R v H, CS - [2016] SADC 23

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, C S
Criminal Trial by Judge Alone
[2016] SADC 23
Reasons for the Verdicts of His Honour Judge Stretton
15 March 2016
CRIMINAL LAW
The accused was charged with 9 counts of sexual offending and one count of aggravated assault of his step-daughter over several years while the complainant was between the ages of 11 and 15. Eventually the complainant ran away from home, later moving in with her boyfriend, and after an apparent nightmare disclosed the alleged abuse. The complainant was 20 at the time of trial. The prosecution case depended entirely on the evidence of the complainant. The accused gave evidence at trial denying the charges and called other evidence.
Held: The charges against the accused are proven beyond reasonable doubt.
Criminal Law Consolidation Act 1935 ss5AA(g), 20(3), 49(1), 49(3), 56, 56(2) and 58; Evidence Act 1929 ss18, 34L, 34P, 34R and 34Q, referred to.
BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; Aiken v R [2014] NSWCCA 213; Markou v R [2012] NSWCCA 64; R v R, R & R, LJ [2008] SASC 35; R v T, WA [2014] 118 SASR 382; R v C, G [2013] SASCFC 83; R v C [2013] SASCFC 137; R v C, M [2014] SASCFC 116, considered.

R v H, C S
[2016] SADC 23

The accused C S H is charged with sexual and other offending against his step-daughter the complainant.
Overview
The complainant was born in April 1995. Her parents had a rocky relationship and separated when she was about five years of age. Her mother retained custody of the children.
Not long after that, the complainant’s mother formed a relationship with the accused. The complainant’s mother together with the complainant and the complainant’s brother moved into the accused’s Taperoo house.
The accused readily undertook the role of father to the two children, who called him ‘dad’ from the outset. It is clear the accused formed a good relationship with and was popular and liked by both the complainant and her brother.
On the other hand, the complainant and her mother did not enjoy a good relationship. There was often conflict. There is little dispute that theirs was not a close relationship and that the complainant was shown limited love and affection by her mother.
Over time the new family moved between several addresses.
At the age of 15 the complainant ran away from home, initially living with her adult sister, then her biological father, before forming a relationship and then moving in with her current partner J, and having their first child. The complainant is now 20 years old.
About a year into that relationship, when J asked her about her disturbed sleeping, the complainant told him that she had not had the best upbringing with the accused, having had a sexual relationship with him and having done things with him as she was growing up, that activity having only stopped when she left home.[1]
[1] T 158.
The complainant then spoke to her adult sister, and ultimately a complaint was made to the police. The complainant alleged years of sexual activity with the accused.
The accused was arrested, interviewed and charged with the offences before the court. Whilst that interview was not tendered at trial, evidence was given of the fact that the accused answered police questions and denied any wrongdoing.
The accused pled not guilty to all charges.
Trial by Judge alone
The accused elected to be tried by a judge rather than a jury.
The course of trial
The complainant gave evidence that from about the age of 10 the accused initiated sexual contact with her, which soon became a regular and ongoing part of their relationship. This would often take the form of an activity which was codenamed ‘big hugs’, often involving the accused lying on his back and the complainant straddling him so that their genitals would rub. She also identified an occasion of oral sex, two occasions of vaginal sex and a single brief but painful attempt at anal sex.
She gave evidence that shortly before she decided to stop living with her mother and the accused there was an argument between her and the accused over what she was wearing, in the course of which she refused to comply with the accused’s wishes as to what she was wearing, and he ultimately slapped her.
The complainant’s partner gave evidence as to the circumstances of the initial complaint.
The accused gave evidence on oath in his defence, denying the alleged offences and any sexual contact with the complainant.
The accused called the complainant’s mother and brother who gave evidence critical of the complainant and as to a number of surrounding circumstances said to be relevant to aspects of some of the charged offences.
Agreed facts and various exhibits were tendered.
Legal principles
The court has applied all the standard legal principles applicable to a criminal trial that would be explained to a jury were this a jury trial. It serves no purpose to recite them all here. Whilst sufficient reasons must of course be given to sufficiently explain the verdict,[2] a trial judge, sitting alone, is not obliged to express all the matters “which necessarily have to be stated to a jury, unfamiliar with … the basic principles of law.”[3]
[2] BCM v R [2013] HCA 48; Douglass v R [2012] HCA 36 at [14]; R v Keyte (2000) 78 SASR 68; AK v Western Australia (2008) 232 CLR 438; and Aiken v R [2014] NSWCCA 213.
[3] Markou v R [2012] NSWCCA 64 at [19]; R v R, R & R, LJ [2008] SASC 35 and R v T, W A [2014] 118 SASR 382.
It is sufficiently important however to repeat that the accused commences the trial with, and at all times retains, the presumption of innocence. The prosecution at all times bears the onus of proof, and must prove each element of a charged offence beyond reasonable doubt before an accused may be convicted of that offence, and must do so based only on the evidence relevant to that offence. The court must consider each alleged offence separately, having regard only to the relevant and admissible evidence concerning that charge.
The prosecution case was that the charged events were specific occasions of offending that the complainant could identify and remember by reference to other events and dates, but that unlawful sexual contact was an ongoing feature of the relationship between the accused and the complainant over several years.
Evidence was led without objection as to the whole course of events during which it is alleged the charged offences occurred, and in doing so reference was made to ongoing and in that respect uncharged sexual offending.
As no objection was taken to the evidence it was unnecessary to formally consider the application of section 34P of the Evidence Act 1929 which addresses the admissibility of evidence amounting to discreditable conduct.[4] In the court’s view the evidence was in any event plainly admissible and the permissible use of the evidence substantially outweighed any prejudicial effect.[5]
[4] R v C, G [2013] SASCFC 83, R v C [2013] SASCFC 137.
[5] Evidence Act s.34P (2)(a).
The evidence was necessary to explain the nature of the relationship between the accused and the complainant, put it and the alleged offending into context, and to explain why the complainant might react to, comply with and even initiate the sexual conduct that occurred between the accused and the complainant on the charged occasions.[6] The evidence must not be used for any other purpose, and the court does not use it for any other purpose.[7]
[6] Evidence Act s.34R.
[7] Evidence Act s.34Q.
In particular, the court must not reason that by virtue of any uncharged offending that the accused is or may be guilty of any of the charged offences, nor that because of any uncharged conduct the accused is of bad character or a bad person and for that or any related reason is or may be guilty of the charged offences. Nor should the court reason that by way of any uncharged conduct that the accused is either more likely to have committed any of the charged offences or had any kind of propensity to commit the charged offences.
The accused in this case gave evidence on oath. The accused was not obliged to give evidence. He had the right to remain silent in answer to the charge, leaving it to the prosecution to satisfy the court of all the ingredients of the charge. In this case, however, the accused elected to give evidence on oath. He is entitled to credit for adopting a course that he was not obliged to adopt. In assessing his evidence and the weight to be given to it, the court approaches the task in exactly the same way as with any other witness, always bearing in mind however that the accused bears no onus to prove anything and that it at all times remains for the prosecution to prove each and every element of an offence before an accused may be convicted of that offence.
In this trial it was put to the complainant that she had made prior inconsistent statements, primarily in the sense of not having included in her initial statement to police all the detail that she has now recounted in her lengthy evidence in chief. I have scrutinised these matters carefully in accordance with the settled law as it applies to suggested prior inconsistent statements.
Whilst there is no point setting out the detailed instructions reflecting the law that would be given a jury, in short the prior inconsistent statements of a witness in a criminal trial are put to enable a court to assess whether it can accept the evidence given on oath as reliable or credible, and the court must and has closely scrutinised the matters put to the complainant and her responses and applied the settled law concerning the analysis of them, in assessing her credibility and reliability.
Both counsel agree that the prosecution case rests entirely upon the evidence of the complainant. The court has accordingly closely scrutinised her evidence, and done so with great care.
In part for that reason, the court will set out the complainant’s evidence in more detail than it might ordinarily do. It will not all be set out, however it has all been closely considered.
In this case, the evidence of the complainant and the accused are starkly opposed. The accused flatly denies every one of the many allegations of charged and uncharged offending made by the complainant. It is important to observe that in a case such as this it is not a matter of deciding who to believe or which of two versions of an event to accept, or who is more believable than the other, or anything of that nature. The question is always whether the prosecution has proven every element of a charge beyond reasonable doubt. The accused bears no onus, and has to prove nothing. Further, even if an accused gave evidence and were entirely disbelieved, that does not prove anything against the accused, it would still remain, and always remains, for the prosecution to prove each element of any given charge beyond reasonable doubt based on the evidence it calls at trial.
In this case it has been put by defence counsel that the complainant has a motive to make false allegations against the accused. The primary suggestions by defence counsel are that the complainant may have made up the allegations against the accused to hurt or get revenge on her mother, or to get sympathy from her own partner. Any motive to lie is relevant to the credibility of the complainant, and the court has given close consideration to all the submissions of defence counsel and to the evidence which he drew in aid of those submissions. However, it is important to recognise that it is not for the accused to provide or suggest a motive for the complainant to lie. No onus as to this or indeed anything else lies on the defence. Lies can be told for any number of reasons, indeed people can lie for no apparent reason. Even if there were no apparent motive for a complainant to lie that does not mean that the court must find that the complainant is being truthful. The absence of evidence of a motive to lie does not strengthen the prosecution case. It is neutral. At all times the prosecution bears the onus of proof beyond reasonable doubt. The prosecution must satisfy the court beyond reasonable doubt that the complainant was telling the truth.
The alleged offences
The accused is charged on information with the following offences. I refer to the named complainant only as ‘the complainant’.
First Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C S H between the 31^st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with (the complainant), a child under the age of 14 years, by causing (the complainant) to perform fellatio upon him.
Second Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Ibid).
Particulars of Offence
C S H between the 31^st day of December 2005 and the 1^st day of January 2008 at Kurralta Park, had sexual intercourse with (the complainant), a child under the age of 14 years, by inserting his penis into her vagina.
Third Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14. (Ibid).
Particulars of Offence
C S H between the 31^st day of December 2005 and the 1^st day of January 2008 at Kurralta Park, had sexual intercourse with (the complainant) a child under the age of 14 years, by inserting his penis into her anus.
Fourth Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
C S H between the 31^st day of December 2005 and the 1^st day of January 2009 at Mannum, indecently assaulted (the complainant), a person under the age of 14 years, by touching her underwear.
It is further alleged that C S H committed the offence knowing that (the complainant) was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Fifth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
C S H between the 31^st day of December 2005 and the 1^st day of January 2009 at Kurralta Park, indecently assaulted (the complainant), a person under the age of 14 years, by rubbing his penis on her body.
It is further alleged that C S H committed the offence knowing that (the complainant) was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Sixth Count
Statement of Offence
Gross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C S H between the 31^st day of December 2007 and the 1^st day of September 2009 at Kurralta Park, committed an act of gross indecency in the presence of (the complainant), being a person under the age of 13 years, by rubbing his penis in her presence.
Seventh Count
Statement of Offence
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C S H between the 31^st day of December 2008 and the 1^st day of January 2011 at Blanchetown, indecently assaulted (the complainant), a person of the age of 13 or 14 years, by kissing her on the mouth.
It is further alleged that C S H committed the offence knowing that (the complainant) was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Eighth Count
Statement of Offence
Aggravated Indecent Assault. (Ibid).
Particulars of Offence
C S H between the 31^st day of December 2008 and the 1^st day of January 2011 at Blanchetown, indecently assaulted (the complainant), a person of the age of 13 or 14 years by rubbing his penis on her body.
It is further alleged that C S H committed the offence knowing that (the complainant) was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Ninth Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C S H between the 31^st day of December 2008 and the 1^st of January 2011 at Blanchetown, had sexual intercourse with (the complainant), a child under the age of 17 years, by inserting his penis into her vagina.
Tenth Count
Statement of Offence
Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
C S H between the 31^st day of December 2009 and the 1^st of January 2011 at Blanchetown, assaulted (the complainant).
It is further alleged that C S H committed the offence knowing that (the complainant) was, at the time of the offence, a child of whom he had custody as a parent or guardian.
Elements of the offence of unlawful sexual Intercourse with a person under 14 – Counts 1, 2, 3 and 9
This offence has the following elements:
1.That the accused had sexual intercourse with the complainant. Sexual intercourse includes penetration of the vagina, labia majora or anus by any part of the body of the accused or by any object, and includes fellatio. Any degree of penetration is sufficient. Penetration for the slightest period of time is sufficient. Consent on the part of the complainant is no defence and is irrelevant.
2.That the complainant was under the age of 14 years at the time the sexual intercourse occurred.
Elements of the offence of aggravated indecent assault – Counts 4, 5, 7 and 8
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. It has the following elements:
1.That the accused assaulted the complainant. An assault is the intentional and unlawful application of force or violence to another person. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force or violence must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
2.That the assault is accompanied by, or occurs in, circumstances of indecency. In this context, the indecent circumstances must involve a sexual connotation.[8] "Indecency" is conduct which, by any reasonable contemporary standards, can only be described as indecent. Whilst in certain circumstances, if a person consents to being touched, then that is not an unlawful touching, it is impossible for a person of the age of the complainant’s alleged age[9] to consent to an act of indecency as a child is not legally capable of consenting to an act of indecency. Any apparent purported consent by a child is accordingly irrelevant.
[8] R v C, M [2014] SASCFC 116.
[9] 14 years or under the age of 14 years.
The indecent assault of a person under the age of 14 years is an aggravated offence.[10] It is unnecessary for the prosecution to prove that the defendant knew of, or was reckless as to, that aggravating factor.
[10] Section 56(2) of the Criminal Law Consolidation Act.
It is also a circumstance of aggravation if at the time of the commission of the offence the accused knew that (the complainant) was a child of whom he had custody as a parent or guardian.[11]
[11] Section 5AA(g) of the Criminal Law Consolidation Act.
Elements of the offence of gross indecency – Count 6
This offence has the following elements:
1.That the accused performed an act with or in the presence of the complainant. The complainant’s consent is irrelevant.
2. The complainant was under the age of 16 years.
3.The act must have been indecent. Indecency means some form of sexual conduct or activity which ought to be regarded as indecent, having regard to the age of the complainant and the nature and circumstances of the conduct or activity, and to contemporary standards of morality and decency.
4.The indecency must be gross. It must be something more than minor or trivial indecency. The conduct must not only be indecent but grossly indecent.
Elements of the offence of aggravated assault – Count 10

This offence has the following elements:
1.The intentional and unlawful application of force or violence to another person without their consent. The application of force need not be great. Any touching or handling would be enough. The application of force need not cause any injury. The application of force or violence must be intentional so that a purely unintended, accidental touching, for example, would not be sufficient. The application of force must be unlawful, that is, without lawful justification or excuse.
2.An assault is aggravated if at the time of the commission of the offence the accused knew that (the complainant) was a child of whom he had custody as a parent or guardian.[12]
[12] Section 5AA(g) of the Criminal Law Consolidation Act.
The prosecution case
As earlier mentioned, the prosecution case rests essentially on the complainant and both counsel addressed much of their focus in addresses upon her credibility.
The prosecution case is that her evidence amounted to a compelling and truthful story of sexual abuse, and the defence submission concerning her evidence was that her evidence alleging offending by the accused was entirely fabricated.
The court will accordingly set her evidence out in considerably more detail than it may otherwise have done. For some attempt at brevity it will not all be set out, however the court has closely considered it all and closely considered the complainant’s responses to all the matters raised with her in cross examination. The court has closely considered all of the evidence, not just those portions which are summarised, quoted or specifically referred to.
The complainant gave evidence at trial that she was now 20 years old, and one of three siblings. She has a brother some 18 months younger than her and a sister 10 years her senior.
The complainant gave evidence that when she was aged five her parents separated, and her mother then formed a relationship with the accused in this matter, C H. At around that time her older sister moved out to live with the sister’s boyfriend. The rest of the family lived with the accused at his house in Taperoo and then moved with him to Ottaway.
When the complainant was in year two the family moved to an address in Kurralta Park, and the complainant was placed at Plympton Primary School, where she eventually completed year seven in 2008. For several years during that period she did not see her biological father.
She commenced year eight at William Light High School in 2009 however during that year the family moved to Blanchetown in rural South Australia and she joined year eight at Waikerie High School, where she continued into year nine in 2010. Part way through 2010 the complainant stopped living with her mother, the accused and her brother, and left home never to return.
The complainant gave evidence that she lived with her sister for a time, then with her biological father for two years, then with her sister again, eventually moving into a unit with her boyfriend J, now her partner. She had met him in 2011. They moved into the unit in 2012. They now have a 16 month old child.[13]
[13] T 23.
The complainant then gave evidence in detail about life with her mother and the accused, from the time they moved to the Kurralta Park address. She recounted how the house was laid out and that the accused was restoring a bus in the backyard.[14] Her mother and the accused shared a bedroom and she and her brother each had their own room, except for a period when her great grandmother had lived with them. There was an above-ground inflatable swimming pool in the back yard.[15]
[14] P 2 are photos, P 3 a hand drawn plan of the house. The bus is depicted in the photos.
[15] T 30.
The complainant gave evidence that when the family had been living at Kurralta Park the accused worked on and off at a wrecker’s yard, and her mother had several jobs. As a result she was often at home alone with the accused when her mother was at work. Often her brother would be socialising with friends or on sleepovers with his friends, so it would be just her and the accused at the house.
The complainant also described the Blanchetown house and garden in some detail.[16] Similarly at Blanchetown, the complainant’s mother had two jobs and so the complainant would often be at home alone with the accused. Sometimes her brother was also there but sometimes the brother would be out.[17]
[16] P 4 are photos, P 5 a hand drawn plan of the Blanchetown house. T 31-32.
[17] T 34-35.
The complainant gave evidence about her relationship with her mother. She said that it had never been good. She said that her mother had never been affectionate, and there seemed to be very different treatment as between her and her brother. She said that he would get hugs, kisses and affection, and would be allowed to go out and also have sleepovers, and she was not. She said he seemed to be the golden child, who her mother loved ‘more than she ever loved me’. She said her mother was always yelling at her and throwing things at her.[18]
[18] T 35-36.
On the other hand, the complainant gave evidence that the accused had always been affectionate to her, giving her cuddles, kissing her good night, and buying her things. She said he loved her a lot. She said that she would call him both ‘C’, and ‘dad’. She could remember him calling her ‘princess’.[19]
[19] T 36-37.
The complainant gave evidence that when she was in year five or six her relationship with the accused began to change. She said that they began getting more affectionate with each other. She said that initially it came about when they kissed each other, or she was feeling like she needed affection, ‘C would just be loving and give me affection’. When asked how this was different to before, she said ‘we would have open mouth kisses’, and that ‘it wouldn’t be just a normal peck, it would be like making out’, with their bodies pressed together. The complainant gave evidence that the hugging changed as well, saying ‘It was more he would hold my bum and we would hold each other tight’.[20]
[20] T 39.
The complainant gave evidence that this started to occur almost every day whenever the accused had the opportunity, and would happen in various places around the house. She could recall that she was in school year five or six, making her 10 or 11 years old, at the time it started.[21]
[21] T 40.
The complainant gave evidence that at around this time the accused also started to touch himself in front of her. She said he would either be wearing clothes, a dressing gown or a purple sheet when this happened.[22]
[22] T 41.
The complainant said that they started to have something that they called ‘a big hug’, whereby if she wanted something she would have to give the accused what they both called ‘a big hug’.[23]
[23] T 47.
A ‘big hug’ would involve the accused lying on his back and the complainant sitting on top of him, with her vagina touching the accused’s penis. It would occur sometimes when they were clothed, but would sometimes be skin on skin. The complainant gave evidence that the accused would hold her hips and she would rub herself back and forth on him, which would generally continue until the accused indicated ‘ he was close’, whereupon the complainant would get off him, either by herself or with the accused’s help. She would then lie next to the accused while he masturbated himself to ejaculation. Then she would go to her room.
The complainant said that during ‘big hugs’ passionate kissing would also happen and that when she was lying next to the accused while he masturbated the accused would talk about how beautiful she was and what reward she would be getting.[24]
[24] T 54.
The complainant said that at the time this all made her feel good. She said it made her feel good physically,[25] and emotionally it made her feel wanted.[26]
[25] The complainant said that she now understands that the feeling was an orgasm, although she did not know what an orgasm was at the time; see T 50.
[26] T 48-50.
The complainant said that whenever the accused wore his robe or the purple sheet around the house when they were alone, she would know that the accused wanted a ‘big hug’.[27] She said that ‘big hugs’ happened all the time, and it would depend on how far away from home her mother or her brother were.[28]
[27] T 52.
[28] T 53.
Count 1
The complainant said she could recall a particular occasion involving the purple sheet, when something happened that had not happened before. She said that she was at home with the accused, when he called out to her to come into his bedroom. The complainant complied, and said she saw that the accused was lying on his back on the bed with the purple sheet draped over his legs, stomach and chest.
The accused then called the complainant over, pointed at his penis under the sheet and ‘asked me to kiss it’. The complainant said ‘I kissed it like he said, through the sheet’, by way of a ‘quick peck’. Then the accused moved the sheet so that he was completely naked and asked her to kiss it again. The complainant said she was a little scared, as he had never asked her to do that before. She could see that the accused’s penis was hard, ‘because it was sticking up’. She complied and kissed it for ‘just a couple of seconds’, again ‘just a quick peck’. She said it felt warm.
She then described the following events in these terms:
Q.After you kissed it in that way you just described, did he say anything else to you.
A.He said to open my mouth.
Q.When he said that to you, what was the volume of his voice; how loud did he say it.
A.Gently. He was talking not loud at all.
Q.The tone of his voice, is that the same way you described it.
A.Gently, yeah.
Q.What did you do then.
A.I opened my mouth.
Q.How far did you open your mouth.
A.Just a little bit, not much.
Q.What happened then.
A.He put his penis in my mouth.
Q.How much of his penis went into your mouth.
A.A lot of it I think. I could feel it at the back of my throat.
Q.What could you feel.
A.The top of his penis.
Q.Once it was inside of your mouth did he move it around at all.
A.No.
Q.For how long was his penis inside your mouth.
A.A couple of seconds, I'm not too sure.
Q.While it was in there, did you move your mouth at all.
A.I stayed still as a statue.
Q.What was going through your mind when this was happening.
A.I was scared. Initially I felt in control but I didn't feel in control.
Q.That had never happened to you before, he had never put his penis inside your mouth.
A.Never.
Q.Do you recall how it came to be how his penis came out of your mouth. What happened.
A.He let go of my head and I walked straight out and went to my room.
Those allegations comprise count 1 in the information. The complainant was then asked to describe aspects of how it happened in further detail, which she did. She said that this was the only time this had happened. She said she could not now recall whether the accused was circumcised, or what his penis looked like.[29]
[29] T 46.
Count 2
The complainant gave evidence that she could recall the first time she and the accused had vaginal sex.
She was 11 years old, and in year six. The complainant said that she wanted to go on the school camping trip, which had been organised to visit Aulbery[30] Wildlife Park in the Adelaide Hills.
[30] The complainant’s spelling.
The complainant gave evidence that she knew if she asked her mother if she could go on the camp, that her mother would say no, ‘because no matter what I asked mum, mum would say no. I knew whatever I asked C for he would persuade mum to do what I wanted.’
The complainant said that she talked with the accused about the camp as they walked to the shops one day. She said she asked the accused if she could go on the camp, and that it would cost money to go. The complainant said that the accused said he would talk to the complainant’s mother, but that it would mean that the complainant ‘would have to give him a bigger hug’. She said that the accused told her that a bigger hug meant his penis would go in her, but she did not know what he meant. The complainant said that she really wanted to go on the school camp, so she just went along with whatever the accused was saying.[31]
[31] T 57-58.
The complainant gave evidence that after they returned from the shops with the groceries no one else was home. They walked into the dining room. The complainant said that she was wearing a black and green ankle length dress.[32] The accused was wearing ‘greasy’ jeans.
[32] Depicted in the top photograph in document P 6, tendered and described at T 64.
The accused said to the complainant that the bigger hug ‘would feel good but it might hurt’. The complainant said that the accused then picked her up and put her on the dining room table. She said she lay down on her back and the accused pulled the complainant’s bum up off the table. She said that the accused rolled up her dress. There was no conversation at that point. The accused ‘pulled my knickers to the side and he was rubbing his hand on me and he spat on his hand…. he was touching my vagina’ and she said that he spat on his hand both before and after he touched her vagina.
The complainant said she felt scared because she wasn’t in control, and she felt like she couldn’t move. She said that after the accused spat on his hand he then put the tip of his penis into her vagina. The complainant said that it hurt, with it feeling like it was burning. The complainant said it hurt so much that she screamed and started crying; at which the accused ‘pulled himself out and he said he was sorry’.[33]
[33] T 59-61.
The complainant gave evidence that the accused then told her to go into the swimming pool, so she got her bathers and got into the pool. When she got in the pool she said that the pain was still there, but was more of a stinging sensation. She said she was still scared about what had happened, but was also thinking that she might be able to go on the school camp. The complainant then had a shower and noticed some blood on the bottom part of her bathers. She said that she felt the stinging for about another day.
At that stage in her life, she had started menstruating, but did not have a period at that particular time. She had started developing breasts.[34]
[34] T 62-63, 66.
While she was not present during any subsequent discussions between the accused and her mother about whether she could go to the camp, she was allowed to go on the camp.[35]
[35] T 156-157.
Count 3
The complainant said that ‘big hugs,’ would often occur in the bus at the back of the Kurralta Park house, as they did in various locations around the house itself. [36]
[36] T 74.
The complainant gave evidence that she could however recall a specific event that occurred in the bus while the family was still living at Kurralta Park. The complainant said that she was 11 at the time, in year six at school.
The whole family was at home, but she did not know exactly where any of them were. The complainant said she had been swimming in the pool at the back of the house, then went over to the bus to look for her mother. She was wearing her two-piece bathers. She leant her head into the bus, as she was still wet from the pool, but could not see anyone. She asked if her mother was there, however the accused answered that he was there and said for the complainant to come into the bus.
The complainant said she walked past the open wardrobes that had obscured the view to the main bedroom area and saw that the accused was laying on the main bed. The complainant said that at that time the bunk beds had not been fully constructed and were just in the form of railings, however the main queen size bed had been made and the mattress had been installed. That was where the accused was laying.[37]
[37] T 67.
The complainant gave evidence that the accused was wearing greasy black jeans and nothing on his top. She said that as soon as she walked in he got up, grabbed her arm, twisted it behind her and bent her over the bunk bed railings. The complainant said it was really painful and she was scared because the accused had never restrained her like that before.[38]
[38] T 68.
The complainant said that from where she was, bent forward over the bunk railing, from the window in front of her she could see her bedroom windows and the back door of the house. She described what happened in the following terms:[39]
[39] T 70.7 - 33.
Q.What happened then.
A.He bent me over a little bit more and it felt like he had tried to put his penis inside my bum.
Q.When you said he bent you over a bit more, what kind of angle are you making between your legs and your body, how far were you bent over.
A.I was bent over a fair bit.
Q.You said it felt like he put his penis in your bottom, is that right.
A.Yes.
Q.What could you feel.
A.I could feel the top of it going in.
Q.When you felt that was it painful.
A.Yes.
Q.Can you describe the pain.
ALike burning. It just hurt.
Q.Did that go on for a short time or a longer time.
A.A short time.
HIS HONOUR
Q.Did it actually go into your bottom, do you know, or not.
A.Yes, it did.
XN
Q.As he put his penis inside of your bottom did you say anything to him.
A.I jolted up and I said that it hurt and that it was my bum.
….
Q.When it went into your bottom what were you thinking.
A.He definitely hadn't done that before and that was something he didn't do.
Q.When this is happening had the incident you told us about in the dining room already happened.
A.Yes.
Q.So he had previously put his penis inside your vagina is that right.
A.Yes.
Q.From what you said, I gather he has never tried to put his penis inside your bottom.
A.Yes.
Q.You said you told him 'That's my bum', why did you say that.
A.Because he never touched that area and I didn't know you could go in that area.
Q.You said you jolted. As you have described as you were standing before bent over with him behind you, which way did you jolt.
A. I jolted and straightened up.
Q.Was there any further discussion between you and he after you had said about it being your bum and it was hurting.
A. No.
Q.So after you jolted up what did you do then.
A.I tried to turn to push him away from me.
Q.Where is your arm at this point, the arm that he previously had.
A.It was still behind my back and I tried to turn but he was holding it there.
Q.Why were you turning.
A.So I could get away from him.
Q.Did that work.
A.Yes, but then he tried to put it inside my vagina but I had tightened my legs.
Q.Did you feel it go into your vagina.
A. No.
Q.At the point where he was trying to put it into your vagina, how was your body positioned.
A.I was bent back over - he pushed me to go back over the railings.
Q.At that point what happened.
A.I remember W came running out of the house and C let me go when W was out the house.
Q.How did you know W had come out of the house.
A.Because I could see him as he came out the back door, he was calling out for me when he saw I wasn't swimming.
Q.Did you then leave the bus.
A.Yes.
Q.At the point that you were leaving the bus what were you thinking.
A.I couldn't believe he did that. I didn't - I didn't understand why he tried to put it in my bum. We never talked about that or anything.
Q.You talked about it hurting when the tip of his penis was in there, was there any pain after that incident.
A.Yes, it hurt a lot just to walk around and sit.
Q.How long did it last for.
A.It would have lasted a day or more than a day.
Q.Were there any other occasions when C ever tried to put his penis in your bottom again other than this one.
A.No, not that I remember.[40]
[40] T 71.5 – T 72.28.
….
Q. HIS HONOUR
Q.From what you said this was a new thing that he had done that he hadn't done before, is that right.
A.Yes.
Q.Did he say anything about it or let you know he was going to do it.
A.No, we didn't talk at all when I walked into the bus past the wardrobes. He didn't say a single word he just grabbed me.
Q.Had anything led up to it that might explain why he suddenly used force on you as against what he had done before.
A.I don't know. I don't remember. He had just never done that before. I don't know why.
Q.So what did you think when that suddenly happened.
A.I was scared and feeling confused why he - he never spoke about it before and I didn't know that people did it in the bum back then.
Q.You didn't realise that that was a kind of sex -
A.Yeah, I didn't know that.
Q.Did you talk with him about it afterwards and say 'What was that all about' or anything like that.
A.No.
Q.I am not criticising you at all for that because of course you were a child, you didn't think to ask him or did you want to forget about it or what was the situation.
A.I didn't question him. Whatever C would usually want to do I just did but it hurt too much and I didn't like it.[41]
[41] T 73.9–38.

The complainant was asked whether she understood there would be a reward for those events, and the complainant said that although there had not been any discussion about it with him prior to the event, that at that time the accused would have heard her talking to her mother about wanting to have a friend sleep over, and she had hoped he would be okay with letting the friend sleep over as well.[42]
[42] T 79.
That allegation of anal sex comprises count 3 in the information.
Count 4
The complainant said that during the time the family remained at the Kurralta Park house, there were some camping trips to the Murray River. On one occasion they went with another family who I will refer to as the M’s. That family comprised of a mother and father and 5 children. The complainant said she was 11 or 12 years old at that time.[43]
[43] T 75.
The complainant gave evidence that she had not taken bathers with her, so she asked the accused to borrow one of his tops because they were big on her. She told the accused that she would owe him a ‘big hug’ when they got home. She said the accused responded ‘that’s okay’ and gave her a t-shirt to wear.
She went swimming wearing the t-shirt and bikini bottom type knickers. She said that the accused went swimming as well, and although she does not remember who swam up to who, they became next to each other, with the accused on her right side with his arm around her. The accused was standing, however the complainant’s feet could not reach the riverbed and the accused held her up. Then with his other hand at her front the accused touched her on the outside of her knickers, running his fingers along the edge of the knickers. The complainant said that in doing this the accused’s fingertips were touching the outside of her vagina. She said the pressure was gentle and she did not mind what he was doing, ‘it was just normal to me’.
The complainant gave evidence that there was no discussion after the event about what had happened in the river. She was asked why:[44]
Q. Why is that.
A.Never talked about that, we just always – if I ever wanted a reward or he wanted something, we just called it big hugs and we just – other than that we didn’t talk about any of the sexual stuff.
Q.On this occasion was there anything in your mind that you were to be rewarded for as a result of this incident.
A.No.
Q.There was no discussion about a reward in relation to this.
A.There was nothing.
[44] T 78.27-38.
Count 5
The complainant was then asked about year seven at Plympton Primary School in 2008, and whether any particular incident occurred in that year stood out for her.
The complainant replied that she remembered an event involving her year seven graduation. She said she recalled it as it was a time when she thought that the accused was caught or almost caught out by her mother.[45]
[45] T 79.
The complainant gave evidence that she was 12, turning 13 that year. The school year seven graduation was at the end of the year.
There was to be a graduation ceremony, and after that there was to be celebration dinner for the students at the Watermark Hotel. The event at the Watermark Hotel cost money, and so the complainant had discussed it with her mother, however money was always tight and the response was ‘a maybe go, maybe not’.[46]
[46] T 80.
The complainant gave evidence that during the day her mother was working, and she had no idea where her brother was. She said she knew the accused was in his bedroom, and she saw he was laying on his bed with no top on and his pants pulled down. She was wearing her graduation dress. She said that she knew from the way the accused was laying on the bed that he wanted her to get on top of him, so she walked straight in and got on top of him, just as she would do for ‘big hugs’. They had the normal ‘big hugs’, with the complainant rubbing her vagina area against the accused’s penis area for a couple of minutes. She said she liked the feeling.[47]
[47] T 81-82.
At that point however they heard the front door close, and realised that the complainant’s mother had arrived home. The accused immediately picked the complainant up and threw her to his left side to get her off him, and the complainant hit her head on the bedside table. The accused kicked the complainant for her to get under the bed, which she did. The complainant said she was whimpering and crying. She said that her mother was getting dressed out of her work clothes and the accused was trying to rush her mother out of the room, and talking to her about calendars, as he had divided up a part of the shed for calendars that the complainant’s mother had, to do with her work.
The complainant said that the accused and the complainant’s mother then left the room together and the complainant then went to her room. They drove her to the graduation ceremony, and she was driven to the Watermark Hotel by another parent that the accused had arranged to take her.[48]
[48] T 83-84.
The complainant gave evidence that because of the blow she had sustained to her head she felt sick throughout the graduation dinner and couldn’t walk straight.
After she got home that evening the accused came into her room and spoke to her. She said he spoke softly, but in a ‘really mean’ way, and told her that she was just a kid and that no-one would believe anything she said. She said she cried when he told her that. She said that was the first time he had said anything to her like that, but from that time on he was always saying that to her. When asked why she thought there was a change, in that way, from that time onwards, she replied ‘It’s because my mum may have caught us, because I keep thinking that she has said something to him and he said something to me so I wouldn’t say anything to her’.[49]
[49] T 84-85.
The complainant was crying as she gave this evidence.[50]
[50] T 85.
Count 6
The complainant was then asked whether there was any incident she could particularly recall while she was at William Light High School in year eight. She said there was.
The complainant gave evidence that on a school morning during that period she was in the bathroom facing the mirror putting on makeup. She said she was wearing a school top and a school dress. Her mother and brother were home but she was unsure where they were in the house. The complainant said that the accused walked into the bathroom, stood there looking at the complainant and began touching his penis through his clothes, moving the palm of his hand longways where his penis was, holding his penis through his clothes. The only thing about his clothes that she could remember was the colour black.
There was no conversation and the accused continued touching himself for a couple of minutes while the complainant was putting her makeup on. The complainant said that although the accused had done it many times before, this time she felt uncomfortable. She didn’t see why he was doing it when she was just putting makeup on trying to leave for school. It seemed different to before, she didn’t like it and she wanted him to go away.
The complainant was asked why she felt different on this occasion. She replied that she had started to go to high school, she was a bit older and understood a bit more, she now had a boyfriend and she was starting to feel that what she was doing with the accused was wrong. Now that she understood more, she did not like him doing it, she wasn’t in a good mood and she just wanted to go to school. She wanted him to go away so she told him to get out of the bathroom, which he did.[51]
[51] T 89-90.
The complainant finished putting her makeup on and returned to her bedroom. She said that the accused followed her into the bedroom, was very angry at her, and started yelling at her, saying that she was exactly like her mum, and that she did not need to put makeup on. The accused punched down on the complainant’s makeup kit and it broke, with the mirror striking the complainant’s arm. At the yelling, the complainant’s mother came into the room as well. The complainant said that on this occasion her mother defended her about her makeup, she could not remember exactly what they said but the accused grabbed the complainant’s mother by the throat and held her at the other end of the bedroom to where the complainant was.[52]
[52] T 91-92.
At that, the complainant ran out of the room and left the house. Instead of going to school however, the complainant said she walked all the way from Kurralta Park to her biological father’s girlfriend’s house, which she thinks was in Bowden or Brompton.
She said she did that as at that stage she had just started seeing her father again, the accused was getting increasingly violent towards her, she had always wanted to live with her father anyway, and she thought he might take her in. That did not occur, as when her father found out the complainant was at his girlfriend’s house he called the complainant’s mother, and the complainant’s mother and the complainant’s brother came and picked her up and she was taken back home to the Kurralta Park house.[53]
[53] T 93.
The foregoing are the allegations in relation to count 6, the charge of alleged gross indecency in the presence of the complainant.
Some general matters
The complainant was asked about whether she could recall other sexual behaviour between her and the accused at the Kurralta Park house, beyond the ongoing ‘big hugs’, the regular passionate kissing and hugging she had described, and the specific events she had recounted, and she said that all the remaining memory of other events she now had were ‘flash memories’ of being in his bedroom, her bedroom, the lounge or in the bus with the accused, of a few seconds, of things happening. She said: [54]
Q.The occasions that you’ve mentioned happened in his bedroom, are they the flash memories that you’re talking about or something different that you’re remembering.
A.That I remember details, some details that stick out a lot more than others, but even some of that I do have flash memories that I don’t remember all the details, but some things I do remember details but it’s just all confusing, feels like it’s blended into one memory.
Q. Why do you think that is.
A. Because it happened so often.
[54] T 97.14-23.
The complainant was also asked about sex education. She gave evidence that she had a class in year seven which discussed issues such as puberty, bodily changes and periods. Then in year nine in 2010 there was further sex education which addressed the sex act itself, condoms and the various types of sex such as vaginal, oral and anal sex. The complainant said she felt experienced, as she had already done it, and they were just giving her more information. Also, she had gained some knowledge from talking to other students once she got to high school in year eight, which is how she discovered that anal sex was a type of sex people could have.[55]
[55] T 100-101.
The complainant was asked about when she first understood what the legal age for sex was. She replied that she found out about that at the age of 16 when she started dating her boyfriend J. She said; ‘Yes, because he was a little older than me, we were a little nervous that he’d get into trouble for dating me.’[56]
[56] T 102.
The complainant said that back in year six while she was still in primary school she had started cutting herself. She was asked whether what she had been doing with the accused had any effect on her behaviour, and she replied that she became withdrawn, keeping to herself and did not have many friends. She said she cut herself because;
AI liked cutting myself, the pain that it was feeling, I felt in control, that it was my body, that I could do what I wanted to do. I would cut myself with scissors or razors and I don’t know why I was feeling – just feeling really depressed and angry and upset a lot, I don’t know why.[57]
… and so it felt good to cut herself. Unfortunately the cutting was noticed by other students who then bullied her about it as well.[58]
[57] T 103.
[58] T 103-104.
The complainant gave evidence that she did not really properly understand what she had been doing with the accused, she feeling at that stage that the accused was more of a boyfriend than a stepdad.
She said she was hoping that through the cutting her mother would see that she wasn’t okay. A teacher noticed it and informed her mother. Her mother was furious, however she said that the accused did not react at all, he seeming ‘blank’ at the news.
The complainant said she was unable to completely stop cutting herself, however each time it was discovered, the accused displayed the same ‘blank’ reaction. [59]
[59] T 105.
Upon questioning from the bench, the complainant said she had to this day not quite been able to stop the cutting, and she clearly became very upset in the witness box.[60]
[60] T 106.
The complainant said that part way through year eight the family suddenly moved to Blanchetown. She said she understood the move was mainly because she had told a school counsellor that she wanted to kill herself, but also because the accused said he loved the country and wanted to live in the country.[61]
[61] T 107.
The complainant said that when they moved to Blanchetown there was some change in the accused’s behaviour towards her. She said:
He was loving but he wasn’t as loving. He was more mean, he was strict as well. I wasn’t allowed to wear black or makeup or show my legs …… he would buy me things. Buy me whatever I wanted. If I asked to do things, because sometimes I would be able to, … other times I wasn’t.’[62]
[62] T 108.
The complainant gave evidence that within a week of arrival at the Blanchetown house, the ‘big hugs’ and the sexual behaviour continued. She said it happened often, and it occurred more often in her own room than before. She said that the accused also resumed wearing the sheet like a cape, and also wore the robe, as he walked around the house, just as he had previously been doing at Kurralta Park. After a time he gave the robe to the complainant’s brother, so he would just wear the purple sheet around the house.[63]
[63] T 108-109.
The complainant was asked about the first event that occurred once the move had been made to Blanchetown. She replied she recalled the accused sitting in the lounge room wearing the purple sheet as a cape, with it draped over him. The complainant said she walked straight over to the accused, took the sheet off and got on top of him. She said she did what she did on that occasion because she wanted to; there was no discussion about a reward. She said that she liked the physical feelings it gave her, and that she would sometimes orgasm while she was on top of the accused in that way.
On this occasion she sat on top of the accused, facing him, with her legs straddling him and their genitals touching. She moved back and forth on top of the accused. There was passionate kissing between the complainant and the accused. The complainant said she now understands that she had an orgasm. At the time it was ‘a feeling that came out of nowhere that I liked.’ Afterwards she went to her room.[64] That event is an uncharged act.
[64] T 110-111.
She said that various other things occurred in different areas of the Blanchetown house and property, including ongoing ‘big hugs’, which are not necessary to repeat.
Count 7
The complainant said that there were two garages at the Blanchetown property. In one of the garages there was a speedboat that the accused would work on.
The complainant gave evidence that she recalled a time when she wanted to go camping with her friends. The trip was to be without any ongoing parental supervision, just with periodic visits from a parent to check every now and then. The complainant asked her mother in the presence of the accused if she could go on the camp, and her mother said no.
The complainant gave evidence that she decided to try to persuade the accused to persuade her mother to say yes, so that she could go on the trip.
She said that later that same day she went to the garage and the accused was there. They started talking about something else, and the complainant just started touching the accused through his jeans, and rubbed his penis up and down through his jeans. At that the accused started getting erect and started kissing her. This went on for several minutes, while the complainant continued to rub the accused’s genitals. The complainant said she felt in control, and that the accused seemed to like it as much as she did. After a time the accused stopped and walked out, and the complainant assumed he convinced her mother to let her go on the camp, as that is what then happened.[65]
[65] T 119-121.
The allegation of kissing comprises count 7 in the information.
Count 8
The complainant was asked about whether anything sexual occurred in the garage at the back right hand side of the Blanchetown property. She said she had one memory of something happening there.
The complainant gave evidence that in that garage the accused was fixing up a small Suzuki 4WD car for driving around in the bush. On several occasions the accused had taken the complainant out driving around the bush in it. On occasions if no-one else was around they would stop and kiss. No charges relate to that conduct.
The Suzuki was a manual, and the complainant had on various occasions discussed with the accused that she wanted to learn to drive a manual car.
On the occasion she can remember, she said that she walked in to the garage when the accused was there. She said she was wearing an aqua blue type dress that she got for her 15^th birthday. She could not recall what he was wearing but she could recall the smell and look of grease.
The complainant gave evidence that the accused picked her up and placed her on the bonnet of the car, ‘with my bum almost off the edge, with my legs open and he between my legs facing him.’ The complainant said that there was no discussion about a reward but she assumed that the accused teaching her to drive the car would be her reward.
The complainant gave evidence that the accused pulled his penis out of his pants and started rubbing it against her skin. She said she did not look down and see the accused’s penis, rather she kept looking at his face or around the garage. However, she could tell what was happening as she saw the motion of his arms and then she could feel his penis, firstly touching the outside of her knickers then the warmth of it after he moved her knickers aside and was touching her skin, pushing his penis in an up and down motion against her vagina.[66]
[66] T 117.
The complainant gave evidence that she liked how that felt, and that ‘he was turning me on.’
The complainant said that it did not continue for very long as they heard the back door to the house open and dog food being poured into a metal bowl. She described that part of the event in the following terms:[67]
Q.You said that you heard the door shut. Was there anything about C’s behaviour that would make you think that he heard it.
A.Because he stopped instantly. He sort of jumped a bit and moved backwards from out of between my legs and he put his penis back in and went back to working on the car.
Q.Did you see his face at all after he heard the door shut – the door open, sorry.
A.Open, yes. He was shocked, just shocked and a bit worried. That’s what I remember as I walked out.
[67] T 117.27-37.
The allegation of penile-vaginal rubbing while on the bonnet of the Suzuki vehicle comprises count 8 in the information.
Count 9
The complainant gave evidence that there was a single occasion at the Blanchetown house when the accused had penile vaginal intercourse with her. She said it occurred in 2010, at some time between January 2010 and when she stopped living at the house later that year.
The complainant gave evidence that she was planning to ask if she could sleep over at her sister’s house at Elizabeth Downs. She said she knew it was ‘a big ask’, as she would have to be driven from Blanchetown to Elizabeth Downs and back. It was an hour and a half drive each way. She planned to ask the accused, as she said that if she really wanted to do something she would go to him and he could always persuade her mother.

She recalled it was on the weekend as she had no school.
The complainant gave evidence that she could remember that it was in the morning and she had been doing her washing, mainly her and her brother’s underwear. She was wearing her green and black maxi dress, referred to earlier and depicted in P6, but was not wearing underwear as she was washing all her and her brother’s underwear.[68]
[68] T 125.
The complainant said that she wanted to be able to go to her sister’s without on this occasion having to do anything with the accused, or give him a ‘big hug’. She knew her mother was finishing work between 10 and 11, so she went in to see the accused at close to that time, her reasoning being that because it was closer to the time when her mother would get home ‘he wouldn’t ask for a big hug or do anything like that.’[69]
[69] T 126.
The complainant gave evidence that she went in to the accused’s room. He was standing at the foot of the bed. He was wearing greasy black shorts. She talked with him about her request, asking him if she could sleep over at her sister’s. She said that the accused was in a bad mood when she entered the room and that he did not react well when she made the request. She said the accused pushed her backwards on to his bed, and that as she was laid on the bed her dress flicked up and her legs were opened a little, and she saw that the accused could see that she had no underwear on.
The complainant said that the accused looked angry. She said he took down his shorts and she could see he was wearing black jocks but with grey on the front with a print of an ocean and a man catching a fish. The complainant lay there and did not move. Then the accused got on the bed. She described what followed in these terms:[70]
[70] T 128.5-T 130.18.
Q.Once he got on the bed, did you move at all.
A.I just stayed still, I didn’t move at all.
Q.Why is that.
A.Because whatever he wanted to do I was just going to do.
Q.Once he got on the bed, how was his body positioned.
A.He got between my legs, I opened my legs more as he came on top of me. I opened my legs because I assumed that’s what he wanted.
Q.You said he was between your legs. Describe how his body was.
A.On his knees between my legs facing me.
Q.As he’s in that position, were you looking at him.
A.I was looking around the room, I wasn’t really looking at him, I was just looking at everything else.
Q.Why were you looking around the room.
A.Because I – well what I thought might have happened, I didn’t want, I just wanted to sleep over Natasha’s house, I didn’t want to do anything with C.
Q.Did you say that to him at all.
A.No, I kept quiet.
Q.Once he was between your legs in that way, what happened next.
A.I saw his hands take his penis out between the fabric of his jocks. He still kept his jocks on, but there was a gap that he could take his penis out.
Q.Once it was out, what did he do.
A.He wasn’t hard or he was getting himself like – masturbating in a way.
HIS HONOUR
Q.Sorry I didn’t hear that.
A.Sorry, masturbating in a way.
XN
Q.How long did that go on for.
A.Not long, until he was erect.
Q.Once he was erect, what happened.
A.He just put it in me, he –
Q.When you say that, how far did he put it in you.
A.Straightaway, it was just the whole thing.
Q.Can you describe what happened then.
A.He was having sex with me as hard and fast as he could.
Q.How did that sex compare to the first time he’d had sex with you back at Kurralta Park.
A.Because the first time he stopped and he didn’t do any more. This time he kept going even though he could see I wasn’t enjoying it.
Q. What was it about you that would let him know that you weren’t enjoying it.
A.I was crying.
Q.Did you say anything.
A.No.
Q.Throughout the time that he was having sex with you, where were his hands.
A.They were holding me in place, around my bum, my thighs.
Q.Holding you in place, can you explain what you mean.
A.So I wasn’t squirming up the bed.
Q.How long did that go on for.
A.I have no idea. A little while.
Q.Was it painful.
A.Very.
Q.Where did you feel pain.
A.My vagina, it – I – it was just hurting a lot. It felt like all of him was in me. It hurt.
Q.Can you describe the hurt.
A.It felt like he had ripped me open.
Q.Aside from the pain in your vagina, was there pain anywhere else that he had contact with you.
A.Yes, my bum and thighs that he was holding really tight.
Q.How did it come to an end.
A.He pulled – he pulled out and he masturbated until he ejaculated.
Q.When he pulled out was there any conversation.
A.No. I just kept quiet.
Q.When he pulled out, did his position on the bed change at all.
A.No, he was in front of me still just on his knees and still – my legs were still over, he wasn’t quite between them, he was more in front of where my legs were.
Q.You said he was touching himself at that point.
A.Yes.
Q.How long did that go on for.
A.A couple – maybe a couple of minutes, it wasn’t very long.
Q.What happened at the end of that.
A.He ejaculated onto the quilt.
Q.After he’d ejaculated, what did you do.
AI pulled my dress down and I walked straight out of his room, W had a door that shared their room, I walked through that door, walked through the other end of W’s door which led into the hallway, then I walked into my room.
The complainant gave evidence that on this occasion she was scared. She said that was because by this stage she understood more about sex, she knew the accused wasn’t wearing a condom and she did not want to get pregnant, she did not like it, and she didn’t want to do it anymore with the accused.[71]
[71] T 130.
After the event she said the accused put his shorts back on and walked to the fridge and got a drink, and she went to her room and stayed there crying until her mother got home. Her mother got home sometime between 12 and 1.
The complainant gave evidence that there was no discussion with the accused about what had happened, but at lunchtime the complainant was in the kitchen making noodles for herself for lunch and the accused was in the kitchen as well. He and asked her for a hug, and she said ‘no’.
At that, the accused grabbed the complainant by the arm and pulled her to him such that his arm was around the complainant’s neck. The complainant said that it would have looked like he was hugging her but the accused was pushing the complainant’s face into his chest and she couldn’t breathe. She said the accused said to her:
“You think you can get a hug when you ask for it but what about when I ask for it?”[72]
[72] T 133.
The complainant gave evidence that she started crying and trying to push the accused off her, and the accused let her go. The complainant walked away, and joined her brother in the rec room.
The complainant said that after that occasion the accused left her alone, and there was no further sexual contact between her and the accused.[73]
Further matters
[73] T 133 and T 150.
The complainant’s diary
The complainant gave evidence that over the period during which the sexual activity with the accused occurred, she kept a diary. She described it as A4 in size with a brown cover with silver thorns. She said she used to write everything in it, from missing her biological father, to the accused walking around the house naked, and that everything was in there including the first time she had sex with the accused. She said she used to keep it in her knickers drawer and to the best of her understanding neither her mother nor the accused knew about it. She said she thought that her brother may have known of it, as he would have seen her writing in it.[74]
[74] T 134.
The complainant gave evidence as to how she lost that diary. She said that during year 9 she and her brother went for a walk to a nearby bridge. When they got there the accused picked her up and performed a swinging motion as if to throw the complainant off the bridge, saying to her “You want to kill yourself, do you?” She said her brother laughed as if taking it to be a joke.
The complainant asked the accused how he knew that, and he replied that he had found and read her diary.[75]
[75] T 136.
As soon as the complainant got home she went straight to her knickers drawer, to discover all the pages had been torn out except for a couple of remaining blank pages. She said she did not resume writing a diary in case the accused “found it and he would destroy it again”.[76]
[76] T 136.
Other sexual activity – section 34L
At this stage the DPP sought to question the complainant about sexual contact between herself and her younger brother. The defence raised no objection. The court raised with counsel that there had been no application pursuant to section 34L of the Evidence Act to ask the complainant questions as to other sexual activities, and indicated that the court had concern about the relevance of such evidence, and could not in any event see how it could possibly be relevant and admissible as part of the prosecution case. It was plain to see that the complainant was immediately and visibly upset with the matter being raised with her.
If the evidence had been sought to be led simply as part of the prosecution case I would not have admitted it, as it had marginal weight, if any, in support of the prosecution case even as part of the background and context, and would likely have subjected the complainant to the ‘unnecessary distress, humiliation and embarrassment’ to which section 34L refers.
That was not the end of it however, as the defence immediately supported the admission of the evidence, on the basis that they had put the prosecution on notice that they were going to ‘raise it in any event’ and planned to cross examine the complainant to establish that she had alleged that there had been sexual contact with her brother, and submitted:
“That it is always important if it can be shown that a complainant has made false complaints or been telling lies about such sexual things and this is just an example of that. It is important to the defence case….. (and) …. It is extremely important for probative value for the defence in showing what she is saying about the brother is false”,
Defence counsel indicated that they were also going to call the complainant’s brother to give evidence for the defence that what the complainant told the police about sexual contact with him was false.
Both counsel eventually submitted that the evidence was relevant pursuant to section 34L(2)(b), in that it was relevant to whether the “confidence in the reliability of the evidence of the alleged victim” was materially impaired. Faced with the joint position of both the defence and the DPP that the evidence was relevant and admissible for at least the purposes of section 34L(2)(b), I allowed the evidence to be called.[77]
[77] T 136-142.
The complainant was then asked about the issue and gave evidence that on an occasion at Blanchetown when she was in year nine she and her brother were in the rec room at home watching a movie called ‘Raise Your Voice’ which featured actress Hilary Duff. She said they were lying on the floor. She said that while she really did not know why she did it she started touching her brother through his clothes in his penis area, and did the same as she had done with the accused, moving her hand up and down. She said her brother reacted by touching her boobs and she guided his hand to touch her on the vagina. She said she liked the feeling. After a time they stopped and she went to her room. She said that later that day her brother asked to do it again, but she felt disgusted, sick and ashamed of herself, and they did not do it again.[78]
[78] T 143-145.
Count 10
The complainant gave evidence that a final incident occurred before she moved out of the Blanchetown House. It was not however of a sexual nature.
The complaint said that the accused had been saying that he did not like the complainant showing her legs. On a particular day the complainant was in her room getting ready to go to school. Instead of wearing her track pants she put on her school skirt. Her door was open and the accused saw her. She said he told her not to wear the skirt and that the complainant’s legs were showing. The complainant ignored him and continued to ready herself for school. The accused became angry.
The complainant gave evidence that she left home a little early to wait for the school bus. She said the accused approached her at the bus stop and told her that her legs were showing and that she looked like a slut. He said she was exactly like her mum, and backhanded then slapped her. The complainant thought why did I deserve that, and that every other girl wore skirts so why shouldn’t she. She did however comply with the accused’s wishes in that she put her pants on over her skirt, took her skirt off and gave it to the accused, who then walked back to the house.[79]
[79] T 146-148.
The allegation that the accused slapped the complainant comprises count 10 in the information.
Other matters
The complainant gave evidence that a couple of weeks after the family had moved to Blanchetown the accused and she were arguing and as a result the accused removed her door from its hinges. She said that when they had been at Kurralta Park he had put a lock on the outside of her door, and secured all her windows. The windows to her room at the Blanchetown house also did not open.[80]
[80] T 149-150.
The complainant gave evidence that as time went on the accused had been getting increasingly violent with her, she was getting no love or affection from her mother who often threatened to kick her out of the house, she became really unhappy and she was having suicidal thoughts, so in late May or early June 2010 she decided to leave the Blanchetown house and move in with her sister.
She said that she organised it with her sister and her father. Her sister and the local police officer came to the back door to distract the accused and the complainant’s mother, whereupon the complainant left via the front door with her belongings. The complainant’s father, who was not permitted on the property waited in his car down the street.
The complainant said she went back around the house to try and explain to her mother why she was leaving but it became very emotional with everyone yelling at each other. She then got in her father’s car and they drove to the local police station. The complainant was asked how she felt about it. She replied:[81]
Q.How were you feeling on that drive after you’d left.
A.Relieved that I was gone.
Q.Why were you relieved.
A.Because I didn’t have to do big hugs anymore, I didn’t have to see C, I didn’t have to get hurt. I thought it was a new start. I could be completely different. I could be normal.
[81] T 153.8-14.
The complainant said she then went to Craigmore High School and Salisbury High School.
The complainant gave evidence that she next saw the family about a year later when she took a folder of papers up to give to her mother. Whereas her school grades had been ‘shocking’ when she was living with the accused and her mother, she had done very well at these new schools, getting A’s and B’s and she wanted her mother to be proud of her. She included her grades in the folder and wrote letters to the accused, her mother and her brother. She said that she missed her mother and brother and she wanted to say how much she loved and missed them. She said that, at that time, she missed them. She said that up to that time she also missed the accused, missing the big hugs and getting what she wanted from him.[82],[83]
[82] T 155-156.
[83] T 156.
Complaint evidence – the complainant
The complainant was asked when she first spoke to anyone about what had happened between her and the accused. She said that she started seeing her partner J towards the end of 2011. In 2012 her sister helped them get a unit and move in together. About a year into the relationship, although she could not be certain whether they had yet moved into the unit, she described how it came about that she told him about it:[84]
[84] T 158.7-33.
Q.That conversation where you spoke to him about C, can you tell me why you spoke to him on that particular day.
A.Because I have night terrors at night and J noticed that whenever he would touch me in my sleep I’d get frightened and that I didn’t sleep much anyway so I constantly wake up and he just – I was funny with some things that I was always nervous and shy.
Q.Can I ask you then how is it the night terrors you’ve mentioned led to this conversation.
A.Because he asked ‘Why are you doing that?’
Q.What did you say to him.
A.I just said that I had not the best upbringing with my mum’s boyfriend.
Q.Did you identify the person in any other way than your mother’s boyfriend.
A.I called him by his name, I said ‘C’ and he knew that mum’s boyfriend was C.
Q.What did you say to him about that relationship.
A.That it was a sexual relationship and that I had done things with C growing up and that’s about as much as I told.
Q.Did you say anything to J in that conversation about when those things had happened.
A.When I was a kid.
Q.Did you say anything about when they stopped.
A.When I had left, yes.
….
Q.Ms N, why is it that you hadn’t told anyone before you spoke to J on that day.
A.Because of the guilt and how ashamed I feel and C had told me many times that no-one would believe me. I didn’t want anyone to know about it because I feel that it’s all my fault.
Q.You said you felt guilty and ashamed. Why did you feel that way.
A.Because I shouldn’t have been doing any of that.
QWhen did you start feeling guilty and ashamed about what had happened with C.
A.When I was living there, I was feeling guilty and ashamed especially when the last time that we had had sex.
Q.Is that the time you talked about in his bedroom at Blanchetown.
A.Yes.[85]
[85] T159.2-T160.16.
Cross-examination of the complainant
The complainant was extensively cross-examined. I will not repeat all or even most of it, particularly as much of it traversed the same ground as covered in examination in chief. I have however read and re-read it all and have given the closest consideration and scrutiny to all the matters raised with the complainant in cross-examination, particularly those matters emphasised by counsel for the accused in his clear and comprehensive address.
I will mention some of the matters emphasised by counsel.
The complainant agreed that in her early life she recalled her father being violent towards her mother, which made her feel conflicted as she loved them both. She agreed that the period of her life from the age 10 to 15 was one of the worst in her life. She agreed her mother stopped her having access with her father when she was about 10 or 11 in year 6, after she thought she saw her father having drugs injected, and she did not see her father again until she was 14 when access recommenced. She agreed this was one of a number of factors which caused bad feelings between her and her mother.
Other factors included that her mother was strict with her and not affectionate towards her. She said she felt upset because she wanted her mother to love her and it all made her think that she did not. The complainant agreed that absence of affection from her mother was one of the reasons she cut herself. She agreed she had told the police in her statement that this was the reason she cut herself, and had not specified other reasons. The complainant agreed that was a main reason, but explained that she also cut herself due to her unhappiness, and she had also said in the statement that she was unhappy, and she was unhappy for a number of reasons.

The complainant became particularly upset and cried at various times throughout her time in the witness box. Occasions of particular upset coincided with portions of evidence where it might be expected, such as the time when she described a point at which the accused’s attitude and treatment of her in relation to the sexualised behaviour changed from totally loving to involve elements of ‘meanness’ and threats that she wouldn’t be believed, and during what might have been expected to be the most embarrassing of all the topics, her admission that she initiated intimate contact with her own brother.
The detailed history she gave of how, in an environment bereft of her own father and of any apparent love or affection from her mother, the accused was affectionate from the outset, and at a particular point when she was around 11 the innocent cuddles, kisses and affection slowly became closer and more intimate, and then ‘big hugs’ involving her sitting on top of the accused developed, closely aligned with the accused getting her what she wanted either directly or by talking her mother into it, had a detail and a logic to it that appeared credible.
The complainant’s detailed and consistent recounting of the quite differing events the subject of the 10 counts in the information, also had an ostensible credibility to it. So also did the overall picture painted by the complainant’s evidence of how the sexualised behaviour developed over the years, and how at a particular point the accused’s attitude changed following the incident on the day of her year seven graduation, and started to include him speaking meanly to her and telling her that she was a child and no-one would believe anything she said.
I have close regard to the matters raised and put to the complainant as prior inconsistent statements. The majority of these were not inconsistent statements in themselves, but rather events or detail given in the witness box that were not contained in her initial police statement. The complainant by and large readily admitted the matters put to her, explaining variously that for years she had tried to forget and suppress her memories of what had happened, and then she gave her initial statement to police trying to remember the detail of events she had long tried to suppress and forget. She also said that she was scared and embarrassed at the time she gave her initial statement, was very upset at having to think about and describe the events in detail for the first time, and wanted to get it over with and get out of there as fast as she could.
In that situation, she said did not remember everything initially, and in at least one case said that the detail defence counsel suggested she had left out of her statement was a detail that she said she did not think at the time was important. She also responded that in the witness box she was being asked about events in much more detail than she was being asked for her police statement, and so was now giving that detail. She also gave evidence that in the time since then and leading up to the trial date she had been thinking about the events and trying hard to recall and remember events, and that over time some things had come back to her.
The complainant’s responses to these matters all had a logic and ring of truth about them. I accept her explanations and accordingly do not regard any of the matters put to her as prior inconsistencies as negatively affecting her credibility or reliability.
I have regard to the evidence that the complainant lied about a number of things as a child, both at home and at school.
I have regard to the evidence, limited to the extent that it is, concerning the injury the complainant received and the consequent follow up from Families SA. No witnesses or direct evidence from families SA was called about that. According to notations in a 2003 Families SA file, the complainant was injured and taken to hospital and ascribed the cause to the accused, but not long after told Families SA she had lied about it.
I have regard to the complaint evidence given by the complainant and her partner, strictly in the limited way permitted by the law. I find the content of the complaint is consistent with the complainant’s evidence, and the circumstance of the making of the complaint consistent with the alleged facts having occurred.
The complainant’s evidence as a whole presented a provisionally credible picture of a stepchild obviously estranged from the affection of her mother, spending substantial time home alone with her affectionate stepfather, being groomed then progressively manipulated and exploited into a sexualised clandestine relationship, with the reward of supposed love, physical affection, and material gain through items being purchased for her and her wants, wishes and requests being acceded to or supported by the accused.
The picture emerging from her evidence was of an unhappy child also unhappily separated from her own father, in a domestic environment where she constantly fought with her brother, and was in constant conflict with her mother who regarded her as a liar about everything, and where the accused was her only friend, and through who she was given things and could very often get her own way.
In that environment it would not have been difficult for the accused to become close to the complainant and slowly increase the intimacy of their touching and kissing, give her the affection she wanted but was not getting elsewhere, form a close and seemingly loving relationship, and gradually sexualise the contact between them, as alleged by the complainant. In such an environment, where the accused was the one giving the complainant things and going into bat for her with her mother, the accused could have had some confidence that the last thing the complainant would do would be to tell anyone about it. To do that would mean hurting the only person who was being nice to her, and kill the golden goose of gifts from the accused and the accused’s advocacy on her behalf to her mother.
Further, both the accused and the complainant knew that the complainant’s mother rarely believed anything the complainant said anyway. That was a further element of the domestic environment that may have both enabled the accused to feel safe to embark on the alleged conduct, and discouraged the complainant from complaining at the time.
The complainant’s evidence about what the accused allegedly did to her was lengthy, varied, detailed, and, to be frank, would have been quite a feat to fabricate in its breadth and entirety and then repeat so consistently and in such detail over time, as the complainant had done. If the complainant had wanted to fabricate an allegation against the accused, it is hard to imagine that she or anyone would have had the wherewithal or ability to entirely fabricate the consistent and extensive evidence that she gave. If the complainant had wanted to fabricate a false allegation against the accused, it could have been done far, far more simply, and indeed more damningly.
It is hard to imagine that the complainant, if fabricating a story, would have given the evidence that in some ways portrayed herself in such a bad light, for example that it was her who often initiated sexual contact such as “big hugs” and other sexualised rubbing with the accused, to get rewards, permissions and support from him with her mother.
She also gave evidence that she thought she was in love with the accused, that he did many nice things for her, and that she had very confused and mixed feelings about him when he started to exhibit meanness towards her and tell her she would not be believed, but she still felt love and affection for him and did so for a considerable time after she moved out. She said that she did not fully understand that the love was not real, and that it was not until she spoke to the police that she realised that it was more of a dependency on the affection from the accused because her mother never showed her any love and affection.
I have also closely considered the defence submission that the complainant had a motive to fabricate all the allegations to either get back at her mother or seek sympathy from her partner. The allegations made in this case are a very complicated and not very self-flattering way to achieve that. Also, the allegations were made at a time when the complainant had finally, after many approaches and messages, established positive contact with her mother, and they had had a good day out for her 16^th birthday, with her mother buying her presents and giving her money. It would seem incongruous for the complainant at that point, and not until that point, to try to get revenge on or hurt her mother at the very time she had finally built bridges with her, and also to do it by falsely accusing the one person who on the defence case had been nothing but nice to her and had a very good relationship with her at all times.
I have also closely considered the other defence submission that it might all have been to get sympathy from her partner. There was little in the overall circumstances that gave any support to that possibility as being a motive to make the complaint, however I have considered it.
In all, the complainant’s evidence was an ostensibly credible, complex and compellingly sad tale of grooming, sexualisation and abuse.
The accused gave evidence on oath.
He gave his evidence in a relatively straightforward way, denying all the allegations made against him. He appeared nervous in the witness box, but given the nature of the case and the allegations against him, that is in some respects understandable.
His evidence presented a, for the most part, logical recounting of a good step-father/step-daughter relationship between himself and the complainant over a period of about 10 years. He was the only one in the house who was over time consistently nice to the complainant and always had a good relationship with the complainant, which good relationship continued in a positive vein up to and even beyond the complainant finally moving out in 2011.
His description of the early part of the relationship with the complainant’s mother was unremarkable, except for one curious aspect.
Whereas the accused gave evidence that he and the complainant’s mother moved in together 2 weeks after they met in 1991, when the complainant’s mother gave evidence she said they did not move in together until 3 to 6 months after they met, and that it could not have been just two weeks. The difference between those versions of events is so stark someone is likely lying about it for some undisclosed reason, however the matter was not further explored by either counsel.
There were some matters of potential note during the course of his evidence. I mention some of those matters.
When the accused was responding to the allegations in the course of evidence he replied a little incongruously to counsel “There is no truth in most of the things she’s been telling about sexual and passionate stuff” (emphasis added). In later cross examination he said that answer was a mistake and he had meant to say “all” rather than “most”.
The accused’s evidence that he never noticed that the complainant had developed or even possessed breasts was unconvincing. Firstly, that state of affairs is inherently unlikely. Secondly, the complainant’s mother gave evidence to the effect that it was plain that the complainant developed breasts. In support of his evidence the accused said that the complainant always wore a top over her dress, but his evidence on that topic was also contradicted by the complainant’s mother.
The accused’s evidence following reference to the house rule that the children needed to keep their door open when their friends were there, is of serious concern. He added that the reason for the rule was “we knew that (the complainant) wouldn’t say no to a boy”. There was no evidence from anyone else to that effect, and indeed there was no evidence that the complainant ever had a boyfriend over, still less that there was any suggestion that she had had sex with boyfriends at all, let alone constantly consented to it, as the accused’s comment inferred. It came across as a gratuitous slur on the complainant’s character, with no basis in fact. It seemed the accused immediately realised this, as when further questioned he immediately retreated from the proposition and could not realistically explain or justify the words he had uttered. That the accused would gratuitously accuse the complainant of never saying no to a boy, when on the evidence that was plainly untrue, affects his credibility.
The accused’s evidence as to the physical contact between himself and the complainant was quite inconsistent. As earlier set out, he initially gave evidence that there was only very occasional hugging, which he never initiated. However later on he gave evidence that there were in fact “big hugs” which he would initiate several times a week by throwing his arms apart and calling out “big hugs” which was a signal for the complainant to throw herself into his arms for hugging, and that went on for years.
There were other matters of some inconsistency and incongruity in the accused’s evidence.
In all, the accused was only a moderately adequate witness, and there were a number of issues that gave pause for thought as to his credibility and reliability.
The defence also called the complainant’s mother and the complainant’s brother, as earlier indicated.
The accused has done much for both of them over the years variously as a good provider to both, loving partner to the complainant’s mother and a very good stepfather to the complainant’s brother. They both indicated they would do anything to help and support the accused.
They also to a significant extent had, together with the accused, discussed, conferred and reminded each other of matters that they saw as the issues in the case before the court.
Each had immediately disbelieved the allegations made by the complainant without even hearing from the complainant or speaking to her, and taken the accused’s side against her, and each seemed to take every possible opportunity when in the witness box to criticise her and label her a liar.
There were however significant inconsistencies between them when asked about things they had not discussed, such as what issues had been the subject of discussion between them, and when they had such discussions, prior to trial.
With issues that they had not discussed, essentially matters that did not arise from the complainant’s police statement, or discussions apart from those along the lines of the one the accused said he had with the complainant’s brother of “How (the complainant) is making up lies about me sexually abusing her”[252], their evidence was often quite inconsistent.
[252] T 339.
For example, the accused, the complainant’s mother and the complainant’s brother all gave different versions of the removal of the complainant’s bedroom door, and more particularly of whether the door even went back on, with the complainant’s brother indicating, consistently with the complainant’s evidence that it was simply taken off and never put back on. Both the accused and the complainant’s mother gave evidence that it was put back on as soon as the accused repaired it.
Another perhaps more significant example, is that the accused and the complainant’s mother admitted discussing that there was a spare mattress under the main bed such that the complainant’s allegation concerning her hiding under there when the complainant’s mother came home and interrupted the accused and the complainant having “big hugs” on the bed, couldn’t possibly be true. That hadn’t been discussed with the complainant’s brother however, who said in cross examination that he wasn’t aware of a mattress being under there, and that there were other named items under there.
Another example relates to sheet colour. Both the accused and the complainant’s mother gave evidence that the complainant’s evidence that the accused would walk around the house when he was alone with the complainant clothed only in a purple sheet could not be true, as they only ever had red or “burgundy” sheets, and never any other colour sheets. When the complainant’s brother was cross examined about sheet colour he immediately replied that they had both red sheets and black sheets.
Regrettably, much of the evidence of those two witnesses had the flavour of reconstruction of what might, may or could have been the case, or the flavour of agreed positions as a result of discussions between them and the accused. The inconsistencies between them on undiscussed issues, in particular the content of discussions and when they occurred prior to trial, also gave concern about both their credibility and reliability.
Further, both the complainant’s mother and brother have a deep and longstanding allegiance to the accused and a deep and longstanding antipathy to the complainant, have discussed much of the issues in depth prior to trial, have assumed in the absence of any of the evidence that the complainant is lying about everything, and regrettably in the final analysis there is a significant risk that all of that has so coloured their evidence that little reliance can be placed on their evidence as to any of the disputed issues.
In the final analysis, notwithstanding the defence case, the complainant’s story remains a compelling and credible account of events, that in the court’s opinion would be nearly impossible to fabricate and maintain in the intricate, detailed, varied and personally unflattering form that it took. In short, after the fullest and closest analysis, and close consideration of the defence case, it remained compelling and credible even after a probing and extended cross examination.
In reaching this position, the court has had close regard to the fact that the complainant was a troubled and difficult child, who lied in a range of contexts at home and at school, was self-harming herself for years, and constantly fought with and defied her mother as described. It is important to also recognise that none of those factors mean that she wasn’t or couldn’t be sexually abused exactly as alleged, indeed all those factors could make it easier for an abuser to proceed in the knowledge that such a child would be far less likely to be believed if they ever complained.
Turning to the defence case, regrettably, in the final analysis, the accused’s evidence was not convincing, and the accused’s witnesses, whilst I am sure they thought they were doing the right thing in so unquestioningly attempting to support the accused on any and every issue they could think to support him on, were so partisan and one sided that they were not in an objective sense credible or reliable.
Factual conclusions
After the closest of scrutiny, which the extent of these reasons to some degree reflects, the court finds the complainant’s evidence as to the events that passed between her and the accused the subject of the 10 counts in the information before the court established beyond reasonable doubt.
I turn to consider each charge against the accused in light of this factual conclusion.
Count 1
In relation to count 1, the court finds proven beyond reasonable doubt that the accused between the 31^st day of December 2005 and the 1st day of January 2008 at Kurralta Park, called the complainant into his bedroom and after asking her to kiss his penis through the sheet he had draped over him, removed the sheet and placed his penis in her mouth causing her to perform fellatio on him, and that the complainant was under the age of 14 years.
The court finds that each element of the offence of unlawful sexual intercourse with a person under 14 years of age is proven beyond reasonable doubt.
Count two
In relation to count 2, the court finds proven beyond reasonable doubt that the accused, between the 31^st day of December 2005 and the 1^st day of January 2008 at Kurralta Park, in the context of the complainant wanting to be allowed to go on a school camp in the Adelaide Hills, told her it would require the complainant to give him a ‘bigger hug’, lifted the complainant on to the edge of the dining room table and placed his penis into her vagina. He stopped when the complainant said that it hurt her and started crying. The court finds proven beyond reasonable doubt that the accused thereby had sexual intercourse with the complainant and that she was a child under the age of 14 years.

The court finds that each element of the offence of unlawful sexual intercourse with a person under 14 years of age is proven beyond reasonable doubt.
Count three
In relation to count 3, the court finds proven beyond reasonable doubt that the accused, between the 31^st day of December 2005 and the 1^st day of January 2008 at Kurralta Park, in the context of the complainant hoping to be allowed to have a friend sleep over, bent the complainant over a bunk bed railing in a bus to the rear of the property, and briefly penetrated the complainant’s anus with his penis, stopping as soon as the complainant jolted upright saying that it hurt. The court finds proven beyond reasonable doubt that the accused thereby had sexual intercourse with the complainant and that she was a child under the age of 14 years.
The court finds that each element of the offence of unlawful sexual intercourse with a person under 14 years of age is proven beyond reasonable doubt.
Count four
In relation to count 4, the court finds proven beyond reasonable doubt that the accused, between the 31^st day of December 2005 and the 1^st day of January 2009 at Mannum, intentionally and unlawfully touched the complainant on her underwear in the region of the complainant’s vagina with his fingers, as they both swam in the river. The court finds proven beyond reasonable doubt that the touching was intentional, unlawful and occurred in circumstances of indecency which plainly involved a sexual connotation.[253] The conduct was conduct which, by any reasonable contemporary standards, can only be described as indecent. As the complainant was a child and legally incapable of consenting there was no consent, nor was there any other lawful basis or excuse for the touching.
[253] R v C, M [2014] SASCFC 116.
The court finds that each element of the offence of indecent assault is proven beyond reasonable doubt.
The court finds proven beyond reasonable doubt that at the time of the offence the complainant was under the age of 14 years.
The court finds proven beyond reasonable doubt that at the time of the commission of the offence the complainant was a child of whom the accused had custody as a parent or guardian, and that the accused knew that, and that that circumstance of aggravation is thereby also proven beyond reasonable doubt.
The court finds that each element of the offence of aggravated indecent assault is proven beyond reasonable doubt.
Count five
In relation to count 5, the court finds proven beyond reasonable doubt that the accused, between the 31^st day of December 2005 and the 1^st day of January 2009 in his bedroom at the family’s Kurralta Park house, in the context of the complainant wanting to be given permission to attend a year seven graduation dinner, intentionally and unlawfully rubbed his penis against the vaginal region of the complainant’s body.
The court finds proven beyond reasonable doubt that the touching was intentional, unlawful and occurred in circumstances of indecency which plainly involved a sexual connotation. The conduct was conduct which, by any reasonable contemporary standards, can only be described as indecent. As the complainant was a child and legally incapable of consenting there was no consent, nor was there any other lawful basis or excuse for the touching.
The court finds that each element of the offence of indecent assault is proven beyond reasonable doubt.
The court finds proven beyond reasonable doubt that at the time of the offence the complainant was under the age of 14 years.
The court finds proven beyond reasonable doubt that at the time of the commission of the offence the complainant was a child of whom the accused had custody as a parent or guardian, and that the accused knew that, and that that circumstance of aggravation is thereby also proven beyond reasonable doubt.
The court finds that each element of the offence of aggravated indecent assault is proven beyond reasonable doubt.
Count six
In relation to count 6, the court finds proven beyond reasonable doubt that the accused between 27 January 2009 the day the complainant commenced at William Light High School[254], and 15 September 2009, at Kurralta Park, entered the bathroom in his Kurralta Park home and in the presence and sight of the complainant rubbed his penis through his pants for several minutes while watching the complainant put on makeup.
[254] See paragraph 4 of agreed facts marked P 1. The complainant gave evidence that this event occurred while she was attending William Light High School, which per the agreed facts was between the dates 27 January 2009 and 15 September 2009.
The court finds proven beyond reasonable doubt that the act was grossly indecent having regard to all the circumstances. Given that it involved masturbating through his trousers in front of his 13 or 14 year old stepdaughter, it was an act accompanied by obvious sexual connotation that was grossly indecent by the standards of right thinking members of the community.
The court finds proven beyond reasonable doubt that the complainant was either 13 or 14 years of age at the time of the act.
The court finds proven beyond reasonable doubt that the actions of the accused were directed towards the complainant.
The court finds that each element of the offence of gross indecency is proven beyond reasonable doubt
The particular in the information alleging that the complainant was under the age of 13 is not established.
Count seven
In relation to count 7, the court finds proven beyond reasonable doubt that the accused, between the 16^th of September 2009 and the 21^st of July 2010[255] at Blanchetown, in the context of the complainant wanting to persuade the accused to support her participation in an unsupervised camping trip with her friends, kissed the complainant on the mouth for several minutes while she rubbed his penis through his jeans.
[255] These are the dates agreed per P 1 when the complainant was enrolled in and attending school in Waikerie and accordingly reflect the period the complainant was living in Blanchetown with the accused. The complainant gave evidence the event occurred during that time.
The court finds proven beyond reasonable doubt that the kissing was intentional, unlawful and occurred in circumstances of indecency which plainly involved a sexual connotation. The conduct was conduct which, by any reasonable contemporary standards, can only be described as indecent. As the complainant was a child and legally incapable of consenting there was no consent, nor was there any other lawful basis or excuse for the touching.
The court finds that each element of the offence of indecent assault is proven beyond reasonable doubt.
The court finds proven beyond reasonable doubt that at the time of the offence the complainant was under the age of 16 years.[256]
[256] Per P 1, the complainant turned 15 on 4 April 2010, and the offence could have been committed at any time prior to the complainant moving out of the Blanchetown house and leaving Waikerie High School in July 2010, so the complainant may have been as old as 15 at the time of this event.
The court finds proven beyond reasonable doubt that at the time of the commission of the offence the complainant was a child of whom the accused had custody as a parent or guardian, and that the accused knew that, and that that circumstance of aggravation is thereby also proven beyond reasonable doubt.
The court finds that each element of the offence of aggravated indecent assault is proven beyond reasonable doubt.
Count eight
In relation to count 8, the court finds proven beyond reasonable doubt that the accused between 4 April 2010 and the 21^st of July 2010[257] at Blanchetown, in the context of the complainant having made a number of requests to be taught how to drive a manual car, in the shed at the rear of the family property lifted the complainant on to the edge of the bonnet of his Suzuki 4WD, and rubbed his penis against the outside of the complainant’s vagina.
[257] The dates agreed per P 1 when the complainant was enrolled in and attending school in Waikerie reflect the period the complainant was living in Blanchetown with the accused. The complainant gave evidence the event occurred during that time. Per P 1, the complainant turned 15 on 4 April 2010, and the complainant said she was wearing a dress that she had been given for her 15th birthday, which per P 1 agreed facts, was 4 April 2010. Accepting her evidence beyond reasonable doubt, this event occurred at some time between the complainant’s 15th birthday on 4 April 2010, and when she moved out of the Blanchetown house on around 21 July 2010.
The court finds proven beyond reasonable doubt that the accused rubbing his penis against the complainant’s vagina was intentional, unlawful and occurred in circumstances of indecency which plainly involved a sexual connotation. The conduct was conduct which, by any reasonable contemporary standards, can only be described as indecent. As the complainant was a child and legally incapable of consenting there was no consent, nor was there any other lawful basis or excuse for the touching.
The court finds that each element of the offence of indecent assault is proven beyond reasonable doubt.
The court finds proven beyond reasonable doubt that at the time of the offence the complainant was under the age of 16 years.[258]
[258] Per P 1, the complainant turned 15 on 4 April 2010, and the complainant said she was wearing a dress that she had been given for her 15th birthday, which per P 1 agreed facts, was 4 April 2010. The offence could have been committed at any time after that date and prior to the complainant moving out of the Blanchetown house and leaving Waikerie High School in July 2010, so the complainant was 15 at the time of this offence.
The court finds proven beyond reasonable doubt that at the time of the commission of the offence the complainant was a child of whom the accused had custody as a parent or guardian, and that the accused knew that, and that the alleged circumstance of aggravation is thereby also proven beyond reasonable doubt.
The court finds that each element of the offence of aggravated indecent assault is proven beyond reasonable doubt.
The particular in the Information alleging that the complainant was aged 13 or 14 is not established.
Count nine
In relation to count 9, the court finds proven beyond reasonable doubt that the accused between 1 January 2010 and the 26^th of July 2010 at Blanchetown,[259] in the context of the complainant asking to be permitted to stay over at her sister’s house back in Adelaide, pushed the complainant backwards onto his bed and had penile-vaginal sexual intercourse with her by inserting his penis into her vagina.
[259] The complainant gave evidence which the court accepts beyond reasonable doubt that this event occurred at some time between January 2010 and the date she moved out of the Blanchetown house and back to Adelaide. Per P 1, the agreed facts indicate that the complainant left Waikerie High School on 21 July 2010 and enrolled in Craigmore High school back in Adelaide on 26 July 2010. Accordingly this event occurred at some time between 1 January 2010 and 26 July 2010.
The court finds proven beyond reasonable doubt that at the time of the sexual intercourse the complainant was under the age of 17.[260]
[260] As this event occurred at some time between 1 January 2010 and 26 July 2010, and the complainant turned 15 on 4 April 2010 (see complainant’s agreed date of birth per P 1), the complainant was either 14 or 15 at the time of this event.
The court finds that each element of the offence of unlawful sexual intercourse with a person under 17 years of age is proven beyond reasonable doubt.
Count ten
In relation to count 10, the court finds proven beyond reasonable doubt that the accused between the 31^st day of December 2009 and the 26^th of July 2010 at Blanchetown, followed the complainant to the bus stop and slapped her across the face.
The court find proven beyond reasonable doubt that slap was an intentional and unlawful application of force to the complainant without her consent. The court finds proven beyond reasonable doubt that there was no lawful justification such as self-defence or reasonable parental discipline.
The court finds proven beyond reasonable doubt the alleged circumstance of aggravation that the accused committed the offence knowing that the complainant was, at the time of the offence, a child of whom he had custody as a parent or guardian.
The court finds that each element of the offence of aggravated assault is proven beyond reasonable doubt.
Verdicts
Guilty to all charges.