R v JDH - [2025] SADC 78

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JDH
Criminal Trial by Judge Alone
[2025] SADC 78
Reasons for the Verdict of her Honour Judge Schammer
2 July 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - PROPENSITY EVIDENCE - EVIDENCE OF UNCHARGED ACTS
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - GENERALLY
The accused is charged on Information dated 8 November 2023 with five counts for sexual offending against four separate complainants, namely:
• three counts of sexual abuse of a child pursuant to s 50(1) of the Criminal Law Consolidation Act, 1935 (the Act), wherein the complainants are the accused’s female step grandchildren, MR, AJB and TLR (counts 1, 2 and 4);
• one count of indecent assault pursuant to s 56 of the Act, wherein the complainant is TLR (count 5); and
• one count of aggravated indecent assault with a person under the age of 14 years pursuant to s 56 of the Act, wherein the complainant is JAK, a female school friend of MR (count 3).
The offending is alleged to have occurred at various locations. Those locations include a house in Blakeview, where the accused lived with his wife, MJH, the maternal grandmother of MR, AJB and TLR. The offending is also alleged to have occurred at the Craigmore home where MR and TLR lived during the relevant period(s), in a car at various locations and at a beach.
The prosecution case is that the accused engaged in opportunistic, sometimes brazen and risky sexual abuse, against all four complainants, with the most serious of the offending occurring against the youngest of the three complainants, TLR.
The allegations made by each complainant are different, albeit they contain some similarities. The prosecution did not seek to rely on similarity of account/improbability reasoning.
The offending ranged in seriousness from touching the complainants on the bottom when hugging them, to engaging in cunnilingus with TLR.
The circumstances ancillary to the alleged offending were, in most respects, not in dispute. Rather, the defence case was, insofar as the more minor allegations were concerned, that innocent, innocuous touching of each complainant had been misconstrued in circumstances where the accused was simply an overly affectionate step grandfather. As to the more serious alleged offending, it was submitted that much of it was implausible or impossible, having regard to the likelihood of it being detected.
Various items of interest were seized by police after the accused’s arrests. One was an SD card, which contained deleted images of child exploitation material created by placing photographs of each complainant’s face onto the bodies of naked models, some engaging in sex acts, and then taking a photograph of such images. The SD card also included three deleted photographs, each taken at about the same time, which depicted TLR, aged approximately six or seven, wearing pyjamas, asleep on a mattress in the lounge room, at the Blakeview house. In the first such photograph, TLR was fully clothed and her body appropriately covered. In the second and third of these photographs, TLR’s pyjama pants had been moved to expose her naked vagina.
The accused gave evidence wherein he admitted having created the child exploitation material using photographs he had depicting the complainants’ faces. He acknowledged to having had sexual fantasies about all four complainants but denied that such fantasies ever crossed the line into reality.
The accused also gave evidence wherein he admitted he had taken the first photograph depicting TLR asleep on the mattress. He ultimately conceded he must have also taken the second and third photographs depicting TLR’s exposed vagina. He did not admit to having moved TLR’s pyjama pants in order to expose her vagina.
After the accused’s arrest for the offending against MR, AJB and TLR, he wrote and sent two letters to his sister, MB and wrote, but did not send, a letter to his wife MJH, which was later found by police ripped up, in a bin at the Blakeview house. The accused also wrote an earlier letter to MB, after his arrest for the offending against MR and TLR only, which he sent to MB at the same time as the other two letters.
It is the prosecution case that such letters contained express admissions by the accused to having touched MR on her chest and vagina, over her clothing, and to having touched TLR on her chest and vagina, under her clothing. The prosecution case was that the accused’s failure to expressly deny certain allegations of sexual offending against the complainants, of which he was aware, also constituted implied admissions (by silence).
The prosecution case is that the accused also made similar admissions during a conversation he had with AJB’s father, GB, after his arrest for the offending against MR and TLR.
The accused denied making any admissions as to any alleged offending during his conversation to GB.
The accused initially gave evidence that what he had written in his letters to MB and MJH did not properly reflect what he meant to write, as he was too distraught and mentally incapable, at the time he wrote such letters, to properly convey his side of the story, that is, that he had never sexually abused any of the complainants.
After lengthy cross-examination, the accused acknowledged that he had touched MR on her chest and vagina, over her clothing, while playing a chasey game (referred to in evidence as the Grandpa game), and that he had touched TLR on her chest and vagina, under her clothing, also when playing that game. He maintained his denial of the other alleged offending.
Orders
Pursuant to s 128(2)(b) of the Criminal Procedure Act 1921, count 3 on the Information, is amended to particularise the alleged offending to have occurred at Craigmore, in lieu of Blakeview.
Verdict
The accused is guilty of counts 1, 2, 3, 4 and 5.
Criminal Law Consolidation Act 1935 (SA) ss 5, 49(1), 49(2), 50, 50(1), 50(4)(b), 50(12), 56, 56(1)(d), 57(1)-(3), 62; Juries Act 1927 (SA) s 7; Evidence Act 1929 (SA) ss 13A(12), 34M; Criminal Procedure Act 1921 (SA) s 128(2)(b), referred to.
R v Mann [2020] SASCFC 69; JJP v The Queen [2021] SASCA 53; R v Richards (2016) 125 SASR 341; R v C, CA [2013] SASCFC 137; R v Spencer [2019] SASCFC 70; R v Court [1989] AC 28; Slatterie v Pooley (1840) 151 ER 579; Day v The Queen [2021] SASCA 38; R v Harkin (1989) 38 A Crim R 296; R v Thompson [2018] SASCFC 104, considered.

R v JDH
[2025] SADC 78
[Criminal]
Introduction

The accused is charged on Information dated 8 November 2023 with five counts for sexual offending against four separate complainants, when they were children, three of whom are his step grandchildren.[1]
[1] The Information originally charged six counts and the prosecution opened its case on the basis of that Information. The Information was amended at the start of the second day of trial. A nolle prosequi was entered as to count 6, being one count of possession of child exploitation material; T 66.9-67.22. There was no prejudice arising to the accused from this as the evidence relating to the accused’s alleged possession of child exploitation material at a relevant time (albeit precisely when could not be proved beyond reasonable doubt) was always intended to be led as part of the prosecution case.
Those counts comprise three counts of sexual abuse of a child pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (the Act), one count of aggravated indecent assault with a person under the age of 14 years pursuant to s 56 of the Act and one count of indecent assault pursuant to s 56 of the Act.
The accused elected to be tried by a judge sitting without a jury pursuant to s 7 of the Juries Act 1927.
Summary of allegations and issues in dispute
At all material times, the accused (DOB: 29 May 1946) was married to MJH, the maternal grandmother of three of the complainants, MR, AJB and TLR. The accused and MJH lived at a house in Blakeview (the Blakeview house).
MJH was very close to her grandchildren. There is no dispute that when MR, AJB and TLR were growing up, the accused would see them on a fairly regular basis. The accused spent more time with MR and TLR than AJB, simply because they lived nearby, in Craigmore.
MR and AJB (and occasionally TLR) would stay overnight at the Blakeview house, both on weekends and during school holidays. The accused (either on his own or with MJH) routinely collected MR and/or TLR and their younger brother, JR, from school. During the school holidays, the accused and MJH looked after MR, TLR and JR at their Craigmore home (the Craigmore home) as their parents were working. The accused and MJH would also take MR and TLR on outings, including to the beach.
The fourth complainant is JAK, who was a close school friend of MR. There is no dispute that the accused met JAK, during his various visits to the Craigmore home and, on occasions, also drove JAK home from school.
The prosecution case is that the accused engaged in opportunistic, sometimes brazen and risky sexual abuse, against all four complainants, with the most serious of the offending occurring against the youngest of the three complainants, TLR.
The offending is alleged to have occurred in multiple different contexts.
Count 3, is a single count of aggravated indecent assault and relates to JAK (DOB: 21 February 1997).[2] It is alleged that the accused indecently assaulted JAK when he touched her on the bottom when he hugged her, on an occasion, at Blakeview, when she was aged between 10 and 12.[3] Although only one offence is charged, this offending is said to have occurred in the context of numerous uncharged acts involving the same conduct.
[2] Exhibit P41 at [3].
[3] Count 3 on the Information.
The accused admitted to having intentionally touched JAK on her bottom, over her clothes, when he hugged her and that this occurred on multiple occasions. The issue in dispute is whether the alleged act, as particularised in count 3, occurred in circumstances of indecency.
MR (DOB: 5 December 1997),[4] is the accused’s oldest step granddaughter. MR alleges that the accused engaged in multiple unlawful sexual acts with her when she was aged between seven and 13.[5] MR alleges that the accused:
·brushed his hand under her bathers and on her genital area, over her vagina on an occasion when she was aged 10 or under, when they were at the beach and he was pushing her on a floatie in the water;
·touched her on the bottom, over her clothing, on multiple occasions, when he hugged her upon greeting her or saying goodbye;
·put his hand on her upper thigh on multiple occasions when he drove her home from school;
·touched her on the chest under her clothing, and inserted his finger into her vagina, on multiple occasions, when playing the ‘Grandpa’ game, which involved the children hiding and the accused finding and catching them;
·exposed his naked penis to her on an occasion when he was in bed, and he called out to her to stop as she walked past his bedroom door;
·showed her pornographic magazines which he kept in his shed; and
·asked her if she wanted him to show her how to use some sex toys she had seen in his top bedroom drawer.
[4] Exhibit P41 at [4].
[5] Count 1 on the Information.
The accused admitted to having intentionally touched MR on her bottom, over her clothes, when he hugged her and that this occurred on multiple occasions. He also admitted to having touched her on the thigh on multiple occasions when he drove her home from school. He denied there was anything inappropriate, or indecent, about such contact.
The accused gave evidence wherein he denied the allegations made by MR. He initially denied any sexual misconduct towards her.
However, after lengthy cross-examination as to the contents of letters he had written to his sister, MB, after his arrest for the alleged offending, the accused admitted that he had touched MR on the chest and vagina, over her clothing, when playing the ‘Grandpa’ game.
The accused maintained a denial of the express allegations made by MR.[6]
[6] T 820.16-23; T 821.2-7; T 822.29-31.
MR and AJB were very close when they were children as they were cousins of a similar age. AJB (DOB: 20 October 1998),[7] alleges that when she was aged between seven and 13, the accused:[8]
·touched her on the bottom, over her clothing, on multiple occasions, when he hugged her upon greeting her or saying goodbye;
·touched her on the chest both under and over her clothing, and on her genital area over her clothing, on multiple occasions, when playing the ‘Grandpa’ game;
·asked her if she wanted him to show her how to use some sex toys she had seen in his top bedroom drawer; and
·massaged her on the inner thigh, near the groin, with a glass turtle massager, on multiple occasions.
[7] Exhibit P41 at [5].
[8] Count 2 on the Information.
The accused admitted to having intentionally touched AJB on her bottom, over her clothes, when he hugged her and that this occurred on multiple occasions. The issue in dispute is whether these alleged acts occurred in circumstances of indecency. The accused also admitted to having massaged AJB with the glass turtle but denied that he did so on or near her groin, or that what he did was indecent.
The accused denied the other allegations made by AJB.
TLR (DOB: 10 March 2001),[9] is just over three years younger than MR. TLR alleges that when she was aged between six and 12, the accused:[10]
[9] Ibid at [6].
[10] Count 4 on the Information.
·touched her on the bottom, over her clothing, on multiple occasions, when he hugged her upon greeting her or saying goodbye;
·intentionally exposed his naked erect penis to her on an occasion when he was in the bathroom at the Blakeview house;
·rubbed her clitoris, inserted his fingers in her vagina and licked and sucked her vagina when she was in the loungeroom of the Craigmore home, watching Super Mario Bros cartoons on television. On that, or another similar occasion, TLR alleges the accused put a silver, spiky, vibrating item on her vagina and inserted his fingers into her vagina;
·came up behind her when she was in the kitchen at the Craigmore home, grabbed her chest with both his hands, over her clothes and used his hips to hump her from behind;
·lay on top of her on her bed at the Craigmore home on an occasion after he drove her home after school and then used his crotch area to hump her crotch area, such that she felt his erect penis;
·on two occasions, on her bed at the Craigmore home after school, grabbed her chest, rubbed her vagina, inserted his fingers into her vagina and licked and sucked her vagina;
·put his hand on her crotch area when he and TLR were in the pool at the Craigmore home. TLR alleges the accused was standing in the shallow end of the pool and she was lying face down on a floatie. She alleges the accused touched her on her crotch as he pushed her, towards the deep end, while she remained on the floatie;[11]
·put his fingers inside her boardshorts, inserted a finger in her vagina and placed her hand on his crotch area on top of his penis, over his clothing, when they were sitting next to each other on the bench seat at the shallow end of the same pool;
·touched her chest and inner thigh with his foot, over her clothing, during the ‘Grandpa’ game, when she was lying on her back on the floor, and he was standing over her;
·asked her if she had hair on her ‘pussy’ on an occasion shortly before the family moved to Perth, and they were alone in the kitchen at the Craigmore home; and
·asked her if he could take photographs of naked parts of her body, during some of the offending.
[11] Noting this was TLR’s recollection of the first time (of multiple times) that the accused had touched her when they were in the pool.
TLR also alleges that on an occasion between 10 March 2015 and 10 March 2016, the accused touched and squeezed her bottom, when he hugged her, when she came to clean the Blakeview house.[12]
[12] Count 5 on the Information.
The accused admitted to having intentionally touched TLR on her bottom, over her clothes, when he hugged her and that this occurred on multiple occasions. The issue in dispute is whether these alleged acts occurred in circumstances of indecency.
The accused initially denied all of the other allegations made by TLR.
However, in cross-examination, again when shown the letters he had written to his sister, MB, the accused eventually admitted that he had touched TLR on the chest and vagina, both over and under her clothing, when playing the ‘Grandpa’ game. He maintained his denial of the other allegations made by TLR.[13]
[13] T 821.2-29; T 822.32-34.
During cross-examination, when the accused was confronted with child exploitation material produced by him involving all of the complainants, he conceded that he had had sexual fantasies involving all of them. Save for the partial admissions as described above, he denied having acted upon those fantasies, or to having ‘crossed the line’ by turning those fantasies into reality.
The accused denied the other allegations made by the complainants. Although he conceded that there were occasions, when he was with the complainants, in circumstances similar to those described by them as being occasions of alleged offending, he denied the acts attributed to him. In essence, the accused’s case was that what MR and TLR, in particular, had described, was simply implausible, such that it could not have occurred without being detected and did not occur.
MJH has never driven and relied on the accused for transport. There was no evidence that the accused was ever at the Blakeview house with any of the complainants at a time when MJH was not home. Similarly, there was no evidence that when the accused and MJH babysat MR and TLR at the Craigmore home, MJH ever left the house by herself, leaving the accused there alone with the children. The defence case was that some of the unlawful sexual acts described by MR and TLR simply could not have happened because MJH was in the house and the conduct could have easily been detected by her.
There was no specific submission put, nor were the complainants cross-examined to the effect that they had any specific collective or individual motive to lie, or that they had colluded together to make up what were untrue allegations. There was no specific submission put, nor were any of the complainants specifically cross-examined to the effect that the evidence given by them was tainted due to their knowledge of the allegations made against the accused by any other complainant.
Notwithstanding this, I have carefully considered whether there is any reasonable opportunity that the allegations are the product of collusion and/or if any of the complainants’ accounts are contaminated by what they have come to learn of the other complainants’ allegations.
The charges
Count 1:
Offence Details
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[JDH] between the 5^th day of December 2004 and the 5^th day of December 2010, at Blakeview and other places, maintained an unlawful sexual relationship with MR, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards MR, namely:
(a)touching her chest area on more than one occasion;
(b)touching her genital area on more than one occasion;
(c)inserting a finger into her vagina on more than one occasion;
(d)showing her pornography on more than one occasion;
(e)making a communication for a prurient purpose with the intention of making her amenable to sexual activity;
(f) exposing his erect penis to her;
(g)touching her bottom on more than one occasion; and
(h)touching her upper thigh on more than one occasion.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 2:
Offence Details
Sexual Abuse of a Child. (Ibid).
Particulars
[JDH] between the 20^th day of October 2005 and the 20^th day of October 2011, at Blakeview and other places, maintained an unlawful sexual relationship with AJB, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards AJB, namely:
(a)touching her chest area on more than one occasion;
(b)making a communication for a prurient purpose with the intention of making her amenable to sexual activity;
(c)using an object on her upper thigh area on more than one occasion;
(d)touching her bottom on more than one occasion; and
(h)touching her genital area.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 3:
Offence Details
Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[JDH] between the 21st day of February 2007 and the 21st day of February 2009 at Blakeview indecently assaulted JAK by touching her on the bottom.
Circumstances of aggravation
It is further alleged that JAK was under the age of 14 years at the time of the offence.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 4:
Offence Details
Sexual Abuse of a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars
[JDH] between the 10^th day of March 2007 and the 26^th day of December 2013 at Blakeview and other places, maintained an unlawful sexual relationship with TLR, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards TLR, namely:
(a)touching her chest area on more than one occasion;
(b)touching her bottom on more than one occasion;
(c)touching her groin on more than one occasion;
(d)touching her clitoris on more than one occasion;
(e) exposing his erect penis to her;
(f)inserting his fingers into her vagina on more than one occasion;
(g)causing her to touch his penis;
(h)performing an act of cunnilingus upon her on more than one occasion;
(i)placing an object on her labia majora and clitoris;
(j)causing his erect penis to touch her bottom area;
(k)causing his penis to touch her genital area on more than one occasion; and
(l)making a communication for a prurient purpose with the intention of making her amenable to sexual activity;
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Count 5:
Offence Details
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[JDH] between the 10th day of March 2015 and the 10th day of March 2016 at Blakeview, indecently assaulted TLR by touching her on the bottom.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016.
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018.
Elements of the charged offences
Counts 1, 2 and 4 - Sexual abuse of a child

In order for a verdict of guilty to be returned to either count 1, count 2 and/or count 4, the prosecution must prove the following elements beyond reasonable doubt:
1.That the accused knowingly maintained a relationship with the complainant;[14]
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with the complainant;
3.That at the time the accused engaged in two or more unlawful sexual acts with the complainant, the complainant was a child; and
4.That at the time the accused engaged in two or more unlawful sexual acts with the complainant, the accused was an adult.
[14] Noting the complainant is count 1 is MR, in count 2 is AJB and in count 4 is TLR.
The accused’s date of birth is 29 May 1946.[15]
[15] T 589.22.
As to count 1, the alleged offending is said to have occurred between 5 December 2004 and 5 December 2010. I am satisfied that during the period of the alleged offending in count 1, the accused was an adult and MR was a child aged between seven and 13.[16]
[16] Exhibit P41 at [4].
As to count 2, the alleged offending is said to have occurred between 20 October 2005 and 20 October 2011. I am satisfied that during the period of the alleged offending in count 2, the accused was an adult and AJB was a child aged between seven and 13.[17]
[17] Exhibit P41 at [5].
As to count 4, the alleged offending is said to have occurred between 10 March 2007 and 10 March 2013. I am satisfied that during the period of the alleged offending in count 4, the accused was an adult and TLR was a child aged between six and 12.[18]
[18] Ibid at [6].
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 complainant and the accused.[19]
[19] R v Mann [2020] SASCFC 69 [28]-[29].
The accused and MJH were married and lived together for the duration of the alleged offending in all counts. Although the existence of a ‘relationship’ for the purposes of s 50(1) of the Act was not conceded as to any count, I am satisfied, on all of the evidence, that during the period of the alleged offending in counts 1, 2 and 4, the accused knowingly maintained a relationship with MR, AJB and TLR in his role as their maternal step grandfather.
The real issue in dispute as to each of counts 1, 2 and 4 was whether, during the relationship between the accused and each complainant, any of the alleged unlawful sexual acts occurred.
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.[20]
[20] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[21]
(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.
[21] Ibid.
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.
As to each of counts 1, 2 and 4, the prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts unlawful sexual acts.[22]
[22] JJP v The Queen [2021] SASCA 53 per Doyle J.
As to count 1, those offences are aggravated indecent assault,[23] gross indecency,[24] unlawful sexual intercourse[25] and making a communication for a prurient purpose and with the intention of making a child under the age of 14 amenable to a sexual activity.[26]
[23] Particulars (a), (b), (g) and (h) on the Information as to count 1.
[24] Particulars (d) and (f) on the Information as to count 1.
[25] Particular (c) on the Information as to count 1.
[26] Particular (e) on the Information as to count 1.
As to count 2, those offences are aggravated indecent assault[27] and making a communication for a prurient purpose and with the intention of making a child under the age of 14 amenable to a sexual activity.[28]
[27] Particulars (a), (c), (d) and (e) on the Information as to count 2.
[28] Particular (b) on the Information as to count 2.
As to count 4, those offences are aggravated indecent assault,[29] gross indecency,[30] unlawful sexual intercourse[31] and making a communication for a prurient purpose and with the intention of making a child under the age of 14 amenable to a sexual activity.[32]
Aggravated indecent assault
[29] Particulars (a), (b), (c), (d), (g), (i), (j) and (k) on the Information as to count 4.
[30] Particular (e) on the Information as to count 4.
[31] Particulars (f) and (h) on the Information as to count 4.
[32] Particular (l) on the Information as to count 4.
The elements of the offence of aggravated indecent assault are:
1.That the accused applied force (directly or indirectly) to the complainant;
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.The complainant was under the age of 14 years at the time of the act. This element constitutes the circumstance of aggravation as per s 56(1)(d) of the Act and also renders consent irrelevant.[33]
Gross indecency
[33] Section 57(1)-(3) of the Act.
The elements of the offence of gross indecency are:
1.The accused performed an act;
2.The act was intentionally performed in the presence of the complainant;
3.The act involved circumstances of gross indecency; and
4.The complainant was under the age of 16 years at the time, rendering consent irrelevant.
It is a matter for me to determine whether the act performed by the accused occurred in circumstances which were grossly indecent by reference to reasonable contemporary standards. I must be satisfied that those circumstances had a sexual connotation.
Unlawful sexual intercourse
The elements of the offence of unlawful sexual intercourse are:
1.That the accused had sexual intercourse with the complainant. 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 or by an object or fellatio or cunnilingus; and
2,That the complainant was under the age of 17 years at the time,[34] rendering the issue of consent irrelevant and the act of sexual intercourse unlawful.
Communicating for a prurient purpose and with the intention of making a child under the age of 14 amenable to a sexual activity (being the aggravated offence)
[34] Noting that if the complainant is proved to be under the age of 14, this constitutes an offence pursuant to s 49(1) of the Act. If the complainant is proved to be under 17, the offence is pursuant to s 49(2).
The elements of this offence are:
1.The accused made a communication;
2.The accused did so for a prurient purpose; and
3.The accused did so with the intention of making a person under the age of 14 amenable to sexual activity while the child is still under the age of 14.
‘Sexual activity’ is not defined. It is for me to determine, taking into account the context of the relevant activity.
A person is defined as acting for a prurient purpose if they act with the intention of satisfying their own desire for sexual arousal or gratification or of providing sexual arousal or gratification to someone else.[35]
[35] Section 62 of the Criminal Law Consolidation Act 1935.
Making a child amenable means to influence the child to yield, submit or cooperate.[36]
[36] R v Richards (2016) 125 SASR 341.
It is a defence to such an offence if the accused proves that at the time of the alleged offence, he believed on reasonable grounds that the child was at least 17 years of age. The accused did not seek to avail himself of this defence, rather the accused’s position was the alleged unlawful acts simply did not occur.
Count 3 – Aggravated indecent assault
In order for a verdict of guilty to be returned to count 3, the prosecution must prove the elements of the offence as listed at paragraph 45 herein, beyond reasonable doubt.
Count 5 –Indecent assault
In order for a verdict of guilty to be returned to count 5, the prosecution must prove the elements of the offence as listed at paragraph 45 herein, beyond reasonable doubt, save that there is no requirement to prove that TLR was under the age of 14. If TLR was under 16 at the time, consent is irrelevant.
Witnesses and exhibits
The prosecution called evidence from each of the complainants. In addition, evidence was called from:
1.MJH;
2.CLF, the maternal aunt of MR, AJB and TLR;
3.AB, AJB’s mother and the maternal aunt of MR and TLR;
4.GB, AJB’s father and the maternal uncle (by marriage) of MR and TLR;
5.BAR, mother of MR and TLR and maternal aunt of AJB;
6.SK, mother of JAK;
7.IC, who gave complaint evidence with respect to the allegations made by TLR;
8.Mr N De Guglielmo, Digital Evidence Support Officer;
9.Detective Brevet Sergeant T Jedrzejtzzak; and
10.Detective Brevet Sergeant A Menon.
The prosecution tendered numerous exhibits. Those exhibits included a Statement of Agreed Facts,[37] a USB containing material downloaded from an SD card found at the accused’s home,[38] a schedule containing some of the metadata obtained from that SD card,[39] copies of letters sent by the accused to his sister, MB, after his arrest(s),[40] and a copy of a letter written by the accused to MJH, but never sent, which was found torn up in a rubbish bin at the accused’s home after his arrests.[41]
Legal directions
[37] Exhibit P41.
[38] Exhibit P38.
[39] Exhibit P40.
[40] Exhibits P31A, P32A and P33A. The transcripts of these letters were tendered, respectively, as Exhibits P31B, P32B and P33B.
[41] Exhibit P34A. The transcript of this letter is Exhibit P34B.
General
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(s) as charged.
As to each count, 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.
There are five counts on the Information. I must assess these counts separately and only take into account the evidence that is relevant and admissible to the count under consideration.
As to each count, 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 an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) for his conduct as given by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. As to each count, considered separately, 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.
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.
MR, AJB, JAK and TLR, gave their evidence via audio-visual link from outside of the Court room, the Court was closed during their evidence and their evidence was recorded. MJH, AB and BAR gave their evidence via audio-visual link from outside of the Court room, and the Court was closed during their evidence. CLF gave her evidence via audio-visual link from outside of the Court room. I must not draw any inference adverse to the accused, nor allow those special arrangements, to influence the weight given to that evidence.[42]
[42] Section 13A(12) of the Evidence Act 1929 (EA).
Neither PR, the father of MR and TLR, nor JR, the brother of MR and TLR, were called to give evidence. There was evidence led that during the period of the alleged offending against MR and/or TLR, the accused collected MR and/or TLR and JR from school and that, at times, the accused stayed with MR and TLR, at their home at Blakeview, until PR arrived home from work. As such, both PR and JR may have been able to provide evidence to the Court which was relevant to the issues in dispute and specifically on the issue of opportunity and whether, at these times, the accused was alone or accompanied by MJH and/or for how long the accused may have been alone with TLR and JR. I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
The accused elected to give evidence. The accused was under no obligation to do so. I should give him whatever credit I see fit for subjecting himself to cross-examination at 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 reject the accused’s evidence in its entirety, that does not bolster, nor strengthen the prosecution case. The prosecution must prove each element of the offences charged beyond reasonable doubt.
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.
Complaint evidence/out of court statements
There was evidence led as evidence of initial complaint within the meaning of s 34M of the Evidence Act. Specifically, MR and BAR gave evidence of a conversation they had in December 2022, during which MR disclosed the allegations made by her against the accused. TLR and IC both gave evidence, albeit in different terms, of the circumstances in which TLR disclosed to IC the alleged offending against her by the accused.[43]
[43] See further discussion of that evidence below.
Complaint evidence is admitted to inform the trier of fact as to how the allegation, in each instance, first came to light and as evidence of the degree of consistency of conduct of that complainant. It is relevant therefore to an assessment of the reliability and credibility of that complainant.
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 the evidence of the complainant as to the allegations of the specific offending against them, is able to prove that.
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 with respect to MR and TLR.
There was other evidence led as to what witnesses said outside of court and before giving evidence.[44] For example, both MR and AJB gave evidence that they discussed aspects of the accused’s conduct and behaviour towards them, with each other, from time to time. What was said out of Court by those witnesses is not evidence of the truth of what was said. The fact that a witness may have said something more than once does not make anything they have said more likely to be truthful or reliable.
[44] As to such evidence relied upon by way of Implied Admissions, see discussion below.
Putting aside the initial complaint evidence relevant to MR and TLR, there are two potential uses of evidence of what was said out of Court. First, what is said out of Court may be a prior inconsistent statement by a witness. If a witness has made a prior inconsistent statement, that must be considered when evaluating their credibility and reliability. Second, what each complainant said to each other, and/or knew of the individual allegations made by each complainant, before they gave evidence (and/or before the allegations were reported to police) is relevant to the possibilities of collusion and/or innocent contamination.
Forensic disadvantage
The accused was arrested for the alleged offending against MR and TLR on 26 January 2023. He was subsequently arrested for the alleged offending against AJB on 4 February 2023 and charged with offending against JAK on 5 February 2023.
Each complainant’s evidence lacked specific detail as to precisely when the alleged unlawful sexual acts occurred. Most of the alleged offending is said to have occurred over an approximate nine-year period between 5 December 2004 and 26 December 2013. MR and TLR moved with their family to live in Perth for a period of approximately 10 months on 26 December 2013. The offending in count 5 is alleged to have occurred between 10 March 2015 and 10 March 2016.
As such, there was a significant period of delay between the alleged offending in each count and the accused’s arrest and/or charge, and the trial. This has resulted in significant forensic disadvantage to the accused.
The passage of time may have adversely impacted upon the accused’s memory of relevant events and his ability to instruct his solicitor and counsel. It may have impacted upon his ability to test the evidence.
Had a timely complaint been made, by each complainant, in each instance of alleged offending, the accused may have been able to provide a relatively contemporaneous recollection of the nature of his interactions with that complainant at the time of any alleged offending. He may have been able to give evidence, or lead evidence from others, about where he was at a relevant time, or about who might have been with him, or evidence which was otherwise inconsistent with the prosecution case.
Insofar as MR and TLR alleged the accused had penetrated them, these allegations, if made contemporaneously, may have resulted in medical examination of them at a time when such examination may have assisted in determining the potential veracity of those allegations.
The passage of time may also have impacted adversely upon the memory of witnesses in ways which have caused a significant forensic disadvantage to the accused. For example, a witness may have become convinced that a particular event occurred, even though it did not. A witness may have forgotten something of significance to the defence case. An honest and compelling witness can still be unreliable. The passage of time can make any such unreliability difficult to expose and to test.
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 each complainant’s reliability and credibility by reference to the surrounding circumstances of the alleged acts.
I have taken these forensic disadvantages into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offences as charged beyond reasonable doubt.
Discreditable conduct
Amended discreditable conduct notice dated 20 March 2025
The Prosecution filed an Amended Notice of Intention to Adduce Discreditable Conduct at trial,[45] whereby it advised of an intention to elicit discreditable conduct evidence at trial (the Notice).
[45] FDN 52.

The evidence fell into four separate categories.
The prosecution sought to use the evidence of each complainant of the alleged offending against them, for a propensity purpose, in proof of the offending alleged by the other complainants.[46] The prosecution sought to use that evidence to demonstrate that the accused had a sexual interest in young female family members or acquaintances who were in his care and a specific propensity to engage in sexual misconduct as described by each of the complainants, thus making it more likely that the accused committed each of the charged acts and such that any innocent explanation for his actions can be rejected.
[46] Item 1 on the Notice.
There was no dispute that the evidence of each complainant was cross-admissible for such purposes.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I am satisfied beyond reasonable doubt that the accused committed any of the alleged unlawful sexual acts said to comprise the conduct in count 1,[47] I can use that evidence in my consideration of the other counts insofar as it demonstrates that the accused had a sexual interest in young female family members or acquaintances who were in his care and a specific propensity to act upon that interest.
[47] The same reasoning applies to the evidence as to each count, which, if accepted beyond reasonable doubt, can then be used for the same permissible purpose in proof of the other counts.
However, I must not use this evidence to reason that the accused is more likely to have committed any of the offences because of the multiplicity of allegations. I must not reason from this evidence that the accused is a person of bad character and the type of person who would have committed the offences such that it is more likely he committed one or more of the offences.
The prosecution led evidence from which it submitted the Court should infer that the accused was in possession of child exploitation material (and had produced child exploitation material) depicting MR, AJB, JAK and TLR.[48]
[48] Item 2 on the Notice, amended verbally at trial to include evidence said to demonstrate the accused had produced child exploitation material.
The accused ultimately conceded that he had produced such material and therefore was, at some time, in possession of that material. The accused conceded in cross-examination that he had fantasised about the complainants engaging in sexual acts. He denied that he had a sexual interest in the complainants and/or that such fantasy had crossed the line into reality.[49] The prosecution sought to use the evidence, that the accused both produced and possessed the child exploitation material, and his evidence that he had such fantasies, to demonstrate that the accused had a sexual interest in each complainant and a tendency to act in furtherance of that interest, making it more inherently likely, in each instance, that the alleged offences occurred and such that any innocent explanation for the accused’s actions could be rejected.
[49] Save and to the extent that he admitted taking a photograph of TLR’s vagina (and chest) in circumstances where he had moved her pyjamas, while she was sleeping, to expose her vagina and chest.
I am satisfied that the probative value of this evidence outweighs any prejudicial effect and that the permissible use of this evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I make the inferences as sought by the prosecution with respect to this evidence, I can use this evidence for the purpose(s) as sought by the prosecution, that is, to demonstrate the accused had a sexual interest in a complainant (and/or complainants) and a tendency to act in furtherance of that interest.
However, I must not simply reason from this evidence that the accused is a person of bad character and is therefore the type of person who would have committed the offences and as such is more likely to have committed any or all of the offences.
The prosecution sought to adduce evidence of uncharged acts said to have been committed by the accused against JAK, being evidence of occasions other than the charged count, when he indecently touched her bottom when hugging her.[50] The evidence was said to demonstrate that the accused had a sexual interest in JAK and a specific propensity to opportunistically engage in the indecent touching of JAK’s bottom in the context of a hug, thus making it more likely that he committed the alleged offending against JAK and such that any innocent explanation for the alleged conduct could be rejected. The evidence was also sought to be used for a non-propensity use to explain the full nature of the accused’s relationship with JAK.
[50] Item 3 on the Notice.
I am satisfied that the probative value of the abovementioned evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I accept this evidence, I can use this evidence for the permissible purposes as specified. However, I must not simply reason from this evidence that the accused is a person of bad character and is therefore the type of person who would have committed the offences and as such is more likely to have committed any or all of the offences.
The prosecution sought to adduce evidence of uncharged acts said to have been committed by the accused against AJB (and MR),[51] namely, occasions when he kissed them on the lips.[52] The evidence was said to demonstrate that the accused had a sexual interest in AJB (and/or MR) and a specific propensity to act on that interest, thus making it more likely that he committed the alleged offending against AJB (and/or MR) and such that any innocent explanation for his alleged conduct towards them could be rejected. The evidence was also sought to be used for a non-propensity use to explain the full nature of the accused’s relationship with AJB and MR.
[51] Noting AJB gave evidence of both the accused kissing her on the lips in a slobbery way and of observing him do the same thing to MR.
[52] By way of an oral application to amend the Notice, made at T 223.17-224.7.
If I accept this evidence, I can use this evidence for the permissible purposes as specified. However, I must not simply reason from this evidence that the accused is a person of bad character and is therefore the type of person who would have committed the offences and as such is more likely to have committed any or all of the offences.
The prosecution sought to adduce TLR’s evidence as to the alleged offending in count 4, in proof of the alleged offending in count 5, and vice versa.[53] It was submitted that, in each instance, the evidence was admissible to demonstrate that the accused had a sexual interest in TLR and a tendency to act in furtherance of that interest.
[53] Item 4 as listed in the Notice.
There was no dispute, and I am satisfied, that the evidence as to counts 4 and 5 is relevant and cross admissible in proof of both counts.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I am satisfied beyond reasonable doubt that the accused committed any of the alleged unlawful sexual acts said to comprise the conduct in count 4, I can use that evidence in my consideration of count 5 insofar as it demonstrates that the accused had a sexual interest in TLR and a tendency to act upon that interest.
Similarly, if I am satisfied beyond reasonable doubt that the accused committed the alleged offending in count 5, I can use that evidence in my consideration of count 4 insofar as it demonstrates that the accused had a sexual interest in TLR and a tendency to act upon that interest.
Other evidence of discreditable conduct
TLR gave evidence, without objection, that after the offending charged as count 5, the accused drove her from the Blakeview house to the train station and that during the journey he had his left hand on her right inner thigh and was squeezing it and saying how much he loved her. Insofar as there is any suggestion that such conduct was indecent, this is also discreditable conduct.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
The prosecution sought to use this evidence for a non-propensity use by way of background/context and to explain the full nature of the accused’s relationship with TLR.
MR gave evidence that the accused would touch her on the thigh, under her school dress, when he drove her home from school. She described this happening when the accused drove her and her siblings (and JAK) home from CCS. She also described this happening after she changed schools to GHS, in 2013, when she would be in the car alone with the accused.
Count 1 particularises the offending against MR as having occurred between 5 December 2004 and 5 December 2010. This timeframe is a material particular having regard to the nature of this offence, which requires the accused to have maintained an unlawful sexual relationship with MR during that charged period. MR did not attend GHS until 2013, when she was in Year 10.
Insofar as MR gave evidence that such conduct occurred when the accused drove her home from GHS, or outside of the charged period when she was still attending CCS, that evidence must relate to uncharged acts, being evidence of discreditable conduct.
Further, insofar as either MR or AJB gave evidence that the accused would touch their bottom when he hugged them, outside of the respective charged periods, that evidence must also relate to uncharged acts (if such touching was indecent).
There was no objection to this evidence being led.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
This evidence was not included in the Notice and as such it is not sought to be used for a propensity purpose. A permissible, non-propensity, use of this evidence is by way of background/context and to explain the full nature of the accused’s relationship with MR (and/or AJB).
MR also gave evidence about the accused using a glass turtle, as a massager, on her body and specifically that he used it to massage her bottom. The accused acknowledged that he could have used the glass turtle to massage both MR and AJB on their bottoms. None of the particulars in count 1 properly incorporate this alleged conduct. If such conduct was indecent, then it would be discreditable conduct.[54]
[54] Noting that the particulars of count 2 expressly refer to the use of an item on AJB’s upper thigh. However, there is no similar particular relating to the use of this item on AJB’s bottom, meaning any such conduct, if indecent, would also be evidence of discreditable conduct.
This evidence was not included in the Notice and as such it is not sought to be used for a propensity purpose. A permissible, non-propensity, use of this evidence is by way of background/context and to explain the full nature of the accused’s relationship with MR (and AJB). The evidence may also be used to demonstrate that the accused was normalising inappropriate touching by him, in the context of something fun, a game.
I am satisfied that the probative value of the evidence outweighs any prejudicial effect and that the permissible use of the evidence can be kept sufficiently separate and distinct from any impermissible use, so as to remove any appreciable risk of the evidence being used for that purpose.
If I accept the evidence as outlined in paragraphs 105, 108, 111 and 115 herein, I can use the evidence for the permissible purposes as specified. However, I must not reason that because the accused engaged in this uncharged conduct, he is more likely to have committed any of the alleged offending, nor must I simply reason, because of such conduct, that the accused is a person of bad character and therefore the type of person who would offend in the manner as charged.
General
If any evidence of the uncharged acts and/or discreditable conduct is essential to my process of reasoning leading to a finding of guilt, as to any count, 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.
Similarity of account/improbability reasoning
In this case, although there were some similarities in the accounts of the complainants, there were also significant differences.
The prosecution did not submit that the evidence of each complainant as to the charged sexual offending was also relevant and cross admissible in proof of all such counts for improbability or similarity of account reasoning.[55]
[55] R v C, CA [2013] SASCFC 137 at [57]-[58] and [65] per Kourakis CJ.
As will be outlined hereunder, there was evidence that MR and AJB had discussed aspects of the accused’s offending both at the time it had occurred, and in 2022, prior to TLR’s allegations coming to light.
I have not engaged in improbability reasoning in my consideration of any of the counts.
However, as previously stated, I have expressly considered whether there is any reasonable possibility that any of the complainants’ allegations could be the result of collusion and/or contamination, in my overall assessment of each complainant’s credibility and reliability.
Consciousness of guilt
The prosecution led evidence that at the family Christmas lunch in 2022, TLR behaved in a manner which it was submitted demonstrated that she did not wish to have anything to do with the accused. The prosecution also led evidence that shortly thereafter, the accused began a big cleanup of the shed and garage at the Blakeview house.
The prosecution also led evidence from Officer Menon of his attendance at the Blakeview house on 27 February 2023, during which he found reams of cut up and partially destroyed VHS tapes and torn up documents, including a letter apparently written by the accused to MJH, in the bins at the house.[56]
[56] The prosecution case is that Officer Menon also found cut up photographic film, but for the reasons outlined below, I am not satisfied that this was established on the evidence.
The accused gave evidence to explain his conduct in both instances.
Although the manner in which the prosecution case was opened, and proceeded, suggested that the prosecution intended to rely on this conduct, in each instance, as evidence of the accused’s guilt, ultimately the prosecution eschewed reliance on this evidence for that purpose.[57]
[57] T 849.17-30.
Rather, the prosecution sought to rely on this evidence to demonstrate that the accused was removing various items from the house immediately prior and after his arrest(s), thus potentially explaining why the police did not find certain evidence at the Blakeview house (for example, any physical evidence of images in pornographic magazines where the models’ faces had been replaced with images of the face or faces of any of the complainants).
I have not used this evidence to draw any inference of guilt.
Admissions and implied admissions
Both GB and the accused gave evidence of a conversation they had outside the Blakeview house in early February 2023, after the accused’s arrest for the alleged offending against MR and TLR. There is a dispute as to precisely what was said during that conversation.
GB gave evidence that during that conversation the accused made certain admissions as to aspects of the offending and also expressly denied other allegations that had been made against him, but not all of the allegations.
The prosecution relies on GB’s evidence as to what the accused allegedly said to him, both by way of an admission as to some of the alleged offending, and an implied admission, as to silence, of those aspects of the offending which were neither expressly admitted nor expressly denied by the accused, during that conversation.
The prosecution tendered letters apparently written by the accused to his sister, MR and to MJH. The accused acknowledged that he wrote each of these letters, at a time after his arrest for the alleged offending against, at least, MR and TLR. On their face, those letters appear to contain admissions by the accused with respect to some of the allegations, together with denials of other (but not all other) allegations made against him.
The prosecution relies on these letters, both by way of an admission as to some of the alleged offending, and an implied admission, as to silence, of those aspects of the offending which were neither expressly admitted nor expressly denied by the accused, in those letters.
As the trier of fact, I must determine, in each instance, whether any admission was made and if so, what was the subject matter of the admission. I must also determine the significance of the statement(s) made by the accused and consider any (other) possible explanation(s) for what was said.
I must consider whether at the time of the conversation with GB (and at the time he wrote each letter), the accused understood what was being alleged against him and whether the circumstances are such that as a matter of commonsense and ordinary experience, one would expect the accused to have responded in the way contended by the prosecution, that is, to expressly deny certain conduct attributed to him.[58]
[58] R v Spencer [2019] SASCFC 70 at [35]-[38].
The prosecution does not rely on this evidence as demonstrating any consciousness of guilt.
Lies
The prosecutor submitted that the accused had told various lies, both in his evidence, as to parts of what he told GB and some of what he wrote in the letters to MJH and MB. Some of these asserted lies go directly to the question of whether or not the accused did an act or acts as alleged by any of the complainants. Others go to peripheral matters.
The prosecution does not rely on any such lies as demonstrating a consciousness of guilt, rather they rely on any proven lies a being relevant to the accused’s credit. There is clearly circularity in reasoning which is to the effect that the accused must be lying insofar as he has denied the offending and therefore this should impact on his credit.
However, insofar as it is suggested that the accused told lies with respect to ancillary matters, I remind myself that 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, as to each count, 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
I remind myself that there is no onus on the accused to prove that any of the complainants had a reason to make false allegations against him.
The absence of any motive to lie does not the mean the complainant (or complainants) are telling the truth. There may be many reasons why a witness may lie. I must not treat a complainant’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 credibility and reliability of each complainant, considered separately.
Background facts - not in dispute
Family members/living arrangements

The accused and MJH met in about 1994 and commenced living together at the Blakeview house approximately one year thereafter.[59] They married in 2004.[60]
[59] T 361.12-13; T361.17-20; T 589.32.
[60] T 589.37-38.
MJH is the mother of three daughters, CLF, AB and BAR.[61] They were all adults when the accused and MJH met.
[61] T 361.2-5.
MJH has never held a driver’s licence and was reliant on the accused to drive her to places.[62] She has also suffered from ill health for many years.
[62] T 365.21-23.
CLF is a nurse and is married to SF. CLF has two children, a daughter, CF and a son MF.[63] CLF and her family moved from South Australia to live interstate in 2013. CLF now lives in Brisbane, Queensland.[64]
[63] T 400.2-14.
[64] T 400.33-38.
AB is a registered nurse.[65] Her husband, GB, is a current serving police officer holding the rank of Detective.[66] At all material times, AB and GB lived at Pasadena in a home with a swimming pool, a considerable distance away from the Blakeview house.[67] AB and GB have two children, a daughter, AJB, and a son, LB, born in October 2001.[68]
[65] T 404.35-38.
[66] T 414.32-38.
[67] T 407.2-7; T 412.4-8.
[68] T 405.24-30.
BAR manages an IT department for a public sector agency. BAR married PR in 2000. BAR and PR have three children, MR, TLR and a son, JR, born in 2004.[69]
[69] T 431.31-432.16.
At all material times until 26 December 2013, BAR, PR and their children lived at the Craigmore home, only a short distance from the Blakeview house.[70] A pool was installed at the Craigmore home when TLR was aged about seven or eight, that is, in around 2008 or 2009.
[70] T 435.33-35. Exhibit P19 is a plan of the Craigmore home.
MR and AJB were very close when growing up and spent a lot of time together during school holidays and on some weekends. They would see each other at one of their houses or they would both sleepover at the Blakeview house with the accused and MJH.[71] During those sleepovers, MR and AJB would sleep on an air mattress on the lounge room floor.[72]
[71] T 25.15-34.
[72] T 26.35; Exhibit P3 is a plan of the Blakeview house. The lounge room is marked as such on that plan.
On 26 December 2013, BAR, PR and their children moved to live in Perth for about ten months and then returned to live in South Australia. At the time they moved to Perth, MR was aged 16 and TLR was aged 12. Upon their return, the family lived at Morphett Vale and then moved to a house in Hallett Cove.[73]
[73] T 229.22-24; T 296.5-10.
Schooling – MR and TLR
The first school both MR and TLR attended was CM School. This was located within a short walking distance from the Craigmore home. MR attended CM School until Grade 4, when she moved to CCS.[74] TLR attended CM School until the end of Year 1 (2007) and thereafter, she also attended CCS. When JR started school, he started at CCS.
[74] T 27.3-7.
There was ultimately no dispute that there were occasions when the accused went on his own to collect MR, TLR (and MR’s friend JAK) from CCS.
MR remained at CCS until Year 10, when she left to undertake Year 10 at GHS.[75] MR completed Year 6 in 2009.[76] She completed Year 10 just before the family moved to Perth. I am satisfied therefore that MR first attended GHS in 2013.
[75] T 27.8-15.
[76] Exhibit P8 at p 3.
TLR and JR both attended CCS until the family moved to Perth.[77] As such, in 2013, when MR was attending GHS, both TLR and JR attended CCS. TLR turned 12 on 10 March 2013. JR was aged either eight or nine during 2013.
[77] Exhibit P24, school photographs at pp 3-4; T 231.6-20.
There was ultimately no dispute that after MR moved to GHS, there were occasions that the accused would collect MR from GHS on her own. There were also occasions when the accused would collect TLR and JR from CCS, on his own, and take them back to the Craigmore home. He would be alone with TLR and JR at the Craigmore house until MR arrived home from GHS, shortly thereafter.
MR’s friendship with JAK
MR met JAK at CCS when they were in a combined Year 4/5 class. JAK was in the year above MR and they quickly became close friends. JAK would often spend time at the Craigmore home, both during the week after school, on weekends and during school holidays. JAK also spent time with MR (and the accused and MJH) at the Blakeview house.[78]
[78] T 28.10-23.
There was no dispute that the accused met and knew JAK through her friendship with MR. At times, he drove JAK home from school. He admitted that on occasions he would greet JAK with a hug and that he would ‘pat’ her on the bottom when doing so, as he did with MR, AJB and TLR.
The accused’s arrest(s)
On 26 January 2023, the accused was arrested for the alleged offending against MR and TLR.[79] At that time, the police informed the accused of the allegations made by MR and TLR, in the terms as set forth in Exhibit P35.[80]
[79] T 533.29-534.6.
[80] T 562.31-563.4.
On 4 February 2023, the accused was arrested for the alleged offending against AJB.[81] At that time, the police informed the accused of the allegations made by AJB, namely that he had indecently assaulted her by slapping and squeezing her buttocks numerous times, lifted her top and tickled her chest area numerous times while playing the ‘Grandpa game’ and used a hand-held massager to massage her thigh area close to the groin .[82]
[81] T 563.13-19.
[82] T 563.31-36.
On 5 February 2023, the accused was charged for the alleged offending against JAK.[83] At that time, the police informed the accused of the allegations made by JAK, in the terms as set forth in Exhibit P36.[84]
MR’s evidence
[83] T 564.3-8; Exhibit P36 at [55].
[84] T 564.13-565.3.
General/background
MR gave evidence that she had always been very close to MJH and had a good relationship with her.
She spent a lot of time with MJH and the accused when she was growing up. They would take her and her siblings out to places, such as the beach or the park.[85] She often stayed at the Blakeview house overnight, either with AJB or TLR and JR.[86] The accused would also pick her up from school.[87]
[85] T 58.3-11.
[86] T 69.22-70.4.
[87] T 29.15-16.
MR referred to the accused as ‘Grandpa’. She described him as ‘always very touchy and inappropriate’.[88] When asked what she meant by that, she elaborated by summarising the allegations which form the basis for count 1.[89]
[88] T 29.16-17.
[89] T 29.32-30.1.
Alleged offending
First incident – beach
MR gave evidence that the first time she remembered the accused touching her inappropriately was when she was at the beach with the accused and MJH. She was aged under 10 and still at CM School, in either Year 2 or 3.[90] She thought that TLR and JR were also with them and that it was during the school holidays.[91]
[90] T 30.2-15.
[91] T 31.3-8.
MR remembered wearing a one-piece bathing suit. She was lying on her back on a floatie in the water, as the accused pushed her around on that floatie. She described the accused standing in front of her and as he pushed her, he used his hands to touch her thighs to move her legs apart. He then brushed his fingers under her bathing suit and over the top of her vagina. He did this for about a minute. He did not insert his fingers into her vagina.[92]
[92] T 30.15-37; T 31.12-21.
MR could not recall if there was anyone else in the water or if she or the accused had said anything at the time. She did remember feeling very uncomfortable, although she did not really understand what was happening as she was so young.[93]
[93] T 31.22-33.
Later in her evidence, MR was shown several photographs taken of her, TLR and /or AJB in the pool at the Craigmore home.[94] An inflatable device is depicted in those photographs. She said she thought that the floatation device depicted in the top left hand corner photograph on page 7 was the ‘floatie’ that she was lying on, when the accused touched her inappropriately at the beach.[95]
[94] Exhibit P10 at pp 5 and 7.
[95] T 78.7-15.
In cross-examination, MR gave evidence that she had gone to the beach with the accused and MJH on multiple occasions. She agreed with a proposition that when they went to the beach, they (and the accused) would stay in the shallows. The incident had occurred when they were in shallow enough water for her to be floating and the accused to be standing in front of her. MJH would have been on the beach, but she did not know if she was sitting or standing up watching her.[96]
Grandpa game
[96] T 86.10-14; T 87.33-88.14.
MR gave evidence that the next time she remembered the accused made her feel uncomfortable was when they were playing the Grandpa game.
MR described the Grandpa game as a game that either she and AJB or she and TLR would play with the accused when they were at the Blakeview house. The accused would hide in the bathroom, the kids would then go and hide somewhere in the house and the accused would try to find them. She first played this game when she was still at CM School and aged about seven and continued to play the game until she was a bit older and a teenager at CCS.[97] They played the game almost every time she was at the Blakeview house during that timeframe.[98] She could not recall whose idea it would be to play the game.[99] She could not remember if JR had ever played the Grandpa game but agreed that was possible.[100]
[97] T 31.37-32.3; T 32.17-22; T 32.30-33; T 36.1-13. She confirmed in cross-examination that she played the Grandpa game from when she was younger than 10 until she was maybe 12 or 13; T 92.9-11.
[98] T 33.5-16.
[99] T 72.2-4; T 92.16-28; T 115.6-17.
[100] T 115.2-5.
MR recalled playing the game both inside and outside, but said it was mainly played inside.[101]
[101] T 94.5-13.
MR gave evidence that when the accused found them in their hiding spot, ‘he would grab us and tickle us and take us to the ground’.[102] She said that almost every time she played the game, when she was on the ground, the accused would pin her to the ground and either touch her chest, on her breasts, up her top or, if no one else was around, he would put his hand down her pants and put his finger inside her vagina for a few seconds.[103] He would be laughing, she would be screaming ‘stop’ and when she screamed ‘stop’ he would usually stop thereafter.[104]
[102] T 32.3-4.
[103] T 32.4-13; T 34.21-38.
[104] T 34.24-36.
She did not remember anyone (or specifically MJH) coming to help her when she yelled ‘stop’. She surmised that this was probably because they thought nothing of it – it was all part of the game and the accused would be laughing at the same time.[105]
[105] T 70.36-71.6; T 98.8-11.
When asked to describe in more detail how the accused would touch her on the chest, she said:[106]
He would put his hand up my top and he would sort of brush his hand over each of my breasts.
[106] T 70.12-13.
She thought he only used one hand.[107]
[107] T 70.15-16.
When the accused put his hand into her pants and into her underwear, her pants would still be on.[108]
[108] T 70.23-28.
MR gave evidence that this happened multiple times, so many that she could not recall a specific occasion.[109] She remembered feeling very uncomfortable and scared when it happened, but was too young to think it was anything other than part of the game.[110]
[109] T 34.8-12.
[110] T 35.13-15.
MR explained that she would usually be on her back on the ground and the accused would be over the top of her, holding her down with his hands. She could not break free because he was a lot bigger than her. He would tickle her all over her body, both under and over her clothing.[111]
[111] T 33.30-34.4.
While they played the Grandpa game, MJH would either be in the kitchen or in the lounge room watching TV, but she never participated in the game.[112] If other people were around when the accused caught her, he would still tickle her and pinch her on the bottom but would not put his hands down her pants.[113]
[112] T 33.17-25.
[113] T 35.5-12.
MR never talked to anyone at the time about the accused touching her during the Grandpa game.[114]
[114] T 36.14-16.
MR agreed that it was possible that when she was ‘caught’ by the accused, and was on the ground being tickled by him, she would try to move around to stop him from tickling her. She could not remember if she ever curled up in a ball so he would have less of her to tickle. She agreed that she would not have simply lay there motionless.[115] As the aim of the game was not to get caught, she did not think the other children would come out from where they were hiding in response to her having been caught by the accused. However, she agreed that from her hiding place, she may have seen the accused catch another child and tickle them.[116]
[115] T 95.11-32.
[116] T 95.36-96.12; T 98.29-35.
MR acknowledged that when she was not being caught, she enjoyed playing the Grandpa game. She explained that as she was a child she still enjoyed that part of the game which involved playing hide and seek. What she did not enjoy was being caught and tickled and feeling uncomfortable.[117]
[117] T 121.9-15.
She could not remember if she, TLR or AJB had ever said to the accused that they did not want to play the game.[118]
[118] T 98.16-24.
It was suggested to her that the accused could not have done what she claimed because it was physically impossible. She gave the following evidence:[119]
[119] T 96.13-32.
Q.In the course of this game, you would be wearing pants and underpants.
A.Yes.
Q.And you're wriggling around.
A.Yes.
Q.As you've described. I suggest to you - and was he trying to hold you with one hand.
A.I think so.
Q.Because if he wasn't holding you with any hand you could escape, couldn't you.
A.Unless he was over the top of me.
Q.What, lying on you.
A.Or using his knees, but I can't remember how many hands or knees he was holding me down with. I think one hand.
Q.Possibly two hands.
A.Well, maybe for a moment, but certainly not when he was tickling me, or putting his hand down my pants.
Q.I suggest to you that in those circumstances he never put his hand down your pants; you deny that.
A.Yes, I deny that.
Accused exposed himself
MR gave evidence that when she was extremely young, under the age of 10, the accused exposed himself to her in the main bedroom at the Blakeview house.
MR said she was walking down the corridor past the accused’s bedroom door, when he called out from inside that room for her to stop. She stopped in the doorway of the bedroom. She saw the accused lying in bed with a blanket over him. He then pulled the blanket down to expose to her that he was naked from the waist down. He had a top on but no pants. [120] She could not remember what type of top.[121] As to what happened next, she said:[122]
He touched himself and I immediately freaked out and left and then after that he approached me in the backyard and I remember I was really young because I didn't understand what was happening and I remember saying to him 'I don't love you in a husband and wife way. I love you in a grandpa and grandchild way' and I don't remember if he said anything but I just remember feeling very uncomfortable and confused.
[120] T 52.17-32.
[121] T 111.24-30.
[122] T 52.35-53.4.
She could not recall the accused saying anything to her at the time he exposed herself. The conversation she described had occurred after this, in the back yard, when she was confused about what had happened.[123]
[123] T 53.20-22; T 53.25-31.
When asked how the accused had touched himself, MR described the accused’s penis as being up on his stomach. He pulled it down with his hand and had his hand on it. She demonstrated this movement while giving her evidence.[124] The accused was sitting a bit upright in the bed, rather than simply lying flat.[125]
[124] T 53.5-19.
[125] T 112.3.
This was the only time the accused had exposed himself to her.[126]
[126] T 53.35-38.
MR drew a plan depicting where she was and where the accused was, in the bed, when this incident had occurred.[127] She confirmed that the bed had not always been in that position in that room and that at some stage it was moved to the opposite wall.[128]
[127] Exhibit P7.
[128] T 109.16-34.
This incident had occurred during the day (rather than at night). MR remembered the room being light and thought it was natural light. She could not recall if there were any blinds or curtains on the window.[129]
[129] T 110.31-32; T 112.24-31.
MR agreed that MJH would have been up and about at the time. She was not sure who else was at the Blakeview house but agreed it was likely AJB would have been there if this had occurred during a ‘sleepover’.[130]
[130] T 111.1-5.
It was suggested to MR that from his position in the bed, the accused could not have seen if anyone else was in the corridor in the vicinity at the time. She said:[131]
A.I don't know what he would have been able to see.
Q.Would you not be able to say that. I mean, you had been in his room often enough.
A.I haven't sat in his bed though.
Pornographic magazines
[131] T 112.15-18.
MR gave evidence that when she and AJB were young, they thought that the accused was a ‘bad guy’, a ‘villain’. They would pretend they were detectives and look for clues to support their theory.[132]
[132] T 36.32-35; T 68.22-28.
The accused had a shed in the backyard at the Blakeview house.[133]
[133] T 72.16-23; Exhibit P2 at image 057.
She only ever seen the accused use the shed and it was her recollection that no one else was allowed to use it.[134] As to whether there were any rules to this effect, she said:[135]
Well, he was just very protective of the shed. It would always be locked or closed with the lock done and he would always know if somebody had been in there. I'm not sure how it first came about that there was just this rule that nobody was to go in the shed.
[134] T 72.24-28; T 72.37-38.
[135] T 72.32-36.
The shed did not have a lock that required a key or code for it to open, rather it was a lock that simply slid across and could be opened.[136]
[136] T 73.3-11.
MR could not remember a specific occasion when she was told to stay away from the shed. However, the accused was very protective of it, and from the way he behaved when he caught them going in the shed, she had concluded that he did not want them going in there.[137]
[137] T 99.6-17.
MR remembered going into the shed with AJB, at a time when she was very young (likely still at CM School) and finding a big stack of pornographic magazines in a brown cupboard with a sliding door.[138] They opened the magazines and looked at them. They did not really know what these were and were a bit confused about what they had found. [139]
[138] T 73.12-74.5; Exhibit P2 at image 060.
[139] T 36.27-37.2; T 37.6-19.
MR gave evidence that she had gone into the shed and seen the pornographic magazines on many occasions. She described thinking that the accused was setting ‘traps’ for them, like leaving the sliding door open by a finger width, so he would know they had been in the shed and had seen them.[140]
[140] T 37.20-29.
In cross-examination, MR was asked how many times she had been inside the shed. MR said this was many times, more than 10, but she could not recall exactly as it was so long ago. She only went inside the shed when the accused was not around.[141] She and AJB went into the shed, to look at the magazines, whenever they had the opportunity to do so – that is, when the accused and MJH were inside and she and AJB were alone in the backyard. This included when she was attending school at CCS. She could not recall if she had gone inside the shed with TLR, or with anyone else.[142]
[141] T 99.18-36.
[142] T 39.16-36; T 103.6-7.
MR described an occasion when she and AJB were talking outside the front of the shed and the accused approached them. He said that he knew that they had been looking through his things and asked them if they liked what they had seen. They had acted as if they did not know what he was talking about.[143]
[143] T 37.36-38.14; T 38.34-38.

Further, although TLR described her pants as being removed on both occasions, in cross examination, when asked about this in the context of the second incident, TLR explained that she said this because she remembered she was not wearing pants. She said that may be because she was wearing a nightie that the accused simply pushed up, and that she did wear nighties at that time.
Each incident, as described by TLR, lasted around five minutes. Of course, this was only an estimate and TLR conceded, at least with respect to the first occasion, that this was based on her feeling as if it had gone on for quite a long time.
Having regard to all of the above matters, I disagree that the offending described by TLR was simply too brazen and too risky to render her account of either occasion implausible.
Moreover, I am satisfied beyond reasonable doubt that if TLR was alone in a darkened room, in these circumstances (that is, MJH was lying down and MR was elsewhere) this provided a perfect opportunity for the accused to offend against TLR. The accused’s offending was opportunistic offending.
As to the first incident, TLR gave compelling evidence that during that incident, she was trying to focus on the cartoon, which was still playing. She was certain he stopped after performing the oral sex and that he had stopped when she had told him she was not enjoying it.
I am satisfied beyond reasonable doubt that TLR is telling the truth about this incident. I am further satisfied beyond reasonable doubt that she has not dreamt this incident or imagined it, nor is it the product of a false or mistaken memory, whereby something innocent has been misconstrued in hindsight.
I accept TLR’s evidence beyond reasonable doubt as to the circumstances in which the accused first sexually abused her in the lounge room at Craigmore, when she was watching cartoons.
When the accused digitally penetrated TLR’s vagina and engaged in cunnilingus with her, he had ‘sexual intercourse’ with TLR. TLR was under the age of 14. I find beyond reasonable doubt that the accused’s conduct on this occasion amounted to the unlawful sexual act of unlawful sexual intercourse.
The second incident is unusual insofar as it involved the silver spiky item. TLR was quite certain this incident also occurred in the lounge room when she was watching cartoons, hence why she initially thought it had occurred the same day as the first. Although not expressly stated, it must be inferred that TLR recalls this second incident as also occurring in the lounge room at Craigmore.
I refer to my previous findings as to TLR’s knowledge and detailed memory of the silver, spiky object. I am satisfied beyond reasonable doubt that TLR genuinely has a memory of the accused using this silver spiky object on her vagina.
However, I do have my doubts as to whether any such incident could have occurred at the Craigmore home. As emphasised earlier the accused’s offending was opportunistic. The silver, spiky item was kept at the Blakeview house. If the accused used it on TLR in the lounge room at Craigmore, such offending must have involved a degree of foresight, planning and orchestration. This simply does not ‘fit’ with the other offending.
MJH had no recollection of ever seeing the silver, spiky item. In such circumstances it is unlikely that this was something the accused packed, to take with them to the Craigmore house, to massage MJH’s back, such that it was simply a matter of luck that he had the item on him, at a time when the opportunity to be alone with TLR and to offend in this way, arose.
In these circumstances, I cannot be satisfied beyond reasonable doubt that TLR’s account of the second occasion of alleged offending in the lounge room at Craigmore is accurate.
I consider it likely that what TLR recalls as the second occasion of offending in the lounge room at Craigmore, in fact occurred in the lounge room at Blakeview, also when she was alone, in the lounge room, watching cartoons. However, in the absence of TLR giving such an account I cannot be satisfied of this beyond reasonable doubt.
Kitchen incident
As previously stated, TLR’s evidence about the incident in the kitchen at the Craigmore home was compelling in terms of the detail she recalled and her concern that this was happening where MJH could potentially see it.
I am satisfied beyond reasonable doubt that TLR’s account of this alleged offending is both true and accurate.
I find beyond reasonable doubt that when TLR was about six or seven, the accused came up behind her in the kitchen, grabbed her chest with both of his hands over her clothes and used his hips to ‘hump’ her from behind. Again, this contact was over TLR’s clothing.
When he did this, the accused applied intentional force to TLR. These actions were not accidental or inadvertent. TLR was aged under 14. I am further satisfied beyond reasonable doubt that this conduct was indecent.
I find beyond reasonable doubt that when the accused did this to TLR, his actions amounted to the unlawful sexual act of aggravated indecent assault.
Offending after school in bedroom
I refer to my earlier finding that there was a small window of opportunity for the accused to commit the offending TLR described as having occurred in her bedroom, after school, on those occasions when the accused collected her and JR from CCS.
For the reasons as outlined below, I am satisfied that there was the time for this offending to have occurred before MR arrived home from school.
TLR described each of the alleged offences in her bedroom as being of the duration of around ten minutes.
TLR gave evidence the school day at CCS ended between 3:10 and 3:30pm, it was a five-minute drive home and MR would arrive home from GHS around 4:00pm. I refer to my earlier findings as to the accused’s evidence on this topic. I prefer and accept TLR’s evidence, that is, that there was, at least, about 20 minutes between the time she, JR and the accused arrived at the Craigmore home from CCS and MR arrived home from GHS.
The accused agreed with a proposition that when they arrived at the Craigmore home, TLR would go straight to her room and unpack her school bag. Several of the witnesses spoke of JR spending a lot of time in the front lounge room watching Foxtel, consistent with TLR’s evidence that she thought that was what JR was doing, during these alleged occasions of abuse. The accused acknowledged that when they got home, JR would either get a drink from the kitchen or be in his bedroom or in the front lounge room watching Foxtel.
I accept that if JR was in his bedroom, he may have heard the alleged abuse, as his bedroom was immediately adjacent TLR’s bedroom. However, JR’s bedroom was not accessible from the same passage as TLR’s bedroom, meaning it was some distance to physically get from his bedroom to hers. The front lounge room was at the other end of the house from TLR’s bedroom and a considerable distance away. If JR came home from school, grabbed a drink, went to the toilet and then sat in the front lounge room to watch Foxtel, he would be unlikely to hear anything going on in TLR’s room or to move from this position in the near future.
The accused knew how long it would take for MR to arrive home because he did that very same journey with her. He would therefore have known, in advance when she was likely to arrive home and whether, on any particular day, there was the opportunity for him to be alone with TLR, while JR was otherwise preoccupied.
The offending described by TLR was certainly brazen and carried with it a considerable risk of being discovered either by JR (who was then aged around nine) or MR. However, the accused had a propensity to opportunistically act on his sexual interest in TLR, notwithstanding that doing so carried with it a risk of detection.
TLR recalled this offending occurring when she was aged 11 or 12, which is consistent with her age during 2013, when MR had moved to GHS.
Her evidence as to the three specific incidents she recalled was convincing. As to the occasion when the accused lay on top of her and humped her, she remembered the feeling of his erection and how upset she was, because by this stage she was old enough to understand what was happening to her. She just wanted it to be over. She distinctly remembered that she had started to go through puberty and had breasts when the first incident of oral sex occurred. Her description of her summer dress being folded up onto her stomach during the second such incident was also compelling.
This offending was not imagined or dreamt or somehow misconstrued.
There was other evidence which also lent support to TLR’s account, namely BAR’s evidence at how upset TLR was about the fact that she insisted the accused collect her from school at this time, rather than let her walk home.
It was submitted that if this occurred, MR would have noticed something untoward about TLR’s behaviour when she arrived home. I reject that submission. TLR was known to be an unusual child. Although there was no evidence on this topic, I consider it likely that once MR arrived home, and the accused left, that TLR stayed in her room, given her propensity to isolate herself from others.
Further, by this stage, the accused had been sexually abusing TLR for many years, without anyone close to her suspecting this.
I accept TLR’s evidence beyond reasonable doubt, namely, that there was an occasion when she was around 11 or 12 and the accused drove her and JR to the Craigmore home after school. The accused followed TLR into her room, pushed her onto the bed and lay on top of her. He then used his crotch area to hump her on her crotch area, such that she felt his erect penis through his clothing.
I am satisfied beyond reasonable doubt that when he did this, the accused intentionally applied force to TLR. This was not accidental or inadvertent. TLR was aged under 14. This application of force was indecent.
I am satisfied beyond reasonable doubt that when the accused did this his conduct amounted to the unlawful sexual act of aggravated indecent assault.
I accept TLR’s evidence beyond reasonable doubt that there were two occasions when, in similar circumstances, the accused followed her into her bedroom, threw her onto the bed and sexually abused her. On the first such occasion, TLR was wearing her winter uniform. He pulled up her skirt and pulled her underwear down to her knees. He grabbed her chest and squeezed her breasts. He rubbed her vagina, then inserted two fingers in her vagina. He then sucked on her vagina. On the second occasion, TLR was wearing her summer uniform. He lay on her, then opened her legs and pulled her underwear down to her knees. He rubbed her vagina and then inserted two fingers in her vagina. He then sucked on her vagina while continuing to insert his fingers in her vagina.
I also accept TLR’s evidence beyond reasonable doubt that there were multiple other occasions when the accused would ‘finger her’ in her bedroom after he drove her and JR home from CCS.
I am satisfied beyond reasonable doubt that when the accused touched TLR on her breasts, he intentionally applied force to TLR. This was not accidental or inadvertent. TLR was aged under 14. This application of force was indecent. I am satisfied beyond reasonable doubt that on each occasion the accused did this, his conduct amounted to the unlawful sexual act of aggravated indecent assault.
I am satisfied beyond reasonable doubt that on each occasion the accused digitally penetrated TLR and/or sucked her vagina, he engaged in an act of sexual intercourse with her, when she was under 14, such that this conduct, on each occasion, amounted to the unlawful sexual act of unlawful sexual intercourse.
Pool incidents
The evidence TLR gave as to the occasions of offending in the pool, was extremely convincing.
TLR recalled the first such incident when she was around seven or eight, when the accused pushed her on the floatie, in the pool, and then touched her, on her vagina, under her boardshorts when doing so. She recalled him doing this at least three times.
I disagree with the submission that this offending was physically impossible. In my view it was physically possible for the accused to push TLR on the floatie, and for it remain afloat, while TLR lay on her belly, and he used one hand to push her foot and the other hand to reach under her legs and touch her over her crotch/groin area. This was opportunistic offending and relatively discrete contact which was unlikely to be seen by others in or around the pool.
I accept TLR’s evidence beyond reasonable doubt as to how the accused touched her when pushing her on the floatie on those occasions. I am satisfied beyond reasonable doubt that this conduct involved the intentional application of force. The conduct, and the area of the contact, was deliberate and neither accidental or inadvertent. TLR was under 14. Touching TLR over the top of her vagina, on her boardshorts, was indecent. This conduct amounted to the unlawful sexual act of aggravated indecent assault.
It was submitted that the other incident TLR recalled happening on the pool seat simply could not have occurred, due to the close proximity of others, sitting near the pool, who could have seen that conduct.
I reject that submission.
TLR was very frank that from where she and the accused were seated in the pool, others could have seen them. Indeed, she was concerned that would occur and that she would get into trouble.
TLR is not making this up. She has not dreamt or imagined this.
The accused was prepared to take risks to sexually abuse TLR and had done so on many occasions. I accept TLRs evidence that she and the accused were alone in the pool at this time. Those family members seated at the outdoor area would have been able to see her and the accused sitting together on the pool seat. However, that does not mean they could have seen what was happening below the water.
Although TLR estimated the outdoor setting was only three to four metres away from the pool seat, I consider her estimate is inaccurate. What she described was an outdoor setting on the veranda outside the family room window. This area can be seen in the photograph on page 40 of Exhibit P40 and also in the top right photograph on page 7 of Exhibit P10.
The pool seat is on the side of the opposite side of the pool. I am satisfied the distance between the pool seat and outdoor setting was at least five metres, probably more. There was a black tubular pool fence between the outdoor setting and the pool. Those seated at the outdoor setting were likely preoccupied with their own conversations. In my view, it was, in fact, most unlikely that anyone seated at that outdoor setting, would see what the accused was doing. Those with their backs to the pool would not have seen it. Those facing the pool were likely to have other obstructions to their vision including anyone seated opposite them. The accused and TLR were facing the outdoor setting and therefore were alert to the prospect of anyone actively looking in their direction. If anyone had looked over it would have been simple for the accused to move his hand (which he had used to place TLR’s hand on his crotch) and simply splash the surrounding water, meaning it would be very difficult for anyone to see what he was doing with his other hand.
I accept TLR’s evidence beyond reasonable doubt that there was an occasion when she and the accused were alone in the pool at Craigmore, sitting next to each other on the pool seat. TLR did not say precisely when this occurred, but it must have been after the pool was installed, that is, when TLR was around seven or eight, and before they moved to Perth (when she was 12).
I accept TLR’s evidence beyond reasonable doubt that on that occasion, the accused put his hand under her boardshorts and inserted one finger in her vagina and then moved his finger in and out of her vagina for a few minutes. I also accept TLR’s evidence beyond reasonable doubt that at the same time the accused used his free hand to place TLR’s hand on his penis, but over his clothing.
When the accused inserted his finger into TLR’s vagina, she was under the age of 17 and this was an act of sexual intercourse. As such, I am satisfied beyond reasonable doubt that this conduct amounted to the unlawful sexual act of unlawful sexual intercourse.
When the accused placed TLR’s hand on his penis, over his clothing, this involved the intentional application of force to TLR. This was not accidental or inadvertent. TLR was aged under 14. The application of force was accompanied by circumstances of indecency. I am satisfied beyond reasonable doubt that when the accused did this, his conduct amounted to the unlawful sexual act of aggravated indecent assault.
Grandpa game
The accused’s admitted conduct during the Grandpa game demonstrates that there was the opportunity for the accused to inappropriately touch TLR after catching her, during that game, notwithstanding MJH was likely in relatively close proximity.
TLR’s recollection of how the accused touched her with his foot, when she was lying on her back on the floor, was vivid and convincing. I accept TLR’s evidence, beyond reasonable doubt, that on multiple occasions, when the accused caught her during the Grandpa game, he used his foot to touch her chest and her inner thigh, when she was lying on her back on the floor. TLR did not give evidence as to whether such touching was under or over her clothing.
Each time the accused did this, the accused applied intentional force to TLR. These actions were deliberate and not accidental or inadvertent. TLR was aged under 14. I am further satisfied beyond reasonable doubt that this conduct was indecent. It occurred at a time when the accused had a sexual interest in TLR. He touched her on her chest and inner thigh, both intimate parts of the body. It is irrelevant if that touching was under or over her clothing - it was still indecent. There was simply no reason for the accused to touch TLR on those intimate parts of her body. I am satisfied beyond reasonable doubt that the application of such force was indecent having regard to reasonable contemporary standards and that it had a sexual connotation.
I find beyond reasonable doubt that on each occasion the accused did this to TLR, his actions amounted to the unlawful sexual act of aggravated indecent assault.
I am further satisfied that on each occasion the accused engaged in the admitted conduct, that is, touching TLR’s chest and vagina, under her clothing, during the Grandpa game, the accused’s conduct amounted to the unlawful sexual act of aggravated indecent assault.
Pussy comment
The accused acknowledged that the word ‘pussy’ was part of his vocabulary, although he denied using it in the circumstances as claimed by TLR. His apparent surprise that anyone would think it inappropriate for him to use that word, even in the way he said he used it, was unconvincing.
I accept TLR’s evidence that shortly prior to the family moving to Perth, she was in the family room at Craigmore, when the accused came up to her, told her how much he would miss her and then asked her if she had hair on her pussy.
The prosecution case was that when the accused said this to TLR, he made a communication for a prurient purpose with the intention of making TLR amenable to sexual activity.
I am satisfied beyond reasonable doubt that when the accused made this comment he was acting for a prurient purpose, that is, to satisfy his own desire for sexual arousal or gratification. However, I cannot be satisfied that when the accused made this comment, he intended to make TLR amenable to sexual activity. The words used by the accused simply do not go far enough, for me to be so satisfied, particularly in the absence of there being any conduct accompanying those words, directed at engaging in sexual activity.
I have also considered whether in making this comment, the accused committed the unlawful sexual act of gross indecency. I am not satisfied that what he said, although extremely inappropriate, reaches the threshold of ‘gross indecency’.
Naked photographs

TLR gave evidence that on occasions when the accused was sexually abusing her, he asked her if he could take photographs of her. This had occurred sometime after the first occasion she described the accused abusing her in the lounge room at Craigmore when she was watching cartoons on occasions when the accused was fingering her. She described him as almost begging her to allow him to take photographs of her naked body. She would say no.
TLR said she was only about six or seven at the time of the first ‘Super Mario Bros’ incident. The accused took the photographs of TLR’s exposed vagina when she was sleeping when she was aged around six or seven. He took the photograph of her in the white singlet through which her nipples were visible when she was about 10 or 11 (Exhibit P18).
The accused conceded he wanted photographs of TLR engaging in penetrative sexual acts (in the context of the evidence given by him as to the cutout photographs and what he did with them).
The evidence establishes, and I find, that the accused was a prolific photographer. He would take photographs of TLR when she was simply at home, going about her ordinary activities. He took photographs of TLR to satisfy his sexual interest in her.
I accept TLR’s evidence beyond reasonable doubt that there was more than one occasion, when she was under the age of 14, that the accused asked her permission to take photographs of parts of her naked body, when he was fingering her.[954]
[954] Noting that although TLR talked about herself being ‘naked’ at the time of such requests, she gave no evidence that she was ever fully naked when she was abused. I am satisfied that what she meant was that her private parts were uncovered (or naked) when he made such requests.
I am satisfied beyond reasonable doubt that each time the accused made such a request (being a communication), he was acting for a prurient purpose, that is, to satisfy his own desire for sexual arousal or gratification. I am also satisfied beyond reasonable doubt that when the accused made such requests, he intended to make TLR, being a person under the age of 14 years, amenable to sexual activity, that is, the production of child exploitation material.
Incident after cleaning Blakeview house (count 5)
I accept TLR’s evidence that there was an occasion when she attended at the Blakeview house to undertake cleaning duties, following her return from Perth. This was when TLR was living at Hallett Cove and during the charged period in count 5.
I accept TLR’s evidence, beyond reasonable doubt, that when she was alone in the kitchen with the accused, he hugged her and squeezed her bottom.
I am satisfied beyond reasonable doubt that when the accused touched TLR’s bottom, he intentionally applied force to her. This was deliberate contact; it was neither accidental nor inadvertent. TLR had turned 14, but was still under the age of 16, meaning consent is irrelevant. The accused had a sexual interest in TLR and a propensity to act on that interest. For the same reasons as outlined earlier at paragraphs 1299 to 1306 and paragraphs 1308 to 1313 herein. I am satisfied such conduct was indecent.
Summary
Count 4
I am satisfied beyond reasonable doubt, that between 10 March 2007 and 26 December 2013,[955] the accused engaged in two or more unlawful sexual acts with TLR namely:
[955] Being the day TLR and her immediate family moved to Perth.
·he touched her chest, both under and over her clothing, on more than one occasion, each such occasion amounting to the unlawful sexual act of aggravated indecent assault;
·he touched her bottom on an occasion, when hugging her, in the kitchen at Blakeview.[956] This occasion amounted to the unlawful sexual act of aggravated indecent assault;
·he touched her groin on more than one occasion. Each such occasion amounted to the unlawful sexual act of aggravated indecent assault;
·he touched her vagina on more than one occasion. Each such occasion amounted to the unlawful sexual act of aggravated indecent assault;[957]
·he inserted his finger in her vagina on more than one occasion. Each such occasion amounted to the unlawful sexual act of unlawful sexual intercourse;
·he caused her to touch his penis, over his clothing, in the pool at Craigmore. This amounted to the unlawful sexual act of aggravated indecent assault;
·he performed an act of cunnilingus upon her on more than one occasion. Each such occasion amounted to the unlawful sexual act of unlawful sexual intercourse;
·he caused his erect penis to touch her bottom area, over her clothing, on an occasion in the kitchen at Craigmore. This amounted to the unlawful sexual act of aggravated indecent assault;
·he caused his erect penis to touch her genital area, over her clothing, on an occasion on her bed at Craigmore. This amounted to the unlawful sexual act of aggravated indecent assault;
·he made a communication for a prurient purpose with the intention of making her amenable to sexual activity, on more than one occasion, being those occasions when he asked to take photographs of her when she was not fully clothed, while otherwise sexually abusing her.
[956] Noting TLR did not give any evidence that the accused touched her bottom when hugging her when greeting her.
[957] Noting that insofar as such touching occurred at the same time as digital penetration, only one unlawful sexual act would have been committed, on that occasion, that being the act of unlawful sexual intercourse.
I am further satisfied beyond reasonable doubt that during the charged period, TLR was a child, the accused was an adult and the accused knowingly maintained a relationship with TLR.
The accused is guilty of count 4.
Count 5
The accused is guilty of count 5.
Orders
Pursuant to s 128(2)(b) of the Criminal Procedure Act 1921, count 3 on the Information is amended to particularise the alleged offending to have occurred at Craigmore, in lieu of Blakeview.
Verdict
The accused is guilty of counts 1, 2, 3, 4 and 5.