R v H, G - [2010] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, G
Criminal Trial by Judge Alone
[2010] SADC 158
Reasons for the Verdict of His Honour Judge Soulio
17 December 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by Judge alone.
Accused charged with two counts of indecent assault - two complainants.
Verdicts: Guilty of both counts.
Criminal Law Consolidation Act 1935 s 56; Juries Act 1927 s 7; Evidence Act 1929 s 34M; Criminal Law Consolidation Act Amendment Act No. 94 of 1972, referred to.
R v JA [2009] SASC 401; R v Seigneur (2009) 103 SASR 293; R v Dossi (1918) 13 Cr App 158; R v T (1985) 38 SASR; R v Pinder (1989) 155 LSJS; R v Jacobs R & R; Crampton v The Queen (2000) 206 CLR; Rixon v Thompson (2009) 22 VR 323; R v Falcone (2008) 190 A Crim R 440; Johnson v Miller (1937) 59 CLR 467, considered.

R v H, G
[2010] SADC 158
Background

J and M are sisters now aged 40 and 38 years respectively. J alleges that between the end of 1982 and the beginning of 1985, when she was between 12 and 14 years old, she was sexually assaulted by the accused. M alleges that she was sexually assaulted by the accused between the same dates when she was between 11 and 13 years old. The accused who is the maternal grandfather of the complainants denies the allegations. He elected for trial by judge alone pursuant to s 7 of the Juries Act 1927.
The Charges
The accused is charged with two counts of indecent assault pursuant to s 56 of the Criminal Law Consolidation Act 1935 (CLCA).[1]
[1] As the Act stood at the relevant time.
By s 3 of the Criminal Law Consolidation Act Amendment Act No. 94 of 1972, the following offence of relevance to the counts charged on the Information, was inserted into the CLCA:
A person who indecently assaults another shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding eight years, or, where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
The particulars alleged are that:
First Count
The accused between the 31^st day of December 1982 and the 1^st day of January 1985 at Modbury, indecently assaulted J.
Second Count
The accused between the 31^st day of December 1982 and the 1^st day of January 1985 at Modbury, indecently assaulted M.
Although a range of dates in relation to each offence is alleged in the Information, the exact date is not an essential ingredient of any of the particularised acts or charged offences. The act or occasion alleged must be identified and I must be satisfied the specific act charged is proven beyond reasonable doubt.[2]
[2] R v Dossi (1918) 13 Cr App R 158 at 159–60.
Directions
General Directions
It is necessary to give consideration to the elements of the offence and to the onus of proof. It is necessary to consider the warning which is required given the delay in bringing attention to the matters the subject of the present trial; and the use to be made of the initial “complaint” by M. It is also necessary to consider the relevant onus of proof in relation to evidence of uncharged acts, and the use to be made, if any, of such acts if proved to the requisite degree.
The accused is presumed to be innocent unless and until his guilt has been proven beyond reasonable doubt. The burden of proving each element of any charge lies wholly on the prosecution. The accused is not obliged to prove anything. The accused, in putting forward a defence, is not required to prove the defence. The Crown must disprove it beyond reasonable doubt.
I remind myself that nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. In relation to either charge I cannot reach a conclusion of guilt by preferring the evidence of the complainant to that of the accused. I must be satisfied before I could convict the accused of any count on the Information that the prosecution has proved beyond reasonable doubt each element of the charge. Where I refer to something being proved, or being satisfied of, or accepting something, I shall mean beyond reasonable doubt.
It follows that if I am left with a reasonable doubt as to the establishment of any element of a charge, then I must give the accused the benefit of that doubt and find him not guilty of the charge.
The accused was not obliged to give evidence but chose to do so. His evidence is to be considered alongside the other evidence in the case. I have given him credit for adopting a course he was not obliged to adopt. In assessing his evidence and the weight to be given to it, I have approached the task in the same way as I would with any other witness.
It was an agreed fact that when interviewed by police the accused exercised his legal right and declined to answer questions. I do not draw any adverse inference against the accused by virtue of the fact that he declined to answer questions of the police.
Section 34M Evidence Act 1929
The offence against the complainant J is alleged to have occurred over 25 years ago. The first time the matter was raised by the complainant J was in about 1984 or 1985. The evidence as to the making of the initial complaint is J’s evidence that she told M that the accused had indecently assaulted her. However the prosecution did not press that as an “initial complaint”, and I will not have regard to her evidence as to that “complaint”.
The offence against the complainant M is also alleged to have occurred over 25 years ago. It is alleged that the first time she raised the matter was some two weeks after the alleged events, when she told J what had happened.
The Information upon which the accused was charged was first laid in this Court on 8 December 2008. Accordingly the provisions of s 34M of the Evidence Act apply[3] and evidence of the initial complaint by M was led in accordance with that section which provides that:
In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
[3] R v Seigneur (2009) 103 SASR 2007.
Evidence of the initial complaint is only admitted to inform me as to the way in which the allegations first came to light, and potentially as evidence of the consistency of the conduct of a complainant and the reliability of her evidence.[4] It is not admitted as evidence of the truth of what a complainant alleges.
Delay in Complaint
[4] R v J, JA [2009] SASC 401 per Duggan J at [93].
As has been observed in a number of previous decisions, there may be good reason to explain the delay in the making of a complaint. However, the lapse of time is such that there is a risk that the accused has suffered a forensic disadvantage. Because of the delay, there is the potential that the accused has been deprived of the opportunity to adequately test the allegations. In particular, he may not be as well placed to call evidence, if he chose to do so, to counter the allegations, as he would have been closer to the time the offences are said to have happened. In those circumstances, and as the case against the accused essentially consists of each complainant’s unsupported evidence, I must approach each charge on the basis that I should give close scrutiny to the complainant’s evidence.
I bear in mind that in a case, as here, involving lengthy delay, the defence will frequently consist of outright denials, because the passage of time denies the necessary forensic weapons that contemporaneity provides.[5]
[5] Crampton v The Queen (2000) 206 CLR 161 at [45].
Particulars – A Preliminary Issue
The particulars of both counts were couched in broad terms, namely that the accused between 31 December 1982 and 1 January 1985, at Modbury, indecently assaulted J, (Count 1), and M, (Count 2).
J’s evidence was that the accused kissed her on the neck, rubbed his hand along her body and touched her breast while she was laying in bed, all within a space of minutes.
M’s evidence was that the accused forced his tongue into her mouth, put his hand on her breast on the outside of the clothing, put her hand on his penis, and then forced her head down onto his groin area, again all within the space of a few minutes.
The defence position was that none of those incidents occurred.
During addresses I inquired of the prosecution whether any particular instance of touching was said to constitute the particular offence, or whether the entire episode of touching constituted the indecent assault. Counsel responded that the entire episode constituted the assault although each act separately would constitute an indecent assault. He said: “it is the combination of conduct that constitutes the charged act and that has always been the Crown’s case”. However, counsel went on to say that if I were not satisfied that one particular act of touching occurred, but were satisfied that another did, that would still amount to indecent assault on the Crown case.
Counsel for the defence took the position that it was the acts in combination that constituted an indecent assault, and submitted that that was the way the prosecution case had been run. He submitted that the alternative position put by the Crown raised an issue of “duplicity and latent ambiguity”. His submission was that I should approach the Crown case on the basis that it was “all or nothing.”
The accused has a right to know the case the prosecution seeks to advance at trial.[6] The general principle is that a prosecutor should be required to identify the transaction upon which he relies, as soon as the charge is equally capable of referring to a number of occurrences, each of which constitutes the offence, the legal nature of which is described in the complaint, on the basis that a defendant is entitled to be apprised not only of the legal nature of the offence, but of the particular act alleged as the foundation of the charge.[7]
[6] R v Falcone (2008) 190 A Crim R 440 at para 61.
[7] Johnson v Miller (1937) 59 CLR 467 at 489.
In Rixon v Thompson[8] the defendant was convicted in the Magistrates Court of one count of committing an indecent act with a child under the age of 16. The charge alleged that the defendant committed an indecent act, “namely kiss, fondle, and allow the child to feel his erect penis”. The defendant appealed to a single judge, contending the charge was bad for duplicity. That appeal was dismissed. On further appeal the defendant contended that the magistrate erred in failing to direct the prosecution to specify which act of the accused was being relied upon to found the charge, and that the appeal judge erred in law in not deciding that the prosecution at first instance was required to elect which of the three acts specified was relied upon to found the charge.
[8] (2009) 22 VR 323.
The Court of Appeal held that the rule against duplicity was a rule of law but that there were exceptions to the rule, some of which involve questions of fact and degree.
In Rixon v Thompson, the various acts of indecency took place over a period of several hours and in different locations. In a joint judgment, the Court of Appeal observed there was much to be said for the view that what took place on the day in question was one continuous criminal episode albeit punctuated by a number of specific acts, one victim, and one alleged offender, and at least broad similarities between the various acts alleged.[9] It was not relevant that it was not a case where different defences might realistically have been available in relation to some acts, but not others.[10] The court held that the time that elapsed from the first act of indecency to the last, a period of several hours, was not so long as to prevent the conduct from being characterised as a single criminal activity[11] and concluded that the case fell within one of the recognised exceptions to the rule against duplicity, described as the “single transaction analysis”, and so the events could properly be viewed as a single continuous transaction.
[9] At para 94.
[10] At para 95.
[11] At para 96.
Further, if there was a fairness question to be addressed, then characterising the conduct as a single transaction did not produce unfairness, as the appellant was apprised of the legal nature of the offence with which he was charged, and also of the particular act, matter, or thing alleged as the foundation of the charge, and the appellant could have been in no doubt as to the case to be presented against him.[12]
[12] At para 98-99.
Here, the accused was on notice of the case against him, as was accepted in the submissions of defence counsel. In relation to Count 1 the entire episode of touching occurred in the bedroom within minutes, and in relation to Count 2, the four events said to constitute the indecent assault, occurred in the same location within the lounge room, and within the space of minutes. The accused’s position, as I have said, is that none of the events occurred at all.
Whilst it may have been preferable to require the prosecution to nominate a particular act of touching, or to lay a number of separate counts, in the circumstances of this case, I consider that the matter comes within the identified exception to the rule against duplicity. I accept Mr Niarchos’s submission that in relation to each count, in order to establish the charge, the prosecution must prove that all of the incidents of touching occurred.
Cross-Admissibility
The prosecution case was that the evidence led in relation to each count was admissible in proof of the other. Counsel contended that the evidence was admissible on the basis of an underlying unity. He said that both girls were young, both incidents occurred at the accused’s house, both occurred when the accused was alone in a room with each complainant, and both complainants allege that the accused touched the complainant’s breast.
Counsel submitted that the common features of the evidence are such that unless the complainants conspired to concoct their accounts, there is no reasonable explanation for their versions other than to support an inference that the accused is guilty of the offences charged.
I bear in mind that the prosecution and the accused are entitled to a separate consideration of each of the counts, in light of the evidence that applies to it. That is, unless I am satisfied beyond a reasonable doubt by the evidence relating to a particular count, that the accused is guilty of that count, then he must be found not guilty. Depending upon my view of the evidence I may find the accused guilty of both counts, not guilty of both counts, or guilty of one and not guilty of the other. Further, merely because I might find the accused guilty of one count, I should not use that as indicating any propensity of the accused towards such offending in considering whether the other count has been proved beyond reasonable doubt.
Section 278(2a) of the CLCA applies to the present case,[13] and provides:
[13]   R v Seigneur (2009) 103 SASR 207.
(2a)Despite subsection (2) and any rule of law to the contrary, if, in accordance with this Act, 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular      alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim;
(c)     in determining admissibility for the purposes of paragraph (b)—
(i)evidence relating to the count may be admissible in relation to another count concerning a different alleged victim if it has a relevance other than mere propensity; and
(ii)     the judge is not to have regard to—
(A)whether or not there is a reasonable explanation in relation to the evidence consistent with the innocence of the defendant; or
(B)whether or not the evidence may be the result of collusion or concoction.
The statutory test set out in s 278 is less demanding than the common law test of admissibility.
I propose to deal with the evidence on the basis that I would have to be satisfied beyond reasonable doubt of the evidence of one complainant before I could use that evidence in relation to the count charged in relation to the other complainant. I would also have be satisfied beyond reasonable doubt that concoction or contamination had not occurred. Even after being satisfied of those matters, I could not use the evidence unless I was satisfied that there was no rational view of that evidence consistent with the innocence of the accused. That is, having accepted the first two matters, I would only use the evidence if it bears no other possible explanation, other than the inculpation of the accused person in the charged offence.
Ultimately the question of cross-admissibility may play little part in my deliberation, as, if I accept the evidence of a particular complainant as to the elements of the offence directly relating to that complainant, and there is no rational explanation consistent with anything other than the guilt of the accused, then I would find the accused guilty of that count in any event.
Concoction/Contamination
Counsel for the accused did not put to either of the complainants that they had concocted the evidence.
It is not for the accused to prove that contamination of evidence occurred. It is for the prosecution to prove beyond reasonable doubt that it did not occur.
It was put to J however, that M had written to J setting out details of what she said the accused had done to her many years ago. She wrote an email to that effect to J sometime in 2006. The fact that the initial complaint was made, and that many years later M wrote to her sister complaining of those same events, is not surprising. It appears that the later communications were made in the context of discussions within the wider family, concerning the allegations of the complainants.
The complainants were each aware that in giving evidence, they were to only give evidence of what they could remember, not, with the exception of the initial complaint, about what they had been told.
J gave evidence that her account in court of the complaint by M made shortly after the offending, was given from memory of that complaint, rather than from the written account over 20 years later. Her account given in evidence was consistent with what was said to be the description of the written account given by M in 2006. It may be that J’s memory was affected by what was later written to her, however M’s allegations are broadly consistent in each account. I am satisfied beyond reasonable doubt that the two complainants did not concoct their evidence, in the sense of fabricating an account of events. I am satisfied beyond reasonable doubt that M did indeed complain to J close to the time of the alleged offending about what the accused had done to her.
I am satisfied beyond reasonable doubt that the prosecution has established that there was no contamination of the evidence.
Uncharged Acts
There was evidence from each complainant that on occasions prior to the charged occasions, the accused would push his tongue into their mouths when they greeted.
The whole of the alleged course of events in relation to each complainant provides a context in which it is said that the charged incidents occurred. In that way it can be said that the preceding events throw light on the relationship which each complainant described as existing between herself and the accused.

The evidence of the uncharged incidents along with the evidence going directly to the charges, in relation to each complainant, can be used by me in determining what, if any, weight I am prepared to place on each complainant’s evidence. The evidence may assist me in concluding that a complainant’s evidence is reliable. Alternatively, it may assist the defence in showing inconsistency or unreliability or inherent improbability in their evidence, and thereby raising doubt about the charges.
It may tend to explain why a particular complainant did not make an immediate complaint when the charged incident was said to have occurred. It may explain why the accused expected the complainants’ co-operation and silence.
Further, it could be used to assist in explaining the background against which the charged offence came about where the complainants’ evidence of the offences charged may otherwise have been unreal or unintelligible or not fully comprehensible.
I will only use the evidence of uncharged acts where I am satisfied beyond a reasonable doubt that such an act occurred. I remind myself that it would be wrong for me to conclude from the other conduct of the accused that he is the sort of person who would be likely to commit the offences with which he is charged. My verdicts must be delivered on the basis of the evidence in relation to the charges themselves.
The Elements of the Offences
Indecent Assault – Counts 1 and 2
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The prosecution must prove each of four elements beyond reasonable doubt. The first element which must be proven is that there was an application of force or violence to another person. Any touching or handling is sufficient. There need not be any great application of force.
Here, in relation to Count 1, the acts alleged to constitute the assault are that the accused kissed J on the neck, rubbed his hand along the side of her body and rubbed her breast.
In relation to Count 2, the acts alleged to constitute the assault are the accused putting his tongue into the complainant’s mouth, touching her breast, putting her hand on his groin, and pulling her head towards his groin.
The second element requires that the application of force must be intentional rather than accidental touching. The third element is that the application of force must be without lawful justification or excuse.
The fourth element is that the assault must be accompanied by, or occur in circumstances of, indecency. I bear in mind that opinions may differ as to what is or is not indecent, but there are types of conduct which by any reasonable standard can only be described as indecent.
Given the undisputed age of the complainant in each count, consent is not an issue. The defence did not dispute that if the acts alleged by J and by M were committed, the acts in each case constituted an act of indecent assault.
Witnesses
The Crown case comprised the evidence of J and M, together with letters from the accused to the complainants. The accused gave evidence in his own defence and was the only defence witness.
The Prosecution Evidence
Complainant J
At the time of giving evidence the complainant J was 40 years of age, having been born on 19 July 1970. During the time particularised in the Information she was therefore between 12 and 14 years old.
At the time the alleged incident occurred J was living at Ingle Farm with her mother and sister. She would often visit the accused and her grandmother. She said on occasions prior to the alleged offending when she had gone to visit her grandparents, she would greet the accused with a kiss and a cuddle, but on occasions he would put his tongue in her mouth. She said “he would make sure he would kiss you on [the] lips, his lips would be pursed and he would force his tongue in between my lips.” That first happened when she was about 12 years old and occurred about six times.
She said that on one occasion when she was about 13 years old, and in year nine at high school, she attended with her sister at her grandparent’s house. Her mother went out for the night. J developed a headache and her grandmother suggested that she lay down in the main bedroom. She said that she went and laid down on the bed, with the door ajar. She woke up to find that the accused “had his leg cocked over [her] and was kissing the right side of [her] neck and rubbing [her] up and down with his hands.” She was clothed. She said the kissing on her neck woke her up and she could feel the movement of his mouth on her neck, and it was wet. She pretended to remain asleep and rolled to her side. He continued rubbing down her side, touching her breasts, and rubbing up and down her body. She said that went on for perhaps five or ten minutes. She said that she could feel a hand up and down the side of her body and his hand on her breast. She said that she heard the doorbell ring. The accused got up and put his shorts on. She was not sure what he was wearing prior to that.
She said that after the incident in the bedroom she made sure that she did not stay alone with the accused.
Verbal Apology
J said that she had attended at the accused’s house, on her evidence in about 2004, to discuss the matter with the accused. She said that she wasn’t literally asking for an apology, but rather told him what he had done to her, and he apologised. She said that she told him about the act in the bedroom and how that had affected her life. She said that he started crying and apologising and said “I’m sorry, I don’t know what was wrong with me”.
Written Apology
J gave evidence of having received a letter dated 5 October 2006 from the accused[14]. In order to set the context for that letter, and the accused’s explanation for that letter, I admitted into evidence a letter from the complainant’s mother to the accused[15] which reads, in part, as follows:
[14] Exhibit P5.
[15] Exhibit P8.
I hope you are reading this in my presence, but if not it shows that I have “chickened out”. It has always been easier for me to express myself on paper. On many occasions I have wanted to discuss this matter with you but due to my sensitive emotional state have always put it off.
A few months ago my girls wrote to you, expressing their feelings toward you and severing ties. I did not expect at the time that other family members would also be cut out of their lives.
As well as not being able to face you any more, they feel betrayed by other family members who have not faced you over injustices done to them.
The girls feel betrayed by me even though I have always been there for them and supported them, because I did nothing all those years ago. They took this as acceptance and forgiveness for your actions.
…
The situation has become unbearable for me, I miss my children desperately and I therefore feel justified in asking that you look at things from their perspective, understand how they feel and take the following steps:
a.     write to the girls
b.     admit that you did wrong
c.     apologise for what you did
d.     tell them you love them
e.     apologise for the hurt and anguish you have caused them over the years.
f.     apologise for the hurt you have caused me, their mother
g.     ask them to try and forgive you.
h.     ask them to forgive me, their mother.
Hopefully then, dad we can put some family bonds back in place and get on with our lives without this lurking over us in the shadows. I am confident that relationships will definitely improve all-round.
…
Nobody is perfect, everyone makes mistakes and does things they shouldn’t do, but it is admitting to the imperfections and wrong-doings that helps us to become better human beings.
The letter dated 5 October 2006 from the accused to J said in part:
I’ve always loved you and your expressions of ill will toward me will never change that.
You’ve asked for an apology. Once again, J, I do sincerely apologise for the trauma I’ve caused by my actions with you.
I did wrong.
That wrong has caused pain to my whole family and, believe me, I have suffered from my stupidity.
Some months ago you came to me for an apology. I gave it with expressions of sorrow for my misdeed.
The last paragraph is broadly consistent with J’s account of the accused apologising to her.
Cross-examination of J
J was cross-examined on the basis that if the doorway into the bedroom was open anyone in the living area of the house could have seen into the bedroom. She said that there was an open backed shelf unit which may have obscured the view. She agreed that when she went into the bedroom her grandmother was in the lounge, as was her sister and the accused. She agreed that if she had called out she would have been heard, but said that she remained silent and no words were spoken.
It was put to J that her description of what had happened between the accused and her was a fabrication and did not happen at all. She said “that’s untrue”. It was also put to her that the accused had never put his tongue in her mouth prior to the incident in the bedroom, and she repeated that it had happened before the occasion in the bedroom.
As to the letter of apology, J agreed that she had been having communications with her mother during 2006, prior to receiving the letter from the accused, and that those communications related to the accused. She denied however telling her mother that her mother was to have nothing to do with J’s children because her mother was supporting the accused. She said that she and her mother had had a fight on the phone, after J told her mother that her mother’s lack of action on this issue had affected her. She agreed that she had a strained relationship with her mother during 2006. She denied having a conversation with her mother about requesting a letter of apology from the accused. She said the letter in 2006 came as a surprise to her. She had not asked for an apology, nor had she asked her mother to ask for an apology for her.
It was also put to J that the accused had never at any stage expressed any apology for what she alleged he had done to her, and she re-stated that the accused had apologised, both in the letter and on the occasion she attended at his house.
For reasons I will come to, I accept J’s account of her visit to the accused’s house in about 2004, and her account of confronting the accused about what he had done and the effect of that upon her. I accept her evidence as to the accused’s apology for his actions.
Complainant M
At the time of giving evidence M was 38 years of age, having been born on 2 January 1972. During the time particularised in the Information she was, as I have said, between 11 and 13 years old.
M also gave evidence at the time of the alleged offence she was living in Ingle Farm with her mother and sister. She said that the accused lived with her grandmother at Modbury. She would visit him frequently. She said that she would visit with her sister and mother, or her mother would drop them off.
M said that on occasions when she had visited the accused, and gone to give him a hug and a kiss he had put his tongue in her mouth. She said that happened perhaps on three occasions although she did not keep count.
She gave evidence that on one occasion she was in the lounge room with the accused watching cricket. She said she would have been 11 or 12 and it was about 1984. The accused asked her to go over and “give him some love”, and she went to give him a kiss on the cheek, and he turned his head and forced his tongue into her mouth. She said at the time he was sitting in a single chair and she was on another chair in the lounge room. She said that when she went to give him a cuddle she had leaned to over him from the front.
She said that when the accused kissed her she could feel the accused’s tongue in her mouth. She said she cried and said “no”. She said the accused put his hand on her breast although she could not remember which hand he used. That was on the outside of her clothing, and he rubbed her breast. She said he then put her hand on his penis and made her rub that and again she said “no” and tried to pull away. He forced her head down towards his groin. She said her head touched his groin area. She said that she was crying and upset and kept saying no.
Afterwards the accused said to her “don’t tell anyone” and said that was because he would go to gaol.
She said that at the time the incident occurred, her grandmother was in the backyard hanging clothes on the line. She said that she heard the laundry door open and her grandmother come in from the back.
She said after the incident she went into the bathroom and stayed there for five or ten minutes. She was upset and shocked. She returned to the lounge room and just sat there.
Initial Complaint
Evidence of M
A couple of weeks later M told her sister, J, about what had happened. M said that she was in her room, upset, and J asked her what had happened. She described what had happened in similar terms as the evidence she had given in court.
Evidence of J re M’s Complaint
J said that she came home from school and found her sister, M, crying in her room. She asked M what was wrong and received the response “Pop did something to me”.
She said that M described the accused calling her over to sit on his lap, touching her breasts, forcing her hand onto his penis, and M saying “no I don’t want to, I don’t want to” and the accused trying to force her head down towards his groin, and later saying “you can’t tell anybody otherwise I’ll go to gaol”.
Cross-examination of M
M agreed in cross-examination that the first written complaint she had made about the accused was on 20 October 2006, in a statement to police she made in Queensland.
She agreed that on the day of the alleged incident the accused was sitting in a chair with his back to the kitchen area. She said that the accused was seated and she leant over to kiss him on the cheek. She was standing in front of him. She said she couldn’t recall if she was standing the whole time. She said that she was standing and leant over to give him a kiss on the cheek but at the end when she was pulling away she thinks she was kneeling. She cannot recall how she got into that position. She said she could not recall the accused saying come and sit on my lap or words to that effect. Later she denied that he had said that.
She was asked whether she had said to J that the accused had told her to sit on his lap. She said she could not recall that.
She agreed that when she made a statement to police she said that the accused had forced his tongue into her mouth, and that she was taken aback, and that nothing like that had occurred to her before. That was put by counsel for the accused as a prior inconsistent statement. She explained that, saying it had happened before but not with such force.
She said however that on the occasion of the charged incident, the accused’s attempt to put his tongue in her mouth was different, and was quite forceful. She said that when that occurred she was not sitting on the accused’s lap. She could not recall whether she was kneeling or not. She agreed that she had said nothing about kneeling when she first made a statement to police. She said she could not recall her precise position, whether standing, kneeling, or otherwise, when the accused put his hand on her breast. She said the sequence of events was that the accused put his tongue in her mouth, he then touched one of her breasts, and then put her hand on his penis or groin area.
M said she could not recall telling her sister that the accused had asked her to sit on his lap. She said in evidence she could not recall sitting on his lap. She said that when the accused tried to force her head down towards his groin area she was moving away and it was like she was in a kneeling position.
The following was put to her:
QI suggest to you that the events you have described, that you say happened between your grandfather and yourself on this day, did not happen, they are untrue.
AYes, they did happen. He knows it.
QYou say that they happened and they happened in the way you describe.
AThey did happen.
She said she heard the sound of the back door, and at that time the accused let go of her head and she was able to get up. She agreed that when she made a statement to police in October 2006 she said that she got away from the accused, went and sat in a chair, and sometime later her grandmother came into the house.
She agreed, that in a document she had sent to her sister, she had said that the accused asked her to come and sit on his lap, although she said that she could not recall making that statement.
Cross-examination of J re M’s Complaint
It was put to J that in the period leading up to October 2006, J’s sister, M, had provided a document to J, setting out her account of what the accused had done to her. She said that she could not recall receiving such a document. She agreed that she may have however received such a document but could not recall doing so. She denied however that any such document refreshed her memory as to the conversation she had with M, to which I have already referred.
She was asked whether M told her that she went over and knelt in front of her grandfather, and said not that she could recall, and that was not said. She confirmed that whatever was said, it was made clear that she went and sat on his lap.
J had sent M an email acknowledging receipt from M of an email setting out M’s allegations. Although J did not recall receiving that, she accepted that she must have done so. J maintained that her evidence had been given from a memory of a conversation she had had with her sister when they were in their early teens, rather than based on an email sent in 2006.
She agreed that M told her that at the time of the offences committed against M, their grandmother had been in the backyard, and that she had been told that M was sitting on her grandfather’s lap when the incidents occurred.
Written Apology
By letter dated 5 October 2006[16] the accused wrote to M in generally similar terms as his letter to J, saying, in part:
I’ve always loved you; what you think of me can’t change that at all, you have certainly eloquently expressed your ill will toward me.
You asked for an apology for what I did with you and so, M, I do sincerely apologise for the trauma I’ve caused you.
I did wrong.
That wrong has caused pain to my whole family, and I guarantee you, I have suffered too.
[16] Exhibit P1.
Defence Evidence
As I have said, the accused gave evidence. He was 85 years old at the time of trial. At the time the offences are alleged to have occurred he was about 60 years old. He denied that the events described by M ever occurred whatsoever, in the allegations she had made.
He agreed that he sometimes babysat for his children, that is, looked after his grandchildren. He agreed that his granddaughters were, on occasions dropped off at his house by their mother. He said he could not recall a specific occasion when M was at the house watching cricket. However he denied that there was an occasion when just he and M were watching the cricket. He said that he and M were never alone, because his wife was always there, or his daughter, or J.
He was asked about the incident described by J and said that it did not happen, ever. As to the evidence given by J, he said that the wall unit did not obstruct the view between the dining room and the bedroom. He said there was a view into the house through clear glass windows.
Of the visit by J to his house sometime prior to October 2006, (on J’s evidence about 2004) he said that he did not know how that came about, J just arrived. He said that J had come to his house some months before he wrote the letters which are in evidence.
He was asked why it stood out in his memory and said “well it is always good to see J, I love my granddaughters so it was good to see her, nothing specific that stands out in my mind.”
He was asked whether something happened when she arrived and said “we had our usual hug” but denied that there was any discussion about anything in particular, and no discussion about an alleged abuse of her by the accused.

Of the letter to J, he said that he wrote that on the same day as the letter to M. He was merely addressing matters that were raised by his daughter. He was not intending to apologise for what J alleges he did to her.
Of the letter he wrote to M in October 2006 he said that he wrote that because his daughter wanted to reinstate her relationship with her daughters and that his daughter asked him to write that letter. He was asked how long before he wrote the letter he had been asked to do so and said “I imagine that I would have done it fairly quickly after she asked me to do it. I am a “do it now” fellow military fellow, immediate action.”
He was asked what he was apologising for in the letter to M, and said that his apology was based on his daughter’s request to reinstate their relationship. He denied that he was apologising for any of the matters which are the subject of allegations made by J and M in court. He said he was definitely not referring to the allegations, it was an open ended apology.
He said of his letter to M, that M had not asked for an apology, and that he was referring to the request for an apology made by his own daughter. He said that his statement in the letter “I did wrong” was merely a response to his daughter’s request that he “admit what you did is wrong”.
Cross-examination of the Accused
In cross-examination the accused agreed that sometimes J and M would visit his house during the day, and sometimes in the evening. He agreed that on occasions only one of his granddaughters would attend. He was asked:
QAnd at times they would visit you’d agree, wouldn’t you, that there were occasions where you would have been alone in a room, any of the rooms in the house with them; for example, the lounge room.
ANo, I was very careful of that, no.
QYou’re their grandfather.
AYes, I know, but I know young children too, because I have six of my own.
Ultimately he conceded that there may have been occasions when he was alone in a room with J or M.
He was asked about Exhibit P8, the letter from his daughter, and said that he did not know what his daughter was talking about when she said “the girls feel betrayed by me, even though I’ve always been there for them, it’s important because I did nothing all those years ago, they took this as acceptance and forgiveness for your actions”.
He said that he did not know what his daughter meant by “admit that you did wrong” and did not know what the “wrong” was. He did not know what he was supposed to apologise for. He was asked what he was referring to when he wrote “that wrong has caused pain to my family and, believe me, I have suffered from my stupidity”, and said “nothing specific, nothing specific”.
He was asked what misdeed he was referring to when he wrote to J “some months ago you came to me for an apology, I gave it with expressions of sorrow for my misdeed” and replied “there was no specific misdeed whatsoever. … I just gave expressions of a general nature. Broad based, open ended, nothing specific.” He was asked what stupidity he was referring to having suffered from, and said “no specific stupidity whatsoever”.
He said that he only wrote the letter in an attempt to empathise with his granddaughters, to please his daughter, and to get the relationship back on track and “get rid of all this garbage that had been coming in my direction”.
He was asked whether he was aware, at the time he wrote the letter, of the allegations by J and M. His answers were evasive. After counsel for the prosecution persisted, he conceded that he was, prior to writing his letters, aware of the nature of the allegations made against him by J and M as a result of seeing emails written by them.
Re: Prior Inconsistent Statements
I bear in mind, in considering the evidence, that it is necessary to keep in mind the basic principle that a case must be decided upon the evidence given on oath and subject to cross-examination in court. What a witness has said out of court is not evidence in the case. I also bear in mind, however, that there are certain respects in which it may be taken into consideration. If, as is alleged to be the case here, a complainant has said something outside the court which is inconsistent with her evidence in court, I may take the inconsistency into consideration when deciding whether to accept her evidence in court.
The cross-examination of each complainant relating to prior inconsistent statements, challenging the reliability of each complainant’s memory, and her credibility, must be considered in the context that each complainant is now a mature woman, relating events said to have occurred some 25 years ago. The inability of each complainant to precisely describe the events is not surprising. Indeed had they been able to recount the events in precise chronological order and great detail that may have been surprising.
Whilst there are some inconsistencies between what was said to police and other written material and evidence-in-chief, such inconsistencies do not cause me to doubt the veracity or reliability of either complainant as to the occurrence of the events constituting Counts 1 and 2 respectively.
Findings
I bear in mind of course that the accused does not have to prove a motive to lie, or indeed to prove anything, and that it is for the prosecution to prove each element of the charge beyond reasonable doubt.
I accept both complainants as witnesses of truth. I was impressed with their evidence and the manner in which the evidence was given. They made concessions in cross-examination. They did not give the impression of engaging in speculation. Whilst there were aspects of uncertainty given the passage of time, their evidence as to the occurrence of the sexual acts committed by the accused against them was unequivocal and convincing. The actions constituting Counts 1 and 2 were clearly identified.
I accept the evidence of each complainant as to the incidents constituting the charged offences. I accept that M made a complaint to J within weeks of the episode she complains about.
I found the accused to be an unimpressive witness. I bear in mind the difficulty faced in endeavouring to assess a witness’s veracity by his demeanour in the somewhat unnatural environment of the court room. I also bear in mind that the accused’s evidence is to be considered in light of his age and the potential effect of age, and the passage of time upon his memory. He lacked credibility. I reject his denials of the specific matters alleged against him which are the basis for the charges.
As to the letters admitted into evidence, I bear in mind that the letter from the complainant’s mother to the accused does not constitute evidence of the truth of any allegations contained within it. At most the letter is a general allegation against the accused implying some inappropriate behaviour.
The accused’s letters, particularly in view of his acknowledgment that he was aware of the nature of the allegations made against him by J and M, in my view, amount to admissions as to inappropriate sexual behaviour. They are not specific admissions in relation to either the charged acts or the uncharged acts.
The accused’s attempt to explain each aspect of his letters to each of the complainants as being merely a response to a request by the complainants’ mother, entirely lacks credibility. I reject his explanation as to the interpretation which should be placed upon the letters. I also reject the submission that the letters are capable of any other interpretation, in the circumstances. The admissions contained in the letters are, in my view, at least some corroboration of the complainants’ evidence.
I accept J’s evidence that the accused verbally apologised for his actions with J. His letter is entirely consistent with that. In the total circumstances it is not consistent with any other scenario.
In relation to the evidence relating to the uncharged acts I note that the evidence was introduced without objection. I find it proved beyond reasonable doubt that the accused did put his tongue into the mouth of each of the complainants on occasions prior to the charged acts. I do not have regard to the evidence in relation to the uncharged acts as being evidence of propensity on the part of the accused. However, the uncharged acts constitute some evidence of a sexual interest in the complainants.
I do not ultimately rely on the evidence of either complainant with respect to the charge involving the other, but rather, have determined each verdict on the basis of the specific evidence relating to each count.
Disbelieving the accused of course does not establish the prosecution case. It is necessary for me to consider whether the elements of the offences constituting Count 1 and Count 2 have been proved on the evidence. I find the elements of each charge proved beyond reasonable doubt, on the basis of the evidence of the respective complainants, after carefully considering the evidence of each complainant.
Findings as to Count 1
The allegation, as I have said, is that the accused, between the 31^st day of December 1982 and the 1^st day of January 1985, at Modbury, indecently assaulted J.
Whilst visiting the accused’s house the complainant J had gone to lay down in the accused’s bed, as she had a headache. She awoke to find the accused kissing her neck and rubbing his hand along the side of her body and rubbing her breast. She pretended to be asleep and moved to her side and the accused continued to touch her in that way.
As I have said, I reject the evidence of the accused, but that of course does not mean that he is guilty. I must consider the evidence led by the prosecution and ask myself if, having taken into account the warning to which I have referred, I am satisfied beyond reasonable doubt that the accused is guilty.
I accept J as a witness of truth. I have carefully scrutinised her evidence. I am satisfied that the prosecution has proved each element of the charge of indecent assault beyond a reasonable doubt. I find the accused guilty of Count 1.
Findings as to Count 2
It is alleged by M, that the accused, between the 31^st day of December 1982 and the 1^st day of January 1985, at Modbury, indecently assaulted her. She said that occurred in the lounge room while she and the accused were watching cricket. He called her over to “give him some love” and when she went to kiss him he moved his mouth and forcefully put his tongue inside her mouth. He touched her on the breast and then took her hand and placed it on his groin. He tried to pull her head down towards his groin.
Once again, although I reject the evidence of the accused, that does not mean he is guilty. I am required to examine the evidence produced by the prosecution and only if satisfied beyond reasonable doubt as to each element of the charge, can I find that the accused is guilty.
I accept M as a witness of truth. Again, I have carefully scrutinised her evidence. I am satisfied that the prosecution has proved each element of the charge of indecent assault beyond a reasonable doubt. I find the accused guilty of Count 2.
Verdict
I am left with no doubt that the specific acts alleged by the complainants occurred. Accordingly, I find that each element of each charge of indecent assault has been established beyond reasonable doubt.

Count 1 – Guilty.
Count 2 – Guilty.