R v F, C

[2018] SADC 13

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v F, C

Criminal Trial by Judge Alone

[2018] SADC 13

Reasons for the Verdicts of His Honour Judge Slattery

23 February 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - OF INNOCENCE

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY - REASONABLE DOUBT

The defendant is charged with three counts of unlawful sexual intercourse with a person under 12 years and six counts of indecent assault of a person under 12 years arising from allegations by three of his nieces.

Verdict: not guilty on all counts.

Criminal Law Consolidation Act 1935 (SA) s 49(1), 56; Evidence Act 1929 (SA) s 34M, referred to.
R v Dookheea [2017] HCA 36; R v Chatzidimitriou (2000) 1 VR 493; Atlas Tiles Ltd v Briers (1978) 21 ALR 129; R v A,GP (2012) 113 SASR 146; R v El Rifai [2012] SASCFC 98; R v Maiolo (No 2) (2013) 117 SASR 1; R v Place (2015) 124 SASR 467; R v Usher (2014) 119 SASR 22; R v England (2013) 116 SASR 589; R v HT (2010) 108 SASR 86; R v Hollsten [2015] SASCFC 178; R v W, PK [2016] SASCFC 5; R v P, S [2016] SASCFC 97, applied.
Dookheea v The Queen [2016] VSCA 67; R v Compton (2013) 237 A Crim R 177; R v Wilson (1986) 42 SASR 203; R v Dam (1986) 43 SASR 422; R v Pahuja (1987) 49 SASR 191; Thomas v The Queen (1960) 102 CLR 584; Green v The Queen (1971) 126 CLR 28; La Fontaine v The Queen (1976) 136 CLR 62, considered.

CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS

R v H, T (2010) 108 SASR 86; R v El Rifai [2012] SASCFC 98, applied.
R v Landmeter (2015) 121 SASR 522; R v Hollsten [2015] SASCFC 178, considered.

CRIMINAL LAW - EVIDENCE - CORROBORATION - WARNING REQUIRED OR ADVISABLE - SEXUAL OFFENCES - WHERE SUBSTANTIAL DELAY IN COMPLAINT: LONGMAN WARNING

The alleged offending occurred some 19 to 28 years prior to the commencement of trial.

Evidence Act 1929 (SA) s 34CB; Statutes Amendment (Evidence and Procedure) Act 2008 (SA) (No 7 of 2008) s 16, referred to.

R v F, C
[2018] SADC 13

1. The accused is charged on the Information for arraignment on 28 October 2016 with the following offences:

   First Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   CF between the 1st day of January 1989 and the 31st day of December 1990 at Fulham Gardens, had sexual intercourse with LMG, a person under the age of 12 years, by inserting his fingers into her vagina.

   Second Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1994 and the 31st day of December 1995 at Fulham Gardens, had sexual intercourse with LMG, a person under the age of 12 years, by inserting his fingers into her vagina.

   Third Count

   Statement of Offence

   Unlawful Sexual Intercourse with a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1992 and the 31st day of December 1995 at Aldinga, had sexual intercourse with LMG, a person under the age of 12 years, by inserting his fingers into her vagina.

   Fourth Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   CF between the 1st day of January 1992 and the 31st day of December 1995 at Aldinga, indecently assaulted LMG, a person under the age of 12 years, by touching her on the vagina.

   Fifth Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1992 and the 31st day of December 1993 at Fulham Gardens, indecently assaulted AS, a person under the age of 12 years, by touching her on the bottom and the vagina.

   Sixth Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1997 and the 31st day of December 1998 at Aldinga, indecently assaulted AS, a person under the age of 12 years, by touching her on the vagina.

   Seventh Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1997 and the 31st day of December 1998 at Fulham Gardens, indecently assaulted BD, a person under the age of 12 years, by touching her on the vagina.

   Eighth Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1997 and the 31st day of December 1998 at Fulham Gardens, indecently assaulted BD, a person under the age of 12 years, by kissing her on the vagina.

   Ninth Count

   Statement of Offence

   Indecent Assault of a Person under 12 years. (Ibid).

   Particulars of Offence

   CF between the 1st day of January 1997 and the 31st day of December 1998 at Fulham Gardens, indecently assaulted BD, a person under the age of 12 years, by kissing her on the breasts.

2. The accused is the uncle by marriage of each of the complainants who are the daughters of his wife’s sister. The offences the subject of the Information are alleged to have occurred in the accused’s home when the complainants stayed over at the house of the accused and his wife, and at holiday accommodation, the first rented and the second owned in part by the complainants’ parents.

3. The accused denies all such offending as is alleged against him.

   Directions

4. I consider it necessary to record some of the directions about which I should remind myself and which form the basis upon which I have given consideration to the whole of the evidence in this matter. There are other matters that I will mention in the course of this judgment, however there are also some matters that I do not need to repeat and it is sufficient that I state them here. They are as follows:

   1An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.

   2The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.

   3The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.

   4It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. If I am left with a reasonable doubt as to the establishment of any element of the charge, I must give the accused the benefit of that doubt and find him not guilty of that charge. I further discuss this topic below.

   5Each of the counts on the Information concern a separate offence; I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the Prosecution to give rise to each of the offences charged.

   6The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.

   7I remind myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who give evidence, their credibility, their reliability, and the proper approach to drawing inferences of fact. In this case the accused elected to give evidence. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charges, leaving it to the prosecution to satisfy me of all of the ingredients of the charges. The accused elected to give evidence on oath and I am entitled to give him such credit as I think appropriate for adopting a course that he was not obliged to adopt. In assessing his evidence, and the weight to be given to it, I am to approach the task in exactly the same way as with any other witness. It is for me to decide what weight I am prepared to attach to the evidence of the accused in the same way as it is for any other witness.

   8Finally, I remind myself that it is not a question of preferring one version over any other. The sole task before me is to determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. This is not a choice between two versions. The question for my consideration is whether the prosecution has or has not proved each element of each or any charge beyond reasonable doubt. No burden of any description falls upon the accused.

5. In light of the very recent decision of the High Court of Australia in R v Dookheea,[1] it is necessary to say something on the issue of “beyond reasonable doubt”. This was an appeal brought from a decision of the Court of Appeal of the Supreme Court of Victoria where the trial Judge (Emerton J), in a murder trial, gave a direction to the jury which contrasted proof beyond reasonable doubt with proof beyond any doubt. In her direction to the jury her Honour said:

   As a corollary, you might ask, “do I hold a reasonable doubt that at the time he committed the relevant act or acts that caused [the deceased’s] death, Mr Dookheea intended to kill [the deceased] or cause him really serious injury?” In other words, you do not have to work out definitively what Mr Dookheea’s state of mind was when he caused the injuries that killed [the deceased]. You have to consider whether the Crown has satisfied you that Mr Dookheea had the intention that is required. And the Crown has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt.[2]

   [1] [2017] HCA 36.

   [2] [2017] HCA 36 at [16].

6. Her Honour further directed the jury as follows:

   You can only infer that Mr Dookheea intended to kill [the deceased] or cause him really serious injury if you are satisfied beyond reasonable doubt that that is the only reasonable inference open from the facts that you have found. If any evidence causes you to have reservations about drawing such an inference, then the benefit of your doubt should go to Mr Dookheea…[3]

   [3] [2017] HCA 36 at [17].

7. The Court of Appeal of the Supreme Court of Victoria held that Emerton J fell into error when her Honour spoke of the Crown having to satisfy the jury “not beyond any doubt but beyond reasonable doubt”. The Court of Appeal held that the standard of proof was fundamental to a fair trial and on that basis the appeal succeeded. The High Court set aside the decision of the Court of Appeal. At [23]-[28] the High Court gave an explication of “beyond reasonable doubt”.

8. At [29] the Court[4] said as follows:

   Evidently, the Court of Appeal based[5] their decision on the approach adopted by the South Australian Court of Criminal Appeal in R v Compton.[6] In turn, Compton was based on what was there said to be the binding effect of three earlier decisions of the South Australian Court of Criminal Appeal in R v Wilson,[7] R v Dam,[8]and R v Pahuja.[9] In each of those decisions it was held that if a trial judge directs a jury, in substance or effect, that when left with any doubt at the end of deliberations it is for them to decide whether that is a reasonable doubt, an appeal against conviction must be allowed.[10] Wilson was the wellspring of that line of authority. In that case, King CJ premised his conclusion – that such a direction will invariably be productive of a miscarriage of justice – on the notion that reasonable doubt is a doubt which is entertained by a reasonable person in the circumstances and hence that reasonable doubt encompasses any doubt entertained by the jury acting reasonably.[11] King CJ therefore concluded that to suggest to a jury that there is a difference between a reasonable doubt and any doubt is calculated to cause the jury to subject their mental processes to analysis, to incline the jury to discount a doubt for fear that it may not be reasonable, and thus to obscure the point that the accused must be given the benefit of any doubt which the members of the jury as a reasonable jury may have.

   [4] Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ.

   [5] Dookheea v The Queen [2016] VSCA 67 at [90].

   [6] (2013) 237 A Crim R 177.

   [7] (1986) 42 SASR 203.

   [8] (1986) 43 SASR 422.

   [9] (1987) 49 SASR 191.

   [10] R v Wilson (1986) 42 SASR 203 at 207 per King CJ (Johnston J agreeing at 224); R v Dam (1986) 43 SASR 422 at 429-431 per Jacobs J (Mohr J and Bollen J agreeing at 433); R v Pahuja (1987) 49 SASR 191 at 194-195 per King CJ; at 220-221 per Johnston J.

   [11] R v Wilson (1986) 42 SASR 203 at 207 (Johnston J agreeing at 224). See also R v Pahuja (1987) 49 SASR 191 at 194-195 per King CJ; at 220-221 per Johnston J.

9. At [30] the High Court said:

   With respect, so to reason misconceived the effect of this Court’s decisions in Thomas[12] and Green[13] and it is a process of reasoning that should not be followed (citations added).

   [12] (1960) 102 CLR 584 at 595.

   [13] (1971) 126 CLR 28 at 32-33.

10. The High Court then discussed the history of the concept of “beyond reasonable doubt” and its derivation from an historical context. At [34] the High Court said:

    Contrary to King CJ’s reasoning in Wilson, it is not the case that whenever a reasonable jury recognises the existence of a doubt, no matter how slight the doubt may be, the jury ipso facto has a reasonable doubt. Rather, as was stated in Green, and has since been appreciated in decisions on this point by most Australian intermediate courts of criminal appeal (including in previous decisions in Victoria) a reasonable doubt is a doubt which the jury as a reasonable jury considers to be reasonable (albeit, of course, that different jurors might have different reasons for their own reasonable doubt) (citations omitted).

11. After approving of the observation of Cox J in Pahuja[14] that it is the votes of each of the individual members of the jury that are determinative of the verdict of the jury as a whole, the High Court observed at [36] as follows:

    …it is not the case that any doubt on the part of an individual juror dictates that the prosecution has failed to convince that juror to the criminal standard…A fanciful doubt would not require a juror to vote for an acquittal; and to reason, as was suggested, that a fanciful doubt is distinguishable as not a doubt at all is not at all convincing. Not all jurors would regard a fanciful doubt as no doubt and nor logically should they do so (citations omitted).

    [14] (1987) 49 SASR 191 at 210 (dissenting).

12. The High Court then turned attention to the question of a trial judge contrasting reasonable doubt with any doubt and said at [37] as follows:

    …in point of principle it is not wrong to notice the distinction; and, therefore, as a matter of authority, it is not necessarily determinative of an appeal against conviction that a trial judge may for one reason or another happen to do so. When and if a trial judge does mention the distinction, the question is whether the words spoken in terms of the record of the summing up are such that the jury would have derived a false perception of the basis for deciding whether the Crown has proved its case.[15]

    [15] La Fontaine v The Queen (1976) 136 CLR 62 at 72 per Barwick CJ (Mason J relevantly agreeing at 87).

13. The High Court, in the same paragraph, then emphasised the necessity for the focus to be upon the summing up of the trial judge as a whole and what is heard and understood by the jury. Their Honours at [37] held:

    …And as was held in Green and stressed in La Fontaine, that is a question to be decided by taking the summing up as a whole and as a jury listening to it might understand it, not upon some subtle examination of its transcript record or by undue prominence being given to any of its parts. Moreover, where, as here, the accused has been represented at trial by competent counsel, the reaction of defence counsel on hearing the impugned portion of the summing up is a cogent consideration.[16]

    [16] Ibid.

14. At [38]-[39], the High Court held that the jury had not been misled by the direction given by Emerton J and approved of the reference made by her Honour to the difference between proof beyond reasonable doubt being a far higher standard of proof than proof on the balance of probability. The High Court said at [41] that such a practice is to be encouraged.

15. The summary of Phillips JA in R v Chatzidimitriou[17] was approved by the High Court. There his Honour said:

    The test remains one of reasonable doubt, not of any doubt at all; and…the jury’s function includes determining what is reasonable doubt—or to put that in more concrete fashion, whether the doubt which is left (if any) is reasonable doubt or not (emphasis in original).

    [17] (2000) 1 VR 493 at 498 [11].

16. The task for me is to determine whether or not there has been proof beyond reasonable doubt of each of the elements of the charged offences and even if I have a doubt about a matter, it is for me to determine whether that doubt is a reasonable doubt. That is the way in which I will proceed in this matter.

17. That said, there remain some matters that require discussion. The first is that on the question of proof beyond reasonable doubt, the law is and it has always been that which is adumbrated in Dookheea.[18]

    [18]   Atlas Tiles Ltd v Briers (1978) 21 ALR 129 at 134 per Barwick CJ.

18. The second is that, at a number of levels, the task of understanding the requirement of this level of proof is not made any easier for a reader of this judgment. One reason is that it is not possible to define the integers of what, in any particular case, will constitute the cause of there being a reasonable doubt. These integers can range from one particular piece of evidence given by a complainant through to the culmination (sometimes over a series of counts) of aspects of inconsistency, unreliability and lack of credibility that may change a doubt in the mind of the trier of fact to a reasonable doubt. It is impossible to be any more definitive than that. Thus, reasonable minds may differ on a broad spectrum of issues of what may or may not constitute a reasonable doubt but my task is to assess the charges and the evidence as the sole trier of fact and to form my own conclusion.

19. This assessment must be made based on the counts charged, explained by the particulars of the counts. It is not my role to survey the broadest scope of facts and then draw inferences and make findings outside of the scope of the case put against the accused on the charged counts. Such a process is demonstrably unfair to an accused and is not permitted. I must make my assessment based upon the charged counts and the evidence before the Court. This has been my approach here.

20. I have set out hereunder the basic elements of each of the charges which the prosecution must prove beyond reasonable doubt.

    The elements of the offences

1. The elements of the offences in respect of each count are as follows.

   Unlawful sexual intercourse with a person under 12 years

2. Section 41(1) Criminal Law Consolidation Act 1935 (SA).

3. In order to prove that an accused person committed the offence of unlawful sexual intercourse with a person under the age of 12 years, the prosecution must prove beyond reasonable doubt the following elements:

   1That the accused had sexual intercourse with the complainant;

   2Sexual intercourse includes;

   a.Penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or

   b.Fellatio; or

   c.Cunnilingus;

   3That the complainant was under 12 years old at the time.

   Indecent assault of a person under 12 years

4. Section 56 Criminal Law Consolidation Act 1935 (SA).

5. The prosecution must prove the following elements beyond reasonable doubt:

   1An application of force to the person of another;

   2The application of force must be intentional;

   3The application of force must be unlawful; that is, without lawful justification or excuse; and

   4The application of force must be without the consent of that other person.

6. The above are elements or ingredients of the offence of assault. For an offence of indecent assault, there are additional elements namely, the assault must be;

   5Accompanied by circumstances of indecency. Indecency is not confined to sexual indecency and includes anything which an ordinary decent person would find to be shocking, disgusting, or revolting and has a sexual connotation;

   6If the victim of the offence was at the time of the offence, under the age of 12 years, the maximum penalty under the legislation is increased from eight years to ten years.

   The prosecution case: a summary

7. The case for the prosecution, is that over a period of time (which on the evidence has now become contentious) the accused committed a number of acts of indecency upon his three nieces when they were staying over at his home or at a beach house in Aldinga. The three complainants are sisters. The eldest, LMG alleges that in 1989 or in 1990 she was sleeping on a trundle bed in her cousin’s room. She was awoken when she felt the accused kneeling beside her and touching her. Eventually he put his finger inside her vagina. She alleges that a similar event and conduct happened to her at least four or five times. She also alleges that in 1994 or 1995, when she was 10 or 11 years old, the accused came into a room where she was sleeping with her younger sister and he touched her in the vagina after indecently touching her sister, BD.

8. LMG also alleges that in 1994 or in 1995, whilst at rental accommodation in Aldinga, the accused came into a bedroom that she was sharing with the accused’s own daughter LF and that he removed her underwear and placed his fingers inside her vagina. The fourth count, concerns an allegation by LMG about a time when the accused was the only adult left at the same beach house, when the room contained a bunk bed arrangement and there were a number of children who were playing with a jigsaw puzzle in the room. In the course of some revelry instigated by him, the accused put his hands inside the underwear of LMG for as long as half a minute.

9. In relation to the second complainant AS, it is alleged that when she was five or six years of age, she was sleeping in her cousin GF’s room. At the time she was sleeping on GF’s bed and he was sleeping on the trundle bed. The accused entered the room and placed his hand in her underwear and touched her vagina. AS also alleges that in 1997 or in 1998 at a beach house at Aldinga partly owned by her parents, she was sleeping on a sofa bed on the upstairs open area when the accused got into bed behind her, put his hand into her underwear and eventually touched the outside of her vagina for a couple of minutes.

10. The three further counts on the Information relate to the allegations made by BD. She alleges that in 1997 or 1998, she was sleeping on a lounge in the family room area of the accused’s home. She alleges that while she was sleeping, the accused entered the room, adjusted her underwear and nightie, touched her on the vagina, kissed her vagina and then kissed her breasts. BD also gave evidence of an uncharged act that occurred in Italy in 2006 where, at a home being shared by the accused and his family, and then when sleeping in a bedroom of that house, the accused entered the room and removed the blankets over her. She allegedly kicked out at him and pushed him. He fell to the floor and left the room.

11. The prosecution called evidence from the three complainants and the husbands of the first and second complainants to whom complaints had been made about the conduct of the accused. The prosecution also called LT, to whom BD had made a complaint, and AD, the mother of the three complainants.

12. The accused denied the whole of the allegations against him as he gave evidence and was extensively cross examined. His estranged wife JF also gave evidence.

13. I remind myself again that no burden of proof falls upon the accused to be discharged by him. My assessment of his evidence must be viewed in the background that the prosecution bears the onus of proof of each of the elements of the charges beyond reasonable doubt. That is so, irrespective of any view that I may form of the evidence given by the accused. This is the way that I have proceeded.

    Background: the house belonging to the accused and his wife

14. It is necessary to give some detail about the house owned by the accused and his wife. A copy of the architectural plan, with elevations and measurements is to be found in Exhibit P6. The house is situated on a corner block. It consists of a cellar, a ground level and a first floor level. The ground level comprises of an entrance hall, a study, bathroom, separate toilet, laundry, family room, meals room, kitchen, dining room, and lounge room. There is a garage attached to the rear of the ground floor of the premises. Entrance to the garage is taken at the side of the house at the second street frontage. There are two steps down from the meals area into the family room area. The meals area is immediately adjacent to the kitchen, as is the dining room. The lounge room is at the front of the house. So also is the study to which access is taken at the entrance hallway. In the usual course of family life, the principal room in which the family gathered generally and for entertainment was the family room.

15. The first level of the home was accessed through a central stairwell that ended at the commencement of an entrance hallway. At the top of the stairs and immediately in front of those stairs is bedroom 1, used by the accused and his wife. Along that side of the property and immediately next to that room is a bathroom that also contained a toilet. Next to that room is bedroom 2, usually occupied by the accused’s son, PF. Next to bedroom 2 is bedroom 3.

16. There is a hallway in the middle of the upper level stretching from the front to the rear of the property. On the stair side of the hallway, and immediately to the right of the stairs is bedroom 4. This was GF’s (another son of the accused) room. The plan on Exhibit P6 is slightly inaccurate, in that the doorway shown on bedroom 4 is not the true placement of that doorway. The actual placement of that doorway is nearer to the stairwell. Bedroom 4 is the only bedroom that was on the same side as the stairwell. Bedrooms 1, 2 and 3 and the bathroom are across the hallway from bedroom 4 and the stairwell.

17. There is also a balcony on the outside of bedroom 4 and spanning across bedroom 3. At the end of the hallway, adjacent to bedroom 3 and bedroom 4, there is a doorway onto the balcony. There is also a glass sliding door, permitting access from bedroom 4 to the balcony. There is no entrance to the balcony from bedroom 3.

18. In the consideration of the evidence in this matter, the principal rooms about which evidence was given were on the ground floor and include the study, family room, kitchen, and meals area. To a lesser extent, there was evidence about the bathroom on the ground floor. On the first floor, evidence was given in relation to bedrooms 1, 2, 3 and 4 as well as the balcony.

19. The holiday accommodation was standard for that style of accommodation and consisted of a larger open living space, and a number of smaller bedrooms.

20. Exhibit D9 is a map of the Aldinga rental premises. It has a ground floor and a first floor. The three bedrooms are all on the ground floor. The bedroom in which the complainant LMG and her cousin LF slept is described as bedroom 3. It measures 3m x 2.7m. It contained a single bed and a bunk bed. There was a built-in robe in the room.

21. The premises next door, which at one time was partly owned by the family of the complainants is much larger. It also consisted of a ground floor area and a first floor area. There were bedrooms both on the ground floor and on the first floor. The map Exhibit P20 is a representation of the building as it currently exists. At the relevant time, the area described as family room and bedroom 4 on the ground floor was merely a breezeway. The area described as bedroom 5/study also was used as a storeroom. When they stayed, the accused and his wife occupied bedroom 3. Their daughter, JuF, who was then a baby, also stayed in that room with them. Their sons PF and GF stayed in bedroom 5/study room. Outside the doorway of bedroom 3 is a stairwell. That stairwell goes up to the first floor. At the first floor to the right of the stairs there was a larger bedroom measuring 3.8m x 3m, usually occupied by the parents of the complainants. There was a second bedroom measuring 3m x 3m which contained bunk beds. There was a large lounge and dining area measuring 6.2 x 6m abutting a balcony facing towards the sea.

22. The evidence of the complainant AS was that in the area of the lounge/dining room, there was a sofa which folded out to a bed, and children – namely herself and her sister BD or perhaps her cousin JuF, slept on that fold out sofa. One of the issues for my determination in this matter is whether there was a sofa situated in the lounge/dining area of the upper section of these premises as disclosed in Exhibit P20. I will discuss that matter later in these reasons.

    The complainants

23. The first complainant LMG, is now 34 years of age. She is the eldest of three siblings. The conduct alleged against the accused, particularised in counts one, two, three, and four, concern her complaints.

24. The complainant AS, was born on 26 February 1987 and is the second oldest of the siblings. The conduct alleged against the accused particularised in counts five and six of the Information concern her complaints.

25. BD is the youngest of the siblings and was born on 30 December 1989. The conduct alleged against the accused which is particularised in counts seven, eight and nine, concern her complaints.

26. The accused is now 70 years of age. He has had limited education, to a grade seven standard and since the end of his schooling he has worked in various areas of the building industry. He is no longer working. His wife JF, has worked all of her married life as a hairdresser, an occupation in which she continues to work part-time.

27. The allegations that are the subject of the Information sit in the background of a very typical, close, strongly connected and supportive family unit in the Italian tradition. The evidence before the Court displays a high level of familial support by different families in the greater family unit. Those families provided to each other and each other’s children and grand-children, very strong support and care. The various families within the larger family group socialised with each other regularly and so ensured the maintenance of familial contact. In turn, the various cousins and more distant relations socialised constantly and so formed real friendships. A product of this behaviour was that each related family had a level of comfort about leaving their children with the other, usually in the context of the closeness of cousins wanting to socialise with each other.

    The allegations

28. Much of the behaviour which is the subject of these charges allegedly happened a long time ago. The first count alleges a date range of between 1989 and 1990 when the complainant, LMG was between five and six years of age. It is necessary to first examine how these complaints came to light and that discussion must occur in the context of the operation of s 34M of the Evidence Act1929 (SA).

29. There are a number of principles to be observed in the proper application of s 34M. In summary, they are as follows:

    1. The section only applies to complaints in sexual cases; so much is made clear by the content of s 34M(1) and (2).

    2.   A general complaint may constitute a complaint as long as the complaint concerns a sexual offence. So also, there does not need to be an identity of detail contained within the complaint when compared to the charged offence.[19]

    3. Any complaint generally should be consistent with the conduct which is the subject of the charged offence even though precise coincidence between the act complained of and the act charged is not necessary, for that evidence to be admissible for s 34M.[20]

    4. Where the complaint relates to conduct and circumstances that have occurred many years before the charged offence, or where the complaint relates to conduct occurring at a different location from the charged offence, or different sexual offending than that charged, that complaint evidence is not admissible for s 34M.[21]

    5.   The Court has a discretion to receive evidence about a complaint in the absence of the complainant giving evidence of the making of that complaint. The Court may decide to exclude the evidence of complaint in the exercise of its discretion.[22]

    6.   A complaint may comprise an initial complaint and an elaboration of that complaint. In order for there to be an elaboration of a complaint, the complainant must provide more detail and information than was provided during the initial complaint.[23]

    7.   On the question of consistency it is necessary to have regard to establishing consistency between the complaint and the charged offence. If there was no consistency between the two, then the evidence of complaint cannot be seen to be referrable to an offence charged.[24]

    [19]   R v A,GP (2012) 113 SASR 146; R v El Rifai [2012] SASCFC 98.

    [20]   R v Maiolo (No 2) (2013) 117 SASR 1; R v Place (2015) 124 SASR 467.

    [21]   R v Usher (2014) 119 SASR 22; R v Place (2015) 124 SASR 467.

    [22] R v England (2013) 116 SASR 589; R v HT (2010) 108 SASR 86; R v Place.

    [23] R v Hollsten [2015] SASCFC 178; R v W, PK [2016] SASCFC 5.

    [24] R v P, S [2016] SASCFC 97.

30. Evidence was led about a complaint by LMG to her husband BG. BG gave evidence[25] that in January 2016, he was woken in the middle of the night and LMG spoke to him in the lounge room. When they got to the lounge room, she told him that as a little girl she had been molested by her Uncle CF, the accused. She was very upset and struggling to get her words out but she did not give any more detail at the time. After that night, there was further discussion about that topic. It may have been a couple of days later, or as much as a week later. In that discussion she gave a bit more detail of what had happened and when. LMG told him that when they used to have sleepovers at her Aunty’s house, CF used to come in to check on the monitor of her cousin LF and then used to proceed to molest her. This molestation was in the form of the rubbing of her vagina. That was the only occasion of which she then spoke. She also told him that she woke up one night at their home and the accused was trying to possibly molest BD, her sister. She rolled over towards BD in the bed and then woke up to being molested by the accused. She did not say how she was molested on that occasion.

    [25] T229-T231.

31. Similar to the first conversation, her demeanour in the second conversation was very upset.

32. BG, the husband of LMG, also gave evidence that subsequently, he was present during a conversation which occurred between LMG and the rest of her family at her parents’ home.[26] That was in March 2016. It was he who told the family, who had gathered at LMG’s parents’ home that they should all come to the family room. He said that he could not get the words out about what his wife had said to him and LMG ended up telling the family that she had been molested by the accused. She called him a paedophile. She did not give any details about what had happened. At the time, both AS and BD, her sisters, said they had also been molested by the accused. He could not remember any detail of what AS and BD said.

    [26] T231.21.

33. At the relevant time, AS was married to MS. MS was called to give evidence about his memory of a conversation in AS’ parents’ home in March 2016. He gave evidence that all the family were present. He was not present at the start of the conversation. He got to the house later in the evening after work. He said that his wife and her sisters were in hysterics. They were crying and in shock.[27] After he left the house that night, he had a conversation with his wife AS about what had happened. There was not much detail. She said something to the effect that she had been molested by the accused, but that was really all he knew. The next day he took her to see a friend, Pa, and that is when he heard the detail. He had not heard any of the detail before that which he heard in his wife’s conversation with Pa. In the conversation with Pa, his wife said that she had been molested by the accused using his fingers and his penis. She did not give much more detail. She said that the abuse occurred at the shack and at her Uncle and Aunty’s home. The shack was the property at Aldinga. The home was the home owned by the accused and his wife. He heard about those two places on the 15 March 2016, the time when he first learned of the alleged abuse.

    [27] T235.30-T236.6.

34. In cross examination MS said that he could not remember what his wife said that the accused had done with his fingers and he did not independently know. He confirmed that he had told the police that that is what his wife told Pa. He also confirmed that he had told the police that his wife AS told Pa that the accused had tried to put his penis into her pants. What he was remembering in that police statement was what his wife was saying to the friend, Pa.

35. BD made a complaint to her school friend, LT. They were in high school together at the time. The complaint made to LT was that the accused had been sexually abusing BD. LT first recalls being told something in year nine.[28] They were about 14 years of age and BD told her that the accused had been sexually abusing her from a young age.[29] When BD told her that, BD was upset and crying.

    [28] T240.33.

    [29] T241.2.

36. In cross examination, LT confirmed that BD told her that it had been happening to her since she was a young child, and at 14 it was still happening.

37. LT also became aware from BD that there had been a family dinner where the sisters had spoken about being sexually assaulted by the accused. BD rang her some days after the dinner and told her about something that had happened overseas. BD told her about an occasion when she and her cousin JF, the accused’s daughter, were sleeping in a room at a house when they were overseas. BD told her that the accused came into the room and that he touched BD, and that she fought him off. BD then told her that the accused went into the bathroom adjacent to their bedroom and “did things to himself”.

38. There is no independent evidence to support an assertion that at age 14, BD was continually being sexually abused by the accused. That is, to an extent, inconsistent with other assertions made by BD’s siblings, which indicates that some of the complaints of BD are exaggerated. An example is that BD informed LT that on a night in Italy, in 2006, she observed the accused “doing something to himself (in a bathroom, in a house in which they were all staying)…” This event was associated with an earlier event that I will discuss below. BD admitted in her evidence in cross examination that she could not see the accused in the bathroom that night and that she could not have known what he was doing. I find that BD’s complaint to LT was an embellishment and was untrue.

1. On the question of complaint evidence, I remind myself that if accepted by me, this evidence is not to be admitted as evidence as to the truth of what is alleged; if it is admitted, then it is admitted only as evidence that may go to the consistency of the conduct on the part of the complainants, and thus tending to bolster their credibility. I also remind myself that if the complaint is inconsistent with the occurrence of the conduct complained of, then, depending on the level of inconsistency, the evidence has the capacity to detract from the complainant(s’) overall credibility.[30] Evidence concerning the complaint must relate to the conduct on which a charge or charges are based before it can have any potential to enhance a complainant’s credibility. The approach to these matters must not be unduly technical and must be a commonsense approach, having regard to the fact that this is a matter of fact and degree.[31] If there is more than one aspect of complaint evidence, the question of elaboration arises.[32]

   [30] R v H, T (2010) 108 SASR 86 at [46]-[49] per Gray J.

   [31] R v El Rifai [2012] SASCFC 98 at [130]-[133] per Kelly J.

   [32] Compare R v Landmeter (2015) 121 SASR 522; R v Hollsten [2015] SASCFC 178.

   Forensic disadvantage

2. I have already identified the period of time between the alleged offending and the commencement of trial. It is some 19 to 28 years. I am of the view that this period of time since the alleged offending and the commencement of this trial has resulted in a significant disadvantage to the accused. The accused may, depending on the issues arising on the individual counts, have been able to have someone vouch for his movements, or provide an alibi, or find forensic evidence which may have been available (or not found, which can be equally important). There may have been other issues he may have been able to raise. I must therefore take into account this forensic disadvantage when scrutinising the evidence of the accused. When discussing the whole of the evidence in this matter and when making the findings that I have made about the evidence, I can say that I have done so taking into account the forensic disadvantage suffered by the accused.

3. I am also required to scrutinise the evidence of the complainants with great care. Because of the effluxion of time, there is no independent support for the evidence of the complainants as it relates to the charges concerning the conduct of the accused. A Court sitting without a jury is not obliged to give a warning that it is unsafe to convict an accused on the uncorroborated evidence of an alleged victim. However, in the circumstances of this case, I intend to approach the complainants’ evidence with a measure of caution and to scrutinise it with care. Prior to s 34CB of the Evidence Act (1929) being enacted,[33] a Longman direction would have been required. It is arguable, in my view, that s 34CB(1) of the Evidence Act does not totally remove the discretion of the trial judge to direct a jury by way of a Longman direction but I do not have to decide that point here. Even if I had directed myself in terms of Longman, it would not have affected my assessment of the complainants nor of the conclusions that I have drawn from their evidence.

   [33] Statutes Amendment (Evidence and Procedure) Act 2008 (SA) (No 7 of 2008), s 16.

   The complaints of LMG

4. LMG has two younger sisters, and when she was a child she and her sisters spent a lot of time with her Aunty JF and the accused. The accused and JF have four children, LF, GF, PF and JuF. LF is deceased and passed away in 1995.[34]

   [34] Exhibit P11.

5. The two families socialised together quite often. The families got on very well together particularly LMG and her sisters and their cousins of the family of the accused.

6. LMG recalls staying over, including to sleep, at the accused’s home at Fulham Gardens at least half a dozen times a year.[35]

   [35] T15.29-T15.37.

7. LMG’s memory is that when she would sleep at the accused’s home she slept in GF’s room, or in another room where there was a sofa bed.

   Count one

8. Her first memory is sleeping in GF’s room on a trundle bed next to his bed. She thinks she was about five or six and she recalls that the accused’s daughter, LF, was alive at the time.[36]

   [36] T18.12-T19.8.

9. On this evening, she was sleeping in GF’s room. She does not recall what she was wearing and she only recalls being woken in the middle of the night and being touched. She opened her eyes and saw that the accused was kneeling next to her on the floor. He was touching her vagina and the inside of her vagina with his finger.[37] She said that she recalls his finger was moving and it was stroking her vagina.

   [37] T19.19-T19.38.

10. She had a clear memory that the accused was on his knees and that she was on the trundle bed which was not very high.[38] She started to squirm and pull away but he kept going and pulled her back down on the bed and stopped her from turning away from him. He forced her onto her back.[39]

    [38] T20.20-T20.24.

    [39] T20.26-T20.34.

11. LMG said that there was some light spilling into the room from a light in the hallway and so it was not completely dark. She recalls looking at the accused and it seemed that he was not wearing any clothing. He then walked out. That is when she saw that he was not wearing any clothes at all. She cannot recall if she fell back to sleep. She cannot recall if she was awake the whole time and she does not know how long the event lasted.[40]

    [40] T21.1-T21.7.

12. When the event stopped, her underwear was at her feet and her nightie would have been pulled up. If she was wearing pyjamas they would have been pulled down. She assumes that the cover of the bed was at the end of the bed. All she can recall is seeing the accused leave the room when he had finished. She saw him walk out.[41]

    [41] T21.6-T21.34.

13. She was then shown Exhibit P3 which she drew when she gave her statement to the police. She identified the people in the room. She recalls that these events happened in a similar way in GF’s room probably another four or five times.[42] These events occurred from the time she was between five and six years old, up to the time she was eleven years old. On one of the occasions, she remembers squirming and the accused stopped what he was doing, kissed her on the forehead, and walked out. Otherwise, it all happened in the same way.[43]

    [42] T23.2-T23.12.

    [43] T22.10-T23.28.

14. At the time the first of these events occurred, LMG said that she was aged five or six. This would have been in 1989 or 1990. The events occurred when GF was in his bed and she was woken up by being touched on the vagina by the accused. LMG does not know if she was wearing a nightie or pyjamas. She recalls that nothing was said during the course of the event and she said that the trundle bed was never made up with a top sheet.[44]

    [44] T61.15.

15. JF, the wife of the accused, denied that evidence and said that she always made the bed up with a top sheet.[45]

    [45] T386.34-T387.2.

16. The accused criticised the version of events put forward by LMG. He alleged that it was only a very general bare allegation and it lacked detail concerning the surrounding circumstances. There was no evidence of the time of the year, whether it was on a weekend or school holidays, whether it was summer or winter. LMG was not able to remember if there was any reason why she was staying at the accused’s house and she could not say anything about the day leading up to the occasion or the day after. The evidence which I accept is that GF’s room was not configured in the way that was described by LMG. For example, the accused said, and this evidence was corroborated by his wife, that there were two bedside cabinets at the end of GF’s bed. These were all made by the same manufacturer, Mabarrack. LMG could only recall one such cabinet and she would not agree that there were two cabinets. I am satisfied that there were two such cabinets in the room.

17. The evidence of all witnesses was that when the trundle bed was rolled out, it was a tight fit in the room. JF thought that a person could only walk around the trundle bed with some difficulty, but that depended on how far the trundle bed was pulled out from under GF’s bed. If the trundle bed was pulled out on the wardrobe side, which the accused said was most often, it would not have been possible to open the doors of the wardrobe in that room. The impression that I formed from the evidence was that when the trundle bed was pulled out, there would be real difficulty walking around the room and around the area of the trundle bed. The accused suggested that it would have not been possible for a grown male person to kneel down next to the trundle bed as was described by LMG.[46] That evidence was corroborated by the evidence of JF who said it was possible to walk around but it was very tight. She thought that there was about 100mm or so between the trundle bed and the wall.[47] JF also gave evidence that she always made up the trundle bed with a top sheet,[48] and, from her memory, that the accused did not walk around the house naked. I accept the evidence of JF. The accused also denied ever walking naked around his home. The complaint against the accused was made at least 25 years after the event and I consider that the accused has suffered real prejudice as a result of this delay on this and many other issues.

    [46] T264-T267.

    [47] T380.

    [48] T386-T387.

    Count two

18. On this occasion, LMG said that she was sleeping at the accused’s house. She was sleeping in a spare bed with her sister, BD. She recalled waking up to see the accused leaning over her sister, and he was touching her. She thought that his hand was on BD’s vagina. However, she did not keep her eyes open long enough because she could see that he was moving.[49] LMG said that she quickly shut her eyes so that the accused would not see that she was awake and she wriggled in her sleep and moved towards BD to knock her and let him know that she was awake.[50] She became aware that BD’s underwear was pulled down and he was touching her bare skin.[51] BD’s nightie was also ruffled up, the covers were pulled back and she could see that the accused was not wearing any clothing.[52] On that night, only she and BD were sleeping in the room. They were sleeping in the spare bedroom on the sofa bed. Somehow, the accused got back onto her side of the bed but she does not know how.[53] When she woke up, the accused was touching her in her vagina with his fingers. His fingers were stroking and moving around. She does not remember how it felt, just weird. She thinks she was wearing pyjama bottoms that were pulled down with her underwear. She does not recall how long his finger was in her vagina on this occasion.[54]

    [49] T23.35-T24.2.

    [50] T24.6-T24.11.

    [51] T24.16.

    [52] T24.20.

    [53] T25.4, T24-T37.

    [54] T25.8-T25.37.

19. LMG remembered that the accused was standing halfway along the bed and he was between the wall and the bed at a point around her stomach area. BD was lying on her back and did not have any covers on her because they had been pulled down.[55]

    [55] T26.13-T27.26.

20. The accused submits that, again, the allegation is a bare allegation of the most general kind. It lacks any detail about surrounding circumstances. LMG could not say if the event occurred during school holidays or at the weekend, or at what time of year it was in 1994 or 1995. All that LMG could say was that she would assume that AS was also there if BD was there.[56] She thought that she was wearing pyjamas but she was not sure and she thought that BD was wearing a nightie but again she was not sure. She also does not know whether she had over her a quilt or an opened up sleeping bag.[57]

    [56] T67.

    [57] T68.

21. The complaint was made 26 years after the event. The evidence discloses that there was a sofa bed in the house. The evidence also discloses that LF’s room was shifted downstairs into the study from bedroom 3 in late 1993. The accused’s memory was that the sofa bed was not moved upstairs for many years after that time.[58] JF had no memory because of the passage of time and so it is not possible now to say that there were occasions when BD slept overnight on the sofa bed with LMG in 1994 or in 1995. In particular, it is not possible to say how old BD was when she started sleeping over.

    [58] T260.

22. When LMG made her complaint to her husband BG, in January 2016, she told him that she was unsure about the presence in the house of anyone else in the family, namely her sister AS, but she said that she woke up with the accused trying to possibly molest BD so she rolled on top to stop that from happening and then woke up to getting molested. The evidence of her husband BG, was that LMG did not tell him how she was molested on that occasion.[59] BD gave evidence that at the family dinner in March 2016 LMG told the family that she was once in one of the beds and she thought it was either BD or AS sleeping next to her and she did not know, but the accused came and tried to touch whoever it was. LMG rolled over and blocked one of them from getting touched by the accused. She said something about one of the sisters being in the bed but she did not know which one it was.[60] She also said that the occasion when she and her sister were touched by the accused was after the time at Aldinga.[61] In her statement to the police on 23 March 2016, LMG said that the occasion of when she and her sister (BD or AS) were touched occurred before the Aldinga holidays.

    [59] T230-T231.

    [60] T127-T128.

    [61] T33.

    Count three

23. LMG gave evidence that something happened with the accused at the first rental property at Aldinga. She did not know how old she was and she thought that she was somewhere between eight and 11 years old when the family stayed at the Aldinga house.[62] At the time her cousin LF was still alive. LF passed away in 1995. She and LF were sleeping in the downstairs bedroom. There was a bunk bed and a single bunk bed in the room.[63]

    [62] T28.5-T28.16.

    [63] T28.19-T28.26.

24. There were other children in the house as well. She thought they were upstairs. The accused and his wife were sleeping in a room just across from the room in which she was sleeping. Her parents were also sleeping downstairs.[64]

    [64] T28.28-T28.36.

25. Usually holidays were taken in January and she recalls sleeping in the room with LF. On this occasion, she recalls seeing the accused leaning over LF’s side of the bed but she could not see what he was doing. She then wriggled out of the way because she was scared that he might come over to her bed.[65]

    [65] T29.6-T29.15.

26. She thought that she must have fallen asleep because she woke up to the feeling of the accused’s finger inside her vagina. She looked up and saw that he was leaning over her bed.[66] At the time she could see that he was not wearing any clothing or underwear. His fingers were touching the inside of her vagina and they were moving slowly and stroking her vagina.[67]

    [66] T29.16-T29.20.

    [67] T29.16-T29.29.

27. She recalls trying to turn away from him, towards the wall. Nothing was said during these events. She was certainly wriggling and moving but it did not stop him doing what he was doing.[68]

    [68] T31.6-T31.8; T31.11-T31.12.

28. She realised that she was not wearing any underwear and that they had been pulled down to her feet.[69] Before she went to bed, she was wearing pyjamas or a nightie. Either the pyjamas or the nightie had been pulled up or pulled down.[70]

    [69] T29.37.

    [70] T30.2-T30.4.

29. LMG does not recall how long that the accused was touching her on this occasion. She can recall him walking out of the room because she had a memory that soon afterward LF asked her to turn off her machine. She had this machine for medical reasons. This occurred after the accused had walked out of the room.[71]

    [71] T30.9-T30.14.

30. The evidence elicited from the accused shows that the holidays at the rental home in Aldinga (the rental premises), did not occur in 1994 and 1995 as LMG thought when she gave evidence. In her evidence, LMG thought that these events occurred in that two year period (1994-1995). There are a number of reasons why this time period cannot be correct. The accused’s wife JF gave evidence that these visits to stay at the Aldinga rental premises occurred either in 1991 and 1992 or in 1992 and 1993. I consider that JF’s memory of those dates is accurate.

31. In the period during 1994, the health of LF deteriorated. Her health had deteriorated to the point that in January 1995, it became clear that her life expectancy was very limited. JF was quite clear that the family did not go away on any holiday in January 1995. The accused gave the same evidence.[72] In January 1995 LF’s health seriously declined. She had spent a lot of time in hospital during December 1994 and into January 1995. She was then sent home at the end of January 1995 and she passed away some two weeks later.[73] I would not accept any suggestion that in light of the deterioration of LF’s health and the decline of her health to her death, that there would have been any possibility of any holiday in January 1995. There was some cross examination on the point but, in relation to that history, I prefer the evidence of JF.

    [72] T270.

    [73] T367.

32. Also, JF said that in 1994, the families, including the complainants’ family, went to Robe for the January 1994 holidays.[74] They visited Mount Gambier for a day and Exhibit D22 comprises photographs of the family as a whole and then some of the members of the family. At the time, JF was pregnant with her youngest daughter, JuF. She agreed that the families went to Robe when JF was pregnant with JuF. They did not go to Aldinga that year.[75]

    [74] T388.

    [75] T209.

33. Initially, in her evidence, LMG thought that the events at Aldinga occurred when she was between eight and 11 years of age (1992-1995). In her statement to the police dated 23 March 2016, she said that she thought these events occurred in 1994 or 1995 when she was 10 or 11 years of age. I do not accept that there was any possibility that these events occurred in January 1995. I also accept that the date range of the families attending the rental premises at Aldinga was 1992-1993. I have earlier indicated that, in her statement to police dated 23 March 2016, LMG thought that the occasion of the touching of BD when she was sleeping in the same bed occurred before the families went to Aldinga (in 1992-1993). If that is the case, then based upon the content of Exhibit P1 (the birth certificates) if the event involving BD occurred before the families went to Aldinga, then BD would not yet have been three years old at the date of count two. It is an agreed fact that BD turned three years of age on 30 December 1992. Counsel for the accused submits and I accept that it is very unlikely that BD would have stayed overnight at the accused’s home when she was one or two years of age; she would have been too young and too much of a responsibility for JF as the primary carer.

34. In her statement of 23 March 2016, LMG said that she thought that the event with BD was the last time that the accused touched her and this would have been in 1994 or 1995. After that time, she made an excuse to her mother saying that she did not want to stay at the accused’s premises. She accepted that in that statement to the police she said that the alleged occasions at Aldinga happened after the alleged occasion with BD. I would not accept that recollection of events as being accurate.[76] I think it is most unlikely that the event allegedly involving BD in the sofa bed with LMG would have occurred when BD was between one and two years of age.

    [76] T47.

35. In her evidence, LMG affirmed the correctness of her statement and said again that the occasion in relation to BD (count two) took place at the accused’s home before the family holidays at Aldinga. She affirmed also that she thought the family holidays at Aldinga occurred in 1994 or 1995.[77] I do not accept firstly, that there was any family holiday at Aldinga involving the accused’s family at that time. LF was in terminal decline with her illness and was only weeks away from death. I think that any evidence to the contrary is unsustainable. Nor do I accept that the event which allegedly occurred with BD, would have occurred before the Aldinga visits because, on the timing suggested by LMG, BD would have been so young that she likely would have been in nappies. I consider that it is so unlikely that BD would have stayed over at the accused’s home at that age, that the memory of LMG about when those events allegedly occurred is incorrect.

    [77] T47-T48.

1. I also think that there is an unreliability about that date range. LMG gave evidence that in relation to the events at the Aldinga rental premises, she was between eight and 11 years of age. She also said that in relation to the timing of the events that concern count three (in bedroom marked 3) she was asked by LF to turn off her machine and the next day she was told off by the parents.[78] I have earlier set out the evidence of LMG concerning the events in the bedroom with LF. She said in her evidence that she saw the accused standing over LF’s bed and that he was about halfway down the bed. LMG gave a statement to the police where she said that she woke up to the accused standing over LF and then said that she stayed awake and saw him walking to her bed. She told police that she closed her eyes and made out that she was asleep.[79]

   [78] T58.

   [79] T77.

2. In evidence before the Court, LMG said that she thought she was having a dream at the relevant time at Aldinga. In the dream she was laughing and was very happy and could remember waking up to being interfered with by the accused and thinking, “I hope he doesn’t think that I’m happy”. This evidence was not included in any police statement and the evidence about having a dream was not consistent with the evidence given by LMG that she remained awake from the time that she saw the accused standing over LF. In relation to the evidence concerning the dream, LMG informed the Court that it was something that just came into her mind so she just blurted it out. It was something that occurred to her memory in the last week or so before giving evidence.[80]

   [80] T104.

3. There is also a slightly lesser inconsistency in the evidence given as to what occurred after LMG saw the accused in the room. In her statement to the police, LMG said that she closed her eyes and made out that she was asleep. She said that the accused pulled down her pyjama pants and started touching her vagina and putting his fingers inside her. There was a slight inconsistency between the witness statements given to police and the evidence given by LMG before the Court. She said in evidence that when she saw the accused leaning over LF’s bed, she started wriggling closer to the wall because she was scared that he would come over to her bed. She then said that she woke up and the accused was sexually molesting her. This evidence implicitly suggests that she must have fallen asleep after she first saw the accused in the bedroom. She said that when she awoke he was leaning over close to her eyes and she tried to wriggle her way back towards the wall. There was no mention of wriggling towards the wall in the police statement. She said in the police statement that when he touched her vagina and put his fingers inside of her, she started wriggling and moving and tried to get him to stop.

4. In evidence, LMG was adamant that LF had asked her to turn off the machine. This machine was the means by which LF received nutrients and medication. The evidence of JF was that it took some time for LF to get used to the machine because it required her to lie on her back whilst the machine was operating. It was in the nature of a gastric cannula, directly into the stomach rather than through a nasal tube.

5. JF gave evidence, which I accept, that there was never an occasion when that the machine had been turned off at night and, to her memory, LF had never asked either of her parents to turn it off at night.[81] The accused gave similar evidence.[82]

   [81] T363.

   [82] T332.

6. There was considerable evidence in relation to the machine itself. There was an inconsistency between the evidence of LMG and to an extent, the accused, and the evidence of JF. JF said that the machine itself and any product being transmitted into the body of LF were both attached to a stand, similar in look to a normal hospital stand carrying intravenous drips. The accused submitted that LMG, who had just turned eight by January 1992, or was about to turn or had just turned nine in January 1993, would not have known how to turn off the machine. The evidence on that was unclear. LMG gave evidence that there was a button on the box (that was on the floor) which she flicked off. She assumed that it had some sort of on/off button but she cannot recall if there was more than one button on the machine. She does not know if the button was also illuminated. She said the machine was on the floor.[83]

   [83] T73-T74.

7. I am unable to accept the evidence of LMG that the machine was placed on the floor. I prefer the evidence of JF that the machine was hooked up on the stand with the clear plastic bags containing the medication and the nutrients. I prefer the evidence of JF to the evidence of the accused on this topic. JF was the person who settled LF before the accused came in and attached the tubes from the machine and turned the machine on. The accused said that there were two buttons on the machine and he could not recall whether there was one button for ‘off’ and one button for ‘on’. It all may have been run from the same button, it may have been green, it may have had a plastic cover over the button. The machine also had a number of lights on it. The on/off button was illuminated but there was nothing written on it.[84] The accused gave evidence that LF did not turn the machine on for herself and the children in his family and the family of the complainants were not taught how to turn the machine off and on.

   [84] T255; T326-T328; T334.

8. JF gave evidence, which I accept, that she did not think that LF knew how to turn the machine on and off because she had never been shown how to do it. Her evidence which I also accept is that her other children did not touch the machine, nor did any visiting cousins. Only adults were allowed to touch it.[85] LMG gave evidence that she had no idea as a child, what the machine was for or how it worked but, as an eight or nine year old, she would have known how to turn the machine off.[86]

   [85] T423.

   [86] T76.

9. I am not prepared to accept that evidence. I prefer the evidence of JF that nobody else touched the machine apart from she and the accused.[87] I consider that there is a reasonable commonsense explanation for that position. The machine was used to feed nutrients and medication to LF. It was necessary for the accused to insert the tubes from the machine that were attached to the stand into LF’s stomach. There is no evidence as to how difficult that process may be; however, as a matter of reasonable inference and ordinary commonsense, it is not a process that would involve children nor would it involve multiple persons due to the possibility of infections or other similar problems. I am satisfied on the evidence that as a matter of safety, the only two persons who were ever involved in the operation of the machine were the accused and his wife JF. To the extent that there is any difference in the evidence on that topic, I prefer the evidence of JF.

   [87] T363; T423.

10. There is a further reason for the view that I have formed. LMG gave evidence that she turned the machine off because LF asked her to do so. It is difficult to comprehend those circumstances at a number of levels. The first is, the evidence before the Court is that LF was moved to the downstairs study in late 1993 because her mother, who was pregnant with her child, JuF, could not manage to lift her up and down the stairs of their home. There is no direct evidence as to when the gastric tube was inserted into LF’s stomach permanently. There is no evidence about the operation of the machine at the home of the accused and his family. The evidence discloses that LF’s health deteriorated during the year of 1994. It may be safely assumed, although nothing turns on this assumption, that the feeding tube cannula had been inserted prior to that time. Even so, for the reasons already expressed, it is understandable that JF would have ensured that the only two persons involved in the operation of the machine was herself and her husband.

11. As important, the operation of the machine was a part of the process of maintaining the health of LF during her own decline in health to February 1995. The evidence was that on occasions, an alarm would be sounded on the machine. This was when LF turned in the bed and one of the feeding tubes was blocked or it was creased so that insufficient product was being transmitted from the machine into LF’s stomach. This was part of the essential characteristics of the process by which LF was fed and received medication. There was no evidence that this setup caused LF any great discomfort apart from the fact that she was required to learn to sleep on her back and the evidence of JF was that although this caused initial difficulties, over time, LF got used to the process. I think it is inherently unlikely that LF at any time would have asked anyone to turn the machine off because there was no reason to do so.

12. LMG gave evidence that the day after she turned off the machine, she was spoken to by JF and was asked why she had turned it off. Her response was that LF had asked her to do so. She was spoken to by the adults present and was told that this is something that she should not have done.[88] The accused makes a number of significant criticisms of this evidence. The first is that LMG did not give this information to the police in any of her statements.[89] The second is that none of the adults who were present at the time had any recollection of these events. LMG’s mother did not know how the machine operated and had no recollection of any discussion about the machine being turned off, that it might have been turned off by one of her children, or that that child was spoken to about the fact that the machine was turned off. Her recollection was that the machine really never came up in conversation between the adults or the adults and the children.[90]

    [88] T58; T79.

    [89] T78.

    [90] T212.

13. Most importantly, JF could not recall any occasion on which any of the children were spoken to about the machine being turned off at night at any time.[91] The accused gave evidence that he could not recall such a conversation and he thought he might remember something like that.[92]

    [91] T389.

    [92] T273; T331-T332.

14. LMG gave evidence that on the occasion outlined in count three, when the accused came into the room he was naked. It is implicit in the evidence that on occasions, the accused or JF may have looked in on LF during the night. This is to be expected as part and parcel of the usual care and concern shown by parents. I consider that there is an inherent unlikelihood that at the rental shack at Aldinga, the accused or anyone else would have been walking around at night, naked. Exhibit D9 is a formal plan of those premises. The alleged activity took place in bedroom 3 on that map. That bedroom appears to measure about 3.8m x 2.7m and is therefore rectangular in shape. There is a doorway into the room which takes up the usual amount of space for an 800mm doorway. That doorway limits the usable space of the room. Be that as it may, it is known that bedroom 2 is immediately adjacent to bedroom 3, and bedroom 1, which was across the hallway leading to the stairs, was occupied by the parents of LMG and the mother of LF.

15. Also, immediately adjacent to bedroom 1 and opposite bedroom 3, was the laundry, toilet, and bathroom area. That was the only toilet in the premises. It is foreseeable that the children in the home, and the parents in the home, would have used that toilet at night from time to time. I would not accept in that background of facts, that the accused would have been so brazen as to have walked around naked. I would accept his denials in that respect although as I have said, no burden of proof falls upon him.[93]

    [93] T273; T329.

    Count four

16. The other adults were not at the Aldinga rental house. The accused was the only adult in the home. LMG was playing with a jigsaw puzzle with her cousins in the same bedroom as referred to in count three. There were a number of children in the room. There was a lot of revelry and frolicking going on. The accused took part in this frolicking and as he did so, he started to lift the children up. When he did so, he put his hand between LMG’s legs and touched her vagina under her clothes.[94] He touched the top of her vagina and she saw him do the same thing with one of her sisters. She cannot remember which sister. His hand was not in her underwear for what she considered as very long, and perhaps maybe for half a minute.[95]

    [94] T31.11-T31.26.

    [95] T31.21-T32.2.

17. The charge of indecent assault of a person under 12 years in the period between January 1992 and December 1995 in count four, is alleged to have taken place at the same rental Aldinga premises.

18. I have earlier referred to the factual circumstances surrounding count four, an allegation of indecent assault of a person under 12 years. I have described the circumstances surrounding the count which is alleged to have occurred at the same time or about the same time as count three, namely on the same holiday. The conduct is alleged to have occurred in the downstairs bedroom occupied by LMG and LF. At the time the children were playing with a jigsaw. It was alleged that the accused started throwing the children into the air as part of the play going on in the room. All the children were laughing and playing as he was lifting them up and throwing them. It was then that the accused was alleged to have put his hand inside LMG’s underpants and touched the front of her vagina when he lifted her up. LMG was adamant that the event occurred when all of the other parents, namely her parents and JF were away from the beach house together. She did not know why they would be away from the house together at the same time. LMG also gave evidence that at the time these events occurred, her sister AS and her cousins PF and GF were present. She thought that BD was present and she was fairly sure that LF was present.

19. There are a number of things to be said about this. First, at the relevant time (in 1992-1993) BD would have been a very young child of between one and two. It is difficult to conceive of any possibility that BD would have been in the room at that time. She would have been a very young baby. It is very unlikely that she would have been involved in a boisterous game between siblings and cousins. When LMG was challenged about whether LF was present in the room, she was reminded that at the time LF would have been in a wheelchair or in a stroller. LMG was unsure whether LF was in the room at the time.[96] The accused also criticised the fact that LMG said that his hand was allegedly in her underwear maybe for half a minute in front of all of the children, including his sons. I consider that is an unlikely circumstance. LMG then changed her evidence in relation to the length of time and whether or not anybody else in the room may have noticed.[97]

    [96] T80.

    [97] T84-T85.

20. The uncertainty of LMG as to which sister may have suffered the same conduct as her takes on greater significance when it is known that BD was somewhere around two or three at the relevant time whereas AS would have been at least five or six years of age. I have significant doubts whether BD, at that age, would have been in the room and in any event, there is no evidence as to whether BD was out of nappies and was wearing underwear at that stage. If another sibling may have been involved it is likely to have been AS, but that in itself makes it unusual why LMG could not remember that AS was the person who was affected.

21. LMG also agreed that the accused was a reasonably strict person and was not one who mucked around inside of the house either at his home or at Aldinga with the children. She maintained that as no one else was there that that was something he could do.[98] There was no explanation why the accused who, she thought, was reasonably strict should suddenly become boisterous and nothing was said of this when LMG gave her second two statements to the police.[99]

    [98] T87.

    [99] T81.

22. Also, LMG’s mother said that the adults were always present to supervise the children and the children were never left alone without all of the adults being there. The general pattern was that the families would all go to the beach together, stay as long as they could and then return and spend time at the house.[100] Often, this was in company with other friends who might have come down for the day, who would stay for a meal and then take their own children home. Therefore, the house was something of a gathering point for family and friends. JF said that there was no occasion when one adult was left at the beach house while the other adults went off. She said that there was nowhere to go for coffee and three of them did not ever go off for a walk on their own and leave the accused with the children at the home. This was something that just did not happen.[101] I accept the evidence of JF and corroborated as it is by AD, the mother of LMG.

    [100] T213.

    [101] T390.

23. In submissions, the accused placed significant emphasis on the size of the room and what might have been possible in that room. However, the children were small and young, there were three beds in the room and there was space on the floor. I do not find that the submissions of the accused about the size of the room are of great persuasion. However, I accept the evidence of JF, corroborated by her sister AD, that there was no occasion upon which the three parents would go off on their own to do something, for example for a walk, and leave one parent alone at home with all of the children. The credibility of that evidence is underscored by at least two features. The first is the tender age of BD at the time and secondly the needs of LF. It think it is highly unlikely that one parent would have been left alone with all of the children including LF in the home. I think it is as unlikely that a parent would have been left with all of the children apart from LF bearing in mind the young age of BD. I also accept the evidence of JF that the whole focus of the holiday was for the families to socialise together and to socialise together with other friends who may have visited from time to time. As in all such beach holidays, there may have been cooler days but that is not inconsistent with the families all socialising together in the way that she described. And as JF also said, there was really nowhere to go to get a coffee or to do anything in particular that would not otherwise have been done with the whole family.

24. LMG gave evidence of a further uncharged event. She said that the incident occurred in the bathroom downstairs when she came out of the shower and saw that the door had been opened a fraction. She saw the accused staring at her through the door. He was not staring for very long and when he saw her he went away.[102] She thinks she may have been 10 or 11 when this occurred and after that occasion, she continued to sleep at the accused’s home. At that time, GF’s room was bedroom 4 and she also slept in bedroom 3 (refer Exhibit P6). LMG gave evidence that this incident occurred in the downstairs bathroom which is described in Exhibit P6 as bathroom 1. She said that she had had a shower and GF was then in the shower. She was drying herself off and getting dressed. She was not wearing any clothes when she saw the accused.[103] It is not clear to me why, in light of the fact that she was sleeping in bedroom 3 at the time and GF was sleeping in bedroom 4 that a shower was being taken in bathroom 1 on the ground floor rather than in bathroom 2 on the first floor of the house.

    [102] T33.13-T33.23.

    [103] T34.8-T34.35.

    Count five

25. Count five on the Information relates to alleged offences against AS. She is the middle sister of LMG and BD. There are three years between herself and her older sister and her younger sister.

26. She can recall seeing her cousins at the accused’s home two to three times per month. They lived nearby. She would pop in to her cousins’ home sometimes after school and sometimes with her mother or her Aunty and her cousins might visit their home. She said that she was very close with her cousins growing up.[104] She can recall her parents renting a holiday house at Aldinga. She thought that her parents rented more than one property. She can recall that one was rented next door to a property which her parents subsequently purchased.

    [104] T152.18-T154.5.

1. Apart from the family holidays at the rented premises at Aldinga they visited a property purchased by the complainants’ parents at Aldinga. This was right next door to the rental premises. If he stayed overnight, he and his wife slept in bedroom 3 and JuF slept with them.[254] He knew that the complainants all slept upstairs but was not sure of their arrangements. He has no recollection of a sofa bed being upstairs but he denied any activity on a sofa bed with AS.[255] At that time, if he got up he would have been wearing jocks and perhaps a singlet. Similar to LMG, he found that AS was very comfortable coming to his house. She would come to have her hair done by his wife.

   [254] T281.27-T281.36.

   [255] T282.1-T282.16.

2. The accused also denied any conduct in relation to BD as alleged or at all. He said that they did own a green leather lounge but that it was kept in the family room. He has no memory at all of BD sleeping on the green lounge and that would not have occurred because another bed was always available. He also has no recollection of any particular time when BD stayed by herself. She usually stayed with both of her sisters.[256]

   [256] T287.

3. After LF died, the complainants did not come over to their home as often nor would they stay over. He can recall a time when BD stayed with her sister. They would all normally sleep together in the study downstairs on the sofa bed.[257]

   [257] T287.10-T287.13.

4. In relation to the events in Italy, the accused said he did not have a memory of going into BD and JuF’s room that night. He does not remember touching BD.[258] His only memory was falling over that night. He said he took a stumble and fell over but has no recollection of where.[259] He recalls going to the bathroom after he had a tumble. He said he was feeling sick because he had drunk so much. He was in the bathroom for a while because he washed his face with cold water. Eventually he went back to his bedroom. He recalls that the next day they went on a cruise and he was a bit tired and worse for wear.[260]

   [258] T289.20.

   [259] T289.28-T289.29.

   [260] T289.28-T290.1.

5. In cross examination the accused confirmed that the sofa bed was moved out of the downstairs study into an upstairs bedroom a number of years after the passing of LF. It was not until after PF got married in 2013 that it went back upstairs.[261] He was mistaken when he said it was moved three months after the death of LF.

   [261] T293.21-T293.27.

6. The accused also said that he did not think that AS would ever stay in GF’s room. There was a four year difference between them and that was an age difference that was too great at the time.[262] Also, when GF was 15 he wanted his bedroom door shut. He confirmed in cross examination that no one ever slept on the couch in the family room. That was because he and his wife continued to use the family room after the children had gone to bed.

   [262] T317.22-T318.38.

   Prior inconsistent statements

7. I have set out in detail above the evidence of the witnesses and I have summarised the submissions of the accused about some prior inconsistent statements made by the prosecution witnesses out of court. Those statements are inconsistent with the evidence that those witnesses have given in Court. As I have already set out that evidence and I have identified the inconsistencies, it is not necessary that I repeat those matters.

8. I remind myself that the prior inconsistent statements of any witness in a criminal trial are not put before me, as the trier of fact, for the truth of the facts that they purport to assert. Rather, they are put before me as the trier of fact to enable me to assess whether I may accept the evidence of those witnesses as given on oath.

9. I remind myself that the basic principle is that a case must be decided upon the evidence given on oath and subject to cross examination in court. I further remind myself that what a witness has said out of court is not evidence in the case. Prior inconsistent statements go only to the reliability or credibility of evidence given from the witness box in court.

10. I further remind myself that if a witness gives sworn evidence that is significantly different from statements made on earlier occasions, as the trier of fact I must exercise caution before accepting the sworn evidence of that witness. I have assessed the significance of the inconsistencies that I have found proven. I have compared those inconsistencies with the issues in the case and particularly whether those issues are peripheral or incidental. In that comparison, I have made an assessment whether, if the inconsistency touches upon an important issue, whether there is an acceptable explanation consistent with the witness’s sworn evidence being believable and reliable. I have reminded myself that the more significant the inconsistency the greater the risk that the sworn evidence will be unreliable and if a witness denies or equivocates about statements out of court proved to have been made by the witness, that may be a factor in assessing the truthfulness and deciding whether I accept the witness’s evidence generally.

11. Finally, I remind myself that I am entitled to take into account any independent evidence which I consider goes to support the sworn evidence of the witness.

    Decision on the charged counts

12. I turn now to my judgment in the matter. I remind myself that each of the elements of the offence with which the accused has been charged must be proved beyond a reasonable doubt. The usual direction to a jury is that a reasonable doubt is a doubt which (you) as a reasonable juror are prepared to entertain. I will use the same approach, bearing in mind as I do, the proper approach to that direction that is now explained in the High Court decision in Dookheea.[263]

    [263] [2017] HCA 36.

13. I consider that the most appropriate commencement point is the seventh, eighth and ninth counts on the Information. These allege three counts of indecent assault in the period between 1 January 1997 and 31 December 1998. Each of these three counts concerns an allegation by BD that she was indecently assaulted by the accused while she was sleeping, on one occasion on a couch in the family room of the accused’s home.

14. The elements of indecent assault are set out above. There is no doubt that the conduct alleged against the accused would, if each of the elements were proved, satisfy the requirements of the offence charged.

15. I am satisfied from the evidence of JF, and I accept that, on no occasion did BD sleep overnight on the couch in the family room in the accused’s house. I am therefore unable to accept the evidence of BD that she slept on that couch and that consequently the event as alleged occurred at that place. It is intuitively and inherently unlikely that a child of the age of six or thereabouts (see Exhibits P1 and P6) would have been left by JF to sleep downstairs on her own so far separated from adults at a time when she was sleeping over at the accused’s house. I consider also that it is inherently unlikely that a child slept on a couch in a room used by adults after the other children had been earlier put to bed and when there are other beds to be used in the house for any additional children present. The inherent unlikelihood of the event happening as described by BD in her evidence creates in my mind a sufficient doubt that the elements of the offence have not been proved to my satisfaction beyond a reasonable doubt. I am satisfied from the evidence that the children were never allowed to sleep overnight on the couch in the family room, that they would always have slept on another bed in the house that was made up by JF. This would have been usually in one of the bedrooms of the house or, if each of the three complainants stayed over, on a pull out sofa bed made up for that purpose.

16. The date range of the alleged offences is the period in the calendar years 1997 and 1998. Although the evidence on timing is a little less emphatic and I make due allowance for that, there is sufficient evidence to suggest that after the passing of LF on 9 February 1995, it was much less likely that the three complainants stayed over separately (there was some evidence that all three may have stayed at one time) at the accused’s house. This is understandable having regards to the effect upon JF and the accused of the loss of their eldest child. Also, by the time of the passing of LF, LMG had turned 11 years of age and her evidence was that she did not stay over at the accused’s house from that age. There was no challenge to this evidence given by LMG and it was corroborated by her mother AD. This supports the evidence of JF that any child sleeping over at the accused’s house would have slept in a bed somewhere.

17. As I am satisfied that the version of these events given by BD in her evidence is not correct, I have a real doubt about whether her version can be relied upon as accurate, credible and reliable. Those doubts are only exacerbated by the fact that at the time BD made her first complaint to LT (according to the evidence of LT), BD said that the accused had been “sexually abusing her from a young age and it was still happening” (i.e. when BD was about 14 years of age). In assessing this evidence I would have regard to the possibility of the lapse of memories of LT over time and the fact that the receiver of a complaint may not necessarily accurately recall what was said in the complaint. Taking those matters into account, it is significant that LT had a clear recall that BD said to her both that the accused had been sexually abusing her from a very young age and that it was continuing. There was no evidence to support the first proposition and there is no evidence to support the second proposition, either from BD or from any other complainant. This inaccuracy of evidence combined with the other matters that I have mentioned cause me real and significant doubts as to whether the evidence given by BD is accurate, reliable and credible. I did not consider that BD was attempting to be anything other than truthful, however, she was wrong about those factual matters. In those circumstances, the doubts that I have arising from that evidence constitute a reasonable doubt and I would dismiss counts seven, eight and nine.

18. Counts five and six concern the allegations of indecent assault made by AS. The first particular concerns a period between 1992 and 1993 when AS was between five and six years of age (see Exhibit P1). AS maintained that the bed in which she was sleeping was positioned against a wall in GF’s room as I have earlier described (see generally Exhibits P6 and P18).

19. AS was adamant in her evidence that the setup of GF’s room on that night was as she drew it in Exhibit P18. I consider that her evidence on that topic was neither accurate, reliable nor credible. There was no support in the evidence for the proposition that the room was ever configured in that way. As disclosed in Exhibit D8, and when it is understood that there was a chest of drawers and a cheval style mirror on the doorway wall, it is very doubtful that the room was ever configured or could ever be configured in the way suggested by AS. I am unable to accept this evidence. I also do not accept the evidence that in the circumstances where, when GF was four years older than AS, and where AS was only sleeping over, that GF would have slept on the trundle bed. There was no apparent reason why he would do so. The evidence of JF is that GF always slept in his own bed and that people sleeping over in his room would always sleep on the trundle bed. JF was also adamant that the age difference between GF and AS was so great that it was very unlikely that he would have wanted AS in his room. She said that it was much more likely that AS and PF would share PF’s room by sleeping in his bed, head to toe.

20. I do not accept as accurate, reliable and credible the evidence of AS on this topic about where she was allegedly sleeping when the event complained of occurred. She also said that when the accused left the room, he closed the door behind him. JF said that the doors to the children’s bedrooms were always left open. This was because of their fears of fire. There was no explanation about why over such a long period of time, smoke alarms had not been fitted. I accept the evidence of JF on this topic, namely that it was a universally observed rule of the house that at night, the children’s bedroom doors were always open.

21. JF could not recall any occasion when AS slept in GF’s bedroom. She thought that such an event was unlikely generally, because of the age difference between the two of them. I would not accept that GF would have given up his bed for a visiting cousin four years his junior. I consider the evidence of AS on those topics is unreliable, inaccurate and it is not credible. At no time did I consider that AS was attempting to be anything other than truthful, however, despite her efforts to tell the truth, she was wrong about those factual matters.

22. Also, the evidence of her husband MS, to whom she made an initial complaint and who was present when she elaborated on that complaint to the person Pa, was that the accused had placed his fingers in her vagina and that he had tried to put his penis in her pants. There is no evidence before the Court that is consistent with that complaint. That view is formed taking into account the exigencies of the memories to whom the complaint was made or, as here, who heard it made and his powers of recollection. Taking all of those matters into account, there is a large degree of inconsistency between the version of events recounted by AS and the content of the complaint. These inconsistencies have exacerbated the doubts that I already have about the reliability and credibility of the evidence given by AS on the fifth count.

23. The sixth count concerns an event that allegedly occurred between January 1997 and December 1998 at a beach house partly owned by AS’s parents at Aldinga. AS alleges that she slept on a pull out sofa bed, the cover of which had a floral pattern, with her younger sister BD or her cousin JuF.

24. I have considerable difficulty accepting this evidence. In that time period, which I accept is only a guide, AS would have been aged between 10 and 11 years. This time period is some five years after the time period referred to in count five.

25. The evidence is that there was no floral patterned sofa bed couch in that area (of the building) that anyone could remember. The evidence was that the lounge that was positioned there was closer to the stairwell and was green in colour. AD, the mother of AS, gave evidence that she did not think that anyone slept on the lounge area in the upstairs section. She and her husband had the larger bedroom and she thought that the second bedroom on the first level had at least one bunk bed arrangement and perhaps two or at least another bed so that all of the children could be accommodated there. Also, on the limited number of times they were there, the accused and his wife and children slept downstairs in bedroom 3 and the area marked bedroom 5.

26. It is very difficult to accept that dressed only in underwear, the accused would, when AS was so much older, be so emboldened as to come to the first floor and climb into the bed behind her. It is to be recalled that this was not a regular bed; it was a pull out bed from a sofa (that could not be recalled by any other witness especially one of the part owners). If it was a pull out bed, it would be smaller and have the usual characteristics of such a bed, especially noise. This of course is to be assessed in the context that there would have been three bodies in the bed: an adult male, a ten-11 year old female and a younger female child. All of these activities would have occurred within metres of the bedroom in which the parents of AS were sleeping.

27. Although I completely accept that AS was generally trying to tell me the truth, I consider that she was wrong about this evidence. I consider that her evidence about this event was not reliable or credible. In those circumstances, and acknowledging the denials of the accused, I consider that a sufficient doubt is raised in my mind about the proof of the elements of these offences, that they have not been proved to my satisfaction beyond reasonable doubt.

28. Counts one, two, three and four concern the complaints of LMG. Count one alleges an event in the period between January 1989 and the end of December 1990. The allegation is that the accused had sexual intercourse with LMG by inserting his fingers into her vagina. The evidence discloses (Exhibit P1) that at this time, LMG was aged between five and six years, having been born on 19 January 1984.

29. There was a challenge to the actual position of the trundle bed either on the cupboard side or on the sliding door side of the bed – see Exhibits P6, D8 and P18. In his evidence, the accused suggested initially that the trundle was always on the built-in cupboard side of the bed but in the end, he could not be sure. JF suggested that it could be on one side or the other depending upon the season. There was no clear evidence about which side the trundle bed was on.

30. The accused said that when the trundle bed was used, it was necessary to pull GF’s bed clear of the two bedside cabinets and back towards the hallway. JF had no memory of this. She thought that the space between the wall and the fully extended trundle bed was about 200 mm. Exhibit D8 suggests that, as a best estimate, there was likely to be 1.3 m between the bed and the cupboard. The bedhead was in the middle of the wall and so that, approximately, is the same distance to be found between the bed and the glass sliding door wall. Exhibit D8 suggests, without an actual measurement, that the trundle bed was 900 mm wide. This is likely to be correct as it was measured against the bed which was known to be 930 mm wide. That way the trundle bed could slide back under the bed and be stored under it.

31. JF, whose evidence I accept as truthful, reliable and accurate, did not recall the need to pull the bed back to use the trundle bed. Exhibit D8 discloses that if that were the case, the trundle bed would be about 1.8 m in length, which is more than sufficient for its purpose. I consider the evidence of JF on this topic to be correct. She was the person who set up the trundle bed and I accept that she always provided a top sheet and so she contradicted the evidence of LMG.

32. The evidence of LMG is that on the night in question, the accused entered GF’s room whilst naked. The accused gave evidence that although he did sleep naked in the summer months, if he had to get up out of bed in those months, he put on a robe that hung in his wardrobe. He denied ever moving about the house naked. He gave clear and cogent evidence on the topic and he did not depart from that version during a long cross examination. He was insistent in his denials of this and the other factual assertions made by the complainant. I again remind myself that this is not a contest between two versions nor is it an oath on oath exercise. No burden of proof falls upon the accused.

33. The accused emphasised an inconsistency between what LMG said to her husband in her initial complaint and her evidence about count one. He points to the fact that her complaint to her husband was that the accused indecently assaulted her when he came into the bedroom in which she was sleeping whilst using the excuse of checking on the monitor of the machine to which her cousin LF was attached. The evidence discloses that this could only have occurred at the rental house at Aldinga in the holidays in January 1992 or 1993.

34. There are some major inconsistencies in the evidence given by LMG and the complaints to her husband BG. There are also inconsistencies between the evidence of LMG and JF about the disposition of the furniture in GF’s room, the space (or lack of it) for an adult male to fit beside the trundle bed when it was being used and the space for an adult male to then kneel on the floor. There is also the inconsistency between the version of LMG and the accused about whether he did or did not wear a robe. In that respect, I again remind myself that this is not an exercise of oath on oath or that the accused bears any onus of proof. I also bear in mind that the accused elected to give evidence and he did not exercise his right to silence.

1. In the result, I am not satisfied that the prosecution has proved each of the elements of the charge beyond reasonable doubt. Having regard to the inconsistency that I have referred to, I am not satisfied of the accuracy, reliability and credibility of the evidence of LMG on this count. I am satisfied that the doubts that I have about the guilt of the accused on this count constitute a reasonable doubt in these circumstances.

2. I turn to count two. For the reasons that I have set out hereunder, I have significant doubts about the factual circumstances surrounding this count. LMG alleged that she was asleep on a sofa bed in the upstairs spare room (bedroom 3). She said that BD was asleep in the same bed. Later in her evidence, she suggested that it may not have been BD, it might have been, for example, her cousin JuF, her sister AS, or it may have been somebody else. However, JuF was not born until 3 April 1994 and LMG said that she did not stay at the accused’s home after she turned 11 years of age which would have been in 1995. I have significant doubts that LMG would ever have shared a bed with JuF.

3. The evidence of LMG was that she was asleep on the sofa bed in the upstairs bedroom. BD was asleep in the same bed and that these events that I have earlier set out in detail occurred when she was 10 or 11 years of age.

4. LMG was born in 1984 and BD was born in 1989. The evidence is that the events allegedly occurred when LMG and BD were sleeping on a sofa bed. The evidence suggests that there was only one sofa bed in the Fulham Gardens house. It was usually to be found in the downstairs study. LF was moved down to that room at the end of 1993 when JF could no longer manage to carry LF downstairs from bedroom 3. This coincided with her pregnancy with JuF (born 3 April 1994). LF then remained in the downstairs study until her death on 9 February 1995.

5. The evidence of the accused was that towards the end of LF’s life, a mattress was put on the floor beside her bed and he and his wife slept there. The accused said he took naps on the sofa bed couch whilst caring for LF in that room. He could not pull out the sofa bed to lie on it as a bed because there was insufficient room in the study.

6. There was an inconsistency in the evidence about when the sofa bed was returned to bedroom 3 from the study. Initially the accused said that it was moved about three months after LF’s death. His later evidence was that it had moved years afterwards. It was heavy and he needed the help of his sons to move that furniture. There were other inconsistencies including that there may have been a sofa bed in bedroom 3. This evidence is reflective of the amount of time that has passed since the alleged events. Human experience is that the effect and duration of the grief associated with the loss of a child affects every aspect of parents’ lives for a very long time. It is quite unsurprising that witnesses are unable to remember a detail about an aspect of the furnishing of a room amongst other events that were so traumatic for them as parents.

7. LMG said in evidence that this event occurred after the holiday at Aldinga. In her statement to police of 23 March 2016 she said that this event occurred before the trips to Aldinga. I am satisfied on the evidence that the trips to Aldinga occurred in the years before 1994, the date of the trip to Robe and most likely in January 1992 and January 1993. BD turned three years of age on 30 December 1992. I would not accept that this event could have taken place when BD was less than three years of age. I do not accept that a child so young would have slept over at her aunty’s home and away from her parents at that age. The accused criticised a number of aspects of the evidence of LMG when it was compared to the content of the complaints that she made to her family and her husband. I have taken these into account in making my assessment of the evidence.

8. Having made that assessment, I am not satisfied beyond reasonable doubt that the elements of this offence have been proved against the accused. I consider that the inconsistencies in the evidence that I have referred to above raise significant doubts in my mind about the accuracy, reliability and credibility of the evidence of LMG such that I am not satisfied that the elements of the offence charged have been proved.

9. The events surrounding these counts are alleged to have occurred in the Aldinga rental house. They are alleged to have occurred in the same room—see Exhibit D9 and the room marked “Bed 3”—that contained bunks and a single bed in which LF and LMG slept. The evidence satisfies me that, at the latest, the house at Aldinga was rented in January 1992 and January 1993. There is some uncertainty about this because those years are established through a process of deduction and exclusion rather than by a clear memory. For example, in light of the fact that it is agreed that there were other joint family holidays such as in Wallaroo that the year may have been 1991 and 1992 or any combination up to 1993. The passage of time has meant that memories have faded and there is no separate ability to precisely identify dates and years.

10. I am satisfied that the spread of dates could not have included the year 1995 (as particularised) because of LF’s condition. So also do I have the same view about the period in January 1994 because I am satisfied that the families went on a holiday to Robe in that year (see Exhibit D22). The recollection of LMG about how old she was at the time was confused. Her evidence was that she was aged between eight and 11 but her statements to police said that it occurred in 1994 or 1995 when she was 10 or 11 years of age. It could not have occurred in those two years.

11. In relation to count three, the evidence of LMG was that when she was asleep on her bed on the bunks, LF was asleep on the single bed and she was attached to the monitor and machine through which nutrients and medication were supplied to her through a gastric cannula. LMG saw the accused enter the bedroom. She said that he was naked. She said in her evidence that she did not stay awake. She thinks that she may have fallen back to sleep. She said that she was aware that the accused checked LF and then, perhaps while she was asleep, he came to her bed. She alleged that he then inserted his fingers into her vagina after she had moved away towards the wall to get away from him, presumably after she awoke. There is a further aspect to this evidence. Although it is not contained in any statement to police, LMG said in evidence that at the time she can recall thinking that she was having a dream, that she may have been laughing in the dream and hoping that she was not laughing out loud so that the accused could think that she may be happy. In her statement to police, LMG said that she was awake from the time that the accused allegedly entered the room. She told police that he then pulled down her pyjama pants and inserted his fingers into her vagina when, on her evidence, she said that she woke to that activity. She also told police that she commenced wriggling toward the wall after, rather than before, he inserted his fingers into her vagina.

12. LMG gave evidence that at some time when the accused left the bedroom (bedroom 3—see Exhibit D9) that LF spoke to her and asked her to turn off the machine to which she was attached.

13. In the chronology of events, the evidence suggests that this was soon after the accused allegedly left the room. The monitoring machine provided LF with nutrients and medication. It was managed by her parents and it had an alarm system so that if a tube became blocked or twisted the alarm would sound and one of her parents would attend and the operation of the machine would be restored. The connection of the tubes to the machine required LF to sleep in a particular position. The evidence suggests that for LF this took some adjustment but over time she managed to find a comfortable sleeping position. There is no suggestion on the evidence that the transmission of nutrients or medication caused LF any discomfort. And the evidence does not suggest that the noise of the operation of the machine was in any way troublesome.

14. Thus, if the tubes of the machine remained attached to LF, the only other difference arising from it being switched off would be that the alarm would not sound if those tubes became entangled or creased. It follows that, on this evidence, LF made this request of her cousin LMG in the absence of any suggestion of distress of LF. I find this both peculiar and unlikely. I am satisfied on the evidence that the machine was hung off a vertical stand that is so regularly used in hospitals for saline/medication drips. I find that the machine was not on the floor as suggested by LMG. The evidence about how the machine was operated, how many switches it had and whether one or more was illuminated is not clear and I need make no findings about it.

15. The evidence does make clear that JF and the accused were the only adults to operate the machine. JF said that she did not think that LF knew how to turn off the machine. She was equally as confident that other children of, say eight or nine years, would not have known how to operate the machine. I consider the suggestion that LF asked LMG to turn off the machine in the absence of any particular reason to do so is very unlikely. So also do I think that a young child in the position of LMG would not have known how to turn the machine off or would have turned it off if requested by LF without at least first raising it with an adult.

16. In evidence, LMG said that she was told off the next day for turning the machine off the night before. None of the adults called in evidence could recall that event or anything of that nature and none of them had any recollection that any child, including LMG, had been identified as having turned off the machine or that any child in fact did turn off the machine. I do not think that that occurred.

17. I consider that the evidence of LMG on these issues is not accurate, reliable or credible. I have earlier said that I am satisfied that LMG was genuinely trying to tell me the truth but I was not satisfied that if such an event concerning the machine connected to LF did occur, then it must have been at another time and place than LMG described in her evidence.

18. That view is affirmed by my inability to accept the evidence of LMG that on this occasion the accused entered the bedroom (bedroom 3—see Exhibit D9) naked. This was a beach house being shared by two families including at least three other adults. The only bathroom in the building was on the ground floor where these events are alleged to have occurred. I consider that it is not credible to suggest that the accused would, in those particular circumstances, have walked anywhere in that beach house whilst naked.

19. For these reasons, I have a sufficient level of doubt about the evidence concerning count three such that I am unable to be satisfied that the elements of the offence have been proved beyond reasonable doubt.

20. Count four is an allegation of indecent assault alleged to have occurred in the same bedroom (bedroom 3—see Exhibit D9). The allegations are that the children were playing with a jigsaw. There were no other adults in the house apart from the accused. The accused allegedly entered the room and started boisterously playing with the children and throwing them in the air. It was alleged by LMG that, in the course of doing so, the accused put his hand inside her underpants and touched the front of her vagina. This hand was placed there for perhaps half a minute and she observed the accused doing the same thing with other female children in the room.

21. I repeat that this was the room as depicted as bedroom 3 in Exhibit D9. It contained a bunk bed set up and a single bed. The exhibits suggest that this furniture would have largely filled the room. The evidence is unclear on how many children were said to be in the room: LF (likely in a pram or in a wheelchair), LMG, AS, BD, GF, PF and likely JuF. I am satisfied on the evidence that in the circumstances as they then pertained, in particular with LF in her condition, there was no occasion when three of the adults, apart from the accused, were out together. JF said that it just did not happen. I have accepted her evidence on this topic. 

22. It is difficult to accept that the accused could, in the course of boisterous activity in the way described by LMG in the confined space that she described, have his hand in her underwear for half a minute. I do not think that this could be accurate, reliable or credible.

23. I am not persuaded by the evidence that the event as charged has been proved to my satisfaction beyond reasonable doubt. I was satisfied that LMG was genuinely trying to tell me the truth. I am left in the position that assessing the charged conduct against the evidence that I am unable to be satisfied of proof of the elements of the charged offence.

24. In the result I find the accused not guilty of each of the counts charged.