R v KMP
[2024] SADC 100
•23 August 2024
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KMP
Criminal Trial by Judge Alone
[2024] SADC 100
Reasons for the Verdicts of his Honour Judge Handshin
23 August 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
The accused is charged with sexual offending against three of his nieces, KH, NV and AP. Count 1, which was alleged to have occurred in or around 1981/1982, involved an allegation that the accused, who was staying overnight at KH’s parents’ house, caused KH to masturbate his penis after calling her over to his sleeping bag which was set up in the lounge room of the residence. KH also alleged that, some years earlier, the accused had pressed his penis into her back as he sat behind her during a horse ride at the accused’s parents’ Riverland property. Count 2, which was alleged to have occurred in or around 1990/1991, involved an allegation that the accused incited or procured NV, who was then 11 or 12 years old, to touch his penis, after she discovered him masturbating. No further offending against NV was alleged. Count 3 related to four discrete episodes of alleged offending committed against AP, the youngest of the three complainants, between 2002/03 and 2005/06. The particularised unlawful sexual acts included digital penetration, fellatio, indecent assault and an act of gross indecency.
The prosecution also led evidence from the younger sister (CS) of the accused’s brother’s wife, who gave an account of the accused forcing her hand down his pants in the lounge room of the Riverland property, in the mid-1970s when she was 7 or 8 years old.
The evidence of the complainants and CS was said to be universally cross admissible for improbability and propensity reasoning.
The accused was arrested and charged in March 2021. He participated in an interview with police during which he denied the allegations of KH, NV and AP. As to the allegations of CS, the accused agreed that there had been an incident between him and CS in the lounge room of the Riverland property, during which he claimed that CS told him she wanted to have sex with him.
Held:
The evidence of CS, KH and NV was cross admissible on a similarity of account basis. The evidence of CS, KH and NV was not cross admissible for a propensity use. The evidence of AP, which was qualitatively dissimilar to the accounts of CS, KH and NV in various material respects, was not cross admissible in respect of counts 1, 2 or the uncharged incident involving CS, and vice versa.
The prosecution has disproved collusion and contamination beyond reasonable doubt.
Notwithstanding inconsistencies and various shortcomings in their accounts, the complainants were credible, reliable and convincing witnesses. The accused’s denials in his record of interview can be rejected as not reasonably possibly true.
The elements of each offence are proved beyond reasonable doubt. The accused is guilty of counts 1, 2 and 3.
Criminal Law Consolidation Act 1935 (SA) ss 49(1), 49(7), 50(1), 50(12), 56, 58(1)(a) and 58(1)(b); Evidence Act 1929 (SA) ss 34CB, 34L(2)(a), 34M, 34P, 34R and 34S; Statutes Amendment (Child Sexual Abuse) Act 2021 (SA) ; Uniform Evidence Acts s 97; , referred to.
Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531; R v Dookheea (2017) 262 CLR 402; De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100; R v Alwazan [2016] SASCFC 155; Liberato v The Queen (1985) 159 CLR 507; Robinson v The Queen (No 2) (1991) 180 CLR 531; Stafford v The Queen (1993) 67 ALJR 510; JGS v The Queen [2020] SASCFC 48; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257; R v T, WA (2014) 118 SASR 382; R v R, PA [2019] SASCFC 19; Angus (a pseudonym) v The King [2024] SASCA 101; Bates v The King [2023] SASCA 65; Ayles v The Queen (1993) 66 A Crim R 302; R v Castiglione (1962) 63 SR (NSW) 393; Attorney-General's Reference (No.1 of 1975) [1975] Q.B. 773; JJP v The Queen [2021] SASCA 53; R v Bonython-Wright (2013) 117 SASR 410; MDM v The Queen (2020) 136 SASR 360; R v C, CA [2013] SASCFC 137; Slape v The Queen [2022] SASCA 91; McRoberts v The King [2024] SASCA 92; R v Marshall [2023] SASCA 105; DES v The Queen [2020] SASCFC 32; Phillips v The Queen (2006) 225 CLR 303; Hughes v The Queen (2017) 263 CLR 338; McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045; TL v The King [2022] HCA 35; (2022) 275 CLR 83; The Director of Public Prosecutions v Benjamin Roder (a pseudonym) [2024] HCA 15; JS v The Queen [2022] NSWCCA 145; Hofer v The Queen (2021) 274 CLR 351, [2021] HCA 36; Rout v The King [2024] SASCA 72, considered.
R v KMP
[2024] SADC 100Criminal Jurisdiction
The accused is charged on Information with the following offences allegedly committed against three of his nieces who I will refer to as KH, NV and AP:
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 17th day of June 1980 and the 16th day of June 1982 at Osborne, indecently assaulted [KH] by causing her to masturbate his penis.
Second Count
Statement of Offence
Inciting or Procuring Gross Indecency. (Section 58(1)(b) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 13th day of February 1990 and the 12th day of February 1992 at Moorook, incited or procured the commission of an act of gross indecency by [NV], a person under the age of 16 years, with [KMP], by causing her to masturbate his penis.
Third Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 1st day of January 2002 and the 1st day of January 2006 at Moorook, maintained an unlawful sexual relationship with [AP], a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards her, namely:
(a) Inserting a finger or fingers into [AP’s] vagina on more than one occasion;
(b) Procuring [AP] to touch his penis on more than one occasion;
(c) Masturbating in [AP’s] presence on at least one occasion.
(d) Procuring [AP] to perform an act of fellatio upon him on at least one occasion.
In the alternative to Count 3, [KMP] is charged with the following offence:
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 1st day of January 2002 and the 1st day of January 2004 at Moorook, had sexual intercourse with [AP], a person under the age of 12 years, by inserting a finger or fingers into her vagina.
In the alternative to Count 3, [KMP] is charged with the following offence:
Fifth Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 1st day of January 2002 and the 1st day of January 2004 at Moorook, indecently assaulted [AP] by causing her to masturbate his penis.
In the alternative to Count 3, [KMP] is charged with the following offence:
Sixth Count
Statement of Offence
Committing an Act of Gross Indecency. (Section 58(1)(a) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 1st day of January 2003 and the 1st day of January 2005 at Moorook, committed an act of gross indecency in the presence of [AP], a person under the age of 16 years, by masturbating in the presence of [AP].
In the alternative to Count 3, [KMP] is charged with the following offence:
Seventh Count
Statement of Offence
Unlawful Sexual Intercourse with a Person under 12 years. (Section 49(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[KMP] between the 1st day of January 2005 and the 1st day of January 2006 at Moorook, had sexual intercourse with [AP], a person under the age of 12 years, by causing her to perform an act of fellatio upon him.
Counts 4, 5, 6 and 7 are alternatives to count 3.
The accused pleaded not guilty to the charges and elected to be tried by a judge sitting without a jury. I now publish my reasons for the verdicts that I deliver.
The prosecution case
The accused was one of seven children born to TP and BeP. The accused grew up on the family property at Moorook, in the Riverland, where all but one of the offences with which he is charged are said to have been committed. His eldest sister, JP, is the mother of KH, who is in turn the eldest of the three complainants, having been born in June 1969. The accused’s older brother, WP, is the father of NV, the second oldest complainant, who was born in February 1979 and the accused’s younger brother, RP, is the father of AP, the youngest complainant, who was born in September 1996.
The family tree set out below may assist to help visualise the relationships between the various witnesses and others referred to in the course of the evidence, and is derived from exhibit P1.
TP married BeP
Parents of seven childrenThe charges relate to a number of discrete episodes of abuse allegedly occurring between 1981/1982 and 2005/2006.
Count 1 is alleged to have occurred in or around 1981/1982 when KH was 12 years old and the accused was 22-23 years old. The prosecution case is that during an overnight stay by the accused and his parents (KH’s grandparents) at KH’s family home in Osborne, the accused called KH over to his sleeping bag, which was set up in the lounge room, after she got up during the night to get something from the kitchen. It is alleged that after KH got into the accused’s sleeping bag, the accused placed KH’s hand on his penis and made her stroke his penis for two minutes, after which KH returned to her bedroom. KH gave evidence that the following morning, her father, CB, spoke to her about finding the accused in her bedroom. It was the prosecution case that KH thereafter complained to her mother, JP, that the accused ‘did stuff to me last night’, but nothing came of the complaint.
CB gave evidence on the prosecution case about an occasion when the accused and his parents stayed at Osborne. CB described an unusual occurrence of finding the accused behind the door to KH’s bedroom on this particular evening. This was the subject of discussion the following day between CB, his wife JP, and KH and served to link the incident described by KH with the occasion about which CB gave evidence.
KH’s mother, JP, also gave evidence on the prosecution case on the topic of initial complaint. Contrary to KH’s evidence, JP[1] said that KH did not make a complaint to her about the accused.
[1] To maintain consistency with the family tree set out earlier, I will refer to JP using her maiden initials and not her married initials of JB.
Count 2 is alleged to have occurred in or around 1990/1991 when NV was 11 or 12 years old and the accused would have been 32-33 years of age or thereabouts. The prosecution case is that during a visit by NV and her family to her grandparents’ property at Moorook, where the accused also lived, NV came across the accused masturbating in the lounge room. The accused said something to NV and she approached him. It is alleged that the accused then procured or incited NV to touch and stroke his penis for a few seconds before NV left the lounge room.
Count 3, and its alternatives, are alleged to have occurred between 2002/2003 and 2005/2006, when AP was aged between six and 10 years old. Again, the offences are alleged to have been committed on occasions that AP and her family stayed at the Moorook property. Count 3 concerns four discrete episodes about which AP gave evidence.
The first is alleged to have taken place when AP was six years old. The accused told AP he wished to show her something. She accompanied him to his bedroom where the prosecution allege that he digitally penetrated AP.
The second incident is alleged to have taken place around a week later and during the same stay at Moorook. The prosecution case is that, on this occasion, AP saw her uncle driving some farm equipment into a shed on the property, prompting her to essentially investigate what he was doing. AP entered the shed whereupon the accused approached her with his penis exposed and had her masturbate him for a period of time.
The third incident is alleged to have taken place around a year later, when AP was seven years old. On this occasion, the accused is alleged to have taken AP to an old shed on the Moorook property and masturbated to ejaculation in her presence.
The final incident is alleged to have occurred some years later, when AP was nine or ten years old. The prosecution case is that on one night during this stay at Moorook, AP got out of bed to use the toilet, the entrance to which was directly across from the accused’s bedroom door. On her way back to her bedroom, AP saw the accused standing in the doorway to his room. He told her to ‘suck his dick’. AP complied and performed fellatio on the accused before running to the toilet and vomiting.
No evidence of initial complaint was led other than in respect of count 1 and, as I have said, there was a conflict in the evidence of KH and her mother JP on this topic.
In addition to the evidence of the complainants, the prosecution also led evidence from CS – the younger sister of JMP, who married one of the accused’s brothers. CS gave evidence about an uncharged incident involving her and the accused and which was said to have taken place at the Moorook property in or around 1975 or 1976, when the accused invited CS to look at some kittens in the lounge room of the property. CS was seven or eight years old at the time. She accompanied the accused into the lounge room where the accused asked CS to lay on a sofa with him, which she did. The accused is alleged to have grabbed CS’ hand and put it down his pants and in contact with his genitals. The accused then asked CS to ‘show yours’ at which point she shouted ‘no’ and left the room.
The allegations against the accused appear to have primarily come to light in around 2018/2019, in the aftermath of the funeral of one of the accused’s brothers, LSP. Thereafter, KH, NV and AP made disclosures to each other about abuse allegedly perpetrated by the accused in circumstances that it will be necessary to set out in some detail.
A brief chronology of the charged and uncharged acts, and the age of the accused, the complainants and CS at the relevant times, is as follows:
16 September 1958
Accused’s date of birth.
29 March 1968
CS’ date of birth.
17 June 1969
KH’ date of birth.
June 1974-June 1977
Horse riding incident (uncharged) involving KH (5-7yo) and the accused (16-18yo).
1975/1976
Uncharged incident involving CS (7-8yo) and the accused (16-18yo) in the lounge room at Moorook.
13 February 1979
NV’ date of birth.
1981/1982
Count 1 involving KH (12yo) and the accused allegedly occurs at Osborne.
1990/1991
Count 2 involving NV (11-12yo) and the accused allegedly occurs at Moorook.
16 September 1996
AP’ date of birth.
2002/2003
Count 3 (particulars (a) and (b)) involving AP (6yo) and the accused (44-45yo) allegedly occur at Moorook.
2003/2004
Count 3 (particular (c)) involving AP (7yo) and the accused (45-46yo) allegedly occurs at Moorook.
2005/2006
Count 3 (particular (d)) involving AP (9-10yo) and the accused (47-48yo) allegedly occurs at Moorook.
31 March 2021
Accused arrested.
The defence case
Much of the background evidence given by KH, NV and AP concerning the time they spent with the accused and family visits to Moorook (and, in KH’s case, the accused visiting Osborne with his parents) was not in dispute. The evidence of other witnesses called by the prosecution – CB, JP and RP, was not challenged in cross examination.
The defence case did however challenge the credibility and reliability of the evidence of the complainants and CS as to the alleged offending (charged and uncharged). In short, the defence case was that none of the alleged sexual acts occurred and that the evidence of the complainants and CS was unreliable having regard to the lengthy passage of time between the events the subject of the charges and the trial and their young age at the time of the events about which they gave evidence. The defence also challenged the credibility and reliability of the complainants’ evidence on the basis of inconsistencies in their accounts; as between their accounts and having regard to the asserted implausibility of aspects of their evidence.
It was also argued that the circumstances in which the complainants came to disclose to each other their allegations of abuse, and variations in their evidence as to the nature and extent of the ensuing conversations they had, gives rise to the possibility that their memories, and hence their evidence as to the charged acts, has been contaminated. Although counsel for the accused expressly disavowed any suggestion of collusion,[2] it remains necessary for the prosecution to disprove collusion beyond reasonable doubt.
[2] T311.
There was no suggestion that CS had been involved in any such conversations.
No application for severance of any count on the Information was made by counsel for the accused.[3]
[3] That is unsurprising given the nature of the defence case. See, for example, Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 274 CLR 531.
Finally, the defence relied on the accused’s denials of any wrongdoing during his interview with police, following his arrest. The accused was 62 at the time of his arrest.
It is convenient at this point to set out what the accused said during his interview. The accused’s denials during his interview are to be approached in the following way. The burden of proving the charges beyond reasonable doubt rests on the prosecution. The accused has the presumption of innocence in his favour and does not have to prove anything. I do not have to believe the accused’s denials for there to be a reasonable doubt. If the accused’s denials are even reasonably possibly true, the prosecution will have failed to prove its case. [4] Even if I reject the accused’s denials as not reasonably possibly true, it would not follow that the prosecution has proved one or more of the charges. The accused can only be convicted if I reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt that the elements of the offences have been proved based on the evidence of KH, NV and AP respectively.
[4] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11]; R v Alwazan [2016] SASCFC 155, [3].
I will assess the accused’s demeanour, credibility and reliability in his interview with the police in the same way as I assess the evidence of all other witnesses.[5] I give the accused credit for answering police questions in circumstances where he was not obliged to.
[5] Robinson v The Queen (No 2) (1991) 180 CLR 531, 535-536; Stafford v The Queen (1993) 67 ALJR 510; Hargraves v The Queen [2011] HCA 44; (2011) 245 CLR 257.
Detective Rethus, the investigating officer, gave evidence that the accused was arrested on 31 March 2021 and charged with the offences now before me, after voluntarily attending at the Berri Police Station in response to a request by Detective Rethus. The accused participated in an interview with police. A recording of the interview was tendered (P13) and a transcript provided as an aide memoire (MFIP13A). It was, of course, open to the accused to decline to answer police questions but he chose to do so and, as I say, I give him credit for taking a course he was not obliged to take.
After the allegations were introduced to the accused broadly early on in the interview, the accused told Detective Rethus that his niece had been ‘hassling me all on the phone all the time…on Facebook all the time. Yeah it’s pretty bad’. He said further that his niece had attended his house after midnight on an occasion and wrecked his door and thrown a brick through the kitchen window and tried to break into his shed. It later became apparent the accused was referencing his niece, TLP, who, it will be seen, was involved in some of the discussions between KH and AP about the allegations before me. When the accused was told that ‘this is not…anything to do with [TLP]’, he responded, with apparent surprise, ‘oh’. The accused later commented that he was not allowed to attend his brother’s funeral because of TLP and H – which would seem to be a reference to the funeral of his brother LSP, which assumes a significance in terms of the disclosure amongst the complainants of their respective allegations and which I will come to in due course.
I pause here to indicate that I have not drawn any inference adverse to the accused from what he described in his interview as TLP or H’s conduct; the only relevance of what the accused said to the police on this topic is to inform my analysis of the questions of collusion and contamination. As I have said, TLP in particular was involved in a number of the conversations that KH had with AP about the accused.
The accused denied NV’s and KH’s allegations and, as to the latter, denied being discovered by CB in KH’s bedroom on the occasion the subject of count 1.
As to AP’s allegations (count 3 and its alternatives), the accused steadfastly rejected any suggestion of abuse. He said further that the newer shed closer to the homestead was not built until around 2011.
As to the alleged incident involving CS, I set out the accused’s remarks during interview:
QSo you’re laying down on the couch, and you ask her to lay down next to you-
AMm.
QSo you lay down face to face to sort of-
AMm.
QEnclose the kittens, and the kittens were running around in between you. She, she’s alleging that you’ve grabbed her hand and then you put it down your pants, and then you used her hand to fondle your penis, okay, those are the allegations that [CS] has made in relation to you. Do you wish to make any comment in relation to that.
AYeah, um, well I know that she wanted, she wanted to, um, um, I know that she wanted, er, um, um, be, um, er, er, have sex, and I’m, and I said, no.
QThe, sorry-
AShe wanted to have sex then, and I said, no, and her mum came in, and said, no, um,, um, get out, and, yeah, all get out.
QWell can you explain that a little bit more to me.
AWell, er, well, she, she wanted to, um, play around with me, and I said no, yeah, it was on the, on the lounge, yeah, I know that. Yeah.
QOkay, so, so basically, what I’ve just described to you-
AMm.
QIs that what happened.
AYeah, not, not what, the way she’s saying, no. Yeah.
QOkay, so you went to the lounge room-
AYeah.
QYou asked her, and there was kittens there-
AEr, not kittens, no, er, it was only, er, I only had one little kitten, that’s all.
QOkay.
AYeah.
QOkay, so you said she’s wanting to have-–
ABut had her sisters there.
QRight. Can you explain that a little bit more for me.
ATwo, two, her other two sister, older sister and a little-
QYeah.
AAnd a younger sister.
QYeah. Sure.
AYeah, and er, yeah, she just, yeah, she wanted-, and then, well she wanted-
QExplain that further to me, I-, again, this-, you’re saying that she wanted, sex-
AYeah. Yeah.
QShe wanted to have sex with you.
AYeah, yeah.
QCan you explain what-
AI-
QYou mean by that.
AOh, she wanted to, er, ha-, have sex, and then, and then I said no.
QWhat did she do. What did she say.
AShe, she, she wanted erm, play around with me, and I said, no, I, I don’t want, um, what, what are you doing, and, yeah, and she wanted to go, wanted to go-, I said I wanted to go out, and she wanted, no, with the, with the two sisters, and that-
QMm hm.
AAnd, er, yeah, and, and then the mother come in and said, er, get out, so yeah-
QHow did you know that [CS] wanted to have sex with you.
AWell, ‘cos she said, yeah.
QWhat did she say.
AShe wanted to have sex with me and I-
QIs that what she said.
AYeah. Yeah, and-
QDid she do anything.
ANo. No, er, ‘cos I stopped her, and, but when, when um, we went to Burra, or somewhere, um, she wanted to, um, join up with me again, and I was out the, out the, on his, er, it was her brother, um, what’s his name, um, oh what’s his name, I can’t think of his name, the, the older brother, and they, and she wanted to go out with me, and I, I wasn’t feeling good, and I sat outside, and I didn’t wanna, nothing to do with her, not after that, yeah.
QSo how much longer, after the lounge room-
AOh this was-
QIncident-
AMu-, much later, yeah.
QMuch later.
AShe wanted to, she wanted to be a, um, like, marry, or something, to me, or not. I said, no-
QHow old were you at the time.
AOh I don’t know how old I’ll be, I was going to high, er, high school, er no, either high school or primary school at the time, yeah, and er, they said, no, go and have a dance with her, I said I didn’t wanna dance with her.
QWell how old was [CS].
AOh, I’m not sure, but, mm, um, I’m not sure how old, how old she is, it’s so long ago, yeah.
QMm hm.
AIt was, um, maybe about, maybe, maybe 15 or 16, no, it will be 16 or-
QMm hm.
ASomething like that, yeah, 16 or 17.
And a little later:
QI’m talking about the lounge room incident-
AYeah, oh yeah, yeah.
QOkay. So how old-, were you in primary school, were you in high school.
AEr, I’m not sure if I was in primary school or high school at the time, yeah, I’m not sure. It might have been them, it might have been, er, maybe fi-, er, first year high school, I s’pose, I don’t know. Yeah, I’m not sure.
QBut you said [CS’s] quite a bit younger than you.
AOh yeah, a bit-
QShe’s saying-
AYeah.
QThat she was-
AWell she-
QSeven or eight years old when this happened.
AOh I think she was older than that, yeah. Yeah, she’s a bit older than that. Yeah.
QBut she’s saying she was seven-
AYeah.
QOr eight years old when this happened with the kittens in the lounge room.
AThere’s only one kitten we had, yeah, and, no, she, she would have been older than that because, ‘cos her, um, her younger daughter would have been, er, younger sister, would have been about seven or eight years, yeah, ‘cos she’s middle age, yeah, and yeah, she would, her, um, older, er, [S], she would be um, maybe, er, maybe would, er, be, so be about 17, and she would have been about, about 16, I, I reckon, or, or 15, something like that, yeah. I’m not sure, yeah.
QYou said she was around about 15 at the wedding-
AYeah. Yeah, I’m not sure, yeah-
QYeah, so you’re saying, is there-
AYeah, I’m not sure-
QHas there been only one incident in the lounge room-
AYeah.
QWith [CS].
AYeah.
QOkay, but are we talking about the same-
AI think she wanted-
QIncident.
AYeah, and this is years later when she went to his wedding-
QYeah, yeah-
AAnd-
QBut you’re saying, when you were-
AShe wanted to-
QIn the lounge room with the kitten or the kittens-
AYeah, kitten.
QThat she wanted to have sex with you then.
AYeah, yeah. Yeah.
QBut you said you may have been at primary school and-
AEr yeah, either-
QOr first, first-
APrimary school-
QYear of high school.
AIt might have been, er, yeah, it might have been high school, yeah, I don’t know, not sure, yeah. I can’t remember.
QBut she’s younger than you-
AIt was a long time-
QSo she would have been-
AOh yeah, she’s a lot young than me, yeah.
QRight, and she-
AYeah.
QAsked you for sex.
AYeah, yeah. Yeah, that’s right, and I didn’t want, I didn’t, and I said, no.
QSo she would have been about seven or eight years-
AAnd, and [CS]-
QOld when she asked you for sex.
AAnd [CS] and [R] was there, um-
QIn the lounge room with you.
AYeah, yeah, they were in that, in that, sitting on the lounge together, all there. Yeah, and they, they were saying, um, and I said, no, we’re not, nothing, not doing anything like that, and, no, and she wa-, she wanted to, and I said, no, I’m not going-
QOkay, so you tell me what she said to you, to make you think that she wanted to have sex with you when she-
AYeah.
QWould have been clearly a child-
AYeah.
QOf seven or eight years of age.
AYeah, she just wanted to have sex with me and I-
QYeah, yeah, what did-
AYeah.
QShe say.
AOh, I don’t know, she just said she wanted to have sex with me, and I said, no. I said, no.
QAnd you’re saying both her sisters were in the lounge there when she-
AYeah.
QWhen she asked you to have sex-
AYeah.
QWith her.
AYeah, [CS] and [R]. Yeah. And then her mum-
QDo you wanna make any-
AAnd then her mum came in and I told her to-
QThat what, sorry.
AAnd then her mum came in and told her to get out, so, er, them to get out, so yeah, but er-
QIn the lounge room.
AYeah, yeah, her mum, yeah-
It can be seen that the accused told Detective Rethus that there was an incident between him and CS in the lounge room at the Moorook property during which the accused claimed that CS told him she wanted to have sex with him. Although the accused’s responses to Detective Rethus’ questioning on this topic were somewhat discursive, he ultimately appears to have agreed with the suggestion by Detective Rethus that CS was a child at the time, noting that the accused is 10 years older than CS.
The accused went on to mention other occasions on which there appears to have been some suggestion that he and CS should have some sort of romantic involvement.
Legal directions
The prosecution bears the onus of proving the guilt of the accused. The standard of proof is beyond reasonable doubt. The accused is not required to prove anything. He is presumed innocent of the charges unless and until the prosecution proves each element of the offences charged beyond reasonable doubt. In this respect, I keep in mind the comments of the High Court in R v Dookheea (2017) 262 CLR 402 at [41] concerning the standard of proof:
…being satisfied of guilt beyond reasonable doubt does not simply mean concluding that the accused may have committed the offence charged or even that it is more likely than not that the accused committed the offence charged. What is required is a much higher standard of satisfaction, the highest known to the law: proof beyond reasonable doubt.
It is a corollary of the prosecution’s burden of proof that if, having considered all of the evidence, I am unsure where the truth lies in relation to a charge, my verdict must be not guilty.
Equally, the question for me is not whether I prefer the evidence of the complainants to the version given by the accused during his interview.[6] Nor can I resolve the issues in dispute by making a choice as between the conflicting bodies of evidence.[7] The accused may be found guilty if, and only if I am able to reject his denials as not reasonably possibly true and I am satisfied beyond reasonable doubt that the prosecution have proved each and every element of the offence under consideration.
[6] Liberato v The Queen (1985) 159 CLR 507, 515.
[7] De Silva v The Queen (2019) 268 CLR 57; (2019) 94 ALJR 100, [10]-[11].
As the finder of fact, it is necessary for me to make an assessment of the truthfulness and reliability of the witnesses who gave evidence. It is of course my prerogative to accept or reject all or parts of a witness’ evidence.
At the conclusion of the prosecution case, the accused indicated that he would neither give nor call evidence in his defence. This was his right and I draw no adverse inference from the exercise of his right. I have not used his silence as a make weight or to fill any gaps or deficiencies in the prosecution case. To do otherwise would be to undermine the accused’s right to silence. Plainly enough, the fact that the accused elected not to give evidence does not alter the burden of proof which remains fixed on the prosecution; nor does it affect the weight that must be given to the presumption of innocence.
In deciding whether an offence has been proved beyond reasonable doubt, I must have regard to the whole of the relevant and admissible evidence on that charge. This will require me to evaluate any inconsistencies in the evidence of the complainants or as between their evidence (in relation to questions of contamination and collusion), together with any other shortcomings in the prosecution evidence which bear upon the discharge of its burden. The significance of any asserted inconsistencies or other shortcomings in the evidence going to a particular count are to be evaluated collectively and not compartmentalised. I indicate that I have taken this approach when considering the evidence of the witnesses.
In considering the evidence and whether I am satisfied to the criminal standard of the elements of the offences, I have brought an open and unprejudiced mind to bear. I remind myself of the importance of making a decision without sympathy, prejudice or fear.
I must give each of the charges the accused faces separate consideration by reference only to the evidence admissible in support of a particular charge. The charges do not rise or fall together. My verdict in relation to any one charge cannot dictate my verdict in relation to the other charges.
Out of court discussions
The complainants gave evidence of discussions they have had amongst themselves and with other members of their family – in particular, TLP – primarily after LSP’s funeral in July 2019.
The evidence of these conversations was not before me to prove the truth of any facts expressly or impliedly asserted and I have not used the evidence for that purpose. The evidence is not admissible as prior consistent statements of the complainants and I have not used it to support the credibility or reliability of the complainants’ accounts in anyway.
As will be seen, because of the findings I have made, I am not satisfied that there is any admissible evidence of initial complaint within the meaning of s 34M of the Evidence Act 1929 (SA) in relation to count 1 and it was not suggested by the prosecution that any disclosure made by NV or AP amounted to an initial complaint for the purpose of counts 2 or 3.
There are three permissible uses of the evidence of out of court discussions: first, the discussions are important on the defence case of contamination and, to the extent I must exclude it as a possibility, collusion; secondly, any demonstrated inconsistencies between what a complainant said out of court during these conversations, their witness statements and in court evidence may have an adverse effect on my assessment of the credibility and reliability of that complainant’s evidence; thirdly, the evidence may reveal contradictions or inconsistencies as between the complainants in relation to particular conversations and, depending on the findings I make, this too may have an adverse impact on my assessment of a complainant’s credibility and reliability.
Forensic disadvantage
I say something now about the significant forensic disadvantage that I consider the accused confronts in defending allegations which date back many decades. Whilst s 34CB of the Evidence Act has no application to trials before a judge sitting without a jury,[8] the principles enshrined in s 34CB emanate from the common law’s recognition of the impact of delay on an accused’s ability to test and challenge a prosecution case and to marshal evidence relevant to his or her defence of a criminal charge. It will be appropriate for a judge sitting without a jury to apply these principles when evaluating whether the prosecution has met its burden of proof in circumstances in which s 34CB would otherwise apply.
[8] JGS v The Queen [2020] SASCFC 48, [146]; R v T, WA (2014) 118 SASR 382, [21]-[22]; R v R, PA [2019] SASCFC 19, [85]; Angus (a pseudonym) v The King [2024] SASCA 101, [45]-[46].
It is apparent from the brief chronology set out earlier, that the allegations against the accused date as far back as the mid-1970s. The critical events about which the complainants and CS gave evidence are all alleged to have occurred when they were young children.
The significant forensic disadvantage to the accused has a number of dimensions. For one, the lengthy passage of time may have impacted upon the accused’s memory of the relevant events and surrounding circumstances and hence impaired his capacity to instruct his lawyers and test the evidence. Had the trial been conducted more proximately to the alleged events, the accused may have been able to give or lead evidence as to his whereabouts or movements on a particular occasion, or who he might have been with, which might have revealed inconsistencies related to or implausible aspects of the prosecution case. The accused may have been in a position to marshal documentary or other evidence in support of his defence of the charges.
In addition, the accused’s parents, TP and BeP have since passed away, and it can be inferred that there are other witnesses who, but for the passage of time, may have been in a position to give evidence relevant to the defence case (such as the siblings and parents (to the extent they did not give evidence) of CS, KH, NV and AP). TP and BeP, as well as the others in the classes I have mentioned, were potentially very important witnesses as they were at Osborne or Moorook on each of the occasions the subject of a charged or uncharged allegation and might have been able to give evidence about the whereabouts of the complainants, CS, or the accused; the presence of others in the house; household dynamics generally and any limitations on the asserted opportunities for the accused to offend.
The passage of time may have also impacted the memory of witnesses.[9] They may have become convinced that a particular event or incident took place even though it did not or may have forgotten or misremembered details that would be to the benefit of or otherwise significant to the defence case. The loss of the forensic tools available to the accused to test and challenge the evidence of the witnesses on account of the passage of time may in turn have impaired his ability to demonstrate the unreliability or lack of credibility in the evidence of the complainants and CS.
[9] I make it plain that the only relevant disadvantage in this respect is that experienced by the accused on account of the lack of precision in the evidence of the complainants and CS: Bates v The King [2023] SASCA 65, [55]-[60].
Accordingly, I am satisfied that the effluxion of time since the commission of the alleged offences has resulted in a significant forensic disadvantage to the accused that I will bring to account when scrutinising the prosecution evidence. Indeed, I consider that, for a variety of reasons including the age of all of the allegations the accused faces; the age of the complainants and CS at the time of the alleged offending against them (charged or uncharged); and various inconsistencies in their accounts, I must scrutinise their evidence with great care.
Elements
The elements of indecent assault (count 1) contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) that must be proved by the prosecution are as follows:
1. The accused assaulted KH. An assault is the deliberate application of force to another. A deliberate touching is sufficient.
2. The assault occurred in circumstances of indecency which requires proof of a sexual connotation to the touching or force that constitutes the ‘assault’. It was not suggested that if I was satisfied beyond reasonable doubt that the accused made KH masturbate him, this conduct did not amount to an indecent assault.
Consent is no defence to a charge of indecent assault against a child.
The defence case as to count 1 is that it has not been proved that the act occurred. The defence point to inconsistencies between KH’s evidence; the evidence of CB, JP, NV and AP (as to discussions between them) and various other asserted deficiencies in KH’s evidence in support of the attack on the truthfulness and accuracy of her account. The defence also point to KH’s persistent attempts to extract information, in particular from AP, about her allegations against the accused and her willingness to ‘trade’ information with AP about what the accused had allegedly done to her if AP would disclose details of her alleged abuse by the accused. The defence contend that KH’s conduct reflects negatively on her credibility and reliability and also reinforces the possibility that she was seeking to bolster false, mistaken or incomplete memories by reference to external information. This submission is supported by reference to evidence that KH told NV that the accused had ‘touched her' and ‘rubbed up against her’ in a sleeping bag, which statements, it is argued, are inconsistent with KH’s evidence about count 1.
At the time of the alleged commission of count 2, s 58(1)(b) of the CLCA made it an offence to incite or procure the commission by any person under the age of 16 years of any act of gross indecency with or in the presence of the accused. The offence has the following elements:
1. The accused intentionally incited or procured NV to commit an act.
To incite or procure an act is to ask another person to commit an act; encourage another person to commit an act; cause another person to commit an act; or take steps to produce the result that another person commits an act.
In Ayles v The Queen (1993) 66 A Crim R 302, the accused was convicted of two counts of attempting to procure a child to commit an act of gross indecency. The attempt to procure was said at trial to be proved by the accused telling two teenage boys at a Church camp that he and his friends would watch videos and masturbate in front of each other; that the boys could masturbate in front of him and he would only join in if they really wanted him to. That is to say, the attempt to procure comprised of words spoken by the accused that were said to be an encouragement to the boys to masturbate in the accused’s presence.
The accused appealed on the ground, amongst others, that the evidence was incapable as a matter of law of making out an attempt to procure. In dismissing this complaint, Legoe ACJ discussed the elements of the substantive offence of procuring an act of gross indecency. His Honour (at 306-307) adopted the dictionary meaning of ‘procure’ as:
“to bring about by care or pains also (more vaguely) to bring about, cause, effect, produce. 2. to obtain by care or effort, to acquire. b. to obtain (women) for the gratification of lust…to act as a procurer or procuress. 3. to prevail upon, induce, persuade (a person) to do something.”
Legoe ACJ went on to observe that the purpose of the procuration (namely, to procure an act of gross indecency) may be inferred from the conduct of the accused and need not consist of an express invitation to perform such an act. Albeit in the context of an attempt to procure an act of gross indecency, his Honour said that the authorities clearly contemplated that words alone, without any physical application or force, could suffice as a procurement.
In other contexts, it has been suggested that to procure an act requires some element of persuasion, inducement or influencing to commit the act.[10]
In my view, before this element could be satisfied, the prosecution must prove that the accused did something that encouraged, brought about, caused, or induced NV to touch his penis. It is not necessary that the accused used physical force or coercion to bring about that result; nor that there was an express verbal invitation or direction to NV to touch his penis. However, there must be a causal link between the proved conduct of the accused and the act said to be procured.[11]
2. NV was under 16 years old at the time the act was incited or procured.
3. The act intentionally incited or procured was ‘grossly indecent’. Whether an act is ‘indecent’ for the purpose of this element is to be determined according to contemporary community standards; however the act must have a sexual connotation. The act must not merely be indecent; it must be grossly indecent.
4. The accused intentionally incited or procured an act of gross indecency by NV with him or in his presence.
[10] R v Castiglione (1962) 63 SR (NSW) 393.
[11] Attorney-General’s Reference (No.1 of 1975) [1975] Q.B. 773, 779-780.
The defence case in respect of count 2 is essentially two-fold. First, it is submitted that the prosecution has not proved that the accused had NV masturbate him. The defence point to the possibility of collusion or contamination and what is said to be the troubling evolution in NV’s description of the incident with the accused from him ‘touching her’ to inciting or procuring her to masturbate him and her evidence that it was only when providing a statement to the police that she had a ‘realisation’ that the incident involved her touching the accused. Secondly, it is argued that, even if sexual activity of that kind occurred, the prosecution have not proved beyond reasonable doubt that the accused incited or procured NV to masturbate him as NV was unable to detail what the accused had said or done that resulted in her touching his penis.
With respect to count 3, the offence of maintaining an unlawful sexual relationship with a child consists of the following four elements:
1. The accused was over the age of 18 years at the time of two or more of the unlawful sexual acts particularised.
2. The complainant, AP, was under the age of 17 years at the time of two or more of the unlawful sexual acts particularised.
3. The accused knowingly maintained a relationship with AP during the period in which two or more unlawful sexual acts occurred.
There is no dispute about the first three elements of this offence. In particular, there is no dispute that the accused maintained a relationship with AP even though he may have only seen her once or twice a year. He was her biological uncle. He was also a permanent resident of the Moorook property where AP would visit and during these visits, and in his capacity as her uncle, the accused would spend time doing activities with AP on and around the farm.
4. Whilst the above relationship was being knowingly maintained, the accused intentionally committed two or more of the unlawful sexual acts particularised in count 3 with or towards the complainant. ‘Unlawful sexual act’ is defined by s 50(12) of the CLCA as any act that constitutes, or would constitute a sexual offence if the time and place at which the act occurred were sufficiently particularised. ‘Sexual offence’ is in turn defined to mean, relevantly, an offence against Division 11 of the CLCA. In JJP v The Queen [2021] SASCA 53 at [157], Doyle JA, with whom Kelly P agreed, explained that the elements of a s 50 charge include the elements of the sexual offences constituted by the ‘unlawful sexual acts’. That is to say, in order to establish the commission of an ‘unlawful sexual act’, the prosecution must prove beyond reasonable doubt that the accused’s conduct would satisfy the elements of a ‘sexual offence’ as defined.
The unlawful sexual acts particularised in count 3 are said to make out the following sexual offences:
1. Particulars (a) and (d) – unlawful sexual intercourse.
2. Particular (b) – indecent assault.
3. Particular (c) – act of gross indecency.
Unlawful sexual intercourse (count 3 particulars (a) and (d), count 4 and count 7) consists of the following elements:
1. The accused had sexual intercourse with AP. Sexual intercourse is defined to include penetration of the labia majora by any part of the body of another person (count 3 particular (a), count 4) and fellatio (count 3 particular (d), count 7).
2. AP was under 12 years old at the time of the alleged offending.
Consent is no defence to a charge of unlawful sexual intercourse.[12]
[12] Criminal Law Consolidation Act 1935 (SA), s 49(7).
I have previously set out the elements of indecent assault and will not repeat them (count 3 particular (b) and count 5).
An act of gross indecency (count 3 particular (c) and count 6) with a person under the age of 16 years requires the prosecution to prove:
1. The accused intentionally committed an act in the presence of AP.
2. The act was ‘grossly indecent’. Whether an act is ‘indecent’ for the purpose of this element is to be determined according to contemporary community standards, however the act must have a sexual connotation. Moreover, any proved conduct must not merely be indecent; it must be grossly indecent.
3. AP was under 16 years old at the time the accused committed the act.
There was no suggestion on behalf of the accused that the conduct relied upon by the prosecution in support of the particulars of count 3 would not in fact make out these sub-offences. Rather, the defence contention was that it had not been proved beyond reasonable doubt that the accused committed any unlawful sexual acts against or in the presence of AP. The defence argued that AP was an unreliable witness who may have conflated sexual abuse by someone else with sexual abuse by her uncle. That is to say, the defence position was that I could not exclude as a reasonable possibility that what AP was describing was in fact sexual abuse perpetrated by someone other than her uncle, but which she has come to believe her uncle to be responsible for, perhaps influenced by the nature and extent of discussions she has had with KH and NV (and perhaps others) during which she became aware that they alleged the accused had sexually abused them. The defence also challenged the credibility and reliability of AP’s account on the basis of various inconsistencies in her evidence.
Cross admissibility and other directions
In both his opening and final address, Mr Mulvihill, who appeared for the prosecution, submitted that the evidence of the complainants, and CS, was universally cross admissible for both improbability and propensity uses.
The cross admissibility of the evidence is governed by s 34P of the Evidence Act which provides:
34P—Evidence of discreditable conduct
(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)—
(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and
(b) is inadmissible for that purpose (impermissible use); and
(c) subject to subsection (2), is inadmissible for any other purpose.
(2)Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if—
(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use outweighs any prejudicial effect it may have on the defendant; and
(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.
(3)In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.
(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.
(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).
Improbability use
The touchstone for cross admissibility on a ‘similarity of account’ or ‘improbability’ basis is the peculiarity of common detail in the accounts of complainants (including, in this case, the ‘uncharged complainant’, CS). The working hypothesis of improbability reasoning is that, where collusion and contamination can be excluded as reasonable possibilities, it is inherently unlikely that two or more accounts of alleged offending would share qualitative similarities if the authors had independently made up or imagined their versions of events. That is because, as a matter of human experience, ‘so great is the range of human behaviours that it is improbable that two persons could independently concoct or imagine the same details and peculiarities’.[13]
[13] R v Bonython-Wright (2013) 117 SASR 410, [48]-[50].
Of course, by virtue of s 34S of the Evidence Act, the possibility of collusion and concoction cannot be taken into account when considering the admissibility of evidence on this basis.
It is now well recognised that the admissibility of evidence for similarity of account reasoning is not to be determined by admeasuring those features of complainants’ accounts that are similar and dissimilar. Rather, the dispositive question is whether, as a matter of human experience, the nature and quality of the similarities in the evidence of multiple complainants are such as to be probative of the hypothesis that it is improbable that their accounts are explicable on the basis of independent concoction, imagination or mistake. The process of reasoning takes the following starting point (albeit requiring some modification in the case of historical allegations made by adults), explained by Kourakis CJ in MDM v The Queen (2020) 136 SASR 360 at [14]:
The first, significant, improbability which arises in evaluating similarities in the independent accounts of different child complainants, is that two or more children known to the accused both happen to fabricate or imagine that they have been sexually abused and/or happen to fabricate or imagine, that the offences were committed by him. The significance of that improbability may be affected by the number of other persons known to them to whom they might have attributed the claimed offending. However, any additional similarities in the offending build on that initial improbability.
The greater the number of and more peculiar the similarities are between the accounts in question, the less likely it is that the accounts are explicable on the basis of independent concoction.
Whilst it is now beyond controversy that two or more accounts need not share ‘striking’ similarities or carry an ‘underlying unity’ to be admissible on this basis, it remains a pre-condition to using evidence for this purpose that the accounts possess such a degree of similarity that the probative value of the evidence for the ‘improbability’ hypothesis exceeds the prejudice associated with a single trier of fact adjudicating on multiple allegations of sexual abuse relating to different alleged victims. Indeed, it has been said that because of the nature of the prejudice that accompanies the cross admission of evidence of this kind, ‘it is important therefore that the similarity of the accounts very strongly exclude the possibility of independent concoction so as to minimise the risk of a miscarriage of justice on that score’.[14] It is to be remembered however that, following amendments to s 34P(2)(a) of the Evidence Act by virtue of the Statutes Amendment (Child Sexual Abuse) Act 2021 (SA), which came into operation on 1 June 2022, the probative value of evidence admitted for this purpose need only outweigh its prejudicial effect; it is not necessary for the probative value of the evidence to do so by any particular, quantitative measure.
[14] R v C,CA [2013] SASCFC 137, [61].
Importantly, it is the similarities, or dissimilarities, that bear upon the improbability of independent concoction that are material to the admissibility analysis.[15] Although there are no fixed or rigid rules in this context, it is sometimes said that the characteristics of complainants, or the accused, and unremarkable features of the complainants’ association or involvement with an accused will rarely be probative similarities. Focus should fall primarily on the extent and peculiarity of shared details in the narratives of the alleged offending. Thus, in R v C,CA [2013] SASCFC 137 it was held that the fact that the three complainants were boys of a similar age; did not have a father figure in their lives; were all acquaintances of the accused’s son; and accompanied the accused on outings, were not probative similarities. A similar analysis can be seen in Slape v The Queen [2022] SASCA 91 at [59]-[67] and, moreover, it is clear from the approach there taken that care is required in relying too heavily on commonalities in the mere nature of sexual acts said to be undertaken with multiple complainants.[16]
[15] MDM v The Queen (2020) 136 SASR 360; Slape v The Queen [2022] SASCA 91.
[16] See also, in a different context, Phillips v The Queen (2006) 225 CLR 303, [56].
That is not to gainsay, however, that these features or characteristics of the accounts of multiple witnesses are relevant to the improbability analysis, albeit they are not determinative. In McRoberts v The King [2024] SASCA 92 at [52]-[54], the Court of Appeal rejected a contention that C,CA stands for the proposition that a complainant’s account of their relationship with an accused will always be irrelevant:
We do not consider that R v C, CA is authority for the proposition that a complainant’s account as to his or her relationship with an accused person, and any similarity as between complainants as to that fact, is always irrelevant in evaluating the admissibility of similarity of account evidence. That is too absolute a proposition. It will depend upon the circumstances of each case, including matters such as the nature of the relevant relationship, how that relationship features in a complainant’s narrative of the alleged offending, and the similarities that may exist in the complainant’s accounts as to how an otherwise orthodox relationship between an adult and a child may have been corrupted or manipulated by an accused person to commit the sexual offences.
As explained in R v C, CA (and other subsequent authorities)[17] the analysis in similarity of account reasoning must focus on those similarities between the complainants’ narratives of the alleged sexual abuse. However, the analysis is not confined to a consideration of similarities between the physical acts of sexual abuse, or even to the immediate setting in which they occurred. That is because the relationship between an accused person and a complainant, and other features of that relationship may well form an integral part of a complainant’s account as to the alleged offending. It may inform the circumstances and context in which the alleged sexual offending occurred. It may also be a significant aspect of the complainant’s narrative as to the manner an accused person corrupted an otherwise orthodox relationship to enable the commission of the alleged offences.
In this way, a common relationship between an accused person and multiple complainants may raise the improbability that multiple children happen to fabricate or imagine that they were sexually abused by the accused. Ultimately, the determinative question is whether the similarities between complainants’ accounts are capable of bearing upon the improbability of fabrication, coincidence or collusion such as to render the evidence more probative than prejudicial.
[17] See for example: DES v The Queen [2020] SASCFC 32 at [70] per Doyle J; Slape v The Queen [2022] SASCA 91.
The approach taken in McRoberts is consistent with what can be discerned from the earlier decision of the Court of Appeal in R v Marshall [2023] SASCA 105 - a case in which the two complainants had, at different times, been step-daughters of the accused and who alleged broadly similar sexual offending against them over a period of years, including at the accused’s workplace. With reference to the weight to be afforded to the characteristics of the complainants, the nature of their relationship with the accused and their respective narratives of the alleged offending when considering the cross admissibility of their evidence for improbability reasoning, the Court of Appeal said at [162]-[163]:
Whilst what each complainant described by way of the particular offending is relevant, it is necessary to look to the whole of their accounts, in context. No longer is it necessary to point to “special”, “particular” or “unusual” features to establish admissibility. Rather, one may commence with the fact that the complainants were both female children, describing allegations of sexual abuse committed by their step-father, during the period he was in a relationship with their mothers. Contrary to the Director’s submission, however, that alone is not necessarily sufficient to justify cross-admissibility on the basis of similarity of account reasoning.
In this case, one may also bring to account that both girls were describing as part of their accounts that they were pre-pubescent, and that the alleged offending was preceded by what may be described as a period of grooming. The offending against each girl involved a number of similarities, and was associated with, at the least, showing a sex toy. Each was rendered submissive by a combination of intimacy and warnings not to tell anyone. In addition, in the circumstances of this case, the number and regularity of the alleged incidents each week, when combined with the similar locations selected (home and office), often orchestrated in brazen circumstances, were capable of bearing on the improbability of coincidence unless what the complainants were describing had occurred to them.
The reasons of the Court in McRoberts and Marshall confirm that the organising principle is that one must have regard to the whole of the witnesses’ accounts for the purpose of determining whether there is such a degree of similarity to be probative of the improbability of the hypotheses of independent concoction or imagination. As the Court of Appeal explained in Slape at [67] having identified the suggested similarities between two accounts ultimately held not to be cross admissible:
It should not be thought from the above consideration of the suggested similarities and dissimilarities in the complainants’ respective accounts of the offending against them that the Court’s task is one naturally amenable to an analytical approach. While a close examination and comparison of the respective accounts is appropriate, the Court is ultimately required to stand back and make an evaluative judgment as to the overall probative value of the similarities in the complainants’ accounts, and as to whether that probative value substantially outweighs the prejudicial effect of the evidence. As mentioned earlier, the prejudicial effect lies primarily in the antipathy to the accused that the multiple allegations may engender, and the potential for the finder of fact to be distracted from any defects and frailties in the evidence bearing directly upon the individual charges.
Collusion and contamination
As I have said, collusion and ‘concoction’ are no longer considerations relevant to determining the admissibility of evidence for similarity of account or propensity reasoning.
However, if I conclude that the evidence of some or all of the complainants and CS is cross admissible, it will in due course be necessary for me to determine whether the prosecution have excluded the possibility of collusion and contamination before using the evidence for this process of reasoning.
It is important to acknowledge the conceptual differences between ‘collusion’ on the one hand and ‘contamination’ on the other.
Collusion implies that two or more witnesses have effectively ‘got their heads together’ or arrived at an agreement or a plan with each other to falsify allegations of criminal behaviour against an accused. Collusion may also involve a more subtle meeting of the minds that reflects something of a hybrid of collusion and contamination. In a case involving multiple witnesses making similar allegations against an accused, it is self-evident that the similarities cannot be probative of the improbability of wrong or false allegations if it is a reasonable possibility that the witnesses have ‘hatched a plan’ or otherwise colluded to make false allegations.
I earlier mentioned that counsel for the accused expressly eschewed any suggestion of collusion. Rather, counsel argued that the fact and extent of conversations between the complainants gave rise to the possibility that their memories had been contaminated by information they had acquired from each other or, indeed, other family members. Nonetheless, it is imperative that I make an independent assessment of whether the prosecution has disproved collusion beyond reasonable doubt.
Contamination, which is concerned with the conscious or subconscious altering of a witness’ memories because of information they have learnt or received from others, must also be excluded as a possibility before similarities between multiple accounts can be used for improbability reasoning. That necessarily follows because if there is a possibility that, for example, NV’s recollection of the incident with the accused in the lounge room at Moorook has been contaminated by information she received from KH, any similarities between their accounts would cease to be probative of the unlikelihood of imagination or concoction. The concept of ‘contamination’ acknowledges the malleability of human memory both organically and when a person is subjected to any form of external influence, including exposure to third party information that has the capacity to alter a person’s perception of a historical event.
As will become apparent, I have addressed the question of collusion when dealing with each count. Whilst my reasons are structured in this way, I have conducted an overarching analysis of the possibility of collusion by reference to the combined effect of the evidence of each of KH, NV and AP so as to avoid fragmentation of the evidence on this topic.
I will return to these issues in due course.
The degree of similarities in this case
To return to the question of admissibility, the prosecution relied upon the following features of the evidence of the complainants and CS in support of its submission that the evidence was cross admissible for improbability reasoning:
1. The familial relationship between KH, NV, AP and the accused and that, in the case of CS, there was a familial connection albeit through CS’ sister’s marriage to one of the accused’s brothers.
2. The complainants and CS were all between the ages of 5 and 12 when allegedly abused by the accused.
3. The complainants and CS allege sexual abuse by the accused at the Moorook property, noting that, with respect to KH, the only charged act (count 1) is alleged to have occurred at her parents’ Osborne residence.
4. As to KH, NV and AP, the accused was in a position of trust and authority vis a vis the complainants and his alleged abuse involved the exploitation of that position. Whilst there was a less direct familial connection between CS and the accused by virtue of the marriage between CS’ sister and the accused’s brother, the accused nonetheless occupied a position of trust or power in relation to CS because of their age difference.
5. The opportunistic and brazen nature of the offending which carried a high risk of detection given that there were numerous other adults and, in some cases, children at the locations of alleged abuse. Of course, in relation to the horse riding incident with KH and the horse stable incident with AP, there was less of a risk of detection given those incidents are said to have taken place some distance from the Moorook homestead and whilst the accused was alone with the complainants.
6. Again with the exception of the ‘horse riding incident’ involving KH, the complainants and CS do not allege that the accused engaged in what might be colloquially described as a grooming process or any attempt to normalise matters of a sexual nature. The ‘horse riding’ incident is alleged to have occurred a number of years before count 1, such that there was, in any event, an absence of typical ‘grooming’ behaviour with respect to KH as well. This is said to be an unusual shared feature of the evidence.
7. The complainants and CS all allege that the accused forced them to touch his penis. The accused lured CS into the lounge room at Moorook under the ruse of playing with kittens before taking her hand and placing it down his pants and on his genitals. As to KH, the accused had called her over to his sleeping bag during an overnight stay at Osborne and, after she got in with him, placed her hand on his penis to masturbate him. After NV happened upon the accused masturbating in the lounge room at Moorook, he said something to her which caused her to masturbate his penis. AP ventured into one of the sheds at Moorook after seeing the accused drive in on some farm machinery. After AP entered the shed, the accused approached her with his penis exposed and had AP masturbate him.
8. With the exception of AP, the complainants and CS do not suggest any overture by the accused to ensure their silence or to restrain the possibility of a complaint. Contrastingly, AP alleges that the accused sternly, perhaps even aggressively, implored her not to tell anyone of his alleged misconduct under the pretence that it was ‘their secret’.
It may be accepted that each of the complainants, and CS, were all young girls who had a familial relationship with the accused and that it was in the context of opportunities to be alone with the complainants, and CS, created by that relationship that the alleged offending occurred. Whilst the complainants and CS do not describe an overt deployment by the accused of his role as ‘uncle’ or older ‘family figure’ in the alleged offending, it is inherent in the nature of the circumstances described by the witnesses that the trust and confidence they had in the accused because he was known to them in a family context helped facilitate their compliance or submission to his conduct.
Equally, the alleged offending against CS, KH, NV and AP was opportunistic although different types or degrees of opportunism emerge from their allegations. As to count 1, KH alleges that she went into the kitchen of the Osborne residence at night to get a drink or something to eat and it was by this matter of happenstance that the accused was able to call her over to his sleeping bag. NV alleges that she essentially happened upon the accused whilst he was masturbating. CS alleges that the accused enticed her into the lounge room at Moorook to play with kittens and AP alleges that the accused manufactured scenarios (at least in respect of particulars (a), (c) and (d)) to be alone with her and carry out acts of sexual abuse. There is a greater degree of spontaneity – and perhaps less planning – on the allegations of KH and NV as the abuse was responsive to situations that arose other than by design by the accused when, perhaps unexpectedly, those two complainants came across the accused when he was alone. Nonetheless, sitting behind all of the alleged offending is the accused’s willingness to create or exploit opportunities to be alone with the complainants in order to commit brazen and risky acts of sexual abuse.
As to the particulars of the sexual abuse, KH, NV, AP and CS each allege that the accused importuned or forced them to touch his penis. Whilst there are nuances to each of the accounts given by the complainants and CS that do not find perfect analogues in each other version of events, there is an obvious thematic and factual coincidence across the accounts. KH, NV and CS allege that to be the only form of sexual abuse that occurred (leaving aside what I will later describe in more detail to be the ‘horse riding incident’ with KH); AP on the other hand alleges digital penetration, compelled fellatio, and the accused masturbating to ejaculation in her presence. As I have said, AP is, in addition, the only witness who alleges that the accused implored her to maintain secrecy over their interactions and behaved in an overbearing or somewhat aggressive manner.
Indeed, the fact that CS and NV allege only one incident of sexual abuse; and that KH alleges only one overt episode of sexual abuse is itself a relevant and somewhat peculiar similarity; however, it must be accepted that with respect to CS at least, the accused does not appear to have had any further opportunity to commit an act of sexual abuse which does tend to suggest that this feature of CS’ account is moreso the consequence of objective circumstances than an inherently similar narrative detail.
Similarly, none of the complainants or CS suggest that the accused sought to pre-dispose them to or normalise sexual activity with them before taking the brazen step of engaging in overt sexual activity. There were, for example, no sexualised discussions with the complainants and CS; no endeavour to build a relationship characterised by secrecy; no progression from subtle or innocuous touching to sexual interference. Even in the case of KH, the ‘horse riding incident’ was some five to seven years prior to the alleged commission of count 1. Put another way, each of the complainants essentially allege that the sexual abuse to which they were exposed came out of the blue and, other than in the case of AP, was never again repeated.
Whilst there are a number of apparent differences across the descriptions of alleged offending, and the surrounding circumstances, described by each of the witnesses under consideration, standing back and making an evaluative judgment about the nature and extent of the similarities across the evidence, I am satisfied that there is a substantial and overarching commonality to the accounts given by KH, NV and CS that I consider imbues their evidence with the requisite degree of similarity to be probative of the improbability that their allegations have been imagined or independently concocted. In particular, I consider that the shared features in their accounts concerning the circumstances and manner in which the accused, as a then young man, came to have three pre-pubescent girls with whom he had a familial connection masturbate or touch his penis, in brazen and generally opportunistic situations carrying a substantial risk of detection given the near presence of multiple other adults, is highly probative of the improbability of independent concoction or imagined allegations.
I consider that the probative value of the evidence outweighs its prejudicial effect, which really distils in this case to the risk of using the evidence for a propensity purpose (subject to the matter I next address in my reasons); reasoning that the accused is a ‘bad person’ or the sort of person likely to have committed crimes or the charged acts based purely on the multiplicity of allegations (mere propensity reasoning); reasoning that even if I am not satisfied that any particular charge has been proved to the criminal standard, the accused must be guilty of something because multiple witnesses have alleged he committed sexual acts against them (the risk of substitution); and / or reasoning that the mere fact that four witnesses have said the accused sexually abused them means the accused is guilty. I have not reasoned in any such way and have directed myself as to these impermissible uses of the evidence as required by s 34R of the Evidence Act.
I am further satisfied that the permissible use of the evidence for similarity of account reasoning can be kept sufficiently separate and distinct from the impermissible uses with which s 34P is concerned so as to remove the risk of misuse. The conceptual use of the evidence of multiple complainants for improbability reasoning is very different to propensity reasoning which takes as its starting point the intermediate conclusion that the accused has a pre-disposition or a tendency to act in a particular way or have a particular state of mind. The different analytical process involved in improbability reasoning creates an obvious distinction from propensity reasoning and helps to maintain the clear dichotomy between permissible and impermissible uses.
Accordingly, the evidence of CS, KH and NV is, I conclude, cross admissible.
With respect to count 3 (and its alternatives), I am not satisfied that the evidence of KH, CS and NV is cross admissible on a similarity of account basis having regard to the nature of the allegations made by AP and vice versa. In my view, the difference between the extent and course of sexual abuse alleged by AP on the one hand and KH, CS and NV on the other is a stark and qualitative dissimilarity, notwithstanding that AP’s narrative of the conduct the subject of count 3 particular (b) resonates in many respects with the conduct alleged by KH, CS and NV.
The effect of this conclusion (subject to what follows) is that I will disregard the evidence of CS, KH and NV when considering count 3 and vice versa. It also follows that any adverse finding I make in relation to the version of events given by the accused during his interview concerning CS, KH or NV must not be allowed to influence my assessment of whether his denials of offending against AP are reasonably possibly true.
Sexual interest
I turn then to whether there is a permissible propensity use of the evidence of the complainants and CS.
The prosecution argued that the evidence of CS and the complainants was admissible to demonstrate that the accused had a sexual interest in young girls with whom he had a familial connection and which he was prepared to act on whenever the opportunity arose by engaging in brazen acts of sexual abuse carrying a high risk of detection.
The fact in issue to which this sexual interest is said to be relevant is therefore the commission of each of the charged acts. In Hughes v The Queen (2017) 263 CLR 338 at [40], the High Court explained the juridical theory behind the admission of evidence of this kind in multiple complainant sex trials:
In the trial of child sexual offences, it is common for the complainant’s account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case.
The Court went on to observe that it is not necessary that propensity or tendency evidence, by itself, makes more likely the occurrence of the facts that constitute the elements of the offence charged (at [40]):
It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged. Of course, where there are multiple counts on an indictment, it is necessary to consider each count separately to assess whether the tendency evidence which is sought to be adduced in relation to that count is admissible.
I accept AP’s evidence that she and KH informed each other that they both alleged abuse by the accused. I accept AP’s evidence – which is consistent with KH’s evidence – that neither disclosed details of any substance about the nature of the abuse allegedly suffered. However, I accept that KH conveyed to AP that there was – as I have termed it earlier – a ‘swell’ of information and allegations seemingly relating to the accused arising out of various members of the family coming together for LSP’s funeral which was conveyed to AP, and this is highly material to the possibilities of collusion and contamination.
I further accept AP’s evidence that KH persistently sought details from or pressed to give details to AP about the alleged abuse and that AP resisted. AP’s evidence about not wanting to discuss what she clearly found to be traumatic allegations was logical and appeared genuine. I have earlier indicated that I did not consider KH’s inquisitiveness and preparedness to offer an exchange of details with AP to undermine my assessment of her credibility or reliability.
As I intimated when examining these issues in the context of count 2, I found AP’s evidence about conversations with NV to be unreliable however I note that NV did not suggest that AP specifically disclosed alleged abuse by the accused. Rather, NV’s evidence was that during her visit to the Royal Adelaide Hospital, AP disclosed having been abused by someone ‘close to the family’ between the ages of six and 15.
AP could not remember having a conversation about abuse with NV in the Royal Adelaide Hospital and maintained that it was only NV that disclosed alleged abuse to her during the trip to Moana Beach. Having regard to the circumstances prevailing upon AP at and around the time of the conversations about which NV gave evidence, I prefer the evidence of NV. Accordingly, I find that AP did make a disclosure to NV at the Royal Adelaide Hospital to the effect that AP had been abused by someone ‘close to the family’ between the ages of six and 15 and that NV had told AP that she had been abused by the accused. In particular, I find that NV told AP that the accused had ‘touched her’ and I have previously dealt with the suggested impact of this misdescription by NV when dealing with count 2. As I adverted to in the context of discussing the s 34L applications, the disclosure to NV (as detailed by NV) was in fact inconsistent with AP’s evidence that the alleged abuse by the ‘other’ person commenced when AP was aged eight or nine (and not six as she said to NV). This is an inconsistency I must have regard to when considering AP’s credibility and reliability.
As I mentioned at the outset of my reasons, evidence of disclosures made by the complainants (and reference to allegations by or discussions with other members of the complainants’ families) has no permissible use in supporting or buttressing their credibility or reliability whether as complaint evidence or otherwise; nor does the evidence of any disclosures prove the truth of any fact asserted.
My findings about these conversations between KH, NV and AP are important to the question of collusion and to my assessment of the possibility that AP’s memory of events has been ‘contaminated’ or influenced by information imparted by her cousins which, it is submitted by the defence, takes on particular significance in this case owing to AP alleging that she was also abused by someone other than the accused, so as to give rise to a risk of conflation. The evidence of these conversations is also important to my assessment of the accuracy of AP’s evidence more generally to the extent there are variations between her account of the discussions and that provided by KH and / or NV.
When considering the issues of collusion and contamination, I have taken into account the other problems or shortcomings in AP’s evidence upon which the defence rely or which I have otherwise identified, as well as the accused’s denials.
Having done so, I reject the possibility that AP, KH and NV have colluded with each other and / or anyone else to make false allegations against the accused. Again, I consider the candour with which AP gave evidence about conversations (to the extent she could remember them) with KH and NV to be fundamentally inconsistent with the possibility that any of them (and perhaps others) conceived of a plan to falsify allegations against the accused.
Equally, I dismiss the possibility that AP’s allegations are the product of a memory contaminated or influenced by information she has received from KH or NV or anyone else for that matter. In this respect, I do not overlook what I earlier described as an apparent ‘swell’ of information implicating the accused in abuse of ‘the cousins’ generally at around the time of AP’s disclosure to KH and the inconsistencies in AP’s evidence that counsel suggested were symptomatic of a non-genuine recollection, as well as AP’s evidence about memories ‘flooding back’ to her. I am satisfied that it is not reasonably possible that the limited information AP received from NV and KH in particular about the abuse they say they experienced, coloured or contaminated AP’s memories of her interactions with her uncle. I consider the substance of AP’s evidence, and the richness of detail that accompanied her account of the alleged abuse, to be fundamentally incompatible with the possibility of conscious or sub-conscious contamination.
Conflation
I turn then to the defence hypothesis that AP may have inadvertently conflated memories of abuse suffered at the hands of someone else with abuse suffered at the hands of the accused.
It will be remembered that AP also gave evidence that she had pushed the abuse she claims to have suffered – both by the accused and another person – out of her mind until, when speaking with the police, ‘a flood of everything’ came back to her.
The nature of the sexual abuse AP suffered at the hands of another person, and the circumstances in which that abuse occurred, was not the subject of detailed evidence at trial. Whilst I accept that the mere fact that AP has experienced abuse by someone else gives rise to a theoretical risk of confusion or conflation with the allegations advanced against the accused, the degree of risk might be thought to be amplified in the event that there was some similarity or cross-over between the nature of the abuse allegedly committed by the accused and the abuse perpetrated by someone else. AP’s evidence was that the ‘other person’ did ‘completely different’ things to her.
However, the evidence does suggest that the periods of alleged abuse coincided with or overlapped each other such that it is necessary to carefully consider whether AP’s memory that the accused abused her might possibly be a false memory shaped by experiences had at the hands of another.
AP gave evidence that the ‘other’ abuse she suffered occurred when she was between eight and nine and her second or third year at boarding school; and her evidence was that the accused abused her between the ages of six and nine / ten. As I have said, AP’s evidence that the ‘other’ abuse occurred from the age of eight or nine was inconsistent with her comment to NV in the Royal Adelaide Hospital that she was abused between the ages of six and 15.
When considering the argument concerning conflation and confusion and, for that matter, AP’s credibility and reliability more generally, it is necessary to scrutinise the evidence of AP with great care in light of these matters and her evidence about memories ‘flooding back’. These features of AP’s account must be examined together with all other matters said to bear adversely on her credibility and reliability and to which I have, and will refer, including the accused’s denials. I have done so.
I have carefully examined the inconsistencies in AP’s narrative which are said to go the possibility of conflation, principally, that:
As to particular (b), she depicted on exhibit P11 where she and the accused were ‘talking’ which was inapposite given her description of the incident and which might tend to suggest that AP’s memory of the event is in fact confused.
As to particular (c), AP gave evidence that she had to walk back to the homestead after the horse stable incident whereas she had said in an affidavit that she in fact returned on the quad bike with the accused because she did not want her parents to question why she had walked back. There was, in addition, AP’s initial suggestion that the particular (c) incident occurred three to four years after the events the subject of particulars (a) and (b), which she later revised after a break in her evidence, suggesting the horse stable incident occurred only a year after particulars (a) and (b).
As to particular (d), AP was inconsistent in her account as to whether the accused was fully naked or was wearing lowered pyjama pants when he forced her to perform fellatio on him.
I also bear in mind AP’s evidence about her frequent hospitalisations and the effects of medication upon her, which is relevant generally to my assessment of AP’s reliability and the possibility of conflation or confusion, together with my finding concerning the unreliability of her memory about her conversations with NV.
In considering the hypotheses of conflation or confusion, I have had regard to the inconsistencies and all of the criticisms of AP’s evidence advanced by Ms Demertzis, as well as others which I have referred to during these reasons. I acknowledge the inconsistent statements AP has made; what I find to be her unreliable evidence about conversations with NV and the conversations AP has had with KH and NV about their allegations; the age of the allegations; the fact that AP was a child during the alleged abuse; and the significant forensic disadvantage to the accused in defending these allegations, which may well have further hindered his ability to marshal material capable of shedding further light on the possibility of conflation or confusion (reiterating of course that the accused carries no burden in this trial), amongst other things.
To my mind, the possibility of ‘conflation’ or ‘confusion’ about the identity of the person responsible for the abuse alleged by AP at Moorook and the nature of the acts she claims she was subjected to there, is comprehensively answered by AP’s evidence, which I have set out earlier, but repeat for convenience:
Q.So am I to assume that it was the abuse from both people that came flooding back because you'd been suppressing the memories of all of the abuse.
A.Yes, but the other abuse didn't happen in the Riverland, it was by a completely different person, the other person is much taller, the other person has a completely different build, it happened in completely, like, different situations, they did completely different things and it didn't happen in like - this was on like a farming property, the other one was in a completely different situation.
Q. Are you sure you're not just confusing what has occurred in your mind.
A. No, definitely not.
Q. After having suppressed it for so long.
A. No.
I find that the detail of AP’s evidence about alleged offending by the accused and the manner in which she explained their relationship as facilitating or presenting opportunities for the alleged abuse to occur, belies the possibilities of confusion or conflation as accounting for her allegations. I accept as truthful and reliable AP’s evidence that she can distinguish between the abuse she alleges was carried out by another person from the alleged abuse she attributes to her uncle. I do not consider that the inconsistencies in AP’s account are in any way symptomatic of conflation or confusion. I accept that the inconsistencies relate to important details of AP’s narrative of the alleged offending, but they do not suggest any uncertainty about the nature of the acts of alleged abuse or the identity of the perpetrator or the location of the alleged abuse.
Forensic disadvantage
As I have done throughout my analysis of the prosecution evidence, I have placed substantial weight on the forensic disadvantage to the accused in challenging allegations relating to events said to have occurred such a long time ago. This significant disadvantage has, I accept, impaired the accused’s ability to challenge and test the prosecution case and to marshal evidence in his defence. It has also impacted, in a way disadvantageous to the accused, on the memories of the prosecution witnesses and resulted in the unavailability of a number of potentially important witnesses.
I have kept the significant forensic disadvantage the accused confronts at the forefront of my mind when evaluating whether the prosecution has discharged its burden.
Conclusions on AP’s evidence
I have collectively examined the matters pertaining to AP’s evidence when assessing her credibility and reliability more generally.
Having undertaken that analysis, I am satisfied that AP’s evidence was credible and, for the main, reliable. As I have indicated, I accept AP is unreliable in relation to the detail of her conversations with NV and I accept that AP has been inconsistent in relation to various aspects of her account concerning the unlawful sexual acts. These are matters that I have anxiously considered when examining AP’s evidence. I have not looked at any asserted shortcoming in AP’s account in isolation.
The inconsistencies in AP’s account – whilst not unimportant – do not cause me to doubt her truthfulness and reliability in relation to the unlawful sexual acts she alleges. To the contrary, I found her evidence to be compelling and the inconsistencies to be understandable and, in the scheme of her evidence, of no material impact on her honesty and accuracy.
Whilst I accept that AP’s account of particular (b) did not suggest a substantive conversation with the accused in the lead up to or aftermath of the incident, she did describe a verbal interaction that consisted of the accused telling AP what he wanted her to do. Although the circumstances in which the annotation to the plan was made were not drawn out in the evidence in any detail, I acknowledge that the annotation is somewhat inapposite in light of AP’s evidence about what transpired and I acknowledge that AP was unable to explain why she wrote ‘us talking’ on the plan. Having reflected on this inconsistency in combination with other asserted inconsistencies and shortcomings in AP’s account, I do not accept that it lends support to the proposition that it is possible nothing other than talking occurred in the shed.
I have conducted the same global analysis with respect to the particular (c) inconsistencies (timing and walking back from the shed). I do not find AP’s ‘shift’ in her evidence as to the timing of particular (c) to be of any moment. Indeed, I found her explanation for revisiting the timeline to be sincere and understandable and her candour in acknowledging the initial error to be a positive reflection on her transparency.
The change in AP’s evidence about how she left the old shed following the particular (c) incident is, I accept, not insignificant. In her affidavit, AP explained the thought process by which she rationalised her decision to return to the homestead on the back of the quad bike with the accused following the alleged abuse, which is in stark contrast to her evidence before me that she was left to walk back. AP’s explanation for the inconsistency was that when she was speaking with the police, ‘things were coming fresh back to me and it was all like a flood, a flood of everything’. As I have said, this change in AP’s evidence is material and I have carefully considered it. I do not accept that the inconsistency (viewed collectively with other inconsistencies and asserted deficiencies in AP’s evidence) undermines the credibility or reliability of AP’s account of the alleged act of abuse itself. I acknowledge the inconsistency is closely related to the gravamen of the allegation and cannot be dismissed as peripheral; but it does not cause me to doubt the accuracy and integrity of AP’s evidence about the charged act itself.
The particular (d) inconsistency, which emerged as a result of AP’s evidence that she thought the accused was wearing pyjama pants at the time of the incident in contrast to her description in her affidavit of September 2019 of the accused being ‘fully naked’ is, likewise, not without significance. The inconsistency relates to an important feature of AP’s account of the charged act and again suggests some degree of uncertainty in her memory. Conversely, the inconsistency does not go to the nature of the alleged act of abuse itself. AP’s evidence that the accused made her perform fellatio on him is unmistakably clear and she was candid about any aspect of the charged act about which she was uncertain, such as whether the accused’s penis was erect when she put it in her mouth and for how long she performed fellatio. Moreover, when confronted with the inconsistency, AP frankly acknowledged that she was ‘unsure’ whether the accused was naked. AP’s willingness to concede her uncertainty is, to my mind, further evidence of her candour.
Drawing these observations together, the inconsistencies are not such as to cause me to question the credibility and reliability of AP’s descriptions of the charged acts.
It is fair to say that the circumstances in which AP described the alleged abuse comprising particulars (a) and (d) occurring were attended by a substantial risk of detection. The abuse described by AP was brazen and risky and accompanied by an ever present chance that AP would complain to her parents, who were of course staying at Moorook with her at the time of the alleged offending. Moreover, there is no suggestion that the event the subject of particular (a) was preceded by any attempt by the accused to normalise sexual activity with AP or to ‘test the waters’ insofar as sexual matters were concerned, so as to gauge AP’s response and the likelihood of complaint on the one hand or compliance on the other.
Further, on AP’s account, the act of fellatio which the accused essentially compelled her to perform took place in the doorway to the accused’s bedroom which was in close proximity to the bedroom occupied by AP’s parents, the bedroom she shared with her brother and was just down a hallway from the accused’s parents’ bedroom. There was, on AP’s version, no real attempt by the accused to conceal the nature of the activity from any other occupant of the household who might have left their bedroom that night. Indeed, the evidence would tend to suggest that anyone else getting up to use the bathroom at the time would inevitably have discovered what the accused was doing. This incident also occurred somewhat ‘out of the blue’, some two or so years after the revised timetable AP gave for the occurrence of particular (c).
Similar observations could be made about AP’s evidence concerning particular (b). That incident took place during daytime in the open shed not far from the main residence and was also accompanied by a substantial risk of detection, although as AP pointed out, some farm equipment or machinery in the shed would have provided some obstruction to anyone looking into the shed and seeing what was occurring.
The defence argued that it was implausible that the accused would commit such brazen and serious acts of sexual abuse in such readily detectible circumstances.
There is some force in this contention but ultimately it may be said that what AP was describing were opportunistic acts of abuse in an environment with which the accused was intimately familiar. Although I have carefully reflected on these criticisms of AP’s account, I do not accept that her evidence was inherently implausible, improbable or illogical. Rather, I found AP’s evidence to be forthright, honest, persuasive, and in the main, accurate.
I consider AP was a compelling witness who provided a convincing account of alleged abuse by her uncle over a period of years. The asserted shortcomings in her evidence are not such as to cause me to doubt the truthfulness of her evidence, which I consider was also, generally, reliable (save where I have indicated otherwise).
I repeat, once more, that a finding that AP was a credible and generally reliable witness, is not dispositive of the accused’s guilt of count 3. I cannot return a verdict of guilty unless I can reject the accused’s denials in relation to count 3 as not reasonably possibly true and I am satisfied beyond reasonable doubt, based on AP’s evidence, of each and every element of count 3.
The accused’s denials
The accused denied the allegations in relation to AP. He did so with apparent conviction. As I have previously acknowledged, an accused who denies historical allegations that cannot be identified any more precisely from a chronological perspective other than by reference to the age of the complainant or a year or years in which the event/s are alleged to have occurred, may not be usefully able to do much more than deny any wrong-doing. The passage of time and the imprecision of the allegations will often be a constructive impediment to proffering a more comprehensive or positive and alternative version of events. Of course, an accused has no obligation to say anything at all let alone offer an alternative version of events and carries no burden to prove his or her denials to any standard whatsoever. It remains at all times for the prosecution to disprove a denial as not reasonably possibly true.
As I have said, the accused was emphatic and consistent in his denials. However, the mere fact that the accused has uttered denials does not compel me to accept his denials as reasonably possibly true. In considering that issue, I have regard to all of the evidence that is relevant and admissible on count 3, including of course, the evidence which may be thought to support the denials (such as the evidence bearing upon the questions of collusion and contamination, and the shortcomings in AP’s evidence) and the evidence which tells against them. Equally, whilst mere acceptance of AP’s account as credible and reliable would in no way be determinative of whether the accused’s denials are reasonably possibly true, an intermediate conclusion that AP’s account was honest, accurate, powerful and persuasive, can provide a sufficient basis on which to conclude that the accused’s denials can be rejected as not reasonably possibly true. What is imperative when considering whether the accused’s denials are a reasonable possibility, is that all of the shortcomings in the prosecution case are taken into account.
Having undertaken that assessment, I reject the accused’s denials as not reasonably possibly true. I do so because I am satisfied of the credibility and reliability of what I considered to be a compelling and powerful account from AP. Notwithstanding the shortcomings in AP’s account that I have identified, her evidence was persuasive and, in respect of her descriptions of the acts of abuse, clear, consistent and detailed. The qualities of AP’s account are such that I reject that the accused’s denials are reasonably possibly true.
In reaching this conclusion, I have not taken into account my rejection of the accused’s denials in respect of KH and NV nor my adverse findings in relation to his version of events concerning CS, consistently with my earlier conclusion that the evidence of those witnesses is not cross admissible in support of count 3.
This conclusion does not pre-ordain a finding that the prosecution has proved count 3 beyond reasonable doubt. It remains necessary for me to examine whether, in light of the evidence I accept as credible and reliable, the prosecution have proved the elements of the offence beyond reasonable doubt.
Elements 1, 2 and 3 of count 3
As I remarked at the outset of my reasons, it was not in dispute that the accused was an adult at the time of the alleged incidents relating to count 3; that AP was a child under the age of 17 at the time of the alleged incidents; and that the accused knowingly maintained a relationship with AP throughout the period of the alleged incidents.
I am satisfied beyond reasonable doubt of the first three elements of the offence.
I move then to the findings I make as to each of the particulars. I indicate that all findings I have made below have been made beyond reasonable doubt.
Findings – Particular (a)
I am satisfied beyond reasonable doubt that when AP was around six years of age, the accused inserted a finger into her vagina in the circumstances she described. The accused thereby committed the sexual offence of unlawful sexual intercourse with a person under 12 years old.
Findings – Particular (b)
I am satisfied beyond reasonable doubt that around a week or so after the event comprising particular (a), when AP was about six years old, the accused sexually abused her in the long rectangular shed depicted on P3, by having her masturbate his penis. Consistently with her general curiosity and interest in the contents of the shed, I find that AP had gone into the rectangular shed after seeing her uncle putting something away. I find that the accused approached AP with his penis exposed and that he procured her to masturbate his penis with her hand by both his words and conduct. In this respect, I am satisfied that the accused asked AP to rub his penis and that he grabbed her hand and placed it on his penis, moving her hand so as to demonstrate what he wanted her to do. By grabbing AP’s hand, placing it on his penis and manipulating her hand to stroke his penis, the accused assaulted AP in circumstances of indecency and thus committed the sexual offence of indecent assault.
Findings – Particular (c)
I am satisfied beyond reasonable doubt that, a year or so after the events the subject of particulars (a) and (b), and when AP was around seven years of age, the accused masturbated himself to ejaculation in the presence of AP in the shed I have referred to as the ‘horse stable’.
I find that the accused had effectively created an opportunity to be alone with AP in the horse stable by inviting her to go with him to get something from the stable. I am satisfied beyond reasonable doubt that once they were at the horse stable, the accused told AP he was going to show her something she had not seen before and that he exposed his penis and masturbated himself to ejaculation in AP’s presence. The accused’s conduct in the presence of a person under 16 years of age constituted the sexual offence of committing an act of gross indecency. Plainly enough, an adult masturbating in the presence of a seven year old who was his biological niece is not just indecent but grossly indecent.
Findings – Particular (d)
AP gave evidence that the fourth incident with the accused occurred when she was nine or 10 years old, placing it around 2005 / 2006. I am satisfied beyond reasonable doubt that the accused had AP perform an act of fellatio on him at the Moorook property, in the circumstances described by AP. I find that on the occasion of particular (d), AP, who was then sharing a bedroom with her brother during this particular stay, got out of bed one night to use the toilet which was essentially opposite the accused’s bedroom. The lights in the house were off and, I infer, the other occupants of the house were asleep, save that there was light emanating from under the accused’s bedroom door. After using the toilet, I find that AP came across the accused, who was then standing in the doorway to his bedroom. The accused told AP sternly, but quietly, to ‘suck his dick’. I find that AP then performed fellatio on the accused. The incident came to an end when AP ran to the toilet and vomited, before returning to bed.
By having AP perform fellatio upon him, the accused committed the sexual offence of unlawful sexual intercourse with a person under 12 years of age.
Accordingly, I find it proved beyond reasonable doubt that the accused committed at least two unlawful sexual acts against AP during the period that he knowingly maintained a relationship with her. AP was clearly a child at the time of the unlawful sexual acts and the accused was an adult.
I find the accused guilty of count 3.
Verdicts
For the reasons I have given, I find the accused guilty of counts 1, 2 and 3 on the Information dated 27 May 2022 (as amended). In light of my verdict as to count 3, it is not necessary for me to deliver verdicts in relation to counts 4, 5, 6 and 7 which were charged in the alternative to count 3.
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