R v M, MD
[2019] SADC 173
•19 November 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, MD
Criminal Trial by Judge Alone
[2019] SADC 173
Reasons for the Verdicts of His Honour Judge Slattery
19 November 2019
CRIMINAL LAW - PROCEDURE - TRIAL HAD BEFORE JUDGE WITHOUT JURY
By Information for arraignment on 5 August 2019, the accused was charged two counts of Maintaining an Unlawful Sexual Relationship with a Child and one count of Indecent Assault. The first complainant was the step-daughter of the accused. The second complainant was both the half-sister and step-daughter of the accused.
Held:
I find the accused guilty on counts 1 and 3.
I find the accused not guilty on count 2.
Criminal Law Consolidation Act 1935 s 50(1), s 56; Child Safety (Prohibited Persons) Act 2016 s 38; Evidence Act s 34CB, s 34M, referred to.
R v M, DV [2019] SASCFC 59; R v Tran [2017] SASCFC 99; R v C, CA [2013] SASCFC 137; R v Dawson-Ryan (2009) 104 SASR 571; R v W, PK [2016] SASCFC 5, discussed.
R v Schultz [2010] SASCFC 47; R v Ahmadi; R v Hosseini; R v A, N; R v M, A (2018) 131 SASR 64; Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699; R v Keyte [2000] SASC 382; (2000) 78 SASR 68; R v Thompson [2018] SASCFC 104; DL v The Queen (2018) 92 ALJR 636; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430; AK v Western Australia (2008) 232 CLR 438; Reg. v. Hodge (1838) 2 Lewin 227; Plomp v. The Queen (1963) 110 CLR 234; Gant v. The Queen (1981) 147 CLR 503; R v Sutton (1983) 32 SASR 553; R v Hamra [2016] SADC 4; PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146; R v Bonython-Wright (2013) 117 SASR 410; R v Cassebohm (2011) 109 SASR 465; R v Maiolo (No 2) (2013) 117 SASR 1; R v R, PA [2019] SASCFC 19; R v N, RC (2012) 112 SASR 399, considered.
R v M, MD
[2019] SADC 173
The accused is charged on Information for arraignment on 5 August 2019 with the following offences:
First Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MDM at Pinery, between the 1st day of June 1990 and the 30th day of November 1992, maintained an unlawful sexual relationship with KMA, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards KMA, namely:
(a) touching her on the vagina on more than one occasion; and
(b) penetrating her labia majora on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Second Count
Statement of Offence
Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MDM, between the 1st day of April 1994 and 24 April 1994 at Mansfield Park, indecently assaulted KMA by touching her on the buttocks.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Third Count
Statement of Offence
Maintaining an Unlawful Sexual Relationship with a Child. (Section 50(1) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
MDM at Enfield, between the 15th day of December 1996 and the 9th day of August 1999, maintained an unlawful sexual relationship with RAM, a person under the age of 17 years, by engaging in two or more unlawful sexual acts with or towards RAM, namely:
(a) touching her on the vagina on more than one occasion; and
(b) inserting a finger into her vagina on more than one occasion.
This is a “prescribed offence” within the meaning and for the purposes of section 38 of the Child Safety (Prohibited Persons) Act 2016.
Elements of the offences
It is appropriate that I set out the elements of the charges.
Maintaining an unlawful sexual relationship with a child
I deal first with maintaining an unlawful sexual relationship with a child in contravention of s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The elements of this offence are as follows:
1That at the time of the offending, the accused was an adult.
2That the complainants were children during the relevant period.
3That the accused was in an unlawful sexual relationship with the complainant.
4There was a relationship (but not necessarily a sexual relationship) between the accused and the complainant during the course of which the accused engaged in the unlawful sexual acts.
In order to prove that the accused is guilty of maintaining an unlawful sexual relationship with a child, the prosecution must prove to my satisfaction each of those four elements beyond reasonable doubt.
An unlawful sexual relationship as identified in element 3 is defined as a relationship in which an adult engages in two or more unlawful sexual acts with or towards a child over the charged period. The nature of the requisite relationship will be discussed in further detail below. An unlawful sexual act means any act that constitutes or would constitute a sexual offence, including unlawful sexual intercourse, indecent assault and gross indecency. I set out the elements of indecent assault below.
For the purposes of identifying two or more acts to constitute an unlawful sexual relationship, it is not necessary that I be satisfied beyond reasonable doubt of the particulars of any unlawful sexual act that would have to be satisfied if the act were charged as a separate offence. But rather, I must be satisfied as to the general nature or character of those acts.
The prosecution must satisfy me, beyond reasonable doubt, that the defendant engaged in at least two unlawful sexual acts with the complainants over the periods alleged, that is, for KMA between 1 June 1990 and 30 November 1992, and for the alleged offences against RAM between 15 December 1996 and 9 August 1999. It does not matter which two or more unlawful sexual acts make up the unlawful sexual relationship, but I must be satisfied that there have been at least two of them.
In the decision of the Court of Criminal Appeal in R v M, DV,[1] the majority of the court held that on its proper construction, it was not an element of the offence of maintaining an unlawful sexual relationship that there was a sexual relationship between the defendant and the complainant, in the course of which the defendant engaged in two or more unlawful sexual acts with or towards the complainant. Rather, it is an element of the offence that there was a relationship (not necessarily sexual) between the defendant and the complainant during the course of which the defendant engaged in an unlawful sexual act. In dissent, Blue J held that it is not an independent element of the offence that there is an overarching relationship between a defendant and a complainant in the course of which the defendant engaged in the unlawful sexual acts.[2]
[1] [2019] SASCFC 59.
[2] Ibid [58].
Unlawful sexual act: sexual offences
Unlawful sexual intercourse is a sexual offence. This conduct contravenes s 49(3) of the Criminal Law Consolidation Act 1935 (SA). That section reads as follows:
49—Unlawful sexual intercourse
…
(3) A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
There are two elements of the offence of unlawful sexual intercourse. The first is that sexual intercourse occurred between the complainant and the accused. The definition of sexual intercourse is set out below. The second element of the offence is that at the time of the alleged offences, the complainant was under the age of 17 years.
Sexual intercourse is defined by s 5 of the Criminal Law Consolidation Act as follows:
Sexual intercourse includes any activity consisting of or involving—
(a) penetration of a person's vagina… by any part of the body of another person…; or
(b) fellatio; or
(c) …
and includes a continuation of such activity.
Indecent assault
Indecent Assault is an assault accompanied by or committed in circumstances of indecency and consists of two essential ingredients, each of which must be proved beyond reasonable doubt:
1There was an assault. An assault is the voluntary and intentional unlawful application of force to another person. The application of force need not be great; it need not cause any injury; it must be voluntary and intentional, so that a purely unintended, accidental touching would not be sufficient. It must also be unlawful, that is, without lawful excuse or justification. Examples of lawful excuse or justification might be self-defence, or when conducting a reasonable medical examination.
2The assault was accompanied by or occurred in circumstances of indecency. To be indecent the conduct must offend against ordinary contemporary standards of decency and propriety within the community. This includes anything which an ordinary decent person would find to be shocking, disgusting and revolting, and it has a sexual overtone.
Gross indecency
Acts of Gross Indecency requires a finding beyond reasonable doubt of the following:
1That an act of gross indecency occurred (whether in public or in private);
2That the act was committed in the presence of a person under the age of 16; and
3That the act committed was not only indecent but was grossly indecent.
To be indecent the conduct must offend against ordinary contemporary standards of decency and propriety within the community, including anything which an ordinary decent person would find to be shocking, disgusting and revolting, and carries with it a sexual overtone. Gross indecency requires something more than mere indecency.
General Directions
In this decision, I have dealt with a number of matters of legal directions separately in different parts of my judgment. Given that I have adopted this method, it is only necessary to generally describe the other legal directions that I have given myself.
The prosecution bears the whole onus of proof of the guilt of the accused beyond reasonable doubt and the accused is not required to shoulder any burden of proof at all. He is presumed to be innocent of these charges unless and until the evidence which I accept has satisfied me that each element of the offences has been proved beyond reasonable doubt. Conversely, if I am not satisfied that the evidence before the Court has proved each of the elements of any of the offences beyond reasonable doubt, then I would reach a verdict of not guilty in respect of that alleged offence.
I have treated the charges on the Information separately and I have only taken into account the evidence that is relevant and admissible in relation to the count under consideration. In making my assessment of the evidence and whether I am satisfied that any particular count has been proved to my satisfaction beyond reasonable doubt, I will take into account the whole of the evidence before the Court on that count consistent with the approach of the Court of Criminal Appeal enunciated in R v Schultz,[3] and R v Ahmadi; R v Hosseini; R v A, N; R v M, A.[4]
[3] [2010] SASCFC 47.
[4] [2018] SASCFC 39; (2018) 131 SASR 64 at [71].
It is not a question of me preferring one party’s evidence over another because the defendant does not shoulder any burden of proof. My task is to evaluate all of the evidence and then decide whether on the whole of the evidence, including any evidence led by the defence and arguments, the prosecution has proved any of the offences charged beyond reasonable doubt. In making my decision of guilt beyond reasonable doubt, I am required to be satisfied that a version of events put forward by or on behalf of a defendant is not reasonably possibly true. If I am so satisfied, I will not be satisfied of proof beyond reasonable doubt in respect of such offence.
Whenever the defendant puts forward something to me, he does not have to prove it. Rather, it is the prosecution that must prove the elements of the offences charged beyond reasonable doubt. If after carefully scrutinising the whole of the evidence, I am left with a reasonable doubt about the prosecution case on any particular charge, then I must give the defendant the benefit of that doubt and find him not guilty. As I have said, he does not shoulder any burden of proof and I would arrive at the same conclusion of not guilty if I am satisfied that any version put forward on his behalf is reasonably possibly true. Even if I did not reach that conclusion, I would still not convict the accused unless I was satisfied that the elements of any particular offence are proved beyond reasonable doubt.
When assessing or evaluating the evidence of any witness, it is my duty to take an objective and dispassionate approach to that evidence and to base my verdict solely on the evidence presented at the trial. I have confined my deliberations to the evidence only.
I have evaluated the evidence that has been placed before me in the Court. I have considered how much weight I can place upon the evidence of any particular witness and I have assessed the truthfulness and reliability of the evidence of the witnesses called in the trial. I have had regard to my own impressions of the witnesses gathered by watching and hearing the witnesses in the witness box. I have given consideration to the intrinsic likelihood or unlikelihood of the stories that the witnesses tell and any bias that the witness might have. I have considered the manner in which each witness gave evidence, how the relevant story stood up in cross-examination and how the evidence of that witness fits in with the other evidence in the case that I find to be convincing.
I have given consideration to the fact that witnesses do vary in their personal histories and backgrounds, degrees of intelligence, age, education, personality and character. I have made allowances for personal qualities and characteristics such that, for example, I have taken into account that some witnesses are more nervous than others, some are more articulate, some are better educated and some are more and less comfortable in the circumstances of a court setting.
In assessing witnesses, I have first considered whether a particular witness is truthful, who is honestly trying to tell the truth as he or she understands it. Having made that assessment, I then assessed the witness for accuracy about what he or she recalled and I have taken into account that a truthful witness might be inaccurate, because of a lack of sufficient memory or recall when giving evidence.
I have taken into account that I do not need to accept everything or reject everything that a particular witness says. A witness might be truthful and reliable about some matters, but not about others. A witness might be genuinely trying to tell me the truth but be mistaken for a number of reasons. I have also borne in mind that propositions put by counsel and questions are not evidence. It is only the answers given by a witness that is evidence.
In all of my reasoning, I have brought an open and unprejudiced mind to this case. I have made my decision without sympathy, without prejudice or fear and I have not been influenced by public opinion in relation to this matter.
In reaching my decision in this matter I am required to observe common law rules which oblige me to give reasons that are sufficient to identify the relevant principles of law and my main factual findings.[5] In R v Tran,[6] Vanstone J who wrote the decision of the court, said as follows:
The extent of the obligation has been earlier discussed in this Court in R v Keyte [2000] SASC 382; (2000) 78 SASR 68 at 78 ff. The judge must state generally and briefly the grounds which have led to the conclusions reached concerning disputed factual questions and must identify the findings on the main contested issues. Reasons are not required to be lengthy or elaborate. What is required will vary from case to case and will depend upon the circumstances of the case and the issues raised. It is clear that reasons are to be read as a whole.
[5] Douglass v The Queen [2012] HCA 34; (2012) 290 ALR 699 at [8].
[6] [2017] SASCFC 99 at [67].
Similar sentiments were expressed recently by the Court of Criminal Appeal in R v Thompson.[7] Peek J who wrote the decision of the majority in relation to all counts[8] said at [107]:
Counsel for the appellant emphasised the recent decision of the High Court in DL v The Queen[9] and I have had close regard to it. The majority (Kiefel CJ, Keane and Edelman JJ) there stated:
[33] The appellant submitted that the inadequacy of the reasons to identify two or more acts of sexual exploitation and the basis upon which they were found to be proved lay in the trial judge’s failure to resolve a number of factual and evidential contests at trial. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict. At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’[10]. At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.[11] In particular:[12]
Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed.
[7] [2018] SASCFC 104.
[8] Hinton J would have allowed the appeal in relation to Count 2 and ordered a retrial.
[9] (2018) 92 ALJR 636.
[10] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 259.
[11] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
[12] AK v Western Australia (2008) 232 CLR 438.
In relation to the reference to AK v Western Australia,[13] I do not understand that the judgment of the High Court sets down some inalterable order in which matters must be considered, but requires all of the matters there set out to be considered and resolved. That is the approach that I intend to take here. I now turn to the evidence at trial.
[13] Ibid.
Evidence at trial
I set out below a list of initials that identify the people who are identified and discussed in these reasons. Some explanation is required given that the second complainant is both the half-sister and step-daughter of the accused. I will first set out the table of abbreviated names and then an explanation.
Table of abbreviated names
MDM
The Accused
KMA
First complainant; step-daughter of accused
JDM
Mother of first complainant; ex-partner of accused
DM
Half-brother of first complainant; son of JDM and accused
IR
Housemate of accused in Mansfield Park
TR
Son of IR; cousin of first complainant and her brother
RAM
Second complainant; half-sister and step-daughter to the accused; daughter to DB and the accused’s father
DB
Mother of second complainant; step-mother and then partner of accused
JM
Brother of second complainant; son of DB and the accused’s father; step-son of accused
RMM
Current wife of accused
MJO
Younger sister of the accused
Exhibit P1 is the M family tree. The patriarch of the family is HHM who was born on 28 November 1943. He has been married a number of times and has been involved in several de facto relationships. The accused is one of his sons from one of his marriages. HHM had a de facto relationship with DB and they had two children, one of whom is the complainant RAM. Therefore, the accused and RAM have the same father.
The accused had a de facto relationship with JDM. At that time, JDM had a daughter KMA who is the first complainant. The accused and JDM had a son together, DM who is the half-brother of KAM.
After ending his relationship with JDM, the accused commenced a relationship with his step-mother DB after she had ended her de facto relationship with his father HHM. DB is the mother of RAM, the accused’s half-sister. The accused and the complainant RAM were in a relationship of half-brother/sister as well as step-daughter in his de factor relationship with DB.
An Overview of the Allegations
The accused married JDM, who at the time of their marriage had an infant daughter, the complainant KMA. JDM and the accused then had a son together, DM. Given KMA’s young age when JDM and the accused commenced their relationship, KMA thought of him as her father and grew up calling the accused ‘dad’. The accused drank excessive amounts of alcohol and was frequently intoxicated, usually on a daily basis. There was some aggression in the relationship between JDM and the accused.
When the complainant KMA was about eight years of age, the whole family moved from their home in Kilburn to a property in Pinery. In 1991 and 1992, when she was in years 3 and 4 at school, the prosecution alleges that the accused regularly sexually abused KMA. He would come into her bedroom when she was asleep and put his hands inside her nightwear and touch her on her vagina and would rub the outer labia of her vagina. The prosecution alleges that the offending followed a pattern, although KMA was unable to say how frequently or how many times the offending occurred. She could recall occasions where she would wake up with the accused touching her and some occasions where she would see him come into her room before touching her. These activities comprise count 1 on the Information.
KMA eventually reported this offending to her mother, JDM, who confronted the accused and no longer allowed him to sleep in the house. JDM eventually moved from that home with her children, KMA and DM, in about 1992.
The accused then moved in with a man called IR at his home at Mansfield Park. KMA continued to see the accused, whom she still thought of as her father. On one occasion, when she was 12 years of age, KMA visited the accused at the Mansfield Park house. KMA recalls standing next to the accused in the kitchen and the accused putting his hand down the back of her pants and touching her bottom. KMA recalls IR then taking her to her nanna’s house. IR also gave evidence about this incident, stating that he saw KMA sitting on the accused’s lap, and then KMA running around panicking. He took her to her nanna’s house and while in the car, she advised him that the accused had touched her between her legs. This gave IR the impression that he had touched her in the area of her vagina. This incident constitutes count 2 on the Information.
The accused then commenced a relationship with his father’s ex-partner, DB, and eventually moved in with her and her daughter, the second complainant RAM, and her son JM. The father of these two children is the accused’s father, making them his half-siblings. This also makes the complainant RAM the aunt of the complainant KMA, even though RAM is five years younger than her niece. The accused eventually moved in with DB in Enfield and essentially became step-father to her children. KMA and her brother DM continued to visit the accused when he lived with DB and her children.
The prosecution alleges that the accused began sexually abusing RAM when she was eight or nine and it continued until she was about 11 years of age. The offending followed a pattern of the accused entering her bedroom, first rubbing her vagina on top of her clothing, then rubbing her vagina inside her clothing. Sometimes, he would rub her clitoris and on occasions would penetrate her vagina with his finger. She also saw him with one hand down his own pants. On some occasions, she would be awake before the accused entered the room and on others she would wake up to find him touching her.
RAM recalled some specific occasions when the abuse occurred: when she was sleeping in the lounge room when KMA was sleeping over; when she was sleeping on the top bunk of the bunkbed in her room; and she recalled the first time he penetrated her vagina with his finger. She took measures in attempts to prevent the accused from touching her in this way such as wearing longer pyjama pants, sleeping in the lounge room where someone else was also sleeping, sleeping on the top bunk despite having a fear of heights and sleeping on her stomach. Despite these measures, the accused continued to touch her.
In August 1999, when she was 11 years of age, RAM made an allegation about the offending to someone at school. Police and Child Protection Services became involved. After this report, RAM’s mother, DB, ended her relationship with the accused, at least temporarily, and the abuse stopped.
Evidence of KMA
KMA was born on 16 October 1982 and she now has five children of her own. She continued to have a relationship with the accused and called him ‘dad’ until only a few years ago. The accused and her mother have a son together, DM.
In 1991, they lived together in a house in Pinery, where she attended primary school. A map of the house was tendered as Exhibit P4. She recalls the accused and her mother having a lot of physical and verbal fights. Her mother once struck the accused over the head with a beer bottle whilst he was driving in the car with the family. She recalls her mother often having bruises and she remembers there being fights all the time. She and her brother would hide while the accused and her mother were fighting. Both parents would drink, and the accused was frequently drunk.
KMA recalled the first incident when the accused touched her. She was asleep in bed and awoke to see the accused kneeling or crouching beside her bed. She had been sleeping on her side in the foetal position. She cannot recall how old she was, what time of year it was or what she wore to bed. She later gave evidence she was wearing a long nightgown on the first occasion that the accused touched her.[14] She shut her eyes and the accused put his hands under the blanket and started rubbing her vagina, ‘not up inside my vaginal cavity, but just in – just in my lips…’[15]
[14] T82.15-26.
[15] T36.
The layout of her bedroom was as in Exhibit P4 but there were no bedside tables then. Her bed was first then positioned where she has marked ‘1’ on that exhibit. She also marked ‘T’ where the tables were initially, but they were later moved to each side of the bed after it was moved to another wall as shown on the exhibit. At one time, the tables had nothing on them and at another time they had ‘My Little Pony’ toys on them.
The second event that she can recall when the accused touched her in the same way as the first time, was when the bed was in this changed position, but there were no toys on the bedside tables. The accused touched her on the labia of her vagina. The circumstances were otherwise the same; it was dark outside, she was in bed and he put his hand under her nightwear.
The third occasion that she can specifically recall was when her bed was in the changed position, it was night time, the accused placed his hand onto the area of her vagina and rubbed his fingers through the lips of her vagina. She can specifically recall that on this occasion there were toys on top of the bedside tables on either side of the bed. The ‘My Little Pony’ toys were purchased by the accused after he won approximately $600 in a radio competition called ‘Beat the Bomb’ when she was around nine years old.
KMA stated that she cannot recall the number of occasions on which this conduct occurred, and that it was all blurry after the first few times. She said the occasions occurred in the same way. She does not remember it occurring in any other room in the house. When these events occurred, she tried to keep her legs closed but could not because of the force he applied to her legs. She also tried to use her arms to hold onto the blanket. She cannot recall if she did this on every occasion but assumes she would have. She recalled one occasion when she was wearing pants and a nightgown or long t-shirt even though it was hot because she wanted to wear more clothes to stop the accused from touching her vagina. These efforts were ineffective; the accused would always find a way to ‘weasel his way, like squirm his hand in between.’[16]
[16] T47.20-48.7.
She could not recall how long this conduct lasted. She did not tell the accused to stop because she was scared. She said that she and the accused never spoke to each other during the touching or about the touching after. She would keep her eyes shut when he was touching her. She was sure it was the accused because she remembers his haircut, the smell of strong tobacco, alcohol and grains about the accused and there were no other adult males living in the house.
On one occasion, she heard the accused unzip his pants. On another occasion, she was laying on her back and she was being pulled around her mid-section, she opened her eyes and quickly shut them again. She was wearing a nightie with pyjama or tracksuit pants. She remembers the accused putting his hand down her leg but cannot remember if anything else happened on that occasion. She recalls another occasion when she was wearing a nightie.[17] She cannot remember any further occasions; she is unsure how many more times but ‘more than five’ but not twenty-five. She can definitely remember at least three.[18] She can only recall the accused touching her at the Pinery house.
[17] T82.28-83.4.
[18] T48.32-49.8; 83.6-26.
One night, toward the end of their time living in the Pinery house, she recalls walking past the accused as he was lying on the floor watching TV, which was located on the wall dividing that space from her mother’s bedroom. The accused looked at her and smiled in a way that gave her the impression that he was going to touch her again. KMA walked into her mother’s room, got into bed with her mum and told her that the accused had been touching her.[19] She cannot recall if she told her mum that it happened on many occasions or whether she told her where the accused touched her. KMA recalled that her mother called her ‘a fucking liar’ and asked, ‘why would you lie about something like that?’[20] After she told her mother, the accused slept outside the house and she does not recall seeing him inside the house from that time.
[19] T50.32-51.4.
[20] T53.5-7.
The accused then moved in with IR in Mansfield Park. When KMA was 11 or 12 years old, she visited that house. The accused and IR were sitting at the kitchen table when KMA entered the room. The accused put his arm around her waist and then put his hand down the back of her pants and underwear and touched her buttocks. IR was standing leaning up against the sink and there was nothing obstructing his view of the accused and KMA.[21] IR said, ‘what are you fucken doing?’ and the accused removed his hand.[22] She saw the accused drinking and his breath smelt of beer. IR told KMA to collect her things and took her to her nanna’s house. This was the only offending KMA could recall subsequent to her reporting the abuse to her mother.[23]
[21] T99.16-27.
[22] T56.22-57.18.
[23] T61.11-15.
KMA stayed with the accused and his partner DB in Enfield, which included living with them for a time when she was 14 and had her appendix removed. When she stayed there, she sometimes slept in a bedroom with RAM and later in the lounge room on a mattress, sometimes having her boyfriend sleep over as well. RAM would sometimes sleep on the mattress with KMA in the lounge room or on the couch if KMA’s boyfriend was there as well.[24] On one occasion whilst staying there, KMA heard that RAM had made an allegation that the accused had sexually abused her.[25] KMA had a conversation with RAM a few years ago about it, but they did not go into any details about the nature of the abuse. KMA apologised to RAM for not standing up for her.[26]
[24] T62.13-64.13.
[25] T64.20-29, T66.2-13.
[26] T69.17-70.7.
In cross-examination, KMA indicated that she no longer speaks to her mother and that her mother was verbally abusive to her and her brother. She was afraid of her mother and of the accused.
She cannot say how many times the abuse happened or how often it happened, but said it always happened the same way. She stated the first time the bedside table was not next to her bed but up against the wall. She initially said that it was very dark outside. She woke up and saw the accused kneeling or crouching down with his hand underneath the blanket and her clothes and positioned in her crotch, his fingers in the lips of her vagina, rubbing.[27] She was wearing a nightie. This is the only occasion she can recall when the accused touched her when she was wearing only a nightie with no pants or shorts underneath.[28] She stated that she described to the police an incident where there was no bedside table, one with a bedside table and once with ‘My Little Pony’ toys on the bedside table.[29] She said that there were some things she missed in the statements and she made some mistakes. In a later statement, she said there was some light coming in from the street lights outside.[30] On one occasion she saw the accused coming into her room, and she quickly shut her eyes because she was scared. She does not know why she did not stop the accused, or scream; she was a child and she was scared.[31]
[27] T73.33-74.12.
[28] T82.16-26.
[29] T76.12-21.
[30] T77.20-78.12.
[31] T80.5-10.
When questioned about there being additional detail in her later statements to the police compared to the earlier ones, she stated that she did not remember some things and that her story was blotchy, but that they told her to remember as much as she could and to answer honestly, and that is what she has done.[32] She could not remember a lot of detail. She did not tell anyone because she thought it was her fault and that she had done something wrong.[33]
[32] T85.16-22.
[33] T94.29-95.32.
KMA said she did not see the accused alone after they moved from the Pinery house, but only with her brother. She agreed she did stay in contact with the accused until a couple of years ago. She attended his wedding in Western Australia in 2007. She intended to tell his fiancée about the abuse prior to the wedding but was a ‘chicken’.[34] She liked his fiancée and did not want to hurt her.[35] She brought a dress to wear to the wedding and stayed for four days after the wedding and did activities with the accused and his new wife, including going to the market.[36]
[34] T107.1-25.
[35] T123.25-35.
[36] T108.14-38.
The accused and his new wife visited KMA in Adelaide and stayed with her and her three children for three days. She said that she then lied to them and said she had someone else coming to stay with her so they would stay somewhere else. She wanted them to leave. She denied that they stayed with her for two weeks.[37] While they were there, she stayed awake at night to make sure that the accused did not touch her children. She slept with her door open and put the accused in the farthest room with a squeaky, hard to open door and put her kids in the room next to hers. She also put a baby monitor in the room with her kids. She was awake for three nights and four days and was scared that she might not wake up if he came into their room. That is why she lied to them and said they had to stay somewhere else.[38]
[37] T110.25-111.15.
[38] T125.1-126.2.
The accused and his wife visited Adelaide on another occasion but did not stay with KMA. They attended at her home for lunch one day, attended the children’s sports carnival and went to an adventure playground with them.[39] KMA provided the accused with school photographs of one of her children. A number of photographs of KMA and her children with the accused were entered as Exhibits D8, D9 and D11. She admitted that she wanted herself and her children to have a relationship with him.[40]
[39] T112.8-25.
[40] T117.2-7.
KMA gave evidence that she used drugs intravenously between 2004 and 2007. She has used speed and ecstasy and tried acid on one occasion, during which she had an hallucination.[41] She does not think her drug use has affected her memory.
[41] T120.22-122.22.
The accused submitted, and I accept, that unless the conduct in respect of the offending against the complainant RAM is admissible in respect of the evidence against KMA, which matter I will deal with later, there is no evidence of the alleged offending other than the direct evidence of KMA. There is therefore an inherent unreliability in the evidence based upon historic events of a child of that age. The accused submitted that as a matter of fairness, her evidence should be scrutinised with care. I accept that submission of the accused and I have proceeded accordingly. I am satisfied that in the main, the evidence given by KMA was truthful, reliable, cogent, credible and convincing. I found her to be a witness of truth. I have scrutinised the whole of her evidence with care and I accept her evidence.
Evidence of JDM
KMA was six weeks old when JDM separated from her father. She began a relationship with the accused and moved in with him in 1983, when KMA was six months old. They had a son together, DM, born in 1984.
The accused drank at least a six-pack daily, to the point of intoxication. Their relationship was unhappy and aggressive. Their arguments were daily or every second day and were verbal and physical, sometimes resulting in injuries. On one occasion JDM was taken by ambulance to the hospital with a suspected broken cheekbone. The children were terrified. [42]
[42] T136.7-137.37.
They bought a property in Pinery in 1990. There the accused’s drinking got worse. He would drink from the time he left work until the time he went to sleep.[43]
[43] T142.15-29.
Around April 1992, JDM had a conversation with KMA in her bedroom wherein KMA said, ‘Mummy, daddy’s been coming into my room in the mornings and putting his finger in my fanny.’[44] She was frightened and upset. She said it would happen in the mornings before he went to work. Sometimes it was dark. She said her mother and brother would still be sleeping. He would put his hand under the blanket and put his finger ‘in there’. JDM said KMA told her that sometimes she said to him something along the lines of ‘daddy, please stop’.[45]
[44] T142.30-143.18.
[45] T143.20-144.12.
JDM said she then called the accused into the bedroom and told him that his daughter had just accused him of something. She asked KMA to tell the accused what she just told her, but KMA said she did not want to. JDM then told the accused what KMA had said. He went red-faced and denied it.[46] JDM told him to get out of the house and he went and slept in a trailer at the house. He continued to sleep out there until JDM and the children moved out of the house. A couple of months later, JDM told the accused’s father that she did not think that KMA was telling the truth and KMA overheard this conversation.[47] JDM’s mother, who loved the accused and ‘didn’t want to see anything wrong in him’, convinced JDM that KMA was lying. She believed her mother. She admits calling KMA a ‘fucking liar’, but only months after she was first told about the abuse.[48] She did not think that KMA was making this up as leverage because she wanted to go back to Adelaide, but in hindsight thinks that KMA wanted to return to Adelaide to get away from the situation.[49]
[46] T144.13-33.
[47] T144.34-145.13.
[48] T155.19-157.8.
[49] T157.24-35.
In April of 1993, JDM heard of allegations of another incident with the accused and KMA. She had gone away for the weekend and received a phone call from her mother advising, ‘You need to get back down here now’. Her mother than told her what had happened at IR’s house. She had told her mother not to allow the children to go to see the accused, but her mother allowed them to.[50] JDM went to IR’s house where the accused was living and smashed his stereo with a crowbar. She advised him what she had heard; he did not admit or deny it.[51]
[50] T159.4-20.
[51] T148.15-149.10.
JDM knew that the accused had a new partner and KMA and DM would sometimes stay with them. KMA asked to see the accused after their separation because, JDM said, ‘She loved him.’[52] JDM said she did not know that the children spent time with the accused, but only found that out recently.[53]
[52] T159.31-33.
[53] T160.19-22.
Evidence of IR
IR has a son, TR, who is a cousin to the accused’s children, KMA and DM. The accused lived with IR for about a year at Mansfield Park in 1992 after he had separated from JDM. The accused’s children visited their father once or twice per week and stayed the night several times whilst he was living there. The accused would drink to the point of intoxication almost every day.
On one occasion, at approximately 9 or 10 at night, IR, the accused, KMA and ‘some dude that [the accused] met at the pub’ were sitting at the kitchen table and KMA was sitting on the accused’s lap. IR left the room and when he returned KMA was running around the house panicky and the accused was trying to work out ‘what’s the deal?’ IR could not see where the accused’s hands were, and he did not witness KMA getting up off the accused’s lap or what led to her becoming panicked and upset. KMA wanted to go to her nanna’s house, so IR took her there. KMA’s brother DM and IR’s son TR were not present. IR was not sure what time of year it was, but remembers it was cool.[54] KMA was approximately 11 years old and was wearing reddish tracksuit pants.[55]
[54] T166.36-169.21.
[55] T173.1-13.
On the drive to her nanna’s house, KMA said that the accused put his hand between her legs and rubbed her privates. IR cannot recall the word KMA used, but he thinks she might have called it her ‘mini’. That was the term used by her nanna and others for her vagina. Whatever she said, the impression he had was that she was talking about her vagina.[56] When he returned to his house, the accused said he was ‘going to be in the shit with [JDM]’[57] and indicated he did not know what he had done wrong.[58] The next day, JDM came around and was angry at the accused. She tipped over a soft drink can and smashed the stereo. She said she was unhappy with the situation with KMA, and the accused did not respond.[59] She mentioned that she intended to take the children to Tasmania.[60]
[56] T169.23-170.8; 176.1-10; 177.20-178.3.
[57] T171.4-10.
[58] T172.2-8.
[59] T172.9-27.
[60] T176.22-25.
Evidence of RAM
RAM was born 15 December 1987 in Victoria to the accused’s father and DB. Her brother, JM, was born in Perth. The family moved to South Australia when she was approximately five years old. Her mother and father separated when she was about seven years old and in year two. Shortly thereafter, her mother, DB, commenced a relationship with the accused, who was also RAM’s half-brother. She would have been 9 turning 10 at the time. The accused moved in to their home in Enfield shortly thereafter and became her step-father.
The accused drank alcohol to the point of intoxication every night. He would start drinking in the car on the way home from work. The children KMA and DM stayed the night quite regularly. When they stayed over, KMA would share a room with RAM or sleep on a mattress in the lounge room. DM shared a bedroom with her brother JM at first and then set up a bedroom in the garage. They also had a boarder from 1998 to 1999 who slept in the garage.
The accused did shift work, so sometimes would leave the house around 5.30 or 6 am and other times not until 9.30, 10 or 11 o’clock at night.
RAM gave evidence that the accused touched her in an inappropriate way ‘probably at least 30-plus times’. It started off less frequently and became more frequent over time. It started when she was about eight or nine years of age, which she estimates by how soon after the accused moved into their home it started happening. She recalls it started about the same time she began her period, when she was nine years of age. The touching stopped in 1999 when the accused was kicked out of the house.[61]
[61] T193.32-194.31.
RAM recalled that she would be asleep in her bed and she would become aware that the accused would get up in the middle of the night. She believed he was going to the bathroom because she would hear her mum’s bedroom door open, see the lights come on and hear the toilet flush. When it began, her bedroom was next to her mum’s bedroom and she slept with her door open. She later slept with her door closed. In the beginning, he would look into RAM’s bedroom and come in. She could see because the hallway light was left on for her younger brother.
The accused put his hands down her shorts or inside the shorts leg and touched her vagina. He would sometimes just rub the outside of her vagina and other times he would rub her clitoris and sometimes he would insert a finger into her vaginal canal. He sometimes also touched her breasts. She does not recall wearing underwear at that time. He never removed any of her clothing. Sometimes she would cough or something and he would go away, but at other times that was not enough.[62] It would normally last for a couple of minutes and afterwards he would generally ‘stumble back into his own bedroom’. He smelled of stale beer and cigarettes. He would never come into her room at night and not touch her.[63]
[62] T194.32-196.9.
[63] T198.7-22.
On four or five occasions, instead of going to the toilet, he would urinate in RAM’s wardrobe. He would always touch her after this occurred. He also urinated on her bed once when she was not home and once in the linen cupboard.[64]
[64] T198.23-199.21.
RAM said that there were times where the accused came into her room, was touching her and was rubbing himself under his jeans at the same time. There were a couple of occasions where she slept on the top bunk in her room, despite her fear of heights, in an attempt to deter the accused from touching her. On one of those occasions she had her eyes open and was looking down over the edge of the bed and she could see that he had his hand down the front of his pants. His other hand was reaching up, touching her vagina and her clitoris under her clothes. She was wearing a pair of white and pink short pyjamas with a tie-up draw string and a top. She believes it was in the warmer months because she was sleeping with a sheet rather than her blanket.[65]
[65] T196.20-197.33.
In an attempt to prevent the accused from touching her, in addition to sleeping on the top bunk, RAM tried sleeping on the couch in the lounge room while KMA and her boyfriend were sleeping there on a mattress on the floor. She can specifically recall one occasion (although there may have been more) when the accused touched her while she slept on the couch.[66] She was 10 and she believes KMA would have been about 15, and that DM was sleeping in the shed.[67] She believes it may have been during the Easter holidays.
[66] T199.22-200.1.
[67] T202.1-16.
RAM was asleep on the couch and woke up to find the accused touching her on the outside of her pants in her vaginal area. She was lying on her back and side facing towards the TV with her legs on the side closed and slightly folded. She had no blankets or sheeting but did have a pillow. After she woke up, she shifted and turned so she was facing the back of the couch and pressed her breasts down to her hips against the back of the couch to try to stop him from accessing her vaginal area. The accused waited for a little bit until she settled and then put his hands up her short leg under her shorts and underwear and touched her vagina from behind. He touched the outside of her vagina, her clitoris and put one finger inside her vaginal canal and moved it in and out very slightly. It was like he was trying to be gentle to not wake her, but there was some movement. He had his finger inside her for a minute or two. She was terrified and froze up. She did not know what to do and just told herself it was not happening. She eventually coughed or stirred a little bit and that made him go away. They did not speak to each other during the incident. She knew it was the accused because of the smell of stale beer and the distinct smell of the brand of tobacco that he smoked namely, White Ox rolling tobacco.[68]
[68] T205.12-207.5.
RAM recalls that this was not the first time that the accused inserted his finger into her vagina. She recalls another time when she was on the bottom bunk in her bedroom and the bed was positioned against the bathroom wall (see Exhibit P15). She was wearing her regular pyjamas, which were the white and pink short with the tie-up front. This would have been in the warmer months as she was just sleeping with a sheet. She can recall the smell of alcohol and cigarettes. She was sleeping on her back with her legs straight and slightly open. She woke up to find him touching her on the vagina on the inside of her pyjamas and underwear with his hand underneath the leg of her underwear. She woke to a feeling of pressure and a stinging sensation that was not comfortable, which was him inserting his finger into her vagina. This was the first time that occurred. She cannot remember how it ended on that occasion, but it usually ended with her coughing or stirring which she believed he would think was her waking and so he would leave. She believes the accused was rubbing himself on the outside of his pants and that he did at one point put his hand down the front of his pants, although they were still buttoned. She opened her eyes a couple of times but not for an extended period. The accused was standing next to the bed facing towards the window but slightly turned more towards the bed. He was touching her with his left hand and his other hand was in his pants. He was crouched over.[69] She recalls that at the time of this incident, they had a blow-up pool outside of her bedroom window which would have been in 1998.[70]
[69] T207.19-210.22.
[70] T220.19-221.3.
This incident was not the first time that the accused touched her vagina, but was the first time he inserted his finger into her vagina. She believes it occurred before the incident on the couch, and the incident where she was on the top bunk occurred between these two incidents.[71]
[71] T210.23-211.17.
There were a couple of occasions when RAM would be awake when the accused came into her room. This would usually be because she heard her mum’s bedroom door open or the toilet flush. She used to be a heavy sleeper but became a lighter sleeper as time went on and things were happening. She got to a point where the slightest creak would wake her up.[72] She and the accused never spoke to each other during these incidents or about these incidents.
[72] T211.18-30.
She knows there were other occasions when the accused touched her after she had moved into her brother JM’s room but she cannot remember a specific occasion in that room. She generally slept on her side with her knees slightly bent, and in that room, she would sleep on the side of the bed closest to the wall. When the accused touched her in that room he would be standing at the side of her bed that she was sleeping on, leaning slightly over her. She started sleeping with the bedroom door closed once she moved into that bedroom; she felt a lot safer with the door closed. She would wake up when she heard the door handle turn.[73]
[73] T211.35-214.23.
To avoid the accused touching her, when DM was living in the shed, she would go out and play video games with him at night and not go back to her bed until about 3.00 am. She also slept on her stomach to try to avoid the accused touching her, sometimes while also sleeping on the top bunk as a double precaution, but it did not work. She recalls him touching her when she was sleeping on her stomach on the top bunk, but the memories are not vivid enough to be able to give a detailed account. She does have a memory of him touching her when she was sleeping on her stomach on the bottom bunk. She recalls on one occasion him moving her leg so that her knee was higher up so he could access her vagina from the short leg at the back. He rubbed her vagina on the outside and touched her clitoris. She believed this was in the warmer months, probably between September and January, and her bed was against the window at the time.[74]
[74] T214.24-216.18.
RAM also tried changing what she was wearing in an attempt to stop the accused from touching her vagina. She would wear longer pants and pant bottoms that would tie up in the front. She would tie them tighter so there was less room for him to get his hand down the front. She wore longer legged pants in an attempt to stop him from getting up through the short leg. The longer pants did help, but did not prevent it for very long. It still happened. He would still touch her outside her pants or would put his hand down her waistband.[75]
[75] 216.19-217.35.
On occasions, she was able to stop him by stirring a little, turning slightly to her side, coughing or making a noise or a movement that indicated she was waking up. Sometimes this would be enough to get him to go back to his room but not always. Sometimes he would stop and stand there for a couple of minutes and then continue. She did not try to let him know that she was awake, but just that she was going to wake up. She did not want him to know she was awake in case something worse happened. She was scared and did not know what to do. She did not want him to know that she knew.[76]
[76] T217.36-218.31; 235.14-237.19.
RAM did not tell anyone because her mum had a hot temper. She thought her mum would get angry and not believe her. She did not want to ruin everything and have her mum be upset with her.[77] She did not want to break up the family and lose KMA and DM or be taken away. She did not think KMA would believe her.[78]
[77] T218.32-219.5.
[78] T236.10-237.14.
The accused also touched her breasts outside of her clothing. Approximately eight or nine times, he would come in and start at the top of her body around her upper chest area and run his hand down over her breasts towards her vagina. He would not spend much time touching her breasts. When this occurred, he would always move on to touching her vagina.[79]
[79] T221.4-31.
RAM told someone at school that the accused had been touching her in 1999 when she was in year 6. The police and Child Protection Services became involved. Her biological father picked her and her brother up from school that day and they stayed with him for a fortnight. Her mum then kicked the accused out of the house and when they went back to live with her permanently, the accused was no longer living with them.[80] The accused was only out of her life for a month to six weeks before her mother re-commenced a relationship with the accused, and he moved back in with them. He never touched her again.[81]
[80] T222.1-27.
[81] T222.28-223.36.
Her mother and the accused finally split-up when RAM was 15. She lived with the accused and his current wife for six months when she was 17 to 18 years of age because she had nowhere else to go and she and her mother were not speaking.
KMA is RAM’s step-niece. She has had conversations with her about the accused but not about any of the details of the allegations either of them have made. She has minimal contact with her on Facebook. She overheard a conversation about the accused having his hand down KMA’s nappy at IR’s house many years ago, before anything happened to her.[82]
[82] T226.27-227.31.
While her period began when she was nine years old, it was irregular. She cannot recall any occasion when the accused touched her while she was having her period. She also cannot relate any incidents to any events such as birthdays or something happening at school. She recalls that on the night when the accused touched her while she was sleeping on the couch, she had gone to her bed initially, but once everyone was asleep she moved out to the lounge room to try to avoid the accused touching her.
RAM admitted that in her statement to police she said that the accused touched her 20 or 30 times and that she only specifically remembered a few times.[83] She also admitted that the one occasion when she said that he accused urinated on her bed, she did not see the accused do so. She was fairly certain no one else would have done that, but only discovered it after it had happened.[84] She denied knowledge of the accused urinating in a laundry basket.[85] She described the accused often falling asleep at the kitchen table where her mum would wake him to give him his dinner, and then he would fall back to sleep. She would then wake him again to send him to bed, and sometimes he would complain that he had not had his dinner yet, even though he had eaten a couple of hours earlier.[86]
[83] T239.20-240.15.
[84] T241.28-38.
[85] T242.6-243.1.
[86] T244.1-19.
She did not think to make it more obvious that she was in fact awake or to get up and go to the toilet. She did not want him to be aware that she was aware of what was going on. She did not know what he could possibly do to her if he knew; if he would make the situation worse or become violent. She was worried for her safety and so chose to stay still and hope it would stop soon.[87]
[87] T246.31-247.15.
RAM confirmed in cross-examination that she had not spoken to KMA about these allegations. While she has been curious, she was told that it would be better if they did not discuss it so they have not.[88] On being questioned as to whether she was in a dreamy state in the middle of the night when these events allegedly occurred, RAM stated that she was completely awake after any movement or noise because she knew what was about to happen. She would remember specifically what happened the next morning but would get up and get ready for school and pretend like nothing had ever happened.[89]
[88] T248.3-7.
[89] T249.1-25.
Evidence of DB
DB is the mother of RAM and JM. Their father, also the accused’s father, was much older than her. They separated when RAM was nearly seven years old. About six or ten months later, she began romantically seeing the accused, who had been her step-son, and he moved in with DB and the children. RAM would have been about seven-and-a-half at that time.
The accused sometimes worked shift work in Two Wells in the granary. When he worked a night shift, he would leave for work at 8 or 9pm, and when working an afternoon shift he would leave about 2pm. Day shifts would start around 6 or 7am and finish around 3 or 4pm. The work was seasonal and varied, but he eventually had full-time, consistent work.
The accused drank alcohol to the extent of being drunk every day. He would start drinking in the morning but DB never saw him drink before work. At the end of his shift, he was eager to get to the bottle shop; he would drink a beer on his way home. He would also drink during meal times.[90] When he worked a night shift, he would come home in the morning and drink, then go to bed by 9 or 10am.[91] He would have difficulty staying awake at the table. He would be quite drunk, and would be nodding off while eating his dinner. DB would need to ‘give him a shove’ to get him to concentrate on eating his dinner. She would have to put him to bed.[92] He would always go to bed before DB, or she would put him to bed before her. She would sleep in the same bed with him and sometimes wake up to him urinating in the bedroom or getting up for work.[93] She recalled one occasion when she walked into the back bedroom where RAM slept, when the bunk beds were in there, and found him about to urinate into the wardrobe, but she guided him to the toilet and told him to go there.[94]
[90] T260.36-261.4.
[91] T272.19-27.
[92] T261.5-15.
[93] T273.5-22.
[94] T274.16-30.
When the accused drank too much he seemed to change, would lose his bearings and would become incoherent. He quite often urinated in inappropriate places such as the corner of the bedroom, behind the door, in the wardrobe, in a laundry basket and other bedrooms.[95] She would let him know what he had done, but would not yell at him about it. He claimed he did not remember anything.[96] He smoked White Ox tobacco which smelled quite strong. He smelt like beer, cigarettes and grains from work.[97]
[95] T261.15-262.27.
[96] T273.23-274.14.
[97] T262.28-38.
The children would usually go to bed around 8 or 8.30 pm. RAM would go to sleep right away.[98] She thinks RAM preferred the bottom bunk.[99]
[98] T272.31-273.1.
[99] T274.31-275.6.
RAM and JM shared a bedroom for a time and also switched rooms. DB would move furniture around and switch the kids’ rooms every few months, maybe four times a year.[100] One of the rooms had salt damp on the wall. DB also had a boarder who moved in to that room once it was repaired. There were a set of bunk beds in that room at one point, but they were in the other bedroom at times as well. They had an inflatable pool for one summer in 1997, 1998 or 1999 and it was set up outside the bedroom window.[101]
[100] T268.34-.269.26.
[101] T264.38-265.14.
The accused’s children KMA and DM would sometimes come and stay with them, and sometimes the girls would share a room and the boys would share a room. This usually occurred over school holidays[102] or for longer periods over Christmas. DB believes that the girls always shared the front bedroom when they came to stay.[103] KMA stayed with them when she had an operation. Sometimes KMA’s boyfriend would also stay the night and they would sleep on a mattress on the lounge room floor. Sometimes RAM would sleep on the couch when they were there.[104] DB did not often have anyone sleep over because she was embarrassed about the accused’s behaviour and did not like to have other children around.[105]
[102] T275.7-15.
[103] T276.19.
[104] T265.24-266.38; 277.6-16.
[105] T275.2-6.
On one occasion in 2000 or 2001, when RAM was in her final year at primary school, DB went to pick the children up from school and was told that Welfare had taken them and they would be in touch with her. She was advised it was to do with an allegation RAM had made about the accused. DB then asked him to move out, which he did.[106] She renewed her relationship with him probably six months later, after she had moved into a house on Main North Road. The accused then moved into that house, and they moved together to another house in Davoren Park. During that time, RAM moved for a short time to Victoria to stay with DB’s mother. RAM was not living with DB when the accused moved back in. It never really became clear to her what had happened between RAM and the accused.[107] DB then moved with the children to Western Australia and the accused followed them about a year later and moved in with them again. They broke up permanently in March 2002.[108]
[106] T269.27-270.19.
[107] T279.20-28.
[108] T270.20-271.17.
DB felt that she had a relationship with RAM where RAM could come and talk to her about things, that if anything was wrong she could tell her. DB felt they had a good relationship.[109]
[109] T278.32-37.
Evidence of RMM
RMM married the accused in 2007 and they live together in Perth. KMA and her brother DM attended their wedding in Perth. KMA stayed at their home for four to five days, and DM stayed with them for two weeks. KMA sat at the bridal table at the wedding and interacted with the accused, hugging him, talking and laughing.[110] She also attended RMM’s hen’s night and visited her parents’ home.[111] Photographs of KMA at the wedding are in Exhibit D8. After the wedding, they spent time together going to the beach and the markets. KMA bought the accused a dragon statue that lights up and some stone tablets with expressions.[112]
[110] T283.9-38.
[111] T292.38-293.7.
[112] T284.4-285.1; See Exhibits D6 and D7.
In 2009, KMA invited RMM and the accused to visit and stay with her, her boyfriend and her three children in Adelaide for two weeks. The children were aged between nine and two at the time. They slept in one of the children’s bedrooms. KMA was not always present when the accused was with the children.[113] KMA’s son slept in her room and the two girls slept in another room together.[114] Photographs of the accused with KMA and her children are in Exhibit D9. These photos were all taken on the same day,[115] or perhaps on two different days.[116]
[113] T285.17-286.35.
[114] T295.8-38.
[115] T297.1-14.
[116] T300.2-301.2.
They next saw KMA in 2011 at the accused’s brother’s funeral. They did not stay with KMA on that occasion, but the accused did interact with her, hugging and laughing.[117] They also saw her on two or three occasions in 2013 when they visited Glenelg. KMA invited them to her house for a barbecue, to the kids’ sports carnival and for lunch at a pub with the children. Photos from these visits are in Exhibit D11.[118]
[117] T286.36-287.10; T296.13-24.
[118] T287.11-288.10.
There were also approximately fortnightly telephone calls between KMA and the accused, and occasional text messages between KMA and RMM. RMM later said that these messages were once or twice a week, just to keep in touch.[119] The two were also Facebook friends. KMA also sent some family photos to RMM and the accused.[120]
[119] T294.3-16.
[120] Exhibit D12.
RMM cannot recall when she met RAM, but she came to stay with them for approximately six months when she was 18 years old.[121]
[121] T290.29-291.16.
Accused elected to not give evidence
The accused elected not to give evidence in this court and chose to remain silent. I remind myself that he was not bound to give evidence and had the right to decline to do so. Because that is his legal right, I will not draw any inference adverse to him or the case he puts forward from the exercise of that right. It always remains for the prosecution to prove its case beyond reasonable doubt.
The submissions of the parties
The Prosecution
Ms Wilson reviewed the evidence of KMA that the accused touched her more than once in an inappropriate way, and described the first instance when this occurred. She woke up to find him kneeling or crouching beside her with his hand under the blanket and in her underpants, with his fingers in her vagina and rubbing around. She remembered other incidents but they were blurry. She recalled another time when the bedroom was set up differently, in that incident when there was nothing on the bedside drawers and another when there were toys on that table. She identified other incidents when the drawers had been moved next to the bed, both when there were My Little Pony toys on them and also without. She testified about trying to protect herself from the abuse by holding her arms on the blanket, but the accused would move her arms and touch her vagina in the same way as the initial time. She described a time when she watched him walk in the door, another when she woke up and he was crouched beside her but not yet touching her. She confirmed that he went on to touch her on both of those occasions. She recalled another incident where she was wearing a long top or nightie with long pants, and she remembers her hips being pulled and her leg being touched, but she could not recall whether the accused touched her vagina on that occasion.
She gave evidence that the touching on her vagina was always in the same way, but she could not say whether the touching occurred more or less times than five, but she believes it was more than five. She indicated at least three occasions by reference to the accused’s position when she woke up, as well as by the positions of the bedside tables, (first where there was no bedside table, where there were bedside tables next to the bed and finally where there was a bedside table next to the bed with My Little Pony toys on them). She later indicated she was pretty sure it was more than five, but she definitely remembers at least three times specifically.
The prosecution then reviewed the initial complaint evidence when KMA told her mother that the accused had been touching her. She could not remember the exact words she used, but they were sitting in bed together in her mother’s room. She decided to tell her mother because of the way the accused looked at her, which made her feel that it would happen again if she did not say anything. She recalled that her mother called her a ‘fucking liar’. This evidence closely mirrors what JDM said of that conversation, although she denied then calling KMA a ‘fucking liar’. She recalled KMA coming into her room and saying ‘Mummy, daddy’s been coming into my room in the mornings and putting his finger in my fanny’. She said it was in the mornings before he went to work, and that sometimes it was dark when JDM and DM were still in bed. She said ‘daddy, please don’t’. She was frightened, scared and upset.
Ms Wilson for the prosecution submitted that the main thrust of the complaint is capable of showing consistency of conduct. She also accepted that there are some inconsistencies, such as JDM recalling KMA saying that she said, ‘daddy please don’t’, KMA’s recollection of her mother calling her a ‘fucking liar’ and possibly JDM’s evidence that KMA reported it was occurring in the morning. Ms Wilson contends that these inconsistencies could be due to KMA’s limited memory of what occurred after that conversation, which is explicable given the circumstances. KMA had finally gathered the nerve to tell her mother what had been happening. Her mother then called the accused into the room and put the allegation to him in front of KMA. The accused denied the allegations and then KMA was taken to her grandmother’s house where she was made to recount the allegations to her grandmother. JDM admitted that, in time, she did call KMA a ‘fucking liar’ about this complaint. The prosecution submitted that it is not surprising that a nine-year-old girl may have confused or conflated those different events and conversations. This is correct and such a statement by a mother to her daughter on this topic would have had a very devastating effect upon the complainant. It would have caused a degree of shock to her. It does not trouble me that she got the timing of the statement incorrect.
JDM also gave evidence about the accused’s daily alcohol consumption and that their relationship was unhappy and aggressive, involving loud, physical and verbal arguments in front of the children. On occasions, she had bruising and injuries to her face. The children were sometimes terrified and would flee to their rooms. KMA gave evidence of her fear of the accused and of her mother. The prosecution submitted that this was not a happy, normal family life. This is relevant to any considerations of her answers to questions about why she did not tell anyone, why she shut her eyes and did not let the accused know she was awake. Ms Wilson suggested that she was a small, scared little girl and the accused was the person she had grown up thinking of as her father.
JDM gave some evidence that differed from that of KMA in relation to where they lived when the accused won the radio contest and bought the complainant the ‘My Little Pony’ toys. She thought it may have been at Kilburn but in the end, she was not sure. She had little recollection about what bedroom furniture KMA had or what toys she had. Ms Wilson suggested that those details may not have been as significant to JDM as they were to KMA, who was obviously more interested in the toys and more knowledgeable about her own bedroom. It was she who also associated those details with the offending against her, and so KMA’s evidence should be preferred.
In relation to Count 2, the prosecution accepted that the evidence of KMA is different from that of IR. KMA said she was standing at the kitchen table with her arm around the accused and his arm around her waist. IR said KMA was seated on the accused’s lap. KMA said that IR was leaning against the counter with a coffee; IR says he was just coming back into the room from getting a coffee or going to the toilet. KMA recalled the accused putting his hands down the back of her pants and touching her bottom and that he stopped when IR said ‘What the fuck are you doing?’ IR said that he did not see what happened, but that he saw KMA running around panicked, frantic and upset, saying ‘get away from me’ to the accused. She asked IR to take her to her nanna’s house.
IR gave evidence that in the car, KMA indicated that the accused had touched her vagina, although he could not recall the words she used. KMA did not recall that conversation in her evidence. The prosecution did not press that evidence as initial complaint evidence, as it is not referrable to the charged offence of touching on the bottom. Ms Wilson submitted that it could be taken as a prior inconsistent statement if the Court accepts that KMA indicated to IR that it was her vagina the accused touched. The prosecution submitted that KMA’s evidence is more reliable as it actually happened to her and so was likely of more significance to her than to IR. She further suggested that IR’s statement that KMA said the accused put his hand between her legs is consistent with him touching her bottom, although it may have conveyed the idea to IR that it was her vagina.
The prosecution submitted that the cross-examination of KMA on her use of illicit drugs over a limited period of time, a long time after the alleged offences and her initial complaint, was hardly relevant. KMA was candid about her drug use. She was also cross-examined about some inconsistencies in her statements, indicating in her first statement that it was dark outside and subsequently that there was light coming from the Pinery Town Hall. However, it appears from her evidence that when indicating it was dark outside, she was referring to the time of night, not the level of light in the room.
She was also cross-examined about inconsistent statements about the clothing she was wearing. In her first statement, she said she did not recall what she was wearing when she was first offended against, but she went on to say that she did recall. The prosecution suggests these statements are not inconsistent.
She was also cross-examined about her relationship with the accused as an adult. The prosecution emphasised that the relationship between KMA and the accused was complicated, and that father-child feelings do not suddenly turn off. Although the relationship might have been abusive and she may have been scared of him, she still wanted her children to have a relationship with him (although a supervised one) and to spend time with him. She did not want them to hate him. This is not unusual or inexplicable in such relationships or circumstances and does not mean she must be making it up. Ms Wilson said that the evidence of KMA using a baby monitor to keep an ear on things when the accused and his wife stayed with her at her house was compelling. The prosecution also suggested that taking the accused’s wife’s evidence at its highest only suggested, since 2003, four face-to-face visits, occasional exchanging of phone calls and a few gifts after their wedding. There is very little contact over that period and does not indicate a close, continuing and loving relationship. Ms Wilson suggested that RMM’s evidence may not be of any assistance to the Court.
While KMA’s evidence may at times have seemed vague and that she remembered more details over time, it is well known that adults giving evidence about experiences as children remember things over a period of time and are reminded of things in a variety of ways. This does not mean that the memory is manufactured, but that repeatedly talking about the events jolts memories. If she was inventing things, she might have done so in more detail. She made appropriate concessions where she could not recall something, and even got upset and apologised when she couldn’t remember an answer. She did not appear willing to make something up, and her responses were quite compelling about whether or not it was more or less than five times. She stated, ‘I believe it was more than five, that’s why I can’t remember a lot of detail, but I don’t want to say “Yes, it was more than five”, because I don’t want him to get in any more trouble. I’m pathetic. I don’t believe it was 25 times…’ She went on to clarify that she did not think it was 25 times, but just used that number as an example, ‘but I believe it was more than five’.[122]
[122] T49.1-8.
As another example, if she was inclined to fabricate evidence, KMA could have stated that there was another occasion of touching when she was wearing long pants under a long t-shirt or nightie. She gave evidence of her hips being pulled and her leg being touched, but that she could not remember whether the accused touched her vagina on that occasion. The prosecution submits that KMA was an honest witness who did her best to tell the truth about what she remembered without elaborating or making up extra details to support her account. Her evidence suggested that she did not want to get the accused into trouble for something he did not do or something she was unsure of. She wants her children to continue to have a relationship with him despite being terrified for her children.
The prosecution then submitted that RAM was a very impressive witness who was careful and considered in her answers, made appropriate concessions where she could not remember something and was not shaken during cross-examination.
RAM gave evidence that the accused touched her in an inappropriate way on at least 30-plus occasions. It became more frequent over time, starting when she was about 9 years old until she made the allegation at school when she was 11 years old. She gave examples of three different types of touching of her vagina: rubbing the outside, rubbing the clitoris and digital penetration. She recalled specific incidents, including when she slept on the top bunk when he rubbed the outside and touched her clitoris, times when he touched her after he had urinated in her bedroom (which occurred four or five times), in the lounge room when KMA and her boyfriend stayed over where he touched and digitally penetrated her vagina when she was about 11, the first time he penetrated her vagina with a finger, one occasion when he had to move her leg to access her vagina, and incidents where he touched her with and without penetrating her vagina after she moved into what had been her brother’s bedroom.
The prosecution emphasised that RAM went from being a heavy sleeper to a light sleeper and on occasion would awake if she heard the toilet flush, before the accused entered her bedroom. She eventually would awake to the slightest creak. She also tried to avoid the abuse by going to the shed with DM to play video games until 3am, by sleeping on her stomach, changing what she wore and occasionally coughing or stirring, which would sometimes make him stop, but not always. Ms Wilson pointed out that RAM’s explanation of why she thought laying on her stomach would stop the accused accessing her vagina, because at that age she thought her vagina was on her front (of her genital area), provided insight into her thinking at that age and is not indicative of her making something up. Further, her description of the pressure and sting of the first time the accused penetrated her vagina did not sound made up or dreamt. The prosecution submits that RAM’s inability to remember the exact order or timing of these incidents is entirely explicable when the touching occurs so frequently over an extended period of time.
RAM was cross-examined on an alleged prior inconsistent statement wherein she stated that the offending occurred at least 20 to 30 times, rather than at least 30-plus in her evidence in court. I consider the difference, if any, to be insignificant. She was also cross-examined about why she did not tell anyone sooner. She responded that her mother had a hot temper and she did not know if she would believe her or get mad at her. She did not want to break up the family, or to lose KMA or DM or her mother or be taken away. The prosecution submitted that her not telling anyone was entirely explicable given her age and the circumstances in which she was living, as was her not making it more obvious that she was awake to try to stop the offending.
In her evidence, RAM gave at least three different examples of the conduct of the accused. She said that he touched her vagina, sometimes just rubbing the outside of it. Sometimes he penetrated her labia majora and rubbed her clitoris. On at least two occasions, he actually inserted his finger into her vaginal canal.[156] RAM gave evidence of the steps that she took to avoid contact with the accused. Despite having a fear of heights, she slept on the top bunk of a bunk bed. When she did that, she can recall that the accused touched her by rubbing the outside of her vagina and touching her clitoris but not penetrating her vaginal canal.[157]
[156] T195.33-196.1.
[157] T196-197.
RAM said that the accused had touched her on a number of occasions but she can recall specifically the touching that occurred when she slept on the top bunk of the bed.
RAM gave evidence that on occasions, the accused would urinate in her bedroom and on about four or five occasions, he would touch her on the vagina after he had urinated.[158]
[158] T198.23-199.21.
On another occasion, when KMA and her boyfriend stayed over, she slept on the couch. She did so in the hope of avoiding any contact with the accused because others were present in the room. While sleeping on the couch, she woke up to find that the accused was touching her on the vagina. She thought that KMA was about 15 or 16 years old at that time. RAM is about five years younger than her, and she thought that she was about 11 years old at the time. During that incident, she moved positions to try to put off the accused. However, he persisted and inserted his finger into her vagina.[159] She recalls the first time that he penetrated her vagina.[160] She had a specific recall of the pressure of his finger and the stinging sensation.[161]
[159] T199.22-35; T203.2-207.22.
[160] T207.23-210.26.
[161] T209.1-8.
On occasions, the accused moved her leg in order to access her vagina.[162] She can recall being touched by the accused after moving into her brother JM’s room. These were occasions where he touched her without penetration. On other occasions, he did penetrate her vagina. She changed sleeping patterns and modes of sleep. She started sleeping on her stomach in an attempt to avoid the accused. However, the touching of her vagina by the accused continued after she slept on her stomach. She changed the clothes she had on as nightwear.[163] She commenced to cough or stir when he came into the room or when he was touching her in order to avoid him. On occasions, the accused touched her on the breast.[164]
[162] T215.26-37.
[163] T216.2-217.35.
[164] T221.15-31.
I am untroubled by the fact that RAM could not remember the order of when particular events occurred. I am satisfied that the touching of RAM by the accused occurred so frequently that it would be difficult for her to identify when during any particular period of time, the accused was doing particular things to her. It is to be recalled that she was a very young child at the time. Some of her avoidance mechanisms were inferentially described as naïve; an example is lying on her stomach to avoid access by the accused to her vagina. This conduct is to be assessed on the basis of the thought patterns of a child, who thought that her vagina was at the front of her body and so if she was on her stomach he could not get to it. RAM said in evidence she knows different now, but she was a child then. She was trying to avoid the conduct of the accused.
I am similarly untroubled by aspects raised in cross-examination of RAM[165] about the number of times that the accused offended against her. In evidence, she said that it was at least 30 times or more. In her statement, it was between 20 and 30 times. I do not consider that to be an inconsistent statement nor do I need to give myself a direction on inconsistent statements about that. It is a general description. The issue is not the specific number of times, but that the offending occurred on multiple occasions.
[165] T237.11-240.37.
As with KMA, RAM was cross-examined about why she did not tell anybody of this offending. I accept the response she gave that she was afraid of her mother because of her mother’s very hot temper and she did not know whether she would be believed. She did not want to break up the family which she knew would be the consequence. She did not want to lose KMA or her brother DM. She also did not want to lose her relationship with her mother and she certainly did not want to be put into a foster home. I am untroubled by this evidence. These were the thoughts of a girl aged between 9 and 11 years of age and so the fact that she did not tell anyone is completely explicable given her age and circumstances.
She was also cross-examined at length about why she did not make it more obvious to the accused that she was awake, however it is to be recalled again that she was a young girl of between 9 and 11 years of age. As I put to counsel, that was to be understood almost as a challenge to a young girl to say, ‘well, why did you not do something?’ I am untroubled by this challenge.
The complainant RAM’s mother, DB, gave evidence and said that at any time anyone in the house could have come and told her anything. However, the evidence is that the issue was raised by the complainant at school. I accept the evidence that RAM felt that she was unable to do anything else at the time and she did not think that she could tell her mother about the events. The issues raised at the school are not to be treated as complaint evidence.
The prosecution submits and I accept that the evidence in relation to what was said at the school, rebuts recent invention such that RAM only came forward to allege sexual abuse against the accused after the complainant KMA went to the police. It also forms part of the narrative of what occurred at that period of time and about the break-down of the relationship between the accused and RAM’s mother.
It is known that the accused was put out of the house once that complaint was made, however there was a reconciliation between the accused and DB about six months after the accused was put out of the house. As I asked in submissions, what was a child in the position of RAM to do when her mother recommences a relationship with a person against whom she had made these allegations? The accused and DB did not finally separate until 2002. Therefore, I accept that the evidence in relation to what occurred at the school with RAM rebuts recent invention and is also relevant to the question of collusion and contamination, given it places a time-frame about when things came to light.
There is a further aspect of the evidence that I think is important in the context of the assessment of the evidence given by RAM as a whole. Some evidence was given by DB that she became aware that, at night, the accused would be up about the house and urinating in different places other than the toilet. For example, he urinated in their bedroom, in cupboards and in a washing basket full of clothes. This was consistent with his usual state of drinking to excess every night and falling into bed. The complainant RAM gave evidence that on occasions, he urinated in her wardrobe. The outline of the house in which they lived at the time is Exhibit P15. On that exhibit, the complainant has identified, in the lounge room area, the position of the TV, the front door, where the mattress was placed on the lounge room floor and the dining room table. That dining room table was adjacent to the kitchen and there was a doorway from the kitchen to what is described as ‘to outside and beer fridge’. The laundry was off that area.
At the opposite end of the house was a hallway. Off of the hallway there were three bedrooms, a toilet, bathroom and linen cupboard. The complainant described her brother’s room as being adjacent to her parent’s room but on the lounge room side of the parent’s room. The room that she described as ‘my room’ was on the side of the house adjacent to the bathroom and the linen cupboards. In order for the accused to access the toilet, he would have to walk down the hallway and enter into the toilet area. The evidence was that there were double bunks in the room described as ‘my room’ but that on the wall adjacent to the bathroom there was a salt damp problem, and sometimes the room smelt musty. That is why, for some periods of time, the complainant slept in the same room as her brother JM, described as ‘J’s room’.
DB gave evidence that on one occasion, she had become aware that the accused was not in their bed. He was not in the bedroom and she went looking for him. She found him in the bedroom of the complainant RAM. There is no clear evidence about what was said by DB to the accused whilst he was in that bedroom, but he was facing into the wardrobe adjacent to the bed in which the complainant RAM was sleeping. Whatever she said to him, the accused slammed the cupboard door shut and walked out of the room and DB then guided him to the toilet. DB went back into the room of the complainant and checked the floor of the wardrobe and found no moisture on the floor.
There is no evidence that the complainant RAM was awake for that incident. However, I consider that this incident has a number of important features. It confirms the evidence of the complainant that the accused would urinate from time to time in places other than in the toilet. The accused was allegedly in her room to urinate in her wardrobe, however, he had not done so. Second, DB came and checked the floor of the wardrobe for moisture. There was none. All of this is important because the evidence of the complainant RAM was that there was a link between the accused urinating in her bedroom and the occasions when sexual abuse occurred on four or five different occasions.
Therefore, the significance of this evidence is that it is consistent with the evidence given by the complainant RAM of the presence of the accused in her bedroom. That is, that DB is aware of at least some of the nocturnal activities of the accused, that she did come into RAM’s bedroom and see him in the area of the bed in which RAM was sleeping and also in the area of the wardrobe. It was her expectation that he was about to urinate in that wardrobe. Whether that is so or not is, to an extent, a matter of conjecture. The important feature is that he, a grown man, is in the bedroom of his step-daughter, the complainant, at night in circumstances as they were described by the complainant RAM, which were associated with the sexual abuse of her by the accused.
Some point was made about the changing of bedrooms, both the furniture within the bedrooms and the sleeping arrangements in different bedrooms. DB gave evidence that she liked to change the furniture around. That was her preference. To an extent, that is slightly inconsistent with the evidence of the complainant RAM, who could recall that she changed bedrooms from the room called ‘my room’ on Exhibit P15, to ‘J’s room’ because of the problem with salt damp. It was generally accepted that there was a salt damp problem in that room because of the proximity to the bathroom, but DB gave evidence that the changes of sleeping arrangements were more common than that. There may well be a slight inconsistency of evidence on that topic, however I am untroubled by it.
The accused criticised the evidence of RAM concerning sleeping on the couch in the lounge room and suggested that it was entirely plausible that RAM watched TV in the company of her step-sister KMA and fell asleep on the lounge independent of any desire to avoid contact with the accused. However, even if it be accepted that RAM wished to watch TV in the company of KMA, that does not in any way affect the credibility of her evidence that she did so as a means of avoidance of the accused. Her hope was that the accused would not be so bold as to interfere with her in the lounge room when other people were present there. I accept that that was not the case, because I accept the evidence of RAM that she was sexually interfered with by the accused whilst she was sleeping on the couch in the lounge room.
I am unable to accept the submission that the evidence of RAM is not supported by other evidence. There is supporting evidence about the nocturnal activities of the accused, the fact that he drank to excess every day, of the smell upon his person, of his habit of urinating in places in the house other than in the toilet, and the fact that on at least one occasion, DB, the mother of the complainant, became aware that he was not in their bed and that she got up to look for him. She found him in the bedroom of the complainant, apparently preparing to urinate in the cupboard. The complainant RAM was apparently asleep in her bed and does not recall this particular event.
When regard is had to Exhibit P15, it would have been necessary for the accused to have left his bedroom, stepped into the hallway, then stepped through the doorway of the complainant’s room and walked down to the area of the built-in cupboards, which appears to have been adjacent to the bathroom wall, however that is not completely clear. All of this evidence was confirmed by DB.[166] She said that frequently the accused went into bedrooms, possibly thinking it was a toilet, and urinate in wardrobes or in the corner of a room. She did not know what he was thinking or whether he was asleep. On one occasion, he urinated in their wardrobe and there was a washing basket in the bedroom next to the wardrobe. It was on the floor when he was urinating. She confirmed that he constantly had a very strong smell about him of White Ox rolling tobacco and alcohol. DB described the accused as basically smelling like beer, cigarettes and grains from work.[167] This is the same general description of him given by each of the complainants.
[166] T262.14-27.
[167] T262.32-38.
In my assessment of the guilt or innocence of the accused having regard to Count 3, I am entitled to have regard to the whole of the evidence. I am unable to accept the submissions that the evidence of the complainant RAM is not supported by other evidence. To the contrary, I am satisfied that it is consistent with the evidence given in the Court.
Mrs Powell then made submissions in regard to the decision of the Court of Appeal in R v M, DV, which I have discussed above. She submitted that the relationship between RAM and the accused was no more than co-habitants of a house. It was alleged that RAM only had a relationship with her mother, and the accused only had a relationship with DB and not with RAM. Reliance was placed on the decision of the Court of Criminal Appeal in R v M, DV[168] and the discussion of the Chief Justice at [1] as follows: ‘the actus reus of the offence is the maintenance of a relationship, which need not be a sexual one, in which (in the sense of in the course of which) an adult engages in two or more unlawful sexual acts with a child.’ Mrs Powell submitted that having regard to what fell from the Chief Justice at [10], the words ‘in which’ in sub-s (2) differentiates the relationship from the unlawful sexual acts meaning that the unlawful sexual acts are not in themselves a relationship, they are acts that occur within it. The accused contends that as a result, it is necessary for the prosecution to prove beyond reasonable doubt the existence of some identifiable relationship between an offender and a victim in the course of which offending took place. The logical extension of this argument was that if, for example, there was no particular connection between an offender and a victim such that they were only in the same place at the same time when the events occurred, then an essential element of the offence could not be proved beyond reasonable doubt. In each case, it would be necessary first to identify by direct or circumstantial evidence the necessary relationship, and this would always be a question of fact and will vary according to the circumstances. At the very least, there must be some identifiable actual connection between those people. This outcome, it was said, flowed directly from the decision of the majority in R v M, DV.
[168] [2019] SASCFC 59.
In this context, reliance was placed upon the evidence of RAM about her relationship with the accused, that he was not a step-father or father-figure in the traditional sense. He was there as a father-figure, but was drunk a lot of the time so he was not really much of a father-figure per se. He was more like her mum’s boyfriend, but she never considered him as a father-figure or anything; he was a ‘drunk guy at the table’. This was supported by the evidence of DB who said that the accused was intoxicated every night to the point of falling asleep at the dinner table. The accused relies upon this evidence to submit that there was no maintenance of any relationship as it could not be said that there was any relationship between the accused and RAM.
There are a number of responses to be made.
The submission relies upon the acceptance of a very narrow meaning of ‘relationship’ in this context. I do not accept that approach. There is no doubt that these matters are questions of fact, but finders of fact may find beyond reasonable doubt the existence of a relationship where, for example, an accused has no more than a power of authority given or assumed over a complainant such as, for example, in a school between a teacher and a student. The fact of the relationship may arise because of the authority of the offender. Most important, the offences are being committed against children by an adult. The term ‘relationship’ will always be construed in that context because this is the obvious intention of Parliament: to protect children against whom offences may be committed. It follows in my view that in general, a relationship between an adult offender and a child will exist where there is, for whatever reason, a connection between them. A pertinent time period need not be established because the possibilities are infinite and do not lend themselves to definition for obvious reasons. This is because the focus here is upon the events between the adult and child, not the time period. That being so, the proper view is to understand first the position of the child and the integers of connection between the child and the offender from the point of view of the position of the child. A child living in a house with her mother and the offender is but one obvious example. This is why they are in the same place together and so such circumstances attract the epithet of relationship. It is inappropriate to attempt any further definition because of the breadth of possibilities.
And this argument overlooks a significant number of factual matters. The first is that the accused was in a de facto relationship with the mother of RAM. They co-habited in a house to which, directly or indirectly, the accused made contributions. RAM, as a child, lived in this house with her mother and siblings; this was her home and was so when the accused arrived to live with her mother. In that context, and despite his inability to fulfill the role of father-figure, the accused was, in effect, in loco parentis with the complainant. This is because the accused formed the relationship with the complainant’s mother and lived in a home with the complainant’s mother and the two children, the complainant and her brother.
The submission further overlooks the fact that, as Exhibit P1 discloses, the accused and RAM have the same father and different mothers. They are related as half brother and sister. Hence RAM was an auntie to KMA who was five years older than her. Consistent with my earlier discussions, there was already a familial relationship by blood between them at law.
I am unable to accept the submission of the accused that if he and the complainant did not in fact enjoy the relationship between them on the evidence, then they were not in a relationship and could not be said to be in a relationship for the purposes of s 50 of the Criminal Law Consolidation Act. In my opinion, that approach fails to comprehend that the concept of relationship in this instance can be, as here, where the accused was related by blood to and was in loco parentis to her as the child of his partner with whom he lived and with whom he had a de facto relationship. The accused could not rely upon the fact that he was not much of a father-figure per se because he was drunk a lot of the time or because he was a ‘drunk guy at the table’. In my opinion, it strains credulity to say that when the accused was living with the mother of the complainant, and when she and her brother were of such tender years, that there was no relationship of, for example, in loco parentis between the accused and the children. I am unable therefore to accept that submission of the accused and I find that, in accordance with the reasoning of Kourakis CJ and Lovell J in R v M, DV, that the relationship existed and it was within that relationship that the sexual offending occurred.
In a further argument, the accused submitted that there must be some element of relative normality within the relationship. In my view, that submission discloses the logical flaw in the argument. There is no description of what might appear to be ‘relative normality’ within any relationships and it is not appropriate here that I attempt to define such a term. It is only necessary for this Court to call upon its experience of people’s relationships to know that when it is suggested that there is relative normality, that term, of itself, can only be used in a comparative sense. It could not be defined. In my opinion, that was not the intention of the Chief Justice in his explanation of the meaning of s 50 et seq of the Criminal Law Consolidation Act 1935 (SA) in R v M, DV. I am unable to accept that submission.
In the circumstances, I am satisfied beyond reasonable doubt that in the period between 15 December 1996 and 9 August 1999, the accused maintained an unlawful sexual relationship with RAM by engaging in two or more unlawful sexual acts with or towards her. Namely, that he touched her on the vagina on more than one occasion and that he inserted his finger into her vagina on more than one occasion.
I am satisfied that the evidence proves beyond reasonable doubt that the accused committed sexual offences against both of the complainants. I am also satisfied beyond reasonable doubt that the conduct of the accused displays an innate behavioural proclivity to commit offences of this kind. I find that he had a sexual proclivity to sexually interfere with young girls, the daughters of his de facto spouses, in the way that they described in their evidence. The particular features are the opportunistic way in which he committed the offences by interfering with the girls at night and the sexual focus of his conduct. I conclude that by having regard to the evidence of the offending against each of the complainants in respect of the other, that there is a manifestation of the proclivity of the accused, by his conduct against each of them, to commit offences of the kind that I have found proved beyond reasonable doubt on the whole of the evidence.
Forensic disadvantage
Section 34CB of the Evidence Act 1929 provides that if there is a delay between the alleged offending and the trial which results in a significant forensic disadvantage to a defendant, I must identify that disadvantage and direct myself to take that disadvantage into account. The disadvantage must be specific to the circumstances in the case and not be in the form of a warning that is so general as to be meaningless. In other words, I must forge a warning tailored to the circumstances of this case where the delay gives rise to some real disadvantage to the accused. In addressing these matters, I take guidance from the Court of Criminal Appeal decision in R v W, PK.[169] Kourakis CJ, who wrote the judgment of the Court, said:
[169] [2016] SASCFC 5 at [35]-[42].
In R v Cassebohm,[170] Doyle CJ outlined the requirements of a warning pursuant to s 34CB:[171]
[170] (2011) 109 SASR 465.
[171] Ibid 475 [32].
The judge must explain to the jury the nature of the forensic disadvantage: s 34CB(2)(a). The judge must do so making specific reference to the circumstances of the particular case: s 34CB(3)(a). It will not be sufficient to talk about the effects of delay in general terms, nor even about adverse effects on memory in general terms. The judge must tie the direction carefully to the particular circumstances. The judge must avoid the phrase referred to in s 34CB(3)(b).
In R v C, CA,[172] I observed:
The delay in this matter was substantial and I would accept that it resulted in a significant forensic disadvantage calling for a direction in accordance with s 34CB of the Evidence Act. The Judge did alert the jury to the appellant's forensic disadvantage in general terms. However, s 34CB of the Evidence Act requires a direction explaining the forensic disadvantage faced by the particular defendant on trial. The general direction given by the Judge did not draw the jury's attention to the contradictions, in matters of detail, of the complainants' testimony, which might have been more effectively pressed but for the lapse of time.
…
The Judge addressed the topic of forensic disadvantage in general terms but did not make a finding or give a ruling about whether the requirement of a ‘significant forensic disadvantage’ within the meaning of s 34CB(2) had been satisfied.
…
Section 34CB of the Evidence Act was clearly enlivened by the circumstances of this trial. The appellant's counsel sought a direction pursuant to that section. The passage of time was, in and of itself, a reason to give such a warning. Some 40 years, or close to it, had passed. S's evidence was that the offending occurred in the context of the day to day proximity of family life. Recollection of detail and of particular occasions will necessarily be difficult in those circumstances. The Judge explained the general difficulty occasioned by the lapse of time in defending accusations of this kind well when he told the jury that a complainant in a case like this is likely to be excused for deficiencies of recollection whereas the accused is in no position to dispute the recollection.
However, s 34CB(3) of the Evidence Act requires more than a general explanation of that kind. It requires the direction to be tailored to the facts and circumstances of the particular case.
[172] [2013] SASCFC 137 at [11]-[17].
It is necessary that I tailor any forensic disadvantage direction to the facts and circumstances of this particular case. At the time of trial, it was nearly 20 years since the date of the commencement of these alleged offences. Recent authority suggests that it is not necessary as a Judge sitting alone to give myself a forensic disadvantage warning[173] but I will do so in light of the operation of s 34CB of the Evidence Act. Any warning that I give myself must comply with the matters referred to by Peek J in R v Maiolo (No 2).[174]
[173] R v R, PA [2019] SASCFC 19 at [85].
[174] (2013) 117 SASR 1 at [179].
I am aware of the real possibility of the accused suffering a forensic disadvantage in this matter. If the allegations had been made earlier, it would have been much easier for him to have approached witnesses, to have a clearer account from the complainants and to have a clearer position himself bearing in mind their allegations of digital penetration. As an example, arrangements may be made for the complainants to be medically examined. Another forensic disadvantage was that each of the witnesses was testing very old memories. The effluxion of time has created some difficulties in defending the allegations because there is no allegation, for example, of something happening on a specific day, date or time. It was impossible, for example, to ascertain whether or not the accused might have had an alibi and he might have been in different places at different times. None of this can occur because the allegations have, comparatively, come so late in the day. I consider it as my duty as a trial judge sitting without a jury, to take into account the difficulties that the accused may have had to test the complainants’ accounts in much detail, or his inability to more readily recall exculpatory circumstances, or items of evidence which might have rendered the alleged offence more difficult, more unlikely or impossible to have occurred. In turn, this might have better equipped his counsel to cross examine prosecution witnesses or to have advanced his own case by way of giving defence evidence.
I accept that as a result of delay, the accused has suffered prejudice. I will assume that he may have been able to more accurately identify where he might have been on particular days, where he might have been working at particular times, his activities at those times and at other times and inquiries that he might have been able to make to confirm or identify more clearly issues that may have been able to be used to challenge the version of events put forward by each of the complainants. Notwithstanding my acceptance of that position, I have been unable to identify from the evidence that the accused has suffered such a level of prejudice that would throw doubt on the versions of events put forward by either complainant. This is after taking into account the forensic disadvantage in scrutinising the evidence of each of the complainants as I am required to do under s 34CB(2) of the Evidence Act 1929 and the decision of the Court of Criminal Appeal in R v N, RC.[175] I have directed myself that it is unsafe to convict the defendant on the uncorroborated evidence of any alleged victim of a sexual offence if I consider it is necessary to avoid a perceptible risk of a miscarriage of justice arising from the circumstances of the case. Having formed the view that the defendant has suffered a significant forensic disadvantage, I have taken that disadvantage into account when scrutinising the evidence of the complainants having regard to the specific circumstances of this matter. Notwithstanding, I am satisfied beyond reasonable doubt that having regard to that significant forensic disadvantage, the elements of the offences charged under Counts 1 and 3 are proved to my satisfaction beyond reasonable doubt.
[175] (2012) 112 SASR 399 at [42].
Conclusion
In consideration of the evidence as a whole as I have discussed above, I am satisfied of the following matters:
First Count: I am satisfied beyond reasonable doubt that between 1 June 1990 and 30 November 1992 at Pinery, the accused maintained an unlawful sexual relationship with KMA, a person under the age of 17, by engaging in two or more unlawful sexual acts with or towards KMA. At the time, he was in a relationship of step-father and step-daughter with KMA. I find the evidence of KMA on her account of the events surrounding this charge to be compelling and truthful. I remain untroubled by the inconsistencies that were canvassed in evidence and submissions and they did not negate the prosecution case and I remain satisfied beyond reasonable doubt of the circumstances as alleged.
I find the accused guilty on this count.
Second Count: I am not satisfied beyond reasonable doubt that between 1 April 1994 and 24 April 1994 at Mansfield Park, the accused indecently assaulted the complainant, by touching her on the buttocks.
I find the accused not guilty on this count.
Third Count: I am satisfied beyond reasonable doubt that between 15 December 1996 and 9 August 1999 at Enfield, the accused maintained an unlawful sexual relationship with RAM, a person under the age of 17, by engaging in two or more unlawful sexual acts with or towards RAM. At the time, the accused was in a relationship of step-father and step-daughter with RAM. Also, he was a half-brother to RAM because they both shared the same father.
I find the evidence of RAM on her account of the events surrounding this charge to be compelling, truthful and reliable. I am satisfied beyond reasonable doubt of the circumstances as alleged.
I find the accused guilty on this count.
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