R v KMF

[2022] SADC 138

District Court of South Australia

(Criminal)

R v KMF

[2022] SADC 138

Reasons for the Verdicts of her Honour Judge Tracey 

29 November 2022

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES

The accused is charged with five counts of aggravated indecent assault, alleged to have occurred when the accused carried her from her mother's bed where she had been sleeping.

Verdicts: Not guilty on all counts.

Criminal Law Consolidation Act 1935 (SA) s 56, referred to.

R v KMF
[2022] SADC 138

1. KMF (the accused) is charged with five counts of aggravated indecent assault pursuant to s 56 of the Criminal Law Consolidation Act, 1935. He pleaded not guilty to all charges and elected to be tried by judge alone.

2. It is alleged that the accused committed the offences against AD, who is his stepdaughter. AD was born on 19 May 2010. The charges are as follows:

   First Count

   Statement of Offence

   Aggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).

   Particulars of Offence

   [KMF] between the 1st day of November 2019 and the 31st day of January 2020 at Modbury Heights, indecently assaulted [AD] by touching her breasts.

   It is further alleged that [AD] 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.

   Second Count

   Statement of Offence

   Aggravated Indecent Assault. (Ibid).

   Particulars of Offence

   [KMF] between the 1st day of November 2019 and the 31st day of January 2020 at Modbury Heights, indecently assaulted [AD] by touching her buttocks.

   It is further alleged that [AD] 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. (Ibid).

   Particulars of Offence

   [KMF] between the 1st day of November 2019 and the 31st day of January 2020 at Modbury Heights, indecently assaulted [AD] by touching her buttocks.

   It is further alleged that [AD] 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

   Aggravated Indecent Assault. (Ibid).

   Particulars of Offence

   [KMF] between the 1st day of November 2019 and the 31st day of January 2020 at Modbury Heights, indecently assaulted [AD] by touching her genital area.

   It is further alleged that [AD] 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.

   Fifth Count

   Statement of Offence

   Aggravated Indecent Assault. (Ibid).

   Particulars of Offence

   [KMF] between the 1st day of November 2019 and the 31st day of January 2020 at Modbury Heights, indecently assaulted [AD] by touching her buttocks.

   It is further alleged that [AD] 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.

   Prosecution case

3. The charged offending relates to acts alleged to have taken place between November 2019 and January 2020.

4. AD’s parents separated when she was very young. Her mother subsequently married the accused.

5. At the time of the alleged offending, AD and her brother, BA, were living half-time with their mother and father, on a week-on/week-off basis. AD’s mother had been diagnosed and treated for cancer in 2018.

6. It is the prosecution case that around the end of 2019 and the start of 2020, it would not be uncommon for AD to fall asleep at night in bed with her mother. The accused would then pick her up and take her from her mother’s bed to her own bed.

7. Count 1 concerns an occasion when the accused was carrying AD from her mother’s bed to her bedroom and placing his hand under her t-shirt and crop top and rubbing her chest or touching her breasts.

8. Count 2 concerns the same occasion on which it is alleged that the accused touched AD on her buttocks and tried to put his finger ‘in [her] butt’.

9. Count 3 occurred in similar circumstances to that alleged in Counts 1 and 2 in that the accused was carrying AD to bed after she had fallen asleep in her mother’s bed. The allegation is that the accused rubbed AD’s bottom under her shorts and underwear.

10. Count 4 concerns an occasion when the accused was carrying AD to her bedroom and rubbed her on her genital area on top of her underwear, but under her shorts.

11. Count 5 concerns an occasion where it is alleged that the accused again, when putting AD to bed, touched her buttocks under her shorts. Again it is alleged that the accused tried to insert his finger into her ‘butt’.

12. In 2021 AD told a friend, RW, what the accused had done. Her evidence was led as the initial complaint evidence.

13. An argument between AD and her mother occurred during which AD told her mother that the accused had been touching her inappropriately. AD’s father was contacted and he collected AD. AD now primarily resides with him.

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

    Witnesses

15. The following prosecution witnesses gave evidence:

    ·AD, the complainant;

    ·RW, the complaint witness;

    ·BA, AD’s brother;

    ·AJ, AD’s father; and

    ·Detective Brevet Sergeant Sarah Brown (DBS Brown), the investigating officer.

16. The defence called the accused and AD’s mother, NF, and a character witness, Ms Busato.

    Elements of the offence

    Aggravated indecent assault

    The prosecution must prove beyond reasonable doubt that:

    1.     The accused intentionally assaulted AD.

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

    3.     AD was under the age of 14 years of age at the time.

    General directions

17. I direct myself as follows:

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

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

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

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

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

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

    ·Certain witnesses gave evidence with special arrangements in place. I must not draw an adverse inference against the accused because of those arrangements, nor allow them to influence the weight that I give their evidence. AD and RW gave evidence by way of interviews with police. I must treat this evidence the same way as any kind of evidence and not allow the way in which it was presented to influence the weight that I give the evidence. That the evidence was given in this way says nothing about the accused. I draw no inference against him from the fact that the evidence was given in that way.

    Evidence of AD

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

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

    Interview with police on 1 March 2021[1]

    [1]     Exhibit P1.

20. DBS Brown interviewed AD on 1 March 2021. At the time, AD was aged 10, nearly 11 years of age. AD said that she had come to talk to DBS Brown about something that happened. She said that she got into a fight with her mother but could not really remember it because it was two-and-a-bit weeks ago. She thought she said something that made her mother really mad. Her mother started hitting her and hit her across her face. She then dragged her along the floor and her mother kept hitting her. Eventually she got up and ran to her room and locked the door and told her mother to call her father to pick her up.

21. When asked what she had said to her mother that made her mother really mad, AD said that she could not remember exactly but that they were ‘both like really mad and yelling at each other’.[2] She said she could not remember what it was about and that she had a bad memory. She said that she ran to her mother’s room and locked the door. She told her mother to ring her father. AD said that the door ended up getting stuck. The accused and her mother were trying to unlock it. A couple of minutes later her Dad came and picked her up.

    [2]    Exhibit MFI P4 at Item 81

22. AD said that probably near the end of 2019 her mother was recovering from cancer. She said she did not really sleep in her own room and would go and lay with her mother to go to sleep. The accused would:

    Like pick me up to take me to my room and that and I’m pretty sure three times when he was taking me to my room he sort of ah touched cos he thought I was asleep but I wasn’t.[3]

    [3]     Exhibit MFI P4 Annexure AWC01.1 at Item 184.

23. When asked to tell the police officer everything about the first time that she remembered, AD said that:

    The first time he was carrying me and we were sort of in the hallway and he put his hand underneath my shirt and I don’t think it was an accident if he can see cos like I wear things underneath my shirt and that when I go to sleep and that and he like put his hand under that as well.[4]

    [4]     Ibid at Item 186.

24. AD described how the accused was carrying her.

25. She said the accused was rubbing her with his hand in her chest area. She described the area as her ‘chesticals’.[5]

    [5]     Ibid at Item 208.

26. AD said she did not really know how the accused’s hand got under her top. ‘I just woke up and it was there’.[6] AD later used the word ‘boob’.[7]

    [6]     Ibid at Item 216.

    [7]     Ibid at Item 226.

27. AD said that the accused put her on her bed and then went off. The next day he acted like nothing had happened.

28. The second time she remembered something happening was when the accused put his hand underneath her shorts and underneath her underwear. He was rubbing her ‘butt’.[8] He was taking her to her room and they were in the hallway area again. She did not know how he put his hand there, but just knew that it was there. He was rubbing her butt until he got to her room and put her in her bed.

    [8]     Ibid at Item 238.

29. DBS Brown asked AD to tell her about the last time something happened. AD said that it was not underneath her underwear, but the accused put his hand underneath her shorts again, and this time on her front part.[9] It was over her undies. She said she woke up and the accused was moving his hand there. She said it was the same as all the other times and he took his hand away when he got to her room. He stopped and then just put her down. His hand was going up her shorts from the leg. His hand was over the top of her ‘pee pee’ area.[10]

    [9]     Ibid at Item 272.

    [10]   Ibid at Item 290.

30. AD said that nothing had happened since the last time. The last time was probably in December or January 2020 and the three times it happened were really close together.[11]

    [11]   Ibid at Item 313.

31. AD said that she had told her best friend RW and her old friend IB.[12] She had told them the details of where the accused had touched her.

    [12]   Ibid at Item 316.

    Interview with police on 27 June 2021[13]

    [13]   Exhibit P2

32. At the time of this second interview, AD was aged 11 years.

33. AD said that she and her mother were having an argument in the car about phones. AD went into her room and she thought her mother went into her study. AD said that she could not remember what started the argument again. All she could remember after they got home was standing in the kitchen and her mother sitting at the dining table. She said something which she could not remember and they were arguing again and her mother got really mad. AD said that she was going to leave the kitchen when her mother stormed over and hit her in the face.[14] She could not remember what it was that made her mother really mad. She said that all she could remember was the argument in the car and then nothing in between that. Her mother got up from the dining table and hit her. AD said she fell. It was like her legs just stopped working. She said that after that she was pretty sure that she hit her mother on the back. Her mother started hitting her again and she was crying and the accused came over and hit her a few times. Her brother was in his room for most of it, but when she was sitting and her mother was hitting her, she was pretty sure that her brother came out. She said he was standing there for a little bit. Her mother was dragging her and threw her in her room.[15] She landed on her skateboard and it came back up and hit her in the head. She tried to leave her room but was pushed back. She then got up and ran to her mother’s room and locked the door. AD said:

    [14]   Exhibit MFI P4 Annexure AWK02.1 at Item 68.

    [15]   Ibid at Item 104 [p. 10].

    … it was at the very end of it when this was after I had left my mum’s room and then I went … wait I think Dad was on his way, I can’t, I can’t remember. I, it’s hard to remember and I got up. I can’t remember if it was before I went in the room or if it was after or if it was when Dad was on his way I can’t remember. But I went and told, I got up and my Mum was in her study and I told my Mum “I wanted to speak to her” and then I told, I, she started, started saying something, I said, I started saying to her like, cos I want to go to sleep in her bed some nights because she had cancer and so I’d go sleep in her bed and then [KMF] like would pick me up and take me to my room. So I told Mum that when [KMF] would pick me up and take, take me to my room and then I got to “he would” and she stopped me and yelled at me and said “No it’s not true” and then she hit me in the arm I’m pretty sure, it was the arm, it was like cos I was sitting on the floor. And then she got up, she got up from her chair and then she went to her room and started crying again. And then I can’t remember what happened after that. But I told her I, “I had told [RW]”… I didn’t tell her that I told [IB] what was saying I am friends with. To me everything I am saying seems muddled and messed up. I can’t remember everything like that had happened, like I just remember for what happened but I can’t remember when it happened.[16]

    [16]   Ibid at Items 116-126 [pp. 11-12].

34. When her father arrived, she unlocked the door and ‘got her stuff’ and went outside. AD said that she could remember what happened in the kitchen but could not remember when it happened. She said that she was pretty sure the accused was there when she hit her mother and that was when the accused started hitting her. The accused did not hit her as much as her mother did. She said the accused was only there for a little bit and was pretty sure that he went back to his room. She agreed that she was not really sure when the conversation in the study happened. She said ‘I’m pretty sure it was like, like in the middle of everything happening’.[17]

    [17]   Ibid at Item 190 [p. 17].

35. AD said that she had arguments with her mother before when her mother had hit her several times. They would have big arguments and her mother would get really mad at her and would hit her. Sometimes her mother would throw and smash things. AD said that she could not remember much before her mother got sick.[18] AD said that she will see her mother again but just did not want another fight to happen.[19]

    [18]   Ibid at Item 218 [p. 20].

    [19]   Ibid at Item 226 [p. 20].

    Interview with police on 21 December 2021[20]

    [20]   Exhibit P3.

36. AD was aged 11 years at the time of this interview.

37. When asked by DBS Brown what AD needed to talk to her about, AD said that it was something to do with the accused. AD said that after he had put her down, he had tried to put his finger in her butt but that she always moved and he didn’t do it.[21] She said it happened two times. AD said ‘It happened with the, I think crop top one. And once he put me down and it happened and again another time after those.’[22] When asked whether it was the time he touched her butt or the time that he touched her in the area where she peed from, AD said ‘Just it’s where pee was, just a different time’.[23] AD said that she could feel his finger in the middle of her two bum cheeks. The interview concluded with DBS Brown asking whether AD was now saying that there was a fourth time that she remembered something. AD said ‘it was the same thing as the first time and he put me there and he would do it and then I moved and he …’.[24] It was the last time the accused touched her.

    [21]   Exhibit MFI P4 Annexure AWK03.1 at Item 42 [p. 5].

    [22]   Ibid at Item 56 [p. 6].

    [23]   Ibid at Item 58 [p. 6].

    [24]   Ibid at Items 112-114 [p. 11].

38. DBS Brown asked AD why AD had not told her about this when they first spoke. AD said that her mother told her that she would need to go to hospital. This was at the same time that AD had told her everything else.[25] It was when she was in her study. AD said that her mother was in her study when she went in and told her. AD said it was because ‘he tried to put his finger in [her] butt’.[26] Her mother just said she had to go to hospital and it made her feel scared. AD said she was talking with her father. She could not really remember what they were talking about but remembered telling him that ‘He did something else’.[27] Her father told her that she had to tell police. She did not tell her father what this something else was.[28]

    [25]   Ibid at p. 13.

    [26]   Ibid at Item 160 [p. 14].

    [27]   Ibid at Item 168 [p. 15].

    [28]   Ibid at p. 15.

    Cross-examination of AD

39. AD said during the time her mother was sick with cancer she was worried that her mother might die. AD agreed that she would fall asleep in her mother’s bed at night and sometimes her brother did as well. This happened after her mother became sick with cancer.[29]

    [29]   T 29.

1. AD agreed that for a time IB was her best friend and then RW became her best friend again. She did gymnastics with IB. They had sleepovers but not at the same time because IB and RW were not really friends. AD agreed that from time to time she spoke to the wellbeing teachers at school about problems she was having.[30]

   [30]   T 30.

2. AD said that they were not really allowed to have social media but was allowed the TikTok app and a children’s version of Facebook Messenger. She was not allowed Snapchat. AD agreed that when her mother wanted to discipline her, one of the things she did was to take away her phone or other electronics. She agreed that there would be lots of arguments in her house. She said when she was younger, she had lots of outbursts and would sometimes get angry at her mother and brother.[31] Sometimes she would hit and scratch her brother. She said that she only hit her mother when she got angry if her mother was hitting her. Sometimes when she was really angry, she would break things in the house and throw water bottles.

   [31]   T 31.

3. AD said she did not recall throwing a TV remote control at a TV and breaking it. She said she remembered breaking a TV but that it did not happen like that.[32] She thought she was around 10. It was a tiny little TV that she had in her bedroom. Her friend IB was over, and they were throwing things at each other and dodging them, and she threw a shoe.[33]

   [32]   T 32.

   [33]   It was an agreed fact that IB had been spoken to by police and told them that she was not present when AD threw a controller at the TV and broke the TV. IB said that she had been on the phone to AD at the time.

4. She did not recall an incident when she was about five years of age when she threw a remote control at the TV because she was angry and broke the TV. She said it did not happen.

5. She agreed that it was her mother who disciplined her and her brother and that she did not really have a lot to do with the accused. Sometimes they would do things as a family, but the accused had his own interests.[34]

   [34]   T 33.

6. AD said she could not remember what the fight with her mother was about. They were fighting in the car on the way back home from school and then the fight stopped, and they just started fighting again at home.[35] She said the fight at home happened, but it was not about the same thing. The fight in the car was about phones. She was angry at her mother for taking away her phone. Her mother had taken the phone the night before. She was angry that her mother refused to give back her phone because AD did not want to delete the Snapchat application. That was what the fight in the car was about. AD denied that she was kicking at the back of her mother’s seat or that her mother had to pull over while she was driving.[36] AD denied that when she got home, she went into her bedroom and started throwing things into the hallway. She denied going through her mother’s wardrobe and throwing things into the hallway. She agreed that her mother got angry after she had said something to her while her mother was at the dining table and she was in the kitchen. She did not remember what it was that she said.[37]

   [35]   T 34.

   [36]   T 35.

   [37]   T 36.

7. AD denied that she had come up to her mother’s face and told her that she hoped her mother would die. She denied that was when her mother slapped her on the cheek. She denied that her mother tried to hold her to take her to her room.[38]

   [38]   T 36.

8. AD denied that she started throwing things out of the pantry cupboard. She denied that the accused tried to stop her from doing that and slapped her or held onto her arm and slapped her leg. She denied tripping the accused over in the kitchen. She agreed that she locked herself in her mother’s bedroom. She denied she had punched the accused in the arm and that he slapped her on the leg after she punched him. She agreed she was lashing out physically and screaming.[39]

   [39]   T 37.

9. She agreed that in her mother’s bedroom she could not open the door and the accused came and tried to fix the lock from the outside.[40] She agreed that when the lock was fixed, she left the bedroom and went looking for her mother who was in the study. AD said that after she left the bedroom when the door was unlocked, things had calmed down quite a bit. She went to the study and that was when she told her mother that the accused had been touching her.[41]

   [40]   T 38.

   [41]   T 44.

10. AD denied she had said ‘By the way, [KMF] has touched me inappropriately’.[42]

    [42]   T 44.9-11.

11. AD agreed that she was sitting on the floor and her mother was sitting at her desk. Her mother did not ask her when it had happened or that she had told her mother it was August last year. She agreed her mother left the room at some stage, as did she. AD said that she started packing her ‘stuff’ because her dad was on his way to pick her up. She sat outside and waited and her mother came out as well. They did not leave straight away and there was a conversation between her mother and father.[43]

    [43]   T 45.

12. AD agreed that her mother said that she would need to take her to the hospital and to the police about what she had said concerning the accused touching her inappropriately. She denied that she had told her mother she had been lying and wanted to make her mother angry. She disagreed that her mother had only hit her on two occasions namely, when she smashed the TV when she was 5, and when she was yelling about her phone on 21 February.[44]

    [44]   T 46.

13. AD said that at the time it happened her mother was not sick or having cancer treatment. She was getting better.[45]

    [45]   T 47.4-6.

14. AD said that she did not think her mother was back working but was studying. AD said that she did not think that she was sleeping in her mother’s bed during the time that she was having chemotherapy. It was when her mother stopped having chemotherapy and started taking medicine to get better.[46]

    [46]   T 48.

15. AD said that nothing happened in 2020, it all happened in 2019. It was all within maybe a month.[47]

    [47]  T 49.

16. Defence counsel asked whether the accused had put his arms around her neck and then grabbed her up from behind her bottom to support her weight from her bottom. AD agreed that that was what the accused would do when he would pick her up from her mother’s bed but denied that she would put her legs around his waist to cling onto him like a koala. She was then asked again about being lifted off the bed into a more sitting upright position with the accused putting her arms around his shoulders and neck and then hoisting her up by the behind to carry her to her room. She denied that was the case because she thought what had been described to her was holding her in almost like a baby way, with her head on the accused’s shoulder and her arms dangly or wrapped around his neck.[48]

    [48]   T 52.

17. AD said that the reason she did not tell DBS Brown about the accused trying to put his finger in her butt during the previous interviews was because her mother told her she needed to go to hospital, and she just felt uncomfortable talking about it and had chosen not to tell DBS Brown about it in those interviews.[49]

    [49]   T 53.

18. AD agreed that in the week before she told her father that she wanted to speak to DBS Brown again there was a fight involving the daughter of her father’s ex‑partner and her father about AD being removed from her father’s care.[50]

    [50]   T 55.

19. She agreed she spoke to the welfare counsellor at school about things being difficult at home with her father and sometimes him calling her names. She did not remember talking to a welfare teacher on 21 November 2019 about her father not treating her very well and denied that she was upset that he would sometimes threaten to kill himself. She denied that her father had told her to hate her mother.[51]

    [51]   T 56.

20. She did not remember a meeting with a wellbeing teacher on 9 November 2020. She remembered that there was a meeting on 30 November when her father came to have talks with the deputy principal of the school about issues she was having.

21. She agreed there was a meeting on 10 December 2020 at school about conflicts she had with friends. She did not think there was a meeting in February 2021 about friendship issues carrying over from the previous year. She said there were ‘sort of’ issues carrying over from the year before.[52] She agreed that in August 2020 she had an issue with a boy who was bullying her. She spoke to the welfare teachers. She agreed that it was after that she went to see a psychologist every month from August until March 2021.

    [52]   T 57.3.

22. Before school started in 2021, she did not spend much time with RW. She had spoken to her on social media during the holidays, but they started hanging out when the school year started. The previous year RW was still one of her best friends, but IB was her friend who she ‘hung out with’.[53]

    [53]   T 58.3.

23. She had a two-night sleepover with RW. It was sunset when they had the conversation. They were in her bedroom. They were just sitting and talking.[54]

    [54]   T 58.

    Re-examination

24. AD said that her mother told her she would have to go to hospital when she was waiting out the front for her father to come and pick her up.[55]

    [55]   T 63.

25. AD said that the relationship with her mother was better only in the past month or two.[56]

    [56]   T 64-65.

    Evidence of RW

26. RW was interviewed by DBS Brown on 5 March 2021.[57]

    [57]   Exhibit P7.

27. At the time of the interview RW was 10 years of age. I was satisfied that at the time of the interview RW was capable of giving sworn evidence.

28. RW described communicating with her friends outside of school via Kids Messenger. RW was asked to tell about AD. She said:

    Well [AD] she’s a good friend and she just broke up with a relationship with one of her best friends. And then we became best friends cos we went on chat. And then we organised a sleepover after a week and for two nights. So I went over there and that’s the night she told me what happened.[58]

    [58]   Exhibit MFI P8 Annexure RWW01.1 at Items 116-120.

29. RW said that she understood AD had wanted to tell her mother but was too scared. RW said ‘I’m pretty sure, she said that “he was touching and she was asleep but in reality she wasn’t actually asleep” cos sometimes it’s hard for her to get to sleep.’[59] RW said that she told AD that she should tell her mother but ‘that didn’t go too well.’[60] RW said she went to AD’s house on Friday and she stayed there that night and then Saturday night. RW said that the sleepover happened ‘this year’.[61] She said that before the conversation they were just talking and AD said she wanted to tell her something. She said it was really important and did not want anyone else to know right now. AD wanted to get it out instead of just keeping it to herself.[62]

    [59]   Ibid at Item 128.

    [60]   Ibid at Item 130.

    [61]   Ibid at Item 176.

    [62]   Ibid at Items 192-194.

30. They were talking about how they were going to make slime the next day and then AD said she wanted to tell her something because she didn’t want to keep it to herself anymore. She said that AD told her ‘that her stepdad was touching her when she was not really sleeping in her private parts and she was really uncomfortable’.[63] RW said she was not really sure that they were the words that AD used. RW said that she told AD that she should tell her mother or someone so that they could help. AD agreed that she would do it soon and would tell her when it happened. They were in her bedroom at the time and it was at night.

    [63]   Ibid at Item 204.

31. The next she heard was AD coming back to school and telling her that she told her mum. RW said that she was ‘pretty sure her mum was mad because she didn’t believe her so she made her go back into her bedroom and everything like that’.[64] AD told her that she had got her dad to come and get her.

    [64]   Ibid at Item 242.

32. When asked where it was that AD said the accused was touching her, RW replied that AD only pointed and did not actually say.[65] AD had said it was her private parts. In the interview RW demonstrated areas on the chest and bottom.

    [65]   Ibid at Item 264.

    Cross-examination of RW

33. RW said that she would have a group chat with her friends which included AD. They only really talked on Messenger Kids but gradually moved to Snapchat a while later.[66]

    [66]   T 76.

34. RW said that she became friends with AD in reception. AD was her best friend for a number of years. She agreed that there was a time when she was not best friends with AD when AD was closer to a friend called IB.[67]

    [67]   T 77.

35. RW said that she was still friends with AD during Year 4 but they just did not hang out as much as they do now. It was when Year 5 started that she became close friends again with AD. She thought the sleepover was in week 2 of the beginning of the school term.[68] She was not aware that AD had issues with a boy bullying her in Year 4. She thought that AD may have been having friendship issues at school in the beginning of Year 5.

    [68]   T 78.

    Re-examination of RW

36. RW said that in Year 4 when she did not hang out with AD she still talked with her from time to time.[69]

    [69]   T 80.

    Evidence of BA[70]

    [70]   Exhibit P9.

37. BA was interviewed by DBS Brown on 5 March 2021. At the time he was 12 years of age. I was satisfied that at that time BA was capable of giving sworn evidence.

38. When BA was asked to tell DBS Brown about his sister AD, BA said:

    She’s, she’s got like really long blonde hair but she’s, she gets like really angry if you annoy her – especially me, like if I just go, walk into her bedroom she’s already “Get out” and starts getting angry.[71]

    [71]   Exhibit MFI P10 Annexure BWC01.1 at Items 130-134.

39. BA said that when AD gets angry, sometimes she starts swearing a little bit. He said that his parents tell him he has to move away, which he does. He said that AD gets quite angry and starts getting a little bit violent. She scratched him quite a bit when she gets a bit angry with him. He said that he gets told off because ‘apparently I’m annoying her from my parents’ point of view’.[72]

    [72]   Ibid at Items 154-156.

40. BA described the shared care arrangements that were in place between his mother and father, spending one week with his father and one week with his mother. He said that AD is currently living with his father because of an argument between AD and his mother. He was trying to do schoolwork at the time. When they got home, AD was being a bit rude and cocky, and he thought his mother took AD’s phone from her.[73] AD started getting annoyed and hitting and was angry. Then the accused got involved and started grabbing her phone and putting her away into her bedroom to make her stay in her bedroom for a bit. He said he could hear them screaming and yelling at each other continuously. When he finally came out he saw AD hitting his mother and his mother turned back to hit AD because she was being really rude. AD hit his mother again and his mother hit back. Then the accused stopped his mother:

    [73]   Ibid at Item 224.

    …because my Mum had cancer so she hits it, like she gets those emotion changes a bit.

    …And then I think cos she was still being rude and that my Dad call, , my Mum called my Dad and told “Can you come pick [AD] up please, she’s being rude”.[74]

    [74]   Ibid at Items 232-234.

41. He said that the next day AD came back and it happened again. His mother was saying that she would give her phone back and told her to take off Snapchat, but AD did not agree. His father was called again to come and take AD for a while.

42. BA said he could not remember what he heard, but his mother was the loudest, and his sister was the second loudest. He heard them swearing quite a bit. He thought his mother used the F-word. He could hear walls being hit and banging. AD was hitting his mother ‘quite a bit’ and his mother hit AD twice. AD was hitting his mother mainly on the back. His mother hit AD on the arm twice. BA said he asked the accused what was going on and was told that AD would not let go of her phone so that her mother could take it for a while.

43. His mother and father were talking out the front of the house and AD was running around there. He did not hear what they were talking about and walked back inside. BA said that AD and his mother get along really well mainly but when they start to argue, they yell at each other. He said that AD and the accused do not get along as well. He said it confused him at times because his sister had said she loved the accused.[75] AD said that his mother was still going through chemotherapy.[76]

    [75]   Ibid at Items 340-342.

    [76]   Ibid at Items 370-372.

44. BA said that both he and his sister would go and sleep in their mother’s bed and the accused would move them. He said the accused ‘picks you up but like you’re still fast asleep and then all of a sudden you wake up in your own bed in the morning’.[77] BA said that he thought the accused would put him over his shoulder and take him down to his bedroom and lay him on the bed.

    [77]   Ibid at Items 452-456.

    Cross-examination of BA

45. In cross-examination, BA said that AD only started getting really angry when she was getting older. He said the word ‘tantrum’ was the right word to describe her and she would yell in a very loud voice.[78] He said he would ‘mostly disagree’ that she showed this sort of behaviour when she was aged even three, four or five.[79]

    [78]   T 83.26-30.

    [79]   T 84.1-4.

46. He remembered that when she was 5, she threw a remote control at a TV and broke it. She was having ‘a bit’ of a tantrum at the time. He has seen other times when she has broken things during a tantrum. He said he thought she broke another TV when she threw something at it but did not know when that happened. When asked if it had occurred when she was by herself, BA asked whether defence counsel meant like friends. He said she was not with anyone else at the time and was in the context of AD being angry and having a tantrum.[80]

    [80]   T 84-85.

47. BA said that he did not remember whether the argument about the phone was happening in the car on the way back from school but agreed AD was angry in the car and kicking the back of his mother’s seat. He agreed that he heard AD say something to her mother like ‘I wish you were dead’.[81] Initially he disagreed that the comment was made before his mother hit AD but then said he misheard it.

    [81]   T 87.20-23.

48. BA said that he and AD pretty much slept with their mother their whole childhood.[82] He described how the accused would carry him to bed, carrying him mainly on BA’s right side with his head would be over the accused’s shoulder and his legs would dangling down. The accused’s hands would be on his back.[83]

    [82]   T 89.

    [83]   T 90.

    Evidence of AJ

49. AJ is AD and BA’s father. He said that his relationship with NF ended when AD was a little over 12 months old and BA was around two-and-a-half years. The children had been shared between them on a 50/50 basis. Currently AD lives with him, BA has been staying at his mother’s since the beginning of the 2022 school year. He said the coparenting relationship between he and NF had been good.[84]

    [84]   T 99.

50. He recalled receiving a phone call from NF asking him to come and collect AD on 17 February 2021. He was on his way home from work and when he arrived both AD and her mother were out the front. They were both upset. NF told him they had argued, partly to do with AD’s technology. NF said she hit AD because AD had said that she wished NF would die.[85]

    [85]   T 101.

51. He heard NF make a comment something along the lines, ‘perhaps his hand had slipped’.[86]

    [86]   T 101.13.

52. AJ said the further discussion between AD and the police in December 2021 came about following a conversation he had with AD in the car coming back from shopping. He tried calling DBS Brown and ultimately there was text communication and an arrangement was made.

    Cross-examination

53. AJ was asked to assume that DBS Brown was notified about AD’s disclosure to him on 9 December. He said he originally tried to call DBS Brown and could not get hold of her. He was asked to assume that a text message was sent by him on 9 December setting up another appointment. He said that there would not have been a long time between AD wanting to say something further and that appointment. It would not have been any more than a week or two.[87]

    [87]   T 105.

1. AJ agreed that over the years he had noticed AD’s behaviour change in that she had become angrier and was having behavioural issues and outbursts. He said that it was around the time that NF was diagnosed with cancer. He agreed it might be described as tantrum-like behaviour with AD losing self control and losing her temper. She could lash out. It was something that concerned him and he had conversations with NF about AD’s behaviour. In 2020 he had contact from the school and was in contact with the wellbeing officer at school pretty regularly.[88] In 2020 he and NF agreed to give AD access to a psychologist. There was not a lot of contact with the school in 2020. In 2021 the contact was mainly to help AD manage the trial matters. He was aware that AD had said something about the way he treated AD but not aware that there was an allegation of hitting her, or having threatened suicide. His partner’s daughter was something of a big sister to AD and they had a close relationship.[89]

   [88]   T 105.

   [89]   T 108.

2. He agreed there was an incident on 15 December 2021 at his sister’s house. AD was present and he was accused of physical and emotional abuse against the children.[90]

   [90]   T 108.23-30.

3. He agreed that he had communication from the Department for Child Protection (DCP) about AD concerning complaints about physical and emotional abuse. He thought he only received one or two phone calls about those matters. One concerned a smacking incident which he explained to them. AJ said that he was not contacted or had no memory of being contacted by the school on or about 8 December 2021 about AD’s attendance at the school welfare office.[91] AJ said that he had smacked AD on one occasion when she was asked to do a time-out and would not do it. He gave her an alternative place to do time-out and she was being really angry. She was screaming and yelling and slamming things.[92] The tantrum occurred in the lead-up before a handover time.

   [91]   T 111.

   [92]   T 113.

4. AJ agreed that an argument between NF and AD was not of any particular concern because it was not unusual. He agreed he had stayed outside the front of the house with NF for about half an hour to an hour talking about the issues she was having with AD. He agreed that AD was present for some of the discussion and that at some point AD and NF had an exchange between themselves.[93]

   [93]   T 116.

5. AJ denied that AD had apologised to NF for hurting her, or that she had said sorry that she had lied to hurt NF.[94]

   [94]   T 116.26-31.

   Evidence of DBS Brown

6. DBS Brown said that when a matter is reported to DCP by either a mandated notifier or a general member of the public to the child abuse report line, an intake is raised with DCP and their call centre will assess the information and the risk and tier the matter appropriately. If there is any suggestion that there might be a criminal element in the report, the intake will be sent through to SAPOL for an assessment.

7. As investigating officer, DBS Brown said that she had carried out a check on the Shield System and was able to identify that there was another occurrence separate to this investigation that was as a result of a DCP notification that was sent through to SAPOL.[95]

   [95]   T 128.

8. Exhibit P12 is a detailed occurrence report of 16 pages that was raised by SAPOL in relation to the DCP intake.

9. In response to reports she received, she had contact with AD on 7 March 2022 and attended at her primary school. She spoke with AD and a staff member. The purpose was to check on AD’s welfare with the information contained in the intake to see if there were any concerns and anything she needed to speak to police about. AD did not express any concerns that resulted in any further follow-up.[96]

   [96]   T 130.

10. DBS Brown said that she did not contact AJ in relation to any of the material and the documents do not note any contact by any other police officer in relation to the matter.[97]

    [97]   T 131.18-20.

11. DBS Brown said that on most occasions, DCP will send an intake through to SAPOL because they are closing the matter as they do not have the capacity to investigate. SAPOL do not renotify DCP unless an imminent risk has been identified.[98]

    [98]   T 132.

    Cross-examination

12. DBS Brown said that regardless of the tiering process, if there is an element of criminality contained in a report, it will be referred to SAPOL for assessment. On review of the intake SAPOL would likely speak to the child and then identify if there is any criminal offence that needs to be further investigated. DBS Brown said that she believed there was a previous notification around 2018 and that matter was filed with no disclosure of criminal offending. There was then the investigation in relation to the matter currently before the court and a matter investigated by another investigating officer.[99]

    [99]   T 135.

13. DBS Brown confirmed that there was no record of AJ being spoken to in relation to a notification in 2018.[100]

    [100] T 136.

14. DBS Brown said that initially AJ made contact with her in December 2021 via a telephone call. She subsequently returned his call. Both calls were made on 9 December. AJ said he had tried to make contact with her about a week-and-a-half prior and that the conversation with AJ was at some point around that time. There were text messages between AJ and DBS Brown on 14 December when an appointment was set up for AD to speak with her on 21 December.[101]

    [101] T 137-138.

    Evidence of the accused

15. The accused is 63 years of age. He and NF married in November 2015. They had been in a relationship since March 2012. At that time AD was around 18 months and BA was about three years of age.

16. The accused is a sworn police officer in SAPOL. He graduated from the Police Academy in December 1991, currently holding the rank of Senior Constable First Class.[102] He worked in the child and family investigation section of SAPOL between 1999 and 2008 as a domestic violence investigator. He has received certificates of appreciation for his services and received National Police Medals for his service.

    [102] T 141.

17. The accused described his relationship with AD as ‘reasonably okay’.[103] He said they got on alright when she was not having her tantrums. He did not have a lot to do with her on a day-to-day basis. If he was not at work he would probably be in the loungeroom reading or watching something, helping around the house. He had the same relationship with BA. His wife was the disciplinarian to the children. He sometimes disciplined them. The accused said:[104]

    [103] T 144.25.

    [104] T 145.17-26.

    I recognised very early on that she had a lot of behavioural problems. It was very difficult for [NF] to get her to do something. If [NF] asked her to do something or told her to do something that she didn't want to do she would often have a tantrum and she would carry on until [NF] gave up. If she wanted something and [NF] told her 'No' she would first start wheedling and haranguing [NF] to try to get it, and if that failed she would also have a tantrum until [NF] would give in.

18. He said there would be yelling and as AD got older, there would be abusive words used. AD would throw things around and she would hit NF. He noticed that AD would behave this way from an early age and said that it became worse as AD got older. AD behaved in that way on almost a daily basis.[105]

    [105] T 146.

19. When AD was around four or five she threw a TV remote through a TV screen in her room and then more recently smashed another TV that was in her room. There was no-one else in the room and IB was not at their home that day. They have a chihuahua dog called Rosie. When AD was having a tantrum, she would often grab the dog and squeeze it as if to hold the dog hostage.[106]

    [106] T 147.2-3.

20. As early as 2011 NF contacted Relationships Australia to try and get advice on how to deal with AD’s behaviour. Then there was a gap for a while and then NF went back to Relationships Australia in 2014 to try and help deal with AD’s behaviour. NF had a lot of contact with the school to try and help deal with AD’s behaviour. He and NF wanted to get psychological help for AD but her father refused to allow it until eventually in 2020 he relented and agreed.[107]

    [107] T 147.

21. In relation to the argument between NF and AD, the accused said that he was home on that day.

    [NF] had gone to pick the kids up from school. When they came home, there was tension, which is not unusual picking [AD] up from school. [AD] went into her room, [BA] went off to his and [NF] told me that there had been an argument in the car because [AD] wanted to retain Snapchat on her phone and [NF] didn't want her to. Then [NF] went to help [BA] with his homework and I went to check on [AD], to make sure she was doing her homework. I walked in and she was playing on her Nintendo Switch and watching something on her iPad, and we had a family homework agreement, where the kids would do their homework before they got on their electronics. So I took those away from her and told her to do her homework. I know I walked out. She followed me out crying, saying that she had done her homework so, according to the family homework agreement, she should be able to do - play with her electronics. [NF] went to get [AD’s] Chromebook … and she found that the password had been changed, which was also against our homework agreements. [NF] asked [AD] for the password. [AD] refused and then started slamming doors and yelling abuse at [NF] and I. She then went into her bedroom and started throwing things around the bedroom, her things. This whole tantrum went on for an hour or more. She then - she started throwing things into the hallway. She threw a skateboard into the hallway which hit the cupboard in the hallway. So I took that out and threw it in the bin outside, and when I came back in she was still throwing things. She threw things into the hallway, she threw things into our bedroom, she threw uncapped paint tubes into our bedroom, she threw a four foot long print on a wooden frame through into our bedroom. She yelled at [NF] and I that we were shit parents and we should kill ourselves and we didn't deserve lives. She told [NF] that [NF] should get a job and do some cooking and cleaning. … there was some yelling back at her, but we tried to just let it run its course. Eventually, at one point she came out into the kitchen and went to the kitchen pantry. I was worried that she might start throwing things around from the pantry, so I went over there and I saw her reaching for some cans. So I went into the pantry and she had a can in her hand, so I took that out of her hand and put it on the shelf and I pulled her out of the pantry by her arm. Then she punched me in the left arm. So I smacked her on the upper thigh to - to chastise her and try to de-escalate her behaviour.

    [AD] then went and sat in the entrance to the kitchen and I went to step over her to get out. She put her foot up and tripped me, causing me to fall against a corner of the wall. [NF] came over to tell her off. [AD] then screamed in [NF]'s face something like 'I fucking hate you'. [NF] then slapped [AD] on the face and slapped her on the bottom and told her to go to her room, and [AD] refused, so [NF] took her by the arm and dragged her into her bedroom. I followed. [AD] kept screaming and yelling abuse at us and throwing things around. I decided this is just going to continue to escalate, so we went back into the kitchen to just try to let it run its course again. Then [AD] ran into our bedroom and shut the door and locked it and we were concerned that she was going to start throwing our stuff around. So we went over and tried to talk her out of the bedroom but she just kept screaming abuse at us. … [NF] rang [AJ] and put him on speaker so that he could hear how [AD] was behaving. She asked [AD] through the door if she wanted her father to come and pick her up. She said she did. [AJ] said he'd come over and [NF] hung up the phone. Then [AD] started saying that she didn't feel well and her legs were wobbly and she couldn't unlock the door. … So I talked her through it … So she did that, unlocked the door and came out and went into her room, and while that was happening, [NF] had gone off crying into her study, so I went to check on her, and we talked in there for a little while while I calmed [NF] down. We went back out into the kitchen and [AD] seemed to have calmed down. And then at one point she came back into the dining/kitchen area and asked [NF] if she could speak to her on her own. [NF] said if she had something to say, she could say it in front of me … she stormed back into her bedroom… And some time later I was in our ensuite and [NF] came in and asked me if I had touched [AD] inappropriately and I was- I was shocked and upset by that question. I said 'No, I haven't'. And she said [AD] said it happened once last year in August' which would have been 2020 and I said 'No'.

    Around that time [AJ] arrived and [NF] and [AD] went outside to speak to him. I couldn't see them or hear what they were saying. I was just sitting in the bedroom. About half an hour later, [NF] came in and said to me that [AD] had told her and [AJ] that she had lied because she was angry about not getting her - her phone and iPad back. … And sometime after that, [NF] came back in and [AD] left with her father.[108]

    [108] T 148.2–T 150.38.

22. The accused said that there was a discussion with AD about Snapchat having been installed on her phone which they considered a dangerous app for children. AD had been told that she had to take Snapchat off her phone to have it returned to her.[109]

    [109] T 151.

23. The accused said NF was diagnosed with cancer in March or April 2018. After NF started chemotherapy, AD would sleep in bed with her. She had slept in the bed with his wife previously before chemotherapy on occasion.

24. When undertaking chemotherapy, NF would go to bed at around 9:00 or 9:30 pm. AD would go to bed with her. BD would go to bed at the same time if he was sleeping there with them.[110]

    [110] T 152.

25. There were occasions when he had to move BD out of the bed. He was able to carry BD when he was aged around three, four or five but BD grew too big for him to lift and he would ‘just slide his legs out of the bed, lift him up so that he was standing and then just sort of guide him towards his bedroom by my hands on his shoulders’.[111]

    [111] T 153.34-37.

26. On the occasions that AD would sleep in their bed, before moving her, the accused would turn down AD’s bed. He would turn on the light and depending on how AD was laying, he would turn her to face him. He would then put his arms under her armpits and sit her into a sitting position, lifting her up so that she was standing on the bed. She would then wrap her arms around his neck and put her head over his shoulder. He would reach down and lift behind her knees and lift her legs up. She would wrap her legs around his waist, and he would put his hands underneath with one hand clasping the other forearm to give her a seat. He would then walk her to her bed and lay her down. To lay her down, he would put his left arm on the middle of her back and his right hand on her bottom and then would lay her on the bed.[112]

    [112] T 154.6-29.

27. NF would always wake up when he picked AD out of the bed.[113]

    [113] T 155.

28. AD started sleeping more frequently in his bed when NF became sick. She slept in bed with her mother every night in 2018 and it started to reduce in 2019. There were still periods of time in 2019 when she did sleep in the bed. He did not recall BD ever sleeping in bed with his mother in 2019.[114]

    [114]  T 163-164.

29. He said that it would take him no more than 10 seconds to walk from his bed to AD’s bed. It would take five seconds to put her on the bed and possibly 10 seconds or a little more to return to his bed. It took about five seconds for her to be taken out of bed and be picked up. The distance between the beds he estimated to be about nine or 10 paces.[115]

    [115] T 166.

30. The accused denied having touched AD indecently.[116]

    [116] T 164.33-165.21.

    Cross-examination

31. The accused denied that for the most part it was a fairly amicable co‑parenting relationship between NF and the children’s father. He accepted that it had been agreed between NF and AJ that the children would live one week fulltime with their mother and then one week fulltime with their father, without having to go to court. At some point NF convinced AJ to have the children for an entire week about during each school holiday. It was only in late 2020 that AJ would agree to full week about for the whole time. He did not accept that the relationship between NF and AJ could be described as amicable.[117]

    [117] T 169.

32. There were times when he would pick up or drop off the children at school and would assist in preparing their meals and their homework. He said that NF was the primary discipliner but that sometimes he would enforce the rules.[118]

    [118] T 170.

33. The accused agreed that on the night of the argument he had not asked AD if she had done any of her homework. He accepted that her upset increased in severity when the electronic devices were removed from her. He said that at the time, throwing her skateboard into the rubbish bin seemed like the best thing to do because it got it out of the house, and she could not get to it.[119]

    [119] T 172.

34. The accused agreed that it was a situation where AD was upset, her devices were removed from her without any enquiry as to whether she had actually complied with the rules or not, her skateboard was taken away and put out the front and without knowing whether she was actually going to throw a can or not, it was taken out of her hand. He denied that he had smacked AD when he had gone to the pantry and taken the can out of her hand, rather, he had smacked her after she had punched him.[120]

    [120] T 174.36-37.

35. With respect to physically disciplining AD, the accused said ‘This had been going on for the better part of an hour, she wasn't responding to any requests to calm down or talk or reason’.[121]

    [121] T 175.23-25.

36. The accused agreed that NF had not taken AD to see anyone in relation to her behavioural issues. He said that it was because no medical professional or allied health professional would see AD without her father’s consent, and he continually refused.[122] He agreed that she would have attended at GP appointments.

    [122] T 177.13-15.

37. The accused said that AD was always asleep, which was the point of picking her up and moving her but she would wake as he lifted her. She would stand on her own two feet and would put her arms around his neck. It was a state of being half-asleep half-awake. When asked why there was a need to actually carry her, the accused said:[123]

    [123] T 193.11-15.

    She stood long enough for me to put her on my shoulder your Honour, but she wasn't awake, I wouldn't have walked her like I walk [BD] and it was just easy, easy to pick her up and carry her to prevent any disturbance that would keep [NF] awake.

38. In re-examination, the accused said that AD normally arrived home around 4:00 or 4:30 pm. It was not more than a few minutes between the time she arrived home from school when he went to her room to find her not doing her homework. NF went to help BD with his homework, and he went to check on AD. Sometimes it could be hours before AD would do her homework and sometimes, she would not do it at all. The agreement was the children would do their homework when they came home from school and then they could have their electronics. Based on his experience, he did not think that AD had enough time from when she arrived home to when he went to her home to have done her homework.[124] He agreed that in carrying out the discipline he did on that day he took into account AD’s behaviour on previous occasions.

    [124] T 194.

39. The accused said that on 20 October 2020 he took a video of one of AD’s outbursts.[125] The accused said:[126]

    [125] Exhibit D21

    [126] T 196.17-22.

    The children had just come home from their father's. I don't know what [AD] had wanted because I became aware of the argument when the voices started to raise. But [AD] had gone into our bedroom and had grabbed Rosie, our dog, and [NF] removed it from the bedroom so that she couldn't hurt Rosie.

1. When I asked why he felt it necessary to video the incident he said:[127]

   [127] T 196.25-29.

   When we've spoken to [AD] in the past, after her outbursts she denies them, so I just had a thought at the time I'll film it and show it to her to say 'This is how you're behaving'. I never actually got to do that because circumstances moved on the next day.

2. I asked the accused whether when he made the decision to film this incident, he was following advice as to this being an appropriate method upon which to deal with AD’s behaviour. The accused said that he felt at the time, because AD constantly said that she did not behave like that, that the film would be shown to her to show her that his is how she behaved.[128]

   [128] T 196.

3. The accused said that if AD did fully wake while he was moving her there would be a fuss and she would not want to go back to her own bed.[129]

   [129] T 198.

   Evidence of NF

4. NF married the accused in November 2015. They began living together in 2014 when AD was four and BD was five turning six. She separated from AJ in February 2010.

5. In August 2011 AJ pursued custody. Before then the children lived solely with her and saw their father ‘when he wanted to see them’.[130] Formal custody arrangements were made giving 50/50 custody to each. In early 2020 the care arrangements became one week with her and one week with AJ.[131]

   [130] T 203.6-7.

   [131] T 203.

6. NF said she has a Masters in Social Work and a Bachelor degree in Behavioural Psychology. She has a diploma in counselling. The particular focus of study in her Masters degree was child protection. She also has a Certificate IV in community services. She works in a public hospital in acute social work. She has received merit awards through the University for her contribution to social work while she was studying and nominated for the Australian Association of Social Workers South Australia Student of the Year Award in 2021. She is delivering a paper at the Australian New Zealand Social Work Symposium in Melbourne in November.[132]

   [132] T 205.

7. NF described observing behavioural issues emerging in her daughter AD as soon as the 50/50 arrangements started with AJ. It was when AD was a baby. AD would scream at handover. She would come home and would breastfeed constantly. Over the years AD continued to display behavioural difficulties. She said:[133]

   [133] T 206.7-22.

   [AD] would throw tantrums over the slightest things. I remember there was one tantrum that [AD] threw in the car park of a supermarket because I didn't buy her a chocolate bar. An hour and a half I tried to calm her down and talk her into the car and it wasn't until the police arrived that she calmed down and got in the car. Someone had called the police because of [AD] screaming. She's thrown things out of my car while I've been driving, she kicks the back of my seat while I'm driving, she screams incessantly at me, she throws things around the house, she smashes things, she smashed two TVs, she attacks [BD], has scratched [BD]. [BD] has scars all up his arms from her scratching. She would drag the dog out of her hiding spot and squeeze the dog. The poor dog had very bad anxiety. She just, it just wouldn't let up.

8. AD smashed a TV when she was about five. If AD did not get her way over something, she started throwing things around her room. She had a small TV in her room and threw a remote control at it to smash it. There was a second occasion in February 2021 just before she left NF’s house. AD said she smashed the TV because she felt like it. AD’s friend IB was not over on that day. In February 2021 AD was not friends with IB. The behaviours she described occurred every handover day, every Sunday and every Wednesday.

9. In answer to a question regarding whether her training assisted her in helping AD or dealing with AD’s issues, NF said ‘It helped me knowing where to go to try and get assistance for [AD], yes’.[134] She described going to Relationships Australia. She said:[135]

   [134] T 207.25-26.

   [135] T 207.32-36.

   I first started at Relationships Australia in early 2012. When we were going through Family Court, I started. I did the Kids First program through them and then remained on working with them to help support the children with their attachment issues.

10. She continued with Relationships Australia until she was diagnosed with cancer in 2018. NF was asked whether on each of the occasions that she was involved with Relationships Australia was it to do with managing AD. NF said:[136]

    [136] T 208.8-14.

    It was to do with managing both the children … it was about getting strategies to help manage both the children's behaviour when they were home and trying to settle them into some sort of routine before they went back on the Wednesday night or the Sunday night.

11. She said she worked closely with the school counsellor and AD’s teachers. She also sought support early on through Family Zone at Ingle Farm. Relationships Australia lost funding, and she turned to a counsellor at the university. She was also consulting with her own general practitioner ‘about helping me support my mental health while managing the children’.[137]

    [137] T 209.28-29.

12. When asked whether anything was done in terms of taking AD for counselling or support NF said:[138]

    [138] T 209.32-37.

    I had been trying to take the children, both the children, to see a psychologist since 2012 when it was recommended to me by the family psychologist through the Family Court to take the children to see a psychologist to help them with their attachment issues. Unfortunately, [AJ] continued to say 'No' until 2020.

13. NF said the practical result was that in order for her to take AD for psychological assistance, she needed the father’s consent. There was however no application made for any variation of the Family Court order and AJ finally agreed in March/April 2020 because he was no longer able to manage AD’s tantrums.[139]

    [139] T 210.

14. AD had a best friend, IB from 2018 to December/January 2021. RW was a friendship that was on-and-off in between that. RW did not like IB so AD did not see RW when AD and IB were friends. The friendship with RW was on again at the beginning of the school term in 2021 at the end of January. There was a sleepover at her house at the beginning of February 2021, around 7 or 8 February.[140]

    [140] T 211.

15. NF described various family events and holidays that took place in 2019.

16. She described AD’s behavioural issues as very distressing for everybody:[141]

    [141] T 213.16-35.

    It was very distressing for everybody. I had very terrible anxiety. I would struggle with the days when the kids were coming home. My anxiety would peak with the kids coming home, knowing that we were going to be having tantrums. My mum struggled with the children as well, so she didn't look after the children as often because she struggled with [AD’s] behaviour. My sister and I had a big falling out over [AD’s] behaviour. It was – [the accused] and I would occasionally fight over [AD’s] behaviour. I would constantly be being trying to talk to her about the consequences to her behaviour. I would constantly be trying to, yeah, help her manage her emotions and it was just, it was just - I don't have words to describe it. I'm sorry. I don't have words. It was just harrowing. It felt like the house was a constant war zone. [BD] would hide in his bedroom. The dog would hide under my bedside table all the time. Yeah, I felt like I was constantly trying to put out all these spot fires all the time, just trying to manage [AD’s] behaviour. 

17. NF said she loved her daughter dearly and her daughter would always cuddle her and tell her she loved her. They would fight and argue and then she would come and apologise and say sorry. She was always telling her she loved her.[142]

    [142] T 214.3-8.

18. She said the accused would interact with the children to back her up on something. She described him as an absent parent. He would go to work and come home and sit on the couch. She said, ‘Our relationship was when the children weren’t home’.[143]

    [143] T 214.20-21.

19. She was diagnosed with cancer on 26 March 2018. The children were very upset. She underwent surgery, chemotherapy and radiotherapy. The surgery was in April 2018.[144]

    [144] T 215.

20. NF said that the children slept with her always when they were little before she and the accused were together, it was only on the odd occasion before she got sick. Once she was diagnosed, they both slept in the bed with her every night when they were home.[145] She would go to bed anywhere between 8.30 and 9.30pm. There were no occasions when it was just AD. It was always BD as well. She was not working in 2018. She did work in 2019, at times in the office, but primarily at home. She was also studying at the time.

    [145] T 218.33-38.

21. She said that AD was not sleeping in her bed very often in 2019. It changed from always sleeping in her bed when she started working in 2019 after the Christmas school holidays. She slept in her bed sometimes. On the nights she was not working, AD would sometimes still come to bed with her.[146]

    [146] T 221.

22. In February 2021 there was an argument. She had taken AD’s phone away from her on 16 February. AD responded to that ‘violently’.[147] NF said that AD yelled and screamed and hit her and threw the contents of her bedroom around the house. AD lashed out at BD and herself and the dog. She picked AD and BD up from school the next day and AD asked for her phone back. She told AD that she could have her phone when they got home, and they removed Snapchat. AD told her that she was not going to remove Snapchat because her friends would not talk to her and AD was told that if she was not prepared to remove Snapchat, then she could not have her phone. That escalated the argument. She had to stop the car a number of times on the way home because AD was kicking the back of her seat, kept taking off her seatbelt and screaming loudly. It took her over an hour to get home. When they arrived home NF told AD to go to her room. NF walked into the kitchen and started making herself a coffee. The accused was in the kitchen or the dining room when they arrived. She was making coffee when AD started throwing items out into the hallway from her bedroom.

    [147] T 232.35.

23. NF said:[148]

    [148] T 234.19-38-235.1-33.

    I told her to stop it and she screamed at me that she wanted her phone back, that I was ruining her life. I told her she was not getting her phone back, I was trying to protect her. Someone had asked her for a photo of herself on Snapchat and that was the reason why I took it away. Yeah, then she just escalated, started throwing things around, screaming at me. She would come in and scream at me, I would tell her 'Enough, go back to your room' and it was just back and forward for a good hour, just that constant screaming, throwing things. At one point in time [the accused] disappeared and then he came back, [AD] was still screaming at me. I remember sitting at the dining table and [AD] screamed up into my face 'I fucking hate you, I wish you would die, I wish you both would die'. I slapped her across the face to try and calm her down and she then tried to - she pulled on the back of my T‑shirt and tried to strangle me. Again, she was kicking and punching me, screaming at me that I was ruining her life and that she hated me and why didn't I get a job, why didn't I clean the house better, you know, why, why was I such a bad mother all the time to her? She then went off to her - she went off to - I kept telling her to go to her room. She went off to her room again and then she came back out and I was in the dining area and she went into the kitchen and then [the accused] followed her into the kitchen and she was grabbing things out of the pantry to throw them, I could see her arm held back to throw. [The accused] tried to stop her. She punched [the accused]. I think [the accused] then smacked her on the arm or the leg, I'm not sure. She then stormed out of the pantry and laid in the entranceway to our kitchen. As [the accused] tried to step over her she tripped him. I then yelled at her and smacked her bottom and told her to get back in her room. I think I picked her up at that point and tried to take her to her room as she was struggling and hitting me. There was a struggle. I let her go and she went into her room and then she, again, was carrying on and I was telling her off and telling her 'Enough, enough, enough [AD], enough'. Then she went into our bedroom and shut the door and locked herself in. So she had also gone into our room previously and was throwing things out of our walk-in wardrobe trying to find her phone. She locked herself in our room and she was screaming and screaming and then she realised that she'd locked herself and she panicked because she couldn't open the door. [The accused] talked her through unlocking the door while I rang her father and asked him to come and get her. He was on the phone when I said to [AD] 'Do you want to go to your dad's?' and she said 'Yes' and I said 'You need to come and get her, her behaviour is just out of control' and he said 'I'll be there soon'. And then [AD] came out of the room.

24. During this argument BD was in his bedroom. He came out and was told to go back to his room.

25. After AD had come out of her mother’s bedroom NF had gone back into the kitchen. She was making herself coffee and was thinking about starting dinner. She had a board meeting that night and was trying to get organised. The accused came and talked to her and said that AD had calmed down and had gone into her room.[149] NF said that she remembered AD coming out and saying ‘Mum, I want to talk to you’.[150] NF said, “You can tell me what you have to say in front of [the accused].” AD said “No”, and she stormed off again.’[151] NF went down to the study to get herself ready for the board meeting, then AD came to her in the study. NF said:

    [149] T 236.

    [150] T 236.17-18.

    [151] T 236.19-21.

    She said she was very sorry and I said to her 'I'm very sorry too', you know, I said to her that 'I'm just trying to protect you, I'm trying to do what I think is the right thing as a mum and this is why I've taken your phone away from you'. She asked for her phone back again and I said 'No' and then she said to me 'By the way, [the accused] touched me inappropriately'.

    I said to her 'You've got to be kidding', and then I got up and walked out and went straight down to [the accused] and said to him [AD] has just told me that you have touched her inappropriately, is this true?', and [the accused] said 'No' and started crying.[152]

    [152] T 237.3-16.

26. Almost literally straight after that happened, AJ knocked on the door. NF said she opened the door and walked straight out to him and said ‘You need to know that [AD] has just told me that [the accused] has touched her inappropriately’.[153] AD was in the house when that exchange happened. She spoke with AJ for nearly an hour. They were on the front step and down on the front yard near AJ’s car. AD joined them ‘back and forwards’. BD came out as well. They kept telling AD to go back inside so that they could talk.

    [153] T 237.24-25.

    She came out, there was a comment made about – [AJ] asked her 'What's going on?', and she said 'Oh, [KMF’s] touched me under my top when he's put me to bed' and I said to her 'Are you sure his hands didn't slip?' and she said 'No' and then off she went again and then [AJ] and I proceeded to talk about, you know, [AD’s] behaviour.[154]

    [154] T 237.38 - T 238.1-6.

27. AD asked her mother why she did not believe her and NF said that she told AD:[155]

    [155] T 239.6-12.

    Okay, I will believe you, I will believe what you are saying is true [AD] and we can go to the police right now and we can go to the hospital and we can tell them everything that has happened' and [AD] burst into tears and told me that she was lying and that she was very sorry and she just wanted to make me angry at [KMF] instead of at her.

28. AJ was standing right next to her at the time.

29. As to her current relationship with AD, NF said:[156]

    [156] T 239.28 – T 240.24

    I've tried to keep it as best I can, I see her most weeks, I message her daily, I message her goodnight, we message back and forward, I take her out for breakfast on the weekend, I take her shopping. You know, yeah, we just, I took her last weekend. We went to breakfast at Café Primo because she likes the Nutella pancakes there and then we went for a walk around the plaza. She wanted me to buy her some clothes and some new bathers because she had been asking her father and he had refused.

    …

    [AD] rang me within an hour of leaving when she could come home and could she come home straightaway. I told her that I needed to speak to [KMF] about it and that I would get back to her. I said that I'd had a board meeting that I needed to attend. I couldn't cancel it at the last minute and I said to her I would talk to [KMF], we would think about it and I would get back to her after the board meeting. [KMF] and I spoke about it and [KMF] said that [AD] could come home as long as she stayed in her room and away from him because he was very angry with her but he was prepared to have her home for me. She, I rang and spoke to her after my board meeting and I spoke to [AJ] and I said 'This is this is what we've decided what do you think?', and he said 'I'm fine with that'. I said I'll pick her up tomorrow after school. He said 'Okay fine'. The following day [AD] didn't go to school, [AJ] kept her home, and so I said to him 'Well, I'll pick her up from gymnastics', so that it's we didn't have to worry about running back and forward.

30. NF said that she and AD are in daily contact via text message and that there has been no period since 17 February 2021 in which she was estranged from AD or any period where she would describe her relationship as having broken down.

31. NF said that when AD came into the study, she did not say where the accused had touched her inappropriately. She denied having hit AD in response to her telling her mother about the touching.

32. NF said that she thought AD had said something along the lines to AJ that ‘he also touched me on the bum’.[157]

    [157] T 242.19.

33. In her evidence regarding AD telling AJ what happened, NF said AJ was standing right next to her at the letterbox. AJ then proceeded to ask AD if she wanted to get an ice-cream and said he could bring her back afterwards. NF said she told him that no, he needed to take her. This was, she said, because AD had said to her ‘I’m sorry Mum, I don’t want you to be angry’.[158]

    [158] T 239.23-24.

34. Later in her examination NF said that by the letterbox AD was telling her that she was sorry and loved her and wanted just to make her mad. AJ then said he would take her for ice cream and bring her back. NF told him no, ‘we need time out, everybody needs time out, just take her’.[159] AD asked her why she did not believe her.[160] NF said she told AD that if she wanted her to believe her, she would, and they would go to the police. NF again asked AJ to take AD because they needed time out.[161] AD turned to her father and said something about ‘I think he touched me on the butt’. NF said ‘If that’s the case then we need to go to the police and we need to go to hospital’.[162]

    [159] T 239.25-26.

    [160] T 242.28-29.

    [161] T 242.34.

    [162] T 242.36-38.

35. AD had spoken about touching her under her top or on her chest, when they were at the front door. She said ‘He touched me under my top’ and NF asked her ‘Are you sure his hand didn’t slip when he was holding you.’[163] That was not at the letterbox, it was at the front door and AJ was present.

    [163] T 243.3-5.

36. When I asked NF why it was that she told the child she might have to go to hospital, NF said:[164]

    [164] T 243.14-21.

    Because I was doing the child protection module at that time and we had gone through what to do in child disclosure and if a child has disclosed sexual abuse that they go, you do a hospital examination, a forensic hospital examination as well. That was - and I thought well, if she has said that this is true and she wants - as her mother, I believe her and we will go through the motions and we will get to the bottom of this.

1. NF said that on the occasions when AD would fall asleep in her bed, she would sometimes fall asleep as well. NF said that 99 percent of the time she would wake up when the accused came in to get BD or AD to their room, but she would not watch the accused take AD to her own bed. She would roll over and try and go to sleep.

   Cross-examination

2. NF agreed that the accused did not take an active parenting role with her children. She would get the children ready for school and take them to and from school. She would help them with their homework and cook dinner. She would get them ready for bed. She parented the children. The accused would never assist her with any of those tasks. There would only be odd occasions when he assisted.[165]  He would not help with checking the children’s homework or checking whether they were doing their homework. He never did that once. It was only on occasional times that he would drop or pick up the children after she was going through treatment. She said that even while she was going through treatment, and despite being sick, she was adamant that she was going to continue her parenting role when the children were home with her, and she did.[166]

   [165] T 255.

   [166] T 256.

3. NF said that once the children had fallen asleep, the accused would pick them up and take them to their beds when she was going through cancer treatment. When they slept in her bed when she was not going through cancer treatment, she would put them to bed. Her treatment finished on 9 November 2018.[167] She then said that the accused would do it at other times, other than during cancer treatment, but not very often.[168]

   [167] T 262.

   [168] T 263.

4. NF agreed that the argument started over AD’s phone. There was a further argument once inside the house. When asked what the further argument was about, NF said that it was still over AD’s phone and her electronics. It was not just her phone. She had changed passwords on her other electronics.[169]

   [169] T 264.

5. NF was questioned about the detailed description she had given in her evidence the previous Friday and accepted that she had not made mention about a password or any other electronics. When it was suggested to her that she was just adding to her evidence NF said ‘No, but I’m quite happy to retract it’ and denied having discussed the evidence with any other witnesses.[170]

   [170] T 265.12-17.

6. NF maintained that in the study, AD had said ‘By the way, [the accused] has touched me inappropriately’ and had not given any further detail.[171] When they were at the front door AD said he had put his hand up her top. At the letterbox AD said that [the accused] had touched her on the bottom as well. She denied slapping AD in the study.[172]

   [171] T 266.2-9.

   [172] T 267.27.

7. When she had told AD that she might go to the hospital AD turned around and started crying and told her that she was sorry and that she was trying to make her angry with the accused because she was angry with her.[173] NF said that she had a Masters in social work and had done extensive child protection training. She was a mandatory reporter. She said that she did not report the information she had received because this was not in the line of employment.[174]

   [173] T 266-267.

   [174] T 267.

8. NF was asked about the assistance she had sought for the behavioural difficulties she said AD experienced. She said that the program that she and her children attended through Relationships Australia was directed towards dealing with a child’s separation anxiety. AD and BA both attended that program with her.[175] AD did not see a psychologist as AJ would not provide his consent. NF denied that she was describing AD’s behavioural issues as more serious than they in fact were.[176]

   [175] T 269.

   [176] T 271.5-12.

   Evidence of Anita Busato

9. Ms Busato is a Senior Constable First Class police officer stationed at Holden Hill Police Station. Ms Busato worked with the accused in the domestic violence section of the SAPOL. She first met the accused in the early 1980’s when she was at the Para Hills police station as a patrol member. Ms Busato described the accused as having a very strong work ethic. She described his work as of a high standard and held no concerns about his honesty. She said that his reputation was as a man of honesty and integrity.[177] He is very professional in his work and his work is of a high standard. She had never known him not to uphold the standards of a police officer.

   [177] T 280.

   Prosecution address

10. Ms Benson for the prosecution submitted that I could accept AD as an honest and reliable witness who was doing her very best to tell the truth to the best of her ability.[178] She was consistent across her interviews and during her evidence in trial and made corrections when details were put that were wrong.

    [178] T 297.14-17.

11. The evidence of RW about the disclosures AD made are consistent with what AD said in her evidence. AJ’s evidence supported certain aspects of AD's evidence. AD made appropriate concessions in her evidence when asked by defence about her behaviour and agreed to things that would have been embarrassing for her like how she would get angry and how she would hit her mother in response to being hit.[179]

    [179] T 298.

12. Any inconsistencies in AD’s evidence related only to collateral issues. Her delay in disclosing the matters she spoke to police about in December 2021 was, in the circumstances, understandable.

13. Neither AD nor AJ agreed that AD had told her mother that she had been lying to make her mother angry.[180]

    [180] T 301.

14. NF’s evidence that AD was very badly behaved since she was very small was not wholly supported by BA or AJ and such behaviour might be thought not unexpected from a child who had been offended against in the way AD described or living in what the prosecution described as an unsupported environment.[181]

    [181] T 302.

15. Even accepting AD’s behaviour was as bad as portrayed by her mother, that did not mean she was not being truthful as to the allegations against the accused.[182] It was never put to AD that the argument on 17 February 2021 had something to do with her not providing a password, or that it had anything to do with any other device or her homework.[183]

    [182] T 303.22-25.

    [183] T 304.3-6.

16. While it might be suggested that RW was not really a close friend at the time or had only recently become friends with AD again, RW was her longest and ‘best’ friend and they still spoke.

17. The prosecution submitted that in relation to the accused and NF’s evidence, there were a number of inconsistencies that would give rise to concern.

18. Despite their desire to create the image of the accused having no involvement, it is clear from their evidence that the accused was far more involved in the children's lives than either were trying to suggest. NF was unwilling to admit to the involvement in the children’s lives to the same extent described by the accused.[184]

    [184] T 306.

19. The video of AD taken by the accused shows an upset child initially being held by her mother by both arms and shaken with both hands. It shows a child who is upset, who is clearly distressed and her mother accusing her of behaviour which she is clearly denying.[185]

    [185] T 308.

20. While the accused and NF described in detail AD’s very bad behaviour, there was, the prosecution submitted, no genuine attempt to get any meaningful assistance for AD, with the support sought by NF directed towards her own mental health. No application was made to the Family Court to vary the orders and it was never put to AJ that he had somehow been obstructive in allowing treatment to be obtained for AD.[186]

    [186] T 309.

21. Given the inconsistencies within the evidence of the accused and NF, and with the evidence of other witnesses, the prosecution submitted that I would have difficulty in finding either to be a credible witness.[187]

    [187] T 310.2-7.

22. The accused’s descriptions as to how he carried the children were inconsistent with how both AD and BA described being carried.[188]

    [188] T 310.12-14.

23. When NF was cross-examined on the topic of AD falling asleep in her bed and being carried she contradicted herself, first of all saying that the accused only carried AD to bed when she was having her cancer treatment, and when pressed on this not being disclosed in her evidence in-chief she contradicted herself a number of times and appeared to be avoiding the question.[189]

    [189] T 311.5-8.

24. The accused’s evidence that the argument at the house started in relation to a password not being provided was not put to AD, and NF mentioned this only in cross-examination. When pressed, NF offered to retract that evidence.

25. The prosecution submitted that AD’s alleged use of the word ‘inappropriately’ appeared inconsistent with the way AD presented in all of her other evidence before the court, where she used child-like language.[190]

    [190] T 312.

26. AJ was never given an opportunity to respond to NF’s assertions regarding what he said to NF when told of the allegation AD had made to her, which was, in the prosecution submission, another example of NF elaborating in an attempt to do whatever she thought would work in achieving the accused to be found not guilty.[191] 

    [191] T 313.

27. Although NF described a great relationship with her daughter, AD said it had only been like that for one or two months prior to trial.[192]

    [192] T 313.27-30.

28. The prosecution urged me to reject any suggestion that AD was a child who lied.[193]

    [193] T 316.30-32.

29. In accepting her as an honest and credible witness, I would therefore accept that what AD said about the accused’s behaviour on the four occasions that give rise to the five counts on the information, was an honest account of what in fact happened and would have no difficulty in finding beyond reasonable doubt the accused guilty of all five counts of aggravated indecent assault.[194]

    [194] T 317.

    Defence address

30. Mrs Powell for the defence submitted that AD’s evidence was unsatisfactory in every material particular and unsatisfactory in that there was very little elaboration on the bare summary of the prosecution allegations.[195]

    [195] T 320.

31. AD said the offending took place probably near the end of 2019, and unsurprisingly, she could not identify dates or landmarks other than her mother having recovered from being sick and her mother's hair starting to grow back. NF’s evidence was that her hair began to regrow at the end of 2018.[196]

    [196] T 322.

32. The initial complaint was more than a year after the alleged offending, and perhaps nearly two years later.[197]

    [197] T 322.29-34.

33. While defence counsel did not suggest that there was a lack of opportunity for the accused to have offended as alleged, she argued that that there was a direct contradiction to AD’s evidence by NF who said that in 2019 AD was not sleeping in her bed, because NF was working on her laptop with AD in AD's bed.[198]

    [198] T 325.

34. Defence counsel submitted that in this case there was no evidence of an attraction outside of the charged acts, no grooming or particular fondness or affection or closeness between AD and an accused. There was no evidence that the accused favoured AD in any way, so there was no foundation for the accused to think he could commit such acts without the risk of an immediate complaint.[199] The acts were said to have been committed after AD had been asleep. She said she woke and by her movement would have made it very plain to the accused that she had awoken. The accused said he was careful, trying not to wake her, because when she did wake, extra effort was required in getting her back to sleep. It was the nature of the relationship, that is, a remotely involved stepfather with AD to whom no favour had ever been shown that rendered the allegation less likely to have occurred.[200]

    [199] T 326-327.

    [200] T 327.

35. The defence submitted that the allegations themselves lacked plausibility. AD’s bed was in NF’s line-of-sight and the distance between the two places was very short. While NF did not assert that she kept the accused in sight when he moved AD, it would have been the most brazen act to touch indecently AD in circumstances where the accused knew there was a possibility of detection.[201] The defence submitted there was an inherent unlikelihood that any offending occurred on the way to the bed or in the bed, particularly as the risk of immediate outcry from AD was considerable and which would have been heard by her mother in a room nearby.

    [201] T 329.

36. Defence submitted that evidence adduced on the defence case about AD's behavioural issues was relevant to the assessment of her evidence and to show she was affected by the parenting arrangements ordered by the court over which she had no control.[202]

    [202] T 330.

37. Defence submitted that AD’s reason for her late disclosure was a fiction in that how would a 10-year-old child discern that a trip to hospital would be required because you allege you were touched on the butt, as opposed to the nature of the allegations made earlier.

38. It was submitted that overall, the evidence of the argument on 17 February showed that AD minimised her own behaviour, exaggerated the behaviour of others to cast them as villains and was also prepared to lie. Significance was placed on the evidence in relation to the broken television which was said to have occurred when IB was present. Defence submitted that there was no way to view AD’s evidence as to how the TV in her bedroom broke in February 2021 as anything other than a lie. AD had shown, defence submitted, a willingness to lie and to deny responsibility for her behaviour.

39. More than just showing that AD had a willingness and a capacity to lie, defence submitted, along with those other untruths concerning the events of 17 February, that AD cannot be accepted as a witness of truth.[203]

    [203] T 338.7-8.

40. Defence counsel questioned what prurient reward a person would gain from rubbing the flat chest of an eight or nine-year-old child and that overall, the circumstances of the alleged offending did not give rise to an obvious inference that the touching was deliberate or for prurient purposes.[204]

    [204] T 338.

41. It was open that any touching that AD perceived when she was being moved was innocent as she was being carried to her bed and simply exaggerated and embellished to turning into something of prurience.[205]

    [205] T 338.33-38.

42. Defence submitted that the accused was calm and straightforward, giving cogent and compelling evidence of what happened.

43. NF was described as a conflicted mother of a child who had raised allegations of sexual abuse against her own husband and evidence that supports a partner in preference to a child who has complained of sexual offending against their partner, will undoubtably come under close scrutiny.[206]

    [206] T 339-340.

44. It was submitted that NF loves her daughter and has maintained a loving, warm relationship with her ever since the allegations came to light and right up until the trial.[207]

    [207] T 341.

45. The complaints to RW and then some weeks later to NF, are tarnished by the circumstances of how they emerged and accordingly little weight could be attached to them.[208] The prosecution had not excluded the reasonable possibility that AD had taken some innocent conduct of carrying her to bed at night and claiming that that touching was indecent by way of exaggeration and embellishment to her new friend.[209]

    [208] T 342.

    [209] T 343.

46. In conclusion, defence argued that there was a lack of detail accompanying the acts, ambiguity as to whether any touching was committed in indecent circumstances, AD’s unsatisfactory evidence, unsupported as it was in material ways by other witnesses, including witnesses for the prosecution and AD’s demonstrated willingness to lie on oath in court.

47. The accused is a person of prior good character, a police officer whose job requires the highest standard of ethical, moral and professional conduct.

48. The allegations were said to lack cogency and credibility. AD’s evidence was tarnished and it could not be excluded beyond reasonable doubt that no touching occurred in the way described by AD in circumstances of prurience.[210]

    [210] T 344.

    Analysis

49. Much was made by the accused and NF about AD’s behaviour in this trial, and given that emphasis I will, later in my discussion, address that evidence in some detail.

50. I found that AD was a credible witness, doing her best to accurately describe what she perceived as the accused touching her on the chest, genital and bottom areas when he carried her to bed. In her recorded interviews and cross‑examination, there was no hint that AD was exaggerating or seeking to make things worse for the accused. She presented as a sincere 10, and later 12-year-old child who spoke with candour.

51. The defence placed much emphasis on AD’s evidence that she broke the TV when a friend was present, which, defence argued showed that AD had both a willingness and capacity to lie and fabricate a story such that I should not have any faith in her evidence. In my view, the evidence that AD gave was not so far from the truth, that is that she was actually on the phone to that friend, such that it would cause such a fundamental loss of faith in the evidence of a 12-year-old child.

52. BA presented as a rather anxious witness who was doing his best to answer police and counsel’s questions. His evidence was of assistance to me insofar as it concerned his sister’s behaviour and in particular, when it was that her behaviour had become more difficult. He agreed that his sister had behavioural issues but did not portray those difficulties to have been as longstanding or severe as represented by his mother or the accused. His question to counsel as to whether counsel was referring to friends having been present when AD broke the television, raised with me some concern that he may have been spoken to by the accused or his mother at least as regards that incident.

53. I accept that AD complained to RW as she described and accept that RW was a truthful and reliable witness.

54. AJ presented his evidence in a straightforward manner and demonstrated no ill-will towards either the accused or NF. His description of the behavioural difficulties he saw in his daughter were balanced and I have found his account of the events once he arrived to collect AD to be entirely credible. There was no suggestion he had any particular agenda for either the prosecution or defence when describing the events or conversations that took place.

55. I found both the accused and NF to be unimpressive witnesses and am unable to accept either as credible or reliable.

56. There were concerning features in NF’s evidence. She was prone to giving speeches and gave evidence in a self-righteous manner, seeming to make every effort to undermine her daughter’s credibility. She had little if anything positive to say as regards her daughter. While I accept that any mother who supports their partner in defence of sex abuse allegations by their child against their partner is, as defence counsel submitted, in an invidious position, it was in my view plain that NF was determined to portray her daughter in such a negative way to assist the accused in his defence.

57. As someone who proudly represented herself as having expertise in child protection to have managed the complaint by her daughter as she did, even had she had doubts about its veracity, is difficult to comprehend and showed in my view a limited understanding in relation to appropriate responses to a child who discloses abuse. Her decision to respond to the allegation by advising AD that she would go to police and or hospital, for someone of her education and training was troubling, as was her resort to smacking AD, even if I were to accept that it occurred in response to AD’s wish for her mother to die. I have found NF’s resort to physical violence against AD, even on NF’s version of the events, alarming.

58. NF’s evidence that AD told her that the accused touched her ‘inappropriately’ is so inconsistent with my assessment of the level of AD’s level of sophistication as to be totally implausible. NF’s evidence as to the state of her ongoing relationship with AD was not consistent with her efforts to undermine her daughter’s credibility at trial and I note AD’s observation that more frequent contact with her mother had only occurred more recently, apparently closer to the trial date such that I am suspicious of NF’s motives

1. I note there were inconsistencies between NF and the accused regarding their evidence concerning the events on 17 February. Of particular concern was the accused’s evidence regarding checking AD’s homework, which NF said had never occurred, and NF’s addition in cross-examination to a password issue when she returned to court after an intervening weekend. Evidence which she ultimately offered to retract. Neither the homework or password issues were put to AD for her response.

2. The accused and NF provided a very different impression of the level of involvement that the accused had in the lives of NF’s children. While I accept that an individual may see their contribution to the family differently, here there were markedly different perspectives. 

3. The accused was also prone to give speeches and on occasion gave the impression that his answers were rehearsed. He was very keen to portray AD as a child who was often both uncontrollable and untrustworthy, going so far as to seek to demonstrate AD’s behaviour by recording an occasion where AD was arguing with her mother. In my view, the recording showed nothing more than an angry mother, who appeared ill-equipped to manage an equally distressed angry child who screamed back. It is pertinent to note that it was AD who removed herself from the situation. The recording, its purported purpose, and the accused’s reliance upon it at trial reflected poorly upon him.

4. My impression of the accused’s responses to AD’s poor behaviour by smacking her and putting her skateboard in the rubbish can only be described as punitive and rather inept.

5. While I accept that AD is a child with anger and behavioural issues, I cannot accept that if those difficulties were as severe or longstanding as both NF and the accused represented, more was not done to get AD help in dealing with the separation of her parents and later her mother’s no doubt very distressing cancer diagnosis. To say that AJ had not given his consent to any psychological intervention was difficult to accept given he was given no opportunity to respond to the allegations made as regards such refusal, or how the relevant parenting agreement came about. The evidence of both NF and the accused on this issue reflected poorly on them both.

6. I accept the accused is a man of previous good character and someone who is held in high regard by his colleagues. I have however found that the accused made such a deliberate attempt on his part to undermine AD’s evidence and was so unbalanced in his perspective that I can have no faith in his evidence more generally.

7. I have reminded myself that even in rejecting the accused’s evidence, I must return to the prosecution case and be satisfied of the credibility and reliability of AD’s evidence and satisfied beyond reasonable doubt of the charged offences.

8. I have assessed AD’s evidence carefully and while she has given an account of what she believes took place, there is little contextual detail surrounding the alleged offending. Consequently, I have been left with some uncertainty as to when and how the alleged offending took place. That uncertainty is particularly relevant to the timing of the complaint she made to RW, which although consistent with her other evidence, came at a time when there appeared to have been a recent change in friendships, and against a background of friendship issues. In those circumstances I have been unable to accept that the complaint evidence assists in my assessment of AD’s evidence. 

9. While NF’s response to her daughter’s disclosure that she would need to go to the police or hospital would no doubt have been frightening for a child of AD’s age and totally unhelpful in such a scenario, and although AD perhaps thought that the later disclosed behaviour was more serious and likely to involve hospital, I accept it would be unlikely for a child to be able to distinguish between behaviours that would require a hospital visit and those that would not. There were concerns about AD’s wellbeing around the time of the later disclosure when AD appeared to be struggling. DBS Brown questioned AD in a friendly and supportive manner and despite a home environment that might be thought to be unsupportive and prone to conflict at the time of the first and second interviews, I have found it difficult to accept the reasons she gave for the delay.

10. The alleged offending as described by AD was unsophisticated, opportunistic, and did not escalate. There has been no suggestion that there was any grooming conduct by the accused.  I reject the defence submission that I should question what prurient reward a person would gain from rubbing the flat chest of an eight or nine-year-old child as naïve, however the description AD gave as to how the accused carried her to bed, that is, like a baby, would in my view have made it difficult for him to have touched AD in the manner she has alleged while walking the short distance from one room to the next. While I formed a favourable impression of AD’s evidence, I have been left with some uncertainty as the accuracy of her assessment of the accused’s behaviour, particularly given it occurred immediately after having been asleep and then woken. I have been unable to exclude as a reasonable possibility that AD was mistaken as to the nature of the accused’s touching her in carrying her to her bed. I cannot be satisfied that AD had not misunderstood or inaccurately perceived the accused touching her as something sinister.

11. I find the accused not guilty of all counts.