R v Helps
[2018] SADC 63
•19 June 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HELPS
Criminal Trial by Judge Alone
[2018] SADC 63
Reasons for the Verdicts of Her Honour Judge S David
19 June 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Accused charged with sexual offences, and an offence of violence, against daughter of his domestic partner - alleged offending over a five year period between 2005 and 2010 - other uncharged conduct - initial complaint to boyfriend in 2011 or 2012 - accused interviewed by police in 2014 - accused denied offences in interview - trial by judge alone - retrial.
Meaning of 'guardian' - accused not the guardian of complainant - aggravating circumstance alleged in counts 4, 5, 7, 8 and 10 not proved.
Held: Guilty as charged of counts 1, 2, 3, 6 and 9. Not guilty of charged offences of Aggravated Indecent Assault but guilty of Indecent Assault on counts 4, 5, 7 and 8. Not guilty of charged offence of Aggravated Assault but guilty of Assault on count 10.
Criminal Law Consolidation Act 1935 (SA) ss 5, 5AA(g)(iv)(c), 20(3), 34P(2), 34P(3), 49(1), 49(3), 49(7), 56, 58, 57(2); Evidence Act 1929 (SA) ss 13D(1), 34M4(a), 34M4(b), referred to.
G and Another (1997) 91 A Crim R 590, considered.
R v HELPS
[2018] SADC 63
Craig Stewart Helps (‘the accused’) is charged with numerous sexual offences, and an offence of violence, against his de facto partner’s daughter from 2005 until 2010. The accused is charged with three counts of Unlawful Sexual Intercourse with a Person Under 14, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (counts 1, 2, 3); four counts of Aggravated Indecent Assault, contrary to s 56 of the CLCA (counts 4, 5, 7, 8); one count of Gross Indecency, contrary to s 58 of the CLCA (count 6); one count of Unlawful Sexual Intercourse, contrary to s 49(3) of the CLCA (count 9); and one count of Aggravated Assault, contrary to s 20(3) of the CLCA (count 10).
The accused pleaded not guilty to the charges and elected for trial without a jury. I now publish reasons for the verdicts I deliver.
Overview
The prosecution case is the accused sexually interfered with the complainant (‘CN’) over a period of about five years from 2005 until 2010. CN was born on 4 April 1995, and was aged from 10 to 15 during the charged period. The accused is the de facto partner of CN’s mother. The accused lived with CN and her family at residences in Kurralta Park and Blanchetown during the charged period. CN left the family home when she was aged 15, and moved in with her older sister (‘NT’), after which time she lived with her biological father (‘SN’), and former partner (‘JG’).
CN also alleged the accused committed other uncharged sexual acts upon her during the charged period, in particular ‘big hugs’ involving CN lying or sitting on top of the accused and the accused rubbing his penis against her body, and ‘passionate’ or open mouthed kissing.
CN first disclosed the sexual allegations to her former partner JG in 2012. CN had a nightmare during which JG heard her murmur ‘stop, Craig, stop’. The following morning, JG asked her about the nightmare. CN told JG, after some prompting from him, her stepfather had sexually abused her as a young child. CN also posted allegations of sexual abuse by the accused on Facebook at about the same time, about which the accused and her mother were made aware.
The accused was interviewed by police on 31 August 2014. He denied the allegations.
This is a re-trial.
Without objection, the prosecution tendered the audio visual recording of CN’s evidence[1] and transcript[2] from the first trial. I am satisfied the pre-conditions for admissibility are satisfied.[3] CN also gave evidence during this trial. The prosecution also called JG and Leanne Mansfield (her evidence being relevant to the fourth count). The accused’s record of interview[4] and transcript of the accused’s evidence[5] from the first trial were tendered as part of the prosecution case.
[1] Exhibit P1A.
[2] Exhibit P1B.
[3] Evidence Act 1929 (SA), s 13D(1).
[4] Exhibit P17.
[5] Exhibit P18.
The accused did not give evidence at this trial.
As part of the defence case, the accused called evidence from his de facto partner, Ms Diana Talbot (CN’s mother) and CN’s siblings, WN and NT, and the accused’s mother, Ms Hilda Helps.
The defence case is that the accused did not commit any of the alleged sexual or violent acts upon CN, and CN’s evidence on each charged count is inherently unlikely and contradicted by other evidence called as part of the defence case. The defence case is CN is a habitual liar, and had a motive to lie about the allegations, namely to punish her mother for not being a more loving parent, and for separating her from her biological father.
Elements of the offence
Unlawful Sexual Intercourse With A Person Under 14
I begin with the offence of Unlawful Sexual Intercourse with a Person Under 14,[6] relating to allegations of the accused placing his penis inside CN’s mouth in his bedroom at Kurralta Park (count 1); the accused placing his penis inside CN’s vagina on the dining room table at Kurralta Park (count 2); and the accused placing his penis inside CN’s anus in the bus at Kurralta Park (count 3).
[6] Criminal Law Consolidation Act 1935 (SA), s 49(1).
There are two elements of this offence, each of which the prosecution must prove beyond reasonable doubt. The first element is that the accused had sexual intercourse with CN. Relevantly, for the purposes of the law, sexual intercourse includes an act of fellatio (or a man placing his penis inside the mouth of another); an act of penile-vaginal penetration; and an act of penile-anal penetration.[7]
[7] Criminal Law Consolidation Act 1935 (SA), s 5.
The second element is that at the time of each alleged act of sexual intercourse, CN was under 14 years old.
CN was born on 4 April 1995. Each disputed act of sexual intercourse is alleged to have occurred at the Kurralta Park premises. CN completed her schooling at William Light School (Plympton) on 15 September 2009 whilst in year 8, and commenced her schooling at Waikerie High School on 16 September 2009, indicating the family moved to Blanchetown around September 2009, when CN had only recently turned 14.[8] Further, Diana Talbot gave evidence the family moved to Blanchetown on 29 August 2009.[9] There is no dispute CN moved from the Kurralta Park premises to live at the Blanchetown premises in the year she turned 14. On the prosecution case, the first three counts occurred before CN moved to Blanchetown and before she turned 14.
[8] Exhibit P1, Agreed Facts [3]-[4].
[9] T290 (19/12/2017).
As a matter of law, a person under the age of 14 years cannot consent to sexual intercourse.[10]
[10] Criminal Law Consolidation Act 1935 (SA), s 49(7).
Unlawful Sexual Intercourse With A Person Under 17
I turn to the offence of Unlawful Sexual Intercourse,[11] relating to an allegation of the accused placing his penis inside CN’s vagina, in the accused’s bedroom at Blanchetown (count 9). There are two elements to this offence each of which the prosecution must prove beyond reasonable doubt. The first element the prosecution must prove is that the accused had sexual intercourse with CN. For the purposes of the law, sexual intercourse includes an act of penile-vaginal penetration.[12]
[11] Criminal Law Consolidation Act 1935 (SA), s 49(3).
[12] Criminal Law Consolidation Act 1935 (SA), s 5.
The second element of the offence of Unlawful Sexual Intercourse is that at the time of the alleged offending, CN was under 17 years old. On the prosecution case, the disputed act of sexual intercourse occurred before CN stopped living at the Blanchetown premises. There is no dispute that CN left the Blanchetown home in 2010, aged 15, to live with her sister NT.
As a matter of law, a person under the age of 17 years cannot consent to sexual intercourse.[13]
[13] Criminal Law Consolidation Act 1935 (SA), s 49(7).
Aggravated Indecent Assault
I turn to the offence of Aggravated Indecent Assault,[14] relating to the allegations of the accused touching CN’s underwear between her legs and on her vagina whilst CN was swimming in the Murray River (count 4); CN sitting on top of the accused and the accused touching his penis against her vagina, in the accused’s bedroom at Kurralta Park on the evening of CN’s year 7 graduation (count 5); the accused kissing CN on her mouth while CN rubbed the accused’s penis over his clothing in the garage at the Blanchetown home (count 7); and the accused standing between CN’s legs, and touching his penis against CN’s vagina, as CN sat on the bonnet of the Suzuki car at Blanchetown (count 8).
[14] Criminal Law Consolidation Act 1935 (SA), s 56.
An indecent assault is an assault accompanied by, or, committed in circumstances of indecency. The first element the prosecution must prove beyond reasonable doubt is an assault. An assault is an intentional and unlawful application of force to the person of another. The force does not have to be great and a simple touching will suffice. The touching however must be deliberate as opposed to accidental and it must be without lawful excuse. There is no suggestion of any lawful excuse in this case.
The second element which the prosecution must prove beyond reasonable doubt is that the assault was committed in circumstances of indecency and that those circumstances of indecency had a sexual connotation. Whether or not an assault is indecent, with a sexual connotation, is a matter to be determined by reference to reasonable contemporary community standards.
It is impossible as a matter of law for a person under 17 to consent to an act of indecency.[15]
[15] Criminal Law Consolidation Act 1935 (SA), s 57(2).
The third element the prosecution must prove beyond reasonable doubt is the aggravating circumstance, namely that the accused committed an assault in circumstances of indecency knowing CN was, at the time of the assault, a child of whom he had custody as a parent or guardian.
If all elements of the offence, except the circumstance of aggravation, are proved, an alternative verdict of guilty of the basic form of indecent assault is available.
Gross Indecency
The offence of Gross Indecency[16] relates to the allegation of the accused moving his hand over the area of his penis in the presence of CN in the bathroom at Kurralta Park (count 6).
[16] Criminal Law Consolidation Act 1935 (SA), s 58.
Any person who, in public or in private, commits an act of gross indecency with, or in the presence of, any person under the age of 16 years, is guilty of the offence of Gross Indecency. To establish the charge, the prosecution must prove beyond reasonable doubt each of the following four elements.
First, the accused performed an act in the presence of CN. The act must be directed towards or against CN. CN’s consent or absence of consent is immaterial.
Second, CN must have been under the age of 16 years at the time of the alleged act. It is immaterial whether the accused was aware of her being under 16 years old. The alleged incident the subject of this charge is said to have occurred at the Kurralta Park premises when CN was aged 13 or 14. There is no dispute CN and her family moved from the Kurralta Park premises to the Blanchetown premises in August or September 2009, when CN was aged 14.
Third, the act must have been indecent with a sexual connotation. Whether or not an act is indecent is a matter to be determined having regard to reasonable contemporary community standards.
Fourth, the indecency, if it occurred, must be gross, and something more than a minor or trivial indecency. The conduct must be such as to be characterised as not only indecent but as grossly indecent.
Aggravated Assault
Finally, the offence of Aggravated Assault[17] relates to the allegation that the accused slapped CN twice on the cheek at the school bus stop at Blanchetown because she was wearing a skirt to school rather than tracksuit pants (count 10).
[17] Criminal Law Consolidation Act 1935 (SA), s 20(3).
To establish an assault the prosecution must prove beyond reasonable doubt an intentional and unlawful application of force by the accused to CN without CN’s consent. The aggravating feature is established if the prosecution proves beyond reasonable doubt the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian.
If all elements of the offence but the circumstance of aggravation are proved, an alternative verdict of guilty of the basic form of assault is available.
Legal Directions
I apply the following principles and directions in reaching my verdicts.
The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charges lies wholly upon the prosecution. The accused is not obliged to prove anything.
Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of any offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that charge. In these reasons, if I use the words ‘proved’, ‘established’, or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is an explanation consistent with the innocence of the accused, or I am unsure of where the truth lies, then I must find that charge has not been proven beyond reasonable doubt.
In this trial, the accused elected not to give evidence. No adverse inference can be drawn against the accused for his legitimate election not to give evidence. It is for the prosecution to prove beyond reasonable doubt the case against the accused.
The accused gave evidence at a previous trial on 22 and 23 February 2016. A transcript of that evidence was tendered to the Court.[18] The accused’s previous evidence is to be assessed like the evidence of any other witness in this trial. However, it is not for the accused to prove his innocence but for the prosecution to prove beyond reasonable doubt his guilt. Even if I were to reject the accused’s previous evidence as a reasonable possibility, I still need to be satisfied beyond reasonable doubt of the prosecution case before the accused could be convicted of any offence.
[18] Exhibit P18.
Each charged count must be considered separately. Whether the prosecution has proved each charged count beyond reasonable doubt will depend upon an assessment of the evidence on each respective count. Some of the evidence in relation to the charges is common and intertwined, but that does not mean the charges necessarily rise and fall together. It is impermissible to reason that because the accused is guilty of one count, if I so find, he is therefore more likely to be guilty of another count or necessarily guilty of another count. However, should I not be satisfied of CN’s credibility or reliability with respect to any one of the charged counts, CN’s lack of credibility or reliability on that count, will undermine CN’s credibility or reliability on the other counts.
Special arrangements were put in place for CN, without objection. The court was closed during CN’s evidence, and a screen placed between herself and the accused. CN was also accompanied by a court companion. It is impermissible to draw any adverse inference against the accused because of such arrangements. Further, the use of those arrangements must not cause any extra or undue weight to be attached to CN’s evidence.
There is no evidence independent of CN’s evidence to support any of the charged offences. Consequently, CN’s evidence must be carefully scrutinised before the Court can be satisfied beyond reasonable doubt of the truthfulness and accuracy of CN’s evidence, having particular regard to defence counsel’s criticisms of CN’s credibility and reliability, and taking into account the evidence called as part of the defence case contradicting features of CN’s account, the detail of which I outline below.
The alleged offending occurred between 2005 and 2010, so there has been a period of between 7 and 12 years between the alleged offending and the charges proceeding to trial before this Court. The specific allegations were not known to the accused until his interview on 31 August 2014. Such a lengthy delay has resulted in a significant forensic disadvantage to the accused, and there are significant difficulties for the accused in challenging and responding to the allegations said to have occurred so long in the past. The significant forensic disadvantages are as follows.
First, there is no independent support for CN's account, and the overall delay in the matter proceeding to trial has inevitably led to CN being unable to remember some details of the events surrounding the charged counts. The effect of the lengthy delay on CN’s memory, has disadvantaged the accused because he has lost some ability to test the detail of CN’s version of events.
Secondly, from the accused’s perspective, if there had been a timely trial, he would have been in a better position to remember back to the relevant period and recall any specific details of his movements or behaviour at the time. The accused may have been in a better position to produce evidence discounting CN’s version of events, although, it is not for the accused to prove anything.
The significant forensic disadvantages must be taken into account when assessing whether the prosecution has proved its case on each count against the accused. The accused cannot be convicted of any of the charges unless the Court is satisfied of the truthfulness and reliability of CN’s evidence, bearing in mind the significant forensic disadvantages to the accused caused by the delay in the allegations proceeding to trial.
The prosecution led evidence (without objection by defence) of uncharged sexual acts and discreditable conduct allegedly committed by the accused. I am satisfied the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.[19]
[19] Criminal Law Consolidation Act 1935 (SA), s 34P(2)-(3).
The evidence is only relevant for non-propensity purposes which are as follows. The frequency of the alleged uncharged sexual acts as described by CN potentially explain how CN’s relationship with the accused became sexualised, and why CN felt comfortable spontaneously instigating sexual contact with the accused (behaviour which might seem unlikely without the full context of the uncharged sexual acts). For example, CN explained she saw the accused more as a boyfriend[20] than akin to a parent and she used sexual activity with him to gain ‘rewards’ from him that her mother refused to give her, and that on occasions she enjoyed the sexual touching.
[20] Exhibit P1B at 104; T138 (15/12/2017).
The evidence of the frequency of the uncharged sexual acts, may potentially explain how the accused came to expect CN’s silence so as to become emboldened to commit the sexual offending.
The frequency of the uncharged sexual acts may also explain CN’s lack of specificity and confused recollection in respect of some aspects of the charged offences because they occurred against a multiplicity of similar incidents, of uncharged sexual acts, on CN’s evidence. Although, I note the first count is alleged to have been the only occasion of fellatio, and the second and ninth count, the only occasions of penile-vaginal sexual intercourse.
Further, the allegations of uncharged physical violence to CN (in smashing her make-up kit after the sixth count), grabbing her by the arm (after the ninth count) and pretending to throw her off the Blanchetown Bridge after reading her diary) and to her mother (in grabbing her by the neck), potentially explains a level of forcefulness used by the accused which may explain CN’s evidence that the accused was increasingly possessive of her as she matured, and manipulative of her feelings, which may in turn explain why CN submitted to some of the charged acts and did not tell anyone about the alleged charged offending until many years later, after she had left home.
However, before the uncharged sexual and physical acts can be used in the manner summarised above, the Court must be satisfied of CN’s evidence that the uncharged acts actually occurred. CN’s evidence about the uncharged acts may also show inconsistency or unreliability or inherent improbability in CN’s account more generally, thereby raising doubts about the charged offences.
The evidence of the uncharged acts cannot be used in the following way. The fact that allegations are made about a number of uncharged sexual and physical acts does not in any sense absolve the Court from the task of determining whether the charges themselves are made out or proved beyond reasonable doubt. It would be wrong to reason that because of the multiplicity of charged and uncharged acts that the accused must be guilty of something and convict the accused of one or all of the charged offences.
It is also impermissible to conclude from the uncharged conduct that the accused is the sort of person who would be likely to commit the charged offences and therefore he is more likely to be guilty or is guilty of any or all of the charged offences.
The prosecution led evidence, without objection, of CN’s conversation with her former partner JG during which she disclosed she had a sexual relationship with the accused as evidence of an ‘initial complaint’. The evidence is relevant to how CN’s sexual allegations first came to light, and as evidence of consistency of conduct by CN.[21] CN’s initial complaint is not admitted as evidence of the truth of CN’s statement to JG that she had been in a sexual relationship with the accused.[22]
[21] Evidence Act 1929 (SA), s 34M(4)(a).
[22] Evidence Act 1929 (SA), s 34M(4)(b).
There may be varied reasons why an alleged victim of a sexual offence has made a complaint about sexual offending at a particular time to a particular person. CN gave evidence she had not told anyone before JG because she felt guilty and ashamed, and because the accused told her on more than one occasion that no-one would believe her.[23] CN also said she didn’t feel comfortable talking to her mother as they were not close.[24]
[23] Exhibit P1B at 159.
[24] Ibid at 200.
The defence case suggested CN has a motive to have lied and fabricated the allegations against the accused, namely to gain the attention of her mother or to exact revenge on her mother for not loving her enough, and for separating CN from her biological father, SN. The accused does not have to prove why CN may have fabricated the allegations against the accused. The absence or rejection of a motive to lie on the part of CN does not strengthen the prosecution case. It is neutral. Lies can be told for no apparent reason or, indeed, for hidden reasons. It is not for the accused to put forward, or, to prove a motive for CN to lie. It is for the prosecution to establish beyond reasonable doubt that CN is truthful in her evidence in court and to prove beyond reasonable doubt each charge.
I turn to the evidence led by both the prosecution and defence in respect of each charged count.
Count 1 – Unlawful Sexual Intercourse With A Person Under 14
The first count relates to an alleged incident of fellatio in the accused’s bedroom at the Kurralta Park house.
CN gave evidence that the accused called her into his bedroom. When she walked into the bedroom he was lying on the bed naked, with a purple top sheet over his body.[25] The accused called CN over and asked her to ‘kiss it’, pointing with his finger to his penis area. CN kissed his penis through the sheet.[26] The accused then moved the sheet, and again asked her to kiss it.[27] CN said the accused’s penis was hard and sticking up. She kissed his penis for a couple of seconds. She said his penis was warm.[28]
[25] Exhibit P1B at 42, 208.
[26] Ibid at 43.
[27] Ibid at 43.
[28] Ibid at 42-44.
CN gave evidence that this was the first time this had happened.[29] The accused then asked CN to open her mouth. When she did, he put his penis inside her mouth. She could feel his penis at the back of her throat. He did not move it around at all.[30] This lasted for a couple of seconds. CN said she stayed still as a statue. She felt scared because usually she felt in control, but this time she did not.[31]
[29] Ibid at 42-43.
[30] Ibid at 44.
[31] Ibid at 44.
CN gave evidence the accused had his hands on the back of her head while his penis was inside her mouth.[32] The accused then let go of her and she pulled his penis out of her mouth and left the room.[33]
[32] Ibid at 45.
[33] Ibid at 45.
In cross examination, CN agreed that in her police statement of 6 January 2014, she did not mention the accused holding her head with his hands.[34] She denied making up this detail since providing her statement to police. CN said it was the only time the accused placed his penis in her mouth; she has suppressed a lot of it; and it has taken a lot for her to try to remember.[35]
[34] Ibid at 211.
[35] Ibid at 212.
The accused in his record of interview denied the alleged offence.[36] However, he said, ‘We’ve had purple sheets but for me to be lying naked in one no that’s never put the two together’.[37]
[36] Exhibit P17A at A84.
[37] Exhibit P17A at A130.
The accused, in his evidence at the previous trial (tendered as part of the prosecution case) denied ever lying on his bed at Kurralta Park and having CN place his penis inside CN’s mouth.[38]
[38] Exhibit P18 at 273-274.
Defence case
Diana Talbot gave evidence all the beds at Kurralta Park had a fitted sheet, a doona and a quilt cover, and there were no flat sheets in her house.[39] She said she never had purple sheets or purple blankets.[40]
[39] T287 (19/12/2017).
[40] T287-288 (19/12/2017).
Hilda Helps also gave evidence that there were no top sheets at the Kurralta Park house. She said the accused and Diana didn’t use a top sheet,[41] and this was a bone of contention between herself and Diana as she told them that they should get top sheets, but they said, ‘No, they don’t like top sheets’.[42]
[41] T312 (19/02/2017).
[42] T317 (19/12/2017).
Count 2 – Unlawful Sexual Intercourse With A Person Under 14
The second count relates to an alleged incident of penile-vaginal sexual intercourse between the accused and CN on an octagonal table in the dining room at Kurralta Park. It is the first occasion the accused is alleged to have had penile-vaginal sexual intercourse with CN.
CN gave evidence that when she was in year 6, she wanted to go on a school camping trip to Albury Wildlife Park. She knew that her mum would say no, so she asked the accused if she could go. They were walking to the shops together at the time of this conversation.[43] The accused said that he would talk to CN’s mum, but it would mean she would have to give him a bigger hug, and he said that a ‘bigger hug’ meant that his penis would go inside her. CN gave evidence she was 11 years old at the time[44] and she didn’t understand what he meant.[45]
[43] Exhibit P1B at 56-57.
[44] Ibid at 66.
[45] Ibid at 57.
CN said when the accused and CN returned home from the shops, they went into the dining room. The accused told CN that ‘a bigger hug’ would feel good, but it might hurt.[46] CN said the accused picked her up and put her on the dining table. He was holding her legs up a bit and standing between her legs.[47] He pulled her knickers to the side, spat on his hand, and was rubbing his hand on her vagina. CN said she was looking at him, then felt scared and looked away. She felt like she couldn’t move and she kept quiet. CN gave evidence that she was feeling scared because she wasn’t in control.[48]
[46] Ibid at 58.
[47] Ibid at 60.
[48] Ibid at 60-61.
CN gave evidence that the accused then put the tip of his penis into her vagina.[49] She said that it felt like her vagina was burning, and it hurt so much that she started crying and screamed.[50] The accused pulled his penis out of her vagina and said he was sorry, and said that she could go swimming in the pool.[51]
[49] Ibid at 61.
[50] Ibid at 61.
[51] Ibid at 62.
CN said she got into her bathers and went in the pool. Her vagina felt like it was burning. It was hurting more when she got into the pool.[52] CN said when she went to have a shower after swimming, she noticed that there was blood on the inside of her bathers and she got a mirror to see if she could see where the blood was coming from. She had started menstruating before the time of this incident, but she didn’t have her period at that time.[53] CN gave evidence that her vagina hurt that day and probably for the next day.[54]
[52] Ibid at 62.
[53] Ibid at 63.
[54] Ibid at 63.
CN disagreed the table would have collapsed under her weight. She said she wasn’t that heavy then.[55] CN agreed that when speaking with police officer Ford, she said her bottom was off the edge of the table, but she didn’t mention that the accused had placed her in that position.[56] CN agreed the police officer gave her time to fully explain what happened.[57] She said, however, that she was nervous and scared as she had never spoken about it.[58] CN said she is humiliated by it all and it makes her feel sick.[59]
[55] Ibid at 213.
[56] Ibid at 214.
[57] Ibid at 214.
[58] Ibid at 214.
[59] Ibid at 216.
CN disagreed the dining room table was moved outside the house while they were living at Kurralta Park.[60] When CN was shown a photograph of her with her great grandmother (referred to as ‘Nana Talbot’) seated at the table outside,[61] CN said this alleged incident of sexual intercourse on the table didn’t occur until after her great grandmother moved out of the Kurralta Park home.[62] CN said she does not recall the accused using the dining room table as a work table to paint. She said the accused had a garage for that, not the barbeque area.[63]
[60] T103 (15/12/2017); T335 (20/12/2017).
[61] Exhibit D9.
[62] T104-105 (15/12/2017).
[63] T112 (15/12/2017).
The accused in his record of interview denied the alleged offence.[64]
[64] Exhibit P17A at A89.
The accused in his evidence at the previous trial denied having had sexual intercourse with CN in the dining room on the dining room table. He said it was a ‘rickety’ second hand table, and could not sustain any weight without toppling over.[65]
[65] Exhibit P18 at 277.
Defence case
On the defence case, Diana Talbot gave evidence that Nana Talbot moved in to live with her family when CN was aged about 8, 9 or 10 (2003 to 2006), and lived at Kurralta Park until CN was aged 13 or 14 (2008 to 2009).[66] She said Nana Talbot passed away in a nursing home, where she lived for a few months before her death.[67]
[66] T266-267 (19/12/2017).
[67] T269 (19/12/2017).
As to the sleeping arrangements, Diana Talbot said when Nana Talbot moved into the home, she and the accused moved into the dining room, and the dining room table was moved outside to the barbeque area.[68] Diana Talbot said the table was never again placed back inside the Kurralta Park house.[69] Diana Talbot said Nana Talbot stayed in CN’s bedroom[70] and CN moved into the accused and Diana’s room.[71] Diana Talbot said Ms Helps (the accused’s mother) lived with them for four or five months, during the period Nana Talbot lived with the family, and stayed in the spare room.[72] Diana Talbot said Ms Helps moved out before Nana Talbot left.[73]
[68] T237 (19/12/2017).
[69] T237 (19/12/2017).
[70] Marked as ‘my room #1’ on Exhibit P3.
[71] The room marked ‘Craigs + mums room’ on Exhibit P3.
[72] Marked as ‘my room #2’ on Exhibit P3.
[73] T269 (19/12/2017).
Diana Talbot said that after Nana Talbot moved out, she bought a pool table for the dining room.[74] She and the accused moved back into their original bedroom, and CN moved back into her original bedroom.[75] She said the dining room table never moved back into the dining room because there was insufficient room because of the pool table.[76]
[74] T271 (19/12/2017).
[75] Marked as ‘my room #1’ on Exhibit P3.
[76] T272 (19/12/2017).
Diana Talbot said the dining room table was eventually moved with the family to the Blanchetown premises and placed into the shed.[77]
[77] T237 (19/12/2017).
Diana Talbot said the table was not strong, and it would topple over. She said once outside, the table was used for people to put their drinks on, but not for meals.[78] Diana Talbot said that when the table was in the dining room, the children were wary when eating off the table so that it didn’t topple over and knew not to lean on the table.[79]
[78] T238 (19/12/2017).
[79] T271 (19/12/2017).
In cross examination, Diana Talbot agreed that at the first trial she didn’t mention that the table had been moved from the dining room to an outside area at Kurralta Park.[80]
[80] T266 (19/12/2017).
WN, CN’s brother, also gave evidence about the dining room table. He said the table was moved out of the house to a position under the veranda at Kurralta Park, and then the shed.[81] WN said the table was ‘too used and abused’ to go back inside so it became the accused’s work table.[82] WN said the table went with his family when they moved to Blanchetown and was put in the accused’s shed.[83]
[81] T182 (18/12/2017).
[82] T182 (18/12/2017).
[83] T182 (18/12/2017).
NT also gave evidence the dining room table at Kurralta Park was quite unstable, and eventually went outside under the undercover area near the barbeque, but she cannot remember when that occurred.[84] She said when Nana Talbot lived at the Kurralta Park home, the dining room was used as a bedroom and the table was outside.[85]
[84] T297 (19/12/2017).
[85] T297 (19/12/2017).
In cross examination, NT was referred to a photograph[86] which she said depicted WN and her ex-partner (Trevor) around the pool table. She was with Trevor for four years, and the relationship ended in 2007 (when CN was aged 11 or 12).[87] She said the photo was taken in the lounge room at Kurralta Park. However, she agreed it is possible the photo depicts the dining room, as she has no independent recollection of where the photo was taken or where the pool table was located.[88]
[86] Exhibit D24.
[87] T305 (19/12/2017).
[88] T306 (19/12/2017).
Ms Hilda Helps gave evidence that she lived with her son and his family at the Kurralta Park home for four to six weeks in 2004.[89] Nana Talbot was also living there, and stayed in the back bedroom[90] until she went to a nursing home at the end of 2006 (when CN was aged 11).[91] She said that CN stayed in the accused’s former bedroom, and the accused and Diana moved into the dining room.[92] She said after Nana Talbot left, CN moved back into ‘my room #1’, the accused and Diana went back to their room, and a pool table went into the dining room.[93]
[89] T307 (19/12/2017); ‘my room #2’ on Exhibit P3.
[90] Marked ‘my room #1’ on Exhibit P3.
[91] T308 (19/12/2017).
[92] T308 (19/12/2017).
[93] T308 (19/12/2017).
Hilda Helps said the dining room table at Kurralta Park was a wobbly table. She said once the table went outside, she never saw it go back into the dining room.[94]
[94] T311 (19/12/2017).
Count 3 – Unlawful Sexual Intercourse With A Person Under 14
The third count relates to an alleged incident of anal sexual intercourse in a bus situated in the backyard at the Kurralta Park house.
CN said she was in year 6 (and aged 11 or 12) at the time of this alleged offence.[95] She had been swimming in the pool, and went to the bus looking for her mum. The bus was only partially renovated and the bunkbeds had not yet been completed. On the bottom there was a storage box as a base and a railing.[96] When CN got to the bus the accused called her inside, so CN walked past some wardrobes and into the bedroom area of the bus.[97] CN said the accused was lying on the main bed. CN said when she entered the bus, the accused got up from the bed, grabbed her left arm and twisted it behind her back, and then bent her over the bunk bed railings.[98] CN said her position meant she was facing towards the house and could see through a bus window to her bedroom window, the sunroom and back door.[99]
[95] Exhibit P1B at 66.
[96] Ibid at 68.
[97] Ibid at 67.
[98] Ibid at 68.
[99] Ibid at 69.
CN said she was scared, because the accused had never previously restrained her in such a manner. The accused was standing directly behind CN.[100] CN said the accused then bent her over a little bit more, and it felt like he tried to put his penis in her bottom, as she could feel the tip of it going in.[101] CN said that it hurt, and that she jolted up and said it was her ‘bum’ he was in, because she didn’t know a penis could go in that area.[102]
[100] Ibid at 69.
[101] Ibid at 70.
[102] Ibid at 71.
CN gave evidence that she tried to push the accused away, and he then tried to put his penis inside her vagina, but she tightened her legs. She said she next heard WN running out of the house and the accused let her go. CN said that it hurt to sit down and to walk around for a day or longer.[103]
[103] Ibid at 72.
CN said that she didn’t understand why the accused tried to put his penis in her bottom. She didn’t know that people did it in the bottom back then.[104] CN was asked in evidence if she thought she would receive a reward for the accused placing his penis into her anus, and CN said she understood that the accused had heard her talking with her mother about wanting to have a friend sleep over.[105]
[104] Ibid at 73.
[105] Ibid at 79.
CN agreed that she marked the plan of the Kurralta Park premises[106] with an ‘X’ to indicate the locations where she and the accused had sexual activity, and there is no ‘X’ marking on the bus. However, CN reiterated that there was sexual activity in the bus.[107]
[106] Exhibit P3.
[107] T135 (15/12/2017).
The accused in his record of interview denied the alleged offence.[108]
[108] Exhibit P17A at A106-107.
The accused during his evidence at the previous trial denied having anal sexual intercourse with CN in the bus at Kurralta Park.[109] He agreed he was renovating a bus at Kurralta Park, and there was a blow-up swimming pool in the rear garden at Kurralta Park. The accused said the children were not allowed in the bus when they were wet from swimming.[110]
[109] Exhibit P18 at 278.
[110] Ibid at 278.
Defence case
As part of the defence case, Diana Talbot was shown a photograph[111] depicting the bus after it was renovated. She said the sofa would fold out to be a bed, and when folded out there was only enough room for a person’s legs to shuffle past.[112]
[111] Exhibit D10.
[112] T245 (19/12/2017).
Count 4 – Aggravated Indecent Assault
The fourth count relates to an alleged incident of indecent assault on a camping trip with the Mansfield family at Mannum.
CN gave evidence she was aged 11 or 12 at the time of the camping trip.[113]
[113] T113 (15/12/2017).
CN said that she did not take her bathers on the camping trip, so she asked the accused if she could borrow one of his tops to swim in.[114] CN told the accused that if he let her borrow his top, she would owe him a ‘big hug’ when they got home.[115] CN said this conversation occurred while she was standing in the doorway of the campervan, and with the accused and her mother lying on the bed in the campervan.[116]
[114] Exhibit P1B at 75.
[115] Ibid at 76.
[116] T115 (15/12/2017).
CN gave evidence that on this trip all of the children and all of the adults went swimming in the river.[117] She said, ‘We were all in the water, it was hot’.[118] CN said that while they were swimming the accused began touching her on the outside of her knickers and running his fingers along the outside of her underwear between her legs, on her vagina.[119] She said that the accused had his arm around her under the water while this was happening because it was too deep for her to stand.[120] CN said that this touching went on for a while.[121] She thought that it was happening the whole time they were in the water.[122]
[117] Exhibit P1B at 76.
[118] T117 (15/12/2017).
[119] Exhibit P1B at 76.
[120] Ibid at 77-78.
[121] Ibid at 76.
[122] Ibid at 78.
CN said that there was more than one camping trip taken by her family with the Mansfield family. The trip on which the offending occurred involved only her family and the Mansfield family.[123] CN said there was a different camping trip on which WN got hurt.[124]
[123] T101 (15/12/2017).
[124] T102 (15/12/2017).
CN denied that the boys and girls slept in separate tents.[125] She said that would have meant five boys in one tent and two girls in another tent and that never happened.[126] CN agreed she used the term ‘big hugs’ in front of other people on other occasions including WN, and Leanne Mansfield at the Mansfield’s house when she wanted a sleepover with her daughter (Anna).[127]
[125] T114 (15/12/2017).
[126] T114 (15/12/2017).
[127] T117 (15/12/2017).
Leanne Mansfield gave evidence as part of the prosecution case. She said she has five children, including twins, now aged between 22 and 24.[128] She said her family went on two or three camping trips with the accused’s family, during which there was a total of seven children. The trips mainly occurred during the school holidays, and in the warmer months, such as September or October. The longest trip was two nights.[129] On those trips they would all go for walks and play in the water. She said she didn’t like to go swimming because she wanted to keep an eye on the children as one of her children has cerebral palsy and couldn’t swim so she would wade in the water.[130]
[128] T156 (18/12/2017).
[129] T160-161 (18/12/2017).
[130] T157 (18/12/2017).
Leanne Mansfield does not recall other adults swimming on any of the trips with the accused’s family but agreed that her lack of recollection ‘doesn’t mean it didn’t happen’.[131] She said there were times she would leave the bank of the river and other adults would be there supervising the children.[132]
[131] T158 (18/12/2017).
[132] T158 (18/12/2017).
Leanne Mansfield said the boys slept in two tents, and the girls in another tent.[133] She said there was a trip on which the accused and Diana had a campervan.
[133] T159 (18/12/2017).
Leanne Mansfield does not recall anything in particular happening to WN on any trip.[134]
[134] T158 (18/12/2017).
Leanne Mansfield does not recall hearing any conversation between CN and the accused about ‘big hugs’.[135] She cannot recall seeing the accused and CN hugging each other on those trips.[136] Nor does she recall any occasions when CN slept over with her daughter, and she has never heard anything about ‘big hugs’ in the context of a sleepover or a stayover.[137]
[135] T161 (18/12/2017).
[136] T160 (18/12/2017).
[137] T160 (18/12/2017).
Leanne Mansfield did not notice anything unusual about the behaviour of CN or the accused on any camping trips the families took together.[138]
[138] Exhibit P19, Further Agreed Fact [3].
The accused in his record of interview recalled camping with the Mansfield family at Mannum but denied touching CN on her underwear near her vagina.[139]
[139] Exhibit P17A at A115-121.
The accused in his evidence at the previous trial denied touching CN on her knickers in the area of her vagina underwater during a camping trip.[140] The accused agreed he went on a camping trip to the Murray River at Mannum with the Mansfield family.[141] The accused denied that CN asked to borrow a t-shirt from him in which to swim.[142] The accused said no adults went swimming that weekend.[143] The accused said WN fell off a motorbike and grazed his knee and arm on the first day of the trip.[144] The accused said he looked after WN and neither he nor WN went swimming during that trip.[145] The accused agreed WN did not need much supervision or care after injuring himself.[146] The accused said he did not go swimming because it was not warm enough rather than because of WN’s accident.[147]
[140] Exhibit P18 at 279.
[141] Ibid at 279.
[142] Ibid at 279.
[143] Ibid at 279.
[144] Ibid at 279.
[145] Ibid at 279.
[146] Ibid at 334.
[147] Ibid at 334.
Defence case
Diana Talbot gave evidence about a camping trip to Mannum with the Mansfield family.[148] She only remembers one such occasion.[149] On that trip no adults went swimming, but the children went swimming.[150] She said WN had an accident on a motorbike which meant he was not allowed in the water, as his arm was very badly scratched up.[151]
[148] T239 (19/12/2017).
[149] T239 (19/12/2017).
[150] T239 (19/12/2017).
[151] T239 (19/12/2017).
WN also gave evidence about camping with the Mansfield family. He said he remembers going on one camping trip to Mannum.[152] He doesn’t remember how old he was, but he recalls falling off a motorbike. He said he sustained gravel rash so he played cricket with the accused and they went looking for geckos on a tree.[153] He said he did not go swimming on that trip, nor did he see the accused or any of the other adults go swimming. WN said only the other children went swimming on the camping trip during which he injured himself.[154]
[152] T182-183 (18/12/2017).
[153] T183 (18/12/2017).
[154] T183 (18/12/2017).
Count 5 – Aggravated Indecent Assault
The fifth count relates to an alleged incident of the accused rubbing his penis on CN’s body on the day of CN’s year 7 graduation in 2008 when CN was aged 13.
CN said there was a celebratory dinner on the night of her year 7 graduation, which she wanted to attend. CN said that she entered the bedroom shared by her mother and the accused at the Kurralta Park premises, and saw the accused lying on the bed with no top on and his pants pulled down. CN said that she walked straight into the room and got on top of the accused, because she knew that was what he wanted.[155]
[155] Ibid at 81.
CN said that she and the accused then did ‘big hugs’ by rubbing her vagina area against his penis, for a couple of minutes.[156] She said that this felt good to her.[157]
[156] Ibid at 82.
[157] Ibid at 82.
CN then heard the door. She assumed that the accused heard it too, as he threw her into the air and off the bed. The right side of her head hit the bedside table at the left-hand side of the bed.[158] CN said the accused was kicking her to go under the bed. She said she went under the bed and was whimpering and crying.[159]
[158] Ibid at 83.
[159] Ibid at 83.
CN said she is pretty sure her mum was already in the room before she got under the bed.[160] Her mum started to get changed out of her work clothes. The accused was trying to rush her mum out of the room, saying something about calendars.[161]
[160] Ibid at 83.
[161] Ibid at 83.
CN denied there was a spare mattress kept under the bed.[162] She said there were only shoes and make up under the bed.[163]
[162] Ibid at 221.
[163] Ibid at 220.
CN said once the accused and her mother had left the room, she got out from under the bed and went to her own room and then went to her graduation dinner.[164]
[164] Ibid at 84.
CN said after she returned home from the graduation dinner, the accused came into her bedroom, and told her that she was just a kid, and that he was an adult, and no-one would believe anything that she says.[165] CN said that the accused sounded really mean. She said that this was the first time he’d ever said anything like that to her. CN said she believed the accused had spoken to her in this way because he thought they had been caught by her mum and that CN would say something to her.[166] CN said after this incident, the accused was always telling her that she would not be believed.[167]
[165] Ibid at 84.
[166] Ibid at 85.
[167] Ibid at 85.
CN agreed her mother had been at work and returned home in her car, a Nissan Skyline.[168] CN was asked whether she would have been able to hear the car approaching from a distance. She said she ‘wouldn’t know’.[169] When CN was shown a photograph of a Nissan car,[170] CN agreed that it depicted the car her mother drove home that night.[171]
[168] T119 (15/12/2017).
[169] T119 (15/12/2017).
[170] Exhibit D12.
[171] T121 (15/12/2017).
The accused in his record of interview[172] and during his evidence at the previous trial[173] said he had little memory of the relevant evening and denied the alleged incident. In the accused’s previous evidence, he denied that CN was rubbing her vagina against his penis. He denied that CN had to climb under the bed to hide from her mother.[174] The accused said he had a queen size bed, with a spare mattress stored underneath the bed, and there was insufficient room for CN to hide under that bed.[175] The accused denied he told CN, ‘You’re just a kid, no-one would believe you’.[176]
[172] Exhibit P17A at A122-127.
[173] Exhibit P18 at 280, 330-331.
[174] Ibid at 280.
[175] Ibid at 280.
[176] Ibid at 280.
Defence case
Diana Talbot gave evidence that she and the accused had a wooden framed bed with a mattress on top, and a spare softer mattress stored underneath the bed, at Kurralta Park.[177] She said they would sometimes swap the mattresses because of the accused’s sore back. She said there were never shoes or make-up stored under the bed. The shoes were kept in her wardrobe, and the suitcases were stored in the cupboards.[178]
[177] T238 (19/12/2017).
[178] T285 (19/12/2017).
Diana Talbot said she specifically recalls the day of CN’s year 7 graduation. She said when she returned home, she didn’t hear anything unusual in her bedroom, and there was nobody in her bedroom when she entered the house.[179]
[179] T238 (19/12/2017).
Diana Talbot also gave evidence that she drove a Nissan Skyline whilst living at Kurralta Park and the car exhaust was very loud.[180]
[180] T245 (19/12/2017).
Diana Talbot also said they didn’t have calendars in the garage that year, as the calendar club was finished. She said Hilda Helps (who had a business involving calendars and stored the calendars at the Kurralta Park house) was by this stage living in Goolwa.[181]
[181] T283 (19/12/2017).
WN gave evidence that the accused and his mother had a wooden bed with a mattress on the bed, and a spare mattress stored under the bed.[182] WN agreed however, that at the previous trial, he gave evidence there were suitcases stored under the bed.[183] WN said he was mistaken in his evidence at the first trial, and there was in fact a spare mattress under the bed at Kurralta Park.[184] WN explained that his mistake occurred because at the time of the first trial he was in fact sleeping on that bed, and there were at that time suitcases stored under the bed.[185]
[182] T201 (19/12/2017).
[183] T202-203 (19/12/2017).
[184] T207-209 (19/12/2017).
[185] T207-209 (19/12/2017).
WN also gave evidence that his mother’s Nissan Skyline has a very loud exhaust. He said his mother drove that car to work when they were living at Kurralta Park. WN said he could hear the Nissan car approaching from a couple of blocks away.[186]
[186] T185 (18/12/2017).
Hilda Helps gave evidence that she had a business involving calendars which ran for three years from 2005 until 2007. She said she used the Kurralta Park premises to receive and store the calendars. Deliveries were received in September and the unsold calendars were packed up and returned to Sydney in February. Hilda Helps said the last year she returned the calendars was in February 2008.
Count 6 – Gross Indecency
The sixth count relates to an alleged incident of the accused touching the area of his penis over his clothes in the presence of CN, in the bathroom at the Kurralta Park premises, in 2009 when CN was in year 8 at William Light High School and aged 14.
CN said that one morning she was in the bathroom getting ready for school, and putting make-up on. The accused came into the bathroom and began moving his palm and hand over his pants and on top of the area covering his penis.[187] CN said the accused stood there touching himself in that way for a couple of minutes, until CN told him to get out of the bathroom.[188] CN said that she felt uncomfortable, and that she wanted him to go away because she had a boyfriend at the time and was starting to feel that the sexual touching between herself and the accused was wrong.[189]
[187] Exhibit P1B at 87-89.
[188] Ibid at 89.
[189] Ibid at 90.
CN said that the accused left the bathroom, and she went into her bedroom. The accused followed her into her bedroom, yelling that she was a slut and that she was exactly like her mum, and she didn’t need to put make-up on.[190] CN said the accused then smashed his closed fist down on CN’s make-up kit, and it broke.[191] CN said her mum came into CN’s bedroom to see what the accused was yelling about and defended her. CN said this was the only occasion she can recall her mother doing so, which is why it stands out in her memory.[192] CN said the accused then grabbed her mother by the throat and held her there. CN left the room.[193]
[190] Ibid at 90-91.
[191] Ibid at 91.
[192] Ibid at 92, 225.
[193] Ibid at 93.
CN agreed that her father SN once said to her, ‘You’re being a slut just like your mother’. CN disagreed that she has attributed this comment by her father, to the accused, in making up the allegations.[194] CN agreed that when she gave a statement to police officer Ford in January 2014, she did not mention that the accused had called her a slut.[195] CN explained that she failed to do so because she was an emotional wreck that day.[196]
[194] Ibid at 224-225.
[195] Ibid at 222.
[196] Ibid at 223.
The accused, in his evidence at the previous trial, denied there was an occasion when CN was in the bathroom putting on make-up and he was standing in the bathroom touching his penis over the top of his clothes.[197] The accused said there was an occasion when CN was putting make-up on before going to school and he told her not to. The accused said he had this conversation with her in CN’s bedroom, and he slammed the lid down on the make-up kit and threw it in the bin.[198] The accused said Diana was present and was supporting him, as the school had previously complained about the amount of make-up worn by CN.[199] The accused denied at any stage saying to CN she was ‘a slut exactly like your mum’ or grabbing Diana around the neck.[200]
[197] Exhibit P18 at 281.
[198] Ibid at 281.
[199] Ibid at 282.
[200] Ibid at 282.
Defence case
As part of the defence case, Diana Talbot gave evidence that her relationship with the accused has always been a very happy and loving relationship.[201] She said the accused has never been violent towards her, and he has never grabbed her around the throat or called her a slut.[202]
[201] T228 (19/12/2017).
[202] T229 (19/12/2017).
Diana Talbot gave evidence that there was an incident when CN came out of her bedroom with a face full of make-up.[203] She said the accused went into CN’s bedroom and grabbed the make-up and said, ‘That’s enough of this’ and put it in the bin.[204] Diana Talbot said there was never an incident involving CN and makeup during which the accused grabbed her by the neck, or during which she supported CN over the accused.[205]
[203] T236 (19/12/2017).
[204] T236 (19/12/2017).
[205] T236 (19/12/2017).
Count 7 – Aggravated Indecent Assault
The seventh count relates to an alleged incident of the accused kissing CN in the garage of the Blanchetown home whilst CN was touching the area of his penis over his clothes.
CN said she wanted to go camping with friends. CN had asked her mum if she could go and her mum said no. CN said the accused was aware that her mother would not let her go on the camping trip, so she wanted to persuade the accused to convince her mother to allow her to go.[206]
[206] Exhibit P1B at 119.
CN said the accused was in the garage doing something with the speedboat. CN said she went in and started touching him through his jeans, in the area of his penis, and kissing him. She said the accused’s penis was becoming erect and they were kissing in a passionate, open-mouthed way.[207] CN said that it went on for a couple of minutes. It came to an end when the accused walked away. CN said the accused didn’t say or do anything, they just stopped kissing.[208]
[207] Ibid at 120-121.
[208] Ibid at 121.
CN said that she felt in control and that the accused liked it as much as she liked it. She said that the accused ended up persuading her mum to let her go on the camping trip.[209]
[209] Ibid at 121.
Defence case
The accused in his evidence at the previous trial denied ever passionately kissing CN or kissing her open mouthed on the lips.[210]
[210] Exhibit P18 at 371.
Count 8 – Aggravated Indecent Assault
The eighth count relates to an alleged incident of indecent assault involving the accused rubbing his penis against CN’s body whilst CN was positioned on the bonnet of the accused’s Suzuki car.
CN said that she walked into the garage, and without talking, the accused picked her up and put her on the bonnet of the Suzuki car. CN said that the accused took his penis out of his pants and rubbed his penis against her vagina.[211] CN said that she could feel the warmth from his penis touching her skin.[212]
[211] Exhibit P1B at 114.
[212] Ibid at 117.
CN said that when she was on the bonnet of the car her bottom was almost off the edge, and the accused was standing between her legs, holding his penis and moving it in an up and down motion against her vagina.[213] She said that the accused was ‘turning me on’, and she liked it.[214] CN said that this didn’t go on for very long because they heard her mum coming out into the yard to feed the dog. CN said the accused stopped touching her in this way as soon as he heard the back door shut, and the accused moved away and put his penis back in his pants.[215]
[213] Ibid at 117.
[214] Ibid at 117.
[215] Ibid at 117.
CN said she was wearing an aqua blue dress which she received for her 15th birthday, that being on 4 April 2010.[216]
[216] Ibid at 116.
CN gave evidence that earlier in the day she and the accused had been talking about the accused teaching her how to drive a manual car, and that she assumed that those lessons would be her reward for letting the accused touch her in this way.[217]
[217] Ibid at 116.
CN disagreed that the Suzuki car was sold in December 2009. She said the car was at Blanchetown for the whole time she was living there.[218]
[218] T124 (15/12/2017).
The accused in his record of interview,[219] and in evidence at the previous trial,[220] denied placing CN on the bonnet of the car and rubbing her vagina with his penis. In his record of interview, the accused agreed he owned a Suzuki car. He agreed he had the Suzuki car at Kurralta Park and he took the car with him to Blanchetown.[221]
[219] Exhibit P17A at A136-139.
[220] Exhibit P18 at 286.
[221] Exhibit P17A at A138.
In evidence at the previous trial, the accused said that while living at Kurralta Park he modified the body of the car by putting a fan underneath the bonnet.[222] He fitted the ‘scoop’ in the bonnet. The accused said you would not be able to sit on the bonnet because he had taken out the central support from the inside of the bonnet, and the front of the bonnet was just a ‘scoop’ with no actual support underneath to hold it.[223] He said the bonnet would not withstand the weight of CN.[224]
[222] Ibid at 285.
[223] Ibid at 286.
[224] Ibid at 286.
Defence case
Diana Talbot gave evidence the accused owned a yellow Suzuki. She said the accused sold it before Christmas 2009.[225] She said the accused had received a fine of $810 for driving the car unregistered and uninsured, so he sold the car within three or four days of receiving the fine. Diana Talbot said the car was sold to a man called ‘Stan’ for $810 cash. A copy of the relevant expiation notice was tendered.[226]
[225] T246 (19/12/2017).
[226] Exhibit D23.
Diana Talbot gave evidence the car was never kept in the garage at Blanchetown.[227]
[227] T289 (19/12/2017).
Diana Talbot also said she is aware the yellow Suzuki is now owned by a man called ‘Beaver’.[228] She said she arranged a couple of weeks before trial for a photograph to be taken. The photograph depicts the accused standing in front of the vehicle in a position similar to that in which CN alleges the accused was standing when rubbing his penis against her vagina when she was on the bonnet of the car.[229]
[228] T247 (19/12/2017).
[229] Exhibit D13.
WN also gave evidence that the accused sold the yellow Suzuki to pay for a fine, although he did not give evidence about when the car was sold.[230]
[230] T185 (18/12/2017).
Count 9 – Unlawful Sexual Intercourse
The ninth count relates to an alleged incident of penile-vaginal sexual intercourse in the accused’s bedroom at the Blanchetown house in 2010.
CN gave evidence that on a weekend during the first half of 2010, her mother was at work. CN said on that day she was wearing her green and black maxi dress[231] and she wasn’t wearing underwear because they were all in the wash.[232]
[231] Exhibit P1B at 125.
[232] Ibid at 125; as shown in Exhibit P6.
CN said that she was planning to ask the accused whether she could sleep over at her sister’s house. The accused was in his bedroom, and CN went in to ask him. CN said that she asked him at that time because her mum would soon be home from work, and she didn’t want to give the accused a ‘big hug’.[233]
[233] Ibid at 126.
CN said that the accused was in a bad mood and that he didn’t react well to her request. She said that the accused pushed her backwards onto the bed without speaking to her, and that her dress flicked up so that the accused could see she had no underwear on.[234] CN said that the accused took his shorts off and was just wearing his underpants, and that he got onto the bed, and positioned himself between her legs.[235] CN said she had opened her legs because she assumed that was what he wanted.[236] The accused took his penis out and masturbated until he was erect, and then put his penis into her vagina.[237]
[234] Ibid at 126-127.
[235] Ibid at 128.
[236] Ibid at 128.
[237] Ibid at 128-129.
CN said that it felt like the accused was having sex with her as hard and as fast as he could, and that it was different to the previous occasion of penile-vaginal sexual intercourse at Kurralta Park (the second count) because the accused continued to have sex with her even though he could see that she was crying. By contrast, CN said the accused at Kurralta Park had stopped when she said it hurt.[238] She said the accused was holding her bum and thighs down with his hands really tight. CN said the accused pulled his penis out and masturbated until he ejaculated onto the quilt, and then CN got up and went into her room.[239]
[238] Ibid at 129
[239] Ibid at 130.
CN said that the sexual intercourse was very painful, and that it felt like the accused had ripped her open.[240] CN said that after this incident there were red marks on her bum and thighs, and that she was scared because by this time she knew more about sex and pregnancy, and the accused wasn’t wearing a condom.[241]
[240] Ibid at 129.
[241] Ibid at 130.
CN said her mum arrived home at between 12noon and 1.00pm.[242] WN was in the recreation room playing the Xbox. CN said later she was in the kitchen making noodles for lunch. The accused asked her to give him a hug and she said no. He grabbed her arm and pulled her to him. He was pushing her face into his chest and she couldn’t breathe. He said, ‘You think you can get a hug when you ask for it but what about when I ask for it’.[243] CN said that while this was happening her mum was sitting in the lounge room.[244]
[242] Ibid at 132.
[243] Ibid at 133.
[244] Ibid at 133.
Defence case
The accused in his record of interview,[245] and evidence at the previous trial[246] denied ever having had penile-vaginal sexual intercourse with CN in his bedroom at Blanchetown. He denied there was ever an occasion when CN was wearing a maxi dress, and he threw her on the bed, and the dress flicked up exposing her naked vagina. He denied he ever had penile-vaginal sexual intercourse with her.
[245] Exhibit P17A at A142-147.
[246] Exhibit P18 at 287.
Count 10 – Aggravated Assault
The tenth count relates to an alleged incident of the accused slapping CN to the face at the school bus stop at Blanchetown shortly before CN moved out of the Blanchetown home in 2010.
CN said that she was getting ready to go to school, and was putting on her school skirt instead of tracksuit pants, because it was hot. She said this made the accused angry because, on CN’s evidence, he didn’t like her showing her legs.[247]
[247] Exhibit P1B at 146.
The accused told CN not to wear the skirt because her legs were showing, but she ignored him and left the house. CN said that she was waiting for the bus down the street, and was the only one there because she was early.[248] She said the bus usually came at 7.40am, but she was there around 7.20am or 7.30am.[249]
[248] Ibid at 147.
[249] Ibid at 147.
CN said the accused came from the house towards the bus stop, and told CN that she looked like a slut, and that she was ‘exactly like your mum’.[250]
[250] Ibid at 147.
CN said the accused slapped her face on each cheek, first with the back of his hand to one cheek and then with the front of his hand to the other cheek. She said that the accused had never hit her like that before. CN said she put her pants on over her skirt and took her skirt off.[251] CN said both of her cheeks were very red for the rest of the day.[252]
[251] Ibid at 148.
[252] Ibid at 148.
CN said her school uniform consisted of skirts, dresses or shorts.[253] CN said on cold days she liked to wear pants and on hot days she wanted to wear a skirt but she wasn’t allowed to.[254] CN said that she would wear a skirt with shorts under the skirt to ‘try to keep Craig happy’.[255] When asked if there were occasions she just wore shorts, she said, ‘Not just shorts, no, no, maybe. I do remember grey shorts that Diana gave me they came down to my knees. They were a bit boyish so I didn’t like them because I looked like a boy’.[256]
[253] T127 (15/12/2017).
[254] T127 (15/12/2017).
[255] T126 (15/12/2017).
[256] T127 (15/12/2017).
CN agreed two photos shown to her depict her wearing grey shorts to school.[257] CN explained that they were the grey shorts she didn’t like that Diana ‘handed me down because she didn’t want to buy me proper school shorts’.[258]
[257] Exhibits D14, D15.
[258] T129 (15/12/2017).
CN agreed about 10 to 15 children caught her school bus,[259] but only five children boarded the bus at her bus stop.[260] CN agreed the bus stop is in view of the front of the Blanchetown home.[261]
[259] T127 (15/12/2017).
[260] T129 (15/12/2017).
[261] CN agreed Exhibit D16 is taken from the Blanchetown home looking towards the relevant bus stop.
The accused, in his evidence at the previous trial, denied there was an occasion when he slapped CN for wearing a skirt to school rather than tracksuit pants.[262] He said she was allowed to wear the skirt to her school.[263] He said that there were occasions when he was angry at her for wearing tracksuit pants because she should have been wearing the school uniform which consisted of a skirt. The accused said he and her mother were ‘all for her wearing a skirt’.[264] The accused denied following CN to the bus stop and making her change from a skirt into tracksuit pants.[265] He denied calling her ‘a slut, just like your mother’. He said he would never say that to her.[266]
[262] Exhibit P18 at 288.
[263] Ibid at 287.
[264] Ibid at 288.
[265] Ibid at 288.
[266] Ibid at 288.
Defence case
Diana Talbot gave evidence that CN never wore a skirt to Waikerie High School.[267] She said a photograph[268] shows where the children used to board the bus, and the house to the right-hand side of the photograph is where the bus driver lived.[269]
[267] T248 (19/12/2017).
[268] Exhibit D16.
[269] T249 (19/12/2017).
Uncharged Acts
CN also said there was much sexual activity between herself and the accused at Kurralta Park from when she was in grade 5 or 6 (so aged 10, 11 or 12) and at Blanchetown. The accused denied in his record of interview, and in his evidence at the previous trial, ever having engaged in any sexual touching or activity with CN.
CN said there were other occasions the accused passionately kissed her, exposed his penis to her, touched his penis in her presence, had ‘big hugs’ with CN, and kissed her breasts and vagina. CN also gave evidence of the accused picking up CN and pretending to throw her off the Blanchetown Bridge after revealing that he had read her diary.
I turn to summarise that evidence.
Passionate kissing
CN said when she was living at Kurralta Park, and in grade 5 or 6 her relationship with the accused changed.[270] She said they became more affectionate with each other. CN said they would have passionate or open-mouthed kisses almost every day.[271] CN said the kisses occurred in the accused’s bedroom, the lounge room, the dining room, the bus, and in both of the rooms CN used as a bedroom at Kurralta Park.[272]
[270] Exhibit P1B at 38; T138 (15/12/2017).
[271] Ibid at 40.
[272] Ibid at 40.
CN said that while living at Blanchetown she and the accused would also have ‘passionate kisses’ in the yellow Suzuki while out collecting firewood.[273] She said they would drive into the bushland in the car. They would stop the car and they would kiss.[274]
[273] Ibid at 118.
[274] Ibid at 118, 230.
CN said on one occasion she was driving and the accused had his hand on her lap and she stopped. CN said she thinks she took her foot off the brake and the car almost rolled into a wombat hole.[275]
[275] Ibid at 118, 230.
In cross examination, CN agreed she never told police officer Ford when giving her statement to police about passionate kissing with the accused in the Suzuki car.[276] CN explained she did not mention this because she had at that time suppressed a lot of things.[277]
[276] Ibid at 231.
[277] Ibid at 231.
The accused in his evidence in the previous trial specifically denied there was ever an occasion where they almost hit a wombat hole whilst passionately kissing CN in the Suzuki car.[278]
[278] Exhibit P18 at 286-287.
Naked and touching penis
CN said when she and the accused were home alone, he would wear a purple sheet like a cape and walk around naked.[279] CN said he would also wear a black, cotton, dressing gown robe with a red strap and be naked underneath.[280]
[279] Exhibit P1B at 51.
[280] Ibid at 52.
CN said the accused would also touch his penis in front of her at Kurralta Park, sometimes while wearing a purple sheet or a black and red dressing gown.[281]
[281] Ibid at 41.
CN said the accused continued to walk around naked and only covered with the sheet and the robe at Blanchetown.[282]
[282] Ibid at 108.
The accused in his evidence in the previous trial denied that he ever walked around wearing a purple sheet like a cape, and denied exposing himself to CN.[283]
[283] Exhibit P18 at 274.
‘Big hugs’
CN said there were also times when she and the accused would have ‘big hugs’ at Kurralta Park and Blanchetown.[284]
[284] Exhibit P1B at 109.
CN said the accused would lie on the bed in his bedroom on his back and she would be on top of him.[285] Sometimes he would have clothes on, sometimes he would not. CN would sit on top of him, facing him with her vagina touching his penis.[286] The accused would hold her hips and get her to move her hips up and down along his body. CN said she would continue to rub herself against him until the accused would say he was close and she would get off him. The accused would masturbate until he ejaculated.[287] This conduct is what CN said she and the accused called a ‘big hug’.
[285] Ibid at 47.
[286] Ibid at 48.
[287] Ibid at 49.
CN said big hugs started in years 5 or 6 (so when CN was aged 10 or 11 and in about 2005 or 2006).[288] CN said big hugs started ‘pretty much as soon as my grandmother (Nana Talbot) wasn’t in the house’.[289]
[288] T137 (15/12/2017).
[289] T138 (15/12/2017).
CN said ‘big hugs’ felt good because she was feeling like she was wanted. She liked it and she would even orgasm sometimes.[290]
[290] Ibid at 50.
CN said the big hugs between herself and the accused continued after her family moved to Blanchetown.[291] However, the accused wasn’t as loving.[292] CN said she only has ‘flash memories’ (which she explained as partial or incomplete memories) of ‘big hugs’ happening at Blanchetown.[293]
[291] Ibid at 108.
[292] Ibid at 108.
[293] Ibid at 109.
Kissing breasts and vagina
CN also said the accused on occasions kissed her breasts and once on her vagina.[294]
[294] Ibid at 55.
Blanchetown Bridge and CN’s diary
CN also gave evidence about an incident which she said occurred a couple of months after moving to Blanchetown. CN said she went for a walk with the accused and WN. Once they reached the Blanchetown Bridge, the accused picked her up in a swinging motion as if to throw her off the bridge. He said, ‘You want to kill yourself, do you?’ CN said she asked him how he knew that, and the accused told her he had found her diary.[295] CN said her brother was there while that conversation was taking place.[296] CN said WN was acting like it was a joke, and he was laughing.[297]
[295] Ibid at 135.
[296] Ibid at 135.
[297] Ibid at 135.
CN said she had a diary whilst living at Kurralta Park and Blanchetown, and she had started the diary when she was ‘cutting’ herself, and was about 11 years old.[298] CN said the diary was the only written record of the sexual activity that had been happening between herself and accused.[299]
[298] Ibid at 133.
[299] Ibid at 136.
CN said she always kept the diary in her underwear drawer. To her knowledge no one knew about the diary, although she said WN might have known she kept a diary, as she remembered WN being in her room a few times when she was writing in it.[300]
[300] T135 (15/12/2017).
CN said when they returned home she found her diary only had a few blank pages left, and the other pages had been ripped out.[301]
[301] Exhibit P1B at 136.
CN agreed her mother had access to her bedroom drawers at both homes, and her mother sometimes cleaned her room.[302] CN said that whilst living at Kurralta Park and Blanchetown she was responsible for putting her own washing away.[303]
[302] Ibid at 235.
[303] T136 (15/12/2017).
The accused in his evidence at the previous trial denied having ever being aware of CN’s diary.[304] The accused agreed there was an occasion when he, CN and WN went for a walk along the Blanchetown Bridge but he denied picking up CN and pretending to throw her off the bridge.[305] The accused also denied ever questioning CN about the diary or saying anything to her about wanting to commit suicide.[306]
[304] Exhibit P18 at 284-285.
[305] Ibid at 284-285.
[306] Ibid at 285.
Diana Talbot also gave evidence that CN had an underwear drawer at the Kurralta Park premises and at her Blanchetown home. Diana Talbot said she would go to that drawer, as she did her children’s washing, and would go through CN’s whole room, yet she never saw a diary.[307]
[307] T243 (19/12/2017).
WN gave evidence that when they first moved to Blanchetown, he went walking on the bridge with CN and the accused. He denied seeing the accused pick up CN and make it look as if he (the accused) was going to throw CN off the bridge.[308] WN denied there was any conversation about a diary.[309] WN said he, the accused and CN walked together, and there was no occasion when CN and the accused were a bit ahead or a bit behind.
[308] T183 (18/12/2017).
[309] T184 (18/12/2017).
WN said it was about a 10-15 minute walk each way, so in total they would have been walking for about 20-30 minutes.[310] WN said that if he had seen the accused pick up CN in the manner she described, he would have said something because it’s dangerous and CN is his full-blooded sister.[311] WN said the accused always had a sore back.[312]
[310] T194 (18/12/2017).
[311] T194 (18/12/2017).
[312] T194 (18/12/2017).
WN gave evidence he does not remember any conversation between the accused and CN about a diary, and he had never seen CN writing in a diary or with a diary.[313]
[313] T184 (18/12/2017).
Complaint
CN said the first person she spoke to about what happened with the accused was JG, whom she started dating in 2011. She had been seeing JG for about a year before she said anything to him.[314] CN said she had ‘night terrors’ and JG noticed that when he touched her in her sleep, she would become frightened. He asked, ‘Why are you doing that?’ CN said she told him that she had a sexual relationship with the accused and she had done things with the accused when she was growing up.[315]
[314] Ibid at 157.
[315] Ibid at 158.
CN agreed that at about the same time she first complained to JG, she put a public post on Facebook about the accused. CN did not recall the content of the post and said, ‘I just know I would have been putting up things when the truth came up [with JG] because it was not long after it came out with my sister and I had to tell my dad too’.[316] CN said she did so because JG was asking a lot of questions and she needed support and people to know the truth.[317]
[316] Ibid at 218
[317] Ibid at 218.
CN was asked whether she wrote, ‘Craig Helps is nothing but a rock spider, nothing but a pedo. You ruined my life. Payback is a bitch’. CN said she has never heard of the term ‘rock spider’.[318] CN disagreed she wrote the Facebook post to get some sympathy from her mother.[319] She said about her mother, ‘She doesn’t care … she stayed with him (the accused) this whole time. She (Diana Talbot) hasn’t made any effort to be a mum, ever’.[320] CN agreed she doesn’t feel any love for her mother. However, she disagreed she made up allegations against the accused as an act of revenge against her mother.[321]
[318] Ibid 216-217.
[319] Ibid 217.
[320] Ibid 217.
[321] Ibid 218.
JG gave evidence that whilst he was living with CN, one night she was tossing and turning in bed, and he heard CN say, ‘No, stop Craig, stop’.[322] After she said those words, she went back to sleep.[323] He said nothing to CN at that time. JG said he spoke to CN about it the following day, and said to her that she had a nightmare and said, ‘Stop Craig, stop’. JG said CN was a little bit upset and walked off on her own.[324] They didn’t discuss it further because he didn’t want to push it further. JG said later in the day he asked her about the nightmare and to tell him what’s going on. They were home at the time. CN said that her step-father had abused her as a young girl. She said it stopped when she moved out. JG said he didn’t ask too many details because he didn’t want to push it any further, and during the conversation CN was upset and crying. This mood lasted for the rest of the day.[325]
[322] T147 (15/12/2017).
[323] T147 (15/12/2017).
[324] T148 (15/12/2017).
[325] T149 (15/12/2017).
JG agreed that in the past, CN would say things to try to get sympathy from him, and he could not tell whether on this occasion it appeared that CN was trying to get sympathy.[326] He said, however, there was something different about this occasion, in that CN appeared more like a young girl, not an adult. JG said CN ‘went backwards’ when talking about the accused, like it was bringing back memories to her of being a young girl.[327]
[326] T150 (15/12/2017).
[327] T151 (15/12/2017).
Defence case
I turn in more detail to the defence case.
Record of interview
The accused became aware of CN’s allegations in a general way at the time of the Facebook post, which appears on the evidence to have been posted in 2011 or 2012, or about the same time as CN’s complaint to JG.[328] Diana Talbot said that she and the accused went to the Blanchetown police station to ask that the post be removed.[329]
[328] Cf T242 (19/12/2017): Diana Talbot says that the Facebook post was a few months after CN’s 16th birthday which would place it in mid to late 2011.
[329] T242 (19/12/2017).
The accused was not interviewed by police until several years later on 31 August 2014. The accused was long aware of the general nature of the sexual allegations by CN against him before the police arrived for the interview.
Diana Talbot and WN were at the Blanchetown home at the time of the police interview (although not present for the substance of the interview).
I also reject beyond reasonable doubt Hilda Helps’ evidence on this topic. That the topic of the use of flat sheets had become a source of discussion and contention between herself and her daughter-in-law, and is a topic she could now recall, strikes me as contrived, convenient and nonsensical.
As to the specific defence criticism of CN’s evidence, that CN did not mention to police the detail of the accused holding her head with his hands, I consider this a detail which could be easily overlooked by a person giving an account of extensive sexual contact between herself and the accused over many years.
The accused’s denials in his record of interview, and in his evidence at the previous trial, and the evidence of Diana Talbot and Hilda Helps did not cause me any doubt as to the truthfulness and reliability of CN’s evidence on this charge. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused placed his penis inside CN’s mouth.
I am also satisfied beyond reasonable doubt CN was aged under 14 at the time of the relevant act of fellatio and the second count is proved.
I find the accused guilty of count 1, the offence of Unlawful Sexual Intercourse with a person under 14.
Count 2 – Unlawful Sexual Intercourse With A Person Under 14
I am satisfied beyond reasonable doubt the accused had penile-vaginal sexual intercourse with CN on the octagonal table in the dining room at Kurralta Park, at a time that Nana Talbot no longer lived with the family.
CN gave an account of this incident which was compelling in its detail. She spoke with specificity of how the incident arose, the pain she suffered during the act of sexual intercourse, and her response to seeing blood in her underwear.
As to the defence submission, that the preponderance of evidence is that the dining room table was unstable and could not sustain any weight without toppling over, CN’s evidence was that she was positioned seated on the edge of the table, so the table did not bear the full combined weight of herself and the accused. CN was also a child of 11 at the time. Further, clearly the table could withstand some weight as it was at one time used as a dinner table, albeit with some trepidation. Whilst housed in the barbeque area, the table was used to hold drinks, and subsequently used by the accused as a work table at Blanchetown. I do not think the evidence as to the ‘rickety’ nature of the table undermines the veracity of CN’s account. I reject the submission that it is inherently unlikely or impossible that the charged act occurred as described by CN.
I reject beyond reasonable doubt the evidence of Diana Talbot, WN and Hilda Helps that the dining room table after being moved outside to the barbeque area when Nana Talbot came to live with the family, was never moved back inside. I am fortified in this view by the fact that the accused did not say in his previous evidence that the table was moved outside never to return to the dining room area.[391] Nor did Diana Talbot at the first trial mention that the table had been moved from the dining room to an outside area at Kurralta Park. The evidence of WN and Hilda Helps on this topic also appeared contrived and constructed to support the accused’s defence.
[391] Exhibit P18.
The accused’s denials in his record of interview, and in his evidence at the previous trial, do not cause me to doubt the truthfulness and reliability of CN’s evidence on this charge. Nor do I consider that the evidence of Diana Talbot, WN and Hilda Helps as to the unstable nature of the table, and its location, undermines the veracity of CN’s evidence on this topic or the charged offence. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused had penile-vaginal sexual intercourse with CN on the dining room table.
I am also satisfied this act of sexual intercourse occurred when CN was in year 6, and 11 years old. Accordingly, I am satisfied the second element of the offence has been proved beyond reasonable doubt.
I find the accused guilty of count 2, the offence of Unlawful Sexual Intercourse with a person under 14.
Count 3 – Unlawful Sexual Intercourse With A Person Under 14
I am satisfied beyond reasonable doubt the accused had anal sexual intercourse with CN in the bus situated in the backyard at the Kurralta Park house.
CN gave a detailed account as to how this offending arose, her thoughts at the time, and her description of the subsequent pain and discomfort she experienced, all of which was highly convincing. For example, CN said that she didn’t understand why the accused tried to put his penis in her bottom, as she didn’t know that people did it in the bottom back then,[392] consistent with how an 11 year old might be expected to respond to such conduct.
[392] Exhibit P1B at 73.
There was also a level of specificity to CN’s evidence about the circumstances in which she came to be in the bus, how she was positioned, her view of the house, and the manner in which the accused restrained her, which I find compelling.
As to the fact that CN marked a plan of the Kurralta Park premises with an ‘X’ to indicate the locations where she and the accused had sexual activity, and that there was no such marking on the bus, to my mind this was simply an explicable oversight by CN in the context of providing an account of a multifaceted course of sexual offending by the accused in numerous locations at the Kurralta Park premises.
I also do not consider there is any force in the defence submission, that if the bed in the bus was folded out (as described by CN) there would be little room for the accused to be standing facing the bed. Nor do I consider this is any force in the submission that the height of the railings (over which CN said she was bent) did not allow for the act of sexual intercourse to have occurred in the manner described by CN. The tendered photograph of the bus does not support either proposition. The outstretched bed allows some room for the accused to stand or ‘shuffle past’ (and as much was conceded by Diana Talbot),[393] and the height of the railings do not preclude the accused from having committed the charged act.
[393] T245 (19/12/2017).
The accused’s denials in his record of interview, and in his evidence at the previous trial, do not cause me to doubt the truthfulness or reliability of CN’s evidence on this charge. Nor do I consider the evidence of Diana Talbot, as to the layout of the bus, undermines the veracity of CN’s evidence on this topic or the charged offence. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused had anal intercourse with CN in the bus.
I am also satisfied beyond reasonable doubt of CN’s evidence that the accused committed the act of anal sexual intercourse with her when she was aged 11 or 12, and therefore under the age of 14, and the second element of the charge is proved.
I find the accused guilty of count 3, the offence of Unlawful Sexual Intercourse with a person under 14.
Count 4 – Aggravated Indecent Assault
I am satisfied beyond reasonable doubt the accused touched CN’s underwear between her legs and on her vagina whilst CN was swimming in the Murray River on a camping trip at Mannum.
I am also satisfied beyond reasonable doubt of the circumstances in which CN said the touching took place, namely that she had borrowed a top from the accused to swim in, CN said she would give him a ‘big hug’ in return when they got home, the accused and other adults and children went swimming in the river, and the accused touched her underwear between her legs and on her vagina whilst they were swimming.[394]
[394] Exhibit P1B at 76.
Leanne Mansfield’s evidence on the topic of whether the accused was swimming with the children on any camping trip is neutral. Leanne Mansfield presented as a forthright, independent and careful witness. She would not commit to anything she did not specifically recall. She said that she had no recollection of adults swimming but that ‘doesn’t mean it didn’t happen’.[395] Leanne Mansfield also said there were times she would leave the bank of the river and other adults would be there supervising the children, allowing for the accused and other adults to have gone swimming with CN, unbeknownst to Leanne Mansfield.[396]
[395] T158 (18/12/2017).
[396] T158 (18/12/2017).
The accused (in his evidence at the previous trial), Diana Talbot and WN each said that there was only one occasion the accused’s family went on a camping trip with the Mansfield family, and on this occasion WN was injured and the accused spent his time looking after WN, and he (nor any other adult) went swimming. I reject beyond reasonable doubt their evidence. The evidence was to some extent contradicted by Leanne Mansfield who said there was more than one camping trip, and she has no recollection of WN injuring himself on any trip.[397]
[397] T158 (18/12/2017).
Further, CN’s evidence on this charged count was detailed and convincing. The material or salient features of CN’s evidence as to the indecent touching were not undermined by the inconsistency between her evidence and Leanne Mansfield’s evidence as to the peripheral matter of whether the boys slept in one tent and the girls in another. Nor do I place any significance on the fact Leanne Mansfield recalls no mention of ‘big hugs’ by the accused or CN, as it was a code which relied on the benign nature of the language, and as such may well not have stuck in a person’s memory when describing an occasion which occurred many years earlier, and in circumstances where Leanne Mansfield was not asked to recall that occasion until recent years. Further, the accused admitted using the term ‘big hugs’ with CN on other occasions, albeit not on this camping trip.
The accused’s denials in his record of interview, and in his evidence at the previous trial, do not cause me to doubt the truthfulness and reliability of CN’s evidence on this charge. Nor do I consider the evidence of Diana Talbot, or WN’s evidence undermine the veracity of CN’s evidence on this charged count or cause me any doubt about the truthfulness and reliability of CN’s evidence. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused touched CN on her underwear between her legs and on her vagina whilst they were swimming.
I am satisfied beyond reasonable doubt that the accused’s touching of CN’s underwear, between her legs and on her vagina, was deliberate because of the prolonged duration of the touching.
I am satisfied beyond reasonable doubt the touching was committed in circumstances of indecency with a sexual connotation, having regard to the fact the accused was touching an area on her vagina, as well as CN’s age and that the accused was involved in de facto relationship with CN’s mother.
The particularised aggravating feature is that the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian.
The accused was not CN’s parent, that is, he was not her biological parent.
I am not satisfied the accused was CN’s guardian. There is no definition of guardian in the CLCA. The common law meaning of guardian was discussed in the first edition of Halsbury’s Laws of England volume 17 at Part 7 in the following terms:
A person may be the guardian of an infant either (1) in socage; (2) by nature in the case of an heir apparent; (3) by custom; (4) for nurture; (5) naturally, or by parental right; (6) by parental appointment, or (7) by appointment by a court of competent jurisdiction.
None of the abovementioned categories are relevant in this case. There is no biological relationship between the accused and CN, and no parental right. CN is not the accused’s ‘heir apparent’. Guardianship by parental appointment or appointment of the court is not relevant as no such order has been made in this case. The accused is not CN’s guardian under common law.
I also draw support from the case of G and Another[398] in which the Western Australian Court of Criminal Appeal considered the proper interpretation of s 190 of the Criminal Code (WA), as set out below:
Any person who being a guardian employer teacher or school master of any girl or woman under the age of 17 years unlawfully and carnally knows or attempts to have unlawful and carnal knowledge of such girl or woman, is guilty of a crime and is liable to imprisonment with hard labour for 5 years with or without whipping.
[398] (1997) 91 A Crim R 590.
The issue in the case was whether a stepfather was a guardian for the purposes of s 190. The Court held he was not. The Court also considered it was appropriate in the absence of a statutory definition of guardian to have regard to the common law definition, and referred to the definition in the first edition of Halsbury’s Laws of England set out above.
A consideration of s 5AA itself also speaks against a finding that the accused was the guardian of CN. Section 5AA of the CLCA provides for other aggravating circumstances in addition to that particularised in this case, including the circumstance where an offender commits a relevant offence knowing the complainant was a child who normally or regularly resides with a domestic partner of the offender. [399] If the term ‘guardian’ was to be interpreted to include a de-facto partner’s child residing with the offender and that partner, there would be no work for the other aggravating circumstance. This points against an interpretation of ‘guardian’ to include a child who normally resides with the de-facto partner of the accused.
[399] Section 5AA (g)(iv)(c) of the CLCA.
For those reasons, I am not satisfied the accused was the guardian of CN at the time of the indecent assault.
I find the accused not guilty of count 4, the offence of Aggravated Indecent Assault but guilty of the alternative offence of Indecent Assault.
Count 5 – Aggravated Indecent Assault
I am satisfied beyond reasonable doubt that the accused rubbed his penis on CN’s body on the day of her year 7 graduation when she was aged 13.
CN gave a detailed account of this incident. She gave an unvarnished account of having instigated the sexual contact with the accused for the reward of being allowed to attend the celebratory dinner, and of the sexual pleasure she derived from the incident.
CN said the incident remained clear in her memory because of the unexpected return of her mother, and having been thrown off the bed, causing her to hit her head on the bedside table, and the accused kicking her under the bed.
I also find highly persuasive CN’s evidence about the accused’s change of behaviour after the incident. That is, that the accused came into her bedroom and told her that she was just a kid, and that he was an adult, and no-one would believe anything that she says. I consider such behaviour consistent with almost having been caught by CN’s mother.
CN’s evidence on this charged count is not undermined by the evidence that Diana Talbot drove a noisy car which you could hear approaching from a distance. It is well conceivable that the accused, distracted by the sexual conduct in which he was engaging with CN, did not on this occasion hear the car.
I also reject beyond reasonable doubt the defence case that there was a mattress stored under the bed and there was insufficient room for CN to hide under that bed. WN agreed that at the previous trial, he gave evidence there were suitcases stored under the bed.[400] I reject WN’s evidence that he was mistaken in his evidence at the first trial because at the time of the trial there were suitcases stored under the bed. To my mind, WN’s previous inconsistent statement on this topic undermines his evidence at this trial.
[400] T202-203 (19/12/2017).
I also reject beyond reasonable doubt Diana Talbot’s evidence that she can recall returning home on the day of CN’s year 7 graduation, and seeing nobody in her bedroom when she entered the house. I find it implausible that if nothing of any note occurred on that day, Diana Talbot would be able to recall such a detail many years later.
As to the evidence of Diana Talbot and Hilda Helps, that the calendar business finished in 2007, and that after February 2008 there were no calendars stored at Kurralta Park, (said to refute the evidence that Diana Talbot was discussing ‘calendars’ while CN was hiding under the bed), CN simply described her mother saying ‘something about calendars’. There is no specificity to the comment which necessarily connects it to a time when the business was on foot. Accordingly, the evidence of Diana Talbot and Hilda Helps on this topic does not cause me any doubt as to the veracity of CN’s evidence on this count.
I also do not consider there to be any force to the defence submission that had Diana Talbot heard CN whimpering and crying under the bed, as described by CN, she would not have supported the accused and turned a blind eye. Of course, it was only CN’s impression her mother would have heard her crying. I consider it completely plausible, and consistent with CN’s evidence, that Diana Talbot simply did not see or hear CN under the bed, despite CN’s impression otherwise.
The accused’s denials in his record of interview, and in his evidence at the previous trial, do not cause me to doubt the truthfulness and reliability of CN’s evidence on this charge. Nor do the evidence of Diana Talbot, WN or Hilda Helps which I reject. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused rubbed his penis on CN’s body on the day of her year 7 graduation.
I am satisfied beyond reasonable doubt that the accused rubbing his penis against CN’s body was deliberate because of the very nature of the touching, and the accused’s reaction when Diana Talbot returned home.
I am satisfied the touching was committed in circumstances of indecency with a sexual connotation, having regard to the nature of the touching (rubbing his genitals against a 13 year old’s body) combined with the accused’s relationship with CN’s mother.
I am not satisfied of the particularised aggravating feature, namely that the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian, for the reasons discussed earlier.
I find the accused not guilty of count 5, the offence of Aggravated Indecent Assault but guilty of the alternative offence of Indecent Assault.
Count 6 – Gross Indecency
I am satisfied beyond reasonable doubt that the accused touched his penis over his clothes in the bathroom at the Kurralta Park premises in the presence of CN when she was aged under 16.
CN’s evidence about this incident was detailed and consistent with her account that, as she became older, and interested in boys her own age, the accused was becoming increasingly possessive of her and angry towards her.
CN gave a cogent account of why this incident stood out in her memory, namely that this is the only occasion she can recall her mother defending her. In that context, I consider it implausible that if CN had fabricated this incident she would embellish her account to include her mother as a material witness, with the accused hurting her mother, particularly given that by the time CN first spoke with police, she was long estranged from her mother.
I also do not consider that CN’s failure to mention in her police statement in January 2014 that the accused had said, ‘You’re being a slut just like your mother’ undermines CN’s credibility. I accept CN’s evidence that she was an emotional wreck on the day of giving her statement,[401] and in that emotional state she overlooked telling the police about that comment. I found that explanation convincing given the long and detailed history of sexual abuse she was recounting to police. I reject the defence submission it is a reasonable possibility that CN has transposed a comment made by father SN that she was ‘a slut like your mother’ to the accused. There is nothing inherently unlikely about both men, at some stage, having made comments to CN of a similar tenor.
[401] Exhibit P1B at 223.
The accused’s evidence at a previous trial about this alleged incident, wherein he denied the offence and having behaved in the manner described by CN, is supported by Diana Talbot’s version about the benign nature of the aftermath involving CN’s make-up. Diana Talbot’s evidence directly contradicts CN’s account about what took place after the touching.
I consider Diana Talbot an unimpressive witness (for the reasons set out earlier) and I reject her evidence beyond reasonable doubt on this topic. I am of the view that in her evidence she has minimised the accused’s reaction and response to CN. There is no suggestion that Diana Talbot was present in the bathroom at the time of the touching, and not having witnessed the alleged offence, it would be much easier for a person to justify minimising the subsequent interaction between the accused and CN.
Neither the accused’s previous evidence, nor Diana Talbot’s evidence on this charge cause me to doubt the truthfulness and reliability of CN’s evidence or the prosecution case on this charge. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused touched his penis over his clothes in the bathroom at the Kurralta Park premises in the presence of CN.
I am satisfied beyond reasonable doubt that the accused’s act of touching his penis (over his clothes) was performed in the presence of CN, and was directed towards CN, on the basis of CN’s evidence that the accused was looking at her and CN was looking at him as the accused touched his penis over his clothes.[402]
[402] Exhibit P1B at 87.
I am also satisfied beyond reasonable doubt the accused’s act was indecent with a sexual connotation, having regard to the very nature of the act, namely the accused touching his penis over his clothes for a couple of minutes, in the presence of his partner’s daughter, and that the indecency is gross, and something more than a minor or trivial indecency.
I am satisfied beyond reasonable doubt CN was aged under 16 years old at the time of the alleged act of touching. There is no dispute that CN lived at Kurralta Park until she was aged 14, and was aged under 16 years old during the whole of the period she lived at Kurralta Park.
I find the accused guilty of count 6, the offence of Gross Indecency.
Count 7 – Aggravated Indecent Assault
I am satisfied beyond reasonable doubt that there was an occasion in the garage at Blanchetown when CN was touching the accused’s penis whilst the accused kissed her open mouthed on the lips.
CN’s candour in acknowledging that she had instigated the sexual touching with the accused, and had done so for material reward, namely to have the accused convince her mother to let her go on a camping trip, was convincing.
The accused’s evidence at a previous trial, during which he denied ever having passionately kissed CN, did not cause me to have any doubt about the truthfulness or reliability of CN’s evidence. I am satisfied beyond reasonable doubt on the whole of the evidence the accused passionately kissed CN in the manner she described.
I am also satisfied that the accused kissing CN on the lips with an open mouth, while CN was touching the accused’s pants on top of his penis, was an act committed in circumstances of indecency and with a sexual connotation, having regard to the very nature of the conduct combined with CN’s age and the accused’s relationship with CN’s mother.
I am not satisfied of the particularised aggravating feature, namely that the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian, for the reasons discussed earlier.
I find the accused not guilty of count 7, the offence of Aggravated Indecent Assault but guilty of the alternative offence of Indecent Assault.
Count 8 – Aggravated Indecent Assault
I am satisfied beyond reasonable doubt that the accused rubbed his penis against CN’s body whilst CN was positioned on the bonnet of the accused’s Suzuki car in the garage at Blanchetown.
CN gave a detailed account of this incident. She described her position on the vehicle, her thoughts during the alleged incident, and how the touching came to an end when she heard her mum coming out into the yard to feed the dog. Further, CN was candid about the sexual pleasure she derived from the touching. She said that, ‘He was turning me on. I liked it’.[403]
[403] Ibid at 117.
On the prosecution case, the incident occurred after CN’s birthday. CN said she was wearing an aqua blue dress which she received for her 15th birthday in 2010.[404] When it was suggested to CN that the accused sold the car at the end of 2009, CN said that the accused had the car at Blanchetown for the whole time CN was living there.[405]
[404] Ibid at 116.
[405] T124 (15/12/2017).
I reject beyond reasonable doubt Diana Talbot and WN’s evidence the yellow Suzuki car was sold in December 2009 to pay for an expiation notice. The accused during the previous trial did not give evidence that the car was sold at the end of 2009. The evidence of Diana Talbot and WN that the car was sold, is said to be supported by a tendered copy of the expiation notice. The evidence of the fine of course does not speak directly to the sale of the car (not that it is for the defence to prove anything), and the evidence of the expiation notice does not cause me to have any doubt about the truthfulness and reliability of CN’s evidence on this topic.
Nor do I consider there is any force in the defence submission that it is improbable that the charged act could physically occur on the bonnet of the car because of CN’s size, and because the front of the bonnet had a ‘scoop’ with no actual support underneath to hold it.[406] On CN’s evidence, CN was placed on the edge of the bonnet, and the bonnet of the car was only sustaining some of her weight (given her position on its edge), and not the weight of the accused.
[406] Ibid at 286.
Nor is there anything about the tendered photograph,[407] and the accused’s proximity or position to the front of the bonnet, which tells against CN’s account.
[407] Exhibit D13.
The accused’s evidence in his record of interview, and at the previous trial, in which he denied placing CN on the bonnet of the car and rubbing her vagina with his penis[408] does not cause me to have any doubt about the truthfulness and reliability of CN’s evidence on this charged count. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused rubbed his penis against CN’s vagina while she was positioned on the edge of the bonnet of the car at Blanchetown.
[408] Exhibit P18 at 286.
I am also satisfied beyond reasonable doubt that the accused rubbing his penis against CN, after placing her on the bonnet of the car, was an act committed in circumstances of indecency with a sexual connotation, having regard to the very nature of the conduct, combined with CN’s age and the accused’s relationship with CN’s mother.
I am not satisfied of the particularised aggravating feature, namely that the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian, for the reasons I have discussed earlier.
I find the accused not guilty of count 8, the offence of Aggravated Indecent Assault but guilty of the alternative offence of Indecent Assault.
Count 9 – Unlawful Sexual Intercourse
I am satisfied beyond reasonable doubt the accused had penile-vaginal sexual intercourse with CN in his bedroom at the Blanchetown house in 2010 when CN was aged 14 or 15.
CN’s account about how the sexual incident occurred, her concern that she would get pregnant as the accused had not been wearing a condom, and the pain she suffered after the sexual intercourse, had a level of detail which spoke to the truthfulness of her account. Further, the forceful nature of accused pushing CN onto the bed, and having sex with her as ‘hard and as fast as he could’, and CN’s evidence that the accused didn’t stop even when he could see CN was crying, was consistent with CN’s evidence that as she matured, the accused became increasingly angry in his responses towards her.
The accused’s denials of the charge in his record of interview, and his evidence given at the previous trial did not cause me to have any doubt about the truthfulness and reliability of CN’s evidence on this charged count. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused had penile-vaginal sexual intercourse with CN in his bedroom at Blanchetown.
I am satisfied beyond reasonable doubt that CN was under the age of 17 at the time of this act of penile-vaginal sexual intercourse, there being no dispute CN stopped living at the Blanchetown house when she was aged 15.
I find the accused guilty of the ninth count, the offence of Unlawful Sexual Intercourse.
Count 10 – Aggravated Assault
I am satisfied beyond reasonable doubt that the accused slapped CN to the face at the school bus stop at Blanchetown shortly before CN moved out of home in 2010.
CN’s evidence that the accused became angry with her for wearing a school skirt instead of pants, because he didn’t like her showing her legs, is consistent with her account of the accused’s growing possessiveness of her as she matured and became interested in boys her own age.
I do not consider that there is anything implausible in the accused taking the risk of slapping CN in public, or that no one observed his conduct, as on CN’s evidence she was early for the bus (having left the house after an argument with the accused), and the accused was clearly angry with CN, consistent with him having lost control.
I reject beyond reasonable doubt the accused’s evidence at the previous trial, and the evidence of Diana Talbot, that CN was allowed to wear a skirt to school and chose not to. The tendered photographs[409] do not cause me to doubt CN’s evidence, and simply show CN wearing shorts on other occasions consistent with her evidence she was not allowed to wear a skirt to school.
[409] Exhibits P14 and P15.
The accused’s previous evidence in which he denied the offence, as supported by the evidence of Diana Talbot, does not cause me to doubt the truthfulness and reliability of CN’s evidence or the prosecution case that the accused slapped CN to her face at the bus stop at Blanchetown. I am satisfied beyond reasonable doubt on the whole of the evidence that the accused slapped CN twice to the face at the bus stop at Blanchetown.
I am also satisfied beyond reasonable doubt the accused in slapping CN to the face intentionally applied force to her, without her consent.
I am not satisfied of the particularised aggravating feature, namely that the accused committed the offence knowing CN was, at the time of the offence, a child of whom he had custody as a parent or guardian for the reasons I have discussed earlier.
I find the accused not guilty of the offence of Aggravated Assault but guilty of the alternative offence of Assault.
I make clear that I am also satisfied the accused committed the charged offences of which he has been found guilty against a background of the other uncharged sexual conduct alleged by CN. I am also satisfied of CN’s evidence that the alleged incident on the Blanchetown Bridge occurred as described by her.
Verdicts
I find the accused guilty of three offences of Unlawful Sexual Intercourse With A Person Under 14 - counts 1, 2, 3; the offence of Gross Indecency - count 6; and the offence of Unlawful Sexual Intercourse - count 9.
I find the accused not guilty of four offences of Aggravated Indecent Assault but guilty of the alternative offence of Indecent Assault for each of counts 4, 5, 7 and 8.
I find the accused not guilty of the offence of Aggravated Assault but guilty of the alternative offence of Assault for count 10.
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