R v E, J
[2022] SADC 113
•16 September 2022
District Court of South Australia
(Criminal)
R v E, J
Criminal Trial by Judge Alone
[2022] SADC 113
Reasons for the Verdicts of her Honour Judge Fuller
16 September 2022
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
Accused charged with maintaining an unlawful sexual relationship with a child and indecent assault - complainant was his stepdaughter - offending alleged to have taken place between 1984 and 1988 (count 1) and in December 1991 (count 2). Evidence of uncharged acts alleged to have occurred outside of the jurisdiction. No complaint was made until 2016 when the complainant's daughter disclosed alleged sexual offending against her by the accused. Initial complaint devoid of detail of alleged offending. In 2018, the accused was acquitted by a jury with respect to the offending alleged against complainant's daughter - following acquittal, complainant made further statements to police alleging additional unlawful sexual acts.
Prosecution case depended upon credibility and reliability of complainant.
Accused gave evidence on oath denying the allegations.
Held: Aspects of complainant's evidence cast doubt on her credibility and reliability. Standard of proof not met. No basis to reject accused's denials.
Verdicts: Not guilty of both counts.
Criminal Law Consolidation Act 1935 (SA) ss 50(1), 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 13(7), referred to.
R v G [2015] SASC 186; R v Keyte (2000) 78 SASR 68; Douglass v The Queen (2012) 86 ALJR 1086; AK v The State of Western Australia (2008) 232 CLR 438; R v Markuleski [2001] NSWCCA 290, considered.
R v E, J
[2022] SADC 113
The accused was charged on Information with the following offences:
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
[The accused] between the 10th day of January 1984 and the 31st day of December 1988 at Cummins and other places, being in a position of authority in relation to [TLA], a person under the age of 18 years, maintained an unlawful sexual relationship with [TLA] by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Touching her vagina on more than one occasion;
(b) Performing an act of cunnilingus upon her on more than one occasion;
(c) Inserting a finger or fingers into her vagina on more than one occasion;
(d) Causing her to touch his penis on more than one occasion;
(e) Causing her to perform an act of fellatio upon him on more than one occasion;
(f) Causing her to lick his penis and testicles on more than one occasion;
(g) Masturbating in her presence on more than one occasion; and
(h) Rubbing his penis on her vagina on one occasion.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The accused] between the 1st day of December 1991 and the 31st day of December 1991 at Cummins or another place, indecently assaulted [TLA] by grabbing her inner thigh.
The plea
The accused pleaded not guilty to the charge and at his election I heard the trial without a jury. I now publish my reasons for the verdicts I am about to deliver.
Elements of the offence of maintaining an unlawful sexual relationship with a child
To prove count 1 the prosecution must prove beyond reasonable doubt that:
·The accused knowingly maintained a relationship with the complainant. This element requires more than proof alone of the commission of two or more unlawful sexual acts.
·Whilst that relationship was in existence, the accused intentionally committed two or more unlawful sexual acts with, or toward, the complainant.
·At the time the accused committed two or more unlawful sexual acts, he was an adult.
·At the time the accused committed two or more unlawful sexual acts, the complainant was a child.
An unlawful sexual relationship is a relationship in which an adult engages in two or more unlawful sexual acts with a child over any period.
An unlawful sexual act is any act that constitutes or would constitute, (if particulars of the time and place at which the act took place were sufficiently particularised) a sexual offence.
In this case, the unlawful sexual acts alleged are as follows:
·Indecent assault
·Unlawful sexual intercourse
·An act of gross indecency
As the trier of fact, I am not required to be satisfied of the particulars of any unlawful sexual act of which I would have to be satisfied if the act were charged as a separate offence, but I must be satisfied as to the general nature or character of those acts.
There is no dispute that if the acts alleged by TLA in fact occurred, they each constituted an unlawful sexual act.
Elements of the offence of indecent assault
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove an assault. An assault is the intentional and unlawful application of force to another. If the touching the subject of count 2 and particulars (a) and (h) of count 1 took place in the way alleged by the complainant, this element will be established. As the complainant was a child at the relevant time, consent is not in issue.
The prosecution must prove the assault was accompanied by, or committed in, circumstances of indecency. There must be a sexual connotation. Whether an assault is indecent is for me to determine by reference to prevailing community standards of what is considered indecent. It was not disputed that if I were to find proved the acts particularised in count 2 and particulars (a) and (h) of count 1, I would find proved that the particular act was committed in circumstances of indecency.
General directions
The accused elected for trial by Judge sitting without a jury pursuant to the provisions of s 7 of the Juries Act 1927. As Lovell J observed in R v G,[1] whilst the Act is silent as to any requirement regarding the contents of the reasons for verdicts, such requirements are established in a number of authorities: see R v Keyte (2000) 78 SASR 68, Douglass v The Queen (2012) 86 ALJR 1086; and AK v The State of Western Australia (2008) 232 CLR 438 per Heydon J.
[1] R v G [2015] SASC 186.
The general directions were summarised by Lovell J in R v G. They are as follows:
As the Judge of the facts and law, I must find the facts and draw the inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the accused are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the accused at all times. The accused does not have to prove that he did not commit the offence as charged.
The standard of proof of the prosecution case is proof beyond reasonable doubt and the accused cannot be found guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt. In the findings I make in these reasons, I make those findings beyond reasonable doubt unless I specify otherwise.
The accused is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the charge has been proved beyond reasonable doubt.
I must determine whether each of the witnesses called are truthful and reliable, that is, whether I can rely on the evidence that the witness gives me and so find the facts about which the witness has given evidence. I can accept part of a witness’s evidence and reject part of that evidence or accept or reject it all.
If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence charged, then the accused remains presumed innocent and I must find a verdict of not guilty.
The accused gave evidence. In doing so, he assumed no onus. His evidence is to be treated in the same way as any other witness in the trial, but I can give him what credit I consider appropriate for adopting a course he was not obliged to adopt.
Overview of prosecution case
In opening, Mr McCabe for the prosecution said the trial was about the relationship between TLA and her stepfather, the accused. TLA was born in 1977 and her mother JE married the accused later that year. TLA referred to the accused as her father and believed him to be her biological father for many years. The accused and JE had a son together, CE who was born in October 1978. They lived together as a family in the Eyre Peninsula town of Cummins. In the family home in Cummins between 10 January 1984 and 31 December 1988 it is alleged that the unlawful sexual acts the subject of count 1 occurred. In late 1988 the family moved to Kangaroo Island, but no sexual acts are alleged to have occurred there.
The prosecution case is that there was an ongoing course of conduct whereby the accused would come into TLA’s bedroom at night and perform sexual acts upon her. There was one occasion she specifically recalled when she was in the lounge room ironing in front of the television and her brother and three neighbourhood children were watching television in front of her. The accused came into the room and attempted to touch her vagina, causing her to knock the iron off the board and it landed on the bare back of one of the neighbour’s children. CE recalls the iron falling on the child’s back but did not see the accused touching TLA.
From early 1989 until 1992 the family lived in a caravan travelling around Australia for work. The accused was a shearer and the family travelled between sheep stations, mostly in New South Wales. The accused would touch TLA or attempt to touch her on the top bunk in the caravan. As these sexual acts occurred outside of the jurisdiction, they are uncharged acts. Eventually the family moved into a house in Boorawa, then settling in the town of Young.
Count 2 relates to a single incident that occurred in 1991. The family returned to Cummins for Christmas, and it is alleged that the accused touched TLA on her thigh near her vagina while at her grandparents’ house in Cummins.
TLA did not complain to any person about the offending until October 2016. On 12 October 2016, her own daughter, then aged 11, told her that the accused had licked her down there. TLA rang her own mother, JE, who came straight to the house. TLA said she knew the allegation was true because the same thing had happened to her. I was told by defence counsel, Mr Radojev, that evidence would be led in cross-examination that the accused was charged, tried and acquitted by a jury of the allegations in relation to TLA’s daughter.
Issues in dispute
The only issue in dispute is whether the prosecution has proved that the accused performed two or more unlawful sexual acts with or toward the complainant between 10 January 1984 and 31 December 1998 and that the accused indecently assaulted the complainant in 1991.
The evidence
I turn now to examine the evidence in more detail.
The complainant’s evidence
TLA gave her evidence remotely and in the presence of a court companion employed by the Victim Support Service.[2] The court was closed during her evidence. Those orders were made prior to trial. Pursuant to s 13 (7) of the Evidence Act 1929 I direct myself that these arrangements do not permit me to draw any inference adverse to the accused and nor do they influence the weight to be given to TLA’s evidence.
[2] An application was made to recall TLA for further cross-examination after her evidence had concluded. That application was granted however the court companion was not available. TLA said that she was content to give further evidence without the court companion present.
TLA was born on 10 January 1977. She now lives in Young, New South Wales and has two children, a daughter, GA and a son, MA who are aged 17 and 15 respectively.[3]
[3] T 8.
She lived in Cummins while growing up and her mother was married to the accused. She thought of him as her father until learning, when she was aged 11, that he was in fact her stepfather. He was a shearer by trade. The house the family lived in at Cummins was a two-bedroom house but after renovations in 1986 or 1987 a third bedroom was added. [4]
[4] T 8-9.
Before the renovations she shared a bedroom with her brother, CE. They had separate single beds which were separated by two wardrobes, one facing in the direction of her bed and the other facing in the direction of her brother’s bed. The wardrobes acted as a partition dividing the room in two and if she was in her bed she could not see her brother in his bed.[5]
[5] T 9-10.
A floor plan of the family home was tendered: Exhibit P 1. TLA identified the rectangles marked as wardrobes but said that the plan was not an accurate representation of the dimensions of the room. Her parents’ bedroom was directly opposite the bedroom she shared with her brother[6] The bedroom door opened inwards and there was a gap of about a metre between the door and the wardrobe.[7]
[6] T 11.
[7] T 12.
A floor plan of the house after the renovations were completed was tendered: Exhibit P2. Her brother remained in the shared bedroom, and she moved into what was formerly her parents’ bedroom. The kitchen became her parents’ bedroom, and the new kitchen was near the back of the house. On P2 the laundry of the house was depicted. The laundry was on the outside of the house and could only be accessed by going out the back door.[8]
[8] T 12-13.
Whilst living in Cummins, TLA went to Cummins Area School and played netball for at least two seasons and was involved in Brownies. A photograph of TLA and her netball team in 1988 was tendered: Exhibit P 3.[9] Her mother worked in the laundromat at the local hospital and also in the bistro at the local pub.[10]Her mother worked nights on weekends and during the week and would come home late. She did this when TLA was 9 and 10 years old. Her mother’s parents also lived in Cummins.[11]
[9] T 14–15.
[10] T 19.
[11] T 19-20.
In the last school term in 1988, the family moved to Kangaroo Island and TLA and her brother attended Kingscote Area School.[12] In 1989, her parents travelled around the mainland for work and TLA lived with a friend of theirs, Tracey for the entire first term of school. Her brother lived with an uncle in Adelaide. Her mother was roustabouting and her father was shearing.[13]
[12] T 15.
[13] T 20-21.
Her mother then bought a 23-foot caravan and the four of them travelled around South Australia, New South Wales, Queensland and Tasmania.[14] Whilst living in the caravan, TLA was home schooled through Open Access College. She slept on the top bed of a bunk bed and CE slept on the bottom. The caravan was one open room, although there was a partition made of plastic slats that concertinaed out.[15]
[14] T 21.
[15] T 22.
Whilst living in the caravan, TLA’s mother would start as early as 5.30am because she was also working as the shearer’s cook. The accused would start work at 7.00am.[16] During the day, TLA would do her schoolwork in the caravan or in the mess quarters where the shearers would eat their meals.[17]
[16] T 22.
[17] T 23.
The last place the family stayed was the Young caravan park in New South Wales in 1991. They then moved to Boorowa in 1992 when she was 15 years old. After 6 months they moved back to Young and she lived with the family until she was 18 years old and moved into her boyfriend’s parents’ house. The house in Young had a sliding door leading into a shower, toilet and laundry area.[18]
[18] T 23-24.
In 1991, the family returned to Cummins for a holiday for Christmas. They first stayed with TLA’s grandparents and then they and other family members, cousins, aunties and uncles, camped down at Farm Beach for about a week. Photographs of the family camping at Farm Beach were tendered: Exhibit P4.[19]
Commencement of alleged offending
[19] T 24-25.
TLA gave evidence that she could remember the first occasion when the accused did something that made her uncomfortable:
Yeah. I remember I was asleep in my bed, in the room that I shared with my brother. I woke up to the covers being taken off of me. [The accused] dragged me down to the end of the bed, by my feet, and he put his legs either – my legs either side of him. He has dragged my underwear to the side, and he has proceeded to lick my vagina. He has done this for about five or 10 minutes; didn’t say anything. I didn’t speak. I just remember I didn’t remember what to do, like, was frozen, and he just continued licking my vagina.[20]
…
I remember just looking down and just seeing his eyes looking at me, and the bristles of his moustache were scratching me and my thighs as he was doing – as he was licking me.[21]
[20] T 26, 26-35.
[21] T 27, 28-31.
TLA said that the accused’s tongue went into her vagina. She had been wearing a nightie and underpants. The incident came to an end when the accused got up and went back to his room. TLA said that there was no lighting in the room and she could not see, but she could see the accused’s eyes.[22]
[22] T 27-28.
TLA said this happened again and would occur once or twice a week and got worse as it went along. She said that the accused would get her to hold her vagina open so he could have easier access and at times he licked her clitoris that hard that it would be sore and swollen. He also inserted his fingers at times, and it hurt because of his nails. When he was licking her vagina, he would either take her underpants off or pull them to the side. She said her underpants were so stretched from him doing that they would hang down between her legs. There was no elastic left in the leg of her underpants.[23]
[23] T 28.
TLA said that on one occasion in her bedroom the accused touched her vagina with the end of his penis and she ‘freaked out at that’. His penis did not go inside her vagina.[24]She moved right away from him, and he left. She did not say anything.[25]
[24] T 29.
[25] T 30.
TLA said there was generally a pattern; the accused would either lick her vagina or insert his fingers into it. However, he would also make her do things to him like lick his testicles, masturbate him and suck on his penis.[26] When this happened, he would be sitting on the bed and she would be kneeling down between his legs. Before making her do these things to him he would use phrases such as, ‘you won’t tell anyone because you like it. No one will believe you and you’ll lose your mother’.[27] This had a huge impact upon her because she had always had a close relationship with her mother, and her world fell apart when her mother left her on Kangaroo Island.[28]
[26] T 30.
[27] T 31, 18-20; T 41, 20.
[28] T 31.
When TLA sucked his penis, he would sometimes ejaculate into a handkerchief and other times he held her head, so she had to swallow his semen. She was made to touch or suck his penis or testicles a minimum of once or twice a week. After the renovations and when she had her own bedroom, the offending escalated.[29]
[29] T 32.
To her knowledge, her brother CE never woke up when the accused came into their bedroom. The door to the bedroom was never closed. There were a couple of occasions when both her mother and CE were home, and the accused was brazen enough to come into the laundry and masturbate himself into a hanky while she was doing the washing or make her do it for him. He would then put the handkerchief in the washing machine. She would wash clothes Saturday morning before she went to netball.[30] This happened more than once but she could not now say how many times.[31]
[30] T 34-35.
[31] T 36.
TLA then gave evidence of an incident that occurred in the accused’s bedroom. CE was in his own bedroom. The accused took TLA into his bedroom. She was wearing her pyjamas at the time. She could not recall how it occurred, but she ended up being completely naked in bed with him. She did not do ‘exactly what he wanted to start with’[32]and then she heard the neighbours returning home. She then gave this evidence:
… I heard them, and his words were ‘If you don’t do what I want I will go and get her instead’ and I didn’t want anyone else to be hurt like I was being hurt. He got me into – he was laying flat on the bed. I was sitting in between his legs. He showed me how to pull the foreskin back off his penis, had me sucking on the nub of his penis while I masturbated him. He had me suck on both of his testicles. I had to keep doing this until he ejaculated onto his chest, his abdomen. He made me feel like I was a partner in his bed, and I had no protection, not any piece of clothing. He made me feel like his partner.[33]
[32] T 36, 26-27.
[33] T 36, 28-38; T 37, 1-2.
TLA explained that there were a couple of men living next door and they had brought someone home; she could hear her laughing. Her parents’ bedroom was right alongside where they were on the driveway.[34]This only happened once and it was at night when her mother was working at the pub.[35]
[34] T 37.
[35] T 38.
TLA described another incident that occurred in 1988 in a different part of the house:
I was in the lounge room. I was sitting on the lounge. He was alongside me. I had the ironing board with the iron. My brother and three neighbours, [LM], [KM] and [NM], they were sitting in front of the ironing board. They were watching television. It was summertime. [The accused] has tried to put his hands into my pants. I’ve knocked the ironing board with my knee, then I’ve knocked the iron straight onto the back of [LM]’s back and he wasn’t wearing any top.[36]
[36] T 38, 11-19.
TLA said the accused’s hand went into her pants, but he did not touch her vagina because she reacted too quickly. LM’s back was burnt quite badly and he had an iron mark on his back. She did not get into trouble for what happened, but her ‘brother copped a flogging because he got the blame for hitting the ironing board’.[37]
[37] T 39, 34-36.
When the family was living on Kangaroo Island, TLA could not recall any occasion when there were any sexual encounters with the accused.[38] When the family was living in the caravan there were often periods when she, CE and the accused were in the caravan. She said the touching continued when they were living in the caravan:
He would come up to the top bunk where I would sleep and he would try to put his hands either up under my nightie or down my top, but generally under my nightie and he would try to touch my vagina and on occasions he would be able to do that…
I actually made myself a flannelette nightie that went all the way to the floor and I used to try to tuck that into a little ball around my legs so I’d be right up into a little ball to try and protect myself from him being able to touch me.[39]
[38] T 41.
[39] T 42, 31-35, 37-38; T 43, 1-3.
When the accused touched her vagina, he was standing along side both bunk beds and CE was in the bottom bunk. There was no railing on the top bunk to protect her from falling out. If CE woke up when this was happening the accused would just pretend to be telling her something that he needed her to do that day. The touching in the caravan occurred three or four times a week, especially in the year when she was 14 years of age. It would occur between the time her mother left to start cooking and when the accused needed to go and have his breakfast and leave for work.[40]
[40] T 43-44.
The accused did not touch TLA’s vagina in the caravan when they were staying at the Young caravan park, or when they moved into the house in Boorowa or later the house in Young. She said the accused and her mother went to work roughly around the same time when they lived in Boorowa. However, when they were living in Young the accused came into the room housing the shower, toilet and laundry when TLA was having a shower. She said on those occasions he would put washing in or take it out of the machine. The accused would brush her breast or pinch her bottom if she walked past him and make comments about her breasts developing. She said he would do this ‘in front of everyone’ and that ‘it could be somebody who lived up the road, [AW] I know he was there once when he did that, and he’d do it in front of mum and my brother’ She was 15, turning 16 when this happened.[41] The sexual acts stopped when she moved out, aged 18. She moved out because of the sexual acts.[42]
[41] T 44-45.
[42] T 46.
When TLA was 14 in 1991, the family returned to Cummins for Christmas. There was an occasion when the accused went back to her grandparents’ house and he asked her to accompany him because she knew where something was. She could not now recall what that something was. She was very upset because she was leaving her cousins, with whom she was very close. When she and the accused arrived at her grandparents’ house, he tried to put his hands under her dress, and she was pushing him away. He was laughing, ‘thinking it was a joke, but it wasn’t.’[43]
[43] T 46.
TLA tried to get away from the accused and went from the kitchen, through the loungeroom to the end of the house and into the ironing room. He cornered her there and tried to put his hand under her dress and he ‘caught the inside’ of her thigh and then someone knocked at the door.[44]She said the accused went to a spare room to pretend he was asleep and left her to deal with the person at the door. TLA then gave this evidence:
I ran into the loungeroom, turned the tele on to make noise and pretended I didn’t hear the knock at the door. There was another knock. I proceeded to go and answer the door and it was Mr White. I don’t recall his first name, but he was a friend of [the accused]. He asked if he was there and I said that he was and that he was asleep, and I said I’d go and see if I could wake him up. [The accused] has gone to the back door, spoken to Mr White, and then I think we basically just left and went back to Farm Beach. That’s the closest he’d got to being caught, and that’s the last time I really recall him trying to touch my vagina, or make me do anything because he got so close to being caught that day.[45]
[44] T 46.
[45] T 47, 2-15.
TLA said the accused’s hands did not go under her underpants but he grabbed her on the inside of her thigh, but only for a couple of seconds because she kept trying to push him away.
Initial complaint
TLA said that she never ‘told a soul’ because she was frightened and ashamed. She said she had no confidence and the accused had told her that she would lose her mother ‘and he took her away for 10 weeks’ when she was living on Kangaroo Island.[46]
[46] T 48.
In 2016, TLA was living with her then husband, DA and their two children in West Bulla Creek. Her mother and the accused were living about half an hour away. Her brother lived at Leeton, a couple of hours away.
On 12 October 2016, she picked up her children from the bus. At home, the children were arguing and exchanging punches. She sent them both to their room for ten minutes. She spoke with her son first and then her daughter. She told her daughter that she knew she had had a bad day but she could not take it out on her brother. Her daughter then told her ‘you are going to hate me’. When TLA said she would never hate her, GA said ‘Pa’s done something to me’. Her daughter said, ‘he’s touched me’.[47] TLA called her mother and asked her to come over straight away. When JE arrived, GA told her that ‘Pa had touched her, and he had used Tashie which was their dog to make her feel more comfortable’.[48]
[47] T 49.
[48] T 50.
Later that day, JE left the house because she wanted to confront the accused. It was at this time that TLA disclosed the accused’s offending to her:
…I walked mum out to her car and it was just her and I and I just said, ‘I know she’s telling the truth because it was me as well’. She didn’t quite understand but then she did. Just the look on her face when she realised that it was me too. I went back inside and got [DA] and mum just said, ‘It’s her as well’.[49]
[49] T 50, 14-20.
A few days later TLA made a statement at the police station in Young. It related to the offending against her and her daughter.[50]
[50] T 51.
In cross-examination, TLA agreed that since 1984 she had remembered the various forms of sexual abuse perpetrated upon her by the accused. The memory of that abuse stayed with her until she told her mother on 12 October 2016.[51]
[51] T 51.
TLA made her first statement to police on 25 October 2016, and it dealt primarily, if not exclusively, with the complaint made by her daughter. TLA gave another statement to police in New South Wales on 21 November 2016 which dealt principally with the allegations involving TLA and the accused. In November 2016, TLA said the events she related to police were very vivid and agreed that they had been burned into her memory since they happened.[52]
[52] T 52.
TLA agreed that the wardrobes in the bedroom she shared with her brother in Cummins did not block sound. She said that the door to her parents’ bedroom, which was directly opposite her shared bedroom, was possibly left open every night. The house was very small and if you were awake, you could hear what was going on in the house. When everyone went to bed, the house was dark.[53] At night the house was not locked.[54]
[53] T 54.
[54] T 56.
TLA then gave this evidence when asked about the first occasion of sexual abuse:
QYour first experience of being molested, as you’ve described it today, was being woken from a deep sleep; correct.
AI never slept deeply, no.
QNo, but you were asleep, weren’t you.
AYes.
QAnd your first experience, according to you, was having the bedclothes removed from you; correct.
AYes.
QAnd that caused you to wake up.
AYes.
QBut you had no idea at that stage who had removed the bedclothes, had you.
ANo.
QYour next recollection was being grabbed by the feet and dragged down to the end of the bed; is that right.
AYes.
QThat must have been terrifying.
AYes.
QYou had no idea what time of the day, had no idea what time of the night this was, did you.
ANo.
QYou had no idea who had removed your bedclothes, had you.
ANo.
QYou had no idea who had grabbed you by the feet and dragged you down the bed, had you.
AI did when I got to the end of the bed.
QThis was all in the dark, wasn’t it.
ABesides streetlights, yes.
QIt must have been absolutely terrifying.
AYes.
QAnd you were seven or eight years of age; is that correct.
AYes.
QYou screamed loudly; correct.
ANo.
QNo. This is all happening to you and you’re terrified, you’re a terrified seven or eight year old and you don’t scream.
ANo.
QYou don’t yell out.
ANo.
QYou don’t say ‘Boo’.
AI never spoke, rarely.
QYou had your brother sleeping 6, 7 feet away from you; correct.
ACorrect.
QAnd you don’t yell out to him.
ANo.
QYou had your parents sleeping 12, 15 ft away from you on the other side of a very small house and you don’t yell out for them.
ANo.
QIn the dark.
ANo.
QCompletely disoriented as to where you were.
AI was a very shy, scared child as it was, frightened.
QThe only thing you recall having been dragged down to the bottom of the bed and somebody is then either removing your underwear or pushing it to one side is some body licking your vagina; is that right.
AIt was [the accused] licking my vagina. I could see his eyes. I could feel his moustache on my vagina.
QYou could see his eyes.
AYes.
QIn the dark with his head buried between your legs, you could see his eyes, is that what your evidence is.
AHe would look up at me as he was doing it.
QIn the dark you could see his eyes, yes.
AYes.
QWith his head buried between your thighs, you could see his eyes, could you.
AYes.
QHe said nothing to you; correct.
ACorrect.
QYou said nothing to him; correct.
ACorrect.
QAnd you didn’t call out in fright or in fear.
ANo.
QBecause you were shy; is that right.
ACorrect.
QAnd that’s the only reason you didn’t call out in fright or fear, is because you were shy; is that correct.
AYes.
QAnd that’s the truth is it.
AYes.
QJust like you could see his eyes, that was the truth as well, was it.
ACorrect.
QNot a word passes between you and/or your father in this terrifying situation; is that correct.
ACorrect.
QAnd of course the next morning having been, I would suggest, frightened half to death, was that the situation or not.
AHe carried on life as if it was normal, that nothing happened.
QBut you were terrified weren’t you.
AYes.
QAnd you didn’t even say to your mother, ‘Look, I had a terrible dream last night’.
AWasn’t a dream.
QI’m not suggesting you’re saying it was. I’m saying you didn’t say to your mother just to air this view, ‘I had a terrible dream last night, mummy’, didn’t say anything about that.
ANo. I was brought up that children are seen and not heard and are not to speak unless spoken to, that was every day. [55]
[55] T 56–60.
TLA said that by 1986 she was not close to the accused; she said that as children neither her brother nor her were close to the accused. She agreed that this lack of closeness was exacerbated by the sexual abuse. By the time she moved to Kangaroo Island the accused ‘wasn’t the best person in my world, no, he wasn’t a dad’.[56]
[56] T 61-62.
TLA confirmed that she never disclosed the abuse because she thought she would lose her mother. She said her mother would not have believed her. She agreed that when she moved out of home and in with her boyfriend’s parents she was not worried about losing her mother. She did not tell her husband in the five years they lived together before getting married. She agreed she was not frightened then of losing her mother.[57]
[57] T 62-64.
TLA said she moved back home when she was twenty years old because she broke up with her boyfriend. She was talking with the accused, but she did not like him.[58]She moved out aged twenty-three.[59]
[58] T 64.
[59] T 65.
When TLA’s children were born she would talk to the accused when she had to and there would be ‘barbecues on weekends and stuff’. She said ‘if I could avoid him, I did, yes’ and agreed that was because of what he had done to her. She did not trust him when he was near her, she said ‘I was not safe when I was with him’.[60]
[60] T 65.
TLA agreed that she knew from the first occasion of abuse that was the accused was doing was completely wrong. She then gave this evidence:
QAnd as a consequence, he having interfered with you, to use the vernacular, you certainly didn’t trust him around your children, did you.
AI never thought he would hurt my kids. I was…
QI didn’t ask you that; I asked you whether or not you trusted him around your children.
AYeah, I did.
QWhat.
AYes, I did trust him around my –
QYou did, and that’s why you sent your children off to his place and your mother’s place, regularly, to spend the night there, is that right.
AYes.
QAnd your two kids spent a lot of time at ‘[the accused] and your mother’s place by themselves; that’s correct, isn’t it.
AYes.
QAnd in fact, you used to send your daughter, [GA], off to [the accused] and your mother’s place by herself regularly, to spend the night, didn’t you.
AYep, she loved her ma.
QI beg your pardon.
AShe loved her ma.
QEven though you knew, according to you, that he had molested you at a similar age, is that correct.
AYes.[61]
[61] T 66, 16-38; T 67, 1-2.
TLA agreed that back in 1988 when her parents left Kangaroo Island she was given the option of staying on Kangaroo Island with Tracey or living with her grandparents in Cummins. She agreed that she knew why her parents gave her that option. She said they needed to leave for work but that did not change the fact that as a 12-year-old she ‘made an adult decision that I shouldn’t have had to make…a 12 year old doesn’t decide where they live’. She agreed she was relieved to be separated from the accused.[62]
[62] T 68-69.
TLA agreed she told the Young police on 21 November 2016 that she was wetting the bed constantly and she would clean up the mess herself because she was embarrassed. She said that was happening while she was being interfered with at Cummins and it happened once in the caravan.[63]She said she would sleep in the bed in the wet and hope that it would dry in the morning, but if it was still wet she would try to wash it or she would put her wet clothes into the machine so her mother would not smell them. TLA agreed that her mother would sometimes do the washing and that included washing TLA’s underwear, but she did not recall her mother saying anything about her underwear losing elasticity or being misshapen.[64]
[63] T 71-72.
[64] T 72.
TLA agreed that breakfast time for shearers was 6.00am. She said some mornings her father would get up at about 6.00am and have breakfast but some mornings he would assault her first. She agreed that the window of opportunity for him to assault her in the caravan was about twenty minutes to half an hour.[65] Fellatio did not occur in the caravan because the accused had less opportunity.[66]
[65] T 74.
[66] T 75.
As far as TLA was aware, her brother and mother never saw her being interfered with. If her mother had seen it, ‘she would have left him’.[67]
[67] T 76.
TLA agreed that she gave statements to police dated 25 October 2016, 21 November 2016 and 27 June 2018. She agreed that in her second statement she made no mention of the accused making her suck his penis or digitally penetrating her. She agreed that both of those acts were indelibly marked in her memory. She agreed that the first time she ever mentioned that the accused forced her to suck his penis was in her statement dated 27 June 2018.[68] She agreed that there was nothing stopping her going to the Young Police Station between 21 November 2016 and 1 March 2018 if she remembered anything. When it was suggested that nothing came to mind, she said ‘it never left my mind’.[69]She said she was supporting her daughter through what she was going through, and her daughter came first. She agreed that the accused went to trial in the Wagga Wagga District Court in March 2018, and he was acquitted on or about 5 or 6 April 2018.[70]
[68] T 78.
[69] T 79.
[70] T 80.
She said the police asked her to come in a couple of months after the jury verdict but could not recall if that was after a phone call or visit from her in which she said she had other things to tell the police. She agreed that on 27 June 2018 she went into the Young Police Station and made fresh allegations including allegations that the accused made her suck his penis and testicles and that he digitally penetrated her on a number of occasions.[71]
[71] T 80.
TLA agreed that in her statement dated 27 June 2018 there was no reference to her father’s eyes when she described the first sexual act. [72] She agreed that in that statement she said, ‘Dad would pull the underpants to the side or take them completely off. Dad would never take the top half of my clothing off, it was always the bottom’. She also agreed that she told police that her father did not speak to her at all during this assault.[73]
[72] T 80.
[73] T 81.
TLA agreed that in her statement of 21 November 2016 in which she described the accused coming into her room regularly to lick and touch her vagina she made no mention of acts of digital penetration.[74] She agreed that this only appeared in her statements to police after the accused was acquitted.[75]
[74] T 82-83.
[75] T 84.
TLA agreed that on 28 June 2018 she went back to the police station but said that was because ‘I felt what I needed to put in that statement was very important because it was my worst assault’.[76] TLA confirmed that she told police that she was assaulted in the accused’s bedroom and that by the time she got into the accused’s bed she was fully naked. She also told police that all of the other times she had been assaulted it was only the bottom half of her body where clothing was removed or pushed to the side. She also told police that this incident really stood out to her and was the most traumatic; it was the only time that she had absolutely no clothes on.[77] She agreed that she recalled this incident from the moment it happened, but when asked why she did not remember it back in November 2016 if it was the most traumatic of events she said ‘because I didn’t know we had to put information into the statement’.[78]She agreed that what she was saying was that she did not know that she had to put down the detail. She agreed that the most traumatic of events was left out until the third and fourth statements.[79] TLA then explained that she was so embarrassed and ashamed of this incident, but agreed that, despite it being vivid to her in November 2016, she did not say a word. However, she denied making up as she went along the events she described in her June 2018 statements and denied the allegation that she did so after the accused was acquitted of interfering with her daughter.[80]
[76] T 84, 15-16.
[77] T 84.
[78] T 84-85, 16-17.
[79] T 85.
[80] T 86.
TLA was asked why she provided all this additional detail two years later and she said it was because she was asked to provide more evidence. She did not provide it in November 2016 because she was a total mess over her daughter and her niece and was not strong enough.[81]
[81] T 87.
TLA did not know the names of the neighbours she heard in the driveway when she was assaulted in the accused’s bedroom. She said her mother helped her pick the material for the flannelette nightie she made to ward off the accused.[82]
[82] T 93.
TLA agreed that she told police in her affidavit dated 26 November 2019 that when the accused asked her to go back to her grandparents’ house in Cummins when they were on Farm Beach ‘I was upset about leaving the beach and missing out on time with my cousins that I didn’t catch up with and I rarely got to see’. However, she denied this was the real reason she was upset and said she was also upset about having to go with the accused.[83]
[83] T 94.
TLA was asked why she did not go to the back door when Mr White knocked and say ‘hello Mr White’ if the accused was molesting her at the time. She said she did not think he would believe her and when the question was repeated she said ‘because I didn’t’. She agreed that if she had gone to the back door as soon as she heard the knock that would have brought an immediate end to the molestation.[84]
[84] T 95.
TLA agreed that she attributed the reason why the accused stopped assaulting her on this occasion to the fact that this was the closest he came to being caught. She did agree that all of the times she was assaulted in the caravan with her brother in the bunk below and in the laundry with her mother and brother in the house were pretty close, but that did not deter the accused.[85]
[85] T 97.
TLA agreed that she told police that after she moved out of home, she did not have a close relationship with the accused and that she never had a close relationship with him. She said this was true.[86] She said that after he started molesting her the relationship effectively failed. TLA was then shown a tin can which she identified as a ‘beer saver can’. Written on the side of the can were the words ‘Dad’s beer saver’ and TLA said that was her writing. She said she made the can well after the accused had started molesting her. She could not say when she made it. It had a badge on it that said, ‘world’s greatest dad’.[87] She said it was possibly a birthday or Father’s Day present from her to the accused. The tin can was meant to be used by the accused to save money for his beer.[88]The can was admitted into evidence as Exhibit D5. TLA denied that the accused made the slot in the top of D5.[89]
[86] T 97.
[87] T 98.
[88] T 99.
[89] T 98-100.
TLA agreed she told police in her statement dated 21 November 2016 that after the incident during which the accused took her into his bedroom, the accused brought her brother and her into the bedroom where her mother was and showed them where he ‘had his cuts done for a vasectomy, they were on his balls’. It was put to her that this never happened, but she said it did.[90]
[90] T 100.
TLA was asked who walked her down the aisle when she got married and she said the accused and agreed that this was at her invitation. TLA denied that he was in the birthing room when she was in labour before her daughter was born.[91]
[91] T 100.
TLA agreed that her son’s middle name was the same as the accused’s first name but said this was after her husband’s grandfather and she asked her husband to change it but he said no.[92]
[92] T 102.
It was put to TLA that none of the offending she described ever happened and that she had fabricated the account, possibly in order to bolster her own child’s fabricated story. She denied this.[93]
[93] T 102-103.
In re-examination, TLA was asked if she thought the accused was the world’s greatest dad when she made D5. She said he was not a father to her and just because she ‘put stuff on a tin’ did not make him a father. She said the badge probably came from a birthday or Father’s Day card.[94]
[94] T 104.
TLA was asked whether she said anything to police in November 2016 about the incident that she described as the most vivid. She said she told police, ‘that I was taken into his room and I was made to touch him, he was circumcised, and he showed me what to do and touch his penis. I had to masturbate him with my hand until he came onto his stomach, and I was allowed to go back to my room and I also stated about the neighbours’.[95]
[95] T 105, 12-22.
Upon application by defence counsel, I permitted TLA to be recalled for further cross-examination in relation to the ‘iron’ incident. It was put to TLA that the accused was not even in the room when LM was burnt on the back by the iron as he had been ironing and had gone into the kitchen to get some water for the iron. TLA rejected this suggestion.[96]
[96] T 129-130.
JE – mother of complainant
JE married the accused in September 1977 and their son CE was born on 19 October 1978. She now has five grandchildren. When she married the accused, they were renting a farmhouse south of Cummins. The accused was working as a shearer, and she was working in the Cummins hospital delivering food to the patients. In 1979 they bought a two-bedroom house in Cummins. Her son and daughter shared a bedroom with a wardrobe between the two beds. The children went to school in Cummins. JE was working at the hospital in the laundry from 9.00am to 12 noon, five days a week and she also did waitressing and bar work at the Cummins hotel a few days a week, mostly at night on the weekends.[97]
[97] T 107–109.
The accused was working as a shearer during the day and was also working in the bar at the Cummins hotel. She worked different shifts from the accused so that one of them could be home with the children.[98]
[98] T 109.
The house was renovated in 1989 and the old kitchen became the master bedroom and TLA stayed in the room she had been in and CE moved into the bedroom that was previously the master bedroom. The laundry was outside and was accessed by going out the back door.[99]
[99] T 110.
In 1988 the family moved to Kangaroo Island. The accused had been on Kangaroo Island six weeks before they moved, and he had been offered 12 months’ shearing work on the Island. They rented a house in Kingscote. The accused did not get as much work as he had hoped. JE did some wool handling work. They decided they need to travel to get work and could not take the children with them. They offered TLA the choice of going back to Cummins to stay with JE’s mother and father, but she wanted to stay on Kangaroo Island. TLA stayed with a friend and CE stayed with JE’s brother in Adelaide. JE thought they were apart from the children for almost12 months.[100]
[100] T 110-111.
When JE and the accused were shearing at Hillson they arranged for the children to come up on the bus and they stayed in the shearing quarters with them. JE travelled back to Adelaide and bought a caravan and enrolled the children in distance education. The family then lived in the caravan for nearly four years.[101]They spent the majority of their time in Queensland and New South Wales. JE was working as a shearer’s cook five or seven days a week and would start at 5.00am and finish at 8.00pm. The accused would start work at 7.00am and finish at 5.30pm. The caravan was parked reasonably close to the shearer’s quarters so that JE did not have far to go, and the children were close to her if they were doing their schoolwork in the caravan.[102]
[101] T 111.
[102] T 112.
They rented a house in Boorowa because they were getting reasonable work there, but then sold the caravan and ended up living in Young.[103] They returned to Cummins for Christmas with her parents in 1991. They camped at Farm Beach for a couple of weeks with her parents, her brother, his two sons, her sister and her husband and their baby.[104]
[103] T 112–113.
[104] T 113.
On 12 October 2016 she was living in Young with the accused. Her daughter was living on a farm with her husband about fifteen kilometres away. JE went to her daughter’s house after getting a telephone call from her daughter asking her to come over. She knew something was wrong, but her daughter just told her to come over.[105]
[105] T 113.
When JE arrived at the house, her granddaughter told her that the accused had sexually abused her. She sat with her granddaughter for a while, comforting her, and then she told TLA she needed to go and deal with it. When she and TLA were at the car, TLA said to her ‘I know it’s right’ and JE replied ‘Yes I know, I believe, I believe her’. TLA then said ‘No, I know it’s right because he did it to me too’.[106]
[106] T 114.
JE said she and TLA had always been extremely close. TLA was very shy as a child and would never leave her side.[107]They continue to have a close relationship and have never argued.[108]
[107] T 114.
[108] T 115.
In cross-examination, JE agreed that TLA had a very close relationship with JE’s father but decided of her own volition to stay on Kangaroo Island rather than living with her grandparents.[109]
[109] T 116.
JE agreed that the caravan in which the family lived did not have a big living space and there was not a lot of privacy.[110] When they were living in Cummins and after the renovations started, she and the accused had a queen-sized waterbed which was one of the old-fashioned ones that used to slop around.[111]
[110] T 116.
[111] T 117.
JE recalled one of the neighbour’s sons, LM. She knew about him being burnt on the back but was at work at the time and did not see what happened.[112]
[112] T 118.
In re-examination, JE said the accused told her that CE had been mucking around and TLA was ironing, and CE had knocked the iron down onto LM’s back and LM had the full imprint of the iron on his back. When she got home she was informed that CE was so upset and had been given a big ‘flogging’ for it.[113]
[113] T 118-119.
CE – brother of complainant
CE now lives in Leeton, New South Wales with his wife and three children. As a child he lived in Cummins and before the family home was renovated, he shared a bedroom with his sister, TLA. He said there were two beds in the room and a set of wardrobes separating the beds. TLA was on the window side. [114]
[114] T 123.
Whilst sharing a bedroom with TLA, CE never saw their father sexually abusing her on her bed or at any time. Whilst living in Cummins, there was an occasion when he was in the lounge room with TLA, LM and possibly LM’s sister. An iron fell on LM’s back but he did not see how that happened. He said he did not cause that to occur. He recalls the incident because he was ‘flogged for actually knocking the iron down’. At the time the iron fell onto LM’s back he was playing and mucking around with LM. LM crawled under the ironing table, but CE said he was nowhere near it. It was when LM crawled under the table that the iron was knocked onto his back. LM had a full iron print in the middle of his back.[115]
[115] T 124-125.
CE said that later on in his childhood the family lived in a caravan. He slept on the bottom bunk and his sister on the top bunk. He never saw his father sexually abuse TLA in the caravan. [116]
[116] T 125-126.
In cross-examination, CE said he had no idea whether the accused was in the room at the time of the ironing incident, he did not remember. He did not know if his father had been doing any ironing. His sister was in the room, and he said that all the children were probably watching television, but he was playing with LM.[117]
[117] T 126.
Investigating officer – Detective Brevet Sergeant Phillip Dean Maynard
In 2017, Detective Maynard received a brief of evidence from New South Wales police. As a result he conducted some inquiries which revealed the following information:
·The accused was born on 10 September 1955.
·The certificate of title of the home address of the accused and his family in Cummins recorded that the title had been transferred to the accused and JE on 5 March 1979.
·Fire had destroyed the records of the Cummins Netball Association prior to 1994.
·There were no records kept by the Girls Guides Association in relation to the Brownies group for the relevant period.
·LM had no recollection of the incident involving an iron.
·The 1989 record of admissions for Kingscote Area School [Exhibit P6] showed that TLA and CE were admitted to that school on 12 October 1988 and left Cummins Area School on 16 September 1988.
In cross-examination, Detective Maynard confirmed that he liaised with the New South Wales Department of Public Prosecutions and ascertained that all court proceedings in connection with the accused in that state were completed. He also confirmed that in the information received from New South Wales Sex Crimes Investigation Branch on 15 December 2017 were two statements from TLA and a statement from JE.[118]
[118] T 131-133.
The defence case
The accused gave evidence.
He married JE on 24 September 1977. He met JE in August 1976. She was pregnant. He lived with JE until 12 October 2016. He was a shearer by trade and worked in that role for 25 years from 1972 or 1973. He had also driven trucks. He was based in Cummins when the children were growing up.[119]
[119] T 135-136.
In the first half of the 1980’s shearers were paid by the hundred head of sheep. The longer a shearer worked the more he was paid. The accused said he did over 8-hour days.[120]
[120] T 137.
In the 1970’s the accused and his wife bought a two-bedroom house in Cummins. The children slept in one of the bedrooms at the front of the house which was opposite the bedroom that he and his wife shared. After two years, renovations were undertaken on the house and after that the children stopped sharing a bedroom.[121]
[121] T 137.
The accused denied going into TLA’s bedroom in 1984 or 1985 and taking her bedclothes off, pulling her down the bed by her feet and sexually interfering with her. He said, ‘it never happened. I can guarantee. It did not happen’.[122]The accused denied all allegations of interference with TLA whilst they lived in Cummins.[123] The accused worked as a shearer but also in the bar at the Cummins pub. His wife also worked in the pub and would sometimes work the same shift. When that happened, her parents would look after the children.[124]
[122] T 137, 37.
[123] T 137-138.
[124] T 140.
In 1987/1988 the family moved to Kangaroo Island for work. They were there for 10 or 11 months. The accused worked as a shearer and his wife obtained employment there.[125] He and his wife left Kangaroo Island because the shearing work was scarce, and they needed more money.[126]He said it hurt to leave the children. After a period of separation from the children, he and his wife bought a caravan so that they could travel with the children and keep the family together. He and his wife slept at the back of the van and the children slept up the front where the A-frame and tow bar were.[127]
[125] T 139-141.
[126] T 140.
[127] T 141.
The accused said his wife would work as a shearer’s cook and her usual hours would be to be up at 5.00 – 5.30am and finishing around 7.00-8.00pm. The accused said he usually was up about 6.30am slaughtering and cutting up the meat for his wife to cook. The children would get up whenever they wanted to and do their schoolwork.[128]
[128] T 142.
The accused denied ever sexually interfering with TLA in the caravan.[129]He said, ‘…it never, ever happened. I don’t know what’s wrong with her’.[130]
[129] T 142.
[130] T 143, 2-3.
The accused agreed that the family returned to Cummins for Christmas 1991 and went camping at Farm Beach. He did not recall going back to his parents-in-law’s house and taking TLA with him. He said that Farm Beach was about 28 kilometres from Cummins.[131]
[131] T 144.
The accused said he knew Mr White from Cummins. He was the tyre manager at McLeod Tyres, and he knew him very well. He did not recall Mr White coming to his in-law’s house, but he did visit their house a few times. Mr White, his wife and two daughters would come over for barbecues on weekends.[132]
[132] T 144.
The accused then described the iron incident:
… I was ironing, I was sitting on the lounge ironing. I ran out of water because it was a steam iron, so I went to the kitchen to get those little jugs, plastic jugs, to get more water. While I was out there I heard a scream and I raced back in and [LM] has got this, it’s horrible, this pattern of an iron in the middle of his back, or it was on his side. It’s quite ironic, we were just talking about this cream, the night before, with his mother and father over at their house. They lived straight behind us. It was sitting on the kitchen bench, so I grabbed it straight away and put it on him. He never had a burn mark, it left the pattern, but no blisters, no nothing, this cream I can’t even think of the name of it, I’ve still got it at home, another tube of course.[133]
[133] T 145, 13-27.
The accused said he did not know how the accident happened. He had left the iron sitting in the rack on the ironing board. He denied the allegation that the iron was knocked off the board because he was trying to put his hand down TLA’s pants. TLA was in the room when he left to go into the kitchen; all five children were watching television.[134]
[134] T 146.
The accused was shown D5 and said he was given it for his birthday or Father’s Day in 1989 because they were up north shearing at a station. His birthday was close to Father’s Day. Before he was given D5 as a present, TLA brought the tin can out for him to cut a slot in the lid. He used a blade that he had in his toolbox and put the can on the ground and hit it with a hammer. He understood that D5 was for him to put his silver coins in so that he could save up money to buy beers when he went to town.[135]
[135] T 147.
The accused said TLA left home at 18 years of age and moved in with her boyfriend, CL for a couple of years. He was very happy when she returned home after that. When TLA married DA, she asked the accused to walk her down the aisle. He said he was in the birthing room with JE when TLA was having her first child because it was a ‘family thing’ but when TLA went into labour he told JE he was going because it was ‘for them, not us’. Nobody asked him to leave.[136]
[136] T 148.
The accused denied going into the laundry area in their house in New South Wales while TLA was in there showering.[137]
[137] T 149.
The accused said he was not circumcised.[138]
[138] T 149.
In cross-examination, the accused conceded that it was a regular occurrence for him to be in the house in Cummins with the children when his wife was not present. He agreed that he would have had the opportunity to go into his children’s bedroom without his wife being present. He denied using any such opportunity to touch TLA in a sexual way.[139]
[139] T 150.
The accused agreed that TLA would do the washing and said that was on some Saturday mornings and that there was plenty of time to do the washing on Saturday mornings. He said he probably went into the laundry when TLA was in there doing the washing but denied ever masturbating in there when she was present or making her masturbate him.[140]
[140] T 151.
In relation to the iron incident, the accused could not recall exactly where all the children were sitting, but they were all watching television. He could not say whether TLA was sitting on the couch. He was ironing clothes while sitting on the lounge. He said the ironing was not TLA’s or JE’s job and he did it most of the time. He said he had no idea how the iron came to fall on LM’s back. He denied ever blaming CE for what happened. He denied punishing CE. He said that LM’s parents did not ask how it had happened and JE did not ask him because he did not know.[141]He denied that the iron fell on LM because he was trying to touch TLA on her vagina.[142]
[141] T 153.
[142] T 154.
The accused agreed that JE would leave the caravan in the mornings before him and he could have had the opportunity to go to the area where the children were sleeping.[143]He denied taking this opportunity to sexually abuse TLA.[144]
[143] T 154.
[144] T 155.
The accused said the family stayed at Farm Beach in 1991 for 10-12 days. He did not have any occasion to go back to Cummins while camping on Farm Beach. He said that Farm Beach had ‘drop’ toilets, but they took all their own supplies. If they needed any supplies, they would go to Coffin Bay which was about 15 kilometres away. That would usually be if they needed more ice because the only fridge was in his parents-in-law’s pop top caravan.[145]
[145] T 158.
The accused agreed that he could possibly have returned to Cummins to grab something but said he did not recall doing so. He said that if it was necessary to go back one of them would go on their own or two adults and they would leave the children on the beach.[146]
[146] T 158.
The accused agreed that Mr White would have known in 1991 that they were no longer living in their house in Cummins.[147]He agreed it was entirely plausible that Mr White would have come around to his parents-in-law’s house to see him. He said if he came to the door, he would have answered it.[148]
[147] T 158.
[148] T 159.
The accused denied taking TLA into his room on one occasion when JE was not home and making her remove her clothes and suck his penis.[149]
[149] T 159.
In re-examination the accused said there were eight adults on Farm Beach when they were camping. He said he had no recollection of needing to go back to his parents-in-law’s place for supplies and there were closer places to go. He could not recall any occasion when Mr White came to his parents-in-law’s house in Cummins.[150]
[150] T 161.
In answer to questions from me, the accused said that he and JE and the two children slept in a tent at Farm Beach.[151]
[151] T 162.
Closing submissions
Prosecution submissions
In closing Mr McCabe emphasised that there was no doubt that the accused had the opportunity to commit the offences charged. Further, in relation to the incident involving the iron, there was no dispute that LM was injured by an iron falling on his back in the lounge room of the family home at Cummins. Finally, in relation to the incident at Christmas in 1991, the evidence of the accused left open the possibility that he went back to the house with TLA.
Mr McCabe argued that TLA’s evidence of the offending and the circumstances in which it occurred was plausible and I should find her to be a credible and reliable witness. Mr McCabe accepted that TLA’s evidence of the first sexual act left open a brief window of time during which she did not know who her assailant was. Shortly thereafter she recognised the person as her father. In those circumstances, Mr McCabe said that it was plausible and not inherently unlikely that she did not scream or cry out when the bedcovers were thrown off her and she was dragged by her feet to the end of the bed. Once she realised it was her father it is plausible that she simply submitted and did not resist.
Mr McCabe said I should find that TLA made an error when she described the accused’s penis as circumcised. He did so on the basis that TLA described the accused pulling the foreskin back from his penis and accordingly what she was there describing was an uncircumcised penis. Mr McCabe conceded that if I found that TLA intended to describe the accused’s penis as circumcised that was a matter that could affect her reliability and possibly her credibility.
Mr McCabe said TLA gave a compelling account of the first sexual encounter, describing the accused’s eyes and feeling his moustache scratching her thighs. He said these details are real memories and not the sort of details that a person concocting her account would be capable of describing.
Mr McCabe argued that TLA’s account of brazen and regular offending in the same bedroom TLA shared with her brother was not inherently unlikely and that the accused would have become emboldened by the ongoing failure of CE to realise what was going on. In relation to the offending in the caravan, the accused had a mechanism by which to deceive CE as to what was going on, on any of the occasions that he woke up.
TLA described two specific unlawful sexual acts in such vivid detail that Mr McCabe argued I should find the accounts compelling and credible. The first was the most traumatic of all the sexual encounters, namely the occasion when the accused took her into his bedroom and she was completely naked. TLA described the accused making her feel like she was his partner. The second was the iron incident. Mr McCabe argued that it was implausible to think that TLA had determined to use this incident to fabricate an allegation of attempted indecent assault. He also argued that I should accept CE’s evidence that he was ‘flogged’ and that this was the accused’s attempt to deflect the blame unfairly onto CE for the iron burning LM’s back.
Mr McCabe agreed that there was no evidence of any sexual offending occurring on Kangaroo Island but said that this was because there were no regular work practices established and the accused and JE had difficulty finding enough work. In addition, it was a relatively short period of time that the family spent together on Kangaroo Island.
In relation to the lack of complaint, Mr McCabe said that the fear of losing her mother was the prime motivating factor as a child, particularly given the trauma TLA felt when she was separated from her mother whilst on Kangaroo Island. Mr McCabe accepted that those factors could not have been operating upon her once she was an adult and had moved out of home, but said that her feelings of fear and shame were still impacting upon her as an adult. As much was obvious from the fact that it took something as dramatic and traumatic as her daughter disclosing that the accused touched her, to compel her to disclose her own abuse.
Mr McCabe argued that the initial complaint evidence showed a high degree of consistency of conduct because the timing of the complaint was wholly consistent with the allegations being true. He said it was implausible that she would make up allegations of abuse in the 1980s on the very same afternoon that her daughter first raised allegations. Mr McCabe conceded that ‘her daughter’s allegations created that incentive over time to improve the case against [the accused]’ but said it was not possible that she made a decision in that moment to fabricate allegations of sexual abuse. Mr McCabe conceded that the complaint in its terms was devoid of any detail from which I could infer that there was a consistency of account.
Mr McCabe said that D5 was of little significance and that the relationship between TLA and the accused could not be expected to bear none of the hallmarks of a normal father/daughter relationship, when the rest of the world was unaware of the true nature of their relationship. Mr McCabe said that one gift, indicative on its face of healthy intimacy between father and daughter, could not and did not define their relationship.
In respect of the evidence that TLA allowed her own daughter to stay overnight on her own with the accused, Mr McCabe said I should accept as plausible her evidence that she trusted the accused with her daughter and did not think he would hurt her. Mr McCabe said that TLA’s decision to move back home between the age of twenty and twenty-three was not conduct that was inconsistent with the abuse as alleged having occurred. By this time she was an adult and at less risk of abuse.
Ultimately, Mr McCabe contended that the evidence of a normal father/daughter relationship were ‘things that the community might expect to see in a relationship between a father and a daughter and [TLA] simply allowed them to happen, perpetuating the illusion of a functioning relationship in circumstances in which she had not yet found the strength to disclose the truth.’[152]
[152] T 191, 15-19.
In relation to the prior inconsistent statements by omission in her statement in November 2016 and the furnishing of further details of the abuse after the accused was acquitted of alleged offending against her daughter, Mr McCabe said that ‘all that occurred was that further details were provided’ for which she had given a perfectly reasonable explanation. That explanation was that she was not strong enough, but as every day went on, she became stronger until she had the courage to tell the entire story of what happened to her.
Mr McCabe said I should not place any reliance on the evidence of TLA in re-examination that she told police in November 2016 that the accused was circumcised. She was not asked and she did not say that the description she gave police was accurate. Her sworn evidence regarding the accused’s penis was that on one occasion she was shown how to pull the foreskin back off his penis. Mr McCabe argued that this was not inconsistent with the evidence of the accused that he was uncircumcised. Accordingly, the prior inconsistent statement that the accused was circumcised has little bearing on her reliability.
Defence submissions
Mr Radojev reminded me of the presumption of innocence and the burden of proof. He said that if I have a reasonable doubt as to the veracity of the complainant that was the end of the matter. Mr Radojev then took me carefully through the following aspects of TLA’s evidence which he said should cause me to entertain a reasonable doubt:
·TLA’s account to police of the alleged offending was substantially embellished between November 2016 and June 2018. TLA said she had vivid memories of the alleged abuse which she said were burnt into her memory and omitting to mention alleged unlawful sexual acts such as fellatio and digital penetration in her statement to police in November 2016 was inconsistent with a truthful account. In addition, the aspect of TLA’s account of the offending in the accused’s own bedroom that she said was the most traumatic of all was omitted from her statement to police in November 2016. A plausible explanation for why TLA alleged further sexual acts in June 2018 was because the accused had been acquitted of charges of sexual offending against TLA’s daughter. TLA’s explanation that she did not understand that she had to put in that information or detail was not credible and was inconsistent with the fact that she did include detail in her statement of November 2016.
·TLA’s account that she did not make a single noise or scream out when, unexpectedly, at night in the dark her bedclothes were thrown off her and she was dragged by her feet to the end of the bed was not credible and defied common-sense. TLA’s explanation that she rarely spoke and was shy was not a credible explanation for remaining silent. Further, the lights were out which was consistent with her mother being home because on her evidence all lights were turned out when her parents went to bed. TLA’s explanation for not making a complaint the next day, namely that children were to be seen and not heard, was incredulous.
·TLA’s evidence that she was not close with the accused was contrary to the physical evidence (D5) and her evidence that the accused walked her down the aisle when she married.
·TLA’s explanation for failing to complain, namely that she thought she would lose her mother because she would not believe her, was not a credible explanation for failing to complain when she was an adult and no longer living at home.
·TLA’s assertion that she trusted the accused and that is why she allowed her daughter to stay overnight, often on her own, with the accused and JE was impossible to believe. The fact that she trusted the accused with the care of her daughter could be consistent with only one explanation, namely that the alleged abuse never occurred.
·TLA’s evidence that the abuse led her to wet the bed regularly and that she often slept in wet clothes or bedsheets was unlikely to have escaped the attention of her mother. Her account of bedwetting was not corroborated.
·TLA said the reason she did not complain was for fear of losing her mother but she then said that if her mother had seen the accused interfering with her, she would have left the accused.
·TLA’s explanation for not answering the door to Mr White when the accused was indecently assaulting her was not credible. TLA said she hoped he would go away and that he would not believe her were not credible explanations for not opening the door in circumstances where that would have ended the opportunity for the assault to continue.
·TLA gave a bizarre account of the accused showing her and CE, in the presence of their mother, the scars on his testicles from his vasectomy. Neither CE nor JE gave evidence corroborating this account.
·CE’s account of the incident involving the iron was inconsistent with that of TLA, as CE did not place the accused in the room at the time the iron fell onto LM’s back. LM had no memory of the incident at all.
·TLA said in re-examination that she told police in November 2016 that the accused was circumcised and that this is a prior inconsistent statement.
Mr Radojev then summarised the accused’s evidence. He said that the accused was not shaken in cross-examination and that there was no dispute that he had been given D5, walked TLA down the aisle at her wedding and looked after her children.
Mr Radojev argued that if I entertained a reasonable doubt with respect to TLA’s evidence on count 1, that ought to be considered in my assessment of her credibility generally, and in particular, with respect to count 2.[153]
[153] R v Markuleski [2001] NSWCCA 290.
Mr Radojev said that the accused suffered a forensic disadvantage by reason of the age of the allegations but did not point to any specific disadvantage by way of, for example, lost records or dead witnesses.
Cross-admissibility of evidence on count 1 and 2 and uncharged acts
In written submissions, the prosecution confirmed that it was not relying upon any evidence for propensity purposes. No discreditable conduct notice was filed. However, the prosecution argued that the evidence of TLA that the accused performed sexual acts upon her over a number of years between 10 January 1984 and when she left the family home in 1995, aged 18, put the charged offending into context. It was submitted that without the evidence that the offending continued on a regular basis for many years, the evidence of each count might seem implausible.
With respect to count 1, the prosecution argued that it might appear implausible that the accused would commit unlawful sexual acts for a period of approximately five years and then cease offending, despite having an ongoing opportunity to do so. The incident the subject of count 2 might seem implausible were it not for the background of similar offending. The ongoing sexual abuse was also said to be relevant to explain TLA’s failure to complain to Mr White or any family member.
Defence counsel did not object to the evidence being used in the manner contended for by the prosecution. I agree that the evidence is cross-admissible for the permissible purposes outlined by the prosecution. Of course, the question of cross-admissibility arises only if I am satisfied beyond reasonable doubt that the alleged conduct in fact occurred.
Findings of fact
I find proved the following facts:
·TLA was born on 10 January 1977.
·CE was born on 19 October 1978.
·The accused was born on 10 September 1955.
·At the time of the alleged offending the accused was a shearer by trade.
·At the time of the alleged offending the accused was an adult and the complainant was a child.
·The accused married JE on 24 September 1977.
·On 5 March 1979 the title to [address redacted] Cummins was transferred to the accused and JE.
·The accused, JE, TLA and CE lived at [address redacted] Cummins until they moved to Kangaroo Island at the end of 1988. TLA and CE were educated at Cummins Area School until 16 September 1988. TLA and CE were admitted to the Kingscote Area School on 12 October 1988.
·From late 1989 until 1991 the accused, JE, CE and TLA lived in a caravan, travelling around New South Wales, Queensland and Tasmania. Whilst living in the caravan, CE and TLA were schooled through Open Access College. JE worked as a shearer’s cook, leaving in the mornings around 5.30am and the accused worked as a shearer.
·In 1991, the accused, JE, CE and TLA returned to Cummins for Christmas and stayed with JE’s parents and then camped with them and other relatives at Farm Beach for around 2 weeks. There were 8 adults camping and a number of children. P 4 comprises photographs taken at Farm Beach on this camping trip.
·In 1992 the accused, CE, JE and TLA lived in a house in Boorowa, NSW and after 6 months moved to a house in Young, NSW. TLA moved out of the family home in Young when she was 18 years of age. She moved back into the family home when she was 20 years old and left again aged 23.
·No records exist of the Cummins Netball Association prior to 1994.
·No records were kept by the Girl Guides Association for the Brownies group for the period over which the offending is alleged to have occurred.
·The accused was charged with offences of a sexual nature in relation to TLA’s daughter GA after a complaint made by GA on 12 October 2016. He was acquitted in April 2018 following a jury trial held in Wagga Wagga. All court proceedings in connection with the accused in New South Wales have been completed.
·TLA first complained regarding the accused offending against her on 12 October 2016 to her mother, JE.
·TLA made 5 statements to police, dated 25 October 2016, 21 November 2016, 27 June 2018, 28 June 2018 and 26 November 2019. The statement dated 25 October 2016 dealt primarily with the complaint made by TLA’s daughter. In her statement dated 21 November 2016, TLA did not allege that she was made to perform fellatio on the accused or suck or lick his penis and testicles or that he digitally penetrated her and she did not mention that the most traumatic aspect of the accused’s offending was that she was naked in his bedroom with him on the occasion she alleged in evidence that he made her pull his foreskin back and suck on the nub of his penis while she masturbated him.
·Whilst the accused and his family were living in Cummins, there was an occasion when CE, LM, TLA and one or two of LM’s siblings were in the lounge room. An iron which had been on the ironing board and was hot was knocked off the ironing board and fell on LM’s bare back, burning his skin. LM can now not recall the incident involving the iron.
Assessment of witnesses
To find the charges proved I must be satisfied beyond reasonable doubt that the evidence given by TLA was credible and reliable. There is no doubt that the accused had the opportunity to commit the offence charged, however the only evidence capable of proving that he did so is the evidence of TLA. It is necessary to conduct a careful assessment of both the credibility and reliability of each of the witnesses, but particularly TLA, given that both her reliability and credibility were in issue. TLA was recounting incidents and events that were alleged to have taken place many years ago and commencing when she was a young child and so her evidence should be carefully scrutinised.
I bear in mind that the only evidence of the offending is that given by TLA; there is no corroboration of the offending and no admission by the accused as to any aspect of the allegations. I bear in mind that in trials such as these the offending often, by its nature, occurs in circumstances where it will not be witnessed and there will be no opportunity for it to be detected. However, in this case the allegations do include offending that occurred in the presence of TLA’s brother and on one occasion in the presence of her brother and at least two other children.
The accused has, through his counsel, raised a motive for TLA to have fabricated and subsequently embellished the allegations. That motive arises from the evidence that TLA’s own daughter alleged that the accused had touched her. I have had regard to the fact that the accused was charged, tried and acquitted by a jury of those allegations for the sole purpose of considering whether TLA had a motive to fabricate and then embellish the allegations. I have not used that evidence in any impermissible way and have not reasoned that because the accused was alleged to have committed offences against TLA’s daughter, he is the sort of person who would have committed the offences charged. I also bear in mind that there is no onus upon the accused to prove anything, let alone motive. However, if I consider it a reasonable possibility that TLA was motivated by her daughter’s allegations to fabricate and later embellish the account of the accused’s offending, that will be sufficient to leave me with a reasonable doubt as to whether any of the alleged offending occurred.
Forensic disadvantage
In evaluating the evidence, I bear in mind that the alleged offending against TLA is said to have taken place between 38 and 32 years ago. The accused was not confronted with the allegations until October 2016. At some point (which is not clear from the evidence) he was charged with the offences the subject of this trial.
I accept that the accused is at a forensic disadvantage in defending the allegations. That is, in part by the mere effluxion of time, but also because of the frailty of memory which poses a difficulty when endeavouring to recall the particulars of events so long ago. A specific example of the impact of the passage of time is the evidence from Detective Maynard that LM had no recollection of the incident involving the iron.
However, I note that it was not suggested that if the complaint had been made in a timely manner, the accused would have had access to evidence or witness testimony that could have established that he did not have the opportunity to offend in the manner alleged.
Initial complaint
There is evidence of an initial complaint. The evidence of TLA regarding the circumstances and content of the complaint is consistent with that of her mother JE and was not challenged. I have used this evidence for the limited purpose of understanding how the matter first came to light.
I have considered whether the initial complaint demonstrates consistency of conduct of TLA such that it buttresses her credibility because of the circumstances in which she made the complaint and its content and any consistency between it and her evidence about the relevant events.
The initial complaint itself is devoid of detail. This is perhaps unsurprising given the fact that it came in response to the complaint made by TLA’s daughter that ‘pa touched me’ and was TLA’s way of explaining to her own mother why she believed her daughter was telling the truth. In essence, the initial complaint is TLA’s assertion that the same thing that happened to her daughter happened to her. The contents of the initial complaint are not capable of demonstrating consistency of account with respect to the allegations made by TLA in evidence other than at the highest level of generality.
Analysis
I found aspects of TLA’s evidence difficult to accept. The first sexual encounter came completely out of the blue. There was no evidence of any grooming behaviour by the accused. Further, on TLA’s account, before she recognised the accused as the perpetrator, she had the bedclothes thrown off her, and was being pulled by her feet towards the end of her bed, at night, in the dark, in an unlocked house.
Although I consider it possible that a young child in that situation might be frozen with fear, that was not the reason proffered by TLA for not crying out or making any noise. TLA’s explanation for why she did not do so was not convincing.
The offending as described was incredibly brazen. CE was metres away. It is open to infer that JE was asleep in the bedroom opposite. TLA did not assert otherwise. In the absence of evidence of grooming, there is no basis upon which I could infer that the accused would have been confident that TLA would not cry out or protest or complain. The risk of detection was high, if not overwhelming. These matters leave me with a real concern about the inherent likelihood of TLA’s account of this first sexual encounter.
TLA’s evidence that she trusted the accused with the care of her children and allowed her daughter to stay overnight with the accused and her mother was difficult to reconcile with her evidence that the accused had repeatedly sexually molested her when she was the same age. I cannot accept that a woman who had been repeatedly sexually abused by her stepfather would entrust the same man with the care of her young daughter in circumstances where there was an ongoing opportunity to sexually abuse her. TLA’s explanation that she did not think that the accused would ‘hurt’ her children was unconvincing and implausible. The more likely and plausible explanation is that TLA trusted the accused with the care of her daughter because there was no reason not to trust him. I also take into account the cumulative effect of the evidence of the conduct of TLA towards the accused which was suggestive of a close father/daughter relationship, and inconsistent with her evidence that she was not close to the accused, avoided him, and had left the family home because of the offending.[154]
[154] For example, the gift D5, asking the accused to walk her down the aisle when she married her husband, moving back into the family home after her relationship with her boyfriend ended at the age of 20.
I am also troubled by the fact that TLA did not include in her statement to police in November 2016 the allegation that the accused made her perform fellatio upon him and digitally penetrated her on multiple occasions. TLA said that she had vivid memories of these aspects of the offending. These allegations were made for the first time after the accused had been tried and acquitted of the sexual offending alleged to have been perpetrated on her daughter, GA. Whilst it is not for the accused to prove a motive to fabricate or embellish the allegations, the timing is consistent with a desire to strengthen her case against the accused in the face of his acquittal. This does not, ipso facto, compel a finding that the other sexual offending as earlier alleged did not occur. However, as I consider it reasonably possible that TLA embellished the allegations subsequent to the accused’s acquittal, her preparedness to do so is a matter that affects her credibility generally.
There was no corroboration of TLA’s account of the ‘iron’ incident. Further, CE gave evidence that he was playing and mucking around with LM at the time that LM crawled under the ironing table and the iron was knocked onto his back. CE could not recall whether the accused was in the room at the time this incident occurred. Whilst there was a conflict between the evidence of CE and the accused as to whether CE was blamed and flogged for this incident, the resolution of that conflict in favour of CE does not necessarily support TLA’s account. If CE was wrongly blamed by the accused for the incident, such blame is consistent with the accused not being present during the incident and apportioning blame based upon what he learnt or suspected immediately afterwards. On this issue, I am unable to decide where the truth lies and cannot make a positive finding that CE was ‘flogged’ by the accused.
TLA’s account of the accused’s attempt to put his hand under her dress and what occurred when Mr White knocked on the door was puzzling. Without any instruction or direction from the accused, TLA went into the loungeroom and turned the television on and pretended she did not hear the knock on the door. The accused went to a spare room pretending to be asleep. Despite doing all of that, after the second knock, she answered the door and told Mr White that the accused was asleep, but she would try to wake him up. The accused then spoke to him. The fact that the accused and TLA were in her grandparents’ house on this particular day was not likely to have caused a visiting friend to suspect that something was amiss. If Mr White had been looking for the accused, knowing that he was in Cummins for Christmas, a natural place to look for him would be his parents in law’s house. The fact that he happened to be there with one of his children would have been of no moment if it occurred. The behaviour alleged by TLA (hiding from Mr White) is more readily explicable if the accused had been trying to avoid Mr White for his own reasons rather than because his attempt to molest his daughter had been interrupted.
In my view, the timing and circumstances of the initial complaint are consistent with three potential scenarios. The first is that GA’s complaint was the impetus for TLA to disclose in very general terms, the sexual abuse she suffered at the hands of the accused. The second is that GA’s complaint, which was an allegation of ‘touching’ (by inference, inappropriate) was the impetus for TLA to disclose that she too had been touched inappropriately by the accused and she subsequently embellished her account such that the sexual abuse involved much more than inappropriate ‘touching’. The third is that TLA, when confronted with the horror of her daughter alleging sexual offending by the accused wanted to ensure that her daughter was believed and supported and falsely claimed the same thing had happened to her.
The initial complaint by GA (‘pa touched me’) led TLA to say to JE ‘I know she is telling the truth because it was me as well.’[155] The essence of the initial complaint was that what happened to GA had also happened to her. To paraphrase, using the terminology of the complaint by GA, TLA was saying ‘he touched me too’. This bald assertion, absent any detail regarding the nature and extent of the touching rather than simply a claim that the same thing had happened to her, leaves me in a position where the scenario of an embellished or entirely false account cannot be discounted as a reasonable possibility.
[155] JE’s evidence regarding the complaint was very similar; she said TLA told her ‘he did it to me too’.
The accused denied the allegations on oath. He was not shaken in cross-examination, and he gave his evidence in a matter-of-fact manner, without obfuscation and made appropriate concessions. There was nothing in the manner in which he gave evidence that suggested that he was being untruthful.
I accept the accused’s evidence that he was uncircumcised. TLA gave evidence that she told police in 2016 that the accused was circumcised. I do not regard this mis-description of the accused’s penis as having a material bearing on the TLA’s credibility or reliability given her age and the historical nature of the allegations, and her evidence of the opportunity to see the accused’s penis in ‘innocent’ circumstances, namely, when she said he showed her and her brother the incisions in his testicle from a vasectomy. On the state of the evidence led in this case, I am not in a position to make a finding as to whether TLA’s description of the accused’s penis and pulling back his foreskin is consistent with the accused’s evidence that he was uncircumcised and inconsistent with her prior description to police.
Having carefully considered the evidence in the prosecution case, I am left with a reasonable doubt regarding the guilt of the accused with respect to both charges and the uncharged offending. Having heard the accused give evidence, I am left in a position where I cannot reject his evidence, and the denials of the offending, as not reasonably possible.
Verdicts
I find the accused not guilty of both charges.
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