R v GG
[2023] SADC 177
•15 December 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GG
Criminal Trial by Judge Alone
[2023] SADC 177
Reasons for the Verdict of his Honour Judge Handshin
15 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with one count of maintaining an unlawful sexual relationship with a child. The complainant was the accused’s step-daughter. It was alleged that between 2012 and 2020, when the complainant was aged 8 to 16 years, the accused sexually abused the complainant with considerable frequency at various locations, but primarily at the family’s then residence. The household in which the accused and the complainant lived was a busy household in which friends and relatives of the complainant’s mother would often stay for periods of time. This notwithstanding, the prosecution case was that from the time the complainant was 8, the accused embarked on a course of persistent, brazen and opportunistic sexual offending against her that went undetected for many years until late 2020 when, after the accused had separated from the complainant’s mother, the complainant disclosed the alleged abuse to her mother in the context of an ongoing argument between the complainant, the accused and her mother about a photograph of the complainant’s biological father that had been put on display by the complainant in her bedroom. Text messages between the complainant and the accused in the lead up to the disclosure, record the complainant expressing her love and affection for the accused and, amongst other things, thanking him for everything he had done for her throughout his marriage to her mother. The accused gave evidence in his defence denying the allegations.
Held: Both the complainant and the accused were, in various respects, credible and reliable witnesses. Whilst both of their accounts suffered from certain shortcomings and inconsistencies on particular topics, there was nothing about the content or presentation of their evidence that permitted of the conclusion that one or both of them were in material respects untruthful. In the face of two mutually exclusive but generally credible and reliable accounts, it is not possible to discern where the truth lies. Accordingly, the accused is not guilty of the offence charged.
Criminal Law Consolidation Act 1935 (SA) ss 49, 50, 56 and 58; Evidence Act 1929 (SA) ss 34CB and 34M, referred to.
R v Dookheea (2017) 262 CLR 402; Liberato v The Queen (1985) 159 CLR 507; De Silva v The Queen (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; JJP v The Queen [2021] SASCA 53; JGS v The Queen [2020] SASCFC 48; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; R v Calides (1983) 34 SASR 355, considered.
R v GG
[2023] SADC 177Criminal Jurisdiction
The accused is charged on Information dated 4 March 2022 with one count of maintaining an unlawful sexual relationship with a child, contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The prosecution case is that between 2012 and 2020, the accused sexually abused his step-daughter, ZW, at the family home at Largs North and various other places. ZW was aged between 8 and 16 during the period of alleged offending.
The particulars of the charge are as follows:
Particulars of Offence
[The accused] between the 1st day of April 2012 and the 11th day of October 2020 at Largs North and other places, maintained an unlawful sexual relationship with [ZW], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Rubbing his genitals on [ZW’s] body on more than one occasion;
(b) Rubbing his penis onto [ZW’s] bottom on more than one occasion;
(c) Touching [ZW’s] chest and genitals on more than one occasion;
(d) Inserting finger(s) into [ZW’s] vagina on more than one occasion;
(e) Inserting his penis into [ZW’s] vagina on more than one occasion;
(f) Performing an act of cunnilingus on [ZW] on one occasion;
(g) Inserting his penis into [ZW’s] anus on one occasion; and
(h) Causing [ZW] to watch pornography on more than one occasion.
The accused elected for trial by judge alone and pleaded not guilty to the charged offence. I now publish reasons for my verdict.
Standard directions and elements
Before turning to a review of the evidence and explanation of my findings and reasons, I remind myself of some fundamental matters.
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charge unless and until the prosecution proves each element of the offence charged beyond reasonable doubt. In this respect, I bear in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
As the accused gave sworn evidence denying the allegations, I could only find him guilty if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt of his guilt on the prosecution evidence. It is not necessary for me to believe the accused’s evidence for it to give rise to a doubt.[1] I am to assess the evidence of the accused in the same way as I assess the evidence of all other witnesses.[2] I give the accused credit for taking a course which he was not obliged to.
[1] De Silva v The Queen (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3].
[2] Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.
The question for me is not whether I prefer the evidence of the complainant to that of the accused.[3] Nor can I resolve the issue in dispute by making a choice as between the conflicting bodies of evidence.[4] Even if I were to prefer the evidence of the complainant to that of the accused, that would not be determinative of the accused’s guilt or innocence. The accused may be found guilty if, and only if, I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence charged.
[3] Liberato v The Queen (1985) 159 CLR 507, 515.
[4] De Silva v The Queen (2019) 94 ALJR 100, [10]-[11].
If I reject the accused’s evidence as untruthful, I must still consider whether, on the basis of the complainant’s evidence about the unlawful sexual acts, I am satisfied beyond reasonable doubt of the accused’s guilt. Equally, if, having considered all of the evidence, I am unsure where the truth lies, my verdict must be not guilty.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offence, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
Elements
The offence of maintaining an unlawful sexual relationship with a child consists of the following elements, each of which must be proved by the prosecution beyond reasonable doubt:
1. The accused knowingly maintained a relationship with ZW during the period in which the particularised unlawful sexual acts occurred. A ‘relationship’ for the purpose of s 50 must be comprised of more than isolated acts to which the accused and complainant are parties or otherwise involved. There must be some continuity in the relative positions of the accused and complainant such as, for example, being members of a family unit over a period of time. The characteristics of the association between the accused and the complainant must be considered. The accused must knowingly maintain the relationship with the complainant throughout the charged period.
2. The accused was an adult during the period in which the particularised unlawful sexual acts occurred.
3. The complainant was a child under the age of 17 years during the period in which the particularised unlawful sexual acts occurred.
4. The accused engaged in an unlawful sexual relationship with the complainant by committing at least two unlawful sexual acts with or towards her in the course of the relationship. ‘Unlawful sexual act’ is defined by s 50(12) of the CLCA as any act that constitutes, or would constitute a sexual offence if the time and place at which the act occurred were sufficiently particularised. ‘Sexual offence’ is in turn defined to mean, relevantly, an offence against Division 11 of the CLCA.
As to the fourth element, in JJP v The Queen [2021] SASCA 53 at [157], Doyle JA, with whom Kelly P agreed, explained that the elements of a s 50 charge include the elements of the sexual offences comprised by the ‘unlawful sexual acts’. That is to say, in order to establish the commission of an ‘unlawful sexual act’, the prosecution must prove beyond reasonable doubt that the accused’s conduct would satisfy the elements of a ‘sexual offence’ as defined.
The prosecution case, as I understand it, is that if proved, the conduct relating to particulars (a), (b) and (c) would constitute the sexual offence of indecent assault, contrary to s 56 of the CLCA.
The prosecution case is that, if proved, the conduct relating to particulars (d), (e), (f) and (g) would constitute the sexual offence of unlawful sexual intercourse, contrary to s 49 of the CLCA.
Finally, the prosecution case is that, if proved, the conduct relating to particular (h), would amount to an act of gross indecency, contrary to s 58 of the CLCA.
There was no dispute at trial as to the first three elements of the offence. It was common to both the prosecution and the defence case that the accused was ZW’s stepfather throughout the particularised period and that he knowingly maintained this relationship with her, even after his marriage to NB came to an end. Similarly, it was uncontentious that the accused was an adult at all material times and the complainant was under the age of 17 years throughout the charged period.
I am satisfied beyond reasonable doubt of the first, second and third elements of the offence.
The primary forensic contest between the parties was whether it had been proved beyond reasonable doubt that the accused committed at least two of the particularised unlawful sexual acts alleged. The prosecution case in this respect rested exclusively on acceptance of the complainant’s evidence about sexual misconduct.
Special arrangements
A number of prosecution witnesses gave evidence with various special arrangements in place. I have not allowed the fact of these special arrangements to influence the weight that I give to their evidence nor have I drawn any inference adverse to the accused from the fact that these arrangements were in place.
Forensic disadvantage
Counsel for the accused, Mrs Powell, urged me to approach my assessment of the prosecution case on the basis that the accused has suffered a significant forensic disadvantage on account of the passage of time between the alleged abuse and the trial of this charge. Whilst s 34CB of the Evidence Act 1929 (SA) has no application to trials before a judge sitting without a jury,[5] the principles enshrined in s 34CB derive from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to bring to account these principles in evaluating whether the prosecution has met its burden of proof whenever it is necessary to avoid a perceptible risk of a miscarriage of justice.
[5] JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85].
Mrs Powell pointed, in particular, to the fact that the complainant’s grandmother, MB, who spent considerable time visiting or living at the Largs North house during at least part of the alleged offending passed away in 2019, by which time much of the alleged sexual abuse had come to an end. Mrs Powell submitted that MB could have given evidence about the general dynamics within the household; the distribution of parental responsibilities in relation to school drop offs and pick-ups and supervision of the children otherwise; and opportunity to offend. Mrs Powell further referenced the unavailability of forensic evidence and the imprecision in the complainant’s evidence about times and dates at which various events occurred which denied the accused the prospect of further investigating and testing her allegations.
Ms McKendrick, for the prosecution, submitted that there could be no forensic disadvantage to the accused in this case because the alleged offending continued until 2020 such that there was in fact no significant passage of time between the conclusion of the alleged abuse and the trial of the charge.
I do not accept the prosecutor’s submission. In a case such as this one, where the charge covers a period of eight and a half years, it would be unduly restrictive to deny an accused the protection of something approximating a forensic disadvantage warning merely because, as a matter of happenstance, the last particularised unlawful sexual act occurred more proximately to the trial of a charge than the preponderance of allegations. To my mind, that approach defeats the utility of a forensic disadvantage warning as a reminder to a trier of fact to bear in mind that an accused’s ability to meet, challenge and test allegations and marshal evidence in support of a defence might be compromised because some or all of the allegations he or she faces date back some considerable time.
Accordingly, I have considered the impact of the delay between the alleged commission of the unlawful sexual acts (at least by far the majority of them) and the trial of this charge and the attendant disadvantage it has occasioned the accused in deciding whether I am satisfied beyond reasonable doubt of the accused’s guilt.
The prosecution case in overview
The accused was, at all relevant times, the step-father of the complainant, ZW, who was born on 4 December 2003. I will refer to the complainant either as ‘ZW’ or ‘the complainant’ throughout my reasons.
ZW was 19 years of age at the time she gave evidence about acts she alleges were committed against her between the ages of 8 and 16.
The complainant’s mother is NB. Her biological father is KW (Snr), with whom she had little contact throughout her childhood years.
NB and KW (Snr) also have two other children together: KW, the complainant’s older brother, born 5 October 2002; and AW, the complainant’s younger sister, born 14 December 2007.
Where convenient, I will refer to ZW, NB, KW and AW collectively as ‘the W’s’, ‘the W family’ or ‘the family’.
NB’s relationship with the children’s biological father was an unhappy one. She was subjected to domestic violence which was witnessed by the children.
In 2012, the W family were living together at rental premises at Largs North. The Largs North home was a four bedroom property. The master bedroom was located at the front of the property adjacent to the main entrance to the house. It had an ensuite bathroom with a sliding door. Upon leaving the master bedroom, one would enter one of two lounge areas. I will refer to the lounge area adjoining the master bedroom as Lounge 1. The door between the master bedroom and Lounge 1 was lockable.
A central hallway ran from Lounge 1 to the back of the house. There was a door between Lounge 1 and the main hallway.
The other bedrooms of the house were serviced by the main bathroom and were more or less co-located in the central hallway of the house. Two bedrooms were situated on one side of the hallway and shared a common wall and the third bedroom was on the opposite side of the hallway and essentially central to the other two bedrooms.
Continuing down the hallway to the back of the house would take one to another lounge and dining area, which I will refer to as Lounge 2. The kitchen was adjacent to Lounge 2.
An enclosed car port ran along the entire length of the house and, as will be seen, was frequently used for gatherings, parties and occasionally as a place for visitors to sleep. The defence case was that the Largs North home was essentially a very busy place that was frequented by many of NB’s relatives and friends and their children and that, consequently, the opportunity for the accused to abuse the complainant in the manner alleged was more limited than the prosecution case would suggest.
NB first met the accused on New Year’s Day of 2012. The accused, who was born in India on 21 September 1983, and who emigrated to Australia in 2007 was then driving a taxi as he did throughout much of the particularised period. English is not the accused’s first language but he learnt to speak English whilst residing in India.
The accused and NB struck up a rapport during the taxi ride on 1 January 2012 and shortly thereafter commenced a relationship. In the early stages of the relationship the accused would visit NB at the Largs North house during his night shifts, often between 10pm and 1am.
At some point after the relationship commenced, NB introduced the children to the accused.
On 30 April 2012, the accused and NB married. At the time, and throughout their relationship, NB suffered from a number of significant health issues that required her to regularly attend doctors’ appointments and occasionally called for her to be hospitalised for periods ranging from a day or days to a week.
Although there is some uncertainty on the evidence as to the precise chronology of events, the accused moved into the Largs North house either at the time of or not long before he married NB. The prosecution case was that within a short time of moving into the Largs North house, the accused began sexually abusing ZW by getting into bed with her in the early hours of the morning after returning from work and rubbing his groin into her back or bottom.
From that point on until 2017 / 2018, the accused lived with the W family at Largs North and Dudley Park.
The relationship between NB and the accused came to an end in around 2017 / 2018, at which time NB moved to Seacombe Gardens. The complainant was then living with relatives at Ethelton but would visit NB on weekends and school holidays.
Despite the separation, the accused continued to play a role in NB’s life as her carer and had ongoing contact with ZW and AW by way of what the complainant described as ‘dad and daughter dates’, which were outings the accused took ZW and AW on, with NB’s knowledge.
In 2020, the complainant was living with relatives in Point Pearce. On 1 September 2020, she obtained her Learner’s Permit. NB was admitted to hospital later that night having experienced a medical episode. On the prosecution case, the accused, who was summoned to the Seacombe Gardens address to look after ZW and her siblings in this context, later seized the opportunity to take the complainant to the share house he was then residing at and engage in penetrative sex with her. This was, on the prosecution case, the last occasion that sexual activity between the accused and ZW took place.
In or around December 2020, and in the context of an ongoing argument between the accused, NB and ZW about a photograph of her biological father that the complainant had displayed in her bedroom, ZW disclosed for the first time the alleged abuse she had suffered at the hands of the accused.
Thereafter, the matter was reported to the police.
Insofar as the allegations of sexual abuse are concerned, and by way of overview, the prosecution case was that after the accused commenced his relationship with NB, he began sexually abusing ZW. The abuse continued over an eight year period from 2012 to 2020 and in summary form comprised the following types of unlawful sexual activity:
·From early 2012, ‘dry humping’ the complainant in her bedroom.
·From 2012, ‘dry humping’ the complainant in the master bedroom when NB was cooking dinner or when other members of the household were out or otherwise occupied.
·From 2012, ‘dry humping’ the complainant when NB was hospitalised for periods of time and the children were under the care of MB, the complainant’s grandmother.
·In the context of episodes of dry humping in NB’s bedroom, the accused would show ZW pornography on his mobile phone.
·The accused pressing himself against the complainant’s backside in the kitchen of the Largs North property when others were in the house.
·In late 2012 / 2013 (the timing is unclear), the accused performed an act of cunnilingus on ZW in Lounge 2 of the Largs North home.
·From around 2014, the accused engaged in penile vaginal sexual intercourse with ZW in NB’s bedroom, once a week or five times a month.
·The accused engaged in an act of anal intercourse with the complainant in the ensuite of the Largs North property.
·During a period in which the family lived at MB’s unit at Dudley Park in around 2015, the accused engaged in penile vaginal sex with ZW and on one occasion pushed her aggressively into a cupboard and behaved sexually.
·In 2015 and 2016, following the family’s return to Largs North, the accused resumed ‘dry humping’ ZW and engaging in penile vaginal sex with her but less frequently.
·On the way back from a family trip to Yalata around late March 2016, the accused digitally penetrated ZW and attempted to have penile vaginal sex with her in the car, but was unable to do so.
·During 2017 and 2018 when ZW was living with her grandparents in Ethelton, the accused continued to engage in ‘dry humping’ her on occasions when she returned to the Largs North home.
·In the latter half of 2018, when the complainant returned to live with NB at Seacombe Gardens, the accused took her and AW to his share house accommodation at Morphettville after a ‘dad and daughter date’, during which he began dry humping ZW, under the pretence of play fighting with her.
·On 1 September 2020, after ZW obtained her Learner’s Permit, NB was taken to hospital suffering a panic attack. ZW alleged that the accused was called to the Seacombe Gardens house to look after the children and after NB left, he engaged in ‘dry humping’ with the complainant at Seacombe Gardens before taking her to his share house, then at Mitchell Park, and having penile vaginal sex with her.
Against this synopsis of the prosecution case, I turn to the evidence. I do not propose to summarise all of the evidence. I have read it, again, for the purpose of preparing my reasons and I will deal only with the evidence necessary to examine the parties’ arguments and whether the elements of the offence charged have been proved to the requisite standard.
Meeting the accused – Largs North property - 2012
ZW’s evidence
ZW first met the accused when he was dating NB. They were living at Largs North at the time.[6] The children were introduced to the accused by NB. The accused and NB married (30 April 2012) each other a short time after they started dating.
[6] It was an agreed fact that ZW and family lived at the Largs North property from 19 November 2010 to 17 July 2018: P21, [5].
At the time of the marriage, ZW was in Year 3 at [L] Primary School.[7]
[7] P21, [11].
NB’s evidence
NB gave evidence that she met the accused in January 2012 and they struck up a relationship. She said that thereafter the accused would spend a lot of time at night at the Largs North house before he moved in. He was driving a taxi and working night shifts. On Thursdays through to Saturdays, the accused would generally work from 4-5pm through to 4-5am. On other days of the week, the accused would get home earlier than 4-5am.
NB said that when the accused first met the children, he appeared to have a ‘very sweet’ relationship with them but that changed after he moved in, at least in relation to KW. The accused became aggressive and argumentative with KW whereas, according to NB, he spoilt AW and ZW.
For my part, I did not find the evidence about the accused’s ‘relationship’ with, or the suggestion of differential treatment of KW on the one hand and ZW and AW on the other, to be particularly helpful or insightful. It is unsurprising that the accused’s introduction into the W family’s home environment might have caused some disruption and that KW, given his age, might have been less than enamoured with the accused. Equally, it is unsurprising that the younger children may have received more attention.
Returning to the evidence, NB said that the accused began staying the night at Largs North and it was during this period of their relationship, before their marriage, that NB installed a lock on her bedroom door to ensure their privacy. NB denied that she installed the lock so that the children did not become aware that she had someone sleeping over. She said that the accused was ‘pretty much living there at that time’ so this did not concern her. However, she agreed she had told police that ‘Around the time I started seeing [the accused] I put a lock on the inside of my bedroom door. It was for my privacy because I didn’t want the kids to know I had someone over.’[8] Accepting she made this statement to police, NB explained it was intended to refer only to that period of her relationship with the accused before she introduced him to the children.
The accused moved into Largs North - commencement of the alleged abuse –2012
[8] T366.
ZW’s evidence
When the accused moved into the Largs North home, ZW described her relationship with him as ‘good’ and said that she ‘really liked him’. However, their relationship changed ‘pretty soon after’ because he began doing ‘inappropriate things’ to ZW in her bedroom.
ZW gave evidence that when the accused moved into the Largs North home he was working as a taxi driver and would typically work night shifts. She said he would return home in the early hours of the morning, around 4-5am, enter her bedroom and sexually abuse her by ‘dry humping’ her.
On the complainant’s evidence, the alleged abuse must have commenced when she was eight years old. Sexual intercourse was first alleged to have occurred when the complainant was 10 years old.
Conduct of this kind subsequently took place in NB’s bedroom.
In cross examination ZW confirmed that the alleged abuse commenced prior to the marriage between the accused and NB and ‘pretty quick into the relationship’. For this reason, ZW said she was unhappy about the marriage, although she was pleased for her mother. She later said the dry humping in her bedroom began ‘shortly after [she] had met’ the accused.
ZW could not remember whether MB was living at Largs North when the accused moved in but she accepted that MB would spend the night at the house from time to time and would sleep in Lounge 1 or with ZW in the bedroom marked as ZW’s bedroom on P2.
ZW agreed that MB would sometimes drop her and her siblings off to school and pick them up. She said further that when attending [L] Primary School, she and her brother would ride their bikes to school or catch the bus. When they attended [LB] Primary School, they would ride their bikes to school or walk.
NB’s evidence
At the time she commenced her relationship with the accused, NB had a number of medical issues. She had suffered from a heart condition since she was 12 years old. She experienced a number of mini strokes, kidney failure and bouts of pneumonia over time. Her medical conditions sometimes required hospitalisation for extended periods, during which either MB or the accused would look after the children.
NB said that MB lived at the Largs North house ‘on and off’, because of NB’s medical issues. MB would stay at the house for a period of weeks, then ‘take off for…two weeks, then come back for four weeks. So very transient’.[9] When she stayed at Largs North, MB would use the room marked as ‘AW’s room’ on P2.
[9] T319.
NB said the accused moved into the Largs North house about a month and a half after they started seeing each other. This evidence suggests the accused moved into the house in around late February / early March 2012. Thereafter, the accused paid for most household bills and expenses outside of rent, which was paid for using NB’s Centrelink benefits.
At this time, MB was still living at the house and NB would occasionally leave one or more of the children with MB while she attended to errands and the like. NB gave evidence about an occasion that she left ZW, who was asleep at the time, home alone with the accused to visit the local DVD store. When she returned home, ZW was sobbing uncontrollably and told NB to never ‘leave her alone again’.
ZW did not give evidence of any such incident and I do not consider NB’s evidence on this matter helps me in resolving the issues to be determined.
NB said that either the accused or her mother would take her to medical appointments. On occasions where MB would attend a medical appointment with NB, the children would be left with the accused and vice versa.
After the accused moved into Largs North, NB would see him in ZW’s bedroom, sitting on the bed with ZW and watching videos on his phone. On one occasion, NB saw that the accused was on ZW’s bed and under the blanket with her. NB asked him why he was under the blanket and he replied ‘because I’m cold’. She also observed the accused, ZW and AW in the master bedroom and they would occasionally ‘play fight’.
NB said that after the accused moved into Largs North, ZW’s general disposition changed from a ‘happy kid’ to being ‘sooky’. She also wet the bed from time to time in the first year that the accused lived at Largs North. NB never spoke to ZW about the bed wetting.
Returning to the accused’s work routine, NB said that she would sometimes be awake when the accused would arrive home from work. The accused, she said, would walk into the house with his belt undone and the zipper to his pants down. Sometimes NB would remain in bed but on other occasions she would follow the accused to the kitchen where the accused would make a cup of tea. In cross examination, NB said that on one occasion she questioned the accused about having his pants undone when he entered the house after work. She said he responded ‘shut the fuck up’.
NB said that on occasions she would see the accused go into ‘kids rooms and he’d just stay in the room and then come back out’. Sometimes NB would see the accused emerge from the kids’ rooms; other times she would not. In cross examination, NB said the accused would sometimes administer a ‘night prayer’ to ZW and AW when he got home from work at 4 or 5am. She said he would go into the girls’ rooms while they were sleeping for this purpose.
AW and KW’s evidence
AW, who was born in December 2007 and who was therefore around four and a half years of age when the accused moved into Largs North, was asked to detail her experience and observations of the accused’s behaviour towards her and her sister after he began living with them. I do not intend to summarise AW’s evidence in answer to these questions. Given AW’s age throughout this period, I do not consider her evidence to be of any real assistance to me on this topic.
Similarly, KW was asked about his impressions of the accused when he moved into the Largs North house. KW said he felt that the accused favoured ZW and AW. I found this evidence of little help when examining the forensic issues in the trial.
Alleged offending in ZW’s ‘bedroom’
The first incident of ‘dry humping’ – 2012 - Particular (a)
ZW described the first occasion on which something occurred in her bedroom. She said the accused had entered her room when she was sleeping, removed his work clothes (which comprised a white shirt, white singlet, black ‘suit’ style pants, a belt and shoes), and got into her bed, lying behind her. The accused, it was alleged, commenced ‘dry humping’ ZW’s bottom and upper legs. ZW said she could feel the accused’s erect penis up against her. She said further that the accused placed his hand under her t-shirt and onto her chest. ZW asked ‘what are you doing’ and the accused, it was said, responded ‘I’m just trying to get warm’. The accused continued what he was doing and placed his hand on ZW’s pubic bone, on top of her clothing.
ZW said this incident occurred at around 5am. She knew it was around this time because that is when the accused would get home from work and, from time to time, he would return home with pancakes from McDonalds for the family.
After 5-10 minutes, the accused removed himself from ZW’s bed, re-dressed and left the bedroom.
In cross examination it was put to ZW that prior to giving evidence she had not described any particular episode of dry humping in her bedroom as being the ‘first time’ that such an act took place. Whilst ZW was unable to clearly address this proposition, it was an agreed fact[10] that ZW had described a discrete incident of ‘dry humping’ in her bedroom in an affidavit dated 14 December 2020, but had not labelled that incident as the ‘first time’ such an act occurred.
[10] P21, [17].
Subsequent episodes of ‘dry humping’ – 2012 - Particular (a)
ZW said that incidents of this description thereafter occurred five times a week, early in the mornings.
Issue with respect to ZW’s bedroom
I pause here to note that in ZW’s evidence in chief, it seemed clear that ZW was describing events alleged to have occurred in the bedroom she had marked as ‘my room’ on P1 and ‘ZW’s room’ on P2.
In her evidence in chief, ZW was taken to a floor plan of the Largs North property that she had prepared prior to trial (P1). She said that floor plan depicted the layout of the house during the time she lived at Largs North. On the floor plan, ZW had identified specific bedrooms for herself, KW, AW and NB. By reference to P1, ZW was asked if the children all had their own bedroom and she responded ‘yes, that’s right’.
ZW had labelled her bedroom ‘my room’ and had drawn the location of her bed in the room. She described KW’s room as the bedroom directly above the room marked ‘lounge’ (which I have earlier referred to as Lounge 1) and AW’s bedroom was, in turn, the bedroom directly above KW’s.
During the course of her evidence, ZW prepared a supplementary floor plan of the Largs North property (P2). In P2, ZW identified her bedroom as the same bedroom she had described on P1 as ‘my bedroom’. However, she inverted the position of KW and AW’s bedrooms.
In her evidence in chief, it was not suggested by ZW that the bedroom of hers in which the ‘dry humping’ occurred was any room other than that which ZW had marked on P1 and P2 as her room.
However, in cross examination, ZW said that the siblings swapped rooms growing up and that ‘abuse did occur in each of the [hallway bed]rooms’ on P2. It was an agreed fact that despite having given three statements and participating in a proofing on 17 April 2023, ZW had not mentioned prior to trial that she had occupied different bedrooms at the Largs North house.[11] She said further that when the dry humping first began, her room was in fact the room marked as KW’s room on P2 and that it was in that bedroom that all of the dry humping occurred prior to it commencing in the master bedroom.
[11] P21, [15].
ZW agreed that her disclosure during cross examination that dry humping occurred in each of the bedrooms in the hallway at Largs North was the first time she had suggested as much.
In re-examination, ZW said that she described a particular bedroom as her bedroom on P1 because that was the last bedroom she occupied before the family did the house swap to Dudley Park.
It was said by the prosecutor that there was in fact no inconsistency with respect to this aspect of ZW’s evidence in that she had described the dry humping occurring in ‘her bedroom’ which embraced any bedroom that she may have occupied from time to time.
I have difficulty accepting that contention bearing in mind the tenor of ZW’s account in chief. At no point in her evidence in chief did ZW suggest that dry humping in her bedroom meant dry humping in the bedrooms marked as KW or AW’s room on P2 but which she happened to occupy at a point in time. Irrespective of how the matter was articulated in her affidavits, there was, in my view, a difference in her evidence in chief and cross examination on this topic. However that difference is potentially at least explained by the evidence of NB on the topic of bedrooms.
NB gave evidence that the children’s bedrooms were ‘changed’ at the Largs North house. They also slept in Lounge 1 from time to time. NB said that ZW and AW shared the bedroom marked as ZW’s bedroom on P2 before AW moved to the room marked as AW’s bedroom. AW was thereafter moved into the master bedroom, next to the window on the accused’s side of the bed, because she was not sleeping well.
The bedroom marked as KW’s bedroom on P2 was, for the most part, KW’s bedroom. There were bunk beds in KW’s bedroom.
AW gave evidence that the room marked as ZW’s bedroom on P2 was in fact, for the most part, ZW’s bedroom although the children moved rooms from time to time.
Contrastingly, KW gave evidence that the room he described as his room on P14 was always his room and that ZW and AW stayed in the rooms he had ascribed to them on the floor plan he prepared.
Alleged offending in the master bedroom
At some point after the alleged abuse commenced in ZW’s bedroom, the accused, it was said, began abusing ZW in the master bedroom. ZW said the accused would call her into the master bedroom and sexual activity would then take place. When challenged in cross examination on why she would continue to respond to the accused’s calls in those circumstances, ZW explained that she did what she was told and that it would have been disrespectful not to comply with the accused’s calls to her. ZW said further that she did not recognise the calling out to her as part of a pattern leading to abuse.
Returning to the transition of alleged abuse to the master bedroom, ZW was initially unable to say for how long dry humping had occurred in her room before it commenced in the master bedroom. However she subsequently said that the first episode in the master bedroom was only a few months after the accused had moved into Largs North.
In cross examination, ZW said abuse began occurring in the master bedroom ‘a couple months’ after it started in her bedroom. She said, further, that abuse in her bedroom continued even after it commenced happening in the master bedroom but ‘my mum’s bedroom was the dominant place where it would occur’.
This was contrary to what ZW had said in an affidavit dated 14 December 2020, namely that when the dry humping commenced in NB’s bedroom, the accused stopped going into ZW’s bedroom.[12]
[12] P21, [19].
When confronted with the inconsistency, ZW explained that the abuse happened frequently, in different places and at different times.
It was agreed further that in her affidavit of 14 December 2020, ZW had alleged that the dry humping in her bedroom had continued for a year before commencing in the master bedroom.[13] Putting this aspect of ZW’s affidavit together with the suggestion that the dry humping in her bedroom stopped when the alleged abuse commenced in the master bedroom, the evolution in ZW’s narrative was not insignificant.
[13] P21, [18].
First incident in NB’s bedroom – dry humping – 2012 - Particular (b)
ZW described the first episode of alleged abuse in NB’s room, which, as I have said, she claimed occurred just ‘a couple of months’ after the accused had moved into Largs North, in the following way:
AIn that first occasion [GG] had called me into his room, and I had gone in there, and he was laying in bed with a singlet and just his underwear on, under the blanket. And I had sat on the far end of the queen bed and he then would hook me under my armpits to pull me into bed. And he would give me his phone, and I remember at that time he gave me his phone and I had watched some YouTube videos, prank videos, and while he - and while I was watching the YouTube videos he'd pull my pants down, while I was laying on my left side of my body, and he would put his penis on my bum or in between my bum.[14]
[14] T26-27.
According to ZW, the accused lowered her pants and underwear such that he was pressing himself up against the skin of her bottom. This continued for around 10 minutes.
ZW said this episode took place during the day and she was unsure where the other members of the household were. She said further that the accused also showed her pornography on his mobile phone during this first episode in NB’s bedroom.
On the basis of ZW’s evidence that this event occurred ‘a couple of months’ after the accused moved into Largs North, it would appear that this conduct is alleged to have taken place sometime in 2012. I have already discussed the chronological issues arising in this respect in light of ZW’s affidavits.
Subsequent episodes of ‘dry humping’ and watching pornography in NB’s bedroom – 2012-2013 - Particulars (b), (h)
According to ZW, the accused continued to dry hump her in NB’s bedroom four to five times a week thereafter. These incidents would occur when NB was cooking dinner; when other members of the household were out; or, if KW was at home, when he was playing computer games in his bedroom.
When this conduct occurred when NB was at home, the accused would close the hallway door, which opened into Lounge 1 and through which one would have to walk in order to get into NB’s bedroom. However, the accused would leave the door to NB’s bedroom slightly ajar, notwithstanding this door was lockable.
ZW said that from NB’s bedroom, it was possible to hear someone opening the hallway door. The effect of ZW’s evidence was that the accused would close the hallway door so that he would have early warning of anyone approaching the master bedroom.
When these incidents occurred when no-one else was at home, the accused would lock the master bedroom door.
ZW said that on other occasions when abuse allegedly occurred in NB’s bedroom, the accused would call ZW into the room and ZW would get into bed with him. The accused would get behind ZW, touch her chest under her clothing, lower her pants and underwear and ‘put his penis around [her] butt’. ZW would often be watching YouTube videos on the accused’s phone during these episodes. Occasionally, the accused showed ZW pornography.
In cross examination, ZW agreed she had told police that the dry humping in the master bedroom occurred six times a week and not four or five times as she had described during her evidence in chief.
ZW said further that the accused would get up out of the bed in the master bedroom to close the doors after he had called ZW into the bedroom. ZW agreed she had not previously mentioned this in her police affidavits.
NB’s evidence
NB said that from the master bedroom and with the bedroom door open, one could hear the hallway / Lounge 1 door being opened if the house was quiet and the television was off. If the bedroom door was closed, it was not possible to hear the hallway / Lounge 1 door being opened.
NB’s health issues – alleged abuse during hospitalisations – 2012-2013 - Particular (b)
ZW gave evidence that in 2012-2013, NB had a number of health issues, including rheumatic heart disease. NB’s health issues occasionally required her to spend time in hospital, sometimes for up to a week. ZW said these hospital visits occurred on a monthly basis. The medical records tendered by the prosecution do not appear to support ZW’s evidence about the extent of NB’s hospitalisations during this period.
ZW said that the children’s grandmother, MB, would look after them when NB was hospitalised.
ZW said that some of the incidents of ‘dry humping’ would occur when NB was in hospital.
ZW said further that NB would routinely attend doctors’ appointments once or twice per week throughout 2012-2013, during which time NB would be away from the house for around 45 minutes to an hour. ZW did not suggest that any sexual activity took place at these times.
Sexual activity in the kitchen at Largs North – Particular (a)
ZW also described sexual activity occurring in the kitchen at the Largs North home. These episodes would occur in the context of ZW getting something to eat or attending to her chores in the kitchen. The accused would come up behind her and press his crotch into her backside. Episodes of this kind occurred three times a week when other people were in the house but not in the kitchen area.
Sexual intercourse – Particulars (d), (e), (f), (g)
In 2014, ZW moved from [L] Primary School to [LB] Primary School where she commenced Year 5.[15]
[15] P21, [11].
The accused had sexual intercourse with ZW for the first time that year. It appears ZW would have been 10 years old at the time as she did not turn 11 until December 2014.
ZW was unable to say over what period of time dry humping had been occurring in the master bedroom before the first episode of penetrative sex took place.
First occasion of sexual intercourse – NB’s bedroom – 2014 – Particular (e)
The first occasion of sexual intercourse occurred during daylight hours but ZW did not know how long after she commenced at [LB] Primary School the incident occurred. ZW was initially unable to say whether anyone else was at home, but she said the door to the bedroom was locked. In cross examination, ZW said her mother was in fact out of the house the first time sexual intercourse took place.
ZW said the accused called her into NB’s bedroom. He was in the bed, wearing underwear and a singlet. He lifted the blanket and invited ZW into the bed. The accused lowered ZW’s pants and underwear and placed his penis against her bottom. He touched her on the chest and then reached into a bedside drawer and removed a condom. In cross examination, ZW said the condom had come from a blue box.
The accused then engaged in sexual intercourse with ZW as she laid on the bed, during which he kissed ZW on the mouth and moved her hands to his lower back and through his hair. After 5 to 10 minutes, the accused removed himself and went into the ensuite bathroom. He returned to the bedroom and encouraged ZW to drink some water.
ZW described feeling sad, angry and betrayed in the aftermath of the incident, but she did not disclose the abuse. She said that, at this time, her relationship with the accused was otherwise ‘great’ and he and NB considered her to be the ‘golden child’. ZW said that the accused had made a positive impact on ZW and her family’s life and that, essentially, she was concerned about disturbing the status quo.
Condoms
It is convenient at this point to deal with the topic of condoms. As noted above, ZW gave evidence that on the first occasion of sexual intercourse, the accused retrieved a condom from a bedside drawer.
She said further that there were times when the accused would retrieve a condom from a tallboy in the bedroom. As an adult, she recognised the condoms as being of the ‘Lifestyle’ brand. ZW was not able to say what the accused would do with the condom wrappers after removing the condom from its packaging.
NB said that prior to the accused moving into Largs North, they used condoms in their sexual relationship. After the accused moved into Largs North, they ceased using condoms. However, NB said that there was a packet of condoms in the accused’s bedside drawer in the master bedroom. She also gave evidence of discovering condom wrappers in the master bedroom:
QYou mentioned that you saw some condom wrappers on the ground, is that right.
AYeah. It was like cleaning, whenever I would clean the room out there was a condom wrapper or two. It was just like 'Where are they coming from?'.
QAt that period of time when you saw those wrappers you weren't using condoms with the accused.
ANo.
QDid you ever speak to the accused about seeing those wrappers.
AYeah. He was just dismissive and say 'I don't know' .
QDo you recall what colour the wrappers were.
ABone.
QI am sorry if I have already asked this. Do you recall roughly how long after the accused had moved in when you started seeing these wrappers or when you saw the wrappers.
AI saw them a lot, it was, you know, like when you rip it it is like the top wrapper. It wasn't the bottom part. It was just the top when you rip it off. That was all the time when around. Around the top of the rip.
QDo you recall what year you started seeing those.
AAll throughout. They were just popping up.
QSo if you got married I think you said in April 2012 was it a long time after that, a short time, something else.
AThroughout the whole marriage while he was living with me at Largs North they were just popping up.[16]
[16] T331-332.
It will be recalled that ZW’s evidence was that sexual intercourse did not commence until 2014 – at least 18 months or thereabouts after the accused and NB married which does not sit with NB’s evidence about observing condom wrappers ‘throughout the whole marriage’.
In cross-examination on this topic, NB said she did not want condoms kept in her bedside table because the children would look through her drawers for loose change. She said that she could not remember asking the accused to store condoms in the tall chest of drawers in the master bedroom. NB accepted that she had said in her statement of 10 January 2021 that ‘a few old condoms’ were kept in ‘our bedside tables and in our big chest of drawers’.
NB said that condoms were only used as a contraceptive method in the early stages of her relationship with the accused and during a period of time when the accused was experiencing a genital rash. NB confirmed that she saw fragments of condom wrappers after she and the accused ceased using them for contraception and throughout the time they lived at Largs North prior to the temporary move to Dudley Park. NB could not recall if she continued to see pieces of condom wrappers at Dudley Park or following the return to Largs North. She reiterated her evidence in chief that she made these observations ‘a lot’ prior to the Dudley Park move.
NB accepted that the first time she disclosed to police her observations related to condom wrappers was in a statement provided on 17 April 2023 – not long before the trial commenced. The circumstances in which this late disclosure came about were not ventilated but the evidence was that NB had provided two earlier statements on 14 December 2020 and 10 January 2021 and, it would seem, neither statement made reference to her discovery of portions of condom wrappers in the master bedroom throughout her marriage to the accused.
When this topic was re-visited, NB confirmed that when she asked the accused about why there were condom wrappers in the bedroom, he simply responded ‘I don’t know’. She said she did not turn her mind to whether the accused was using condoms in their bedroom other than with her because she ‘didn’t want to think that’. NB said she was very ‘submissive’ to the accused and was ‘dopey’ during this period, which she later clarified in re-examination to mean she was ‘foolish and can laugh and just accepted anything from [the accused]’.[17]
[17] T411-412, 436.
I pause here to say that I found NB’s evidence on this topic unpersuasive. Whilst bearing in mind the prosecution’s conceptualisation of the family dynamic throughout this period and what was suggested to be NB’s reliance on the accused, I found her explanation about her conversation with the accused and her response to his apparent reaction to be disingenuous. It struck me as inherently implausible that a person in NB’s position would entertain such a dismissive response to observations of this kind, made regularly and over an extended period and which really permitted of only two apparent inferences – namely, that the accused was being unfaithful to her or there was something untoward occurring within the household, a matter to which NB would have been particularly attuned in light of her own experiences. It is also of concern that NB did not raise this issue with police until shortly before trial. Given she was aware of the general nature of the allegations ZW made against the accused – having been the initial complaint witness – it is surprising to say the least that NB failed to disclose her observations during the course of the investigation until just before trial.
Subsequent episodes of sexual intercourse – NB’s bedroom – 2014 – Particular (e)
ZW said that after the first incident of penetrative sex, intercourse took place around five times a month or once per week, when other family members were home and when they were out.
Cunnilingus in the dining-lounge room – Particular (f)
ZW described what she said was the sole episode of cunnilingus occurring on a lounge suite located in Lounge 2.
At the time, ZW was lying on an L-shaped lounge (as marked on P2) watching Foxtel, which had just been installed in Lounge 2, and which then became the dominant living area. The accused joined ZW. He removed her pants and underwear and positioned her legs in the air as ZW lay on her back on the lounge. The accused performed cunnilingus.
ZW said this incident occurred on an afternoon, sometime between 1pm and 4pm. She was unsure whether anyone else was home or whether it occurred on a weekday or the weekend.
Curiously, ZW said that at the time of this incident, she had been living at the Largs North house for two years. According to the agreed facts, this means the act must have allegedly taken place in late 2012 or 2013 which gives rise to some issues in reconciling the chronology of events in light of the uncertainty surrounding ZW’s evidence about the period over which ‘dry humping’ occurred in her bedroom and subsequently the master bedroom.
Under cross examination, ZW accepted that she had not previously disclosed that the act of cunnilingus allegedly took place between 1pm and 4pm. ZW said she had not mentioned the timing of the event previously because she had not remembered it when providing her statements.
Furthermore, it was put to ZW, and ultimately the subject of an agreed fact, that despite having provided affidavits to the police on 14 December 2020 and 29 December 2020, the first time ZW disclosed an alleged act of cunnilingus was in her affidavit dated 6 November 2021.[18] Explaining the failure to mention the episode of cunnilingus in her first two affidavits, ZW said that when she provided her third affidavit in November 2021 there were additional details she recalled.
[18] P21, [22].
In her evidence, ZW said further that the incident involving cunnilingus took place after acts of penile vaginal intercourse had been occurring. It was an agreed fact that ZW had told police that the sole act of cunnilingus alleged against the accused occurred before the first act of penile vaginal intercourse.[19] ZW maintained that her evidence about an act of cunnilingus taking place was true and that the variation in her memory was the by-product of a ‘decade long of sexual abuse’.[20]
[19] P21, [21].
[20] T186.
Anal intercourse – ensuite – 2013 - Particular (g)
ZW gave evidence that the accused engaged in anal intercourse with her on one occasion. She was unable to identify with any particularity when that act took place, save that she said it ‘happened after the sexual intercourse, so I would have been 10’ and about ‘a year’ after the accused had moved into the Largs North property, potentially placing the episode in 2013.
ZW said further that the act of anal intercourse occurred when it was dark outside and she could not recall whether anyone else was home. She said she had been in Lounge 1 and had used the ensuite bathroom. After using the toilet, the accused had told her to spread her legs to each side of the door frame and to place her hands on the ensuite vanity. He then engaged in anal sex with her. ZW said she experienced pain in the aftermath of this activity but was emotionally unaffected as sexual activity was ‘not a new thing, so I was used to it’.
I pause here to observe that the complainant’s evidence in this respect did not reconcile with her evidence about the timing of the first act of penile vaginal sexual intercourse. It will be recalled that ZW said penile vaginal sex first occurred in 2014 when she was in Year 5 at [LB] Primary School. The complainant’s evidence that anal intercourse occurred after penile vaginal intercourse but within a year of the accused moving into Largs North, is incompatible with the chronology she provided. These discrepancies in the timeline need to be considered when evaluating the credibility and, in particular, the reliability of ZW’s account.
In cross examination, ZW agreed that she had not disclosed the anal sex incident until her affidavit of 6 November 2021, despite having provided affidavits to the police on 14 and 29 December 2020, when, ex hypothesi, the event had more recently occurred.
The request for silence
Although she was unable to contextualise it, the complainant gave evidence that the accused had told her not to tell her mother about the sexual activity that was taking place. ZW said the request was accompanied by a gesture the accused made with his hands, whereby he pressed his fingertips against each other.
Conversation about inappropriate touching and bed wetting
Whilst the complainant did not disclose what was occurring to anyone throughout the course of the alleged abuse, she gave evidence that her mother raised the topic of sexual abuse with her in an unidentified context. ZW did not, in answer to NB’s inquiry, disclose what the accused had allegedly been doing to her because the accused was present for the conversation.
ZW said further that after the first incident in her bedroom, she began wetting the bed.
It was an agreed fact that the first time the complainant mentioned this conversation was during a proofing session on 17 April 2023. She said then that NB raised the topic prior to the accused engaging in penetrative sex with her. NB asked if ZW had been sexually abused because she was wetting the bed.[21] I have earlier mentioned NB’s evidence that ZW began wetting the bed in the first year that the accused lived at Largs North. NB said that she did not speak with ZW about bed wetting.
[21] P21, [16].
Additionally, it was put to ZW in cross examination that during their time at Largs North, NB had told ZW that she, NB, had been sexually assaulted. ZW agreed that NB had told her who had assaulted her and how.
NB said she could not remember discussing her history of sexual abuse with ZW.
Visitors to Largs North and the accused’s trips to India
I turn now to the evidence concerning visitors to the Largs North property and the accused’s absence from the house due to him taking trips back to India.
I have said earlier that part of the defence case was that it was implausible for the accused to have offended against the complainant with the frequency she alleged because the Largs North house was a busy house and there were often relatives and friends of NB staying there.
ZW agreed that family members would visit and stay at the Largs North property. She agreed that her aunty S stayed at the property for some time but she could not remember for how long or in which room S slept.
There was extensive cross examination of the complainant, by reference to photographs (D8) and more generally, about who stayed at the house and for how long. The complainant agreed that:
·Her uncle DE stayed at the house on a number of occasions.
·Her uncle KN and his family, including six children, stayed at the Largs North home for some time and those of school age were in fact enrolled at [LB] Primary School throughout this period. From photograph 2 in D8, it would appear that KN and family may have been staying at Largs North as at September 2014.
·Her grandfather, FP, would stay at the house with his partner, after the accused had moved in.
·Her aunty DB and her husband stayed at the house more than once.
·NB’s sister, CB, stayed at the house at some point.
None of these potential witnesses gave evidence at trial.
NB also gave evidence about friends and relatives staying at Largs North. By reference to page 2 of D8, NB said that KN, his partner and their children stayed at the Largs North home for an extended period of time, during which their children attended [L] Primary School with ZW. When KN and his partner stayed at Largs North they occupied the room marked B on D12, otherwise described on P2 as KW’s room. Their children slept in ZW’s bedroom and in Lounge 1.
NB said that other family members, DE, S, FP and DB also stayed at the house. When S stayed at the house, she occupied KW or AW’s bedrooms (rooms A and B on D12). NB’s brother, DE, would stay at Largs North on occasions and sleep in the carport.
The second aspect of the defence case on opportunity was that, throughout the charged period, the accused travelled to India on numerous occasions for weeks at a time. On the defence case, the accused’s absence from the house was important, not because it denied him of any opportunity to commit the alleged unlawful sexual acts, but because the complainant gave no evidence of any interruption in the frequency of the dry humping and penetrative sex over a number of years. That is to say, the complainant’s account was that dry humping occurred four to five times a week and sexual intercourse occurred five times a month or once a week from 2012 onwards and 2014 onwards respectively, without adverting to any hiatus in the frequency of the offending because, for example, the accused was overseas. I note however that ZW said the frequency of intercourse reduced substantially in 2015-2016 after the family returned to Largs North following a period living at Dudley Park.
It was agreed that the accused travelled to India on the following occasions:
Travel Dates
The accused travelled to India between the following dates (inclusive):
·22 March 2013 to 7 April 2013
·18 March 2015 to 19 April 2015
·17 November 2015 to 26 December 2015
·19 September 2017 to 27 October 2017
·15 May 2019 to 15 June 2019.[22]
[22] P21, [10].
The move to Dudley Park - 2015
In 2015, ZW, AW, NB and the accused moved into a two bedroom unit at Dudley Park, where they remained for four to six months. ZW and AW shared a bedroom at Dudley Park.
The unit was previously occupied by MB and her partner. Because of medical treatment that MB’s brother was undergoing in Adelaide, it was agreed as between NB and MB that the families would essentially do a ‘house swap’ so that MB, her brother and other family members could occupy the larger Largs North home. KW remained living at Largs North with MB and other family members.
During their time at Dudley Park, ZW studied Year 6 at [CG] Primary School.[23]
[23] P21, [11] – school records indicate that ZW was enrolled at [CG] Primary School between 23 June 2015 and 21 October 2015.
Sexual activity at Dudley Park – 2015 – Particulars (a) and (c)
ZW said that sexual activity continued at the Dudley Park unit. She described, in particular, an episode when no-one else was at home, during which she alleged that the accused pushed her up against a wall in an uncharacteristically aggressive way, before pressing his crotch into her backside, touching her breasts and licking her ear.
Sexual intercourse at Dudley Park – 2015 – Particular (e)
ZW spoke of an occasion of penile vaginal sexual intercourse taking place at the Dudley Park unit, in the bedroom occupied by NB and the accused. She was unable to provide any details surrounding that episode but recalled that no-one was home at the time.
ZW said she could only remember sexual intercourse occurring once at Dudley Park.
The return to Largs North – 2015 and 2016
In late 2015, the family returned to the Largs North house and ZW re-commenced her schooling at [LB] Primary School. In 2016, ZW moved into Year 7. At this time, KW moved to Ethelton to live with his grandparents.
According to ZW, sexual activity resumed following the return to the Largs North property.
Sexual activity and sexual intercourse – Largs North – 2015-2016 – Particulars (b) and (e)
ZW described ‘dry humping’ and a resumption in sexual intercourse, although with less frequency. She said that penetrative sex took place approximately once per month in NB’s bedroom.
The trip to Yalata – digital penetration – March 2016 - Particular (d)
In late March 2016,[24] ZW and her siblings, NB and the accused went on a family trip to Yalata.
[24] See D8, pp 8-10.
ZW said that the family took two cars to Yalata. NB’s car, a Toyota Kluger, towed a trailer. The accused drove the second car in which the family’s dogs travelled.
On the return journey, ZW travelled with just the accused and the family’s rottweiler. She was not aware of how it came about that she travelled separately to her mother and siblings.
The accused was following behind the Toyota Kluger, being driven by NB, but the Kluger was a considerable distance ahead.
ZW said that late at night on the way back to Adelaide, she woke to the accused trying to open her legs to touch her vagina over her clothing. ZW described what happened thereafter as follows:
A… And he - after he tried to touch it over my clothes, he had leaned over to where his fingers were in my vagina and his palm kind of on my pubic area and he tried to finger me while we was driving in the car. While he was doing that, I was just trying to go back to sleep and just pretend - pretending to be asleep while I was- I was awake throughout that incident. After he had touched my vagina with his fingers, he had then pulled into a servo which I remember because at that point I opened my eyes and then he had driven through the back of the servo to a dark part of the service station and then from that he had parked the car and turned the car off and - I'm just taking a moment here, sorry. He had then unbuckled his seatbelt and then had tried to have sex with me in the car while I was reclined back in the passenger seat. It - no intercourse had happened there because the car was too small and squishy, so that did not happen, but he had gotten on top of me in the car.
QAnd when he got on top of you, where were your pants and where were his pants.
AMy - I can remember my pants still being on and his pants was kind of - it was - his pants were down but his jocks was on and he was just trying to position himself to where the penis could reach my - where his penis could reach my vagina, but it was, again, too squishy to do so - for him to do so.[25]
[25] T74-75.
In cross examination, ZW described the accused putting his hands on her leg and ‘in and on my vagina’.[26] ZW explained that after the events at the service station, the accused and ZW caught up with the car being driven by NB. They all had dinner at a Kentucky Fried Chicken store somewhere on the route back to Adelaide. ZW agreed that she had not mentioned stopping at a KFC on the way back to Adelaide in any of her police statements.
[26] T217.
Exhibit P20 records that, on the most direct route from Yalata to Adelaide, there are KFC stores at Whyalla, Port Augusta and Port Pirie.
NB gave evidence that she took three trips to Yalata with the accused and the children accompanied them on two occasions. On the first trip, the group travelled in a silver Toyota Kluger with a trailer. On the second trip, the group travelled in the Kluger and the accused drove his employer’s car which later became an issue as the accused’s employer needed the vehicle returned to him which required the accused to leave Yalata earlier than planned. NB was unsure whether ZW or KW remained in Yalata when the accused returned to Adelaide.
Move to Ethelton – 2017-2018
After completing Year 7 at [LB] Primary School, ZW moved to her grandparents’ home at Ethelton, which was closer to [L] High School where ZW undertook Years 8 and 9.[27]
[27] P21, [11] – ZW was enrolled at [L] High School from 30 January 2017 to 24 October 2018.
ZW continued to see the accused throughout the time that she lived at Ethelton. She would visit the Largs North house on weekends and during school holidays. NB would also visit ZW on the Yorke Peninsula.
Throughout this period, the accused was essentially NB’s carer. He would assist her with medical appointments, medication and generally look after NB. The accused continued to make financial contributions to the household.
With respect to ongoing sexual activity during this period, ZW said that ‘dry humping’ continued to take place but she was unable to remember if penetrative sex occurred.
ZW said that she continued to spend time with the accused because he was still part of the family unit. Her relationship with the accused at this time was ‘civil’, owing principally to her living away from home and not feeling the same level of betrayal or hatred that she did when living with the accused and experiencing frequent sexual abuse.
NB gave evidence that, around this time, she considered ZW did not like the accused ‘around her personal space’. NB said ‘I started noticing that to the point where she didn’t want – if she were in the kitchen doing chores she didn’t like no-one in the kitchen area’.[28] When pressed on this topic, NB elaborated:
AShe would - if anyone was there she didn't want no-one around but [GG] would walk close to her or something like too close to her and she would say 'I don't want you in here, can you please get out' or she would just ask 'Can you please get out and I want no-one in the kitchen while I'm cleaning'.
QYou observed that or witnessed that.
AYeah.[29]
[28] T346.
[29] T351.
I do not make anything of this evidence. It was vague and, at one level, ZW’s disposition was directed to anyone in the kitchen while she was cleaning. I do not consider that this evidence lends any support to the proposition that ZW was manifesting a dislike for the accused because he had been sexually abusing her.
NB and the accused separate
In 2018, the accused moved out of the Largs North home at the request of NB. Nonetheless, NB and the accused continued to see each other frequently as the accused was essentially NB’s carer.
NB said the accused remained heavily involved in family life and would attend ‘dad and daughter dates’ with ZW and AW.
AW also gave evidence about the accused’s ongoing involvement in their lives after the separation. She said that the accused would take her, and sometimes ZW, out for walks or shopping for toys, to the movies or other activities.
Move to Seacombe Gardens – mid 2018
When ZW was half-way through her Year 9 school year, she moved to Seacombe Gardens, where NB, AW and KW commenced residing on 3 August 2018.[30]
[30] P21, [6].
ZW was then attending [W] School.
The accused remained involved in ZW’s life as he was NB’s carer and he also took ZW and AW out on what were described by ZW as ‘dad and daughter dates’. These were outings where ZW, AW and the accused would go to the cinema, beaches, shops and do various other activities. NB gave evidence that she was aware that the accused would take ZW and AW on these outings and buy them treats.
In her evidence in chief, ZW said the accused would pay for those outings and items purchased during them.
Prosecution submission – buying ZW’s silence
It was suggested by the prosecutor that this constituted a form of ongoing grooming or endeavour by the accused to buy ZW’s silence. I found that submission, and the evidence on this topic generally, unpersuasive. The accused was ZW’s step-father. ZW and AW were school children and had no means to pay for these outings or any purchases. I do not consider that the evidence supports the proposition that the reason the accused took ZW on these outings and purchased various things for her was as a device to secure ZW’s ongoing silence about the alleged abuse.
Dry humping at the accused’s share house – 2018 – Particular (a)
Returning to the chronology, when ZW re-located to Seacombe Gardens, the accused was living in a share house at Morphettville. ZW described an incident occurring in the accused’s bedroom of the share house, which ZW only visited in company with AW and the accused.
The incident occurred after a ‘dad and daughter date’. AW was lying in the accused’s bed watching his phone. ZW was on a mattress on the floor of the bedroom trying to find something to watch on television. The accused got onto the mattress with ZW and crawled under the blanket covering the mattress. He began making ‘wrestling’ or ‘play fighting sounds’ and whilst doing so, positioned himself in between ZW’s legs and began ‘dry humping’ ZW’s ‘vaginal area’. According to ZW, the accused was wearing only his underwear and a singlet which was not unusual for him. ZW was fully clothed. Multiple telephone calls from NB interrupted the incident and shortly thereafter, ZW and AW returned to the Seacombe Gardens home.
ZW accepted in cross examination that she had not disclosed the ‘wrestling incident’ at the accused’s share house until she provided her third affidavit in November 2021.
AW gave evidence that she visited the accused’s places of residence post separation and that on one or two occasions, ZW accompanied them. AW did not give any evidence supporting an occurrence at the accused’s such as the one described by ZW.
Move to Point Pearce – October 2018
In or around October 2018, ZW moved from Seacombe Gardens to her aunty’s house at Point Pearce, where she commenced studying at [CY] School.[31]
[31] P21, [11] – ZW was enrolled at [CY] School from 24 October 2018 to 10 December 2021.
After her move to Point Pearce, ZW continued to visit NB and the accused and ‘dad and daughter dates’ still occurred. The accused continued to be NB’s carer.
ZW did not suggest that sexual activity occurred on occasions when she would visit her mother and the accused after she had re-located to Point Pearce.
ZW completed her secondary schooling at [CY] School on 10 December 2021.
In cross examination, ZW agreed that after NB and the accused separated there was no reason for her to initiate contact with the accused. She acknowledged, however, that she would communicate with him via social media and text messages.
Return to Seacombe Gardens
In late 2020, when ZW was undertaking Year 11, she returned to the Seacombe Gardens property to live with NB. In anticipation of her return to the home, ZW said that NB had picked a bedroom suite for her with matching furniture and bed frame that the accused had then purchased and collected.
Last occasion of penetrative sex – September 2020 – Particulars (a) and (e)
ZW gave evidence that the last time penetrative sex took place was in September 2020, on the day she obtained her Learner’s Permit. It was an agreed fact that ZW obtained her Learner’s Permit on 1 September 2020.[32]
[32] P21, [8].
ZW said that, together with KW and NB, she had sat the Learner’s Permit test in Kadina before driving back to Adelaide. That night, NB experienced a panic attack that required hospitalisation. The accused was called to attend the Seacombe Gardens house to look after the children.
The medical records and agreed facts do not establish a hospital admission for NB on 1 September 2020. The agreed facts indicate that on 26 August 2020, NB was admitted to Flinders Medical Centre overnight for a presyncopal episode.
After NB had left the house via ambulance, the accused got into NB’s bed where ZW was on her phone. The accused got on top of ZW and began dry humping her vaginal area. Both were fully clothed at the time. The accused’s motion caused the bed to begin squeaking. Presumably to avoid detection by KW and AW, the accused suggested that he and ZW go to his house, which they duly did. I pause here to observe that by this stage, ZW, who was almost 17, had been living away from the accused for an extended period and the accused was no longer her mother’s partner.
After arriving at the accused’s house – which was another share house[33] – the accused took ZW to his bedroom and engaged in penile vaginal sex with her using a condom.
[33] See P5.
After five minutes or so, ZW told the accused to stop. He did. He got off ZW and sat on the end of the bed for a short time. ZW dressed and the accused drove her home.
The complainant explained what prompted her to tell the accused to stop, for the first time, on this occasion:
AI just, I guess - no, I just couldn't deal with it anymore. I couldn't live my life - sorry. It was something that I've known for a very long time, close to a decade of this happening to me and I just wanted it is to stop and I wanted to - I wanted to - I wanted it to stop. I didn't want to have to live like I was living two lives; a life with [GG] - a life with [GG]and a life with my family including [GG]. I couldn't stand it anymore. I couldn't stand, like, being treated and having to keep experiencing it again because it was so usual to me. I just was fed up and I was just - I just - excuse me. I couldn't deal with it anymore. It was, again, for a decade long. I had enough of it. It was everything I've known with [GG] and it was - my first experiences was with [GG] and it's just, I was tired of it. I was tired of what was happening, what [GG] was doing to me. So that's why - that's why I had told him to stop, and I'm - I was surprised that he did, yep.[34]
[34] T88.
In cross examination, it was put to ZW, and she subsequently agreed, that the first time she mentioned the ‘last occasion’ of sexual activity taking place in the master bedroom at Seacombe Gardens was in her affidavit of 6 November 2021.
NB’s evidence
NB gave evidence about ZW obtaining her Learner’s Permit. She said that after ZW passed the test in Kadina, they returned to Adelaide but she was unable to recall whether she had any particular medical episodes around that time. She did however describe an admission to hospital in November 2020 on account of a panic attack.
NB said she was still experiencing health issues and when they arose, she would contact the accused who would attend upon her as he was then living nearby in Mitchell Park.
NB said that after they returned to Adelaide from Kadina, ZW stayed at the Seacombe Gardens property. NB thought it was school holidays at the time and that ZW remained at Seacombe Gardens until she needed to return to the Yorke Peninsula for school.
NB gave evidence that the king sized bed she had at Seacombe Gardens was ‘very squeaky’.[35] In cross examination, NB agreed that she had not disclosed in any of her police statements that the bed she had at Seacombe Gardens was ‘squeaky’.
[35] T354, 429.
Purchase of the BMW and messages between ZW, NB and the accused
ZW gave evidence that the accused had bought her a BMW for completing Year 11. She understood the car was a gift from the accused and her mother.
In cross examination, ZW said she was unsure who had purchased the car. She said that she had determined to purchase a car in the lead up to the acquisition of the BMW. ZW had sent the accused messages about cars she was interested in (D9, D10 and D13).
The messages between ZW and the accused in relation to the purchase of a car commenced in June 2020 and continued through to 3 September 2020. The messages leading up to 3 September 2020 disclose, on their face, a relationship of mutual love and affection as between ZW and the accused. One lengthy message from ZW to the accused, which appears to have been sent in mid-June 2020 (although it is not entirely clear) and which forms part of D10 is in the following terms:
i appreciate everything you do for me, you’ve given a LOT of stuff for us. i don’t wanna drain you from money or stress you out. cause i know that’s what you think. i’ve learnt a lot from you and mum but you probably don’t realise it but i do. i value the things you’ve and mum done for us. One day i’ll be able to give you both $300-$600 for whatever you want. And spoil you both. i don’t want you and mum to worry about anything when you’re older. i know i’m mean and stuff but i’m gonna make you proud :) buying my own car is the start of my success. i wanna be successful to honour the sacrifices you and mum have made for the three of us. Even tho you both CRAZY AS HELL i still love you. I just need support and guidance not your money haha i can get that bag in my own
Mrs Powell, in her address on behalf of the accused, invited me to reject the complainant’s evidence as lacking credibility and reliability. She argued that there were too many aspects of the complainant’s evidence that presented as implausible, inherently unlikely and unpersuasive to permit me to conclude beyond reasonable doubt that the accused committed the charged offence.
Mrs Powell submitted that ZW’s evidence about how the abuse allegedly commenced was a striking example of the implausibility of her account, noting that it was reasonably common ground that when the accused moved into the Largs North house, he had spent very little time with ZW and would have been ‘a virtual stranger in her bed’. Mrs Powell said that the suggestion that, in those circumstances, he took the bold step of getting into her bed in the early hours of the morning in a state of undress and sexually abusing her given the relatively close confines of three of the four bedrooms of the house and ZW’s unfamiliarity with him, was fanciful. She added that as MB was also living at the house throughout this period, the opportunity to act in this manner must have been limited and, moreover, the risk attaching to such brazen offending was amplified.
Mrs Powell emphasised, in addition, that ZW’s evidence about the bedroom she was occupying when the ‘dry humping’ began occurring was troublesome, particularly given ZW had made no reference at all in her affidavits to occupying different bedrooms. Mrs Powell submitted that the clear impression conveyed by ZW’s evidence in chief was that dry humping commenced in the bedroom marked as her bedroom on P2, and her later suggestion in cross examination that that activity in fact commenced in the bedroom marked as KW’s on P2 and took place in all bedrooms, cast serious doubt on the reliability, if not credibility, of ZW’s evidence.
Mrs Powell also drew attention to the inconsistency in ZW’s evidence that sexual abuse began in the master bedroom just a few months after it commenced in her bedroom and her assertion to police that activity in the master bedroom did not in fact commence for a year. Mrs Powell added that the suggestion that the accused would dry hump ZW in the master bedroom when NB and the other children were home was unbelievable and that ZW’s evidence that this activity also took place when NB was in hospital during these early years was not supported by NB’s hospital records.
Mrs Powell argued further that ZW’s evidence about the frequency and timing of the ‘dry humping’ activity in her bedroom was improbable; not supported by the accused’s employment records, P17; and incompatible with the fluidity of the sleeping arrangements as described by most of the witnesses. Mrs Powell said that the fact the accused was required to knock on the window to the master bedroom when he returned home from work in the early stages of the marriage to gain entry to the house because he did not have a key, such that NB would have been aware of his presence, rendered it all the more unlikely that the accused was able to sexually abuse ZW after work in the manner alleged.
Remaining with the themes of plausibility and opportunity, Mrs Powell referred to the number of visitors that attended and stayed at the Largs North house, which she argued further eroded the accused’s opportunity to engage in frequent and brazen sexual misconduct. This argument, Mrs Powell contended, also needed to be appraised by reference to the uncontested evidence that the accused travelled regularly to India for lengthy periods during his marriage to NB; a matter with which ZW’s evidence did not reconcile.
Mrs Powell also pointed to ZW’s evidence that she had caught the bus or ridden a bike to primary school, which was contradicted by NB’s evidence and the accused’s evidence that MB or NB would take her to school in the mornings. Mrs Powell said that ZW’s evidence on this seemingly insignificant topic was in fact quite significant because it was connected with ZW’s unwillingness to unequivocally accept that MB in fact lived at the Largs North house in the early stages of the accused’s marriage to NB and the difficulties that MB living at the house presented to ZW’s narrative.
Mrs Powell traversed the particularised acts of sexual abuse and I do not propose to repeat the detail of her submissions on such matters.
I mention just a few of the additional contentions she advanced. As to the sole act of cunnilingus which ZW alleged, Mrs Powell submitted that I could have no confidence in ZW’s evidence given there was a delay in her raising this allegation and that ZW had given inconsistent accounts about whether this act occurred before or after penetrative sex had commenced and had introduced new details into her account when giving evidence.
In relation to the allegation of anal intercourse, Mrs Powell argued that the complainant’s failure to mention that episode until November 2021 and after she had already provided numerous affidavits to the police was a serious shortcoming that could not be swept aside. Mrs Powell contended that the incident – which was the sole incident of that kind – might be expected to have stood out in ZW’s memory for various reasons, which made it troubling that ZW had omitted reference to it in her earlier affidavits.
With respect to the Yalata trip, Mrs Powell highlighted the differences across the accounts of ZW, NB and the accused – although she acknowledged the common thread was that both ZW and the accused gave evidence of driving back to Adelaide in the car together. Mrs Powell suggested that the accused’s preparedness to be frank about driving home alone with ZW stood to his credit, particularly in light of NB’s evidence. Mrs Powell further argued that ZW’s description of the accused’s sexual advances in the front of the car at a service station during this return trip was implausible, relying on the confined space for such activity to take place by reference to D7.
Moving to the last alleged act of intercourse, Mrs Powell contrasted the effect of the medical records (P19) and the agreed facts, which she submitted did not support a hospital admission for NB on 1 September 2020, and ZW’s evidence that the last act of abuse occurred on the day she obtained her Learner’s Permit (1 September 2020) and in the context of NB being admitted to hospital for a panic attack. Mrs Powell said that the link that ZW had therefore drawn between the last occasion of sexual activity, the obtaining of her Learner’s Permit and NB being admitted to hospital was contraindicated by the documentary evidence and agreed facts. Furthermore, it was submitted that the allegation of sex on 1 September 2020 was irreconcilable with the loving and affectionate text messages sent by ZW on 3 September 2020 (D9). Mrs Powell said moreover that these text messages revealed ZW’s capacity for deceit given, according to her evidence, she never loved the accused yet was prepared to tell him she did and express her gratitude to him in these messages.
As to NB’s evidence, Mrs Powell argued that her account about finding condom wrappers was internally inconsistent and incompatible with common sense. Mrs Powell submitted that if, as NB claimed, she repeatedly discovered condom wrappers in the master bedroom throughout her marriage to the accused when she was not engaging in sex with him using condoms, a more vigorous response and taxing of the accused would be expected. Remaining with the topic of condoms but returning to ZW’s evidence, Mrs Powell argued that in any event, ZW’s evidence about the use of condoms could not be treated as esoteric knowledge given the condoms were kept in the master bedroom for some years and there was evidence that the children were occasionally inclined to explore drawers and the like in the master bedroom.
Ultimately, Mrs Powell submitted that the accused’s evidence was coherent and plausible and his denials could not be rejected as a reasonable possibility but, in any event, even if I did reject his evidence in its totality, the complainant’s evidence, Mrs Powell argued, was incapable of sustaining a verdict of guilty beyond reasonable doubt.
Analysis
As I said at the outset of these reasons, the primary forensic contest between the parties was whether it has been proved beyond reasonable doubt that the accused committed at least two unlawful sexual acts against the complainant.
The prosecution case in proof of this element of the offence hangs solely on the evidence of ZW.
ZW gave evidence that was generally coherent, detailed and considered. She presented as a mature young woman who endeavoured to do her best over many days of giving evidence to respond to probing questions. There were times when the complainant’s demeanour was perhaps unusual in that there were frequently very long pauses between conceptually simple questions being put to her and her response – which, on many occasions, was to request that the question be repeated. However, I consider this was likely a reflection of the care and attention that the complainant brought to the exercise of giving evidence about very serious allegations. I also accept that the circumstances in which ZW complained to NB and the content of her complaint demonstrates a degree of consistency of conduct on ZW’s behalf that in turn lends some support to my assessment of her credibility and reliability.
Overall, I formed a reasonably favourable impression of ZW.
However, there are aspects of ZW’s evidence and, in particular, some significant inconsistencies and omissions, including important failures to disclose key events in a timely way, that give me reason to pause. I mention here the curious and late suggestion by ZW that dry humping commenced in her bedroom which, despite the way she had marked P1 and P2 which she used as a guide when giving her evidence in chief, was not in fact the room she had labelled as her room, but another bedroom altogether. It is fair to say that mistakes of this kind are not infrequently made and may be readily explicable, but ZW had not previously mentioned in any of her affidavits to the police that bedrooms had been rotated and her evidence in chief conveyed the distinct impression that dry humping commenced in the bedroom she had marked as ‘ZW’s bedroom’ on the exhibits.
There was, in addition, the confusion in her evidence about how long dry humping continued in her room before it started up in the master bedroom, which creates some uncertainty in the timeline of events, and whether it continued in her bedroom after it commenced occurring in the master bedroom, contrary to what she had told the police.
The complainant’s evidence about dry humping in the master bedroom also evolved to include reference to the accused getting up to close the bedroom door when others were home – a matter she had not previously adverted to.
Perhaps more significant were the complainant’s failures to disclose the alleged acts of cunnilingus and anal intercourse until she provided her third affidavit to the police. I accept in this respect that human memory works in unpredictable and occasionally non-linear fashion such that a witness might be forgiven for omitting reference to every detail of a particular event or assimilating certain incidents into a perfectly harmonious timeline. However, the episodes of cunnilingus and anal intercourse were two of only a handful of specific incidents that ZW was able to describe and each occurred only once. Whilst ZW’s inability to recall and particularise acts of penetrative sex might be explained by what she said was the frequency and duration of such activities, the same cannot be said of the episodes of cunnilingus and anal intercourse.
In those circumstances, I consider that the cogency of ZW’s evidence about the allegations of cunnilingus and anal intercourse was undermined by her failure to disclose those allegations in either of her first two affidavits.
The same observation may be made about the ‘wrestling’ or play fighting incident at Morphettville, which ZW did not mention in her first two affidavits and which account was ultimately not supported by the evidence of AW – who could not have been more than metres away from ZW and the accused when, according to ZW, the accused began dry humping her, albeit under the cover of a blanket.
Equally, ZW failed to mention until her affidavit of November 2021 that on the last occasion on which sex took place, there was anterior sexual activity at the Seacombe Gardens house which came to an end because the bed was squeaking.
There is, however, a commonality to the late disclosures about matters of substance and that is they all took place in November 2021. It may well be that the nature of the statement taking process on that occasion was more involved or incorporated a different approach that encouraged more comprehensive disclosures by ZW, but I cannot say and there was no evidence before me about the circumstances in which the third affidavit was obtained.
To my mind, it is the accumulation of these shortcomings in ZW’s account, viewed together with the text messages passing between the accused and ZW in mid to late 2020 that is significant. I have earlier described those text messages as demonstrating, on their face, a relationship of mutual love and affection between ZW and the accused which is arguably incompatible with the suggestion that the accused had been sexually abusing the complainant over the preceding eight years. I find equally troubling the complainant’s expressions of love and gratitude for the accused in light of her sworn evidence before me that she never really loved the accused and that her disposition towards him throughout their relationship was essentially a pretence designed to facilitate her getting from him what she could to make up for the abuse he put her through.
If that is the explanation for the text messages, they do, as Mrs Powell submitted, suggest a preparedness and a capacity to engage in somewhat duplicitous behaviour, albeit understandable if the underlying premise is accepted. However, ZW did not strike me as manipulative or calculating and I would prefer an interpretation of the messages that they genuinely reflected her attitude towards him at the time, which is of course problematic for the prosecution case.
Aspects of the complainant’s allegations also struck me as being unreliable or inherently unlikely, at least in some respects. I mention in this context her evidence about the frequency and duration of sexual misconduct, which was bold, brazen and apparently went undetected for many years in a busy and reasonably confined household environment. Nonetheless, whilst these features of ZW’s account are relevant and important to an assessment of her evidence, they would not, by themselves, dispose of the inquiry into whether the prosecution had proved its case.
Bringing to account all of the matters which I have traversed throughout my reasons and counsel’s arguments about the complainant’s evidence, I am not of the view that I can reject ZW’s evidence as fundamentally untruthful or unreliable. I do not accept everything that the complainant says but, as I have said, I considered that she appeared to be, in the main, a witness who was endeavouring to tell the truth throughout much of her evidence.
However, that is insufficient to find the accused guilty beyond reasonable doubt.
NB’s evidence supported aspects of the complainant’s account. For example, NB gave evidence that confirmed that there were occasions where the accused was solely responsible for the care of the children such that the opportunity to offend with a reduced risk of detection might have arisen. NB also described seeing the accused go into the children’s bedrooms some nights when he returned from work, although I add that it struck me as somewhat unlikely that the accused would allow himself to be seen entering ZW’s bedroom in these circumstances if his objective was to create an opportunity to abuse ZW. It struck me as equally unlikely that NB would not keep the accused under observation in those circumstances, particularly in the early stages of their marriage. Moreover, NB’s evidence was that MB spent a lot of time at the Largs North house throughout the early stages of the marriage which must have reduced the opportunity for frequent sexual abuse of the kind alleged.
NB’s evidence about the circumstances in which the complaint was made to her is generally consistent with the complainant’s account on that topic.
The evidence of NB about her discovery of portions of condom wrappers in the master bedroom throughout her marriage to the accused has the potential to support the complainant’s account, but it is not capable of corroborating it. That is because evidence of the presence of parts of condom wrappers does not implicate the accused in the alleged offending. If accepted, however, NB’s evidence supports and is consistent with an important feature of the complainant’s account.
As I said earlier in these reasons, whilst I generally considered NB to be a reasonable witness, and there were many aspects of her evidence that were not disputed, I found NB’s evidence on the topic of condom wrappers to be unpersuasive. In particular, I found her account of the manner in which she confronted the accused to be wholly disproportionate to what would have been the significance of the discovery of condom wrappers throughout their relationship. From NB’s perspective, the most realistic and likely explanation for the presence of the wrappers must have been that the accused was using them in the course of an extra marital affair, which one might have expected would prompt a far more exacting and pressing inquiry from NB. The only other theoretical explanation for the presence of the condom wrappers was that some other form of untoward sexual behaviour was occurring in the house and without NB’s knowledge and this too surely would have provoked a more persistent inquiry from her.
I do not accept the prosecutor’s submission that NB’s evidence on this topic had a ‘ring of truth’ to it. To the contrary, it appeared to me to be somewhat artificial.
Moreover, I am troubled by NB’s non-disclosure of her discovery of condom wrappers until she participated in a pre-trial proofing in April 2023. In light of what she must have known at least generally about the nature of the allegations her daughter was making against her ex-husband (having regard to the terms of the complaint), I consider it is inherently unlikely that this detail could have slipped her mind for two and a half years until just before trial.
For these reasons, I am not prepared to accept NB’s evidence that she saw portions of condom wrappers in the master bedroom throughout her relationship with the accused and which were not related to sexual activity between NB and the accused.
The accused gave evidence denying the allegations put against him. Contrary to the submission of the prosecutor, and as was the case with my assessment of ZW, I considered that, generally, the accused gave coherent, measured and considered evidence in a language which is not his native language. His account was for the most part, although certainly not universally, logical and, in some respects, supported by external evidence in the form of contemporaneous photographs and various aspects of the evidence given by prosecution witnesses.
As was the case with ZW’s evidence, there are passages of the accused’s account that I find curious or which I do not accept. I mention in particular his implausible evidence that he was never alone in a room with ZW prior to the move to Dudley Park and that he never got into ZW’s bed even, for example, to give her a hug or re-assure her about something. The accused’s evidence in this respect seems at odds with his endeavour to portray his relationship with the children and ZW in particular as a loving, caring and affectionate one. There is considerable force in Ms McKendrick’s submission that the accused was attempting to minimise his opportunity to offend and this reflects adversely on his credibility and reliability.
I also consider that the accused’s evidence about the return trip from Yalata with ZW and, in particular, her reason for wanting to return home, to be unsettling. As Ms McKendrick pointed out, the timing of the trip back to Adelaide so that, amongst other things, ZW could ‘return to school’, does not seem to fit with what is known of the school term dates. It may be accepted however that the Yalata trip was generally proximate to the end of term 1 which might make the apparent non sequitur in the accused’s evidence explicable. Of more concern however was the accused’s evidence that on their return to Adelaide, ZW slept on the floor of the master bedroom in a sleeping bag. There was no apparent need for ZW to do so and that was not a practice which any of the witnesses, including the accused, said had applied prior to that time. The accused’s explanation for why ZW slept on the floor of his bedroom – to the extent he could advance one – was unconvincing. Nonetheless, as Mrs Powell submitted, it is somewhat to his credit that he was frank about the sleeping arrangements given that ZW did not give evidence to this effect and I bear in mind that ZW does not allege that any sexual activity occurred after the two returned to Adelaide.
The last matter I mention specifically concerns the accused’s evidence about the purchase of the BMW. I found his evidence that he in fact intended to buy the car for himself but then readily acquiesced in NB’s requests of him to gift it to ZW to be disingenuous. The text messages in D9, D10 and D13 demonstrate that ZW had been pursuing the purchase of a car throughout the latter part of 2020 and it seems an unlikely coincidence that the accused had decided, in this context, to buy himself a reasonably inexpensive second hand car – although I acknowledge his evidence that he was having some mechanical issues (albeit minor) with the Suzuki he had purchased after returning from Yalata some years earlier. Nonetheless, my impression of the accused’s evidence on this topic was that he was trying to distance himself from the prosecution contention that he had bought the car in furtherance of his desire to silence ZW. As I have earlier said with reference to the accused buying ZW other items or spending money on her, I do not accept the prosecution submission that the purchase of the car was motivated by a desire to silence ZW – there are many reasons why a person in the accused’s position, who ZW referred to as ‘dad’ and who, on his evidence, had treated NB’s children as if they were his own, might purchase a car for a step-child. What was significant, to my mind, was not the act of buying the car for ZW but, rather, the somewhat unconvincing explanation given by the accused that he had in fact bought the car for himself but then so readily agreed to it being given to ZW.
Ultimately however, and as was the case with my assessment of ZW, there was no feature of the accused’s evidence or characteristic of his presentation as a witness that caused me to think that his evidence was fundamentally and universally untruthful or unreliable.
The dilemma that this presents is that I am left with two irreconcilable accounts, both of which appear to me to bear characteristics consistent with truthful evidence at least in various, albeit non-exclusive respects, but which are quintessentially mutually exclusive.
Having heard and re-considered all of the evidence given at trial and reviewed the exhibits, I have arrived at the conclusion that I am unsure where the truth lies in this matter.[41] The detail and care with which the complainant gave much of her evidence does give me reason to suspect that there were untoward interactions between the accused and the complainant but the misgivings I hold about the accused’s evidence are not sufficient for me to conclude that his denials can be rejected as not reasonably possibly true.
[41] R vCalides (1983) 34 SASR 355, 358.
I find myself unable to reach a conclusion to the criminal standard that the accused committed at least two unlawful sexual acts against ZW. I do not know who of two apparently generally credible and generally reliable witnesses was telling me the truth. It follows that I am not satisfied beyond reasonable doubt that the charge has been proved.
Verdict
My verdict, in those circumstances, must be not guilty.
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