 16 years and particular (d) alleges acts of unlawful sexual intercourse with a person under 14 years. As regards particular (c) there is no allegation the accused physically placed the complainant’s hand on his penis. I have not therefore considered whether those acts amount to an indecent assault.
The elements of gross indecency are that the accused committed an act, the act must be in the presence of a person under the age of 16 years, the act must be grossly indecent according to contemporary community standards and the act must be committed by the accused with a sexual purpose or intent. Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency.
The real issue is whether the prosecution has proved the accused committed the acts alleged in the particulars. I indicate now that I am satisfied beyond reasonable doubt that exposing his penis in the car, touching his penis in the car and causing or inciting B to touch his penis satisfy the elements of gross indecency. I am also satisfied the words spoken by the accused were intended to, and did, incite or cause B to touch the accused’s penis.
The elements of unlawful sexual intercourse with a person under 14 years of age which the prosecution must prove beyond reasonable doubt are that the accused had sexual intercourse with the complainant and the complainant was under 14 years at the time of the sexual intercourse. Consent is no defence to this charge. For the purpose of this trial, sexual intercourse relevantly includes penetration of a person's vagina by any part of the body of another person.
I indicate that I am also satisfied beyond reasonable doubt that the acts of sexual intercourse she describes as occurring at the house satisfy the elements of that offence.
The elements for the alternative charge are as indicated above.
Directions
The prosecution bears the onus of proving the guilt of the accused. He has the presumption of innocence in his favour. The prosecution must prove each element of each offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
If I refer to being satisfied in the course of these reasons, I mean satisfied beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, prejudice or fear.
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’ evidence. The accused called a witness. I will assess her evidence in the same way as any other witness.
The complainant gave evidence with special arrangements in place. I have not allowed the fact of these special arrangements to influence the weight that I give to the witness’s evidence and nor have I drawn any adverse inference against the accused from the fact that these arrangements were in place.
The accused exercised his right to decline to give evidence. I do not draw any inference adverse to him, or the case he puts forward, from his exercise of that right. His silence cannot be used to fill any gaps in the prosecution case. He is not required to prove anything.
A witness has given expert evidence. I note that persons who are qualified in a particular area may express an opinion. That opinion must be within their particular areas of expertise and that opinion must be based on their knowledge, training or experience. I am entitled to accept or reject any opinion evidence however, before doing so, I must consider the person’s qualifications, whether their opinion is based upon a fact I accept, whether the opinion is in dispute and whether it fits with any other evidence that I have heard and accepted on that topic.
I remind myself that if I reject any motive to lie, that does not mean that B is telling the truth. An absence of a motive to lie does not strengthen the Crown case. It is neutral. It would be wrong to conclude that because there is no apparent reason for her to lie, that her evidence must, on that account, be true. It is not for the accused to prove a motive for her to lie. At all times the prosecution bears the onus of proving its case beyond reasonable doubt.
Prior consistent statements do not bolster credibility or reliability.
The prosecution led evidence of the accused being violent toward B during sexual acts. The evidence of his aggression and violence toward B in the course of the acts of unlawful sexual intercourse at the accused’s house is relevant as part of the narrative given by B of those acts. To properly assess B’s account of what occurred during those acts it was necessary for her to give a full account of what occurred on each occasion. That evidence may also explain why she acted or responded to the accused’s actions in the way she did and why particular acts were recalled by her and/or stood out in her memory as distinct from other incidents.
The prosecution also led evidence that the accused would lose his temper with the complainant and that he berated, manipulated and/or verbally abused B in connection with and immediately before the sexual acts. Notwithstanding it is inextricably tied to the sexual acts which form the basis of the charge, I have proceeded on the basis that conduct is discreditable conduct given it was behaviour the prosecution say was intended to make B comply with his requests for sexual activity.
That evidence was led as part of the narrative of the commission of those sexual acts to enable a proper assessment of her evidence. It was also led to explain why the complainant acted in the way she did including why she agreed to perform sexual acts on, or with, the accused and why she did not complain to anyone afterwards. The accused’s knowledge of her susceptibility to being berated and/or manipulated is also relevant to why the accused may have been emboldened to act in the way he did and why he may have been confident B would not complain.[2]
[2] T393 and T394.
Those are the permissible uses of that discreditable conduct evidence.
If I accept that any of the above behaviour occurred, I have not reasoned that because he has engaged in criminal or what may be described as poor behaviour on one occasion that he is a bad person or a person of bad character and that he is therefore more likely to have behaved inappropriately or committed crimes on other occasions. Nor have I reasoned that he is the sort of person who commits crime, behaves poorly or manipulates people and is therefore more likely to have committed these sexual acts.
Prosecution case
The prosecution outlined the acts alleged to have occurred in the car the subject of particulars (a), (b) and (c) on count 1 of the Information. The prosecution further outlined the three particular incidents of unlawful sexual intercourse relied on by the prosecution as regards particular (d) and referred to the complainant’s evidence that she estimated unlawful sexual intercourse occurred at the house ‘around 10 to 15 times’ but was very clear that this was an estimate and she could not give a definitive answer as to the number of times it occurred.
The first incident she was able to describe occurred in bedroom four on a Sunday afternoon when she was wearing pyjamas. The second incident involved significant physical pain and occurred when her brother was at school and she was not sure where Ms H was. The last occasion was likely on or about 10 January 2016 on an occasion when the accused and B’s younger brother went to the markets and she remained home with Ms H. The act of unlawful sexual intercourse occurred when the accused arrived home and was angry. This was the last time that she saw the accused and it occurred at the time of her grandmother’s birthday.
It is submitted the distress shown by B when she arrived home after the ‘last incident’ can be used as evidence relevant to the complainant’s credibility. The prosecution submit I can, and should, accept B’s evidence as to the occurrence of those acts as credible and reliable. The prosecution allege the accused’s behaviour toward her explains why she acted as she did.
Notwithstanding it is acknowledged there are relevant prior inconsistent statements as to various issues including the frequency of certain events, it is submitted I should accept the explanations for those inconsistencies and also her explanations for omitting various details from some of the statements. In particular it is submitted that B was always careful to indicate she was making an estimate as regards the frequency of events rather than purporting to indicate that she recalled each and every incident.
It was further submitted that I should be careful about using the evidence of Weston given the police officer’s lack of memory as to the day, the doubt surrounding the use of the term ‘auto processing’, that the police officer’s notes may have included matters said by B’s mother and that the purpose of that meeting was not to take a detailed statement for evidentiary purposes.
Lastly, as to any inconsistencies it was submitted the passage of time since the events and her age at the time of the events and the number of occasions she is attempting to recall, may all impact the significance of any inconsistencies.
As to B’s mental health, it was submitted any medical appointments prior to 2015 were not consistent with B having suffered any particular mental health issues in the same way that she subsequently did in 2018 and 2019. It was further submitted that the diagnosis of a PTSD is consistent with B having suffered some sexual trauma and that her mental health has not been shown to impact her reliability.
When considering B’s reliability, it was submitted there are many aspects of the evidence of other witnesses which support her accuracy and reliability. Much of the timing to which she refers was accurate as were other events which occurred around that time. It was submitted Exhibit P3 supported B’s account of the sending of those messages, the content of such messages and aspects of the nature of their relationship. It was also submitted the circumstances in which the complaint was made, the person to whom it was made, and the content of the complaint all showed consistency of conduct.
Lastly, it was submitted the evidence of Ms H was implausible in material respects and I should reject it. It was submitted her memory was selective in parts and internally inconsistent in others. It was also submitted she intentionally downplayed aspects of the accused’s behaviour which must give rise to concerns about her credibility. It was submitted her evidence that she never let the children out of her sight was an exaggeration and designed to minimise the opportunity for the accused’s offending. It was submitted her evidence that she and the accused were independent did not sit with her evidence that she was always with the accused and the children at the house. It was submitted that her evidence that the accused almost always slept in the lounge and that she did not share a bedroom with him was implausible.
As to the suggestion that B became upset at Ms H speaking about the suicide of her mother’s partner, it was submitted I should find this incident did not occur. It was submitted B’s comments to the accused in the course of a phone call two weeks later in which she informed the accused that it was all his fault, can be used to rebut a suggestion that on 10 January 2016, B was distressed because of Ms H’s comments. I do not accept that submission and I have not reasoned in that way.
Even assuming B’s words can permissibly be used in that way[3] I consider B’s ambiguous words some two weeks later do not allow for that reasoning. Her words are ambiguous enough to refer to any number of issues-including his relationship with Ms H. B’s evidence was also to the effect the words were referable to more than one thing. She said she did not want to see the accused as she blamed him for leaving her mother, she blamed him for moving away and she blamed him for the sexual abuse[4]. I have not used B’s statements to support or bolster her credibility. This evidence only explains how the offending came to an end and why the messages in Exhibit P3 were then sent by the accused to B.
[3] Godden v R [2021] SASCA 102, [50].
[4] T39.
It was submitted the elements of Count 1 have been proved beyond reasonable doubt.
Defence case
Defence counsel accepted that some aspects of B’s chronology were correct. Similarly, it was not disputed the accused’s mood worsened after he lost his job and his relationships became strained. It was submitted however that the nature of the prior inconsistent statements, her mental health at the time of the alleged offending and her complaint, the lack of corroboration, the lack of opportunity and the implausibility of aspects of her account are all such that the prosecution has not proved its case beyond reasonable doubt.
Firstly, it was submitted the deterioration in the accused’s mood and behaviour potentially explains why the complainant said that she no longer wished to see her father in January 2016. It was submitted all of his relationships were strained and no one wanted contact with him. In those circumstances it was submitted B’s decision not to see her father was equally consistent with her reacting to that aspect of his behaviour rather than any sexual offending.
As to the diagnosis of PTSD, it was submitted such a diagnosis could also be explained on the basis of the accused’s aggressive behaviour toward her, the trauma of her parents separating and the suicide of her mother’s partner. It was submitted I should place no weight on the diagnosis of PTSD.
I make clear at this point that I accept the diagnosis of PTSD provides no support to the prosecution case. At best it is neutral. I accept there are other possible explanations for it. I further note that PTSD and its treatment is a specific area of expertise. I do not consider the evidence I heard is sufficient for me to draw any inference as to its origins.
As to the offending itself it was submitted every aspect of the offending alleged by B involved an allegation of such risk taking that it was inherently implausible. The alleged offending in the car was said to have occurred when other people were on the street either walking or cycling nearby. It was submitted committing acts of that type in the front seat of a car on a street as busy as the Esplanade ,would be nothing less than ‘audacious’. It was further submitted the accused would have been aware of the potential for B to complain to a teacher or a friend at school.
As to the alleged offences at the house it was submitted many of the alleged offences are said to have occurred when Ms H and/or B’s younger brother were at the house. It was submitted B’s description of the incidents in which she would continue to go into the bedroom notwithstanding she was aware it was likely her father would sexually abuse her was implausible. It was also submitted it was implausible that Ms H failed to notice the accused and B disappearing into a bedroom or that she did not see the blankets and sheets being ruffled. It was submitted that the allegation that the accused would act in such a brazen and risky way was not believable and further, it was implausible that such acts would not have been detected by another person in the house if they occurred in the manner and frequency described by B. It was also said her estimate of 10 to 15 occasions of unlawful sexual intercourse would have required those acts to have occurred over a period of 20-30 weeks given she only stayed with him once per fortnight.
There was cross-examination to the effect B had many opportunities to complain to friends, teachers, her mother, her grandparents and various doctors with whom she had contact.
The number and nature of the prior inconsistent statements and the omissions from her earlier statements were also said to be of particular significance. Additionally, her evidence as to the total number of acts in the car was said to be internally inconsistent with the estimates she gave as to the occasions in the purple car (five or 10) combined with the acts in the Kingswood (10 or 15).[5] It was submitted that the methodology used by B to calculate the number of occasions did not inspire confidence in her evidence and indicated a willingness to guess. It was also submitted that her explanations for aspects of her evidence not having been referred to in earlier statements should be rejected.
[5] T23.
It was submitted that these inconsistencies and aspects of her chronology[6] undermined both her credibility and reliability.
[6] For example, her evidence that the accused started driving the Kingswood in about July 2015 could not have been correct because the evidence was only consistent with the accused taking possession of the car in September 2015.
It was submitted I should accept the evidence of Ms H and that on her evidence there was simply no opportunity for these acts of unlawful sexual intercourse to have occurred. Her evidence as to children being fed and cared for was also in stark contrast to B’s evidence. It was submitted B’s evidence in that regard was not plausible. Some reliance was also placed on B smiling in a photograph taken at Christmas. I give this no weight. That a child may smile for a moment in time in front of a Christmas tree when a photograph is taken says nothing as to what may have occurred to that child prior to that time.
It was submitted that the allegation of violence at the same time as the unlawful sexual intercourse meant the absence of blood or other injury or evidence on the sheets was unusual. I make clear at this point I do not consider anything turns on the absence of that evidence. An act may be violent without causing bleeding and/or an injury.
As to B’s mental health it was submitted the evidence is consistent with her experiencing hallucinations at a time earlier than she stated in her evidence. It was submitted there was evidence that she had been experiencing anxiety for many years prior to the alleged offending. That she continues to see shadows when under stress and that she was seeing shadows prior to 2018 means even now her reliability is questionable.
Lastly, it was submitted the circumstances in which the allegation came to light was not unimportant. It was submitted it occurred less than three weeks after she was admitted to hospital for diagnostic assessment and clarification. It occurred in a week when she was self-harming and delusional and she had been missing school. It also occurred in circumstances in which her mother stated she was having a tantrum because she was not getting what she wanted. That she subsequently got what she wanted after the complaint suggests the complaint occurred at a time when she was both mentally unwell and had a motive to manipulate her mother.
Discussion
Forensic disadvantage
The witnesses were recalling events alleged to have occurred some seven years earlier. As I will indicate I consider the evidence as to the timing of certain events in 2015 to be uncertain. I also consider it is very difficult to remember what occurred on every alternate weekend for a period of five months some six years ago. That passage of time has resulted in some forensic disadvantage to the accused. The forensic disadvantage may have adversely impacted the accused’s ability to instruct his counsel, the ability of Ms H to recall specific days during that period, the ability of the accused to obtain more evidence from Weston as to her meeting with B in May 2019 and the ability of the accused to further test aspects of B’s evidence. I have taken that disadvantage into account when considering whether the prosecution has proved its case beyond reasonable doubt and also when carefully scrutinising the evidence of B.
Cumulative effect of issues raised by defence
I have considered the cumulative effect of the issues identified with B’s evidence when considering whether the prosecution has proved its case beyond reasonable doubt. In my reasoning process I have not compartmentalised each issue notwithstanding my written reasons have dealt with various issues separately. I have considered the criticisms or issues as regards credibility and reliability as a whole when considering the impact one issue may have on another. The prosecution must prove beyond reasonable doubt that B is credible and reliable as to the acts which are said to satisfy the elements of the offence.
Dr Maier
Dr Maier has been a registered medical practitioner since 1995 and a General Practitioner since 1996. She has a Bachelor of Medicine and Surgery, a Graduate Diploma in Child Health and has completed Focus Psychological Strategies Skills Training.
Psychological skills training provides counselling skills and training as to when to refer a patient to a psychologist or psychiatrist. It permits a GP to claim Medicare benefits for the type of work also performed by psychologists. Dr Maier obtained this qualification in 2020.[7] She also has experience in Cognitive Behavioural Therapy and is qualified to prescribe medications for mental health.[8] She is familiar with the effects of antipsychotics and antidepressants.[9]
[7] T274.
[8] Cognitive behavioural therapy is an approach to addressing mental and physical health issues which involves helping the patient to get an understanding of the nature of their problem, where their reactions are coming from and how to manage them in a way to support their wellbeing, T275.
[9] T276.
Dr Maier first consulted with B in December 2013. She then saw her in early 2014, April 2016, December 2016 and then not until June 2018. In June 2018, B presented with anxiety and panic attacks. Her anxiety was in the extremely severe range and her depression was in the moderate range. Dr Maier was not aware of B experiencing these levels of anxiety or depression prior to June 2018.
In July 2018, Dr Maier referred B to a general paediatrician as regards the need for medication in light of her anxiety and some obsessive type behaviours. Between June 2018 and March 2019, B’s mental health deteriorated despite being referred to a psychologist, psychiatrist and paediatrician.[10] She missed school and during that period presented with symptoms consistent with hyperarousal. B felt threatened and described symptoms of dissociative and hallucinatory experiences.[11]
[10] T279.
[11] T279.
Dissociation is a sense that one is detached from reality. It describes a feeling of unreality which can take two main forms. It can take the form of depersonalisation in that the patient’s body doesn’t feel real and it is as if the patient is observing themself from a different perspective. It can also take the form of derealisation wherein everything feels dreamlike, and the patient has an ‘inner mental fog’.
Dissociative episodes can be brought on by a trigger such as trauma.[12]
[12] T282.
In October 2018, B described a sense of having three people around her. She described one as a tall male who said kind things to her, one as a short male who was accusatory and told her she was hopeless, and one as a woman who she felt was present when she tried to do her schoolwork. She also felt there was a cat present in her room which was comforting to her.[13] Dr Maier stated B understood they were part of her reality but that they were not part of anyone else’s reality.
[13] T280.
Dr Maier also observed B in a distressed state. During some consultations B would scratch at her skin and be restless and agitated. However, B was always able to be ‘reality checked’. B responded to calm, soothing, empathic communication and over the course of the consultation B was able to calm down.[14]
[14] T282.
Dr Maier distinguished dissociation from psychosis. Whilst a psychotic disorder may include hallucinatory experiences[15], a psychotic disorder requires that any perceptual distortion be held with a delusional belief. A delusional belief being one where the person does not accept his/her experiences are not part of another person’s external reality. A delusion is an altered perception of reality that is held so rigidly that the individual believing it cannot accept any alternate perception of reality.[16]
[15] A person has a hallucination when they feel, taste, or see things that aren’t real, T311.
[16] T312
Dr Maier stated B displayed none of those features and always understood these things were in her mind. Dr Maier stated B was ‘quite clear about what was real and what was a perception’.[17] B also acknowledged that what she was perceiving was not necessarily an external reality that was also perceived by other people.
[17] T280.
On 23 March 2019, B was admitted to the Women’s and Children’s for a planned admission to evaluate her condition.[18] As a result of this admission B was diagnosed with complex post-traumatic stress disorder (PTSD) and an evolving Borderline Personality Disorder (BPD). Evolving BPD is diagnosed because during adolescence, practitioners are hesitant to diagnose a BPD as it is a time of significant emotional and/or physical change. The diagnosis therefore means the person is presenting with symptoms that could evolve into a BPD.[19]
[18] T279.
[19] T283.
There can be overlap between complex PTSD and BPD. Complex PTSD is a condition which is often seen in individuals who have experienced significant developmental trauma as part of their childhood and/or adolescence. People have a sense of being under threat, they are often unable to manage the normal tasks of people their age and they have a profoundly negative self-concept.
Those with complex PTSD will present with somatic (physical) symptoms. The frequent urination B exhibited is an example of such a physical manifestation. The distinctions between simple PTSD and complex PTSD include that the trauma symptoms associated with the profoundly negative self-concept are very difficult to shift therapeutically and also difficulties managing interpersonal relationships.[20]
[20] T286.
To her knowledge B was not subsequently diagnosed with a BPD and she further stated there was no diagnosis of a primary psychotic illness.
Dr Maier accepted psychosis was not her area of expertise however, in the course of her practice, she has seen and treated people with psychotic illnesses. She knows that those suffering from a psychosis are unable to distinguish between what is real and what is not, they have disorganisation of behaviour and speech, they have flattened mood, difficulty making decisions, and very little desire or motivation. Dr Maier did not see B experiencing any of these symptoms.[21]
[21] T287.
Dr Maier outlined the medication prescribed to B in 2018. I accept that the medication is consistent with B’s levels of distress, anxiety and depression being particularly severe. Notwithstanding some of the medication included anti-psychotic medication, this was prescribed to assist the antidepressant medication.[22]
[22] T289.
From the middle of 2019 to the end of 2019 the perceptual disturbances settled and she ceased self-harming. She did however continue to engage in restricting and purging practices with eating.[23] Over the course of 2020 her demeanour improved but her eating disorder continued to decline. There were no reports of psychotic episodes.[24]
[23] T290.
[24] T291.
B’s physical condition over the last six to 12 months has been stable. Her mental health issues remain a significant challenge for her with features of the complex PTSD being a part of her everyday life. She still suffers a sense of ongoing threat. She does not work or study.[25]
[25] T292.
Dr Maier stated to her knowledge the symptoms of PTSD are not known to impact a person’s ability to recall memories.[26]
[26] T297.
In cross-examination, Dr Maier confirmed B saw multiple different doctors over a period of time at the Medical Centre. Between 2009 and 2019 B saw staff for numerous complaints including sleep issues/separation anxiety in 2009, a mental health plan in 2011, headaches in 2011 and throughout September, October and November 2015 she received treatment of a wart.[27] Her attendances at the Women’s and Children’s Hospital Emergency Department in November 2018 and January and March 2019 and the diagnoses were also canvassed.[28] Notwithstanding the notes were not tendered and Dr Maier was not present, I proceed on the basis these dates and the diagnoses referred to are correct.
[27] T300, T316.
[28] T300-305; B attended with the following symptoms and received the following diagnoses; hopelessness themes on a background of aggression and multiple voices(November 2018); delusional, agitation, medication not helping, superficial lacerations on left forearm (November 2018); anxiety most likely due to commencement of new SSRI (fluvoxamine)(November 2018); review by Dr Bakhitiarian confirms similar symptoms as prior admission; suspected that B has post-traumatic stress disorder with a background of borderline personality disorder (January 2019); for diagnostic clarification about B’s symptoms (March 2019).
Dr Maier agreed an event such as a suicide can be traumatic for a child around 11 years old.[29]
[29] T309.
She confirmed that when distressed B was restless and scratching herself and B said she felt as if bugs were under her skin. Dr Maier indicated however that B understood that there were not.[30]
[30] T310.
Dr Maier accepted that if B was convinced Beethoven stole symphonies from her, then this would appear to be a delusion rather than dissociation.[31]
[31] T311-312.
She said that if B was seeing shadows before 2015, it would not affect Dr Maier’s opinion or diagnosis and she would see it as a reflection of the emotional distress that she was experiencing.[32] Additionally, B’s anxiety when aged six may be connected to her later mental health. Separation anxiety and disorders of anxiety in childhood may provide ‘an anxious blueprint’ and can certainly increase the likelihood of anxiety and other disorders across a lifetime. Dr Maier however stated that it is rare to see B’s constellation of symptoms in people who have not experienced significant and profound trauma across and in their life.[33]
[32] T313.
[33] T314.
Finally, as regards PTSD, Dr Maier stated that whilst sexual trauma is not uncommon in those with complex PTSD it is not essential for the diagnosis.[34] The type of trauma which may trigger PTSD is varied and there is no rule as regards when symptoms may become apparent after the trauma. There is frequently a prolonged period of time before the symptoms declare themselves.[35]
[34] T318.
[35] T318.
Dr Maier stated she has significant experience with people who experience complex PTSD or similar disorders however she does not have a thorough working knowledge of the literature around the reliability of memory. All she can say is that in her experience she has not seen evidence that the memories of those she has treated are unreliable.[36]
[36] T318.
In re-examination she said that she would explore with the patient the rigidity of any stated belief. She stated that what may appear on its face to be a delusion may not necessarily be so. She stated that her uniform experience with B’s altered perceptions was that upon exploration the rigidity of her adherence to the belief in the altered perception was not as strong as B said it was.[37]
S (the complainant’s mother)
[37] T315.
S confirmed that after their separation in 2010 the accused moved to Queensland in about April 2012 and then returned in approximately September of that year. She stated the accused moved in with his parents in Paralowie but was unable to recall whether he stayed there until late 2013 or early 2014.
She confirmed that the accused would look after B and her younger brother every other weekend and he would return the children on Sunday afternoon around four or five o’clock. She believes the accused moved to an Ashford address in ‘around September 2015’[38] because he lost his employment in September 2015. She confirmed she had an arrangement with the accused whereby he would pick up B and drive her to school. B’s school was ‘about an eight minute drive’ from their home. She stated the accused would arrive at about 8.00am right up until the end of the 2015 school year.[39] She said the accused would sometimes come into the house and he would stand and wait for B to finish getting ready. She did not recall the accused’s arrival time changing in any way.
[38] T172.
[39] T176.
S described the accused having a purple Commodore prior to him driving the orange Kingswood.[40] She said the Kingswood was the last car the accused drove when taking B to school. I note S makes no reference to any other car being used by the accused.[41] This is, I consider, significant when considering the evidence of Ms H.
[40] T177.
[41] T177.
In cross-examination S stated the school was a 10 to 15 minute drive from her house. As to the start time she agreed it was somewhere between 8.25am and 8.35am or 8.40am. She was estimating based on current starting times and her memory. She agreed the accused would arrive a little bit before 8.00am, come inside, say hello to B’s brother and then they would go.
She recalls him driving a Kingswood in late 2015 but she cannot recall when he started driving that vehicle. She believes the vehicle prior to the old Kingswood was a dark purple Holden Commodore which his employment provided.[42] She confirms the Kingswood in Exhibit P5 is the car that the accused was using at the end of 2015.
[42] T177.
During 2014 and 2015 B would have an extra day at the end of the school holidays, which she would spend with the accused.[43] I note this evidence has particular relevance to the content of the text messages sent by the accused to B in January and recorded in Exhibit P3.
[43] T181.
As to the history of the accused’s relationship with B, S stated that after the separation B was initially ‘a bit cold’ toward him; likely as a result that she was aware the accused had left the family to start a relationship with another woman. She said however that by the time the accused was living in Black Forest before he moved to Ashford, the accused and B appeared to get along and be happy together.[44]
[44] T186.
She confirmed that B received the text messages from the accused in Exhibit P3 on Monday 1 February 2016. Prior to the text messages S referred to three incidents.
One related to the last time B stayed at the accused’s house in either December 2015 or January 2016. One related to a telephone conversation and an iPad and one related to the last telephone conversation between the accused and B on 26 January 2016.[45]
[45] T190.
S stated that on 10 January 2016, B and her brother arrived home at about 3.00pm and B was visibly upset and teary. It was the day they planned to celebrate B’s grandmother’s birthday. S believed this incident occurred before the two telephone conversations.
Prior to the last telephone conversation there was also an occasion on which her son left an iPad at the accused’s house and S asked if she could pick it up. This then resulted in a ‘flurry of abusive responses’ to the effect that the accused knew the children only wanted him for what he could provide, that he was not sure if he (the accused) was well enough to see the children anymore, that he was upset, that he needed them and he wanted them to tell him that they loved him and that’s all that he was ever asking for.[46] Ultimately the accused stated that he did not want the children on alternate weekends because he did not feel well enough.[47]
[46] T190.
[47] T191.
I also note in this regard that S noticed changes to the accused’s behaviour from about September 2015, as regards him being aggressive. This occurred around the time he stopped working.
Subsequent to 10 January 2016, S contacted the accused by telephone on 26 January to allow the children to inform the accused that they did not want to see him. The phone call occurred because the accused had threatened to simply turn up at school to see them. S could not hear what the accused was saying. She did however, hear B yelling and accusing the accused. B was saying ‘don’t you get it, it’s all your fault, this is all your fault.’ This was the last thing B said and she then threw the phone down.
To S’s knowledge B did not speak with the accused after 26 January. The accused continued to try to speak with B however she refused until she finally indicated that she would see the accused but only at the police station. The accused refused to meet her there and they never met.
Complaint evidence
I have outlined this when dealing with B’s evidence of complaint.
Mental health
As to B’s mental health, S stated that from about 2018 she started to notice a change in B. B started to self-harm. She noted a particular cut on her hand about one week prior to the initial complaint. From about the middle of 2018 B engaged in hair pulling and also suffered an eating disorder. S stated B also started having dissociative episodes where she did not appear to know what was happening. B would say that someone was going to hurt her or that she was somebody else.[48] She was unsure whether those episodes occurred before or after the disclosure in April 2019.
[48] T202.
In cross-examination, S referred to particular occasions including B patting an empty toilet roll as if it were her pet, B saying she believed she was Jesus reincarnated, and that B thought she had bugs in her skin.[49] On another occasion S stated she saw B outside eating grass. She confirmed that throughout 2019 and 2020 her schooling was seriously impacted and at times B was unable to function although after she started therapy her health began to improve. Over the last 12 to 18 months S had not observed any evidence of dissociation.
[49] T204.
S was also cross-examined as to B’s history of attending at doctors from about 2009. The import of the cross-examination of those previous attendances was to suggest B had been suffering from mental health issues well before the alleged offending and well before 2018 when her mental health deteriorated. S confirmed a mental health plan was devised in 2011. S confirmed that B had experienced some separation anxiety when away from her but did not recall any specific issues of anxiety other than B becoming distressed at a school camp when she was in Year 5 in 2012. Whilst she could not specifically recall raising issues of anxiety at school, she agreed that the fact B was given some breathing exercises would be consistent with B’s anxiety being raised in 2011. Whilst S did not recall speaking with a doctor after the separation, she stated she was proactive in making sure both children were ‘okay’ and properly cared for.
S agreed that by June 2018, B was experiencing lethargy, exhaustion and that she appeared to be overwhelmed by school.
S was also cross-examined to the effect the anti-psychotic medication did assist B in 2019.[50] No direct submission was made to the effect this may suggest that B’s illness included a ‘primary psychotic illness’[51], however I indicate I do not consider such an inference is open on the evidence. Such an inference is inconsistent with the evidence of Dr Maier and with the evidence of B’s subsequent treatment and ongoing symptoms.
[50] T230.
[51] T286.
S confirmed that after her separation from the accused she began a relationship with another person in about 2012. That person committed suicide in 2014. She believes she took both children to see someone to check up on them.[52]
[52] T222.
Evaluation
I am satisfied S was at all times doing her best to recollect events and that she was attempting to honestly recount the events. She did not appear to attempt to downplay any aspect of B’s behaviour and showed a willingness to refer to matters which could potentially undermine B. It was not suggested that she was lying and in any event I accept she was not. I also consider she was a generally reliable historian. Her evidence largely corresponded to the time frames referred to by B and the agreed facts. That she was unable to recall every detail also confirms that after seven years even an adult witness may not have a perfect recollection of the exact timing of a particular event.
Ms H
Ms H met the accused in about October 2014. She moved into the Syme Street, Ashford address around July 2015. The accused maintained his own residence, but he also stayed at the Ashford address. She confirmed the accused had alternate weekend access. She did not give a specific date when the accused moved into Syme Street permanently however she and the accused took it ‘slowly’ and therefore he maintained his other residence. I do however note that the bond papers which were tendered as a business record indicate that both the accused and Ms H were listed as the tenants from 24 July 2015.
As to the amount of time Ms H spent with the children when they visited, she initially stated that ‘when I was invited to be there…I made an effort to be there’. I understood her answer to mean that she was not with the accused and the children for the whole time they were at the house. I consider that impression was then confirmed by her subsequent evidence when asked what she meant by being ‘invited’ and she stated ‘well, it’s his family’ and her answer to the effect she took seriously that it was the accused’s time with his children.[53]
[53] T324.
She stated she cooked for the children every Saturday night; there would be a main meal and often a dessert. Neither B nor her brother complained to her about not being fed and both were permitted to help themselves to food.[54] She recalled going with the accused and the children on day excursions.
[54] T325.
As to the plan of the house, she indicated bedroom one was her bedroom, bedroom four was a painting and work room, bedroom two was used as a storage room with furniture stored in there and bedroom three had two children’s beds in it.
She stated she slept in bedroom one which had a king size bed which she made every morning. There were four pillows and two European pillows on top of the bed. She stated she would notice if there had been any disturbance to the bed and preferred that people not go into her bedroom. The complainant and her brother used bedroom three however they would often sleep with their father in the kitchen area. She said the accused did not sleep in her bedroom when the children were visiting and she did not see either of the children go into her room. She stated the accused would sleep in her bedroom when she invited him to do so but most of the time he slept in the kitchen area in his swag.[55] She stated there was no bed in bedroom four.
[55] T328.
She stated the accused left the house between 7.50am and 8.00am during the week to collect B for school. Due to a traffic violation on 8 December 2015 she did not believe the accused used the car after that time to pick up B.
During this time frame, the accused helped her from time to time, however he made it clear to her that he was in no position to be relied upon.[56]
[56] T334.
Exhibit D12 is a photograph taken around Christmas 2015.
She said she considered the accused to be ‘very sensitive to his daughter’, he always listened to his children and had a good relationship with them. Her impression was that B would have preferred that Ms H not be present so she could have her father to herself.[57] Her impression was that B enjoyed her time with the accused and was very protective of that time.
[57] T335.
During the periods B stayed with them, she did not see B upset however she found B’s behaviour to be ‘a bit challenging and rude’.
She indicated she did not like the dynamic between the accused and the complainant’s mother. She thought there were ‘blockages’ which upset the accused and frustrated him.
As regards the orange Kingswood she believed she purchased it in September 2015. She said the accused drove the Kingswood ‘from time to time’. She stated he had access to his vehicles from work when he was living at Syme Street. She recalled the accused having a steel blue Holden Commodore, a very dark green Holden Commodore and a purple Commodore. She could not recall the order in which he possessed the cars. She stated the accused did not use the Kingswood ‘often’.[58] She believed his children were a bit embarrassed by it and B, in particular did not like the car.
[58] T332.
She said that at the time she had the Kingswood she also had a white Holden Equipe. She drove the white car as it was more reliable. She believes she bought the white car after the Kingswood. She believed she had the Equipe prior to 8 December 2015 but she could not be sure.
She was not able to indicate when the accused lost his job in 2015. She stated he was permitted to continue to drive the work vehicle after he stopped working.
Notwithstanding the accused did not purchase another car after the car was returned to his previous employer and notwithstanding she was unsure when the white Holden Equipe was purchased she suggested the accused did not often use the Kingswood to pick up B.
I consider the effect of her evidence is that she did not drive the Kingswood very often, that she frequently worked at home and there would have been no impediment to the accused using the Kingswood every morning. She also purchased another car at some point and had that available to her. There was no suggestion she needed the Kingswood in the morning and no reason proffered as to why he would not have used it every morning.
I consider that the evidence is entirely consistent with the accused using the Kingswood on a daily basis as alleged by the complainant and there were significant opportunities for him to have offended in the Kingswood as alleged by B. That the accused used the Kingswood daily is also not inconsistent with the evidence of S.[59]
[59] S did not suggest that the accused was driving any other vehicle other than the purple Holden and then the Kingswood.
I consider Ms H’s evidence as to the use of the cars is significant. I do not accept her evidence that the accused did not use the Kingwood often. I consider this was an attempt to downplay the opportunity for the accused to offend or a reflection of the manner in which her memory is coloured by her impressions of the time and a general inability to recall specifics from that time.
In cross-examination she confirmed the accused kept his residence at Black Forest for the whole period of the lease. She confirmed he moved in with her shortly after she moved in. Whilst he kept clothes at his house he slept at her house. She thought the children started going to the Ashford address around September.[60]
[60] T347.
She stated the accused resigned from his employment because he had a workplace injury. This was information provided by the accused to her. The accused informed her that around February 2015, gunshots had been fired into his office. She said this incident distressed him very much and ‘it affected him, definitely it affected his mental health’.[61] She further confirmed the accused told her that he was in ‘no position to help her’.
[61] T359.
From the whole of the circumstances including the deterioration in aspects of his behaviour, I infer those comments to Ms H were a reference to the accused not feeling mentally well enough to assist her.
She stressed a number of times that they were both independent and whilst they spent time together at the house it very much depended on the day. I do note that attempting to recollect daily activities over a period of five months, some six years later is virtually impossible.
She initially stated bedroom four was not meant for her family and that was to be used by the accused’s family however she then immediately corrected that by saying that bedroom four was for her use and was the one she thought her children would use.[62] She said no one slept in bedroom four for the time she was there. She confirmed there was a fold-out bed but was not sure where it was kept.
[62] T365.
She indicated she took the invitation to spend time with the accused and the children seriously and she made sure to set aside the time to be there. She stressed that she remained with them when she was invited to do so. I note that in re-examination she stated she could not be sure when she was invited to spend time with the children but she thought it was ‘around September’. When asked in cross-examination whether she allowed the accused to have alone time she stated ‘I would hang around all the time, we did a lot of living in that kitchen area…’[63]
[63] T369.
I do not consider this evidence was consistent with the evidence she gave in examination in chief or the clear impression she gave that there were times that she was not with them. Nor do I consider she would accurately recall, six years later, whether she spent every moment of every weekend with the children and the accused. I am not critical of a witness for not being able to recall events with such precision however that she purported to be so certain is not in my view believable.
When specifically asked whether there were times the accused spent time alone with the children I consider her answers were an attempt to maximise the time she spent with the accused and minimise the opportunity for any offending.[64] I do not consider her evidence to the effect that she was with them ‘every waking moment’ until she went to sleep[65] to be believable or reliable. She also went as far as to disagree that there were times when she did not have eyes on everything for every moment when the children were over. I consider this answer to have been fanciful.[66] I do not accept her evidence that she was home with the accused and the children at all times.
[64] T369.
[65] T371.
[66] T373.16.
I accept there were therefore occasions, as would be expected, when the accused was home alone with his children
Ms H believes she recalls the last time B was at the house but acknowledged she may be wrong as it was a long time ago. She had previously arranged with the accused to take B to the markets to meet up with the accused and his son but she was speaking with B and she thought they were communicating well and having a good conversation. In the course of the conversation however, Ms H said something to B which upset B. She asked B about her mother’s partner’s suicide. B then ‘clammed up’ and Ms H changed the subject. They did not end up going to the markets to meet up with the accused. The accused and his son came home although she cannot be sure of the time. She thinks they may have got home between 1.30pm and 2.00pm but she cannot be sure. Whilst they did not have an argument, she and the accused ‘had a few words’[67] on the driveway.
[67] T340.
Ms H felt responsible for raising the topic with B and she said it was a mistake because it upset B very much and she believed this was the last time she saw the children.
After the incident on the driveway Ms H said B came out and demanded to know what was wrong. Ms H then went into her bedroom and took some deep breaths. The effect of her evidence was that immediately upon leaving the bedroom she helped the children to get their bags into the car. She does not recall whether she accompanied them to drop them off. That she does not recall whether she accompanied them simply confirms that even traumatic or significant incidents do not give rise to perfect recall by a witness as to every action or part of an event.[68]
[68] T340.
She remained in the bedroom for a few minutes and as soon as she left the room after composing herself the children left the house. She confirmed that she felt an element of responsibility for what happened given this was the last time she saw them.
Ms H said on a number of occasions that she felt that she had ‘crossed the line’ by raising the issue of S’s partner’s suicide.[69] My impression was that this evidence was genuine. As to the final day that she saw B, she confirmed in cross-examination the effect of her examination in chief and although she accepted in cross-examination that the accused was upset with her for not going to the markets and that he used an angry hushed tone I consider Ms H was at pains to downplay the degree to which the accused was angry and upset. Her evidence that the accused ‘was confused’ rather than angry was, I consider, an example of her downplaying the true behaviour of the accused. The very fact she stated she needed to go into her bedroom to take some breaths and compose herself is only consistent in my view with the nature of the exchange being more consistent with B’s account of what happened when the accused returned home.
[69] T375.
I also found her evidence that she specifically recalled the children’s bags being packed and ready to be unconvincing. I note aspects of this evidence were suggestive of reconstruction on her part. I note in particular her use of the expression ‘I would have gone into their room and made sure everything was out of there and made sure that they had all their possessions.’[70] (my underlining)
[70] T378.
I will deal with my findings as regards the disputes between the evidence of B and Ms H as to 10 January 2016 and also as to the use of various bedrooms and sleeping arrangements later in these reasons. I do so having regard to the concerns I have already raised as regards the reliability and credibility of Ms H.
Chronology
The following chronology outlines the timeline of events which are not in dispute or which I am, in any event, satisfied about:
i.23 March 2003; Date of birth of B;
ii.Around July 2010; Accused and B’s mother separate. B and her younger brother H, remain living with their mother;
iii.2011; B attends the SAHS – CAHMS Clinic at Marion in June and October. In June B attends with the accused and her mother. In October B attends with her mother. In July the accused and the complainant’s mother attend without B. The topics discussed are ‘problems at school, making friends, being bullied, her parent’s separation, peer relationship problems and anxiety’;[71]
[71] See Statement of Agreed Facts.
iv.April 2011; mental health care plan arranged by local medical centre in light of issues at school and anxiousness;[72]
[72] T299.
v.2012; B attends the SAHS – CAHMS Clinic at Marion in June and July with her mother. In July 2012 her mother also attends alone. The topics discussed are ‘separation anxiety and managing B’s sensitivity and other family relationships’;[73]
[73] See Statement of Agreed Facts.
vi.April 2012; Accused moves to Queensland;
vii.October- November 2012; The accused returns from Queensland and begins fortnightly access with children over the weekend;
viii.February 2014; B commences Year 6 at a school in Hove. The accused commences driving her to school. The accused picks up B from her home and drops her at the school;
ix.2014; The partner of B’s mother commits suicide;
x.17 July 2015; Accused and Ms H lodge bond as tenants for a residential tenancy at 1 Syme Street, Ashford;[74]
[74] Exhibit P9.
xi.July 2015; end of July school holidays;[75]
[75] T72.
xii.Second half of 2015;[76] The accused loses his employment. The accused is driving a purple Commodore and continues to drive it for some period after he loses his employment;[77] The accused starts residing at Ashford;
[76] For reasons I will outline shortly I do not consider there is any certainty as to the precise timing of these events.
[77] T352.
xiii.September 2015; A red/orange Holden Kingswood Reg SMJ 458 is acquired and registered to Ms H;[78]
[78] Exhibit P8 and evidence of O’Driscoll.
xiv.September, October, November 2015; numerous attendances by complainant at local medical centre for treatment of a medical complaint;
xv.8 December 2015; the accused is driving the Holden Kingswood Reg SMJ 458 and receives a traffic infringement notice;
xvi.10 January 2016; last occasion B and brother stay with the accused at Ashford;
xvii.26 January 2016; phone call between accused and complainant;
xviii.31 January 2016; text sent from accused to B;[79]
xix.1 February 2016; text sent from accused to B;[80]
xx.June 2018; complainant presents at medical centre with anxiety and panic attacks;
xxi.January 2019 diagnosis of complex PTSD;[81]
xxii.23 March 2019; complainant admitted to hospital to evaluate and diagnose B’s condition;
xxiii.April 2019; B’s initial complaint is made to her mother.
Evidence of complainant (B)
[79] Exhibit P3.
[80] Exhibit P3.
[81] T308.
Offending in the cars
After the complainant’s mother and the accused separated in 2010, she remained living with her mother and her younger brother (H). B gave details as to where her father lived after the separation including moving to Queensland. I note she was able to give a coherent account of her father’s movements including the general addresses at which he lived, the time frames in which he moved and the cars he was driving. I note this aspect of her evidence was not challenged and was in a number of respects supported by S. Whilst I do not consider her ability to recall these particular events makes her a generally reliable historian, I note that to the extent there is a submission that it should be inferred her mental health issues impact the reliability of her memory, this aspect of her evidence does not support such an inference.
B stated her father drove her to school when she started at a new school in Year 6 in 2014. She assumed it was a Holden Commodore of sorts as he was provided with such a car by his employer. She was unable to recall the colour of each car he had over the period of 18 months however she remembered the last car was purple in colour.[82]
[82] T14.
The accused took B to school almost every day. She stated school began at 8.45am and that she would normally arrive about 8.30am. Initially, her father picked her up at about 8.10am but he started picking her up earlier when he was sexually abusing her in the car. She said this was ‘definitely’ by August 2015.[83] Sometimes he would be there as early as 7.50am.
[83] T16.
The Esplanade was approximately two to three minutes from the school. When they commenced parking the accused was driving the purple Commodore. The effect of B’s evidence is that they commenced parking at the Esplanade and they would sit in the car or they would go for a brief walk or she would read. The accused parked in either the parallel parking or in the angle parking on the Esplanade. He did not park in side streets. I note she appears to suggest they began parking on the Esplanade because it was too early for her to be dropped at school and it was in that context that the abuse began.[84]
[84] T16.
B stated the accused began touching his genitals through his trousers and asking her to look at what he was doing. This happened on one occasion in the purple Commodore. She believed it ended as it was time to go to school or perhaps because she said she wanted to go to school. Subsequent incidents then occurred wherein the accused unzipped his pants, removed his penis and began masturbating with his hand. She stated this escalated to him wanting her to touch his penis. She stated the accused asked her to ‘help him’. He removed his penis through the fly. His trousers were ‘still on or not lowered very far at all’.[85] She stated she tried to distract herself.
[85] T20.
The accused would say ‘can you help me, you know that you love me, please it will just be quick, there is nothing wrong with this’. She also indicated that in the course of asking her to touch his penis he would also tell her she was ‘worthless’, that she had ‘no friends’ and that ‘this is why no one likes me and this is why I often make him angry’.
She said that as a result of what he was saying she began to do as he asked. She stated ‘I would say I was successfully able to not do as he asked the first encounter then every time after that I agreed’. She stated she rubbed his penis as he requested and as he demonstrated for her. She stated the berating only occurred at the beginning. Once the offending commenced they would effectively pull into a parking space, the accused would remove his penis and tell B what he would like done and she would comply.
She stated the occasions on which he asked her to ‘service him’ would be ‘upwards of 20 I would assume’. The manner in which she gave her evidence in chief did not appear to me to be a definitive answer as to the number of times and the words she used clearly acknowledged that there was an element of guesswork in her answer.
B further indicated these incidents also occurred in the Kingswood. As to the number of times she stated, ‘I would say it maybe only happened five or ten times in the purple Commodore then probably, like 10 or 15 in the Kingswood.’ Again, I note her evidence did not purport to provide definitive numbers and her evidence was given in a manner which I consider was both careful and acknowledged her uncertainty as to the number of times.[86]
[86] T23.
In no sense do I consider B was purporting to indicate she recalled every incident or that her evidence was an attempt to be precise. She confirmed as much in cross-examination when she said remembering every incident would be ‘impossible’. She believed each incident occurred for between five and 10 minutes.[87] She believed that something happened on every occasion they went to the Esplanade. She also stated that occasionally people were in cars parked close by and people were walking along the Esplanade when the offending occurred.[88]
[87] T22.
[88] T24.
She stated the accused purchased an orange Holden Kingswood and she remembered it ‘to be about July of 2015’.[89] I accept the evidence is to the effect the Kingswood was purchased or acquired by the accused in or around September 2015 and not July. This does not in my view undermine in any material sense B’s reliability.
[89] T15.
The reason she stated the offending in the car commenced in July 2015 was ‘the weather and the fact she was in a winter school uniform’ She also believed that it was ‘around the time’ that the accused stopped working.[90]Her subsequent evidence in cross-examination was that she believed he stopped working earlier than September; ‘I would say closer to August.’[91] Her recollection was also that within a month of the accused no longer working then he began driving the Kingswood[92].
[90] T15.
[91] T60.
[92] T60.
When considered in its entirety her evidence was not purporting to identify July, after school holidays, as the month he offended in that car. Firstly, she did not purport to identify July as the exact month and secondly the reasons she chose July were equally applicable to August and September. I further note there is no definitive date for when the accused stopped working. Ms H did not know and any questions asked by counsel are not evidence. B also said she believed he started using the Kingswood within a month of stopping work.
She stated the incidents in the car came to an end ‘once he began to rape me in his home’. She stated that she ‘would estimate September 2015’ as the time he offended against her at his home. Again, her evidence did not purport to be too precise in this regard.
There is no dispute the accused used a purple commodore, there is no dispute he lost his job after July 2015, there is no dispute the accused continued to drive the purple commodore after he lost his job, there is no dispute he had access to the orange Kingswood from September and there is no dispute he was living in the house at Ashford by September. I therefore consider B’s evidence was in fact reliable as regards the timing and sequence of events.
Offending at the house
B said that when her father and Ms H first moved into the house, the accused slept in bedroom 4. She said that Ms H slept in bedroom 1 but by the end of their stay, which I take to mean January 2016, the accused was sharing a bedroom with Ms H. I note this evidence can only reflect what B saw on the weekends as she could not know what occurred during the week. B also qualified this evidence by indicating she relied on what was said to her by the accused and Ms H.
B stated bedroom 4 had a bed in which the accused and her brother would sleep and she slept on the floor or occasionally on a fold out bed. I note there is no dispute that there was a fold out bed in the house. B and her brother moved to bedroom 3 but only slept in it maybe three times. She thinks that move occurred around November 2015. This is also when she said the accused was sleeping in bedroom 1.
B stated that at the unit her father moved into in February 2014 he slept in the main bed with her brother and she slept on the floor. I note this may be an explanation for why she has recalled this also occurring at the Ashford address. B stated her sleeping on the floor happened for ‘a short while’ at Ashford.[93]
[93] T95.
As to whether the accused moved into bedroom one she agreed in cross-examination that she relied on the accused having told her that they slept together and that Ms H had told her that they had slept in the same bedroom.
When she and her brother moved into bedroom three she stated the accused did not sleep in bedroom one as he would stay up all night. When he stayed up all night he would remain in the family room. To her recollection she only slept with her brother in the kitchen living area on maybe two occasions.[94]
[94] T57.
Activities in the house
She agreed there were some daily activities but they were infrequent. She agreed Ms H would be at the house on the weekends and she stated meals were made albeit inconsistently.
She stated there was never food in the house[95]. She said there may be biscuits or chocolate but the children were not allowed to touch them. She stated she told her mother they were not being fed. S did not confirm this. Whilst I accept this was her impression, I do not accept it reflects what occurred.
[95] T92.
She stated there was no particular routine at the house. That they would put themselves to bed and she stated if she was going somewhere she would get dressed otherwise she would stay in her pyjamas.
First incident
B described the first time the accused raped her. B assumed Ms H was in the kitchen or perhaps outside. Her answer therefore does not categorically indicate Ms H was home although her evidence does allow for that possibility.
She stated neither she nor her brother had been fed for the entire weekend and when she asked for something to eat, the accused told her she was gluttonous and selfish. The accused then went to his room and she followed him to see what was wrong. She stated that this occurred in bedroom 4. When she entered the bedroom he was laying on the bed and he asked her to get into bed with him. The accused was naked under the covers. The accused pulled her pants and underwear down with one hand and held her wrists with the other. He turned her around so that she was facing him. He then penetrated her vagina with his penis. B said she was crying and he was telling her that it was okay and that she loved him and that it would be over soon.[96] She stated he ejaculated and upon finishing and told her to collect her belongings so she could be taken home. She stated she knew he ejaculated because his reaction was different and because it felt different inside her body. She described there being ‘a lot of liquid’. She stated it felt like a very long time however, it was probably no more than 10 minutes.
[96] T26.
B stated the first incident was different in that the accused would not ordinarily remove himself from an argument. She stated he would just keep yelling until she apologised. B stated the accused made her feel as if it was always her fault and that she had to be the one to appease him because ‘I’ was the one who was responsible for how he felt. She stated that she was made to feel as if she was always the cause for his emotional response.[97]
[97] T29.
I note that B initially stated that she pulled her ‘trousers’ up, zipped up her bag and got in the car and went home. In her evidence and only a short time later she stated she was wearing little flannelette pyjamas and she described the colour, piping and image on those pyjamas.
Last incident-10 January 2016
B said that she had a ‘significant memory’ of the last time unlawful sexual intercourse occurred at the house. It was in January 2016 around the time of her grandmother’s birthday. She recalled being home alone with Ms H and the accused returning home with her brother. She stated the accused was very upset at both Ms H and B. She was now unsure why he was upset. The accused threw a plastic tub and was saying that neither of them looked after him or cared for him or did what he asked. She said he then went into bedroom 1 and B followed him. The accused was undressing and he instructed B to get into the bed. B stated she was raped and it was a lot more violent. On previous occasions he had been reassuring by running his fingers through her hair and indicating it was occurring ‘out of love’ in a brief conversation. This time she stated it was a punishment for not listening to him. Her evidence in this regard appeared to me to be an assumption on her part, not representative of anything necessarily said by the accused. She stated the accused shoved her and pushed her and the penetration was more aggressive than previous times. She did not recall what she was doing and believed that she was having a fight or freeze response.[98] She stated it came to an end when the accused got out of bed and put his clothes back on and instructed her to get ready to go home. She stated nobody came into the bedroom. The accused did not ejaculate on this occasion.
[98] T33.
The absence of any precise evidence as to the time frames and movements of people is relevant to whether the prosecution has proved this incident occurred on this day as alleged by B.
The accused then drove her and her brother back to their mother’s house. This was the last time she had face to face contact with her father.
I note that B does not recall where the accused or her younger brother went that day or that there was a plan in place for them to meet at the market.
I accept there was a plan to meet at the market on that particular day.
Other incidents
B stated that the accused performed the same act on other occasions between the two incidents she described. She estimated it occurred between 10 or 15 times and they all occurred in either bedroom 4 or bedroom 1. She did not recall any other occasions as clearly as the first and last however, stated there was another occasion in which the accused was upset, she went into the bedroom and he raped her. She stated; ‘it wasn’t particularly, it wasn’t outstanding as far as more violent, or like that, but my body responded differently[99].’ She felt so much pain in her lower stomach and vagina that she thought she would lose consciousness. She stated she is not sure whether Ms H was present in the house or not. She believes that her brother was at school because he returned to school at the end of holidays a day earlier than she did.
[99] T35.
The lead up to the other occasions was very similar. She stated she did something that would upset the accused and she would then go into the bedroom to make him feel better. He then instructed her what to do. When asked why she followed the accused into the bedroom she stated ‘I knew what was happening. I would have rather it be me than (my brother) or Ms H or anyone else that was to be as unlucky enough to be there. And because I loved him. And I do still love him. I would do anything to make him happy’[100]. Whilst I consider the first part of her answer involved some reconstructing as regards her state of mind, I consider the manner in which B gave the latter part of her answer and the words themselves had a ring of truth about them. My impression was that B was telling the truth when she answered that question. I also accept this is consistent with other aspects of the evidence which suggest she was close to her father and wanted his affection and approval.
[100] T36.
B also said the accused would position her in the same way on each occasion.[101] I consider this is one further factor relevant to whether B is able to distinguish between the individual incidents of sexual abuse in the house.
[101] T33.
She said Ms H would ensure her brother stayed in the other part of the house.[102] I consider this is clearly an assumption on B’s part. There was no evidence as to why she thought this. She also indicated it was Ms H’s role to keep an eye on her brother ‘when dad wanted to assault me’. I consider both answers reflect her general disregard for Ms H at that time and now rather than a distinct memory.
[102] T37.
I note B’s mother gave evidence that they would celebrate their grandmother’s birthday on the weekend closest to her birthday. Her birthday was on 13 January and the last time B saw her father was 10 January 2016. That B was unable to recall some three and a half years later whether she last saw the accused three days before her grandmother’s birthday rather than a few days after it, is of no moment. That she was able to recall that the event occurred around the time of the grandmother’s birthday and that she was accurate in that regard is of more significance in my view.
Omissions
When considering these omissions and her explanation I consider it is of significance that B gave evidence over two days. She started her evidence at about 11.00am on Tuesday and completed her evidence at 3.15pm on the Wednesday. It is unsurprising that more detail may be given when subjected to close questioning. Secondly, the number of statements previously taken is not of any particular significance. I was not informed how long each statement was, or which topics were dealt with in each statement. I do not assume every statement would have dealt with the same topic and nor do I assume each statement would have involved close questioning of the complainant. I note O’Driscoll in effect gave evidence it was not his practice to take a detailed statement. Irrespective of his evidence to that effect I accept B’s evidence that she was not inclined to provide more information unless asked. I have kept in mind that the meeting with Weston occurred when there was no intention to proceed with any charges and some of the earlier statements were given by a 16 year old girl speaking of allegations of sexual abuse by her father to a male police officer that she had never met before.
B gave evidence that the accused started arriving earlier to pick her up and consistently earlier by August 2015. She agreed she had never stated this in any of her earlier statements and said she was not asked if the time changed.
B gave evidence that the accused stopped anywhere on the Esplanade between the Brighton Surf Life Saving Club to beyond the shopping promenade. She agreed she did not state that in a statement however indicated that she had shown police on a map. O’Driscoll confirmed this.[137]
[137] T257.
B gave evidence she was driven to school in a purple car by the accused. This was the last car provided by the accused’s employer. She said the first offences occurred in the purple car.[138] Whilst B agreed she did not say anything about a purple car in her statements I note that O’Driscoll gave evidence that B had referred to a purple car at some point in their discussions. I also note his evidence that he assumed that B was saying the offending began in the Kingswood.
[138] T21.
There was cross-examination as to a statement made by B in a statement dated 12 October 2019.[139] B agreed that statement described incidents occurring between July and September and then said ‘at this time Dad was driving a bright orange Holden’. It was submitted by the defence that the statement conveyed that the offending only occurred in the Kingswood.
[139] T68-69.
I do not agree. Any statement and its contents are necessarily influenced by the questions asked and the understanding of the person compiling the statement. O’Driscoll stated;[140]
Q. You've noted a purple Commodore and you've noted, did you, that the offending occurred in the Kingswood.
A. Yes, I believe it was in the Kingswood. In my notes I have mention of a purple Holden Commodore belonging to work, then my next note is 'Lost job bright orange Holden Kingswood bench seats Di Webb H easier for him to invade my personal space'.
Q. From that note, you were writing down, did she convey to you that the offending occurred in the orange Kingswood.
A. Yes, that was my understanding, probably because in my notes I have 'Lost job' and then rightly or wrongly I've assumed that once the job is lost the purple Holden Commodore is gone and everything subsequently after that is 'bright orange Holden Kingswood'.
[140] T264.
B did not therefore state categorically that the offending began in the Kingswood in either her conversation with O’Driscoll or her subsequent written statement. I also note O’Driscoll’s note to the effect the bench seat made it ‘easier’ to invade her space may be said to convey that it was easier than before when the accused used the other car. I have not used repetition to bolster credibility or reliability but upon a closer examination of what she said and why her statement read that way I reject the suggestion that these prior statements undermine her credibility or reliability in any way.
B gave evidence that after the sexual abuse in the car they put their seatbelts on. On her evidence, the seatbelts would be off so that she would be closer to the accused on the bench seats in the Kingswood. B agreed she had never said anything about taking the seatbelts on or off. B however also indicated she had never said they kept them on for the whole time. Given it was always suggested they were parking I consider it likely no question was asked about seatbelts and in any event this is not a detail I would expect a witness to include unless the seatbelt took on some significance in the unfolding of events. I do not consider this to be such a case.
B gave evidence that the offending in the car began when she was wearing a winter uniform. She agreed she had never said this before. She indicated she had not been asked what she was wearing and she did not think to tell the police. She said she did not think it was of any ‘gravity to the allegations’. In circumstances in which there was no allegation by B that her clothing was being touched or removed I agree this is not a detail I would have expected her to include and nor is it a detail I would have expected police to ask about. O’Driscoll stated he did not recall asking the complainant what she was wearing during the offending in the vehicle. He stated he may have just assumed she was wearing a school uniform. I further note that B’s estimate as to when the offending began is closely linked to her recollection that it started after the July school holidays and when she was in her winter uniform. That she would be wearing her winter uniform around July and August is hardly surprising.
B gave evidence that she was raped by the accused in bedroom one and bedroom four. She agreed she first referred to the offences occurring in different bedrooms on 22 July 2022 when spoken to by the prosecutor. B indicated that until that time she had not been shown a floor plan and before that time she had not been asked in which bedroom each incident occurred. B indicated she told police that it occurred in his bed which was correct. His bed simply changed from bedroom four to bedroom one. I accept her explanation.
B gave evidence of an occasion of unlawful sexual intercourse between the first and the last occasions.[141] B agreed that she informed police that she recalled this occasion for the first time on 22 July 2022. I consider this omission is significant.
[141] T99.
B gave evidence that on the first occasion she recalled there being ‘a lot of liquid’. She agreed she never said that before in any statements. I consider this omission is of some significance notwithstanding it may be a detail she would not readily volunteer.
Assessment of B
I found B to be an impressive witness. The manner in which she gave her evidence was thoughtful, careful and quite matter of fact. At no time did I form the impression she was exaggerating or doing other than attempting to recall the events accurately. When she spoke of her mental health issues she did so without hesitation.
She was visibly shaken at times throughout her evidence when recounting her conflicting feelings for her father. I consider her evidence when she referred to her love for her father was genuine. At no point during her evidence did I form the impression that her reactions or presentation were contrived or other than genuine.
There was nothing about her demeanour in the course of examination in chief or cross-examination which caused me any concern about her credibility. To the contrary I found her presentation to be highly convincing.
B was also both articulate and insightful as regards her mental health issues. It is however vital that demeanour and presentation not be given undue weight in an assessment of honesty and reliability. Any determination of those issues can only be made having regard to the whole of the evidence including the criticisms raised by the accused.
I do not have to be satisfied beyond reasonable doubt as to the reliability and credibility of every aspect of B’s evidence. However, in light of the significance of her evidence to the prosecution case and the mental health issues evidence I have scrutinised her evidence with great care. I have also considered whether there are aspects of her evidence which are supported by other evidence and whether the reliability of her memory for the period in 2015 is supported.
Exhibit P3 – the messages
It is submitted that B’s description of the offending is implausible. This implausibility may be said to arise from the risk of detection in the car or at the house, the risk of B complaining to someone and/or the circumstances in which the offences are said to have occurred.
First I consider it is significant that B describes the offending in the car as commencing in circumstances in which she says the accused said things to the following effect; can you help me, you know you love me, there’s nothing wrong with this , you make me angry, you are worthless, this is why you have no friends.[142]
[142] T20, T22.
That an adult father speaking to his 12 year old daughter would manipulate his daughter in this way for any reason may be thought to be unusual. I also consider that a further unusual aspect of her allegations is that the accused used such different triggers or methods of manipulation at the same time to achieve the manipulation.
B indicated that this only occurred at the beginning of the offending in the car and once she knew what was expected of her, there was no need for the accused to say anything. I do however note that B’s description of the incidents at the house also include a degree of manipulation by the accused. B’s evidence was that the accused would go to his bedroom upset and she felt as if it was part of her role to then appease him.
In any event, B’s evidence is to the effect the offences in the car involved the accused using their relationship, assuring her he as the adult knew what was right, guilting her into action because of what she had done to him and berating or belittling her.
It is therefore of some significance that the text messages sent by the accused in January/February 2016 in Exhibit P3 display not only an attempt at manipulation but also an attempt with the same qualities as she described in her evidence.
On Sunday 31 January the accused sent the following message to the complainant: ‘maybe if I do why (sic) Jarrod did I’ll be your hero again…’.
This was clearly a reference to the complainant’s mother’s partner who had previously committed suicide. This message therefore involved the accused appealing to the complainant by referencing their special relationship and by attempting to guilt her into action- at the same time.
On Monday 1 February at 9.01am the accused then sent two messages. The first said ‘Today is always our day and you’ve chosen someone else [B], you’ve left me [B], you won’t respond to my messages, answer my calls, I’m the adult [B], I’m your father who you…’ (this message was cut off and the remainder was not captured in the photograph of the text.)
The second said; ‘If you can’t contact me when I’m alive, don’t cry for me when I’m dead.’
Again, these messages appeal to the complainant by reference to their relationship being special (our day), by blaming her, (you’ve chosen someone else, you’ve left me, you won’t respond to my messages), by telling her he as the adult knows what is best (I’m the adult, I’m your father) and lastly, by trying to guilt her into action by implying he may commit suicide.
It is also not irrelevant that these messages were sent by the accused on both Sunday and Monday. This was not an isolated incident of such manipulative behaviour. It is significant in my view that the manipulation she describes as occurring in Exhibit P3 takes a number of different forms which are remarkably similar to the form of the manipulation she describes in her evidence when the offending in the car on the Esplanade begins. I note the words are not the same however the methodology behind the manipulation is the same.
I also note the complainant stated she often felt as if she was letting him down or that she felt a responsibility to help and/or appease him. This feeling is consistent with their relationship being characterised by his manipulation of her.
Exhibit P3, which was not disputed, therefore shows the relationship was attended by manipulation and this is relevant to the plausibility of her account. The evidence provides support for her description of their relationship as one involving manipulation and in particular manipulation in different forms. It rebuts any suggestion her evidence is implausible on the basis a father would not act in such a way toward his 12 year old daughter and/or rely on abuse, guilt and love and his position as the adult all at the same time.
Additionally, Exhibit P3 provides support for the reliability and credibility of her evidence as to what occurred between them after 10 January 2016 and it is also evidence that the accused was aware that B was susceptible to being manipulated by those techniques in the relevant time frame.
Finally, I also consider that the comments made by the accused in the messages are consistent with her evidence that she saw the accused self-harming during this period. It makes sense that the accused knew B had this knowledge as it explains why he knew threatening suicide would have an impact on her. I accept B’s evidence that she did see such an act by the accused.
I note the court in R v K, GA[143] considered letters written by the accused which included expressions of affection. The Court did not consider the letters were subject to s 34P of the Evidence Act 1929 because they did not evince a willingness to act on any sexual interest. The Court nonetheless indicated the possibility of a contrary view and indicated that the letters would have met the test for admissibility in any event.
[143] [2019] SASCFC 2.
I do not consider the acts of manipulation in the texts in Exhibit P3 are subject to s 34P of the Evidence Act[144] however in case I am wrong I indicate I am satisfied the evidence is admissible pursuant to s 34P(2) and (3). I have only used the evidence in the way I have outlined. I have applied the same warnings to which I referred earlier in these reasons and I also have not reasoned the accused has a willingness to manipulate B which therefore makes it more likely he committed acts of a sexual nature against her.
[144] Whilst I have applied s 34P to the evidence of manipulative behaviour when done for the purpose of facilitating sexual acts I do not consider such behaviour is ‘discreditable conduct’ when done for the purpose of trying to get her to contact him. Discreditable conduct need not amount to a criminal offence however I consider the conduct must be of a type that creates a risk of a jury using the evidence to reason impermissibly. The threshold to be discreditable conduct is not so low that it includes any negative personality traits. I do not consider telling his daughter she is special then berating or blaming her or attempting to make her feel guilty amounts to discreditable conduct for the purposes of s 34P of the Evidence Act. It is not a type of behaviour that risks a jury reasoning impermissibly about it. It is absurd to suggest that a person who is willing to manipulate their daughter is more likely to commit sexual offences against their daughter or in fact any offences. I do not consider there is any risk of a jury reasoning in such a way and for that reason I do not consider the evidence to be discreditable conduct. I also make clear I have not reasoned in that way. I also note the messages were sent at a time when both children had indicated a desire not to see the accused and the accused was attempting to resume contact with both children. If the messages tended to suggest that his interest in the complainant was sexual rather than familial then such acts would be discreditable conduct and the evidence would rely on tendency for its probative value. I refer to the reasoning in R v Zappavigna [2015] SASCFC 8, [41]-[44]. There was however no suggestion in this case that sending the messages tended to suggest such an interest and I have not used the evidence for such a purpose.
In the course of cross-examination it appeared to be suggested to B that in the telephone conversation in January 2016 the accused was in effect accusing the children of not loving him and not wanting to spend time with him. B responded that she did not hear what the accused said to her brother. However she appeared to confirm that words of that nature had been said at some point during that period because she stated ‘and so it’s really hurtful when he said that we don’t love him or that he feels like we don’t love him because we were really trying but we were only children and we were doing the absolute best that we could.[145]‘ Not only is this another example of manipulation within their relationship which is not disputed, I also found her answer to be particularly compelling. I consider it reflected an honest attempt on her part to recount her relationship with her father at that time.
[145] T100.
The support Exhibit P3 gives to various aspects of the prosecution case is a significant consideration in my view to the assessment of her evidence. It is also I consider inconsistent with aspects of the evidence of Ms H. It either suggests Ms H was not as observant of their relationship dynamic as she purports to be or it suggests she has downplayed aspects of the accused’s behaviour in order to assist him.
Riskiness of the accused’s alleged behaviour
The other aspect of her account which may be thought unusual is the inherent riskiness or brazenness of the behaviour given the risk of complaint by B and/or the risk of detention given the proximity of other people, both in the car and at the house.
To the extent it may be said her evidence is implausible because the accused would not have taken the risk of offending in the manner he did because there was a risk she may complain to others, I reject that submission. Of course, there is always a risk as regards any sexual offence that the victim will complain however in the absence of any complaint after the first incident the accused may have been emboldened by the absence of a complaint. Whilst B stated there were teachers and counsellors at her school and that she had friends at the school, I also note her evidence to the effect the accused would say her behaviour explains why she had ‘no friends’. The accused’s belief in that regard explains why the accused was emboldened to take the risk. More importantly however the accused believed they had a special relationship as evidenced by the messages in Exhibit P3. I do not consider it is implausible that the accused determined to take the risk given the manner in which he manipulated her to offend, given the nature of their relationship up until that point and given her evidence that he believed she had no friends.[146]
[146] T22.
I accept the acts in the car did pose a risk of detection. The evidence of risk as regards the sexual acts at the house is not however as clear as I accept the number of acts of sexual abuse at the house was considerably less than 10 and that Ms H was not necessarily always at home.
In any event and on the basis there was a risk of detection at some point when sexual intercourse occurred at the house I consider the evidence of the accused’s temperament and behaviour as referred to by B, B’s mother and Ms H is relevant to this issue.
I consider those aspects of his behaviour during that period which may be described as self-destructive[147] and/or self-absorbed[148] are not inconsistent with the accused being in a state of mind in which risk taking was of less significance to him. I am satisfied something occurred at his work which impacted his behaviours. I make no finding as to the precise cause of his distress and change of behaviours however his behaviour during that period is relevant to whether the riskiness of the offending is a significant consideration as regards the plausibility of that alleged behaviour. I do not consider it is.
[147] His threats of self harm in Exhibit P3, the evidence of B that she saw the accused self harming in a bedroom.
[148] His increasing anger toward others, Ms H’s evidence that the accused was distressed after an incident at work, his comment to Ms H to the effect he was not in a position to offer her any assistance, S’s evidence that she noticed a change in his behaviour from around September 2015, T228.
I have also considered the evidence of his change in behaviour on the basis it may be relevant as a motive for B to lie about the accused because she took the side of her mother. I reject that possibility. Bearing in mind my other findings and impressions of B as a witness I do not consider a delay of three years before B complains is consistent with her being motivated to lie about her father because of his change of behaviour in 2015 and 2016. By 2019, B had no contact with her father. He was well out of her life by then.
Sleeping arrangements
The sleeping arrangements in the house were clearly fluid. Consistent with Ms H’s evidence, B stated there was originally an intention that Ms H’s daughters would live at the house. Given that fact and that it was also intended that the accused move into the house I consider it would be unusual that no room was set up for an adult to sleep in.[149]
[149] Ms H stated bedroom 4 never had a bed in it, bedroom 2 was a storage room and bedroom 3 was for B and her brother. As at 2022 Ms H’s children were 30 and 26 years old, T322.
Given the concerns I have already expressed about Ms H’s evidence and those matters which do support the reliability of B’s recollections I accept that bedroom 4 did at some point have a bed in it.
I also prefer the evidence of B as to where they slept although I proceed on the basis it would now be difficult for anyone to recall with accuracy the sleeping arrangements on alternate weekends over a five-month period some six years ago. I would not expect Ms H to recall where they slept every time and to the extent she purported to suggest she could, I do not accept her evidence.
To the extent Ms H also purported to recall that that the accused always slept in the kitchen/family room I do not accept her evidence. I further note there was no evidence that she was still awake whenever the accused went to bed or when the children went to bed for that matter.
I accept the evidence of B that there were opportunities for such offences to have occurred in both bedroom 1 and 4.
As to whether the accused ever had access to bedroom 1, I do not accept Ms H was always at home and nor do I consider that she would necessarily have noticed her bed having been used. This is particularly so, as I accept that the acts of sexual intercourse at the house, did not occur with the frequency alleged by B in her evidence. For reasons explained below I do not consider B is now able to distinguish between every sexual act.
The USI on 10 January
I bear in mind that in cross-examination it was only suggested that Ms H lied about mentioning the suicide to B. It was not suggested to her that she was lying about going into the bedroom or that she was wrong as regards the time frames between leaving the room and leaving the house.
Whilst I do have concerns about aspects of her evidence I accept Ms H’s evidence that a conversation occurred between her and B as regards the suicide. I consider she, at least subsequently, formed the view that her conversation with B was the cause of the fall out between the accused and B and perhaps considers herself to blame for what subsequently occurred. I accept that in her mind at least, the conversation with B was a significant occurrence. That is not to say that I accept it was a significant occurrence as far as B was concerned. In fact, I accept B’s evidence that she does not recall this conversation and that she was not upset with Ms H. I do not consider Ms H was of any great significance to B during this period. I also note this is entirely consistent with Ms H’s impression of their relationship.
That each has a different recollection of the day reflects what was important to each of them. It does not mean one is lying.
Notwithstanding her uncertainty as to whether this day was the last on which she saw B, I accept that she was describing that day. I accept that Ms H did at some point go into her bedroom to compose herself as a result of the accused’s behaviour. I consider her evidence on this aspect to have been truthful and reliable. It is consistent with the evidence of B that the accused was particularly upset when he returned home. I do however accept B’s recollection and description of the accused’s behaviour rather than that of Ms H.
I note S gave evidence there was to be a celebration for B’s grandmother’s birthday and therefore the children were to be returned at 3.00pm.[150] This was earlier than normal and it therefore impacts the time in the afternoon B spent at the accused’s house on that day.
[150] T93.
I also note S’s evidence that B was distressed upon her return home. Evidence of distress is not evidence which independently supports B’s evidence that the accused abused her. It is only relevant to an assessment of her credibility and whether she acted in a manner consistent with her evidence. Whilst her distress is not inconsistent with her account, I note that on B’s version of the events that day the accused behaved aggressively toward her when he returned home and therefore irrespective of any alleged sexual offending, there was a reason for her to be distressed. Given the accused’s other aggressive behaviour toward B and its possible impact on her, the evidence of distress does not assist me to determine the issues in this trial and I give it no weight.
Notwithstanding my acceptance of B as a witness of truth and my doubts as to aspects of the evidence of Ms H, the evidence raises issues as to the opportunity for the accused to have performed an act of USI in bedroom 1 after he returned from the market and before he then took the children home. That such an act was risky does not however cause me any concern. I consider the nature of the relationship between Ms H and the accused was such that when the accused was angry Ms H is likely to have avoided him and not sought him out.
Notwithstanding I am satisfied of B’s credibility and that there is significant support for an integral aspect of her account of the offending, I do nonetheless have a doubt as to the circumstances of the offending said to have occurred on 10 January 2016.
Whilst I consider it is probable there was sufficient time and opportunity for such an act of sexual abuse to occur and I consider it is probable such an act did in fact occur on that day I cannot be satisfied of that beyond reasonable doubt. The degree of uncertainty and lack of specificity as to the time frames between them getting home and leaving and everyone’s movements within the house and bedroom 1 is significant in that regard. I consider that is relevant to whether the prosecution has proved this incident of USI occurred on that day beyond reasonable doubt. I accept it is to be expected that there will be difficulties in a witness now recalling such movements with precision 6 years later. However the forensic disadvantages occasioned by this delay and my uncertainty as to the opportunity for such an offence to have been committed give rise to that doubt.
I have taken this doubt into account when considering whether the prosecution has proved beyond reasonable doubt other aspects of B’s evidence and whether it has been proved beyond reasonable doubt that two acts which amount to sexual offences were committed by the accused during the relevant period. When doing so I have taken into account all the criticisms raised by defence.
Additional conclusions
I have considered the prior inconsistent statements, the omissions from her earlier statements, the inherent riskiness of the accused’s alleged behaviour and whether this gives rise to an implausibility in the complainant’s account, B’s mental health issues both at the time of the alleged offending and after the offending and the inconsistencies between the complainant’s evidence and the evidence of Ms H.
The fact aspects may be capable of explanation does not mean that the prosecution has proved its case beyond reasonable doubt. I have considered the combined effect of all of the criticisms levelled at the complainant’s evidence when considering whether the elements of the offence have been proved beyond reasonable doubt.
In light of the nature of the inconsistencies and omissions and those matters which support the plausibility and reliability of her account I do not consider the inconsistencies or the omissions undermine her evidence. I say this particularly in light of the relevance that I have given to the nature of the text messages in Exhibit P3 and the support it gives to aspects of her account of the offending behaviour – particularly those in the car at which time there had been no previous offending.
It was suggested that B’s failures to refer to certain facts in her statements were matters of significance. I disagree. Firstly, the matters which were omitted in her statements were not matters that I would have expected her to have volunteered. When the first statements were made to police she was a 15 or 16 year old girl sometimes giving statements to strangers about matters of a very personal nature. I consider her explanation that she tended to limit herself to answering the questions asked of her without volunteering more information was entirely plausible for a young girl with her background talking about incidents of a sexual nature, which involved her father.
I also do not consider that every issue has the potential to impact the reliability of her evidence as to the sexual offending. For example, I accept it is unlikely that B was ‘never fed’ when she visited the accused. This was however clearly B’s impression, possibly as a result of comments by the accused as to her being greedy. That her memories of this time are influenced by other events and that she has been left with negative impressions is not in my view surprising or undermining of her reliability as to the facts which prove the elements of the offence.
Some of the prior statements disclosed no inconsistency and some are what I would expect of any honest witness. The inconsistencies as to the number of occasions the sexual acts occurred in the car and then at the house and whether the accused initially touched himself on one day or over a number of days are in a different category. Similarly, the omissions as to the incident she only recalled the week before the trial and her memory that there was a ‘lot of liquid’ as regards the first incident were also significant.
I believe her explanation that she has reflected on things and now recalls events differently. Such a process is not surprising and, in my experience it happens frequently and does not necessarily reflect poorly on credibility. To the contrary I consider she was being honest as to why her account had changed.
Acceptance of a complainant as a credible witness does not however prove an offence beyond reasonable doubt. The complainant’s evidence must also be sufficiently reliable to satisfy that exacting standard of proof.
The number of occasions in the car increased from six or seven times in 2019 to easily 30 times in 2022 and then upwards of 20 in her evidence.
The number of occasions in the house increased from four times in 2019 to an estimate of between 10 and 15 in her evidence.
It is however necessary to consider the terms of her evidence. As to both, B was always careful to provide an estimate and to indicate the numbers were not representative of the number of occasions she actually recalled. If she purported to recall each incident, then I consider this would have impacted her reliability to a greater degree. B did not however purport to be specific in that regard and her estimates were based on her evidence that she could not recall any gap in the offending and by then estimating the number of occasions the accused had the opportunity to offend. Her inability to recall a gap does not in my view undermine her reliability as to sexual acts having occurred.
Firstly, I accept her evidence that she has attempted to forget the details however more importantly, her inability to recall the events of each day over a period of months some seven years earlier when she was 12 does not in my view undermine her reliability that sexual acts did occur over that period.
I have also taken into account that she recalled an incident at the house for the first time shortly before the trial and that her evidence was relatively vague on detail. I have also taken into account the change in her memory as to the number of occasions the accused touched himself before the offending escalated in the car.
That over time a 19 old may merge together several incidents which occurred when she was 12 is unsurprising. I further note that in circumstances in which offences occur in a similar manner[151] and involve the same acts and the same locations in a relatively confined period of time that combination will impact the ability of a witness to differentiate between different incidents. That is particularly so when the events gave rise to a degree of stress and occurred seven years prior to giving her evidence.
[151] I note her evidence the acts of USI occurred in the same position and the acts in the cars effectively involved her masturbating the accused or the accused touching himself.
In light of the uncertainty in her evidence as to the number of occasions, the inconsistent statements on this topic and the changes in her memory as to the frequency of some aspects I am not satisfied beyond reasonable doubt that her estimates of the number of acts are correct. In fact I am satisfied that they are not accurate.
The issues to which I have referred do not however give rise to a doubt that acts of sexual intercourse occurred at the house or that acts of gross indecency occurred in the car. I accept there is a possibility of some conflation between the events however, that does not cause me to doubt the reliability and/or credibility of B’s evidence as to the commission of unlawful sexual acts by the accused.
When considering the issues which undermine the evidence of B I have also taken into account the significant support Exhibit P3 gives to both the credibility and reliability of her evidence in a number of ways.
I reject the possibility that she has in effect constructed memories from nothing. I am satisfied her evidence is based on memories of actual events of sexual abuse. I am satisfied beyond reasonable doubt that the unlawful acts she described occurred even if the number of occasions, some of the surrounding circumstances or the timing are incorrect.
Lastly I have already indicated I do not accept the evidence of Ms H that she was always at home when the children visited. I also note that the first incident at the house described by B occurred when B assumed Ms H was home. Notwithstanding Ms H being present may be thought to harm her case I consider her evidence that allowed for Ms H to be present reflects her honest belief of that fact. It is however relevant that B did not provide any detail as to what occurred before or after the first incident in a manner which provides any degree of certainty that Ms H was in fact at the house.[152]
[152] T32, B assumes Ms H was in the kitchen or outside.
I am satisfied the number of occasions such acts occurred is less than the estimates gave in her evidence. I note this necessarily reduces the number of occasions Ms H may have been absent from the house and/or the number of times the accused took such a risk.
I make the following findings of fact beyond reasonable doubt. I am satisfied the accused sexually abused B between the months of July 2015 and January 2016 in both the purple Commodore and the orange Kingswood. I am satisfied those acts of sexual abuse involved touching his own penis in front of B, exposing his penis to B and causing or inciting her to touch and masturbate his penis. I am not satisfied beyond reasonable doubt that such acts occurred on every occasion the accused parked his car on the Esplanade with B however, I am satisfied beyond reasonable doubt that such acts occurred on several occasions on different days.
I am further satisfied beyond reasonable doubt that the accused had penile vaginal sexual intercourse with B at his house in Ashford between the months of August 2015 and January 2016. Whilst I am satisfied beyond reasonable doubt that sexual intercourse occurred on more than two occasions, I am not able to be more specific than that.
I am also satisfied beyond reasonable doubt that the unlawful sexual acts which occurred in the cars did not occur on the same day as the unlawful sexual acts at the house. B only stayed at the house on the weekends and obviously any acts which occurred in the car occurred on the way to school.
Verdict
The elements of s 50 of the Criminal Law Consolidation Act1935 do not require the prosecution to allege particulars of any unlawful sexual act in the same manner as if the act were charged as a separate offence. Similarly, I am not required to be satisfied of the particulars of any one unlawful sexual act in the same way as I would have to be satisfied of it, if the act were charged as a separate offence. I am satisfied beyond reasonable doubt that the accused committed the acts I have identified above. That is sufficient for the purposes of proving s 50.
I am therefore satisfied that during the relevant period the accused maintained a relationship with B, B was a child, the accused was an adult, and the accused engaged in two or more unlawful sexual acts with B over the relevant period.
I find the accused guilty of the charge of Maintaining an Unlawful Sexual Relationship with a Child.
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