R v L, DM
[2008] SADC 176
•22 December 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v L, DM
Criminal Trial by Judge Alone
[2008] SADC 176
Reasons for the Verdicts of His Honour Judge Millsteed
22 December 2008
CRIMINAL LAW
Trial by judge alone – accused charged with seven counts of indecent assault and one count of incest – offences alleged to have been committed 20-25 years ago on his daughters TPW and BKL - application for counts relating to one complainant to be tried separately from counts relating to other complainant on grounds of prejudice - application rejected - held accused pleaded guilty to count 1 (indecent assault against TPW) but not guilty to counts 2-8 – evidence relating to count 1 held to be admissible in relation to other counts concerning TPW as evidence of inter alia, the accused’s sexual attraction for TPW – evidence of uncharged acts of breast touchings of TPW and BKL held to be admissible as evidence of the accused’s sexual attraction for each complainant - accused found guilty of counts 2-8.
Criminal Law Consolidation Act 1935 (SA) s 56, s 72, s 278(1), s 278(2); Juries Act 1927 s 7; Criminal Law Consolidation Amendment Act 1967 s 11; Evidence Act 1929 s 34I, referred to.
De Jesus v The Queen (1986) 61 ALJR 1; Hoch v The Queen (1988) 165 CLR 292; Abrahamson v The Queen (1994) 63 SASR 139; Longman v The Queen (1989) 168 CLR 79; Crampton v The Queen (2000) 206 CLR 161, considered.
R v L, DM
[2008] SADC 176INTRODUCTION
The accused, DML, is charged on Information with seven counts of indecent assault (counts 1-7) and one count of incest (count 8). The Information is in the following terms:
First Count
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[DML] between the 1st day of January 1971 and the 31st day of December 1975 at Goolwa, indecently assaulted [TPW].
Second Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1st day of January 1972 and the 31st day of December 1975, at Goolwa, indecently assaulted [TPW].
Third Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1st day of January 1971 and the 31st day of December 1975, at Goolwa, indecently assaulted [TPW].
Fourth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1st day of January 1974 and the 31st day of December 1975, at Goolwa, indecently assaulted [TPW].
Fifth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 28th day of July 1974 and the 28th day of July 1976, at Goolwa, indecently assaulted [BKL].
Sixth Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 28th day of July 1974 and the 28th day of July 1976, at Goolwa, indecently assaulted [BKL].
Seventh Count
Indecent Assault. (Ibid).
Particulars of Offence
[DML] between the 1st day of January 1975 and 31st December 1976, at Goolwa, indecently assaulted [TPW].
Eighth Count
Incest. (Section 72 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
[DML] between the 1st day of January 1973 and 31st December 1978, at Goolwa, being related as parent to [TPW], committed fornication with her.
The accused elected to be tried by a judge without a jury pursuant to s 7 of the Juries Act 1927. Upon his arraignment the accused pleaded guilty to count 1 and not guilty to the remaining counts. The trial commenced on 10 June 2008 and the evidence was completed three days later. The closing addresses of counsel were delivered on 19 September 2008.[1] I then adjourned the trial to consider my verdicts. I now deliver my verdicts and publish my reasons.
[1] Counsel for the accused and the prosecution filed written submissions which they supplemented with oral submissions.
OVERVIEW
At the time of trial the accused was 72 years of age. The prosecution contended that between 1 January 1971 and 31 December 1978, the accused sexually assaulted his daughters TPW and BKL in the family home at Goolwa. During that period TPW and BKL were aged between eight to 15 years and six to 13 years, respectively.
In relation to TPW the accused is alleged to have indecently assaulted her on separate occasions by touching her vagina with his fingers and rubbing his penis between her thighs until he ejaculated (count 1), touching her vagina on the outside of her clothing (counts 2 and 4) and inserting his fingers in her vagina (counts 3 and 7). He is also alleged to have committed incest by fornicating with TPW (count 8). In relation to BKL the accused is said to have indecently assaulted her on two occasions by inserting his fingers into her vagina (counts 5 and 6).
The complainants failed to complain about the alleged sexual assaults until many years later. TPW first complained to her husband, MW, in 1999 and BKL to members of her family in about late 2001. The complainants first notified police of their allegations in February 2004.
On 26 November 2004, the accused was interviewed by Detective Ann Borgardt. He denied each of the allegations made by KPW and BKL and maintained that he had not engaged in any form of sexual impropriety with his daughters.
In late 2001 the accused received a letter from TPW (Exhibit P4) wherein she complained that he had sexually abused her as a child. Following the accused’s interview with police in 2004 the police located a letter written by the accused to TPW (Exhibit P5) in which he said: “I am sincerely sorry for what I have done.”
On the trial the prosecution called the two complainants, Detective Borgardt and MW. The accused gave evidence in his defence and did not call any witnesses. He denied the sexual allegations except in respect of count 1. As I have said, he pleaded guilty to that charge though on a basis disputed by the prosecution. He said that he wrote the letter of apology because of his conduct in relation to count 1.
SEVERANCE APPLICATION
Prior to the commencement of the trial Mr Miller, counsel for the accused, applied for the counts relating to BKL to be tried separately from the counts relating to TPW. He submitted that there was no cross-admissibility of evidence between the two sets of charges and that the accused would be prejudiced if they were tried together. The prosecutor, Mr Crowe, conceded that there was no cross-admissibility but opposed the severance application.
Section 278 (1) of the Criminal Law Consolidation Act 1935 (“the Act”) provides that charges for two or more offences may be joined in the same information if the charges are founded on the same facts or form or are part of a series of offences of the same or of a similar character. The court may sever counts properly joined under s 278 (1) where it is of the opinion “that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same information” (s 278 (2)).
In deciding whether offences are of the same or of a similar character both the law and the facts must be taken into account.[2] However, by requiring a series of offences, the legislation does not permit the joinder of counts merely because they are of the same, or of a similar character. There must be a factual nexus between the offences that enables the offences to be described as a series.[3] It is well established that offences may form, or be part of, a series of offences even though they involved different victims and occurred at different places and times.[4] Furthermore, there does not have to be cross-admissibility between the charges.[5]
[2] Ludlow v Metropolitan Police Commissioner [1971] AC 29 per Lord Pearson at 39; approved in Sutton v The Queen (1984) 152 CLR 528 per Brennan J at 540-541
[3] Ludlow v Metropolitan Police Commissioner, above n 2
[4] R v Liddy (2002) 81 SASR 22 Mullighan J at [119]
[5] Ibid at [119]
In the present case all of the charges were, in my view, properly joined on the same information for the purposes of s 278 (1). The indecent assault charges were of the same legal character. Incest is a sexual crime and is therefore of a similar character to indecent assault.[6] There was also a sufficient factual nexus or correlation between the alleged incidents to enable them to be characterised as a series of offences of the same or of a similar character for the purposes of s 278 (1) in that all of the alleged incidents involved sexual offences committed by the accused on his daughters in the family home when they were children.[7]
[6] In De Jesus v The Queen (1986) 61 ALJR 1 Dawson J, at 9, observed that offences of rape and indecent assault could be regarded as offences of a similar character
[7] Compare R v Liddy, above n 4
As I understood Mr Miller’s submissions he conceded, or at least did not dispute, that all of the charges were properly joined on the same information pursuant to s 278 (1). However, he contended that I should exercise my discretion under s 278 (2) to sever the counts relating to TPW from those relating to BKL to prevent the accused suffering impermissible prejudice.
In De Jesus v The Queen[8] the High Court held that in sexual cases where there are different complainants and the evidence of one complainant is not relevant to the charge in respect of the other complainant(s) ordinarily the trial judge should order separate trials because a direction to the jury by the judge is unlikely to guard against the prejudice generated by sexual allegations. The principle expressed in De Jesus was subsequently endorsed by the High Court in Hoch v The Queen.[9]
[8] (1986) 61 ALJR 1 Gibbs CJ at 3, Brennan J at 378, Dawson J at 10
[9] (1988) 165 CLR 292 Mason CJ, Wilson and Gaudron JJ at 294, Brennan and Dawson JJ at 298
In my view, the principle expressed in De Jesus does not apply where the accused has elected for trial by judge alone. The principle is founded on the notion that a trial judge’s directions to a jury are unlikely to obviate the prejudice of multiple allegations. Trial judges are expected to be able to separate prejudice from relevance and use evidence in accordance with strict legal principle. Indeed, that is often the reason why accused persons apply for trial by judge alone.
In Abrahamson v The Queen[10] King CJ (with whom the other members of the Court agreed) rejected an argument that evidence presented by the prosecution in a case involving trial by judge alone should have been excluded because its prejudicial effect exceeded its probative value.
[10] (1994) 63 SASR 139
His Honour said:[11]
The principle that a judge should exclude evidence, the prejudicial effect of which outweighs its probative value, has very little part to play in a trial by judge alone. The rule is designed to protect juries, rather than judges, from exposure to prejudicial material which has little probative force. The learned judge in this case was quite able to discard any prejudicial effect of evidence of this kind and to focus on such probative weight as he considered that it properly bore.
[11] Abrahamson v The Queen (1994) 63 SASR 139 at 143
In my opinion, the remarks of King CJ apply with equal force to applications for severance of counts on grounds of prejudice in cases involving trial by judge alone.
Furthermore, it is to be observed that there was an inconsistency in Mr Miller’s argument. On the one hand he submitted that severance was essential to ensure that my consideration of each set of charges was not prejudiced by evidence relating to the other set of charges. On the other hand, he conceded that if I granted the severance application, that it would not be inappropriate for me to proceed to try either the TPW charges or the BKL charges though I was fully aware of the allegations made by both complainants. He accepted that I would be able to focus on the evidence relating to the charges to be tried and not be influenced by my knowledge of the other set of allegations. To my mind, this concession contradicts the argument advanced in support of the application for separate trials.
For these reasons I dismissed the application for severance and proceeded to try both sets of charges.
MATTERS OF LAW - DIRECTIONS
Burden of proof
The accused, of course, comes to court with a presumption of innocence in his favour. I bear in mind that the burden of proving the charges against the accused rests on the prosecution. The prosecution must prove beyond reasonable doubt each and every element of an offence before the accused can be found guilty of that offence.
Elements of the offences
Indecent assault is a breach of s 56 of the Act.
The particulars of the offences contained in the Information allege that the seven counts of indecent assault were committed between 1 January 1971 and 31 December 1978.
During that period s 56 stated:
Any person who indecently assaults any person shall be guilty of a misdemeanour, and, for a first offence, liable to be imprisoned for any term not exceeding five years and for any subsequent offence to be imprisoned for any term not exceeding seven years.
Section 57 provided:
(1) No person under the age of eighteen years shall be deemed capable of consenting to any indecent assault committed by any person who is his or her guardian, teacher, schoolmaster or schoolmistress.
(2) Subject to subsection (3) no person under the age of seventeen years shall be deemed capable of consenting to any indecent assault.
(3) Where the person is between the age of sixteen and seventeen years his or her consent shall be a defence to a charge of indecent assault if the accused proves that at the time of the said incident –
(a) he or she was under the age of seventeen years; or
(b) he or she believed on reasonable grounds that the person was of or above the age of seventeen years.
It is well established that the offence of indecent assault is committed when a person assaults the victim, in other words intentionally and unlawfully applies force against the victim, and the assault is accompanied by circumstances of indecency.[12] It is for the tribunal of fact to determine what is indecent in accordance with standards of right thinking members of the community. Consent is not an issue in respect of any of the charges because the complainants were under the age of 17 years at the time of the alleged offences.
[12] R v Nisbett [1953] VLR 298; R v Court [1989] AC 28
In the present case the accused, in count 1, is alleged to have deliberately touched TPW’s vagina with his fingers and rubbed his penis between her thighs until he ejaculated. In relation to the other charges of indecent assault concerning TPW and BKL he is alleged to have fondled or inserted his finger(s) into the complainants’ vaginas. It cannot be doubted that right thinking members of the community would regard such acts as indecent.
It follows that the central issue in relation to each count of indecent assault is whether the prosecution has proved that the complainant gave a truthful and accurate account of the alleged incident. It is not, of course, a question of preferring the complainant’s evidence to that of the accused. If I am unable to say where the truth lies the prosecution has failed to prove its case.[13] In relation to each count the prosecution must prove the truth and reliability of the complainant’s account beyond a reasonable doubt.
[13] R v Calides (1983) 34 SASR 355
In count 8 the accused is charged with incest, it being alleged that between 1 January 1973 and 31 December 1978 being related as parent to TPW, he committed fornication with her. Incest is a breach of s 72 of the Act.
In its original form s 72 read:
(1)Any persons being related, either as parent and child or brother and sister, who unlawfully intermarry with each other, or who commit fornication or adultery with each other, shall be deemed to be guilty of incest.
(2) …
The Act did not define fornication but as a matter of ordinary English it means voluntary sexual intercourse between unmarried persons.[14]
[14] The Macquarie Dictionary 2nd revised ed
Section 72 was amended by s 11 of the Criminal Law Consolidation Amendment Act 1976[15] to read:
Any persons being related either as parent and child or as brother and sister who have sexual intercourse with each other shall be guilty of the felony of incest and liable to be imprisoned for a term not exceeding seven years.
[15] The amendment came into force on 9 December 1976
The amending legislation inserted in the Act a definition of sexual intercourse that expanded the conventional meaning of those words to include acts of penile penetration of the anus or mouth of another person.[16]
[16] Section 3
On the prosecution case it is not clear whether the alleged act of sexual intercourse occurred before or after the 1976 amendment, though the particulars of the offence use the language of the section in its original form, that is, fornication. Nothing turns on this because it is clear that an act of sexual intercourse involving penile penetration of the vagina (as alleged in count 8) would constitute fornication for the purposes of s 56, pre amendment, and sexual intercourse for the purposes of s 56, post amendment.
Here, there is no dispute that the accused is the biological father of TPW. Once again the central issue is whether the prosecution has proved beyond a reasonable doubt that TPW gave a truthful and accurate account of the accused having subjected her to an act of sexual intercourse.
Separate consideration of charges
As I earlier observed the prosecution properly conceded that there was no cross admissibility of evidence between the charges relating to TPW and those charges relating to BKL. The two sets of charges must be considered separately. The charges relating to each complainant also require separate consideration subject to one qualification. In my view the evidence relating to count 1 is relevant to the other charges concerning TPW on several grounds to be discussed later.[17]
[17] see [53] - [54]
Late complaints
Both TPW and BKL failed to make a prompt complaint about the accused’s alleged sexual abuse. As earlier observed in each case the complaint was not made until many years after the alleged incidents.
In relation to each complainant the absence of a prompt complaint is a matter that I must, and do, take into account in assessing her credibility. However, by virtue of s 34I of the Evidence Act 1929, and indeed as a matter of commonsense, it is necessary to bear in mind that the delay in making a complaint about the alleged conduct of the accused does not necessarily indicate that the relevant complainant’s allegations are false. There may be valid reasons for the delay. In the present case TPW gave reasons for her failure to make a timely complaint. However, no evidence was elicited from BKL as to why she did not make an earlier complaint. Later in my reasons I discuss the competing points in respect of the significance of the late complaints.
At the outset I also remind myself, in accordance with the principles expressed by the High Court in Longman v The Queen[18] and Crampton v The Queen,[19] that it is necessary to take into account the forensic disadvantages that confront an accused person in adequately testing allegations relating to events as old as these.
[18] (1989) 168 CLR 79 at [30]
[19] (2000) 206 CLR 161 at [45], [130]
In the present case, I recognise that the accused has been denied the forensic weapons that contemporaneity provides. For example, both complainants were unable to remember some matters of detail especially the dates or approximate dates when these various alleged incidents took place. If there had been prompt complaints the accused would have been in a better position to recall where he was, what he was doing on the relevant occasions and who else was in the house when these incidents are said to have taken place. Furthermore, the vagueness of some aspects of the complainants’ evidence limited the accused’s ability to test the truthfulness and reliability of their accounts. In the circumstances, it is appropriate to warn myself in respect of each complainant, that it would be dangerous to convict on her evidence alone unless, after scrutinising the evidence with great care, I am satisfied of its truth and accuracy.
THE EVIDENCE
Background
The accused is a retired builder and married in 1963. The marriage produced three daughters, namely, TPW (born on 21 April 1963), BKL (born on 28 July 1965) and JL (born on 17 June 1968) and a son ML (born on 22 August 1964).
The accused and his family commenced living at Goolwa in about 1972. They initially lived in a house in Newacott Street. On 25 May 1973 the accused and his wife (Mrs L) purchased a house in Osborne Street, Goolwa North where all of the offences are said to have been committed. Accordingly, on the prosecution case 25 May 1973 is the earliest date for any of the offences to have occurred.
Following the purchase the accused and his family remained in the house in Newacott Street while the accused renovated the premises in Osborne Street. The renovations were completed about 12 months later. The accused said that they eventually moved into the house at North Goolwa in early 1974. The complainants were unsure of when the move occurred. The accused’s father also lived in the house at Goolwa North for several years. He died on 6 October 1980 aged 77. During this period the accused’s wife worked at a local motel.
TPW and BKL commenced attending the Goolwa Primary School in 1972. TPW was in Year 4 and BKL in Year 2. TPW and BKL completed year 7 at the primary school on 12 December 1975 and 16 December 1977, respectively. They then attended Victor Harbor High School. TPW eventually left home in 1981 shortly before her 18th birthday. She married MW in 1984. BKL married in 1988.
TPW charges
Count 1
TPW testified that the first incident of sexual abuse that she could recall occurred in the bedroom she was occupying before the house renovations were completed. She said that she was about nine years of age, and in Grade 4 (1972), when it occurred. She believed that the incident happened on a weekend because she had slept in. Her mother was not at home. She assumed that her mother was at work or was playing tennis. TPW could not remember where her siblings were but pointed out that they usually played sport on the weekends.
TPW said that the accused entered her bedroom and got into bed next to her. At the time she was lying on her left side, wearing a nightie and underwear. He lay on his left side and pressed his body up against hers from behind - adopting the “spoon position.” He was wearing a pair of pyjamas that had a drawstring. The accused reached over and placed one of his hands inside her underwear and fondled her vagina with his fingers. He then inserted and rubbed his erect penis between her upper thighs. She then felt wet between her legs.
TPW had previously received sexual instructions from her parents but was unsure about what had happened. The accused told her that the substance she could feel was semen and remarked that she did not have to worry about becoming pregnant because he had had a vasectomy when the family was living in Broken Hill. The accused warned her not to tell anyone about the incident claiming that people did not understand how fathers loved their daughters. He also stated that he would get into trouble and that her mother would be left to live alone.
As I have said the accused pleaded guilty to count 1 but on a basis disputed by the prosecution. The accused said that the incident happened in 1975 when TPW was in her last year of primary school. The accused testified that the incident happened on a Sunday morning when his wife was working at the motel. He said that his four children came into his bedroom every Sunday morning to say hello and read the comics in the Sunday Mail newspaper. On this particular occasion TPW got under the bedclothes next to him while the other children sat on the bed reading the paper.
In examination-in-chief the accused gave the following account of the incident:[20]
[TPW] back[ed] right into my groin. Naturally I created an erection and I put my arm over her thigh and held my penis in my hand and that was it. I did ejaculate in my hand and there was no movement because the other three kids were still sitting … on the bed reading and that. Then I said ‘Look, I think you [TPW] better go and have a shower’ or something like that ‘You other kids hop off the bed, we’ll go and have breakfast’ I had a wash. I said to TPW after that ‘what we done was wrong, it must never happen again’.
[20] T 220-221
In cross-examination[21] the accused denied that he deliberately placed his penis between his daughter’s thighs. He suggested that his penis penetrated her thighs only because she had backed into him. The accused denied rubbing his penis between her legs and using his daughter to sexually excite himself. He said that he ejaculated after his penis had been motionless between her legs for a few seconds though he did not suffer from premature ejaculation. He claimed that the act of ejaculation was “accidental” - “it just happened.” When the accused was asked to explain why he reached over and held the end of his penis while it was between his daughter’s legs, he said that he wanted to ensure that his penis did not touch her vagina.[22]
[21] T 260-271
[22] T 271
The accused also denied instructing TPW not to tell anyone about the incident though on his own account he had committed a serious offence and it was in his interests to secure his daughter’s silence. He agreed that he had had a vasectomy in about 1970 when TPW would have been about six to seven years of age but denied having discussed the matter with TPW during the incident. He said that TPW was aware that he had had a vasectomy because his wife had explained to her that he was going to have the operation prior to his admission to hospital in 1970.
I was unimpressed by the accused’s evidence in relation to count 1. His account of the incident in the bedroom was implausible. I find that he felt constrained to admit that he had indecently assaulted TPW because of admissions he made in the letter of apology sent to TPW in about 2001 (Exhibit P5) but deceitfully attempted to dilute the seriousness of his conduct. His account had the tendency to blame his daughter for his own misconduct. I am satisfied beyond reasonable doubt that TPW gave a substantially accurate and reliable account of the incident. I also accept that the accused warned TPW not to tell anyone about it.
Permissible use to be made of count 1
I turn to the use that can be made of my findings in relation to count 1. In my view, the evidence relating to count 1 is admissible in relation to the other charges concerning TPW on the following grounds:
·First, the evidence is relevant to show that the other offences alleged to have been committed against TPW did not happen out of the blue so to speak.[23]
·Second, the incident may serve to explain why the accused was confident enough to engage in sexual acts on subsequent occasions and why TPW acquiesced.[24]
·Third, the circumstances of the incident and the accused’s direction that TPW should not speak to anyone helps explain why TPW did not make any complaint about her father’s conduct until much later in the piece.[25]
·Fourth, the evidence demonstrates a sexual attraction on the part of the accused towards TPW.[26] I do not overlook that the evidence cannot be used for this purpose unless the prosecution has proved such an attraction beyond reasonable doubt.[27] I am satisfied that the prosecution has discharged its onus in that regard. It is to be observed that counsel for the accused agreed that the evidence relating to count 1 could be used for the purpose of showing that the accused had a sexual interest in TPW.
[23] R v Neiterink (1999) 76 SASR 56 at [43]
[24] HML v The Queen (2008) 82 ALJR 723 at [9], [515]
[25] R v Neiterink, above n 23 at [43], HML v The Queen, above n 24 at [9], [515]
[26] R v Neiterink, above n 23 at [44]
[27] Ibid per Doyle CJ at [45]; HML v The Queen per Gummow J at [41], Kirby J at [63], Hayne J at [247] and Keifel J at [506]
So, they are the grounds upon which the evidence relating to count 1 can be used in relation to the other counts concerning TPW. Of course, the evidence is not admissible in relation to the charges concerning BKL. Indeed, as I earlier observed, the prosecution properly conceded that none of the evidence relating to the charges concerning TPW is admissible in relation to the BKL charges and vice versa.
Count 2
TPW was unable to recall the sequence of the incidents of sexual abuse that occurred after count 1. Count 2 is based on events that are said to have taken place when Mrs L and TPW’s three siblings stayed overnight one weekend with the accused’s sister at Mount Burr. There is no dispute that the trip occurred. However, there is a conflict in the evidence as to when the trip took place. TPW believes that it happened while she was still in primary school. The accused stated that it happened when TPW was 13 to 14 years of age. Both the accused and TPW were not sure of the number of nights Mrs L stayed away.
TPW testified that on the night of the incident the accused asked her to get into bed with him. She complied. At the time she was wearing a nightie and underwear. The accused then grabbed hold of her right wrist and asked her to touch his penis claiming that he wanted to show her the difference between boys and girls. She pulled her hand away and began crying. The accused apologised but then proceeded to touch her vagina on the outside of her underwear. The touching was brief. She then fell asleep. TPW stated that she never complained to her mother about the incident because she did not want to get her father into trouble and did not want her mother to be left alone.
The accused testified that TPW did not travel to Mount Burr with her mother and siblings because she had to play in a netball final that weekend. He said that they arranged for her to stay the weekend with his wife’s brother and sister-in-law because their daughter was playing in the same final. No evidence was put before me as to where the accused’s brother-in-law resided. However, I have assumed that he lived in the general area of Goolwa and Victor Harbor. The accused said that as far as he could recall TPW stayed at his brother-in law’s home but, in cross-examination, conceded that she may have spent at least one night alone with him. The accused said that if TPW did stay at home with him that she would have slept in her own bed. He denied that he sexually interfered with her that weekend.
Count 3
TPW gave evidence of an incident[28] that occurred while the accused was in the cellar of the house. TPW could not remember when the incident happened except to say that she was in primary school at the time. Indeed, she was uncertain as to whether or not this incident occurred before count 1.
[28] T 56-59
There is no dispute that the trap door to the cellar was situated in the floorboards of the dining room. A ladder was positioned below the opening to provide access to the cellar. TPW said that at the time of the incident the trap door was open. She was sitting on the edge of the opening dangling her legs into the cellar below. She was wearing a dress and underwear. She said the accused reached up and inserted a finger through one of the leg holes in her underwear and penetrated her vagina. He did not fully insert his finger and suddenly withdrew it when her mother arrived home. TPW could not remember where her mother had been but assumed that she had been out shopping or playing tennis.
The accused denied the allegations.[29] He said that there was an occasion when he pumped water from the cellar and made modifications to it. He asserted that when he was working in the cellar the children were not allowed to be near the open trap door. He said he placed chairs around the opening to prevent the children falling into the cellar. However, in cross-examination he conceded that there might have been an occasion while he was working in the cellar when TPW sat on the edge of the trap door in the manner she suggested.[30]
Count 4
[29] T 221-223
[30] T 277-278
TPW gave evidence of an incident that occurred in the backyard of the house near a portable cage in which she kept pet rabbits.[31] She said that the incident happened when she was quite young, possibly when she was in Year 5. TPW said that on the day of the incident the cage was positioned behind a tank stand in the backyard near a side fence and could not be seen from the house. She said that the accused sat down on the grass next to her while she was feeding the rabbits in the cage and touched her vagina with his fingers on the outside of her clothes, which were possibly jeans.
[31] T 59-62
The accused agreed that TPW had a portable rabbit cage and said that he would help his daughter move it around the backyard from time to time.[32] However, he denied that there was ever an occasion when he sexually interfered with his daughter in the circumstances described by her. Indeed, he stated that there was never an occasion when he sat on the grass with TPW while she was feeding the rabbits.[33]
Count 7
[32] T 223-224
[33]. T 279-280
TPW said that when she was in about Year 6 or 7 at school there was an incident when her father called her into his bedroom.[34] TPW said that she went into her parents’ bedroom and saw the accused standing naked in front of the mirror. He asked her to close the door behind her. He then tucked his penis between his legs and said: “I now look like your mother”. The accused then asked her to sit down on the bed next to him and put his hand inside her tracksuit pants and underwear. He then inserted a finger into her vagina.
[34] T 62-64
In examination-in-chief TPW was asked how she felt about the act of digital penetration. She replied: “I enjoyed it.” I noticed that she appeared quite embarrassed when she gave that answer. Her embarrassment appeared to be genuine. TPW went on to say that the incident happened quickly because the other children’s voices could be heard nearby. She said that they might have been in the process of entering the house from the backyard. She recalled that her mother was out at the time.
The accused testified that no such incident happened. Indeed, he said that there was never an occasion when TPW walked into the bedroom and saw him naked.[35]
Count 8
[35] T 225
The charge of incest is based on the allegation by TPW that the accused subjected her to an act of sexual intercourse.[36] TPW was unable to identify when the incident took place except to say that it occurred in her later years of primary school when her breasts had begun to develop and she had commenced wearing a bra.
[36] T 65-70
TPW said that immediately before the incident she was in the lounge room watching television. She was wearing a pair of jeans and a T-shirt. The accused entered the house through the back door from the rear yard and went into the lounge room. TPW could not remember what he was wearing. She said that the accused got her to lie on her back on a black vinyl couch in the lounge room. He then lay on top of her and inserted his penis into her vagina. He then proceeded to have sexual intercourse until he ejaculated. The complainant had no memory of the accused undressing and was not questioned as to how and to what extent her own clothes were removed.
TPW said that towards the end of the incident she saw her grandfather in the backyard about 30 metres from the house walking slowly towards the back door with the aid of his walking stick. She then said to the accused: “Please hurry up. grandfather is coming.” TPW then went to the toilet because the accused had told her that her hymen might have been ruptured and that she might experience bleeding. She wiped herself with toilet paper and observed semen on it. There was no evidence of bleeding. She added that the act of intercourse did not cause her any pain or discomfort.
The accused denied that he ever had sexual intercourse with TPW in the lounge room or anywhere else. The defence also contended that TPW would not have been in a position to have seen her grandfather walking towards the back of the house if she was on the couch in the lounge room with her father on top of her. In order to understand that argument it is necessary to say a few words about the layout of the house.
The back door of the house gave access to the family room which was adjacent to the lounge room. The prosecution tendered a floor plan of the house (Exhibit P2). The plan was not to scale. According to the plan, which was consistent with TPW’s evidence, the back door was almost directly in line with a door in the family room (the internal door) that provided access to the lounge room. The back door had a timber frame with an opaque glass panel. The walls on both sides of the back door contained opaque glass windows that commenced about 1.5 metres above the ground. It was possible to see into the backyard from the lounge room, depending on one’s position in the lounge room, if the internal door and the back door were both open.
In cross-examination, TPW denied that she would not have been able to see her grandfather in the back yard and drew the position of the couch on the floor plan. The drawing indicated that the couch was in the centre of the lounge room and was turned on a slight angle towards the internal door and the back door which were both open at the time. On her account, even if the accused had been on top of her she would have been able to look to her right through the two open doors into the back yard. His body would not have obstructed her view.
For his part, the accused gave evidence that the couch was not in the position indicated by TPW. He said that the floorboards in that part of the lounge room comprised polished Tasmanian oak. He said that he did not want the couch resting on the polished floorboards and so he placed it against a wall on a carpeted section of the lounge room.
There were some unsatisfactory aspects of the accused’s evidence on this topic. First, the reason he claimed for placing the couch on carpet was to protect the polished floorboards. However, during cross-examination, he stated that four recliner chairs were positioned on the very section of floor that he was concerned to protect. Second, the position of the couch as marked by him on the floor plan had the couch in line with, and facing, both the internal door and back door. Even if the accused had been on top of TPW, she would have been able to look to her right and see into the backyard, provided both doors were open. In the course of his evidence the accused, however, suggested that the floor plan did not accurately depict the position of the internal door. As I understood his evidence, the internal door was in a position that would have prevented the complainant seeing into the backyard from the couch even if both doors were open. I note that the suggestion that the floor plan was inaccurate in this respect was never put to TPW. It was raised for the first time during the accused’s examination-in-chief.
I accept TPW’s evidence that the couch was in the position indicated by her. I further accept that if the accused was having sexual intercourse with her on the couch that she would have been in a position to see her grandfather walking towards the house. Indeed, it seems to me that if TPW’s account was a fabrication then the allegation of seeing her grandfather was a strange and unnecessary embellishment. I should point out that it is not known at which time of the year this alleged incident is said to have happened. In the circumstances, it is feasible that the back door could have been left open due to warm weather. It is also possible that the accused may have unintentionally left the door open.
BKL charges
Count 5
BKL gave evidence of an occasion when the accused sexually interfered with her while she and other members of her family were seated at a table in the kitchen/dining room area.[37] BKL was vague about when the incident happened. She initially said that she was about nine or 10 years old at the time,[38] but later said that she could not remember whether it happened closer to when the family moved into the house at Goolwa North (1974) or closer to her grandfather’s death (1980).[39]
[37] T 164-168
[38] T 164
[39] T 168
BKL said that while her mother was preparing to serve an evening meal she and the other members of her family were seated around the table. BKL testified that the accused was seated at the end of the table near the kitchen, where he customarily sat, and that her grandfather was seated directly opposite him. She was seated on the side of the table to the right of the accused and nearest to him. On her account she was more or less facing the door to the main bedroom. She could not recall where the other three children were sitting at the time. She said that she was wearing shortie pyjamas.
BKL stated that the accused, while talking to her grandfather, placed his right hand under the table and through one leg of her pyjama pants. He then inserted a finger into her vagina and pushed it in and out of her vagina for a short time. In cross-examination she said that the other people sitting around the table were not in a position to see what the accused was doing. However, she agreed that it was possible that her mother may have seen what had happened because while the accused was touching her, her mother had turned around and was facing the table.[40] BKL said that she was scared by the accused’s conduct but did not make any complaint at the time. After she finished her meal she went to her bedroom.
[40] T 183
The accused denied the incident. He said that it was his practice to sit at the side of the table with his back to the door to the main bedroom and that it was his wife who sat at the kitchen end of the table so that she could be near the kitchen facilities. He said that the children changed their seating positions, however, any child who sat next to him would have been seated to his left.
Mr Miller submitted that BKL’s account was inherently unreliable. He argued that it was most unlikely that the accused would have engaged in such brazen conduct at the dinner table when other people were seated nearby and when his wife could have turned around at any moment to see what was going on.
I reject this argument. In my view, if she was minded to concoct an account it is surprising that she invented one which was obviously vulnerable to this sort of criticism. For example, it would have been easy for her to have said that the incident occurred when there were no other persons in the kitchen or while her mother had her back turned to them at all times. Furthermore, I gained the impression from the evidence of both complainants, that the accused was an arrogant and domineering father and husband. This view is consistent with my observations of him in the witness box and the way he presented to the police during the video taped interview.[41] I do not consider it to be implausible that he had the confidence to engage in such bold behaviour.
[41] I have borne in mind the dangers inherent in drawing conclusions from observations of demeanour. See State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 73 ALJR 306
Mr Miller further argued that BKL’s claim that she was wearing pyjamas was inconsistent with the statement she gave to police on 20 April 2004 in which she said:
Usually my bedtime routine was to have a bath, brush my teeth, say goodnight to [the accused] in the lounge and go to bed.
In cross-examination BKL agreed that she would not have put her pyjamas on before she had a bath. Mr Miller argued that this aspect of BKL’s statement was inconsistent with her evidence that she would have been dressed in her pyjamas when having an evening meal. I reject this argument. The complainant did not suggest in her statement, or in her testimony, that her practice of having a bath and putting on her pyjamas immediately before she went to bed was one from which she never departed. She merely said that it was her usual routine.
Count 6
BKL said that there was a second occasion when the accused sexually abused her.[42] Once again there was an element of vagueness in her account as to when the incident occurred. She estimated that she was about nine or 10 years old at the time but was not sure whether it happened before or after count 5.[43]
[42] T 169-170, 177
[43] T 170
BKL said that she was in her bedroom (marked bedroom 2 on the floor plan of the house – Exhibit P2) getting ready for bed when the accused came in. There was no one else in the room. She did not think that she was sharing the bedroom with anyone else at that time.
BKL said that when the accused entered the room she was sitting on her bed wearing a nightie. The accused sat down on the bed and said that he was going to show her something that she should not allow boys to do to her or words to that effect. He then inserted a finger in her vagina causing her pain. When she told him to stop, he removed his finger, kissed her on the forehead and said, “Goodnight”. He then left the room.
The accused denied that any such incident took place.
It is to be observed that during cross-examination of BKL, counsel for the accused, put to her that that she was not sleeping in bedroom 2 at that time of the alleged incident or, if she was, that she was sharing it with her two sisters. BKL conceded that that was possible.[44] The implication of this line of questioning was that BKL would not have been alone in bedroom 2, at bedtime, when this incident occurred.
[44] T 183-184
The accused, however, testified that there were times when BKL occupied bedroom 2 alone.[45] He said that his father occupied bedroom 2 but would spend about six months each year staying with other members of his family at Mount Burr and in the Riverland. He said that whilst his father was away BKL would use bedroom 2. When she was not using his father’s bedroom she occupied either bedroom 3 or 4 and slept alone.
[45] T 231-232
Uncharged acts
The complainants gave evidence of occasions when the accused touched their breasts.[46]
[46] T 74-77 (TPW) 171-172 (BKL)
TPW testified that from the time she commenced developing breasts, when she was about 10 to 11 years of age, until she was about 15 to 16 years of age, the accused often pinched her nipples through her clothing and teased her about the development of her breasts. He often made comments like “whose boobies are getting bigger now?” TPW said that the accused did the same thing to BKL. According to TPW the accused sometimes engaged in this type of conduct in the presence of visitors and other members of her family.
BKL gave similar evidence. She said that the accused began touching her breasts when they started developing. She said that he would grab her breasts through her clothing and tell her that he was giving her a “cripple nipple”. She said that he did the same thing to TPW and her mother. She said that he touched them in this manner for years and sometimes in the presence of other people.
The accused gave a different account.[47] He said that his children learned a game at high school called “cripple nipple” which involved twisting a person’s nipples to inflict pain. The accused said that the children came home from school and played the game on him and Mrs L. They played the game over one weekend. The accused and his wife then directed them to stop playing it. The accused said that he might have twisted his daughters’ nipples that weekend in the context of joking and playing with them. He denied touching their breasts on any other occasions. In cross-examination neither TPW nor BKL could recall having learned the “cripple nipple” game at school and having introduced it to their parents. Both insisted that the accused’s conduct in touching their breasts extended over a period of years.
[47] T 251-253
I accept that it is reasonably possible that one or more of the children introduced the so-called “cripple nipple” game to the household after picking it up at school. However, I am also satisfied beyond reasonable doubt that each complainant gave a truthful account of the accused having touched her breasts over a period of years and of having seen the accused engage in similar conduct with the other complainant. I am also satisfied beyond reasonable doubt that his conduct was symptomatic of a sexual interest in TPW and BKL.
Later events
As I have said, TPW left home when she was 17. Her departure was precipitated by an argument with the accused. She had informed the accused that she had failed to pay a bill which resulted in the electricity to the house being cut off. TPW said that her mother had in fact failed to pay the bill but did not want to admit responsibility because she was frightened of the accused. It is not in dispute that after leaving the family home TPW’s relationship with the accused improved. The defence tendered a letter that TPW subsequently sent to her parents, (Exhibit D14)[48] in which she expressed her appreciation for what they had done for her. The defence argued that her expression of appreciation was inconsistent with her account of sexual abuse.
[48] Exhibit D14
In 1984 TPW married MW. In about 1987 they commenced living on a farm outside Victor Harbor. They developed a vineyard on the farm and ran several businesses in the Victor Harbor area. In about 1996 MW invited the accused and his wife to live on the farm.[49] TPW said that she did not like the idea.[50] Her parents lived in their caravan until a shed on the farm was converted into a cottage. They subsequently lent TPW and MW the sum of $50,000 to help finance their businesses. TPW said that she and MW had repaid her parents about $15,000 to $20,000 by the time they left the farm in about late 2001 or early 2002.[51]
[49] T 137, 144
[50] T 130
[51] T 137
TPW said that in about in about 1998-1999 she disclosed to MW, that the accused had sexually abused her.[52] MW was upset by the disclosure and wanted her parents to leave the farm. TPW begged him not to tell her mother about the sexual abuse because she believed that it would destroy her. She also insisted that MW not disclose to the accused that MW was aware of what had happened. TPW said that she threatened to commit suicide if MW did not comply with her wishes. Her husband eventually agreed to keep the matter confidential and allowed her parents to remain on the property. MW gave similar evidence to his wife on this topic.[53]
[52] T 78-80, 133
[53] T 145-146
During the next two to three years TPW’s relationship with her husband deteriorated. The presence of her parents on the property was a continuing source of friction. However, there were other difficulties. They worked long hours maintaining their businesses and the vineyard struggled causing them financial problems.
In about late October, or early November 2001, TPW was admitted to the Adelaide Clinic for a period of about four weeks. No medical evidence was put before me as to the cause and nature of her condition. TPW, however, said that she was feeling depressed and suicidal. She attributed her illness to her memories of the sexual abuse perpetrated by her father. TPW said that she was placed under the care of Dr Patrick Flynn and treated with antidepressants.
TPW testified that she was advised by Dr Flynn that her health would not improve while her parents remained on the farm and that she should consider writing a letter to her father if she felt unable to discuss the matter with him face to face.[54]
[54] I accept that TPW received this advice from Dr Flynn. However, I have not relied upon this as evidence showing that Dr Flynn believed that TPW suffered from a condition caused by sexual abuse or that he was of the belief that her condition would not improve until the accused left the property. Such use of the evidence would infringe the hearsay rule. TPW’s evidence of the advice she received was admissible for the sole purpose of explaining her conduct in writing to the accused and in the terms in which she did.
On 27 November 2001 TPW, while still in the Adelaide Clinic, wrote the following letter (Exhibit P4) to the accused.
Dad
I am in this psychiatric hospital because I can no longer cope with my childhood memories of sexual abuse I suffered from you. I will never understand how you could abuse a daughter and a child that I know you love.
I have severe depression, and am on medications and receiving psychiatric help to start my life afresh with [MW] … I have also been suicidal.
I need to concentrate now on my health and well-being, and I want to come home. My psychiatrist recommends strongly that I cannot come home while you are still living on the farm.
[MW] and I bought the house in Pt Elliot for you and Mum to live in, but as you know it won’t be ready until February. I need to come home and be with my family so I suggest that you and Mum go away until the home in Pt Elliot is ready.
Because I love and respect my Mum very much and I don’t want to see her hurt, I am not going to make the sexual abuse of the past public, so this letter is the last time I will ever discuss this with you. Please destroy this letter after you have read it.
I am going to get well, and have a positive future surrounded by those I love and who love me.
Help me to do this by carrying out my wishes and leave as soon as you can, so I can come home and finally have closure on the past.
[TPW].
The accused agreed that he received the letter. He said that he read it and, in accordance with TPW’s request, tore it up and disposed of it.[55]
[55] T 246
A few days later MW visited his wife in the Adelaide Clinic. He was upset by her condition. It is not in dispute that upon returning to the farm MW attended the accused’s cottage where they had an argument about TPW’s allegations. MW called the accused “a fucking paedophile,” said that he was “no better than Peter Liddy”[56] and told him that he had 48 hours to get off the farm.
[56] This was a reference to former Magistrate Mr Peter Liddy who had been convicted of sexual offences against children.
According to MW the accused shouted back: “It’s got nothing to do with you, it happened 25 years ago.”[57]
[57] T 148
The accused testified that he in fact replied: “Listen, whatever was suggested to have happened would have happened 25 to 27 years ago, so … its got nothing to bloody well do with you.”[58] In cross-examination he said that his remarks were a reference to his misconduct in relation to count 1.
[58] T 246
The prosecution argued that I should accept MW’s account and contended that his version of the accused’s reply amounted to an admission by the accused that he had sexually abused TPW in the manner alleged by her.
To my mind nothing turns on this conflict in the evidence. MW’s version of the accused’s reply cannot be construed as anything more than an admission to having engaged in some form of sexual misconduct with TPW in the past. Such an admission is not inconsistent with the accused’s case that his sexual misconduct was confined to the incident the subject of count 1.
Following the confrontation with MW, the accused and his wife left the property. They initially stayed in a caravan park at Cowell. In late December 2001 they moved to the Goolwa Caravan Park. By that time TPW had been released from the Adelaide Clinic and had resumed living on the farm.
A short while after TPW returned to the farm she arranged to meet her siblings because she had received information that her husband was being criticised by friends and relatives for evicting her parents. She felt that her husband was being treated unfairly.
TPW said that at the meeting she explained to her brother and sisters that her parents had been asked to leave because she was in poor health due to the accused having sexually abused her in the past. TPW said that she did not go into the details of what had happened to her. TPW said that her sister BKL broke down and revealed that the accused had also interfered with her.[59] On the prosecution case this was the first time that BKL had complained to anyone of having been sexually abused by her father.[60]
[59] T 84-85
[60] TPW said that her sister J also disclosed at the meeting that she had been interfered with by the accused. The evidence was inadmissible and I have ignored it.
BKL gave similar evidence about the meeting.[61] She said that TPW explained why she had suffered a breakdown. When TPW disclosed that the accused had sexually abused her, BKL burst into tears. TPW then asked whether the accused had done anything to her, she replied: “yes” and mentioned that he had used his fingers. BKL did not elaborate on her allegations.
[61] T 173-174
There is no dispute that at about the time of these events, that is a short while after TPW’s release from hospital, MW attended the Goolwa Caravan Park to discuss with the accused the rumours that he had unfairly evicted the accused and his wife from the farm. MW was also aware that the accused and his wife wanted him to repay the balance of the $50,000 loan. The discussions took place in the presence of the accused’s wife, their daughter [J] and the accused’s brother.
MW testified[62] that he told the accused that the money issue could be resolved if he told the truth about what had happened to TPW. He put to the accused that he had raped TPW and asked him how he could have done something like that. The accused replied: “I never did it, I didn’t do a damn thing. I rubbed up against her and did whatever, but I never raped her.” MW said that he told the accused that he would not get one cent from him until the truth came out. According to MW the accused then shouted: “All right I did it … my life savings, I did it, give me the money back, I want the money back.” The prosecution relies on this evidence as an admission by the accused to having committed incest with his daughter.
[62] T 149-150
For his part the accused agreed substantially with MW’s account of the meeting but denied that he verbally admitted that he “did it.”[63] However, in cross-examination, he said that he offered to sign a confession if MW gave him the money.[64]
[63] T 248-249
[64] T 298
I accept MW’s account of the conversation. However, I do not attach any weight to the accused’s statements. He initially denied raping or having sexual intercourse with TPW. He said he merely rubbed up against her. The incriminating statements upon which the prosecution rely were made only after MW stressed that the accused would not receive any money until he told the truth. The evidence disclosed that the accused and his wife were experiencing financial difficulties at the time and required money for their retirement and new accommodation. The possibility that the accused made false admissions to obtain money that he badly needed cannot be discounted.
During 2002 (several months after TPW’s release from the Adelaide Clinic) the accused wrote letters of apology to both her and MW. The letters were sent in the same envelope. TPW subsequently misplaced the letter addressed to her. In examination-in-chief the prosecution tendered, through TPW, a letter seized from the accused by police in 2004 (Exhibit P5). She said it was identical to the one she had received from the accused. The accused testified that it was not identical but agreed that it was similar.
Exhibit P5 reads:
Dear [TPW]
I am sincerely sorry for what I have done, I keep asking myself why?
I honestly had no idea that I was the cause of your illness (depression) until I received your letter. I wish you had written me that letter, years ago.
I hate myself for what I did to you, (a daughter I really love) I cannot turn back the time unfortunately, so I hope you can find it in your heart to forgive me a little, as I am hurting so much.
Your mother is a wonderful woman to be able to withstand the shock of it all, and to also accept me back into her life.
Please concentrate now on a happy and loving future with [MW] and my lovely grand daughters.
Hoping I can earn your respect again in the future.
Love Dad
The letter to MW (Exhibit P6) reads:
[MW],
I am deeply sorry for what happened. All I wish for now is for [TPW] to get well.
Hoping your feelings towards me will mellow in time.
Please try to accept this note as my sincere apology.
[DML]
The prosecution argued that the letter of apology involved an admission by the accused to having sexually abused TPW on more than one occasion. Mr Crowe submitted that anyone reading TPW’s letter would have understood that she was complaining of the accused having sexually interfered with her on more than one occasion and that the accused’s letter should be interpreted as an apology for sexual abuse extending beyond count 1.
For his part the accused maintained that his apology related to his conduct in relation to count 1.[65] I would have been prepared to accept the accused’s explanation as a reasonable possibility but for the fact that in examination-in-chief he acknowledged that he understood that TPW was alleging in her letter sexual abuse of a more extensive nature.
[65] T 251, 258
The relevant passage was as follows:[66]
But what were you sorry for? What were you saying sorry for?
I am sorry for her being in that condition and for anything that I may have done to her in the past that would have helped bring it on that way.
But you knew that you had done something didn’t you?
Yes but – I had disregarded that a little bit because, in her letter, she claims there was more than what I did do.
(my emphasis)
[66] T 251
If that was his understanding why did he write an unqualified apology? I am satisfied beyond reasonable doubt that the accused wrote his apology believing, or rather knowing, that TPW was alleging that she had been the victim of sexual abuse which extended beyond count 1. I accept the prosecution’s submission on this topic.
Police investigation
In February 2004, TPW and BKL reported their allegations to the Sexual Assault Unit of the South Australia Police Force. TPW said that BKL had always wanted to go to the police and eventually persuaded her to report the matter. At that stage the accused and his wife were living in a country town in the mid north of South Australia.
On 26 November 2004, Detective Ann Borgardt attended the accused’s home and conducted an interview with the accused in the presence of his wife and another police officer. The interview was videotaped.[67] The accused denied each of the allegations made by BKL and TPW including count 1. He insisted that he had never indecently touched either of his daughters, denied that he had ever masturbated or touched himself in front of the girls and denied that he had touched their breasts or played “cripple nipple” with them.
[67] Exhibit P15 - videotaped record of interview
At trial the accused conceded that he lied to the police to the extent that he denied count 1 and denied having played “cripple nipple.” I point out that I have not used these lies, or any discrete lies that I find the accused to have told, as evidence of a consciousness of guilt in respect of the charged offences. The lies are relevant only to the credit of the accused.[68]
[68] See Edwards v The Queen (1993) 178 CLR 193, Zoneff v The Queen (2000) 200 CLR 234
In the course of the interview the accused suggested that MW might have encouraged TPW and BKL to make the allegations so that he could avoid having to pay the accused the money he owed the accused. The accused added “call it blackmail if you like.” He also said that TPW had a vivid imagination.
The accused went on to say that he did not dispute that TPW might have been sexually assaulted in the past. He said that there were two families who had occasionally used TPW as a babysitter at night. The accused said that TPW would be driven home by the male parents thereby providing them with an opportunity to sexually interfere with her. He also suggested that TPW may have been sexually assaulted by her uncle. In examination-in-chief the accused admitted that he had no evidence to support any of his theories.[69]
[69] T 256
During the police interview the accused agreed that while TPW was in the Adelaide Clinic he received a letter from her in which she made sexual allegations against him. He said that he read the letter and then destroyed it. He agreed that he wrote a reply but denied that it contained an apology. He said: “there was no apology required as far as I was concerned because I had never done anything.” This statement was another lie. Even on his own account he was guilty of count 1.
During the interview the accused said that after he and his wife left the farm that MW commenced sending “filthy letters to him” in response to demands by the accused and his wife that TPW and MW repay the balance of the monies they had lent them.[70] The interview proceeded as follows:
[70] see Record of Interview Exhibit P15 – Q314
Q315 Do you have any of those letters?
I do have them here.
Q316 Where are they?
ALocked away in my safe. Aaaah they are filthy degrading letters written from W and,
Q317 Could I take some copies of those letters?
A Oooh I dunno yet and er, I was around at the house
Q318 What, what’s in them?
AFilth, accusations, and there, we was at the house we was renting at Goolwa about 2 oh, 2, 2 and a half years ago 2 oh well we left there to come to here so before we come here it was 2 years ago er, these filthy letters were arriving cos we asked for, for our money or some of our money. At that time it was about 6, fif, yeah 60 odd thousand then. So they have paid us some.
…
Q324 Ok how many letters are there?
AI don’t know exactly, th, th, th he, he (sic) there is some there in reply of bulk. I never wrote a letter. [Mrs L] did write, wrote to them asking for money and he was the only one, he would reply and er it wasn’t they sent it in dribs and drabs. Might get $5,000 might get $500.
Q325Ok. Alright I am gonna take the video into the other room now and I am not going to discuss any more.
A Yep, alright, alright.
(my emphasis)
Det Borgardt then arranged for Senior Constable Binnekamp, a local police officer, to attend the accused’s home with a General Search Warrant so that she could search the safe for the letters the accused said that he had received from MW. Following the arrival of Constable Binnekamp, the interview proceeded as follows:
(S/C Borgardt)
Q365 [DML] this is um Senior Constable Binnekamp from the Jamestown police station.
A Oh yeah.
Q366He is the holder of a general search warrant. And what we want to search. I want to get those documents that we were talking about out of the safe and I am going to seize those documents Ok. This general search warrant here, as you can see the holder is Senior Constable Robert Binnekamp and it entitles him er to conduct a search ...
A Yeah that
Q367 … for items that produce evidence to the value of the offence.
A These, that, they want those letters to be seized. Alright.
Q368 Yep, Ok.
Q369 (S/C Binnekamp) Alright. I have a general search warrant which entitles me to.
A He has to have them Ok.
A (Betty) Ok.
Q370 Do you understand that we have a warrant?
A Yeah.
Q371 (S/C Borgardt) to take those off us.
A I shouldn’t have said anything about them should I.
Q372I did know that they were here before I came here today, so where abouts are these letters. Mr L.
A (Mrs L) You need to find them.
A (DML) in the safe.
Q373 Right you will open up the safe for us will you.
A I will yeah.
Q374 (S/C Borgardt) and I will give you a receipt for the letters.
A Ok.
(my emphasis)
Upon searching the safe the police located several documents including the letter the accused had written to TPW (Exhibit P5) and a torn letter (Exhibit P16) similar to the one he had written to MW (Exhibit P6). Following the seizure of those items the police left. He was not interviewed about the letters of apology that he had written to TPW and MW. Those letters were, of course, inconsistent with his statement to police that he had never apologised to TPW. I find that the accused lied to the police on this topic. I further find that when the accused initially told the police that the letters he had received from MW were in the safe that he had overlooked that they might want to search the safe or had possibly forgotten that the incriminating letters that he had written to TPW and MW were also in the safe. Those findings are consistent with the following:
·when asked if the police could have copies of the letters from MW the accused replied: “Ooh I dunno yet …”.[71]
·when informed by Det Borgardt that the police intended to search his safe for he replied;“I shouldn’t have said anything about them should I …”.[72]
[71] see [129]
[72] see [130]
The accused was cross-examined about the latter remarks. His explanations were lame.[73]
[73] T 309-312
And you said, at answer 371 on p.42 ‘I shouldn’t have said anything about them, should I?’
That’s right.
Why shouldn’t you have said anything about the letters in the safe.
Well, I had private things in the safe that are not for everyone else to see.
Like your letter to [TPW]
I wasn’t referring to that, no.
Like your letter to [MW].
Well, that one didn’t matter much to me, but it was the other letter that he had written to me that I was keeping.
HIS HONOUR
What didn’t you want the police to see.
I didn’t want the police to see anything.
Why not.
Well, as far as I was concerned, they were personal letters to – between [MW] and my wife. concerning the money.
In those letters, it was being alleged that [MW] owed you money and he was unfairly depriving you of the money.
Yes.
Why wouldn’t you want the police to see those letters.
Well, like I said, taken by surprise again. No reason, I can’t think of any.
DISCUSSION
The critical question in relation to each of the counts considered separately is whether the prosecution has proved that the complainant gave a truthful and reliable account of the alleged incident. Mr Miller contended that the evidence of each complainant was deficient in several important respects. I turn to consider his criticisms.
General points
Vagueness
He stressed that the account of each complainant was vague in relation to the dates, or approximate dates, of the alleged incidents, her age at the time and the sequence of events. These points did not cause me to doubt the honesty and reliability of their accounts. The complainants frankly admitted that they had difficulty recalling those matters. To my mind, it is hardly surprising that the complainants would have experienced such difficulties bearing in mind that the relevant incidents occurred some 25-30 years ago.
Late complaints
Mr Miller also stressed the considerable delay in the complainants reporting the alleged incidents. He emphasised that their failure to report the abuse continued many years after they had left the family home and were living independently of the accused. In relation to TPW he also placed emphasis on the letter of appreciation that TPW sent her parents after she left home (Exhibit D14) and on the fact that TPW agreed to her husband’s proposal to allow her parents to live on the farm with them.
These matters did not dent my confidence in the evidence of either complainant. In relation to TPW she explained that as a child she was reluctant to report her father because she loved her mother and feared that disclosure would result in the separation of her parents and her mother being forced to live alone. Her evidence is consistent with her subsequent conduct in reporting her father’s sexual abuse to her husband in 1999 and seeking his assurance that he would not disclose to her mother what had happened. It is true that TPW allowed her parents to live on the farm but it must be remembered that it was her husband’s idea. In any event, the arrangement was very much in her mother’s interest.
In relation to BKL she said that she never complained about her father’s conduct because she was scared of him.[74] She said that he was a violent man when she was growing up and that he would beat her and her siblings with his hand, a feather duster or stick. In cross-examination she acknowledged that she did not fear the accused after she left home and married.[75] Neither counsel for the prosecution nor counsel for the accused asked BKL to explain why she did not complain about the accused in later years if she had ceased being frightened of him. By virtue of s 34I of the Evidence Act 1929, it is necessary to bear in mind that there may have been valid reasons for her continued failure to complain. It seems to me that BKL may have had similar concerns to TPW about the welfare of her mother. The sheer embarrassment in having to disclose such matters is also a relevant factor.
[74] T 170, 187
[75] T 187-188
Motive to lie
TPW
There is no obligation on an accused person to prove or even point to a possible motive for a complainant to have lied. However, in the present case the accused, in the course of his record of interview, suggested that MW had influenced TPW to make a false complaint to avoid having to repay the money they owed the accused and his wife. This possible motive was also faintly suggested during cross-examination of TPW. Accordingly, it is necessary to consider it.[76]
[76] see R v Sluczanowski [2008] SASC 185
I reject the accused’s contention. On his own account the dispute about the repayment of money lent to MW and TPW did not arise until late 2001 or early 2002.[77] I accept the evidence of TPW and MW that she informed her husband of the accused’s sexual misconduct in about 1999, that is, well before the dispute arose. Furthermore, TPW did not file a complaint with police until early 2004. If she and her husband were motivated to fabricate an account about the accused in an effort to prevent him recovering the money owed under the loan, one might have expected TPW to have made an earlier complaint to police. I accept the evidence of TPW that she was reluctant to reveal her father’s misconduct out of concern for her mother. I accept that she later agreed to report the matter at the behest of her sister BKL. All of this, to my mind, is consistent with the letter that TPW wrote to the accused while in the Adelaide Clinic wherein she complained of his misconduct but indicated that she would not publicise what had happened because she loved and respected her mother.
[77] see Record of Interview Exhibit P15 - Q 314–318, T 298
As I earlier pointed out, the accused also theorised in his record of interview that TPW had been sexually abused by other persons and may have blamed him for their offences. I reject these theories as well. In examination-in-chief the accused conceded that there was not a jot of evidence to support his assertions.[78] It is to be observed that none of these theories were put to TPW to comment on. I am satisfied that there is no substance in any of them. As I have said I find that they were a dishonest attempt by the accused to deflect suspicion away from himself.
BKL
[78] T 256
In relation to BKL it was simply put to her by Mr Miller that when TPW complained to members of her family that the accused had sexually abused her that BKL decided “for whatever reason” to fabricate allegations against her father. This was denied by BKL.[79] Mr Miller argued that the possibility of fabrication by BKL, and by TPW for that matter, could not be dismissed having regard to the lateness of the complaints.
[79] T 187
Specific points
In addition to these general points Mr Miller criticised specific aspects of the complainants’ descriptions of the alleged sexual incidents. In relation to TPW he focused on count 8. He submitted that it would have been impossible for her to see her grandfather in the backyard walking towards the house. In relation to BKL he focused on count 5. He contended that the accused was unlikely to have touched her under the table when there were people in the near vicinity and that she was unlikely to have been wearing shortie pyjamas at the time having regard to what she told the police. I have already canvassed these arguments. There is no need to repeat what I have said about them.[80] I reject them.
[80] see [69] - [74], [79] - [80]
CONCLUSION
I was impressed by TPW and BKL. They struck me as honest witnesses who did their best to give an accurate account of the relevant events. I did not detect any embellishment or exaggeration on their part. It is true that their accounts were vague in some respects but, in the main, they gave clear and coherent accounts of what occurred. Their descriptions of each incident had the ring of truth about them. I do not accept that their allegations were the product of fabrication and very fertile imaginations. They were also substantially consistent. Apart from the one matter relating to BKL to which I have already referred,[81] it was never suggested by the defence that there were any significant inconsistencies between their oral evidence and their statements to police. Furthermore, as I have already observed, none of the criticisms of their evidence have caused me to doubt that each gave a truthful and reliable account.
[81] see [81] - [82]
In relation to TPW, her evidence in relation to counts 2 to 4, 7 and 8, receives support from the letter of apology written by the accused. As I have said, I am satisfied that the letter was an apology for sexual abuse extending beyond count 1. Her evidence in respect of the charged offences also receives support from the fact that the accused was sexually attracted to her as disclosed by count 1. To a lesser extent, the accused’s conduct in touching her breasts, also indicate that he had a sexual attraction for her.
I am satisfied beyond reasonable doubt that TPW gave a truthful and accurate account in respect of each of the counts relating to her. I hasten to add that I would have been satisfied to the requisite degree of the accused’s guilt in relation to the TPW charges, even if the letter of apology and the evidence showing that he had a sexual interest in her had not been tendered. Those matters merely served to confirm my view that she gave a patently honest account in relation to each of the relevant incidents.
Similarly, I am satisfied beyond reasonable doubt that BKL gave a truthful and accurate account of the incidents, the subject of counts 5 and 6. Her evidence receives a measure of support from the fact that he was sexually attracted to her as disclosed by the accused’s conduct in handling her breasts but, once again, I would have been prepared to convict the accused even if such evidence had not been put before me. As with TPW, I found BKL to be a patently honest witness.
As I say, I was impressed by both complainants. On the other hand I formed an unfavourable impression of the accused. In relation to TPW he lied to the police. He flatly denied any form of sexual misconduct and tried to suggest that MW had persuaded TPW to make false allegations. He also suggested that she had been sexually assaulted by other persons in an attempt to deflect suspicion from himself. He also performed poorly when giving evidence. His account of count 1 lacked candour and amounted to a lame attempt to water down the gravity of his conduct. His explanation for the letters of apology lacked cogency. There were also other unsatisfactory features of his evidence to which I have already referred. In relation to the BKL charges, the accused’s evidence amounted to denials of her allegations. There was nothing inherently implausible about the accused’s denials but I simply did not believe him. I believed BKL for the reasons I have given.
Accordingly, I find the accused guilty of each of the counts 2 to 8 inclusive.
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