R v G, B

[2020] SADC 9

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v G, B

Criminal Trial by Judge Alone

[2020] SADC 9

Judgment of His Honour Judge Slattery

5 February 2020

CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY

The accused is charged with one count of maintaining an unlawful sexual relationship with a child.

Held: Not Guilty

Criminal Law Consolidation Act 1935 s 50(1); Child Safety (Prohibited Persons) Act 2016 s 38; Evidence Act 1929 s 12A, s 13D, s 34M, referred to.
R v M, DV [2019] SASCFC 59; R v Tran [2017] SASCFC 99; R v Thompson [2018] SASCFC 104; AK v Western Australia (2008) 232 CLR 438, discussed.
Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; DL v The Queen (2018) 92 ALJR 636; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; R v B, AM (2015) 124 SASR 176, considered.

R v G, B
[2020] SADC 9

Introduction

1. Pursuant to s 9 of the Juries Act, the defendant, BG, elected to be tried by judge alone.

2. The prosecution contends that the accused sexually abused his granddaughter on a number of occasions between 2015 and 2016, when she was between eight and nine years of age. The allegations are that the conduct began by him asking her about boyfriends and whether she knew how to kiss. He then allegedly proceeded to kiss her with an open mouth and using his tongue. Over time, as the accused became more emboldened, his offending allegedly escalated to touching the complainant’s bottom over her clothing, touching her vagina over and under her clothing and compelling the complainant to touch his penis. At the time of the trial, the complainant was 12 years of age.

3. The complainant has three siblings, a brother and twin younger sisters. Their parents separated in mid-2013, when the family was living in Alice Springs and both parents moved back to South Australia. In 2015, the complainant and one of her siblings lived with her father in Kadina. The other two siblings lived with their mother in Adelaide. The complainant’s father’s rental in Kadina ended on 15 December 2015 and he then moved to live with his parents in their house at Wallaroo. All four of the children stayed at that house for the next six weeks. After that six week period and from 29 March 2016, the children would stay with their father, their grandmother and the accused at the house in Wallaroo about every second weekend and for half of the school holidays.

4. It was while staying with their grandparents that the complainant alleges the sexual abuse occurred. The offending allegedly occurred in the house at Wallaroo as well as at a farm the accused owned in Kadina, about 20 minutes away.

   The charges

5. The accused is charged on the Information for arraignment on 9 September 2019 with the following offence:

   Statement of Offence

   Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   BG at Kadina and Wallaroo, between the 31^st day of May 2015 and the 6^th day of September 2016, maintained an unlawful sexual relationship with CG, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards CG, namely:

   (a)    kissing her on the mouth, on more than one occasion;

   (b)    touching her vagina, on more than one occasion;

   (c)    touching her bottom, on one occasion; and

   (d)    causing her to touch his penis, on one occasion.

   This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.

   Elements of the Offences

   Maintaining an unlawful sexual relationship with a child

6. The elements of the offence of maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA) are as follows:

   1That at the time of the offending, the accused was an adult.

   2That the complainant was a child during the relevant period.

   3There was a relationship (but not necessarily a sexual relationship) between the accused and the complainant during the course of which the accused engaged in the unlawful sexual acts.

   4That the accused committed two or more unlawful sexual acts towards the complainant.

7. In order to prove that the accused is guilty of maintaining an unlawful sexual relationship with a child, the prosecution must prove to my satisfaction each of those four elements beyond reasonable doubt. In this case, it is not in dispute that the accused was an adult and the complainant a child at the time of the alleged offending; the first and second elements of the offences are satisfied.

   Element 3: Maintaining a relationship

8. In the decision of the Court of Criminal Appeal in R v M, DV,[1] the majority of the Court held that it was not an element of the offence of maintaining an unlawful sexual relationship that there was a sexual relationship between the defendant and the complainant in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant. Rather, it is an element of the offence that there was a relationship (not necessarily sexual) between the defendant and the complainant during the course of which the defendant engaged in the unlawful sexual acts. In dissent, Blue J held that it is not an independent element of the offence that there is an overarching relationship between a defendant and a complainant in the course of which the defendant engaged in the unlawful sexual acts.[2]

   [1] [2019] SASCFC 59.

   [2] Ibid [58].

9. In this case, it is not in dispute that the parties had a grandfather and granddaughter relationship, wherein the complainant regularly visited the home of her grandparents and spent time with them.[3] As the case of R v M, DV is currently before the High Court, Ms Harper for the prosecution requests that I also provide a decision as to whether I am satisfied beyond reasonable doubt on all of the evidence that there was a sexual relationship between the parties as well, to obviate any possible need for a further appeal should the High Court vary the meaning of ‘relationship’ for this offence.

   [3]    Mr Jolly confirmed that only the fourth element was in dispute at T28.32-33.

   Element 4: Unlawful Sexual Relationship

10. An unlawful sexual relationship as identified in element 4 is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the charged period. The nature of the requisite relationship will be discussed in further detail below. An unlawful sexual act means any act that constitutes or would constitute a sexual offence, including unlawful sexual intercourse, indecent assault and gross indecency. I set out below the elements of indecent assault and gross indecency that are the allegations at issue here.

11. The prosecution must satisfy me beyond reasonable doubt that the defendant engaged in at least two unlawful sexual acts with the complainant over the period alleged, that is, between 31 May 2015 and 6 September 2016. It does not matter which two or more unlawful sexual acts make up the unlawful sexual relationship, but I must be satisfied that there have been at least two of them.

12. For the purposes of identifying two or more acts to constitute an unlawful sexual relationship, it is not necessary that I be satisfied beyond reasonable doubt of the particulars of any unlawful sexual act, which would have to be satisfied if the act were charged as a separate offence; I must only be satisfied as to the general nature or character of those acts.

13. Unlawful means any act that would constitute a sexual offence. Rubbing the outside and touching the inside of a vagina is clearly a sexual offence. Referencing R v M, DV,[4] the prosecution submitted that maintenance of a sexual relationship is not an element of the offence. Kourakis CJ found that the ‘maintenance’ element does not require that the relationship being maintained is a sexual one, but any relationship in the course of which an adult engages in two or more sexual acts. Blue J at [58] said:

    The use of the verb ‘maintains’ is readily explicable as the most natural verb to use in reference to a relationship, and as being apposite to denote the active role played by the adult in contrast to the passive role typically played by the child. The verb ‘having’ an unlawful sexual relationship could equally be used.

    [4] [2019] SASCFC 59.

14. Lovell J held that the prosecution needs to prove a pre-existing relationship (not a sexual one) and that there were two or more sexual acts within that relationship.

    Indecent Assault

15. Indecent Assault is an assault accompanied by or committed in circumstances of indecency and consists of two essential ingredients, each of which must be proved beyond reasonable doubt.

16. The first element is that there was an assault. An assault is the voluntary and intentional unlawful application of force to another person. The application of force need not be great; need not cause any injury; must be voluntary and intentional, so that a purely unintended, accidental touching would not be sufficient; and must be unlawful, that is, without lawful excuse or justification. Examples of lawful excuse or justification might be self-defence, or when conducting a reasonable medical examination.

17. The second element of an indecent assault is that the assault was accompanied by or occurred in circumstances of indecency. To be indecent the conduct must offend against ordinary contemporary standards of decency and propriety within the community, including anything which an ordinary decent person would find to be shocking, disgusting and revolting, and it has a sexual overtone.

18. The prosecution contends that the acts particularised in the Information would all amount to the offence of aggravated indecent assault.

    General Directions

19. The prosecution bears the whole onus of proof of the guilt of the accused beyond reasonable doubt and the accused is not required to shoulder any burden of proof at all. He is presumed to be innocent of the charge unless and until the evidence which I accept has satisfied me that each element of the offence has been proved beyond reasonable doubt. Conversely, if I am not satisfied that the evidence before the Court has proved each of the elements of the offence beyond reasonable doubt then I would reach a verdict of not guilty.

20. It is not a question of me preferring one party’s evidence over another, because the defendant does not shoulder any burden of proof. My task is to evaluate all of the evidence and then decide whether on the whole of the evidence, including any evidence led by the defence, and arguments, the prosecution has proved the offence charged beyond reasonable doubt. In making my decision of guilt beyond reasonable doubt, I am required to be satisfied that a version of events put forward by the defendant is not reasonably possibly true. If I am not so satisfied, I will not be satisfied of proof beyond reasonable doubt in respect of such evidence.

21. Whenever the defendant puts forward something to me, he does not have to prove it; rather it is the prosecution that must prove the elements of the offence charged beyond reasonable doubt. If after carefully scrutinising the whole of the evidence, I am left with a reasonable doubt about the prosecution case on the charge, then I must give the defendant the benefit of that doubt and find him not guilty. As I have said, he does not shoulder any burden of proof and I would arrive at the same conclusion of not guilty if I am satisfied that any version put forward on his behalf is reasonably possibly true. Even if I did not reach that conclusion, I would still not convict the accused unless I was satisfied that the elements of the offence are proved beyond reasonable doubt.

22. When assessing or evaluating the evidence of any witness, it is my duty to take an objective and dispassionate approach to that evidence and to base my verdict solely on the evidence presented at the trial. I have confined my deliberations to the evidence only.

23. I have evaluated the evidence that has been placed before me in the Court. I have considered how much weight I can place upon the evidence of any particular witness and I have assessed the truthfulness and reliability of the evidence of the witnesses called in the trial. I have had regard to my own impressions of the witnesses gathered by watching and hearing the witnesses in the witness box. I have given consideration to the intrinsic likelihood or unlikelihood of the stories that the witnesses tell and any bias that a witness might have. I have considered the manner in which each witness gave evidence, how the relevant story stood up in cross-examination and how the evidence of that witness fits in with the other evidence in the case that I find to be convincing.

24. I have given consideration to the fact that witnesses do vary in their personal histories and backgrounds, degrees of intelligence, age, education, personality and character. I have made allowances for personal qualities and characteristics such that, for example, I have taken into account that some witnesses are more nervous than others, some are more articulate, some are better educated and some are more or less comfortable in the circumstances of a court setting.

25. In assessing witnesses, I have first considered whether a particular witness is truthful, who is honestly trying to tell the truth as he or she understands it. Having made that assessment, I then assessed the witness for accuracy about what he or she recalled and I have taken into account that a truthful witness might be inaccurate because of a lack of sufficient memory or recall when giving evidence.

26. I have taken into account that I do not need to accept everything or reject everything that a particular witness says. A witness might be truthful and reliable about some matters but not about others. A witness might be genuinely trying to tell me the truth but be mistaken for a number of reasons. I have also borne in mind that propositions put by counsel and questions are not evidence. It is only the answers given by a witness that is evidence.

27. In all of my reasoning, I have brought an open and unprejudiced mind to this case; I have made my decision without sympathy, without prejudice or fear and I have not been influenced by public opinion in relation to this matter.

28. In reaching my decision in this matter I am required to observe common law rules which oblige me to give reasons that are sufficient to identify the relevant principles of law and my main factual findings.[5] In R v Tran,[6] Vanstone J, who wrote the decision of the Court, said as follows:

    The extent of the obligation has been earlier discussed in this Court in R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at 78 ff. The judge must state generally and briefly the grounds which have led to the conclusions reached concerning disputed factual questions and must identify the findings on the main contested issues. Reasons are not required to be lengthy or elaborate. What is required will vary from case to case and will depend upon the circumstances of the case and the issues raised. It is clear that reasons are to be read as a whole.

    [5]    Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 at [8].

    [6] [2017] SASCFC 99 at [67].

29. Similar sentiments were expressed recently by the Court of Criminal Appeal in R v Thompson.[7] Peek J who wrote the decision of the majority in relation to all counts[8] said at [107]:

    Counsel for the appellant emphasised the recent decision of the High Court in DL v The Queen[9] and I have had close regard to it. The majority (Kiefel CJ, Keane and Edelman JJ) there stated:

    [33] The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’[10]. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. [11]  In particular: [12]

    Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.

    [7] [2018] SASCFC 104.

    [8]    Hinton J would have allowed the appeal in relation to Count 2 and ordered a retrial.

    [9] (2018) 92 ALJR 636.

    [10]  Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.

    [11] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.

    [12] AK v Western Australia (2008) 232 CLR 438.

30. In relation to the reference to AK v Western Australia,[13] I do not understand that the judgment of the High Court sets down some inalterable order in which matters must be considered, but requires all the matters there set out to be considered and resolved. That is the approach that I intend to take here. I now turn to the evidence at trial.

    [13] Ibid.

    Recorded evidence of the complainant

31. This is a re-trial of this allegation against the accused as a result of a mistrial and the need for a new trial. At the outset of this matter, both parties supported an application under s 13D of the Evidence Act 1929 (SA) to admit the recorded evidence of the complainant taken during the previous trial. In support of this application, an affidavit of the complainant’s mother, TG, was read into evidence and viva voce evidence was given by her attesting to the stress experienced by the complainant whilst giving evidence in the previous trial. Based on the evidence provided, and after consideration of the decision R v B, AM,[14] I granted this application.

    [14] (2015) 124 SASR 176.

32. At trial, I delivered ex tempore reasons. They are recorded at pp 14-17 of the trial transcript. I will not repeat them. I reviewed the operation of s 13D of the Evidence Act and the decision of the Court of Criminal Appeal in R v B, AM[15] and in particular the judgments of Sulan and Peek JJ. I needed to be satisfied that good reason exists in the case of a vulnerable witness to admit that witness’ evidence from a previous trial in a subsequent trial. Such evidence may be given by a psychologist, psychiatrist, medical practitioner or some other qualified person. The evidence may come from a family member about the adverse effects that being examined and cross-examined again may have on a child. It is necessary for the prosecution to support the application by sworn evidence and to provide sufficient information upon which the Court may rely in exercising its discretion to admit the official record as evidence.

    [15] (2015) 124 SASR 176.

1. In this matter, the prosecution sought to read the affidavit of TG, the mother of the complainant, sworn 3 September 2019. I indicated that I was not satisfied that the content of the affidavit satisfied the requirements of the section based on the judgment in R v B, AM. I allowed viva voce evidence to be led from the deponent, TG. I was satisfied from the evidence of TG that the complainant would suffer significant trauma as a result of the requirement to give evidence again. I was satisfied that the complainant has become depressed, is suffering a dislocation both within and outside of her family, is suffering to an extent that there has been a breakdown in her relationship with her mother, her siblings, her friends and within her whole social community. I was satisfied from the evidence of TG that the condition of the complainant was significant, that it had already had a significant effect upon the interpersonal relationships of the complainant and that in light of previous experiences, it will have an ongoing and to some extent a lasting effect upon her.

2. This evidence satisfied me that the prospect of the complainant being examined and cross-examined would have an adverse effect upon her which was unacceptable in all of the circumstances and I concluded that she should not be required to give the whole of her evidence again. I therefore exercise my discretion under s 13D of the Evidence Act to admit the official record of the evidence taken before Judge Stretton in the earlier trial as being the evidence of the complainant in this trial. I also allowed some further cross-examination of the complainant on discrete topics.

3. Arrangements were then made for me to view that record. With the agreement of both counsel, I viewed the recording of the giving of this evidence in my Chambers. The trial then reconvened.

   Evidence at trial

4. I set out below a list of initials of the people who are identified and discussed in these reasons.

BG	The Accused
CG	The complainant
TG	Complainant’s mother
DG	Complainant’s father
F	Complainant’s brother
D	Complainant’s sister (twin)
J	Complainant’s sister (other twin)
KG	Complainant’s cousin
FG	Accused’s wife; Complainant’s paternal grandmother
JG	Accused’s son; brother of DG; Complainant’s uncle

The Prosecution evidence[16]

[16]   Please note that transcript references in this evidence section of the judgment refer to the transcript from the original trial of this matter, unless otherwise indicated.

Evidence of CG

1. When CG, the complainant in this matter, gave evidence at the first trial, she was 11 years of age and in year 6 at school. After asking CG some questions, the trial Judge satisfied himself that she could give evidence under oath.

2. CG is the granddaughter of the accused, BG. Her father, DG, is the son of BG and his wife FG. As earlier recounted, the accused and his wife moved from Alice Springs commencing in about 1998/1999 and the move was completed by about 2002. CG and her siblings and parents remained in Alice Springs. Whilst in Alice Springs, CG’s parents separated and both parents later moved back to South Australia. CG moved with her mother to Kadina, and then to Adelaide, when CG was about to start year 3. CG and her siblings would visit her dad every second weekend, at which time she would also see her grandparents. Her grandparents also had a farm at Kadina where they would visit and help out. Occasionally, CG would go out to the farm alone with her grandfather.[17]

   [17]   T79.6-23.

3. I am satisfied on the evidence that either at that time or thereafter and by 2015/2016, CG’s father, DG, was a drug user and his lifestyle caused considerable conflict with his parents. At times during 2015 and 2016, DG relied upon his parents to look after his children. After 29 March 2016, he had his children for access on alternate weekends and half of the school holidays. In those periods, DG relied entirely upon his parents, the accused and his wife, to look after his children. He was incapable of doing so on a full-time basis. In some periods, the children did live with him but that was not long-term. From about February 2015 to December 2015, DG lived in a rented home in George Street Kadina. He quit those premises on 15 December 2015 and moved in with his parents. His four children came to stay with him from 15 December 2015 until 29 January 2016. Between that later date and 29 March 2016, the children remained in Adelaide. After that date, they visited on alternate weekends and for half of the school holidays. At those times in 2016, they stayed with the accused and his wife at Wallaroo.

4. CG gave evidence that her grandfather touched her in a way that made her feel uncomfortable more than once when they went to the farm alone together. The first time was when she was eight or nine years old (in 2015 or 2016), while they were sitting next to each other at the back of an old caravan near the grapevines on the farm. He asked her questions about boyfriends and if she knew how to kiss them. When she responded ‘No’, he said either ‘Why don’t I show you’ or ‘Why don’t you show me’ and told her to kiss him. He told her to put her ‘tongue out in his mouth and move it around.’ She did as he asked, and he also moved his tongue around in her mouth. She then stopped because ‘I felt weird and I felt wrong.’[18] She then went and turned the sprinkler/irrigation system off and they drove back to the house at Wallaroo. She did not tell anyone because after he kissed her, he told her not to tell anybody or ‘I’ll kick your father out.’ This made her upset.[19]

   [18]   T79.24-81-28.

   [19]   T84.28-85.5.

5. I have considerable doubt about the version of events given by the complainant, CG, in relation to this event. She informed the Court that at the time this event occurred, she was at the farm by herself with the accused. They were checking whether the drippers or sprinklers were working. She was not sure how old she was but she thought that she was 8 or 9. She turned 8 in 2015 and 9 on 18 June 2016. In her evidence, CG emphasised on a number of occasions that she and her grandfather were sitting where they were because they were waiting for the sprinklers or drippers that were irrigating the grapevines on the property to turn off. She was able to identify the caravan on Exhibit D4 and on page 10 of Exhibit P2. She also identified on Exhibit P1 where she would go to turn off the sprinklers. The same area is shown on Exhibit D8.

6. I am satisfied on the evidence, particularly on the evidence of FG,[20] that in 2015 and 2016 no irrigation was being done on the property. I am satisfied on the evidence that there could be no connection between the presence of the accused and CG on the caravan on that day and anything to do with irrigation of grapevines. I am satisfied on the evidence that any irrigation of the grapevines was done manually using a small tractor and a tank.[21]

   [20]   T199.9-200.2.

   [21]   T200.2.

7. The evidence of the accused was that after being pestered by CG for some time, he gave her a piggyback to that point as is shown on the second photograph on page 10 of Exhibit P2.  It was there that he had a conversation with CG where she complained about her boyfriends at school and she informed him about kissing her boyfriends and the way that she did kiss them. She also complained about the fact that another girl at school had stolen her boyfriend away from her. The accused informed her that she should not be worrying about boyfriends at her age. It was the complainant CG who raised the topic, not the accused, in the context of complaints that she was making to him.

8. In her evidence, CG placed particular emphasis upon the fact that she was told not to say anything because the accused threatened to kick her father out of the house. I accept the evidence of the accused’s wife FG that this threat was made by the accused constantly. However, there are a number of other considerations. First, there was consistent and damaging conflict between the accused, his wife and DG about DG’s behaviour. I accept as proved on the evidence that in this period of time, 2015 and 2016, DG was suffering a drug addiction. Second, he could not maintain rental premises after 15 December 2015, he did not have a job and he was plainly suffering all of the deleterious effects of his lifestyle. I accept as proved that he was constantly encouraged by his parents to seek out alternative premises and to leave their home at Wallaroo after he went there to live on 15 December 2015. I find that he was only living with his parents because he could not afford to live anywhere else at the time. Third, notwithstanding that he was a father of four children, at the time he contributed nothing to their welfare or to their domestic circumstances. He relied entirely on his parents to sustain both himself and his children on access visits.

9. Fourth, in the Christmas holiday period 2015-2016, the children of DG, including the complainant CG, were all staying with the accused and his wife for the full period of the Christmas holidays. This was over and above the other times that the twins may have earlier stayed with them when they were on alternate weekend access visits or when DG brought the complainant and her brother to their home in the 2015 year. DG made no contribution to the care or welfare of his children whilst they lived with the accused and his wife. DG relied entirely upon his parents to feed, clothe and house his children. I consider that it is beyond peradventure that this arrangement alone would have caused significant stress between the accused, his wife and DG. I accept that the threat to throw DG out of the house was made regularly and with some force. I also accept that this threat would have been heard by the children regularly because it was often made in times of high stress and conflict between DG and his parents but it would only have been made after 15 December 2015 and not earlier.

10. CG described another incident when her grandfather touched her on a bobcat at the house at Wallaroo. She thinks this was about two weekends after the incident at the caravan.[22] Her grandmother had taken her siblings to the supermarket and her grandfather told her to sit with him in the bobcat as he was concerned that she might otherwise be struck during its operation. She was sitting on his lap when he rubbed and squeezed her right bum cheek over her clothing. She felt uncomfortable, and tried to shuffle to the left. The bobcat then went over a rock and she fell forwards and hit her vagina on a part of the machinery on the bobcat, which hurt.[23] She then got off the bobcat, went inside and had a drink. She then went into the bathroom and saw her vagina was bleeding, so she had a shower.[24]

    [22]   T85.10-28.

    [23]   T85.10-87.37.

    [24]   T88.4-33.

11. There was a second incident when her grandfather touched her on the bottom on the bobcat when they were alone together at the farm.[25] She was sitting on his lap whilst he was driving the bobcat and he put his right hand on her thigh and rubbed up and down over her clothing, and then moved to her vagina and rubbed up and down. She told him to stop because her ‘rude part hurts’ and he did.[26]

    [25]   T89.10-.33.

    [26]   T90.11-32.

12. I have significant doubts about the version of events given by CG concerning the bobcat. She said that while at the house at Wallaroo, the bobcat was being used for transportation of rocks from behind the house down to near the water’s edge for the creation of a rock pool. The evidence satisfies me that at no time was the bobcat used for this purpose. I am unable to identify on any of the evidence where it might be said that the area ‘behind the house’ was and I also accept the evidence of the accused that substantial amounts of rock existed at the foreshore at the time of 2015/2016, had existed for a very long time and still exist at that place. There was no reason to use a bobcat to pick up rocks from somewhere around the house and to form a rock pool.

13. The second significant doubt that I have is that when a proper observation is made of Exhibit D2 and the evidence, I do not accept that it is possible for a child such as a CG at her age to injure herself in the way that she described. There are a number of reasons. The bobcat can seat only one person and is operated in two ways. There are two vertical control columns which sit on either side of the seat of the operator. These determine the direction of the bobcat. If the bobcat is to turn left, then the left handle is pulled back and the right handle is pushed forward. The reverse applies if the bobcat is to turn right. On the floor of the bobcat and immediately adjacent to the connection of the steering columns to the floor are two foot pedals. There are two functions built into these foot pedals for the operation of, for example, a scoop on the bobcat and the emptying of that scoop. Therefore, a bobcat operator using the bobcat in the usual way will have feet on the pedals and hands on the steering columns. The knees of the operator will be positioned closer to the front of the bobcat because of the need for the operator to work the foot pedals. This of course depends on the height and overall size of the bobcat operator. Exhibit D2 contains photographs of the bobcat and at page 7 are photographs of the accused sitting in the bobcat. The evidence of the complainant CG was that she was sitting on the lap of the accused when he was operating the bobcat and that, while the bobcat was in motion, she allegedly fell forward and injured herself on one of the steering columns. The photographs on page 7 of Exhibit D2, and in particular the second or lower photograph, shows that it is not possible for a child sitting sideways on the lap of the accused to fall forward and injure herself in the way that she alleges. I accept as a reasonable possibility that if the child CG fell forward, her body would have come into contact with the metal part of the bobcat sitting in front of the knees of the operator as disclosed on the lower photograph on page 7 of Exhibit D2.

14. I also accept the evidence of the accused that in order to operate the bobcat, it is necessary to operate both the foot pedals and the vertical control columns. The accused said that it was impossible to do any work with a child on your knee because, at his age, he would not be able to operate the foot pedals properly. There was no challenge to his evidence that he has had one knee replacement, which has been problematic and he is in need of a second knee replacement which has not yet been performed. I accept that he could not operate the bobcat with a child sitting on his lap. The accused said that on occasions he gave all of the children a very short ride on the bobcat. This would have been of some five to ten metres and nothing would have occurred in that process. The evidence of the complainant CG was that she slipped and fell on the bobcat whilst she was sitting on the lap of the accused and he was operating the bobcat both through the vertical columns and the feet pedals whilst shifting a load of stones from the house to the beach to form a rock pool. I have already found that she could not have injured herself in the way described. I also accept the version of events given by the accused that it would be impossible to perform both functions in his physical condition. He could not have operated the bobcat in a safe manner. I also accept that as a grandfather, he would have given all of his grandchildren a short ride on the bobcat before getting on with his work. He said that he was conscious of safety issues. The same evidence was given by CG. His concern about safety was assuaged by him ensuring that he knew at all times where the children were and that they were always outside of the area of the workplace.

15. In light of the evidence of the accused that I have accepted, I also have formed the view that there is a significant doubt about the version of events given by CG concerning the use of the bobcat. That in turn has led me to form considerable doubt about the version of events she gave concerning the activity of the accused upon the bobcat both at the house and at the farm. I do not accept that when the accused was operating the bobcat on the farm the complainant could have sat on his lap and for the events that she complained of to have occurred.

16. CG recalled that at the time on the bobcat at the farm, the accused asked her to touch him before touching her vagina. While she was sitting on his lap, he said ‘touch my rude part’ and she heard him unzip his pants. He told her ‘If you don’t, I’ll kick your dad out.’ This was before he rubbed her leg and her vagina.[27]

    [27]   T95.4-96.16.

17. The complainant did not inform the police or prosecuting counsel until immediately before trial of any allegation that whilst sitting on the bobcat at the farm, the accused had exposed himself to her and asked her to touch his ‘rude part’. Therefore, it was not until some three years after the events were alleged to have occurred that the complainant made the allegation about this alleged offending. She explained that the memory came to her as she started to think about things. I have significant concerns that it was only after a period of some three years that the complainant alleges that she first recalled that this offending is alleged to have taken place. I was dissatisfied with her explanation about why she suddenly had this memory which had not occurred to her previously. As a matter of common sense, I would expect that an event of such a nature would have been clear in her memory.

18. I have a further doubt about the matter. I refer to Exhibit D2 at page 5. This is a photograph, amongst others, of the accused sitting in the bobcat. There is a similar photograph on the bottom of page 4 of the Exhibit. He informed the Court and I accept that he was in a similar physical condition in 2015/2016. The photograph discloses that he is quite portly and has a protruding stomach. If a child was sitting on his lap facing across his body or perpendicular to his thigh (femur), then it would have been extremely difficult, if not impossible, for the accused to expose himself on the bobcat to the complainant as she alleges. I do not accept that the accused could have operated the bobcat machine whilst the complainant CG was sitting on his lap and the machine was working around the property. This is the tenor of the evidence of the complainant. My understanding of her evidence was that she had been sitting on the lap of the accused whist he was driving the bobcat around the farm area. She gave an explanation that this was typical conduct. She informed me that she and the accused drove the bobcat around the whole of the perimeter of the farm block of some 80 acres. Exhibit P1 contains overhead photographs of the farm bock. There is no track around the perimeter of the block and it is therefore unfinished, rough ground that is typical of any paddock. The evidence given by the accused, which I accept, is that the trip to travel around the whole of the perimeter of the block would have taken the better part of a day because of the slow speed of the bobcat and because the bobcat is inherently unstable on uneven ground. It would have to be driven slowly and carefully. There was no other evidence of this alleged trip around the perimeter of the block. Applying basic common sense, I am unable to accept the truthfulness or accuracy of that evidence. I think it is wrong. The accused made clear that he allowed the children onto the bobcat only for very short rides as a treat for them and to obviate their consistent requests to him to travel with him on the bobcat. To have allowed children on the bobcat whilst he was working on the farm or at the house was inherently dangerous. The evidence does not satisfy me that the accused engaged in such behaviours.

19. In relation to the evidence of the complainant CG about the circumnavigation of the block on the bobcat, I gained a clear impression that she said those things to bolster the evidence that she was giving. She did not say, for example, that the trip was taken upon a road. There is no evidence that the bobcat was registered for road use. In any event, there is no road parallel with David Street between Tickera Road and Dunn Road.[28] This evidence of the complainant caused me considerable pause because I do not think it is accurate. I gained the clear impression that she gave this evidence in an attempt to bolster her story.

    [28]   Exhibit P1, p 1.

1. There was another incident which allegedly occurred inside the big shed between the first occasion and the last occasion. They allegedly agreed to play chasey in the area round the concrete tank. CG said to him ‘If you catch me, we can do anything’ or ‘something’. She jumped off the tank and then tripped over straight away and he caught her. Then he said, ‘we can do something’ or ‘anything now … Let’s go to the shed, the big shed.’ When in the shed he told her to take off her clothes and she removed her onesie but was still wearing her knickers. He touched her ‘rude part’ by cupping it and squeezing it over her knickers. She told him to stop and pushed his hand away. She then pulled up her onesie and ran to the front gate of the farm.[29] The accused picked her up in the car about an hour later and told her ‘Don’t tell anybody or I will kick your dad out of the house.’[30]

   [29]   T97.25-101.30.

   [30]   T102.2-22.

2. In order to properly understand this assertion, it is necessary to have full regard to Exhibit P2 at pages 11 and 12 and Exhibit D5. In Exhibit P2, there are two photographs on page 11 and the photograph on page 12 that show the surrounds of the tank at which these events are alleged to have occurred. A number of things are obvious. First, the tank is constructed of concrete and it is between one and two metres high. It may be higher. In the lower photograph on page 7 there is a large vehicle tyre resting against the side of the tank. This gives a comparative idea of the size of the tank and is likely the means used by children to get up and down from the top of the tank. The second is that the tank is set down into the area where the grapevines are grown and therefore on the side away from the grapevines, the ground is higher. However, on that side, there is heavy undergrowth, sheds and other material.

3. The complainant CG did not say which side of the tank she jumped off. I would not accept that a child of eight or nine years of age could jump off the tank on the high side down to the ground and would only alight using the tyre. This is the only clear area of ground. Also, it is apparent that the level of the ground around the cleared space is uneven. The ground that falls away from the grapevine area down to the tank and then up to a raised level on the opposite side of the tank. I would not accept that a child would jump from the tank into the underbrush on the high side of the tank (which is the side with the lowest drop). I would estimate that drop to be about one metre roughly. There are a number of reasons. The first is that there is a dividing fence or gate running up to the tank. This is placed to protect people from falling into the trench surrounding the tank. That trench runs contiguous with the area of the vines and not across the vines. The second is that there is very heavy undergrowth at the point where a person could jump off the tank to the ground. The third is that there is a large amount of farming detritus scattered about this property. The accused allowed the accumulation of a considerable amount of rubbish around his farming property including steel and aluminium pieces and timber. A better view of the area in which a person could jump from the high side is the photograph on page 12 of the Exhibit P2. That area is again problematic. It shows the high side of the ground running down to the low side and to the grapevines. There is no place where the ground is even on which to jump. The greater likelihood is that a person would jump from the high side. However, I reiterate that I would expect that child would alight from the tank by using the tyre. The complainant and the accused both said in their evidence that the complainant jumped from the top of the tank. There was no cross-examination about where this occurred around the area of the tank.

4. The next consideration is that the complainant CG said that when she jumped from the tank she was wearing thongs. She initially said in her police statements that she was caught by the accused when she ran away because she had a sore leg. In her evidence before the Court, she said that she stepped into a form of trench and tripped because she was wearing thongs and so the accused was able to catch her. There is an obvious inconsistency in this evidence. I have earlier recounted the physical condition of the accused. His evidence is that he suffers a series of maladies associated with arthritis, including a problematic knee replacement and the need for a second knee replacement. His evidence was that he was incapable of chasing anybody. He could not play chasey with his eight- or nine-year-old granddaughter. He would not do so. Moreover, the area in which the alleged ‘chasey’ game is said to have taken place is on very uneven ground which is beset with heavy undergrowth, parts of machinery and other rubbish which make the whole area dangerous. I would not accept that anyone in the position of the accused is physically capable of playing a game of chasey with any eight- or nine-year-old child nor, as matter of common sense, would that occur in that area.

5. It is also to be recalled that this event is alleged to be associated with the circumstances where the phone of the accused was broken by the complainant CG. In her evidence, CG denied being told off by the accused about interfering with his phone and in a fit of anger, throwing the phone down on a table in the shed. In his evidence, the accused said that the rule was that children were not to touch his phone. The complainant did so and changed his settings, thereby upsetting the accused who scolded her. In a fit of anger, the complainant threw the phone on a table in the shed and thereby cracked the face of the phone.

6. In her evidence, the wife of the accused, FG, informed the Court that the accused only used the phone function and he did not have any technical capacity to change any of the functions of the phone. If that was necessary, she would have to do that for him. FG confirmed that on one occasion when the accused returned from working at the farm with the complainant, he showed her the phone which had a cracked face and informed her that this had been done by the complainant in a fit of anger. The complainant denies that this ever occurred.

7. A further consideration is that the alleged event is said to have taken place in the shed and that the accused removed the complainant’s ‘onesie’. There was considerable dispute about the clothing worn by the complainant at the farm and at the Wallaroo house. She said that she had two forms of ‘onesie’, namely a black and white striped onesie and a black onesie with white emblems. The complainant maintained that when she went to the farm with the accused, she was allowed to wear a onesie. The accused denied that she was ever allowed to come to the form wearing only a onesie and thongs. He insisted that she wear some form of trouser or legging/tights and shoes and, in the cold weather, proper jumpers or coats. He was concerned about the children injuring themselves on the rubbish around the farm. As I have observed, the accused left accumulated metal and timber rubbish around his property and it appeared to be in a dangerous state. It is clear from the evidence that the accused and his wife have not obtained a financial return from this property as they expected when they bought it on their return to South Australia from Alice Springs. There are also other safety considerations for the children such as snakes and other vermin. The accused said that he became angry with the complainant about her using the phone and changing the feature of the phone which showed his wife picture when the phone was turned on. She changed that to a picture of herself. That made him angry and he told her off for misusing the phone. It was then that she ran off to the tank and climbed to the top of the tank.

8. As a matter of ordinary common sense, I accept that the accused would not have allowed the children to come onto the farm property except if they were properly dressed in at least shoes and leg protection. Circumstances will differ depending upon the task being undertaken. There may be some occasions when less protective clothing could be worn, however the unchallenged evidence of the accused and his wife was that they did at least agist some stock on a portion of the property and this was controlled by a neighbour who share cropped some of the balance of the broad acre portion of the land. The main focus of the accused and his wife was the care and maintenance of the grapevines and the olive groves. There was no suggestion, for example, that the children were involved in putting out bales of hay or other forms of feed or checking water troughs for stock. One may expect that it would not be necessary in those circumstances to wear such protective clothing, depending upon the number of children involved.

9. These circumstances were different. The focus was upon the care and maintenance of the grapevines and the olives. This involved activity in and about the shed and the use of farm implements. Some of these may be seen on Exhibit D5. In the foreground of the top photograph of Exhibit D5 are a set of ‘harrows’. It is apparent that these have not been used in a very long time. Positioned across the harrows are pieces of iron and timber. There is a piece of metal roof flashing leaning against the tank which is inherently dangerous if there is a strong wind. The evidence was that there are strong winds in the area. There is a significant amount of other detritus about the place and it is quite apparent that there are a number of dangerous circumstances for children on this property.

10. I do not accept that in these circumstances, the complainant would have been permitted to come onto the property wearing only her onesie and thongs. I do not accept that there was an attempt by the accused, as a 74-year-old man, to try to catch his eight or nine-year-old granddaughter because I accept that he was physically incapable of doing so and so I accept as a reasonable possibility, as put by the accused, that there was no circumstance as related by the complainant of him being in the shed with her after such a game. I accept that the accused could not play such a game with the complainant, he had no reason to play such a game, he could not catch the complainant as she alleged and there was no circumstance for her to be in the shed with him wearing a onesie.

11. Finally, the complainant again said that the accused warned her not to tell anybody or he would kick her father out of the house. As I have recounted earlier, this was a constant threat made by the accused to his son, the father of the complainant as well as to the complainant and her siblings when they were misbehaving. The accused and his wife carried a very significant burden of care for these children because it appears that the complainant’s father, DG, had abdicated his responsibility as a parent due to his own addictions. For reasons that I develop later, I am unable to place any weight upon that evidence.

12. There was allegedly another occasion near one of the containers on the farm when CG’s brother was also there. She is not sure how old she was at the time. CG’s brother was told by the accused to go cut some weeds near the grapevines, and the accused asked CG to come into the container with him to help him there. Once inside the container, he told her to sit down on a bed made up from two couch cushions covered by a sheet and with a pillow and sat down next to her. He said something like, ‘One kiss quickly before your brother gets here.’ Because she was thinking about the consequences for her father if she did not do it, she kissed him like adults kiss, how he told her to do it, putting her tongue in his mouth. She did it, but only opened her mouth. The accused put his tongue in her mouth and moved it around. She was thinking that she did not like this and that she should tell someone. It only lasted for a few seconds and then they heard her brother walking towards the container. Her grandfather told her to quickly stand up and she walked out of the container. Her grandfather told her ‘thanks for helping’.[31]

    [31]   T110.3-112.22.

13. I entertain considerable doubt about the evidence given by the complainant in relation to this alleged occasion. There was limited evidence about the contents of the containers. They are to be seen on page 1 of Exhibit D9. There are three containers called 20 foot containers. They had been on site since about 2002 or perhaps a year or two earlier. Starting from the right, between the first two containers is a boat. That is significant only because it was where the accused’s son, DG, the father of the complainant, slept for between 2016 and 2018 as he was homeless. He had been forced out of the accused’s home because of his conflict with his own brother JG, his wife and his family.

14. On page 2 of Exhibit P9 is a photograph of a Torino motor vehicle in a container that had been opened. Going back to the first photograph on page 1 of Exhibit D9, that container is the container on the far right next to the shed. It is a refrigerated container and is airtight. The Torino car has been stored in this airtight container to ensure that it does not deteriorate. The accused is the owner of the car.

15. The content of the middle container is disclosed on the photographs on page 3 of Exhibit D9. There are further photographs on page 4 of Exhibit D9. Reference is made to the top photograph on page 3 of the exhibit. There are a number of features. The first is that visible in both the top and bottom photographs in page 3 is the chassis of a racing motor vehicle. That chassis is in fact attached to the ceiling or roof of the container. The correct perspective is to be obtained from the top photograph on page 3. The bottom photograph in page 3 is upside down. The second feature is that in the bottom left-hand corner of the top photograph on page 3 is a ’44-gallon’ drum that contains methanol. The methanol was the fuel used in racing cars. On top of the 44-gallon drum, there is a box typically used by the accused and his wife to store wine which they produce from the grapes on their property. The accused said and I accept that it is likely that this box does not contain wine because the blue material on the top of the box which emanate from the box appears to be a rag-type material.

16. The top photograph on page 4 of Exhibit D9 is also upside-down. The best view is the bottom photograph on that page.

17. In her evidence, the complainant alleged that at the time of the event in the container, there had been two lounge cushions present. These had been covered with a sheet with a pillow to make a bed. Both the accused and the accused’s wife denied that there was ever any such arrangement in this container. Both said that there was no room to create such a bed arrangement. The photographs on page 3 and 4 of Exhibit D9 are taken from the entrance to the container. There is no evidence of the arrangement referred to by the complainant.

18. On page 5 of Exhibit D9 are photographs of the contents of the container on the far left. This container holds the materials brought back to the farm by FG, the wife of the accused. FG had operated a curtains business in Alice Springs and she had brought back with her a large amount of cottons, materials, sewing machines and other machines associated with the making of curtains. There is some space within the container. The evidence is that in 2016, and after about 5 May 2016, that space was occupied by a piano brought from the house at Wallaroo following the flooding of the cantina area of the house at that time. The only other item of interest is a mattress in a plastic cover. Otherwise, the paraphernalia there set out is all associated with the manufacture of curtains that was formerly the business of FG. The evidence of the complainant was that nothing occurred in that container. By logical derivation, the only container in which these alleged events could have occurred is in the middle container. However, I am satisfied that there was no space within the middle container to create the bed area as described by the complainant. In her evidence, the complainant did not refer to the chassis of a racing car being present at the time these events occurred. She was able to refer to a particular space within a container. There is no space within the container housing the Torino motor vehicle. There is no space in the middle container housing the chassis of the racing car and there is space in the third container housing the equipment and materials associated with the business of FG but the evidence is that the event alleged did not occur in that container.

19. There is a further matter of significance. In her evidence, the complainant said that the accused was able to open the containers without any difficulty. In his evidence, the accused said that he found it impossible to open the containers. He said the container locking mechanisms were badly corroded and required significant force to open them. It was necessary to use either a forklift or the bobcat to attach a rope or chain to the opening levers and then to lift those levers in order to open the doors of the containers. In her evidence, FG confirmed that it was impossible for the accused to open the containers himself. She has seen him on a number of occasions use the bobcat and a chain in order to open the containers and she was aware of his plan to replace the doors of the containers.

20. The other evidence is that the containers had been in situ for some 14 or 15 years prior to the alleged events; they may have been in place for up to 17 years. They have been exposed to the weather for that time and have obviously rusted; the working mechanisms of the doors are quite obviously corroded as disclosed in the top photograph on page 1 of Exhibit D9. I accept the evidence of the accused and FG that in order to open the doors of these containers, it was necessary for the accused to use a bobcat or a forklift and a chain or rope to obtain sufficient uplift. FG said that a younger man with significant upper body strength would be able to open them, but by 2015/2016, the accused was well past that stage. She was aware that he always used a bobcat or a forklift to open these containers. I accept the evidence of FG. In those circumstances, I am unable to accept the evidence of the complainant that the accused was able to open the containers in the way that she described. I find that it would have been necessary to have obtained some form of assistance, mechanical or otherwise, to open the containers and so I accept as a reasonable possibility that the accused did not open the containers and therefore did not offend inside one of the containers as alleged by the complainant.

21. The last alleged event occurred when the complainant and the accused were in the cantina at the Wallaroo house. There was an early ninth birthday party for CG and the accused is alleged to have asked her to get something out of the cellar. When they were there, he said to her ‘One kiss’ and when he moved towards her he moved his hand towards her ‘rude part’. She told him to stop, and he said, ‘I’ll kick your dad out straightaway right now.’ She turned around and looked the other way because she did not want to see him. She did not agree to it but she did not reply. She did not know what to do. He allegedly pulled her shorts down with both hands and the right side of her knickers down. He used the same motion with his hand, cupping and squeezing, her vagina under her knickers for a few seconds and then she pulled away. Her grandmother called her and she ran out.[32]

    [32]   T102.36-106.35.

22. In her evidence, the complainant was taken to the content of Exhibit P3 generally and especially page 1 of Exhibit D3. The first photograph on page 1 of Exhibit D3 is the view of the property owned by the accused and his wife at Wallaroo. It is a roadside view. It is slightly misleading because it gives an impression of a one level home. That is not the case. The second photograph on Exhibit D3 shows the rear of the same house taken from the sea side on 16 December 2015 at 9.33 am. The photograph in Exhibit D3 shows an upper level and a lower level of the house. When a view is then taken of the second photograph on Exhibit P3, it may be seen that at the lower level is an entrance to what appears to be a garage-style arrangement. That arrangement is then disclosed in the photographs on pages 2, 3 and 4 of Exhibit P3. The photograph on the bottom of page 1 shows the entrance to what is described as the ‘cantina’. The first photograph on page 2 shows winemaking equipment in the left-hand side and on the right-hand side at the back, a storage area holding wine bottles in boxes. In the foreground on the right-hand side is a covered motor vehicle. The second photograph on page 2 of the Exhibit shows in more detail the bluestone wall at the back of the area, the wine stored in boxes, the covered motor vehicle and some other paraphernalia against the wall including, for example, heaters and other electrical equipment. The first photograph on page 3 of the Exhibit shows a further view of the wall, the covered vehicle, the electrical equipment and a further red coloured vehicle to the right parked in the space. The second photograph on page 3 of the Exhibit shows what appears to be the same motor vehicle, a utility, chairs, tables, a sink and other materials stored in the cantina in an open area. The only photograph on page 4 of the Exhibit shows the same table and chairs, a further table, shelving, the doorway to the cantina and a view out the cantina door which is the reverse of the view seen in the second photograph on page 1 of Exhibit P3. The floor of the cantina is painted in what may be described as bluish grey in colour.

1. In her evidence, the complainant said that when the events are alleged to have occurred, all of the equipment and the motor vehicle and possibly a piano were stored in the cantina. She could not say precisely where it was that the complained of event occurred.

2. She was certain that all of the equipment was there. She was equally certain that the event occurred on the day upon which the family celebrated her birthday. She accepted that this occurred a couple of days prior to her birthday on a school pupil-free day at the end of the June long-weekend. It is not in contest that the date of the birthday celebration was 14 June 2016. The photographs of events on that day taken by FG are Exhibit D6[33]. There were some differences in evidence in relation to the clothes worn by the complainant. She said that, for example, the photograph taken on page 2 of Exhibit D6 was not taken on the same day as the photograph on page 1 of the Exhibit. She could not say why or whether she had any particular memory of that. She denied that in the second photograph of Exhibit D6 she was wearing two pieces of clothing on her upper body. I think that she is mistaken in that view. When a view is taken of the first page of Exhibit D6, she is wearing a short-sleeved T-shirt which is pink in colour. In the second page of Exhibit D6, she is wearing the same T-shirt but with a jacket over of a darker pink colour. It is quite obvious when comparing the two photographs that she is wearing two different pieces of clothing. When a close examination is made of the second page of Exhibit D6, it is apparent the outer garment that the complainant is wearing is secured around her waist but is falling off her left shoulder. It is obviously in the form of a jacket or a cardigan. It is also apparent that at the time that the second photograph on Exhibit D6 was taken, the complainant was sitting outside of the house. The two photographs were taken by FG and she said that they were taken on the same day. She also said that the second photograph was taken outside of the house[34] and at that time of year, in winter, it would have been colder. FG was also able to identify from a proper reading of the birthday card in the hands of the complainant that it was congratulating her on her ninth birthday. The first page of Exhibit D6 is the ice-cream cake holding nine candles which was part of the birthday celebration of the complainant. She had another celebration with her maternal grandmother later on after that time. It follows that the alleged events in relation to the conduct in the cantina and the celebration were contiguous, having occurred on the same day,14 June 2016.

   [33]   T151.

   [34]   T151.

3. The evidence of the complainant was that the cantina was as is seen in the photographs in Exhibit P3. I am satisfied that that is not correct. The evidence of FG satisfies me that following the flooding of the cantina in early May 2016, a claim was made upon the insurance company for flood damage. The insurance company agreed to indemnify for some damage. It retained a company called BE Building Services of Adelaide to carry out the work. The work described under the work order received by the builder included the following:

   1.     …

   2.     …

   3.     Structural floor shelving—supply and fit.

   4.     Paint on garage floor—labour to temporarily remove contents and put back after, sweep, prime and epoxy paint floor (11m x 10m).

   5.     …

   6.     Doorway—replace one jamb stud of existing doorway and change existing door with new hinges.

   7.     Remove all seaweed and debris from under balcony, laundry and bathroom—including all rubbish removal, fees and labour.

   8.     Reinstate laundry/bathroom ready for concrete including all supply of materials, including cleaning of all internal walls from water damage.

4. That work order was addressed by BE Building Services to Mr Dylan Mansell and was dated 30 May 2016. The work by Mr Mansell was undertaken during the period from about 8 June 2016 until on or about 21 June 2016. The final date for completion of the work is not clear. However, it is known that on 15 June 2016, work was continuing to be done on the cantina. The final work to be done was the painting of the cantina floor. As the work order describes, it was necessary to completely clear out the cantina and then to reinstate the cantina after it had been swept, primed and painted with an epoxy paint over the whole surface. The evidence of FG which was not challenged was that this work was being done on 15 June 2016. This means that the complainant is wrong in her memory about the state of the cantina when she was allegedly interfered with by the accused. She said that the cantina was in the same condition as is shown in Exhibit P3. I am satisfied that that was not the case. I am satisfied that the cantina was completely cleared.

5. I am also satisfied that it was very unlikely that anyone would go into the cantina for two principal reasons. The first is that according to the evidence of FG, the cantina was painted in two parts. There was a centre dividing line in the cantina and from the bluestone wall to that dividing line was the first portion of the cantina that was primed and painted. It received two coats. Then, the balance of the cantina floor was primed and painted with two coats of epoxy paint. There was nothing in the cantina at the time because the whole cantina had to be cleared in accordance with the work order. The cost of the labour for the clearing and reinstatement of the cantina was included in the work order. That was a task for Mr Mansell. Therefore, it is incorrect to say that the cantina had anything in it at the time that these events allegedly took place. I am satisfied that the memory of the complainant CG about the state of the cantina was wrong. I am further satisfied that her memory about what she was wearing on the day, when the photographs were taken and where the photographs were taken was also wrong. Further, there was an indication within her evidence, although this was not clear, that there was some form of internal stairway from the cantina up into the top level of the house. I am satisfied from the evidence of FG that there is no such stairwell. The only way for a person to get from the cantina back up into the house is to go outside of the cantina and go around to the front of the house on the road side and into the house, or go around to the sea side of the house and enter from that side. Because of the inaccuracies of the memory of CG about all of these matters, I have a significant doubt about the accuracy of the complaint of CG about this event.

6. In cross-examination, CG confirmed that when she first spoke to the police she said that the two incidents on the bobcat occurred on the same day approximately one to one-and-a-half hours apart. She only advised the DPP that these events occurred over two different days on the Sunday prior to the trial. In cross-examination, Mrs Powell asked if that was also the first time she mentioned that her vagina was bleeding after she injured it on the bobcat, but CG believed she had told the DPP previously. I do not accept this evidence. I am satisfied that the version of events said to have caused the bleeding of her vagina was not given by the complainant until the day before trial. I also do not accept that version of events. CG also admitted that she only mentioned the accused unzipping his pants at that same time as well, as she remembered some things that day because ‘it was coming up to the moment.’ She believed she did tell a police officer earlier that she saw the accused’s penis, but she could be wrong about that.[35]

   [35]   T135.15-139-16.

7. In cross-examination, Mrs Powell also asked questions about CG making a statement that when they were playing chasey, the accused caught her because her leg hurt, and that he then took her into the shed and ‘started stripping me’. CG did not remember saying those things. In the interview, she also stated that she had stripes on her onesie, but in Court stated it was birds.[36] She is pretty sure that the told the police officers that the accused pulled down her shorts and touched her vagina when she was in the cellar, but then agreed that the first time she said anything about the accused doing that was in the trial. CG explained that she was not feeling comfortable the first time she spoke with them and that she wanted to get to know them more first. She was really uncomfortable talking about it and did not know how to explain it.[37] 

   [36]   T144.24-145.20.

   [37]   T168.1-169.33.

   Complaint Evidence

8. CG said she complained of these incidents to her cousin, KG, who was 10 at the time. She confided in KG because she trusts her. CG told KG that her grandfather pulled down her pants, has been touching her ‘rude part’ and has been making her kiss him. They were in CG’s bedroom in her house in Adelaide, where KG was staying because her dad was receiving cancer treatment.[38]

   [38]   T107.6-108.6.

   Evidence of KG

9. At the original trial and without objection from the defence, KG was permitted to give evidence via AVL with a Court companion and a closed Court given her vulnerability as a child witness. KG and CG’s mothers are sisters. KG lived about 20 minutes from Kadina and they would sometimes go to Adelaide and stay with CG and her mother.

10. When KG was approximately 10 years old and CG was having a sleepover at KG’s house, CG said that the accused ‘had put me on his lap and was trying to like kiss me and touch me and take all my clothes off.’ This was in 2015 or 2016 near the middle of June. On another occasion CG gold KG that the accused was ‘pushing her down and trying to take all her clothes off and kiss her and force himself onto her.’ This conversation was at her current home in Kadina and took place in 2016 or 2017.[39] KG told CG that she needed to tell her mother.[40] KG thought that CG did not always tell her the truth.[41]

    [39]   T180.17-181.16.

    [40]   T181.26-33.

    [41]   T181.34-182.9.

11. There is a series of agreed facts within Exhibit P8 concerning the evidence of KG, the cousin of the complainant, about these complaints. They are that KG spoke about the conversations she had with the complainant concerning the defendant on the following four occasions:

    1On 15 November 2017 and this conversation was recorded on video;

    2On 2 November 2018 and this conversation was also recorded on video following a proofing at the DPP on 1 November 2018;

    3Evidence given during trial on 7 November 2018;

    4When KG spoke to the police at the Kadina Police Station on 3 September 2019.

12. On the first occasion, KG told police that the first time CG spoke to her about the defendant was on 24 December 2016. The next time that CG spoke to her about the defendant was in Adelaide in 2017 when her father broke her arm. On the second occasion, KG told police that the first time that CG spoke to her about the defendant was in 2015 when her brother was born. KG then told the police on the next occasion that CG spoke to her about the defendant on or about her birthday in February in 2016. KG told police that the next time that CG spoke to her about the defendant was the day after her birthday when CG’s father forced his way into her room. KG told the police that the next time CG spoke to her about the defendant was just before she and CG spoke to the complainant’s mother on 14 October 2016. In relation to this conversation just prior to 14 October 2016, it occurred when KG and CG were on the farm of her grandparents and were sitting in a bucket of the tractor. During this conversation, KG told police that CG had said:

    1That she wanted to go to all the places, Paris and Italy;

    2That the defendant had said that if CG told people about what he was doing, then he would kick her father out of his house;

    3That the defendant said that if CG told people about what he was doing he would not take her to Italy;

    4That the defendant said that if CG told people about what he was doing, he would not give her family any more money;

    5That the defendant said that if she did not tell anybody, then he would give her and her dad heaps of money;

    6That the defendant said that if she did not tell anybody, he would give heaps of money to her twin sisters; and

    7That the defendant said that if she did not tell anybody he would take her to Italy.

13. On the third occasion, KG gave evidence that the first time CG spoke to her about the defendant was in June 2016 and the next time was in 2017.

14. On the fourth occasion, KG told police that the first time CG spoke to her about the defendant was at Christmas in Bute in 2015. KG then later told the police that the next time that CG spoke to her about the defendant was when she stayed at her place in Kadina around October or November 2016. KG told police that the last time CG spoke to her about the defendant was a couple of months after the talk at Kadina in October/November 2016.

15. In cross-examination by Mrs Powell, a number of these propositions were put to the complainant. She agreed that she did want to go to places such as Paris and Italy. She said that the accused threatened her that if she told anyone about what he was doing, he would kick her dad out of the house. She did not recall the accused threatening her that he would not take her to Italy if she told people what he was doing. She denied that she ever said that the defendant threatened that if she told people what he was doing he would not give her family any more money, that he would give her and her dad heaps of money or that he would give the twins heaps of money. She did not recall any threat that if she didn’t tell anybody he would take her to Italy.

16. I accept that for the purposes of s 34M of the Evidence Act, it is not necessary that any complaint made must be completely consistent with the evidence given by the complainant concerning the events. The most obvious example of this approach is in relation to the evidence given by children. I therefore would not approach this matter with an over-critical mindset. However, there is a particularly concerning aspect about the inconsistency in the evidence within the agreed facts Exhibit P8, which concerns the statements to police made by KG. There is an inconsistency about when CG first spoke to KG about the defendant. On the second time that KG spoke to the police, she gave four different versions about when CG first spoke to her. She then gave statements to the police about what CG had said, a substantial portion of which CG denies. Then, on the third occasion, and inconsistent with the first and second occasions, KG said that CG spoke to her about the defendant in June 2016 and then later in 2017. However, a complaint had already been made by CG to the police in October 2016. In the end, I find all of this evidence concerning the complaint extraordinarily confusing. I really obtain no assistance from it because it is so inconsistent. When regard is had to what KG says CG said to her on the second occasion on which she spoke to police, it is fanciful to think that a threat was made by the accused to CG that he would give money to her family, that he would give her and her father heaps of money or that he would give heaps of money to her twin sisters. This evidence has the air of incredulity about it.

17. I have obtained no assistance from the complaint evidence. However, there are other agreed facts which do not assist the prosecution case. The first is that it is not in contest that the accused and his wife FG travelled to Italy in September 2016 without having told anybody that they were going. The accused had been in hospital for a period of time for treatment and immediately upon his release, he and his wife went to Italy for a trip. They were away for about three months. They were usually away each year for a period of about three months; the accused ran an agency for Italian olive harvesting equipment and he made an annual visit to Italy to maintain the relationship with the manufacturing company. The accused and his wife travelled to Italy on 6 September 2016 and returned on 28 November 2016. The initial complaint was made on 16 October 2016 about a month after they left for Italy. At a proofing at the office of the DPP the complainant did not inform the police of the first event on the bobcat when she allegedly slipped off of the lap of the accused onto the steering handle and hurt her vagina. Nothing was said of this at the first proofing. Also, nothing was said at the first proofing or any subsequent proofing of any allegation that the accused exposed himself to the complainant and asked her to touch his penis. Her only explanation was that she was remembering things as she went along. I have already found that, on the evidence, I consider that it is not possible that the event on the bobcat as alleged did occur.

18. Another matter of fact that does not sit comfortably with the evidence given by the complainant was that between 29 January 2016 and 29 March 2016 the Court had made an intervention order against the complainant’s father preventing him from having access to or contact with the complainant, her siblings or her mother. Therefore, the complainant did not attend at the premises of the accused during that period. It was not possible for any event to have occurred in that period of time and it was very soon after the end of that intervention period that the flooding occurred at the home of the accused which led to the repairs which were being conducted on, before and after 14 June 2016, the date of her birthday celebration.

    Evidence of DG

19. DG is the son of the accused and the father of the complainant. He said that he has difficulty remembering dates and details as he was using amphetamines and opiates over a decade. He confirmed that the two older kids (CG and FG) often helped their grandfather on the farm.

20. CG used the word ‘sexing’ in his presence, which was her world for grown-ups having sex. He spoke with her about why she was using it and what put it into her head. She said she had seen her mother having sexual intercourse when she snuck out of her room.[42] He caught CG using his phone to look up pornography and inappropriate search words. He spoke with her about it and tried to make her see that it was wrong. He thinks she had her own idea of what sex was.[43]

    [42]   T199.19-201.3.

    [43]   T201.7-.29.

21. DG spoke to CG’s mother, TG, about the allegations against the accused and they discussed having CG see a psychiatrist. CG seemed confused and apprehensive with the idea. She asked if the person would know whether or not she was lying.[44] CG and FG would sometimes go alone with the accused to the farm, but he found it difficult to take care of the two children. The children were often naughty. DG thinks his father, the accused, probably threatened to kick him out of the house but he would not have done it to the kids.[45] CG seemed happy to go to the farm with the accused. DG has not seen the accused behave inappropriately with CG or any of his granddaughters. He has seen the accused give CG a peck on the cheek.[46]

    [44]   T201.36-202.35.

    [45]   T203.20-22.

    [46]   T207.4-25; 209.1-27.

    Evidence of TG

22. TG is the complainant’s mother. She separated from CG’s father in mid-2013. CG had two black onesies with straps, one with birds and one with stripes.[47] I refer to Exhibit D7. This was a photograph taken by FG, the grandmother of CG on 1 January 2016. This is the date of the birthday of DG. The photograph is taken at the home of the mother-in-law of DG. There are a number of persons present. From left, they are CG’s brother (F); in the foreground is one of the twins, J; above her a cousin of CG; next to her DG, the father of CG; in his lap is D, one of the twins; next to her is JG, a cousin of CG and next to him on his left is the complainant CG. The complainant said that she was wearing a blue onesie. She said that this blue onesie belonged to her cousin KG. She was wearing it that day because KG had thrown her into their pool. She was pretty sure that she may have kept it and not given it back. However, in his evidence, the defendant said that this onesie is the garment that she always wore at Wallaroo. He thought that the black and white onesie was kept in Adelaide.[48]

    [47]   T229.16-34.

    [48]   T155;157-158.

1. In relation to their trip to Italy in 2016, they did not inform their family that they were going. Earlier in the year, they did not have any plans to go to Italy and no set dates had been made. She made the bookings to leave for Italy on 23 August 2016 and they left on 5 or 6 September 2016.[99] The decision to go to Italy was not made until 22 August 2016. The complainant was not under any impression that she was going to Italy in 2016 and she was not told by FG that she was going at that time as she and the accused had not made any plans to go to Italy until on or about 23 August 2016, the date upon which she booked the tickets. The only mention of going to Italy was the generalised comment is that one day the complainant would go to Italy, but that was as definite as it ever got.[100] She is certain that the complainant could not have known of any plans of them to go to Italy because they did not know it themselves until they made a decision on or about 23 August 2016 that they would go.

   [99]   T203.34-37.

   [100] T204.6-27.

2. I have found that the evidence of FG is convincing, compelling and truthful. She did not dissemble at any time during the giving of evidence. I found her to be an honest, truthful and reliable witness. I accept her evidence.

   The submissions of the parties

3. I do not intend to recount each of the submissions made by the parties. I will only address those matters that I consider to be determinative in reaching my conclusion in this matter. If I do not mention any particular submission made by one or the other or both of the parties, it does not mean that I have not taken that submission into account. I have taken into account all of the submissions made by the prosecution and the defence. I will address those submissions in the context of the conclusions that I reach. In doing so, I will not repeat the comments that I have already made about some of the evidence given by the complainant.

4. I am unable to accept as credible or reliable the complainant’s evidence concerning the events that are alleged to have occurred on the bobcat. I have accepted that it was not possible to operate the bobcat with a child on the knee or leg of the accused as the operator. I formed the view that when challenged about the issue of the longevity of complainant sitting on the leg of the accused whilst he was operating the bobcat, the complainant embellished her evidence by suggesting that the bobcat had been driven around the perimeter of the farm block. I am not able to accept that evidence as being credible or reliable.

5. I have also found that the whole of the evidence of the complainant about the events at the tank was not credible or reliable. I accept that there was no irrigation of the grapevines at that time. There was therefore no reason to be waiting at the caravan for the irrigation to finish. I have also found the evidence of CG concerning the irrigation of the grapevines as being incorrect. As I put to Ms Harper for the prosecution in submissions, there were three places at which the accused would check the irrigation pipes. They were at the roadside, before the tank and at the tank. The accused said that the mains water was fed onto the property by poly pipes that have a tendency to burst. That is why it was necessary to check the system at those three places. It was necessary to check the valve controls to ensure that there had been no burst pipe in front of or behind that control valve. It was not necessary to wait anywhere in order to perform that task.

6. I have accepted the evidence given by FG concerning the cantina. I am satisfied that on 13 to 18 June 2016 the cantina was largely empty and that all vehicles and all heavy equipment were removed from that area. There was some minor equipment on some of the shelves that remained but only insofar as that did not affect the recovering of the floor by the contractor, Mr Mansell. In submissions, I informed the accused counsel that I did not accept that he was involved in cleaning up the area. That was the task of Mr Mansell under the terms of his retainer with the builder retained by the insurance company.

7. I am also satisfied that the event in the cantina could not have been the final event alleged by the complainant because I am satisfied from the evidence in Exhibit D11 that on 18 July 2016 the 40-foot container for JG was delivered to the farm block and was placed upon concrete pads by the accused after he had levelled the area using the bobcat. The complainant had assisted him in siting and levelling the concrete slabs. The allegation of the complainant was that it was associated with this occasion that the accused allegedly sexually assaulted her. She made allegations that the event in the cantina which I now accept occurred on 14 June 2016 was the last event. However, I am satisfied on the evidence[101] that the 40-foot container was not delivered until 18 July 2016. This is inconsistent with the evidence given by the complainant. Moreover, the content of Exhibit D11 shows that there was some activity on the farm property that involved other members of the family on that day.

   [101] Exhibit D11.

8. I am satisfied that shortly after 18 July 2016, the accused entered hospital and that on 23 August 2016, a booking was made for the accused and FG to leave in early September 2016 to go to Italy.

9. I am satisfied from the evidence of the accused, of FG and the contents of Exhibit D13 that between a date in 2014 (and perhaps 2013) and 15 December 2015, the complainant lived with her parents or a parent at a premises in Kadina. I am satisfied on the evidence that sometime in 2013 or 2014, the complainant’s mother TG went to live in Adelaide and took the twins with her. The complainant and her older brother remained living with their father at the Kadina address. After 15 December 2015, the complainant and her older brother and their two sisters came to live with the accused and his wife at the Wallaroo address at least for the Christmas holidays. However, there was only a six-week period involved because TG obtained an intervention order against the complainant’s father DG which operated for a period of two months from 29 January 2016 to 29 March 2016. At that time, the complainant’s father DG was living with the accused and his wife at the Wallaroo address. The children were not permitted to be with their father during that two-month period of time. They did not visit at that time.

10. Therefore, the complainant did not live full-time with the accused in the 2015 year. She was a regular visitor and stayed at the Wallaroo house regularly. This was due largely to the fact that DG was often incapable of caring for his own children. Despite these facts, there was no question of access visits at that time because she was living full-time with her father at the address in Kadina. The only children with whom access may have been taken were the twins and the arrangements in relation to them are not relevant to my judgment here.

11. Therefore, the relevant periods of time are, in the main, the six-week period from 15 December 2015 to the end of January 2016 and then from 29 March 2016 until 6 September 2016, the date that the accused left for Italy.[102]

    [102] Exhibit P4 para 5.

12. In her submissions, Ms Harper focused upon the gradual expansion of the alleged conduct of the accused culminating in what may be described as a brazen alleged sexual assault in the cantina (on the version given by the complainant). The complainant said that was the last occasion of offending conduct. Notwithstanding, the evidence which I accept is that the events which allegedly occurred connected with the delivery of JG’s container could not have taken place until July 2016.

13. I have given full weight to the submissions of Ms Harper. I entertain significant doubts about the accuracy of the version given by the complainant concerning those events said to lead up to the alleged sexual assault in the cantina on 14 June 2016. I have also found the complainant exaggerated some of her evidence. One example is the use of the bobcat to drive around the perimeter of the farm block which I accept would have taken the best part of a day. There was never a reason to do so, there was no track to drive upon; a bobcat of that type is inherently unstable on uneven ground and it would have to be driven accordingly. I do not accept that assertion of fact by the complainant and I consider that it was one example of her tendency to exaggerate which has caused me significant concern. I am therefore unable to accept the fundamental tenet of the prosecution’s submission.

14. I have also given full weight to the submissions of the prosecution concerning the complaint evidence. However, as I have demonstrated through my consideration of the content of Exhibit P8 paragraphs 1 through 5, there is an illogical and unsustainable inconsistency in the version of the complaints in respect of which KG gave evidence.

15. Also, Ms Harper made strong criticisms of the evidence of FG, the wife of the accused and the provenance of the photographs produced by her in evidence. I am unable to accept those criticisms. I considered that FG was a witness of truth and I have accepted her evidence without hesitation. Where it was necessary, she readily accepted that there may be some doubt about the accuracy of her memory but I have no doubt that the photographs that she took that are date-stamped were taken for historical purposes because that was her usual approach. She informed me that she kept a written and photographic record of events. In the latter years, she relied more heavily upon her phone to record events and photographs of events. That was a function of her age and the responsibilities which she carried in caring for the children that were beyond the capacity of their father, DG.

16. A strong submission was made by Ms Harper that there is some nefarious connection between the evidence of the accused and the taking of the photographs. I am unable to accept that submission. I think it is plain enough that when full regard is had to the gravity of the accusations made against the accused in relation to particular events at particular places and times, it would be a natural reaction to later take photographs of those places to assist in the giving of instructions to solicitors and counsel. As a secondary matter, the photographs, for example in Exhibit D13, are usually to be expected to show that at the time the premises were given up by a tenant to a landlord, they were in a clean and orderly state. I am therefore unable to accept that submission of Ms Harper.

17. I am satisfied that having regard to the content of Exhibits D2 and D7, it would not be possible for the accused to have had full control of the bobcat machine and at the same time have had a child sitting on his lap. I accept as a matter of common sense, that it was only possible to have given children a very short ride on a bobcat as the accused described. Further, having regard to the content of Exhibit D7, and having regard to the fact that no complaint was made of the alleged exposure by the accused to the complainant on the bobcat or the allegation of touching being made until the day of or the day before trial, I entertain sufficient doubt about that event such that I would not accept it is proved beyond reasonable doubt.

18. I find that on the prosecution case, the alleged offending allegedly took place whilst the complainant was living at the home of the accused in Wallaroo. That likely occurred after 15 December 2015 and the first relevant period ended on 29 January 2016 when the intervention order was obtained by TG. Prior to 15 December 2015, DG was living at the Kadina address with the complainant and her brother and there was no possibility of the accused kicking him out of his home. That is therefore the first relevant period of time. That is the context in which I must assess the asserted allegation that he accused told the complainant not to speak of the events because he would kick her father out of the house. I also accept the submission of the accused that the asserted period of exposure of the complainant to the activity of the accused from the first quarter of 2015 has not been proved beyond reasonable doubt. I accept that the complainant was living with her father by that time and would have been a regular visitor to her grandparents’ home at the Wallaroo address. So much can be accepted as part and parcel of the usual relationship between grandparents and grandchildren. However, I consider that factually there is no basis to find that any threat would be made at that time by the accused to the complainant about not speaking of the alleged event because if she did, he would kick her father out of the house.

19. This is to be contrasted with the evidence of KG to whom complaints were made. She said that the first occasion upon which the complainant said anything to her was Christmas time in Bute in 2015. I have accepted the evidence of FG that DG moved into their home in Wallaroo on or about 15 December 2015 and the children were then present at the Wallaroo home for the next six weeks until 29 January 2016. It follows that I have significant doubt about a complaint made at Christmas time in 2015. However, in the next six-week period after 15 December 2015, DG was present in or about the home at Wallaroo. He was not working and was entirely dependent upon the charity of the accused and his wife. He then lost contact with the children after 29 January and until 29 March 2016 because of the intervention order obtained by TG. All of that evidence in my view is inconsistent with the alleged escalation of activity as submitted by the prosecution. There was no basis for a threat about the tenure of DG at the Wallaroo home except after 15 December 2015.

20. I accept that after 29 March 2016 and on alternate weekends, the complainant would have been present in the home of the accused and his wife up to July 2016 and then to the end of the second half of the school holidays. I accept the submission of the accused that in that period, there would only have been five visits of the children to the Wallaroo home to see their father on access visits. Then, the children would have been living at the Wallaroo home for half of the July school holidays.

21. That is to be compared with the assertion by the complainant that the event in the cantina on 14 June 2016 was the last time that any offending occurred before the accused went to Italy on 6 September 2016. That assertion cannot fit with the evidence in relation to the circumstances in July about the delivery of JG’s container to the farm property and the alleged offending of the accused associated with that event. I accept as proved that the delivery of the 40-foot container belonging to the accused’s son JG occurred on 18 July 2016. Therefore, if any offending occurred at that time, then it is not correct to say that the last offending was on 14 June 2016, the date of the birthday celebration. I accept the submission of the accused that this is a significant sequencing error but it also compounds the doubts I have about the accuracy of the evidence given by the complainant. I am satisfied that this is a further example of the inconsistency of her evidence. That is also further compounded by the inconsistency of the evidence concerning the state of the cantina on 14 June 2016. As I have found, part of the task of the contractor Mr Mansell was to clear out the flood damage and prepare the floor for recoating with two coats of epoxy paint. I am satisfied that on 14 June 2016, the cantina area was empty of large structures such as winemaking equipment, motor vehicles, chairs, tables and the like. There was no red car within the cantina area at the time and therefore I am satisfied that any alleged offending could not have taken place near to any red car parked within the cantina area. I accept the submission of the accused that this is not a minor detail because the offending is connected with the proximity of the complainant to the car at the time that she was allegedly sexually assaulted. This was confirmed by her in her evidence-in-chief and also in cross-examination.

22. I am satisfied that there were no motor vehicles in the cantina area between 9 and 17 June 2016 and for a period after that time when the epoxy floor paint was curing. This is to be contrasted with the evidence of the complainant given in examination and confirmed in cross-examination that at the time that this offending occurred there were cars parked in the proximity of the accused and the complainant and in particular she volunteered that the alleged event took place proximate to the red car. This is a further inconsistency which in my opinion casts significant doubt upon the reliability and accuracy of the evidence of the complainant and creates a doubt in my mind about the guilt of the accused.

23. On behalf of the accused, Mr Jolly made submissions about the open-ended suggestions of the accused and his wife that they may take the complainant to Italy with them on their annual trip and her disappointment at not being taken on such a trip. The evidence was that other grandchildren of siblings of DG had been taken on such trips. These were older children. Mr Jolly submitted that because of her very poor circumstances, the topic of Italy and the possibility of travel to Italy was a common topic raised by the complainant with KG in and about the complaint evidence. He submitted that one reasons she may have made the complaints was as a result of her disappointment at not being taken on the trip to Italy in September 2016. In light of the findings that I have already made, I consider that it is not necessary for me to make any finding on that matter. The submission may well be correct, but it is not a matter upon which I need to make any particular finding.

24. Mr Jolly has also asked for a warning to be given under s 12A of the Evidence Act 1929, which provides as follows:

    12A—Warning relating to uncorroborated evidence of child in criminal proceedings

    (1)In a criminal trial, a judge must not warn the jury that it is unsafe to convict on a child's uncorroborated evidence unless—

    (a)     the warning is warranted because there are, in the circumstances of the particular case, cogent reasons, apart from the fact that the witness is a child, to doubt the reliability of the child's evidence; and

    (b)     a party asks that the warning be given.

    (2)In giving any such warning, the judge is not to make any suggestion that the evidence of children is inherently less credible or reliable, or requires more careful scrutiny, than the evidence of adults.

25. There is a prohibition upon me giving any warning that it is unsafe to convict on a child’s uncorroborated evidence unless two conditions are satisfied. The second condition has been satisfied because the request for the warning has been made by Mr Jolly on behalf of the accused. The first condition is therefore pertinent. It is first necessary for me to decide that a warning is warranted. In making that decision, I must be satisfied that in the circumstances of the case, there are cogent reasons, apart from the fact that the complainant is a child, to doubt the reliability of the complainant’s evidence. The adjective ‘cogent’ qualifies the noun ‘reasons’, therefore something more than simply ‘reasons’ is required. The Oxford English Reference Dictionary[103] defines ‘cogent’ as follows: ‘(of arguments, reasons, etc) convincing, compelling …’ There must therefore be convincing or compelling reasons, apart from the fact that the complainant is a child, to doubt the reliability of the complainant’s evidence.

    [103] Oxford University Press 2008.

26. In light of the findings that I have already made, I do not find it necessary to make the s 12A warning.

    Verdict

27. I have reached the conclusion that the elements of the offence have not been established to my satisfaction beyond reasonable doubt. In those circumstances, on the Information for Arraignment 9 September 2019, I find the accused not guilty of the charge of maintaining an unlawful sexual relationship with a child.