R v JH
[2023] SADC 163
•27 November 2023
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JH
Criminal Trial by Judge Alone
[2023] SADC 163
Reasons for the Verdicts of his Honour Judge Press
27 November 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The accused elected for trial by Judge alone. The prosecution alleged that between 1977 and 1991 the accused sexually abused two of his female cousins and his female niece when each was between the ages of two and 10 years of age. The accused was charged with one count of gross indecency as to one cousin, one count of maintaining an unlawful sexual relationship with a child in relation to the second cousin and one count of indecent assault in relation to his niece.
The prosecution relied on similarity of account reasoning.
Verdicts:
Count 1 - not guilty.
Count 2 - guilty.
Count 3 - guilty.
Evidence Act 1929 (SA) s 34M; Evidence Act 1929 (SA) s 34P; Criminal Law Consolidation Act 1935 (SA) s 50, referred to.
R v Thompson [2018] SASCFC 104; R v Johnson [2018] HCA 48; Hamilton (a pseudonym) v The Queen [2021] HCA 33; R v C, CA [2013] SASCFC 137; DES v The Queen [2020] SASCFC 32; R v Marshall [2023] SASCA 105; Hughes v The Queen (2017) 92 ALJR 52; McPhillamy v The Queen [2018] HCA 52; R v Sexton [2018] SASCFC 28; MDM v The Queen [2020] SASCFC 80; R v Cox [2007] EWCA Crim 3365; R v MAS (2013) 118 SASR 160; R v A, GP [2012] SASCFC 81, considered.
R v JH
[2023] SADC 163Introduction
JH (the accused) elected for trial by judge alone. The trial proceeded on the following counts:
First Count
Statement of Offence
Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JH between the 1st day of January 1977 and the 31st day of December 1978 at Salisbury North, committed an act of gross indecency with or in the presence of AC, a person under the age of 16 years, by exposing his penis and asking AC to touch it.
Second Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship With a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Of Offence
JH between the 1st day of January 1978 and the 31st day of December 1985 at Elizabeth Downs and other places, maintained an unlawful sexual relationship with MH, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
a) causing her to perform an act of fellatio upon him 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) inciting or causing her to touch his penis on more than one occasion;
e) touching her breasts on more than one occasion; and
f) rubbing his penis against her vagina.
Third Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JH between the 14th day of December 1988 and the 21st day of May 1991 at Smithfield Plains, indecently assaulted MR, a person under the age of 12 years, by touching her vagina.
The dates in count 3 were amended on the day the trial was to commence.
The Prosecution called the following witnesses; AC (complainant count 1), HL (complaint evidence re AC), MH (complainant count 2), SS (complaint evidence re count 2), MR (complainant count 3), JR (mother of MR), AR (father of MR), KH (sister of AC and MH), BMH (mother of AC and MH), MJH (accused’s sister), BPH (accused sister) and Adam Poole (investigating officer).
The accused also gave evidence.
Directions
The prosecution bears the onus of proving the guilt of the accused. He has the presumption of innocence in his favour. The prosecution must prove each element of each offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt or that the accused is possibly or probably guilty.
If I refer to being satisfied in the course of these reasons, I mean satisfied beyond reasonable doubt.
I must bring an open and unprejudiced mind to the case.
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’ evidence. The accused gave evidence. I have treated his evidence the same as any other witness.
The complainants gave evidence with special arrangements in place. I have not allowed the fact of these special arrangements to influence the weight that I give to the witness’s evidence and nor have I drawn any adverse inference against the accused from the fact that these arrangements were in place.
I remind myself that if I reject any motive to lie, that does not mean that a witness is telling the truth. The absence of a motive to lie also does not strengthen the Crown case. It is neutral. It would be wrong to conclude that because there is no apparent reason for a witness to lie, that her evidence must, on that account, be true. It is not for the accused to prove a motive for a witness to lie. At all times the prosecution bears the onus of proving its case beyond reasonable doubt.
Evidence of complaint was led as regards each complainant.[1] This evidence is relevant as informing how the allegations that the accused sexually assaulted her first came to light and as evidence of the degree of consistency of the complainant’s conduct. I direct myself that any complaint is not evidence of the truth of what the complainant disclosed and that there may be varied reasons why the alleged victim of a sexual offence may make a complaint of such an offence at a particular time or to a particular person.
[1] For reasons explained later the evidence of a disclosure made by AC to HL is not admissible as evidence of complaint and I have not therefore used it in the manner permitted by s 34M of the Evidence Act. It may however be relevant when considering the defence argument as to the possible contamination of her memories.
Discreditable conduct
In the course of these reasons, I have outlined the manner in which I have used behaviour which is discreditable conduct. The evidence of discreditable conduct is the evidence that the accused committed an uncharged act against AC prior to the commission of count 1, the sexual acts described by MH which were not charged as a particular,[2] the evidence of AH that she saw the accused spooning MH on top of the bed when fully clothed and as regards each complainant, the evidence of any acts committed against another complainant. If I accept the accused has committed any of the alleged acts, I have not reasoned in any of the following ways;
[2] Masturbating in front of her.
I have not reasoned that because he has engaged in criminal activity on some other occasion that he is a bad person or a person of bad character and that he is therefore more likely to commit a crime including one of the charged offences. Nor have I reasoned that he is therefore the sort of person who commits crime and is therefore more likely to have committed these offences.
I have not reasoned that because the accused has engaged in some criminal activity, he is therefore a person of bad character and therefore more likely to lie or be lacking in credibility. I have not therefore used the evidence to undermine the credibility of his evidence.
I have not reasoned that because the accused has committed one sexual offence that therefore he is the sort of person who commits such offences, and he is therefore more likely to have committed one of the other offences.[3]
[3] I have not employed any form of permissible or impermissible propensity reasoning.
Lastly, I have not reasoned that because the accused has done something similar on one occasion, he must have done it again in relation to one of the other charged offences. I have separately considered each count and the evidence as regards each count. I remind myself that the charges do not rise and fall together. I must consider the evidence as regards each count separately.
Forensic disadvantage to the defendant
All witnesses gave evidence about events alleged to have occurred more than three decades ago. Some witnesses, including each complainant were children at the time of the key events.
The passage of time between the alleged events the subject of the offences, and the circumstances surrounding those alleged events, has resulted in significant forensic disadvantage to the defendant The forensic disadvantage has manifested itself in more than one way. It may have adversely impacted the defendant’s memory of relevant events, his ability to instruct his counsel and his ability to give evidence on various topics and allegations. Had the trial been closer to the events in question, the defendant may have been able to obtain evidence that he was working or absent from the house at a particular time, that other people were very close by to where the offence is said to have occurred or that his opportunity to have acted in the manner alleged was for some other reason compromised. I note the accused said a woman named Margaret was in the bedroom during the incident alleged by MR for count 3. Whilst I was not advised of her whereabouts, the passage of time is in any event likely to have impacted her recollection of a social gathering from 40 years ago.
I further note the subsequent deaths of the accused’s parents and his wife may also have impacted his ability to obtain evidence on such matters.
To the extent the passage of time impacted the recollections of prosecution witnesses this may have adversely impacted the accused’s ability to obtain exculpatory evidence from those witnesses and to better test their recollections of events or expose where a witness has been inconsistent or wrong. The delay has also made it more difficult for the accused to find and access photographs taken during that time and/or to access documentation which may have impacted upon the accused’s whereabouts at the time of the alleged offences.
I have taken all these disadvantages into account when carefully scrutinising the prosecution case on each count and assessing whether the prosecution has proved its case beyond reasonable doubt.
The elements of the offences
Each element of an offence must be proved beyond reasonable doubt by the prosecution in order to prove the offence.
Count 1: Gross indecency
The elements of gross indecency are that the accused committed an act, the act must be voluntary and deliberate, the act must be in the presence of a person under the age of 16 years, the act must be grossly indecent according to contemporary community standards wherein indecency requires a sexual connotation. Consent is no defence to this charge; a child under 16 is incapable in law of consenting to gross indecency.
Count 2: Maintaining an unlawful sexual relationship with a child
The elements are;
the accused knowingly maintained a relationship with the complainant during the period in which the particularised unlawful sexual acts occurred;
the accused was an adult during the period in which the particularised unlawful sexual acts occurred;
the complainant was a child and under the age of 17 during the period in which the particularised unlawful sexual acts occurred;
the accused engaged in two or more unlawful sexual acts with the complainant in the course of the relationship.
I indicate now I am satisfied beyond reasonable doubt of the first, second and third elements.
The accused and MH are cousins. The accused was her babysitter at an early point in her life and they were both present when their families frequently socialised and interacted over a number of years. I am satisfied the nature and frequency of their associations amounts to a relationship for the purposes of this element. I am also satisfied the relationship existed throughout the period in which the particularised unlawful sexual acts occurred.
The accused’s date of birth is 24 November 1957. He was an adult at the time of all the alleged unlawful sexual acts. MH’s date of birth is 8 May 1975. At the time of all the alleged unlawful sexual acts, MH was therefore under the age of 12 years. I am therefore also satisfied of the second and third elements of the offence.
As to the fourth element, an ‘unlawful sexual act’ is defined in s 50(12) of the Criminal Law Consolidation Act.
The prosecution allege the following acts;
a) causing her to perform an act of fellatio upon him 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) inciting or causing her to touch his penis on more than one occasion;
e) touching her breasts on more than one occasion; and
f) rubbing his penis against her vagina.
Particulars (a) and (c) are alleged to be acts of unlawful sexual intercourse with a person under 12 years;[4] (b), (e) and (f) are alleged to be acts of indecent assault and (d) is alleged to be an act of inciting the commission, by a person under 16 years, of an act of gross indecency with the accused.
[4] At the time of the alleged offending the complainant was required to be under 12 years of age.
There is no evidence as to particular (f) and I indicate now that particular has not been proved.
The elements of unlawful sexual intercourse with a person under 12 years of age which the prosecution must prove beyond reasonable doubt are that the accused had sexual intercourse with the complainant and the complainant was under 12 years at the time of the sexual intercourse. Consent is no defence to this charge. There is no dispute that the alleged acts are acts of unlawful sexual intercourse if it is proved that the act occurred.
To prove the offence of indecent assault, the prosecution must prove that the accused touched the complainant, that the touching was voluntary and deliberate, that the touching was intentional and that the touching was indecent according to contemporary community standards wherein indecency requires a sexual connotation.[5] Consent is no defence to this charge.
[5] In some circumstances the absence of a sexual purpose or motive may mean an act is not indecent however it need not be proved in every case that the accused acted with a sexual motive or interest; R v Thompson [2018] SASCFC 104 [83]. Whether it is necessary to consider whether the accused acted with a sexual motive or interest will depend on the circumstances and the nature of the act.
The elements of gross indecency are that the accused incited a person under 16 years of age to commit an act of gross indecency with him, in circumstances in which the act is grossly indecent according to contemporary community standards, wherein indecency requires a sexual connotation. Consent is no defence to this charge; a child under 16 is incapable in law of consenting to the commission of such an act.
Count 3: Indecent assault
The elements are as indicated above.
The primary defence submission is that the act did not occur in the circumstances described by MR. I note however, that the alleged act occurred in circumstances in which the complainant and the accused were said to be fully clothed, another child was present, and the accused is alleged to have whistled as he touched the complainant. If the circumstances indicate the assault only had the capacity to be indecent, I must also consider whether the touching involved a sexual intention or motive when considering whether right minded people would regard his conduct as indecent.
Prosecution case
The accused and the complainants were part of a large family. In the 1970’s various members of that family emigrated from Scotland to Australia.
The complainants in counts 1 and 2, AC and MH respectively, are sisters. They are both cousins of the accused. AC’s date of birth is 24 October 1969. MH’s date of birth is 8 May 1975. Between 1 January 1977 and 31 December 1978 (the particulars for count 1) AC was between seven and nine years of age. Between 1 January 1978 and 31 December 1985 (the particulars for count 2) MH was between the ages of two and ten years of age.
The complainant as regards count 3 (MR) is a niece of the accused. MR’s date of birth is 21 May 1981. Between 14 December 1988 and 21 May 1991 (the particulars for count 3) MR was between the ages of seven years and 10 years.
Count 1
On the prosecution case the offending against AC involved two incidents: one uncharged and one the subject of count 1. The uncharged incident allegedly occurred when AC was about five or six years old, and the charged offence occurred when she was about eight. The uncharged incident involved an allegation that the accused licked her vagina when he was babysitting her and a number of other children. This act allegedly occurred during what was said to be a game in which the accused placed AC on his shoulders and which occurred in front of other children. The accused is also alleged to have exposed his penis to AC later that night when alone with her in the lounge. The timeframe for this alleged incident included a period in which the accused was 17 years of age.[6]
[6] Notwithstanding the accused was a child such behaviour may still be relevant to the issues in a trial; R v Johnson [2018] HCA 48.
The allegation the subject of count 1 involves an allegation that some two years later when babysitting AC, the accused removed his erect penis from his pants and asked her to touch it. AC had no further recollection of what occurred after that request.
As regards count 1, the prosecution submit the uncharged incident is relevant as it explains that the act the subject of count 1 some two years later did not come out of the blue, it explains why the accused was emboldened to commit the charged act because AC did not complain and it explains why AC said that she went with the accused when count 1 occurred because she was being protective of her sisters. It was further submitted that the uncharged conduct is evidence of the accused’s sexual attraction to AC and a willingness to act upon it. These are the only permissible uses.[7]
[7] The manner in which I have not and must not reason is outlined earlier in these reasons.
AC disclosed the uncharged offending to HL when AC was living in Whyalla when she was around 19 or 20 years old (1988/1989).[8] The prosecution accepted that this disclosure was not admissible pursuant to s 34M of the Evidence Act. I have not therefore used this evidence as evidence of complaint. The prosecution submit however that the evidence of the timing of the disclosure when AC was about 19 years old and living in Whyalla rebuts any suggestion that AC’s memory of the uncharged incident has been contaminated by discussions with others or has more recently been concocted by her.
Count 2
[8] AC stated this first incident was her strongest memory and therefore she believed this is the incident she would have disclosed. HL’s evidence was consistent with that being correct.
Count 2 involves allegations of offending by the accused against MH over about six to seven years. The accused is alleged to have sexually abused her on numerous occasions when her family visited either the home of the family of the accused or the home of the accused. The allegations include pushing her head onto his penis and causing her to perform fellatio, inserting his finger into her vagina, causing her to place her hand on his penis and masturbate him, touching her breasts and pinching her nipples.
MH also alleged the accused masturbated himself in her presence however this act was not a charged particular. I note that it is not clear whether such acts allegedly occurred at the same time as he caused her to masturbate him however this is possible. I indicate now I have only used this evidence as evidence which allows a proper assessment of the entirety of MH’s evidence on the basis such acts may have occurred at the same time as other charged incidents and also as evidence which may explain why MH did not have a clear memory of each individual incident given the number of incidents which occurred over that period.
The prosecution submits the regular socialising between the families allowed for any number of opportunities for the accused to offend. Notwithstanding MH gave evidence that she recalls an incident when she was three years old it is submitted those aspects of her evidence which support her reliability and credibility mean that I can accept the timeframe referred to by MH. It was submitted that notwithstanding MH could not recall with any degree of clarity many of the instances of sexual abuse this was understandable given the number of incidents and the time frame over which they occurred.
The prosecution also led evidence from AC that on one occasion she saw her sister MH and the accused ‘spooning’ on the accused’s bed when MH was about four or five. They were both fully clothed and lying on top of the blankets. This allegation is not a charged particular as regards count 2. It was submitted AC’s evidence that she saw MH being spooned by the accused was not evidence which corroborated the commission of a particular act of sexual abuse however it was said to support MH’s evidence in a general sense that there were opportunities for the accused to offend against MH because there were occasions on which MH was alone with the accused in a bedroom.
MH made her initial complaint to her ex-husband SS when they were still married. They married on 28 May 1994 and the initial complaint was made sometime during the first years of their marriage. Both gave evidence that they had discussed the alleged offending many times however I note only the first disclosure is admissible for the purposes of s 34M of the Evidence Act. There were differences between the evidence of MH and her ex-husband as to the location it occurred but both stated MH said she was abused as a child by the accused.
MH said she did not complain earlier because she was protective of her sister[9] and her father[10] and she also reported feeling confused and dirty. It was submitted that her explanations for not complaining at an earlier time were plausible and the fact her father was very unwell was confirmed by MH’s mother.
Count 3
[9] T107.
[10] T108 and T112.
MR is the niece of the accused through marriage. Count 3 relates to an incident at the Coventry Street home of the accused after the accused was married. The accused and MR were in a bedroom with other children. The accused is alleged to have placed his hand between MR’s legs and touched her vagina over her clothing and then run his hand from her vagina up to her belly button. As she pulled away, the accused grabbed her, pulled her closer and repeated the action about three or four more times. Each time he did so the accused made a high pitched whistling noise.[11]
[11] T127.
MR made her initial complaint on the same day as the alleged offence. A complaint was made to her mother when they got home and an elaboration of that complaint is then said to have occurred when both her mother and her father were present. Both of MR’s parents gave evidence.
To prove count 3 the prosecution rely on each of the acts of the accused touching MR’s vagina on the outside of her clothing within a very short space of time. It is submitted the detail she was able to give as to both the offending and the surrounding circumstance was significant. It is submitted that her evidence that it occurred at the Coventry Road address is supported by both her mother and father. It was further submitted that her complaint later that day to first her mother and then her father was significant evidence as regards the consistency of both her conduct and her account of what occurred.
General
The prosecution submit that the evidence of each complainant is cross-admissible on the basis the evidence discloses the accused had a relevant propensity or on the basis of the similarities in their accounts. As to the offending it is submitted the overlap in the offending against each of the three complainants is consistent with the accused moving from one complainant to the next. Whilst this was submitted to be important as regards similarity of account reasoning, I do not agree.
Evidence was also led as to how police became involved after arrangements were made for a family reunion. This evidence was relevant to the possibility of contamination or concoction. I have not used any evidence of a notification to police or any prior consistent statement as evidence of the truth of what was asserted or to bolster the credibility and/or reliability of a complainant.
In addition to the complaint witnesses the prosecution also called the sister and mother of AC and MH. Both gave evidence as to timeframes in which certain matters occurred, the opportunity to offend and the possibility of contamination or concoction. Similarly, the prosecution called two of the accused’s sisters (MJH and BPH). They also gave evidence relevant to those topics.
The prosecution submit that the time frames referenced by each complainant are consistent with the agreed facts and with the evidence of the other prosecution witnesses.
Lastly, the prosecution submit I should reject the accused’s evidence. It was submitted the accused’s evidence that he recalled his hand slipping and coming into contact with MR as she was put into the car to leave the house was particularly detailed and yet his recollection of the confrontation with MR’s mother later on the same day was vague and unconvincing. It was further submitted he minimised his contact with each of the complainants in a manner which was inconsistent with the general evidence that the families socialised and his own evidence wherein he agreed he would sometimes play with the children when he was an adult. Similarly, it was submitted the accused’s evidence that the doors were always open and that doors were not permitted to be closed was inconsistent with his subsequent acceptance that doors may be closed or partially closed. It was submitted that his move to Whyalla did not mean he did not return to Adelaide to visit his family and it did not mean he did not continue to have an opportunity to offend throughout the period he lived in Whyalla. It was further submitted that the timeframe in which he lived in Whyalla was not particularly clear.
Defence Case
As to the accused’s evidence, it was submitted any assessment must take into account the forensic disadvantage suffered by the accused by the passage of time. It was submitted that his evidence had the ring of truth about it, and it was supported by other witnesses as to his mother being strict and his mother not allowing the doors of the bedrooms to be closed. It was further submitted he readily acknowledged interactions which would have given him the opportunity to offend. He did not therefore attempt to minimise such opportunities.
As regards each complainant the defence submits the allegation that another person was in the room or close by is an aspect of their account which is improbable. The defence submits such brazen or risky behaviour is unlikely. It is also said to be noteworthy that KH, the sister of AC and MH, does not indicate that she saw anything happen to either AC or MH. In fact, the absence of any support from any witness to the effect such brazen behaviour was seen by others is said to undermine the account of each of them.
The primary defence submission is not that the witnesses have put their heads together to create a false story against the accused. The defence submit that with the knowledge that the accused is alleged to have done things against other members of their family, each complainant has either created memories or had their memories of a particular event contaminated by that knowledge. The defence further submit their memories have been corrupted by the passage of time.
Mr Kirby submitted that there was no cross-admissibility between each of the complainants’ evidence. It was submitted there was no similarity as to how the offending began in relation to each complainant, the length of the offending against each complainant or the frequency of the acts alleged by each complainant. Similarly, the different ages of each complainant at the time of the offending is said to undermine the prosecution submission. For example, MH was alleged to be three years old when the offending began but MR was seven to nine years old. It is submitted there is a significant difference between the maturity of a three-year-old and an eight-year-old. If age can be taken into account, it is submitted it undermines rather than strengthens the prosecution submission.
Whilst the defence accept that the alleged offending in counts 2 and 3 involved other people being present and/or nearby such that the alleged offending involves a brazenness or risk taking, it is submitted the same cannot be said of count 1. In any event, the nature of the risk taking, or brazenness is said to be markedly different between the allegations made by MH as regards count 2 and the allegation on a single occasion made by MR as regards count 3. It is further submitted that even if sufficient similarity exists to justify admission on the basis of similarity of account it is submitted the possibility of contamination is such that I cannot exclude contamination as an explanation for any similarities.
Notwithstanding the evidence of the complainants was to the effect no detail had been discussed between them, it was submitted the fact the allegation of abuse was known by each complainant may explain why memories have been reconstructed. It is submitted that in circumstances in which the complainants knew there were frequent social gatherings this knowledge may explain why each complainant gave a similar account that the abuse occurred when others were in the vicinity. It is submitted that the passage of time and the ongoing communications within the family have led to memories being created and to memories being corrupted.
Count 1
It is accepted that there is some evidence the accused did babysit AC and her sisters however there is no agreement as to how frequently it occurred, whether the accused was the only person who did the babysitting and where it occurred. KH for example thought the accused babysat the children but was not sure, and in any event was not sure if the parents were also home.[12]
[12] T171.
It is submitted that it would be unusual for a 20-year-old man in the 1970’s to be babysitting his cousins. It is submitted this undermines the evidence of AC. Secondly the lack of any rapport between them makes it implausible that the accused would have acted as she alleges. It was further submitted that AC’s evidence that she went with the accused to protect her sisters is suggestive of reconstruction on her part. It is submitted AC’s evidence as to the charged act was very vague and insufficient to prove the count beyond reasonable doubt. It is submitted the accused’s evidence that he recalls an incident in which he was blowing raspberries on the children’s tummies is plausible and that AC’s memory has been infected and contaminated by her false memory of the earlier incident, discussions with family members and her knowledge of allegations against the accused in relation to other people within the family.
Count 2
It is submitted MH’s evidence that the accused offended against her frequently over a period of some seven years when other members of the family were often close by, is implausible. It is said to be implausible because such offending is so inherently risky and because there is no evidence from her that anyone ever saw this offending.
The reliability of MH’s memory is also questioned on the basis she had no recollection of there being a sleepout used by the accused. If the families were socialising as frequently as she said, and the accused was present at the house as frequently as she said, then the defence submit MH would have been aware of the accused’s sleeping arrangements. It is submitted that MH’s lack of memory of the sleepout or the accused living in Whyalla for approximately two years or living in Melbourne for a few months is inconsistent with her evidence that the accused would offend against her approximately one in every three or so visits made by her family to his house. I note her evidence as to frequency was not so definitive that it would be inconsistent[13]and in any event it was not suggested the families socialised every weekend without fail.
[13] T103.
Whilst the accused admitted that he would return to Adelaide to visit his family and he would see the families of the complainants when he would visit, it is nonetheless submitted that the fact the complainants do not recall his absences is consistent with their memories being unreliable.
It is submitted the vagueness and lack of specificity in the evidence of MH, in combination with the forensic disadvantage suffered by the accused, gives rise to a doubt. It is submitted there is no specificity as to the number of occasions on which the alleged abuse occurred or that the accused had sufficient opportunity to offend in the manner alleged. It is submitted that the allegation that such offending occurred over a seven-year period is inconsistent with only being able to recall the first and last occasion. It is submitted that her evidence that her memory is not clear must undermine her reliability and creates an unfairness to the accused when attempting to answer such allegations.
In addition to the riskiness of the alleged behaviour when adults are alleged to be nearby, it is further submitted that her evidence that he teased and bullied her is not consistent with what you would expect of a person who then sexually abuses that person. The teasing and bullying is said to give rise to an additional risk that she would complain to someone. Mr Kirby asked what would have made the accused think he could act in this way without fear of recrimination.
As to the occasion allegedly remembered by MH it is submitted her claim that she recalls an event from when she was three years old raises questions as to reliability.
The defence further rely on the evidence that the accused’s mother was strict. The evidence of MH’s mother, BH, was to the effect the children were not allowed to go into a room with the door shut. It was submitted this aspect of the evidence was supported by the fact it was known in the family that the accused’s father had been accused of offending against his daughter. That knowledge therefore explained why the accused’s mother was strict as regard doors being left open. The defence submit this is exactly what you would expect the accused’s mother to enforce. This aspect of the accused’s evidence is therefore supported by common sense.
It is submitted the lack of specificity in MH’s evidence makes it impossible for the accused to explain or proffer a reason why MH may have altered memories of particular incidents. The passage of time and the lack of specificity as regards the evidence of MR has resulted in a significant forensic disadvantage to the accused.
It is further submitted that MH’s explanation for not complaining was not believable. It is submitted it is fanciful to suggest she did not complain because she did not want to upset her ailing father. I note this criticism was particularly directed at whether a three-year-old would decline to complain to their parents for such a reason. I accept such a reason is unlikely to explain the behaviour of a three-year-old and is indicative of reconstruction.
Count 3
In relation to count 3 it was accepted that the evidence of MR may not be subject to the same potential for contamination as the other complainants in light of the immediate complaint. It is submitted that her recollection that the offending occurred on the first birthday of the accused’s son is however, evidence of her unreliability. It is submitted if it occurred on the accused’s son’s first birthday this would have been 31 June 1988 when MR was seven and not eight or nine as she claimed. It is further submitted the accused was not living at Coventry Road in June 1988.
It was submitted that MR lied to her mother and father some 32 years ago and has simply maintained that allegation – even if she now believes it to be the truth. It is submitted the accused’s denial of this offending cannot be rejected particularly having regard to the implausibility of the allegation that in circumstances in which there was no grooming, threats or relationship between the accused and MR he is alleged to have offended in the manner described by MR in front of other people. It was further submitted that the accused’s evidence of this incident includes that a woman named Margaret was also present when he was in the bedroom with his son and MR.[14] Her presence would make such an allegation more implausible. It is submitted it defies logic that the accused would act in such a reckless manner.
[14] T248.
Cross admissibility
The accused did not seek an order for separate trials of each count. The accused does not however accept that the evidence as to each count is cross-admissible on the basis of similarity of account or propensity reasoning. The accused relies on the evidence as regards each count as evidence from which it may be inferred there has been contamination of the evidence of each complainant by reason of becoming aware of the allegations of the other complainants.[15] The evidence is admissible for that purpose and I have taken it into account in that manner when assessing the evidence of the witnesses and determining whether the prosecution has proved any count beyond reasonable doubt.
[15] See for example Hamilton (a pseudonym) v The Queen [2021] HCA 33.
The issues in this trial include whether it is plausible that the accused would risk offending when adults or other children were in the same room or close by and whether a particular complainant may have misremembered or had their memory impacted by the passage of time. The issues in the trial and whether the evidence addresses the issue, will inform the probative value of that evidence.
Similarity of Account
The prejudice in such matters:[16]
…lies primarily in the antipathy to the accused which the multiple allegations will engender. That prejudice may distract a jury from any defects and frailties in the evidence directly bearing on the offences charged and predispose them to convict irrespective of the strength of that evidence.
[16] R v C, CA [2013] SASCFC 137 at [61] and followed in DES v The Queen [2020] SASCFC 32 at [67].
Whether the probative value of the evidence outweighs the prejudice requires consideration of whether as a matter of human experience the levels of similarity between the complainants might be expected if the complainants for reasons, conscious or subconscious, which are peculiar to them, independently concocted or imagined the offending which they alleged. The focus must be on the features and surrounding circumstances of the offending which necessarily provide a link between the accounts.
I have regard to the similarities relied on by the prosecution.[17] I do not consider it is of any particular significance that each is a female or that each is related in some way to the accused.
[17] Prosecution Address, T342.
I note the court in R v C, CA [2013] SASCFC 137, [93] stated the age of an alleged victim is not relevant to similarity of account reasoning although more recently in R v Marshall [2023] SASCA 105, [163] the court indicated that an account by each complainant that acts occurred when the witness was pre-pubescent is a relevant consideration. I consider the difference is explainable by the facts in R v C, CA. I consider numerous adult witnesses giving evidence to the effect they were sexually abused when very young may be relevant on the basis numerous adult witnesses independently fabricating or imagining sexual abuse by the accused when they were all under 10 may seem improbable. I accept much will depend on the circumstances however in this case I consider it is a matter of some relevance notwithstanding the age range of the three complainants’ does span some seven years.
The number or regularity of the instances of alleged abuse may be relevant, but in circumstances such as the present case in which an immediate complaint was made by MR and the opportunity to reoffend against her was therefore limited, a difference in the number of instances may be of less significance as regards the account of MR. The same cannot be said of AC. She did continue to see the accused after the alleged charged incident.
Each account of each complainant makes reference to other children being present when the alleged acts occurred although it is only the uncharged act as alleged by AC which had other children present. That a degree of risk taking is alleged is of significance. The improbability of an accused taking such a risk is invariably a topic of comment to a jury. The apparent brazenness and risk-taking was a significant consideration in Hughes v The Queen[18] and in DES v The Queen.
[18] (2017) 92 ALJR 52.
MH and MR also state that adults were proximate. AC does not. The proximity of adults is particularly significant. The risk of detection does not only relate to the risk of being seen during the alleged offending. It also relates to the risk of the young girl reacting in a way which is then seen by an adult and also the risk of the young girl making an immediate complaint to someone given the proximity of adults and in particular their parents. That both MH and MR state the accused engaged in sexual acts when such a risk existed is a similarity of some significance.
I further consider the duration of the alleged sexual acts is relevant. MH and MR both describe the accused engaging in what may be described as momentary or brief sexual touchings.
And further, both describe such acts occurring in the context of what may be described as a game or horseplay. AC describes something similar but only as regards the uncharged act.
Propensity
As to the second basis for admissibility, the prosecution submits that the evidence is strongly probative of a sexual interest in very young girls under the age of 10 years and a willingness to act upon that sexual interest.
I have had particular regard to the reasoning of the High Court in McPhillamy v The Queen.[19] I note that evidence of a sexual interest in young boys and a willingness to act upon it 10 years prior to the charged acts did not have strong probative value. It was not irrelevant, but it did not have strong probative value. The absence of any evidence that the interest manifested itself in the intervening years was a significant consideration.
[19] [2018] HCA 52.
In R v Sexton the Chief Justice referred to a previous decision in which he stated: [20]
...if the discreditable conduct evidence is strongly probative of the existence of a behavioural proclivity to engage in conduct of the kind charged whenever an opportunity arises, it is permissible to use that evidence… (emphasis added)
[20] [2018] SASCFC 28, [238].
The High Court in McPhillamy v The Queen also acknowledged that evidence which simply reveals a sexual interest in children of a particular age even when accompanied by evidence of a willingness to act upon that interest may not be sufficient to warrant admissibility if there is no feature of the sexual misconduct which serves to link the two together. In McPhillamy the fact the accused’s tendency related to young teenage boys ‘who were under his supervision’ was an insufficient link.
Edelman J suggested that a sexual interest in young boys under an accused’s care is an expression of tendency at a high level of generality. The absence of evidence that the tendency manifested itself in a particular way such as taking advantage of a particular type of boy or in a manner which suggested impulsivity with a risk of detection or in a manner which described a particular type of sexual interest meant the evidence sought to be led was not of ‘significant probative value’.
When the tendency relates to sexual misconduct against more than one child it is necessary to identify some feature of the offending which serves to link the offending against each child together. A propensity to sexually abuse girls under 10 years of age does not of itself have strong probative value.
Re-count 1 (AC)
I do not consider the evidence as regards count 1 is cross-admissible on the basis of either similarity of account or propensity reasoning.
Whilst the uncharged offending is alleged to have occurred in front of other small children and under the pretext of a game, the charged offending involves neither. The charged offending involves the accused exposing himself after sending the other children to bed. It is therefore not suggested there were any adults in the house at the time and the other children were all in their bedrooms. The offending the subject of count 1 does not therefore involve the same type of brazen behaviour as is alleged with respect to counts 2 and 3. It is also relevant that there is a lack of specificity as regards the details of the offending alleged in count 1. AC has no recollection of what occurred after he asked her to touch his penis. This is problematic as regards the evidence disclosing any particular similarity or tendency. I also note there is no suggestion the charged offending involved momentary touching, or an act designed to provide fleeting sexual gratification. This is different to the accounts of MH and MR.
Whilst the uncharged offending does exhibit some of those similarities, the absence of those similarities as regards the charged offending when only two incidents are alleged means the probative value of the evidence does not outweigh the prejudice. The similarities which do exist are not such as to justify admission on the basis of similarity of account.
As to whether the evidence discloses a tendency on the part of the accused, the evidence is consistent with the accused not acting on any propensity between the uncharged act and the charged act. This is a gap of some two years. There is no explanation on the evidence as to why the accused did not persist in his offending against AC if the offending occurred as AC alleged. In circumstances in which the families were frequently socialising, the evidence does not disclose a particular tendency on the accused’s part to act in a particular manner toward her.
Having regard to the nature of the charged act and the other matters to which I have referred I do not consider the evidence as to offending against AC is admissible on the prosecution case as similarity of account evidence or propensity evidence when considering count 2 and/or 3. The evidence of AC does however remain relevant on the defence case as to the possibility of collusion or contamination.
Re- Counts 2 (MH) and 3 (MR)
The ‘improbability which arises in evaluating similarities in the independent accounts of different child complainants is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine that the offences were committed by him.’[21]
[21] MDM v The Queen [2020] SASCFC 80 at [14].
In the circumstances of this case I do not consider that improbability alone satisfies the test in s 34P(2)(a) of the Evidence Act. It is therefore necessary to identify other similarities in their accounts.
Both MH and MR describe the accused’s offending as including brief or momentary indecent touches for the purpose of what may be described as fleeting sexual gratification in circumstances in which such an act involves a risk of detection by reason of adults being in the house at the same time and/or by reason of other children being present and nearby.[22]
[22] MH stated she believed her sister G, was sometimes in the room with her when the accused touched her momentarily and MR stated the accused’s son and her brother were both in the room when the accused offended.
I further note it could be said each account is similar in that neither suggest that the risk of detection was ameliorated by some direct or indirect pressure or exhortation not to disclose the conduct to others.
Both MH and MR also describe such offending including touching on the outside of clothing, the accused offending in the context of playing around and such offending occurring when they were aged between seven and nine years, although MH also describes it occurring when she is much younger.
Both MH and MR describe the offending occurring when there is a considerable age difference between the accused and the complainant. That both describe him as acting in that manner toward a child under 10 years of age when he is in his late 20’s, early 30’s is a further similarity in their accounts.
Notwithstanding there is only one alleged offence against MR that is explained by the immediate complaint and the subsequent lack of opportunity for the accused to offend against her at any later time. This factual matrix does not therefore involve the accused having an opportunity to act and failing to do so.
A failure to subsequently act may mean any tendency is weak.[23] Similarly a failure to subsequently act when there is an opportunity to do so may give rise to a relevant dissimilarity in the accounts. Given the lack of opportunity as regards MR I do not consider the fact she alleges only a single offence does undermine the probative value of the combined similarities. It does not weaken the improbability that their accounts were independently fabricated or imagined.
[23] In McPhillamy v The Queen [2018] HCA 52, [30] citing the case of R v Cox [2007] EWCA Crim 3365 at [29] ‘In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at college, the inference that at the dates of the offences he possessed the tendency is weak.’
I bear in mind that each complainant was a child at the time and therefore any opportunity for such offending would likely occur in the course of their visits to the house of the accused and in the context of social gatherings. That there may be other children or adults nearby may therefore be said to be a natural consequence of the accused’s opportunities to offend being limited to social gatherings of some type. That may therefore be relevant to the similarity as to adults being nearby, but it does not in my view undermine the significance of the similarities as to children being in the same room, the age differential, the nature of the act alleged, the absence of any exhortation not to tell anyone, how the sexual touchings occurred and that he touched them over the clothing. Nor does it undermine the improbability of each imagining or concocting that they were abused and that they were abused by the accused.
In any event, if concocted or imagined, such allegations could involve any number of variations including as to the location of the alleged offending. I note the allegations do not for example suggest the accused lured them away from other people. I consider the fact both allege the offending occurred in the house when adults were close by remains a similarity of some relevance.
I accept there are differences in their accounts. MH alleges offending occurred when she was three years old and she also alleges acts which involve more than a momentary touching or fleeting sexual gratification. These differences do not however undermine the probative value of the similarities in their accounts.[24] When considering the sexual acts which are different or were alleged to have been committed when much younger I have however taken those differences into account.
[24] It is significant that MH also alleges the offending continued and occurred when the same age as MR.
I am satisfied the evidence of MH and MR is cross-admissible for the purpose of engaging similarity of account reasoning. I am satisfied the probative value of the evidence outweighs any prejudice and I am satisfied of the requirements of s 34P(3) of the Evidence Act.
I am also satisfied the evidence as regards count 2 and 3 is relevant to prove a propensity or disposition on the part of the accused to act in a sexual manner toward female children under 10 years of age even for the purpose of momentary sexual gratification[25] and notwithstanding the proximity of others and notwithstanding there is a risk of detection and notwithstanding there is a familial connection between them. The evidence also discloses a willingness to act on that sexual interest notwithstanding a significant age difference between them. This is relevant to the specificity of the particular tendency and its probative value. That propensity also includes his use of a pretext in some instances. I do not consider the break of a few years between the end of the offending against MH and the offence against MR undermines the strong probative value of the tendency or disposition disclosed by the evidence.
[25] I accept the offending as regards MH is also said to involve offending involving longer contact if an opportunity arose but this does not undermine the inference that the accused had this tendency.
For the reasons that follow it has not however been necessary to use the evidence as circumstantial evidence of the propensity I have identified.
Discussion
I accept the following timeline accurately reflects the following:
24/11/1957
accused born
04/04/1964
accused moves to 31 Loftis Road, Elizabeth Downs
24/10/1969
AC born (count 1)
10/11/1971
KH born (sister of AC and MH)
08/05/1975
MH born (count 2)
01/11/1975
sleepout erected at 31 Loftis Road
1977-1978
allegations re-count 1
1978
allegations re-count 2 begin
19/4/1980
sleepout at 31 Loftis Road removed
21/5/1981
MR born (count 3)
1980-1982
accused lives in Whyalla
1984
accused marries JPH
17/11/1984
accused and JPH living at Harvey Road, Elizabeth South
1985
end of alleged offending as regards MH (count 2)
30/07/1987
accused’s son born
14/12/1988
135 Coventry Road, Smithfield Plains transferred to accused
Early 1989
AC discloses allegation as to the uncharged incident when in Whyalla
14/12/1988 to 1991
allegations re-count 3
MR discloses allegation to parents
1994-1995
MH discloses allegation to husband
The primary defence submission is that the reliability of the three complainants was questionable however I have also considered their credibility.
I accept that each prosecution witness was doing their best to tell the truth. None of the witnesses were prone to exaggeration or embellishment. There was nothing about their demeanour in the course of examination in chief or cross-examination which caused me any concern about their credibility. To the contrary I found the presentation of each to be convincing and genuine.
It is however vital that demeanour and presentation not be given undue weight in an assessment of honesty or reliability. Any determination of those issues can only be made having regard to the whole of the evidence and the criticisms raised by the accused in the course of the trial.
I do not have to be satisfied beyond reasonable doubt as to the reliability of every aspect of a witness’ evidence however, a doubt about one aspect of reliability or credibility as regards one topic may be relevant as regards other topics.
The question I must decide is whether, on the whole of the evidence, and notwithstanding the accused’s evidence and arguments, the prosecution case on each count has been proved beyond reasonable doubt.
Re-count 1
AC is the eldest of four daughters. Her family emigrated to Australia when she was around five years old. Her family frequently socialised with the accused’s mother and father although this mostly occurred at the accused’s parent’s house.
AC gave evidence that not long after the family emigrated, she was living at a house on Philip Highway. She recalls being with her two younger sisters when the accused was babysitting them. She stated she does not know whether her youngest sister MH (complainant for count 2) was there or not. I note that MH was born in May 1975. The accused was 17 at this time and remained 17 until 24 November 1975 – some six months after MH was born. The uncharged incident may therefore have occurred when the accused was 17.
AC stated the accused lifted her over the top of his head and told her sisters that it was a game and a bit of fun. The accused then lifted her higher and put his head under her nightgown and licked her vagina. She states she was not wearing underwear although she cannot recall why she would not have been wearing underwear. This was not the norm. She stated her sister thought it was funny. She then recalls being on the top bunk and the accused fondling her vagina and the accused asking who wants to stay up with him. She went into the lounge with the accused and when they were sitting on the lounge, he pulled out his penis and asked her to touch it. She thought she said she did not want to but beyond that she has no recollection of what occurred.
AC’s family later moved from Philip Highway to Whites Road and at that address she said the accused continued to babysit her. The next incident occurred when AC was about seven or eight years old (October 1976-October 1978). AC stated the accused again asked who wanted to stay up and AC stated she would. Her siblings were sent to bed. She recalled being on the lounge with the accused. He took his penis out of his pants, and she stated, ‘I think he just asked me to touch it’. (my emphasis) She did not recall what happened next and she did not recall whether she said anything in response. She recalled feeling frightened and panicked. She had no memory of how long his penis was out of his pants. She confirmed she did not tell anyone what had happened.
Her first disclosure occurred when she was around 19 and living in Whyalla. As previously indicated this disclosure was to her friend HL and it ‘would have’ related to the uncharged incident[26] as her strongest memory is of the uncharged incident. This disclosure is not admissible pursuant to s 34M, and I have not used it for the purposes outlined in s 34M of the Evidence Act. AC could not recall any other instances of sexual activity by the accused toward her.
[26] T58.
AC only recalled being babysat on two occasions.[27] She agreed it may have happened on other occasions and that the accused’s younger sister BH was possibly present. AC denied that BH was present at the time of the first incident. AC did not recall a game in which the accused ‘blew a raspberry’ on her younger sister’s stomach and then picked up each of the girls and blew a raspberry on their stomach. She accepted it was a possibility but did not recall it. AC did not accept that her memory of the accused licking her vagina was a reconstruction of an incident in which the accused blew a raspberry on her stomach.
[27] T61.
In cross-examination AC stated that on the occasion of the uncharged incident she went with the accused into the lounge after he had touched her on the vagina because she knew what would happen to her sisters. She stayed up, so that her sisters would not have to. AC stated this is the feeling she remembers having.[28] She thinks that she was being protective of her sisters.[29]
[28] T65.
[29] T67.
AC did not recall a separate sleepout at the back of the accused’s house.[30] AC did not recall any rule about bedroom doors not being shut. When she was about 15 or 16, she learnt that the accused’s father had allegedly offended against someone.
[30] T69.
KH, the sister of AC and MH, gave evidence that around 1977 she thought the accused would babysit her and her sisters, but she was not sure. She was not sure if they were babysat or if her parents were in another room.[31]
[31] T171.
KH knew allegations had been made against the accused but was not aware of the details. KH was not asked any questions about the detail of her experiences when the accused babysat her and her sisters.
AC’s mother BMH gave evidence. She confirmed they lived at a Philip Highway address for about a year and a half after they emigrated in 1974 and then the family moved to an address at Whites Road, Salisbury North. The family then bought a house at Chicklade Street, Elizabeth Vale. She confirmed the accused ‘definitely’ babysat her children at both the accused’s house at Loftis Road and also her house at Chicklade Street. She could not recall if he babysat the children at an earlier time. She believed MH would have been about three when the accused was babysitting MH (around 1978). She stated sometimes the girls would want to be at the accused’s sister’s house and so sometimes they would be babysat at the accused’s house. No other details of babysitting were led from this witness.
BMH did not recall a sleepout at the accused’s house. She recalled the accused moving to Whyalla but was not sure about the duration. BMH was not able to state when the accused stopped babysitting other than having a recollection that he did so when they were living at Chicklade Street. This would have been after the accused turned 18. BMH’s memory was clearly compromised by the passage of time. She indicated on numerous occasions that she could not be more specific. I accept she did so because she was being careful and did not want to mislead the court.
The accused’s sister, BPH, gave evidence that there would be regular sleepovers between her and AC, MH and KH. She was not asked any questions in examination in chief in relation to babysitting by the accused. In cross-examination she confirmed the accused probably had come to babysit her and AC at AC’s house on Philip Highway.[32] No other questions were asked, and no further evidence was given by BPH on this topic.
[32] T221.
The accused gave evidence that he stopped babysitting when he turned 18 because his mother told him that men do not babysit other people’s children.[33] I note however that the accused stated he babysat AC on two occasions[34] – once at the Philip Highway address and the other time at Chicklade Street. On any version of the evidence AC’s family did not move into Chicklade Street until after the accused was 18.[35] The accused’s adamant denials that he babysat children after he turned 18 because of his mother’s demands were therefore contradicted by his own evidence. I consider this is an example of the accused exaggerating rules laid down by his mother and attempting to minimise the opportunity to offend. I take into account the passage of time and the forensic disadvantage to the accused in this regard however it is the certainty with which he expressed some of his evidence which causes me to doubt his credibility.
[33] T234 and T304
[34] T235.
[35] MH said they moved to this address when she was 5 (May 1980) (T82) Given the estimates provided by BMH as to how long they lived at each address before moving to Chicklade street it would have been around 1978-79 when they moved there.
The accused stated the first occasion of babysitting was with his younger sister, BPH. Unusually when asked whether the children were already in bed when he arrived the accused stated that ‘most of the time they were’. Why he would have said ‘most of the time’ if he only babysat on two occasions is not immediately apparent. I do however note the accused appeared to later accept it was possible he babysat on more than two occasions. [36] The accused said he recalled an occasion when MH was a baby, and he was changing her nappy. He stated he blew on her belly and she laughed and then the other children wanted the same. The accused said he gave each of the children a raspberry on their stomach by lifting them up and putting them on his shoulders and turning them around. He denied any inappropriate touching as regards AC.
[36] T298.
There were numerous aspects of the accused’s evidence which were less than convincing. Firstly, if the accused was under 18 years then MH was about six months old. I have serious reservations that MH would have been left in the care of the accused at such a young age. I also note BMH said she believed MH would have been about three years old when the accused babysat her. This accords with what I would have expected. Secondly and more importantly, his purported memory of an event from 50 years ago in which he said nothing untoward occurred was in my view quite extraordinary. He purported to recall details such as the time the parents left and that KH was wearing a nightdress with knickers and that others were in pyjamas.[37] I do not believe the accused would have recalled such an incident with such clarity or detail if, as he states, nothing of any note occurred during that night. I am satisfied the accused was being dishonest when he purported to recall this incident.
[37] T290.
There are also other aspects of the accused’s account which I do not accept. I am satisfied that the accused did at times attempt to minimise the opportunity for him to offend and that aspects of his evidence were inconsistent in that regard. For example he initially stated that he spent most of his time in the sleep-out because he did not like to be social, however in cross examination he accepted that he had interactions with the children, that he played games with them and that he did socialise with them. I also found his evidence as to the incident alleged in count 3 to be wholly unconvincing and contrived. I have taken into account those matters when assessing his denials of any offending.
I have reminded myself that it is not a matter of which version I prefer. I have kept in mind at all times that the ultimate question is whether the prosecution has proved its case having regard to all of the evidence including the accused’s denials and the forensic disadvantage to the accused.
I am satisfied that AC was an honest witness. She acknowledged the short comings in her memory and there was no exaggeration or embellishment in her evidence. I consider her evidence that she saw the accused spooning her sister MH at some time when the door to the bedroom was open was telling. AC did not use that as an opportunity to state she saw the accused acting in a manner which was overtly sexual. I consider the manner in which she gave that evidence and the details she gave were only consistent with AC attempting to be honest.
Notwithstanding my satisfaction that AC was honest, I am not satisfied beyond reasonable doubt of the reliability of her recollection of the charged act of the accused exposing his penis.
The event she was attempting to remember occurred 45 years ago when she was seven or eight in circumstances in which she readily acknowledged that the uncharged incident was her strongest memory.
In circumstances in which I accept she honestly believes the accused licked her vagina, touched her vagina and then exposed his penis when she was younger, and she has a very limited memory of the details of the charged act there is a possibility that the earlier incident has contaminated or influenced her memory of any subsequent incident. It is also of note that her recollection of the words used by the accused during each incident are very similar. This is also consistent with the possibility of conflation or reconstruction.
That AC was only five years of age at the time of the uncharged incident also gives rise to a concern on my part as to her ability to reliably remember every aspect of that incident some 45 years later. I consider her evidence that she thinks she went into the lounge to protect her sisters is also suggestive of some reconstruction on her part even as regards the uncharged act.
The lack of specificity as to the charged act, the risk of conflation and the risk of reconstruction in the memory of a very young child are such that I am not satisfied beyond reasonable doubt that the accused exposed his penis as alleged in count 1.
I further make clear that even if the evidence of count 2 and or 3 was cross admissible with count 1, the support which the similarities in the accounts of MH and MR may give AC’s account or the support evidence of a sexual interest in young girls and a willingness to act upon it might give to AC’s evidence would not change my verdict given the issues I have identified.
The accused is therefore acquitted of count 1.
I have not used the evidence of AC as regards any similarity of account or tendency reasoning to, in any way, provide support for the evidence of MH and/or MR.
Counts 2 and 3
I find the accused guilty of both counts 2 and 3. I reject the possibility of collusion or contamination and I rely on the similarities in the account of MH and MR when assessing the credibility and reliability of each of them. Having regard to the whole of the evidence, including the accused’s denials and the forensic disadvantage to the accused and the issues I have identified with his evidence I am satisfied beyond reasonable doubt of the reliability and credibility of each complainant as to the commission of certain sexual acts which satisfy the elements of each offence.
Collusion and/or contamination
The evidence is that AC and MH have never met MR. The evidence is that neither AC nor MH even knew the identity of the third complainant. Given that evidence and that I am satisfied of the truthfulness of each complainant I reject the possibility two or more of the three complainants have colluded as regards their allegations.
I further reject the possibility that the recollections and evidence of either MH or MR as to the alleged offences have been contaminated by their knowledge of other allegations.
I consider the evidence given by each of the complainants as to the discussions they had was given honestly and fulsomely. Their evidence did not in my view attempt to downplay the fact discussions had occurred or the timing of those discussions.
It is submitted that either their knowledge of the allegations made by each other as regards the accused or their knowledge that the accused’s father was accused of abusing his daughter have contaminated their memories. I have considered this submission in the context of the passage of time since the alleged offending.
Knowledge of each other
AC agreed that she had discussed with her sister MH that she was sexually abused by the accused however she had not shared any details of what the accused did to her. She thinks she was about 30 when she discussed this with MH.[38] AC stated she was aware there was another alleged victim but was unaware of who the person was or any details of that person’s account.
[38] T58 and T74.
Similarly, MH agreed she had previously informed AC that the accused abused her but did not discuss any details of what the accused had done. MH thought it was when she was about 30 that she told AC although I note the evidence of a prior inconsistent statement to police to the effect she was about 19 when she told AC. Irrespective of that prior statement her evidence was that AC had said to her; ‘I think I got it worse than you’. It is the type of response which I would expect her to recall. I consider MH’s evidence on this topic was compelling and plausible. That AC’s allegations were not in fact ‘worse’ is also consistent with their evidence to the effect there was no discussion as to the detail of the offending. Her account is therefore internally consistent. Whilst also aware that another person had made allegations, MH did not know who that person was.
MH also stated that in 2019-2020, a family reunion was being planned and she wrote an email indicating there were allegations against the accused. There was no suggestion she provided any details of the alleged offending.[39]
[39] T114.
KH, the sister of AC and MH became aware that an allegation had been made when she was in her 20’s. She said no details of any allegations had been discussed within the family.
MR confirmed that she was aware that there were two other alleged victims. She had heard the name ‘M’ but not her surname and she did not know who the person was.[40] MR stated that one of the accused’s daughters ‘A’ told her the name. MR stated that she was not given any details of any other allegations. ‘A’ knew that the accused had allegedly abused MR when MR was about eight years old. In that phone call ‘A’ insinuated that she had information to the effect the sexual abuse against the other person was ‘quite horrific’ compared to MR. It is not clear when this phone call occurred.[41]
[40] T133 – The first name that she heard is the first name of the complainant as regards Count 2.
[41] T133.
MR stated that she had told her mother and father, her grandparents, her aunty and her cousin that she had been touched inappropriately. She stated she did not tell them in great detail and usually she gets ‘shut down’ so she does not talk about the details.
Knowledge of the allegations re the accused’s father
AC became aware that an allegation of abuse had been made against the accused’s father when she was about 15 or 16.[42] She said she and her siblings had discussed that fact, but she was not aware of details.
[42] T76.
MH also gave evidence that she had learnt that the accused’s father had allegedly been abusing his daughter. She learned about those allegations prior to having spoken to her husband. She learnt about those allegations when she was still a child.
Discussion
AC first mentioned the alleged uncharged offending when she was about 19 years old in about 1989.[43]
[43] HL gave evidence that in 1989 AC told her the accused would carry her to bed on his shoulders but with her crotch in his face. I accept HL’s evidence as to the timing of the disclosure given the other events in her life assist her in that regard.
MR first mentioned the allegation on the day the act allegedly occurred between 1989 and 1991.
MH spoke to her ex-husband in about 1994-1995.
I accept the evidence of each complainant that they did not exchange details.
I accept that within the wider family it was known, prior to the disclosures by each complainant, that the accused’s father was alleged to have acted inappropriately.
MR’s evidence as to the phone call with A is only consistent with some members of the wider family also having some knowledge as to MR’s allegations at some point in time. Given MR immediately spoke to her parents and provided some details I allow for the possibility some information about the allegation relating to MR was known within the extended family from about the time of the alleged offence -particularly if there was a confrontation between MR’s mother and the accused.
MR stated she disclosed all the detail of the offending to her parents. MR’s parents did not confirm MR disclosed all of the details to them however they did confirm she disclosed detail as to the identity of the person, the location of the touching in the house, where on her body she was touched, that she was touched on the outside of her clothes, that the accused did not hurt her and the presence of other children. I accept all this detail was disclosed by MR to her parents.
Given the level of detail disclosed by MR at that time I do not consider contamination is an issue as regards her evidence.
Even if such details were known by some in the wider family there is no evidence MH or her parents became aware of them. And even if the fact of an allegation against the accused was known it would be very surprising if all the detail disclosed by MR to her parents also became known.
As to MH I accept her evidence that she was unaware of the details of the offending alleged by MR. I accept her evidence that her husband was the first person she told and any conversation with her sisters occurred after this. That she was an adult at the time she learned of the fact of other allegations lessens the risk of contamination.
However, even if all the detail of the offending against MR became known to MH by some means I further note that MH’s evidence as to the circumstances in which the various sexual acts occurred did not directly state that such acts occurred under the pretext of a game or playing around. MH stated that the accused engaged in quick gropes and that their interactions involved him teasing her.[44] Specifically she also said that the accused would stir her up, tickle her and that she had a sense that he was getting ‘into her zone’.[45] Whilst it is not therefore an exact similarity when compared to the evidence of MR (or AC), I do consider it is a nuanced similarity. Whilst I accept contamination can have subtle impacts, I would not expect knowledge of MR’s account to manifest itself in such a subtle similarity. I also would not expect the subconscious constructing of memories around the accused momentarily touching her breasts, her nipples, her vagina and inserting his finger into her vagina from any knowledge of MR’s (or AC’s) account.
[44] In particular the last occasion when the accused is alleged to have groped her breasts and pinched her nipples.
[45] T85.
I reject contamination as an explanation for the similarities.
Whilst there was evidence that witnesses were aware of allegations that the accused’s father had sexually abused family members there is no evidence of what the accused’s father is alleged to have done and nor is there any evidence that any of the complainants were informed about the details of what occurred. An awareness of this general allegation does not give rise to any concern on my part that such an awareness as to the accused’s father may have contaminated the memories of the complainants as to the alleged acts or given rise to the reconstruction of a memory which then involved the accused. Knowledge of the father’s acts does not logically lead to the construction of a memory as regards the accused acting in the ways alleged.
Similarity of account
Having excluded the possibility of collusion and contamination, I consider that the close similarities in their evidence are such that it is highly improbable that both MH and MR would happen independently to imagine or fabricate those accounts about the accused and about the accused acting in the manner each describes. I refer to my earlier outlining of the similarities.
Both describe the accused acting in a particular way toward young girls under the age of 10 in circumstances in which there was a significant age difference between the complainant and the accused and in circumstances in which both describe the accused having engaged in sexual acts which involved momentary touching and in which it may be said the accused could only have derived some fleeting sexual gratification from it.
Both also allege such touchings occurred over their clothing, that the accused acted toward them under the pretext of playing around, and that the accused’s actions occurred in the context of social gatherings when other adults were within the vicinity and when other children were in the room. That both describe acting in this way for what appears to be only momentary sexual gratification when such a risk exists is significant.
That MH described the accused also engaging in touching which was not of a momentary nature when such opportunities arose does not undermine the similarities which I have described. I consider it is highly improbable that both would happen to have independently imagined or fabricated or reconstructed those accounts in light of the similarities. The similarities in their accounts are important considerations when assessing both their credibility and their reliability as to the charged acts.
Re-count 3
The accused is the husband of MR’s mother’s sister. At the time of the alleged offence between December 1988 and May 1991 when MR was between the ages of seven and nine the accused had been married for approximately four to five years. The accused was about 32 years old. MR gave evidence that she was at the accused’s address at a social gathering. There were lots of people and children. She believed it was the accused’s son’s first birthday although allowed for the fact she may be mistaken. As MR stated, ‘I know that it was a birthday party, it could have been a first or it could have been a second. It is a very long time ago, but I did come forward the day it happened…’[46] MR recalled the incident happening at the Coventry Road address.
[46] T140.
MH had distinct memories of offences occurring in the living room and bedroom 3. She did not state any offences occurred in the sleepout used by the accused as a bedroom.
MH did not recall the accused living in the sleepout, but I do not consider anything turns on that. MH did not state that bedroom 3 was the accused’s bedroom. She stated she presumed it was the accused’s bedroom because it was set up as a boy’s room. It was also not disputed that she was frequently at the house during that period, and it is not disputed that she went into numerous bedrooms over that period.
I do not consider her inability to recall the sleepout undermines her credibility or reliability as to the charged offending to any material degree. Other witnesses were also unable to recall there being a sleepout or if they remembered it they incorrectly remembered the timeframe in which it was there. This is, I consider, of only minor relevance to the assessment of her reliability as to the sexual acts.
Notwithstanding MH accepted that many of her memories had blurred together, she did not purport to state that the offending occurred on every occasion she was there and nor did she state that the accused was present at the house on every occasion she was there. She was clearly unsure as to how often he was there.[64] When asked whether it was common that the accused was not there she said ‘I don’t recall. No, I wouldn’t. I mean it could be possible’. She stated that her evidence of being abused one in every three visits was her best ‘guesstimate’. It was clear to me that she did not purport to be able to recall every incident. This is what I would expect of a person honestly attempting to recount events which happened 40 years ago over a seven-year period.
[64] T103.
MH did not recall the accused being absent for about two years when he lived in Whyalla. She stated that she did not recall going years in her childhood without seeing him. I accept the accused was living in Whyalla when MH was between the ages of five and seven. However, given he visited his parents and stayed with them when he did so, the evidence is consistent with there being an opportunity for her to see him and for him to offend over that two year period. That she does not recall the accused moving away does not surprise me. That she would be left with impressions and sporadic memories of a period some 40 years earlier is what I would expect of a witness. It is further relevant in my view that the nature of the sexual abuse alleged by MH was frequently directed at momentary inappropriate touchings by the accused rather than extended periods alone.
It does however reinforce the circumspection required when considering whether the recollections of a child some 40 years later can be relied upon beyond reasonable doubt.
I also note that there is no allegation that any offence occurred in circumstances in which the accused isolated MH in the sleepout or that anything turned on the evidence of MH as regards the room being the bedroom of the accused. In a relatively small house where there are a number of children, I do not consider there is anything unusual about children going into different bedrooms. In any event there is no dispute that the family of MH and MH visited that house on a number of occasions. Any gaps in her memory as to such details do not in my view undermine her reliability as to the allegations of sexual abuse.
She agreed that bedroom 2 and 3 opened onto the dining area with a table in it. This was the table around which the adults would congregate. I agree this means there was an element of risk in any offending. I agree such a risk is relevant to the plausibility of her account and the reliability of her memory. The similarity of her account to that of MR as to the taking of a risk is however also relevant to the plausibility of her account. The similarity in their accounts is a significant factor in my findings.
She agreed the accused’s mother was strict, but she did not recall any rule about the doors to the rooms not being able to be closed. She did not agree such a rule existed because she recalled being in rooms with the door closed. She stated the accused would sometimes offer to take the children away from the adults.
Whilst I accept that a rule of some type existed as regards the doors remaining open, I do not accept that it was a rule which was never breached. I note for example the accused’s sister recalled that the boys did have to close the door if the noise was too loud and even the accused appeared to accept there were some circumstances in which the door would be closed. In any event, the fleeting nature of many of the accused’s alleged acts necessarily mean that such acts could occur even if the door was partially open. I am satisfied that there were more than sufficient opportunities for the accused to offend inside the house even if the doors were not completely closed.
Additionally, given the adults generally congregated around the dining room table, adults would have been absent from bedroom 3 and the living room on occasion. In any house, particularly when social gatherings occur, parents will not be watching every child for every moment. Over a period of some years, I am satisfied there were many opportunities for the accused to offend if he chose to do so.
Teasing
MH indicated she did not enjoy being called Charlie and that the accused teased her in this regard. I accept that such teasing could be said to increase the chances of MH complaining. However, the length of time over which MH alleges the accused was offending against her and her young age when it began explain why the accused became emboldened over time. The accused knew she would not complain notwithstanding he had been teasing her for many years.
Reconstruction
In addition to the issues I will identify as regards an adult recalling incidents from the time they were three years of age, I further consider there are aspects of MH’s evidence which are consistent with some reconstruction. MH stated that she did not tell her older sister G even when G was in the room because if she stayed quiet, she thought the accused would not go to G. Similarly, MH inferred that even when she was three, she was being protective of her father because her father was unwell and she instinctively knew she had to protect her father. Both of these aspects of her evidence are, in my view, consistent with reconstruction on her part. Insofar as MH said she recalled reasoning in this way I do not accept the reliability of that aspect of her account. I do not however consider it undermines her credibility.
Difference between opening and evidence
MH gave evidence of one occasion of fellatio at Loftis Road and one occasion of touching her breasts at Harvey Road. She did not give evidence that the accused caused her to perform an act of fellatio on more than one occasion and nor did she give evidence that he rubbed his penis against her vagina[65] or that he fondled her breasts when at Loftis Road. All are alleged on the information, and all were referenced in the prosecution opening. I note the authority of R v MAS[66] states that any inconsistencies between a witness’s evidence and the case as opened by the prosecution can be taken into account as regards an assessment of that witness’s credibility and/or reliability. I do however note a subsequent authority did not accept that proposition.[67]
[65] I also note reference was made to MH masturbating the accused and this was not a charge particular and nor was it part of the opening.
[66] (2013) 118 SASR 160.
[67] R v A, GP [2012] SASCFC 81.
In the absence of cross-examination as to a prior inconsistent statement or as a witness not referring to an event previously mentioned in a statement I doubt it is fair to a party or to a witness to take it into account without giving the witness an opportunity to explain it.
I consider there is a difference between a witness categorically stating nothing else happened and a witness saying they do not recall anything else happening. The first may be inconsistent with the opening and the second may not. In this regard I also consider there is a significant difference between evidence which is inconsistent with the prosecution opening and evidence which does not include all the detail given in the opening.
Given the Crown opening is not evidence I further query the propriety of drawing an inference as to the credibility or reliability of a witness from the details given in the opening.[68] I also consider that in the absence of cross-examination or an agreed fact, it may be said to be speculative to infer the witness has made an error in their evidence rather than the prosecutor. However, as there is some conflict in the authorities, I have taken these differences into account when considering her credibility and reliability.
[68] If it is proper to infer a failure by a witness to say something in their evidence when it is mentioned in the opening then I query whether the absence of detail in an opening would then allow an inference that a witness had made things up in their evidence if additional information is given.
I have therefore inferred MH previously stated to someone that the accused had her perform fellatio on more than one occasion, that the accused rubbed her vagina with his penis and that he fondled her breasts at Loftis Road.[69] Even inferring that MH did not come up to proof does not alter my satisfaction of her credibility and reliability as to the acts I have indicated. Her failure to remember something when giving evidence in court about events from decades before and when she is being asked to recall events over a seven-year period does not undermine her reliability as to the fact the accused did engage in other unlawful sexual acts with her over that period.
Complaint
[69] I also note that to draw such an inference I must proceed on the basis the prosecution made no errors in drafting the information and the prosecutor made no error in her opening.
MH was married in 1994. She stated that she told her husband in the first year of their marriage when she was 19 years old. They were living in Darwin because her husband was in the Navy. Her evidence was that she disclosed the sexual offending of the accused in ‘many conversations’. That there were numerous disclosures is not however admissible as evidence of complaint and I have also not had regard to the fact that aspects of the allegations may have been repeated over time. Repetition does not bolster her credibility and/or reliability.
MH could not recall the precise words she used when she first told her husband. She recalled she was crying and that they were in bed at the time. She told her husband that she was not comfortable with it and that she had been abused when she was a child.
She stated that the first few times that some flashbacks happened during sex it took her by surprise, and she was very emotional and probably not very articulate. She could not therefore remember exactly what she said because she would have been ‘a lot more hysterical’.[70] She indicated her husband suggested she should get some counselling.
[70] T97.
MH’s ex-husband SS gave evidence that he was initially stationed in Victoria and then moved to Darwin in 1995. He stated the first time MH told him anything was in 1994 or 1995. He believed they were in Victoria when the disclosure was made but I consider he did so with no sense of confidence. I accept the evidence of MH as regards the timing and location of the disclosure.
He also could not recall the exact conversation. MH told him that she was sexually abused as a child by her cousin J (the accused’s first name).[71] Although SS did not indicate the conversation had occurred in bed, he indicated the conversation occurred in the context of a discussion about a lack of intimacy between them.
[71] T118.
In light of the fact MH and SS had clearly discussed this issue on numerous occasions it is not surprising they were unable to recall the details of the first conversation. Whilst the circumstances in which MH determined to tell her new husband what had occurred is both believable and understandable and while I am satisfied the complaint does relate to the charged offending, I have not given the complaint evidence any weight in determining the issues. Neither the timing nor the circumstances nor the content of the complaint undermine the evidence of MH however nor do I consider it is of any weight as regards the issue of her credibility.
MH stated she did not tell anyone what was happening to her. She said she felt a lot of confusion, she felt dirty and gross but she also felt very protective of her parents and her father was very ill and she would not have wanted him to get sick.[72] Whilst I do not accept aspects of her explanations for not complaining I do accept that as a young girl it is not surprising she may have felt confused about what was occurring.
First incident
[72] T95.
MH said her first recollection of any sexual abuse occurred when she was three years old. She stated that she went to Scotland with her mother at that age and got lost in the snow and she recalls being the same ‘little girl’ when the accused first touched her inappropriately. She stated the accused called her into bedroom 3 where the bunkbeds were and while sitting on the bottom bunk, he pulled out his penis and told her to kiss it. He then pushed her head onto his penis so that her lips touched it. The accused told her to lick it and she did with ‘the smallest part of my tongue’. The accused then pushed his penis into her mouth. She did not recall him ejaculating.[73] She stated the accused didn’t say anything else but when she pulled away, he said to her ‘come back Charlie’. She said the accused was sitting on the edge of the bed and she was standing. She did not tell anyone, and she did not recall why she did not tell anyone. She surmised that she was ‘confused and didn’t know what happened’.[74]
[73] T88.
[74] T89.
MH’s inability to remember what people were wearing is not surprising. That inability causes me no concern as to her credibility or reliability.
Whilst I allow for the possibility that an incident of some form occurred at some time, I am not satisfied beyond reasonable doubt that this incident occurred as described by MH.
I query the ability of an adult to recall accurately an incident from 44 years ago when they were approximately three years old. Whilst I accept some adults may be able to do so I consider there is a real risk that the combination of her very young age at that time and the passage of time since that time have altered her memory. That is not to say MH was not honestly recounting her memory of the incident. I accept MH was attempting to be truthful. My concern relates to the accuracy and reliability of such an account which is said to include details of what the accused said.
That I am satisfied beyond reasonable doubt that acts of a sexual nature did occur between them over a period of time further raises the possibility her recollection has been contaminated by other memories.
There is no evidence that other acts of fellatio occurred.[75]
[75] This is contrary to the particulars alleged in the information and the opening.
I have considered the similarity in the accounts between MH and MR and the evidence of AC as to seeing the accused spooning and that I am satisfied the accused had the opportunity to commit such acts. Whilst the similarity in their accounts provides some support for the reliability and credibility of her evidence, I do note that this allegation does not have all of the same similarities.
In light of the matters I have raised above and that there are aspects of her evidence which suggest some reconstruction on her part I am not satisfied beyond reasonable doubt that any aspect of particular (a) has been proved.
1979-1984
Between the first and last incidents MH said there were many acts of a sexual nature. She stated that they happened ‘quite often’ when he got her alone. She said that it was hard to say because ‘the memories do kind of form into, like the dates and time, or times, and ages, they do kind of form into one’.[76] Her evidence on this topic was in my view an example of MH trying to be accurate. Her acknowledgment of the frailties of her memory and that there are limits on her ability to distinguish between events was consistent with my impression of her as an honest witness. It is also consistent with what I would expect after such a long passage of time.
[76] T88.
The evidence of MH as to the sexual acts did not contain a great deal of specificity. I accept that this is a product of the passage of time and the number of occasions on which it is said to have occurred. However, a lack of detail is a relevant consideration when considering both forensic disadvantage and whether I am satisfied beyond reasonable doubt that such an act occurred.
MH stated the accused did the following:
1. He inserted his finger into her vagina on numerous occasions. She stated this was sometimes done ‘if I was wearing a dress and it would just be like a quick opportunity and up my dress, in the side of my knickers’.[77] She remembered this occurring in the living room at the Loftis Road address and in bedroom 3. MH stated the accused only ever used one finger when doing this.
2. MH believed that her sister G who was two years older was in the same room on occasions. MH believes that it would have been more than one occasion but stated ‘because the way my memory is, it all – dates and times kind of blur, but I do have a feeling of G’s presence’.[78] She indicated that her sister would only have been in the room when the accused placed his finger in her vagina rather than the other acts involving the accused’s penis.
3. Sometimes if the accused ‘had more time’ he would ‘get’ her to masturbate him.[79] She stated sometimes the accused would masturbate himself and sometimes she would do it. Sometime ‘he would even get me to touch his penis when his penis was still in his pants’ so that she was touching him over his clothing.[80] Again she stated this always occurred at Loftis Road near the living room or bedroom 3.
4. The accused touched her genital area over the clothing. It ‘was just a ….quick grope basically.’[81]
5. Each of these acts occurred more than once. She did not recall any other type of act occurring. She indicated that the accused might encourage her during the acts and called her Charlie but there was no ongoing conversation.
[77] T92.
[78] T94.
[79] T92.
[80] T93.
[81] T94.
Significantly, apart from the last incident, MH only referred to offending occurring at the Loftis Road address.[82] Firstly, this means that for a period of about 18 months to two years in 1980 to 1982 the opportunity for the accused to offend was less as he was living in Whyalla. Secondly it means these allegations only relate to the period up to November 1984 as the accused was married and living at the Harvey Road address by then. Thirdly, there was therefore a gap of between seven and 18 months as the last incident occurred at Harvey Road between May 1985 and May 1986 when MH was 10 years old. I consider her evidence as to this time frame and her allegations are internally consistent. That there was a not insignificant gap in the offending and that the last incident occurred at a different address and when she was slightly older are circumstances which are consistent with MH having a better memory of that incident and why the earlier occasions blur together.
[82] T88, T92-T93.
I have taken into account that as regards each of these allegations there is not a great deal of specificity as to how and when such incidents occurred or the surrounding circumstances of the offending. I have taken into account the criticisms of her evidence, the possibility of reconstruction and the forensic disadvantage to the accused.
Whilst I acknowledge that the elements of s 50 of the Criminal Law Consolidation Act 1935 allow for a lack of specificity, a lack of specificity may still be relevant to whether the prosecution has proved its case beyond reasonable doubt.
As to particular (d)[83] there was no evidence as to how the accused incited or caused MH to touch his penis. That she touched his penis is not sufficient to prove an act of gross indecency given the manner in which this unlawful sexual act was particularised. There was no detail of any words or actions used or normally used by the accused. There was no detail as to whether such acts occurred during large social gatherings or only smaller gatherings. There was no detail as to how MH interacted with the accused during these incidents and whether she may have simply understood what was expected of her. There were also no questions to see if MH could describe his penis. It may well be that MH would not have recalled any detail however I am simply left with her evidence that he would ‘get’ her to touch his penis.
[83] inciting or causing the complainant to touch his penis on more than one occasion.
I accept an inference can be drawn that the accused asked her at some point to do so however in light of the forensic disadvantage, the absence of any detail as to how any one or more of these alleged acts occurred and the paucity of detail as to the surrounding circumstances I am not satisfied beyond reasonable doubt that such an act, even if it occurred, satisfies the elements of gross indecency as it has been particularised. The evidence of similarity of account does not alter that finding.
In addition to the matters to which I have referred above it is also relevant that there is no evidence as to whether these acts are alleged to have occurred mainly when she was very young or whether they occurred up until the accused left Loftis road. Assessing the risk of reconstruction is therefore difficult.
I am satisfied it is highly likely that MH saw and touched the penis of the accused at some time. However, in light of the paucity of detail as to these allegations and that her descriptions of these acts do not have the same similarities as I have identified in the account of MR I am not satisfied beyond reasonable doubt that such acts occurred. The onus of proof and the forensic disadvantage are significant hurdles for the prosecution in circumstances in which so little detail is provided.
I have taken this finding into account when considering particulars (b), (c) and (e). That she was unable to provide detail is consistent with other aspects of her evidence, her age and the passage of time and it is consistent with her not exaggerating or embellishing her account.
The matters of which I am not satisfied beyond reasonable doubt do not cause me to doubt MH’s credibility or reliability as to all other alleged sexual acts.
I am satisfied that between about 1979 and 1984 there were occasions when the accused touched her genitals on the outside of her clothing and inserted his finger into her vagina. My satisfaction as to her honesty, the opportunities to offend and the similarities between this aspect of her evidence and the evidence of MR satisfy me beyond reasonable doubt that such acts occurred. I have taken into account my doubts as to other aspects of her evidence, the risk of reconstruction and the paucity of detail however I consider the similarities between the accounts of MH and MR as to the circumstances of this offending are an important consideration when determining the credibility and reliability of MH’s evidence as to these acts. I consider the evidence of the similarities far outweighs the significance of the other matters to which I have referred in these reasons. In making this finding I have considered the whole of her evidence and not simply that aspect which dealt with the touching of her vagina. For example, I consider her recollection of the last incident was in many respects compelling and believable.
In making this finding I have also taken into account the accused’s denials. Having regard to the whole of the evidence I am satisfied the accused’s denials are not reasonably possibly true.
Having regard to the fact the accused touched her in and on her vagina numerous times and that she described it as a ‘grope’ I am also satisfied that the touching of the genitals on the outside of the clothing was not accidental and that it was indecent because it had a sexual connotation.
I am therefore satisfied that particulars (b) and (c) are proved and that each of the elements of indecent assault and unlawful sexual intercourse with a person under the age of 12 years are proved.
As to the number of acts which occurred, I cannot be specific. Consistent with her evidence that occasions merged into each other I am satisfied numerous acts occurred over a period of some years however beyond that I cannot say.
Last incident
MH recounted an incident at Harvey Road when the accused was married. MH stated that she was 10 years old at the time. This corresponds with the time frame the accused was living at Harvey Road. This would have been after May 1985 and before May 1986. Apart from this incident MH only went to the house at Harvey Road on one other occasion and it was only a brief visit.[84]
[84] T92.
MH attended at the accused’s house with her mother and father for a barbeque. MH did not identify the other people present but indicated that at one point the accused got her away from the adults and asked her to play darts. She went with him and every time the accused collected the darts from the dart board and returned them to her, he groped her breasts or pinched her nipples. It ended when he pinched her nipples and she hit his hand away and told him that if he touched her one more time, she would tell her father.
Her siblings were not with her on that occasion.
I consider her evidence that the offending ended on the occasion she threatened to tell her father when she was 10 years old, and the accused had been groping her breasts and pinching her nipples was compelling. Not only is the threat one which is believable, but I consider that the accused’s acts were of a type which I readily believe would have been most annoying to her.
MH described the room in which the offending occurred as ‘the front room off the loungeroom’ which was set up like a bar type thing with a dartboard.[85] She did not recall any couches or chairs.[86]
[85] T90.
[86] T108.
The accused described the layout of that house such that the front door opened into the lounge and the only room off the lounge was the bedroom and the kitchen.[87] He said the dartboard was never in the lounge. I do note however that MH does not describe the dartboard being in the lounge, she describes it as being in a room off the lounge.
[87] T285.
The accused stated the dartboard was in the shed.[88] The accused’s sister MJH remembered the dartboard being in the loungeroom at Harvey Road. She agreed a dartboard at Coventry Road was in the shed but was sure it was in the lounge at Harvey Road. I also note MJH indicated she had originally forgotten about the shed out the back which the accused used as a bedroom. This simply confirms that an honest witness may not remember specific details even when they lived at a particular house. Another of the accused’s sisters, BH, recalled the accused having a dartboard in the lounge at his house in Smithfield.
[88] T241.
I do not know where the dart board was located. I allow for the possibility that MH is wrong as to there being a room off the loungeroom. That MH may be incorrect does not undermine her reliability to any meaningful extent. There is no dispute she visited the house and there is no dispute there was a room with a dartboard in it. It is also not irrelevant that MH only went to the house at Harvey Road on two occasions and one was a very brief occasion. That her impression of the layout of the house after 40 years is inaccurate does not undermine her reliability as regards the alleged offending. If she was in the shed alone with the accused, the offending could still have occurred as she described.
I have again taken into account those matters which undermine the prosecution case. I will not repeat them. Again, I consider the similarity between this aspect of MH’s account and the account of MR is significant, notwithstanding the absence of other children on this occasion. Having regard to all that I have said including that I consider her evidence about this incident was internally consistent with other aspects of her evidence and that I found her evidence as to making the threat particularly compelling I am satisfied beyond reasonable doubt that the accused voluntarily and intentionally touched the breasts and nipples of MH at Harvey Road when she was 10 years old. I make that finding based on my assessment of the whole of the evidence including the accused’s denials.
I am satisfied that those touchings were indecent given her age, where he touched her and the circumstances in which he touched her. Touching and/or pinching the breasts of a 10-year-old girl in those circumstances has a sexual connotation irrespective of the purpose of the accused. If required to do so I am however also satisfied such assaults were for his sexual gratification notwithstanding the fleeting nature of the touching.
The elements of s 50 of the Criminal Law Consolidation Act1935 do not require the prosecution to allege particulars of any unlawful sexual act in the same manner as if the act were charged as a separate offence. Similarly, I am not required to be satisfied of the particulars of any one unlawful sexual act in the same way as I would have to be satisfied of it, if the act were charged as a separate offence.
Having regard to my satisfaction as to the touching of her breasts and the touching of her genital area and the inserting of his finger into her vagina I am satisfied that the accused committed at least two unlawful sexual acts against MH during the relevant period.
I find the accused guilty of count 2.
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