R v M, L - [2018] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, L
Criminal Trial by Judge Alone
[2018] SADC 92
Reasons for the Verdict of His Honour Judge Tilmouth
28 August 2018
CRIMINAL LAW - EVIDENCE - COMPLAINTS - ADMISSIBILITY OF DETAILS AND FACT OF COMPLAINT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
The accused is charged with three counts of indecent assault and three counts of unlawful sexual intercourse of a child, his eldest daughter, and one count of indecent assault of a child, his second daughter. Both gave evidence and other witnesses in the prosecution case essentially gave 'complaint' evidence, together with some evidence of uncharged acts. The accused gave evidence denying the charges and he called evidence from his father, his wife, his eldest son and a boarder in the family homes, which in a number of ways and to varying degrees, supported the accused's evidence:
Held: In light of the diametrically opposed cases and that the court is unable to reject the defence case as a reasonable possibility, it is not possible to determine where the truth lies and the accused is therefore entitled to acquittals on all counts.
Criminal Law Consolidation Act 1935 s 5, s 5AA(1)(e)(i), s 5AA(1)(g)(iii)(A), s 5AA(1)(e)(i), s 49(1), s 49(7), s 56, s 56(2), s 57(2), s 278(1), s 278(2a)(b); Criminal Procedure Act 1921 s 278; Evidence Act 1929 s 13(7), s 34CB(3), s 34M, s 34P(2), s 34P(3), s 34R(2); R v Maiolo (No 2) (2013) 117 SASR 1; Wu v The Queen (1999) 199 CLR 99; Woolmington v The Director of Public Prosecutions [1935] AC 462; King v The Queen (2003) 215 CLR 150; R v Reeves (1992) 29 NSWLR 109; Pryor v The Queen (1969) 43 ALJR 388; R v WG (2010) 199 A Crim R 218; R v Pfitzner (1976) 15 SASR 171; R v Dossi (1918) 13 Cr App R 158; R v Frederick [2004] SASC 404; R v Nieterink (1999) 76 SASR 56; R v Vonarx [1999] 3 VR 618; R v Grech [1997] 2 VR 609; Roach v The Queen (2011) 242 CLR 610; R v Beserick (1993) 30 NSWLR 510; Tully v The Queen (2006) 230 CLR 234; HML v The Queen (2008) 235 CLR 334; R v Schlaefer (1984) 37 SASR 207; R v C, CA [2013] SASCFC 137; R v S, DD (2010) 109 SASR 46; R v Place (2015) 124 SASR 467; R v Moore (2017) 128 SASR 340; R v Finn (2014) 119 SASR 207; R v N, RC (2012) 112 SASR 399; Brown v The King (1913) 17 CLR 570; Robinson v The Queen (No 2) (1991) 180 CLR 531; R v Robinson & Tiplady (1985) 123 LSJS 37; R v Woods (2008) 102 SASR 422; R v Copeland (1997) 194 LSJS 1; R v Anderson (2001) 127 A Crim R 116; R v Alwazan [2016] SASCFC 155; R v Ong (2001) 80 SASR 537; R v Phillips [2015] SASCFC 67; R v Mitchell Unreported CCA NSW 1995; R v Mayberry [2000] NSWCCA 531; R v Cook (2000) 22 WAR 67; R v M, BJ (2011) 110 SASR 1; R v Ni [2007] QCA 442; R v Carabott (2000) 83 SASR 293; R v Livingstone (2004) 150 A Crim R 117; R v Rendell [2018] SASCFC 71; R v Patton (1995) 80 A Crim R 595; R v A, GP (2012) 113 SASR 146; R v El Rifai [2012] SASCFC 98; R v Calides (1983) 34 SASR 355; R v Andrews Weatherfold Ltd (1972) 56 Cr App R 31, referred to.
R v C,M (2014) 246 A Crim R 21; R v Manson Unreported NSWCCA 1993; Perara-Cathcart v The Queen (2017) 91 ALJR 411; IMM v The Queen (2016) 257 CLR 300; R v Cassebohm (2011) 109 SASR 465; Liberato v The Queen (1985) 159 CLR 507; R v Murray (1978) 11 NSWLR 12; Question of Law Reserved on Acquittal (No 1 of 1993) (1993) 59 SASR 214; Murray v The Queen (2002) 211 CLR 197; Douglass v The Queen (2012) 86 ALJR 1086, applied.
Hughes v The Queen (2017) 92 ALJR 92, distinguished.

R v M, L
[2018] SADC 92
Overview
The charges
Procedural history
Legal principles
Fundamental principles
Elements of the offences
Uncharged acts and discreditable conduct evidence
Vulnerable witnesses
Complaint evidence – principles
Forensic disadvantage – principles
Evidence of AB
Count 1 – indecent assault
Count 2 – indecent assault
Count 3 – cunnilingus
Count 4 – cunnilingus
Count 5 – fellatio
Count 6 – indecent assault
Count 7 – JB
Evidence of complaint – AB and LA
The police visit
CIB involvement
Evidence of complaint – PB
The Whyalla events
The Andamooka events
The shed incident
JB’s 18th birthday
Evidence of complaint – AB and JB
Discipline in the houses
The boarder JH
The chair incident
AB and JB report to the police
Drive-by and committal proceedings
Complaint – JB
The defence case
Legal principles
Evidence of the accused
Evidence of SB the accused’s father
The evidence of the boarder JH
Evidence of CB
Evidence of the accused’s wife PB
Complaint – JB and PB
Collusion
The evidence of AB – General analysis
Count 1 – analysis
Count 2 – analysis
Count 3 – analysis
Count 4 – analysis
Count 5 – analysis
Count 6 – analysis
The evidence of JB – analysis
Cross-admissibility and uncharged acts
Conclusion and verdicts
Overview

The accused LB is charged on an Information dated 18 November 2017 with seven sex offences.[1] He entered not guilty pleas to all counts and his trial proceeded by judge alone.
[1] The identity of the principal actors as the biological daughters of the accused are anonymised so as to avoid publication by which the identity of the alleged victims might reasonably be inferred, in accordance with s 71A(4) of the Evidence Act 1929 (SA). For the same reason dates of birth, places of residence and schools attended are omitted.
Counts 1-6 relate to the complainant AB and count 7 relates to the complainant JB. AB was 22 years old and JB 21 when their evidence was taken in late November and early December 2017.[2] The sisters were born a few days more than a year apart in October 1995 and October 1996 respectively. The accused is their father, aged 44 at the time of trial. It is the prosecution case that AB was sexually abused by him between October 2002 and March 2012 and JB between January and December 2009. AB was between 7 and 16 years of age and JB was approximately 12-13 years of age at these times.
[2] Exhibit P1, agreed facts 1 and 2.
Initially they and their younger brother CB lived with the accused and their mother in an inner Northern suburb of metropolitan Adelaide.[3] Count 1 is alleged to have occurred in this house. Later the family moved to an outer Northern suburb of Adelaide,[4] where the abuse is alleged to have become more frequent and escalated to include more serious acts of the sexual abuse of AB. Counts 2-6 are said to have taken place in this second house. The accused gave evidence denying all charges.
[3] The first house or home.
[4] The second house or home
The charges
The core particulars as originally charged in respect of AB, briefly stated are these:
Count 1 – an indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1953 (SA) (CLCA), committed between 10 October 2002 and 9 October 2003 when aged 7, constituted by rubbing her vagina under her underwear in a computer room of the first house, as she sat on the accused’s lap, aggravated by the facts that he knew she was under 14 years of age at the time and that she was a child of whom he was a parent. Similar acts are alleged to have continued after the family moved to the second house when she was around 10 or 11 years old, shortly after she enrolled in Year 6 at a new Primary School in 2007.
Count 2 – an indecent assault committed between 1 April 2006 and 30 September 2006 when she was aged 10, constituted by tongue kissing in the kitchen of the second house, aggravated by the same two aggravating features as applied to count 1.
Counts 1 and 2 were amended ultimately with the consent of defence counsel Mr Coates, by removing the allegations of aggravation from the statement of the offences, by deleting ‘of the age of seven’ years and ‘10 years’ respectively from each count, and by inserting in lieu thereof ‘under the age of twelve years.[5] The particulars of aggravation pleaded in both were omitted at the same time. Count 2 was further amended by changing the dates alleged, to range between 16 May 2006 and 29 January 2017.[6] The amendments came about because prosecution counsel Ms Holt, ascertained late during the trial that the historical version of s 56 of the CLCA applicable at the time, provided for a substantive offence with higher penalty when indecent assault was committed on a person ‘under the age of 12 years’.[7] For the purposes of counts 1 and 2 the applicable historical version of s 56 of the CLCA read:
[5]    T582.7-583.28, T690.1-19.
[6]    T584.29-.38, T641.34.
[7]    Section 56 of the Criminal Law Consolidation Act. This was amended to its present form by s 16 of the Statutes Amendment and Repeal (Aggravated Offences) Act No 62 of 2005.
56 – Indecent assault
A person who indecently assaults another shall be guilty of an offence and liable to be imprisoned for a term not exceeding eight years, or where the victim was at the time of the commission of the offence under the age of twelve years, for a term not exceeding ten years.
Prior to 15 May 2006 there was no aggravated form of this offence and s 5AA of the CLCA specifying various classes of aggravated offences was not yet on the Statute books. As these amendments were not opposed, were favourable to the accused, and as the prosecution did not press for alternative verdicts of indecent assault on either count, the amendments were allowed consistent with the principles outlined in Ayles v The Queen.[8]
Count 3 – unlawful sexual intercourse with a person under 14 years of age contrary to s 49(1) of the CLCA, committed between 1 January 2007 and 31 December 2008 when she was 11 or 12, in approximately Year 6 or 7 in school in 2007 or 2008, constituted by an act of cunnilingus performed on her in the back of the accused’s work Van. There is no doubting the accused worked as a delivery driver for different sub-contractors at each house.
Count 4 – unlawful sexual intercourse with a person under 14 years of age committed between 1 January 2007 and 31 December 2008 when she was 11 or 12, by the act of cunnilingus performed in the lounge room of the latter residence. This incident is alleged to have taken place on the lounge room floor when AB was in Year 6 or 7 in around 2007 or 2008. The accused is alleged to have awoken her before going to work and taken her to this room.
Count 5 – unlawful sexual intercourse with a person under 17 years of age, committed between 1 January 2011 and 31 March 2012 when she was 15 or 16, constituted by a compelled act of fellatio in a bathroom of the latter residence. According to her evidence this took place when she was in Year 10 and when she was approximately 15 years old. AB had just stepped out from the shower when her father came into the bathroom, exposed himself and asked her to suck his penis, before masturbating himself in front of her to the point of ejaculation. This is said to have taken place in the context of a number of uncharged incidents beforehand in the bathroom. These include exposing himself when they were both naked, touching her inappropriately and shaving her pubic area.
Count 6 – an aggravated indecent assault committed between 1 January 2011 and 31 March 2012 when she was 15 or 16, when the accused pushed his erect penis towards her naked vaginal area multiple times on the kitchen floor of the second house, before becoming frustrated and giving up. It is alleged to have occurred approximately a month after the events the subject of count 5 and when AB was in Year 10, or approximately 15 years old in around 2011/2012 and by then dating the prosecution witness LA. The aggravating feature is that the accused is her father.
[8] (2008) 232 CLR 410, T643.4-.17.
The prosecution case is essentially that AB endured protracted and serious sexual abuse at the hands of the accused by way of a course of conduct, commencing when she was about seven. It began with the accused touching her vaginal area as she sat on his lap. This became more frequent, multiple times per week, particularly after they moved to the latter residence. The nature of the abuse is alleged to have escalated to include more serious acts of a sexual kind, including kissing, cunnilingus, fellatio, attempting vaginal intercourse, as well as masturbating in her presence.
The sole charge with respect to JB is this:
Count 7 – an aggravated indecent assault committed between 1 January and 31 December 2009 when she was 12 or 13, by rubbing and touching her vagina beneath her underwear in the lounge room of the latter residence as she sat on the accused’s lap. This was allegedly committed against a background of frequent uncharged acts of a similar nature. The particulars of aggravation are that JB was under the age of 14 years at the time and that the accused was her father.
The prosecution case with respect to JB is that sexual abuse began in exactly the same way as it did with AB, that is by touching the vaginal area whilst sitting on his lap. Similarly, it is alleged this kind of touching became more frequent, multiple times a week, but unlike her older sister, JB was not subjected to more serious acts of sexual abuse.
There are agreed facts before the court to the effect that:[9]
[9]    Exhibit P1.
School Records – AB
3.   Was enrolled in Primary School from 27 January 2004 – 15 December 2006, in Years 3, 4 and 5.
4.   Was enrolled at a second Primary School from 29 January 2007 – 12 December 2008 in Years 6 and 7.
5.   Was enrolled in High School from 27 January 2009 – 10 October 2012 in Years 8 – 11.
School Records – JB
6.   Was enrolled in Primary School from 27 January 2004 – 15 December 2006, in Years 2, 3 and 4.
7.   Was enrolled in a second Primary School from 29 January 2007 – 11 December 2009 in Years 5, 6 and 7.
8.   Was enrolled in High School from 27 January 2010 – 12 December 2014 in Years 8 – 12.
Briefly stated for the present, the defence case is that none of these events, charged or otherwise, did or could have occurred so often or without detection for so long. The accused gave evidence in denial, supported to varying degrees by his wife and mother of the complainants PB, their son CB, the complainant’s paternal grandfather SB and a boarder who resided in both houses at various times, JH.
As the respective cases are so irreconcilably and diametrically opposed, and as the evidence for the respective sides was given so far apart, it becomes necessary to carefully examine and weigh the evidence in considerable detail. The transcript contains some 580 pages of evidence and 125 pages of closing submissions. Tragically, as the complainants’ mother lamented in the course of her evidence, this is a case of ‘a family torn apart’ on any view of the facts.[10]
[10] T564.22-.23.
Procedural history
Before the trial commenced, defence counsel moved for the severance of count 7, an application eventually refused. Clearly enough joinder was justified by s 278(1) of the CLCA, as this count was part of a series of offences, and of the same or similar character to count 1.[11] Section 278(2a)(b) of the CLCA as a general rule premises that cases of multiple sexual offences charged on the one Information in relation to different complainants, should not be tried together unless the evidence on one count is admissible on another count or counts: R v Maiolo (No 2).[12] As a pre-trial ruling, the evidence on count 1 was admitted as potentially relevant to count 7 on the basis of the high degree of coincidental similarity evident in both offences. This topic is referred to again later. The evidence of the complainants was taken on 29 and 30 November and 1 December 2017. Complaint evidence was taken from the witness LA on the latter date and completed on Monday 4 December 2017, when the trial was adjourned to the following day at the request of the defence.[13]
[11] This applies to these proceedings as they were commenced in 2017 before s 278 was removed into the Criminal Procedure Act 1921 by Act No 18 of 2017, effective from 5 March 2018.
[12] (2013) 117 SASR 1, [127].
[13] T293-295.
The trial was then adjourned on 5 December 2017 for a substantial period until late June 2018, because the accused had lapsed into periods of unfitness to stand trial.[14] Upon resumption towards the conclusion of the prosecution case, defence counsel advised this was no longer the case.[15] Had this been a trial by jury the only feasible course was to declare a mistrial, discharge the jury and remand for a second trial: Wu v The Queen.[16] As both sides were particularly keen for the trial to continue despite the otherwise unacceptable delay, I reluctantly agreed to take that course.[17]
[14] T318-312.
[15] T3.7-.15, Directions Hearing 19 June 2018.
[16] (1999) 199 CLR 99, [19].
[17] Directions Hearings transcripts of 8/12/17, 22/1/18 and 1/3/18.
This situation rendered the task of assessing opposing bodies of evidence given nearly seven months apart, an extremely onerous one. For that reason the complainants consented to re-appear by video link to remind the court of their appearance as witnesses.[18] Because of this experience, Judges would be well advised to record the evidence of witnesses as a matter of course under s 13C of the Evidence Act 1929 (SA) in cases of trial by judge alone, when credibility, reliability and demeanour are likely to be significant factors, and if not in other circumstances by seeking the consent of the parties to do so.
Legal principles
[18] T325.28-.37.
Fundamental principles
The accused comes before the court with the presumption of innocence in his favour. He is entitled to the benefit of any reasonable doubt arising on the evidence in respect of each charge. It follows from this ‘golden thread’ of the criminal law, that once the evidence raises a reasonable doubt as to his guilt, he is entitled to the benefit of that doubt: Woolmington v The Director of Public Prosecutions,[19] King v The Queen.[20] He is not required to prove his innocence, or to give evidence, or to adduce any other evidence for that matter: R v Reeves,[21] Pryor v The Queen.[22] It is not enough that an offence might have been committed by him, or even that it is more likely than not that he committed it: R v WG.[23] He is fully entitled to expect and receive an impartial and detached consideration of the charges without allowing matters of sympathy, prejudice, sentiment or emotion to play any part in the fact-finding process: Murphy v The Queen.[24]
[19] [1935] AC 462, 481.
[20] (2003) 215 CLR 150, [18].
[21] (1992) 29 NSWLR 109, 117.
[22] (1969) 43 ALJR 388, 388.
[23] (2010) 199 A Crim R 218, [19], and footnote 2 therein.
[24] (1989) 167 CLR 94, 100.
Elements of the offences
The constituent elements of the charges each require proof beyond reasonable doubt. These may be described as follows. An indecent assault contrary to s 56 of the CLCA charged on counts 1, 2, 6 and 7, is comprised of an intentional assault accompanied by, or committed in circumstances of indecency, that is having a sexual connotation: R v C,M.[25] Indecency occurs when the kind of conduct involved is by any reasonable contemporary standard, indecent: R v Manson.[26] There can be no doubting that if the conduct is proven as alleged to the requisite degree, that this element of each and all the charges would be satisfied.
[25] (2014) 246 A Crim R 21.
[26] Unreported NSWCCA, 17/2/93.
Aggravated indecent assault as charged on counts 6 and 7 requires proof that the accused was the parent of AB and JB respectively: s 5AA(1)(g)(iii)(A) of the CLCA. There is no doubting this was the case. The allegation that AB was under the age of 12 years on counts 1 and 2, if proven rendered these aggravated substantive offences pursuant to s 56 of the CLCA, if committed before 15 May 2006.[27] The allegation in count 7 that JB was under the age of 14 years also stems from s 56(2) of the CLCA, after 15 May 2006.[28]
[27] Statutes Amendment and Repeal (Aggravated Offences) Act No 62 of 2005, s 16.
[28] Statutes Amendment and Repeal (Sentencing of Sex Offenders) Act No 31 of 2005, s 12, Government Gazette 20 May 2006, p 1128.

Under s 56(2) of the CLCA there is no obligation on the prosecution to prove the accused knew or was reckless as to whether the complainants were under the age of 14 at the time, however, given the accused’s close relationship with both complainants, there can be no doubt he knew what their age was at the relevant times.
The essential ingredient of the offence of unlawful sexual intercourse under s 49(1) of the CLCA in respect of counts 3, 4 and 5, is that the prosecution must prove beyond reasonable doubt that the accused had sexual intercourse with AB. For the purposes of count 5 ‘sexual intercourse’ includes the act of fellatio and for the purpose of counts 3 and 4, ‘sexual intercourse’ incorporates the act of cunnilingus: s 5 CLCA. Consent affords no defence to any one of the charges: ss 49(7) (unlawful sexual intercourse) and 57(2) (indecent assault) of the CLCA.
The particulars of aggravation on count 7, that the accused knew the complainant was under the age of 14 years, originate in s 56(2) of the CLCA (as opposed to s 5AA(1)(e)(i) and s 5AA(1)(g)(iii)(A)). As it presently stands s 56 of the CLCA proscribes:
56—Indecent assault
(1)A person who indecently assaults another is guilty of an offence:
…
(2)If the victim of the offence was at the time of the offence under the age of 14 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.
The alternative particulars of aggravation ‘knowing that the victim of the offence was a child of whom [the accused] has custody as a parent or guardian’ pleaded on counts 6 and 7, on the other hand derive from s 5AA(1)(g)(iii)(A) of the CLCA. In either event it is necessary when delivering verdicts ‘to state which of the aggravating factors’ are established, as required by s 5AA(4) of the CLCA.
Whilst proof of the precise time or date is not an element of any of the charged offences, it remains necessary for the prosecution to clearly identify and prove the particular occasion before a finding of guilt is returned: R v Pfitzner,[29] R v Dossi.[30] Insofar as the aggravating features on account of age are concerned, it remains necessary for the prosecution to demonstrate that the complainant was under the age of 12 on counts 1 and 2, and under the age of 14 on counts 3, 4 and 7 (as a particular of aggravation): R v H,[31] R v Frederick.[32] Finally the allegation that AB was under the age of 17 on count 5, has its origin in s 49(3) of the CLCA which makes it a substantive offence to have ‘sexual intercourse with a person under the age of 17 years’.
[29] (1976) 15 SASR 171.
[30] (1918) 13 Cr App R 158, 159-160.
[31] (1994) 83 A Crim R 402.
[32] [2004] SASC 404.
Uncharged acts and discreditable conduct evidence
Further uncharged incidents were led by the prosecution which were the subject of notice as required by s 34P(4) of the Evidence Act. It is necessary to be satisfied that such uncharged conduct occurred and even then it is admitted only for the limited purpose of determining the nature of the relationships between the accused and the complainants, in order to establish the proper context or setting in which the charged offences are alleged to have taken place: R v Nieterink,[33] R v Vonarx,[34] R v Grech,[35] and to allow the complainants to tell their complete story: Roach v The Queen.[36] Once admitted it is not open to reason that because the accused may have done something wrong with either complainant on other occasions, that he must have done so on the charged occasions: R v Beserick.[37] The application of these broad principles to the particular facts of the case are examined later.
[33] (1999) 76 SASR 56, [43]-[44].
[34] [1999] 3 VR 618, [22]-[23].
[35] [1997] 2 VR 609, 614.
[36] (2011) 242 CLR 610, [47].
[37] (1993) 30 NSWLR 510, 516.
In this particular instance the evidence of multiple similar acts is additionally capable of admission for the limited purpose of showing a pattern of behaviour under which the accused achieved the submission of the complainants: R v Nieterink,[38] Tully v The Queen.[39] Even so, the accused cannot be convicted unless ultimately the evidence establishes beyond reasonable doubt that the particular conduct specifically charged has in fact occurred: R v Nieterink,[40] HML v The Queen,[41] s 34R(2) Evidence Act. Moreover the constituent elements of each charge require proof beyond reasonable doubt, separately considered on the evidence relevant to that charge: R v Schlaefer.[42]
[38] (1999) 76 SASR 56, [43]–[44].
[39] (2006) 230 CLR 234, [147].
[40] (1999) 76 SASR 56, [86].
[41] (2008) 235 CLR 334, [470]-[471].
[42] (1984) 37 SASR 207, 210.
The reception of such ‘discreditable conduct’ evidence is controlled by ss 34P(2) and (3) of the Evidence Act:
(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 substantially 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.
The proper application of s 34P depends upon identifying the purposes of tender, determining whether s 34P(2)(a) or s 34P(2)(b) is engaged, by assessing the probative or strong probative value of the evidence as the case may be, and by identifying the permissible and impermissible uses. If s 34P(2)(a) applies, the judge must determine that the permissible and impermissible uses can be kept sufficiently separate as required by s 34P(3). When evidence is admitted under s 34P, ‘essential to the process or reasoning leading to a finding of guilt’, the facts must be established beyond reasonable doubt: s 34R(1) and (2) Evidence Act.
The question of admission is however one thing, whereas the question of use is quite another, as is the question of proof in accordance with s 34R(2) of the Evidence Act, as these are questions for the jury (trial judge in this instance): Perara-Cathcart v The Queen.[43] Whilst admission under s 34P remains largely informed by principles of common law, it is not necessary at this stage to make an assessment of the actual probative value of the evidence before admission, as here again the questions of credibility, reliability and acceptance remain for the jury to determine: IMM v The Queen.[44]
[43] (2017) 91 ALJR 411, [52].
[44] (2016) 257 CLR 300, [51]-[52].
In considering and weighing the potential for prejudice, no different standard or measure is employed to that applicable to a trial by jury on account of this being a trial by judge alone, for the reason explained in R v C, CA:[45]
[81] First, an enquiry into the degree to which the jury’s reasoning might actually have been compromised in a particular case is problematic. It requires some assumptions to be made about the capacity of juries. For example, is it to be assumed that a judge has a greater capacity to keep the reasoning distinct than a jury of twelve. A judge is of course trained and experienced but, on the other hand, does not have the benefit of having his or her reasoning tested by jury room debate.
[82] Secondly, I would not be inclined to attribute to Parliament an intention to prescribe a test for the admissibility of evidence which would be applied differently depending on the mode of trial. Section 34P of the Evidence Act imposes a test for admissibility which involves an evaluative judgment as a matter of law, and not the exercise of a discretion.
[45] [2013] SASCFC 137 per Kourakis CJ, and Anderson and Nicholson JJ agreeing.
Vulnerable witnesses
The complainants’ evidence was given in closed court with a support person present, via audio-visual link.[46] Nonetheless the taking of these measures does not affect the weight to be given to their evidence, and no adverse inferences are to be drawn against the accused because they were so taken: s 13(7) Evidence Act. Permission to question both complainants as to their other sexual activities was granted at the request of the prosecution pursuant to s 34L(1)(b) of the Evidence Act.[47] The same consideration applies to the evidence of the witness MG whose evidence was received in court whilst a screen was placed between the witness box and the dock.[48]
[46] T54.13-.30.
[47] T55.25-56.36.
[48] T54.36-55.24, T57.16-.30, T261.6-.20.
Complaint evidence – principles
This category of evidence is exceptionally admitted insofar as it serves to inform how allegations of a sexual nature first came to light, and secondly as evidence of consistency of conduct of the complainants: s 34M(4)(a) Evidence Act. For this purpose consistency of conduct encompasses the degree of consistency in making a complaint when it might be expected and in the content of the allegations made: R v J,JA,[49] R v H,T.[50] It is not evidence of the underlying truth of what was said when complaints were made: s 34M(4)(b) Evidence Act. It is necessary to bear in mind that there may be varied reasons why the complainants did not complain at any earlier time, or to any other particular person: s 34M(3) Evidence Act. With those considerations kept firmly in mind, it is otherwise entirely a matter for the court as the tribunal of fact to determine the significance (if any) of the evidence in the circumstances of this particular case: s 34M(4) Evidence Act. The failure to make a complaint, or delay in making one is of itself of no ‘probative value in relation to … credibility or consistency’: s 34M(2) Evidence Act.
[49] (2009) 105 SASR 563, [95].
[50] (2010) 108 SASR 86, [105]-[106].
Even though s 34M(3) of the Evidence Act, renders ‘… evidence related to the making of an initial complaint of an alleged sexual offence … admissible in a trial of a charge of the sexual offence’, a complaint must be referrable to the offence charged, or capable of encompassing the conduct alleged on a particular count or counts, in order to render it admissible, although it need not be entirely consistent or referable in all specific details: R v S,DD,[51] R v Place,[52] R v Moore.[53] The application of these provisions to the facts is considered later in the context of the evidence relevant to the individual charges.
[51] (2010) 109 SASR 46, [4].
[52] (2015) 124 SASR 467.
[53] (2017) 128 SASR 340, [46].
Forensic disadvantage – principles
Given the aged nature of the charged events, the additional question of ‘significant forensic disadvantage’ arises for resolution. Section 34CB(3) of the Evidence Act generally requires a trial Judge to explain and take into account the potential for forensic disadvantage specific to the circumstances of the case when ‘scrutinising the evidence’: R v Cassebohm,[54] R v Finn,[55] R v W,PK.[56]
[54] (2011) 109 SASR 465, [21], [25], [30].
[55] (2014) 119 SASR 207, [117].
[56] [2016] SASCFC 5, [26]-[32].
The cases demonstrate a variety of factors may impinge upon the potential for forensic disadvantage, and which may have an adverse impact on the ability of an accused to meet the case against him, for example the length of time between the charged events and trial, the difficulties of recollection and the denial of the forensic weapons a timely complaint would allow an accused to assemble. The latter may include lost, missing or unavailable material likely to assist the defence, the absence of police statements as to the precise movements of those involved at the very time of the charged events, the absence of forensic evidence such as DNA, or in situ photographic evidence, amongst others.
The cases further suggest that a warning might be required depending on the degree of disadvantage, that it is unsafe to convict where the evidence is uncorroborated and where that is necessary to avoid a perceptible miscarriage of justice arising in a particular case: R v N, RC.[57]
Evidence of AB
[57] (2012) 112 SASR 399, [42].
Count 1 – indecent assault
At the time she gave evidence, AB was living with her partner MF and her two children. He was the ‘boyfriend’ she acquired after returning from a trip to Whyalla, as will appear.[58] She alleges one of the first times the accused abused her was when she was ‘about 5 or 6’.[59] As she sat on his lap in the computer room of the first house, he touched and rubbed her vagina under her underwear,[60] ‘pretty late as everyone else was asleep’.[61] It was on this occasion that her father used a CB radio she described as a small black box, ‘very old, like a walkie talkie connected to a cord’.[62] AB added that she had sat on her father’s lap before, but this time it felt different, it was more ‘touchier’ than other times from the start, because of the way he had placed his hands on her and the things he said to her.[63] When asked if she liked it she replied ‘I don’t know’.[64]
[58] T117.2-.6.
[59] T77.29-78.3.
[60] T77.17-.24.
[61] T78.9-.14.
[62] T78.26-.30.
[63] T80.25-.30.
[64] T81.1-.3.
As her evidence-in-chief progressed, it emerged that her father had awoken her by tapping her on the shoulder, telling her to ‘come with me’, so she followed him to the chair and sat on his lap.[65] She claims not to have told anyone as he told her it was ‘our little secret’[66] and ‘that he loves me’.[67]
[65] T79-33-80.3.
[66] T79.28-80.24.
[67] T81.14-.18.
This charged event is set against a background of a number of alleged similar ‘uncharged acts’ subsequent to count 1, occurring ‘anywhere between two to three nights a week’, usually when her mother was out dancing.[68] AB readily accepted that these amounted to 400-500 times,[69] and as much as 600-900 different times.[70] One example was an incident in front of a heater after showering.[71]
[68] T82.10-.26, T129.17-.130.32.
[69] T148.16-.150.18.
[70] T129.17-131.10.
[71] T82.21-.26.
Under cross-examination AB repeated that the incidents at the first house sometimes occurred when her mother was out, sometimes when her mother was asleep, but as there were so many incidents she could not explain them all in detail, asserting ‘I am not making this up’.[72] Shown her sketch of the internal layout of this house, she recollected at one stage sharing a bedroom with her sister JB, but later having her own when she was ‘a bit older’.[73] Under cross-examination AB denied sharing bedrooms in the first house, explaining she would play with friends in her own room and had her very first CD player given to her for Christmas in it.[74] In response to questioning by defence counsel, she confirmed that similar incidents generally occurred when her mother was out dancing of a Thursday night, and she denied attending almost all those classes.[75] She said that she preferred to spend Thursdays after school with her boyfriend at that time LA, before returning home by 7.30 – 8.00 pm, so as not to get into trouble.[76]
[72] T129.7-.16.
[73] T75.7-.12, T133.7-.8.
[74] T121.34-122.15.
[75] T182.14-183.3.
[76] T182.29-183.11.
AB described her father as sometimes nice, and sometimes ‘really nasty’, nice when wanting something ‘he would tell me he loves me and that I’m his favourite’, but only when he was doing things to her.[77] When nasty:[78]
He would hit us with a belt and he would ground us to our rooms and we weren't allowed to come out of our rooms unless it was to use the toilet. He would hit us with wooden spoons and at one stage a wooden spoon had broken across my bum. They are some examples.
Nasty things happened quite frequently after he came home from work, when she ‘had a bad attitude’ or was bickering with her sister, more frequently in the second house, and more than once a week.[79]
[77] T76.17-.26.
[78] T76.32-.36.
[79] T77.2-.16.
JB added that her father wore jeans, shirts, a dressing gown or just boxers, around the house, often ‘his dick would slip through the gap’, even whilst their mother was in the room, at times putting his finger to his mouth and motioning ‘shh’ to her.[80] She disagreed with defence counsel’s suggestion to the contrary.[81] The accused himself denied this was ever the case.[82]
[80] T245.9-.20.
[81] T279.33-.36.
[82] T439.11-.28.
When confronted with a statement given to the police on 14 January 2015 in which she related this first incident as ‘when I was 7 years old I remember dad was in the computer room’, she remained ‘pretty sure I was 5 or 6 years old’, explaining that at the time of giving it, she was not 100% sure on ages, but that it was around the time she started school when these incidents commenced.[83] She did admit to sharing a bedroom with JB initially as they had bunk beds, but not for very long.[84]
[83] T124.14-25.
[84] T125.15-.24.
On the other hand AB could not recall large fish tanks in the computer room, and she denied that she was forbidden from entering that room because of them.[85] She insisted on hearing people speaking on a CB radio and consequently denied it was never in use.[86] She particularly remembered that her father had a large antenna fitted at the front of the house, even though she was unsure how it worked.[87]
[85] T125.36-126.17.
[86] T126.24-127.25.
[87] T127.26-.36.
Count 2 – indecent assault
According to AB the family moved to the second address when she began Year 6. The first incident she recalls in any detail occurred when she and her siblings were asleep late one night in a single bedroom, as the other bedrooms were not set up as yet.[88] She described her father standing over the mattress, leaning over, tapping her on the shoulder and saying ‘come with me’ in a quiet voice before they went to the kitchen.[89] He asked her if she had ever ‘hooked up’ before and if she ‘wanted to try it’, and was told to follow his lead by ‘sticking my tongue in his mouth’, as she sat on the kitchen bench.[90] She recalled this tasted disgusting, like ‘cigarette, metal and coffee’ and how uncomfortable it felt with his ‘prickly beard against her face’.[91]
[88] T88.30-.33, T133.24-134.18.
[89] T1354.23-136.10.
[90] T88.18-.24, T89.6-.19.
[91] T88.24-.29, T89.29-.33.
AB said she had not done anything like that before and she claims not to have told anyone about the incident, because on other occasions she was told ‘it was our secret’.[92] After the incident she returned to bed, where JB and CB remained sleeping on their mattresses.[93] She denied making up this story and denied her bed was already set up at this time.[94]
[92] T89.27-.28, T90.9-.13.
[93] T134.23-.136.10.
[94] T137.1-.9.
Count 3 – cunnilingus
There were occasions on all accounts when AB accompanied her father to work. She recollected one incident in detail, a delivery of blood to either Kadina, Berri or Wallaroo during a school day.[95] There is no doubting and it was the accused’s own evidence that he delivered blood to these destinations at times, although he did not do so to the Yorke Peninsula and the Riverland in the one trip.[96] After completing a delivery he would park around lunch time and take a rest in the rear of the Van, having left very early in the mornings.[97] AB said that his practice was to wake her ‘You’re coming to work with me, I will text mum and let her know you are coming to work’.[98] This was at a time when she was in Year 6 or 7 of Primary School and had not ‘properly started dating yet’.[99]
[95] T90.29-91.7.
[96] T407.18-.30.
[97] T91.31-.34.
[98] T91.18-.28.
[99] T91.38-92.6.

She described her father laying out a purple blanket to sleep on, laying next to her before sliding his hands into her jeans and begin rubbing her vagina, asking if she had ever been licked out before, to which she replied ‘no’.[100] He then removed her jeans and licked her vagina.[101] Again he told her that he loved her ‘I’m his favourite’, and again she ‘felt gross and uncomfortable … really prickly and slimy’, something she had not experienced before.[102] Afterwards he began ‘wanking’ but she did not recall if he ejaculated.[103] Upon arriving home around 8.00 pm that evening,[104] she did not tell anyone about the incident as she was scared ‘nobody would believe her’.[105]
[100] T92.18-.24.
[101] T92.25-93.19.
[102] T93.18-.31, T94.26.
[103] T93.32-94.10.
[104] T94.20-.23.
[105] T94.24-.33.
Under cross-examination AB was unsure when these trips began, maintaining it was when she was in Year 6 or 7 ‘towards the end of primary school’, even though she remained unsure how old she was.[106] She denied any discussion the night before about going on work trips the following day, suggesting they came as a surprise, so she would simply miss a day off school.[107]
[106] T140.32-141.35.
[107] T142.12-.35.
AB denied the propositions that she did not go on work trips until Year 9, that is when she was in High School, or that these were for a ‘work experience program that you needed to do once you were in High School’.[108] On this topic she claimed the school never asked where she had been, that occasionally her mother would write a note in her diary that she had gone to work with her father, but otherwise she was marked simply ‘unattended’.[109] She denied making up the above account of sexual activity in the Van.[110]
[108] T142.36-143.11.
[109] T143.16-.38.
[110] T144.1-.11.
Count 4 – cunnilingus
The allegation deposed to by AB as to this count relays an incident of cunnilingus on an armchair. Whilst playing ‘Mob Wars on Facebook’ her father said ‘you should let me lick your vagina’, told her to sit on his lap, then to lay down behind a computer desk, take off her pants, before licking her vagina, during which she felt ‘gross and scared’.[111]
[111] T95.2-.11, T99.16-100.14.
She considered this incident occurred not very long after the work Van incident, perhaps ‘a couple of weeks’ later.[112] Her father had woken her before going to work between 3.00 to 5.00 am, tapping her on the shoulder as she slept, whilst the others were asleep in their own rooms.[113] AB accepted she may have said in her police statement that she went to the toilet first, and she largely denied the proposition that this was a small noise carrying house.[114] Afterwards she said he wiped his face in the kitchen as she heard a tap running before he went to bed.[115] Her evidence was that she followed her father’s instructions as she ‘didn’t want to get into trouble or get hit’, as would be the case when she had ‘a bad attitude’ or when she would not do the things she was told to.[116]
[112] T95.27-.35.
[113] T96.1-.16.
[114] T145.30-146.11.
[115] T99.16-.23.
[116] T98.13-.32.
She did not tell anyone about what had happened because she ‘was scared, no one would believe me’.[117] Her evidence was that incidents like this (touching and licking of the vagina) happened ‘quite frequently’, maybe twice a week before work during the early hours of the morning, continuing right through until she moved out of home.[118] She said these made her feel depressed, not eating regularly, cutting her wrists and acting out, ‘I felt like shit’.[119]
[117] T100.26-.31.
[118] T101.1-102.6.
[119] T102.7-.12.
AB adhered to her evidence under cross-examination that her father would come in and tap her on the shoulder, occasionally saying something like ‘come on, I know you’re awake, come spend time with me’, whilst at other times she pretended to be asleep.[120]
[120] T144-.34-145.4.
She continued to maintain that similar incidents happened ‘all the time’, until she moved out of home around the age of 16-17.[121] She repeated that such incidents recurred ‘every couple of nights … sometimes every second night’, so that even on the basis of once or twice a week this amounted to 50-100 times a year and 400-500 times or more between the ages of 12 to 17, ‘it was happening quite a lot’.[122] AB’s evidence was that on no such occasion did anyone awake, go to the toilet, or came into the kitchen or lounge when sexual abuse took place.[123]
[121] T148.16-.33.
[122] T149.7-150.9.
[123] T150.10-.18.
Count 5 – fellatio
The evidence specific to count 5 is preceded by allegations of other incidents of inappropriate sexualised behaviour in the shower or bathroom more than once.[124] AB places this incident possibly before that alleged on count 6, but in any case around the same time she commenced dating LA.[125] This was when she was in Year 9 or 10, both attending the same High School and in the same year, a relationship that lasted for just under three years.[126] She said that when her father found out about this, things ‘started to get worse’, he grew ‘more angrier’, would say that ‘I don’t love him anymore, constantly tell me that he misses me when I’m not around’.[127] When he quizzed her about it some six months into the relationship, she told him she was sleeping with LA, of which he ‘wasn’t too happy about that’, he then got angry and upset and said ‘you will sleep with him but you won’t sleep with me’.[128]
[124] T107.29-.38, T109.1-.4.
[125] T108.1-.6.
[126] T102.23-.33.
[127] T103.1-.4.
[128] T103.5-.11.
AB spoke of returning from LA’s late one Thursday and whilst showering, her father entered the bathroom, asked her ‘If I had ever seen cum before’, and then proceeded to ‘wank’ to the point of ejaculation ‘on the wall’ in order to show her what ‘cum looks like’.[129] Whether it was in the course of this activity or a different incident altogether she could not recollect, she relayed that her father taught her how to shave her vagina, by ‘lifting up my flaps and shaving the bottom and the top bit …’.[130]
[129] T110.10, T111.14-.21.
[130] T110.11-.21.
A second incident in the shower AB remembers was when her father came in wrapped in a towel, unlocked the shower door, telling her ‘he had been missing her as she hadn’t been around as much,’ before demanding that she suck his penis, which she did by getting down to the floor and putting his penis into her mouth.[131] This is the act of fellatio charged on count 5.
[131] T110.25-.38, T111.33-112.5.
She claimed to have submitted to this demand as otherwise she would ‘get into trouble’, was ‘scared’ and because she thought ‘it was normal … that other dads did this with their daughters as well’.[132] AB placed this incident before and not ‘too far apart’ from the shower incident, of a Thursday night when her mother was at dance lessons accompanied by her other siblings,[133] and before the kitchen incident charged on count 6.[134]
[132] T111.33, T112.6-.11.
[133] T110.38-111.13.
[134] T110.35-.37, T111.13.
AB’s evidence was that she later told LA ‘dad was touching me inappropriately’ and she accepted denying to police that these things were actually happening as she felt ‘scared and frightened and intimidated’.[135] She placed this exchange with LA ‘towards the end of Year 10’, that is towards the end of 2010.[136] LA places it towards the latter half of Year 9.[137] It is not readily apparent how proximate this was, when she was questioned by police to these three interrelated events, but it does not appear to have been that long at all.
[135] T112.14-.35.
[136] T113.15-.18.
[137] T299.14-.21.
Count 6 – indecent assault
Because of the continuing relationship with LA, her father grew increasingly upset that she ‘wouldn’t do it with him’ and ‘he kept pushing and harassing me to just let him try it’.[138] She eventually ‘gave in’ on an occasion when they were in the kitchen one morning, after she was woken by the accused tapping her on the shoulder, before following him into the kitchen where she ‘laid on the kitchen floor’ as her father opened the refrigerator door ‘for a bit of light’.[139] He then ‘tried to put it in, but I kept saying it hurt’, until eventually he got angry and left.[140] She then returned to bed and he to work.[141] AB described the positions involved and being ‘scared. It was all new to me … it was quite frightening’.[142] She deposed ‘(H)e had his penis down there, was pushing pressure on my hole and I kept saying it would hurt and I kept moving backwards, jolting back’.[143]
[138] T103.23-.29.
[139] T103.33-.36.
[140] T103.37-104.2.
[141] T107.18-.23.
[142] T107.13-.17.
[143] T105.15-.19.
AB explained giving in to pressure as her father was ‘getting upset because I would sleep with LA and not him’.[144] She affirmed under cross-examination that he opened the fridge door for light as there was no other light into the kitchen, and she denied that the fridge light did not work.[145] She was unaware of any physical problems with her father’s back or body, and she considered he could kneel on the floor without any problem.[146]
[144] T104.15-.24.
[145] T201.14-.27.
[146] T201.28-202.29.
Count 7 – JB
JB’s recollection was that they moved to the second house when she was halfway through Year 4, before entering Year 5.[147] She did not recollect whether her mother was working at this time.[148] The agreed facts are that she was in Year 11 and 12 in 2013 and 2014 respectively. She left school in 2013 or 2014, moving out one or two months later.[149]
[147] T206.37-207.8.
[148] T210.1-.3.
[149] T209.1-.9.
The evidence of JB in respect of count 7 was that she and her father were both sitting at computers alone, when she was around 12 years old, and when her computer froze, she asked him to help her fix it.[150] He came over, sat at her chair, asked her to sit on his lap, which was ‘different this time’ as he touched her ‘inappropriately’.[151] He began to trace circles around her leg, then asked if he could try something, and as she didn’t know what he meant she replied ‘yes’.[152] He then slid his hand into her pants and began rubbing around her vaginal area with his fingers for approximately 5-10 minutes.[153] There was no penetration.[154]
[150] T211.19-212.8.
[151] T212.33-213.10.
[152] T213.11-.16.
[153] T213.16-214.12.
[154] T214.9-.10.
He told her to not tell anybody.[155] She felt scared and nervous because ‘nothing like this had ever happened to her before’.[156] At this point in her evidence the proceedings were adjourned to allow her to compose herself, as she became visibly upset. Upon resumption she said that she did not tell anyone about the incident as she was afraid, thinking to herself ‘is this what dads normally do to their daughters?’[157]
[155] T214.16-.17.
[156] T214.20-.26.
[157] T216.31-217.4.
The evidence of JB was also to the effect that similar incidents occurred again, however she was unable to recall how many times, when the last was, or over what period after this incident.[158] Her evidence-in-chief was that incidents of similar touching took place more than three times in every six months as a rough estimate, but she could not say for how long.[159] During cross-examination JB said such incidents always occurred when her mother wasn’t home, usually between 7.00 and 9.00 pm.[160] Quite apart from not recalling JH babysitting, she disagreed with the premise that she was never left home alone with her father.[161]
[158] T217.5-.19.
[159] T228.17-.36, T271.5-.13.
[160] T250.29-251.16.
[161] T251.20-.34.
These incidents had a similar pattern, putting his hands down her pants when she was seated on his lap at night in the lounge and when her mother was not home, her father telling her not to tell anyone.[162] She added that these occurred more than once a year when she was aged 12,[163] and that there were other forms of inappropriate touching at the hand of her father as well.
[162] T217.20-.35.
[163] T218.10-.18.
One such incident occurred on an evening when she complained of an itchy back as a result of an insect bite, when her father suggested she have a shower.[164] Whilst showering he entered and asked if she would like him to soap her back.[165] He then proceeded to do so with a bar of soap until she had enough.[166] After going to the lounge room he offered to rub moisturiser into her back, which he did, at some point moving his hands towards the ‘side of her boobs’.[167] She told him ‘no’, he then stopped, however she felt scared and nervous.[168] She said that she did not tell anyone else about the incident as she was afraid.[169]
[164] T219.3-.11.
[165] T219.6-.8.
[166] T221.9-.26.
[167] T221.27-222.11.
[168] T222.31-.34.
[169] T222.37-223.4.
In cross-examination JB stated her belief that she shared a room with CB at the time, and that no one else was home when the shower incident occurred.[170] She disagreed with the proposition that her father rubbed antiseptic onto her back, and that at no point did his hands move to the front and sides of her ‘boobs and hips’.[171]
[170] T251.35-252.6.
[171] T254.1-.13.
JB recalled a further incident when her father walked into her bedroom as she was getting changed after she had just gotten out the shower, and when BT was in the lounge.[172] As she was changing, her father came into the bedroom as she told him she was ‘getting naked’, and yet he said he didn’t care, came in anyway and proceeded to talk about plans for the next day at a time when her mother was in the master bedroom.[173] Her mother, brother, little sister and BT were home at this time.[174] She felt angry at this.[175]
[172] T224.13-.225.32.
[173] T223.5-.21, T259.6-260.8.
[174] T224.33-225.6.
[175] T225.21-.30.
Although AB was in the house at the time, it is apparent that the sole source of her knowledge of this particular event came from BT.[176] JB accepted the house was small, that the bedrooms were close together, that the master bedroom had a curtain and generally the door remained open.[177] She did not accept counsel’s suggestion that BT was coming out of the toilet at this time, believing he was in the lounge, although conceding it was possible.[178] Later that night she said BT told her father that he made her feel uncomfortable, and that he responded ‘fuck off out of the house’.[179] She could not recall her father telling her that he was upset because she should not change with the door open when BT was around.[180] And she appeared to accept the truth of her statement to police that this happened on 6 and 7 December 2014, and in any case ‘the week before I spoke with police’.[181] She denied going to the police because she was angry that BT was no longer welcome in the house.[182]
[176] T119.6-.17, T193.32-193.38.
[177] T259.17-.25.
[178] T260.15-.21.
[179] T260.22-.28.
[180] T260.29-.32.
[181] T279.1-.7.
[182] T277.22-.38.
JB deposed to a further ‘uncharged’ incident when she was in the kitchen one afternoon making coffee. As her father came in and ‘slapped her lightly on the butt for a millisecond,’ when her mother was home and after AB was no longer living there.[183] As he walked out he said to her ‘he can do what he wants’, this she interpreted to mean ‘he owns me’, making her feel angry.[184] She told BT about this incident, which took place on either a Saturday or Sunday towards the end of her last year at home.[185]
[183] T229.5-.35.
[184] T230.1-.12.
[185] T231.9-.16.
Yet another incident deposed to by JB occurred after she came home from camping, when everybody was in bed and her father was in the lounge room. He came to her room, asked her to sit in the lounge on his lap when he began showing her a pornographic video for a ‘couple of seconds’.[186] He inquired if it ‘turned me on’ which she interpreted that to mean made her ‘horny’, telling him to let go so that she could go back to bed.[187] She believed this took place after the insect bite incident either one or two years before she left home, possibly when she was in Year 10.[188]
[186] T231.17-232.2.
[187] T232.3-233.34.
[188] T234.1-.4, T235.1-.8.
Evidence of complaint – AB and LA
It was LA to whom AB first spoke about her father. He promised not to tell anyone, eventually telling his parents, as she understood it.[189] This happened near the end of their relationship of two to three years standing, and towards the end of Year 10.[190] She was unable to recall in detail the terms of their exchange, only that she told him her dad ‘was touching her inappropriately and that it scared her’.[191] This came about because she ‘needed somebody to talk to and I felt I could go to him’ and ‘I was scared … I started to realise that what was actually happening was wrong’.[192]
[189] T112.18-.25, T113.28-.29.
[190] T113.5-.19.
[191] T113.23-.27.
[192] T114.1-.6.
LA said he met AB at the beginning of Year 9, and that their relationship progressed in the first term of that year to one of ‘boyfriend/girlfriend’.[193] He visited her mostly on the way to and from school, whereas she visited him mainly at night, around 9.00 pm onwards, or early mornings, pre-arranged by text exchanges, often without his parents’ knowledge as he occupied a separate granny flat.[194] Sexual relations commenced when he was around 15 or 16 years of age.[195] LA told the court there were about three times when AB’s father came to his house, becoming ‘a bit aggressive in a threatening sort of nature’ raising his voice at times.[196] AB made the 2.5km journey by foot or by borrowing his bike, and she often borrowed his clothes.[197]
[193] T281.14-.26.
[194] T281.36-282.37.
[195] T282.38-383.16.
[196] T283.34-284.14.
[197] T284.28-.36.
LA claims to have actually seen AB’s father being violent. For example one particular night when the girls were doing the dishes, her father caused a ‘stir up and argument’ following which he hit her across the head with a saucepan with ‘unnecessary force’, causing her to cry in pain.[198] Another example was when AB was called into the living room where there was a minor argument, ending up with her on the floor with her wrists held as she struggled and asked him to stop.[199] He referred to another five or six similar incidents springing from ‘some small argument or maybe a little bit of backchat or something of that nature’[200] and ‘I guess it’s kind of something that is imprinted in my memory … I wanted to do something but I couldn’t’.[201]
[198] T285.2-.28.
[199] T286.6-287.12.
[200] T287.15-.22.
[201] T286.1-.5.
LA further referred to another incident after the accused arrived home from work and argued with his wife about what time AB came home, which ended with him confronting AB in the shower.[202] This incident stuck in his memory because ‘there was abuse … her getting pulled out of the shower by her hair’.[203] He in fact said the physical violence ‘wasn’t just [AB]’ and was at times directed at JB ‘not as often’.[204] Her father ‘the arm-locking, holding her against her will up against the walls … to the point where they were in pain, asking him to stop’.[205] The arguments between AB and her father were ‘aggressive’ and ‘unnecessary’, whereas the relationship with her mother was ‘a little bit better’ as they would argue, but ‘there was none of the physical abuse’.[206]
[202] T287.29-288.35.
[203] T288.3-.6.
[204] T289.30-.36.
[205] T289.37-290.6.
[206] T290.15-.26.
LA also recalled regular inappropriate comments about AB, specifically about what she was wearing, such as ‘I can see what you had for breakfast’ and ‘your breasts are very big’ and other things of that nature, often in the presence of CB, JB, and their mother PB.[207] He remembers these incidents as he considered they were ‘sickening’ and ‘kind of strange’.[208] Another ‘sick and odd comment’ involved the accused’s reference to his and AB’s sex life by the ‘weird and abrupt’ question, whether ‘his dick was bigger than mine’.[209]
[207] T290.33-291.8.
[208] T291.18-.22.
[209] T291.23-292.2.

LA’s evidence on the topic of disclosure, began by reference to a particular day before school when in Year 9, he felt AB ‘wasn’t herself’, giving him the ‘gut instinct … something wasn’t quite right’, because she wasn’t giving him ‘a straight answer’.[210] They decided to skip school.[211] As the exchange progressed AB told him of things ‘happening in her home life … that her father was doing things to her’, things ‘she just doesn’t want to talk about’.[212] When queried ‘is it something to do with your parents, or something along those lines?’, she responded ‘yes, it’s got to do with her dad’.[213] He remembers thinking ‘she might need to tell someone else’.[214]
[210] T297.8-.23.
[211] T297.24-.37, T299.14-.31.
[212] T298.8-.16.
[213] T298.16-.18.
[214] T299.2-.4.
Later that day she agreed to speak to his parents, so they went to his house, and as she remained ‘out the front’, he spoke to his mother ‘I’ve got one of my friends from school here that seems to be going through something’ and ‘I brought her here because I feel like she needs some adult’s help’.[215] His mother invited AB inside where she was persuaded to call a helpline, which was dialled for her, on which she then spoke ‘privately’ outside.[216] Afterwards AB appeared ‘very uncomfortable’ as if ‘she hadn’t gotten anywhere’.[217]
[215] T299.33-300.15.
[216] T300.15-.34.
[217] T300.35-301.2.
According to LA it was quite a long period of time after this discussion, and after he had left school and started an apprenticeship when he and his family went to AB’s house with police to pick up his belongings.[218] The chronology with respect to the complaint evidence is somewhat imprecise. The exchange between AB and LA was on the basis of their evidence somewhere between the second half of 2009 and late 2010. The visit by the police when LA’s possessions were returned appears to have occurred in 2012 and it was three or four weeks afterwards that AB went to Whyalla. AB’s 19^th birthday was in early October 2014 and the incident which led to BT’s eviction seems to have been about a week before the complaints reported to the police on 11 December 2014.[219]
[218] T301.11-302.12.
[219] T638.24-.28.
The police visit
LA’s mother and grandmother went to AB’s house in the company of police in order to collect LA’s things, as according to AB she had taken his shoes and clothes to wear home.[220] She said there was no discussion prior to the police visit, however she maintained the reason they attended was because LA told his mother about what had happened, and as ‘they were already there’ for that reason, ‘they had asked for his belongings back’.[221] AB denied suggestions that she was taking some of LA’s belongings which she might not return,[222] and she denied the police said she was no longer to go to LA’s house or to a particular park.[223]
[220] T115.4-.19.
[221] T170.11-171.38.
[222] T172.37-173.1.
[223] T174.36-175.24.
She did admit that a police officer asked her in front of everybody ‘if these things were actually happening’, but as she felt ‘scared and frightened … intimidated’ and ‘a little bit attacked’, she responded ‘no, it wasn’t happening’. She said in the course of her evidence that LA became ‘very upset’ at this response, so the police directed him to ‘go sit in the car’ and that her father grew very aggressive.[224] She was then told to go to her room and after everyone had left, her father asked her why she had said those things, she replied ‘because I did’, she was ‘grounded’, and shortly after that sent to Whyalla.[225] It was from this point that she considered her relationship with LA ‘went downhill’, because as she understood matters, he thought she lied to him when earlier speaking to him about her father.[226]
[224] T112.32-.35, T173.5-.18.
[225] T112.36-113.4, T174.31-.35.
[226] T113.2-.4, T172.35-.36.
JB’s account of this police visit is not so comprehensive, since she was inside albeit close to the front door; only afterwards was she told what it was about by her mother,[227] and in any case she believed it was before she spoke to MG.[228] The exchanges between them are referred to later. JB denied that her father would only try to grab hold of AB’s arms to stop her hitting him, and she disagreed when it was suggested to her that her father never hit them with a spoon or a belt or that it was their mother who disciplined in the household.[229]
[227] T240.24-241.4, T256.32-257.9.
[228] T257.17-.19.
[229] T273.13-274.14.
LA himself gave extensive evidence about this incident, which he considered took place ‘a lot later’ than the initial discussion with AB, when he was still in a relationship with AB but at a time when he had already left school.[230] AB was in Year 10 when he commenced his apprenticeship.[231] He recalled that the police, his mother and his grandmother went to the house, however he understood this was because either his mother or grandmother called for police presence to collect his belongings.[232] He thought this was because his family considered AB was stealing things belonging to him, whereas in fact she had his permission to take them.[233] He remembered first parking down the street waiting for the police to escort them.[234]
[230] T301.15-.19.
[231] T306.5-.9.
[232] T301.37-302.12.
[233] T302.33-303.20.
[234] T302.20-.23.
LA recalls seeing AB bring out the belongings to his mother and grandmother, just before her father came out inquiring ‘what is going on, why are police here?’[235] One police officer asked him to go and sit in the car, and as he did he heard a police officer ask AB ‘Is he still doing things to you?[236] He did not really understand why this particular police officer asked that type of question.[237] His version of AB’s exchange with the police was that she did not answer the question ‘Is he still doing things to you?’, rather she remained quiet.[238]
[235] T304.3-.13.
[236] T305.1-.7.
[237] T305.3-.4.
[238] T310.36-311.4.
Despite this unpleasant episode, their relationship continued even though he found it difficult to keep in touch with AB, although their relationship ‘started to deteriorate … slowly after time I started distancing myself a bit’.[239] The relationship came to an end towards the end of the first year of his apprenticeship, following which they failed to maintain contact, except when he was asked if he would be willing to ‘help out’ with this particular case by providing a statement.[240] He was at the time of giving evidence a resident of the Northern Adelaide suburb of Pooraka.[241]
[239] T305.8-.37.
[240] T306.23-307.10.
[241] T281.8-.9.
Under cross-examination LA accepted there were times that AB would sneak out late at night or in the early morning to visit him, unbeknown to his parents.[242] He confirmed that his parents pressured him to end the relationship.[243] He disagreed with the suggestion that her father only came looking for her once, late one afternoon,[244] and he adhered to his in-chief account of the occasions of physical violence by the accused.[245]
[242] T307.28-.35.
[243] T308.28-309.10.
[244] T307.36-308-.9.
[245] T309.15-310.13.
CIB involvement
Detective Brevet Sergeant An gave evidence of his involvement in investigating the matter and the ultimate arrest of the accused on 13 December 2014, which also happened to be the birthdate of the accused’s youngest son.[246] There is no evidence of a police interview with the accused. Detective An spoke of an occasion when a colleague was telephoned by AB and JB to report an incident in which the accused may have been in the company of other children including his own, contrary to the terms of his bail.[247] Detective An ascertained the accused was not at the house and he asked the girls to leave the area, which they did.[248] He was also concerned that AB attended the Magistrates Court in the preliminary stages of proceedings against the accused, as she was told it was her right to attend even though he advised her not to.[249]
[246] T420.6-.22.
[247] T339.32-340.20.
[248] T340.22-.37.
[249] T341.27-.31, T344.19-.35.
There were surprisingly no police records to verify the situation so far as police attendance at the premises with LA’s family is concerned. This may be explainable by the fact that nothing of substance emerged, in contrast to the situation when an acquaintance of MF was arrested, which did require documenting. Detective An in fact confirmed under cross-examination that there was no incident report regarding a police encounter with MF and his arrested friend, even though he expected there would be such a record if a police car pulled over people and spoke with them for identification purposes and arrested one of them.[250]
[250] T342.38-343.13.
Evidence of complaint – PB
AB deposed to attempts over the years to talk to her mother, despite the fact that their relationship was ‘never good’, claiming to have told her a few times that she ‘felt uncomfortable staying home alone’ with her father, but she was told to ‘stop being silly’.[251] Soon after she was no longer permitted to see or speak with her aunty and nanna, as they were ‘cut out of their lives’.[252]
[251] T114.7-.28.
[252] T114.11-.17.
In cross-examination JB confirmed telling her mother nothing had ever happened with her father, but denied this was truth:[253]
[253] T272.36-273.12.
Q.Now, shortly after that incident you went on a trip to Spotlight or Lincraft or somewhere with your mum that you remember.
A.Yes.
Q.Your mum asked you whether you would tell her if anything had happened to you.
A.Yes.
Q.You'd said to her that you would, that you would tell her if anything had.
A.Yes.
Q.She'd asked you if anything had and you'd told her that nothing had happened.
A.That's correct.
Q.So was that the truth that you told your mum that time.
A.No.
The Whyalla events
It was about three or four weeks after the incident involving the police attendance, that AB claims she was sent to her paternal grandfather in Whyalla.[254] She was no longer with LA as he called it off, believing she ‘had lied to him’.[255] Under cross-examination she said it was not until a few weeks after she was sent to Whyalla that their relationship ‘went rocky’.[256] She denied going to Whyalla to have a break because she was no longer allowed to see LA, asserting instead that she was sent there because of what she told his mother, and that she remained in touch with him.[257] She explained that after running out of credit, she ‘stole’ another mobile phone in order to let him know, and upon returning it she got ‘in a lot of trouble’.[258] She specifically denied lying about this to her grandfather and instead said she handed it back and that ‘he gave it back to the girl’.[259]
[254] T112.35-113.4.
[255] T113.3-.4, T116.10-.12.
[256] T165.24-.30.
[257] T175.38-.176.8.
[258] T176.15-.24.
[259] T177.3-.28, T179.2-.15.
AB in fact suggested her grandfather saw that she was texting LA and became angry, and thereafter would not allow her to ‘leave the bedroom until they were able to drive me back to Adelaide’.[260] She denied being present whilst her grandfather called LA, or that she screamed on the phone calling him a liar, and she equally denied telling her grandfather that she had not stolen ‘anything else’, insisting she would never do that.[261] She further denied that her father found on her return DVDs, jewellery, makeup and electrical appliances taken from her grandparent’s home in Whyalla.[262]
[260] T178.9-.14.
[261] T179.23-180.6.
[262] T180.16-181.10.
The Andamooka events
AB accepted going to Andamooka later to her other grandparents, which was when she was dating a new boyfriend MF, because her parents kicked her out of home and sent her there for a ‘bit of a break’.[263] As she did not want to stay, she ran away. Eventually her grandma gave her $10, dropped her at the Port Augusta bus stop, and told her if she was ‘street smart’ she would find her own way home.[264] She denied running through the streets of Andamooka knocking on people’s doors complaining she was kidnapped, or that the police attended her grandmother’s house looking for her.[265] No evidence was called or cross-examined by the defence to underpin these assertions.
[263] T181.11-.16.
[264] T181.16-.25.
[265] T181.26-.36.
After returning from Whyalla, AB said things continued ‘downwards’ at home, became more violent between her and her father over a period of six or seven months, but there was on the other hand no further sexual abuse.[266] After a particularly violent incident involving her father, she moved out of home, to which she returned just before giving birth to her first daughter, as she claims having ‘nowhere else to go’.[267] She particularly recalled the relationship with MF progressed to the point that she moved in with him ‘roughly in March 2012’.[268] He remains her partner to the present time. Her daughter was born in early 2013.[269]
[266] T116.10-.33.
[267] T116.3-.9.
[268] T117.11.
[269] T117.35-.38.
The shed incident
AB gave evidence of an argument that developed with her father over a kitchen drainer that could not be found.[270] As a result she was locked in a rear shed, from which she escaped as ‘one bit of the shed wouldn’t close’.[271] She rang MF who came over with his friends before running off with them.[272] She then received a text message ‘if you’re not home in 5 min, do not come home at all’.[273] She claims they were pulled up by a police patrol only to be told ‘you are not to go back home because you were dangerous to the family’ and that one of MF’s friend was arrested at this time.[274]
[270] T183.32-.35.
[271] T183.28-.37.
[272] T183.38-184.2.
[273] T116.22-.29, T184.2-.9, T185.20-.22.
[274] T185.29-.32, T189.8-.33.
AB said JH and her mother were present during this incident, that her mother took no part in it,[275] and that it was when she was about 16 or 17 and still in High School.[276] Under cross-examination she denied the argument developed over doing the dishes,[277] and she also denied telling MF that her father had broken her wrist, that he head-butted her, or that MF brought a ‘crew of his mates’ to confront her father.[278] It was soon after this that she fell pregnant.[279]
[275] T186.8-.16.
[276] T184.10-.21.
[277] T184.23-185.7.
[278] T186.32-187.1.
[279] T116.27-.28.
AB acknowledged later moving back home claiming this was because she did not get along with MF’s sister and that she no longer wanted to stay at his house after having a baby, even though they were otherwise inseparable.[280] She further admitted that her parents visited them often at home, or in hospital when giving birth, that her father assisted in finding accommodation for them and to pack and move, but she only asked her mother and JB to babysit for her, not her father.[281]
[280] T187.20-188.24.
[281] T187.23-188.5, T190.7-.34.
JB’s 18^th birthday
According to the evidence of AB, there was another incident after her daughter was born. This was JB’s 18^th birthday party at the family home. As she was leaving she claims her father called out from the kitchen ‘are you not going to say goodbye to me too’, so she gave him a hug and a kiss, and as she did he tried to slip his tongue into her mouth, causing her to pull away, so she bid him goodbye and left.[282]
[282] T117.23-.31.
When cross-examined about this she said her father ‘first went in for a hug’, asking ‘can I have a kiss’, before he attempted to insert his tongue into her mouth.[283] She denied that JH and her mother were present, claiming they had already left by then, or that she held her baby for her father to kiss, or of kissing him on the cheek.[284]
[283] T191.18-.30.
[284] T191.33-192.16.
Evidence of complaint – AB and JB
AB gave evidence that there was only one occasion when she spoke to her younger sister JB about the things her father did to her. This was soon after JB turned 18, however neither went into great detail about what happened.[285] The situation was that as JB and her partner BT were having drinks, BT became drunk and exclaimed ‘I hate your father, I am going to kill him for the things that he has done to [JB]’.[286] AB’s attention was drawn to this exchange by prosecuting counsel Ms Holt, in this way:[287]
Q.When [BT] told you about stuff that dad had done to [JB], did he go into any further detail about any particular types of things.
A.Not into detail. The only thing that I do know is that there was an incident at the house and dad had walked down to the bedroom and [JB] had just got out the shower. She was getting changed. He has walked in on her and [BT] has made a comment to dad. I can't remember exactly what was said but dad turned around and said 'I am neither [sic] going to punch you in the face or you are going to leave'. That is the only thing that has been discussed.
Q.Who was it that told you about that incident.
A.[BT].
[285] T118.29-119.17.
[286] T118.29-.37, T192.33-.37.
[287] T119.6-17.
AB considered she ‘instantly knew’ what he was talking about, but proceeded to ask him what he was referring to all the same, to which ‘he told me dad has done stuff to JB’. AB turned around and retorted ‘I was never lying when I told LA’, after which they ‘all became upset and angry’.[288] AB had not otherwise spoken with JB about her father, even after speaking to LA about it, maintaining that this was the only discussion they had on the topic.[289] It was a friend who convinced them to go to the police about it.[290] According to her evidence, whatever was said transpired very quickly as BT was drunk, fell into the paddling pool and vomited.[291] She denied making this up because her parents had kicked her out the house or because they had put ‘their foot down’ about the continuing sexual relationship with LA.[292]
[288] T119.3-.5.
[289] T193.2-.11.
[290] T193.11-.16.
[291] T194.4-.19.
[292] T194.28-195.21.
The account of these events given by JB is a little different. She described getting ready for bed when someone mentioned her father, then BT angrily said ‘If he ever touches JB again, I’m going to kill him’.[293] At this everyone ‘froze’, AB asked what he meant, and he replied ‘if he ever did it again he would hurt him’.[294] Like her sister, she did not go into specific details about what their father did.[295] AB began crying, looked at JB who said ‘she wasn’t alone’, but things soon ‘turned into chaos at that point’ with everyone trying to figure out what the girls were talking about.[296]
[293] T246.37-247.3.
[294] T247.4-.10.
[295] T277.6-.14.
[296] T247.17-.32.
When cross-examined on this topic, JB indicated the occasion was AB’s 19^th birthday and she would not accept her father had driven her, BT and CB to the party, or that CB was later picked up, having no recollection of it, whilst conceding it might have happened ‘but I don’t have much recollection of that night, other than when [BT] said what happened’.[297] She admitted maintaining some contact with AB after moving out, and she said there was one instance the day before the party when she asked AB if it was true, only to receive the response ‘no’.[298] She saw AB a couple of times afterwards only to discuss going to the police.[299]
[297] T274.16-.38.
[298] T275.16-.38.
[299] T277.15-.25.
Discipline in the houses
AB’s evidence was that her father would on occasion discipline her with a belt or a wooden spoon at the first house, administered regularly when she or her siblings were naughty, had ‘attitude’ or ‘back chatted’.[300] She denied this type of discipline ‘never happened’ and she maintained it was administered at times when her mother, JB and CB were present. She denied that her mother was responsible for disciplining the children, accepting that she did threaten them sometimes by saying ‘wait until your father comes home from work, he can deal with you’.[301] AB further denied her parents considered her ‘too young to be sneaking out of the house at all hours of the night to go see LA’ and that she was too young to be in ‘a sexual relationship with a boy’.[302]
[300] T131.7-.28, T132.20, T150.19-151.26, T153.12-.16.
[301] T152.23-153.11.
[302] T168.16-.25.

The charge here is the indecent assault of a person under the age of 12 years. This is an occasion on the weight of the evidence occurring shortly after moving into the second house when AB was awoken late at night from a mattress in a bedroom in which her siblings were asleep, and taken into the kitchen where the accused indecently ‘tongue kissed’ her. The agreed facts are such that AB was 11 years old in January 2007, so this aspect of the charge is proven. It may be that count 2 could have been pressed as it was without amendment, because as of 15 May 2006 s 5AA(1)(e) came into force.[528]
[528] Section 5 Statutes Amendment and Repeal (Aggravated Offences) Act No 62 of 2005.
The degree of detail described by AB of this incident is at first sight rather convincing. As the circumstances are esoterically unusual, it is more likely to be true rather than not. There is no independent support for the accused’s self-serving statement that he has a short tongue. His wife was asked nothing about it during her evidence by either counsel. It is surprising according to ordinary human experience that the accused would run the risk of waking the other children or that he would take AB to such an exposed area as the kitchen, but then again it is far from inconceivable. This is not however a situation by which there is a proven tendency to engage in sexually predatory conduct with the accused’s daughters irrespective of ‘the high risk of detection’, as it was in Hughes v The Queen.[529] For the reasons already given, it is not shown that the evidence of repeated abuse is ‘capable of removing a doubt which the brazenness of [the accused’s] conduct might otherwise have raised’.[530]
[529] (2017) 92 ALJR 92.
[530] Ibid [59].
There is no complaint evidence specifically referrable to this charge and it is doubtful that ‘touching inappropriately’ is capable of encompassing the act of tongue kissing as is alleged in this instance. Once again at this age, it is unsurprising that AB did not complain, especially if she was told ‘it’s our little secret’. There is no corroboration. There is a degree of forensic disadvantage in as much as these events occurred some 10 years before trial in the absence of a contemporary police investigation. Of more significance, a timely complaint was very likely to have conclusively resolved the important and highly contentious dispute over whether the children’s bedrooms were set up or not.
Despite an abiding sense that AB may well have told the truth about this incident, there remains a lingering reasonable doubt, there being no corroboration, together with the evidence in the defence case quite apart from the denial of the accused, so that the only proper verdict open on the evidence is one of not guilty.
Count 3 – analysis
This charge is of unlawful sexual intercourse with a person under the age of 14 during the calendar years 2007 and 2008, contrary to the substantive offence created by s 49(1) of the CLCA. The evidence was that AB was in Year 6 or 7 at the time, towards the end of Primary School, when she was 11 or 13 years old. She began High School aged 13. There can be no doubt that she was a person under the age of 14, as she turned 14 towards the end of Year 8 and was of that age for the majority of the calendar year 2010.
This is the incident of alleged cunnilingus in the rear of the accused’s work Van. The detailed account of AB has an aura of truth about it. It is not an account that is inherently unlikely or inconceivable. Taking her to work had the distinct advantage of privacy thus avoiding ready detection or exposure. It was unlikely to attract criticism if ‘dressed up’ for work experience, especially if the school was notified and approved such absences.
Here again the risk of alerting others in the house if AB was abruptly awoken so early without notice must be considered, and it appears unlikely this kind of activity would recur too often without the school asking questions if she did go on such trips.[531] As explained earlier, the evidence of the insurance requirement that only children over the age of 14 were permitted to take these trips is not conclusive. The evidence of CB as to advising the school of such trips supports the accused.[532] By the same token PB admitted they were supposed to but ‘frequently didn’t’, and she did not recall if her husband did so.[533] She did add that such arrangements were made the night before.[534] This aspect of her evidence makes sense as friction was likely to develop given the fractious nature of her personality if AB was unexpectedly taken from bed in the early hours of the morning, irrespective of what her school commitments were. There is no complaint directly referrable to this incident and it is entirely uncorroborated. Her explanation for not complaining as she was scared that no-one would believe her is not difficult to understand.
[531] T143.12-.15.
[532] T504.23-.36.
[533] T563.16-.21.
[534] T563.22-.31.
In these combined circumstances the same legal principles concerning the return of verdicts discussed when considering counts 1 and 2 equally apply. There is moreover potentially a significant degree of forensic disadvantage specific to this count. Doyle CJ explains in R v Cassebohm,[535] that it is necessary to identify the nature of any forensic disadvantage tied carefully to the particular circumstances of the case. There is no evidence one way or the other that the accused ejaculated, but as he masturbated that seems likely. In any case an oral swab had the potential to be highly indicative one way or the other.
[535] (2011) 109 SASR 465, [32].
The question of school-sanctioned work experience provides yet another example of the potential for significant forensic disadvantage, in as much it was implicit in the evidence of PB that work experience was available during certain years at High School and not others, as she responded to questions in cross-examination by reference to the subject on the premise that it was not offered until Year 10.[536] The implication is that it was not available in Primary School, contrary to the evidence of AB. She was aged 15 for the majority of Year 10, and hence not proven to be a person under the age of 14 in that event.
[536] T563.28-564.4.
This premise is supported to some extent in that AB agreed she did work experience when in High School, albeit not with the accused.[537] It was his evidence that she did undertake such work experience ‘as well’ with him.[538] It appears to be unlikely that work experience was available to Primary School children. A simple inquiry of the schools was very likely to have resolved this issue, so it is sufficient for the moment to conclude that this inquiry was likely to have assisted the defence: R v Cassebohm.[539]
[537] T143.2-.11.
[538] T409.23-410.1.
[539] (2011) 109 SASR 465, [30].
A timely complaint would further enable enquiries to be made as to work experience practices, policy and requirements, as well as unexplained or un-notified absences from school and to obtain copies of school records when work experience was undertaken. Similarly, there was also the outstanding question of the insurance issue that was easily solvable by speaking to the accused’s employer. These several considerations lead to the conclusion that the combined levels of forensic disadvantage are to such an extent that it is unsafe to convict on this count.
As with count 2 because of the doubts expressed earlier as to AB’s general reliability in combination with the above specific considerations, this charge is not proven beyond reasonable doubt.
Count 4 – analysis
This count also charges unlawful sexual intercourse with a person under the age of 14 years. AB said that this was not long after the work Van incident, so this places the event close to the end of Primary School when she was between 11 and 12 or possibly even 13. The age element of this charge is therefore proven.
Here the allegation is of cunnilingus on a living room armchair, again after first rousing AB in the early hours of the morning before departing for work. There is less detail in her account of this event and yet it is not inherently improbable or unlikely, except perhaps to the extent of taking the risk of a ruckus ensuing by awakening her so early, in the context of the unestablished numerous occasions AB maintains similar undetected abuse took place for so long.
There are arguably one or two minor inconsistencies between her evidence and her police statement on relatively peripheral issues, so they are of no consequence. There is no specific complaint directly referable to this count, which remains unsubstantiated by independent supportive evidence. That AB did not report the matters feeling that she might get into trouble is perfectly understandable. There is an element of forensic disadvantage, as the accused washed his face afterwards in the kitchen, it is conceivable that forensic body examination might have thrown some light on matters one way or the other.
In light of the accused’s denials and the defence evidence tending to support it, together with the wider misgivings as to the reliability of AB, it is not possible to come to the conclusion that this charge is proven to the requisite degree, or to reject the defence case as a reasonable possibility.
Count 5 – analysis
This count charges unlawful sexual intercourse with a person under the age of 17 years. Count 5 relates to the allegation of fellatio when AB was 15 or 16 years of age and certainly of more mature years. This places her in Years 10 or 11 of High School and therefore during 2011 or 2012. This aspect of the charge is therefore proven as she did not turn 17 until late 2012.
The precise incident charged is the act of fellatio in the bathroom to the point of ejaculation, accompanied by or close to shaving her vagina, and before the events charged on count 6, well into AB’s relationship with LA. The charged offence circumstances were not as risky as the other charged and uncharged incidents, inasmuch as this incident transpired behind closed doors.
None of these incidents are corroborated. They are broadly but not specifically consistent with what she told LA. It was when reaching this age that she had come to realise ‘what was happening was wrong’. It appears that she began to question things, thinking it was normal that other dads did this kind of thing. Her observation to the alcohol-fuelled threat by BT with respect to JB ‘she’s not alone’ takes the matter no further because it has no context. Her denial to the police is in one sense understandable, however the fact remains that this occasion presented a first opportunity to disclose in a safe environment, with police at hand to protect her and with LA and his family to support her, particularly as she understood they attended for the very purpose of investigating what she had told LA’s mother. In that circumstance her explanation for the denial that she was ‘frightened and intimidated’ does not gel with the context, particularly as it appears her father was not present.
It is to be recalled there was the evidence of LA as to an occasion when the accused confronted AB in the shower by pulling her by the hair, as well as of other incidents when he used unnecessary force, perhaps up to five or six times. LA had particular reasons for remembering those events, and there is no occasion to suppose he was partial to AB, since he was estranged from her for several years. That such domestic incidents did occur is supported by the evidence of BT to the extent that the accused is demonstrated to have at times remonstrated with AB and more significantly was unabashed in confronting her even if she was showering. Their account of those kinds of incidents connects with that of AB to the extent that the accused nastily admonished her when she displayed a ‘bad attitude’, and so with that of JB when at such times AB would ‘act out’ and ‘rebel’.
Putting aside the denials of the accused concerning discipline, the evidence of CB was that his father did not as a rule discipline the children,[540] as was the evidence of his mother PB.[541] The evidence of the boarder JH was that she never saw the children left alone with their father,[542] and that they were not disciplined by their father.[543]
[540] T484.13-485.6.
[541] T514.13-.35.
[542] T456.19-.30.
[543] T457.17-.28.
Whilst this evidence of PB and to a lesser extent JH and CB that PB and not the accused was responsible for disciplining the children can generally be accepted, the above evidence demonstrates there were occasions of domestic discord when the accused overreacted, not so much in matters of discipline but in circumstances of conflict particularly as between himself and AB.
To that extent this evidence is highly probative and admissible pursuant to s 34P(2)(a) of the Evidence Act, for the limited purposes however of explaining the course of events leading up to the events charged on count 5, and as evincing a pattern of behaviour by which the accused achieved dominance over AB in circumstances of conflict between them. This evidence is not admitted for any propensity purpose under s 34P(2)(b) of the Evidence Act because it lacks sufficiently strong probative value, and as there is no sexual connotation to these otherwise domestic exchanges. This combined evidence that the accused on occasion subjected AB in this way is in combination especially compelling, despite the evidence in the defence case inferring circumstances were otherwise. To that extent the evidence of the accused and PB in particular is not accepted.
The acts of fellatio and masturbation were accompanied by ejaculation on the bathroom wall. There is accordingly appreciable forensic disadvantage, for a prompt complaint was likely to have secured evidence of the presence or otherwise of semen and therefore highly probative, and if not decisive, giving rise to the significant risk of a miscarriage of justice. These allegations are made in the face of denials by the accused, supported to varying degrees by the other witnesses in the defence case.
In light of the identified shortcomings in the general reliability of AB as a witness, the absence of supportive evidence or a specific referrable complaint, together with the distinct prospect of considerable forensic disadvantage, it is fundamentally not open to determine where the truth lies or to reject the defence case out of hand.
In the combined circumstances proof of this charge falls short of the requisite standard, so that a verdict of not guilty must follow.
Count 6 – analysis
Again AB is said to have been awoken from her bed and lured into another part of the house where she was sexually abused by the accused pushing his erect penis towards her vaginal entrance. Her account is very detailed, and therefore indicative of the truth. Then again the kitchen floor is an unlikely place for such robust activity and as a common area of the home, prone to detection. It is surprising a refrigerator door was opened for light, as this was likely to attract attention and equally enhance the risk of discovery. It was the evidence of both the accused and PB that the refrigerator globe was inoperable, which is questionable inasmuch as the inference was that the refrigerator was left in this state of disrepair for a very long time.[544] Both gave inconclusive and quite generalised evidence that he had lower back and knee arthritis-related problems, making it unlikely this incident could have occurred in the manner described by AB.[545] The accused denied that it occurred at all.[546]
[544] T523.26-.35, T564.33-565.8.
[545] T363.27-.34, T402.38-405.13, T419.29-420.5.
[546] T419.7-420.5.
It is not possible to reject the evidence of the accused and the defence case completely, despite the degree of detail proffered by AB, offset to some extent by questionable aspects as to location and circumstances. There is no referrable complaint and there is no corroboration. The failure to complain understandably continued to reside in fear of the consequences. There is a small element of forensic disadvantage, although this event was comparatively recent in point of time. The accused’s denials and the defence case are neither improbable nor wholly unconvincing. The situation therefore is fundamentally that the evidence on this count does not permit the court to conclude where the truth lies and therefore gives rise to a reasonable doubt as to guilt, which the accused is entitled to the benefit of.
The evidence of JB – analysis
The sole charge relating to JB charged on count 7 is of an indecent assault, aggravated by two uncontentious particulars. It was noted earlier that JB’s allegations are less comprehensive than those of her older sister. The complaint is of rubbing and touching the vagina area when she was around 12 years old. Similar abuse allegedly occurred in an identical way when seated on her father’s lap, when her mother was not at home and when she was told not to tell anyone.[547] Events of this kind took place approximately three times every six months over an indefinite period. There is the context of the alleged incidents involving the insect bite, going into her room when she was naked, and when she was shown a pornographic video.
[547] T250.29-.35.
The alleged incident in the kitchen when JB was supposedly slapped on the ‘butt’, was too fleeting to retain any probative value for any purpose, and hence insufficient for any admissible purpose: R v Turney.[548] It is more consistent with a domestic rebuke of some kind. Likewise the single incident in which the pornographic material was said to be shown to JB, is insufficiently connected to the charge and unrelated to any other uncharged event to retain sufficient probative value for identifiable admissible uses, even though it can be acknowledged that JB described the content in some detail. The accused and his wife were adamant that they did not watch pornography at either house, so it is not open in any event to accept beyond reasonable doubt that this incident took place as alleged either.[549]
[548] (1990) 52 SASR 438.
[549] T421.27-.36, T574.35-575.8.
The occasion of going into the bedroom where JB was partly undressed is a little more complicated. It is inherently one that is apt to misinterpretation. The evident discord that erupted is just as likely to have resulted from the accused’s concern that JB had left the bedroom door open within sight of BT, as it is with the accused assuming he was a ‘peeping Tom’. This and the other isolated uncorroborated acts such as the insect bite incident are insufficiently probative to justify admission for any permissible purpose: IMM v The Queen.[550] These were in any case denied by the accused. The evidence of these incidents is therefore insufficiently probative to justify admission for permissible purposes under s 34P of the Evidence Act: R v C, CA.[551]
[550] (2016) 257 CLR 300, [106]-[107], [122].
[551] [2013] SASCFC 137, [82].
The complaint to MG of touching inappropriately is capable of reference to the allegation contained in count 7, although there is a distinct risk that it was derivative, in the sense that it sprang from MG’s own experience as a child with which JB ‘empathised’, rather than deriving spontaneously from her own direct experience. It is nonetheless sufficient to justify admission as evidence of a small degree of consistency on her part, despite the fact that the electronic exchanges are no longer available: R v A, GP,[552] R v El Rifai.[553] JB did not complain to anyone as she was told not to and she was afraid of the ‘outcome’ if she did.
[552] (2012) 113 SASR 146, [11]-[17].
[553] [2012] SASCFC 98, [82], [132]-[134].
As against that there was her acceptance that her mother had specifically asked to be told if anything happened, JB explained that ‘I was scared because I saw the way her and [the accused] were treating [AB] at the time’.[554] This explanation is somewhat puzzling and unconvincing as there is very little evidence of ill-treatment of AB at the hands of her mother.
[554] T241.4-.9.

The evidence of PB on this topic is important, and it was this under cross-examination relating to an exchange following the police visit to the family home:[555]
Q.When did this occur.
A.Later that day, because after the officer left me and [JB] went out to Lincraft and I had a discussion with [JB] and then -
Q.I'll just stop you there; what was that discussion with [JB].
A.I asked her if anyone had like sexually abused her and if any family members or friends or like anyone had touched her in a way that made her feel uncomfortable, and she said 'How do you mean?' and I said 'Well, touching your body or more specifically your' - we refer to them as 'private parts' - 'to your private parts' and she said 'No', and I said 'Because [D] is saying that [AB] has alleged this so I need to ask you if this has happened to you because it was directed towards [L]'. From my mother's own sexual abuse history I know you can quite often expect that if one sibling is being abused, another one is. So I told [JB] that if it's a family member, that quite often there would be other members within the family that are being abused, so even if she felt that she couldn't come to me, there were family friends that she could trust, there was family that she could trust and that she could talk to [AB] about it, so that they had that reassurance like that they weren't alone if anything had happened to them, and [JB] assured me that that wasn't the case.
[555] T567.37-568.24.
This evidence was sincere and convincing, given in a manner imparting the truth of the matter. It is inconsistent with the conduct of JB. There may of course be other legitimate reasons why JB made the complaint at the time she did to MG and not to her mother, however in light of this evidence her explanation for denying to her mother that she was scared of the way her parents treated LA, is as just mentioned unsupported by any other evidence in the case and was objectively speaking an unconvincing one.
The evidence of JB was not otherwise inherently unlikely, and she was not on the whole shown to be an unreliable witness. She cannot be criticised for overstating the number of times these kind of things happened, as AB can. She was not as wilful or difficult as her older sister was in relations with her parents. The accused admitted there were times when she sat on his lap.[556] He denied showing pornographic material,[557] inappropriately tapping her on the bottom,[558] and he provided an innocent explanation for the circumstances when she changed in her bedroom, when he said BT was in the toilet.[559] He did admit to angrily telling BT he could ‘get out’ because of his ‘attitude, he came at me’.[560] The evidence of CB relating to this incident if anything supports the defence case as he said that JB ‘used to always walk around the house in basically a bikini after she got out of the shower’.[561] JB herself appears to accept that may have been the case in this instance.[562]
[556] T373.37-374.1.
[557] T374.34-.36.
[558] T374.37-375.22.
[559] T375.23-377.18.
[560] T377.19-378.1.
[561] T507.6-.20.
[562] T224.13-.18.
Although there are differences in the evidence as to when her mother was and was not at home, on the evidence of PB those were confined to Sunday mornings when this was the case. The charged event took place at night,[563] and it was JB’s evidence that these things happened ‘always’ at night time.[564] It is more likely in any event that the girls would accompany their mother on Thursday evenings when they were younger, in the event that no-one else was at home to look after them. That was also the effect of the evidence of JH on this topic, so far as it went.[565]
[563] T517.35-518.3, T519.14-.24, T523.8-.15.
[564] T217.16-.35.
[565] T456.19-.30.
In this instance there is only one witness asserting the commission of the crime charged, who stands alone uncorroborated in proof of the prosecution case, so it is necessary to be satisfied beyond reasonable doubt of the truthfulness of JB: R v Murray.[566] Whereas here, the accused gave evidence in denial of the charge and there is no convincing corroboration, there is an inherent difficulty in arriving at a conclusion of guilt: Question of Law Reserved on Acquittal (No 1 of 1993).[567]This is not a case in which the accused’s denials are so incredible and JB’s evidence is so convincing so as to amount to proof beyond reasonable doubt.
[566] (1987) 11 NSWLR 12, 19C-E.
[567] (1993) 59 SASR 214, 218.
Despite the abiding sense that JB’s account is likely to be reliable, given the evidence in the defence case and the denial to her mother, it is after close and anxious consideration impossible to know where the truth lies. That being the state of affairs the accused is entitled to the benefit of the reasonable doubt: Liberato v The Queen,[568] R v Calides.[569] Expressed in another way, it is simply not open to reject the accused’s evidence or that of the defence case as ‘not reasonably possibly true’: Douglass v The Queen.[570]
[568] (1985) 159 CLR 507, 515.
[569] (1983) 34 SASR 355, 358.
[570] (2012) 86 ALJR 1086, [13]-[15].
Cross-admissibility and uncharged acts
Given the conclusions as to the verdicts on each count, the question of cross-admissibility of the evidence of one count on another, does not arise. The question only arises if and when one or more charges are proven beyond reasonable doubt. The evidence of uncharged acts was largely dealt with as it arose during the course of these reasons. The submission that there were so many occasions of abuse in respect of AB is unproven, as too improbable. Apart from those matters, the uncharged act of shaving AB’s vagina is also unproven and it places the accused at a significant forensic disadvantage because the truth of that allegation was capable of exposure if a prompt complaint was made, by forensic medical examination. The unsupported incident concerning the insect bite and its aftermath is reasonably capable of an innocent explanation as are the occasions of the accused wearing boxer shorts or dressing gowns, which therefore do not justify admission as discreditable conduct evidence. The occasion when the accused is alleged to have questioned the size of LA’s penis does have some strength from the evidence of AB in conjunction with that of LA; however it is equally consistent with the accused’s dislike of the under-age sexual relationship they continued to maintain much to the chagrin of both families. The comments about what AB wore from time to time or as to her figure are readily seen as attributable to jibes or spite in the context of a terse relationship.
Conclusion and verdicts
It is obvious that the examination of the evidence in the case was necessarily detailed and exhaustive, because of the two completely opposed versions of the facts and the inordinate passage of time between the prosecution and the defence cases. The task of the court in the search for justice according to law is obviously an onerous one. Having reviewed and analysed the evidence again and again, it has not proven possible to remove the substantial doubt as to guilt on each count. Despite enduring reservations as to the truth of the matter, the prosecution has failed to prove each count beyond reasonable doubt.
It should therefore be understood that the following verdicts by no means amount to declarations of innocence; they amount to no more and no less than the charges are not proven according to the high standard of proof demanded of the criminal law: R v Andrews Weatherfold Ltd.[571]
[571] (1972) 56 Cr App R 31, 40.
As matters stand, verdicts are therefore entered as follows:
Count 1 – Not guilty
Count 2 – Not guilty
Count 3 – Not guilty
Count 4 – Not guilty
Count 5 – Not guilty
Count 6 – Not guilty
Count 7 – Not guilty