R v M, L
[2012] SADC 13
•22 February 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, L
Criminal Trial by Judge Alone
[2012] SADC 13
Reasons for the Verdicts of His Honour Judge Muecke
22 February 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Trial by judge alone.
The accused charged with one count of indecent assault and one count of unlawful sexual intercourse.
Verdicts: Guilty of both counts
Abrahamson v The Queen (1994) 63 SASR 139, applied.
R v M, L
[2012] SADC 13Background
In 2004 the accused met two of his grandchildren, A and K. Those children were the daughters of one of his sons. Although he had seen them when they were babies he had not had any contact with them from that time until 2004. That was when their mother, in the process of trying to find their natural father, found their grandfather, the accused. At that time A was about 13 years old and her sister K was about 11 years old. A was nearly exactly two years older than K.
Once they had made contact with their grandfather the two girls, whom by all accounts did not get on well together, saw their grandfather regularly. Each girl mostly visited their grandfather by herself, but sometimes they would be at his house at Salisbury North at the same time. Both girls would stay over at their grandfather’s house, mostly separately. They each had a good relationship with their grandfather.
On an occasion when A was about 16½ years old she was at her grandfather’s house one evening. She was to stay there that night. It was probably either a Friday or Saturday night.
Later that evening the accused and A shared some bourbon and Coke together. There was a difference in their evidence as to how much bourbon they drank together, who poured it, and at whose instigation they drank bourbon. I shall refer to this evidence later.
It seems common ground however that A became affected by alcohol, at least to some extent. As a result she went to the bathroom of the accused’s house to have a shower. She turned the shower on, sat on the floor of the shower alcove and let water run over her. She was naked. The accused came to the door of the bathroom and knocked on the door. Shortly after this he entered the bathroom. His granddaughter A was naked on the floor of the shower alcove. He assisted A to get to her feet under the shower in the shower alcove. Their accounts of what next happened differed.
A’s evidence was that the accused removed his outer clothing and returned to the shower alcove wearing only his “jocks”. With soap in his hand he rubbed A’s breasts, body and the outside of her vagina with the soap in his hand. After he had done that he put a towel around her naked body and assisted her into the lounge room where she lay on a couch with the towel wrapped around her and with a blanket on top of her. She went to sleep. Later that night she awoke naked to find the accused fondling her left breast. He was kneeling on the floor with his arm around her fondling that breast with his hand. The towel and the blanket were on the floor. A wrapped the blanket around her and went back to sleep. She said that later during the night she was again awoken. This time she was lying naked on her back on the couch. The accused was sitting on the couch with A’s legs placed over and across his upper legs. He had his fingers in her vagina. She kicked out at him and his fingers came out of her vagina. She asked him to bring her clothes to her which he did. She put them on and she went to bed in her bedroom. A said that on both these occasions when the accused fondled her breast and put his fingers in her vagina he was wearing a T-shirt and his “jocks” or just his “jocks”.
The next morning A’s sister K and K’s boyfriend B visited the accused’s house. A said she told them what had happened the night before.
There was evidence of a conversation between K and the accused out the back of his house. K’s version of that conversation and the accused’s version differed, although in one respect there was common ground. That was that the accused said to K that he was “disgusted” with himself for what had happened the night before. “Disgusted” was the word the accused used or adopted although K said that the accused had told her that “he was a disgusting (old) man”.
The charges
The accused is charged with two criminal offences.
First Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 1st day of June 2008 and the 27th day of November 2008 at Salisbury North, indecently assaulted A.
Second Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
The accused between the 1st day of June 2008 and the 27th day of November 2008 at Salisbury North, had sexual intercourse with A, a person under the age of 17 years, by inserting a finger into her vagina.
Some general matters
The Crown must prove either or both of the charges. The accused does not have to prove anything. He does not have to prove his innocence. At his trial he did not have to give evidence, nor did he have to call witnesses. Even if he does do either of those (as is the case here insofar as his giving evidence is concerned), it is still for the Crown to prove the charges, or either of them.
The Crown must prove the charges beyond reasonable doubt. Further, the Crown must prove each and every element of the charges beyond reasonable doubt.
Nothing short of proof by the Crown beyond reasonable doubt will do. It is not enough for the Crown to show a mere suspicion of guilt, or to show that the accused is probably guilty. In this case the accused is not to be convicted of either of the charges against him unless I am satisfied that his guilt has been proved beyond reasonable doubt.
I must consider each of the two counts separately and I must consider each in light of the evidence that applies to each separately.
I am not required to be satisfied of the accused’s version in this case. The burden of proof lies elsewhere and part of the relevance of the evidence of the accused is to consider whether it assists in casting a reasonable doubt on the evidence of the prosecution. Such a doubt may arise because of this, or for any other reason or reasons, and it is my duty to consider whether that is the case in the present matter.
Although one focus will be on the accused and his credibility, even if I do not believe him on crucial issues, that does not mean I must find him guilty. I still have to be satisfied that the Crown has proved each element of either of the charges against him beyond reasonable doubt.
I must consider carefully all the evidence I have heard and counsel’s submissions. I must decide which witnesses are credible and reliable, remembering that an honest witness can be mistaken and unreliable. In deciding whether a witness is credible and reliable I must use my life experiences and common sense. I have the right to believe or disbelieve. I may believe some of the evidence of a particular witness, and disbelieve other evidence that witness gave.
I must consider only the evidence that I heard at the accused’s trial. I must put aside any feelings of sympathy, anger, distaste, and even prejudices (if I know I have any), and carry out my task calmly and objectively.
If, in these reasons, I speak about matters being “proved” or “satisfied” or “established”, or any other word or expression of that kind relating to the proof of matters in issue, I mean, although I do not say so on every occasion, “proof beyond reasonable doubt”.
Indecent assault
A person who indecently assaults another is guilty of an offence.
This first count relates to A’s evidence that when she was naked in the shower at the accused’s house at Salisbury North he rubbed her breasts, her body and the outside of her vagina when he had some soap in his hand.
An indecent assault is an assault accompanied by, or committed in, circumstances of indecency. The offence has four elements. The prosecution must prove each beyond reasonable doubt.
The first element that must be proved is that there was an application of force by the accused to another person. Any touching or handling is sufficient. The application of force does not need to be great.
The second element that must be proved is that the application of force must be intentional rather than accidental touching.
The third element that must be proved is that the application of force must be without lawful justification or excuse.
The fourth and final element is that the assault must be accompanied by, or occur in circumstances of, indecency. Whilst opinions may differ as to what is or is not indecent, there are some types of conduct which by any reasonable standard can only be described as indecent.
The law is that no person under the age of 17 years is capable of consenting to any indecent assault. I am satisfied that the incident in the accused’s bathroom that evening, whatever happened during it, occurred when A was about 16 to 16½ years old. Accordingly, she was then under the age of 17 years. She was therefore incapable of consenting if I am satisfied that the accused indecently assaulted her.
If I am satisfied beyond reasonable doubt that the accused did to A what A said he did to her while she was in the shower at his house, by rubbing her naked breasts, her body and the outside of her naked vagina when he had soap in his hand, I shall be satisfied that the first count has been proved, and I shall find the accused guilty of this count.
Unlawful sexual intercourse
A person who has sexual intercourse with a person under the age of 17 years is guilty of an offence.
This second count relates to A’s evidence that on the second occasion that she awoke while she was sleeping on the couch in the accused’s lounge room after she went there from the bathroom, she was naked and the accused’s fingers were in her vagina.
The offence of unlawful sexual intercourse has two elements. The prosecution must prove each element beyond reasonable doubt.
The first element that must be proved is that the accused had sexual intercourse with A. The act alleged to constitute intercourse here is that the accused inserted his finger or fingers into A’s vagina. If I am satisfied of that beyond reasonable doubt then I shall be satisfied that the Crown has proved the first element of the second count. That is because the law defines sexual intercourse as including the penetration of a person’s vagina with another person’s finger.
The second element that must be proved is that A was under the age of 17 years at the time that any sexual intercourse occurred.
Consent on the part of A is not a defence to this charge of unlawful sexual intercourse.
If I am satisfied beyond reasonable doubt that the accused inserted a finger or fingers into A’s vagina when she was lying on the couch in the accused’s lounge room then I shall be satisfied that the second count has been proved as I am satisfied that A was under 17 years of age at the time it is alleged this happened. I shall then find the accused guilty of this count.
The issues
The issues in this case as to the two counts charged against the accused seem to be whether the Crown has proved beyond reasonable doubt that the accused did to A what she said he did to her in the shower, and whether the Crown has proved beyond reasonable doubt that the accused did to A what she said he did to her when she awoke on the couch with his finger or fingers in her vagina.
The evidence of the complainant
A was 20 years old when she gave evidence at the accused’s trial. She was born on 29 October 1991. She turned 17 years of age on 29 October 2008. A said that she had a sister named K. K is two years younger than she.
A said that she met the accused in 2004. She would have turned 13 years of age in October of that year. She said the accused is her grandfather. She met him after she commenced a search to find her biological father. The accused is the father of A’s biological father. About a year after she met her grandfather he moved into a house at Salisbury North.
A said that after she had met the accused she visited him about every second weekend at the house from which he later moved to Salisbury North. When he moved to Salisbury North she used to walk to that house from her house to visit. Alternatively, the accused picked her and/or her sister up from their house. She said that she saw the accused every day after school, and also on weekends. She said that she was at his house mostly by herself. She said that her relationship with her “pop”, the name by which the accused was known to the two sisters, was “really good”. Pop used to take her out, used to give the girls party pies and lots of other food, including lollies, allowed them to watch TV and to watch movies. That was better than life at home. She said that pop used to give them pocket money for lunches at school. That would be either $5 or $10.
A said that when she was about 15 years old pop would give her one or two beers. She would normally have one, but occasionally two. She was referring to stubbies of beer. This would happen only at weekends.
A said that both she and K stayed over at pop’s house. Very occasionally they stayed together but most of the time she stayed over by herself. When asked why she replied: “Because we used to fight all the time”.
A said that the accused would walk around the house naked. She said he did that: “Pretty much the whole time”. She said it would sometimes happen from about three o’clock in the afternoon, after he had had a shower having returned home from work, until about 9pm or 10pm when they went to bed. She said that he would sit at the dining room table watching TV when he was naked. He would sit on the couch naked and he would sit on a single recliner chair naked. She said that seeing her grandfather naked made her feel “uncomfortable”. When she discussed it with him he said “It’s only skin” and he told her to be comfortable. She said she did not ever get comfortable seeing him like that. She said that when she asked him not to go around the house naked “he stopped straight away with me”.
A said that at some time she lived with her pop. That happened just before the “incident”, when she was 16 years old. She said that she remembered that the incident occurred at about the time when she got her driver’s permit. She said that she obtained her permit when she was 16½ years old. It was issued from 29 July 2008 (Exhibit P3).
A said that on the day of the incident she had been at a friend’s house. She walked to her grandfather’s house from her friend’s house. She arrived there at about 7pm. It was dark.
A said that when she was watching “Home and Away” her grandfather offered her a drink. He offered her “Coke mixed with Bourbon”. When she was asked what kind of bourbon A replied: “Cougar I think it is called”. It was a half‑full bottle. She said that she had never had bourbon before.
A said that her grandfather mixed the drink. He poured a little bit of bourbon into the bottom of a small glass with Coke filled to the top. She said her grandfather had the same as her. She said that she did not like the drink because it was “burning my throat”. She said she guessed she did not like it so much because it was the first one she had ever had. It did, however, make her “feel good as a teenager because I thought it was cool drinking”.
A said that fifteen minutes after finishing that drink she had another one. Her grandfather asked her if she wanted to have a go at mixing it herself. She went to the kitchen to do so. She had never mixed a drink like that before. She filled the glass half-full with bourbon and then filled the rest with Coke. She said she made two drinks at that time, one for herself and one for her grandfather. When she gave her grandfather’s drink to him he commented on how strong she had made it. She said that she found the second drink “really strong”. It took quite some time for her to finish it “because it was not nice”. Her grandfather finished his second drink before she did.
A said that she then had a third drink. She said that her grandfather made that, but that he did not have a third drink with her. By the time she had finished her third drink she was feeling “dizzy and woozy”. She said she was: “Not feeling like I was on earth anymore, I felt a bit drunk”. She had not felt like that before.
A said that she told her grandfather that she was not feeling too good and he told her to go and have a shower. She said that by then there was only a small amount of bourbon left in the bottle.
A said that when her grandfather suggested she have a shower she went to the bathroom and got herself undressed in the bathroom. She struggled a little bit in doing that because she was feeling “dizzy and drunk, didn’t have my hold on the earth”. She said she had to sit on the floor and try to pull her trousers off.
A said that she got into the shower eventually and sat on the floor, letting the water hit her on the face. She was naked.
A said that her grandfather knocked on the door and asked if she would like a coffee. She replied “Yes”. She said that when he finished making a coffee he told her that she should get out of the shower because she had been in there long enough. When asked whether her grandfather said anything else, A replied: “He was worried about me, I thought, and he came into the bathroom while I was naked on the floor”. He said: “You don’t look so well, let me help you”. She was feeling dizzy and was feeling “a bit strange by him walking in”. She said that her grandfather pulled her off the floor and “pulled me back in the shower”. She said that when she was leaning on the wall her grandfather started getting himself undressed. He took his jeans and his red T-shirt off and came back to the shower with “just his jocks” on.
A said that she was leaning her head against the wall “while he was rubbing soap on my breasts and all over my body and my vagina”. She said that was on the outside of her vagina. As he was rubbing her breasts, all over her body and her vagina with soap she said nothing to him but “he just told me to be comfortable, he is just helping me”. He said that whilst he was touching her.
A was asked this:
QYou said that he took his jeans and shirt off, what was he wearing then.
AJust his jocks.
QDo you know what kind of jocks they were.
ARed.
QDo you know what a boxer short is.
AYes.
QWas it like boxer shorts or different.
ADifferent.
QWhat kind of jocks were they.
ALike the briefs I think they call them.
A said that when her grandfather finished touching her he turned the taps off, he grabbed a towel and he put it over her shoulders. He was standing behind her when he did that. When he placed the towel over her shoulders she grabbed it with her hands. The towel covered her body, and her grandfather started patting her with the towel to dry her off. He rubbed her up the back and up and down on her front. He then walked her to the lounge room. She said that she was still a bit “dizzy and woozy” from the bourbon and “couldn’t walk straight”.
A said that she was going to go and get dressed in her bedroom but her grandfather told her she was too drunk and pulled her towards the couch. He suggested she lay down on the couch. She said he grabbed a blanket and put it over her as she lay on the couch. She had wrapped the towel around her as tight as she could so it could not come undone or drop off. She said she was lying on the couch on her right-hand side facing towards the back of the couch. She fell asleep.
A said that at about 12.30 the next morning she was woken up. She knew it was at that time because she looked at the clock by the laundry. She woke up because she “felt my breasts being touched in a weird way”. She saw her grandfather’s hands on her breasts. He was on his knees in front of the couch with his hands leaning over the top of her. He was touching her left breast with his left hand. He had his hand “all around it”. The towel and the blanket were on the floor by her grandfather. He had on his red T-shirt and his jocks. They were the same clothes he had had on before. She said she felt “confused, strange”. She said that she was feeling a lot better from the alcohol she had drunk earlier than when she had gone to sleep, although she had a headache from it.
A said she did not know how long her grandfather had been touching her on her breasts but when she woke up and realised what he was doing she used her left arm to knock him off her. She grabbed the blanket from off the floor and wrapped it over the top of her and pulled it tight “so it couldn’t fall off again”. She did not say anything to her grandfather.
A said that she woke up again on the couch at some later stage. This time she did not look at the clock so she did not know how much time had passed.
A said that when she woke up again her grandfather was sitting on the couch and her legs had been placed over his legs. She was on her back and her grandfather was sitting underneath her legs that were placed over the top of his knees. He was wearing “just his jocks again”.
A said that when she woke up she felt “his fingers moving around inside me”. She said that his fingers were inside her vagina. She said “it was weird and it hurt because at that time I was a virgin”. It was hurting “inside my clitoris I think it is called where his fingers were”.
A said that when she felt that happening she kicked her grandfather but she didn’t make contact because she misjudged her kick. As she did that “his fingers came straight out” of her vagina. She sat up and pulled the blanket back around her. She asked her grandfather to get her clothes. She thought he went to her bedroom to get them for her. He came back and gave them to her. She put her clothes on. She said her grandfather got dressed at the same time. He did that in the kitchen while she was in the lounge room putting her clothes on.
A said that when she woke up that second time she felt “confused, angry, upset, everything. Didn’t know what to say to him”. She went to her bedroom and sat on the bed by herself “wondering what just happened”. She tried to go to sleep but could not sleep.
A said that the next day her sister K and K’s boyfriend B came to the house. She said that when they arrived she was in her bedroom. Her grandfather was outside.
A said that she told her sister K exactly what her grandfather did and what had happened the night before. She told her everything. B was in the room when she told K. She said that conversation lasted about ten minutes. She said that during the time when she saw K and B she was “crying, I was crying a lot”.
A said that K left the bedroom and she continued talking to B. She asked him what she should do. She was asked by counsel for the prosecution:
QWhat decision did you come to.
ATo leave it and try and forget it because I didn’t want pop to be in trouble.
QWhy didn’t you want pop to be in trouble.
AI don’t know why I came up with doing that, I think at the time I didn’t want my family members and all that to find out and all that, I didn’t want mum to be angry and go ballistic.
A said that she did not talk to her pop that morning and he said nothing to her about what had occurred. She said that straight away after the incident she asked her mother if she could come back to her house.
A said that her decision to go to the police came some time later.
Under cross-examination A explained that K had gone to the police to report a sexual incident that had happened to her. K went to the police with their mother. K said something to their mother that resulted in her, A, going to the police about what her grandfather had done to her about two years earlier. She said that her mother insisted that she go to the police but had said that ultimately it was up to her.
A was cross-examined about whether she had ever lived for an extended period of time with her grandfather. She was cross-examined about whether she was living there when the incident she had described occurred. A said that she was not certain that she was living with her grandfather at that time. She had earlier said that she was, and that she lived with him for some months. She said she could not remember the dates that she moved in. She said that this incident took place when the weather was cold. She thought it was the beginning of winter because it was cold.
A agreed that for some two and a half years after the incident she continued to see her grandfather. He would still pick her up from school and she would visit him on her own accord. She continued to occasionally stay overnight with him. He taught her how to drive a motor vehicle. When it was put to her that she had a pretty good relationship with her grandfather for two and a half years after the incident she replied: “I am good at hiding my feelings for what he did, yes”. She said she tried to hide her feelings so that she did not have to tell anybody in the family. She said that she had had a bad relationship with her mother for as long as she could remember.
A agreed that at the time she reported to police what her grandfather did that night she did not feel too good about herself because of her mother and her mother’s partner. She agreed that her sister K felt the same.
A accepted that K had a good relationship with their grandfather for most of the time that K lived with him. She accepted that towards the end when K lived with him K’s relationship with him turned a bit sour. She agreed K resented her grandfather and was very angry at him. When it was suggested to her that K’s anger towards her grandfather also made her angry A said: “Think we both had different feelings about pop. I was more quiet and I never really spoke about my problems about what had happened. I felt like it had all been forgotten because it was quite some time ago, it did feel like it was forgotten”.
A accepted that on a number of occasions K expressed to her anger that she, K, had towards her grandfather about a number of different issues. A said, however, that K would get angry “but then she’d go home and act like nothing, like she’d go back to pop’s house and act all princessy again”. A said that she did not know that K had stopped going around to her pop’s house about four months before she, A, spoke to the police.
A denied that the real reason that she continued to see her pop was because he had not in any way sexually interfered with her.
When it was put to A in cross-examination that she had said earlier that the accused was wearing a T-shirt and jocks when he woke her up a second time when she was on the couch, she agreed. That is not, however, what she had said. Rather she had said that he was wearing only jocks “again”. She said that “it was definitely jocks” and not a pair of black shorts, like bathers. She had just before that referred to “big shorts, long shorts, like up to your knees” when asked about whether her grandfather had a pair of bathers which were like shorts. A said that the accused was definitely wearing a red T-shirt and not a blue T-shirt.
A was then cross-examined about whether she had described the accused to police as being naked when he touched her on the breast and in the vagina when she was on the couch. A agreed that she told police that he was naked when he was rubbing her breasts. She said that she “called him naked because to me he was naked because he wasn’t fully dressed. He just had a T-shirt and jocks on”. When pressed that she would not have said to the police that the accused was naked if he was wearing a T-shirt and jocks she responded: “He was half dressed then”. She agreed she did not tell police that. She agreed that she told police that her grandfather was “still naked” when she was woken up the second time. When asked to agree that that was different to what she had said in court she replied: “I still believe (he) was naked, but he had a T-shirt and jocks on”. She said she gave the description she did to police “because he pretty much was naked, he just had a T-shirt and jocks on”. She was then asked: “What about in the shower?”. She replied: “He was fully naked except for the jocks. Yes, he had clothing but it wasn’t the T-shirt or pants, it was just jocks, jocks on its own and they were red”. She said: “He was just wearing jocks, which is still classed as naked”. This was then put to her:
QIn relation to what you say took place in the shower you told the police “Pop took his clothes off, he was standing with me in the shower naked as he was soaping my body”.
AYes.
QBut you say that he was actually wearing jocks in the shower.
AWhich I did tell the police that too.
QYou told the police that he was naked, didn’t you.
AI said he was also wearing jocks though.
A denied that she was lying about all this and she denied that she had got confused in what she had told police and what she had said in court.
A said that her grandfather did not help her into the bathroom and that he did not take her clothes off or help her take her clothes off. When asked: “It wasn’t the situation that he put you in the shower?”, she answered: “When he saw me sitting on the floor, he picked me up and helped me in – to have a proper shower”. She said that “he helped me up and helped me finish off having a shower”. She denied telling K that her grandfather had put her in the shower, and had taken her clothes off. She said that she did not tell B that her grandfather helped her undress because she was not capable of getting undressed.
A said that she told K and B about what her grandfather had done when they saw her in the bedroom crying. She denied that she told them when they were in the lounge room.
A denied that she left her grandfather’s house that night and did not stay there. She said she stayed another night after the incident even though she did not want to. She did that because she did not want her mother wondering why she came home early and ask her questions.
A denied that when her grandfather gave her beer prior to this night that it would be something less than a full stubbie of beer. She denied, when it was put to her, that she had never seen her grandfather naked, never once.
A said that she had four or five glasses of bourbon and Coke prior to the incident. She denied that she had asked her grandfather whether she could have a drink, and said that he offered her a drink even before she saw the bourbon in the cupboard. She said that when she spoke to police she recalled that she had had three drinks, and agreed that was what she told them. She said she now remembers that she had more than three. She said that she did not think she gave the police a number of bourbons, but rather said she had a few glasses of bourbon and Coke. She agreed, after she read her statement however, that she told police that it was only three times, but she recalled having more than just three. A needed to have a blank piece of paper to assist her in reading her statement. She said later that she did not read the statement when it was given to her before she signed it. She said that someone read it to her before that happened. She said that she gets confused reading and her eyes trick her. A piece of paper helps her to see what she is looking at. She said, again later, that she thought the fact that her eyes trick her when reading is called “dyslexic”. She said she has been told that this is part of her intellectual disability.
When her statement was put to her that she told police that she made the third drink, she remembered that that was the case. She agreed that she had said earlier in her evidence that her grandfather had made the third drink but she said she “had gotten confused about that time”. She said she now remembers making the third one herself. She remembered when it was put to her that her grandfather had told her roughly how much to put in it. He demonstrated how much she should put in by reference to a capful of bourbon. She denied only having two glasses of bourbon and Coke. When it was put to her “Wasn’t it a bottle of Jack Daniels” she replied “No”. She had said that it was a bottle of Cougar bourbon because it had a tiger on the label. She said it wasn’t a black label, it was green.
A denied that she had first said that she was going to have a shower. She said her grandfather had said to her “You are better off having a shower to relax and feel a bit better, it might make you feel a bit better”.
A agreed that she was in the shower longer than she would normally have been. She denied that her grandfather had said “I’m sorry, I’ve got to come in”, (referring to the bathroom) when she was in the shower. She denied she replied “That’s okay, I know that you are only trying to help me”. She denied that her grandfather turned the shower off when he came in when she was squatting on the floor in the shower. She denied that he remained fully clothed. She agreed that he put a towel around her, but said that he only did that after he finished rubbing her with soap. She accepted that he helped her out of the bathroom but “after he finished what he was doing with the soap”. She denied that he told her to go to bed and not to lie on the couch. She denied that he went outside the house after he put her clothes on the armrest of the lounge when she was lying on it with a towel wrapped around her and a quilt on top of her. She denied that there was no time that her grandfather sexually interfered with her.
It was put to A that the next morning she called out to her grandfather from her bedroom. It was put that he came into her bedroom and she had said “About last night”. It was put that her grandfather then said “That’s alright, I didn’t take much notice about it”. In answer A said “I said what he did to me and he tried to apologise to me for it”. When it was put to her that she did not see her grandfather at all for the rest of the day she replied: “I came out (of my bedroom) eventually and sat with him in the dining room”.
A denied that she and K had “got (their) heads together to make up false stories about (their) pop in relation to what took place in that bathroom”. She said that K and herself hardly saw each other after K moved out of her grandfather’s house. She said that she was not angry with her grandfather before she spoke to police. She said: “I moved on, I tried moving on and I got on with my life at the time”.
A agreed that K could talk her into doing things even though K was younger than herself. She said that K “was the one that told me not to tell the police at the start and then suddenly changed when she moved out of Pop’s”. A denied that K told her to make up lies about her pop. She denied that she made up lies about her pop because K appeared to be getting attention because she had told her mother that she had been sexually assaulted and that she, A, wanted some of that attention herself.
Under re-examination A said that she continued to have contact with her grandfather for two and a half years after the incident because she did not want anyone in her family to get angry with him or hurt him. She thought her father, especially, would do something to hurt him.
Other Crown evidence
A’s sister K gave evidence. K is two years younger than A.
K said that she could not recall her sister A ever living with their grandfather, although she said that A visited him nearly every day. She said that when she and her sister would visit their grandfather and stay over, that occurred on the weekends. She said that her sister and she did not stay over together very often, “because we didn’t really get along”. K said that at one time she lived with her grandfather. That was for about a year. That was after the incident involving her grandfather and A.
K said that B was her boyfriend for about a year and nine months. She had been going out with B for about a year when they visited her grandfather the day after the incident. It was on a Saturday or a Sunday. She said she remembered that the weather was really hot. She said that she would say that it was summer because it was hot.
K said that when she and B visited her grandfather they went in through the back door of her grandfather’s house. That was their normal way of entering his house. A was in the lounge room and her pop was in the kitchen. She was pretty sure he was doing dishes. She said that she noticed that “it was really tense and they weren’t talking”. She was referring to A and her grandfather. She said A was stressed and would not talk at all.
K said that she, B and A went into the bedroom. There she had a conversation with A. K said that A told her that she got drunk with pop, he undressed her and put her in the shower. K said that A told her that after the shower she was on the couch naked and their grandfather started massaging her and touching her on her breasts and her vagina. K said that A was crying when she was telling them this. She said that the door to the bedroom was closed. She was pretty sure that their grandfather was “out the back”.
K said that she left the bedroom and talked to her pop. He was outside and she said that he took her into the caravan to talk. K said that when they were in the caravan the accused “said that he touched A’s boobs and that he was a disgusting old man”. When he said that he was upset. She knew that because he was crying. Her grandfather did not give her any more information about touching A’s breasts. She said that her grandfather said to her that if A goes to the police “he would get locked up in gaol and raped up the bum”. K said that they then returned inside the house and the accused just sat at the kitchen table.
K said that she, A and B “agreed not say anything because – we were scared what would happen”. She explained that that was because of what pop had told her “about being raped up the bum in gaol and stuff”.
K said that when she lived with her grandfather for a time he would walk around completely naked. He said to her that she should be able to walk around naked too “because it is just skin and it is my house too”. She said that her grandfather tried to walk in while she was having a shower to talk to her. She said that it happened “a lot” that he would be naked when she was there by herself. She said that when he came home from work he would “get naked and then walk to the shower and have a shower”. After the shower “he would either sit around in his jocks or just naked”. He would do that “for the rest of the night”.
Under cross-examination K said that she did not think that A was living with their grandfather at the time of the “bathroom incident”. She said that when she and B left on the day that they went around to the house that she had described, A left with them. She said A went back to their mother’s place and stayed there, where she was living at the time.
K said that she decided to go and live with her grandfather because she was not getting on with her mother. She said that she started living with him about five or six months after the “bathroom incident”.
K said that towards the end of the time that she stayed with her grandfather they started to have arguments. There were arguments about a phone bill and the phone. She said he told her that she was “lying and deceitful like (her) father”. That made her angry. K denied that there were arguments about other matters that were put to her. She denied that certain things that were put that the accused did were not true. She denied that she was very angry with her grandfather when she stopped living with him.
K denied that the only times she saw her grandfather naked was by accident. She said “he was always walking around naked. He only ever cared if my mum or step-dad came over”. She said that her grandfather said that it was her house, and that she should be able to walk around naked as well. She had said, however, “I don’t feel comfortable doing that”.
K said that she went to the police in May 2010 to make a complaint about a boy who had sexually assaulted her. That had occurred at her grandfather’s house whilst she was living with her grandfather. She said she did not tell her grandfather about that. She only talked to her mother about it. K said that it was when she went to the police station to report what had happened to her that she told her mother that her grandfather had been touching A. K denied that she made that up. She denied that she was angry enough to tell lies about her grandfather, and she denied that she was angry enough to get her sister A to go along with those lies.
K denied that when she arrived at her grandfather’s house the morning after the bourbon incident she told her grandfather that she had to get something from the caravan and went out there. She said that he took her into the caravan and talked to her. She agreed that he appeared upset, but denied that she asked him “What’s wrong?”. She said that her grandfather had said to her: “He was a disgusting man and he had touched A’s boobs”. When it was put to her that the accused started to tell her that he felt disgusted, but before he could tell her why she said “Don’t worry about it” and then gave him a hug and left the caravan, K replied: “I hugged him because he was crying but he didn’t say anything like that”. When asked: “You weren’t angry with him, were you, upset because of what A had said?” K replied “I didn’t know what to think, I was shocked”. When asked why she went to live with him if she was shocked, she replied: “I didn’t know how to believe it until I seen the things I seen”.
K denied that she had made all of it up about A and what A said to her that happened that night. She denied making up about A saying to her about A being touched by their grandfather.
B was K’s boyfriend for a period of about a year and nine months that ended about two years before the trial.
B said that he recalled that he and K went to the accused’s house one morning. He said: “I guess we were going to stay there for the night, we usually did”. He said that when he and K arrived A was sitting in the lounge room, “like stressed about something”. He said that A was not her usual self, she seemed depressed that day. He said that she obviously was not happy about something and “there was a bit of tension in the room”.
Although his evidence was not clear I gathered that he, A and K spoke together in the bedroom after they got up from the lounge and walked into the bedroom. He said that in the bedroom K had a conversation with A. When asked what A said B replied:
ASomething about having a big drink up with her grandad the night beforehand and they were pretty paralytic. She was, they were both really drunk and then he started feeling up her leg or something. She got – then she started crying and getting all teary. I didn’t really understand much about what she was saying, she like broke down and she said he was trying to feel her up in places and I sort of got the impression, yeah, she didn’t want to be felt up.
QDid she actually say which places or not.
ANo, she wasn’t very – like, sort of details and stuff but it was obviously something she didn’t want to be touched or she wouldn’t be crying.
QDid A say anything else about what had occurred the night before.
AYeah, she said she was really, really drunk, she couldn’t walk and her pop helped her have a shower and he helped her stand up in the shower or something that night as well later on. He helped her have a shower, just sort of straighten up or something like – yeah, she was pretty drunk as well and she was pretty depressed about that as well.
QWhat did she say about being in the shower.
AShe said she was too drunk to clean herself, so her pop helped her and helped her stand up while she was in the shower drunk.
QDid she say anything else about being in the shower.
AI think she said – like, she was breaking down even more, then she said her pop felt her up while she was in the shower and that was when she – like, you could not hear half of what she was trying to say and she started crying a fair bit.
QDid she say anything else about what occurred that night.
ANo, she didn’t.
B said that this conversation went on for about 15, 20 minutes on and off, “between (A) crying”. He said that at some time K went out to speak to her grandfather.
B said that A asked him what she should do. He did not really know what she should do. He told her to talk to K and talk to her mother about it. B was asked:
QDid you see Pop again that morning.
AYeah.
QDid you discuss what A had said with him.
ANo, he said he was drunk and he didn’t know what he was doing. Yeah, he was just recovering from drinking.
QWhat kind of mood was he in when he said that.
ALike, well shaken. Like, I don’t know how to describe it, it looked like he was drunk.
QI think you said well shaken; is that right.
AYeah, pretty depressed looking. Pretty shaken up.
B said that they stayed at the house for probably about an hour or two and then went back to his house.
B said that over a two-year period he went to the accused’s house well over a hundred times. He said that when he visited he noticed the accused “just chilling, like, in his underwear”.
Under cross-examination B said that he did not remember A leaving the house with him and K, although he said it could have happened. He later said that A would not have gone with them because he would have gone to his house. He said that it would have just been him and K leaving, because K did not like her older sister to hang around.
B denied that the accused stopped him coming around to his house to see K. He said that K moved in there because her mother would not let her see him. He was never told that he was not to go to the accused’s place to see K.
B said that he was pretty sure the majority of the conversation between the two sisters was in the lounge room although he said they all may have moved to the bedroom later on.
During cross-examination B referred to A saying to him that the accused had “tried to feel her up in the backyard”. She had said she was drinking out in the backyard when her grandfather tried “to feel her up”. She had said something like “What are you doing?” and he had replied something like “You are drunk, you go and have a shower” and then he had gone inside, helped her undress to have a shower and tried to feel her up. He said that A had broken down trying to describe the rest of the story to him. He said: “all of it became mumbles and crying”.
B denied that K went outside to get something from the caravan when they had walked into the house.
B denied that he said nothing to the accused at all that day. He asked him what was going on. The accused had “said he was drunk and he didn’t like know what he was doing at the time”. He said that he was “pretty sure, guarantee” that conversation took place. He said: “that sort of stuff just doesn’t pop up in your head”.
When it was put to him that at the time he spoke to the police he was angry with the accused because the accused would not let him come around and see K at his house, B replied “I wasn’t even going out with K at that time. I had been broken up for six months I reckon”. He said he did not know “what they were planning to do until a later date, until I was already going out with T” (his new girlfriend).
When asked whether he and K had “got (their) heads together to tell false stories about (the accused) as to what was said on this day”, B replied: “Well, I haven’t spoken to K since I broke up with her, about a year and nine months ago until yesterday in this courtroom so I don’t know how that would have worked”.
The accused was spoken to by police on 15 August 2010. That would have been some time over two years after the incidents which are the subject of this trial. The accused told police that K had moved out of his place just a couple of months before the interview.
The accused denied to police that he had ever digitally penetrated A at his house one evening when she was 16 years of age and when she was quite intoxicated. The accused said that he had “never touched her in an inappropriate way or anything like that”.
When police asked the accused whether there was ever a night where A stayed over and that he and she shared a bottle of bourbon he said that he has never “shared a bottle of bourbon with her”. He said that he did not think A even liked bourbon. He said that he had never given her a bourbon and did not know if she ever had a bourbon when he had not been there.
When police put to the accused that the allegation included that A had made herself an extremely strong bourbon the accused said: “You are right, I took it off of her”. When asked whether A got intoxicated that night the accused answered: “Well she has, she said she was going for a shower, if I remember correctly”. When asked to tell the police a bit about that the accused answered: “Well she went and had a shower, then she came out and that and she was a bit wobbly, I said well you’d better get to sleep then if, cos she used to … at her mother’s place, she had a couple of drinks, she looked drunk and that. She goes no it’s okay. But that was about it”.
When the accused was informed that A had stated that he actually got into the shower with her because she was quite drunk and needed his assistance the accused answered: “She needed my assistance but I didn’t get in the shower with her, put it that way”.
The accused told police that he remembered yelling out to A and she did not answer. He yelled out a bit louder “Are you alright” and she said “No I’m not”. He said that A told him that she was sitting on the floor. He thought that that did not sound right so “then um I had a sort of see what her problem was but very discreet, you know, um so when I seen her sitting on the floor I just turned the thing, the taps off and then I sorta helped her up. I wasn’t gawking, this was my granddaughter, and I sort of put the towel around her and then I said well you’ll have to dry yourself so she then walked into the, the what do you call it, the lounge room”. He said that he had then said “Look you’ll have to get dressed, I just put a blanket over her and that, the quilt. She went into the bedroom, into the bedroom, that was it until the next day”.
The accused told police that he did not have visitors the next day “to my knowledge, I think I took her home”. He said he was pretty sure he took A home.
The accused denied that he was naked in the shower with A and he denied that he was soaping her.
The accused told police that A and K “hated each other”.
The accused denied that he rubbed or massaged A’s breasts later that night and he denied putting his fingers inside her vagina.
Police then asked the accused questions which they said were as a result of their having taken a statement from K. The accused was informed that K recalled being there the next day, that the accused was in a state of distress, and that he kept saying “I should never have done it, I should never have done it”. They told him that they had been told that he said that he was drunk the night before and that he was absolutely disgusted with himself.
When this was put to him the accused responded:
AI wasn’t, I was referring to I shouldn’t have went in the bathroom to, to help her, I should have walked over across the road and got the woman there and I was disgusted and you know. I, I, cos its not my place to sort of, its not place to walk in there and say to, to help her out. It was just a matter of.
QSo you recall that conversation with K?
AYeah I, I was you know sort of, I didn’t like doing it and that’s why I got a little bit upset over it.
QShe said that “he told me that it was big mistake the night before and that he was a disgusting man, Pop was crying. He said that both of them had got really drunk and he had touched A. He described that he had massaged A on her back and his hands touched her breasts.”
AI didn’t say that whatsoever.
When police asked the accused why he would be disgusted with himself if that was all he did he replied that it was his “upbringing”. He said his upbringing was to always respect a girl’s privacy while she is naked. He said: “I’ve been pretty strong on those, those things but to actually me go and do that I was disgusted in myself …”.
The accused denied what police put to him as to what they had been told by B about him saying he knew he should not have, he was drunk. He told police that he had walked out to the caravan and said to K: “I was disgusted with what I actually done last night, you know, helped her out, seen her naked and things like that but I’ll deny that” (referring to touching A).
When the accused was told that both K and A had told police the accused commonly walked around the house naked in front of them and that his comment was that “it’s just skin, it’s only skin, it’s natural”, the accused said that he would not deny that he had said that “it’s skin”, but he added that he does not “actually get up and walk around in front of em and I don’t sit on the couch with nothing on”.
The evidence of the accused
The accused said that he was 65 years old. He was born north of Adelaide and worked there until about the age of 50 years when he came to Adelaide. He worked in Adelaide for just over 10 years. He is now retired. He retired 12 months ago.
The accused said that A is his granddaughter. He had contact with her up to when she was about four years old. He did not see her after that for another seven years. Her mother found him and reintroduced him to A and K, another of his granddaughters.
The accused said that A and K would come around to his place and stay there. He said that A would stay overnight in his house but she never lived with him. He said that on occasions A and K would stay with him at the same time. He said that K lived with him for 11 months in the years 2009 and 2010.
The accused said that before K lived with him there was a situation involving him and A in his bathroom.
The accused was asked to describe that situation. He said that A arrived at his house just before 7 o’clock that night. She was staying at his house that night. He said the two of them had some tea and then sat down to watch TV. He said that both he and A drank alcohol. He said A got up from the lounge, and she walked over and looked in the cupboard. She asked him if she could have a drink of bourbon. He said: “Okay, I’ll have one with you”. He said that the brand of the bourbon was Cougar. He said that A would have been 16½ years old at that time. He said that he thought it was okay to let her have a drink because she was sitting there with her grandfather. He had previously allowed her to drink alcohol. He had first let her drink alcohol when she was 15 years old. She would only have a butcher of beer, and that would not happen too often. She would always ask if she could have a drink. He said that that night was the first time she drank spirits in his presence.
The accused said that he told A to get two glasses out, put ice in them and fill the cap of the bourbon bottle to put the spirit in both glasses. She put Coke in them and brought his over to him. She remarked that “it might be a bit strong”. He said to her: “You don’t have to have it”. He said the two of them sat there, had their drinks and when A had finished she asked whether she could have another one. He said that she could but that he did not want another one, he would just have a glass of Coke. She made another one for herself and sat down and drank that.
The accused said that after finishing her second drink A said “I’m starting to feel a bit light-headed”. He said she said: “I’ll go and have a shower”. He said that she headed towards the bathroom and he continued to watch TV.
The accused said that after A had been in the bathroom for about 12 minutes he thought that she had been in there for a bit long. He thought that because she often just had a short shower. He started getting a little bit concerned about it.
The accused said that because of his concern he got up and knocked on the bathroom door and asked if she was alright. He said that she replied by saying “No”. The accused said that he then “had a quick look out the front door to see if my neighbour, Jodie Thompson, was home”. He said that he did that because he was concerned about walking in the bathroom and seeing A naked. He said that his neighbour’s car was not there.
The accused said that when it appeared that his neighbour was not at home he walked back to the bathroom and knocked on the door again. He told A: “I’m sorry but I have to come in”. He said that he said that because there was not any female that he could get straight away to go in. He said that he went into the bathroom because he was concerned about A. He did not say here that A had replied: “That’s okay, I know that you are only trying to help me”, as was put to A in cross-examination. He said that when he went into the bathroom he saw A “squatting on the floor with the shower just going on her body leaning up against the side wall”. He said he leant over, turned the shower off, grabbed both of A’s hands and lifted her up. Then he got a towel from behind the door and put it around A as quickly as he could. He said that he then helped her out of the bathroom. He said they stopped at the kitchen door where he told A to go to bed. He said that she walked off and he turned around and went back into the bathroom to get her clothes.
The accused said that when he went back into the lounge room A was starting to lay on the lounge. He told her that she had to go to bed and she said: “No, this is okay”. He said that he then put her clothes on the armrest of the lounge, walked into the bedroom and got a quilt which he put over A.
When asked what he did then the accused said that he went outside because he was upset. He said that he was upset because he did not want to see A naked. He said he “was so embarrassed”. He said he was outside for 15 minutes crying. He was crying in the witness box when he said this.
The accused was asked why it upset him so much. He replied that it reminded him of an accident “I had in a car two years ago”. The accused then described in detail an accident at which he said he had attended when he was working for the State Emergency Service. He said that it was a triple fatality car accident. There were three young people in their early twenties who had been killed. The accused described an awful scene. He described what he saw when police took a tarpaulin off a body on the road. He said it was a female in her early twenties. He said that the girl’s stomach “was just ripped out and she was only held together by her spine”. He said the girl’s shirt was open and her jeans were “half ripped off her”. He said that “she didn’t have no vagina or anything, it was all ripped out, all her stomach”. He said that he became upset when he saw A naked in the shower “because it just brought back that memory of that girl, just a naked female”.
The accused said that after crying outside for 15 minutes he went back inside the house. He was about to sit down on a chair when A stirred and knocked her clothes off the armrest where he had put them. When he went to pick them up A jumped up and asked him what he was doing. He said that he was picking her clothes up. He said that he gave her her clothes and told her to get to bed. He said that she went to bed. He sat up until 4 o’clock because he couldn’t sleep. He couldn’t sleep because he “was just stressed out”. He said that was because “I was seeing my granddaughter with no clothes on which reminded me … (of) the accident”. He said that at about 4 o’clock he went to bed to try and get some sleep.
The accused denied that he did anything in a sexual or indecent way to A when she was in the bathroom. He denied that he fondled her breasts or touched her vagina when she was in the lounge room. He denied that he had ever done anything sexual towards A.
The accused said that after he woke up at about half past six the next morning he had some coffee and breakfast. He said that A got up at about 9 o’clock. She had some breakfast and then went back to the bedroom. She called him in there and he went in. He said that A had said: “About last night”. He had said: “It’s alright, I didn’t take any notice of it”. He then left the bedroom and started to do his housework.
The accused said that at about mid-morning K and B visited his house. When they arrived A was still in her bedroom. They walked in the back door of the house and said “Hello”. He said that K started to walk into the kitchen but then turned around and walked out back to the caravan in the backyard. He said that he walked after her “because I wanted to talk to her”. He said that K went to the caravan because she wanted to see if she could find something in there. He said that he followed K out to the caravan because he wanted to talk to her because “I was upset about what happened the night before”. He said he “had to talk to somebody”. He said he was upset “because I had to help A off the floor while she was naked”.
The accused said that he and K spoke in the caravan. When asked what was said he replied:
AWhen I walked in there she turned around to me and said ‘What’s wrong?’ because she could see that I was upset. I said ‘A had a couple of bourbons last night and she started to feel light-headed and she went and had a shower’. And I said ‘I was sitting there for a while and I had to knock on the door to find out if she was okay and she said ‘No’. I said ‘I actually went out the front door to see if my neighbour was there because she leaves the car on the front lawn and I walked back in and shut the front door and I said “I’ve got to, okay?” and she said “It’s okay, I know you have got to help”’. I said to K ‘She was sitting on the floor with the shower going on’ and K laughed and said ‘That would be funny to see’ and I said ‘That wasn’t funny because I had to touch her to lift her up’.
QDid you have any further conversation with K.
AYes, I started to tell her how I felt disgusted in what I had done, but before I could tell her why she said ‘That’s all right, don’t worry about it’ and she gave me a hug and walked inside.
QWhat were you going to tell her.
AI was going to tell her that I felt disgusted in myself because I have been brought up to respect all women, no matter what age, respect their privacy or people’s privacy, to treat people as equal. I felt disgusted because I actually broke one of my rules that I am trying to live by my life.
QWhat was that.
AI broke a promise to myself that I would never walk into a room with a girl naked, not any girls, and I just felt disgusted with myself because I violated my own feelings on that.
The accused explained that his father “actually taught us about we have got to always respect women. I had strong moral feelings on that because of the way I was actually brought up, and to break that I just felt disgusted in myself …”.
The accused said that he did not tell K that he had in any way touched A indecently. I asked whether he told K that he had touched A. This followed:
AYes, I touched her by grabbing her hand, I had to touch her to lift her up.
QThat is not the question, it is whether you told K that you had touched A.
AYes – I am trying to understand the question, yes, I did touch her to lift her up, that is the only thing I said to her ‘I had to touch her while she was naked to lift her up, only by the hands, not touch any of her private parts’. I didn’t mean that, touch her indecently.
The accused said that after this conversation with K he went to try and get a bit more sleep. He said he did not speak at all with B that day.
The accused said that A had never seen him naked.
The accused said that K had lived with him for 11 months. He had a good relationship with her until the end when “it just went sour”. He said that was because “she was defying me on the agreement that I had with her when she was going to stop at my place”. He went on to explain what the agreement was and what the defiance was. He said that at one time he had said to K “you are starting to become like your father, deceitful liar”. He said K didn’t like him “calling her something like her father”. When asked how he knew that he replied: “Cos she didn’t have a good relationship with her biological father”.
The accused denied that he would parade around naked in front of K but said that she had “caught me four times in eight months with no clothes on but I don’t deliberately parade around in front of her”. The accused described those four occasions.
The accused was asked what sort of underpants he normally wore. He replied: “They are like – like football shorts, not – football, not boxers, but like football shorts but a little bit tighter than football shorts”.
The accused was then asked what sort of underpants he was wearing at the time of the bathroom incident involving A. He replied: “Well, I forget what underpants I was wearing, but I was wearing a pair of shorts – bather shorts”. When asked whether he could remember what sort of underpants he would usually wear around that time he replied: “It is the same underpants, same type of underpants, like – like football shorts they used to wear years ago”.
The accused said that on the night of the bathroom incident he was wearing a blue T-shirt and “a pair of – those bather shorts”. He said that those shorts were black and “had red and white diamond things on the side”. He said that he did not take any item of clothing off in the bathroom. This exchange then occurred:
QWhat about afterwards, before you went to bed, what were you wearing.
AWell, I had to take the T-shirt off because it got wet while I was trying to turn the shower off, only a slight amount. I had another T-shirt of that same type so when I went to bed just the – just my jocks because it was a hot night.
QAnd what were you wearing before you went to bed.
AI was wearing a T-shirt and those shorts.
QWhich shorts are we talking about.
ABather shorts.
The accused denied that he at any time went up to A naked, and that at no time did he go up to A “wearing a pair of brief jockey-type underpants”.
The accused said that after the bathroom incident his relationship with A “was still okay, still communicating”. He saw her “quite often” after that day. He saw her for up to about two years after. He said he saw her up to a couple of months before he was arrested. In the time he saw A she sometimes stayed overnight with him. He said that it was not as regular as before as she was working and she had a boyfriend.
Under cross-examination the accused agreed that he became aware at some stage that A had some learning disabilities and problems with reading. He agreed that that was obvious to him fairly early. He also said that he became aware a couple of months after he met the two girls that they clashed.
The accused agreed that he used to spoil the two girls. He did activities with them that they did not do with their parents. He agreed that that caused him to have a fairly special relationship with the two girls.
The accused was cross-examined about his routine when he returned home from work. He agreed that his normal routine was to shower when he got home. He was asked whether it was the case that he would not wear clothes around the house. This followed:
AI would wear clothes but I would wear – I have my boxer – not boxer shorts, my underpants that looked like shorts and a T-shirt on.
HIS HONOUR
QSorry, I didn’t follow that. Did you walk around the house with underpants and T‑shirt on.
AYes.
The accused was cross-examined on what he had said to police to the effect that in hindsight he should have walked across the road and sought help from another person. This exchange followed:
AThat’s when these questions – I was confused at the start of the questions and the more we were going in, what Detective Sheldon was saying, I was getting upset and I might have said things that I couldn’t even understand. But when I was referring to that I went outside to see if my neighbour was there, Jodie Thompson. So I could have gone across the road but only her husband and her two kids would have been there.
QDo you recall saying to Detective Sheldon ‘In hindsight I should have walked across the road but I didn’t touch her breasts’.
AI could have said that.
QDid you also say when asked about why you had some disgust about your conduct you said ‘I was referring to I shouldn’t have went in the bathroom to help her and I should have walked across the road and got the woman there to help’, did you say that to the police.
AYes.
QThat is quite a different version of what you have given today, isn’t it.
OBJECTION: MR LYONS OBJECTS
HIS HONOUR: The answer has been given.
HIS HONOUR
QYou didn’t tell the police that you had checked to see if the woman and her car were across the road.
ANo.
QWhat you did say to them was that you should have gone and got the woman across the road.
AYes.
QPerhaps I will start again: you didn’t tell them you checked if the woman’s car was in the driveway, which it was not, and you inferred that she wasn’t home – you didn’t tell them that. Rather you told them that you should have gone across the road and got the woman, the neighbour.
AYes.
QI think that is what Mr Walsh was suggesting to you to be different.
AYeah.
QYou agree that they are different.
AThey are, your Honour.
The accused said that a couple of times when being questioned by police he “got confused and I just snapped some answers out”.
The accused was cross-examined about his evidence that he was disgusted with himself after he and A had left the bathroom that night. The accused said:
AYes, I was disgusted with the fact that I was embarrassed quite strongly of what happened that night and that is why – and plus I was disgusted with the fact that I broke one of my strong feelings about privacy, and especially my granddaughter. That is where I use the terminology, if I can, about being disgusted. I was disgusted at myself that I had to go in that bathroom and see my granddaughter naked, and on top of that I was also very embarrassed over it. So that’s what I was referring to as being disgusted.
The accused was asked whether he agreed that on the occasion in the bathroom A was ill. He replied: “She was not virus ill”, and he explained that she had a very low tolerance to alcohol. He said that he had seen her after the two bourbons she had drunk, and he had previously seen her home at her place “where she has been a little bit wobbly on her legs after one, after one drink”.
The accused said that when A answered “No” to his question “Are you okay?” he thought she must have “hurt herself or something because she was sort of wobbling into the bathroom, I thought she must have hurt herself”. He said that he thought she might have injured herself slightly because he did not hear “any bangs or anything like that while I was sitting there watching TV”. He thought that she might have injured herself only slightly because it was a small cubicle and her answer “No” was “not in a hurtful sound or in a hurtful tone”. He said: “if somebody is hurt you can tell the difference in their tone of voice”. He said that he could tell from her tone of voice that she was only injured slightly.
The accused was cross-examined about the fact that he allowed A to drink spirits with him that night. When asked whether he was happy or unhappy about her having bourbon with him when he knew or thought that it was the first time she had drunk spirits in her life he answered: “I will say yes”.
The accused said that he had seen A “very slightly” affected by alcohol the previous Christmas at her mother’s place. That must have been when she was drinking beer because the accused had not seen her drink spirits before the night at his house. He said that he “could see that she was slightly, you know, walking not straight to what she normally does”. He said: “She was a bit light on her feet”. He said that he saw her grab something slightly for support as she walked past it. He said that she was behaving in a similar way on the night when she went for a shower. He said that he did not think that she might have been affected by alcohol “until she actually got up and go to the shower and then she said she feels light in the head”.
The accused was cross-examined about another aspect of what he told police in the record of interview. It was put to him that he told police that he looked “very discreetly” to see what A’s problem was after yelling out to her and being told she was on the floor. He agreed that he said that to the police but he did not seem to agree that that was different to his evidence about going to see if his neighbour was home. He did say, however, that when he was spoken to by police he “was trying to remember everything that was going on, that these sorts of things, real fine details I might have overlooked on different things”.
When I asked the accused why he was disgusted with himself for what he said he did to help A he answered:
ABecause I got strong, as I said before, I invaded, to me I invaded her privacy. When the kids come and stop with me I put the padlocks, locks on all the doors so they had privacy there and I felt disgusted in myself because I had breached that privacy even though she might have hurt herself I felt I breached that privacy of which I tried to encourage her to have and the other granddaughter when she lived there, she always had that privacy, I never intruded once on them, so when I say I felt disgusted it’s only the fact it’s against my own feelings that I was trying to live by.
QSome might have said that you should have been proud of yourself for getting her out of the shower alcove when she was obviously unable to stand up herself.
AYeah, I was embarrassed for the fact it’s my granddaughter in there, it’s not a grandfather’s role to be in a room with a naked granddaughter.
QEmbarrassment is one thing, I can understand that, that you can be embarrassed to do something but feel proud of doing it because you have helped someone. Embarrassment is one thing as I have indicated. Disgust is quite another it might be said. Do you think it is.
AI believe that you are right, but I would say the difference between embarrassed and disgust, it’s hard to put a finger on it but that accident has affected me in the way I approach other people, how I see other people, how I treat other people. In reference to embarrassment, I was embarrassed as far as seeing my granddaughter there naked but I was also disgusted in myself for breaching one of my strong beliefs in allowing people to have the right to privacy. I was in a no-win situation. I had two feelings at the same time. I was embarrassed but I was also disgusted of what I had to do.
I asked the accused if he was referring to the triple fatality in the answer he just gave. He said he was. I asked: “You didn’t tell the police about that, did you?”. There followed a long and somewhat rambling answer which included reference to another accident involving an 18-year-old pregnant girl, how the accused’s marriage was affected by his work in the SES, how he “can’t stand seeing a naked woman, doesn’t matter who they are, without it has the effect on me” and his inability to “pick the right words when I’m trying to explain different things”. He said: “I was disgusted with myself, could mean entirely something different”. He finished the answer by saying: “I know it’s not the question you asked your Honour, but I can’t come up with the right answer”.
The accused said he would not have been embarrassed if he found A naked in the shower with a serious injury “because that would have been my first priority to fix that up”.
The accused agreed that his evidence had been that he wore his underpants around the house in front of the children. He said that he did that regularly. When asked whether he ever thought that “that might impose on A’s privacy” he answered: “No, because her mother and step-father used to walk around … the house with their underpants, underwear on, just underwear on, that’s what I was referring to, no”. He said that walking around in his underpants did not cause him any embarrassment. When asked why it was that his wearing his underpants in front of these children didn’t cause him distress, he answered: “Because I was – I was completely covered up and nowadays that is just an everyday occurrence, see it on TV, people in their underwear, you see it on billboards, just part of life nowadays and they didn’t take any notice of it”.
The accused denied, in cross-examination, that he said to K that if he went to prison he “would be raped up the bum”.
When the accused was being cross-examined about his conversation outside with K the next morning I asked him why it was that he wanted to tell someone about what had happened the night before. He answered:
AWell, K being her sister, I wanted to just tell her what happened that night but she said that I was – I was just going to tell her formally but she could see when I come in I was actually upset about it, and that is what she said ‘What is wrong’ and I told her what happened that night.
QBut as I understood your evidence you followed her to the caravan in order to tell her what had happened that night.
AYes, she was – she was nearly in the caravan as I was coming out the back door so she actually was in the caravan and I just followed her into the caravan from there.
QI want to be sure I understand your evidence here. I thought you followed her out to the back wherever she ended up in order to tell her what had happened the night before.
AYeah, I just finished putting all the –
QIs that right or is that wrong.
ANot – not directly behind her, I didn’t follow her out.
QAll right, I thought you went out the back where K had gone in order to tell her of what had happened the night before.
AYes I went out – I knew she was out there so I went out from the washing machine out there to tell her what happened like.
QAnd it wasn’t that you only told her when she said ‘What is the matter Pop’.
AI was about to tell her what was wrong, but she got in first.
QRight.
ABecause when she turned around she said ‘What is wrong’.
QWhy did you want to tell her what had happened the night before.
ACause – K and I – we communicated pretty well and I just – felt a little bit relief, you know, to let her know what actually happened that night. That is why I just want to tell K and I didn’t want to say anything to B because it had nothing to do with B.
QWhy would you want to say anything to anyone.
ASorry?
QWhy did you want to say anything to anyone.
A‘Cause I had nothing – I have done nothing wrong – all I said –
QBut no-one had suggested you had at that stage.
ANo, that is – I did something wrong by going in that – to assist, going in that bathroom, I know it is her sister and I shouldn’t but to me I felt – I invaded A’s privacy and that is – and K knows I am pretty strict on the privacy business so I just wanted to tell her what happened that night. Quite often I might sit down you know with A and tell her what K done. Just communication between the three of us that is all it was.
I now deal with two aspects of the evidence that I consider significant. They are somewhat related. One concerns the evidence that the accused was “disgusted” with himself, as he conceded to police in August last year and in his evidence at his trial, or that he was “a disgusting old man”, as was one time described by K as being what her grandfather said to her the morning after the incidents in the bathroom and in the lounge room. The other concerns the evidence of the accused’s attitude towards nakedness and whether or not he would walk around his house in the presence of youths either naked or semi-naked. I do not here deal with A’s evidence as to what “nakedness” meant to her, nor with her use of that word in what might be considered to be inconsistent ways in her evidence. I deal with that later.
The accused told police that he was disgusted with himself for seeing his granddaughter A naked and therefore not respecting her privacy. He said that in hindsight he should have walked across the road and got his female neighbour. Before me the accused said that he did check if his female neighbour was home and he referred, in detail, to a triple fatality he said he experienced when he was with the SES. He later, during cross-examination, referred to another accident involving a young pregnant girl who was dead and who had to be put in a body bag. He told me that when he saw his granddaughter A naked it brought back the memory of the young girl lying on the street with her stomach and vagina ripped out, being the triple fatality. He said that that memory was sufficiently abhorrent to him to cause him to leave his house and go out the back to cry for 15 minutes. He said that that memory was such as to prevent him from going to bed before 4 o’clock the next morning to try and get some sleep. That memory or those memories was or were sufficiently abhorrent to cause the accused to break down in the witness box and apparently cry for some time.
With respect to the accused’s apparent emotional distress when sitting in the witness box, I do not believe his explanations as to why he was disgusted with himself the morning after the events of the night before. I am satisfied that the accused was disgusted with himself the next morning, and I am satisfied that he knew when he was speaking with police and when giving evidence that he had to come up with some explanation as to why he had expressed to K the next morning his disgust with his own conduct the night before, and why he had said to K that he was a disgusting old man, which I am satisfied he did. I am not convinced that the accused was unable to, as he put it, “pick the right words when I’m trying to explain different things”. I am satisfied that he knew he had picked the right word in being “disgusted” with himself. What caused him difficulty however was explaining why he was disgusted with himself. I reject completely his evidence when he said that “disgusted with myself could mean entirely something different”. I am satisfied that it did not mean to him something entirely different. The accused’s evidence that he would not have been embarrassed if he found A naked in the shower with a serious injury was probably true, but that evidence made his explanation for his self-disgust bizarre and ridiculous. I am satisfied that the morning after the accused was disgusted with himself but it was not because he had, on his version, invaded A’s privacy, it was not because he had broken a promise to himself that he would never see a female naked, and it was not because his seeing A naked brought to his mind the horror of what he had seen when he was in the SES, if indeed he had had such an experience. If that had occurred and had made the impression that he told me and implied to me that it had, then I would have expected that the police would have been told about that in August last year. They were not. They were only told about what he said was his invasion of A’s privacy and that seeing someone naked was not the way he had been brought up.
I am also unconvinced by the accused’s explanation to me as to why he wanted to tell someone, including A’s younger sister K, the next morning about what had happened the night before. If the events of the night before were as he described them there was little need to tell anyone. There was certainly no need to tell someone because, as the accused put it, he had “done nothing wrong”. The accused told me that he had gone out the back to speak to K specifically to tell her what had happened the night before. K was 14 years old at that time and the accused knew, on his own evidence, that K and A “hated each other”. That would more likely be a reason not “to tell on” A to K, because on the accused’s version it was a story against A, as A was the one who got herself in the position of needing help in the shower. I am satisfied that the accused told K his sanitised version of what had happened the night before when K asked him what had occurred after being told by A that the accused had touched her sexually. I am satisfied that this conversation was as described by K and that the accused did not tell K everything that had happened.
I am satisfied that the accused was disgusted with himself the next morning because he had touched A sexually the night before, both when she was in the shower in the bathroom and when she was on the couch in the lounge room. I am satisfied that when K came to his house the next morning the accused wanted to tell her his sanitised version of the events of the night before to try and minimise and downplay A’s version of those events. Knowing the relationship between the two girls he may have thought K would more likely believe his sanitised version over A’s.
I am satisfied that the accused did not tell K the truth that morning about what happened the night before.
The other aspect of the evidence that I consider significant is the accused’s attitude towards nakedness and whether or not he would walk around his house in the presence of youths either naked or semi-naked.
A’s evidence was that the accused would regularly and often walk around the house naked or be naked within the house. It is not entirely clear what A meant by “naked”. It appeared from her later evidence that she considered “semi-naked” and “naked” to be similar or the same. A’s evidence is that she spoke to the accused about him being “naked” in the house. She said when they discussed it the accused said to her “It’s only skin” and that she should be comfortable. When she asked him not to go around the house naked when she was there he stopped doing so. K’s evidence is that the accused used to walk around his house completely naked “a lot”, and would say to her that she should feel able to do so, as “it was just skin” and “it is her house too”. B’s evidence is that the accused would often in his presence be “chilling … in his underwear”.
The accused’s case was that A had never seen him naked (with no clothing on at all) and that K had only seen him naked (with no clothing on at all) a few times and that on each of those occasions it was purely by accident. During cross-examination, the accused accepted that he would frequently move around the house wearing only his underpants, or only his underpants and a T-shirt.
What sort of underpants the accused wore at the times his granddaughters would visit and stay with him was never entirely clear to me during the evidence. A referred to the accused’s underpants as “jocks”. When asked to describe them she replied: “briefs I think they call them”. It seemed common ground that boxer shorts are a particular type of underpants that the accused did not wear. I understand what boxer shorts are. The accused described the underpants he wore as being “like football shorts they used to wear years ago” and “like football shorts but a little bit tighter than football shorts”. Those descriptions are not particularly helpful in giving a clear picture of his underpants. The accused’s counsel at one time asked the accused whether he ever wore “a pair of brief jockey-type underpants” in A’s presence and the accused said that he did not. What his counsel and the accused had in mind when that question was asked and answered as to what “brief jockey-type underpants” were, and whether it was the same, was not clear. I have also to bear in mind the fact that A was a young girl and then a young woman when she was referring to her grandfather’s underpants.
I have referred in these reasons to an answer given by the accused when he was asked by his counsel what he was wearing when he went to bed after the incident in the bathroom. His answer was that he was wearing “just my jocks …”.
I am satisfied that the accused would refer to his own underpants as “jocks” when his two granddaughters were visiting him and staying with him. I am satisfied that A referred to the accused’s underpants as “jocks” because that was how the accused referred to them. I do not consider that what in fact they were matters much in light of those findings. I am satisfied that the “jocks” were brief, but were not boxer shorts.
As I have earlier indicated, the accused’s evidence was that he regularly wore just his underpants on his lower body around the house in the presence of the three youths. I consider that his evidence as to why he was not embarrassed doing that and why he did not consider it would be embarrassing for the young people is unconvincing and (pardon the pun) revealing.
I found it more than curious that a man who was so offended and self‑disgusted by invading a young girl’s privacy and seeing her naked would explain the fact that he wore his underpants around the house by reference to the same girl’s mother and stepfather walking around their own house in their underwear, and by reference to modern society which tolerated television and billboard advertisements depicting people in their underwear. It seems incongruous to me that the accused could legitimately have what might be said to be a prudish attitude to nakedness on the one hand, whilst having such a liberal attitude to it on the other. This incongruity is particularly acute when I am satisfied on K’s evidence, as I am, that the accused would encourage her to feel comfortable in being naked in his house, and when I am satisfied on A’s evidence, as I am, that the accused told her to feel comfortable about him being naked as “It’s only skin”. What both girls said as to this is consistent with the accused’s own evidence that he considered skin to be just that, and he agreed that he told the girls that, and he implied in evidence that he considered that at least near-nakedness, by wearing only underwear, to be commonplace in modern society.
I am satisfied that the accused did regularly and often walk around his house completely naked when A and K were there separately and alone in his presence. I am also satisfied that the accused encouraged both girls to “accept” his complete nakedness as natural and “just skin”, and that he directly encouraged K to be naked in his house when she was living with him for many months. I believe the evidence of A and K as to these matters, partly supported, as I consider their evidence to be, by B’s evidence and by the accused’s own evidence as to him wearing his underpants in their presence and as to his attitude to the wearing of underwear in one’s house and the depiction of people in underwear in the media and other public places.
In his final address Mr Lyons, counsel for the accused, properly highlighted a number of what he submitted were inconsistencies in the evidence of A, K and B. These alleged inconsistencies included what K and B said they were told by A as to what A said happened the night before. Mr Lyons also highlighted what he submitted were features of A’s evidence that should cause me concern when considering A’s credibility and reliability.
One of the matters that falls into the last category was A’s evidence about “nakedness”. A accepted in her cross-examination that she had told police that the accused was naked in the bathroom and that he was naked when he touched her breast and when his fingers were in her vagina when she was lying on the couch in the lounge room. When A accepted that she had told police that, she said in effect that for her the semi-nakedness of the accused was the equivalent of nakedness. She said she had called him naked because to her he was because he was not fully dressed. She said that she believed him to be naked, “he just had a T-shirt and jocks on”. This evidence has been considered by me when making my finding as to whether or not the accused would regularly walk around the house completely naked in the presence of A. In that finding I have taken this evidence into account.
This evidence has not and does not cause me to have a reasonable doubt as to the findings on other matters that I have made and will make beyond reasonable doubt where they are based on A’s evidence. Whether A described to police that the accused was completely naked, both in the shower and when he was at the side of or on the lounge later that night, does not raise a reasonable doubt in my mind as to A’s account of what her grandfather did to her when she was in the shower and on the couch. I indicate, however, that I am satisfied that the accused was wearing only his underpants in the shower in the bathroom, and that he was wearing only his underpants over his lower body when he was at the side of and on the couch in the lounge room.
Another aspect of A and K’s evidence concerned whether or not A ever lived at her grandfather’s house for an extended period of time. A said that she did live with him and that that was just before the “incident”. K and the accused however said she never did. K’s evidence was, however, that A visited their grandfather nearly every day. I am satisfied that A was constantly at her grandfather’s house before and after the time of the “incident” until K moved in to live there with the accused. It may be thought odd that A would say she lived with the accused for a time if she had not. But in the circumstances I do not consider the evidence of this topic is sufficiently relevant or important to influence my consideration of A’s credibility and reliability in any way.
The next matter concerns what A is said to have told K and B the next morning. I am satisfied that this occurred in A’s bedroom when the three youths were there alone. A said that she told them exactly what had happened the night before. She said that during the time she did so she “was crying a lot”.
K said that A told her that she had got drunk with pop, he undressed her and put her in the shower, and after that she was on the couch naked and he started massaging her and touching her on her breasts and vagina. K said that A was crying when she was telling her this.
B said that he was told that A and her grandfather were both really drunk and he was “trying to feel her up in places” that B “got the impression … she didn’t want to be felt up”. B said that her pop helped her have a shower and helped her to stand up in the shower. He said he was told that “she was too drunk to clean herself, so her pop helped her and helped her stand up while she was in the shower drunk”. B later said, under cross-examination, that A had told him that the accused had “tried to feel her up in the backyard”. B said that when he was being told by A what happened, A “started crying and getting all teary” and that he “didn’t really understand much about what she was saying, she like broke down”. He said that “you could not hear half of what she was trying to say and she started crying a fair bit”. He said this conversation went on for about 15, 20 minutes on and off, “between (A) crying”. He later said, under cross‑examination, that A had broken down trying to describe the rest of the story to him. He said: “all of it became mumbles and crying”.
It is hardly surprising, given the evidence to which I have just referred and which I accept as each witness’ best recollection of what was said, that the evidence of A, K and B was not the same as each other’s. This is so, even on what might be said to be significant issues such as whether the accused helped A to the bathroom or whether he helped remove her clothing before she got into the shower. I consider that it is also not surprising that the two young people to whom A was relating what happened had different understandings about what they were being told, particularly when I take into account that, if A’s allegations were true and were thought by K and B to be true, each youth would have been shocked and stunned by what they heard. I am satisfied, however, that K and B were both told by A that her grandfather had sexually touched her in the shower the night before and that he had put his fingers in her vagina when she was on the couch later and that all of that had caused her significant distress. I consider that these circumstances appear consistent with the occurrence of the events that are the subject of the complaint by A and the offences with which the accused is charged.
I am satisfied that the three youths discussed what A should do, if anything, about what she said her grandfather had done to her the night before. I am satisfied that the accused said to K that if A spoke about what had happened the night before, he would “get locked up” and “raped up the bum”. I am satisfied that K relayed that to her sister and then boyfriend and that they formed the consensus that A should say nothing about what had happened the night before so that their grandfather would suffer no repercussions, either of the type he referred to or repercussions from the girls’ family. I am satisfied, further, that A continued to have contact with her grandfather after the incident because she honestly and genuinely did not want members of her family to hurt him. I am also satisfied that A did not tell K or B that her grandfather had helped her to the bathroom and helped her undress. I am also satisfied that A did not tell B that something happened in the backyard. I take all these findings into account in considering my verdicts, but only in the way in which I have previously referred, and not as proof of what happened in the bathroom and lounge room.
As to the other inconsistencies, I consider that none of them separately, or together with those I have specifically addressed, cause me to have a reasonable doubt about the truth and reliability of A’s evidence as to what the accused did to her in the shower and on the couch.
I am satisfied that A and the accused drank some Cougar bourbon spirit together on the night of the incident. That much is not in dispute. I am satisfied that that was the first occasion A had ever drunk any spirit and that the accused knew that this was so. I am satisfied on A’s account that it was the accused who instigated the drinking of bourbon and that it was the accused who poured the first drink they each had. I am also satisfied that A poured the next drink that both of them had and that both of them noted that it was very much stronger than the first. I am satisfied that A had at least a third bourbon which she poured following advice of how to do so from the accused. I can make no findings as to whether the accused had a third bourbon or as to whether A had more than three drinks.
I am satisfied that B spoke briefly to the accused about what had happened the night before when he and K came to the house. I find that that occurred after K had spoken to the accused and after the decision was made to say nothing to anyone about what had happened. I am satisfied that the accused said to B words to the effect that he was drunk and didn’t know what he was doing.
I am satisfied that at no time did A, K and/or B discuss between themselves making up sexual allegations against the accused. I attach no significance to the evidence of A that K was good at talking her into doing things. I am satisfied that K probably talked A into saying nothing about what her grandfather had done to her that night in the bathroom and in the lounge room. It appears that K ultimately took the initiative which led to A eventually telling her mother about what her grandfather had done. That was when K told their mother about this when they attended a police station to report a sexual assault against K. I doubt whether these allegations would have come out had K said nothing to her mother at the police station. I accept A’s evidence that at that time she was not angry with her grandfather and I accept her evidence that she felt like the incident had been forgotten “because it was quite some time ago”. Even if I was satisfied that K held a grudge against the accused and that that may cause her to make false allegations against her grandfather, which I am not, I am satisfied and find that A would not have been a party to making these allegations falsely against her grandfather.
A’s evidence that the accused was touching her naked breast and had his hand “all around” her left breast when she first awoke on the couch is evidence of sexual conduct with which the accused is not charged. I can only act on that evidence if I find it proved beyond reasonable doubt. If I do, I can take that evidence into account if it is potentially helpful to me in evaluating A’s evidence. It would be wrong, however, for me to conclude from this uncharged conduct, if I am satisfied it is proved beyond reasonable doubt, that the accused is the sort of person who would be likely to commit the offences with which he is charged. Evidence of this uncharged conduct is given only to assist me in my evaluation of the evidence going directly to the charged conduct.
Before concluding, I refer to my findings regarding the accused’s conduct in relation to his being naked in his house in the girls’ presence, and his attitude to nakedness, not only to his own, but also to that of another living in his house. I also refer to my findings regarding the circumstances in which the accused and A came to drink and drank alcohol together, both before and on the night of these events. I indicate that I am not satisfied that the accused’s conduct as to the above matters was in any sense a “grooming” by him of A and/or K for the purpose of sexual contact between him and either of them. I do not see his conduct in each of the above respects in this light. My conclusions are on the basis that the accused took advantage of the circumstances that evolved that night, that he could not stop himself doing what he did to A, and that he was immediately remorseful and “disgusted” with himself and his conduct.
Notwithstanding, my conclusions are that I am satisfied beyond reasonable doubt that the accused did what A said that he did to her in the shower in the bathroom at his house and I am satisfied beyond reasonable doubt that the accused put his fingers in A’s vagina as she was lying on the couch in the lounge room later that night. I am satisfied that every element of each charge against the accused has been proved beyond reasonable doubt.
Accordingly, I find both counts against the accused proved beyond reasonable doubt.
I would find the accused guilty of both counts.