R v H, KA - [2015] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v H, KA
Criminal Trial by Judge Alone
[2015] SADC 76
Reasons for the Verdicts of His Honour Judge Costello
29 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING UNLAWFUL RELATIONSHIP WITH CHILD
Accused charged with Persistent Sexual Exploitation of complainants F and M, Aggravated Indecent Assault of F (as an alternative offence), one count of Unlawful Sexual Intercourse of F (as an alternative offence) and two counts of Unlawful Sexual Intercourse of M (as alternative offences).
Verdict:
Guilty of Count 1 - Persistent Sexual Exploitation of F.
Guilty of Count 4 - Persistent Sexual Exploitation of M.
Criminal Law Consolidation Act 1935 s 49(1), s 50(1), s 56(1); Juries Act 1927 s 7(1); Evidence Act 1929 s 9, s 34CA, s 34D, s 34P, referred to.
R v C, CA [2013] SASCFC 137; R v Maiolo (No 2) [2013] SASCFC 36, considered.

R v H, KA
[2015] SADC 76

This is a trial by judge alone. The accused, H, is charged with the following offences:
First Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, over a period of not less than three days, committed more than one act of sexual exploitation of [F], a person under the age of 17 years, by:
(a)     sucking and/or licking [F]’s nipple/s;
(b)     showing [F] his penis;
(c)     inserting his penis into [F]’s vagina on numerous occasions;
(d)     putting his penis on [F]’s genital area on numerous occasions;
(e)     causing [F] to touch his penis;
(f)    causing [F] to perform an act of fellatio upon him;
(g)     taking a photograph of [F]’s genital area.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, indecently assaulted [F], a person of the age of seven years.
Third 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
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, had sexual intercourse with [F], a person of the age of seven years, by inserting his penis into her vagina.
Fourth Count
Statement of Offence
Persistent Sexual Exploitation of a Child. (Section 50(1) of the Criminal Law Consolidation Act 1935).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, over a period of not less than three days, committed more than one act of sexual exploitation of [M], a person under the age of 17 years, by:
(a)     sucking and/or licking [M]’s nipple/s;
(b)     causing [M] to suck and/or lick his nipple/s;
(c)     showing [M] his penis;
(d)     causing [M] to touch his penis;
(e)     causing [M] to perform an act of fellatio upon him;
(f)    inserting his penis into [F]’s vagina on numerous occasions;
(g)     putting his penis on [M]’s genital area on numerous occasions;
(h)     putting his penis into [M]’s anus;
(i)    taking a photograph of [M]’s genital area.
Fifth 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
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, had sexual intercourse with [M], a person of the age of five years, by inserting his penis into her vagina.
Sixth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person Under 14. (Ibid).
Particulars of Offence
[H], between the 1^st day of June 2013 and the 30^th day of December 2013 at Gilberton or another place, had sexual intercourse with [M], a person of the age of five years, by causing her to perform an act of fellatio upon him.
In relation to the complainant, F, counts 2 and 3 are charged in the alternative to count 1. In relation to the complainant, M, counts 5 and 6 are charged in the alternative to count 4.
H pleaded not guilty to the charges. He elected to be tried by a judge sitting without a jury pursuant to the provisions of s 7(1) of the Juries Act 1927. He was represented by Ms Barnes. Ms Dunlop appeared for the Director of Public Prosecutions.
The Court of Criminal Appeal has said that it is not necessary, in a trial heard by a judge sitting without a jury, that the Court should detail every obvious and basic direction which might be given to a jury.
I do, nevertheless, record that I have reminded myself of the following:
1       An accused person is presumed innocent of all charges unless and until guilt on any particular charge has been proved beyond reasonable doubt.
2       The prosecution bears the burden of proving each particular charge beyond reasonable doubt and this requirement extends to proof beyond reasonable doubt of each and every element of each offence.
3       The accused does not carry any onus of proof and to the extent that he might put forward a defence, he does not have to prove it.
4       It is not sufficient for the prosecution to show suspicion of guilt or even to demonstrate probable guilt. Only proof beyond reasonable doubt can give rise to a conviction. 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 that charge.
5       Each of the counts on the Information concerns a separate offence. I must treat each separately and consider only the evidence relevant to that charge. If I were to find the accused guilty of one of the charges, on the evidence relevant to that charge alone, I must not use that evidence nor the fact of that finding to assist in the proof of any of the other charges. Nevertheless, such evidence may be relevant to the background or circumstances surrounding the events said by the prosecution to give rise to each of the offences charged.
6       The charges do not stand or fall together. If I were to be satisfied beyond reasonable doubt that the accused committed one of the offences charged, it does not follow that he also should be found guilty of any of the other offences charged. Depending on my findings on the evidence, I may find the accused not guilty of all offences charged or guilty of one or more of them.
7       I have reminded myself of the normal directions given to juries concerning the proper approach to assessing the various witnesses who gave their evidence, their credibility and reliability and the proper approach to drawing inferences of fact. In this case, the accused elected not to give evidence and he remained silent. The accused was not bound to give evidence and he had the right to decline to give evidence. Because that is his legal right, I am not permitted to draw any inference adverse to him or the case he puts forward from the exercise of that right. There may be many reasons why he did not give evidence and I should not speculate on those reasons. I have not done so. The accused’s silence in Court is not evidence against him; does not constitute an admission by him; may not be used to fill gaps in the evidence tendered by the prosecution and may not be used as a ‘makeweight’ in assessing whether the prosecution has proved its case beyond reasonable doubt.
8       In assessing the evidence of the witnesses I am entitled to accept the evidence of any witness in whole, in part or not at all. Even if I were to find that a witness may be unreliable about some part of the evidence, it does not follow that I must not accept other parts of the witness’s evidence. Despite the fact that I am not obliged by statute to do so, I intend to approach the evidence of the complainants with caution and only rely upon it where I am satisfied beyond reasonable doubt that it is both credible and reliable in relation to the count I am then considering.
9       Finally, I remind myself that I must determine whether or not the prosecution has proved the elements of each charge considered separately and beyond reasonable doubt. If I am unable to say where the truth lays in respect of a charge, then it necessarily means that the prosecution has failed in respect of that charge.
I now set out the elements of each charge which the prosecution must prove beyond reasonable doubt.
Persistent Sexual Exploitation of a Child
The elements of this offence are that:
·     The accused is an adult person.
·     The accused committed more than one act of sexual exploitation. An act of exploitation is an act which, if it were to be properly particularised, could be the subject of a charge of a sexual offence.
The alleged acts of sexual exploitation are those particularised in counts 1 and 4 respectively.
·     The acts of sexual exploitation must have been committed over a period of not less than three days.
·     The acts must have been committed in respect of a child who was under the prescribed age, which is 17 years.
Aggravated Indecent Assault
The elements of this offence are that:
·     The accused applied force to the complainant. A mere touch would constitute sufficient force. The allegations in respect to count 2 are that the accused sucked the nipple/s of F.
·     The application of such force was deliberate as opposed to being accidental.
·     The accused’s conduct, as described, occurred in circumstances of indecency.
·     The accused’s conduct, as described, was unlawful.
·     The offence was in the aggravated form, which will occur where the victim of the alleged offence is under the age of 14 years.
Unlawful Sexual Intercourse
The elements of this offence are that:
·     The accused had sexual intercourse with the complainant.
In count 3 the allegation is that the accused inserted his penis into the vagina of F.
In count 5 the allegation is that the accused inserted his penis into the vagina of M.
In count 6 the allegation is that the accused caused M to perform an act of fellatio upon him.
·     Such sexual intercourse was unlawful.
It is unlawful to have sexual intercourse with a person under 17 years.
·     That the complainant, with whom the person had sexual intercourse, was under the age of 14 years at the time of the sexual intercourse.
Gross Indecency
A person who commits an act of gross indecency in the presence of a person under the age of 16 years is guilty of an offence.
The elements of this offence which are constituted in three of the acts of sexual exploitation particularised in counts 1 and 4 respectively, are that:
1       The accused intentionally committed the following acts in the presence of F & M:
·Showing each of them his penis;
·Causing each of them to touch his penis; and
·Taking a photograph of the genitals of each of them.
2      That the said acts in each count were grossly indecent having regard to reasonable contemporary standards.
3      That F & M were each under the age of 16 years at the time.
I note that in relation to the alleged offences where age is an ingredient, it is an agreed fact that at the relevant time both complainants were under the specified age. F was 7 years and M was either 4 or 5 years.
The Prosecution Case
The prosecution called the following witnesses:
·     S, the complainants’ 14 year old sister, the person to whom they first revealed the conduct of the accused alleged to constitute the offences.
·     Senior Constable Fredella, a police officer from the Sexual Crimes Investigation Branch, who conducted an interview with F on 8 January 2014.
·     Ms Penny, a social worker with the Child Protection Service, who interviewed M on 23 January 2014.
·     F, a complainant now aged 9 years.
·     Dr Donald, a medical practitioner who conducted medical examinations of F and M at the Child Protection Service at the Women’s and Children’s Hospital on 23 January 2014.
·     M, a complainant now aged 6 years.
·     K, the complainants’ father.
·     T, the step-mother of F and mother of M.
The Complainants as Witnesses
Pursuant to s 9(1) of the Evidence Act 1929 a person is presumed to be capable of giving sworn evidence unless the Court determines that the person does not have sufficient understanding of the obligation to be truthful entailed in giving such evidence.
Although there was nothing specific to rebut the presumption, in view of the ages of the complainants, particularly M, I determined that it was prudent to conduct an inquiry to determine whether either or both of them had a sufficient understanding of that obligation.
I interviewed F in an interview room without robes (while the interview was transmitted to the courtroom by closed-circuit television) and determined that she had a sufficient understanding of the obligation. She impressed me, albeit during the course of a relatively brief examination, as an alert, intelligent, young girl and a person well aware of the importance attached to giving sworn evidence in a courtroom setting.
I then interviewed M in order to determine, whether at the age of 6, she had sufficient understanding of the obligation to be truthful entailed in giving sworn evidence.
I determined that she did not have a sufficient understanding. However, I did conclude that it was appropriate to permit her to give unsworn evidence because I was satisfied that she understood the difference between the truth and a lie. I told her that it was important to tell the truth and not a lie and she indicated to me that she would tell the truth.
Special Arrangements
Prior to the trial another Judge of this Court made orders for special arrangements to be employed when F and M gave their evidence. Each of them was permitted to give their evidence via closed-circuit television and while accompanied by a social worker. Furthermore, prior to the commencement of her evidence, the prosecution sought permission for S to give her evidence in the company of a person from Victim Support Services and for the Court to be closed. I made these orders.
Although these special arrangements were made, I have drawn no adverse inference to the accused as a result, nor have I allowed such arrangements to influence the weight to be given to the evidence of any of these witnesses.
The Prosecution Case in Overview
The accused and his wife, HB were family friends of the complainants’ parents.[1] T, who was born in Pakistan, knew HB from her time there. She had also met the accused once during that time. T came to Australia in 2010 and subsequently met the accused and HB at a party in Adelaide in 2012. Later they both came to dinner at her house. Thereafter, the two couples became quite friendly and visited each other’s houses on numerous occasions.
[1] When using the term 'parents' I acknowledge that T is the step-mother of F.
In or about July 2013 K went to visit his country of birth in Afghanistan. He was away between July and October of that year. During the time he was away the accused and HB visited T’s house regularly throughout the course of a normal week and on the weekend.
After K had left for Afghanistan T held a party at her house for a religious occasion celebrated by women. The accused accompanied HB to T’s house on this day. At about 12:30 pm the accused took the complainants on an outing. He did not return until some hours later.
F and M said that on this occasion he took them to his house. They had both been there before in the company of their parents.
Whilst they were there they said that the accused had sexual intercourse with each of them. F described how the accused used a condom on this occasion. He also sucked their nipples and had them touch his penis. He also asked F and M to lick his penis, which they did.
The accused took them out in his car on further outings during which, at least on one further occasion, he took them to his home. Similar sexual acts took place as had occurred on the first occasion, although on this occasion there is no suggestion that a condom was employed.
On another occasion when the accused took the complainants out in his car he also took their baby brother, A, with him. On this occasion whilst the car was parked, he told each of them to remove the bottom half of their clothing. He then took photographs of the genital area of each of them and exposed his penis to them. There was also another occasion when the accused was at the complainants’ house where he exposed his penis to them while playing with them in a bedroom where there were toys but with the door shut.
In late December 2013 their older sister, S, overheard F and M talking. Whilst talking she overheard them using the word ‘bottle’. When she asked them what they were talking about they, at first, said ‘nothing’. After she promised not to tell their mother they then told her (each one doing part of the talking and adding to the other’s conversation, albeit with F doing most of the talking) that this was a word that the accused had suggested they use in lieu of using the word ‘penis’. They also told her about what the accused had done to them, including making them touch his penis, having penile-vaginal intercourse with them, and later taking photographs of their genitals.
S then told their mother who called K to come home. K took the complainants to the police station that same day.
On 8 January 2014 F was interviewed by Senior Constable Fredella. On 23 January 2014 M was interviewed by Ms Penny.
On 23 January 2014 F and M were examined by Dr Donald. These examinations revealed no evidence of injury of any sort to the anogenital region of either complainant. The accused was subsequently spoken to by the police and then arrested. No evidence was adduced by either party as to whether the accused said anything (and if so what) to the police.
Section 34CA
Prior to the commencement of the trial the prosecution made application, pursuant to s 34CA of the Evidence Act 1929, to admit evidence, as to the nature and content of statements made by F and M to S, with respect to what the accused was alleged to have done on the occasions when he had taken the two of them to his house and on the occasion when he had taken them together with their baby brother, A out in his car.
The prosecution also sought, pursuant to s 34CA, to tender the statements, contained in the videotapes, of F’s record of interview (‘ROI’) with Senior Constable Fredella and M’s ROI with Ms Penny.
Section 34CA relevantly provides:
34CA—Statement of protected witness
(1)    A court may admit evidence of the nature and contents of a statement made outside the court by a protected witness from the person to whom the statement was made if—
(a)the court, having regard to the circumstances in which the statement was made and any other relevant factors, is satisfied that the statement has sufficient probative value to justify its admission; and
(b)-
(i)the protected witness has been called, or is available to be called, as a witness in the proceedings; and
(ii)the court gives permission for the protected witness to be cross‑examined on matters arising from the evidence.
(2)    A court may only give permission to allow a protected witness to be cross‑examined on such matters if satisfied that the cross‑examination is likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
(3)    Evidence that is admitted in a trial under this section of the nature and contents of a statement made outside the court by a protected witness may be used to prove the truth of the facts asserted in the statement.
(4)    In a criminal trial, the judge must, if evidence of the nature and contents of a statement made outside the court by a protected witness has been admitted but the protected person has not, for some reason, been cross‑examined on matters arising from the evidence, warn the jury that the evidence should be scrutinised with particular care because it has not been tested in the usual way.
(5)    In this section—
protected witness means—
(a)a young child; or
(b)a person who suffers from a mental disability that adversely affects the person's capacity to give a coherent account of the person's experiences or to respond rationally to questions.

Section 34CA identifies a number of pre-requisites for an out of court statement, made by a protected witness, to be admitted into evidence. The first two are:
· The court must be satisfied that the statement has sufficient probative value to justify its admission.
· The protected witness must have been called, or be available to be called, as a witness in the proceedings.
As to the first of these two conditions, I was satisfied that, taking into account the circumstances in which the statements were made, each statement had sufficient probative value to justify its admission.
Secondly, I was also satisfied that the protected witnesses were available to be called as witnesses.
The evidence having been admitted, the witness may not be cross‑examined unless, at least, one of two further requirements is met. Ms Barnes, on behalf of the accused, applied for permission to cross-examine each of the protected witnesses. In a written submission supplied to me prior to the hearing, she identified the various topics upon which she wished to cross-examine and the bases for so doing.
I ruled that I was satisfied that cross-examination on those topics was likely to elicit material of substantial probative value or material that would substantially reduce the credibility of the evidence.
Accordingly, I admitted evidence of the nature and contents of all three such statements into evidence. I pause to observe that, pursuant to s 34CA(3), the nature and contents of these statements may be used to prove the truth of the facts asserted therein.
In admitting these statements I do not overlook the provisions of s 34D of the Evidence Act with respect to the weight to be attached to the statements. I will have regard to the relevant matters in s 34D and take them into account when assessing the credibility and reliability generally of the evidence of S, F and M respectively.
Discreditable Conduct Evidence
The prosecution also filed a Notice of Intention to Adduce Discreditable Conduct Evidence. The Notice relevantly provided:
Particulars of the evidence of conduct
A1The nature of the discreditable conduct is the charged and uncharged acts of sexual misconduct against each complainant.
A2     The witnesses from whom the evidence is to be led are [F], [M] and [S].
A3 The use of the evidence said to be permissible under section 34P(2)(b) is:
(a)    where relevant, the evidence of each act of sexual misconduct against a particular complainant stands as circumstantial evidence which demonstrates a specific sexual attraction to that complainant and a tendency for the accused to act in furtherance of that sexual attraction.
(b)    the evidence shows the defendant to have a particular propensity to engage in the conduct described by the complainants.
The evidence was admitted without objection from Ms Barnes, who indicated that the permissible uses, to which the evidence could be put, could be left for her final submissions. Accordingly, there is no obligation upon me to consider the admissibility of this evidence strictly in accordance with the provisions of s 34P of the Evidence Act.[2]
[2] R v C, G (2013) 117 SASR 162 [53].
Against this background, I now turn to consider, in detail, the evidence given in the trial and to my assessment of the respective witnesses giving that evidence.
The Evidence
S
She is 14 years of age and the older sister of the two complainants. She shares a bedroom with F. She first came to know of the accused in 2012 when he visited her home with HB.
She described how the accused and HB visited her house regularly (two to three times per week) but later, during the time when her father was in Afghanistan, it was more in the order of three to four times per week. They came mostly at the invitation of her step-mother, T.
She said that they often came for lunch and that on some of those occasions the accused would play with the complainants.
She said that during the time K was away in Afghanistan the accused took the complainants out with him around four to five times and that prior to taking them, the accused would say words like ‘Oh, come, I’ll take you to the park’.[3] On one occasion he said that he had taken them to the zoo. [4] She said the accused did not identify to which park he was taking them. On occasions they were away for three hours or more, although sometimes it was less. It occurred in the afternoon mainly and they were out sometimes till the evening meal.
[3] T50.
[4] T50.
She initially said that he first took them out at the beginning of 2013, but later said that it was about two months before her father went to Afghanistan, which she agreed was in July 2013.[5]
[5] T51.
She then related a conversation that she had had with the complainants on 29 December 2013. She said she overheard them talking and using the word ‘bottle’ and saying ‘remember bottle’. She asked them what they were talking about. Initially they said ‘nothing’.[6]
[6] T55-56.
She again said ‘what are you guys talking about?’ and promised not to tell their mum and dad. She believes F said ‘We call [the accused’s] penis a ‘bottle’.[7] The English word ‘penis’ was not used, rather the Hazagari language phrase ‘choo choo’ was used.[8] She said the phrase was a phrase which refers to both a penis and a vagina. She said both of them were talking, ‘trying to add more description to each other’s sentence’.[9]
[7]     T56.
[8]     Both the complainants, as well as S, are quite fluent in English but on this occasion S said that they conversed with her and between themselves in both English and Hazagari – T56-57.
[9]     T57.
She said that they said that he had shown his penis to them and grabbed their hands and put them on his penis. They told her that, on the first occasion the accused said he was taking them to the park he took them to his house and that they said ‘that’s where he had done it’ and that it had happened ‘more than once’.[10]
[10] T58.
They also told her that the accused spoke of putting ice-cream on his penis and getting them to eat it.
They also spoke of him taking pictures of their ‘choo choo’ [vaginas] in his car.[11] When using the word ‘choo choo’ she said that they pointed between their legs. They said he had once put his penis in F’s mouth and ‘peed a bit’ in there and that she had spat it onto the accused’s shirt.[12]
[11] T58.
[12] T59 - S did not identify which of the two complainants said this.
S said that they told her that the accused had put the hands of each of them on his penis.[13] She also said that they said that the accused had put his penis in their ‘front’. By this S meant their vaginas.[14] She said that she was told that this happened at his house and on more than one occasion.[15]
[13]     T59-60.
[14]     T61.
[15]     T62.
While these things were being said F was shivering and shaking and M began to cry.[16] She believed that when she told them she was going to tell their ‘mum’ they became more scared.
[16] T62.
S also described an occasion about a week before 29 December 2013 when the accused visited and asked if he could take the complainants on another outing. She said the accused became angry when T said no.
In cross-examination she said it was the accused mostly who played with the complainants and that he played with them in her sister’s toy room. She said that the complainants called him ‘uncle’. She related an incident at her house where the complainants went into the toy room and one of them shut the door. She tried to look in but a curtain was pulled across the window. She said that the complainants told her on that day the accused exposed his penis to them.[17]
[17] T69-70.
She said on one occasion the accused walked to a nearby park with her sisters and her little brother and that later her parents and HB also walked down to the park.
She agreed that one day the complainants returned from an outing with the accused with ‘papers’ from the zoo and spoke about seeing kangaroos. She said they were away for about two hours.[18]
[18] T71.
She said that in her 29 December conversation with the complainants it was F who did most of the talking.[19]
[19] T71.
She said that on some things, like the accused putting his penis in M’s mouth, they disagreed and that there was also a disagreement about ‘what they’d done in different places’.[20]
[20] T72-73.
On the first occasion that the accused took them on an outing, she recalled the complainants saying ‘we went to his house and we ate dry bread’.[21] She agreed that they did not appear unhappy on returning from their outings with him, although M appeared to be reluctant to go out on occasions.[22] She denied that she had ever discussed sexual matters with them or that they would have seen anything other than kissing on television.[23]
Assessment of S as a Witness
[21]     T73.
[22]     T73 & 78.
[23]     T75.
S impressed me as a truthful and largely reliable witness. There were aspects of her evidence, with respect to things such as the timing of the accused’s first ‘outing’ with the complainants and the duration of her father’s visit to Afghanistan, which were at odds with the evidence of others. On those issues I prefer the evidence of her parents.
There was also her evidence as to the complainants saying the accused had put his penis in F’s mouth. It is unclear as to who exactly said what to S on this topic. S identified M as saying certain things with respect to it. For reasons which follow, I am not prepared to accept any of M’s uncorroborated evidence.
However, and again for reasons which follow, I do accept F as a truthful and reliable witness. Accordingly, on the topic of the details surrounding the alleged acts of fellatio, I prefer the evidence of F to that of either S or M.
Apart from these matters, I accept the evidence of S as a truthful and reliable account, particularly as it otherwise relates to the accused’s conduct as communciated to her by the complainants during their outings with him.
Senior Constable Fredella
As I have indicated the disc containing a ROI with F was introduced through him. He conducted the interview on 8 January 2014 some 10 days or so after the complainants had their conversation with S.
During the ROI F said the following things:
·    H [referring to the accused] said ‘eat my butt’ (3),[24] ‘do you want to eat my butt’ (19)
[24]     The figures which appear in the brackets refer to the page or pages in the record of her interview.
·    H said ‘do you want to put your butt in my butt’ (4)
oWhen using the word butt, I mean my front side (5)
o‘Front butt’ is the thing that we use to pee (22)
oDescription of H’s front butt (39)
oDescription of ‘plastic bag’ and his front butt (23)-(27)
·    H took a photo of our butt (7)
·    H said ‘don’t say butt butt cos someone is going to know’, so then he named it ‘bottle’ (8)
·    We went to his house 4 times (14)
·    The same things happened every time we went to [H]’s house (18)
·    The first time she and [M] went with [H] to his house
oHe showed us his ‘mimi’ (14-15)
·Explanation of ‘mimi’ being breasts (15)
o‘he ate ours’ (our mimi) (15)
·Explanation of ‘ate’ (‘like ... how babies eat it, the milk’) at (18)
·[We] had our clothes on, but [we] ‘putted’ our top up (20) I and [M] did that (21)
oHe said ‘eat mine’ (mi-mi) (21)
·Only [M] did that (21)
·    H had his clothes off – his shirt first and then his pants (15-16)
·    H started to do ‘bad stuff’, ‘butt butt’, ‘first he did the front one’ (16)
·    ... under the blankets, and then, and then H started to do the back, the‘back part’ and then, and then he ‘tooked’ us to Hungry Jacks (17)
·    ‘The other day H first tooked us to his house and did the butt butt’ and then he tooked us to the big horse, it’s far away (17)
·    H put his butt into a u shaped, yellow, plastic thing and pee’d in it and put it into my front butt and [M]’s (23-24)
·    H touched his pee (24-5)
oIt was sticky and yellow in his hands (28)
·    H put the plastic thing on his front butt and put it in ‘our’ butt (26)
o‘inside our butt’ (27)
o‘I felt it (27), it was ‘weird’ (28), ‘bad’ (29)
o‘whenever he put his butt in our front butt’, ‘it hurts’, hurt for ‘a long time’, but better now, just feeled sore (51-52)
·    [M] was next to me. We had our pants off (29) So did [H] (30)
·    [H] put his front butt into [M] ‘she did it as well’ (30)
·    Everytime we went to [H]’s house ‘we did the front butt’ (33) Me and [M] (34)
·    ‘But and the first time H put his front butt into [M]’s back butt’ (where the poo comes out) (34)
·    [M] said ‘why are we doing this’? (35)
·    [I] could see H & M doing the butt butt with H putting his front butt into [M]’s back butt (35-36)
·    H asked us to ‘eat my butt’, ‘front butt’ Me and [M] but we didn’t do it (38)
·    H took photos ‘our butt’, ‘front butt’, pants on but down. Me and [M] (46-49)
oH used a mobile phone – a Galaxy 4 Samsung to take the photos (48)
oHe said the first photo was ‘not good and then he ‘tooked another one’ (48)
·    His butt had wrinkles, was fat and shaped like an ‘L’ (39)
·    H had shaved his butt by the second time I was at his house, it was ‘white’, H shaved it but I didn’t see him do that (40)
F
In her examination-in-chief she said that:
·       The accused sucked her ‘mi-mi’ on one occasion and that he also did it to M once on the same occasion.[25]
[25]     T87.
·       M sucked the accused’s ‘mi-mi’ once but that she, F, did not.[26]
[26]     T87.
·       The accused took a photo of her ‘butt’ in his car – she was wearing pants but pulled them down to around her knees because the accused told her to do it.[27]
[27]     T88.
·       The accused said if she told anyone he would ‘kill’ her.[28]
[28]     T88.
·       She asked whether his ‘wife’ [would] look at the photo and he said no.[29]
[29]     T89.
·       He took a photo of M’s ‘butt’ but that she didn’t remember what M was wearing.[30]
[30]     T89.
·       The part of a boy’s body where he does his ‘wee’ she calls a ‘butt’.[31]
[31]     T89-90.
·       He showed them his ‘front butt’ each time they went to his house. He did so on the first occasion they went there and on the last occasion they went there and on other occasions in between as well as one occasion at her house.[32]
[32]     T90-91.
·       The accused showed her his penis in the car on one occasion and this was a different occasion from the occasion when he showed them his ‘mi-mi’.[33]
[33]     T91-92.
·       Between the first and last time at his house there were weeks in between.[34]
[34]     T92.
·       On the first occasion at his house the accused put a plastic U shaped thing on his front butt and on that one occasion only, he put it in her front butt.[35]
[35]     T93.
·       On that first occasion they also went to a park with the accused. The park was near the accused’s house and she hadn’t been to it before.[36]
·       Whenever they went to his house he put his front butt into her front butt.[37]
·       Only on one occasion did he use a plastic thing and he did butt-butt with her on more than one occasion without it.[38]
·       When he put his front butt into her front butt it ‘hurt’ – it was ‘rough’.[39]
·       She touched his front butt with her hands on the first and last time she went to his house.[40]
·       She touched it because he said ‘wash it’.[41]
·       He washed it but we only put shampoo on it.[42]
·       M touched his front butt with her hands.[43]
·       She ‘ate’, by which she meant ‘licked’, his front butt on one occasion after which he said ‘do it again’ but she didn’t.[44]
·       M also ‘licked’ it after the accused said to her to do it.[45]
[36]     T93.
[37]     T93.
[38]     T93-94.
[39]     T94-95.
[40]     T95.
[41]     T95.
[42]     T95.
[43]     T96.
[44]     T96-97.
[45]     T97.
In cross-examination she said that:
·       On the first occasion she watched TV at his house in the living room.[46]
[46]     T97 - 98.
·       The accused was not sleeping in the living room while she watched TV.[47]
[47]     T98.
·       They were at his house for more than one hour on the first occasion.[48]
[48]     T99.
·       The accused took them to see ‘the big horse’ but it was dark and closed by the time he arrived.[49]
[49]     T99-100.
·       On the day they went to see the ‘big horse’ he also took them to his house.[50]
[50]     T100.
·       On the day they went to the zoo they didn’t go to the accused’s house after they went to the zoo.[51]
[51]     T101.
·       She had only been to the accused’s house once with her parents but that she didn’t go into the bedroom on that occasion.[52]
[52]     T102-103.
·       She and M had talked about what happened at the accused’s house more than once.[53]
·       When telling S about what happened at the accused’s house and in the car she, F, did most of the talking – M didn’t say very much.[54]
·       Sometimes she ‘asked M for help about what had happened’ and vice versa.[55]
·       Family members use the word ‘butt’ but S doesn’t use that word.[56]
·       Doing ‘butt butt’ is also described as ‘cous cous’.[57]
·       The accused did really photograph them in his car and that he showed the photographs to them.[58]
·       She called him ‘uncle’.[59]
·       She had not seen a little boy’s front butt when he pulled his pants down one day and M didn’t say to her that she (M) had.[60]
·       Things like doing ‘butt-butt’ and ‘eating her mi-mi’ really did happen.[61]
Assessment of F
[53]     T103-105.
[54]     T105.
[55]     T105-106.
[56]     T107.
[57]     T107-108.
[58]     T109.
[59]     T110.
[60]     T111.
[61]     T111.
As I said earlier, because of her age (at the time of the ROI and when giving evidence) I intend to approach my assessment of her with caution.
Having carefully considered her evidence, both during her ROI and before me, and having assessed the credibility and reliability of her as a witness against the background of all the other evidence given in the trial, I formed a most favourable impression of her. I regarded her as giving careful, measured answers to questions. She impressed me, even as a 7 year-old in her ROI, as a bright, articulate and intelligent young girl. I have no hesitation in accepting her evidence in all but a few, and in the main, minor respects.
I have reached this view for a number of reasons.
The account she proffered of the accused’s conduct is both detailed and comparatively complex. I do not regard her as being sufficiently sophisticated to ‘make-up’ such a story and thereafter maintain it through the various stages of an ROI, examination-in-chief and cross-examination. Her narrative is also intertwined with real events[62] which, to my mind, make it implausible that she has ‘made up’ a story.
[62] By way of example, she said that on the first outing the accused took them to the park (as he said he was going to do to her mother), but that he also took them to his house. In her evidence, which I accept, T said that the accused said he would take them to the park but on his return said that he had also taken them to his house.
In so saying, I have given anxious consideration to the possibility that there has been either deliberate or inadvertent collusion/adoption which has infected her evidence. I am satisfied beyond reasonable doubt that her evidence has not been contaminated.
The possibilities for such collusion to occur arise first from her discussions with M.
I accept that she would have spoken to M on a number of occasions. Given the difference in their ages and in light of the views (which I shall discuss in a moment) which I have formed in relation to M’s evidence, I would reject the possibility that she has deliberately or unconsciously adopted M’s story.
In addition, the language which she used for describing things such as the accused’s ‘penis’ was, on occasions, different from that of M, e.g. she used the term ‘front butt’ whereas M sometimes used the terms ‘bottom’, ‘bum’ or ‘rude part’. For ‘intercourse’ she used the term ‘butt butt’ whereas M spoke of the accused ‘putting his bum on her bum’.

It was also F who, alone, made mention of a matter which would suggest that she was possessed of some esoteric knowledge for which unconscious adoption or indeed anything else (apart from the fact that she had been a witness to the events giving rise to such knowledge) does not provide a satisfactory explanation.
I refer to her evidence of having seen the shaved genital area of the accused subsequent to an occasion when she said he had asked them to shave him. Her description of him being ‘white’ in that area was telling.
Support for the fact that the accused shaved his genital area was subsequently provided by HB in her evidence to which I will refer later.
There is also her evidence describing what clearly is a condom being used by the accused. There was no evidence as to whether her father used a condom. However, I do note, in this respect, that F slept in a bedroom separate from that of her parents and that both K and T said they were particularly careful to confine their sexual activities to times when M (who did sleep in their bedroom) was asleep. I regard it as quite unlikely, given their evidence, that she would have gained such knowledge from having observed her father using a condom.
F also referred, in the ROI, to the accused touching a liquid substance from his penis (and it being in his hands when he went to the toilet) which she described as ‘sticky’[63] and which, given the context, is likely to have been ‘ejaculate’. As to this piece of evidence, I would reject, as improbable, the notion that she could have learned about the feel or texture of ‘ejaculate’ in what is likely to have been a rudimentary, school, sex-education program for girls of 7 years and under. Moreover, there is no suggestion, in any of the evidence of F, S or either of her parents, that she was aware of such things. Support for the existence of condoms in a bedroom at the accused’s house was also provided by HB in her evidence.
[63] F's ROI at p 28.
I acknowledge (to her credit), that she agreed that, when talking to S on 29 December 2013, M ‘helped her remember’ but given the limitations evident in M’s account of these events, I would discount the possibility that her sister’s ‘help’ materially impacted on her recall of these events.
Another potential opportunity for contamination arose when the two complainants told their older sister, S, what had happened.
However, on this occasion S made it clear that it was F who did most of the talking because M was ‘nervous and scared’ for her mum. Even though S accepted that both were talking to her and arguing at times, the fact that it was F who did the bulk of the talking, combined with the tender age and limited memory of M, leads me to discount as a reasonable possibility that F’s evidence has been contaminated by her discussions with either of her sisters thereby causing her to deliberately or unconsciously adopt an untrue or unreliable account.
There was no evidence to suggest that the conversations with T or K meaningfully impacted on her recall of events. Finally, evidence of her fleetingly seeing either a naked man on a roof[64] or a small boy’s penis (the latter event being something with which she disagreed), could hardly account for the idiosyncratic nature of parts of her evidence.
[64] An event which T accepted as having occurred in that there was a naked man on the roof outside. However, T also stated that she drew the blind to stop F from seeing the man – T224.
Having rejected, as a reasonable possibility, that F’s evidence is a product of collusion or a concoction, there are other aspects of her evidence which have caused me to accept it, beyond reasonable doubt as a ‘truthful and credible account’, which include the following, namely her evidence that:
·       She touched his penis because he said ‘wash it’, ‘you can wash it’.
·       One of the photographs the accused took of them in the car didn’t work.
·       Her description of the mobile phone he used to take the photographs, namely a ‘Samsung Galaxy 4’.[65]
·       Her question of him ‘won’t your wife look at the photo?’.
·       The fact that he later showed both of them the photographs of them he had taken.
·       Her description of where they had been in the car that day prior to the photographs being taken namely, ‘to the shops near the petrol station’.
·       The fact that when the photographs were being taken her brother, A, was in the backseat eating an ice-cream.
·       Her descriptions of the bedroom and its contents where some of the alleged offences occurred.[66]
·       Her description of experiencing his ‘front butt’ being inside her as being ‘rough’; and
·       Her statement in her ROI[67] that M told her that the accused had ‘kisseded’ her (M)’s butt but that she didn’t see that happen.
[65]     F's ROI at p 48.
[66]     F's ROI at pp 43-45.
[67]     F's ROI at p 15.
Taken in isolation, these and other aspects of her evidence might be explicable in terms of her having acquired such knowledge in otherwise innocent circumstances and/or in circumstances not involving the accused. However, in combination, her responses on these matters served only to give the ‘ring of truth’ to her general account of the events surrounding and involving the offences.
I said earlier that there were a few areas where I had a reason to doubt her evidence. One such instance was where she said in her ROI that she didn’t ‘eat his front butt’[68] but in her evidence said that she in fact did ‘eat it’.[69]
[68] F's ROI at p 38.
[69] T96-97.
Although, ‘at first blush’, this might suggest an inconsistency and/or a change of story, I agree with Ms Dunlop, that F’s reference to the word ‘eat’ may properly be understood in the context in which she used it, in the ROI, with respect to him ‘eating her mi-mi’, namely to mean ‘sucking’.[70]
[70] F's ROI at p 18.
Understood in this way, she did not ‘eat’ his butt but rather, as she said in evidence, she ‘licked’ it. As such, the inconsistency is more apparent than real.
She also said, in relation to doing the butt-butt that he didn’t put it ‘inside’ but he put it ‘on’ her butt.[71] This statement is at odds with her previous testimony and her ROI where she said his ‘butt’ was inside her ‘butt’. In my view, I interpret what she was intending to say to be that he didn’t place his penis into her vagina, but rather placed it on her genital area and then inserted it into her. So understood, her statement is consistent with her evidence of his penis being inside her,[72] of it feeling rough[73] and of it hurting her.[74]
[71]     T94.
[72]     F’s ROI at pp 24, 26, 27, 29 & 34.
[73]     T95.
[74]     F’s ROI at pp 51-52.
Finally, in her ROI she referred to dates or times of the year when her father was away,[75] or when the accused took them to his house,[76] which are at odds with the evidence as to dates and times given by her parents. She was clearly in error on these matters and where her evidence conflicts about such matters with their evidence, I prefer their evidence.
[75] F’s ROI at p 16.
[76] F’s ROI at p 12.
The combined effect of these errors on times and dates (which I regard as largely immaterial) and the ‘inconsistencies’ which are more apparent than real, does not, in my opinion, detract from the substance of F’s account as a truthful and accurate one.
I repeat that I am satisfied beyond reasonable doubt as to her account of the alleged sexual acts on the part of the accused which took place on the occasions when the accused took them out to his house, at F’s house and in his car during 2013.
Dr Donald
He conducted a medical assessment of the genital and anal area of both complainants on 23 January 2014 and found no abnormality in either girl.
He said that if penetration had occurred up to the point of the hymen, but no further, with either girl, he would not have expected to have seen evidence of any injury.
Most children he sees have normal examinations, given the fact that any evidence of injury, absent damage to the hymen, is no longer manifest after a few days.
I accept Dr Donald as a truthful and reliable witness. Furthermore, I do not regard the absence of any injury to the hymen of either complainant as detracting from their evidence. There was nothing about the evidence of S, F or M to suggest that the accused’s alleged penetration of them proceeded to or beyond the complainants’ hymens.
Ms Penny
Ms Penny is a social worker with the Child Protection Service. On 23 January 2014 she conducted an interview with M. She conducted a preliminary interview with her the previous day in order to satisfy herself (which she did) that M was able to participate in a forensic interview and to understand concepts such as ‘where’, ‘why’, ‘in’, ‘under’, ‘out’, ‘on’ as well as colours and counting.[77]
[77] T123.
The disc of M’s ROI was produced through her. She also produced a series of sketch drawings of faces of persons featuring different moods (happy, angry etc) and of the bodies of a female and male.[78]
[78] Exhibits P7, P8, P9 & P10.
She said that in the ROI when M used the word ‘bum’ she pointed to the penis on the male sketch and the vagina on the female sketch.[79]
[79] T127-128.
In her ROI M said the following things:
·    One man ‘showed their butt to us’ (12)[80]
[80]     As with F’s ROI, the figures in brackets refer to the pages of M’s ROI.
o‘us’ – is further explained to be her and [F] (12)
oThe words ‘butt’ or ‘bum’ – are further explained by M pointing to a picture of a penis (13)
·    The man ‘put the butt on us’ (12)
·    He did ‘bad stuff with the bums’ (12)
·    He ‘put the, the bum in our mouth, that’s what he did’ (12)
·    He is [H] (13)
·    He did not do it ‘two times’ – he did it ‘all the time’ (13)
·    He ‘put his bottom in our butt’ (14)
·    He ‘put his bum on our bum’ (14)
·    It happened ‘in his house’; in ‘the big room with pillows’ (14)
·    [F] was there when he put his bum on [M]’s bum (14)
oShe clarified what she meant by her bum by pointing at a picture of a girl’s genital area (15)[81]
·    He took her clothes off (18)
·    His bum touched ‘inside my bum’ (18)
[81]     Also see T128.
Apart from these statements, on numerous other occasions, she said she couldn’t remember anything else.
M
As indicated earlier, M gave unsworn evidence.
If this were a trial by jury, I would be obliged by s 9(4) of the Evidence Act to explain to the jury the reason why the evidence is unsworn and, if a party so requests, to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. Being a trial by judge alone, no such request was made but, bearing in mind her age and some matters to which I will advert in a moment, I propose to approach my consideration of her evidence and the weight to be attached to it upon the basis that there is a need for such caution.
In her examination-in-chief she said that the accused showed them his ‘butt’ on more than one occasion and on different days and that he showed it to them at his house in the living room, which she described as containing a pillow, blanket and a couch. She also said that, when the accused showed them his butt, F was in the same room and at a distance agreed as being some 10-12 cm away.[82]
[82] T132-133.
She said the accused was not wearing his pants when he showed them his butt and that he said ‘every time you come I’ll put ice-cream on my rude parts and you can eat it’.[83]
[83] T133.
She said that the accused put his bum inside her bum on three or four or five occasions on different days.[84] She said that on one occasion when the accused put his bottom in [her] bum F was about 10-12 cm away.[85]
[84] T134.
[85] T135.
She said that it made her feel ‘yucky’. She said her ‘butt’ felt ‘yucky’ and by ‘butt’ she meant the part of her body where her ‘wee’ comes out.[86]
[86] T136.
She said she went into a room at his house that contained ‘undies’ and a bed. She thought that the accused put his butt in her butt in the bedroom more than once.[87]
[87] T137.
She said F was there with her in the bedroom and that at this time the accused ‘put his butt on [F’s] butt’.[88] She said that she could not remember whether the accused put his bum in F’s mouth. She said that the accused put his butt in her mouth i.e. M’s, when she was in the living room and bedroom of his house but then said ‘I don’t remember’.[89]
[88] T138.
[89] T138-139.
In cross-examination she said that, on the first occasion she went to the accused’s house she was asleep, lying on the living room floor in the middle of F and the accused, with the accused behind her.[90] She agreed that he took them to the zoo but couldn’t remember going to see the big horse.[91]
[90] T140-141.
[91] T142.
She said she had talked to F about what happened at the accused’s house but could remember little as to what was said. She could not recall much of what was said to S, save for the fact that both she and F were talking. She said she had spoken about these things many times with her mother.[92]
[92] T143-145.
She agreed that a boy had, on one occasion, shown his ‘butt’ to her. When asked whether F was there when this happened she said ‘Yes. He had a brother’.[93] It was unclear to me as to the true import of this answer. However, it differs from the account of F and where her evidence differs from that of F, I prefer the evidence of F.
[93] T147.
When directed to the boy’s penis in the sketch, Exhibit P9, she referred to that as a ‘rude part’ or ‘butt’ and to the girl’s vagina in the sketch, Exhibit P10, as a ‘rude part’.[94]
[94] T148-149.
She insisted that the ‘doing the butt-butt’ with the accused really happened as did him ‘putting his butt in her mouth’ and that it was not ‘just made up’.[95] However, she then said (without a specific question being asked) ‘Well, I think he did it. I can’t remember’.[96]
Assessment of M
[95] T150.
[96] T151.
I listened carefully to M’s ROI and to her giving her unsworn evidence. I subsequently assessed her credibility and reliability as a witness in the light of all the evidence given in the case.
At the time of her ROI she was aged 5 years and a person asked to recount events in her life between the ages of 4 and 5.
In a similar way to her sister, F, I formed an impression of M as a bright, articulate and intelligent girl for her age. Nevertheless, and although I have no hesitation in accepting that she was trying to be truthful, the reliability of her account suffered by reason of her inability to recount these events in sequence and detail. She appeared to me to quickly become tired and distracted and to resort readily to a stock phrase ‘I can’t remember else’.
Having said that, on the prosecution case, in summary, her ROI discloses, at the very least, that she visited the accused’s house in company with her sister and whilst there:
·       He showed her his penis;
·       Put his penis in or on her vagina; and
·       Committed these acts with her or in her presence on more than one occasion.
At the time she gave her evidence she was 6 years old. Although she elaborated a little more on her ROI, ostensibly she made the same allegations.
Her unsworn evidence suffered from the same deficiencies as the evidence in the ROI. Through no fault of hers, she regularly resorted to ‘I can’t remember’.
If her evidence was uncorroborated I would not be able to accept it as reliable evidence. I am simply left with too many doubts as to whether she is recounting events from her independent memory or events derived unconsciously as a result of her discussions with others but her sister F in particular.
However, where her evidence, as to what the accused did to her, is corroborated by her sister F, I am, for the reasons expressed earlier, satisfied beyond reasonable doubt that these things occurred.
K
He first met the accused and his wife in around 2011. He said the complainants had been to the accused house with him and his wife perhaps three or four times.[97] I note that F said she had been only once. I prefer K’s evidence on this issue. He also said he regarded the accused as his ‘brother’.
[97] T157.
He said that he went to Afghanistan in July 2013 and returned in October 2013.[98] Before he left the accused was saying things to him such as ‘I am your brother. Anytime night or day I can do, whatever you want I can do for you’.
[98] T163.
He recalled one occasion when the accused took the complainants and his son, A to a park near his house. Later that day he, T and HB went to the park as well, although it may not have been until some hours later.[99]
[99] T168.
He agreed that in 2013 M slept in his bedroom next to his bed. He said that on 29 December 2013 he received a telephone call from his wife who was upset. He came home and after speaking to her took the complainants to the police station. He said that prior to 29 December 2013 he had never spoken to the complainants about sexual matters.[100]
[100] T174.
In cross-examination he said that he and his wife were very careful when having sex during 2013; that they ‘take these things so seriously’ and that it was ‘not possible’ that M woke-up and saw them whilst they were having sex.[101]
Assessment of K
[101] T176.
I accept K as a truthful and reliable witness. However, his evidence did not deal, in a material sense, with a number of the issues of substance in the case which I must decide.
T
She gave her evidence through an interpreter. She does not speak any English. She is the step-mother of F and the mother of M. She came to Australia in 2010 from Pakistan. She first met the accused and his wife at a party in Adelaide in 2012. Thereafter they became close friends, with the accused and HB visiting them regularly, particularly in 2013.
After her husband left in July 2013 to go to Afghanistan, she said the accused and HB visited up to two to three times per week. She came to regard the accused as being like a brother to her and treated their relationship as akin to a ‘holy relationship’.
She said the complainants called him uncle and he treated them as his nieces or ‘Zoi’, meaning his children. At her home she said the accused would play with the complainants, sometimes in a bedroom where the toys were kept.[102]
[102] T189-190.
She said that when the accused first took the complainants out on their own her husband was in Afghanistan.[103] She said that on this occasion it was the accused who raised the idea of taking the complainants. He said to her ‘I will take them to the park’. She told him not to take them far, to which he replied ‘I’ll take them, let them be brave, let them be wise’ and ‘I’ll take them just around and I’ll bring them back’.[104]
[103] T190.
[104] T191.
She said he left around 11 am or 12 pm and returned about 4 pm. On his return he said to her that he had taken them to the toilet because they wanted to go to the toilet. He told her that he had taken them to his house, given them bread and that he had slept at his house.[105] I pause to observe that it is an agreed fact that the distance between their homes is some 19 kms.
[105] T192.
She said that he took them in his car on a number of occasions. The first two of those occasions were separated by a period of some two weeks.[106] On each of these occasions her husband was in Afghanistan. On the second occasion it was around 6:00 pm when they returned. The accused said he had taken them to the zoo after a lunch at her house where they had eaten earlier around 2:00 pm – 2:30 pm. She said that upon his return with the complainants he said that he had lost his way.[107]
[106] T194.
[107] In saying this it is possible that she may have confused the occasion when he allegedly took the complainants to the zoo with another occasion when he allegedly took them to see the 'Big Horse' at Gumeracha.
On a third occasion she said the accused had taken the complainants and her baby son, A out in his car. He was not away long but told her he had gone with them to a nearby park.

She referred to another occasion when the accused wanted to take the complainants out which occurred on the day her husband was returning from Afghanistan. M didn’t want to go. When it was suggested that HB might go with him and the complainants, she said the accused became angry and said ‘Why would you want to go, you’re a grown-up lady’.[108]
[108] T199.
She then recounted the events of 29 December 2013 when S reported her conversation with the complainants to her. She said S had interrupted her while she was on the phone with HB. Later that day she said that she had received a call from the accused on HB’s phone during which he said ‘I was obliged to do this’.[109]
[109] T203.
She said the accused tried to call her a number of times that day. She said she was very upset and told him she would report it to the police.
She said that prior to 29 December 2013 she had never discussed matters of a sexual nature with the complainants. She said ‘us people, we are shy about these things’.[110]
[110] T206-207.
In cross-examination she initially agreed that F learnt something ‘about how babies are made at school’ before 29 December 2013.[111]
[111] T207.
She agreed that, on the occasion the accused first took the complainants out, she was having a special occasion just for women. She said that it was the accused who said he would take them to the park.[112]
[112] T211.
When they returned after the first outing she said M was very upset, but she attributed it to her perhaps having slept in his car. Thereafter her sleep patterns were interrupted whereas prior to that time M had slept well. She agreed that in an earlier interview she had told the police that upon their return, on this occasion, everything ‘seemed normal’ with the children, but that M ‘did seem withdrawn’.[113] She said that on the second occasion he took them it was in September. He rang later that day to tell HB that he had lost his way.[114] She said that he took the complainants out twice in September 2013 and once more in October 2013 or perhaps in very late September.[115] She agreed that M may have been in the bedroom with her when she breastfed her son at the accused’s house.[116] She agreed that she did not see any injuries to the complainants, although ‘two days’ after one outing with the accused, ‘she’ mentioned burns or pains there.[117]
[113]    T213-214.
[114]    T215.
[115]    T216.
[116]    T223.
[117]    T223. T did not identify which of the complainants this ‘she’ was.
She denied that there was a night when M woke up and saw her and her husband having sex, but agreed that on one night (the date of which was not specified) a naked man was seen outside their house. However, she said she closed the blind to prevent F (who was with her at the time) from seeing out of the window.[118]
[118] T224.
In re-examination she said she could not remember when F may have learned about ‘making babies’ at school or specifically whether it was before or after 29 December 2013.[119]
[119] T224.
Finally, she said that although, on the occasion of the first outing, she had had a function just for women, other women had brought their children with them and that her adult step-son, ME had remained at home during the function.[120]
Assessment of T
[120] T225.
T was clearly significantly emotionally affected by her belief that the accused had sexually interfered with her daughters. Much of her evidence was interspersed with bouts of crying. Despite this, I was quite satisfied that when giving her evidence she was attempting to be truthful. It was however, difficult on occasions, to separate what she knew, of her own knowledge, from what she had learned as a result of being told things by others like S and/or the complainants. Due to her emotional state during the course of giving evidence, I am not prepared to accept parts of her evidence as that of a reliable witness, particularly on matters such as the details of her telephone conversation with the accused having been just apprised of the complainants’ accusations by S.
However, I accept beyond reasonable doubt the truth and reliability of her evidence on the following matters:
·       The accused took the complainants on outings on at least three separate occasions;
·       These occasions ranged over a period of some weeks, in September of 2013 but possibly in October as well;
·       On two of these outings the accused was away for a number of hours;
·       On at least one of the occasions (the first occasion) it was the accused who initiated the offer to take them out;
·       Although it was a women’s occasion at the time of the first outing, other women brought their children and both her adult step-son, ME and S remained at home;
·       The accused did not say prior to taking them out on the first occasion, anything about going to his house. Rather, he said he would take them to the park;
·       There was a park nearby to her house;
·       She didn’t want them taken too far away;
·       The accused became angry with HB on one occasion when it was suggested that HB might join him and the complainants on an outing;
·       She did not have any discussions of a sexual nature with the complainants prior to 29 December 2013 and that she and her husband were ‘shy’ with respect to sexual matters in general;
·       F would not have seen the naked man outside the house; and
·       One of the girls did complain of pain in her vagina not long after an outing with the accused.
Agreed Facts
As part of the prosecution case the following facts were agreed:
AGREED FACTS
Birthdates
1.   F was born on 3 March 2006.
2.   M was born on 7 August 2008.
3.   [The accused] was born in 1971.
Address
4.   At all relevant times, the accused lived at Gilberton.
5.   At all relevant times, the complainants lived at Paralowie.
Arrest of the accused
6.   The accused was arrested at his home address on 11 January 2014.
Phones
7.   Upon his arrest police seized 3 mobile phones from the accused himself, an LG brand phone and 2 Samsung brand phones. A fourth Samsung brand phone was seized from a cupboard inside the accused’s house.
8.   These phones were examined by the electronic crime section of SAPOL. No photographs of F or M were located on these phones.
Photographs and plan
9.   The bundle of photographs P1 was taken by a crime scene officer following the arrest of the accused on 11 January 2014.
10.   The plan of the accused’s house was drafted following the officer’s attendance on the same day.
Distance
11.   The distance from the accused’s address to the [complainants] house is approximately 19 kilometres.
Interpretation
12.   The phrase ‘I was obliged to’ which was translated during the evidence of [T] could also be translated to mean ‘I had to’ or ‘I was forced to’.[121]
[121]    These words are capable of being understood in a number of different ways, none of which is more likely than others. Accordingly, I am not prepared to regard them as exhibiting any consciousness or acknowledgment of guilt on the part of the accused and I draw no adverse inference against him in using them.
The Defence Case
The accused, as he was entitled to do, elected not to give evidence. I draw no adverse inference against him by reason of his election.
He did, however, adduce evidence from his wife, HB. She too spoke no English and gave evidence through an interpreter.
HB said that she first met T in Pakistan. She met her again in Adelaide in 2012. She spoke thereafter of visiting T’s home regularly, perhaps two to three times per week. Whilst there she helped with housework and cooking meals. On occasions HB and the accused slept over at T’s house.
She recounted the religious occasion (which was only for women) when the accused took the complainants out in his car.
She said that it was T who insisted that the accused take the complainants out. She said that T said to the accused ‘You take my children before they [the guests] come so they don’t bring their children’.[122] She said later on that day the accused telephoned her to say he had fed them at his house.
[122] T235.
She recalled another occasion when she said that he told them that he had taken them to the zoo. She said the complainants were very happy after returning on each of their outings. On another occasion she said that he told them that he had taken the complainants to Gumeracha. On this occasion she said the accused called her to say he had lost his way, thereby causing him to return home very late. She said he did not take the complainants out in the car with A. During the phone call between T and the accused on 29 December 2013, she said that she could overhear her abusing him.
She said that she never saw him touch the complainants inappropriately.
In cross-examination she agreed that she kept her underwear in the bedroom depicted in photograph 34 of Exhibit P1.[123]
[123] This would appear to be the bedroom in which M said she saw ‘undies’.
When she was asked about a box of condoms (which is depicted in photograph 38 of Exhibit P1) on the cupboard shelf in that room, she said that she had never looked in the box and that it had been there since she arrived from Pakistan in 2011. She said she had ‘wanted to throw it but then it was just left there with other spare materials’. She then said she ‘forgot about it, it was just forgotten with the rest of the spare materials and rubbish collected there’.[124]
[124] T245.
I pause to observe that the condom box is depicted in the photograph in ‘plain sight’ immediately behind a purple cup with a make-up brush in it which she agreed she used to apply her make-up. She also agreed that there was shampoo in the bathroom of her house.[125]
[125] T245-246.
She said that she was still married to the accused, that the complainants’ allegations were all lies and that she loved the accused more than she loved herself.[126]
[126] T249.
She said that she had asked the accused what it was that had been alleged against him and that he told her what the allegations were and that it was alleged to have happened more than once.
On the question of phones she said that the accused and her only had one phone each. She maintained that his phone could not take photos whereas hers could, but that she kept her phone with her at all times.[127]
[127] T253.
She agreed that on each of three occasions when the accused was out with the complainants he was away for a number of hours.[128]
[128] T254-255.
She was asked whether in 2013 there was a time when the accused shaved his genital area to which she replied ‘He always shaves there’.[129]
[129] T257.
She agreed that, on the day of the first outing, other children came to the house. On that day she said it was T who said ‘Take them until my guests are gone’. She said on the next two occasions it was again T who wanted them taken out.
She agreed that there were two parks quite near T’s house. She disagreed that either of the complainants expressed a desire not to go with the accused.
She agreed that she and the accused had spoken about the court proceedings and that he had told her what F and M had said in their evidence.
She disagreed that the accused had more than one mobile phone.
Finally, she agreed that she and her husband had talked during the luncheon adjournment while she was giving her evidence but denied that they had talked about her evidence.
Assessment of HB
I do not accept HB as being either truthful or reliable. She was, perhaps understandably, a partisan witness. Her evidence about her lack of knowledge of the condoms was particularly revealing. When it was put to her that she knew of the allegations concerning the accused’s use of a condom, her initial response was to say ‘No, he hasn’t used’, and then ‘I don’t know, I don’t have any information’.[130]
[130] T262.
Moreover, her statement as to not looking in the condom box and then forgetting about it simply doesn’t ring true given its proximity to a make-up brush she would have used from time to time.[131] Similarly the suggestion that T asked the accused to take the complainants out so her guests wouldn’t bring their children simply doesn’t make sense. Unless the guests were to be told in advance not to bring their children (of which there was no evidence) one might have expected that the complainants would be good company for the guests’ children.
[131] T245.
She was a witness, who despite giving evidence via an interpreter, seemed always to be on the defensive and ready to give answers designed to exculpate the accused wherever possible. Her answers may well have been motivated by the sentiment expressed in her statement that ‘she loves him more than herself’.
Where her evidence is in conflict with that of others, I reject her evidence. Specifically I reject her evidence that the accused only had one mobile phone[132] or that it was T rather than the accused who promoted the idea of him taking the girls on outings.
[132] See Agreed Fact 7.
Unwittingly however, her statement that the accused regularly shaves his genital area is a statement I do accept and one which is supportive of the evidence of F on that topic. I also accept her evidence that there were two parks quite close to the complainants’ house. [133]
[133] T258.
Discussion
Although the evidence of all of the witnesses needs to be taken into account in assessing whether the charges have been proven beyond reasonable doubt, as the prosecution properly concedes, the case rests, to a significant extent, upon the evidence of the two complainants.
Nevertheless, the question remains as to the approach which this Court should adopt where each of the complainants is in a position to give ‘eyewitness’ testimony to offences alleged to have been committed against the other.
I referred earlier to the Discreditable Conduct Notice filed by the Crown. Although the Notice suggested that the discreditable conduct alleged was a species of propensity evidence, in its final submission, the Crown submitted that the evidence of each complainant was admissible both as sexual attraction evidence or as similarity of account evidence.
Dealing with the latter basis first, in R v C, CA[134] the Chief Justice said that:
...The strong probative force of similarity of account evidence ... arises out of the improbability of persons independently imagining or concocting stories with a high degree of similarity of detail...[135]
[134] [2013] SASCFC 137.
[135] Ibid at [57].
In the circumstances applying here, namely where the accused is alleged to have taken both complainants on outings to the same places and at the same times, it does not seem to me to be improbable that their accounts would be substantially or materially similar. As such, I am not disposed to accept that the evidence of his alleged offending against each complainant is admissible as evidence of his alleged offending against the other on the basis of the similarity of their accounts.
As to the former basis relied upon by the prosecution, Peek J in R v Maiolo (No 2) said:[136]
Sexual attraction evidence is a species of propensity evidence and a legitimate purpose of propensity evidence is to reason that the accused is likely to have committed the offence(s) charged...
[136] [2013] SASCFC 36 [86].
When discussing the admissibility of evidence on this basis in R v C, CA, the Chief Justice said:[137]
...It is that the evidence disclosed a proclivity on the part of the appellant to abuse the access he had to his son’s friends for the purposes of gratifying his paedophilic desires. The reasoning in support of a finding of guilt based on the demonstration of a particular propensity differs markedly from similarity of account reasoning ... [It] involves three essential steps in the circumstances of this case. The first step is to determine whether the evidence proves beyond reasonable doubt that the appellant committed sexual offences or other discreditable conduct against any one of the three complainants ... the second step is to determine whether the offending, in the context of the wider conduct, shows an innate behavioural proclivity to commit offences of the kind committed against the other complainants...
[137] [2013] SASCFC 137 [68].
The argument in support of the admissibility of evidence on this basis is stronger. There are aspects of the accused’s alleged conduct here which, like that of the accused in R v C, CA, were both opportunistic and significantly sexually focussed. However, on balance, I am not satisfied that it should be admitted as sexual attraction evidence.
In the particular circumstances of this case, namely where all the alleged offences were committed on the same occasions against each complainant in the presence of each other, I am not persuaded that this necessarily demonstrates the innate behavioural proclivity identified by the Chief Justice. However, this does not mean that the evidence of F is inadmissible on the charges relating to M. F was an ‘eyewitness’ to a number of the alleged acts of sexual misconduct against M.
I therefore propose to approach my consideration of the charges by first, considering the prosecution case as it relates to F. In considering the case as it relates to F, I propose to have regard to and take into account, not only the evidence of F but also such evidence from other prosecution witnesses which I am satisfied is both credible and reliable.
Having determined the charges relating to F, I then propose to consider the charges as they relate to M. In the case relating to M, I will similarly have regard to and take into account the evidence from such of the other prosecution witnesses, as I find to be both truthful and reliable. In particular, I propose to take into account the testimony of her sister, F including what I describe as her ‘eyewitness’ testimony as to the alleged sexual conduct of the accused involving M.
However, for the reasons already articulated, in the charges relating to both F and M, I will not rely on the evidence of M as either credible or reliable, unless it is corroborated by such evidence from any other witness as I find to be credible and reliable.
I stress at this point, that whilst I have not admitted the evidence of either F or M as similarity of account or sexual attraction evidence, I nevertheless still warn myself against the dangers of unconsciously using that evidence for any impermissible purpose (including those specifically identified by Peek J in R v Maiolo (No 2)) when considering the credibility or reliability of the prosecution witnesses in general and the complainants in particular.
Finally, I should add, in relation to the Notice of Discreditable Conduct, that it referred to ‘charged and uncharged acts of sexual misconduct against each complainant’ (my emphasis). At the completion of the prosecution case, there were no uncharged acts of sexual misconduct led against the accused. In particular, the acts of sexual misconduct in showing his penis to them which were alleged to have occurred at the complainants’ house and in his car, were subsumed in the Particulars referred to in counts 1 and 4. It is, therefore, unnecessary to consider the application of the law as it relates to evidence of uncharged acts.
The Prosecution Case as it relates to F in Count 1
As I have already indicated, other than in the limited areas identified earlier, I am satisfied[138] beyond reasonable doubt as to the credibility and reliability of F as a witness in both her ROI and in the course of her sworn evidence. In considering this charge, I have had regard to, and taken into account, only the evidence which relates to count 1.
[138] When using the terms ‘satisfied’/‘accept’/‘find’ or ‘finding’ hereafter I intend to mean satisfied/accept/find or finding beyond reasonable doubt.
I am satisfied that, during the period alleged, F was under the age of 17 years. I accept that in or about July of 2013, F’s father, K, returned to Afghanistan and remained away for some three months. During this period the accused and his wife began to visit the complainants’ home regularly through the week and on the weekends.

I am satisfied that during some of these visits the accused played with the complainants in a bedroom where toys were kept and did so, at least on one occasion, with the door shut. I accept that on this occasion he showed F his penis. I also accept that this was the occasion where S tried to look in but one of the complainants pulled a curtain across the window.
I am satisfied that on a number of occasions, but no less than three, the accused took the complainants on outings. I am satisfied on these occasions it was the accused who initiated the idea to take them out and not T. On at least two of these occasions, I am satisfied that the accused took the complainants to his house some 19 km away. I am further satisfied that the first of these two occasions occurred at a point in time while K was away in Afghanistan and that the next occasion occurred a week or two after that while he was still away.
I accept that in addition to taking them to his house, the accused also took them out in his car to the park. On one such occasion, whilst in his car, and while their brother, A was in the car, I am satisfied that the accused took a photograph of F’s genital area and showed F his penis. I am satisfied that this was a separate occasion from the occasions when he took them to his house and that it also occurred while K was in Afghanistan.
Furthermore, I am satisfied that while K was in Afghanistan and during the occasions when the accused took the complainants to his house and while at his house, he once or more than once, did each of the following things:
·       sucked F’s nipple;[139]
·       showed her his penis;[140]
·       inserted his penis into her vagina;[141]
·       caused F to touch his penis;[142]
·       caused her to commit an act of fellatio on him by licking his penis;[143] and that while K was in Afghanistan:
·once on an occasion in his car, he took a photograph of her genital area;[144]
· I am also satisfied that once while K was in Afghanistan on occasions at both the complainants’ house, [145] and while in his car,[146] he showed F his penis.
[139]    F’s ROI at pp 15, 18, 20 & 21; T85-87.
[140]    F’s ROI at pp 25, 39 & 40; T57, 59-60, & 90.
[141]    F’s ROI at pp 24, 26, 27, 29, 34 & 51-52; T61-62 & 93-95.
[142]    T57, 59-61 & 95-96.
[143]    T96-97.
[144]    F’s ROI at pp 7, 45-49; T88-89.
[145]    T69-70, 76, 91.
[146]    T91-92.
Against this background I make the following findings beyond reasonable doubt:
·       Between 1 June 2013 and 30 December 2013 F was a person under the age of 17 years, namely 7 years;
·       Over a period of not less than three days between those dates, the accused performed more than one act of sexual exploitation of F;
·       The acts particularised in count 1 on the Information constitute acts of sexual exploitation, namely;
-Sucking F’s nipple, being an act of indecent assault;
-Showing F his penis, being an act of gross indecency;
-Inserting his penis into F’s vagina, being an act of unlawful sexual intercourse;
-Causing F to touch his penis, being an act of gross indecency;
-Causing F to perform an act of fellatio (by licking his penis) on him, being an act of unlawful sexual intercourse; and
-Taking a photograph of F’s genital area, being an act of gross indecency.
·       The accused committed the acts of sexual exploitation of F as particularised in subparas (a)-(c) and (e)-(g) of count 1.[147]
[147]    Subpara (d) contains an allegation of the accused putting his penis on F’s vagina. I am satisfied and find beyond reasonable doubt that he put his penis into her vagina. I am not persuaded that F’s evidence as to him putting his penis on her vagina was intended by her to convey something different. I am therefore not satisfied that the accused did put his penis on F’s vagina as a specific and separate act of sexual exploitation.
Conclusion
Having considered all the evidence in relation to count 1, I am satisfied that the prosecution has proven all the elements of the charge of Persistent Sexual Exploitation of a Child, namely F.
My verdict is that the accused is guilty as charged.
The Prosecution Case as it relates to F in Counts 2 and 3
These counts were charged in the alternative to count 1. In the result, it is unnecessary to consider these counts any further.
The Prosecution Case as it relates to M in Count 4
On this count, insofar as it relies upon the evidence of M, I accept that at all times during her ROI and unsworn evidence M was attempting to tell the truth. However, principally because of her age at the time of both her ROI and during giving unsworn evidence, I am not prepared to treat her evidence as either credible or reliable, other than where it is corroborated by other evidence which I find to be both credible and reliable. In this respect, I am particularly referring to the testimony of F as to the alleged acts of sexual exploitation by the accused of M which she observed.
Furthermore, in considering this charge, I have had regard to and taken into account only the evidence which relates to count 4.
I am satisfied that during the period alleged M was a person under the age of 17 years, namely aged 4 or 5. I am satisfied that during the period alleged in this count K was in Afghanistan for some three months and that during this time both the accused and his wife visited the complainants’ home regularly throughout the course of the week and on the weekends. I am satisfied that during some of these visits the accused played with the complainants in a bedroom where toys were kept and on at least one occasion did so with the door shut. I accept the evidence of F that on this occasion he showed both F and M his penis. I also accept that this was the occasion where S said that she tried to look in but that one of the complainants pulled a curtain across the window.
I am also satisfied that on a number of occasions, but no less than three, the accused took the complainants on outings and that on one of those outings he also took their little brother, A. I am satisfied that on the first of these occasions, the accused took the complainants to his house some 19 km away. I am satisfied that this occasion occurred sometime after K had left for Afghanistan and that on this occasion, as with the other occasions, it was the accused who initiated the idea of him taking the complainants and not T.
I am satisfied that perhaps one to two weeks after the first occasion the accused again took the complainants to his house. I am also satisfied that, on an occasion separate from those where he took them to his house, the accused took the complainants out in his car, together with their little brother, A and on this occasion photographed M’s vagina and showed her his penis.
In particular, I am satisfied that while K was in Afghanistan, on the occasions of outings where the accused took the complainants to his house, and while at his house the accused, once or more than once, did each of the following things:
·       Sucked M’s nipples;[148]
·       Caused M to suck or lick his nipples;[149]
·       Showed M his penis;[150]
·       Caused M to touch his penis;[151]
·       Caused M to perform an act of fellatio on him by licking his penis;[152]
·       Inserted his penis into M’s vagina;[153]
·       Put his penis into M’s anus;[154]
·       I am also satisfied that on one occasion during the time K was in Afghanistan the accused showed M his penis while at her house.[155]
·       I am also satisfied that on one occasion during the time K was in Afghanistan that the accused took the complainants out in his car and while in the car took a photograph of M’s genital area[156] and showed her his penis.[157]
[148]    F’s ROI at pp 15 & 21; T87.
[149]    F’s ROI at p 21; T87.
[150]    M’s ROI at pp 12 & 13; T57, 59; F's ROI at p 25; T90, 131-132.
[151]    T57, 59-60 & 96.
[152]    T97.
[153]    M’s ROI at pp 14 & 18; F’s ROI at pp 24 & 34; T61; 133-137.
[154]    F’s ROI at pp 34, 35 & 36.
[155]    T59, 69-70 & 91.
[156]    F’s ROI at pp 7 & 45-49; T88-89.
[157]    T91-92.
Against this background I make the following findings beyond reasonable doubt:
·       Between 1 June 2013 and 30 December 2013 M was a person under the age of 17 years, namely 4 or 5 years;
·       Over a period of not less than three days during the aforementioned period the accused committed more than one act of sexual exploitation of M;
·       The acts particularised in count 4 on the Information constitute acts of sexual exploitation, namely:
-Sucked M’s nipples, being an act of indecent assault;
-Caused M to suck or lick his nipples, being an act of gross indecency;
-Showed M his penis, being an act of gross indecency;
-Caused M to touch his penis, being an act of gross indecency;
-Caused M to perform an act of fellatio on him (by licking his penis), being an act of unlawful sexual intercourse;
-Inserted his penis into M’s vagina, being an act of unlawful sexual intercourse;
-Inserted his penis into M’s anus, being an act of unlawful sexual intercourse; and
-Photographed M’s genital area, being an act of gross indecency.
·       The accused committed the acts of sexual exploitation of M as particularised in subparas (a)-(f) and subparas (h) and (i) of count 4.[158]
[158]    For the reasons articulated earlier, I am not satisfied that the accused put his penis on M's vagina as a specific and separate act of sexual exploitation of M.
Conclusion
Having considered all the evidence in relation to count 4 I am satisfied beyond reasonable doubt that the prosecution has proven all the elements of the charge of Persistent Sexual Exploitation of a Child, namely M.
My verdict is that the accused is guilty as charged.
The Prosecution Case as it relates to M in Counts 5 and 6
These counts were charged in the alternative to count 4. In the result, it is unnecessary to consider these counts any further.
Verdicts
Count 1 – Guilty.
Count 4 – Guilty.