R v F - [2021] SADC 57

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v F
Criminal Trial by Judge Alone
[2021] SADC 57
Reasons for the Verdicts of his Honour Judge Soulio
21 May 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
The accused is charged with three counts of aggravated indecent assault against his two young stepdaughters.
Held: Count 1 - not guilty.
Count 2 - not guilty.
Count 3 - not guilty.

Criminal Law Consolidation Act 1935 (SA) s 56; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) s 34P; District Court Criminal Rules 2014 (SA) r 49, referred to.
R v Gardi [2015] SASC 186; R v Nisbett [1953] VLR 298; R v Smith [2004] WASCA 44; R v Dickson [2019] SADC 4; R v Court [1989] AC 28; R v Harkin (1989) 38 A Crim R 296; Drago v The Queen (1992) 8 WAR 488; R v C,M (2014) 246 A Crim R 21; Newell v The Queen (2005) ALR 85; Spence v Demasi (1998) 48 SASR; R v Landmeter (2015) 112 SASR 522; R v J, JA (2009) 105 SASR 563; R v C, M (2014) 246 A Crim R 21, considered.

R v F
[2021] SADC 57

Introduction

The accused was the stepfather of the two complainants, TG and AF, who at the time of trial were aged 23 years and 21 years, respectively. The accused had married their mother when the girls were toddlers. The accused and the complainants’ mother later had a son, the younger half-brother of the complainants.
The accused is charged with two counts of aggravated indecent assault in respect of the complainant TG said to have been committed between 31 May 2007 and 24 September 2012; and one count of aggravated indecent assault against her sister AF said to have been committed between 31 December 2008 and 24 September 2012.
The accused elected to be tried by a judge sitting without a jury.[1]
[1] Juries Act 1927 (SA) s 7(1)(a).
I am suspicious, indeed strongly suspicious, that the accused is guilty of the charges. However having regard to aspects of the evidence to which I will refer, and having regard to the high onus, I am unable to find each count proven beyond reasonable doubt. I set out my reasons for verdict.
The Charges
First Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
NF at Mount Barker between 31 May 2007 and 24 September 2012[2] indecently assaulted TG by rubbing her vagina.
[2]     Originally particularised as 1 January 2007 and 31 December 2010.
It is alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was a child of whom the offender is the parent or guardian.[3]
[3]     Originally also alleged that at the time of the offence TG was under the age of 14 years.
Second Count
Particulars of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
NF at Mount Barker between 31 May 2007 and 24 September 2012[4] indecently assaulted TG by rubbing her vagina.
It is alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was a child of whom the offender is the parent or guardian.[5]
Third Count
Particulars of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
NF at Mount Barker between 31 December 2008 and 24 September 2012[6] indecently assaulted AF by rubbing her vagina.
It is alleged that the circumstances of aggravation are that the offender committed the offence knowing that the victim of the offence was, at the time of the offence, under the age of 14 years and the offender committed the offence knowing that the victim of the offence was a child of whom the offender is the parent or guardian.
[4]     Originally particularised as 1 January 2007 and 31 December 2010.
[5]     Originally also alleged that at the time of the offence TG was under the age of 14 years.
[6]     Originally particularised as 31 December 2008 and 1 January 2012.
In relation to Counts 1 and 2 the prosecution contended that between 31 May 2007 and 24 September 2012 the accused rubbed TG’s vagina which constituted the offence of indecent assault. TG was born on 1 June 1997 and was therefore nine years old at the earliest date, and 15 years old and the latest date. The allegations are that the accused and TG were in the loungeroom of their house at Mt Barker watching television. The accused was sitting in a recliner chair and TG sitting on the arm of that chair. The accused is alleged to have rubbed TG’s thigh before rubbing her vagina over the top of the pyjamas she was wearing. (Count 1). About a month later, in the same setting, the same actions are said to have been perpetrated by the accused. (Count 2). On that occasion TG said that she pushed his hand away and told him that he was not meant to do that.
In relation to Count 3 the prosecution contended that between 31 December 2008 and 24 September 2012 the accused rubbed AF’s vagina which constituted the offence of indecent assault. AF was born on 25 February 1999. She was nine years old at the earliest date and 13 years old at the latest date. The accused is again alleged to have been sitting on a recliner chair with AF. AF was wearing pyjamas said to have had a hole just above the right knee. The accused is said to have put his finger into that hole, and then moved his finger up towards her vagina and to have rubbed her vagina on her skin for some minutes.
Elements of the Offence of Aggravated Indecent Assault
I turn then to the elements of the charges of aggravated indecent assault.
Section 56 Criminal Law Consolidation Act (‘CLCA’) relevantly provides:
A person who indecently assaults another is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 8 years;
(b) for an aggravated offence—imprisonment for 10 years.
Section 57 CLCA relevantly provides:
(1)A person under the age of 18 years will be taken not to be capable of consenting to an indecent assault committed by a person who is in a position of authority in relation to the person.
(2)Subject to subsection (3), no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.
…
(4)For the purposes of subsection (1), a person is in a position of authority in relation to a person under the age of 18 years (the child) if—
…
(b) the person is a parent, step-parent, guardian or foster parent of the child or the de facto partner or domestic partner of a parent, step-parent, guardian or foster parent of the child; or
…
The CLCA does not define an indecent assault but it is well established that it constitutes an assault accompanied by circumstances of indecency.[7] In order to establish that the accused committed the offences of indecent assault against the complainant, the prosecution needed to prove the following elements:
1.That the accused applied force (directly or indirectly) to each complainant by rubbing TG and AF on their vaginas.
2.That the force was applied intentionally.
3.That the force was accompanied by circumstances of indecency.
4.That the accused was in a position of authority as the complainants’ parent or guardian.[8] That is common ground and constitutes the element of aggravation.[9]
5.That the complainants were under the age of 18 years, rendering consent irrelevant.[10] That is common ground.
[7] R v Nisbett [1953] VLR 298 p 300.
[8] CLCA s 57(4).
[9] CLCA s 5AA(1)(i); and see R v Smith [2004] WASCA 44 at [5].
[10] CLCA s 57 (1) and (2).
I bear I mind that in relation to the requirement of indecency,[11] it is for the trier of fact to ‘decide whether right minded persons would consider the act indecent or not … whether what occurred was so offensive to contemporary standards of modesty and privacy as to be indecent’.[12] Put another way, it must be determined whether the act is ‘contrary to the ordinary standards of morality of respectable people within the community’.[13] Furthermore, the element of ‘indecency’ must have a sexual connotation.[14] In other words, it requires an element of ‘sexual lewdness’.[15] Indecency means conduct that right thinking people will consider an affront to the sexual modesty of a person.[16]
[11] See R v Dickson [2019] SADC 4 at [89] per Millsteed DCJ.
[12] R v Court [1989] AC 28 at [42] per Lord Ackner.
[13] R v Harkin (1989) 38 A Crim R 296 pp 299-301 per Lee CJ.
[14] R v Court [1989] AC 28 at [42] per Lord Ackner; R v Harkin (1989) 38 A Crim R 296 p 301 per Lee CJ; Drago v The Queen (1992) 8 WAR 488 pp 497-8 per Nicholson J.
[15] R v C, M (2014) 246 A Crim R 21 at [19] per Peek J.
[16] R v Court [1989] AC 28 at [34] per Lord Griffiths; R v Harkin (1989) 38 A Crim R 296 pp 299-300 per Lee CJ.
Where an accused’s alleged conduct is unequivocally indecent it is not necessary for the prosecution to prove that the accused had a sexual intention or motive. However, where the accused’s conduct is equivocal (consistent with both an innocent and indecent interpretation) the accused’s motive is relevant to the question of whether right minded people would regard his conduct as indecent.[17]
[17] Where an act is not in itself indecent, and is not committed in indecent circumstances, secret sexual gratification cannot convert the act into one of indecent assault. For example, in R v George [1956] Crim LR 52 the fact that the accused secretly obtained sexual gratification from merely removing a woman’s shoes did not make his conduct indecent.
Here, there is no real issue that, were it to be established beyond reasonable doubt that the touching occurred as alleged by each of the complainants, that would constitute an assault in circumstances of indecency. The real issue for determination is whether I can be satisfied beyond reasonable doubt that the touching did occur.
General Directions
General Legal Directions
The general directions were conveniently summarised by Lovell J in R v Gardi as follows:[18]
·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.
·I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense and experience in assessing the evidence.
[18] R v Gardi [2015] SASC 186 at [9]-[15].
Pre-trial Issues
Counsel for the accused issued two applications pursuant to Rule 49 DCCR seeking to exclude certain evidence set out in the declarations of proposed or potential witnesses. Ultimately counsel reached agreement in relation to some of the disputed evidence. In relation to what was suggested by the prosecution to constitute complaint evidence, it was agreed that the evidence would be led de benne esse, and be the subject of rulings as necessary.
The prosecution filed a Notice of Intention to Adduce Evidence of Discreditable Conduct including sexualised communications and acts committed by the accused against each of the complainants. It was said that there were permissible uses for that evidence pursuant to s 34P(2)(b) of the Evidence Act 1929 namely to establish sexual interest on the part of the defendant in pre-pubescent females, and a tendency to act upon that sexual interest. Counsel for the DPP also indicated that it was proposed to lead evidence of sexualised behaviour between the accused and his wife, said to have taken place in the presence of the two complainants.
The accused filed an Objection to that evidence of discreditable conduct being led, on the basis that the evidence did not have strong probative value.
Counsel for the accused also reserved the right to deal with purported admissions made by the accused, or silence on the part of the accused when faced with allegations by the complainants’ grandfather, IM; and what was said by the prosecution to be admissions as to inappropriate hugging of the complainants by the accused, and the related complaint evidence.
Ultimately counsel for the accused withdrew his objection to the evidence led in relation to the accused’s sexualised conduct with KM; the shower incident; and the nature of the hugging of the complainants.[19] However he reserved the right to make submissions as to the weight and use of such evidence.[20]
[19] T 172.
[20] T 173.
The Trial
The Prosecution
Each of TG and AF gave evidence, as did their mother KM, their grandmother SM, grandfather IM, and a family friend Ms Wittwer. The investigating officer John Hunt also gave evidence.
Defence
The accused did not give evidence. I bear in mind that the accused was not obliged to give evidence, and cannot be criticised for exercising that right. The fact that the accused did not give evidence does not in any way strengthen the prosecution case. In order to convict the accused of any charge I must be satisfied of the strength of the prosecution beyond reasonable doubt.
The Evidence
It is useful to set out, in general terms, something of a chronology which is common ground.[21] It is not in dispute that the accused was an adult at the time of the alleged offending, and that each of the complainants were children:
·The accused was born on 3 April 1965,
[21] Exhibit P11.
KM commenced a relationship with the accused in 2001.[22] Their son, CF, was born in 2004. KM and the accused married September 2006.[23] The family were living in Mildura at that time. While living there, KM told her daughters, the complainants, that she herself had been abused by her stepfather.[24]
[22] T 115.
[23] T 115.
[24] T 146.
In August or September 2007 the family moved from Mildura to the Mount Barker house.[25] TG commenced at Mount Barker Primary School on 29 August 2007 in year 5. She was aged 10 years.[26] AF was aged 8 years at the time of the move.[27] She started at Mount Barker Primary School at the age of 8 years on 29 August 2007.[28]
[25] KM at T 140.
[26] Exhibit P11.
[27] T 67.
[28] Exhibit P11 – Agreed Facts.
·TG was born on 1 June 1997,
·TG attended Mount Barker Primary School from 29 August 2007 until 10 December 2010,
·TG attended Mount Barker High School from 31 January 2011 before leaving partway through year 9 on 21 September 2012,
·AF was born on 25 February 1999,
·AF attended Mount Barker Primary School from 29 August 2007 and left at the end of year 7 on 16 December 2011,
·AF attended Mount Barker High School from 30 January 2012 to 21 September 2012 and left partway through year 8,
·AF changed her last name to F by order dated 27 September 2011,
·Residential bond details relating to the Mount Barker residence recorded the bond commencement date as 4 September 2007 and the date of lodgement of the refund form as 9 November 2012,
·The photograph of the Mount Barker residence[29] was taken in May 2016,
·The matter was reported to police at Kadina by KM on 21 December 2018,
Evidence of TG
[29] Exhibit P1 item A.
TG said that while living at Mount Barker the accused did things that made her feel uncomfortable, including commenting about her breasts, and hugging her, as she described it, ‘weirdly, like too long.’[30]
[30] T 19.
She said that the accused also did inappropriate things in her presence relating to her mother. She said that he spoke about things he wanted to do to her mother in the bedroom, accompanied by thrusting motions.[31] She gave an example that the accused would grab her mother around the waist and pretend to thrust her from behind.[32]
[31] T 19.
[32] T 20.
TG said the hugging would involve them standing face to face and the hug would go on for something like 30 seconds, starting as a nice firm hug and then squeezing tighter.[33] She said that on occasions she could feel the accused’s penis pushing against her.[34] She could not recall how old she was when that commenced, nor how old she was when such hugging stopped, nor any particular occasion on which it occurred.[35] She said the accused would ‘make his penis visible’ while sitting on a chair in the loungeroom, wearing shorts.[36]
[33] T 21.
[34] T 22.
[35] T 22.
[36] T 26.
TG described the ‘shower incident’. She said that she was taking a shower when she thought she heard someone outside of the shower room, and saw a camera flash through the bathroom window.[37] She could not identify who was outside.[38]
[37] T 28.
[38] T 29.
As to the specific counts, TG gave evidence that the accused was sitting in an armchair. She was sitting half on the armrest and half on the chair. The accused leaned over and touched her thigh.[39] She was about 10 or 12 years old at the time.[40] She could not say whether she was in primary school or in high school. She was wearing pyjamas at the time. There was no one else in the loungeroom, but her mother was in the computer room.[41] AF was also at home. TG said she often sat in the same manner next to the accused to watch television together. She said that she was on the accused’s right and he used his left hand and moved it across her thigh area in a rubbing motion. Nothing was said.[42] After doing that for some 15 seconds she said the accused moved his hand on top of her vagina. She believed it was over her pyjamas.[43] He was rubbing her. She said she felt weird. She got up off the chair.[44]
[39] T 30.
[40] T 31.
[41] T 32.
[42] T 33.
[43] T 34.
[44] T 35.
The second incident, she thought, happened about two weeks later. It was in the same circumstances. They were seated in the same positions. Her mother was home and in the kitchen.[45] AF was also home and in the dining area.[46] The accused started touching her thigh and then moved his hand on top of her vagina and was rubbing her on the vagina over her pyjamas.[47] TG told the accused that he should not be doing that.[48] She said that accused did not respond, and she got up off the chair. She went to her room. The accused did not ever touch her in that manner again.[49]
[45] T 36.
[46] T 37.
[47] T 38.
[48] T 39.
[49] T 39.

TG said that a few days after the second incident she was in AF’s bedroom when AF said that the accused had touched her VJJ (commonly understood to refer to vagina). TG said she responded ‘he has done similar to me’.
TG said that they went to their grandparents’ house immediately after the conversation in their bedroom.[50] That was walking distance. TG said that she told both grandparents (IM and SM) that the accused had touched her on her vagina. She could not recall speaking to her grandmother before going into the shed where the conversation took place. She said that her mother was then contacted. She arrived at her grandparent’s house, and went into the shed to speak with her grandfather, while TG was inside the house with her grandmother.[51] She did not speak with her mother about what the accused had done, nor did she see AF speak with their mother about what the accused was said to have done.[52]
[50] T 40.
[51] T 43.
[52] T 43.
TG said her mother kicked the accused out of the house that day, but he came back after that.[53] TG said that after that day she did not hug the accused again. She did not think he made any comment about her breasts again. However, she said that she thought the accused did expose his penis in the way she had earlier described, after that event.[54]
[53] T 43.
[54] T 44.
TG said all of them moved back to live in Mildura some time after that. She went to stay with her other grandmother who lived in Mildura, whereas AF stayed living with her mother and the accused.[55]
Evidence of AF
[55] T 45.
AF said that she had enjoyed a good relationship with the accused up until the incident in question.[56] The incident occurred when she was between 10 and 12 years old. She was in the last two years of primary school.[57] She was sitting on a recliner with the accused. She was on the right hand side. She was wearing a pair of pyjamas with a hole just above the right knee.[58] Both her mother, and TG were at home. She said she frequently sat with the accused on the recliner watching television. She had never seen her sister sitting with the accused in that manner.[59]
[56] T 68.
[57] T 73.
[58] T 74.
[59] T 75.
AF said in evidence that the accused put two fingers into the hole in her pyjamas and then moved them up until his fingers were under her underpants, and he rubbed her clitoris.[60] He used his right hand and the touching lasted about five minutes. She said the rubbing came to an end when there was a noise at the back of the house and the accused stopped touching her and she got up and ran to her bedroom.[61]
[60] T 75-76.
[61] T 77.
AF said there were other occasions on which the accused made her feel uncomfortable by hugging her in such a way that he was pressing his penis against her. Such hugging happened either after school as a greeting, or when he returned from work.[62]
[62] T 77.
AF also gave evidence about the accused speaking openly about sexual matters with KM. He would ‘pretend to dry hump’ her in the presence of the complainants.[63]
[63] T 80.
AF said that she first told her mother, and her stepsister, A, about the incident in the loungeroom which constitutes Count 3. She said she did not tell them about anything else that was making her feel uncomfortable at the time.[64]
[64] T 81.
She said the next time she mentioned it to anyone was when she spoke to her grandparents, which was a few weeks after the incident. She went with her sister, but could not recall having had a conversation with her sister about the incident before doing so. She said ‘so at this point we were both aware that we had both been feeling uncomfortable with the hugging but I hadn’t – I don’t know anything else from her side.’[65]
[65] T 82.
She said that when she attended at her grandparents’ place she, TG, and both grandparents went into the shed and had a discussion. She said she told them about the hugging that made her uncomfortable. She said she told them about the abuse in the loungeroom. She told them about the accused’s actions towards her mother. She said the topic of the accused taking a picture of TG had also come up. When asked to elaborate she said that she had told them that the accused had placed his finger into a hole in her clothing, and moved his finger upwards and then rubbed her vagina. She said she could not remember any specific detail of what her sister had told their grandparents.[66]
[66] T 83.
AF said that following that conversation there was a period when the accused lived in his car, but for the most part he lived in the house with the family, and stayed with KM, ‘until this came up’ which I infer meant the report to police, and the laying of charges.[67]
[67] T 84.
AF said that after the family moved back to Mildura she and TG initially moved into live with the accused’s daughter A, and after a short time moved to the caravan park where her other grandmother lived.[68] At some stage thereafter she moved back to live with her mother and the accused where she stayed until she was about 17 years of age.[69] She had moved to Wallaroo to live with the accused and her mother in 2015 when she was 16 years of age, and thereafter to Kadina where she also lived with them,[70] until she moved out of home at the end of year 12. She then moved out for a while, but moved back into live with the accused and her mother while she was saving money to travel overseas where she lived for two years.[71] AF agreed that she was asked to pay rent while living with the accused and her mother after she moved back in. She said she resisted that request because she was not yet 18.[72]
[68] T 90.
[69] T 90.
[70] T 92.
[71] T 92-93.
[72] T 94.
AF said that she could not recall any incident when the accused had put a finger in a hole of her leggings when her mother was present, and her mother had told the accused to rip the hole to a larger size so she would have to put the leggings in the bin, which caused AF to become upset. She said that if that had happened she would remember the occasion. She did not remember it, and so it did not happen.[73]
[73] T 95-96.
AF said she had a clear memory of the accused inserting two fingers into the hole in her pyjamas above the knee and touching her vagina thereafter. She agreed she had told police in 2019 that the accused had put his right hand index finger into the hole in her pyjamas. When the apparent discrepancy between the two accounts was put to her, she suggested that she had indicated to police by gesturing that the accused had used two fingers. She agreed she had spoken to the investigating officer, Mr Hunt, a few days before trial. She told him that one finger was used.[74] She said ‘I can’t confirm that I said as a finger, we had this conversation via a phone call and this was after I had first met with the prosecutor so I was very emotionally not completely focussed.’[75] She said she could not confirm or deny the words that she used but that she knew that the accused had used two fingers.[76] She denied giving evidence that she had not told her mother about the accused touching her on the vagina.[77]
[74] Exhibit P12 – Agreed Fact 10.
[75] T 101.
[76] T 101.
[77] T 103
AF denied that when she and TG went to their grandparents’ house, her grandmother stayed in the house while she and TG went to the shed and spoke to her grandfather. She maintained that both grandparents were present in the shed when she was telling them about what the accused had done.[78] She agreed that she had complained to her grandparents about the way the accused had hugged her and that it made her feel uncomfortable. She maintained that she had also told both of them about the indecent assault in the loungeroom.
[78] T 103.
AF agreed that she had spoken to a social worker after the family had moved back to Mildura, in about December 2012.[79] She said that prior to the arrival of the social worker her mother had said to her ‘say whatever you want to, I will just have to deal with the consequences later’. She said that made her feel pressure of having to keep the family together, and she felt that she could not tell the truth.[80] She agreed that she had told the social worker, in December 2012, that there had been no sexual contact between her and the accused.[81] She agreed that she also said that she had never felt uncomfortable in the accused’s presence.[82]
Evidence of KM
[79] T 105.
[80] T 106.
[81] T 106.
[82] T 107.
KM said that the accused behaved towards her in a sexual manner in the presence of the complainants including saying provocative things and touching her in a provocative manner.[83] She did not hear the accused ever make inappropriate sexual comments to the complainants.[84]
[83] T 118-119.
[84] T 120.
Some time in 2009 or 2010 TG sent a photograph of herself in shorts and a sports bra to an unknown 18 year old male.[85] That incident was reported to police by KM.[86] TG’s mobile telephone was taken away from her and replaced with a simple mobile telephone that did not have a camera.
[85] TG at T 48; KM at T 152.
[86] KM at T 152.
KM said that each of the complainants would sit on the recliner with the accused from time to time. That practice stopped after the complainants approached her regarding the way the accused cuddled them; particularly TG saying that the accused made her feel uncomfortable by squeezing her and pushing her breasts into his chest and his groin into hers when they were hugging. She said AF agreed.[87] She said that she told them to stop sitting on the recliner with him.[88] She said that conversation took place about a week before the attendance at her grandparents’ place.[89]
[87] T 122-123.
[88] T 123.
[89] T 124.
KM said there was a specific incident when AF was sitting on the recliner with the accused. They had been to netball practice. AF was wearing leggings which had a hole in the upper thigh part. The accused found a hole in the leggings. KM said that she said to the accused ‘can you rip it for me because she has so many holes in those leggings that it’s an embarrassment to take her out in them because they’re all over her backside as well.’ The accused put his finger in the hole in the leggings to rip them, and AF got upset and ran to her room.[90]
[90] T 124.
A couple of days later the shower incident occurred when TG was about 13 years of age.[91] Prior to the shower incident, there had been a conversation about the way in which the accused hugged the complainants.[92]
[91] KM at T 124.
[92] KM at T 124.
KM gave evidence that there was an incident when TG was in the shower and yelled out. KM raced in to ask what was wrong and TG said to her that someone had taken a photo through the window. She said that incident occurred between the time of the conversation about hugging and the conversation at her grandparent’s place a week later. It occurred a couple of days after the incident with AF’s leggings.[93] KM reiterated that the initial discussion about discomfort with hugging, the incident with the tearing of the leggings at her request, the incident where TG was having a shower, followed by another discussion about hugging, and the discussion with her parents all took place in that order, over the course of about a week.[94]
[93] T 125.
[94] T 125.
As to the ‘shower incident’ KM went outside after TG had called out. KM said the accused was watering the garden. She said he seemed out of breath. She demanded to look at his phone which he handed over. She checked his phone. She did not find any photographs.[95]
[95] T 128.
Having regard to that evidence, I am unable to find that the accused took a photograph of TG in the shower, or even that he was at the window looking through. I do not regard that evidence as relevant to my considerations.
As to the day when the two complainants attended their grandparents’ house KM said that she received a call from her stepmother, SM. She attended at the house some time in the afternoon. She spoke briefly with the complainants only to say hello. She had a discussion with her father. As a result of that she had a discussion with the accused.[96] She said to him that the complainants had gone to her parent’s house regarding ‘the way that he cuddles them and the shower incident with the photo’. She said the accused responded saying that it ‘was all a load of BS and that they were just trouble makers trying to cause problems for us’.[97] KM said that the accused did not stay at the house that night, but thereafter she continued to live with him.
[96] T 130-131.
[97] T 131.
KM gave evidence that, much later, after she had moved with the accused to Kadina, she received a message from her niece on the topic of her niece having heard that the accused had done something to the complainants. She then contacted TG who sent back a message saying:[98]
he rubbed me up multiple times on top of my you know what in circles like kept rubbing and watched me in the shower and [I] swear to this day he took photos.
[98] Exhibit P6 – admitted not for the truth of its contents, or as complaint evidence, but only in relation to the asserted admission - see T 136.
KM said she showed that message to the accused. The accused appeared to read it. KM said she said to the accused ‘is it true?’ and he said ‘yes’. She asked him how many times he had done it, ‘once, twice, a hundred, what?’ and the accused responded by saying he didn’t know. KM said she told him to pack his bags and get out of the house.
KM said she also had a conversation by telephone with AF who was still in the United Kingdom. KM said she had a further conversation with the accused. She said she told him she had received a message from AF stating that he had touched her as well. She said he responded ‘what am I being accused of now?’ and she said ‘it doesn’t matter what she said. Have you done anything?’ He denied doing anything.[99] She said she reported the matter to police about a week later.[100]
[99] T 137.
[100] T 139.
When cross-examined, KM agreed that the accused’s ‘sexy talk and actions’ and coming up behind and thrusting himself into her, was on the basis that the accused appeared to think that was done in humour.
KM agreed that when she had a conversation with her father, after the complainants had attended there, the topic of conversation was that the complainants had said they felt uncomfortable around the accused, in particular uncomfortable about his cuddling or hugging of them.[101] She agreed that her father had relayed to her the very things that the complainants had complained to her about a week or two earlier.[102]
[101] T 147.
[102] T 147.
KM agreed that her father had not said anything about the complainants saying the accused had touched their vaginas. She agreed that that would have stood out and shocked her if her father had told her that. It was not something she would have forgotten lightly.[103] She said that the next day she spoke to a policeman at Mount Barker about the issue of the inappropriate hugging.[104] She agreed that if either complainant had told her that the accused had touched them on the vagina, she would have evicted him from the house immediately. She said ‘definitely correct’.[105]
[103] T 147.
[104] T 147.
[105] T 148.
KM agreed that there was an inconsistency in her evidence as to confronting the accused in 2018 about the suggestion that he had inappropriately touched TG. KM had given evidence that she had asked the accused how many times the accused had touched TG, to which he responded that he didn’t know. She did not mention that aspect of the conversation to police.[106] She proffered as a possible explanation for the fact that that did not appear in her police statement, that the person that was taking the statement did not hear it when she said it.[107]
[106] T 148-149.
[107] T 150.
KM agreed that when the message had been sent to her by TG, and she had spoken to the accused about whether he had touched AF and TG, she had a conversation with the accused about finding him more suitable accommodation.[108] She agreed that it was clear to her that because of the complaints that had been made, he would have to leave the home. She agreed that the accused had said that he wanted to get other accommodation organised before she reported the matter to police. When it was put to her:[109]
QCan I suggest that’s all he said really on that topic on about 23 or 24 November.
AAt maybe that time and point, yeah.
[108] T 151.
[109] T 151.
KM agreed that in all the time the family was living at Mount Barker the only time that the complainants told her they felt uncomfortable about the accused was in relation to the way he hugged them and pressed his body against them.[110]
Evidence of SM
[110] T 153.
SM said the complainants had attended at her house. AF said that the accused had been touching them. They were really upset. She said AF told her that she had a pair of pyjama pants on that had a hole in the crotch, and that’s all she said. She said that TG just told her that the accused had been touching them inappropriately. SM said that she told the children that as she was only their step grandmother, she would get their grandfather to come in to talk to them.[111] She said he took them to the shed to discuss matters and she did not go to the shed. She said that her husband, the complainants’ grandfather, rang KM to ask her to attend at the house.[112]
[111] T 156.
[112] T 156.
SM said that after the complainants had spoken with KM and their grandfather they came inside. She said the accused then arrived at the house, once he had finished work, and went out to the shed. She said the complainants stayed at her house that evening, and returned home the following day.[113]
[113] T 157.
SM agreed that the complainants complained about the way the accused had been hugging them. That was the first topic of inappropriate touching that was mentioned. It was after that she sent them out to speak to their grandfather. She was not privy to the conversation that their grandfather had had with them in the shed.[114]
Evidence of IM
[114] T 158.
IM said that the complainants had attended at his house and were upset. They started to tell him something but he suggested that their mother be present. That conversation took place in his shed.[115]
[115] T 159.
IM said that AF did not say much. TG did most of the talking. TG said she had ‘been touched in inappropriate places’. IM said that he did not ask her anything more on that question until her mother was present. The only thing TG said about where she had been touched was ‘down below’. Thereafter her mother attended.[116]
[116] T 160.
IM said that when the accused attended he had asked the accused ‘did you touch the girls?’ and the accused didn’t say anything.
IM was asked whether the complainants had complained to him about what might be described as inappropriate hugging, and he responded saying they did not go into that sort of detail.[117]
Evidence of Ms Wittwer
[117] T 161.
Ms Wittwer said she was a friend of KM’s. In late 2018 she had attended KM’s home in Kadina, because KM was upset. KM was in the process of separating from the accused. The accused was present.[118] She said that she went to have a conversation with the accused in the shed in that property. She noticed his clothes were packed.
[118] T 162.
Ms Wittwer said that she said to [the accused] ‘what the fuck?’ The accused said ‘I don’t know. I don’t know what to say.’ She said ‘for fuck’s sake, you’re my friend and I want to know did you or did you not do this to the girls?’ She said he put his head down. She said to him ‘did you do this?’ and he said ‘yes. Yes, I did. I don’t know why, I can’t fix it and I don’t know why I done it”.[119]
[119] T 163.
In cross-examination Ms Wittwer agreed that she was angry when she confronted the accused. There was no discussion about the details of what had happened.[120] She agreed that the accused had said ‘yes I’ve made a mistake’. And something like ‘I don’t know what to say.’ She agreed that he had said ‘I don’t know what to say, I don’t know what to do, I don’t know how to fix it.’ She agreed that she had not had any conversation with the accused before that regarding the details of the allegations.[121]
Police Interview of Accused
[120] T 164.
[121] T 165.

The accused was interviewed on 8 March 2019 in relation to the allegations by TG,[122] and AF.[123] He was cautioned. Allegations were put to him which are the foundation for Count 1. He was asked whether there was anything he could say about that. He said ‘no’. He was asked whether that happened. He said ‘no’. He agreed that there were occasions when he was on the recliner chair, and TG would sit on the arm of that chair next to him. He agreed that he would put his arm around her on occasions. He agreed that she would cuddle into him and watch TV. He said he did not think he ever rubbed her leg while they were sitting there.
[122] Exhibit P7, and see MFIP8 transcript.
[123] Exhibit P9 and see MFIP10 transcript.
The events said to constitute Count 2 were put to him. He was asked ‘can you recall that?’ and said ‘no I don’t recall that at all’. He said he did not do that. He was asked about the nature of his relationship with TG, and said it was ‘not fantastic’ because she was not exactly the most perfect child, and he had to discipline her, including grounding her, sometimes smacking her, and sometimes yelling at her. He was asked whether KM had ever spoken to him about TG’s allegations. He said she had. He was asked about that conversation. He said that while at Mount Barker KM had said that TG had come forward and said I had done things to her and touched her and that, and KM asked whether I did. The accused said that he had responded ‘no’. He said the topic had come up more recently.
In relation to AF, the allegations said to constitute Count 3 were put to the accused. He said that did not happen. The accused was asked about an incident based on KM’s account of the hole in the leggings. He said he could not recall that incident either. He was asked about the incident when he was outside watering the garden, and KM asked him whether he took a photo through the bathroom window. He said that he had told KM that he had not done so.
In considering answers by the accused in the police interview I bear in mind that I might legitimately place more weight on incriminating statements than exculpatory statements.[124]
[124] Newell v The Queen (2005) ALR 85 at [20]-[25]; Spence v Demasi (1998) 48 SASR 536.
Consideration
Forensic Disadvantage
In considering my verdicts I take into account that although the accused was confronted by KM in about mid-2012 that was in relation to the suggestion of inappropriate hugging rather than indecent assault by rubbing the complainant’s vagina. I accept that the period of at least six years between the alleged acts, and being confronted by the allegations, put the accused at a forensic disadvantage. I bear that in mind in my consideration, given that the offending is said to have been constituted by two acts against TG, and one act against AF, committed within a relatively short space of time. Details as to the surrounding circumstances, the opportunity to offend and the like, may have been more readily available had the allegations which formed the basis of the charged acts been put to the accused at a time more proximate to the alleged offending.[125]
Complaint Evidence
[125] My finding is that the allegations put to the accused related to inappropriate hugging.
TG said that the first person she had told about the incidents was her sister, AF. That was in the context of AF saying to TG that the accused had touched AF’s VJJ (commonly understood to be a reference to her vagina.) TG said in evidence that she had responded saying that the accused had done the same to her. She said that was some days after the second incident (Count 2).[126]
[126] T 39-40.
TG said she and AF went to their grandparents’ place and told SM and IM what had happened. She said that she went inside with her grandmother and later her mother attended. She did not speak with her mother.[127]
[127] T 40 ff.
AF said she had first told her mother and her stepsister, A, about being touched on the vagina, and then told her grandparents a few weeks later. She said she told her grandparents about the accused hugging her in a way that made her feel uncomfortable; about the abuse in the loungeroom (Count 3); about the accused’s behaviour towards her mother; and about the accused allegedly taking a photograph of TG in the shower. She said she told her grandparents the detail of the accused having put his finger in the hole in her pyjamas, and then moving his finger upwards and rubbing her vagina underneath her underwear.[128]
[128] T 81 ff.
I note that in May 2019, after the allegations had been raised with police, an attempt was made to obtain a statement from A, but she declined.[129]
[129] T 167 – Examination-in-chief Detective Hunt.
The complainant’s mother, KM, said she had attended her parents’ house on the occasion of the complainants’ attendance at that house. She did not speak to either complainants. She said her father relayed that there had been a conversation with the complainants about the hugging and the allegation concerning the taking of a photograph while TG was in the shower.[130] She said that if the complainants had told her the accused touched them on the vagina she would have immediately evicted him.[131] Her evidence is inconsistent with that of AF regarding AF’s initial complaint.
[130] T 129.
[131] T 148.
The complainant’s grandmother, SM, said the complainants attended at her house, upset, on an occasion when TG was about 12 and AF 10 or 11 years of age. They first mentioned the accused hugging them.[132] She said they also said that AF said the accused had been touching them and they were upset. She said AF told her about a pair of pyjamas that had a hole in the crotch. TG just said the accused had touched her and her sister inappropriately.
[132] T 158.
The complainant’s grandfather said he had a conversation in the shed at his house with the complainants. TG did most of the speaking. She said the accused had touched her ‘down below’.
Albeit that there is some inconsistency in the evidence as to whom the initial complaints were made, I accept that the statements of the complaints to IM and SM were capable of constituting elaborations of the initial complaints.
The evidence is admissible to demonstrate the way in which the allegations came to light, and is relevant in assessing the consistency or inconsistency in the complainants’ conduct. I bear in mind that the evidence is not evidence of the truth of the allegations.
However, I also bear in mind that the evidence of the complainants’ mother is at odds with that of the complainants in that it is difficult to reconcile the complaint evidence with the evidence that when KM confronted the accused she canvassed only the issue of the inappropriate hugging.
Having regard to the way in which the evidence of complaint, received de bene esse, emerged, I consider that such complaint evidence is admissible. I remind myself that the evidence is led not as to the truth of the contents, but rather to explain the way in which the offending came to light, and to enable an assessment of the consistency, or otherwise, of the complainants’ conduct, and the consistency of the allegations.[133] The difficulty that emerges relates to inconsistencies between the various accounts. TG said that she was told by AF of the accused’s actions against AF, and responded saying that a similar thing had happened to her.
[133] R v Landmeter (2015) 112 SASR 522 at [12]; R v J, JA (2009) 105 SASR 563 p 583.
The various versions of the events that took place at their grandparents’ house were attended by inconsistencies as between the witnesses. SM said that upon hearing, in a very preliminary way, from the complainants as to the fact that there was an issue with the accused, she formed the view that it was not appropriate for her, as step grandmother, to be involved in that conversation and suggested they speak to their grandfather, IM. That conversation with IM took place in the shed of the property. SM said she was not present for that conversation. AF was adamant that SM was present.
IM said that the complaint, at that time, was about the accused touching one or other of the complainants ‘down below’. That is broadly consistent with the version of events described by the complainants. IM said that he did not consider it appropriate, as a man, to hear the details of the allegations and suggested that the complainants speak with their mother about the incident.
It seems to be common ground that thereafter KM spoke with IM. KM is to be properly regarded as a prosecution witness. She had no divided loyalty, and no interest in protecting the position of the accused. Their relationship had come to an end, at her instigation, as a result of events much later in 2018. The information she gleaned, at her parent’s house, and with which she confronted the accused, related to the fact that the complainants felt uncomfortable about the way he was hugging them. She agreed that had there been any suggestion that he had indecently assaulted her daughters in the way that they have alleged, the accused would have been immediately evicted from the house, and that would have been the end of the marriage.
Discreditable Conduct
Had I been able to find that the accused had taken a photograph of TG from outside the bathroom window while she was showering, I would have regarded that as admissible evidence demonstrating the accused’s sexual interest in TG. The evidence of KM was that when she confronted the accused he denied taking a photograph. She seized his phone, which I infer to have been at a point when it would not have been possible for him to have deleted any photograph taken. On her evidence there was no suggestion of any photograph having been taken, successfully or otherwise, of TG in the shower. When interviewed by police in 2019 the accused denied having taken a photograph or looking through the window at TG. I bear in mind that that exculpatory account by him, at a time well after he knew there were allegations of inappropriate behaviour by him towards the complainants, is of limited weight. It was not tested in cross-examination. Nevertheless, it fits with the evidence of KM on that topic. I am unable to find that the accused acted in the manner suggested, and accordingly that evidence does not assist in the determination of the issues.
While I accept on the evidence that the accused behaved in a sexual way towards his wife, in front of the complainants, KM conceded that the accused appeared to do so in a joking manner. That evidence, again, does not assist me in determining the issues.
The evidence of the hugging which made the complainants feel uncomfortable, and comments about their physical development, may indicate a sexual interest on the part of the accused and is admissible.
As to the evidence of the accused exposing his penis by pulling his shorts up while sitting in the recliner, as described by TG, such action on the part of the accused would constitute indecent behaviour. I consider that I would have to find such behaviour proved by an acceptance of TG’s evidence beyond reasonable doubt. Such behaviour, if deliberate, would be relevant to my consideration as part of the sexualised interaction by the accused, with TG. TG’s evidence that she thought the accused had continued to do that even after he had been spoken to following the events at the grandparents’ house, and KM’s evidence that she had never seen such an event together, mean that I am unable to find beyond reasonable doubt that the accused deliberately acted in that way.
Admissions
As to admissions by the accused shortly after the alleged offending, IM gave evidence that he had a conversation with the accused after the complainants attended the house. Counsel for the DPP relied upon the following evidence from IM:[134]
[134] T 160.
QDid you have a conversation with [N] that day.
ATried to but unfortunately he was silent when he realised there was something wrong.
QWhat did you say to [N].
AYeah, virtually asked him what he thinks happened that I can remember, but he went silent the minute he knew something was wrong and I just repeated it a couple of times. ‘Did you touch the girls?’ and he didn’t say anything.
...
QWhen [N] arrived, you asked him what had been going on with the girls.
AIn that sort of conversation, yes. I can’t remember the exact words but around that way, yes.
…
QDo you say that for your conversation with [N] in the shed, the girls were there for some of the time.
ASome of the time, yes, because I asked [N] two or three times, did he – what happened, you know, and he was just silent.
I bear in mind the observations of the court in R v Alexander:[135]
[T]he whole admissibility of statements of this kind rests upon the consideration that if a charge is made against a person in that person's presence it is reasonable to expect that he or she will immediately deny it, and that the absence of such a denial is some evidence of an admission on the part of the person charged, and of the truth of the charge.
Undoubtedly, when persons are speaking on even terms, and a charge is made, and the person charged says nothing, and expresses no indignation, and does nothing to repel the charge, that is some evidence to show that he admits the charge to be true.
[135] R v Alexander [1994] 2 VR 249.
The difficulty with the proposition put by counsel for the DPP is that the evidence of IM does not disclose that he put any specific allegations to the accused. He did not put any allegations or question TO the accused about the charged acts. In those circumstances, I cannot regard the silence of the accused as being in some way an admission that the charge is true.
As to the admissions said to have been made in 2018, KM’s evidence was that she confronted the accused with TG’s message.[136] I bear in mind the contents of that message. Whilst it might be inferred that the message contained a description of the charged acts; and of the accused watching TG in the shower; and taking photographs of her, the message refers to ‘multiple times’ which is not consistent with TG’s evidence. The message is not precise in its terms, which is not a criticism, but when considering, even on an acceptance of KM’s evidence, what it was that the accused is said to have been conceding, that lack of specificity is important. KM said that she asked the accused whether it was true. She said he turned around and looked her in the eye and said ‘yes’. She gave evidence that she asked how many times he had done it to TG and the accused said he did not know. That latter part of the conversation did not appear in KM’s statement to police on 8 February 2019, less than three months after the conversation is said to have taken place. That causes me some disquiet.
[136] Exhibit P6.
KM gave evidence that she confronted the accused saying that she had also received a message from AF stating that he had touched her as well. She said the accused responded by saying ‘What am I being accused of now’. KM said that she responded saying ‘It didn’t matter what AF had said, have you done anything’. KM said the accused denied it.
Ms Wittwer’s evidence of her statements to the accused, and the accused’s responses, do not in my view constitute admissions to the charged conduct. Her evidence was that she had made statements of a general nature to the accused saying to him ‘What the fuck?’ to which he remained silent; ‘What have you done?’ to which the accused responded ‘I don’t know what to say’; and ‘For fuck’s sake, you’re my friend and I want to know did you or did you not do this to the girls?’ and he put his head down. Ms Wittwer gave evidence that she then said ‘Did you do this?’ and he said ‘Yes, yes I did. I don’t know why, I can’t fix it and I don’t know why I done it.’ I cannot find, given the description of the conversation, that the accused’s behaviour or responses constitute an admission that he had committed the charged acts. It might be interpreted as an admission that he had somehow behaved inappropriately towards the girls.
Conclusion
The alleged acts were said to have been committed in circumstances where the accused’s wife was present in the house, and on each occasion when the other complainant was also present in the house. The alleged acts, particularly in reference to Count 1 and Count 3 were brazen and attended by significant risk. That of course does not mean that such acts were impossible, but there is a need to carefully scrutinise the evidence.
Ultimately, the finding of guilt beyond reasonable doubt requires acceptance of the evidence of the complainants beyond reasonable doubt. In relation to AF the matters which I take into account in determining whether I am able to accept the evidence of AF beyond reasonable doubt include a denial of the occurrence of the incident involving her mother asking the accused to rip the hole in her leggings open; her adamant evidence that the accused used two fingers to rub her on the outside of her vagina, whereas in her statements to police in 2019 and in 2021 she had said that he used one finger, and her explanations as to the difference; her evidence that she first complained to her mother about the indecent assault one or two days after the incident when it is apparent from the evidence of KM that had such a complaint been made directly, her marriage to the accused would have been over immediately; and AF’s concession that she told a social worker in Mildura that there had been no sexual offending by the accused against her, albeit I bear in mind that her explanation was that she did not want to damage the family unit. I have concerns about the extent to which I can rely on AF’s evidence.
Aspects of TG’s evidence which fall for consideration in determining whether I am able to accept her evidence beyond reasonable doubt include that in evidence she said in respect of Count 1 that the accused had touched her vagina for about 15 seconds, but in her statement to police on 23 January 2019 said it was for five to ten minutes, although I bear in mind that such estimates of time are notoriously difficult; and KM’s evidence that when at her father’s place TG did not complain to her about being touched on the vagina, and IM did not tell her that her daughters had made such an allegation; and KM’s evidence that she was not told by anyone about allegations of vaginal touching until 2018.[137]
[137] T 132 ff.
While it may be that the evidence of the complainants would be cross-admissible my concerns about their evidence, and the evidence as a whole, means that does not elevate the prosecution case to the point where I could be satisfied beyond reasonable doubt of the guilt of the accused on any charge.
Verdict
Having regard to the matters to which I have referred, and the high onus placed on the prosecution to prove the guilt of the accused, I am unable to be satisfied beyond reasonable doubt as to the accused’s guilt in respect of any of the charges.
Accordingly the verdicts must be:
Count 1 – Not Guilty
Count 2 – Not Guilty
Count 3 – Not Guilty