R v HWS

[2022] SADC 52

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v HWS

Criminal Trial by Judge Alone

[2022] SADC 52

Reasons for the Verdict of her Honour Judge Schammer 

28 April 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

The accused is charged with one count of Maintaining an Unlawful Sexual Relationship with a Child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935.

The complainant, LF, is the maternal grand-daughter of CD, a long term friend of the accused. The alleged offending is alleged to have occurred at the accused's home, at CD's home and at other places, between 29 October 2010 and 14 December 2015.

During the relevant period, LF was a child aged between 3 and 8. LF regularly stayed at CD's house at times when the accused and his family were also staying there. LF also stayed at the accused's house.

LF disclosed the alleged offending to her mother after they had watched an episode of the television programme, Dr Phil, together. The next day, the alleged offending was reported to police.

The trial proceeded as a re-trial, before a judge sitting alone.

LF's evidence comprised the audio-visual record of two interviews conducted with a prescribed interviewer on 19 December 2015 and on 3 April 2016 (when LF was aged 8) and the audio-visual record of LF's cross-examination conducted at the first trial in April 2017, edited as agreed by the parties, admitted pursuant to s 13D of the Evidence Act 1929. An application by the accused to further cross-examine LF was refused.

Two witnesses who gave evidence at the first trial, LF's grandfather and a neighbour, died prior to trial. LF's grandmother gave evidence at the first trial but was too ill to give evidence at trial. Over objection by the accused, transcripts of the evidence given by those witnesses at the first trial, edited insofar as was necessary, were admitted into evidence pursuant to s 13D of the Evidence Act 1929.

The accused gave evidence at the first trial but exercised his right to silence at trial. An edited transcript of the accused's evidence given at the first trial was tendered as part of the prosecution case. The accused denied the offending.

Verdict:  The accused is guilty of the charged offence.

Criminal Law Consolidation Act 1935 (SA) ss 5, 48, 49, 50, 56, 58, 270A; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13, 34P; Summary Offences Act 1953 (SA) s 74, referred to.
R v Mann [2020] SASCFC 69; JJP v R [2021] SASCA 53; R v Corrigan (1998) 74 SASR 545, considered.

R v HWS
[2022] SADC 52

[Criminal]

Introduction

1. The accused, HWS, is charged on Information dated 7 December 2021 with one count of maintaining an unlawful sexual relationship with a child, LF, pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (the Act).

2. The accused elected to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1927.

   Procedural Background

3. This is a re-trial. The accused initially stood trial before a judge sitting without a jury on Information dated 18 April 2017, charging one count of persistent sexual exploitation of a child contrary to s 50(1) of the Act. After a trial held over four separate days in April and September 2017, the trial judge delivered a verdict of guilty on the charged count.[1] That verdict was overturned on appeal and a re-trial ordered.[2]

   [1]     R v Sears [2018] SADC 94.

   [2]     Sears v The Queen [2020] SASCFC 107.

   The Charge

   Statement of Offence

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

   Particulars of Offence

   HWS between the 29^th day of October 2010 and the 14^th day of December 2015, at Salisbury North, Wallaroo, Enfield and other places, maintained an unlawful sexual relationship with LF, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:

   (a)attempting to kiss her on the mouth on more than one occasion;

   (b)causing her to watch pornography on more than one occasion;

   (c)causing her to touch his penis on more than one occasion;

   (d)rubbing his body on her body on more than one occasion;

   (e)inserting his penis into her vagina on more than one occasion;

   (f)touching her vagina on more than one occasion;

   (g)inserting his penis into her anus on more than one occasion; and

   (h)inserting his finger into her anus on more than one occasion.

   This is a “prescribed offence” within the meaning and for the purposes of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.

   Elements of the Charged Offence

4. In order for a verdict of guilty to be returned, the prosecution must prove the following elements beyond reasonable doubt:

   1.That the accused knowingly maintained a relationship with LF;

   2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with LF;

   3.That at the time the accused engaged in two or more unlawful sexual acts with LF, LF was a child; and

   4.That at the time the accused engaged in two or more unlawful sexual acts with LF, the accused was an adult.

5. The alleged offending is said to have occurred between 29 October 2010 and 14 December 2015.

6. LF was born on 29 September 2007.[3] The accused’s date of birth is 4 July 1968.[4] I am satisfied that LF was a child (and under the age of 14 years) and that HWS was an adult, during the period of the alleged offending.

   [3]     T 67.38, noting there are various erroneous references throughout the materials to LF’s date of birth being 29 October 2007.

   [4]     Exhibit P21 at T 345.20-21.

7. Whether there is a ‘relationship’ for the purposes of s 50(1) of the Act is a question of fact, to be decided having regard to the duration, frequency, nature and continuity of the interactions between the alleged victim and the accused.[5] Although the existence of a ‘relationship’ for the purposes of s 50(1) of the Act was not conceded, I am satisfied, on all of the evidence, that during the period of the alleged offending, HWS knowingly maintained a relationship with LF. I will outline my reasons for that finding hereunder.

   [5]     R v Mann [2020] SASCFC 69 at [27].

8. The real issue in dispute was whether, during that relationship, any of the alleged unlawful sexual acts occurred.

9. An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[6]

   [6] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).

10. A ‘sexual offence’ is defined to mean:[7]

    (a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or

    (b)an attempt to commit, or assault with intent to commit, any of those offences, or

    (c)a substantially similar offence against a previous enactment.

    [7] Ibid.

11. Pursuant to s 50(4)(b) of the Act, it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts. The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts ‘unlawful sexual acts’.[8] Those offences are: indecent assault and attempted indecent assault, gross indecency and unlawful sexual intercourse.

    [8]    JJP v R [2021] SASCA 53 per Doyle J.

    Indecent Assault

12. The prosecution allege that the accused engaged in several acts on LF, each of which constitute the offence of indecent assault contrary to s 56 of the Act, namely:

    ·causing her to touch his penis on more than one occasion - particular (c);[9]

    ·rubbing his body on her body on more than one occasion - particular (d); and

    ·touching her vagina on more than one occasion - particular (f).

    [9] Noting that the nature of these allegations is such that in the alternative the prosecution could have, but did not seek to, rely on the alternative offence of compelled sexual manipulation pursuant to s 48A of the Act.

13. The elements of the offence of indecent assault are:

    1.That the accused applied force (directly or indirectly) to LF;

    2.The force was applied intentionally;

    3.The force was accompanied by circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation; and

    4.LF was under the age of 17 years at the time of the act, rendering consent irrelevant.

    Attempted Indecent Assault

14. Particular (a) comprises conduct said to constitute the offence of attempted indecent assault contrary to ss 56 and 270A of the Act, namely that the accused attempted to kiss LF on the mouth on more than one occasion.

15. The prosecution must prove beyond reasonable doubt that the accused had, at all material times, the guilty intent to commit the offence of indecent assault and that at a time sufficiently proximate to the commission of the offence, he took steps towards the commission of the offence which, if those steps had not been interrupted (either by the accused voluntarily desisting or by some other cause), would have resulted in the commission of the offence.

16. In this case, the prosecution must prove beyond reasonable doubt that the accused intentionally attempted to kiss LF on the lips by the performance of an act or acts which if they had not been interrupted, would have resulted in the accused kissing her on the lips in circumstances of indecency.

    Gross Indecency

17. The prosecution allege that the accused committed acts of gross indecency contrary to s 58(1) of the Act by causing LF to watch pornography (particular (b)).

18. The prosecution must prove the following elements beyond reasonable doubt:

    1.The accused performed an act (playing pornographic movies).

    2.The act was intentionally performed in the presence of LF.

    3.The act involved circumstances of gross indecency.

    4.LF was under the age of 17 years at the time, rendering consent irrelevant.

19. The meaning of ‘indecency’ for this offence is the same as that for the offence of indecent assault, with the additional requirement that the prosecution must prove that the indecency was ‘gross’.

    Unlawful Sexual Intercourse

20. The prosecution allege that the accused engaged in several acts on LF, each of which constituted the offence of unlawful sexual intercourse contrary to s 49(1) of the Act, namely:

    ·inserting his penis into her vagina on more than one occasion – particular (e);

    ·inserting his penis into her anus on more than one occasion – particular (g);

    ·inserting his finger into her anus on more than one occasion – particular (h).

21. To establish that the accused committed an offence of unlawful sexual intercourse against LF, the prosecution must prove the following elements beyond reasonable doubt:

    1.That the accused had sexual intercourse with LF. Sexual intercourse is defined in s 5 of the Act to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person; and

    2.That LF was under the age of 14 years at the time, rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.[10]

    [10] Noting the offence of unlawful sexual intercourse contrary to s 49(3) requires proof only that the complainant was under the age of 17 years at the time.

    Witnesses and Exhibits

22. The prosecution called evidence from the following witnesses:

    1.The complainant’s mother, FD.

    2.Dr Janine Tee (Dr Tee).

    3.Detective Mathew Stock (Detective Stock).

    4.Constable Anthony Nguyen (Constable Nguyen).

23. In addition, numerous exhibits were tendered, including:

    ·A disc containing an edited audio-visual recording of an interview conducted between Senior Constable Benjamin Horley (SC Horley) and LF on 19 December 2015 (the first interview).[11]

    ·A disc containing an edited audio-visual recording of an interview conducted between SC Horley and LF on 3 April 2016 (the second interview).[12]

    ·A disc containing an edited audio-visual recording of the evidence given by LF under cross-examination at the first trial.[13]

    ·The unedited transcript of the evidence given by LF’s grandfather, GD, at the first trial.[14]

    ·The unedited transcript of the evidence given by a neighbour of LF’s grandparents, JF, at the first trial.[15]

    ·An edited transcript of the evidence given by LF’s grandmother, CD, at the first trial.[16]

    ·An edited transcript of the evidence given by the accused at the first trial.[17]

    [11]   Exhibit P14.

    [12]   Exhibit P16.

    [13]   Exhibit P17.

    [14]   Exhibit P18.

    [15]   Exhibit P19.

    [16]   Exhibit P20.

    [17]   Exhibit P21.

24. The accused exercised his right not to give evidence. He tendered a statement of agreed facts with attached photographs.[18]

    [18]   Exhibit D28.

25. Edited transcripts of the first interview, the second interview and LF’s cross-examination at the first trial were provided.[19] When referring to LF’s evidence throughout these reasons, I will refer to the relevant page number contained within the first or second interview, or the transcript of the cross-examination, for ease of reference.

    [19]   MFI P15.

26. At stated, this was a re-trial. Several of the same exhibits were tendered at both trials but with different exhibit numbers. In addition, it is apparent from the various transcripts of evidence tendered from the first trial, that there were numerous exhibits tendered during the first trial which were not in evidence at the trial.

27. Importantly, the series of photographs tendered as Exhibit P10 in both trials, was not tendered in the same order or form. Exhibit P10 in the first trial included 10 photographs, apparently stamped with a date and time, and apparently all taken in a bedroom built by the accused at CD’s home at Wallaroo.[20] Exhibit P10 tendered at trial contained 12 numbered photographs, with no date or time stamps and included photographs taken at both CD’s home and the accused’s home.

    [20]   Exhibit P20 at T 230.33-231.4; Exhibit P21 at T 477.34-478.21.

28. I am satisfied, from the descriptions in evidence, that some of the photographs tendered in Exhibit P10 at the first trial were also included in the bundle tendered as Exhibit P10 at the trial, but not all. For example, there is no photograph in the bundle tendered as Exhibit P10 at the trial depicting the accused’s fly partially undone, being a topic covered by way of cross-examination of the accused at the first trial, for which there was no foundation laid in the trial.

29. The photographs included in Exhibit P10 were an important part of the prosecution case at each trial. It was important evidence, which was the basis for significant aspects of CD’s evidence and cross-examination of the accused at the first trial. Analysing the evidence was made particularly difficult because of this simple prosecution oversight.

30. For example, the accused claimed to be asleep (or just starting to wake up) in some of the photographs tendered as Exhibit P10 at the first trial. He denied ever playing with LF. The prosecutor at the first trial sought to rely on the time the photographs were taken, and CD’s evidence as to particular photographs, to discredit the accused’s evidence on those topics. CD was asked about ‘photograph 2’ in the bundle and if she could recall if the accused was asleep. She said ‘No. He wasn’t. He was playing.’ Although it is possible that same photograph is included in the bundle tendered as Exhibit P10 at trial, it is similarly possible it is not.

31. During the first trial, FD, JF and the accused, were asked to mark photographs or plans to depict certain things. Those marked plans and photographs were not in evidence.

32. Similarly, despite the prosecutor and defence counsel considering the material and tendering what was said to have been appropriately edited transcripts, there was a portion of CD’s evidence included which was arguably inadmissible, as being irrelevant, pertaining to the caravan at Maslins Beach.[21] I have disregarded that evidence.

    [21]   Exhibit P20 at T 219.22-222.38.

33. Further, the accused’s evidence as tendered included cross-examination on topics apparently derived from evidence given by FD at the first trial, in circumstances where there was no evidence from FD on such topics at trial (for example evidence pertaining to a fawn Star Wagon). It included cross-examination on photographs either not in evidence or not able to be identified by me as being in evidence.

34. I have very carefully considered all of the evidence to ensure I only consider relevant, admissible evidence. I have decided this case solely on the admissible evidence before me.

    Legal Directions

    General

35. The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence as charged.

36. The accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.

37. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.

38. In these reasons, when I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. If I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find the charge has not been proven beyond reasonable doubt.

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

40. FD gave evidence via audio-visual link from interstate. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[22]

    [22] Section 13A(12) of the EA.

41. As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.

42. I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.

    Complainant’s Evidence

43. The first interview was conducted on 19 December 2015, when LF was aged 8 years and 2 months. The second interview was conducted on 3 April 2016, when LF was aged 8 years and 6 months. Audio visual recordings were made of each of those records of interview. There is no dispute that the interviews were made in accordance with s 74EB of the Summary Offences Act 1953 (SOA).

44. At the first trial, the judge admitted into evidence the audio-visual recordings of the first and second interviews pursuant to s 13BA of the Evidence Act 1929 (EA). The trial judge was satisfied that LF understood the difference between the truth and a lie and therefore had the capacity to give unsworn evidence at the time of each of those interviews. However, as SC Horley did not question LF, on either occasion, as to whether she understood the obligation to tell the truth was a serious obligation, which could have serious consequences for the accused, and it could not otherwise be inferred that she had that understanding, the interviews were admitted into evidence on the basis that LF had the capacity only to give unsworn evidence.

1. During the first trial, LF gave sworn evidence under cross-examination, by way of audio-visual link from outside the court room, in the presence of a court companion. Her evidence was recorded.

2. Prior to trial, the prosecution made application pursuant to s 13D of the EA for the court to admit into evidence an official record of the evidence given by LF at the first trial.[23] Section 13D of the EA states:

   [23]   Application for Directions dated 20 May 2021.

   13D—Court's power to admit evidence taken in earlier proceedings

   (1)If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that—

   (a)evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and

   (b)the witness—

   (i)has died; or

   (ii)has become too ill or infirm to give evidence; or

   (iii)has not, after diligent search, been found; or

   (iv)is a vulnerable witness,

   the court in the later proceedings has a discretion to admit an official record of the evidence.

   (2)An official record of evidence is a record made at the direction or with the approval of the court before which the evidence was taken and, if an audio or audio visual record of the evidence was taken at the direction or with the approval of the court, in addition to a written transcript, the official record of evidence includes the audio or audio visual record.

   (3)Before the court admits an official record into evidence in proceedings under this section, the record must be edited—

   (a)as agreed between the parties to those proceedings so as to exclude material that is not relevant to those proceedings; and

   (b)so as to exclude evidence that is inadmissible in those proceedings for any other reason.

   (4)If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings.

3. The application was opposed on the basis the prosecution had not complied with s 13D(3).[24]

   [24]   Application pursuant to r 49(1)(h) at [3] dated 24 May 2021.

4. The prosecution edited the official record of evidence, to ensure that it only contained relevant and admissible evidence in accordance with s 13D(3). Counsel for the accused agreed that the proposed edited record of evidence complied with s 13D(3) and did not request any further edits.[25]

   [25]   Transcript of hearing on 9 August 2021 at T 2.1-3, noting that further edits were subsequently agreed between the parties prior to trial.

5. The accused sought to leave to further cross-examine LF at the trial pursuant to s 13BA of the EA and provided to the court a list of ‘Topics for Cross-Examination’.

6. By ex tempore ruling delivered on 9 August 2021 and for the reasons as set out therein, I refused the accused’s application to further cross-examine LF and I granted the prosecution’s application.

7. LF’s evidence is critical to the prosecution case. The accused cannot be found guilty unless I accept LF’s evidence beyond reasonable doubt. LF’s evidence-in-chief was unsworn. I remind myself as to the reason the evidence was unsworn and warn myself of the need for caution in determining whether to accept this evidence and the weight to be given to it.[26] I have carefully scrutinised her evidence and warn myself that I must not act on it unless I am satisfied as to its truth and accuracy.

   [26] Section 9(4) of the EA.

8. Further, as stated, special arrangements were made to enable LF to give her evidence under cross-examination. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[27]

   [27] Section 13A(12) of the EA.

   Other Evidence admitted pursuant to s 13D of the EA

   Evidence of GD and JF

9. By application dated 5 May 2021, the prosecution sought leave to admit into evidence the official record of evidence given by GD and JF at the first trial. The application was opposed by the accused.

10. GD and JF both died prior to trial.

11. As to GD, counsel for the accused submitted that it was unfair to admit the evidence on the basis that GD was not cross-examined in detail at the first trial as to the circumstances in which he claimed to have watched a pornographic video with the accused, noting the accused gave evidence denying ever having watched a pornographic video with GD. Further, counsel for the accused submitted that GD’s evidence on this topic was irrelevant in any event.

12. Evidence to support a finding that the accused had an interest in and/or watched pornographic videos and/or had possession of pornographic videos and the capacity to play them at his home, is relevant having regard to particular (b) on the Information and is also relevant to the issue of the accused’s credibility.

13. At the first trial, it was specifically put to GD in cross-examination that he had not watched a pornographic video with the accused, and he maintained that he had.[28] No reason was offered as to why a forensic decision was made during the first trial not to cross-examine GD further on this topic. In my view, it is not unfair, in these circumstances, for this evidence to be admitted.

    [28]   Exhibit P18 at T 263.2-16.

14. Being satisfied that the criteria in s 13D had been fulfilled, I admitted into evidence the official record of evidence given by GD at the first trial.

15. As to JF, counsel for the accused submitted that JF’s evidence at the first trial was unreliable, as it was unclear the extent to which he had a proper understanding of English. Further, it was submitted it was unfair to admit the evidence in circumstances where JF was not cross-examined at the first trial and the accused had not been cross-examined about an occasion described by JF when he claimed to have seen the accused lying on a bed, with LF sitting on top of him.

16. JF did not request the assistance of an interpreter at the first trial. Although some of his answers indicate that he may not have fully comprehended the question put to him, this impacts on the reliability of the evidence and the weight to be afforded to that evidence, rather than the issue of admissibility.

17. Although the accused was not cross-examined specifically about the occasion described by JF during the first trial, he was asked whether he had ever been alone in a bedroom with LF at Wallaroo and denied this.[29] Further, he was asked specifically about the occasion described by JF during examination-in-chief and denied any such occasion had ever occurred.

    [29]   Exhibit P21 at T 438.12-20.

18. As I was satisfied that the criteria in s 13D was fulfilled and that the admission of the evidence was not unfair to the accused, I admitted into evidence the official record of evidence given by JF at the first trial.

    Evidence of CD

19. By application dated 2 December 2021, supported by the affidavits of Dr Mei Wee affirmed on 1 December 2021 and 7 December 2021, the prosecution sought leave to admit into evidence the official record of evidence given by CD at the first trial. The application was opposed by the accused.

20. CD was an important prosecution witness at the first trial, particularly on aspects relating to the nature of the accused’s relationship with LF and what opportunity the accused had to offend against LF.

21. By ex tempore ruling delivered on 8 December 2021, and for the reasons set out therein, I allowed the application.

    Accused’s Evidence

22. An edited transcript of the evidence given by the accused at the first trial was tendered by the prosecution. There was no objection to the receipt of this evidence.

23. The accused was under no obligation to give evidence at the first trial. I should give him whatever credit I see fit for subjecting himself to cross-examination at the first trial. I must assess his evidence in the same way as I assess the evidence of any other witness. I remind myself that if I was to reject that evidence in its entirety, that does not bolster, nor strengthen the prosecution case. The prosecution must prove each element of the offence charged beyond reasonable doubt.

24. The accused elected not to give evidence at the trial. In doing so, he was exercising his right to silence. I must not draw any adverse inference against the accused for exercising that right. He was entitled to put the prosecution to proof and if the prosecution is unable to prove its case, then the accused is entitled to a verdict of not guilty.

    Expert Evidence

25. Dr Janine Tee, Paediatrician, gave expert evidence and her report dated 30 December 2015 was tendered.[30] The ordinary rule is that a witness may speak only to the facts and not express opinions. An exception to that rule is that persons who are qualified in a particular area may express an opinion. That opinion must be relevant to their particular areas of expertise and that opinion must be based wholly or substantially on their knowledge, training or experience.

    [30]   Exhibit P26.

26. There was no dispute as to the expertise of Dr Tee and her opinion was not challenged. I accept her evidence, which I will outline in more detail hereunder.

    Complaint

27. FD gave evidence that LF told her about the alleged offending one evening in December 2015 after they had watched the television programme, ‘Dr Phil’, together. The next day, the allegations were reported to police.

28. This evidence, being evidence of the initial complaint made by LF, is an exception to the rule which prohibits proof of prior, out of court, consistent statements.

29. Complaint evidence is admitted to inform the trier of fact as to how the allegation first came to light and as evidence of the degree of consistency of conduct of the complainant. It is relevant therefore to an assessment of the reliability and credibility of the complainant.

30. Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as only LF’s evidence is able to prove that.

31. There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case.

    Forensic Disadvantage

32. The accused was arrested for the alleged offending on 19 December 2015.

33. LF’s evidence lacked specific detail as to precisely when the alleged offending occurred. When asked in the first interview when the offending first happened, she said ‘it was probably when I was really little, like 4 or something, I don’t have a good memory’.[31]

    [31]   First interview at p 6.

34. As to when the offending ceased, LF told SC Horley that it had last happened when she was six or seven. She explained that the accused had ‘tried to do it to me again’ but that she had told him to stop, or she would tell his wife, JS, and her Nanna.[32] She said it had not happened again. LF later clarified that the occasion when she had told the accused to stop, or she would tell JS and Nanna, occurred before she went to Queensland.[33]

    [32]   First interview at p 6.

    [33]   Second interview at p 13.

35. FD gave evidence that she and LF moved to live in Queensland in September 2014.[34]

    [34]   T 71.1-3.

36. On LF’s evidence, the alleged offending commenced more than four years before the date of the accused’s arrest in December 2015 and over six years before the commencement of the first trial in April 2017. The alleged offending stopped more than 12 months prior to the accused’s arrest, and more than two and a half years before the commencement of the first trial.

37. As such, there was a not insignificant period of delay between the alleged offending and the accused’s arrest, and the first trial.

38. Had a timely complaint been made, the accused may have been in a position to provide a relatively contemporaneous recollection of the nature of his interaction with LF at the time of the alleged incidents. Further, insofar as LF alleged the accused had penetrated her both vaginally and anally, these allegations, if made contemporaneously, may have resulted in medical examination of LF at a time when such examination may have assisted in determining the potential veracity of these allegations.

39. If LF had complained at a time contemporaneous with the alleged offending, the accused’s home could have been searched then to determine whether he was in possession of any pornographic DVDs and/or if there was a working DVD player (or other electronic device capable of playing DVDs) in the home, at that time.

40. In addition, LF’s evidence, generally speaking, lacked specificity, context and detail as to the occasions said to comprise the alleged unlawful sexual acts. It was submitted that as such, the accused was at particular forensic disadvantage in responding to the allegations.

41. I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of the alleged offending, to defend the allegations other than by way of a bare denial and to fully test LF’s reliability and credibility by reference to the surrounding circumstances of the alleged acts.

42. I have taken these forensic disadvantages into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offence as charged beyond reasonable doubt.

    Uncharged Acts/Discreditable Conduct

43. LF’s evidence, despite being edited, included inadmissible evidence of certain uncharged acts which comprised discreditable conduct evidence. This included:

    ·evidence given in the second interview, that the accused ‘did it to me’ or ‘did it to me again’, without clarification as to precisely what ‘it’ was, or the evidence being sufficiently linked to a question from SC Horley referable to an occasion or earlier act described, so as to identify whether the conduct comprised any of the acts as particularised.

    ·evidence given in the second interview that the accused touched her ‘at three at Eddy Street’ and touched her in the caravan park,[35] without further clarification as to the circumstances of that touching, and/or sufficient questioning so as to identify whether, in either instance, the conduct comprised any of the acts as particularised.

    ·evidence given in the second interview that the accused ‘did it to me’ when she was aged five at Good Shepherd and ‘he tried to do it to me at home … and he was like touching my legs and he tried to do it to me, to get his trust, yeah’.[36] Again, there was no further evidence clarifying precisely what ‘it’ was, and the surrounding circumstances, in order to identify whether the conduct comprised any of the acts as particularised.

    ·evidence given in the second interview of an occasion when the accused picked her up from school and drove her to CD’s home at Wallaroo on a Friday, wake her in her bedroom in the middle of the night, take her into his room and ‘do it to me there’. Despite SC Horley attempting to obtain further clarification from LF as to the circumstances of this alleged occasion, LF did not give further evidence to confirm precisely what it was that the accused did to her, in order to identify if this was one of the acts as particularised.[37]

    [35]   Second interview at p 3.

    [36]   Second interview at pp 4-5.

    [37]   Second interview at p 5.

44. This evidence was led without objection.

45. This evidence was relevant and admissible for permissible purposes, namely, to demonstrate that the accused had a sexual interest in LF, to explain the nature of the alleged relationship between LF and the accused, and why it was that LF did not make an earlier complaint. However, the evidence is only admissible if the criteria in s 34P of the EA is satisfied, and importantly only if the probative weight of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused and has strong probative value having regard to the particular issues in dispute at trial.

46. The lack of detail in this evidence meant that it was vague and therefore of limited weight. In such circumstances, I am not satisfied the criteria in s 34P(2) of the EA is met. As such, the evidence is inadmissible. I have disregarded this evidence and have not used it for any purpose.

47. However, insofar as it was possible to interpret LF’s evidence as being relevant to the charged acts, because of the way the questions and answers unfolded, notwithstanding she used the word ‘it’ in her answers, I have considered such evidence as being referable to and admissible with respect to the charged acts.

48. In the first interview, LF gave evidence that the accused ‘used to change my nappies. He said he used to change my nappies’.[38] In the second interview, LF said ‘he touched me for my whole life because … he changed my nappy and he bathed me’.[39] In cross-examination, LF said that when she aged four, she had a memory of the accused changing her nappy on the living room floor. She said she stopped wearing nappies when she was three.[40] Later LF said her Nanna (CD) had told her that the accused had changed her nappy, and that her Nanna had said he changed her on his bed in his bedroom.

    [38]   First interview at p 5.

    [39]   Second interview at p 3.

    [40]   Cross-examination of LF at T 106.2-25.

49. I am satisfied that LF has an independent recollection of the accused changing her nappy on the living room floor, rather than her evidence on this topic simply reflecting what she had learned from either the accused or CD.

50. Further, in the first interview LF said that the accused would chase her around, put her over his shoulder, ‘look at her bum’, hold her legs and blow raspberries on her belly.[41]

    [41]   First interview at pp 13-14.

51. The evidence about the accused changing LF’s nappy and about blowing raspberries on her is relevant and admissible to demonstrate the nature of the relationship between the accused and LF. Although LF described the nappy changing as an example of the accused touching her, the fact the accused changed LF’s nappy when she was a baby or toddler is not evidence of discreditable conduct. Further, Although LF described the accused as looking at her bottom when he picked her up and blew raspberries on her belly, I am satisfied what she is describing is playful behaviour, rather than conduct with a sexual connotation, such that this is not evidence of ‘discreditable conduct’.

52. If I am wrong about that, I am satisfied that the probative weight of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused and has strong probative value having regard to an issue in dispute, namely whether the accused knowingly maintained a relationship with LF during the relevant period, particularised to commence when LF was aged three.

53. I must not reason that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged. If any evidence of the uncharged acts and/or discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt.

    Lies

54. The prosecutor submitted that the accused had lied in his evidence and specifically that the accused was lying when he gave evidence that there was no working DVD player at his home during the period of the alleged offending, and when he denied having seen or watched the pornographic DVDs found at his home.

55. Whether the accused has told a lie or lies is a matter for me to determine. If I am satisfied the accused has lied, this is relevant and can be used in my assessment of the accused’s credibility. However, I cannot use this as evidence of his guilt. If I find the accused has lied, it does not add to the prosecution case. It remains for me to determine, having regard to all of the evidence, whether the evidence is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt.

    Motive to Lie

1. Although no specific motive for LF to lie was suggested by defence counsel, the accused gave evidence that about four to five months before LF moved to Queensland, she asked him to give her $200, and he did not give it to her. He said he told her that if he gave her $200, he would have to give all his kids $200, which he did not have.[42] Later, he said this conversation occurred during the same year of his arrest, namely 2015.[43]

   [42]   Exhibit P21, T 417.32-418.22.

   [43]   Exhibit P21, T 418.24-26.

2. If I was to accept this evidence, it may provide a potential motive for LF to lie, namely because she was upset with the accused for not giving her the $200 she had asked for.

3. For the reasons outlined below, I reject this evidence.

4. However, it is for the prosecution to prove the accused’s guilt.

5. There is no onus on the accused to prove that LF had a reason to make false allegations against him. Although I have rejected the accused’s evidence on this issue, that does not make LF’s evidence any more credible.

6. There may be many reasons why a witness may lie. I must not treat LF’s evidence as being any more credible or believable just because there is no evidence to provide a reason for why she may be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to LF’s credibility and reliability.

   Background – Uncontentious Evidence

7. There was a large volume of evidence explaining LF’s family circumstances, the relationship between CD and the accused, the accused’s family circumstances and the circumstances of his arrest, which was not in dispute. Similarly, aspects of the evidence relevant to whether the accused knowingly maintained a relationship with LF during the alleged period of the offending, was not disputed.

8. Having regard to the evidence which was not disputed and the business records tendered, I make the following factual findings:

   1.LF was born on 29 September 2007 and was therefore aged between 3 and 8 at the time of the alleged offending. LF had a brother, KF and a half-brother, SF, born in September 2014.

   2.Although LF lived with her mother, FD, and her mother’s partner, OF, at Enfield during (most of) the period of the alleged offending, she had a very close relationship with her maternal grandmother, CD and regularly stayed with CD.

   3.During the relevant period, CD lived at Wallaroo in a home accurately depicted in the floorplan marked C in Exhibit P2. CD was married to GD, but he worked in Leigh Creek and only returned from Leigh Creek to the Wallaroo home every six or eight weeks. On occasions, when GD was in Leigh Creek, CD’s friend, Wayne, would stay at CD’s home.

   4.CD met the accused when they were both living at the North Beach Caravan Park in Wallaroo, being some 18 to 20 years prior to the first trial.

   5.The accused was born on 4 July 1968 and was aged 39 when LF was born. He first met LF only hours after she was born, and then saw her regularly until LF and her family moved to live in Queensland in September 2014.

   6.LF returned from living in Queensland in about April 2015. For several weeks thereafter she and her family lived with CD at the Wallaroo home. LF and her family then moved to live at Northfield.

   7.During the relevant period, the accused lived with his wife, JS and his three sons, SS, LS and BS at a home in Salisbury North, the floorplan of which is accurately depicted in the plan marked B of Exhibit P2 and in Exhibit P23.

   8.At their home, the accused and JS slept in the room marked ‘Main Bedroom’ in Exhibit P23. As a small child, BS also slept in that room and later he slept in the room marked ‘Third Bedroom’. LS slept in the room marked ‘Second Bedroom’.

   9.At the time of the first trial, SS was aged 21, LS was aged 18 and BS was aged 13. All three boys suffered from Attention Deficit Hyperactivity Disorder (ADHD). LS and BS are also autistic. All three boys required medication for these conditions and took medication to help them sleep.

   10.CD suffered a stroke prior to moving to the home in Wallaroo. As such, she was required to travel to Adelaide regularly for medical appointments. Her relationship with the accused was such that CD regularly stayed at the accused’s home when she was in Adelaide for the purposes of those appointments. Indeed, the accused built an extra room at the back of his house to accommodate CD when she stayed. This was the room marked ‘Rear ‘Add-on’ Room’ in Exhibit P23. This room was accessed from inside the home via a sliding door attached to the meals area, adjacent to the living room or ‘lounge’.

   11.Similarly, the accused and his family often travelled to Wallaroo and stayed at CD’s Wallaroo home. The accused, his wife and three sons would all sleep in the same room at CD’s home, being the room marked ‘1^st B’dRm’ in the plan marked C of Exhibit P2. This room contained a double (or queen sized) bed and a bunk bed. The accused and his wife slept on the bottom bunk of the bunk bed. No one slept on the top bunk.

   12.CD slept in the Wallaroo house in the room marked ‘Mums B’dRm’ in the plan marked C of Exhibit P2. This room is directly opposite and across the hallway from the ‘1^st B’dRm’.

   13.There were occasions when LF was staying at CD’s home at Wallaroo, when the accused and his family were also staying there. In addition, there were occasions when CD took LF with her to the accused’s home and they both stayed there overnight.

   14.On occasions, the accused visited FD’s home at Enfield.

   15.CD treated the accused’s family as her family, she was a godparent to LS and BS and bought presents for the accused’s children.

   16.The accused and JS bought presents for LF.

   17.LF complained to her mother, FD, about the alleged offending on 14 December 2015. The next day, the alleged offending was reported to police.

   18.LF was first interviewed by police (SC Horley) on 19 December 2015 (first interview). That same day, police attended at the accused’s home, searched his home and seized various items of interest, including multiple pornographic DVDs. The accused was arrested that same day.

   Prosecution Case

   Complainant’s Evidence

9. As previously stated, the audio-visual record, appropriately edited of the first and second interviews conducted with LF, was admitted into evidence and comprised the complainant’s unsworn evidence-in-chief. LF gave sworn evidence under cross-examination.

   First Interview

10. The first interview was conducted on 19 December 2015, when LF was aged eight years and two months.

11. After ascertaining whether or not LF understood the difference between the truth and a lie, SC Horley reminded LF that it was necessary for her to only tell him about things that had really happened and that if she did not know the answer, that she needed to say, “I don’t know”, rather than making something up because she thought he wanted to hear an answer.

12. LF was asked what she had come to talk about. She said she was there ‘to talk about me being abused’.[44]

    [44]   First interview at p 3.

13. LF told SC Horley that she met the accused through her Nanna and that her Nanna met the accused at the caravan park.

14. She said the accused lived near a hot chip shop with his wife and three sons. She described the accused as having black hair and blue eyes and said he had burns on his arms and on his face and legs and ‘black feet’.[45] She said the accused liked to go to garage sales and that he would take her and her Nanna shopping and would ‘spend all his money’ and buy her things such as dolls, lollies, games and sometimes books.[46]

    [45]   First interview at p 11.

    [46]   First interview at p 5.

15. LF said, of the accused, ‘I think he wants to get my trust’.[47] When asked what made her think that, she said:[48]

    Well because he’s always buying me stuff and sometimes well like in my head, “why is he buying me stuff?” I think that was like he might try to make me think, like, I can trust him and I think that’s when I … something bad happens.

    [47]   First interview at p 5.

    [48]   First interview at p 5.

16. She said that the accused’s wife, JS, had red/orange hair which was short, had two teeth missing and was a big lady. JS slept in the same bed as the accused.[49]

    [49]   First interview at p 13.

17. When asked to describe the accused’s house, LF said that the front yard was very messy. She said there were wheels everywhere, dirt and Coke cans on the floor and cockroaches. She described everyone’s room as messy and said there were motorbikes and trailers everywhere outside, bricks, lemons on the floor and spiders.

18. LF was asked when she last saw the accused. She said she last saw him when he dropped off perfumes to her house and his middle son had come with him. She thought that this was some time in December.

19. SC Horley asked LF if she could remember the first time the accused abused her. She said:[50]

    No, oh, it was probably when I was really little, like four or something, I don’t have a good memory.

    [50]   First interview at p 6.

20. As to when was the last time it happened, she said:[51]

    I think while I was six or seven because … he tried to do it to me again and I said “stop, no, I’ll tell Nanna and [JS]”. That was the last time. I think he was scared because he didn’t want to go to gaol, but he is now, and yeah.

    [51]   First interview at p 6.

21. LF was asked how long ago that was and said it was probably last year when she was six, or when she turned seven or eight. She said it had never happened again.[52]

    [52]   First interview at p 6.

22. LF was asked to give as much detail as she could about what had happened to her.

23. She explained that when she was little, her Nanna used to take her to the accused’s house and that her Nanna used to stay there too. She said, as to the accused:[53]

    … he would take me into the bedroom and he would abuse me, and he would pull down my pants and, and would try to kiss me, and he would say ‘don’t tell anyone’.

    [53]   First interview at p 3.

24. She said that when everyone was asleep and she was asleep, the accused would wake her up and take her down into the lounge room and ‘put on … sex movies, people having sex’.[54]

    [54]   First interview at p 3.

25. LF said the accused would pull down her knickers and that sometimes he would grab her wrist, take off his pants and jocks and then ‘he would make me do this to him when he is doing that with his rude part’.[55] She demonstrated to SC Horley what she meant by that and from that demonstration, it was clearly an act of male masturbation.

    [55]   First interview at p 4.

26. When asked to put the action he made her do, into words, LF used the words ‘rubbing, wanking’.[56]

    [56]   First interview at p 4.

27. LF said that sometimes the accused would then lay on top of her and ‘he would put his willy in my rude part’.[57] By rude part she confirmed that she meant her vagina. She said that when this happened, she would get really scared and did not like it at all.

    [57]   First interview at p 4.

28. SC Horley asked LF if she could think of one time when the accused had pulled down her pants and tried to kiss her. She said that when she was six, the accused would bring her into the bed, in his bedroom and try to kiss her on the lips. She was asked to describe the bed. She said:[58]

    It was a queen size, or a king size maybe, like those big ones. Yeah, and it had like wood like that, I think, but it was like wobbly and it had wood on the end, going like that and then straight, so it was straight there and at the other end it was straight and it was wobbly, I think.

    [58]   First interview at p 7.

29. She said the bed had a mattress and pillows and that it had a picture up of Mary and Jesus. She said that the accused slept on the left side and JS slept on the right.

30. When asked more about how this had happened, LF said it had happened when everyone was in the lounge room or outside. When asked if it had happened one time or more than one time, she said, ‘I think twice’. [59]

    [59]   First interview at pp 7-8.

31. SC Horley asked LF about what happened when the accused would wake her up and take her into the lounge room. She said this was ‘when everyone was like dead asleep, like snoring and everything’[60] and that the accused would turn the volume down on the television. She said that only the pictures would be on the television and they were pictures of people naked and girls and boys having sex.[61]

    [60]   First interview at p 8.

    [61]   First interview at p 8.

32. When asked to describe the accused’s lounge room, LF said there was a fish tank with fish in it, pictures of the kids and of the accused and his wife getting married, a long lounge, a toybox and carpet on the ground.

33. LF was asked how the accused had put on the sex movies. She explained that he would get a disk from his television, from in his cabinet and then put it in the television.[62]

    [62]   First interview at pp 8-9.

34. LF was asked if this had happened one time or more than one time. She said:[63]

    More than, it was, I think three times.

    [63]   First interview at p 9.

35. She said when this was happening, the accused would sometimes say ‘I love you’ and she found that scary because ‘I already have a dad’. She said the accused had told her to call him ‘Daddy’.[64]

    [64]   First interview at p 9.

36. LF was asked what happened next, that is, after the accused put on sex movies. She said:[65]

    … he would … lean me on the couch and then he would lay on top of me and I can’t move because he’s heavier than me.

    [65]   First interview at p 9.

37. She said he would then ‘move up and down’ and when asked that that was called, she said ‘I think it’s humping’.[66]

    [66]   First interview at p 9.

38. LF was asked what she was wearing when this happened. She said she was in her nightie because sometimes she had to sleep over because her Nanna was there. She said the accused was wearing shorts and a blue top.

39. When LF was asked if this had happened one time or more than one time, she said ‘heaps of times’.[67]

    [67]   First interview at p 10.

40. SC Horley reminded LF about what she had said earlier about the accused grabbing her wrist and taking off his pants and jocks. He asked her to tell him what happened then. She said the accused would lay on top of her and ‘he would put his rude part in my rude part, he’d put it in my vagina’. She said that this had happened more than once.[68]

    [68]   First interview at p 10.

41. LF said the accused would say ‘I love you’ and ‘don’t tell anyone or I’ll do it harder’.[69] She said she would cry most of the time and the accused would cover her mouth so that no one could hear her.

    [69]   First interview at p 10.

42. When asked how long he would do that for, she said that she did not know, but he would do it for a while.

43. When asked what it was that made him stop, LF said that sometimes he could hear someone come, and listed BS, LS, SS, JS and Nanna. She said the accused would get off her and say ‘sshh’.[70]

    [70]   First interview at p 11.

44. SC Horley asked LF to describe, as clearly as she could, the last time the accused had put his rude part in her vagina. She said that it was when she was about six or seven but that she could not really remember. It had happened when she went to ‘their house’.[71] She described the accused’s son, LS, as annoying her. She said:[72]

    … I went up in another room, [the accused] came with [BS}, his younger son and Nanna was asleep, Grandpa was asleep and I was awake and they were knocking at the door ‘cos they knock hard like policeman, so yes, then it stopped and um, Grandpa woke up, he opened the door and he was like “What the hell are you doing here” and then [the accused] said something that, that I didn’t – I forgot what it was, and I was like “Thank you Grandpa”. Well he said something to him because they didn’t know that this was happening, so yes.

    [71]   First interview at p 10.

    [72]   First interview at p 10.

45. SC Horley asked LF how many times the accused had grabbed her wrist, taken off his pants and jocks and made her rub his private part. She said this had happened twice and said, ‘and then sometimes he would do it to me’.[73] She said when that happened, she felt really scared and wanted to tell people that he was doing it to her as she did not want to get hurt more.[74]

    [73]   First interview at p 11.

    [74]   First interview at p 11.

46. LF told SC Horley that the accused would rub her ‘minnie’ and ‘sometimes I would cross my legs really hard so he can’t do it’.[75] She explained that ‘minnie’ was another word for vagina.[76]

    [75]   First interview at p 12.

    [76]   First interview at p 12.

47. When asked how she felt when the accused did that, LF said:[77]

    … I felt scared and I felt like I was being raped. But I wasn’t bleeding and I always thought when he did it to me, he did everything to me, like I, I would think that I’m pregnant ‘cos mum’s, I asked mum when she did know, “Could you get pregnant when you are six or eight, mum?” and she, well I think one time she said yes, but…and then one time when she knew, I asked her again and she said no, and I always thought it was because of my weight and …

    [77]   First interview at p 12.

48. Towards the end of the interview, SC Horley asked LF if there was anything else that she wanted to tell him about. She said:[78]

    Mm, I was thinking of it before I just need to remember it again. And he would put me over his shoulder and he would look at my bum.

    [78]   First interview at p 13.

49. When asked more about this, LF described the accused as holding her legs and blowing raspberries on her belly. She said she would giggle because it was ticklish.

    Second Interview

50. SC Horley conducted the second interview with LF on 3 April 2016, some three and a half months later. SC Horley asked LF if she understood the difference between a truth and a lie and she provided an example to confirm that she did.

51. As outlined earlier, there were several occasions during this interview when LF described the accused touching her, without giving any specific detail, or doing ‘it’ to her, again with insufficient detail to know if she was referring to a charged act. As stated earlier, insofar as that evidence cannot be properly understood as describing one of the alleged unlawful sexual acts, that evidence is inadmissible and I have disregarded it.

52. LF took with her to the interview three pages of notes that she had written down, to remind her of things that had happened. The notes were not in evidence. In the notes LF had described the accused as ‘H’ and/or ‘snake attack’. She explained that she called the accused ‘snake attack’ because ‘we hate snakes and they attack people’.[79]

    [79]   Second interview at p 4.

53. LF was asked by SC Horley what she had written down in her notes.

54. Referring to her notes, LF said:[80]

    … he would take me and make me watch sex tapes and put his finger up my bum and it really hurt and I said stop.

    [80]   Second interview at p 3.

55. She said that she did not really want to go to her Nanna’s house because it happened at her house.

56. LF then described to SC Horley several dreams she had had, including one where the accused had tried to beat her up, threw her in the trees and tried to choke her. She described another dream which involved time travel. She said that in that dream she was drugged and looked like she was dead. She said, ‘he’ was just doing it to me, and later that ‘he’ had turned into a monster. It is impossible to determine from this whether the ‘he’ referred to by LF was the accused, or another real person or an imaginary person.[81]

    [81]   Second interview at p 4.

57. SC Horley confirmed with LF that those things she had just described had occurred in a dream, but that the other things she had said that the accused had done to her, as recorded in her notes, had actually happened.[82]

    [82]   Second interview at p 4.

58. LF described what she could remember about the accused picking her up from school when she was aged five and at Good Shepherd. She said sometimes ‘they’ would pick her up from school and take her straight to Wallaroo and said this had happened twice.[83]

    [83]   Second interview at p 4.

1. She thought it was on a Friday and she was not very excited to see them. She described the bell ringing and going outside and seeing them walking, with their kids behind them. She said their car was very messy and it would take about an hour to drive to Wallaroo. She described the car as a blue car, not a ute ‘but it’s one of those long cars with the big things, the big backs’.[84]

   [84]   Second interview at p 6.

2. LF was asked what happened after they arrived at Wallaroo. She said that she would watch TV and after that:

   Um had a shower but it was getting pretty dark anyway so I had a shower but I had to have a bath with [BS] and it’s just just really weird because he tries to touch my um vagina and I’m just like “stop stop” and then I get out like earlier and cause snake attack’s in there and he just it’s just he just like he checks on us every day I do this, I go like that to not see my yeah and um um then I get out and I get dressed in my room, me and my mum’s room, and nanna sleeps in the lounge but sometimes I sleep on the couch but I only sleep on the couch when they’re not there because it’s really easy bait to umm go in the lounge and just wake me up but it would but I sleep in my bed because if he came in he would open the sliding door and that would make a noise and it’s really dark in there so he wouldn’t see and they have like clothes toys on the floor umm but if he if I was sleeping on the lounge it would be really hard to get to because it’s a rocking chair and it would make like “eeee” or like yeah that and sometimes I would just just go get iceblock and he’s right behind me going to the toilet and then when I go get my second iceblock he’s just there behind me and it’s just really weird it’s like he’s a devil just following me around everywhere and I’m pretty afraid of that.

3. LF explained that it was BS who had tried to touch her vagina when she was in the bath, that BS had never actually touched her or abused her, but the accused had.

4. SC Horley asked LF to tell him about her Nanna’s house. She described the house as having four bedrooms and described a ‘top room’ where ‘they’ sleep. She described watching a television in that room with LS and BS and said there was both a bunk bed and a big bed in that room.[85]

   [85]   Second interview at p 9.

5. SC Horley asked LF if there was a particular time that she could remember the accused ever having abused her, for example, on an important day.

6. LF recalled going to the accused’s home with her Nanna when it was either LS or BS’s birthday. She said the accused ‘did it to me then I think’.[86] She went on to give further details as to what occurred on that occasion.

   [86]   Second interview at p 10.

7. She described there being balloons and a frog cake, made of ice cream, with chocolate frogs inside it and provided details about other food served at the party. She said she did not want to eat the cake because the plates were dirty, but she ate it on a paper towel.

8. She described in some detail being in the bath with BS and playing hairstyles in the bath with him. She said that after the bath, she and BS watched cartoons in the lounge. She said it was time for BS to take his pills and go to bed. The accused came into the room and said let’s go to my room to watch cartoons. She said he grabbed her hand and she grabbed BS’s wrist ‘because I did not want to be the only one up there’.[87] She said:[88]

   … then when [BS] went to sleep because they were probably sleeping pills and he did it to me then and then I must have fell asleep and he woke me up in the middle of the night and it was just weird because I could just see this Jesus Jesus here and there was Mary there and there was this big cross there and I could just I was just thinking why why would you have Jesus there if like you’re doing something bad and he woke me up [JS] was asleep and she was sleeping like that and I was sleeping like that too and he was sleeping like that and then he woke me up and made me turn over and did it to me there and yeah.

   [87]   Second interview at p 12.

   [88]   Second interview at p 12.

9. When asked by SC Horley, what the accused had done to her, she said:[89]

   So he would when umm I tried to go to sleep with [BS] and then he would just wake me up and then he would … just pull down my undies and be like what are you doing I’m trying to sleep and he would just put his finger up my bum and I think it felt like I was like dying, it’s not dying but it really hurt and then when I got older mum told me you could get that’s how you get raped and like you could bleed from your bum and then I was a bit scared because I was scared he was I was going to start bleeding and then after that umm he would pull like every time someone came he would pull up my undies and then he would just sit up and just pull out his book or go on his phone and then I would go back to sleep and then JS took BS to bed I mean [the accused] did and then JS got into bed and then everyone went home and Nan was sleeping on the lounge not on the lounge … in SS’s room…and she’s sleeping in his bed and then … [the accused] will get in the bed and I’ll be asleep so I don’t know what’s going on and then when [JS’s] asleep the TV’s off he would, he would say [L ,L, L] and just go like this to wake me up and then he would do that he would do it to me again but he would put his willy up my bum and it would really hurt just like his finger would ...

   [89]   Second interview at p 13.

10. When asked by SC Horley to tell him more about the accused putting his willy up her bum, she said:[90]

    … it’s like … I just pushed out the biggest poo and then it’s just coming back in my … stomach like my bum.

    [90]   Second interview at p 13.

11. When LF was asked how many times that had happened, she said:[91]

    … mostly every time we go there but not every time because one time when we were leaving to go to Queensland … he didn’t do it to me then but when we but before that I said he tried to do it and I was like I just standed at the door and I was just like [H] stop or I’ll tell [JS] and Nanna and then he stopped and it never happened again.

    [91]   Second interview at p 13.

12. LF was asked when this had occurred. She said she thought it was when they were leaving to go to Queensland.

13. Near the end of the interview, SC Horley asked LF whether there was anything else that she wanted to talk to him about. She said:[92]

    …he used to cover my mouth so I couldn’t scream.

    Cross-examination

    [92]   Second interview at p 14.

14. LF was cross-examined in April 2017 when she was aged approximately nine and a half and in Year 4 at school. The trial judge was satisfied she had the ability to give sworn evidence.

15. LF was cross-examined about the contents of the notes she had brought with her to the second interview. She explained that as she knew she was going for the second interview her mother had asked her to write down things that she had remembered. She said she was on her own when she wrote down the notes and that the notes came from her own head. She said the things she had described in the notes, had really happened.[93]

    [93]   Cross-examination of LF at T 117.15-30.

16. LF was asked what were the sort of things that the accused would buy her. She said the accused would take her to the shop and buy her dolls and lollies and chocolates. She agreed that these gifts would be bought on special occasions and that JS would be with them when they went to the shops. She said these gifts were also given on ordinary occasions, and that sometimes both the accused and JS gave her those gifts. In response to a question from the trial judge, LF confirmed that there were times when the accused bought her lollies and chocolates, on ordinary occasions, when JS was not there.[94]

    [94]   Cross-examination of LF at T 105.3-37.

17. LF was asked about what she had told SC Horley about the accused changing her nappies when she was little. She said she had an actual memory of the accused changing her nappy and had also been told about it by her Nanna. She said she remembered the accused changing her nappy on the living room floor carpet.[95]

    [95]   Cross-examination of LF at T 106.2-33.

18. LF was asked questions about what she recalled of the accused’s lounge room. She was sure there was a fish tank in that lounge room and that every time she had been to the accused’s house, there was a fish tank in that room. She said she was certain of that.[96]

    [96]   Cross-examination of LF at T 108.33-109.12.

19. LF was also asked questions about the type of mattress that was in the accused’s bedroom. She was asked whether she knew the difference between a waterbed and a normal foam spring mattress and she said yes. She said that the type of mattress on the accused’s bed was a foam and spring bed mattress, although she said that that was something about which she could be mistaken.[97]

    [97]   Cross-examination of LF at T 110.2-10.

20. LF was cross-examined about her description of the accused. She explained that when she described the accused as having black feet, it was because he does not have baths and his feet were black from walking in the dust.[98]

    [98]   Cross-examination of LF at T 110.34-111.2.

21. She was asked to describe where the burns were on the accused’s arms. LF recalled the accused was burnt on both arms and in particular, pointed to her left arm just below the elbow. She could not recall where on his right arm he was burnt.

22. In addition, LF demonstrated that the accused had burns on the inside of his right leg, about 10cm above his ankle. When asked to confirm whether the burns were on his right leg, she said, ‘I’m pretty sure not’ and said the burns were just on his left leg.[99] As to whether she had seen any other burns on the accused, she said:[100]

    He had some on his chest, I’m sure and his finger and that’s all I remember.

    [99]   Cross-examination of LF at T 112.1-4.

    [100] Cross-examination of LF at T 112.8-9.

23. LF was asked about telling SC Horley that she had felt scared and as if she was being raped. She was asked what the word “rape” meant to her and said: [101]

    Well, it means to me that it hurts.

    [101] Cross-examination of LF at T 114.11.

24. She said she had first learnt about the word ‘rape’ when she and her mother were watching ‘Dr Phil’. When asked when that was, she said it was after she had spoken to SC Horley but she could not recall whether it was after the first or second time she had spoken to him. She then agreed that she must have seen that ‘Dr Phil’ show before she used that word.[102]

    [102] Cross-examination of LF at T 114.38.

25. LF was asked what she could remember about ‘this Dr Phil show’ and what was on ‘that show’. It is uncertain whether by that question, counsel for the accused was asking LF to describe what was on the show the day she discussed the word ‘rape’ with her mother, or what was on the Dr Phil show that she saw immediately prior to making the complaint to her mother.[103]

    [103] Noting that the effect of all of the evidence was that LF had watched the programme ‘Dr Phil’ with her mother, on more than one occasion.

26. LF said that there was a girl on the show who had been sexually assaulted and raped and got pregnant. She said the girl was 25. When asked what sorts of things that girl had described happening, LF said:[104]

    She said that he covered her mouth and … he had, as I said, sexually assaulted her, but he did it hard, and it hurt her.

    [104] Cross-examination of LF at T 115.16-18.

27. Counsel for the accused asked LF what she meant when she used the words “sexually assaulted”. LF said that she knew that assaulted meant someone being punched in the face by someone but she could not really explain what “sexually” meant.[105]

    [105] Cross-examination of LF at T 115.22-25.

28. Counsel for the accused put a proposition to LF that the accused and JS had only picked her up from school once and LF agreed with that. Counsel for the accused then suggested that on that one occasion, the accused and JS had taken her to her mother’s home and not to Wallaroo. LF said she was not sure about that.[106]

    [106] Cross-examination of LF at T 117.31-118.3.

29. LF was asked about the party she had described to SC Horley were there was an ice cream cake with chocolate frogs inside it, hot dogs and lemonade. She was asked whether she went to her own home to sleep after that party, rather than stay at the accused’s house and said that she was not sure.[107]

    [107] Cross-examination of LF at T 118.13-16.

30. LF was also asked about what she had told SC Horley about a conversation she had with the accused just before she left to go to Queensland, namely, that if he did not stop, she would tell JS and Nanna. LF denied that she could be mistaken about that conversation having happened.[108] She denied that she had ever asked the accused for any amount of money before going to Queensland or that she had ever asked him for $200.[109]

    [108] Cross-examination of LF at T 119.5-12.

    [109] Cross-examination of LF at T 119.26-31.

31. LF was shown a floor plan of the accused’s house and identified the accused’s bedroom as the one marked ‘Main Bedroom’.[110] She said there was one bed in in that room and described it as a king bed that two people could sleep in.

    [110] Exhibit P23.

32. LF said that she would go with her Nanna to the accused’s home and agreed that she would sleep over at the same time as Nanna and that sometimes, Nanna would bring a friend with her called Wayne.

33. When asked how many times she had slept over at the accused’s house, LF said that she did not really know, but it was a lot because her Nanna was good friends with them. She said Wayne was not there all the time and when asked how many times he had been there, she said five times.[111] When Wayne was there, Wayne and Nanna would sleep in the room marked on the plan as ‘Rear ‘Add-on’ Room’.[112]

    [111] Cross-examination of LF at T 123.36.

    [112] Cross-examination of LF at T 123.38-124.2.

34. LF said that sometimes she would sleep in the bed with Wayne and Nanna. In response to a question from the trial judge as to where she slept when she was not sleeping with Wayne and Nanna, LF said, ‘with [the accused] and [JS]’.[113]

    [113] Cross-examination of LF at T 124.12.

35. LF was asked some questions about sleeping in bunk beds when she was at Wallaroo. She described there as being a top bunk and a bottom bunk and agreed with the proposition that the top bunk was used to store bags and junk and things and that no one would sleep in that top bunk. She agreed that it had been tied up with wire to hold it up because it was not very safe.[114]

    [114] Cross-examination of LF at T 124.20-36.

36. Counsel for the accused asked LF if she ever had an injury to her vagina as a result of being abused by the accused and she said yes.[115] When asked what had happened, she said, ‘[w]ell, he was rubbing my vagina and that really hurt’.[116] She said there was never any blood.[117] She was asked whether it hurt on the inside or outside of her vagina. She said it hurt on the inside. She said:[118]

    He was rubbing on the outside but I could feel it, because the pressure of his hand rubbing on the outside hurt my inside.

    [115] Cross-examination of LF at T 127.12.

    [116] Cross-examination of LF at T 128.8.

    [117] Cross-examination of LF at T 128.11.

    [118] Cross-examination of LF at T 128.23-25.

37. LF was asked about what she had told SC Horley about the accused putting his rude bit in her vagina. She was asked where he put his rude bit, and said, ‘in the middle’. She clarified that by this she meant that he put it inside of her, rather than in between bits of skin. She was sure that had happened.[119]

    [119] Cross-examination of LF at T 131.22-32.

38. The trial judge asked LF whether she ever seen the accused’s rude bit when this happened and she said no.[120]

    [120] Cross-examination of LF at T 131.36.

39. She was asked to describe what was happening at the time the accused put his rude bit in her vagina. LF said she was on a bed lying down on her back. She said the accused pulled his pants down and put his penis into her vagina and that the covers were over his back, so she could not see his penis.

40. LF said she could feel something in her vagina and she thought it was his penis because it was too big to be his finger. She said it hurt and when asked what she meant by that, she said, ‘it just didn’t feel nice’.[121] She did not have any bleeding. She said it happened more than once and she had a memory of another two occasions when it happened, again at the accused’s house. She said she was five both the first time and the last time it happened.[122]

    [121] Cross-examination of LF at T 132.28.

    [122] Cross-examination of LF at T 131.34-133.21.

41. The trial judge also asked LF whether she saw the accused’s penis when he put his penis in her bum and she said no.[123] She said she believed it was his penis because ‘it was too big’.[124]

    [123] Cross-examination of LF at T 133.38.

    [124] Cross-examination of LF at T 134.4.

42. LF said that when the accused put his penis in her bum, ‘sometimes he would go too far and that would really hurt’.[125] As to whether she had ever suffered an injury from the accused putting his penis in her bum, she said yes, and that her ‘bum would be numb’.[126]

    [125] Cross-examination of LF at T 128.33-34.

    [126] Cross-examination of LF at T 129.1.

43. LF was cross-examined about where she had been when watching pornography with the accused. LF gave evidence that this occurred in the lounge room at the accused’s house. She said it had never happened at Nanna’s house or at anyone else’s house. She said that she had never watched sex tapes with someone other than the accused and she had never seen sex tapes or a box which had sex tapes in it at either her Nanna’s house or her mother’s house.[127]

    [127] Cross-examination of LF at T 129.31-37.

    Complainant’s Mother

44. The complainant’s mother, FD, was called to give evidence, primarily in relation to the initial complaint but also to provide other background evidence. FD gave her evidence via audio-visual link from interstate.

45. FD explained that LF had an older brother, K and a younger brother, S, who was born in July 2014.[128] She told the court that she was engaged to her partner, OF and had been with him for about 9 to 10 years. She explained that LF had only met her father when she was a baby, although she had had contact with him over the phone.[129]

    [128] T 69.4-8; T 89.22-24.

    [129] T 68.12-18.

46. FD gave evidence that she had known the accused for approximately 20 years and had met him through her mother, CD. She explained that her mother treated the accused and his family like they were her family and in cross-examination, she agreed that similarly, the accused treated her mother and her family like his family.[130]

    [130] T 73.15-19; T 83.33-35.

47. FD said she saw CD and the accused together on hundreds of occasions, including at CD’s house in Wallaroo, the accused’s house in Salisbury North and at her own house.

48. She said that when the accused was at CD’s house, he would generally be there with his whole family, that is, his wife, JS and their three children.[131] She described each of the accused’s children as having special needs, such as autism, and said that BS had issues with communication and was very difficult to understand.[132]

    [131] T 73.30-37.

    [132] T 84.3-23.

49. FD said that her mother lived in Wallaroo but that when her father, GD, was alive and was working, he lived in Leigh Creek where he worked in the coal mine. She explained that her father worked four weeks on and four weeks off and as such only came down to Wallaroo every six weeks or every couple of months.[133] She said that this was the case from when LF was born, until GD retired in November 2015, when the mine shut.[134]

    [133] T 70.1-6.

    [134] T 70.7-30.

50. FD said that LF had lived all of her life in South Australia except for a period from September 2014 to April 2015, when the family moved to live in Queensland.[135] When they returned from Queensland they lived for a short time with CD at Wallaroo while they were looking for a house and then moved to Northfield in or about June or July of 2015.[136]

    [135] T 70.31-71.6.

    [136] T 71.7-17.

1. LF said ‘I think twice’, when asked how many times this had occurred. Given that response, and the fact she did not also say that this happened more than once, there is a reasonable possibility that this did only happen on one occasion.

2. I am satisfied that in attempting to kiss LF on the lips on one occasion, the accused committed an unlawful sexual act, namely the offence of attempted indecent assault. I am satisfied that the accused intentionally took steps to apply force to LF, at a time when she was under the age of 17 years and in circumstances which were indecent having regard to reasonable contemporary standards. Had those steps not been interrupted by LF saying stop, the accused would have committed the offence of indecent assault.

3. Particular (b) on the Information alleges the accused caused LF to watch pornography on more than one occasion. LF’s evidence-in-chief as to this particular is primarily contained in the first interview, noting that LF also told SC Horley in the second interview that the accused showed her sex tapes.

4. I reject the accused’s evidence that he had no interest in pornographic DVDs and the evidence he gave to attempt to explain both when the pornographic DVDs found by police came into his possession and why they were still in his possession on the date of the police search. I reject the accused’s evidence that there was no device capable of playing DVDs in his house during the period of the alleged offending. I accept GD’s evidence that he watched a pornographic movie with the accused at the accused’s house, and that the movie was on a disc burned for GD by the accused from his own pornographic DVD.

5. I am satisfied that during the period of the alleged offending the accused was in possession of at least one pornographic DVD and that there was a working device in the accused’s house capable of playing DVDs.

6. I have carefully considered LF’s evidence as to the circumstances in which she claims the acts occurred, namely in the lounge room of the accused’s house when everyone else was asleep. I accept CD’s evidence that when she was at the accused’s house she slept in the ‘Rear ‘Add-on’ Room’. This room was accessed via a sliding door from the meals area, being adjacent to the lounge room.

7. The photographs in Exhibit P3 show that sliding door to also have a safety screen attached and curtains, meaning there was a degree of privacy between the ‘Rear ‘Add-on’ Room’ and the adjacent meals area, and, of course, the lounge room. I accept LF’s evidence that the accused would turn the sound down on the television. Although CD was a light sleeper and at times her sleeping pills did not work well, causing her to change medication, I am satisfied that there was the opportunity for the accused to offend, in the lounge room, in the manner as described by LF, without CD being aware of it.

8. I am satisfied that at times, LF slept in the accused’s bed, with JS, when she stayed at the accused’s house, rather than always sleeping in the ‘Rear ‘Add-On’ Room’ with CD.  JS took sleeping pills. Sometimes BS also slept in that room. I accept CD’s evidence that all three of the accused’s children took medication to sleep and suffered varying degrees of intellectual disability.

9. In the circumstances, I am satisfied there was the opportunity for the accused to wake LF and take her from his bed, without JS necessarily stirring. I am satisfied that there was the opportunity for the accused to wake LF and take her from his bed into the lounge room, without others in the house waking and/or getting up to investigate what he was doing.

10. I accept LF’s evidence that she had never seen or watched sex tapes at CD’s house or at any house (other than the accused’s house), and that she had never watched sex tapes with someone other than the accused. I further accept LF’s evidence that she had never seen a sex tape or a box containing a sex tape at CD’s house or FD’s house, being consistent with the evidence given by CD and FD on this topic.

11. I accept LF’s evidence that sometimes when she was at the accused’s house, and everyone was asleep, the accused would wake her up, take her into the lounge room and put on sex movies. I am satisfied that it is not a reasonable possibility that LF dreamt this, or that she made this up or that she watched pornography with someone else and is now mistaken that the person was the accused.

12. I accept LF’s evidence, and find beyond reasonable doubt, that the accused caused her to watch pornographic movies with him in his lounge room at Salisbury North.

13. LF gave evidence that this occurred more than once. I am satisfied the accused made LF watch pornography on more than one occasion, when she was aged under 17 years. I am satisfied that these acts occurred in circumstances of gross indecency, having regard to ordinary contemporary standards.

14. I am therefore satisfied that the accused engaged in an unlawful sexual act, namely gross indecency, on more than one occasion.

15. Particular (c) on the Information alleges that the accused caused her to touch his penis on more than one occasion. LF’s evidence-in-chief as to this particular is contained in the first interview. LF said that when she was in the lounge room with the accused watching sex movies, and everyone else was asleep, sometimes he would pull down her knickers. She then said that sometimes he would grab her wrist, take off his pants and jocks and make him rub or ‘wank’ his ‘willy’, when he was ‘doing that with his rude part’.[415] She demonstrated the action.

    [415] First interview at p 4.

16. LF said, quite confidently, that this happened twice.[416]

    [416] First interview at p 11.

17. LF was not specifically questioned about this alleged conduct during the second interview, which primarily focussed on other matters. Again, the fact she did not raise this specific allegation in the second interview does not cause me to have a reasonable doubt as to the reliability and credibility of her evidence pertaining to this allegation, having regard to her age and the way that second interview unfolded.

18. During cross-examination, LF maintained that the accused had made her shape her hand and ‘wank’ his penis.

19. I refer to my observations and findings at paragraphs 602-605 herein.

20. I accept LF’s evidence, and find beyond reasonable doubt, that the accused made her touch his penis on more than one occasion, while they were in the lounge room at his house, and everyone else was asleep. I am satisfied that LF is not making this up, or that she is mistaken in her recollection (either of what occurred or that it was the accused and not someone else who made her do this), or that what she is recalling is a dream rather than from actual life events.

21. I am satisfied that by this conduct, the accused committed the offence of indecent assault, in that he intentionally applied force to LF’s wrist, and made her engage in conduct which was indecent having regard to reasonable contemporary standards, and that he did so on more than one occasion.

22. Particular (d) on the Information alleges that the accused rubbed his body on LF’s body on more than one occasion. LF’s evidence-in-chief on this issue is contained in the first interview. SC Horley asked LF what happened next when the accused put on sex movies in the lounge room at his house. She said that the accused would lean on her on the couch, lay on top of her and move up and down. She described this as ‘humping’. She said she could not move because he was heavier than her. She was wearing her nightie and the accused was wearing shorts and a blue top. She said this happened ‘heaps of times’. [417]

    [417] First interview at p 9-10.

23. LF was then asked, ‘What happened then’. She said that the accused would lay on top of her and put his rude part into her vagina (particular (e)).

24. In response to a question put in cross-examination, namely, ‘Did [the accused] push himself on you and rub himself on you when he had clothes on and you didn’t’, she said ‘No’. This answer was consistent with what LF said about this conduct in her first interview, namely she was wearing her nightie at the time.

25. LF was never asked in cross-examination whether there was a time when the accused rubbed himself on her at a time when she had her nightie on.

26. I have carefully considered LF’s evidence on this issue. Again, this is offending said to have occurred in the accused’s lounge room and I refer to my previous findings as to the opportunity for the offending to occur. The evidence LF gave that she was unable to move because the accused was heavier than her, was compelling. I am satisfied that LF is not making this up, or that she is mistaken in her recollection (either of what occurred or that it was the accused, and not someone else, who did this to her), or that what she is recalling is from a dream or dreams rather than actual life events.

27. I accept LF’s evidence, and find beyond reasonable doubt, that the accused rubbed his body on her body, by lying on top of her and moving up and down, at a time when they were both wearing clothes and lying on the lounge, in the lounge room at the accused’s home. I am satisfied this happened on more than one occasion.

28. For reasons as explained hereunder, I cannot exclude as a reasonable possibility that LF is mistaken when she said that, on the same occasions, the accused put his willy in her vagina. I am satisfied however that LF has a genuine and accurate recollection of the accused lying on top of her, and rubbing his body on hers, when her nightie was on, on more than one occasion.

29. It follows, that I am satisfied beyond reasonable doubt, that on more than one occasion, the accused committed the offence of indecent assault against LF, by intentionally applying force to her, that is, by rubbing his body on top of hers, when they were both clothed and that the touching was accompanied by circumstances of indecency, having regard to reasonable contemporary standards.

30. Particular (e) alleges that the accused inserted his penis into LF’s vagina on more than one occasion. LF spoke about this alleged conduct in both of her interviews and was cross-examined on these allegations.

31. As previously stated, in the first interview, LF said that when she was in the accused’s lounge room with the accused, watching sex movies, he would lie on top of her on the couch, and move his body up and down on top of hers. When asked what happened next, she said he would put his rude part in her vagina, and that this happened more than once.

32. LF was asked if she could remember when he last did that, or if she could remember very clearly a time he did that. She went on to describe an occasion when she was about six or seven and LS was annoying her. She said:[418]

    … I went up in another room, [the accused] came with [BS] his youngest son, and Nanna was asleep, and Grandpa was asleep, and I was awake and they were knocking at the door ‘cos they knock hard like policeman, so yes, then it stopped and… Grandpa woke up, he opened the door and he was like ‘What the hell are you doing here’ …

    [418] First interview at p 10.

33. Thereafter, SC Horley asked several questions wherein he asked LF expressly what happened when the accused put his rude part in her vagina. She said he would say ‘I love you’ and ‘don’t tell anyone or I’ll do it harder.’[419] She described crying and said the accused would cover her mouth so no one could hear her.

    [419] First interview at p 10.

34. I am satisfied that, by the evidence set out in paragraph 628 herein, LF was explaining an occasion when she believed the accused had put his penis in her vagina (being the effect of the question asked of her).

35. In the second interview, there is no occasion obviously identifiable as an occasion wherein LF is describing the accused inserting his penis into her vagina.

36. During cross-examination, LF was asked questions specifically about this particular. She said the accused put his rude part into ‘the middle’ of her vagina and confirmed that by this she meant he put his rude part inside her vagina, rather than in between bits of skin. She was sure this had happened.[420]

    [420] Cross-examination of LF at T 131.22-32.

37. In further questioning by the trial judge, LF said she did not see the accused’s penis at the time. She said she was on a bed, lying on her back. The accused took his pants off, put his penis in her vagina, and when he did that, the covers were over his back. She said she felt something in her vagina, and she thought it was a penis, even though she could not see it, because it was too big to have been his finger. When asked if it hurt, she said yes. She said it did not cause her pain but ‘it just didn’t feel nice’.[421] There was no bleeding. She said she could recall this happening when she was five, and she had a memory of another two occasions, other than the one she described, where this happened. She said it happened at the accused’s house.[422]

    [421] Cross-examination of LF at T 132.28.

    [422] Cross-examination of LF at T 132.32-133.21.

38. The act described by LF to the trial judge must have occurred somewhere other than the accused’s lounge room, because LF described being on a bed. She did not, in response to the trial judge’s questions, refer to any time this happened when she was lying on a lounge.

39. When asked in cross-examination about whether she had ever suffered an injury to her vagina from what the accused had done to her, she said, ‘Well he was rubbing my vagina and that really hurt’.[423] She did not describe an injury from any vaginal penetration as such.

    [423] Cross-examination of LF at T 128.8.

40. Dr Tee’s evidence was that penile or digital penetration through the hymen could be expected to cause genital injury with pain and bleeding in children of LF’s age, albeit sometimes the bleeding could be minor and not be recognised by young children. Further, Dr Tee noted it was common for young children not to be able to tell the difference between penetration of the labia and penetration into the vagina.[424]

    [424] Exhibit P26 at p 2.

41. As LF did not see the accused’s penis during these alleged acts, it is possible he used his finger to penetrate her. However, given the absence of LF suffering any pain or noticeable bleeding, it is also possible that what LF has described is penetration of the labia, rather than into the vagina, noting that any such penetration is still an act of sexual intercourse.

42. I have carefully scrutinised LF’s evidence. I believe LF when she says she has a genuine recollection of the accused putting his penis in her vagina and consider it likely that that the accused did penetrate her labia majora, and/or her vagina, either with his finger or his penis.

43. However, as stated, the evidence given by LF during examination-in-chief identifiable as an act of penile vaginal intercourse, is said to have happened immediately after the accused lay on her on the lounge, in the lounge room and moved his body up and down on top of her. In cross-examination, LF gave evidence she recalled three occasions of penile vaginal intercourse and from the manner in which that evidence unfolded, her recollection was of those acts having occurred on a bed.

44. Further, LF did not describe pain or bleeding associated with any such act, being something Dr Tee would have expected in circumstances of either penile or digital penetration of the hymen. It is possible that LF is mistaken and that she did suffer bleeding at some time and did not notice it, again being something referred to by Dr Tee. It is also possible that what LF thought was penetration of the vagina, was penetration of the labia majora. However, the very fact that there are a number of possible ways of interpreting LF’s evidence on this particular, causes me to have a reasonable doubt.

45. As such, after carefully scrutinising LF’s evidence and having regard to all of the evidence, I simply cannot be satisfied beyond reasonable doubt that the accused inserted his penis into LF’s vagina on more than one occasion.

46. Particular (f) on the Information alleges that the accused touched LF’s vagina on more than one occasion. LF’s evidence-in-chief with respect to this allegation is contained in the first interview. LF said that sometimes when he made her rub his private part, he would do it to her too. Having regard to the manner in which this evidence unfolded, I am satisfied LF was describing this conduct as having occurred in the lounge room of the accused’s house.

47. LF explained that the accused would rub her ‘minnie’, that he would use his hands and ‘sometimes I would cross my legs really hard so he can’t do it’.[425]

    [425] First interview at p 12.

48. LF was not specifically questioned about this allegation during the second interview. The fact she did not raise this specific allegation in the second interview does not cause me to have a reasonable doubt as to the reliability and credibility of her evidence pertaining to this allegation, having regard to her age and the way the second interview unfolded.

49. In cross-examination, LF maintained that the accused had rubbed her vagina. LF also described how when the accused did this it would hurt her vagina. As she explained in cross-examination, when she told SC Horley that she felt she was being raped when this happened, she thought the word ‘rape’ meant ‘that it hurts’.[426]

    [426] Cross-examination of LF at T 114.4-11.

50. The evidence given by LF as to how she felt when the accused rubbed her vagina, and how she tried to cross her legs to stop him from doing it, was compelling. I believe LF and am satisfied that there is no reasonable possibility that she is making up these allegations, or mistaken about them, or is recalling dreams, rather than actual events.

51. I accept LF’s evidence, and find beyond reasonable doubt, that the accused touched her vagina, by rubbing it with his hands. I exclude as a reasonable possibility any suggestion that the accused was physically incapable of doing this because of any injury or burns to his hands or fingers. I accept CD’s evidence that the accused would tickle LF all the time. In addition, the accused gave evidence he was a truck driver, which requires a degree of manual dexterity. I am satisfied the accused was physically capable of using his hands to touch LF on the vagina.

52. Further, although LF was not asked how many times the accused touched her vagina, having regard to the specific language used by her, I am satisfied that this occurred on more than one occasion.

53. When the accused touched LF’s vagina, that conduct constituted the offence of indecent assault, as the conduct involved the intentional application of force by the accused, to LF’s vagina, in circumstances of indecency, having regard to reasonable contemporary standards.

54. I will deal with particulars (g) and (h) on the Information together. Particular (g) alleges the accused inserted his penis in LF’s anus on more than on occasion. Particular (h) alleges the accused inserted his finger in her anus on more than one occasion.

55. These allegations arise out of what LF told SC Horley in the second interview and were not mentioned in the first interview. LF was not cross-examined as to why she did not tell SC Horley about these allegations in the first interview. There are many reasons why this may be so, including that LF may simply have been too embarrassed to talk about these incidents, having regard to the particular nature of the allegations, or that she simply forgot to mention them at the time, having regard to how young she was, and the fact that the whole experience must have been overwhelming for her. Further, the first interview ended with SC Horley saying that they could talk again, and if there was anything else that LF wanted to tell him, to let her mother know.

56. LF wrote notes before the second interview and it was the contents of those notes which formed the basis of the discussion at that time. As previously stated, I accept LF’s evidence that those notes were created by her and without input from others. It was not suggested by defence counsel that the allegations of anal penetration were the subject of ‘recent invention’. I am satisfied that they were not.

1. In the second interview, LF told SC Horley, reading from her notes:[427]

   … [the accused] would take me and make me watch sex tapes and put his finger up my bum and it really hurt and I said stop … and [the accused] put his willy up my bum, I don’t really I don’t really want to go to Nan’s because it happened at her house …

   [427] Second interview at p 3.

2. While it is possible that in this passage of evidence, LF was describing an occasion or occasions when the accused put his penis in her anus at CD’s house, it is also possible that by the word ‘it’, she was referring to some other act of abuse, having regard to the particular way the interview unfolded and the fact she was reading from notes, which notes effectively merged into one another. Immediately thereafter, LF mentioned occasions when the accused had done ‘it’ to her but did not go into any further detail as to precisely what ‘it’ was.

3. However, when LF was asked in the second interview to recall a particular occasion when she was abused, she described in some detail a birthday party she had attended, for either BS or LS, at the accused’s home, where there was a green and pink frog cake with chocolate frogs inside, pizza and lemonade. She said she was in the lounge room watching cartoons with BS, when it was time for BS to go to bed and take his pills. She said that the accused grabbed her hand, and she grabbed BS, because ‘I didn’t want to be the only one up there’.[428]

   [428] Second interview at p 12.

4. She said BS went to sleep ‘and he did it to me then’ and that she fell asleep, but that he woke her up in the middle of the night. She said:[429]

   … [JS] was asleep and she was sleeping like that and I was sleeping like that too and he was sleeping like that and then he woke me up and made me turn over and did it to me there and yeah (my emphasis)

   [429] Second interview at p 12.

5. SC Horley asked LF to tell her what the accused had done to her. She said:[430]

   [430] Second interview at p 13.

   A.So he would when umm I tried to go to sleep with [B] and then he would just wake me up and then he would he would umm he would just pull down my undies and be like what are you doing I’m trying to sleep and he would just put his finger up my bum and I think it felt like I was like dying it‘s not dying but it really hurt and then when I got older mum told me you could get that’s how you get raped and like you could bleed from your bum and then I was a bit scared because I was scared he was  I was going to start bleeding and then after that umm he would pull like every time someone came he would pull up my undies and then he would just sit up and just pull out his book or go on his phone and then I would go back to sleep and then [JS] took [B] to bed I mean [the accused] did and then [JS] got into bed and then everyone went home and [CD] was sleeping on the lounge not on the lounge umm umm in [S’s] room

   and she’s sleeping in his bed and then umm umm [the accused] will get in the bed and I’ll be asleep so I don’t know what’s going on and then when [JS’s] asleep the TV’s off he would he would say [LF] [LF] [LF] and just go like this to wake me up and then he would do that he would do it to me again but he would put his willy up my bum and it would really hurt just like his finger would and

   Q.Tell me about him putting his willy up your bum

   A.Umm it’s like umm I just pushed out the biggest poo and then it’s just coming back in my umm stomach like my bum

   Q.How many times has this happened?

   A.Umm mostly every time we go there but not every time because one time when we were leaving to go to Queensland umm he didn’t do it to me then but when we but before that I said he tried to do it and I was like I just standed at the door and I was just like [the accused] stop or I’ll tell [JS] and [CD] and then he stopped and it never happened again.

6. In cross-examination, it was suggested to LF that on the night of that birthday party, she went home to her own house to sleep, and that she did not sleep at the accused’s house. She said, ‘I’m not sure’.[431] However, she maintained that the accused had put his finger up her bum, and that he had put his penis up her bum.[432]

   [431] Cross-examination of LF at T 118.13-16.

   [432] Cross-examination of LF at T 133.31-34.

7. FD could not recall whether LF had stayed the night after that party. However, there was no evidence that LF did not stay the night at the accused’s house on the occasion as described by her, or any evidence refuting LF’s claim that she went to sleep at the accused’s house after this party.

8. When LF answered questions about whether she had suffered an injury from the abuse, LF gave the following evidence:[433]

   A.Well, when he was putting his penis in my bum, sometimes he would go too far and that would really hurt.

   Q.Did it ever leave you with any hurt or injury after he’d put his penis in your bum.

   A.Yes.

   Q.Can you describe the injury that you would have.

   A.I would have like a numb – like my bum would be numb.

   Q.Did you ever have a sore bum when you were going to the toilet or anything.

   A.No.

   [433] Cross-examination of LF at T 128.33-129.4.

9. This offending is said to have occurred in the accused’s bedroom and at time when BS (and JS) were sleeping in that room, and in the same bed. BS was a young boy, with significant intellectual disabilities who took medication before going to bed at night. JS took sleeping pills. I am satisfied there was the opportunity for the offending to occur in the manner as described by LF, notwithstanding its brazen nature.

10. As stated, the evidence given by LF to describe how she felt when the accused anally penetrated her was compelling. I am satisfied beyond reasonable doubt that he did so. I exclude, as not being a reasonable possibility, that LF is making this up, or in any way mistaken about this or that she is recalling a dream or dreams rather than actual life events. I am satisfied beyond reasonable doubt that the accused anally penetrated LF with a part of his body.

11. However, LF gave evidence that she never saw LF’s penis when she claims he put it up her bum. She believed it was his penis because ‘it was too big’.[434] She gave no evidence otherwise describing the act of penile penetration of her anus, for example, by explaining where she was positioned relative to the accused.

    [434] Cross-examination of LF at T133.36-134.4.

12. After carefully considering the evidence, I cannot exclude, as a reasonable possibility, that on the occasions LF described being anally penetrated, the accused in fact used his finger, rather than his penis. I exclude as a reasonable possibility any suggestion that the accused was physically incapable of digitally penetrating LF’s anus because of any injury or burns to his fingers, for the same reasons as previously outlined.

13. LF was not asked specifically how many times she was anally penetrated. However, she described it as occurring mostly every time she went to the accused’s home, but not every time. While this answer was imprecise, I consider it consistent with her young age and consistent with her experience of being abused on many occasions by the accused over a period of time. I am satisfied the accused anally penetrated LF with his finger on more than one occasion at his home.

14. As stated, the evidence given by LF in the second interview as outlined at paragraph 653 could potentially be interpreted as LF describing acts of anal penetration at CD’s house. In the absence of any further evidence on that issue, or clarification from LF as to precisely what she meant by that evidence, I cannot be satisfied that the accused digitally penetrated LF’s anus at CD’s house.

15. I accept LF’s evidence, and find beyond reasonable doubt, that the accused inserted his finger into LF’s anus on more than one occasion, at his house. LF was a child under the age of 14 at the time. I am therefore satisfied that on these occasions, the accused had unlawful sexual intercourse with LF.

16. I am satisfied that all of the unlawful sexual acts I have found proved beyond reasonable doubt, occurred prior to LF moving to Queensland in September 2014. I am therefore satisfied that LF was a child, aged under 14 years, at the time of the offending, and that the accused was an adult at that time.

    Summary

17. The prosecution has proved beyond reasonable doubt that:

    1.The accused knowingly maintained a relationship with LF.

    2.During the course of that relationship, the accused engaged in two or more unlawful sexual acts with LF.

    3.At the time the accused engaged in two or more unlawful sexual acts with LF, LF was a child aged under 14 years.

    4.At the time the accused engaged in two or more unlawful sexual acts with LF, the accused was an adult.

    Verdict

18. I find the accused guilty of the charge.