R v JLF - [2024] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JLF
Criminal Trial by Judge Alone
[2024] SADC 107
Reasons for the Verdict of her Honour Judge Schammer
13 September 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - EVIDENCE - COMPLAINTS
CRIMINAL LAW - EVIDENCE - CREDIBILITY - PRIOR INCONSISTENT STATEMENTS
The accused, JLF, is charged with one count of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) Criminal Law Consolidation Act, 1935 and, in the alternative, two counts of aggravated indecent assault and one count of unlawful sexual intercourse with a person under 14 years. The complainant is the accused’s biological younger sister, LGF.
The alleged offending is said to have occurred at Morphett Vale and other places between 19 December 2019 and 23 February 2021 when LGF was aged 12 or 13.
LGF alleges, that on multiple occasions over an approximate 10 month period, the accused touched her indecently on her buttocks, breasts and vagina and inserted his finger in her vagina. She also alleges that on one occasion, during the same period, the accused caused her to touch his penis.
Verdict:
The accused is guilty of count 1 on the Information.
Juries Act 1927 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) ss 5, 48A, 50(4)(b), 50(12), 56 and 57(2); Evidence Act 1929 (SA) ss 13BA, 13D, 34M and 34P; Summary Offences Act 1953 (SA) Part 17 Division 3, referred to.
JJP v R [2021] SASCA 53; Jones v Dunkel [1959] HCA 8; R v Spencer [2019] SASCFC 70; Murray v R (2002) 211 CLR 193, considered.

R v JLF
[2024] SADC 107
[Criminal]
Introduction

The accused, JLF, is charged on Information dated 18 August 2022 with four counts for alleged sexual offending against his biological sister, LGF. The offending is alleged to have occurred at a time when LGF was aged 12 and/or 13, and JLF was aged between 21 and 23.
The accused elected to be tried by a judge sitting without a jury, pursuant to s 7 of the Juries Act 1927.
The Charges
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale and other places, maintained an unlawful sexual relationship with LGF, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a)touching her buttocks on more than one occasion;
(b)touching her breasts on more than one occasion;
(c)touching her vagina on more than one occasion;
(d)inserting a finger into her vagina on more than one occasion; and
(e)causing her to touch his penis.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, indecently assaulted LGF by touching her bottom.
It is further alleged that LGF was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Aggravated Indecent Assault. (Section 56(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, indecently assaulted LGF by touching her breasts.
It is further alleged that LGF was under the age of 14 years at the time of the offence.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 14 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
JLF between the 19th day of December 2019 and the 23rd day of February 2021 at Morphett Vale, had sexual intercourse with LGF by inserting a finger into her vagina.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the Charged Offences
Counts 2, 3 and 4 have been laid in the alternative to Count 1.
In order for a verdict of guilty to be returned on any count, the prosecution must prove the elements of that count beyond reasonable doubt.
Count One
The prosecution must prove the four elements of the offence beyond reasonable doubt, namely:
1.That the accused knowingly maintained a relationship with LGF.
2.In the course of that relationship, the accused engaged in two or more unlawful sexual acts with LGF.
3.That at the time the accused engaged in two or more unlawful sexual acts with LGF, LGF was a child.
4.That at the time the accused engaged in two or more unlawful sexual acts with LGF, the accused was an adult.
LGF’s date of birth is 20 December 2007.[1] The accused’s date of birth is 16 February 1998.[2] The alleged offending is said to have occurred between 19 December 2019 and 23 February 2021. I am satisfied that LGF was a child, aged between 12 and 13 and that the accused was an adult, aged between 21 and 23 during that period (the relevant period).
[1] Exhibit P34 at [2].
[2] Exhibit P34 at [1].
LGF and the accused are biological siblings. During the relevant period, LGF was living (for most of the time) with her mother and brother, LF, at a house in Kenneth Road, Morphett Vale (Kenneth Road), and the accused was living with his grandmother at Ethelton. However, there was no dispute that during the relevant period, the accused and LGF saw each other when the accused would come to stay at the family home and that he and LGF would socialise and spend time together, as siblings.
There is no dispute, and I am satisfied, that during the relevant period, the accused knowingly maintained a relationship with LGF.
The issue in dispute as to count 1 (and all counts) is whether any of the alleged unlawful sexual acts occurred.
An ‘unlawful sexual act’ is an act that constitutes or would constitute (if particulars of the time and place at which the act took place were sufficiently particularised), a sexual offence.[3]
[3] Section 50(12) Criminal Law Consolidation Act 1935 (CLCA).
A ‘sexual offence’ is defined to mean:[4]
(a)an offence against Division 11 (other than sections 59 and 61) or sections 63B, 66, 69 or 72; or
(b)an attempt to commit, or assault with intent to commit, any of those offences, or
(c)a substantially similar offence against a previous enactment.
[4] Ibid.
Pursuant to s 50(4)(b) of the Criminal Law Consolidation Act 1935 (the Act), it is not necessary for me to be satisfied of the particulars of any unlawful sexual act as if that act had been charged as a separate offence. However, I must be satisfied as to the general nature or character of those acts.
The prosecution must prove beyond reasonable doubt the elements of the ‘sexual offences’ relied upon as rendering the alleged acts ‘unlawful sexual acts’.[5] Those sexual offences are the offences of indecent assault and unlawful sexual intercourse.
[5] JJP v R [2021] SASCA 53 per Doyle JA.
Aggravated Indecent Assault
The prosecution allege that the accused engaged in several acts with LGF, each of which constitute the offence of aggravated indecent assault contrary to s 56 of the Act, namely:
·touching her buttocks on more than one occasion – particular (a);
·touching her breasts on more than one occasion – particular (b);
·touching her vagina on more than one occasion – particular (c); and
·causing her to touch his penis– particular (e).[6]
[6] Noting that the nature of these allegations is such that in the alternative the prosecution could have but did not seek to rely on the alternative offence of compelled sexual manipulation pursuant to s 48A of the Act.
The elements of the offence of aggravated indecent assault are:
1.The accused assaulted LGF.
2.The assault occurred in circumstances of indecency. It is a matter for me to consider whether the proven conduct of the accused is indecent by reference to reasonable contemporary standards. I must be satisfied that the conduct had a sexual connotation.
3.LGF was under the age of 14 years at the time of the assault.
To prove the first element, the prosecution must prove four sub-elements:
·The accused applied force to LGF;
·The accused intended to apply force to LGF;
·The assault was unlawful; and
·The accused knew LGF did not consent or was reckless as to the absence of consent. However, as LGF was under the age of 17 during the relevant period, she is not deemed to be capable of consenting to such conduct.[7]
[7] Section 57(2) of the Act.
Unlawful Sexual Intercourse
The prosecution allege that the accused engaged in acts with LGF which constitute the offence of unlawful sexual intercourse contrary to s 49(1) of the Act, namely by inserting his finger in her vagina on more than one occasion – particular (d).
The elements of the offence of unlawful sexual intercourse are:
1.That the accused had sexual intercourse with LGF; and
2.That LGF was under the age of 17 years at the time.
Sexual intercourse is defined to include any activity consisting of or involving penetration of a person’s vagina, labia majora or anus by any part of the body of another person; or fellatio; or cunnilingus.[8]
[8] Section 5 of the Act.
Counts 2, 3 and 4
Counts 2, 3 and 4 relate to allegations of sexual abuse that took place on a specific morning in the lounge room of the family home at Morphett Vale.
Counts 2 and 3 are offences of Aggravated Indecent Assault. As to each count, for a verdict of guilty to be returned, the prosecution must prove the elements as outlined at paragraph 19 herein beyond reasonable doubt.
Count 4 is the offence of Unlawful Sexual Intercourse with a person under the age of 14. The first element is that as outlined at paragraph 22.1 herein, however, as to the second element, the prosecution must prove beyond reasonable doubt that LGF was aged under 14 years at the time of the offending.
Summary of Prosecution Case
The prosecution case is that the accused, on more than one occasion, touched LGF on her buttocks, touched her breasts, touched her vagina and inserted a finger into her vagina. It is also alleged that on one occasion, he caused her to touch his penis.
The majority of the offending is alleged to have occurred in LGF’s bed in her bedroom at Kenneth Road. The opportunity for the offending is said to have arisen when the accused slept in that bed, with LGF, when he came to stay at Kenneth Road.
LGF was only able to describe the offending that occurred in her bedroom in general terms, with the explanation for this being the fact that it occurred on a regular basis and sometimes when she was under the influence of substances, meaning she was struggling to differentiate each individual occasion of offending.
However, she described, in more detail, other occasions of offending in other locations, including in the lounge room and in a tent at Kenneth Road, at her friend’s house on New Year’s Eve 2020 and at her Nanna’s house in Ethelton.
It is the prosecution case that the offending occurred in the context of the accused buying LGF things and spending money on her by taking her out, and that the offending was facilitated, at times, by the accused providing LGF with alcohol or drugs, which they would then consume together.
Summary of Defence Case
The defence case was simply that the alleged unlawful sexual acts did not occur.
Specific challenges were made as to the reliability and credibility of LGF’s evidence and as to the reliability and credibility of the evidence given by both RW and LF on ancillary matters which otherwise supported LGF’s account.
Notwithstanding how some of the witnesses were cross-examined, no specific motive for LGF to lie was relied upon and specifically, it was not the defence case that LGF had made up the allegations at the behest of her mother or her other brother, LF.[9]
[9] See direction at [97]-[98] herein as to the absence of any specific motive to lie.
Witnesses and Exhibits
The prosecution called evidence from the complainant, LGF.[10] In addition, evidence was called from:
·The complainant’s mother, KW;
·The complainant’s brother, LF;
·The complainant’s friend, JMT; and
·Brevet Sergeant Lock.
[10] See further discussion below as to how this evidence was led.
The prosecution tendered numerous exhibits including:
·Statement of Agreed Facts.[11]
·An audio-visual recording of an interview conducted between Detective Brevet Sergeant Kittel (Officer Kittel) and LGF on 6 May 2021 (the first LGF interview).[12]
·An audio-visual recording of an interview conducted between Officer Kittel and LGF on 29 January 2022 (the second LGF interview).[13]
·An edited audio-visual recording of the evidence given by LGF at the first trial on 17 and 18 August 2022.[14]
·An affidavit affirmed by LGF on 31 May 2024.[15]
·An edited audio-visual recording of an interview conducted between Sergeant Williams and the accused on 3 June 2021.[16]
·A copy of the transcript of the evidence given by the accused at the first trial on 23 and 24 August 2022.[17]
·Edited transcripts of the abovementioned recordings were provided.[18] When referring to the evidence contained in those recordings, I will refer to the relevant page and/or paragraph number contained within the transcript of the recording, for ease of reference.
[11] Exhibit P34.
[12] Exhibit P1.
[13] Exhibit P3.
[14] Exhibit P18. This trial was a re-trial (see discussion as to the admissibility of the evidence in this form at [67]-[70] herein).
[15] Exhibit P20.
[16] Exhibit P29.
[17] Exhibit P33.
[18] MFI P2, MFI P4, MFI P19 and MFI P30.
The accused exercised his right not to give evidence at trial.
He tendered several exhibits and called evidence from Mrs Marie Shaw KC and Mr Garry Anderson.
Legal Directions
General
The prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt. There is no onus on the accused to prove anything. It is not for the accused to prove that he did not commit the offence(s) as charged.
As to each count, the accused is presumed by law to be innocent of the charge unless and until the evidence that I accept satisfies me that every element of the offence has been proved beyond reasonable doubt. Nothing short of proof beyond reasonable doubt will suffice.
There are four counts on the Information. I must assess these counts separately and only take into account the evidence that is relevant and admissible to the count under consideration.
As to each count, it is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of an offence, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of that offence. I must reject beyond reasonable doubt the accused’s denial and any explanation(s) proffered by him.
In these reasons, if I use the words ‘proved’, ‘established’ or ‘satisfied’, I mean to a standard of beyond reasonable doubt. As to each count, considered separately, if I am satisfied that there is a reasonable explanation consistent with the innocence of the accused, or I am uncertain where the truth lies, then I must find that count has not been proven beyond reasonable doubt.
I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’s evidence.
Neither the complainant’s older sister, ZF, her grandmother, RW, nor her friend, Sadie, were called to give evidence.
There was evidence led that ZF visited Kenneth Road on occasions during the relevant period, including participating in card games, being evidence relevant to why the accused chose to sleep in the complainant’s bedroom, rather than in the lounge room, from time to time.
The complainant lived with RW and the accused for several weeks in January 2021. As such, RW may have made observations as to interactions between the accused and LGF during that period which may have assisted the Court to assess the reliability and credibility of the complainant’s evidence and of the evidence given by the accused at the first trial.
Officer Lock gave evidence that RW declined to provide an affidavit to police.[19]
[19] T 183.17-21.
The complainant gave evidence that Sadie was with her and the accused at a nearby park when the accused encouraged them to participate in a game of truth or dare, during which he asked her questions of a sexual nature. Sadie is also alleged to have been present the next day, when the accused allegedly sexually abused the complainant when he, the complainant and Sadie, were all lying on the complainant’s bed.
As such, these witnesses and in particular, Sadie, may have been able to provide evidence to the Court which was relevant to the issues in dispute.
I must not speculate about the nature of any evidence I have not heard. I simply do not know what evidence may have been given by any absent witness. I must decide the case only on the evidence before me.
LGF did not provide Sadie’s surname until she gave evidence at the first trial. Officer Lock gave evidence that she had not made any attempts to locate Sadie and that other attempts the police had made to locate Sadie were unsuccessful. There was no evidence as to precisely what those attempts entailed.[20]
[20] T 183.12-16; T 185.22-186.11.
Although I was not specifically requested to draw a Jones v Dunkel[21] inference due to the absence of any evidence being called from Sadie, I direct myself that where there is a witness available to substantiate the prosecution case and that witness is not called, nor an adequate explanation offered as to why, I may conclude that the prosecution did not consider the evidence of that witness likely to assist the prosecution case. However, in the absence of that witness, I must not speculate as to what evidence they may have given. I must determine whether the prosecution has proved the accused’s guilt as to a count or counts, based solely on the evidence before me.
[21] [1959] HCA 8.
The accused was under no obligation to give evidence at the first trial. I should give him whatever credit I see fit for subjecting himself to cross-examination at the first trial. I must assess his evidence in the same way as I assess the evidence of any other witness. I remind myself that if I was to reject that evidence in its entirety, that does not bolster, nor strengthen the prosecution case. The prosecution must prove each element of the offences charged beyond reasonable doubt.
The accused elected not to give evidence at the trial. In doing so, he was exercising his right to silence. I must not draw any adverse inference against the accused for exercising that right. He was entitled to put the prosecution to proof and if the prosecution is unable to prove its case as to a count or counts, then the accused is entitled to a verdict of not guilty to that count or counts.

Evidence was led as to the accused’s good character. This evidence was before the Court for two purposes. The evidence is relevant to both the probability that the accused committed any of the alleged offences (that is, as a person of good character it is argued he is less likely to have done so, it not being in his nature) and to my assessment of the credibility of the accused’s denials with respect to the offending and his evidence generally. Of course, if I accept that the accused is a person of good character I may, nonetheless, accept other evidence that leads me to conclude beyond reasonable doubt that he is guilty of an alleged count or counts.
As to the making of inferences, I must not guess or speculate. There must be a logical and rational connection between the facts I find and the inferences I draw.
I must bring an open and unprejudiced mind to the case. I must make my decision without sympathy, without prejudice, or fear and must not be influenced by public opinion in relation to this matter.
Complainant’s Evidence
LGF’s evidence is critical to the prosecution case as to each count. I must carefully scrutinise her evidence before I can be satisfied beyond reasonable doubt of its truthfulness and accuracy.
The first LGF interview was conducted on 6 May 2021, when LGF was aged 13. The second LGF interview was conducted on 29 January 2022, when LGF was aged 14. Audio visual recordings were made of each of those records of interview.
An application was made for the audio-visual recordings of the first and second LGF interviews to be admitted into evidence pursuant to s 13BA of the Evidence Act 1929 (EA).[22] I determined that each audiovisual record was made in accordance with Part 17 Division 3 of the Summary Offences Act 1953 and that at the time each audiovisual record was made, LGF had the capacity to give either unsworn or sworn evidence. I was further satisfied that LGF had made herself available, previously, for cross-examination and re-examination and was prepared to make herself available for any such further examination, if necessary.
[22] Interlocutory Application dated 2 May 2024, FDN 34.
I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence.
It was agreed between the parties that the Court should disregard the evidence in the first LGF interview at line 762, lines 1826 to 1845, lines 1865 to 1871, lines 2069 to 2070 and lines 2213 to 2272.[23]
[23] T 21.7-14.
I am of the view that lines 1426 to 1469 and line 2429 of the first LGF interview are also inadmissible.
It was also agreed that the Court should disregard the evidence in the second LGF interview at lines 319 to 331, lines 404 to 408 and lines 432 to 442.[24]
[24] T 23.2-15.
I have disregarded the portions of each interview as identified.
Prior to trial, the prosecution made an application pursuant to s 13D of the EA for the Court to admit into evidence an official record of the evidence given by LGF at the first trial.[25] Section 13D of the EA states:
[25] Interlocutory Application dated 23 May 2024, FDN 42, supported by an affidavit affirmed by LGF on 23 May 2024, FDN 43.
13D—Court's power to admit evidence taken in earlier proceedings
(1)If, on application by a party to civil or criminal proceedings before a court, the court is satisfied that—
(a)     evidence given by a witness in earlier criminal proceedings is relevant to the proceedings before the court; and
(b)     the witness—
(i)has died; or
(ii)has become too ill or infirm to give evidence; or
(iii)has not, after diligent search, been found; or
(iv)is a vulnerable witness,
the court in the later proceedings has a discretion to admit an official record of the evidence.
(2)An official record of evidence is a record made at the direction or with the approval of the court before which the evidence was taken and, if an audio or audio visual record of the evidence was taken at the direction or with the approval of the court, in addition to a written transcript, the official record of evidence includes the audio or audio visual record.
(3)Before the court admits an official record into evidence in proceedings under this section, the record must be edited—
(a)     as agreed between the parties to those proceedings so as to exclude material that is not relevant to those proceedings; and
(b)     so as to exclude evidence that is inadmissible in those proceedings for any other reason.
(4)If the court admits an official record into evidence under this section, it may relieve the witness, wholly or in part, from an obligation to give evidence in the later proceedings.
The application was initially opposed on the basis the accused intended to seek leave to further cross-examine LGF on certain topics. The application seeking leave to further cross-examine LGF was ultimately not proceeded with.
LGF gave sworn evidence under cross-examination and re-examination at the first trial, when she was still aged 14.
I was satisfied that LGF was a vulnerable witness and that it was otherwise appropriate to admit an official record of the evidence she gave at the first trial into evidence at the trial.
When LGF gave evidence at the first trial, the court was closed and her evidence was recorded. I must not draw any inference adverse to the accused because the evidence was admitted in this form, nor must I allow this to influence the weight given to that evidence.
Complaint Evidence[26]
[26] There was evidence from which it could be inferred that LGF told her mother about the alleged offending on 22 February 2021, when LGF was at the Flinders Medical Centre. Shortly thereafter the alleged offending was reported to the police. This evidence was not led by way of complaint evidence, rather it was led only to explain how the alleged offending came to be reported to the police and to provide context as to timing of various text messages exchanged thereafter between KW and the accused. I have only used that evidence for those limited purposes. I have disregarded the evidence at T 82.12 as it is inadmissible.
LGF gave evidence that the first person she told about the alleged offending was her friend, JMT. She said that she did not go into detail, instead telling her only that the accused had sexually touched her. JMT also gave evidence to this effect. This evidence was admitted, without objection, as evidence of LGF’s initial complaint pursuant to s 34M of the EA.
LGF gave evidence that she also told her brother, LF about the alleged offending. LF gave evidence that during this conversation, LGF gave details about the alleged offending, including that the accused had been fingering her. This evidence was admitted, without objection, as evidence by way of elaboration of the initial complaint.
Evidence of the initial complaint and the elaboration of that complaint made by LGF is an exception to the rule which prohibits proof of prior, out of court, consistent statements.
Complaint evidence is admitted to inform the trier of fact as to how the allegations first came to light and as evidence of the degree of consistency of conduct of the complainant.
Importantly, complaint evidence is not admitted as evidence of the truth of what was alleged and cannot be used as some form of independent evidence to prove what happened, as, only the evidence of the complainant as to the allegations of the specific offending against her, is able to prove that.
There may be many and varied reasons why an alleged victim of a sexual offence has made a complaint at a particular time or to a particular person. It is for me to determine the significance (if any) of the evidence in the circumstances of this case.
Forensic Disadvantage
LGF’s evidence lacked specific detail as to precisely when some of the alleged unlawful sexual acts occurred, namely those which were said to have occurred in her bedroom and the lounge room at Kenneth Road and the offending at RW’s house at Ethelton.
The accused did not live with LGF at Kenneth Road. There was no real dispute that he only visited (and stayed overnight) at the family every two or three weeks on a weekend.
Had a timely complaint been made by the complainant, in each instance, of the alleged offending, the accused may have been able to provide a relatively contemporaneous recollection of the nature of his interactions with the complainant at the time of each alleged unlawful sexual act. For example, he may have been able to prove whether he was present at Kenneth Road on the occasions of the alleged abuse.
I accept that in these circumstances, the accused has been deprived of the opportunity to properly identify the occasions of that alleged offending, to defend those allegations other than by way of a bare denial and to fully test the complainant’s reliability and credibility by reference to the surrounding circumstances of those alleged acts.
I have taken this forensic disadvantage into account when scrutinising the evidence and in assessing whether the prosecution has proved each element of the offences as charged beyond reasonable doubt.
Discreditable Conduct
Evidence of discreditable conduct was adduced and admitted at trial pursuant to s 34P, for permissible purposes which did not rely on propensity reasoning.
The complainant gave evidence that the accused had talked to her about sexual things, when playing games such as truth or dare. The complainant gave evidence that during such games, the accused had asked her questions of a sexual nature and had dared her to kiss her friend, Sadie.[27] This evidence is evidence of discreditable conduct. It was led without objection.
[27] First LGF interview at p 51, lines 2248-2462.
The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between LGF and the accused, how they would interact with one another and how, by his actions, the accused was normalising sexual behaviour. The prosecution relied on this evidence to demonstrate that the accused was grooming the complainant by normalising conduct of a sexual nature between them.
I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.
The complainant gave evidence that the accused would buy her alcohol and drugs and that they would consume alcohol and drugs together. This evidence is evidence of discreditable conduct. It was led without objection.
The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to demonstrate the nature of the relationship between LGF and the accused and the context in which the alleged offending occurred. Further, the prosecution relied on this evidence to establish how the accused facilitated access to LGF to commit the alleged offending, to explain why it was that she was compliant and to demonstrate the degree of control he consequently had over her. The evidence was also relied upon to provide an explanation as to why LGF cannot recall specific details of occasions when she was abused and as to the accused’s state of mind and/or disinhibition at the time of some of the alleged offending.
I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.
There was evidence led from several witnesses that the accused regularly slept in the complainant’s bed, with the complainant. This is arguably discreditable conduct evidence. It was led without objection.
The evidence was led for a permissible purpose which did not engage propensity reasoning, namely, to prove that the accused had the opportunity to commit the unlawful sexual acts the complainant alleged had occurred in her bedroom. It was further led as to the context in which the alleged offending occurred.
I am satisfied that the probative value of this evidence outweighs any prejudicial effect it may have on the accused.
If I accept some or all of the discreditable conduct evidence, I must only use that evidence for the permissible purpose or purposes as specified. I must not use that evidence to reason that the accused is more likely to have committed any of the offences because of this conduct. Further, I must not reason from this evidence that the accused is a person of bad character and is therefore the type of person who would commit any of the alleged offences.
If any evidence of discreditable conduct is essential to my process of reasoning leading to a finding of guilt, the evidence cannot be used unless on the whole of the evidence, the facts in proof of which the evidence was admitted, are established beyond reasonable doubt.
Lies
The prosecutor submitted that the Court should reject the accused’s evidence and what he said during his record of interview, when he denied having supplied LGF with alcohol or cannabis, as such evidence was said to be contrary with all of the other evidence.
Insofar as it may be suggested that the accused lied either in his evidence or record of interview, I remind myself that whether the accused has told a lie or lies is a matter for me to determine. If I am satisfied the accused has lied, this is relevant and can be used in my assessment of the accused’s credibility. However, I cannot use this as evidence of his guilt. If I find the accused has lied, it does not add to the prosecution case. It remains for me to determine, having regard to all of the evidence, whether the evidence is sufficient to satisfy me beyond reasonable doubt as to the accused’s guilt of a count or counts.
Motive to Lie
Counsel for the accused expressly disavowed any reliance on an argument that the complainant had a specific motive to lie about the offending and/or had lied about the offending at the insistence of or with the encouragement of her mother, KW, to seek retribution for alleged sexual abuse perpetrated against KW many years earlier by another family member, or at the behest of LF.
However, as LGF’s evidence is critical to the prosecution case as to each count, I must be satisfied that her evidence is both true and accurate. It is not for the accused to demonstrate or prove to me that she is wrong or lying. There may be many reasons that a witness may lie and I must not speculate about those. I must not treat LGF’s evidence as being more credible or more believable simply because there is no evidence to provide a reason for why she might be lying. I must carefully consider all of the evidence to determine whether I am satisfied as to her credibility and reliability.
Bad Character of Complainant
The prosecution tendered as an exhibit, by consent, an affidavit affirmed by LGF on 31 May 2024, containing her evidence as to an image with captions that she posted to her Instagram account at a time prior to May 2023.[28] The image is a photograph of various items of jewellery (still in packaging) and makeup. The caption reads ‘Fun little rack up’.
[28] Exhibit P20.
LGF affirmed that when she wrote this, she was referring to having fun and to her having stolen something. She said she did not steal the jewellery or the nail drill depicted in the image but admitted to having stolen the other items depicted.[29]
[29] Exhibit P20 at [6]-[8].
By this, and other evidence,[30] LGF acknowledged that she has a history of behaving dishonestly, being another matter relevant to the care and caution I must exercise when assessing the credibility of her evidence.
[30] LGF also gave evidence to the effect that she and a friend had stolen ‘shrooms from a friend’s father and home brew from a friend’s mother.
Of course, a person who may be considered to be of bad character may nevertheless give honest and credible evidence.
Prior Inconsistent Statements
In his closing address, counsel for the accused submitted that the evidence given in court under oath by the complainant differed in certain aspects from what she had told the police in her various statements and in her proofings with the Director, such I should have doubts as to both her reliability and credibility.
Insofar as those alleged inconsistencies (or omissions) relate to statements made out of court, and not in either the first or second LGF interviews, the out of court prior inconsistent statements are relevant and put before me to assist me to determine the reliability and credibility of the complainant’s evidence given in court and in the first and second LGF interviews. Any inconsistency in the evidence given by the complainant is also obviously relevant to my assessment of the complainant’s reliability and credibility.
Before I have regard to a prior inconsistent statement there must be some evidence that the prior inconsistent statement has been made. I may use evidence that LGF has said something different on a previous occasion or omitted to say something on a previous occasion as evidence affecting her credibility and reliability.
I will consider those aspects of the evidence, whether given by LGF or any other witness, said to be inconsistent with earlier evidence (and/or out of court statements), in my analysis and findings with respect to the evidence.
Background Facts - Not in Dispute
Family Members/Living Arrangements
As previously stated, LGF and the accused are biological siblings, with the accused being some 10 years older than LGF.
The accused is the second oldest of four siblings, with LGF being the youngest. Their oldest sibling is a sister, ZF, born on 6 November 1996.[31] A third sibling, a brother, LF, was born on 19 June 2003, meaning he is some four years older than LGF.[32]
[31] T 62.36-37.
[32] T 63.10-13.
During the relevant period, LGF lived with her mother, KW and LF at Kenneth Road. This was a three-bedroom house, the floorplan for which is accurately depicted in Exhibit P6.
Neither ZF, nor the accused, lived with the family at Kenneth Road. When the accused turned 18, the accused moved out of the (then) family home[33] and went to live with his maternal grandmother, RW,[34] at Ethelton. KW and RW did not get along very well.[35]
[33] Being another house also in Morphett Vale.
[34] LGF referred to KW as either ‘Nanna’ or ‘Nan’ during her evidence.
[35] MFI P19 at T 151.34-36.
The accused continued to visit and stayed at Kenneth Road during the relevant period. Those visits would ordinarily be on the weekend, as the accused worked full time, six days a week, as an apprentice glazier. The accused stayed the night at Kenneth Road approximately once a fortnight or once every three weeks, on average.
The accused gave evidence, supported by that of Mr Anderson, that he was required to work on Saturdays. This evidence was not challenged. It was the accused’s case that as he worked on Saturday mornings, he would visit Kenneth Road after work on a Saturday, and only ever stay there on a Saturday night, except when he got some time off around Christmas. The evidence given by LGF and KW was consistent with this.[36]
[36] Noting LF gave evidence that he thought the accused would stay on Friday nights, although he conceded it may have been the Saturday; T 118.11-12.
The accused did not have a bedroom at Kenneth Road. When the accused stayed there, he slept in various locations, including on a mattress on the floor of the lounge room and in LGF’s bedroom. I will return to those sleeping arrangements, later in these Reasons.
LGF’s bedroom was towards the rear of the house, immediately adjacent to the kitchen/dining room but separated from that room by a small passage and two doors.
LF’s bedroom was immediately adjacent to LGF’s bedroom, at the very rear of the house. He would need to walk past LGF’s bedroom door to get to the kitchen or the toilet.
The lounge room was at the front of the house, immediately adjacent to the kitchen/dining room. There was an open doorway between these two rooms.
KW’s bedroom was opposite the lounge room, at the front of the house. The front door of the house led to a small hallway, from which both KW’s bedroom and the lounge room were accessible. To get to the kitchen from her bedroom, KW would need to walk across that hallway and through the lounge room.
LGF’s Schooling

LGF attended three different primary schools between February 2013 and December 2019 and one secondary school between February 2020 and September 2021.[37]
[37] Exhibit P31.
During 2020, LGF was attending secondary school in Year 7 and was aged 12. [38] She turned 13 on 20 December 2020, being shortly after she completed Year 7. As such, during the relevant period, LGF was in Year 7 at secondary school and/or just about to start Year 8.
[38] Exhibit P34 at [17].
During cross-examination, LGF agreed with a proposition put to her that she had been suspended from school prior to starting high school. She explained that this had occurred twice and was because she had responded to bullying perpetuated against her.[39] She agreed that sometimes she would go a number of days without turning up for school.
[39] MFI P19 at T 201.9-202.14.
Exhibit P31 contains a record of the days LGF was either absent or late for school during the period 2013 to September 2021. By way of summary:
·During 2013 (Reception), LGF was late to school 21 times and absent from school for 7 full days.
·During 2014 (Year 1), LGF was late to school 31 times, absent for 17 full days and absent for two half days.
·During 2015 (Year 2), LGF was late to school 19 times, absent for five full days and absent for three half days.
·During 2016 (Year 3), LGF was late to school four times and absent for seven full days.
·During 2017 (Year 4), LGF was late to school 26 times, left school early six times and was absent for nine full days.
·During 2018 (Year 5), LGF was late to school 25 times, left school early 11 times and was absent for 18 full days. This data includes 18 June 2018 when LGF left early due to suspension and 19 June 2018 when she was absent due to suspension.
·During 2019 (Year 6), LGF was late for school 16 times, left early three times and was absent for 15 full days.
·During 2020 (Year 7), LGF was late for school 33 times, left school early eight times, was absent for 14 half days and was absent for 13 full days. This data includes three days when she was absent for suspension on 10 March 2020, 11 March 2020 and 25 September 2020 and when she arrived late, and was then absent in the afternoon, for suspension, on 27 November 2020.
·Between 28 January 2021 and 22 February 2021 (Year 8), LGF was late to school four times, absent for four half days and absent for four full days.
·Between 23 February 2021 and 17 September 2021, LGF was late to school 11 times, left school early seven times, absent for 30 half days and absent for 42 full days. Many of these absences occurred in March and in early May. This data includes five days when LGF was suspended (or excluded) between 3 and 7 May 2021.
Some of the above absences or late arrivals/early departures were explained as being related to family or social reasons or were verified with a sick certificate, however, the majority were unexplained.
Self-Harm
Evidence was elicited from LGF in cross-examination that she had been engaging in self-harm since Year 4 and that this had continued until she stopped having contact with the accused. This included cutting herself.[40] She gave the following evidence:[41]
Q.Because life at home was pretty hard for you for a fair while, wasn’t it.
A.Just life in general.
[40] MFI P19 at T 200.22-201.5.
[41] MFI P19 at T 201.6-8.
LGF runs away New Years Eve 2020
The family held a party at Kenneth Road on New Years Eve 2020. There was no dispute that LGF ran away from Kenneth Road during the afternoon that day and went to JMT’s house. LGF gave evidence, confirmed by her mother, that this was precipitated by a fight between LGF and her mother over the large number of energy drink cans that LGF was collecting in her bedroom.[42]
[42] Noting that LGF and KW gave different evidence as to the precise circumstances of that fight.
LGF stayed at JMT’s house for a few days and then went to stay with her Nanna (and therefore also with the accused) at Ethelton. She returned to live at Kenneth Road just prior to the commencement of the 2021 school year.
Prosecution Case
Summary of Alleged Offending
The prosecution case as particularised in the Information is that between 19 December 2019 and 23 February 2021, the accused sexually abused LGF on multiple occasions, both at Kenneth Road and other locations.
Although LGF could not recall the details of the first occasion of abuse, she believed it occurred in her bedroom at Kenneth Road, when the accused was sleeping in her bed with her. LGF gave evidence that the offending started about 8 to 10 months before the first prescribed interview, that is, around July or September 2020.[43]
[43] First LGF interview at p 37, lines 1755-1757.
LGF alleges the accused touched her on her breasts and buttocks and inserted his fingers (or fingers) into her vagina on multiple occasions when they were in her bed together. She would lie there and pretend to be asleep. Nothing would be said between them and the touching would stop when LGF rolled over and pretended to wake up. On one specific occasion, the accused moved her hand onto his naked penis.
LGF also recalled the accused abusing her in the lounge room at Kenneth Road one morning when she was aged 12. She had made up a bed on the lounge room floor to sleep there the night before. The next morning the accused came into the room and lay next to her, under the blanket. The accused touched her inappropriately on her buttocks, breasts and vagina and inserted his fingers into her vagina. She remembered that her mother had entered the room while this was occurring, as she walked from her bedroom into the kitchen.
LGF also described alleged offending in a tent that had been erected under the carport at Kenneth Road. This occurred on only one occasion and involved the accused touching her inappropriately, in the same way as he had touched her when they were in her bed in her bedroom.
The allegations outlined above were described by LGF during the two prescribed interviews conducted by Officer Kittel.
During her evidence-in-chief, LGF gave evidence that the accused touched her inappropriately after they and Sadie had been drinking UDL cans together on the oval and had played a game of ‘Truth or Dare’ at the accused’s instigation. The offending occurred the next morning when she, Sadie and the accused were lying on LGF’s bed in her bedroom at Kenneth Road.
During cross-examination, LGF described alleged abuse which occurred when she was alone with the accused at JMT’s house on New Years’ Eve 2020. She gave evidence that when they were in bed together, the accused touched her on her buttocks and inserted his finger in her vagina. She also described an occasion when she was staying at her Nanna’s house at Ethelton, in January 2021, when she was in the accused’s bed and he touched her on the buttocks. She said this was the last time the accused had touched her inappropriately.
LGF’s Relationship with the Accused – LGF’s Perspective
General
LGF gave evidence-in-chief that when she was growing up, she had a normal brother/sister relationship with the accused. She recalled him doing her hair when she was younger, ‘just normal sibling stuff’.[44] Neither their relationship, nor his behaviour towards her, had really changed after he started touching her.[45]
[44] MFI P19 at T 108.13-16.
[45] MFI P19 at T 109.11-15.
LGF and the accused became close when he moved out of the family home. She would confide in him about things going on in her life, and similarly, he would confide in her. For example, she told him about her mother threatening to hit her with a lacrosse stick because she was not cleaning her room and doing her chores. He discussed with her his relationship with their mother and how he felt she had neglected him. However, LGF denied a proposition that the accused told her their mother had been physically violent towards him.[46]
[46] MFI P19 at T 159.9-160.5.
LGF told Officer Kittel that the accused spent a lot of money on her. She thought he might be buying her things ‘to keep (her) quiet’,[47] but she acknowledged that he may have done this as he just had a lot of money.[48]
[47] First LGF interview at p 42, lines 2046-2047.
[48] First LGF interview at p 43, line 2063.
The accused would take LGF out to lunch, take her ice skating, bought her clothes and they went to ‘Build a Bear’ together. He did not buy her anything sexual. Sometimes the accused would take LGF to the movies on weekends, or to the beach. He would pay for things on these outings. KW did not have the money to pay for these things.[49]
[49] MFI P19 at T 155.22-29.
LGF said the accused also bought things for LF, but that LF did not come out with them, so she thought the accused spent more money on her than on him.[50] She agreed with a proposition put to her in cross-examination that LF stopped going out with her and the accused because he wanted to stay in his room, smoke cannabis and spend time with his girlfriend.[51] She therefore agreed that it was not the case that the accused was trying to spend more time with her when she was in Year 7, but simply that was just the way things panned out.[52]
[50] First LGF interview at p 4, lines 2125-2141.
[51] MFI P19 at T 158.22-30.
[52] MFI P19 at T 159.8.
LF gave evidence that there were times that the accused would take both him and LGF out, but said, ‘I think it was mainly him and [LGF]’.[53] He was not asked by the accused to go ice skating because the accused knew he hated ice skating.[54]
[53] T 146.2-3.
[54] T 146.10-13.
LF did not observe any change in LGF’s relationship with the accused while they were at Kenneth Road and said that they were always really close. However, he said his relationship with the accused changed because the accused would spend only 10 minutes hanging out with him and then leave for the whole next day. As to what he meant by this he said:[55]
A.No, just like go, be in [LGF]'s room instead of hanging out with me. Because I had a couch and everything like that and I just thought it was the better room to hang out in, so I just found it and took it personally, I guess, that he'd chose to sit in the room with four walls and her.
[55] T 123.18-23.
LF noticed a change in LGF’s behaviour during the time they lived at Kenneth Road. He said this started about two months after his birthday party. During his evidence-in-chief, he said this was a party for his 16^th birthday. LF turned 16 on 19 June 2019. As to how it changed, he said:[56]
A.Just seemed like she was trying to do things for like attention, like making, like arguments out of nothing and then just like not listening and just having her room as messy as possible and just being a nuisance, it seemed like, for no reason.
[56] T 124.6-10.
LF agreed he had a girlfriend at this time, but this did not change the fact he was still always in his room.[57]
[57] T 147.3-8.
During cross-examination, LF said that there was a time in 2020, the weekend after his birthday party, that he started having less contact with the accused, as the accused was hanging out more in LGF’s room. This was at a time when he (LF) had a girlfriend.[58]
[58] T 146.23-147.8.
In January 2021, shortly after LGF ran away from home, she asked the accused for money to enable her to go with a friend and her family on a holiday to the Riverland. LGF gave the accused her friend’s mother’s bank account details and he then transferred money to that account.[59] LGF thought this was $100 for accommodation and $50 for food.[60]
Alcohol
[59] Exhibit D16 is a copy of messages exchanged between LGF and the accused about this.
[60] MFI P19 at T 157.5-27.
LGF told Officer Kittel that the accused would buy her alcohol and give it to her in either bottles, cans or a cup. She said she was pretty sure he would buy her alcohol to get her drunk and ‘so he could do stuff easier’.[61]
[61] First LGF interview at p 45, lines 2158- 2162.
During the second LGF interview, LGF elaborated on this. She said:[62]
Sometimes I’d want alcohol and he was old enough so I just asked if he’d do it and sometimes he’d just, I went with him a couple, one time that I remember.
[62] Second LGF interview at p 6, lines 274-275.
She described an occasion when she went for a walk to a party and had waited around the corner while the accused went to a ‘bottle o’ at the Emu at Morphett Vale to buy her alcohol.[63]
[63] Second LGF interview at pp 6-7, lines 280-317.
LGF gave evidence-in-chief that the accused had started buying her alcohol sometime during Year 7, in 2020. As to how often he would buy her alcohol, she said this was ‘whenever there was a party or something’.[64] She said:[65]
I used to try to ask sometimes, but like we’d go out and drink sometimes, but yeah, it was mostly at parties.
[64] MFI P19 at T 110.7.
[65] MFI P19 at T 110.15-16.
She described an occasion when she and the accused walked from Kenneth Road to the Emu Hotel, he bought a spirit and a Little Fat Lamb, they skulled the spirit and then drank the Little Fat Lamb at the party.[66] She said that she remembered trying to be cool and keep up with the adults. She said she wasn’t too bad and just felt happy, drunk and tipsy.[67]
[66] MFI P19 at T 110.19-31.
[67] MFI P19 at T 112.15-19.
LGF also gave evidence about an occasion when she and her friend, Sadie, had wanted to hang out together and drink. As the accused was her older brother, she asked him for alcohol. He bought some UDL cans and they had all ended up hanging out and drinking together. She remembered them walking through an area where there were some old drainpipes, to an oval. She thought she and Sadie each had about four UDL cans.[68] As to how she felt thereafter, she said it wasn’t too bad, they were having a fun time and laughing. She did not remember being fully drunk. She was aged 13 at this time. [69]
[68] MFI P19 at T 111.17-112.7.
[69] MFI P19 at T 112.27-33.
LGF gave evidence-in-chief that she had also drunk alcohol at Kenneth Road. She could not recall how many times this had occurred, but it was less than 10 times. The accused had also bought her an alcoholic drink called ‘Red Bear’ between three to five times.[70]
[70] MFI P19 at T 112.35-113.12.
She would drink the alcohol either at Kenneth Road, in her bedroom, or in LF’s bedroom, or in the backyard, or they would go for a walk to the park or somewhere. Most of the time the accused would be with her and would also be drinking. This made her feel tipsy but not fully drunk. He had also bought her other types of alcohol, but she could not remember what types.[71]
[71] MFI P19 at T 113.13-114.4.
Sometimes the accused would sleep over at Kenneth Road in her room after he had given her alcohol, but other times he would go to a friend’s house.[72] She could recall only one time when the accused had offended against her after he had bought her alcohol and that was after she, Sadie and the accused had drunk the UDL cans together.[73]
[72] MFI P19 at T 114.34-115.7.
[73] MFI P19 at T 114.16-33.
LGF denied a proposition put to her in cross-examination that the accused had never given her alcohol because he wanted her to be fit and healthy. She said:[74]
He gave me alcohol. He took me to parties and let me get drunk with him.
[74] MFI P19 at T 173.10-11.
She could not remember the detail of those occasions.[75]
Drugs
[75] MFI P19 at T 173.12-13.
LGF gave evidence-in-chief that when the accused came to stay at Kenneth Road, he would give her marijuana (cannabis) and they would smoke it together. This had first occurred when she was in Year 7. She could not recall how many times this had happened.[76] She and the accused would smoke marijuana from a bong. They would usually smoke in LF’s room, but there was a time when they smoked in her room.[77]
[76] MFI P19 at T 115.8-28.
[77] MFI P19 at T 115.35-37.
LGF described an occasion when she and the accused smoked cannabis from a bong that he had brought with him. She had one or two cones and it had made her feel calm and drowsy. Afterwards she went to bed and the accused slept in her bed with her.[78]
[78] MFI P19 at T 115.38-116.20.
LGF thought that the accused had touched her inappropriately two or three times after she had consumed cannabis with him but she could not recall the details of those occasions.[79]
[79] MFI P19 at T 116.21-25.
In cross-examination, LGF denied a proposition that the accused did not want her to be smoking cannabis. She said, ‘(h)e gave me his bong and weed’.[80]
[80] MFI P19 at T 167.22.
Other Alcohol Use - LGF
The accused was not the only person to give LGF alcohol.
LGF said her older sister, ZF, had sometimes given her alcohol but did not know if this was in 2020.[81] Although she initially denied drinking LF’s alcohol, she then acknowledged that LF had given her alcohol, namely a ‘little fat lamb’.[82]
[81] MFI P19 at T 171.36-172.7.
[82] MFI P19 at T 172.35-173.3.
LF gave evidence that her saw LGF drinking alcohol at what he thought was her 13^th birthday party. He said the accused had supplied vodka to LGF and her friends to drink at the party. He said, ‘I’m pretty sure he watered it, like watered it all down just because he didn’t want them getting too fucked’.[83]
[83] T 122.24-26.
In cross-examination, LF denied a proposition that he was the one who had provided LGF with vodka at her 13^th birthday party, not the accused. He said:[84]
A.How would I get alcohol when I'm under-age at that time? The only person that could supply me alcohol was [JLF].
Q.So you're saying that there was no way you could do that because you couldn't even possibly get alcohol.
A.Yes. I didn't do that and I couldn't do that.
[84] T 131.31-35.
However, thereafter LF agreed that at the first trial, he had given evidence that he gave LGF some vodka at her 13^th birthday party at Kenneth Road as a birthday present, as he was tired of her asking for it. When asked to explain the apparent inconsistency in his evidence, LF said that this was vodka the accused had given him. LF said he didn’t drink and LGF knew he would not drink it ‘because she knows I hated alcohol’.[85] He thought the accused was at that party and recalled someone else had the bottle before he (LF) gave it to LGF. He reluctantly agreed with the proposition that he had falsely blamed the accused for something he had done.[86]
[85] T 133.23-24.
[86] T 134.4-135.5.
In cross-examination, a proposition was put to LGF that her mother had given her Vodka Cruisers to drink in 2020. LGF initially agreed that she had but said this was when she was 13. When it was pointed out to her that she was 12 for most of 2020, she said that she remembered drinking at 13. She said, ‘I never drank or smoked at 12, I was a normal kid at 12’.[87]
[87] MFI P19 at T 171.17-18.
LGF agreed that she had asked her mother if alcohol could be served at her 13^th birthday and that she got upset when her mother would not allow this.[88] She then acknowledged that she had been drinking alcohol prior to her 13^th birthday.[89] She was asked again if her mother had supplied her with alcohol in 2020, specifically Vodka Cruisers, and said she did not want to say yes, as she was not 100% sure.[90]
[88] KW did not remember this party.
[89] MFI P19 at T 171.19-35.
[90] MFI P19 at T 171.36-172.3.
KW denied supplying LGF with alcohol during 2020. She had no recollection of buying her Vodka Cruisers during 2020, nor of a party held at Kenneth Road to celebrate LGF’s 13^th birthday.[91] She also gave evidence that on one occasion, when LGF was 12, she found an empty bottle of either expensive rum or bourbon hidden in a bag in LGF’s room. She did not speak to LGF about this. She asked LF if he knew where it had come from and he said he did not.[92]
[91] T 110.7-112.30.
[92] T 77.2-30; T 78.14-20.
Other Drug Use - LGF
The accused was not the first (or only) person to give LGF cannabis.

In re-examination, LGF said that LF introduced her to cannabis. LF was the first person with whom she had smoked cannabis and she had learned to smoke it both from watching him and the internet.[93]
[93] MFI P19 at T 214.23-36.
LGF agreed in cross-examination that she had been taking cannabis throughout 2020. She used a bong to smoke it and agreed that at some stage during 2020 she may have had a bong hidden in her room. She said friends would come over to Kenneth Road with bongs, as would the accused.[94] Exhibit D12 is a photograph of LGF with a bong that she sent to her ‘best friends’ list via Snapchat.[95]
[94] MFI P19 at T 160.33-35; T 165.21-24; T 166.21-36.
[95] Noting there was no evidence as to when this image was taken or when it was sent by her to others.
LGF denied smoking cannabis with friends at Kenneth Road and said she would go to friends’ houses to do that. She gave the following evidence:[96]
Q.So if you were smoking cannabis at your house in 2020 who were you smoking it with.
A.[JLF].
Q.Would you sometimes have a bong by yourself.
A.I don’t think so, I wasn’t able to get it so it was just when [JLF] was over and he would give me weed.
[96] MFI P19 at T 167.7-12.
LGF agreed that she had posted multiple photographs of herself on social media smoking cannabis, including a photograph tendered as Exhibit D13, which depicted her smoking cannabis from her bong. She said the photograph was taken in her bedroom at the ‘new house’.[97] The accused did not supply her with that cannabis, nor was he with her when she smoked it.[98]
[97] It was an Agreed Fact that Kenneth Road was the family’s primary residence until 14 March 2021. As such, it is implicit from this evidence that LGF was saying this photograph was taken some time after 14 March 2021 and therefore after the alleged offending.
[98] MFI P19 at T 168.13-20, noting there was no evidence as to precisely when the photograph was taken.
In cross-examination, LGF agreed that in early 2021, she took a bong to school in her backpack. When asked to hand it to staff, she refused.[99]
[99] MFI P19 at T 169.25-170.10.
LGF initially denied that she had used drugs other than cannabis and specifically denied having ever consumed ‘magic mushrooms’.[100] She did recall going for a bush walk with the accused and said that if they saw any ‘shrooms’, the accused might pick them up.[101]
[100] MFI P19 at T 161.1-8.
[101] MFI P19 at T 161.19-22.
LGF then acknowledged that there was an occasion when she and one of her friends had taken some ‘shrooms’ that belonged to her friend’s father and had consumed ‘a capsule’ each. She took a photograph of herself which the caption, ‘I wanna take another’ and sent that photograph to the accused.[102] She said the only other time she had consumed a ‘shroom’ was at Kenneth Road with the accused, when he had taken them, and she had consumed ‘one little dried up mushroom’, which had not had any effect on her.[103] She denied using LSD during 2020.[104]
[102] MFI P19 at T 163.1-164.29; Exhibit D11.
[103] MFI P19 at T 164.34-165.11.
[104] MFI P19 at T 165.12-20.
LGF agreed that after she ceased having any contact with the accused,[105] she made a TikTok which included a list of ‘things I’m starting to hate’. The list included ‘being sober’ and ‘having to be st*ned to do stuff’. She agreed that although the accused was not supplying her with either alcohol or cannabis at this time, she was still able to get and consume those substances.[106]
[105] Exhibit D17. The precise date of this Tik Tok was not in evidence, however in re-examination, LGF said she had created this around four to six months ago; MFI P19 at T 216.21-24.
[106] MFI P19 at T 207.7-208.31.
Drug Use by Others in Family
Both KW and LF used cannabis at Kenneth Road.
KW gave evidence that she had struggled for a long time with a drug addiction and acknowledged that she was a daily user of cannabis. She said she had used methylamphetamine in the past but denied using it when living at Kenneth Road, or at the other houses the family had lived at.[107] LGF knew her mother used a pipe to smoke cannabis and had seen her use it a couple of times.[108]
[107] T 93.33-94.13.
[108] MFI P19 at T 157.33-158.6.
KW acknowledged that she had tried to grow cannabis at Kenneth Road but said she had only one small plant which had died. She denied a proposition put to her that she encouraged her children to smoke cannabis.[109]
[109] T 94.32-95.23.
Exhibit D24 is a USB containing a short video which shows LGF and KW sitting outside at a table. KW is going through LGF’s school bag. She can be seen to pull out some cannabis, show it to LGF and then laugh hysterically. KW gave evidence that the video was taken some time between about March and May 2021, when they were staying at a house with her then partner, Keith.[110]
[110] T 96.24-35.
In cross-examination, KW said it was possible that she had made a bong for LGF when they were staying with Keith. She agreed that a photograph depicted a bong she made and gave to LGF.
LGF gave evidence that she found out that LF was smoking cannabis when she was in Year 7. She said he spent a lot of time in his bedroom, smoking cannabis, playing games and with his girlfriend.[111] She also described an occasion when LF and the accused took acid (‘little paper squares’) in LF’s bedroom.[112]
[111] MFI P19 at T 158.7-21.
[112] MFI P19 at T 158.31-33.
LF agreed that he was smoking cannabis during 2019 and 2020. He said he started smoking it at friends’ houses or at the park, but eventually started smoking at home in his room. He said did not smoke it anywhere else for three reasons - he did not want to get caught by his mum, he was trying to protect LGF and he did not want ZF to know, as she despised it.[113]
[113] T 120.31-121.21.
LF gave evidence that he and the accused would smoke cannabis together in his bedroom at Kenneth Road. He gave the following evidence:[114]
[114] T 121.26-122.20.
Q.How often would you smoke together in your room with [JLF], smoke cannabis that is.
A.If we both had, like, our stuff, like he brought his stuff as well, then we'd just do it in my room, or if I wasn't there or something, my room was just the room used for it because it's where the stuff belongs so no-one else can see it.
Q.By 'stuff', what do you mean by that.
A.Like just the bongs and, yeah, just the bongs and stuff.
Q.Did there come a time when you noticed that [JLF] had stopped smoking cannabis with you in your room.
A.He hadn't like stopped, but he started bringing it, he started taking it elsewhere in the house, where I'd always tried my best to make sure [LGF] doesn't see and stuff. So when I noticed that, it was frustrating because I'd spent all this effort to make sure that [LGF] doesn't see anything and then I realised he was doing it in her room and it was just really frustrating.
Q.How do you know that [JLF] was doing it in her room.
A.Because he was taking all of his stuff in there and it was also smelling in there and it was just, everything proved, just, the evidence was there that shows it.
Q.Where was [LGF] during these times when he'd taken his stuff into her room.
A.Sometimes she'd be there and sometimes she'd just be at her friend's house or whatever. It was kind of like a fifty-fifty.
Q.During this period of time, did you actually ever see your brother [JLF] give [LGF] cannabis.
A.No.
Q.During this period of time at Kenneth Road, did you ever see [LGF] affected by cannabis.
A.Not that I'm aware of, no.
LF acknowledged that after his birthday in 2020 he had used other drugs. He did acid with the accused and did MDMA twice with his ex-girlfriend.
In cross-examination, LF agreed that if the accused had asked and he was able to, he would supply the accused with cannabis, acid, MDMA and magic mushrooms in exchange for money.[115]
[115] T 147.20-148.3.
Accused’s Sleeping Arrangements at Kenneth Road
Complainant’s Evidence
LGF alleged the abuse occurred over a period of about 8 to 10 months and that it occurred when the accused came to visit on the weekend and slept over at Kenneth Road.[116] She agreed that the accused worked six days a week and would visit Kenneth Road on a Saturday afternoon, as Sunday was his only day off.[117]
[116] First LGF interview at p 37, lines 1755-1765.
[117] MFI P19 at T 152.22-29.
LGF told Officer Kittel that the accused did not have his own room at Kenneth Road, so he would sleep in her bed. She thought this was a little weird, but still normal, given he was her sibling.[118] Her mother was aware of this, as one time she had knocked on the door and entered the room when the accused was in her bed.[119]
[118] First LGF interview at p 7, lines 310-311.
[119] First LGF interview at pp 38-39, lines 1847-1861.
LGF said the accused usually slept in her bedroom when he came to stay but agreed in cross-examination that he had slept on a mattress in the lounge room a couple of times. When asked if her mother threw that mattress out, LGF said ‘I guess so’.[120] She agreed, somewhat tentatively, with a proposition put to her that after the mattress was thrown out, the accused started to bring a swag over and then slept on the swag in the lounge room.[121]
[120] MFI P19 at T 192.7-24.
[121] MFI P19 at T 193.7-15.
In cross-examination, LGF agreed that the accused would go to bed pretty early, in the lounge room, at around 8:00 or 9:00pm as he was tired from work but said, sometimes he would stay up with LF.[122]
[122] MFI P19 at T 193.16-24.
It was suggested to LGF in cross-examination that sometimes the family played cards in the kitchen on a Saturday night and made a lot of noise and that as a result, the accused had moved his swag from the lounge room into LGF’s bedroom to get some sleep. LGF recalled an occasion when the family played cards in the dining room but she could not recall the accused sleeping in the lounge room at that time. She said that the dining room was immediately adjacent to her bedroom wall. She denied that it was a regular thing for her mum to stay up late drinking, taking drugs or playing cards[123]
[123] MFI P19 at T 193.33-196.11.
LGF gave evidence that she used to watch movies or Netflix on her laptop in her bedroom and that sometimes the accused would come into her bedroom, get on her bed and watch these with her. She denied that he had done so at her insistence and said she was happy to watch things by herself.[124] She said:[125]
A. Yeah, he would open the door and ask if he could come watch and then jump into bed. He’d rather hang out with my older brother [LF] until this stuff started happening and then he chose to hang out with me so it could happen more.
[124] MFI P19 at T 196.12-197.6.
[125] MFI P19 at T 197.9-13.
LGF agreed with a proposition that the accused would sometimes fall asleep when watching a movie with her. As to whether he would then wake up in her bed with her, the next morning, as he had fallen asleep watching the movie next to her, she said, ‘Yeah, most of the time I think.’
KW’s Evidence
KW gave evidence that the accused sometimes worked six days a week during the period he would come to stay at Kenneth Road. She said he usually stayed over on a Saturday night, but that he may also stay on a Sunday if it was a public holiday on the Monday.
She denied a proposition put to her that the accused typically went to sleep before the other members of the house when he stayed over. She agreed there were times that the accused stayed over and she would be playing cards but denied that he was trying to sleep at the time.[126]
[126] T 108.32-109.26.
KW gave evidence that when the accused came to stay at Kenneth Road he would sleep on a mattress or his swag in the lounge room or in LGF’s room. The mattress was a single mattress which was kept behind the lounge in the lounge room if it was not being used. If there were other kids sleeping over that were using that mattress, then the accused might sleep on his swag.[127]
[127] T 73.1-7.
KW gave evidence that she threw that single mattress out when she was leaving Kenneth Road in March.[128] When it was suggested to her in cross-examination that the mattress was thrown out before then, as it got wet, she disagreed and said she had no memory of that mattress getting wet.[129]
[128] It was an Agreed Fact that Kenneth Road was the primary residence of LGF, KW and LF until 14 March 2021.
[129] T 87.35-88.31.
KW agreed that in the first trial she had given evidence about that same mattress and that she had said that it got wet and she had to throw it out. She agreed that she had given the following evidence at the first trial as to when she threw that mattress out:[130]
So I moved out in March. I reckon I threw it out in, like six months before moving out because I remember – I think – I even think it was still there at the front of my property when I was leaving the property because I couldn’t fit it into the trailer to take away, so it was there when I left the property but I reckon it was out the front of the property for six months, leaning up against, like, the letterbox in the fence area sort of, to be in the hard rubbish. So March minus six months.
[130] T 89.8-17.
KW agreed with a proposition put to her that it was only after that mattress was thrown out, that the accused started to sleep on his swag in the lounge room. She also agreed with a proposition that at some stage after that, the accused would bring his swag into LGF’s room and sleep there.[131]
[131] T 90.12-22.
KW gave evidence that when the accused slept in LGF’s room, he slept on his swag or on the double mattress which was used by LGF as her bed, as her bed had broken.[132] She was aware of the accused sleeping in LGF’s room on about ten occasions and had seen him sleeping in LGF’s room, on her mattress, a couple of times.[133] As to how she came to see that, she gave the following evidence:[134]
A.One particular time I walked in there to offer some food, or a game of cards and I walked in and it was a very bizarre scenario, I just saw them both laying there and I asked them if they wanted anything, they said 'No', and then I, I walked back out. Because the door was closed and then I closed, so I re, I closed the door when I walked out and I just stood on the other side of that door saying 'What have I just walked into?', like 'What did I just see?', and I had this argument with myself, like 'Is there something happening here, like, that I should be aware of?', and I was like 'Nah, don't be silly', you know 'That can't be what I'm seeing' and I didn't trust my instincts and I walked away and resumed playing cards with my daughter and making lunch but, yeah.
Q.What time of day was that.
A.It was during the day, it was like 1 o'clock in the afternoon.
Q.When you say you saw them lying there, can you describe what positions they were in.
A.It was like spooning. Like [LGF] was in front and [JLF] was behind and he had his arm around her
[132] T 68.27-70.8; T 70.20-37.
[133] T 70.10-20; T 70.38-71.4.
[134] T 71.6-27.
KW said they had the blanket over them. This was the only time she saw them together in that bed in that particular position.[135]
LF’s Evidence
[135] T 71.35-72.9.
LF gave evidence that when the family lived at Kenneth Road, at first, the accused did not really come around but ‘it might have been after like a year he started coming round like every fortnight, kind of thing’.[136] At first the accused slept in the lounge room, either on a spare mattress or his swag. This then changed and he saw the accused sleeping on his swag on the floor in the corner of LGF’s bedroom. He assumed that the accused moved there so that he was not in the lounge room to hear their mother being loud in the mornings when she made her coffee.[137]
[136] T 118.19-21.
[137] T 118.22-119.25.
LF gave evidence in cross-examination that he remembered the mattress being thrown out when they were leaving Kenneth Road.[138] It was suggested to LF that the reason the accused stopped sleeping in the lounge room and went to sleep in LGF’s room was because the mattress was no longer available for use. LF gave the following evidence:[139]
A.That wouldn't surprise me as much, but that doesn't really make sense why he'd sleep a swag on the floor when it can just be on the floor in the lounge room.
Q.Was there carpet in [LGF]’s bedroom.
A.Very hard carpet, but there was a soft rug in the lounge room. There was also the couches. There was also my couch.
[138] T 144.25-145.19.
[139] T 145.30-36.
LF gave evidence that he saw the accused sleeping in LGF’s bed a few times when LGF was either 11 or 12. [140] He thought that at that time, LGF was sleeping over at a friend’s house and the accused had simply taken her free bed.
[140] T 118.29-119.34.
LF never saw LGF and the accused sleeping together in her bed. He did see them lying in LGF’s bed together in the morning two or three times, when he walked past LGF’s bedroom. He said, ‘it would be just like cuddling kind of thing and him just on his phone or whatever’.[141]
JMT’s Evidence
[141] T 120.1-22.
JMT gave evidence that she saw the accused a lot when she visited LGF at Kenneth Road on the weekends. She had seen the accused sleeping on a mattress in the lounge room but did not see him sleeping anywhere else at Kenneth Road.[142]
[142] T 165.34-166.20.
Alleged Offending in LGF’s Bedroom
At the start of the first LGF interview, LGF told Officer Kittel that the accused had touched her, inappropriately, multiple times and that it had started when he was sleeping in her bed with her at Kenneth Road. When asked what had happened when the accused touched her, LGF said:[143]
AUm, I’ve woken up with his hand in my bra once.
QYep.
AAnd he’s tried fingering me once.
QHmm mm.
AAnd he made me touch him there.
[143] First LGF interview at pp 6 -7, lines 280-288.
LGF was unable to remember the first time the accused had abused her but she said that it had started when she was aged 12 and in Year 7 at high school.[144] When asked by Officer Kittel if she could remember the last time he had abused her, she said ‘not really’, and added, ‘I only remember a couple of times.’[145]
[144] First LGF interview at pp 32-33, lines 1528-1584.
[145] First LGF interview at p 7, lines 295 and 299.
LGF said that when the accused did these things to her, she was really scared, because she thought she could trust him and she did not want to ruin the family.[146]
[146] First LGF interview at p 16, lines 756-772.
LGF said that when the accused was in her bed with her, he would cuddle her, massage and grab her ‘arse’, put his hand up her shorts and finger her.[147] When the accused was fingering her, she would just lay there and pretend to be asleep. He did not talk to her, but ‘was breathing a lot heavier’.[148] She would then roll over and pretend to wake up, ‘hoping if he thought I was awake he wouldn’t do it’.[149] She said that sometimes she would wake up and his hand would be in her bra.[150]
[147] First LGF interview at p 7, lines 315-332.
[148] First LGF interview at p 8, line 340; p 16, lines 756-760.
[149] First LGF interview at p 8, lines 352-353.
[150] First LGF interview at p 19, line 906. Although this evidence was given in response to a question directed about a specific occasion of offending in the lounge room, when considered as a whole, and having regard to the language used by her, I am satisfied that when she gave this evidence, LGF was referring to the abuse she remembered as having occurred both in her bedroom and in the lounge room.
LGF was wearing clothes when the accused slept in her bed with her, as she ‘wasn’t gonna sleep naked with him’.[151] She would usually wear underwear, shorts and a bra, although sometimes she would not wear a bra and instead wore a top with no bra underneath.[152]
[151] First LGF interview at p 37, line 1771.
[152] First LGF interview at pp 49-50, lines 2384-2400.

While dealing with this alleged incident, I note that Sadie was not called to give evidence. I acknowledge that had she been called, she could have given evidence to corroborate aspects of LGF’s account.
However, I accept LGF’s evidence that Sadie was not a close friend. I accept that she did not want to tell police Sadie’s name in order to avoid these embarrassing allegations being disclosed to her. This is a perfectly understandable reaction from a 13-year-old girl. I reject the submission that LGF made a deliberate decision to conceal Sadie’s surname as she knew her evidence would not help her. If that was the case, there was simply no need for her to mention Sadie’s name at all when recounting this series of events. Further, the way LGF described how she, the accused and Sadie were lying in this unusual way, across her bed, on this occasion, has a distinct ‘ring of truth’ about it, consistent with LGF recounting an event which had actually happened.
It was also submitted that the offending described at RW’s house was inherently improbable as it involved LGF willingly getting into bed with the accused, her abuser, who she knew had previously abused her over many months in similar circumstances. A similar submission was made about the improbability of LGF reaching out to the accused to be her confidante, and to come and see her at JMT’s house, when she ran away and to then elect to live with him at RW’s house. Why would she encourage her abuser to come to see her when she was alone and vulnerable? Why would she want to increase the potential opportunity for the offending to occur?
If this evidence is considered in isolation, there is obvious strength in those submissions. However, the evidence must be considered in light of the unusual dynamic in which the alleged offending occurred and the nature of the sibling relationship between LGF and the accused, outside of the offending.
On all of the evidence, LGF and the accused were very close during the relevant period. LF was very much preoccupied spending time with his girlfriend. KW and LGF were fighting regularly about her behaviour and the state of her room. LGF was clearly troubled and struggling with her mental health, not just because of what was happening with the accused, but for other unrelated reasons.
LGF trusted the accused. He prioritised time with her. He took an interest in her life and clearly enjoyed spending time with her. They each told each other about issues going on in their lives. As she said, ‘everything was normal in the daytime’.[483]
[483] MFI P19 at T 178.20.
Although I am satisfied from the evidence given by both LGF and KW that LGF ran away on New Years Eve 2020 during the afternoon, it is possible she did not message the accused to come to join her until early evening or later. It can be inferred from LGF’s evidence about the offending at RW’s house, that this occurred at nighttime.
However, after considering all of the evidence, I do not consider LGF’s behaviour on either of these occasions to be necessarily inconsistent with her account of the offending. On New Years Eve, LGF was particularly struggling. Her best friend, JMT, was at her father’s. She was alone and by herself on New Years Eve when there was a party going on at Kenneth Road. She needed someone to talk to. On her own account, she was hoping the accused would bring her some alcohol.
She had, by this time, on her account, been touched by him on a regular basis. It had become somewhat the norm. Her decision to reach out to the accused at this time can be understood having regard to all of the circumstances.
In my view for the same reasons, LGF’s decision to go and stay at RW’s house, where the accused lived, can be understood having regard to all of the prevailing circumstances.
As to the offending at RW’s house, there was no dispute that RW imposed certain rules on LGF. I am satisfied that this was not something LGF was used to. LGF and RW disagreed about things that were important to LGF such as seeing the boy she met in the Riverland. LGF was aged 13 with interests which were likely to have differed markedly from her grandmother. It is not surprising that LGF would seek out the accused’s company when she was at RW’s house, particularly to do something as routine as watch a TikTok together. The fact that LGF got out of the bed as soon as the accused started touching her and did not recall any other alleged offending at RW’s house, is also relevant.
I have given this particular aspect of LGF’s evidence particular consideration, as it involves LGF deliberately positioning herself in the accused’s bed, at night. However, having regard to all of the circumstances as previously described, I have ultimately determined that this evidence does not cause me to otherwise doubt the LGF’s account of that incident or the offending generally.
I pause to note that it was submitted that there was no dispute that LGF left RW’s house because she was not happy with RW refusing her request to see the boy she met in the Riverland, without introducing her to him. She did not leave because of the alleged offending. However, the offending started at Kenneth Road, not at RW’s house. Returning to Kenneth Road was simply returning to the status quo which existed before New Years Eve. It did not mean that the accused would no longer be able to abuse her.
The Alleged Offending in the Tent
The defence case was that the offending in the tent simply could not have occurred as the accused was not present at Kenneth Road during the five-day period preceding 18 April 2020, being the period during which LGF expressly stated this offending had occurred.
It is apparent from Exhibit D23 and I find, that the accused was not present at Kenneth Road on either the weekend of Saturday 18 April 2020, or the five days preceding Saturday 18 April 2020. However, the accused was at Kenneth Road the previous Saturday 11 April 2020.
LGF said she ‘had the tent up for like five days’, and that the offending she recalled in the tent therefore ‘could have been between 15 and 20 April 2020.’[484] I am satisfied, from all of the evidence, that the accused was not at Kenneth Road at all during that specified period.
[484] MFI P19 at T 124.30-31.
However, notwithstanding my criticism of aspects of her evidence, I accept KW’s evidence and I find that the tent was erected on more than one occasion during the relevant period, including under the carport. I also accept KW’s evidence that the tent was erected for birthdays or during the school holidays for some fun and, that when it was set up, it was kept up, on occasions, for a week, or longer.
When LGF’s evidence is considered as a whole, it is clear she is not someone who has a good memory for dates. She confused her age during 2020. When she spoke to Officer Kittel on 6 May 2021, she could not remember exactly when she told JMT about the offending, despite it being less than six months earlier. Her best estimate was it was between two and five months before the interview. However, it is clear from JMT’s evidence, which I accept, that LGF disclosed the offending to JMT on 16 December 2020. As such, there is every reasonable possibility that LGF’s memory as to when the offending in the tent happened was ‘around the mark’ but not precisely correct.
There is therefore every possibility that LGF’s recollection of the tent being up, either for five days, or for the five days she identified between 15 and 20 April 2020, is slightly inaccurate. If, in fact, the tent was erected seven days before 18 April 2020, then it would have been set up at a time when the accused was at Kenneth Road, namely Saturday 11 and Sunday 12 April 2020.
Much was made of the fact that KW sent the accused a photograph of the tent, and that she would not have needed to do that if he had previously seen it set up at that time. However, that is simply an assumption that is possibly available from that evidence. Another is that KW was telling the accused LGF was still asleep, so she had not had an opportunity to tell her they were going out that day, and that she was still sleeping in the tent, which she had turned into her new home.
Further, LGF nominated the period from 15 to 20 April 2020 as being when the alleged offending in the tent occurred by specific reference to the photograph on her mother’s phone which bore the date 18 April 2020. Clearly the tent was up at that time. However, whether, in fact, LGF is accurate in terms of her recollection that the offending occurred when the tent was up at that time, or whether she has mistakenly assumed this to be when the offending occurred, based on the fact of that photograph, is uncertain. It may be that she is in fact recalling an incident which occurred on a different occasion the tent was set up under the carport, during the relevant period, but mistakenly has attributed the wrong date.
As such, I reject the proposition that it was impossible for the offending in the tent to have occurred because the accused was not present at Kenneth Road during the period nominated by LGF of 15 to 20 April 2020.
Other Relevant Matters
While LGF did not have a memory of the specific details of some of the offending, she was clear that it had started during Year 7, in 2020, when she was aged 12. Although she told Officer Kittel it started some 8 to 10 months before the first LGF interview, given LGF’s memory for specific dates was poor, this estimate could be slightly inaccurate.
LGF was certain as to the nature of the offending, it being confined to the accused touching her bottom, her breasts and fingering her except for the one occasion when he moved her hand onto his penis.
As stated previously, LGF did not attempt to embellish or exaggerate at all when giving her evidence. She was frank insofar as aspects of her memory were not clear. She was not prepared to guess simply to give an answer which would assist the case being made against the accused.
In addition, there were numerous aspects of LGF’s account which I found compelling. For example, her simple and instinctive response when asked how she knew the accused’s fingers were inside of her when he lay down next to her in the lounge room, that is, ‘Because I could feel it’.[485] The words used, and how she said them, when asked if she was wearing clothes when the accused slept in her bed, with her, namely that she ‘wasn’t gonna sleep naked with him’.[486] Her description of the way that he would sometimes use his legs to push her legs up, so that they were bent, when he was spooning her.[487] Her recollection of his heavy breathing as he was fingering her and when he moved her hand onto his penis.
[485] First LGF interview at p 24, line 1146.
[486] First LGF interview at p 37, line 1771.
[487] First LGF interview at p 12, lines 551-561.
There was no evidence that LGF had any prior sexual experience at the time she gave the first LGF interview, or at any relevant time, other than any potential knowledge she may have acquired during the discussions she had with the accused of a sexual nature.
Another aspect of LGF’s account which I found compelling was her evidence that nothing was said either during or after any of the alleged offending as between her and the accused. This is consistent with her evidence that she would just lie there and pretend to be asleep during the offending and that the offending would stop when she rolled over or made it apparent that she was waking up. The fact she never said anything to the accused about the offending was also consistent with her concern to maintain their otherwise ‘normal’ and good sibling relationship.
Grooming
Although the accused denied ever buying LGF clothes, as claimed by LGF, the accused acknowledged that he spent money on LGF – he bought her various gifts for her room and took her ice skating, to Build-a-Bear, the movies and out to eat.
LGF gave evidence that the accused spent a lot of money on her and that in her mind she thought he did that, ‘to keep her quiet’ with respect to the offending.[488] Counsel for the accused submitted that this evidence should be rejected in the absence of there being any evidence that the accused had ever told LGF not to tell anyone about the offending or made any threats about that.
[488] First LGF interview at p 42, lines 2046-2047.
LGF acknowledged that, in fact, the accused may have simply been spending money on her because he could afford to do so. During the relevant period, the accused had a steady job, and I am satisfied that notwithstanding the money he spent on cannabis, other drugs and living expenses, his financial situation was such that he had more capacity to spend money on these things than KW.
There was no evidence that the accused’s spending on LGF changed at all during the relevant period. Further, I am satisfied that the fact he may have spent more money (or time) with LGF, compared to LF, was not for grooming purposes, but rather simply because of the different stages they were at in their lives (noting LF had a girlfriend from mid-2020) and their different interests.
As such, I am not satisfied that the accused spent money on LGF or spent time with going to the movies and the like, in order to groom her for sexual activity.
However, I am satisfied on all of the evidence that the relationship between LGF and the accused was always a close one, including during the relevant period. I am further satisfied that from mid-2020, coinciding with when LF commenced his relationship with his girlfriend, that the accused did start spending more time with LGF. I am satisfied that this was partly by necessity in the sense that LF was otherwise preoccupied with his girlfriend.
I am further satisfied, on all the evidence, that at or about the same time, the accused started sleeping in LGF’s room.
The accused acknowledged that he smoked cannabis every night and clearly had access to it. The evidence LGF gave about her cannabis use was candid. She was quite adamant that the accused gave her ‘his bong and weed’. She also readily volunteered that it was LF, not the accused, who first introduced her to cannabis, such that she did not seek to embellish the evidence she gave on this topic. I accept LGF’s evidence that when she was in Year 7 (2020), the accused would give her cannabis and they would smoke it together, usually in her bedroom. It follows that I reject the accused’s evidence to the contrary.
In making this finding, I accept that the evidence demonstrates that after 22 February 2021, LGF was still smoking cannabis and clearly being supplied cannabis by someone other than the accused. However, LGF acknowledged she had smoked cannabis with LF. It was not suggested by LGF that her only source of cannabis was the accused, or that he was the only one who ever smoked it with her.
LGF recalled two or three occasions when the accused touched her after they had consumed cannabis together. I am not prepared to make a finding that the accused deliberately gave LGF cannabis in order to facilitate the offending. It is possible he did so. However, it is also possible that cannabis use was such a routine and integral part of his lifestyle, that him sharing that drug with LGF, once LF became preoccupied with his girlfriend, simply occurred naturally. Further, LGF was no stranger to cannabis – she had used it before with LF and her mother was a heavy user. It was therefore not something ‘out of the ordinary’ for her to do.
Notwithstanding his evidence to the contrary, it is possible that the accused’s consumption of cannabis in these (or other) circumstances, made him feel disinhibited and/or emboldened to commit the offending. Similarly, the offending may have occurred irrespective of any illicit drug use on the part of the accused. I make no finding on this particular aspect of the evidence.
LGF also gave evidence that the accused bought her alcohol. She acknowledged that sometimes she would ask him to do so. She was quite adamant that he would buy her alcohol for parties and they would get drunk together.
Again, notwithstanding the accused’s evidence to the contrary, I accept this evidence. LGF gave evidence that the accused was not the only one to give her alcohol. She acknowledged that, at times, ZF gave her alcohol and that LF had given her a ‘Little Fat Lamb’. Although she was not 100% certain that KW had bought her Vodka Cruisers in 2020, it was my impression that this derived from LGF being uncertain if this had occurred when she was 12 or 13, given her confusion as to her age in 2020, when giving her evidence in court.
As such, it was not the case that LGF was embellishing her evidence or attempting to paint a picture that it was only the accused who gave her alcohol. I accept her evidence that he did. The accused was aged over 20 during the relevant period. LF was only 16 or 17 and therefore underage. ZF did not live at Kenneth Road during 2020. It simply makes sense that the accused, being the oldest brother, would be the one to physically purchase alcohol, later consumed by LGF.
LGF gave evidence that she was pretty sure the accused bought her alcohol to get her drunk and make it easier for him to do stuff to her.[489] She recalled only one occasion when the accused offended against her after buying her alcohol. Of course, it is possible there were other times he offended against her in these circumstances, but she cannot now remember them because she was too intoxicated to do so.
[489] First LGF interview at p 45, lines 2158-2162.
While it is possible that the accused made a conscious decision to buy LGF alcohol to get her drunk to facilitate the offending, I cannot make that finding. However, I am satisfied that the fact the accused and LGF did, on at least one occasion, drink together and sleep in the same bed together, provided the opportunity for the offending.
Complaint Evidence
I am satisfied that JMT was the first person LGF told about the offending and that she did so during a conversation they had on 16 December 2020, the day they walked from Kenneth Road together to JMT’s house, and on the way, stopped and collected flowers and leaves.
The fact that LGF chose to first disclose the offending to her very close friend, rather than a family member, is readily explicable having regard to the circumstances of the offending, her young age and the fact the offending involved her otherwise trusted and loved older brother. It is consistent with LGF’s evidence, which I accept, that she did not disclose the offending earlier because she did not want to break up the family. She needed to tell someone, but she felt that she could not tell anyone in her family.
JMT recalls LGF telling her words to the effect that the accused was trying to touch her in her private parts. This is consistent with the nature of the offending as described by LGF. If, as JMT recalled, LGF said the accused was ‘trying’ to touch her, rather than ‘he is touching me’, this is consistent with what I consider to be LGF’s overall reluctance to talk about what happened between her and the accused in detail, and to downplay the offending, if anything, rather than to exaggerate it, as it was such a cause of embarrassment and unease for her.
As such, I am satisfied that the circumstances in which LGF made the initial complaint to JMT and what she told her demonstrate a degree of consistency of conduct on her part.
I further accept the evidence of both LGF and LF, that LGF disclosed the alleged offending to LF when she spoke to him in the car, following her attempted overdose on Panadol, at which time she disclosed further information as to the circumstances of the offending, by way of an elaboration of the initial complaint.
LGF could not recall the exact words used by her during this conversation, other than she told LF that the accused had been touching her for a while now. However, I accept LF’s evidence that he prodded LGF to give him more details, so that he could understand what had happened. He remembered her telling him that he could not tell KW as LGF was worried the family would fall apart. I accept LF’s evidence to this effect. His recollection of this aspect of the discussion is consistent with LGF’s own concerns about keeping the offending to herself, in order to protect the family. Similarly, LGF’s reluctance to talk to him about the details of the alleged offending is consistent with her presentation during the interviews with Officer Kittel and at trial.

LF also recalled being told by LGF that in addition to saying that the accused had touched her inappropriately, she told him about feeling the accused’s penis on her back, when they were cuddling and about an incident in the lounge room. LF’s recollection as to the latter incident was that LGF told him the offending happened when she and the accused were sitting on the couch, and he described conduct which was very different to that described by LGF in her evidence.
LF gave evidence that he had a memory that LGF told him the offending started ‘after the big acid trip, which was my birthday. Or the night [the accused] ran away and stuff’.[490] Although there was no specific evidence as to precisely when this party was (ie was this a party for his 16^th or his 17^th birthday). Having regard to LF’s evidence about his consumption of ‘other drugs’, which he claimed only started during mid-2020, I consider it likely to be a reference to his 17^th birthday. If the alleged offending in the tent occurred in April 2020, then, this was before LF’s 17^th birthday.
[490] T 148.10-11.
As previously stated, LF gave evidence that LGF was unintelligible for much of the conversation. As previously stated, it may well be that LF has misinterpreted some of what he heard during that conversation. I accept his evidence that he now recalls these things being raised by LGF during that conversation, however whether his recollection is accurate, given the way in which that conversation unfolded, the obvious heightened emotions involved for both he and LGF and his stated difficulties in understanding some of what LGF was saying, is uncertain. As such, I am not satisfied that his memory of precisely what LGF told him about the offending is accurate.
LGF spoke to LF about the offending, it being when she was at a very low point in her life, just after the attempted overdose. I am satisfied this demonstrates consistency of conduct. While there were some differences in what LF recalls LGF telling him about the details of the offending and LGF’s account of the offending, what LGF told LF about the nature of the unlawful sexual acts, together with the fact she told him something happened in the lounge room, is consistent with what she told the Court. As stated, any differences in the details recalled by LF are likely due to a misunderstanding (or misremembering) on his part of what she told him at that time.
I am satisfied therefore that the complaint evidence demonstrates a degree of consistency of conduct on behalf of LGF.
Summary
For the above reasons, after carefully considering LGF’s evidence, I am satisfied beyond reasonable doubt that she gave a truthful account of the offending. I am further satisfied beyond reasonable doubt that LGF is not mistaken about, nor did she dream, the offending, and that the offending is not the product of LGF’s imagination due to the consumption of illicit or other substances.
I am further satisfied beyond reasonable doubt that LGF’s memory of the occurrence of the various unlawful sexual acts as described by her, is reliable.
Findings
I accept LGF’s evidence and am satisfied beyond reasonable doubt that during 2020, on multiple occasions, when the accused was sleeping in LGF’s bed with her, the accused massaged her buttocks, touched her breasts, touched her vagina and inserted his finger into her vagina, in the circumstances as described by LGF. Notwithstanding I heard no evidence from Sadie, I am satisfied beyond reasonable doubt that there was an occasion when LGF and the accused and Sadie were all on LGF’s bed, after they had been out together, drinking, and LGF woke to find the accused’s hand under her bra.
I am further satisfied beyond reasonable doubt, that on one occasion, during 2020, when the accused was sleeping in LGF’s bed with LGF, he caused her to touch his penis, in the circumstances as described by LGF.
I accept LGF’s evidence and am satisfied beyond reasonable doubt that on a single occasion, when LGF was aged 12 and sleeping in the lounge room, the accused came and lay next to her, at which time he touched her on the vagina and inserted his finger into her vagina, in the circumstances as described by LGF.
I accept LGF’s evidence and am satisfied beyond reasonable doubt that on an occasion, during the relevant period, after she, the accused and Sadie had been drinking and they slept on her bed together, the accused massaged her breast, under her bra, in the circumstances as described by LGF.
I accept LGF’s evidence and find beyond reasonable doubt that there was an occasion during the relevant period, when she was in the tent outside at Kenneth Road with the accused and he touched her inappropriately. As LGF could not recall the details of that incident more clearly, I am not satisfied that he inserted his finger in her vagina on that occasion.
I accept LGF’s evidence and find beyond reasonable doubt that when she was alone with the accused at JMT’s house on New Years Eve 2020, and on one occasion, in his room at RW’s house at Ethelton in January 2021, that the accused touched her buttocks, in circumstances which were indecent. I am unable to find that any further unlawful sexual acts occurred on either of those occasions.
I find beyond reasonable doubt that on each occasion that the accused touched LGF, either on her buttocks, breasts and/or vagina, and on the single occasion he caused her hand to touch his penis, that this conduct was accompanied by circumstances of indecency and occurred when LGF was under the age of 14. Each such occasion therefore amounted to the offence of aggravated indecent assault, being an unlawful sexual act.
Further, on each occasion that the accused inserted his finger (or fingers) into her vagina, he committed an unlawful sexual act, being unlawful sexual intercourse with a person under the age of 14.
As to count 1, I am satisfied beyond reasonable doubt and find that during the relevant period:
1.The accused knowingly maintained a relationship with LGF.
2.During the course of that relationship, the accused engaged in two or more unlawful sexual acts with LGF.
3.At the time, LGF was a child.
4.At the time, the accused was an adult.
Conclusion
I find the accused guilty of count 1.
As counts 2, 3 and 4 were laid in the alternative, there is no requirement for me to deliver a verdict on those counts.