R v Hirst

[2022] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HIRST

Criminal Trial by Judge Alone

[2022] SADC 92

Reasons for the Verdict of her Honour Judge Tracey 

17 August 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD

The accused is charged with maintaining an unlawful sexual relationship with his step-granddaughter from when she was aged around three years - complaint evidence - motive to lie - accused elected for trial by judge alone.

Verdict: Not guilty.

Criminal Law Consolidation Act 1935 (SA) s 50(1), referred to.

R v HIRST
[2022] SADC 92

1. Joseph Anthony Hirst (the accused) is charged with maintaining an unlawful sexual relationship with a child pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935. He pleaded not guilty to the charge and elected to be tried by judge alone.

2. It is alleged that the accused committed the offence against the complainant, LA, who is his step-granddaughter. LA was born on 29 December 2005. The charge is as follows:

   Statement of Offence

   Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   Joseph Anthony Hirst between the 28th day of December 2007 and the 30th of December 2016 at Morphett Vale, maintained an unlawful sexual relationship with [LA], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:

   (a)     rubbing his penis on her face on more than one occasion;

   (b)     placing his penis inside her mouth on more than one occasion;

   (c)     touching her genital area on more than one occasion;

   (d)     inserting his finger into her vagina on more than one occasion;

   (e)rubbing his penis between her legs and on her genital area on more than one occasion; and

   (f)    inserting his penis into her vagina on at least one occasion.

   Prosecution case

3. The charged offending relates to acts alleged to have taken place over a period of approximately nine years. It is alleged that the accused sexually abused LA during her visits to the accused’s house. LA’s grandmother, Jennifer Hirst (Ms Hirst) is the accused’s wife.

4. From an early age LA and her brothers, RT and BK, would spend time with Ms Hirst and the accused. At times LA would visit on her own, and at other times she would visit with one or occasionally both of her brothers. It is alleged that the accused rubbed his penis on LA’s face and placed his penis inside her mouth under the guise of playing a game with a blindfold. It is alleged the accused made LA wear a mask and asked her to guess what was in front of her. On the prosecution case, the accused then exposed his penis and pressed it into LA’s face. He would then place her in the bed or in the bath. The accused played the game with LA more than once and on at least one occasion placed his penis into LA’s mouth.

5. It is alleged that on more than one occasion LA and the accused were seated on a couch under a blanket. On some of those occasions LA alleges that the accused touched her vagina, rubbing it, and on occasion, inserting his finger into her vagina.

6. It is alleged that on more than one occasion the accused entered LA’s bedroom at night and laid next to her from behind. The last time this occurred, the accused pumped lotion into his hand which he rubbed on his penis and then rubbed his penis against her vagina and anus from behind. On occasion the accused thrust his penis into her vagina so that it entered her labia.

7. The accused denies he touched LA as she has alleged. It was the defence case that the accused had not committed any sexual act against LA.

   Witnesses

8. The following prosecution witnesses gave evidence:

   ·Detective Brevet Sergeant Hannah Clarke (DBS Clarke), the investigating officer.

   ·LA, the complainant

   ·CA, LA’s aunt.

   ·EA, LA’s mother.

   ·RT and BK, LA’s brothers.

   ·HR, LA’s friend to whom she complained.

   ·JK, LA’s father.

9. The defence called the accused and Ms Hirst.

   Elements of the offence

   Maintaining an unlawful sexual relationship with a child

10. The offence of maintaining an unlawful sexual relationship with a child is made up of four elements, each of which must be proved by the prosecution beyond reasonable doubt. The elements of the offence are:

    (1)    The accused knowingly maintained a relationship with LA.

    That element is made up of three separate parts, namely:

    ·There must be a relationship between the accused and LA that comprised of more than the alleged sexual acts.

    ·The accused must have maintained that relationship, that is, carried on, kept up or continued the relationship.

    ·The accused must have maintained that relationship knowingly, that is, he had knowledge of the sexual acts he performed and the contextual circumstances in which he performed the acts which comprised the relationship.

    (2)    That the accused was an adult during the relevant period.

    (3)    That LA was under the prescribed age, being 17 years of age.

    (4)That in the course of the relationship, the accused engaged in two or more unlawful sexual acts with or towards LA.

11. Particulars A, C and E of the charge relate to the offence of aggravated indecent assault, while particulars B, D and F relate to the offence of unlawful sexual intercourse.

    Aggravated indecent assault

12. The prosecution must prove beyond reasonable doubt that:

    1.     The accused intentionally assaulted LA.

    2.The assault was accompanied by or occurred in circumstances of indecency: that is, the indecent circumstances must contain a sexual connotation and the application of force was unlawful.

    3.     LA was under the age of 14 years at the relevant time.

    Unlawful sexual intercourse

13. The elements of the offence of unlawful sexual intercourse are as follows:

    1.     The accused had sexual intercourse with LA.

    Sexual intercourse includes any activity consisting of or involving –

    (a)penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object; or

    (b)    fellatio.

    2.     That at the time LA was under the age of 14 years.

    General directions

14. I direct myself as follows:

    ·The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt.

    ·The burden of proving the charge lies wholly on the prosecution and the accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will do. It is not sufficient for the prosecution to show a mere suspicion of guilt or even to demonstrate probable guilt. I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence.

    ·At all times it is for the prosecution to satisfy me that LA is both an honest and reliable witness beyond reasonable doubt.

    ·The accused gave evidence on oath in court. He was not obliged to do so. He could have remained silent in answer to the charge, leaving the prosecution to satisfy me of all the elements of the charge against him. He is entitled to have his evidence assessed and evaluated in the same way as all other witnesses in the case. I am not required to be satisfied of the accused’s version of events. The burden of proof lies with the prosecution. Part of the relevance of the version of events put forward by the accused is to consider whether it assists in casting a reasonable doubt on the prosecution case.

    ·If, after full and careful consideration, I am unable to decide where the truth lies or who is telling the truth, the prosecution will have fallen short of proving the case beyond reasonable doubt and my verdict should be one of not guilty.

    ·I must assess each witness as to their truthfulness and reliability and must determine whether I can rely on the evidence of a witness. I can reject or accept all or part of a witness’s evidence.

    ·Certain witnesses gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give their evidence.

    ·LA gave evidence by way of interviews with police. The first interview was conducted in August 2018 and the second in December 2019. I must treat this evidence the same as any other kind of evidence and not allow the way it is presented to influence the weight that I give the evidence. That the evidence was given in this way says nothing about the accused. I draw no inference against him from the fact that the evidence was given in that way.

    Evidence of DBS Hannah Clarke

15. DBS Clarke is the investigating officer in this matter, taking over in that role in December 2019.[1] She conducted the second interview of LA on 9 December 2019. When the accused was arrested and his house searched on 23 August 2020, police found a sleep mask, described in the exhibits list as ‘sleep phones’ and sexual aid lubricant in a bed side drawer. Nothing of relevance was found on electronic items that were seized.

    [1]     T 11.6.

16. DBS Clarke said she had made multiple failed attempts to speak to Ms Hirst, but that from the outset, Ms Hirst appeared not willing to provide a statement.[2]

    [2]     T 15.9-13.

17. In cross-examination, DBS Clarke agreed that the kitchen area in the accused’s house and the lounge area were very close and open plan.[3] She agreed that the previous investigating officer had noted in a document described as an ‘Occurrence inquiry log report’ as follows:

    [3]     T 20.6-7.

    At the current state, she has failed to describe any particular incident, provide any details of offending, or provide any context to what occurred. It has been suggested that should she feel more able to discuss these matters post-counselling, then she can be reinterviewed at a later date. Phone call to the victim's mother to be made tomorrow…[4]

    [4]     T 24.33-25.1.

18. DBS Clarke said that she thought LA had made some level of disclosures.[5]

    [5]     T 25.6-7.

19. A phone call made to EA was noted as follows:

    Discussed the outcome of vulnerable witness interview with [LA]. The issues surrounding a lack of context and detail were covered. We discussed that [LA] believes she spoke openly about everything but in reality was unable to say body parts, spoken hypotheticals, said it was too awkward to discuss and was also unable to give details about specific incidents - speaking generally about ‘he would always’. It was explained that we have no avenue for a prosecution at this time. The matter has potential to be reinvestigated once [LA] is more able to more openly discuss what happened. This may be months, or this may be years.[6]

    [6]     T 25.13-25.

20. DBS Clarke agreed that LA, from a very early age, had been seen for a congenital kidney problem which caused bladder problems and she experienced urinary incontinence day and night. She agreed that LA was not asked anything in her interviews about her wearing nappies.[7]

    [7]     T 26.36-38.

    Evidence of LA

21. There was no objection to the admissibility of the recorded police interviews with LA and I allowed the evidence to be admitted in that form. I was satisfied of LA’s capacity to give sworn evidence at the times the recordings were made.

22. The prosecution made no application to further examine LA. Pursuant to s 13BA(5)(c) of the Evidence Act, I ruled that it was in the interests of justice to permit LA to be cross-examined in accordance with the application outlined by defence counsel.

    Interview with police on 28 August 2018[8]

    [8]     Ex P11.

23. LA was aged 12 at the time she gave her first interview. At the outset, LA said that her step-pop had been doing things to her. She did not know exactly how long it had been happening, but that it was probably since she was about two or three years old.

24. From making a careful analysis of the evidence LA gave in the first interview, LA gave a description of events involving a game where the accused would get her to take off her clothes and would blindfold her. He put his ‘willy’ in her mouth and would hold it and touch her nose and face with it. He would also take his own clothes off and put her in the bath. She said he would trick her because he made her think that she was going to have a bath. She thought she was probably around four years old at the time.

25. LA described falling asleep and the accused touching her ‘downstairs area’. She said she would just try and pretend to be asleep and was afraid something worse might happen. If he touched her, she would wake up and usually she would try and go back to sleep.

26. She said that when she was ‘nineish’ she would be asleep, and the accused would ‘pretty much rape me’. She said she would wake up and just freeze. She recalled it happening multiple times. She said the last time she remembered the accused ‘raping’ her she was sleeping at first and she awoke in the middle of it. She said ‘I just knew, I knew it wasn’t right like I didn’t feel good and my stomach was hurting’. She fell asleep and woke up and was in shock. The accused pumped something into his hand and ‘put it on his um willy and then he put you know his … in bet… um in between my legs pretty much.’[9] She recalled him touching her crotch area and thrusting his hips. LA said the reason she said the accused ‘pretty much’ raped her was because she was not completely sure what was happening. She said she was pretty sure it was a bottle of something because she heard the pumping noise and then he put it on his downstairs area. The accused was behind her and he would thrust and ‘it’ rubbed against her. 

    [9]     Ex P11.

27. LA explained that on other occasions she would fall asleep on the couch, and the accused would put a blanket over her. She recalled waking up and she would be sitting on the accused’s lap, and that he would ‘pretty much’ be playing around with her ‘fanny’. It hurt so she kept her eyes closed. She said she could not remember if her pants were off or down and could not quite remember because she was more focussed on what was happening and what to do. He would put his finger in the ‘bigger hole’ and his nail would scrape. She could not remember if her Nanna was there but recalled being scared and not knowing what to do. She recalled that the accused would periodically ask her to come over when her Nanna was out doing ‘work things’.

28. The last time something happened was when she was probably around 10‑and-a-half. She said she had stopped going there about a year and a half before the interview.

    Interview with police on 9 December 2019[10]

    [10]   Ex P13.

29. LA said she remembered being excited because it was bath time, but the accused first wanted to play games. She thought she was around age two because he never really bathed her when she was older.

30. She remembered being in her grandmother’s room with the accused which had sliding mirror doors. She remembered the accused was naked and he took off her clothes then picked her up, holding her, looking at himself in the mirror.

31. She remembered the accused wanting to play a blindfold game using a sleeping mask which she could see under. He would ask her to guess what was in front of her and it was his penis which he made her touch. She could see his hand on his penis pushing it against her face. She thought this happened once.

32. She remembered the accused laying her on his bed kneeling over her and putting his penis on her face.

33. LA said that she could not remember much from what she had said in her earlier interview with police as her memory had ‘got a little bit worse’. She said she could vaguely recall the accused’s penis going into her mouth for a bit at the same time he was putting his penis on her face.

34. LA gave evidence about an occasion during which the accused had her on his lap and he put his finger into her vagina. She tried to move to show him she was awake but he kept doing it so she fell back to sleep. She thought she was in reception at school around this time. She recalled wanting to tell someone but felt powerless.

35. LA gave evidence that the accused would want to watch movies with her. She would sit on the couch, and he would get her a blanket. She remembered feeling the accused’s fingers touching her vagina and his nails scratching. She remembered on one occasion hearing her grandmother in the kitchen doing the dishes. She fell asleep and woke up while he was doing it. She thought this happened every time she went there. She still had her clothes on and his hand would go underneath her clothes. It felt like he was purposefully trying to hurt her.

36. LA gave evidence about another occasion wherein she had fallen asleep in the spare bedroom and woke up with no pants on and the accused was ‘spooning’ her from behind. The accused’s penis was rubbing against her vagina and the accused reached up to a pump action bottle for lotion which was sitting on top of the bedhead frame. He was thrusting in between her bottom cheeks. She said she froze and then went back to sleep as there was nothing she could really do. She said that generally she went to bed with underwear and pyjama pants on, and on some occasions she would wake up and find that they were removed.

    Cross-examination

37. LA was 16 years old when she was cross-examined. She appeared via CCTV and with a court companion.

38. In cross-examination, LA said that before she started at school, she would typically go to the accused’s house for one day per week, where the accused and Ms Hirst would look after her while her parents were working. After she started school, her trips to the accused’s house became overnight stays, and the accused and Ms Hirst would take her to jazz, ballet, or swimming lessons the following day.[11] She said she got the impression the accused liked her more than her siblings, but that she never really enjoyed spending time with him.[12] When asked if she thought there was a special bond with the accused that her siblings didn’t share with him, LA said that she ‘wouldn’t say that, but if that were true, that would be because of the abuse.’[13]

    [11]   T 48.12-17.

    [12]   T 51.13-33.

    [13]   T 97.32-33.

39. LA agreed that her allegations were very vague during her first interview with police but denied that was because they were a fabrication. She said that the vagueness was a result of anxiety and depression that she was experiencing at the time. She described having felt ‘unable to speak about [those] things because she had never spoken about them before to anyone’.[14] She denied that her anxiety and depression was because of other things that were going on in her life. LA said she had been reluctant to speak to police at the time as she was ‘extremely anxious and…unstable mentally’.[15] She denied she had provided more information in the second interview to ensure the accused was charged with this offending.[16]

    [14]   T 68.14-16.

    [15]   T 100.20-21.

    [16]   T 100.31-34.

40. When asked about her attendance at her father’s sentence for the assault of the accused, LA agreed that she felt a great deal of guilt that her father was facing a term of imprisonment.[17] She said the reason she had not spoken up earlier about the abuse was because she was worried about the implications.

    [17]   T 67.10-15.

41. LA said she recalled having seen the accused’s penis and denied having ever told anyone that the accused put a blindfold on her and put something fluffy on her face. She recalled ‘seeing under the blindfold at one point and seeing his penis while he was kneeling over [her]’, and that at first, she could not see it but when he lay her down on the bed, she could see his penis underneath a gap in the mask.[18]

    [18]   T 102.31-103.6.

1. LA agreed that in her first interview she had not told police about being able to see the accused’s penis, later saying that at the time she gave her first interview, she was stressed and ‘not in her right mind’, so anything she missed that she later remembered, she included in her second statement.[19]

   [19]   T 106.25-29.

2. LA said the reason she did not provide her second statement until a year after the first was because she was struggling with her mental health and wanted to ‘get back on track to live [her] life like a normal kid’ and to begin high school. LA said she decided to provide the second statement as she needed justice in some form but denied that she was ‘trying to get even’ for her dad. ^[20]

   [20]   T 106.21-38.

3. LA said she would wake up in bed with the accused’s penis between her thighs, not his hand, as was suggested by defence counsel.[21] When she woke up to this she would try to squirm away from the accused. She had no memory of the accused leaving the bedroom after the abuse. She denied that she had first remembered the abuse perpetrated against her when she was 11 or 12.[22]

   [21]   T 108.19-23.

   [22]   T 110.32-33.

4. LA said she would always sit on the same couch when she was watching television in the loungeroom and on occasions Ms Hirst would sit on one side of her and the accused would sit on the other. Sometimes she would fall asleep and wake up on the accused’s lap without any knowledge of how she got there. She never woke up being lifted from the couch onto the accused’s lap and did not think that she had been on his lap when she was awake. She would wake up with a blanket covering herself and the accused, and sometimes the accused would be touching her around the vagina. There would be no-one else in the room when this happened, but she recalled one occasion when she could hear her Nanna washing dishes in the kitchen.

5. LA agreed that she was asleep before each incident of abuse both on the bed and on the couch, and that on each occasion, she was woken up while the abuse was happening.[23] Sometimes she would wake up in the morning without any underwear on and would assume that she had experienced abuse during the night. On other occasions she would wake up without any underwear on while the abuse was being perpetrated. LA said the last incident of abuse would not have happened any later than 2016.[24]

   [23]   T 111-112.

   [24]   T 69.17-32.

6. LA gave evidence concerning kidney and bladder problems she had experienced since birth. She would wet the bed at night-time until she was about 11 years old. She wore pull-up nappies at night and either pyjama pants or underwear over them. Sometimes she would wear the pull-up on its own.[25] When asked whether, when she told police that she would wake up and her underpants would be off, in fact she meant her nappy had been removed, she said ‘Well, I’d assume so’.[26] LA said she was unable to remember wearing nappies due to a diagnosed dissociation disorder and noted that at the time she was ‘focused on the abuse itself’ rather than whether she was wearing a nappy.[27] She agreed that she had not told police she had been wearing a nappy or a pull-up on the occasions she woke up in bed to the abuse. She said she had never woken up while the accused was removing her pyjamas and her pull-up, and awoke only after they had been removed.

   [25]   T 70-71.

   [26]   T 71.15.

   [27]   T 72.3-4.

7. LA said that she would generally have a bath after dinner, put on her pyjamas and then watch TV on the couch. Often Ms Hirst would put the pull‑ups on after LA had fallen asleep. Sometimes LA would wake up and other times she slept through the process. She said she assumed she would remove the pull-ups herself the following morning, particularly at age seven and older, but could not remember ever taking the pull-ups off herself. She agreed that she had experienced daytime incontinence as well until the age of 11 or 12 and often wore a pad to school and would pack spare underwear in case she had an accident.[28] 

   [28]   T 75.17-33.

8. LA was asked whether at the time she first spoke to police there had been conflict at home concerning callisthenics classes, and attending Woodcroft College for secondary school, where her friends were going, because of financial issues. LA said it was her decision to discontinue callisthenics but agreed that the decision not to send her to Woodcroft College might have been a financial one.[29] 

   [29]   T 77.24-78.5.

9. LA said that on the day she made the initial complaint to her friend HR, she had argued with her relief teacher. She described leaving the classroom with HR and sitting on the oval. When asked whether she was concerned at the time about being in trouble for leaving class, LA said that she did not think about it as she was more concerned about speaking up about the abuse.[30]

   [30]   T 67.16-38.

10. In re-examination, LA said that she found the police officer who interviewed her in the first interview was quite straightforward with no emotion and had felt a little bit threatened.[31]

    [31]   T 128.17-20.

11. When asked why she did not mention the pull-ups to police, LA repeated that she was focussed more on the abuse ‘rather than the incontinence [she] was having and the pull-ups’. She said ‘I actually didn’t even think about [the pull-ups] until today when it was brought up. I completely forgot that I was even wearing pull‑ups back then.’[32]

    [32]   T 129.8-13.

    Evidence of CA

12. CA is the older sister of LA’s mother. When her parents separated, she was around 15 years of age. They lived with their mother for a very short time and then she went to live with her father but kept in contact with her mother and the accused.

13. CA moved to Melbourne in June 2006.[33] She returned to Adelaide three or four times per year and in more recent times, mainly around Easter and Christmas. She said her mother, Ms Hirst, would visit her in Melbourne. Sometimes the accused would accompany her. Her mother would visit a couple of times a year at least and the accused would visit less often. Her mother and LA visited her in Melbourne at the end of 2017. She recalled another time when her mother brought LA with her when LA would have been about three.[34]

    [33]   T 136.16.

    [34]   T 138.30-36.

14. CA described an incident she observed when LA was probably around three years of age and RT was about five at her mother’s house in Morphett Vale. She was keeping an eye on the children who were in the bath together. CA was talking to her mother, whom she could see around the doorway. She saw LA with her mouth open going down towards RT’s genitals and quickly ran in and got LA out of the bath. She said that EA knew about it but was not sure whether she had been in the house at the time.  She believed that she told EA that she thought the children should stop having baths together. She said that at the time she had been standing in the hallway, EA was either in the lounge or might have been out at the shops. She described seeing RT leaning back in the bath and LA up on her knees with her mouth open. CA said it all happened very quickly and she intervened before any contact was made. Her mother was ‘right there’.[35]

    [35]   T 140-141.

15. In cross-examination, CA said that she had first been asked to recall the incident concerning the bath when she gave her statement to police in 2020. She said that that was one of the things that she thought about straight away when LA made her allegations.[36]

    [36]   T 145.14-28.

16. She said that RT did not look like he was going to stand up at the time. The children were facing each other, and she saw LA make a movement lowering the top half of her body down. She saw her mouth open heading towards that area. She possibly could have been sitting on her bottom or her knees. LA was close enough to her brother’s penis that she could see what it was she was going to do. CA said that she had a discussion with her sister about it and remembered her sister agreed that maybe it was time to stop bathing them together.[37]

    [37]   T 146-149.

17. She found out about LA’s allegations when her sister rang her and she travelled back to Adelaide and she contacted her mother. By this time LA had already been spoken to by police. She said that possibly she had heard that the allegations involved LA being exposed to something which she thought at the time was a fluffy toy.[38]

    [38]   T 149.28-150.35.

18. After speaking with her mother, CA said that there were some phone calls and messages in the following week because she had stayed in Adelaide to help her sister move. Her mother had kicked EA out of the home she rented from her mother and the accused so she had to find accommodation quickly.[39]

    [39]   T 151.16-20.

19. Her mother later sent her a text informing her that LA had not made any allegations at all in her police interview against the accused.

20. CA agreed that she knew that LA had been interviewed over a year ago and that the accused had not been charged. Her understanding was that he had not been charged because LA had decided not to make a complaint at that stage and was not ready. She said it was being left entirely up to LA.

21. She was aware that LA’s father was charged with assaulting the accused.[40]

    [40]   T 151.31-33.

    Evidence of EA

22. EA said she had three children. The eldest RT was born in 2003, LA was born in December 2005, and the youngest child, BK, was born in 2008. JK is their father.

23. The accused and her mother became more involved with her children once they left Brompton and moved to Morphett Vale, as EA and her family were also living in Morphett Vale.[41] EA said it was the accused’s idea to move to Morphett Vale to be closer to the grandchildren, and that this ‘came as a surprise to my mother’.[42]

    [41]   T 159.18-37.

    [42]   T 160.5-10.

24. LA was around one, and RT around three years old when the accused moved to Morphett Vale. The accused and her mother would visit her often, particularly from late 2008 to early 2009 as her and JK’s work schedule meant that there was an overlap of a few hours when they needed childcare.[43]

    [43]   T 160.30-36.

25. EA said the accused first started picking LA up from the age of about two years old until EA and JK separated and EA quit her job to look after the children.[44]

    [44]   T 164.11-12.

26. EA said that at some point after separating from her husband she moved into a unit in Morphett Vale owned by her mother and the accused and she started to get requests, which came through her mother, from the accused requesting what her mother referred to as ‘playdates’ with LA. She said she found this a bit uncomfortable and strange because she was no longer working and did not need the support.[45]

    [45]   T 165.28-34.

27. EA said LA went on playdates to the accused’s house on a few occasions where it was just the accused and LA alone, however because EA felt uncomfortable about it, she stopped it from happening.[46] LA was around three years old at the time.

    [46]   T 166.3-4.

28. EA said on these occasions LA would spend around four hours at the accused’s house, and that she would usually drop LA off and collect her.[47] On one occasion, when LA was around three-and-a-half years old, EA made an unannounced visit to the accused’s house to collect LA following a telephone conversation with either JK or her new partner during which she had voiced her discomfort about the accused’s interest in LA, and they had shared that discomfort.[48] EA said that she immediately went to the accused’s house to collect LA without notice to the accused. The accused did not come to the door immediately, so she knocked again and the accused answered the door after about five minutes.[49] When he did come to the door, the accused was adjusting his pants and tucking his shirt in on the side.[50] EA asked where LA was, and the accused said she was in the bath as she had become dirty while playing outside. EA said that the accused then brought LA out and was getting her dressed but did not appear to want EA’s assistance.[51] EA said she had later noted that she had not packed any change of clothes, and that the clothes she had sent LA in were not dirty.[52]

    [47]   T 166.32.

    [48]   T 168.19-28.

    [49]   T 169.17.

    [50]   T 169.1-5.

    [51]   T 171.1-9.

    [52]   T 169.11-14.

29. After this incident EA decided, after consultation with other family members, to stop leaving LA with the accused for babysitting or playdates.[53] When the accused or her mother asked to have LA over alone, she would make up excuses.[54] She and the children would still spend time at the accused’s house, particularly for special occasions. 

    [53]   T 171.17-18.

    [54]   T 171.20-27.

30. EA described an occasion while living at the unit when she was bathing RT and LA together. LA was about three years old. EA said she saw RT standing in the bath and LA, who was sitting, was moving towards RT’s midriff with her mouth open as though she was going to put his penis in her mouth.[55] EA said she then decided she would not bathe them together anymore, or if she did, she would ensure they were wearing underwear.

    [55]   T 181.6-15.

31. EA described another incident at a family Christmas event either in 2008 or 2009 when LA had been trying to tell her something and the accused interjected and said, ‘she’s trying to tell you about a game that we played when I put a blindfold on her and she had to guess what was in front of her’. When EA asked LA if that was what she wanted to say, LA nodded.[56]

    [56]   T 172.24-30.

32. In around 2009 or 2010, LA began attending ballet lessons on Saturday mornings. Initially Ms Hirst would pick LA up and take her, but after a while LA began to stay overnight on Fridays with Ms Hirst and the accused.[57] EA said that despite her earlier concerns, she felt safer leaving LA there because she knew her mother would also be there, and that LA would not be left alone with the accused.[58]

    [57]   T 173.15-26.

    [58]   T 173.38-174.3.

33. EA said the accused would sometimes ask for LA to come and stay the weekend to keep him company while her mother was in Melbourne visiting CA. This request would also come from her mother, asking if LA could come and stay with the accused because he would be lonely when she would be gone.[59] EA said this was when LA was about eight or nine years old.

    [59]   T 176.29-35.

34. EA said that after one particular overnight stay with the accused, LA did not want to go again however her mother was persistent and put pressure on both EA and LA, and that ultimately LA returned for subsequent overnight stays.[60]

    [60]   T 177-178.

35. EA was unable to remember the first time LA said she did not want to stay overnight with the accused but recalled that the most recent refusal was in 2018. LA asked why her grandparents wanted her to go over, then became upset and angry, and ultimately went into her room crying and would not let EA into the room or speak to her about it.[61] EA agreed that there were times after LA first said she did not want to go that she nevertheless went back to stay with the accused.[62] LA also began to object to attending family events with the accused in around 2017 or 2018.[63]

    [61]   T 177.37-178.6.

    [62]   T 178.19.

    [63]   T 178.22-27.

36. EA said that LA stopped going to the accused’s house overnight when she was old enough to make the decision that she did not want to go, which she thought was likely to have been when she was around 10 or 11 years old.[64]

    [64]   T 180.5-24.

37. None of her children have visited her mother or the accused since LA made allegations about the accused in 2018.

38. In cross-examination, EA said that the accused would not speak with her about LA, and that she always heard things through her mother.[65]

    [65]   T 187.23.

39. When asked about her own relationship with he accused, and whether or not she would drop in for coffee with the accused, EA said that on one occasion she had dropped in and had coffee with him because she was very upset about something JK had done, but did not remember any other times she had done so until later years.[66]

    [66]   T 188.11-18.

40. EA denied that the accused had dropped in on her from time to time and offered to look after LA to give EA a break. She said the requests always came through her mother. EA agreed that RT was a difficult child at that time but was unable to remember the accused or her mother telling her that they did not want to look after him anymore because he was too difficult.[67]

    [67]   T 189.31-36.

41. EA said she was unable to recall seeking out the accused from time to time to talk about children and relationships and said they would only message each other on Facebook Messenger occasionally.[68]

    [68]   T 208.2-19.

42. When asked why, if she had been so worried about the accused’s behaviour, she did not take LA to dance and swimming lessons herself, EA said that at the time she had felt LA was safe because her mother was there.[69] EA denied that her concerns had only developed after LA made disclosures to HR and then to police. She said she had voiced her concerns about the accused to both CA and JK.[70]

    [69]   T 190.34.

    [70]   T 191.7-14.

43. EA agreed that she had a conversation with CA and her mother when LA was about four or five years old wherein she had said she did not understand why the accused only wanted to spend time with LA.[71] She denied her mother had responded that they found RT and BK to be hard work, but that the accused had formed a bond with LA. EA said her mother told her the accused wanted to spend time with LA because he missed his own daughters.

    [71]   T 191.16-19.

44. EA said she remembered making excuses on LA’s behalf to avoid sending her overnight to stay with the accused alone, because she did not feel comfortable about it, often not even asking LA if she wanted to go.  On the occasions that LA did go, it was after a lot of convincing and bribery.[72] Her mother would get very angry at any refusal.[73]

    [72]   T 194.3-37.

    [73]   T 195.6-7.

45. EA denied that her concerns only started after LA made a disclosure in August of 2018 or that her concerns were fabricated in order to support her daughter’s account. EA said she had gotten along with the accused because she pushed her concerns aside, and now has to live with it.[74]

    [74]   T 213.37.

46. EA said she was unable to recall having spoken to CA about the incident concerning RT and LA in the bath, but that after LA’s disclosure, CA had mentioned a similar incident that occurred while both she and EA were present. EA said she did not remember CA being in the house when it had happened.[75]

    [75]   T 201.15-23.

47. EA agreed that she and her mother had arguments about her oldest son having his girlfriend sleeping with him when he was a teenager. Her mother told her that she had been to the police station and had reported what was going on. EA said she was very upset because she was trying to sort out the situation and deal with it herself and was upset that her mother would do that to her. She thought this was before August 2018 because August was the last time she spoke to her mother.[76]

    [76]   T 206.8-27.

48. EA was asked about LA’s behaviour at a Mother’s Day lunch in 2018. She understood that the accused had asked LA to take dishes inside and LA had said no. She received a text message from the accused to the effect that he was not doing anything for LA anymore. EA agreed that she may possibly have apologised to her mother for LA’s behaviour but said that at the time, she had no understanding as to why LA would have been so upset about the accused telling her to do anything.[77]

    [77]   T 206.28-207.16.

49. As to the word ‘playdate’, EA said that was a word used by her mother and she did not know whether the accused used that word, because the requests always came from her mother.[78]

    [78]   T 210.10-14.

50. It was put to EA that from time to time the accused had spent time with the boys. While EA had no memory of that, it would appear from photographs that the accused and RT went to the cricket together in 2015. There was another photograph of BK on a plane with the accused.[79]

    [79]   Ex D49 and D50.

51. EA said that from the time she had been at the front door to collect LA unannounced, she was careful about LA being with the accused on his own. She agreed that despite this, only 18 months later LA started spending Friday nights at her mother and the accused’s house. She said she did not feel like the accused was alone with LA and her mother made it safe.[80] She said every now and then concerns would resurface and she would just put them aside ‘because nobody wants to believe that that’s happening’.[81]

    [80]   T 212.20-213.8.

    [81]   T 213.18-20.

1. EA agreed that LA made her disclosure in August 2018 and that LA’s father assaulted the accused in October 2018.[82] EA denied that the matters of concern she raised in her evidence were things she has thought about since or that she was trying to bolster LA’s story. She agreed she had been told by police that during the first interview LA was not able to give details specific enough to charge the accused. She agreed that police told her that they believed LA.[83]

   [82]   T 215.2-5.

   [83]   T 214.15-21.

2. EA took LA to the Magistrates Court when her father was being sentenced. She said LA felt some guilt that her father would perhaps go to gaol.[84]

   [84]   T 215.28-35.

3. EA said that since LA made her complaint they have talked about the concerns EA had about the accused.

4. EA agreed that LA had day and night-time incontinence until she was 11 years of age and wore pull-ups. She did not remember changing the pull-ups at night but remembered that sometimes LA would fall asleep with knickers on and she would have to put a nappy on before LA went to bed. LA would often wet through the pull-up when she was older because there was more urine.[85]

   [85]   T 228.38-229.4.

5. EA agreed that medical notes indicated that EA told specialists that LA did not have a dry night until she was about 11. Each morning LA’s pull-ups would be wet and she would need to have a bath or shower. ^[86] LA would usually be bathed in the morning and night. EA packed wipes for LA to use if she had an accident during the day. LA would clean herself up with the wipes and get changed, but on occasions perhaps also had a bath.[87]

   [86]   T 229-230.

   [87]   T 258.16-19.

6. EA did not agree that it would be usual for her to provide a change of clothes if dropping any one of the children off at her mother’s house for babysitting. Ultimately she agreed that ‘possibly’ she would drop off a bag that contained clothes for the children in case they needed changing.[88]

   [88]   T 259.16-21.

7. EA denied taking LA to see the film 50 Shades of Grey.

8. EA said that her mother organised memberships at a gym for her children because she was calling them fat. LA was keen to go and the first time she went, LA was well-behaved, and it was arranged that she go again. EA said that she did not specifically recall a discussion with her mother about LA’s poor behaviour on the second occasion as she remembered her mother talking about a lot of behavioural issues with LA that year.[89]

   [89]   T 231.30-232.13.

9. EA said that she was aware of a friend’s child having been the victim of sexual assault. This was not discussed with her children.[90]

   [90]   T 233.6-8.

10. EA was shown Facebook Messenger messages between herself and the accused. She agreed that the accused would help her with a lot of things like money and transport and finances.[91]

    [91]   T 246.2-8.

11. EA agreed that it was clear to her after she had split up with her husband the accused did not want anything to do with her husband. She did not recall any dispute or argument between them.[92]

    [92]   T 255.15-17.

12. EA said after LA’s disclosure she no longer wanted to stay in her unit. She understood through her sister that she had been told to leave.[93]

    [93]   T 263.37-38.

    Evidence of RT

13. RT was 18 at the time of giving evidence. He is the eldest child of EA and JK.[94]

    [94]   T 267.7-8.

14. He said while growing up his relationship with the accused and his grandmother was quite good. He would stay overnight with them on weekends for a period of time when he was younger. At one point in his school life, perhaps in year 3, he went there once a week. Other times he mostly saw them at family events.[95]

    [95]   T 269-270.2.

15. He did stop going to their house on a weekly basis but could not really remember why.[96] His siblings were there as well, but not both of them at the same time. He said he did not particularly notice how the accused interacted with LA during the visits in that period.[97]

    [96]   T 270.19-20.

    [97]   T 271.30-272.2.

16. RT said that LA would often sit with the accused on the couch watching TV. The accused would have his arm around her and she would be laying into him, just comfortable, ready to watch a movie. He saw LA sitting on the accused’s lap but was not sure how often. They would have a blanket over them to keep warm when they were together. Everything from elbow down would be covered. The accused’s arms were under the cover. His grandmother would most likely be preparing dinner as she liked to keep busy.[98]

    [98]   T 275.31-276.28.

17. When LA and the accused were sitting covered by a blanket he saw ‘movements like readjusting kind of things every now and then, that was about it.’[99] LA would fall asleep in the room watching TV.

    [99]   T 277.17-29.

18. He said the house at night was pretty quiet with just creaking floorboards. He would sleep with the door mostly closed but would have it a little bit open because he did not like it completely dark. He remembered that the accused would leave his room a lot. He thought he was just going to the toilet or something, but it was quite frequent. He said he did not pay much attention to him. He did not remember him coming back to his bedroom.

19. He remembered hearing LA talk about whether she did or did not want to go to the accused’s house. She was very passionate about not going. He thought it was later in her primary school years.[100]

    [100] T 279.22-31.

20. In cross-examination, RT agreed that in his statement to police in July 2020, he had not spoken about LA sitting on the accused’s lap. He said he did not know why he had not told police, but it was a very stressful time. He insisted that LA had never spoken to him about having sat on the accused’s lap.[101]

    [101] T 279-282.24.

21. RT agreed that if he was sleeping in the single room, he would not be able to see the toilet area. The only time he could see it was if he was sleeping in the bedroom next to his grandmother and the accused’s room.[102]

    [102] T 290.32-291.2.

22. He said that he was not really involved in the arguments between his mother and grandmother about whether girls should be staying with them. He remembered being told that his grandmother had rung the police and his mother being upset about that.[103]

    [103] T 295.2-6.

23. He agreed it would have been obvious to LA that one of his girlfriends was sleeping in his bedroom. He also agreed that his mother had bought condoms for him.[104]

    [104] T 296.13-22.

24. He heard later that there had been some disagreement between the accused and LA at the Mother’s Day lunch.[105]

    [105] T 297.18-20.

25. He recalled LA sitting on the couch with the accused with a blanket over them almost every time they were all in the loungeroom. He agreed it was not very common for him to be there at the same time as LA.[106]

    [106] T 300.22.

26. He knew that from time to time LA had to have her pull-up changed in the middle of the night and the plan was to wake her up in the middle of the night and put her on the toilet.[107]

    [107] T 305.3-22.

27. He was aware that his father was charged with hitting the accused and there had been a family discussion that his father could go to prison. He thought there was also discussion that the accused had not been charged with what LA said the accused had done but denied talk amongst the family concerning what he might be able to say. He agreed that what he saw on the couch looked completely normal to him at the time.[108]

    [108] T 307.37-308.25.

    Evidence of BK

28. BK’s evidence was given via a recorded interview with police taken on 23 July 2020 when BK was aged 11.[109] There was no application for him to give further evidence and I allowed defence counsel to cross-examine with respect to two issues.

    [109] Ex P54.

29. In his police interview, BK said when he was maybe seven or eight, he saw the accused leaving his room and going into LA’s room in the middle of the night. He said he had not thought much about it until now. When asked why he had thought about it now, he said ‘its like because all that stuff what I heard had happened’. He did not recall hearing anything except ‘rustling’.

30. In cross-examination, BK agreed Exhibit D55 showed the room that he always slept in when he stayed over.[110] He remembered that the bed was in a different position to that shown in the photograph. He was asked whether, when he was lying in bed in that room, he would be able to see the doorway to his grandmother and the accused’s room. He said that from the head of the bed where he slept you could see through the doorway. He was sure it was the accused that he saw but not sure what time of night it was.[111]

    [110] Ex D55.

    [111] T 320.6-13.

31. BK said he did not know that LA was saying that at night-time the accused would go into her room and do things to her or why he was giving evidence. He knew that his father had been charged, but he did not go to court when he was sentenced.

    Evidence of HR

32. HR’s evidence was given via a recorded interview with police taken on 22 February 2020 when HR was aged 13.[112]

    [112] Ex P56.

33. HR told police that on 28 August 2018 LA had a lot on her mind and started to break down in tears. HR asked the teacher if she and LA could go outside for a while and ‘talk about some stuff and see what’s wrong and then um she started telling me about her step-pop’. LA was saying that her step‑pop had been touching her in places that he shouldn’t for a very long time. He would invite LA over and not the rest of her siblings so she did not feel comfortable with that.

34. HR said she convinced LA to tell an adult because it was something serious.

35. In cross-examination, HR said that the relief teacher was not very friendly and was rather strict. LA was already upset so they asked permission if they could leave and the teacher let them go without asking anything.[113]

    [113] T 327.15-27.

36. HR said she knew about RT’s girlfriend but did not know there was a problem in the family about that and it was not something LA had talked about. She did not recall LA telling her that her dad had moved or being upset about that.[114]

    [114] T 328.3-13.

    Evidence of JK

37. LA’s father JK described his relationship with Ms Hirst and the accused as ‘really good’ and said they maintained a close level of contact after his children were born.[115]

    [115] T 330.28-32.

38. Before his marriage broke up, Ms Hirst was around all the time. The accused helped by picking LA up from childcare and would periodically pick RT up from school. He said Ms Hirst and the accused visited regularly and helped quite a lot.[116]

    [116] T 331.16-22.

39. LA would be picked up from day care by either the accused or Ms Hirst on quite a regular basis. Most of the time it was the accused because Ms Hirst was studying. JK recalled that Ms Hirst was not there most of the time when he would pick LA up from the accused’s house between 4:00pm and 5:00pm.[117]

    [117] T 334.27.

40. When asked whether he noticed anything unusual when he collected LA from the accused’s house on these occasions, JK said that one time really stood out. LA was sitting on the porch with a towel around her with no clothes on but she was dry. He said it was very unusual. There were also times that he went to pick LA up and she would be in the bath. JK said there was no need to bathe LA because she was taken home, fed and bathed every night.[118]

    [118] T 334.34-335.14.

41. He said that from what he saw up until the time he separated from EA, LA was very well favoured by the accused and had heard about his requests to spend time with LA. He said he could recall a conversation with EA regarding favouritism towards LA, while RT was being left out. He and EA decided that if the accused wanted LA then RT had to go as well. Sometime after that conversation, the frequency of LA’s contact with the accused changed and LA was asked to spend less time with the accused.[119]

    [119] T 336-338.

42. In cross-examination, JK agreed he was using drugs at the time his marriage to EA ended.  He said he was working two jobs, trying to keep things going and it backfired and he did the wrong thing.[120]

    [120] T 341.8-12.

43. JK denied that before he and EA separated the accused and Ms Hirst were having to provide food and necessities for the family because he was using money on drugs.[121] He agreed that they asked the accused and Ms Hirst if they could help with the gaps in childcare and they helped many times.[122]

    [121] T 341.13-18.

    [122] T 343l.9-11.

44. As to the timeframe when the accused was looking after LA, JK said ‘Things changed all the way through, things changed’.[123]

    [123] T 344.19.

45. He denied that after the final breakdown in the marriage, he saw the accused only once or that he had never gone to the accused’s house after separation. He accepted he may have been involved in a discussion where Ms Hirst and the accused told him that RT had been very badly behaved and thrown a tantrum at their house.[124]

    [124] T 346.31-38.

46. In his statement to police, JK said ‘We spoke to Tony. I can’t remember whether Tony was there or not. I remember having a conversation about this. We said to him that if he wanted to see [LA], then he had to take [RT] as well. He told us that he just missed his girls.’[125]

    [125] T 347.28-348.3.

47. JK said that in relation to the assault against the accused, his sentence of imprisonment was suspended on a two-year good behaviour bond and he had to complete an anger management course.[126]

    [126] T 353.17-20.

48. JK said that when LA stayed over with him she would have to wear nappies, but was unaware of the details of LA’s care at the Women’s & Children’s Hospital for her bladder and kidney problems. He said that probably his new partner would take care of LA’s incontinence issues when she was staying with him.[127]

    [127] T 355.24-356.3.

49. JK denied that he had not been present at BK’s birth, and said he was present for all three children’s births.[128]

    [128] T 362.22-363.3.

    Evidence of the accused

50. It was agreed that the accused’s date of birth is 24 October 1962 and at trial was aged 59. He joined the Air Force after finishing school, working in aircraft maintenance. He married his first wife in 1985, with whom he had two daughters born in 1988 and 1993. He left the Air Force in January 1989 and in 2005 received a payment from a claim arising from workplace chemical exposure. The accused met Ms Hirst in 1995. He has since worked in various employed and self-employed positions and since 2014 has managed his wife’s business finances.

51. The accused said that he thought Ms Hirst’s daughters handled the breakdown of their parents’ relationship pretty well. They got on well with his own daughters. His daughters had lived with him and Ms Hirst for six months while his ex-wife went overseas, and it was hoped that thereafter he would share in their care. His ex-wife, on her return, did not agree.

52. In 2004 he was diagnosed with depression by a doctor appointed by the Department of Veteran Affairs, a condition from which he has continued to suffer. He has consulted a psychiatrist monthly since 2008. When his father died in 2008, he spent 50% or more of his time in New South Wales helping his mother.

53. He said he provided some childcare to LA. EA asked him to babysit LA because she had no-one else to do it and would otherwise be unable to work. He started looking after LA when she was about 18 months old, around May 2007.[129] His wife was there at times as she had flexi leave. He estimated that he would look after LA by himself 80% of the time.[130]

    [129] T 393.9-11.

    [130] T 395.2-3.

54. He had recollections of EA dropping LA off to him and he probably picked her up sometimes from EA’s house before she went to work. He also recalled picking LA up from childcare. EA would send text messages asking him to look after LA. As he has since changed phones, those text messages are no longer available. He described regularly emailing his wife about picking up LA and the other children.

55. The accused said that sometimes when LA was in his care during the day she would have a bath at his house. He said:

    So generally it would be more often in winter, I would think, because it's cold outside and we didn't really go out and do much outside. So on those occasions it would have just been an activity to do. She did get a bit dirty sometimes, so that would have been a reason. And there were occasions every now and then when I did it because she was a bit grotty.[131]

    [131] T 409.19-25.

56. The accused said that they used to have a fishpond in the backyard. He would clean it out by emptying it into a bucket and just tipping it on the lawn. On one occasion he described leaving LA playing with a hose and going off to do something, then on his return, finding LA playing with the fish water bucket. It was July and cold and she was covered in filthy fish water. He took her inside and gave her a warm bath for a while.[132] He said that EA never raised any concern that he was bathing LA.[133]

    [132] T 409.24-411.2.

    [133] T 411.15-16.

57. The accused said that he and EA would text each other a lot of the time.[134] EA would come over to visit him probably fortnightly. They would talk about all sorts of things and sometimes she would stop in just to say hello. He said that EA struggled a bit with the three kids. While LA was not too bad, the boys were quite a handful. He said that EA and he had a pretty close relationship and he thought he was doing her a favour by offering to take LA so that she was dealing with one less child.[135]

    [134] Ex D58.

    [135] T 414.36-415.3.

58. He said that he and RT never clicked, and that RT reminded him of RT’s father. BK was difficult. He described LA as a fun kid, with whom he had fun and that at no time did anyone raise concerns about the inappropriateness of him wanting to spend time with her. He had known EA for quite a while by that stage and they were very close.[136]

    [136] T 415.16-24.

59. He described his relationship with EA in 2009 as very good. He liked her and thought she liked him. He gave assistance by fixing things at her house, picking up children or picking her up and taking her places. They would have just general conversations about all sorts of things. He said his daughters would come up in conversation, but there was little to talk about as he became estranged from both his daughters in 2011.[137]

    [137] T 423.2-424.5.

60. The accused described at length a falling out with his daughters just before Father’s Day 2011 when he had rung his eldest daughter, who would have been aged 23 at the time.[138] He said he was trying to arrange with his daughters to visit on Father’s Day, but his daughters had arranged to see their grandfather instead. He said he was pretty upset about that and asked if they could change those plans. He did not speak to his daughters again thereafter, despite having received a letter from them in 2015 saying they loved and missed him.[139]

    [138] T 435.

    [139] Ex D58.

61. The incident that EA described of him answering the knock to the door when he was tucking his shirt in never happened. Nor did the incident JK described of LA being naked in a towel and completely dry.[140] He could not recall JK ever picking up LA when he was alone with her.

    [140] T 556.14-16.

62. He said that with respect to BK’s evidence that he could see down the hallway from where he was sleeping, the bedhead would not have been pushed up against the built-in robe as there would be no room to get into the cupboard.[141]

    [141] T 442.16-24.

63. He agreed that LA would sit next to him while they watched television. He did not like blankets.[142] LA would lean against him or her grandmother or lie down. After about 18 months of age there was no way that she would be sitting on his lap. He denied ever sexually touching her when he put her on his lap.[143]

    [142] T 452.22-34.

    [143] T 453.12-16.

64. He was not involved in the bathing ritual with LA when she was older. She bathed herself.[144]

    [144] T 454.13-14.

65. There was a time when LA stopped coming over as regularly and BK was coming more often. BK stayed mostly on his own, but every now and then LA was there also.  He was not responsible at all for the bedding and changing of the sheets in the house. He was aware there was a waterproof sheet on the double bed where LA slept and remembered there being a bit of angst on his wife’s part about having to deal with wet clothes and bedding when LA used to stay over as she was getting older.[145]

    [145] T 456.1-5.

1. The accused said he had no idea what LA was referring to when she talked about a game that he would play with a blindfold. He denied ever interrupting LA trying to tell her mother about such a game.[146] He thought that LA spent maybe a total of four nights at his house when Ms Hirst was in Melbourne on different trips.[147]

   [146] T 459.33-460.2.

   [147] T 460.12-13.

2. There were plenty of times that he wanted to have LA stay over and she did not come. He would sometimes ring or text EA and to see if LA wanted to come over. He thought LA was around nine the last time she had one of those one-on-one nights at his house.

3. When asked why he had LA over to stay with him he said:

   Up until 2011 my girls were coming over all the time so when Jenny went to Melbourne they would normally come over and spend time with me, so one-on-one time with them and then when that stopped, you know, I just thought it would be nice to catch up with [LA] again and I knew that when I had her that I was pretty sure that [EA] and [EA’s partner] used to take the other kids, farm them out to other people and then they could do their thing, they used to have their nights out and things.[148]

   [148] T 466.4-12.

4. He was never spoken to about why he was having LA and not the boys but said he knew that there was some talk about why he did not want the boys over. He said he thought it was common knowledge that he did not really get on very well with the two boys.

5. He said that when LA was staying over, he could not recall any occasion when he had to go into her bedroom in the middle of the night. He said:

   I knew that - I knew that at some stage they were doing that to try and help with the bedwetting. I knew that Jenny used to go in there at night, I don't know if she did it every single time, but she did go in there at night sometimes and take her to the toilet.[149]

   [149] T 467.30-34.

6. The accused denied ever applying lubricant or getting into bed with LA.

7. He said he would get a card for Father’s Day and his birthday every single year from EA and her children.

8. He said he stopped asking to have LA over at some point. He said:

   I think it might have been because she was - as she was getting a bit older she was becoming - I used to put it, I used to say that she was becoming a teenager at sort of age nine. She was a bit grumpy and, you know, and she wasn't that sort of pleasant to have around, to get together, she'd just be annoying and, you know, try and insert herself into conversations but in a not a very nice way. So I guess we just sort of became, you know, not a nice relationship…’.[150]

   [150] T 481.30-38.

9. He described the events at the Mother’s Day lunch in 2018. He said that LA was being particularly obnoxious and was not really helping. He asked her to help clear the table and she was just standing there doing nothing and everyone else was running around doing things. LA basically said no, so he told her ‘Well, I’m not going to do anything more for you then’ and she made some snappy comment back to him about ‘you don’t do anything for me anyway’ or words to that effect.[151]

   [151] T 482.5-20.

10. The accused said he never had a sleep mask. While police found a mask that he purchased in 2017, it was worn across the head like a headband and was not designed to go across the eyes. He described using lubricants in his relationship with his wife but said he did not believe that any of the lubricants had a pump action bottle.[152]

    [152] T 485.14.

11. In cross-examination, the accused said the estrangement with his daughters took him completely by surprise. He had made no effort since 2011 to re-establish contact because ‘I just couldn’t see a way around that’.[153] He had no explanation for the letter referring to missing him ‘even after everything we’ve been through and all the problems we’ve had’.[154]

    [153] T 501.22-29.

    [154] T 503.33-36.

12. He said that when LA came to stay with him while his wife was in Melbourne, LA was aged between six and nine and used a photograph of LA having a McDonald’s breakfast as a guide.[155] He thought that might have been the second to last time that she came, and he thought she was eight in that photo. He agreed he had no independent memory of when the last visit was.

    [155] Ex D35.

13. The accused said that by the time LA was visiting overnight while his wife was in Melbourne, LA was responsible for putting her own pull-ups on and he did not supervise. He said that he knew she put them on because he would go and check on her before she went to bed.[156] She did not wear pyjama bottoms and he did not recall her wearing knickers. He left it to his wife to deal with the soiled sheets although said he did not have any strong recollection of the sheets being saturated. There were precautions like not letting LA drink anything and making her go to the toilet before bed. It was fairly late when they went to bed, and it did not seem to be an issue.[157] He did not remember if there were occasions when LA stayed overnight while his wife was away and did not wet the bed.

    [156] T 516.

    [157] T 519.

14. The accused was asked about whether he checked on the children during the night. He said he did not recall ever doing it and he did not see a reason why he would do so.

15. He denied that he was shaping his evidence to prevent him from having an opportunity of being unsupervised in one of the children’s bedrooms.[158]

    [158] T 526.2-5.

16. While his wife is a light sleeper, he denied that she ever struggled to get to sleep. She took sleeping tablets but would not take them when the children were over.[159]

    [159] T 526.

17. The accused said he never used the term ‘playdate’. He presumed that he had heard the term when his wife used it. He denied that the babysitting stopped after an occasion when EA came around unexpectedly to collect LA.

18. He maintained that LA was nine when she last stayed with him when his wife was on a trip to Melbourne.

    Evidence of Jennifer Hirst

19. Ms Hirst completed her law degree in 2008. She started her own law firm in November 2014, practising in family law. She met the accused when she worked at the Child Support Agency with him. She said she had a good relationship with the accused’s daughters and had received Mother’s Day cards and birthday cards from them.

20. Ms Hirst said she provided financial assistance to her daughter EA. The accused, often at her daughter’s request, would collect LA from childcare and bring her back to their home until EA could pick her up. EA would either contact the accused directly or contact Ms Hirst, and Ms Hirst would let the accused know that the children needed to be picked up. She did not recall LA coming over to stay overnight until she started to take her for swimming lessons.

21. Ms Hirst described the relationship between the accused and LA as a close bond and that LA was fun to be around at that stage, as she was ‘really cute’.[160]

    [160] T 591.26-31.

22. LA would regularly stay overnight on Friday nights to go swimming on the Saturday morning. That continued when LA attended ballet classes in 2011. For a couple of years they had a routine whereby LA would stay over on the Friday night and Ms Hirst would take her to ballet or swimming on the Saturday morning. LA was roughly between the ages of five and seven.[161]

    [161] T 603.26-27.

23. She said that EA never raised concerns with her about the accused looking after LA on her own and said the main reason that the accused wanted to look after LA was because he wanted to help EA. 

24. She did not recall the accused and LA sitting on the couch watching TV.[162]

    [162] T 613-614.

25. She said she did not think LA wore the bottoms of her pyjamas because she remembered finding LA in the morning taking the pull-ups off and did not notice that she had taken the pyjama pants off. She recalled LA pulling off the pull-ups to put them in the bin and said that LA was quite self‑sufficient in that regard.[163] Ms Hirst said the only thing that she would do in the morning was run a lukewarm bath so LA could just have a bit of a wash. She recalled that they engaged several methods to help LA’s incontinence, among which were limiting the amount of liquid she drank, and making sure she used the toilet before she went to bed.

    [163] T 616.34-35.

26. Ms Hirst said on a few occasions she got up during the night to go to the toilet herself and she tried to get LA up as well. As LA was a heavy sleeper and a dead weight, that became too difficult to do safely.[164]

    [164] T 617.13-22.

27. The pull-ups worked to a certain extent but eventually she had to speak to EA about LA sleeping over. She told her daughter that she could not have LA overnight anymore because she was wetting the sheets all the time. While there was a waterproof sheet on the bed, she was really busy and it was all getting a bit much.[165]

    [165] T 618.8-15.

28. Ms Hirst said she thought she took LA to Melbourne about four times and was aware that LA would sometimes stay with the accused when she was away.  She said:

    Tony had a bond with [LA], he got on well with her. He liked her company, they'd watch a movie together, that sort of thing. He sometimes asked if she could come over, other times I recall [EA] saying to me 'Is Tony going to have [LA] over while you go to Melbourne?', sometimes Tony would ask [EA] if [LA] wanted to come over. It was never a given and [LA] would say 'Yes' or she'd say 'No, I'm having a play date with a friend' or she had something else on, so she declined to come over.[166]

    [166] T 623.20-29.

29. It did not concern her at all that LA would stay by herself with the accused. She said the accused had a stronger bond with LA than with the boys because of their autism issues.[167] She did not recall any conversation with any family members about the amount of time the accused spent with LA and could not say when the last time was that LA stayed with the accused when she was in Melbourne.

    [167] T 624.21-26.

30. Ms Hirst described herself as a fairly light sleeper who did not take medication specifically to address her sleeping problem.

31. She denied that there were any kinds of creams or lotions in her house that came in pump bottles.

32. When asked about the breakdown of the accused’s relationship with his own daughters, she described the telephone exchange between the accused and his daughter as heated and said she was shocked by the content of the letter his daughters wrote. What they were saying in the letter had never been raised with her or the accused.[168]

    [168] T 628-629.

33. She described an event when she attended at EA’s unit in early 2009 without notice. She was dropping off some things and knocked on the door. EA did not answer straight away and she had different men there. She remembered seeing about two or three different men in there when the kids were in bed. She did not know if they were staying over. It was only a small two-bedroom unit and the kids would have heard anything that was going on.[169]

    [169] T 629.14-25.

34. She said that she became angry at her grandson sleeping in the same bed as a girl because it was taking place in her rental property, and it could be seen as a criminal act. She rang the police at the time, and they said all they would do was go and talk to EA and RT and have a bit of a chat with them. EA blew up at her and said that it was none of her business and that RT used condoms and he was safe. She did not tell EA she intended to speak to police beforehand.[170]

    [170] T 629-630.

35. Ms Hirst said that LA seemed to be ‘kind of stroppy all the time’.[171]

    [171] T 632.

36. When addressing the gym memberships, Ms Hirst said she was always trying to get EA and DK to live a healthier lifestyle and she got EA interested and LA said she wanted to come too. Ms Hirst said:

    The first session was really good, I showed her how to use some of the machines and then she sort of brushed me aside and said 'I don't need you to help me, I can do it myself'. The second time we went she came in to the back exercise room where [EA] and I were, she'd come off the machinery and she said, I heard her say to [EA] something along the lines of 'My friend can do this, can I show you?', so I looked up and [EA] stopped and she didn't do it and we said 'Well, are you going to do it?' and she goes 'I can't now, you're both looking at me' and I said 'Don't worry about it then' and I just went on with what I was doing. But she got really, really angry, she was really angry on the way home and when we got home I asked [EA] to return some exercise CDs that I'd lent to her a couple of months prior to that and [LA] just came stomping out to the car, opened the door, threw the whole lot in like that (DEMONSTRATES) and slammed the door and walked off again.[172]

    [172] T 632.25-633.4.

37. On Mother’s Day 2018 RT brought his girlfriend to her house. Ms Hirst said she was annoyed about this because she knew the girl’s mother was a recovering meth addict whom she understood to be well on the way to rehabilitation and she thought the girl should be spending that day with her own mother.[173] Ms Hirst recalled that the accused told LA to help Ms Hirst clean up a bit after lunch and LA said ‘I don’t have to’ or ‘I’m not going to’ and the accused said ‘Well don’t ever ask me to do anything for you then’. LA replied ‘You never do anything for me anyway’.[174]

    [173] T 633.11-16.

    [174] T 633.23-33.

38. She described BK as like a son that she never had, while the accused ‘struggled’ with both RT and BK.[175]

    [175] T 645.19-31.

39. She made a point of not taking any drugs like Oxazepam when the children were sleeping over. She never used the sleep mask with the earphones in it. She agreed it was the accused’s attempt at dealing with his sleep issues. She said that they never used sleep masks. If they got them on an international flight, they never brought them home as they had no reason to.[176]

    [176] T 650.17-19.

40. She said she did not believe the accused had done anything to LA and had provided counsel with a list of things that might have exposed LA to sexual activity. She denied having thought that LA had gone to see 50 Shades of Grey with EA.[177]

    [177] T 652.

41. She agreed that she always dealt with the washing that resulted from LA’s bedwetting. The accused would generally take the sheets off the bed and leave them in the laundry, and she would wash them when she got home.[178]

    [178] T 654.9-11.

42. She denied being persistent with EA about LA going to visit with the accused and did not recall any conversation with EA saying she could not work out why the accused only ever wanted to see LA, although there might have been comments about the accused liking LA better than the boys because they had the autism issues that he found difficult to deal with. There was no conversation where she was told that LA would not continue to come and spend time with the accused on his own.[179]

    [179] T 656.9-14.

43. She agreed that the accused may have referred to the visits as ‘playdates’.[180]

    [180] T 657.5-11.

44. Before she asked EA about stopping her sleeping over, LA was leaking most times she visited. LA’s incontinence had resolved by December 2017.[181]

    [181] T 661.31.

45. She thought there were half a dozen times when she was in Melbourne and LA had an arrangement to spend time with the accused. Ms Hirst said these overnight stays probably continued until LA was 10 or 11.

46. Ms Hirst agreed she never gave a statement to police despite them trying to contact her.

47. Ms Hirst said she did not recall an occasion when CA was alarmed at something she had seen between LA and RT in the bath.[182]

    [182] T 672.21-23.

48. She agreed she had been found guilty of professional misconduct having backdated a letter and sent it to an opposing party, attributing blame for her conduct on her employee. On 3 December 2020 she was fined $10,000, ordered to apologise, reprimanded, and required to undertake training, education and counselling. Further, she was not to employ a legal practitioner on a restricted practising certificate until such time as she had completed her training and education.[183]

    [183] T 672-674.

    Prosecution address

49. The prosecutor submitted that the accused had the opportunity to commit each of the acts described by LA, noting that the accused himself admitted in evidence that he ‘babysat LA on her own before she was of school age; had LA over for visits, with or without her siblings, before dance and swimming lessons; and had LA on her own when Ms Hirst was absent visiting Melbourne’.[184]

    [184] Prosecution Closing Submissions 4 at [17].

50. The prosecutor described LA’s demeanour as consistent with the truth, and that her presentation was too sophisticated to be the product of acting.[185] LA’s descriptions of the abuse in the interviews contained details that were consistent with her having that experience as opposed to being invented.[186]

    [185] Prosecution Closing Submissions 4 at [18-20].

    [186] Prosecution Closing Submissions 4 at [21].

51. Furthermore, LA’s evidence plausibly depicted a progression of sexual abuse in that the first incidents of abuse took place in the course of a game and progressed to digital stimulation and then penetration of LA’s vagina on the couch before culminating in yet more serious sexual contact in LA’s bed.[187] They were also idiosyncratic and unlikely to have been the product of invention.[188] Her purported precocious knowledge of sexual matters could not be explained by LA’s school sex education, nor her exposure through her brother RT’s conduct. Instead it was consistent with her having experienced these incidents.[189]

    [187] Prosecution Closing Submissions 5 at [22].

    [188] Prosecution Closing Submissions 5 at [23].

    [189] Prosecution Closing Submissions 5 at [24-27].

52. LA’s first interview contained a complete catalogue of her allegations of abuse at the accused’s hands and contained as much detail as would be expected from a child who had been habitually abused in similar ways over many years.[190] While more detail was provided in the second police interview, the central allegations remained unchanged.

    [190] Prosecution Closing Submissions 9 at [42].

53. LA’s inability to recall whether she took her own clothes off or whether the accused did, was, in the prosecutor’s submission, of little moment.

54. In relation to LA’s assertion in the first interview that while she was blindfolded, she thought the accused was holding a teddy in front of her, LA was speaking in the context of a guessing game and reconstructing what she guessed the object to be, not reflecting on its properties as being similar to a teddy, nor suggesting the thing in front of her was fluffy or furry.[191]

    [191] Prosecution Closing Submissions 11 at [54].

55. LA not having mentioned pull-ups or nappies during the period in which the abuse allegedly took place was, in the prosecutor’s submission, satisfactorily explained by her answer in cross-examination that she was more focussed on the abuse itself rather than the incontinence issues.

56. LA’s incontinence did not make it less likely that the accused sexually abused her. By the time LA was of school age, she put on her own pull-ups, and that it is open to infer on the accused’s and Ms Hirst’s evidence that there were many occasions on which LA was not wearing a pull-up when sitting with the accused on the couch.[192] Indeed, prosecution submitted that even if she was wearing pull‑ups on the couch, the accused could just as easily have abused her as if she had been wearing regular underwear.[193]

    [192] Prosecution Closing Submissions 11 at [57].

    [193] Prosecution Closing Submissions 11 at [57].

57. Prosecution submitted that there will have been a window of time between LA going to bed and wetting her sheets, and that the accused could sexually abuse her before the point where she could reasonably have urinated.[194]

    [194] Prosecution Closing Submissions 12 at [58].

    Defence address

58. Defence counsel submitted that LA’s memory was so vague, ambiguous and incredulous that the accused could not be found guilty beyond reasonable doubt and that her allegations have not been supported by any of the other witnesses.[195]

    [195] T 697.14.

59. In relation to the first interview, defence counsel submitted that the vagueness of LA’s answers could not be explained away by the relationship and rapport that LA may or may not have formed with the interviewing police officer. The evidence, defence counsel suggested, pointed to LA’s reluctance as arising from her having made up the allegations.[196] LA failed in the interview to give information about her age at the time of the events, the circumstances of what happened and who was there, despite being asked for more detail by the interviewer.[197] It was suggested that the chain of events that followed what defence counsel described as a ‘throwaway line on a playground when she walked out of class’ meant that LA felt compelled to give a second, more detailed interview or risk looking ‘odd’.[198] There was a domino effect started by a comment made with no particularity to her friend while they were leaving class when they were not supposed to be.[199] Her friend then told someone at the school, who told LA’s mother and the police.[200] On this basis, defence counsel submitted, the court should treat the second interview with cynicism and based upon matters which LA must have been fed by her family.[201]

    [196] T 697.36-38.

    [197] T 699.1-11.

    [198] T 681.4-14.

    [199] T 699.22-32.

    [200] T 699.22-32.

    [201] T 681.16-17.

1. In relation to the second interview, defence counsel said that similar language was used by the interviewer to elicit information from LA, albeit using a softer tone, and yet the second interview was completely different in terms of the information that LA provided.[202]

   [202] T 699.18-21.

2. Defence counsel listed issues that could have impacted the relationship between LA’s family and the accused and Ms Hirst. Among these were a conflict about RT’s sexual relationship and Ms Hirst’s contact with police; conflict that arose during the Mother’s Day lunch; an issue surrounding LA’s behaviour at the gym; LA’s general moodiness, LA’s problems with her friendship group around this time, and the embarrassment she was feeling due to her incontinence.[203]

   [203] T 697.13-25.

3. Defence counsel emphasised LA’s denial about having spoken to police that something fluffy was put in her face.

4. Defence counsel highlighted the long pauses in LA’s evidence between questions and her answers. LA’s credibility was further called into question in relation to whether or not she had ever seen the accused’s penis given that in the first interview, LA did not say that she had seen the accused’s penis, which was different to her evidence given in the second interview and then cross-examination.

5. In the first interview, LA described the accused standing over her, but in the second interview, she said she was on the bed and that the accused was kneeling over her.[204] LA described the accused putting his penis into her mouth in the first interview, but in the second interview she said the accused put it towards her, and that she was forced to touch it.[205] Defence counsel suggested that these inconsistencies meant that LA’s evidence in relation to the blindfold incident was incredible and could not be accepted.[206]

   [204] T 700.36-701.2.

   [205] T 701.1-5.

   [206] T 682.16-21.

6. Defence counsel challenged the likelihood that the alleged incidents took place given LA’s evidence that she would wake up to the abuse but would never wake up to being lifted from the couch onto the accused’s lap. Furthermore, LA was not able to recall how the events stopped. Why, defence counsel argued, would LA continue to sit next to the accused on the couch if she was being abused by him, given the choice of other chairs in the loungeroom, particularly given her evidence that the abuse perpetrated on the couch was painful. How likely, defence counsel asked, would it be for the accused to offend when his wife was merely metres away in the kitchen doing the dishes.[207] There were no pump-action bottles of lubricant located in the house by police.

   [207] T 691.15-22.

7. Defence counsel submitted that it was incredible that LA would agree to continue staying over at the accused’s house if the abuse had occurred.

8. It was also improbable, defence counsel submitted, that LA would have slept through the removal of her clothes, and particularly a pull-up. It would be similarly improbable for LA to go back to sleep before the abuse was over if the accused was indeed ‘thrusting’ into her.

9. Defence counsel argued that if I found LA’s evidence in relation to the couch unreliable, then her evidence about abuse perpetrated on the bed should also be deemed unreliable, where LA had said that she would wake up to find herself being abused both on the bed and on the couch, and then go back to sleep, and never saw the accused leave the room.[208]

   [208] T 693.5-8.

10. Defence counsel submitted that it was entirely implausible to suggest that the accused would have sexually abused LA in the spare bedroom, which was so close to his own room, while his wife was in such close proximity.[209]

    [209] T 695.18-22.

11. Defence counsel highlighted LA’s agreement in cross-examination that she never spoke to police about her pull-ups, given that according to her mother, LA was wearing pull-ups every night over the period of the abuse, and indeed as late as August 2016, and that LA never had a dry night. Medical notes from the hospital supported this evidence.

12. It would, defence counsel argued, have been incredible for the accused to be able to remove LA’s pull-up, which would most likely be urine-soaked, and her pyjama bottoms without her waking. Additionally, it was unlikely that the accused would not then replace the pull-up after the abuse.

13. It was suggested that LA’s evidence that she never enjoyed spending time with the accused was a recent invention given the Father’s Day card she had written. Furthermore, there was inconsistency in her evidence that she did not like spending time with the accused at all, and a subsequent statement that she enjoyed spending time with the accused until she realised what he was doing to her. 

14. LA’s reluctance to spend time with her grandparents as she got older could be attributed to the fact that she and her mother were having arguments with Ms Hirst around this time and these arguments, support a potential motive for LA to lie about the abuse.

15. Defence counsel described LA’s demeanour during the first interview as a reluctance to elaborate, and not shyness.

16. The time that has elapsed since the alleged offending has resulted in a forensic disadvantage, as the defence has been rendered unable to effectively cross-examine witnesses in relation to important details surrounding the allegations.

    Analysis

17. In the first police interview, it is very clear that LA had real and what I considered to be very genuine difficulty in expressing herself. She appeared simply unable to describe her experiences and in particular was unable to use words to describe body parts or some particular acts. This was despite her very earnest attempts. She was uncomfortable and at times appeared distressed.

18. Despite her obvious difficulties, there was nothing to suggest that LA was fabricating the events she was able to describe. While I did not find the interviewing style of the police officer to be particularly aggressive, at times the officer did seem to be losing patience with LA, no doubt brought about by LA’s struggle to use certain words.

19. In my view, contrary to the assessment police made after LA participated in the first interview, careful analysis would have revealed sufficient detail about what LA alleged against the accused for police to take the matter further, rather than to conclude that LA had failed to describe any particular incident, provide any details of offending, or provide any context to what occurred.

20. LA said in cross-examination that she suffered from a disassociation disorder, which had apparently been diagnosed in 2019. She said the disorder did not cause her to misremember events, but rather affected her ability to remember certain events. I have not been provided with any assessment or information as to assist in understanding why it was that LA presented as she did or whether it could be explicable because of trauma relating to the abuse she alleged. Her disassociation disorder, about which I have no further evidence and about which I must not speculate, does not explain her presentation.

21. LA’s second interview with police took place with a different interviewing officer on 9 December 2019. In that interview, LA provided more detail, however in the main, that additional detail was peripheral to the central allegations which remained unchanged. Particularly compelling in my view was LA’s description of the accused while naked, standing with her on his hip, looking into the mirror in his and Ms Hirst’s bedroom.

22. While the defence have argued that the additional detail that LA provided in her second interview was to ensure that the accused would be charged, careful analysis of the second interview reveals more detailed questioning by the interviewer which would logically allow for a more fulsome response by LA. Certainly, in the second interview LA appears somewhat more comfortable, however I note that at times, she still struggled to use the appropriate words for body parts.

23. I accept that there were some differences between what LA had said in her first and second interview and in her evidence in cross-examination. In my view, nothing turns on LA not having disclosed in either interview that she had not worn pull-ups at the relevant time given that wearing nappies or pull-ups was for her, a routine experience. LA explained that during the interviews she was more focussed on the abuse rather than her incontinence issue. Similarly, I do not consider that her evidence has been undermined by the answers she gave with respect to how it came to be that she was undressed before the blindfold game. At the time of the alleged abuse, LA was a very young child, and her inability to accurately recall how it was that her clothes came off is of no moment.

24. The evidence of LA’s complaint to HR can be used to show how the allegations first came to light and as evidence of consistency on LA’s part. I remind myself that the evidence of complaint is not to be used as evidence of the truth of LA’s statement to HR about the accused’s conduct. The complaint LA made to her friend, while not detailed, identified the accused touching her where he should not, and that it had been going on for some time. It can readily be accepted that given the family dynamics and the age at which LA says the abuse commenced, could have led to a reluctance on her part to tell anyone about what had occurred.

25. To suggest that LA’s reference to a teddy when she was describing the events of the accused touching her face with his penis was an example of her poor recall or difficulty in telling of the event, is as the prosecution submitted, a distortion of her evidence. In her first interview, LA said ‘I didn’t even know what it was cos I was … I probably thought it was some sort of teddy or something, so I really didn’t know’. Clearly, LA was speaking in the context of the game being a guessing game and reconstructing what she guessed the object to be, not reflecting on its properties as being similar to a teddy.

26. A great deal of time was spent cross-examining the prosecution witnesses regarding incidents in the past where witnesses appeared not to have met the expectations of Ms Hirst or the accused; instances when Ms Hirst and the accused had been generous with their money, and how that generosity had been abused. This evidence was adduced it would seem, as means for the defence to disparage the prosecution witnesses and to identify some motive on behalf of Ms Hirst’s daughters and LA to lie.

27. In particular, I refer to the series of questions in cross-examination of CA regarding the accused and Ms Hirst being unhappy that CA was living with them; questions regarding Ms Hirst paying off CA’s car loan and having received ‘nice’ birthday presents for her 21^st birthday from Ms Hirst and the accused.[210]

    [210] T 143.31-33

28. Ms Hirst was an unimpressive witness and given the recent finding of unprofessional conduct against her, I approach her evidence with much caution. She was quick to criticise EA and her grandchildren, perhaps to justify her decision to support the accused and cut all ties with her own children and grandchildren. It was apparent that she felt her criticism of her family members would somehow assist in the accused’s defence. For example, she gave evidence regarding LA’s behaviour at the gym, which although logically attributable to LA’s self‑consciousness as a young teenager, appeared to be the source of considerable irritation to Ms Hirst. She described EA’s failure to instil a ‘dinner time’ or ‘bath time’ for her children or to teach them to use a knife and fork.[211] Ms Hirst said that she would make a point of bathing her grandchildren every time they came over, in part, to clean under their fingernails and toenails ‘because they always had gunky stuff’ and she remembered BK’s toenails ‘used to grow so long that they'd curve over the edge of his toe’.[212]

    [211] T 592.8-25

    [212] T 592.8-25

29. Email correspondence between the accused and Ms Hirst on 13 October 2010, in response to the accused telling her that ‘[LA] weed in her knickers at some stage during the day!’, where Ms Hirst responded by saying ‘She’s a little sod sometimes’ and at the end of the discussion wrote ‘She looked very proud of herself, she won’t look like that when she’s wetting her knickers at school all day’, gave insight into her attitude towards her granddaughter.[213]

    [213] T 515.26-516.14

30. Ms Hirst’s evidence regarding EA entertaining men at her home can only be viewed as a desperate, last minute, attempt to portray her daughter in a bad light. This evidence was disingenuous and reflected poorly on her, particularly so when the scenario she described was not put to EA in cross-examination, giving her an opportunity to respond.

31. There was considerable focus in the defence case on what assistance the accused and Ms Hirst had given EA and her children, and it was clear they provided both financial and practical support to EA. Clearly EA did not wish to recall her relationship with the accused as particularly positive, although I did not detect any particular vindictiveness towards him. It is likely that EA cannot accurately reflect on her relationship with the accused given her daughter’s allegations, but it would appear they were once on friendly terms and EA was somewhat reliant on the accused’s help and Ms Hirst’s financial assistance. 

32. The cross-examination of EA regarding RT’s relationship at 13 or 14, was to illustrate a possible motive for LA to lie. Understandably, EA was angry at her mother for contacting police. EA was no doubt dealing with a difficult situation which had to be dealt with in a careful and sensitive way and her mother’s interference would have been thought of as most unproductive and unwelcome. While I accept there were grounds upon which EA would feel aggrieved at her mother’s attitudes and action, I do not accept that EA’s anger at her mother has played any part in the complaint by LA against the accused. It appeared that RK’s relationship was of little moment to LA, as was her mother’s dispute about it with Ms Hirst. In any event, it appeared to me that EA had ultimately approached the matter as another of the instances where her mother had disappointed her, rather than it being a catalyst for some sort of vengeful conspiracy.

33. Given that the abuse identified by LA in her first interview with police did not alter significantly in her second interview, any suggestion that LA has lied because she felt responsibility for her father’s assault of the accused, must be rejected. Similarly, I do not accept that conflicts between LA and her grandmother or between EA and her mother give rise to a credible motive on LA’s part.

34. Having rejected any motive for LA to lie, I remind myself that such a finding does not mean that I would find that LA is being truthful. The absence of evidence of a motive on LA’s part does not strengthen the prosecution case and it is neutral. Lies can be told for no apparent reason and it is not for the accused to provide a motive for LA to lie. The prosecution must satisfy me beyond reasonable doubt that the complainant was telling the truth.

35. EA has given evidence that she was concerned about the accused’s relationship with LA, particularly when she arrived unannounced, and the accused came to the door and LA was in the bath. Such concern, perhaps with the benefit of hindsight, would be understandable in circumstances where the accused had a preference to only care for LA, the visits were described as ‘playdates’, said to sometimes be at her mother’s insistence, and the accused had an apparent dislike for her sons.

36. At the time the accused was available to care for her daughter, EA was likely grateful for help with any one of her children even after she stopped working, and naturally would not want to think that harm could come to LA from her mother’s husband or while her mother was present in the home. It is, however, difficult to accept that had EA, who I assessed as a caring and attentive mother, genuinely recognised that her daughter was at risk at the time, would have allowed LA to continue to be in the accused’s care, particularly overnight when her mother was in Melbourne.

37. That LA had overnight stays with the accused while Ms Hirst was in Melbourne has led me to conclude that it was only once LA had made her disclosure about the accused’s conduct that EA had an appreciation of the warning signs concerning his behaviour. In all likelihood there were discussions within the family about why the accused was not prepared to care for LA’s brothers, but that those discussions were not in the context of anything sinister on the accused’s part towards LA. My impression of the accused is that he would have been very intolerant of a child or teenager who did not conform to his standards of behaviour and given the difficulties experienced by RT and BK, he would have been resistant to caring for them.

38. Similarly, I have had difficulty finding support for the allegations LA has made from the evidence given by other members of LA’s family. The evidence of RT cannot in my view be used to support LA’s evidence regarding the offending alleged to have occurred on the couch, nor can his recollections regarding seeing the accused in the hallway. While his evidence could not in any event be regarded as particularly damning of the accused, the lack of specificity means that it is of no assistance. With respect to BK’s evidence, I have found that BK would not have had the view of the accused he described in his evidence, given the position of the built-in wardrobe in the room in which BK slept. JK’s evidence regarding finding LA wrapped in a towel and yet dry, was in my view a recent invention, aimed at bolstering LA’s credibility.

39. With respect to the incidents described by CA and EA concerning RT and LA in the bath, I have not found that they have concocted a story as had they done so, I would expect there to have been a greater degree of consistency in their versions. It is however surprising that given each remembered a version of an event that appeared to them at the time to be of such significance that they thought it no longer appropriate for the two children to bathe together, there was not a more consistent recall of the event.

40. There is no doubt that in this matter the accused faced a significant forensic disadvantage. Despite the alleged events not being that far in the past, all witnesses were unable to recollect details, particularly regarding work commitments and the arrangements and times when the accused did have LA in his care, and the occasions when the accused cared for LA overnight while Ms Hirst was in Melbourne. Furthermore, the events said to have raised concern amongst family members would have been able to be tested more thoroughly had the allegations come to light earlier. I have taken into account the forensic disadvantages faced by the accused in considering whether or not the prosecution has proved its case beyond reasonable doubt. Having said that, I am satisfied from the evidence from both prosecution and defence that the accused would have had the opportunity to offend as is alleged.

41. I accept that the accused is a man of previous good character. He gave evidence denying that he had offended as alleged and was not shaken in cross‑examination on any issue of significance.

42. The accused gave his evidence in a rather unassertive way, in contrast to the apparently strident and rigid approach he had taken to his daughters when they would not make themselves available on Father’s Day and his decision not to have any further contact with them despite their letter to him several years later. His evidence that he had not seen any sign of a deterioration in his relationship with his daughters was in my view, insincere. He gave evidence of innocuous events or circumstances about which he could not possibly have a truthful memory. For example, never needing to tuck in his shirt. He too took the opportunity to criticise Ms Hirst’s children and grandchildren. On issues of relevance however, there was nothing inherently implausible in his evidence.

1. I must be satisfied of the credibility and reliability of LA’s evidence. I have carefully assessed her evidence and I have generally accepted that what she said in the interviews can be relied on, and that she does have a recollection of certain events which she was able to verbalise. LA did not seek to embellish her allegations against the accused, and as I have said, her evidence was generally consistent throughout. The allegedly brazen behaviour on the part of the accused, does not of itself cause me to doubt the evidence LA gave, nor do the cards given to the accused, relied on by the defence to show some positive feeling towards the accused, which are routinely prepared at childcare and school. Such cards offer no insight into how LA really felt about him or negate her allegations. Similarly, to suggest that LA would not have continued to stay with the accused or sit on the couch with him if the allegations were true, is naïve as to the way in which children subject to abuse within a family may behave.

2. I do however remain concerned at the obvious limitations in LA’s descriptions of what she says took place and the paucity of detail that she was able to provide. This, coupled with the forensic disadvantage to the accused in being able to adequately test her memories, is problematic.

3. At times in interview, LA appeared to question her recollections saying, ‘I’m pretty sure he did it’ and ‘I didn’t know whether anything happened or not’ and ‘Yeah, I don’t remember much cause I was asleep’. While my concerns must be weighed against LA’s very young age at the time of the alleged abuse, and I accept that LA’s difficulty may well be in keeping with someone who has been the victim of the abuse which she alleged, the abuse is said to have continued until she was older when she no doubt had a better understanding of what was happening. Visits alone to the accused overnight continued until she was around the age of 10 or 11, however, LA’s ability to describe the later events did not improve significantly.

4. While I am deeply suspicious that the accused has offended as has been alleged, I cannot exclude the accused’s evidence beyond a reasonable possibility. The suspicion of guilt or even probable guilt of an accused is not sufficient to prove the charge beyond reasonable doubt. I must accordingly find the accused not guilty.