R v G, WJ
[2019] SADC 131
•12 September 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, WJ
Criminal Trial by Judge Alone
[2019] SADC 131
Reasons for the Verdicts of Her Honour Judge Schammer
12 September 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - EVIDENCE - CORROBORATION - SUFFICIENCY OF EVIDENCE TO CONVICT - SEXUAL OFFENCES
The accused is charged with offending against one complainant, namely two counts of indecent assault and one count of unlawful sexual intercourse with a person under the age of 17 years, particularised as having occurred between 9 October 1976 and 22 January 1980.
The alleged offending in count 3 was witnessed by the accused's then stepdaughter, the complainant's cousin, AH. AH gave a police statement in 1991 relating to alleged offending by the accused against her arising from the same incident, said at that time to have occurred in 1983. The accused pleaded guilty to a charge of indecent assault against AH arising from the incident on the basis of the allegations in AH's 1991 statement.
Whether the inconsistency as to the date of the alleged offending in count 3 in AH's evidence as compared to what is in her 1991 statement, together with her evidence as to the vehicle involved in the offending, gives rise to a reasonable doubt as to the accused's guilt as to all counts.
Whether inconsistencies in the complainant's evidence compared to prior statements gives rise to a reasonable doubt as to her reliability and credibility.
Verdict: The accused is not guilty of count 1, but guilty of counts 2 and 3.
R v Pfitzner (1976) 15 SASR 171, considered.
R v G, WJ
[2019] SADC 131Introduction
The accused, G, WJ,[1] is charged on Information dated 18 March 2019 with two counts of indecent assault (counts 1 and 3) and one count of unlawful sexual intercourse with a person under the age of 17 (count 2). The complainant in each instance is JH, the niece of the accused’s former spouse, CCB.
[1] The accused is known by three different names. There is no dispute that a reference by a witness to either G, WJ, or H, T or H, LJ is a reference to the accused.
JH was born on 22 January 1965.[2] The accused’s date of birth is 15 June 1945.[3]
[2] T 27.24-25; Exhibit P6.
[3] T 202.7-8; Exhibit P5, but noting Exhibit P10 states the accused’s date of birth as 27 December 1944.
The alleged offending in each instance is said to have occurred between 9 October 1976 and 22 January 1980, when JH was aged between 11 and 15 and the accused was aged between 31 and 34.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927. He gave evidence denying all three counts.
The Charges
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, WJ between the 9th day of October 1976 and the 22nd day of January 1980 at Port Augusta, indecently assaulted JH by performing cunnilingus upon her.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, WJ between the 9th day of October 1976 and the 22nd day of January 1980 at Adelaide, had sexual intercourse with JH, a person under the age of 17 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
G, WJ between the 9th day of October 1976 and the 22nd day of January 1980 at Mount Laura, indecently assaulted JH by touching her breasts.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit an offence or the offences as charged.
The accused is presumed by law to be innocent of each charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that charge. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find that charge has not been proven beyond reasonable doubt.
There are three charges on the Information. I must assess these charges separately and only take into account the evidence that is relevant and admissible to the count under consideration.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
JH and her cousin, AH, gave evidence with a screen placed between them and the accused and the court was closed during their evidence. JH had a court companion with her throughout the course of her evidence. CCB gave her evidence via closed circuit television from a suite outside of the court room. I must not draw any inference adverse to the accused in light of this, nor must this influence the weight I give to the evidence of JH, AH and/or CCB.
The accused elected to give evidence. He was under no obligation to do so. I must assess his evidence in the same way as I assess any other witness. In presenting a case, the accused has not assumed any burden of proof, that burden always remains with the prosecution. I remind myself that even if I reject the evidence presented by the defence in its entirety, that does not bolster, nor strengthen the prosecution case. It remains for the prosecution to prove each element of the offence (and in this case, offences) charged beyond reasonable doubt.
Several of the exhibits tendered by the prosecution were tendered as business records pursuant to s 53 of the Evidence Act 1929. Such records are evidence of the facts stated therein, or any fact that may be inferred from what is stated therein, whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
Forensic Disadvantage
The allegations relate to a period spanning just over three years from October 1976 to January 1980, meaning there has been a period of delay of over 39 years between the alleged offending and the trial.
That delay has resulted in forensic disadvantage to the accused in terms of challenging and responding to allegations so long in the past.
But for the delay, the accused may have been better able to explore the circumstances of the individual acts of offending; to identify the occasions of the alleged offending; to make a defence other than a simple denial; and, to test the events that may have affected JH’s recollection or reliability.
Had a timely complaint been made it is possible that forensic evidence such as the accused’s employment records and log books, which were relevant to count two, may have been available.[4] Similarly, the issue as to precisely if and when the accused owned a green Valiant, bearing the registration GOD-001,[5] may have been better clarified by the provision of records and extracts from the Registrar of Motor Vehicles.
[4] Albeit, at T 212.27-213.11, the accused gave evidence to the effect that he had not made any attempt to contact his former employer, Mr C Taylor, and that although he had instructed his solicitor to make certain enquiries to locate accommodation and log book records, he did not hear from his solicitor as to the results of any such enquiries.
[5] The evidence on this issue will be canvassed in more detail below.
The accused may have been in a position to provide a relatively contemporaneous recollection of the nature of his interaction with JH at the time of the alleged incidents.
I must take these forensic disadvantages into account when scrutinising the evidence for the prosecution and take them into account when assessing whether the prosecution has proved each element of the offence(s) as charged beyond reasonable doubt.
There is no evidence independent of JH’s evidence to support the offences charged in counts one and two. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy.
Prior Inconsistent Statements
In his closing address, counsel for the accused submitted that the evidence given in court under oath by JH and AH differed from what they had told the police on earlier occasions. While this case is to be determined by the evidence given on oath and subject to cross-examination in court, evidence of out of court statements is relevant and put before me to assist me to determine the reliability and credibility of the evidence given by the maker of those out of court statements in court.
Before I have regard to a prior inconsistent statement there must be some evidence that the prior inconsistent statement has been made. I may use evidence that a witness has said something different on a previous occasion or omitted to say something on a previous occasion as evidence affecting the credibility of that witness and the accuracy of that witness as a historian.
Uncharged Acts/Discreditable Conduct
The prosecution led evidence (without objection by defence) of uncharged sexual acts and other discreditable conduct allegedly committed by the accused.
JH gave evidence that the accused performed an act of cunnilingus upon her subsequent to the alleged offending in count one, while she was staying with the accused and CCB at their Mealy Street home in Port Augusta and sleeping alone in AH’s bedroom. JH also gave evidence of the three separate charged acts of sexual offending against her by the accused.
This evidence is relevant and admitted as circumstantial evidence to demonstrate the accused had a specific sexual attraction to JH and a tendency on the part of the accused to act in furtherance of that sexual attraction.
AH gave evidence of an occasion at Mount Laura when the accused masturbated in front of her, then caused her to masturbate him, both prior to and while the accused was fondling JH’s breasts. This evidence was admitted to corroborate the evidence given by JH with respect to the incident comprising count three. Insofar as the evidence relates to uncharged acts against AH, the evidence is relevant and admitted to demonstrate the accused had a specific sexual interest in his then stepdaughter, being a female child under the age of 17 and a tendency on the part of the accused to act in furtherance of that sexual attraction when the opportunity arose.
The evidence outlined above is admitted for a permissible use that relies on a particular propensity or disposition of the accused as circumstantial evidence of a fact in issue.
During cross-examination counsel for the accused elicited from AH that she had also made a complaint to police with respect to an incident involving the accused, where her friend, TH, was present. The accused gave evidence that he was sentenced after he pleaded guilty to two counts of indecent assault arising from two separate incidents described by AH in her statement made to police in 1991. This evidence was admitted and relevant so as to put in issue the evidence given by AH as to the year in which the incident alleged in count 3 occurred, and to challenge her reliability and credibility generally.
The accused also gave evidence of an alleged occasion in 1989 at Port Davis Road in Port Pirie when he was in a car with AH and masturbated in front of her. The accused gave this evidence to support his denial of the alleged offending as particularised against JH in count 3, in that he denied ever having been in a car with both JH and AH and having masturbated in front of both of them, or of touching JH on the breasts during the course of such activity. However, insofar as his evidence related to another alleged uncharged act, it is relevant and admissible to demonstrate the accused had a specific sexual interest in his then stepdaughter, being a female child under the age of 17 and a tendency on the part of the accused to act in furtherance of that sexual attraction when the opportunity arose.
I am satisfied the probative value of the discreditable conduct evidence substantially outweighs any prejudicial effect it may have on the accused, that the evidence has strong probative value having regard to the particular issue or issues at trial, namely whether the alleged acts being the subject of counts 1, 2 and 3 occurred and the permissible uses are, and can be kept, sufficiently separate and distinct from any impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
If I am satisfied that the accused engaged in the uncharged sexual act as described by JH and other discreditable conduct as against AH described by both AH and the accused, I can use the evidence only for the identified permissible purposes. As to the three separate charged acts, if, for example, I am satisfied beyond reasonable doubt that the accused offended in the manner alleged in count 2, I can use that evidence in my consideration of the charge in count 3.
However I must not reason that because I am satisfied beyond reasonable doubt, if I am so satisfied, that the accused was guilty in relation to count 2, that he is therefore the sort of person who would be likely to offend in this manner and that he is therefore guilty of the offence alleged in count 3.
I must not reason that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged. Further, I must not reason that because of the multiplicity of charged and uncharged acts that the accused must be guilty of something and convict the accused of one or all of the charged offences.
If the evidence of the uncharged acts and discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt.
Elements of the Charged Offences
As to each offence of indecent assault, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused assaulted JH. An assault is the intentional and unlawful application of force to another person. That application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. It must be intentional, so purely unintended or accidental touching would not be sufficient.
2.The assault was accompanied by, or occurred in circumstances of, indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
As to the offence of unlawful sexual intercourse with a person under the age of 17, the prosecution must prove the following elements beyond reasonable doubt:
1.The accused had sexual intercourse with JH.
2.JH was under the age of 17 years at the time the act of sexual intercourse took place.
Whilst proof of the precise time or date is not an element of any of the charged offences,[6] it remains necessary for the prosecution to clearly identify and prove the particular occasion of the offending before a finding of guilt is returned.[7]
[6] Except of course insofar as it is relevant to a count in terms of proving the age of the complainant as at the date of the offence.
[7] R v Pfitzner (1976) 15 SASR 171.
Witnesses and Exhibits
The prosecution called evidence from the following witnesses:
1.The complainant, JH.
2.The complainant’s cousin, AH. The accused is AH’s former stepfather.
3.The complainant’s aunt, CCB. CCB is AH’s mother.
4.The Investigating Officer, Detective Brevet Sergeant O’Driscoll (Officer O’Driscoll).
In addition, numerous exhibits were tendered, including records sourced by Officer O’Driscoll from State Records pertaining to the attendance of JH and AH at various schools[8] and records Officer O’Driscoll obtained from the South Australian Housing Trust pertaining to addresses at 9 Mealy Street, Port Augusta[9] (Mealy Street), Unit 16, 16 Eucalypt Street, Whyalla Stuart[10] (Eucalypt Street) and houses pertaining to RC.[11]
[8] Exhibits P11-P17.
[9] Exhibit P18.
[10] Exhibit P19.
[11] Exhibit P20.
A disc containing a record of interview conducted between Officer O’Driscoll and the accused on 27 October 2016 was played, in part, during the trial, excluding those portions of the interview which were not to be relied upon by the prosecution. While the disc itself was tendered,[12] only aspects of what is contained on the disc have been tendered and considered by me as evidence in this trial, consistent with the position as agreed by both counsel at trial.
[12] Exhibit P5.
The accused gave evidence and tendered numerous exhibits, including documents pertaining to the enquiries made by Officer O’Driscoll relating to the accused’s registered ownership of motor vehicles in this State and enquiries specific to the number plate GOD-001.[13]
[13] Exhibits D23-26.
Background – Uncontentious Evidence
The family circumstances pertaining to JH, and her cousin, AH require explanation. Many of these matters are not in dispute.
Further, to understand the allegations, and the time at which each count is alleged to have occurred, it is important that findings of fact be made relevant to matters such as where JH and/or AH and the accused were living from time to time, where JH and AH were attending school and when certain relationships within the extended family dynamic started and ended.
On the basis of either evidence which was not disputed, which I accept, and/or the unchallenged business records tendered, I find, beyond reasonable doubt:
1.JH was born in Mount Barker on 22 January 1965.[14] Her mother, RC, died in about 2015.[15] Her father, DH, died when JH was approximately 18 months old.[16]
[14] Exhibit P6.
[15] T 28.25-29.
[16] T 28.23-24.
2.Following the death of DH, RC commenced a relationship with a man called ID and bore three children by him.[17]
[17] T 28.38-29.16.
3.AH was born in Woomera on 20 August 1968. AH’s mother is CCB. Her father is WBH.[18]
[18] Exhibit P7.
4.From 1972 until about late 1977, CCB lived at Mealy St in Port Augusta. WBH lived at Mealy Street until about mid-1975, when his relationship with CCB broke down. [19]
[19] Exhibit P18.
5.Between at least November 1974 and June 1975, JH lived, predominantly, in Cook, away from her immediate family. She attended Cook Primary School from 11 November 1974 until 13 June 1975, and then again from 2 July 1975 until 13 August 1975.[20]
[20] T 36.12-26; Exhibits P11 and P12.
6.After leaving Cook, JH lived for a period of time with her mother, ID and half-siblings in Port Augusta.
7.In about mid-August 1975, JH commenced attending Willsden Park Primary School in Port Augusta.[21]
[21] T 37.8-26; Exhibit P12.
8.In about September 1975, CCB commenced a relationship with the accused while she was living at Mealy Street.[22] At that time the accused went by another name, TH.
[22] T 204.19-28.
9.In either late 1975 or early 1976, RC and ID broke up. RC commenced a relationship with WBH.
10.In about mid-1976, JH moved with RC and WBH and her half siblings from Port Augusta to live in Port Pirie.
11.From 22 July 1976 until 29 October 1976, JH attended Solomontown Primary School, near Port Pirie, and was in Grade 6.[23]
[23] T 37.22-30; Exhibit P13.
12.From about late November 1976 until about July 1977, JH attended Airdale Primary School in Port Pirie.[24]
[24] T 40.24-31; Exhibits P13 and P14.
13.On 9 October 1976, CCB gave birth to a daughter, HH, fathered by the accused. At that time the accused was living with CCB and AH at Mealy Street.[25]
[25] T 205.10-22; Exhibit P8.
14.On 4 February 1977, RC and WBH were married in Port Pirie.[26]
[26] Exhibit P9.
15.On 14 May 1977, CCB and the accused were married in Port Augusta. At that time they were both still living at Mealy Street.
16.In about July 1977, JH moved with her family, including RC and WBH, from Port Pirie to Whyalla.
17.From 12 July 1977 to 16 December 1977 JH attended Bevan Crescent Primary School in Whyalla and was in Grade 7.[27]
[27] Exhibit P14.
18.From 9 July 1977 until about June 1978, JH and her family, including RC and WBH, lived at Eucalypt Street in Whyalla. They then moved to live in a house in Norton Street, Whyalla.[28]
[28] Exhibits P19 and P20.
19.From 12 July 1977 until 8 November 1977 AH attended Bevan Crescent Primary School in Whyalla and during that period lived at Eucalypt Street.[29]
[29] Exhibit P14.
20.In about November 1977, CCB and the accused left Mealy Street in Port Augusta to live in Port Pirie.[30]
[30] T 209.30-210.9.
21.From 22 November 1977 until late 1978, AH attended Airdale Primary School in Port Pirie.[31]
22.In February 1978, JH commenced high school in Whyalla, at Stuart High School.[32]
23.Between December 1978 and September 1979, AH was enrolled at Scott Street Primary School in Whyalla. At this time, CCB and the accused were still living in Port Pirie.[33]
24.On 20 September 1979 AH commenced attending St Mark’s School in Port Pirie.[34]
25.On 19 June 1981 JH left Stuart High School, being mid-way through Year 11. JH left Whyalla to live in Port Augusta with her aunt and uncle.[35]
26.Between 7 April 1983 and 29 July 1983, the accused was the registered owner of a 1964 Chrysler sedan registration GOD-001.[36]
27.By 19 September 1983, RC had left Whyalla and was living in Elizabeth West.[37]
28.On 9 August 1991 AH gave a statement to police wherein she claimed the accused had sexually assaulted her at Mount Laura in JH’s presence in 1983.[38]
29.The accused was subsequently arrested for offending arising from AH’s allegations and entered guilty pleas with respect to the alleged offending.
Prosecution Case
[31] Exhibit P16.
[32] Exhibit P15.
[33] Exhibits P16 and P17.
[34] Exhibit P17.
[35] Exhibit P15; T 54.13-23.
[36] Exhibits D23, D24 and D26.
[37] Exhibit P20.
[38] T 105.19-106.4; T 107.17-34.
Complainant’s Evidence
Background matters
At the time of giving evidence JH was 54 years of age.
She described how as a young child her family moved frequently, including interstate, such that she lived in many different locations and houses and attended numerous different schools.
She gave evidence that her father, DH, died when she was about 18 months old, and that her mother, RC, died more recently in 2015.
She remembered her mother commencing a relationship with ID, and she said he worked for the railways as a fettler. It was his work that took the family to different locations.
JH gave evidence that as a young child of the age of about four, she recalled being sexually abused by ID when she was living in Kingoonya. She said this abuse continued throughout the course of ID’s relationship with her mother, including when they lived for a period of time in the Northern Territory.
JH said the sexual abuse involved her being forced by ID to perform fellatio on him and that he had ‘raped her’ one day when her mother was in hospital. She said ID had never licked her on the vagina.[39]
[39] T 35.20-36.4.
JH said that she was very scared of ID, that he was also physically abusive and she recalled an occasion when ID had put a gun to her mother’s head and said words to the effect that if they ever told anyone, they would die.[40]
[40] T 45.37-46.3.
JH recalled that her mother and ID separated in about 1975, at a time when she was living at Stirling North and attending Willsden Park Primary School. She remembered her mother packing everything up and moving the family and their belongings in a caravan to Port Pirie.
She said it was at about this time that her mother commenced a relationship with WBH. She knew WBH before this as he had been married to her aunt, CCB.
JH gave evidence that when she was living in Port Pirie, WBH commenced sexually abusing her. She said the abuse first started when they were living in a house at Solomontown and it occurred in a toilet outside the back of the house. This involved WBH inserting his penis in her vagina and the abuse continued until she was aged 16. JH said that WBH never licked her vagina.[41]
[41] T 39.7-40.12.
JH gave evidence that she commenced High School in Whyalla in 1978 and left High School halfway through Year 11. She then went to live with the extended family of WBH in Port Augusta.[42]
Count 1
[42] T 54.5-23.
JH first met the accused at Mealy Street when he was in a relationship with her aunt, CCB.[43]
[43] T 42.1-33.
She said that from time to time she would go to stay with CCB and the accused at Mealy Street for a holiday. She said she stayed there for a week or so, and on more than one occasion.[44] In cross-examination she said she remembered staying there three times, although she was not 100 per cent sure there were three occasions when she stayed there for a week at a time.[45]
[44] T 43.4-13.
[45] T 78.23-33.
JH gave evidence about an occasion that she stayed at Mealy Street with CCB and the accused after HH was born, in other words, after 9 October 1976. She said the only people who were staying at that house at the time were CCB, the accused and HH. AH was not there at the time as she thought she was staying with her real dad, WBH, at her house in Port Pirie. JH said she thought she had stayed at Mealy Street on this occasion for about a week, it was summertime and she kept getting nose bleeds. [46]
[46] T 43.14-34.
JH said she slept alone in AH’s room. She described the room as ‘like a princess’s room’, with everything in it including Holly Hobby horse sheets, quilt and curtains, Golden Books, Lego and ‘girlie toys’.[47] She said the bed was in the middle of the room.[48]
[47] T 44.2-10.
[48] T 45.3.
She gave evidence that one night she was in bed asleep, when the accused came into the room, pulled down her covers and then pulled down her knickers. She was wearing a nightie and knickers. She said she froze. Her head was on the pillow and when asked if she was lying on her back or front, said she was lying on her front. She said the accused got between her legs and started licking her vagina. She said this went on for a little while, but felt like a lifetime, and it was disgusting. This was the first time anyone had done that to her.[49]
[49] T 44.18-45.15.
JH said she was too scared to say anything to the accused and that he did not say anything to her.[50] The lights in the room were off.[51] It was not light enough for her to see the person who was doing this to her, but she recognised the person as the accused from his smell and from his build, as he was very skinny.[52]
[50] T 44.32-35; T 45.16-19.
[51] T 58.36-37.
[52] T 46.21-28.
In cross-examination JH was asked if she observed the person who had done this to her. She said:[53]
No, I couldn’t really – like, only see the faded image, not really – but he was the only one in the house.
[53] T 59.6-7.
In cross-examination JH agreed with a proposition put to her that ID would visit Mealy Street from time to time. However, she said the only time she remembered the accused and ID being at Mealy Street together was when she was 13 and she remembered becoming very sick at that time and having to go to hospital. She was certain that ID was not staying at Mealy Street at the time of the two incidents of cunnilingus she described. She said ID had never touched her at Mealy Street, nor had the accused touched her at Mealy Street when ID was also there.[54]
[54] T 55.33-56.29; T 59.9-23.
Counsel for the accused put to JH the proposition that as the person who did this to her did not speak, and she could not see him, she could not be certain it was the accused. In response JH gave the following evidence:[55]
AWell, it was, like, his smell – like, the smell of him was in that room.
QThe smell of a man.
ANo, because (ID) drank, he was always, like, been drinking, and there was no alcohol smell.
QHe never got on top of you-
AHe got me in between my legs.
QAnd the light was not turned on at any stage throughout any of this.
ANo – and ID only – he either had sex with me or made me give him head jobs, he never ever touched, like, licked me on the vagina.
[55] T 59.33-60.6.
When asked where CCB and HH were at the time, JH said that HH was ‘in her mum’s room’ and she was not sure where CCB was, but that she may have been at work.[56] She recalled that CCB worked at a Motor Inn on the way out of Port Augusta and she thought she worked afternoon shifts as sometimes she was not there at night.[57]
[56] T 46.29-34.
[57] T 46.35-47.5.
JH said she did not say anything to the accused about this incident when she saw him the next day as she was too scared. She said this was because of what had happened to her with ID.[58]
Uncharged Act
[58] T 45.26-32.
JH gave evidence that during the same occasion she was staying at Mealy Street, but on a different night, the accused had sexually assaulted her a second time, in the same manner as he had before. Again, the lights were off, and she had not been able to see that it was the accused who was doing this to her, but had recognised him by his smell and build.
As to this occasion she had a specific recollection that he ‘smelt something like aftershave and old smoke smell’.[59]
Count 2
[59] T 46.14-18.
JH gave evidence that when she went to stay at Mealy Street the accused had a job driving trucks. She recalled an occasion when she went in the truck with the accused to Adelaide to pick up fruit or vegetables and to bring them back to a shop in Port Augusta. This was the only time she ever went in that truck. She thought she was between 11 or 12 at the time, but was uncertain if this was during the same occasion she had stayed there as described with respect to count 1, or another occasion.[60]
[60] T 47.6-28.
JH said she was asleep, lying in the back cabin of the truck and it was early in the morning. They had pulled up in Adelaide before going to the market. She said the accused got in the back cabin, pulled off the blankets and pulled her knickers off. She said he then climbed between her legs, spat on his hand and had sex with her, by holding his penis and causing it to enter her vagina. She froze. She was unsure how long this had gone on, but it felt like a long time and it hurt a little.[61]
[61] T 47.30-48.27.
JH said that the accused had not said anything to her during this incident and that she had not said anything to him. It ended when the accused came inside of her, then got up, got dressed and put his pants on.[62]
[62] T 48.28-49.4.
After this the accused had moved the truck into the yard or the area to pick up the fruit. She needed to go to the toilet, so she asked someone where the toilet was, and she went in and wiped the sperm off her. She vividly recalled the smell that she smelled in that toilet block while she was cleaning herself up and on her as she left the toilet block.[63]
[63] T 49.9-26.
JH said she got back in the truck and she remembered the accused picking up something from the market, and she thought it was fruit. She did not say anything to him about the incident and he said nothing to her about it. They then travelled back to Port Augusta.[64]
[64] T 49.27-50.2.
In cross-examination, JH was asked more specific questions as to what she recalled about this incident.
She said she remembered leaving Port Augusta at night time and agreed it was still night time when the incident occurred. She said she had been asleep in the back cabin, but the accused had woken her when he had pulled her blankets off. She was quite certain she had been asleep immediately before the incident, and not sitting up. She did recall sitting up in the corner of the truck, but believed this was after the incident had happened.[65]
[65] T 60.7-61.18.
JH agreed that when she gave her first statement to police on 11 February 2016, as to this incident she had stated:[66]
On that trip to Adelaide (the accused) raped me in the sleeping cabin, we were waiting at a depot somewhere and I was sitting in the sleeping cabin compartment, he climbed in the back with me and took my pants off.
[66] T 61.29-62.7.
She was cross-examined as to which was true – whether she had been sitting up, as she told the police, or asleep, as she had told the court, when this incident occurred. JH said that she had been sitting up. She explained that she could remember sitting there. She said she was a very fragile person, given everything that had happened to her, but that she knew what had happened. She said it was hard to remember stuff.[67]
[67] T 62.8-26.
JH explained that when she told the court she had been asleep, she ‘was going back to the bedroom bit’.[68]
[68] T 62.32-33.
She also agreed that in her second statement to police dated 22 May 2017 she had said ‘I had been awake sitting up in the cabin’ and that she had also told the prosecutor, in a statement, that she had been awake immediately before this incident. [69]
[69] T 63.4-18.
JH was asked what she remembered about the truck.
She described it as a truck with a cabin in it and thought it was a Kenworth, but could not recall any other distinguishing features about it.[70]
[70] T 60.17-23.
She was asked if she remembered what colour the truck was and she said she did not know. She said it was ‘a plain colour’ and then said ‘I’m not sure if it was, like, whitey colour, or bluey colour’.[71]
[71] T 64.12-16.
She recalled it had a container on the back. And she thought it was a refrigerated container.[72]
[72] T 64.17-24.
The following exchange then occurred in cross-examination:[73]
[73] T 64.29-65.32.
QAnd you don’t remember any writing on the truck or anything of that nature.
AI think it had ‘Jack’s’ written it.
Q‘Jack’s’.
AYeah. I mean, there were other trucks. Like, when I was sitting in the passenger seat I saw other trucks, like, when we were driving, but I wasn’t in the cabin all the time.
QAnd do you remember where, what suburb, this was.
ANo. To me – like, to me it’s like the Pooraka Markets. That’s what it, like, reminds me of but, like, I was 11 or 12. That was a long time ago. I don’t remember exactly. I know it was on, like, Main North Road but, you know, those things come back to me as, you know, like, when I moved to Adelaide, but I know we stopped at a depot full of fruit and veg.
QDid the truck have a picture on it.
ANot that I’m aware of. The picture that I saw was on another truck that I thought was on the truck but it wasn’t.
QTell me about that.
AThere was a picture of a person with a knife, like, holding a knife up (DEMONSTRATES).
QDid you say there was a picture on another truck. What’s this other truck you’re talking about.
AWell, on a passer-by truck.
QSo when you say a passer-by truck, like –
AWell, there were many trucks on the road.
QAt what time. I mean, you said you got confused with another truck. The passer-by truck, was this at the time this alleged intercourse was happening, or not.
AYes.
QSo you remember seeing a truck with a picture on it drive past.
AYeah.
QAnd that’s your recollection today.
AYeah.
QTell me more about that. At what stage did you see this truck.
AI can’t remember. It was, like, on the drive. It was a long time ago.
JH agreed that in her statement to police made on 11 February 2016 she said:[74]
I remember the truck being red and white with a picture on the side of the truck which was a picture of a butcher holding a knife.
[74] T 66.1-8.
JH agreed that at that time she was talking about the truck that she had been in with the accused, not a truck passing by.[75]
[75] T 66.9-16.
The following exchange occurred:[76]
QSo this is a truck you saw during the drive.
AYes.
QIt’s not the truck that you were in.
ANo.
[76] T 66.26-29.
JH agreed it was important to tell the truth in her statements. In cross-examining JH as to the difference in what she told the police and what she said in her evidence about the truck, the following exchange occurred:[77]
[77] T 72.25-73.6.
QAnd now, as I understand it, you can’t remember what was on the truck; is that correct.
AIt’s only just, like, a recollection of what I remember.
QBut is that correct.
AYes.
QAnd you agree that you told the police that there was a picture of a butcher holding a knife on the truck.
AYes, I do, but, like, after I thought about it it was, like, a truck that was passing.
QSo when you told the police that the description fitted the truck that you were in, that was not true.
ANo, it was just like my recollection, like the memories of back in those days. It’s a long time ago, like I’m 54 years old now, like I was a kid back then, a scared vulnerable kid that went through a lot of trauma.
Later JH said that she did not remember what was on the truck, that all she could remember was that it had ‘Jack’s’ on it, but that she was adamant the truck had a cabin in the back and that the accused had sex with her in that cabin.[78]
[78] T 76.11-19.
JH was cross-examined in more detail as to where this incident occurred.
JH agreed she had told the police ‘I believe that this depot was either at the Pooraka Markets or somewhere very close to it, just off Main North Road, Pooraka.’[79]
[79] T 74.9-12.
During quite rigorous cross-examination on this issue, JH explained that as an adult, she had become familiar with the Pooraka Markets and driven past there regularly. However, she could not now be sure the depot was at the Pooraka Markets, as the area looked different at the time, it was not built up like it is now, and she was a child, unfamiliar with the area. The Pooraka Market was the only market she now knew of, in that area. She did not know if it was in fact the Pooraka Markets, but that is what it looked like.[80]
Count 3
[80] T 73.7-76.4.
JH recalled an occasion when she was still in primary school[81] and living at Eucalypt Street in Whyalla, when her cousin, AH came to stay with her. She said the accused was living at Mealy Street at this time. She remembered that the accused and CCB came to the Eucalypt Street house and she thought they had come there to pick up AH.[82]
[81] T 54.2-4.
[82] T 50.19-26; T 57.20-31.
JH said that she and AH went for a drive with the accused to get something from the shops. AH was in the front seat, which was a bench seat. JH said she was sitting in the back seat, behind the accused.[83]
[83] T 50.34-51.1; T 52.30-53.2.
The accused drove them to Mount Laura, which was a hill just outside of Whyalla. JH agreed that there was a road that went to a certain point, and that the accused had parked the car, at the top, in an area which was all just dirt. There were no other cars around. She said after the accused parked the car he had unzipped his pants, told her to pull up her top, and said that if she didn’t do that he was going to leave them up there. He told AH to touch his penis, and while AH was massaging the accused’s penis, he massaged JH’s boobs.[84]
[84] T 50.11-18; T 52.21-29; T 53.4-13.
She remembered she was wearing a top and pants, but nothing under her top.[85]
[85] T 53.14-17.
JH thought this incident lasted for about 10 minutes, and that no one said anything during that period of time.[86] She was asked what happened when it was finished and said:[87]
Pulled my top down, he pulled his pants up, AH was back in the part of her seat where she was sitting, I sat back and we went back home again.
[86] T 53.20-27.
[87] T 53.35-37.
JH was asked to further clarify when this incident had occurred by reference to the period of time between it, and when she helped her mother clean her house just prior to her mother moving to Adelaide after she separated from WBH. JH said there was probably three or four years between those two events.[88]
[88] T 54.28-34; T 55.7-14.
In cross-examination, JH was asked what sort of car it was and she said she did not know.[89] After some initial confusion in terms of terminology, JH confirmed the car had a bench seat and she recalled the accused sitting with his ‘legs across’.[90] She could see over the seat, and therefore could see AH playing with the accused’s penis, because she was ‘sitting closer, so like on the edge of the seat so he can play with my boobs’.[91]
[89] T 76.32-33.
[90] T 77.24-26.
[91] T 77.35-36.
It was suggested to JH in cross-examination that all the accused did was pull out his penis and masturbate in front of AH and that he never got AH to touch his penis. JH denied this.[92] It was also suggested to her that this incident occurred in 1983. JH denied that and said it happened in either 1977 or 1978, and that she would have been in Port Augusta by 1983.[93] In that respect, JH gave evidence that she left high school (Stuart High School, Whyalla) halfway through Year 11 and left Whyalla to live in Port Augusta with her aunt and uncle, from WBH’s side of the family.[94]
[92] T 78.3-12.
[93] T 79.29-80.3.
[94] T 54.9-23.
AH’s evidence
Background matters
At the time of giving evidence AH was 50 years of age.
AH gave evidence that she was about seven or eight when she first met the accused. She said he lived with CCB at Mealy Street in Port Augusta and that he had done so before and after HH was born, and after he married her mother.[95]
[95] T 84.1-31.
AH gave evidence that after her parents separated, and her father, WBH was living with RC, she would go to visit WBH. She recalled first visiting him when he was living at Eucalypt Street in Whyalla.[96] In addition, she recalled staying with RC and WBH for longer periods, during school holidays and for a period long enough to go to school with RC’s children.[97] This was after CCB and the accused moved from Mealy Street in Port Augusta to Port Pirie.[98]
[96] T 85.6-12.
[97] T 85.12-86.2.
[98] T 96.7-19.
AH said there were also occasions that she would stay with her grandparents in Stirling North. In particular, she stayed more with her grandparents after WBH and RC separated.[99]
[99] T 85.25-33; T 104.3-18.
AH described her bedroom at Mealy Street as being at the back of the house and said her bed was up against the wall which divided her room from her mother and the accused’s room. She said she had a Holly Hobby quilt set up in the room.[100]
[100] T 84.32-85.5.
AH said that when the accused was living at Mealy Street he worked driving a taxi, driving buses and that he used to drive trucks.[101]
[101] T 91.6-11.
She remembered going with him to collect the truck, which was owned by a truck company on the west side of town, and she also remembered going on a couple of trips with him in the truck.[102]
[102] T 91.19-30.
AH understood the accused’s job driving the truck involved him going to Adelaide to pick up stock and bring it back to supermarkets such as Foodland and Jack’s. Jack’s was a supermarket in Port Augusta which she knew by another name, Jack the Price Slasher. Jack’s had an ad or emblem of a butcher with a mallet, a chopping knife, and she said this was the same emblem that was on the side of the truck.[103]
[103] T 91.33-92.3.
AH said the accused always drove the same truck, but that it would have different trailers, and she remembered the Foodland one and the Jack’s one. The truck was a maroon/red colour and the trailer was white, with a different emblem depending on who he was driving for. The truck was a Kenworth truck, ‘because it had the bulldog on it’ and had a sleeping cabin big enough for one person.[104]
[104] T 92.4-33.
She remembered going with the accused in the truck on two trips to Adelaide. She said they would leave Port Augusta in the afternoon, then wait for the depot to open in the morning, between 5 and 6 am, and then go in and load up the truck with stock, close-up and then drive back to Port Augusta. She described waiting ‘just not far from the Coles’ gates directly across from the abattoirs’.[105] She said she remembered the smell as it was horrific. She thought the closest main road was Port Wakefield Road.[106]
[105] T 93.10-11.
[106] T 93.2-26.
AH described sleeping in the truck, curled up in the passenger foot well, while the accused slept in the back in the cabin.[107]
[107] T 93.27-32.
In cross-examination, AH was asked if the truck had an air conditioner on its roof and she said she did not know, she could not remember, nor could she remember if it had any guards or roo bars. She said the seats were black. She was shown two photographs depicting two different trucks[108] and she said that neither of those photographs depicted the truck in question.[109]
[108] MFI-D4.
[109] T 113.29-114.25.
She said they would leave Port Augusta in the afternoon and stop for food in Port Wakefield. They would arrive in Adelaide at night-time and would only stay until the gates opened in the morning. She thought the trip there took about eight hours. Although she thought the purpose of the trips was to pick up stock, being fruit and vegetables, she did not get out of the truck in Adelaide so could not see what was being loaded into the truck at the time.[110]
[110] T 114.31-115.35.
In cross-examination, three propositions were put to AH about any such trips she took with the accused in a truck from Port Augusta to Adelaide, namely that they left Port Augusta at 3 am; that they would arrive in Adelaide around 8 am and that they would get back to Port Augusta between 1 pm and 2 pm. AH disagreed with each of those propositions.[111] She also disagreed with propositions put to her that the place the truck went to was in Kidman Park and that the truck had no sleeping compartment in it. She agreed that her mother was with her on one such trip and that JH had never been with her on any such trip.[112]
Count 3
[111] T 117.38-118.20.
[112] T 118.25-119.5.
AH gave evidence that on an occasion that she was staying with RC and WBH in Whyalla, an incident occurred involving the accused in a car at Mount Laura. She remembered that the accused and her mother had come to pick her up and take her back to Port Pirie.[113]
[113] T 96.22-38.
She remembered it being an afternoon and it was warm, as she was wearing shorts and a T-shirt. She was not wearing a bra and was not old enough to wear a bra. She said she had started wearing a bra when she was about 13.[114]
[114] T 97.1-25.
She remembered having ‘short hair, about shoulder-length hair’ and said this helped her to determine that she was probably about 10, coming up to being 11, at the time.[115]
[115] T 97.26-98.1.
AH also said this incident occurred before she started school at St Mark’s in Port Pirie. She started at St Mark’s halfway through the year, and she was pretty sure she was in Year 6.[116]
[116] T 103.25-104.2.
She recalled that she was in the front seat of the car, the accused was driving and JH was in the back seat. She thought they were meant to be going to get fish and chips for tea, and then to ‘the bottlo’ but instead they went to Mount Laura.[117]
[117] T 98.4-10.
She remembered driving along a dirt road, going up a hill and parking. She remembered the accused turned the car off and then pulled out his penis. She said he was ‘pulling himself off’, using his right hand.[118] When asked what then happened she gave the following evidence:[119]
He was doing that for a little while and then he grabbed my hand and put my hand on his penis and then squeezed my hand, sort of embracing and pulling it up and down, and with his left hand he was trying to touch – like, touch my boob, and yeah, he just kept pulling, and then he let go and he turned around and he said ‘Now it’s your turn JH’.
[118] T 98.10-19.
[119] T 98.21-27.
By way of further explanation, she said she had not really developed breasts at the time and that the accused used to call them ‘cackleberries’. She gave the following evidence:[120]
AHe had his left hand and he pulled my right hand to his balls and he was squeezing for me to pull up and down, and he had his left hand on, like, just sort of cupping, putting them into a cup motion, then he was going to touch my boobs (DEMONSTRATES).
QAnd was he touching you on top of your clothing or underneath your clothing.
AUnderneath.
QAnd then what happened.
AAnd then he stopped. He let go, like, pulled his left out and then he sort of did a turning motion to put his left hand over the seat to JH, and he said to her that ‘Now it’s your turn’, and he put his hand up onto her boob under her top, and he let go of my hand to do this, so as he was still pulling, I got out of the car and I just ran, but I was, like, I stopped because I thought JH would have followed but she didn’t, so I turned around and went back. By the time I went back he was ejaculating and he was wiping himself with his hankie.
[120] T 98.38-99.19.
She said the accused was using his left hand to touch JH and his right hand to pull himself.[121]
[121] T 100.14-18.
AH said the car had bench seats. She was in the front seat, next to the accused and JH was in the back. She said JH had started off sitting behind her but when they stopped she had slid over into the middle, such that they were sort of in a triangle.[122]
[122] T 100.3-13.
She did not recall saying anything during the incident. She said that the accused had told her to get back in the car and acted as if nothing had happened. He had then said to them ‘If youse two say anything they’re not going to believe you, they’ll believe me, I’m an adult.’[123]
[123] T 100.36-101.16.
She said this was the only occasion when she was there when something happened with JH and the accused.[124]
[124] T 102.6-15.
AH said that the car in which this incident happened was a green Valiant with the number plates GOD-001, and she identified this as the vehicle depicted in a photograph tendered as Exhibit P3.[125]
[125] T 102.16-103.4 (noting the transcript references at T 102.20 and T 102.27 are inaccurate. In each instance AH said the vehicle’s number plates were ‘GOD-001’ not ‘got a 001’.
In cross-examination, AH was asked where she was living at the time of this incident. She said she was living in Whyalla, and when asked what street she said:[126]
I recollect it as being Norton Street but then, when I’d thought about it, I remembered a certain room at Eucalypt Street, because it was only a unit so - and then I realised that, yeah, that’s – I was only supposed to be there for a holiday and it ended up I was there for a little bit longer.
[126] T 105.9-14.
She said she was attending Bevan Crescent Primary School and thought she was in Year 4/5.[127]
[127] T 105.16-18.
In cross-examination, AH agreed that on 9 August 1991 she signed a statement she made to the police wherein she described the same incident but had said it had occurred when she was staying with her father in Whyalla in 1983. In that statement, she had also described an earlier incident involving the accused, said to have occurred in 1980 in the presence of her friend, TH. The accused had been prosecuted as a result.[128]
[128] T 106.12-29.
It was put to AH that when she signed that statement she was told that there was a statute of limitations with respect to sex offending and she agreed with that proposition. However, she denied the police also told her that it was important to get the dates right for the purposes of that prosecution.[129] It was suggested to her that she was telling the truth about the dates at that time. She said:[130]
ANo, I was not – I didn’t – this is – I have just said this. I put in – I did not give dates. They put the dates in, not me.
QWhat do you mean ‘they put the dates in’.
AThe police, when they took the statement, were only interested in what happened, they weren’t interested in times and dates. It was afterwards that I had read it, when I was giving my other statement that I realised that this is all back to front.
[129] T 108.31-109.5.
[130] T 107.5-13, reiterated at T 111.29-112.17.
She said she had not met TH until she attended St Mark’s, and that this was after the incident involving the accused and JH at Mount Laura.[131]
[131] T 109.18-21.
AH agreed that on 6 July 2018 she gave a further statement to police wherein she stated:[132]
I cannot recall when this incident took place but I think it was after the incident involving TH.
[132] T 110.2-5.
AH explained that she had told the police she had made a mistake in both of her earlier statements as to the timing of the Mount Laura incident and that she had told them of that mistake ‘yesterday’.[133]
[133] T 110.7-17.
AH also agreed that when she made her statement to police about this incident in 1991, she told police the accused had masturbated in front of her and that he touched her breast underneath her ‘jumper’. She agreed she had not told the police that the accused had got her hand and made her touch him on the penis. She said she tried to tell them that, but they weren’t interested in that, they only wanted the specifics of what he was doing.[134]
[134] T 112.18-113.14.
AH gave evidence that she was definitely wearing a t-shirt, not a jumper, at the time, despite what was in her 1991 police statement. She explained that ‘being that young’ she might have said ‘jumper’ but that she knew it was a T-shirt. She agreed she was aged 23 when she gave that statement.[135]
[135] T 113.15-20.
In re-examination, AH gave evidence that she gave birth to a child on 28 April 1982 at the age of 14, being a significant event in her life. She said the incident involving the accused and JH at Mount Laura occurred before she had that child.
CCB’s evidence
CCB was aged 72 when she gave her evidence. She explained that she had a number of health issues, for which she was taking medication, including Post-Polio syndrome, scoliosis of the spine, osteoporosis and that she had suffered a stroke five years ago. The stroke had affected her short-term memory, but not her long-term memory.[136]
[136] T 126.36-127-17.
CCB gave evidence that when she first met the accused, he was driving taxis in Port Augusta, and that he came to live with her at Mealy Street. She could not remember when that was, although it was after her marriage to WBH had ended.[137]
[137] T 129.14-29.
She said that at a time, that she could not now recall, ID came to stay with her at Mealy Street. She recalled he was working for the railways as a fettler at the time. He did not stay continuously, rather he came and went. He slept in the front room, next to the room in which she slept. AH slept in a third bedroom.[138]
[138] T 128.28-129.13.
During evidence-in-chief, CCB gave the following evidence about the birth of HH:[139]
[139] T 130.1-130.12.
QWhen was she born.
AShe was born on the 9th of the 10th, ‘76.
QWhen she was born you were living at 9 Mealy Street, Port Augusta.
AYes.
QWas (the accused) living there.
AYes.
QAnd was ID living there then.
AYes.
QDid he live there for a period of time after that or not.
ANo.
CCB gave evidence that there were occasions when she was living at Mealy Street, after WBH had commenced a relationship with RC, that AH would go to stay with WBH and RC in Whyalla, however, she said AH had not gone to stay with WBH once she moved from Port Augusta to Port Pirie.[140] She was asked if AH attended any schools in Whyalla when she went there to stay with WBH and said no.[141]
[140] T 130.37-131.14.
[141] T 136.32-35.
CCB said on occasions AH would go to stay with her grandparents, and that this had occurred both when they were living at Mealy Street and when they had moved to Port Pirie.[142]
[142] T 130.37-131.21.
CCB also recalled that when she was living at Mealy Street and in a relationship with the accused, JH would come to stay. She only recalled one such occasion. She said on that occasion JH had slept in AH’s room and that AH was also there and slept in that room.[143]
[143] T 133.37-134.11.
CCB could not recall an occasion when JH came to stay with her at Mealy Street when AH was not also staying there, although she could not say either way.[144]
[144] T 134.12-16.
CCB described AH’s room at Mealy Street as being at the back of the house and done out with Holly Hobby apparel.
CCB said that after HH was born she had two different jobs in Port Augusta – one working at Highway One, where she worked as a kitchen hand from 7 am until midday and one at Shell West, where she worked the midnight shift, from midnight until 7 am in the cafeteria.[145] She remembered taking HH to work with her by taxi in her bassinet, and said the accused would take her back home in the same taxi.[146]
[145] T 134.37-135.21.
[146] T 135.10-16.
She said the accused worked as a taxi driver in Port Augusta but that he also used to drive a truck, ‘Jack’s truck’. She said he used to drive from Port Augusta to Adelaide and then back again, picking up from wholesalers. She said the truck was owned by the supermarket, Jack’s, and that she had only seen it once.[147] She described the truck as ‘mainly white with the big letters ‘Jack’s’ on the side’.[148]
[147] T 135.22-136.17.
[148] T 136.19-20.
CCB gave evidence that while she was in a relationship with the accused he owned a green Valiant with number plates GOD-001. She thought that car had bucket seats. She took a photograph of that vehicle, tendered as Exhibit P3, at an address in Frederick Road, Port Pirie. She said the car had blown up between Adelaide and Port Pirie, and could not be fixed, at a time when they were living in Port Pirie. In cross-examination, CCB agreed with a proposition put to her that they did not have that vehicle for very long.[149]
[149] T 137.9-138.25.
Officer O’Driscoll’s evidence
Officer O’Driscoll gave evidence as to the investigations he had undertaken to obtain the various school and housing records that were tendered as exhibits by the prosecution.
He was also asked as to the results of investigations he had undertaken with the Department of Transport and Planning (DPTI) for any trucks registered to Taylor’s Hotel Services between 9 October 1976 and 30 December 1983. He said DPTI had told him they could not provide any such records, noting that a consolidation of records had occurred in 2005, meaning some records were no longer available. SAPOL had no such records either.[150] He agreed that this did not mean there were not any trucks registered to a business of that name during that period, just that no such records, if they did exist, were now available.[151]
[150] T 161.23-162.30.
[151] T 162.22-28.
During his evidence-in-chief, Officer O’Driscoll was asked various questions, without objection, as to the investigation conducted by police with respect to the matters outlined by AH with respect to the accused in her 1991 statement. Officer O’Driscoll was not involved in that investigation. Insofar as his evidence involves matters of hearsay, I have not relied upon it.
As to investigations as to the history of number plate GOD-001, Officer O’Driscoll said:[152]
[152] T 162.38-163.18.
AThere were no other records other than the ones that we’ve got. The person whom I spoke to went back and she checked microfilm and she couldn’t locate any records.
QAnd was there a record that between 7 April 1983 and 29 July 1983 a pink Chrysler motor vehicle was registered to the accused with the number plates GOD-001.
AThat’s correct.
QAnd was the information that you received that there is no other history before or after that date because the information for those registration plates has not been retained by DPTI.
ACorrect.
QAnd were you told that was a result of a consolidation of records that they did in 2015.
ACorrect.
QSo through SAPOL and through DPTI were you not able to say whether or not that number plate was registered to any other vehicle at any other time.
ACorrect.
In cross-examination, Officer O’Driscoll gave evidence that in September 2018, he wrote requesting registration details of all motor vehicles that were owned or registered to the accused, and in response was told that a vehicle GOD-001 was registered to him between 7 April 1983 and 28 July 1983. He agreed he was also told that from current records there were no other vehicles registered currently or previously to the client numbers attributed to the accused. He agreed he was also told that without a registration number, engine number and/or chassis number, DPTI was unable to conduct a search prior to 1990 due to the historic database and microfiche records, which could only be searched by those parameters. He agreed that he had an engine number for the vehicle GOD-001. He agreed that further searches could have been done using that information.[153] He said:[154]
I spoke to the lady from DPTI on the phone, in person and in person, and we discussed this matter at length in terms of what I required of them, and I explained everything to her, and she explained back to me the reasons why we couldn’t establish the history of that GOD-001 and that was due to the changeover in the computer systems, and regardless of the information we had -
[153] T 177.23-178.21; T 178.38-179.4.
[154] T 180.2-9.
The accused tendered through Officer O’Driscoll various documents relating to his enquiries with respect to GOD-001, being Exhibits D24 to D26. Officer O’Driscoll agreed this information was only disclosed to the accused the day before he gave his evidence.
Record of Interview with accused
Officer O’Driscoll interviewed the accused at the Kadina Police Station in the presence of the accused’s wife on 27 October 2016.
During the record of interview, the accused made certain admissions, relied upon by the prosecution namely:
1.He met CCB in 1976.
2.He married CCB in 1977.
3.He lived with CCB in Port Augusta, Port Pirie, Elizabeth West and Elizabeth Vale.
4.He lived with CCB in Port Augusta from some time in 1976 until late 1977 when they moved to live in Port Pirie, as he had obtained a job there working in the smelters.
5.He knew JH, who was CCB’s niece.
6.He used to drive trucks for various employers including Taylors Hotel, Port Augusta. The work was general but included work with citrus.
7.He was known by several different names.
Defence Case
Accused’s Evidence
The accused gave evidence and denied the offending in each count.
As to counts 1 and 2, he denied that any such incidents had ever occurred.[155] As to count 3, he admitted masturbating in front of AH in Port Pirie in 1989, but denied ever touching JH’s breasts while masturbating in front of AH.
[155] T 211.37-212.4; T 230.4-16.
The accused gave evidence about where he had lived from time to time and how he came to change his name. In this respect, he described being involved in a big truck accident when he was in Western Australia in about 1969, and said the next thing he remembered was that he was in New South Wales.[156]
[156] T 209.9-11.
He said he had problems with his memory arising from that truck accident.[157]
Count 1
[157] T 223.35-38.
The accused recalled JH staying at Mealy Street and said she stayed over a couple of school holidays, but could not recall any other details.[158] He could not remember her ever being taken to hospital while she was staying with them.[159]
[158] T 217.13-22.
[159] T 213.12-17.
The accused said that he knew ID. He was asked if ID had ever told him that he had sexually assaulted JH and he said no.[160] However, he said he suspected that ID had done so. When asked why, he gave the following evidence:[161]
[160] T 217.23-29.
[161] T 217.33-218.7.
AJust the way – because he was staying with CCB when I met CCB and moved in, till she kicked him out, and it was just the way they sort of interacted.
QWhat was it about the way they interacted that led you to think that he was sexually assaulting her.
AJust the way she was around him.
QHow was that.
ASort of, you know, stand backish.
QAnything else -
ANo.
Q- that made you think that he was sexually assaulting her.
ANo.
The prosecutor put a proposition to the accused that this was why he decided to sexually assault JH and he denied he had ever touched her.[162]
[162] T 218.14-15.
The following exchange then occurred in cross-examination:[163]
QBecause you suspected that JH had been sexually assaulted by ID, then you would have known she was a child who wouldn’t protest and wouldn’t tell anyone if she was sexually assaulted.
AI would know that, yes.
QYou’d know that she was the sort of child that wouldn’t protest and wouldn’t tell anybody if she was sexually assaulted because you suspected that ID had sexually assaulted her, didn’t you.
AYes.
[163] T 218.37-219.8.
The accused gave evidence that after he got married, and was living at Mealy Street, he had a console job working at Shell. He said he used to work from 4 pm until midnight and that CCB used to work there from 10 pm until 2 am. He said:[164]
… she used to take HH over in the carry basket and I would take HH home in the taxi and pick her up, pick my ex up at 2 o’clock and bring her home.
[164] T 228.5-8.
He said that CCB would be out of the house seven nights a week doing 10 pm to 2 am and that he used to do five nights a week from 4 pm to midnight at Shell, but that this was after they were married.[165]
[165] T 228.9-13.
The accused was not asked what, if anything, he recalled about the layout of AH’s bedroom at Mealy Street.
In cross-examination, the accused agreed with a proposition put to him that JH had stayed at Mealy Street on an occasion when AH was not there.[166]
[166] T 230.4-10.
He denied ever performing cunnilingus on JH, either then or on any occasion, and he said he was sure about that, despite his memory problems.[167]
Count 2
[167] T 212.3-4; T 230.11-21.
The accused gave evidence that at the time HH was born he was driving trucks for Taylor’s Hotel Services in Port Augusta. He thought he worked there from about October 1976 to Easter 1977. He said he drove a red Mercedes 1418 truck,[168] which had a short cab, an air conditioner on the top, two bucket seats in the front and a bull bar on the front. It did not have a sleeper cabin.[169]
[168] The accused identified that truck in a photograph, a document which was MFI-D4. That photograph was not tendered.
[169] T 205.23-206.25.
The accused was asked what his main job was when driving for Taylor’s Hotel Services. He said he worked from Monday to Friday.
On Mondays, he would leave Port Augusta at about 3 am with a van on the back of his truck with ‘Jack the Slasher’ written on it, and a picture of a man with a hatchet. He said he would arrive at Associated Wholesale Grocers at Kidman Park at around 7 or 7.30 am to pick up perishable stuff like fruit and vegetables. He would then drive back to Port Augusta via Port Pirie, dropping off stock at various stores and supermarkets.
He said Tuesday was maintenance day. For the rest of the week he would have a flat top on the back of his truck. He said on Wednesdays he went to the brewery on Port Road and returned via Peter’s Diesel at Gepps Cross to top up there and then go back to Port Augusta. On Thursdays, he would leave at 10 am and go to Associated Wholesale Grocers and because the truck did not have a sleeping cabin he would be put up by the company overnight in the Shandon Hotel or the Cavan Hotel. He would drive back to Port Augusta on the Friday.[170]
[170] T 206.26-208.22.
The accused denied ever taking JH in his truck to Adelaide. He said he had only ever taken CCB, AH and HH (when she was a baby) in the truck.[171]
[171] T 208.23-37.
The accused denied ever having sexual intercourse with JH in his truck.[172]
[172] T 212.5-10.
In cross-examination, the accused said he had kept a logbook for the Department of Transport when he was driving trucks but there were no copies.[173]
[173] T 215.25-35.
The accused agreed with a proposition put to him in cross-examination that when he drove to Adelaide he would top up with stock (such as wine and spirits) at Peter’s Diesel, which was a depot on Grand Junction Road, next to Gepps Cross Girls High School. He denied he had taken AH there, as he would go there on a Wednesday on the brewery run, and said:[174]
No, when I took AH there was her mother, my stepdaughter and we went to Associated Wholesale Grocers and I remembered the road, it is not Findon Road, it is Holbrooks Road, Kidman Park.
Count 3
[174] T 229.8-11.
The accused gave evidence that in 1991 he was arrested for masturbating in front of AH and pleaded guilty to that offence. He said that incident only involved AH and no one else was present. He thought that incident had occurred in 1989.[175]
[175] T 211.2-36.
The accused said the incident did not occur in Whyalla, rather it had occurred in Port Pirie and he believed it occurred on Port Davis Road.[176]
[176] T 220.38-221.6.
The accused said AH was in the car with him. It was early night time. He parked on the side of the road because he wanted to masturbate, and went out to set the spotlights up. He said he threw a jumper over one of the spotlights and on the way back he masturbated in the car in front of AH for about five minutes, using his right hand. He said he thought she was about 15 at the time. He denied touching her breasts. He did not say anything to her. He ejaculated and cleaned himself up with a hankie and then drove home.[177]
[177] T 220.38-222.2; T 225.5-226.15.
He said he was not worried that AH would tell CCB about masturbating in front of her. When asked why not he said:[178]
It didn’t occur to me, if I had been worried I wouldn’t have done it, would I?
[178] T 227.12-14.
The accused agreed he had pleaded guilty to two counts of indecent assault of AH, for offences which occurred in Whyalla. As to the second count, he agreed that count related to him touching AH on the breasts, however he said he never touched her on the breasts, and that he only pleaded guilty to that count so the children did not have to be brought to court. He disagreed with a proposition put to him that he only pleaded guilty to this count after AH had given evidence.[179]
[179] T 222.33-223.24.
He said he had no memory of any incident involving AH at Mount Laura, although he agreed that it was possible, given his memory problems.[180] He agreed he could not be sure that he had not made AH touch his penis at Mount Laura, nor could he be sure that he had not touched her breasts at Mount Laura. He agreed that was something he might not remember.[181]
[180] T 223.25-224.10.
[181] T 226.25-34.
The accused was asked if JH could have been in the car going to Mount Laura. The accused said, ‘Not to my knowledge, I don’t think we took JH anywhere’.[182]
[182] T 224.11-15.
The accused was asked about an occasion when JH was about 13 and AH was 10, when he drove AH and JH to Mount Laura and he masturbated in their presence and touched both AH and JH on the breasts, but said ‘It may be possible, but I don’t recall it.’[183]
[183] T 230.35-231.7.
The accused said he had previously owned two Valiants. One was white and he owned that for about eight or nine months when he was living in Port Augusta, so about 1976. He could not recall that vehicle’s registration number. He said he owned the Valiant depicted in Exhibit P3 for ‘about eight months before it blew up.’[184]
[184] T 213.21-214.3.
He said he never had a pink Chrysler, or a Chrysler that was not a Valiant or a pink car.[185]
[185] T 219.16-220.19.
In cross-examination, the accused agreed that AH moved between Whyalla and Port Augusta quite regularly, although he could not give exact times as to when she was in Whyalla. He agreed that that he would sometimes drop her off in Whyalla or pick her up from there. He also agreed that AH attended school in Whyalla while he and CCB were living in Port Pirie.[186]
[186] T 216.6-15; T 216.38-217.6.
Exhibits D23-D26
Officer O’Driscoll produced to the accused’s solicitors various documents relating to his enquiries as to the accused’s ownership of and the registration details of a Valiant GOD-001.
Exhibit D23 is a printout from a SAPOL Vehicle Enquiry made by Officer O’Driscoll on 21 August 2018. That Enquiry contains details of a vehicle with a plate number GOD-001, the owner being the accused, at an address at Elizabeth West. The vehicle is recorded as being a 1964 pink Chrysler sedan, engine number VC47032.
The plate type is listed as ‘personal’. The ‘Date Acquired’ is listed as 26 August 1982, with the ‘Last Trans Date’ listed as 26 June 2009.
The vehicle was registered from 7 April 1983 to 29 July 1983.
Exhibit D24 is an Extract from the Register of Motor Vehicles for the vehicle registered with plate number GOD-001, being a 1964 pink Chrysler sedan. It lists the ‘Date Vehicle Acquired’ as 26 August 1982. The registered owner is listed as the accused, at an address at Elizabeth Vale. The period of registration is listed as commencing on 7 April 1983 and expiring on 29 July 1983.
On the back of that document is ‘Advanced Registration Search Results’ with the registered owner being the accused, at an address in Gawler. The document lists a 1967 Chrysler sedan registration RAD-492, with an expiry date of 31 March 1991.
Exhibit D25 is a copy of an email sent by Officer O’Driscoll to DPTI on 13 September 2018, wherein he has outlined that he is trying to establish the history of registration plate GOD-001, and specifically whether there are records as to when the plate came into existence and who owned it at different times. He has also enquired as to whether there were records identifying all motor vehicles owned or registered to the accused.
Exhibit D26 is a copy of an email from DPTI to Officer O’Driscoll in response, dated 13 September 2018. The email states ‘There is no plate history relating to GOD-001 as the plate was allocated to a Chrysler sedan 26 August 1982’. The plate was allocated to another vehicle as of 5 July 2018. The email goes on to state:
As there was a vehicle message placed against the vehicle plate number the record was transferred from the previous database (DRIVERS) to the new database (TRUMPS). This record would not have been transferred had that message not been recorded.
Due to the registration cancellation 29 July 1983 and no other changes to the record there was a business decision made to not provide historic plate history.
The email confirms there was a record of another expired vehicle registered to the client number matching the accused.[187] It goes on to say:
Without a registration number, engine number and/or chassis number I am unable to conduct a search prior to 1990 due to the historic database (DRIVERS) and Micro Fische (sic) records which can only be searched by these parameters.
[187] Presumably being the information contained on the reverse side of Exhibit D24, the ‘Advanced Registration Search Results’.
Agreed Facts – Exhibit D27
It was agreed that:
1.The registration number GOD-001 is listed on the register of motor vehicles as a personalised plate.
2.Personalised plates were first introduced in South Australia in 1979.
Closing Submissions
Prosecution
The prosecutor acknowledged that it was critical that I accept the evidence of JH to return a verdict of guilty to any or all counts.
She submitted that JH gave a convincing and straightforward account of the accused sexually assaulting her whenever he had the opportunity to do so, and that I should accept her account as being both reliable and credible.
As to count 1, the prosecutor submitted that there was evidence, other than that of JH which supported her evidence as to the circumstances in which this offending arose – namely that she was staying at Mealy Street, with the accused and CCB at a time when AH was not there. In this respect she referred to the school records which recorded AH as attending Bevan Crescent Primary School in Whyalla during the period from 8 July 1977 to November 1977, when CCB and the accused were still living at Mealy Street.
Further she referred to AH’s evidence that she did, on occasions, go to stay with her father, WBH and her grandparents, when she was living at Mealy Street.
JH gave evidence that at this time CCB worked at a Motor Inn and she remembered her doing the afternoon shifts, meaning she was sometimes not there at night. Both CCB and the accused gave evidence that after HH was born, and while they were living at Mealy Street, CCB worked at night. The prosecutor submitted that as such the accused had the opportunity to offend in the way JH described he had at Mealy Street.
As to any suggestion that JH was confused, and that in fact the acts of cunnilingus she described were perpetrated by ID, rather than the accused, the prosecutor submitted that JH knew both the accused and ID very well. She submitted that JH knew the accused’s skinny build and his smell. He was not a stranger.
ID had been JH’s stepfather for several years, and had sexually abused JH on many occasions prior to the events she described. JH knew ID’s build and smell very well. She was not a small child when these events occurred, rather she was at least a child of the age of 11 or 12. She was not under the influence of alcohol or drugs. The occasion she described as count 1 was the first time anyone had ever performed cunnilingus on her, despite her prior history of abuse by both ID and WBH.
The prosecutor submitted it was ludicrous to suggest that JH was now mistaken and that it was ID, not the accused, who had entered the bedroom at Mealy Street and performed cunnilingus on her.
She reminded me of JH’s evidence that ID had never committed that type of sexual assault upon her and that she was adamant he was not staying at Mealy Street when these two incidents occurred.
The prosecutor highlighted the evidence given by the accused that he suspected ID had sexually abused JH. The prosecutor submitted that because the accused held this belief, he knew JH was vulnerable, and the sort of child who would not protest or report being sexually assaulted, contributing to him feeling emboldened to commit the first offence, and, when she did not protest or report the first such offence, to continue to offend against her.
Further, the prosecutor referred to the nonchalance in which the accused had given evidence about the occasion he said he masturbated in front of AH on the side of the road at Port Pirie. He had not held any concern for her welfare, or that she would report him. He had simply wanted to masturbate and so he had done so. The prosecutor submitted this gave me a telling insight into the way the accused both thought and acted.
As to count 2, the prosecutor submitted that there could be no suggestion that JH was mistaken in any way with respect to this count – either she was telling the truth about the incident, or her evidence was fabricated.
She reminded me of the vivid memory JH had as to how she felt and what she smelled after the incident, when she went to clean herself up in the toilet.
She emphasised those aspects of JH’s evidence from which support could be found in the evidence of both AH and the accused.
Insofar as there was any suggestion that JH and AH had concocted their evidence, the prosecutor submitted that I should discount that suggestion – not only because such a proposition had never been put to either JH or AH to comment upon in cross-examination, but that AH was quite clearly frustrated and surprised at the level of questioning directed to her about the accused’s truck, thinking her role was a witness as to count 3.
As to count 3, the prosecutor emphasised that JH recalled this event as occurring at a time when she was living at Eucalypt Street, in Whyalla, and that AH had come to stay with her father, WBH. She submitted therefore that from all of the evidence and in particular Exhibits P14, P15, P19 and P20, I could be satisfied that JH lived at Eucalypt Street from around July 1977 to June 1978, meaning count 3 must have occurred during that time frame.
Further, she submitted that even if JH was mistaken, and this incident did not occur when JH was living at Eucalypt Street, it could not have occurred in 1983, because JH was living in Port Augusta in 1983.
She reminded me of the similarity in the accounts given by JH and AH as to this event, save that in her description of the event, JH had not referred to AH leaving the car at any time.
She submitted that neither JH or AH had been challenged in cross-examination as to the allegation that the accused was in the car at Mount Laura with both AH and JH, that he had masturbated in their presence and that he had touched JH’s breasts during this incident. The only aspects which were challenged were the issue as to whether the accused had made AH masturbate him, and the timing of this incident.
As to the timing, the prosecutor urged me to accept the evidence given by AH as to the circumstances in which she made her statement to police in 1991 and her evidence that she had been asked by the police as to the details of what she had described, but not the dates, that she was not told as to the importance of the date and that the police told her they would sort that out. She noted that upon re-reading that statement in 2018, AH had alerted police to the error in that statement as to the date of this event.
Further the prosecutor referred to the evidence given by AH that she had given birth to a child in April 1982 and that she was quite certain the incident at Mount Laura occurred before that significant event in her life.
As to the issue of the car the accused was driving, the prosecutor submitted that the only evidence JH gave in that respect was that the car had a front bench seat.
Although AH recalled the vehicle as being a green Valiant with the number plates GOD-001, it was accepted by the prosecution that personalised number plates were not introduced in South Australia until 1979. It was submitted however that there was evidence that such a vehicle existed, being Exhibit P3, and evidence from the accused that he owned a white Valiant when he lived in Port Augusta. It was submitted that AH may therefore now simply be mistaken that the accused was driving the vehicle as described by her.
The prosecutor submitted that I should reject the accused’s evidence that he had never sexually assaulted JH as a lie. She submitted that having regard to all of the evidence I could be satisfied beyond reasonable doubt as to the elements of each offence.
Defence
Counsel for the accused submitted that I could not be satisfied beyond reasonable doubt as to the truthfulness and accuracy of JH’s evidence as to counts 1 and 2, because of what he described as the ‘extraordinary doubt’ which arose with respect to count 3.
As to count 3, he submitted that not only had the accused given evidence denying any such incident, but that AH’s evidence, considered in combination with the evidence pertaining to the vehicle GOD-001, shed doubt as to the age of JH at the time of any such incident.
He submitted that just because the accused had admitted demonstrating a sexual interest towards a child, AH, in 1983, did not mean that he was otherwise guilty of the alleged offending.
Further, he submitted that there were clear differences in the recollections of JH and AH as to the alleged incident comprising count 3. Whereas AH had a clear recollection of the accused ejaculating, JH had no such recollection. AH recalled getting out of the car for a short period of time and then returning to it, but JH had made no mention of that.
As to the timing of the incident, he submitted that the statement given by AH in 1991, wherein she set forth allegations against the accused, including the alleged incident at Mount Laura, clearly stated that incident as having occurred in 1983. Further that statement was couched in terms that the incident at Mount Laura occurred after another incident, which had been witnessed by TH, someone AH met when she attended St Mark’s College. AH first attended St Mark’s College in September 1979.
Counsel for the accused submitted the accused had pleaded guilty to an offence as against AH arising from what was contained in the 1991 statement, namely an incident at Mount Laura in 1983. Further, he submitted that AH’s recollection of the vehicle involved being a green Valiant GOD-001 was only consistent with the incident having occurred after 1979, given the agreed fact that personalised number plates were first introduced in South Australia in 1979. It was submitted that instead what AH had said in her 1991 police statement was entirely consistent with what we knew about the history of the number plate GOD-001, namely that it was first allocated to a Chrysler sedan on 26 August 1982.
He submitted that if, in fact, the incident at Mount Laura occurred in 1983, then I should not otherwise accept JH’s evidence as to the circumstances in which it occurred, and, in any event, JH turned 18 in 1983, meaning I could not be satisfied JH was not an adult.[188]
[188] I note the offence as charged is not one that requires the prosecution to prove the age of the complainant as an element of the offence.
Counsel for the accused submitted that I should reject AH’s evidence as to how her 1991 statement came to record the Mount Laura incident as having occurred in 1983, particularly having regard to the fact that as at 1991, the existence of a statute of limitations with respect to such offending meant that dates assumed significant importance.
He noted that both JH and AH were quite sure there was only one incident of sexual assault involving the accused when they were both present. They must therefore have been giving evidence about the same event. As JH said the incident occurred when she was living at Eucalypt Street, and the accused was living in Mealy Street, that meant the incident must have, on her account, occurred in a narrow timeframe between July and November 1977, being six years different to that described by AH in her 1991 statement, and a difference simply too great to explain or ignore.
It was submitted therefore that I could not exclude as a reasonable possibility that AH and JH had concocted their evidence with respect to that count. As I must have doubt about the reliability and credibility as to JH with respect to count 3, it followed that I should also have doubt as to her evidence as to counts 1 and 2, meaning similarly I could not be satisfied as to the accused’s guilt as to any count beyond reasonable doubt.
Counsel for the accused also argued that the inconsistencies in JH’s evidence as to the colour and description of the truck, and whether she was sitting or asleep in the cabin before the incident, meant I should have doubts as to her reliability and credibility.
As to count 1, he submitted that I could not exclude as a reasonable possibility that ID, rather than the accused, had committed the two acts of cunnilingus as described by JH, noting the evidence of both CCB and the accused that ID had stayed at Mealy Street during the relevant period and JH’s evidence that ID had previously sexually abused her.
He submitted that carefully scrutinised, I could not accept JH’s evidence as to the occurrence of the alleged offences beyond reasonable doubt.
Assessment of the Witnesses
All of the witnesses were giving evidence about matters which had occurred decades ago, and in certain circumstances were being asked to recall very specific details for events which occurred, or are alleged to have occurred, over 40 years ago.
It is therefore not surprising that all of the witnesses at times had problems with their memory, and were unable to accurately recall certain matters.
JH gave her evidence in a very straight forward and compelling manner. She made appropriate concessions, for example, she acknowledged she had not seen the man who she believed to be the accused, who had entered the room and performed cunnilingus on her on two occasions when she was staying with CCB and the accused at Mealy Street.
There were two issues that counsel for the accused highlighted as being telling against a finding that JH was a reliable and credible witness.
The first issue was the acknowledged inconsistency in the evidence given by JH at trial with respect to count 2, namely that she was asleep when she claims the accused entered the truck’s sleeping cabin, and the contents of her earlier police statements, where she had described herself as sitting up in that cabin when the accused entered.
The second such criticism related to the evidence JH gave concerning her memory of the truck. JH was quite certain the truck had a sleeping cabin within it and a container on the back of it. She said she thought it had the word ‘Jack’s’ written on the side of it.
However, when JH gave her evidence she impressed me as a compelling and honest witness, who was genuinely endeavouring to recall matters to the best of her ability. For reasons which I will explain in detail below, having carefully scrutinised her evidence, in the context of all of the evidence, I am satisfied JH gave a truthful and reliable account of the acts she described in counts 1 to 3.
Similarly, AH impressed me as an honest, down to earth and forthright witness. It was not my impression that she was tailoring her evidence simply to fit with JH’s claims.
In this respect, counsel for the accused submitted in his closing address that I could not exclude, as a reasonable possibility, that JH and AH had concocted their evidence. This proposition was never put to either JH or AH.
However, while there were similarities in aspects of the evidence given by JH and AH relating to the circumstances surrounding count 2, and count 3, there were also some differences, telling against a finding that their versions were concocted, albeit being something important in my determination as to whether I can be satisfied beyond reasonable doubt as to JH’s evidence.
The explanations given by AH as to how her 1991 statement came to include the date of the Mount Laura incident as being in 1983, and why she may have mistakenly referred to her ‘jumper’ rather than ‘t-shirt’ in that statement were not convincing. I am also very mindful that the accused was prosecuted for offending against AH at Mount Laura in 1983, based on what AH said in that statement and that he pleaded guilty to such offending. I note that both JH and AH are adamant there was only ever one such incident that occurred while they were both present, involving the accused.
Further, I note AH’s evidence as to the green Valiant GOD-001, to which I will return shortly.
All of these matters have caused me to pay very special care when analysing AH’s evidence and making decisions as to her reliability and credibility.
However, for reasons I will further outline below, having carefully considered all of the evidence, I am satisfied that the evidence AH gave as to her recollection of the accused’s truck and the trips she took in it, was reliable and credible. I am also satisfied that the evidence AH gave as to an occasion when she was about 10 and in the car with the accused and JH at Mount Laura was reliable and credible.
CCB gave evidence that since her stroke she had suffered with short-term memory issues, although she claimed her long-term memory was intact. However, CCB could not recall that AH had ever attended school in Whyalla, despite the records showing AH attended Bevan Crescent Primary School between July and November 1977, when CCB and the accused lived at Mealy Street, Port Augusta and AH also attended Scott Street Primary School in Whyalla from December 1978 until September 1979, being at a time when CCB and the accused lived in Port Pirie. CCB’s evidence was of very limited assistance to the court, and it was clear to me that she had, at best, only a very vague memory of matters peripheral to the alleged offending.
Similarly, the accused acknowledged he had memory problems arising from a truck accident which occurred some 50 years ago. Indeed, because of these memory issues, the accused acknowledged it was possible he had committed the acts as described by both JH and AH as comprising count 3, although he could not recall doing so.
The accused denied ever owning a pink Chrysler (or pink Valiant) despite the DPTI records to the contrary.
During the record of interview and when giving evidence, the accused presented as being untroubled by the allegations, and his response to them was, at times, almost flippant. His evidence as to his lack of concern surrounding the incident he described as having occurred in 1989, was telling.
My impression of the accused was that he was simply not telling the truth as to his denials of the offending in each count.
In this respect, I remind myself that the accused bears no onus, and even having discounted the accused’s evidence, it remains for the prosecution to satisfy me beyond reasonable doubt as to the accused’s guilt and to exclude beyond reasonable doubt the accused’s innocence and any explanation given by him with respect to each count.
Analysis
Count 1
JH gave evidence that this offence occurred at a time after HH was born and the accused and CCB were living at Mealy Street, Port Augusta.
As such, the offence must have occurred between 9 October 1976 when HH was born and November 1977 when CCB and the accused moved to Port Pirie.
At this time, JH was aged between 11 and 12.
JH gave evidence the offence occurred when she was staying at Mealy Street at a time when AH was not there. The accused agreed with a proposition that JH had stayed at Mealy Street on an occasion when AH was not there. Although CCB could not recall any such occasion, I accept the evidence of JH that she did stay at Mealy Street on an occasion when AH was not there.
Although JH recalled the bed being in the centre of the room, and AH recalled the bed being up against the wall, I am satisfied they are talking about the same room and that this difference is the result of the effluxion of time.
JH is adamant ID was not staying at Mealy Street at the time this offending occurred. Although she could not see who the offender was, nor did the offender speak to her at all during the incident, she could see his ‘faded image’ and she knew from the build and the smell of the offender that it was the accused and not ID. Further she said ID had never performed cunnilingus on her, and she could only ever recall ID being at Mealy Street with the accused on one occasion when she was 13. JH turned 13 on 22 January 1978, and therefore after the accused and CCB left Mealy Street. Any such occasion must have been before JH turned 13.
As to whether ID may have been staying at Mealy Street at the time of the alleged offending, JH receives some support from the evidence of CCB, who said that although ID was staying at Mealy Street when HH was born, he did not continue to stay there, thereafter.
The accused knew ID through CCB and also gave some brief evidence touching upon when ID had stayed at Mealy Street. In his response to the question as to why he suspected ID had sexually abused JH, he said:[189]
Just the way – because he was staying with CCB when I met CCB and moved in, till she kicked him out, and it was just the way they sort of interacted.
[189] T 217.33-35.
The accused said he met CCB in about September 1975. CCB’s marriage to WBH broke down because WBH was having an affair with CCB’s sister, RC. Exhibit P19 indicates that WBH deserted CCB in about August 1975, as a result of which the tenancy at Mealy Street was transferred from CCB to WBH.
RC and ID were in a long-term relationship before RC commenced her relationship with WBH.
I note CCB’s evidence that ID was still staying at Mealy Street at the time HH was born.
The evidence given by the accused suggests he observed interactions between ID and JH before CCB kicked ID out of Mealy Street. Whether these interactions were at times when JH was staying at Mealy Street, was not explored.
JH could not see the offender, nor did the offender speak. This was both at the time of the incident described as count 1, and at the time of the subsequent similar uncharged act of cunnilingus. She said she identified the offender as the accused because of his skinny build and smell.
The acts as described by JH did not give her much opportunity to ascertain the build of the perpetrator. While she may have been able to see a ‘faded image’ of the offender in the dark room, she did not describe touching the offender at all during the incident. There was no evidence as to ID’s build at the time.
JH did not associate the offender’s smell with that of ID, as she said he always smelt of alcohol. She said ‘The smell of him (the accused) was in that room’.
It was submitted that JH knew the accused well at the time of this offending. JH gave evidence she met the accused at a time when he was living at Mealy Street but before HH was born and at a time he was in a relationship with CCB. This must have been no earlier than September 1975. JH lived in Port Augusta from August 1975 until about July 1976, before she moved to Port Pirie. She knew the accused, but I cannot be satisfied she knew him well. I accept that JH did know ID well at the time.
One of the reasons advanced to support JH’s claim that it was the accused, not ID, who committed this offence, was that JH said ID had never previously performed cunnilingus on her, despite the fact that he must have had the opportunity to do so, given he had been living with her for several years prior. While that does support JH’s claim that it was the accused and not ID who was responsible for this offending, it is also the case that the accused had not, at the time of count 1, previously performed cunnilingus on her. I accept, of course his contact with her prior to this time was much less than that of ID.
I accept JH’s evidence that at a time after HH was born she was staying at Mealy Street, that AH was not there, and she was sleeping in AH’s bedroom. I accept her evidence that a man committed an act of cunnilingus upon her in that bedroom. However, having regard to all of the evidence, despite her now being firmly of the view that the man was the accused, I cannot exclude, as a reasonable possibility, that she is genuinely and honestly mistaken in this respect, particularly given the traumatic upbringing she experienced, and the passage of time since this event.
While it is likely the accused was the perpetrator, I cannot be satisfied of this beyond reasonable doubt. I find the accused not guilty of count 1.
Count 2
JH was uncertain whether this incident occurred on the same occasion she was staying at Mealy Street as described with respect to count 1, or another occasion. However, she said it occurred when she was 11 or 12 and it was after HH was born,[190] meaning again this alleged incident must have occurred between 9 October 1976 and November 1977.
[190] T 57.35-38.
All of the evidence supports a finding that at that time the accused did drive a truck and that in that role he would drive overnight from Port Augusta to Adelaide for the purposes of collecting stock.
CCB and the accused both gave evidence that CCB worked at night after HH was born, and CCB recalled taking HH with her to work. If JH was staying at Mealy Street and CCB was working at night, and the accused was required to drive overnight to Adelaide, then JH would be left alone, unless other arrangements were made for her care. JH was aged either 11 and 12 during this period. As such, JH’s claim that she went with the accused in his truck on a trip overnight to Adelaide is readily understood and consistent with what we know about those family circumstances.
Counsel for the accused submitted I could not be satisfied as to JH’s reliability and credibility having regard to the differences in her evidence, compared with what she previously told police, as to the truck’s description and whether she was sitting up, or asleep, when the incident started.
In her police statement dated 11 February 2016, JH said that she remembered ‘the truck being red and white with a picture on the side of the truck which was a picture of a butcher holding a knife’.
In her evidence JH said she could not recall what colour the truck was. When pressed she said it was a ‘plain colour’ and then said ‘I’m not sure if it was, like, whitey colour or bluey colour’.
As to whether the truck had a picture on its back, JH said:[191]
Not that I’m aware of. The picture that I saw was on another truck that I thought was the truck but wasn’t.
[191] T 65.7-10.
She went on to describe the picture as being that of the person holding up a knife, and explained that she had thought about it, and her memory now was that she had seen that picture on a truck passing by, during the trip she had taken with the accused. She did not understand why the description of the truck had anything to do with what had happened inside the truck. She said that this was a long time ago, when she was a scared and vulnerable kid.
JH said she only went in the truck once. She was being asked to recall matters from over 40 years ago.
AH gave evidence, which was not challenged, that the truck the accused drove when he was living in Mealy Street was not owned by him, rather it was owned by a truck company on the west side of town. Indeed, CCB said she only ever saw the truck on one occasion.
As such, JH must have had limited opportunities to make observations of the truck the accused drove while he was living at Mealy Street. It is perfectly understandable that JH is not now able to describe the truck with confidence.
AH gave evidence that the truck the accused drove when he was living at Mealy Street was a maroon/red colour and it had a trailer which was white, with a different emblem depending on who the accused was driving for. One of those emblems was for a supermarket called ‘Jack the Price Slasher’ and she described a butcher with a mallet and a chopping knife.
JH gave evidence that when she went on the trip with the accused in his truck they left at night. She was in the truck for most of the trip, getting out briefly to go to the toilet when the accused was loading at the depot. As such, on the trip she described, she had very limited opportunity to make observations of the truck’s exterior.
As such, when JH told the police the truck had a picture of a butcher holding a knife on it, she may have been describing the same truck, but from a recollection she now has of having seen that truck at another time, rather than a memory relating directly to the occasion she has described. Her recollection now, that she had seen that picture on ‘passer-by trucks’, and her uncertainty as to the colour of the truck, needs to be considered and understood in the context in which she is now trying to retrieve a memory of a peripheral issue, pertaining to the offending, from over 40 years ago.
As to whether JH was sitting up, or asleep when the accused entered the cabin, JH agreed that what she had said in her statements was correct – she had been sitting up. She explained that when giving her evidence about this event she had become confused, and had started recalling, in error, what had happened when the accused entered the bedroom in which was sleeping at Mealy Street. She said:[192]
Well, I can remember sitting there, like – it was just all, like, scary and - I’m just, you know, like, a very fragile person for all the stuff that’s happened to me, and what happened to me, I know what happened.
[192] T 62.10-13.
She further explained:[193]
It’s hard to remember stuff but – I do remember sitting in the corner of the cabin.
[193] T 62.25-26.
AH described the accused as having a truck with a sleeping cabin which at times had attached to it a trailer with the emblem for ‘Jack’s’. She described going on a trip with the accused in the truck to Adelaide where he had collected stock from a depot somewhere near the abattoirs near Port Wakefield Road, and of waiting in the morning for the gates to open. Although she was cross-examined quite vigorously as to how long any such trip may have taken and when she left Port Augusta, these are not matters that one would expect AH to recall with absolute certainty. She must have been a young child of only eight or nine. While she may recall some details of these trips, it is not surprising that she does not recall others, given these trips were otherwise unremarkable occasions for her.
I accept JH’s evidence that she went on a trip to Adelaide with the accused in his truck at a time when she was staying with the accused and CCB at Mealy Street after HH was born. I reject the accused’s denial that there was no such trip.
I accept the evidence of both JH and AH that the truck the accused drove them in had a sleeping cabin. I reject the accused’s evidence to the contrary, and while at times in his life he may have driven another truck, being a Mercedes 1418 truck, and that truck did not have a sleeping cabin, I accept the evidence of JH and AH that the truck the accused described was not the truck that they were in when the accused drove them, independently, to Adelaide.
The fact that JH could not now be certain that the depot where the accused collected stock on the occasion she described was, in fact, the Bolivar Markets, is irrelevant. She was a child of 11 or 12 and she lived in the country. She must have been unfamiliar with the area. What was important was her description of the general area the incident occurred, and in this respect, it was not inconsistent either with AH’s evidence as to where she went with the accused in his truck (being evidence I accept), or, indeed, the accused’s evidence that he would collect stock (albeit not fruit and vegetables) from a depot in the Gepps Cross area.
In contrast to the events described in count 1, there can be no suggestion that JH is now mistaken in her recollection as to count 2.
JH’s account of the immediate aftermath of the incident was compelling. I believe her.
I have carefully scrutinised all of the evidence, paying particular regard to the evidence JH gave by way of explanation for her change in recollection as to the description of the truck, and her position in the cabin when she claims the accused entered it. Having done so, this does not cause me to doubt the reliability and credibility of her evidence.
I reject as not being a reasonable possibility the accused’s evidence that JH never went on a trip with him in his truck to Adelaide and that he did not have sexual intercourse with her in the sleeping cabin of the truck on the occasion as described by JH.
I am satisfied beyond reasonable doubt that:
1.The accused had sexual intercourse with JH by inserting his penis in her vagina.
2.The act of sexual intercourse occurred on a date between 9 October 1976 and November 1977, meaning JH was under the age of 17 at the time.
I find the accused guilty of count 2.
Count 3
Both JH and AH said this incident occurred at a time when JH was living in Whyalla at Eucalypt Street and AH was staying there. JH said the accused was living at Mealy Street at the time.
If that is correct, by reference to Exhibits P14 and P16, any such incident must have occurred between 8 July 1977 and November 1977.
JH gave evidence that she recalled the incident occurring in either 1977 or 1978. She was certain it did not occur in 1983 as she was living in Port Augusta by then. I believe her in this respect.
JH is three years older than AH. She recalls this incident occurring when she was in primary school. I reject the suggestion that she is mistaken and that in fact it occurred some five or six years later and at a time when she had in fact left high school.
It was never put to JH that she was mistaken and that she had never been in a car at Mount Laura with the accused and AH.
The only thing JH recalled about the car involved was that it had a front bench seat. When asked if there was a gap between the front seats she responded ‘No, because he had his legs across’, and when she gave that evidence, my impression was that JH was genuinely recalling an event which had happened and that she was not recounting something she had concocted.[194]
[194] T 77.23-24.
JH said she did not know what sort of car was involved. Unlike AH, JH never claimed the vehicle was a green Valiant with number plates GOD-001.
AH gave evidence this incident occurred when she was about 10, by reference to her haircut at the time, the fact she was not wearing a bra as her breasts had not yet developed and her memory of it occurring at a time when she was staying in Whyalla and at Bevan Crescent Primary School. Her evidence as to the timing of the incident is therefore consistent with JH’s evidence.
It is, however, inconsistent with the contents of the statement AH made to the police on 9 August 1991. That statement includes an express reference to the Mount Laura incident occurring in 1983 and is also couched in terms from which it could be inferred that the Mount Laura incident occurred after another incident, said to have occurred in 1980.
AH gave evidence that the incident at Mount Laura did not occur in 1983 and she gave an explanation as to how her 1991 statement came to include the date 1983, namely that she had not read the whole statement, that she did not give them any dates at that time and that the police put the dates in. She said it was only when she read that statement again, for the purpose of this matter, that she realised ‘that this is all back to front’.[195]
[195] T 107.13.
AH agreed that in her signed statement made 9 August 1991 she said:[196]
The next time in 1980 was behind the BHAS smelter, and TH, my girlfriend, was with me. I don’t know where she is now. TH, my dad and I were supposed to be going fishing behind the shed.
[196] T 106.12-19.
She gave evidence that the dates were wrong.[197]
[197] T 106.21.
AH agreed that thereafter the 1991 statement included:[198]
I left to stay with my real father at Whyalla in 1983. Whilst I was there my dad and mum came to visit me. (The accused and JH) and myself went for a drive to a point where a radio station antenna set up was.
[198] T 107.17-23.
She said she had not given the police the date, 1983.
In 1991 the prosecution of historical sex offences was limited by virtue of a statutory time limit. AH agreed she was aware of that at the time of giving her 1991 statement, but not of the importance of dates.
I have carefully scrutinised AH’s evidence. Although it is difficult to accept her explanation as to why her 1991 statement expressly records the Mount Laura incident as happening in 1983, I am satisfied beyond reasonable doubt that such incident did not occur in 1983.
In 1983 JH was no longer living in Whyalla. She was living in Port Augusta, and was either 17 or 18 years old.
More importantly, AH gave birth to a child on 28 April 1982. AH was adamant the Mount Laura incident occurred before her child was born, that being a significant life event (particularly as AH was only 13 at the time). Further, AH gave evidence that the incident occurred before she had properly developed breasts and before she was wearing a bra. She recalled it occurring at a time she was attending Bevan Crescent Primary School. I believe her evidence in this respect.
These matters are all consistent with the incident occurring in 1977, not 1983.
Although the accused pleaded guilty to offending in 1983 involving AH at Mount Laura, there may be many and varied reasons why he elected to enter a guilty plea to those allegations. In this respect, I note the accused maintained in his evidence that the charge for which he pleaded guilty in fact occurred in 1989 and at a different location. That evidence is clearly inaccurate.
While there is strength in an argument that in 1991 AH must have had a better memory of when the offending she described to police at Mount Laura had occurred, compared to now some 28 years later, I am satisfied beyond reasonable doubt that the 1991 statement is inaccurate in terms of its chronology and of the alleged date of this incident.
It was submitted that AH’s evidence that the car involved was the green Valiant with number plates GOD-001 meant this incident could not have occurred in 1977. I reject that submission.
The records from SAPOL and DPTI showed that the number plate GOD-001 was first assigned for use to a pink Chrysler acquired by the accused on 26 August 1982. The pink Chrysler GOD-001 was only registered for the period 7 April 1983 to 29 July 1983. There is no available historic plate history for that number plate.
The only other information DPTI could provide as to vehicles owned or registered to the accused was with respect to a 1967 Chrysler sedan RAD-492, the registration of which expired on 31 March 1991.
However, we know from Exhibit P3 that at some stage the number plate GOD-001 was, in fact, affixed to a pale green Valiant sedan.
There is no evidence before the court as to the history of ownership of that green Valiant sedan, but CCB said she took the photograph (Exhibit P3) at an address in Port Pirie and that the accused owned that green Valiant when they were living at Port Pirie, albeit she agreed that they did not own that car for very long. As to that latter concession, I note my earlier comments as to CCB’s general recollection of events as being vague, and further that CCB did not give any more specific evidence as to the duration of the accused’s ownership of that vehicle.
I find beyond reasonable doubt that the accused did own a green Valiant and that he owned it when he was living at Port Pirie. The A-pillar of that vehicle and the front windscreen of the vehicle is visible in Exhibit P3, being consistent with that vehicle having bench seats.
I find that AH is now genuinely mistaken in any recollection she may now have that at the time of the Mount Laura incident the green Valiant bore the number plate GOD-001. Her mistake in this respect is understandable having regard to the fact the incident occurred over 40 years ago and that Exhibit P3 demonstrates that in fact, at a point in time, the green Valiant did have the number plates GOD-001 attached to it.
As such, this evidence does not cause me to have a reasonable doubt as to the reliability and credibility of JH’s evidence that this incident occurred when she was at primary school, living at Eucalypt Street, Whyalla, and/or of AH’s evidence that the incident occurred when she was staying with JH at Eucalypt Street and was attending Bevan Crescent Primary School.
Having regard to all of the evidence, I am satisfied beyond reasonable doubt that the incident at Mount Laura occurred between July and November 1977.
There were some differences in the recollections of JH and AH as to what the accused said during this incident. Further, AH recalled leaving the car briefly and of the accused ejaculating, but JH did not. I am, satisfied that these differences in recall are explained by the passage of time since the incident, and the reality that each person’s memory of an incident is likely to be different, depending on the personal circumstances of the witness, their vantage point and the importance of the incident in their life at the time.
I exclude as a reasonable possibility the explanation and denial of offending as advanced by the accused with respect to count 3.
Having carefully scrutinised the evidence I am satisfied beyond reasonable doubt that on an occasion at Mount Laura between July 1977 and November 1977, the accused touched JH’s breasts.
I am satisfied and find beyond reasonable doubt that:
1.The accused assaulted JH by intentionally applying force to her, by touching her breasts, in a car at Mount Laura between July 1977 and November 1977.
2.The assault occurred in circumstances of indecency, in that it involved the accused touching JH’s breasts and that it occurred at a time when the accused had unzipped his pants, and AH was massaging his penis.
I find the accused guilty of count 3.
Summary
I find the accused guilty of counts 2 and 3, but not guilty of count 1.